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IN THE COURT OF APPEAL OF NEW ZEALAND
I TE KŌTI PĪRA O AOTEAROA
CA490/2018 [2019] NZCA 547
BETWEEN
FRUCOR BEVERAGES LIMITED First Appellant
HARRY WANG Second Appellant
HAYLEY SKARRATT Third Appellant
AND
ILAN BLUMBERG First Respondent
PETER BOARDMAN Second Respondent
RACHEL MACKEY Third Respondent
Hearing:
11 and 12 June 2019
Court:
French, Collins and Wild JJ
Counsel:
M G Ring QC for First, Second and Third Appellants A L Barnett for First Appellant P M Smith for Second Appellant J E McLennan for Third Appellant D J Chisholm QC, M Singh and P McKendrick for Respondents
Judgment:
11 November 2019 at 11.00 am
JUDGMENT OF THE COURT
AThe appeal is dismissed.
BThe appellants are to pay one set of costs to the respondents for a standard appeal on a band A basis with usual disbursements. We certify for two counsel.
Issue 1: In respect of R2D’s charges for the replacement car, had Mr Blumberg incurred a compensatable loss or expense recoverable by him from Frucor?
Issue 2: Was R2D’s hire agreement unenforceable, in that it assigned a bare cause of action and was champertous?
Quantum
Issue 3: Did the Judge err in applying a subjective rather than an objective standard when considering the reasonableness of Mr Blumberg hiring a replacement car from R2D?
Issue 4: Was it reasonable for Mr Blumberg to take the R2D option rather than one of the other available options?
Issue 5: Were R2D’s hire charges reasonable?
Issue 6: Did R2D’s charges include the cost of additional services which were not properly allowed by the Judge to Mr Blumberg as mitigation expenses?
Issue 7: Was the repairer’s carelessness in not ordering parts in a timely way an intervening cause disentitling Mr Blumberg from recovering R2D’s hire charges for the resulting extended repair period of some 12 days?
Interest Issues
Issue 8: Did the Judge err in allowing Mr Blumberg interest on the judgment sum?
Concluding remarks
Result
Costs
Introduction
This appeal is from a judgment delivered by Jagose J on 26 July 2018.[1] The raft of issues for decision arises from the commencement of business in New Zealand in 2016 by Right2Drive (New Zealand) Limited (R2D). R2D has an Australian parent company. It is an ordinary rental car operation but about two thirds of its business is hiring replacement cars to “not-at-fault” drivers while their collision damaged vehicles are repaired. R2D advertises this service generally and particularly to vehicle repairers. The service includes delivering the replacement vehicle to the driver when the damaged vehicle is brought to the vehicle repairer, and collecting it when the driver picks up the repaired vehicle from the repairer.
Before the replacement vehicle is handed over, the driver is required to sign hire documentation.…
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.
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Details
AGLC
Frucor Beverages Ltd v Blumberg [2019] NZCA 547
Case
[2019] NZCA 547
Decision Date
CaseChat Overview and Summary
Frucor Beverages Limited and two of its employees have appealed against a decision of the High Court awarding damages and interest to three respondents who had been provided with replacement cars by Right2Drive (New Zealand) Limited (R2D). Frucor's insurers had refused to pay R2D's invoice for hire charges. The appeal raised eight issues. First, whether the respondents had suffered a compensatable loss. Second, whether R2D's hire agreement was unenforceable because it assigned a bare cause of action and was champertous. Third, whether the High Court Judge had applied a subjective rather than an objective standard when considering the reasonableness of the respondents hiring replacement cars from R2D. Fourth, whether it had been reasonable for the respondents to hire from R2D rather than a different provider. Fifth, whether R2D's hire charges had been reasonable. Sixth, whether R2D's charges had included the cost of additional services which had not been properly allowed by the High Court Judge to the respondents as mitigation expenses. Seventh, whether the repairer's carelessness in not ordering parts in a timely way was an intervening cause disentitling the respondents from recovering R2D's hire charges for the resulting extended repair period of some 12 days. Finally, whether the High Court Judge had erred in allowing the respondents interest on the judgment sum. The Court of Appeal dismissed the appeal, finding that the respondents had suffered a compensatable loss and that it had been reasonable for them to hire from R2D. The Court of Appeal also found that R2D's hire charges had been reasonable and that the repairer's carelessness had not been an intervening cause. The Court of Appeal further held that R2D's charges had not included the cost of additional services and that the High Court Judge had not erred in awarding interest. The appeal was accordingly dismissed, and the appellants were ordered to pay the respondents' costs of the appeal.