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Yalda v Mshref

Yalda v Mshref

Case [2021] NSWSC 624 2 June 2021

Negligence

Abuse of Process

Appeal

Civil Litigation & Procedure

Tort Law

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Supreme Court

New South Wales

Medium Neutral Citation: Yalda v Mshref [2021] NSWSC 624
Hearing dates: 21 May 2021
Date of orders: 2 June 2021
Decision date: 02 June 2021
Jurisdiction: Common Law
Before: Harrison AsJ
Decision:
The Court orders that:
(1) In accordance with s 41 of the Local Court Act 2007 (NSW), the amount of damages awarded in the second proceedings is varied from $20,597.93 to $20,000. Otherwise the appeal is dismissed.
(2) The costs order made by the Magistrate dated 4 August 2020 is affirmed.
(3) Costs are reserved.

Catchwords:
APPEALS – Damages – Negligence – Vehicle accident – Vicarious liability – Abuse of process – Law Reform (Miscellaneous Provisions) Act1946 (NSW) s 5(1) – Dismissal of statement of claim – Appeal dismissed

Legislation Cited:
Civil Procedure Act 2005 (NSW), s 60
Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 5(1)
Local Court Act 2007 (NSW), ss 39, 40(1), 40(2), 41
Uniform Civil Procedure Rules2005 (NSW), rr 13.4, 14.28

Cases Cited:
Be Financial Pty Ltd v Das [2012] NSWCA 164
Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937
Coulter v R (1988) 164 CLR 350; 76 ALR 365
Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1
Lee v New South Wales Crime Commission (2012) 224 A Crim R 94; [2012] NSWCA 262
Rippon v Chilcotin Pty Ltd [2001] NSWCA 142; 53 NSWLR 198
Scott v Davis [2000] HCA 52; (2000) 205 CLR 333
Steiner v Strang [2016] NSWSC 9
UBS AG v Tyne [2018] HCA 45; 265 CLR 77
XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd [1985] HCA 12; (1985) 155 CLR 448

Category: Principal judgment
Parties: Munerah Yalda (Plaintiff)
Tahani Mshref (Defendant)
Representation:
Counsel:
R Kumar (Plaintiff)
D Meyerowitz-Katz (Defendant)
Solicitors:
El Baba Lawyers (Plaintiff)
State Lawyers (Defendant)

File Number(s): 2020/00254531
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Local Court

Jurisdiction:

General Division

Date of Decision:

4 August 2020

Before:

Swain LCM

File Number(s):

2019/00254065

JUDGMENT

HER HONOUR: This is an appeal from the whole of the decision of Magistrate Swain dated 4 August 2020 (“the Magistrate”). The verdict, at its highest, involves $20,597.53.
By amended summons filed 14 May 2021, the plaintiff seeks leave to appeal from the whole of the decision of the Magistrate; the appeal be allowed, and the judgment of the Local Court be set aside.
The plaintiff in these proceedings is Munerah Yalda (“Ms Yalda”), the defendant in the Local Court proceedings. The defendant in these proceedings is Tahani Mshref (“Ms Mshref”), the plaintiff the in Local Court proceedings. For convenience, I shall refer to the parties by name. The parties relied upon a joint court book.

Appeal generally

Section 39 of the Local Court Act 2007 (NSW) provides that a party who is dissatisfied with a judgment or order of the Local Court may appeal to the Supreme Court, but only on a question of law.
Section 40(1) of the Local…

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 Yalda v Mshref

Details

AGLC: Yalda v Mshref [2021] NSWSC 624
Case: [2021] NSWSC 624
Decision Date: 02 June 2021

CaseChat Overview and Summary

Yalda v Mshref involved the plaintiff, Yalda, seeking damages for injuries sustained in a car accident caused by Mshref, who was driving a vehicle owned by a company for which she was not an employee but claimed to be acting as an agent. The case was heard in the Supreme Court of New South Wales. The primary dispute centred around whether Mshref could be held vicariously liable for the accident and whether the plaintiff's claim was an abuse of the legal process under section 5(1) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW).

The court was tasked with determining the extent of Mshref's liability under the principles of vicarious liability and whether her actions constituted an abuse of the legal process warranting the dismissal of the plaintiff's statement of claim. The court also needed to consider if the plaintiff's claim was frivolous or vexatious, which would justify dismissal under the relevant statutory provision.

The court held that Mshref could not be held vicariously liable as she was not an employee of the company and her claim to be acting as an agent was not substantiated. The court further found that the plaintiff's claim was not an abuse of process, as it was not frivolous or vexatious. The appeal against the dismissal of the statement of claim was therefore dismissed. The court ruled that the plaintiff's case was valid and could proceed on its merits, rejecting the defence's arguments for dismissal based on abuse of process.

Orders