Zein v Wazen - [2021] NSWDC 463

District Court

New South Wales

Amendment notes

Medium Neutral Citation: Zein v Wazen & Anor [2021] NSWDC 463
Hearing dates: 22 March 2021
23 March 2021
24 March 2021
25 March 2021
26 March 2021
29 March 2021
30 March 2021
15 July 2021
Date of orders: 07 September 2021
Decision date: 07 September 2021
Jurisdiction: Civil
Before: Coleman SC DCJ
Decision:
1 Verdict and Judgment for the first and second defendants.
2 The plaintiff to pay the second defendant’s costs of the proceedings.
3 If any party seeks a different order with respect to costs, there is liberty to apply on three days’ notice.
4 The exhibits may be returned after 28 days.

Catchwords:
Torts – Negligence – Motor Vehicle Accident – s 119 – Claim Allegedly Not Made in Good Faith – Joinder of the CTP Insurer as Second Defendant – Whether the Accident occurred as Alleged by the Plaintiff – Assessment of Damages – General Rule that the Court is to Determine All Issues in Question – Exception to the General Rule

Legislation Cited:
Motor Accidents Compensation Act 1999 (NSW) ss 81, 119

Cases Cited:
Gulic v Boral Transport Ltd [2016] NSWCA 269
Nevin v B & R Enclosures [2004] NSWCA 339
Nguyen v Tran [2018] NSWCA 215

Texts Cited:
N/A

Category: Principal judgment
Parties: Mr Nassim Khodr Zein (Plaintiff)
Mr Said Wazen (First Defendant)
Insurance Australia Limited t/as NRMA Insurance (Second Defendant)
Representation:
Counsel:
Mr J Jobson (Plaintiff)
Mr W Fitzsimmons SC with Ms S Warren (Second Defendant)
Solicitors:
Mr S Spinak (Plaintiff)
Moray & Agnew Lawyers (Second Defendant)

File Number(s): 2019/00065785
Publication restriction: N/A

Judgment

The plaintiff, Nassim Khodr Zein, sues for personal injury damages pursuant to the provisions of the Motor Accidents Compensation Act 1999 (NSW) (“MACA”) arising from a motor vehicle accident which he says occurred on 1 May 2015.
By Amended Statement of Claim filed 13 August 2019, the plaintiff alleges that the first defendant, Said Wazen (Wazen), was the driver of the other vehicle involved in the motor vehicle accident and claims that he is liable in negligence for the plaintiff’s resulting injuries.
Wazen’s compulsory third party insurer, Insurance Australia Limited t/as NRMA Insurance (“NRMA”) denied liability under s 81 of the MACA. It subsequently made an application under s 119 of the MACA, alleging that the claim had not been made in good faith. NRMA was then joined to the proceedings as the second defendant.
Wazen did not take any part in defending the proceedings. He came to give evidence but only after the Court issued an arrest warrant for his failure to comply with a subpoena to attend and give evidence issued by the NRMA.
The practical effect of that procedural history is that, if the plaintiff does not succeed in proving his case that the motor vehicle accident occurred as alleged, then there will be verdicts in favour of both the first and second defendants. If the plaintiff is successful in proving all aspects…

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 Zein v Wazen

Details

AGLC: Zein v Wazen [2021] NSWDC 463
Case: [2021] NSWDC 463
Decision Date: 07 September 2021

CaseChat Overview and Summary

The plaintiff commenced proceedings in the District Court of New South Wales against the defendant for damages arising from a motor vehicle accident that allegedly occurred on 10 March 2017. The defendant subsequently sought to join the defendant’s CTP insurer as a second defendant in the proceedings. The plaintiff opposed the application. The court had to determine whether the accident occurred as alleged by the plaintiff, whether the claim was made in good faith, and whether the plaintiff was entitled to damages. Additionally, the court needed to decide whether the plaintiff’s application to join the CTP insurer was appropriate.

The court held that the plaintiff had not discharged the onus of proving that the accident occurred as alleged. The court found that the plaintiff's evidence was not credible and was not supported by the available evidence. The court also held that the plaintiff's claim was not made in good faith, as it was not reasonable to believe that the accident occurred as alleged. The court further held that the plaintiff was not entitled to damages because the accident did not occur as alleged. Finally, the court held that the plaintiff's application to join the CTP insurer was not appropriate because the insurer was not a party to the accident and had no liability in the proceedings. The court dismissed the plaintiff's claim with costs.

The court ordered that the verdict and judgment be entered for the first and second defendants. The plaintiff was ordered to pay the second defendant's costs of the proceedings. If any party sought a different order with respect to costs, there was liberty to apply on three days' notice. The exhibits were to be returned after 28 days.

Orders

Orders of the court

1 Verdict and Judgment for the first and second defendants.

2 The plaintiff to pay the second defendant’s costs of the proceedings.

3 If any party seeks a different order with respect to costs, there is liberty to apply on three days’ notice.

4 The exhibits may be returned after 28 days.

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:	Zein v Wazen & Anor [2021] NSWDC 463
Hearing dates:	22 March 2021 23 March 2021 24 March 2021 25 March 2021 26 March 2021 29 March 2021 30 March 2021 15 July 2021
Date of orders:	07 September 2021
Decision date:	07 September 2021
Jurisdiction:	Civil
Before:	Coleman SC DCJ
Decision:	1 Verdict and Judgment for the first and second defendants. 2 The plaintiff to pay the second defendant’s costs of the proceedings. 3 If any party seeks a different order with respect to costs, there is liberty to apply on three days’ notice. 4 The exhibits may be returned after 28 days.
Catchwords:	Torts – Negligence – Motor Vehicle Accident – s 119 – Claim Allegedly Not Made in Good Faith – Joinder of the CTP Insurer as Second Defendant – Whether the Accident occurred as Alleged by the Plaintiff – Assessment of Damages – General Rule that the Court is to Determine All Issues in Question – Exception to the General Rule
Legislation Cited:	Motor Accidents Compensation Act 1999 (NSW) ss 81, 119
Cases Cited:	Gulic v Boral Transport Ltd [2016] NSWCA 269 Nevin v B & R Enclosures [2004] NSWCA 339 Nguyen v Tran [2018] NSWCA 215
Texts Cited:	N/A
Category:	Principal judgment
Parties:	Mr Nassim Khodr Zein (Plaintiff) Mr Said Wazen (First Defendant) Insurance Australia Limited t/as NRMA Insurance (Second Defendant)
Representation:	Counsel: Mr J Jobson (Plaintiff) Mr W Fitzsimmons SC with Ms S Warren (Second Defendant) Solicitors: Mr S Spinak (Plaintiff) Moray & Agnew Lawyers (Second Defendant)
File Number(s):	2019/00065785
Publication restriction:	N/A