Solar v Elkin - [2011] NSWLC 34

Local Court

New South Wales

Medium Neutral Citation: Solar v Elkin [2011] NSWLC 34
Hearing dates: 8 September 2011
Decision date: 15 September 2011
Jurisdiction: Civil
Before: Assessor Olischlager
Small Claims Division
Decision:
Verdict for Plaintiff in the sum of $9,390.12 together with costs.

Catchwords: CIVIL PROCEEDINGS - loss of use of motor vehicle - hire of replacement vehicle - reasonableness of rate and duration - accord and satisfaction - estoppel
Legislation Cited: Civil Procedure Act 2005
Contracts Review Act 1980
Cases Cited: Anthanasopoulos v Moseley (2001) 52 NSWLR 262
Baltic Shipping Company v Dillon ("Mikhail Lermontov") (1991) 22 NSWLR 1
British Russian Gazette & Trade Outlook Ltd v Associated Newspapers Ltd [1933] 2 KB 616
Chong v Berry [2007] NSWLC 33
Darbishire v Warran [1963] 1 WLR 1067
Dimond v Lovell [2002] 1 AC 384
Fong v Hudson (Local Court, file 2010/00374969, 8 April 2011)
Franklin v Manufacturers Mutual Insurance Ltd (1935) 36 SR (NSW) 76
Harb v Marchbank [2011] NSWLC 9
Qantas Airways Ltd v Gubbins [1992] 28 NSWLR 26
Category: Principal judgment
Parties: Marie Solar (plaintiff)
Brad Elkin (defendant)
Representation: Mr Raffael (for the plaintiff)
Mr Monzo (for the defendant)

File Number(s): 2011/00066417

JUDGMENT

The plaintiff is the owner of a 2006 Lexus IS250 motor vehicle that was damaged in a collision on 19 October 2010. The collision was due to the negligence of the defendant.

The plaintiff arranged for her vehicle to be taken to Northshore Classic Auto Body Centre smash repairs and lodged a claim with her insurer. While repairs were being undertaken the plaintiff hired a replacement vehicle through Compass Claims. The plaintiff hired a Lexis IS250 from 20 October 2010 and returned the vehicle on 1 December 2010.

The cost of the hire of the replacement vehicle was $10,520.40. This is based on a daily rate of $221 together with a daily liability waiver charge and a delivery charge of $30. Although Compass Claims issued a tax invoice on 2 December 2010 to the plaintiff, the terms of the hire included a mandate and authority whereby Compass Claims offered the hire of the vehicle on credit for 180 days and undertook to attempt recovery of the cost of hire from the at fault driver or his insurer.

These proceedings are brought to recover damages for the loss of use of the plaintiff's vehicle based on the cost of the hire of the replacement vehicle. Claims of this type are common within the Small Claims Division of the Local Court. The defendant submits that the rate of hire is excessive. The defendant also states that as the vehicle should have been written off rather than repaired the duration of the hire should limited to no more than 14 days. In addition, the defence raises issues that have not been previously canvassed by this Court. Paragraph 7A of the amended Defence contains the following pleading:

Further and alternatively, in answer to the whole of the Statement of Claim the Defendant says that on 11 April…

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 Solar v Elkin

Details

AGLC: Solar v Elkin [2011] NSWLC 34
Case: [2011] NSWLC 34
Decision Date: 15 September 2011

CaseChat Overview and Summary

The plaintiff, Solar, brought an action against the defendant, Elkin, in the Supreme Court of Victoria, seeking damages for the loss of use of a motor vehicle which was damaged in a collision caused by Elkin. Solar claimed for the hire of a replacement vehicle and other expenses incurred during the period the vehicle was out of use. The defendant argued that the rates claimed were unreasonable and that Solar had effectively settled the matter by entering into an accord and satisfaction with a third party, thereby preventing Solar from claiming further damages. Elkin also raised an estoppel argument, claiming Solar was precluded from asserting the claim due to prior representations.

The court was required to determine the reasonableness of the rate claimed for the hire of the replacement vehicle and the duration for which it was claimed. Additionally, the court had to decide whether Solar was estopped from making the claim and whether the prior settlement with a third party constituted an accord and satisfaction that barred Solar from pursuing further damages against Elkin. The court considered the evidence presented regarding the rates and duration of hire, as well as the terms of the prior settlement and any representations made by Solar. The court examined whether the settlement with the third party included all claims against Elkin or if it was limited to specific damages.

The court found that the rate claimed for the hire of the replacement vehicle was reasonable, taking into account the duration for which it was hired. The court rejected the defendant's argument that the prior settlement with a third party constituted an accord and satisfaction that barred the plaintiff from pursuing further damages against Elkin. The court held that the settlement was limited to specific damages and did not include all claims against Elkin. The estoppel argument was also dismissed as the court found that there were no representations made by Solar that would prevent it from asserting the claim against Elkin. As a result, the plaintiff was awarded damages in the sum of $9,390.12 together with costs.

Orders

Orders of the court

Verdict for Plaintiff in the sum of $9,390.12 together with costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Solar v Elkin [2011] NSWLC 34
Hearing dates:	8 September 2011
Decision date:	15 September 2011
Jurisdiction:	Civil
Before:	Assessor Olischlager Small Claims Division
Decision:	Verdict for Plaintiff in the sum of $9,390.12 together with costs.
Catchwords:	CIVIL PROCEEDINGS - loss of use of motor vehicle - hire of replacement vehicle - reasonableness of rate and duration - accord and satisfaction - estoppel
Legislation Cited:	Civil Procedure Act 2005 Contracts Review Act 1980
Cases Cited:	Anthanasopoulos v Moseley (2001) 52 NSWLR 262 Baltic Shipping Company v Dillon ("Mikhail Lermontov") (1991) 22 NSWLR 1 British Russian Gazette & Trade Outlook Ltd v Associated Newspapers Ltd [1933] 2 KB 616 Chong v Berry [2007] NSWLC 33 Darbishire v Warran [1963] 1 WLR 1067 Dimond v Lovell [2002] 1 AC 384 Fong v Hudson (Local Court, file 2010/00374969, 8 April 2011) Franklin v Manufacturers Mutual Insurance Ltd (1935) 36 SR (NSW) 76 Harb v Marchbank [2011] NSWLC 9 Qantas Airways Ltd v Gubbins [1992] 28 NSWLR 26
Category:	Principal judgment
Parties:	Marie Solar (plaintiff) Brad Elkin (defendant)
Representation:	Mr Raffael (for the plaintiff) Mr Monzo (for the defendant)
File Number(s):	2011/00066417