Stocovaz v Fung

[2007] NSWCA 199

NEW SOUTH WALES COURT OF APPEAL

CITATION:      STOCOVAZ v FUNG [2007]  NSWCA 199

FILE NUMBER(S):
40117/2007

HEARING DATE(S):               07/08/2007

JUDGMENT DATE: 15 August 2007

PARTIES:
Janice Rosemary Stocovaz - Claimant
On Tai Fung - Opponent

JUDGMENT OF:       Basten JA Handley AJA Hoeben J   

LOWER COURT JURISDICTION: Supreme Court - Common Law Division

LOWER COURT FILE NUMBER(S):          CL 15618/2005 & 20046/2006

LOWER COURT JUDICIAL OFFICER:     Patten AJ

LOWER COURT DATE OF DECISION:    08/12/2006

LOWER COURT MEDIUM NEUTRAL CITATION:
 [2006] NSWSC 1345

COUNSEL:
Claimant:  J. Glissan QC & K.J. Manion
Opponent: T. Alexis SC & J. Gruzman

SOLICITORS:
Claimant: C.K.B. Partners
Opponent: Gells Lawyers

CATCHWORDS:
DAMAGES – DAMAGED CHATTEL – MEASURE OF DAMAGES – COST OF REPAIRS – MUST NOT BE EXTRAVAGANT OR UNREASONABLE

LEGISLATION CITED:
Civil Procedure Act 2005 (NSW)
Supreme Court Act 1970 (NSW)

CASES CITED:
Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334
Fung v Stocovaz [2006] NSWSC 1345
Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478
Kenn v Pickard (unrep, 16 September 2005)
Murphy v Brown (1985) 1 NSWLR 131

DECISION:
1. Leave to appeal refused
2. Summons and notice of appeal without appointment dismissed with costs.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40117/07

BASTEN JA
HANDLEY AJA
HOEBEN J

Wednesday 15 August 2007

JANICE ROSEMARY STOCOVAZ v ON TAI FUNG

DAMAGES – DAMAGED CHATTEL – MEASURE OF DAMAGES – COST OF REPAIRS – MUST NOT BE EXTRAVAGANT OR UNREASONABLE

This action sought to recover the costs of repairs to a motor vehicle caused by a collision for which the defendant admitted liability. The defendant argued that the cost of repairs claimed by the plaintiff was unreasonable. A Registrar of the Supreme Court removed the action from the Local Court to the Common Law Division as a test case. The primary judge held that that plaintiff was entitled to be indemnified by the defendant for the actual cost of the repairs, provided that cost was not extravagant. The defendant applied for leave to appeal.

HELD:

1. There are two limitations on claims such as this. The claim cannot be for more than the actual cost of repairs, and that cost must not be extravagant or unreasonable.

2. Extravagant and unreasonable in this context are interchangeable terms.

   The Pactolus (1856) Swab 173 applied.

ORDERS

1. Leave to appeal refused.

2. Summons and notice of appeal without appointment dismissed with costs.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

40117/2007

BASTEN JA
HANDLEY AJA
HOEBEN J

WEDNESDAY 15 AUGUST 2007

JANICE ROSEMARY STOCOVAZ v ON TAI FUNG

Judgment

1. BASTEN JA:  This application for leave to appeal is said to involve an important point of principle in relation to the quantum of damages recoverable for damage caused to a motor vehicle by the negligence of another driver.  The issue was said to be one of importance because its resolution would, at least on one view, diminish or stem entirely a flow of litigation in the lower courts.  Although the matter…