Nicolaas v Sasso - [2019] ACAT 44

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

NICOLAAS v SASSO (Civil Dispute) [2019] ACAT 44

XD 63/2018
Catchwords: CIVIL DISPUTE – damages for loss of use of non-income producing car – nature of loss – general or special damages – market rate of replacement hire as a measure of damages – meaning of market rate of hire – relevance of actual credit hire charges to determination of market rate – is a discounted rate a market rate?

Subordinate
Legislation cited: Court Procedure Rules 2006 sch 2

Cases cited:Anathanasopoulous v Moseley [2001] NSWCA 266
Chong v Berry [2007] NSWLC 33
Harb v Marchbank [2011] NSWLC 9
Hayes v Bateman [2015] NSWLC (unreported)
Lagdenv O’Connor [2003] UKHL 64
Rizk v Chenand National Apollo Bathrooms Pty Ltd [2014] NSWLC 8
Portbury Development Company Pty Ltd v Ottedin Investments [2014] VSC 57
Vincent Fallon v Jessica Johnston [2018] VSC 273

Tribunal:Senior Member E Ferguson

Date of Orders:  26 April 2019
Date of Reasons for Decision:         26 April 2019
AUSTRALIAN CAPITAL TERRITORY          )
CIVIL & ADMINISTRATIVE TRIBUNAL     )          XD 63/2018
BETWEEN:
AMY ELIZABETH NICOLAAS
Applicant

AND:
HAYDEN SASSO
Respondent

TRIBUNAL:Senior Member E Ferguson

DATE:26 April 2019
ORDER

The Tribunal orders that:

1.The respondent is to pay to the applicant by Friday 24 May 2019 the sum of $2932.97, calculated as follows:
(a) $2,486.25 for damages;
(b) $150.00 for the ACAT filing fee; and
(c) $296.72 interest on sum at order 1(a) in accordance with schedule 2 of the Courts Procedures Rules 2008.

………………………………..
Senior Member E Ferguson

REASONS FOR DECISION

Background

1.Ms Nicolaas was involved in a motor vehicle accident with Mr Sasso in which her car, which she used solely for personal use, was damaged. It is not disputed that the collision was caused by Mr Sasso’s negligence and that he is liable for any compensable loss his negligence caused Ms Nicolaas.
2.Ms Nicolaas’ insurer paid for the cost of repairs to her car. However her policy did not cover the cost of hiring a replacement vehicle while her car was being repaired.
3.She hired a replacement vehicle from Right2Drive Pty Ltd (R2D). R2D is what is known as a “credit hire company”. That is, it provides customers like Ms Nicolaas, who it assesses as not at fault in an accident, with a replacement vehicle on credit while their car is being repaired. The customer authorises R2D to recover the cost of hire from the negligent driver on their behalf and apply whatever it recovers to payment of the hire charges. If all goes according to plan, the customer can expect to pay nothing for car hire and to be relieved of the burden of prosecuting this aspect of their claim, and R2D is paid.
4.R2D brought this application to recover its hire charges on behalf of Ms Nicolaas. Mr Sasso’s subrogated insurer, a company in the Suncorp Group (Suncorp), defended the application in his name.
5.The protagonists in this case are not the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Nicolaas v Sasso

Details

AGLC: Nicolaas v Sasso [2019] ACAT 44
Case: [2019] ACAT 44
Decision Date: 26 April 2019

CaseChat Overview and Summary

The dispute in Nicolaas v Sasso was between Nicolaas and Sasso, who were involved in a motor vehicle accident. The applicant, Nicolaas, claimed damages for loss of use of his non-income producing car. The case was heard in the Civil and Administrative Tribunal of Western Australia. The legal issues that the Tribunal had to determine were the nature of the loss claimed, whether it was general or special damages, the appropriate measure of damages for loss of use of a car, and the meaning of market rate of hire in this context.

The Tribunal considered whether the market rate of hire should be measured by the actual credit hire charges, and if a discounted rate could be considered a market rate. The Tribunal found that the loss claimed by the applicant was for the loss of use of his car, which was a special damage. The appropriate measure of damages for loss of use of a non-income producing car is the market rate of replacement hire. The Tribunal held that the market rate of hire is the rate that a person in the market would be expected to pay for a similar car on hire, and that the actual credit hire charges are one factor to be considered in determining the market rate. The Tribunal concluded that a discounted rate could be a market rate if it reflected the rate that a person in the market would be expected to pay.

The Tribunal ordered the respondent to pay the applicant damages of $2,486.25, plus the ACAT filing fee of $150.00, and interest of $296.72 on the damages amount. The Tribunal also ordered that the payment be made by Friday 24 May 2019.

Orders

Orders of the court

The Tribunal orders that:

1. The respondent is to pay to the applicant by Friday 24 May 2019 the sum of $2932.97, calculated as follows:

(a) $2,486.25 for damages;

(b) $150.00 for the ACAT filing fee; and

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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