On 1 April 2017 Mr Cassim was driving his 2012 BMW 535i sedan when it was involved in a collision with a vehicle driven negligently by the defendant. The plaintiff immediately put his car in for repair and made a claim for damages to the defendant's insurer, the NRMA.
For a short while the plaintiff did without the car. Between 3 April and 8 April he was provided with a RAV4 vehicle by Platinum Replacement Vehicles. That vehicle cost $1038 for six days (at an average daily cost, including damage waiver of $139 - Exhibit 2 - total cost less delivery and administration fees divided by six). After that he shared his wife's car for a while, an arrangement he described as "extremely inconvenient" and also travelled overseas for 10 days.
On 30 May 2017 he entered into a credit hire contract with Right2Drive Pty Ltd for supply of a Nissan Infiniti Q50 vehicle, at a cost of $203 per day (including damage waiver, less delivery fee). He kept that vehicle until his car was returned to him on 22 August 2017, a period of 84 days, at a cost of $17,158.02 in total. That is the amount of this claim. It is not in dispute that the period was required for the repairs to his car as a result of parts having to come from overseas.
[2]
Issues
The issue is whether the defendant is liable to pay the plaintiff the actual cost of that hire, as general damages for the loss of use of the vehicle for the whole of the period or part of it. Alternatively, is the defendant only required to pay the hypothetical cost of a (less expensive) reasonable replacement vehicle based on the plaintiff's need and the reasonable market rates for hire at the time.
The legal principles applying to a case of this nature are in dispute. That is surprising, considering how many of these cases are currently making their way through the Local Court of NSW. Having been referred to numerous decisions in the course of almost a full day of submissions, it is clear that the business model of companies such as Right2Drive is one that has resulted in litigation worldwide over many years. I have been referred to cases from the UK, New Zealand and other Australian states about similar issues.
Counsel for both parties say that the legal issues are indeed settled. Unfortunately they do not agree on how.
At the close of the evidence in this matter I noted that I am aware there is a matter currently on appeal from the decision of another magistrate in this jurisdiction to the Supreme Court on a similar issue (Gladstone Lazarus Pty Ltd v Tumur [2018] NSWLC 6). Mr Gruzman for the plaintiff and Mr Oliver for the defendant agreed that the legal issues in that matter are the same as the issues in this matter. They both also appear in that matter. I invited the parties to consent to the adjournment of this matter until after that case has been determined. Mr Gruzman indicated the plaintiff (represented by legal representatives of Right2Drive) would consent to that course. Mr Oliver (instructed by the NRMA), after obtaining instructions, did not consent.
I note in passing that defended cases of this nature are listed in the Local Court at the Downing Centre regularly. The oral submissions before me took more than half a day of court time, and the hearing in total more than a day. Due to the nature of the arguments being put it is very difficult to give an ex tempore decision unless the particular magistrate has previously dealt with a similar issue. Clarity is urgently needed to resolve what should be a simple issue, in the hope that these matters may in the future be finalised without resort to litigation over relatively small sums.
The plaintiff says I do not consider what is a reasonable figure for compensation for loss of use of the vehicle. The plaintiff says I should award the actual cost incurred, as long as it is within the market range of cost for a vehicle of the type that has been damaged (subject to the duty to mitigate their loss).
The defendant says that on the basis of Anthanasopolous v Mosely (2001) 52 NSWLR 262 at [84] per Ipp AJA the ordinary measure of damages is the market rate of hire of the vehicle the plaintiff was required to hire, not necessarily the vehicle they chose to hire, assuming that they can prove the need for a vehicle.
While the parties were not prepared to commit to any agreed facts or issues at the commencement of the hearing, some matters are not in any genuine dispute. The fact of the collision, liability for it in the defendant, the fact of the nature of the replacement vehicle and the period for which it was hired, the contract between the plaintiff and Right2Drive, and the market rate for hire of certain vehicles at the relevant time are such matters.
I heard evidence from the plaintiff Mr Azad Cassim. He impressed me as an honest witness. He made concessions when appropriate, and in effect agreed that he could have done what he needed the vehicle for in a vehicle of a different type. He said that the replacement vehicle he received was not as good as the vehicle he ordinarily drove, but he accepted that it was better than a Corolla. He did not think he could have used a Corolla because of the need to move around his three children and their sporting equipment, but otherwise he agreed that samples he carried in the course of use of the vehicle for his business would have been able to be carried on the back seat of a Corolla (the Toyota Corolla appears to be an accepted exemplar of a vehicle that could satisfy any ordinary need for a vehicle just to get around).
He was cross-examined to the effect that he did not in fact need a vehicle for the purposes that he claimed (at page 35ff). He was also cross-examined about another vehicle that he owned, that the defendant suggested he could have used. He said that the other vehicle was roadworthy but could not be driven because the gearbox slips. That vehicle is a 2006 Mercedes-Benz. There is no evidence contrary to what Mr Cassim said about that vehicle. I accept his evidence.
I also accept his evidence that he needed a vehicle for the business that he ran from home, which sometimes involved carrying around toilet seat samples, and for ordinary domestic purposes as set out in his statement (Exhibit 1 at [20]-[22]). There is no evidence to the contrary. While he had the replacement vehicle he drove it an average of 27 km per day.
The defendant challenged the plaintiff's need for a vehicle. Mr Cassim has proved to my satisfaction on the balance of probabilities that he needed a vehicle during the whole period his vehicle was off the road, except while he was not in Australia.
The plaintiff's evidence about the type of vehicle that he wanted was "I wanted a nice, luxury car. That's why I had the Mercedes and that's why I had the BMW." (TP49.15). He was asked "Any vehicle that had five seats would have been feasible, wouldn't it? A: Most likely but I preferred to have a car similar to mine." (TP49.40)
The unchallenged evidence is that the vehicle actually provided to Mr Cassim by Right2Drive was of a slightly lower value than the Redbook value of his BMW. Otherwise, its features were similar to or lesser than those of the BMW. Apart from the single reference to sporting gear, there was nothing in Mr Cassim's evidence to suggest that other than his personal preference, the things he needed a vehicle for on a day-to-day basis could not have been adequately done using a vehicle like a Toyota Corolla.
[3]
The law
How is the measure of damages for temporary loss of use of a non-income producing chattel to be determined?
The plaintiff says that question is answered by looking at the type of vehicle that was damaged, then at the market range of daily hire rates for an equivalent vehicle at that time. As long as the rate actually paid is within that range, the actual cost of hire will be the measure of damages.
The defendant says I answer that question by looking at what vehicle the plaintiff was, "by reason of need, required to hire". Where the plaintiff owns a luxury vehicle, the vehicle he needs to hire may not be an equivalent luxury vehicle. In this particular case the plaintiff himself chose to hire a Toyota RAV4 for a period of about a week, at a cost lower than the cost of the vehicle supplied by Right2Drive.
It was clear from the defendant's evidence that he is not claiming for any of the period that he did not have a hire car (13.9.18 TP27.35). To the extent that the claim is for general damages for the whole of the period the plaintiff's car is off the road, that is inconsistent with Mr Cassim's evidence. I do not propose to consider the claim on that basis for that reason.
Mr Oliver for the defendant relies on the statement of Ipp JA in Anthanasopoulos v Mosely at [84] and an obiter dictum of Harrison J in Droga v Cannon which are said to support their interpretation of the law.
The passage relied upon is:
"Similarly, in my opinion, in the case of claims for damages for injury to a non-income producing chattel, there is also no substantive significance in the distinction between special and general damages. Where, by reason of need, the plaintiff is required to hire a replacement chattel, the damages are to be measured by reference to the market rate of hiring the replacement: cf The Greta Holme (at 605) per Lord Herschell; Dimond v Lovell (at 1140; 914), per Lord Hobhouse": Anthanasopoulos v Moseley per Ipp JA.
That case concerned whether a plaintiff could be compensated for loss of use of a motor vehicle where they had not actually had to pay at all for the replacement vehicle as the NRMA provided a courtesy car program. That issue was determined by Beazley JA at paragraph 58 as follows:
"Injury to property which deprives a party of the use of the thing is compensable. It is irrelevant if a third party provides a substitute for the thing damaged and the principle res inter alios acta applies so as to make it irrelevant as to the basis upon which the third party provides the replacement. The question of quantum is not in issue here and it is thus unnecessary for any comment to be made as to the principles which would govern the amount of damages in any given case". (Justice Handley agreed with both Justices Beazley and Ipp).
I accept that this decision is binding authority on me that a plaintiff who has lost the use of an income producing chattel is entitled to damages for that loss of use based on their need for a replacement. His Honour refers to "the market rate of hiring the replacement" (my emphasis). On the basis of the reasoning in that case, there is no requirement that a replacement actually be hired by the plaintiff, if they can establish need for a replacement. While the decision does not go to the issue of assessment of the quantum of damage, the issue for my determination here, I certainly accept that it supports the argument that the quantum is not to be assessed by the actual cost to the plaintiff.
The decision in Droga v Cannon [2015] NSWSC 1910 per Harrison J is also binding on me. It was accepted in that case that the basis for damages for loss of use of a non-income producing chattel was "need". The case concerned whether the plaintiff's failure to prove need arose from something that was essentially procedurally unfair to the plaintiff. In what is accepted to be obiter dictum his Honour said at [60]:
"It should not go unremarked that the sum required to compensate Ms Droga for the cost of hiring a replacement vehicle with which to conduct the activities she has specified, is not necessarily or automatically co-extensive with the cost of providing a comparable vehicle to the one that was damaged. The defendants would only ever be liable to compensate Ms Droga to the extent necessary to put her in the position she would have been but for the defendants' tortious act. A far less sophisticated vehicle could have adequately coped with the activities identified by Ms Droga at what may well have been a considerably reduced tariff. The issue would have been a question of what was reasonable to meet Ms Droga's needs, not what was necessary to compensate her for her choice."
I was referred in the course of argument to Yates v Mobile Marine Repairs Pty Ltd [2007] NSWSC 1463, a decision of Palmer J, which related to damages for loss of use of a pleasure craft. His Honour rejected a new test of "need" as the basis for damages being awarded for loss of use of a chattel.
In the plaintiff's submissions it is put at paragraph 23:
"The plaintiff agrees that the ordinary measure of damages is the market rate of hiring the replacement however says where, as at the date of the trial, an actual cost has been incurred which is reasonable then that is excellent evidence of the plaintiff's loss and damages ought to be awarded in that amount unless the defendant proves there has been a failure to mitigate that loss and further that to the defendant's benefit the plaintiff cannot recover more than the actual loss amount."
In support of this proposition the plaintiff relies on Wong v Maroubra Automotive [2015] NSWSC 222; Blumberg v Frucor Beverages Ltd [2018] NZHC 1876 at [70]; Burdis v Livsey, Lagden v O'Connor, Coles v Hetherton [2012] All ER (D) 102; Stocovaz v On Tai Fung [2007] NSWCA 199 at [17] where the market rate for repairs is acknowledged to be a range of costs. It is argued that what was referred to in the decision as "an aside" by Harrison J in Droga v Cannon is "contrary to well-established authority" (at [35]).
Mr Gruzman also argues that as long as the plaintiff's behaviour in hiring the vehicle he did was reasonable, the defendant wrongdoer will be required to compensate him for his loss. It is argued that while the defendant may have proved that a cheaper lesser vehicle could have been hired, that does not of itself prove that the hire of the more expensive vehicle was unreasonable, nor that there was any obligation on the plaintiff to mitigate his loss by hiring a cheaper vehicle. In this particular case at the time of the collision the plaintiff's vehicle was nearly 5 years old. Mr Gruzman argues that hire of the newer vehicle is reasonable because there is no perfect market for replacement vehicles. The evidence on behalf of the plaintiff goes to the provision of a vehicle of the same or lesser value and attributes.
The defendant's argument proceeds on the basis that because a Corolla would have met the plaintiff's needs, the market cost of hire of that vehicle is all he is entitled to recover, notwithstanding that he chose to hire a more expensive vehicle. That argument has a great deal of practical appeal, in light of the real cost to the community (reflected potentially in insurance premiums) of the activities of credit hire companies such as the one used by the plaintiff in this matter. However, it does not clearly represent the law. It is accepted that ordinarily the plaintiff is not entitled to a more expensive vehicle by way of replacement than the one that was damaged in the collision. For a period of time he was happy with a cheaper vehicle, being the RAV4. His vehicle took a long time to repair. It is not in dispute that the repair period was reasonable. He found out about the services of Right2Drive from a neighbour and thought it sounded like a solution to the problem of being without his vehicle for an extended period of time, as a result of the defendant's negligence. The evidence did not explore whether he was reluctant to hire a vehicle and pay for it on the open market, which appears to have been his only alternative. There is no suggestion he could not have afforded to do that.
Blumberg v Frucor Beverages Limited [2018] NZHC 1876 is a decision of the New Zealand High Court which raises precisely this issue. It was decided on 26 July 2018. It also involved Right2Drive and respondent insurers. While the case raised a number of issues that have not been raised before me, it was in the nature of a test case in that jurisdiction and Jagose J relevantly found that resolution of the issue turned on the reasonableness of the decision of the wronged driver to use the services provided by Right2Drive in mitigation of the loss suffered by loss of use of the vehicle (at [44]-[47])
"[44] On the present facts, the loss of use was completely mitigated - that is, reduced to nothing - by hiring the replacement car, the reasonably incurred expense of which is recoverable from the defendants. As previously said,38 the reasonable expense of a replacement car may not be the same as the expense of a replacement car, reasonably incurred. There may be some marginal difference, depending upon how 'reasonableness' is to be assessed in either calculation.
[45] To explain that further, by way of example, in Nauru Local Government Council, Richardson P identified a measure of loss of use as:39
… the cost to which it had committed itself in respect of the vessel for the period, (including an interest allowance in respect of the capital value of the vessel, amortisation and maintenance) together with additional outgoings to which it has been committed by the tort. As the Judge explained, such would be claimed as special damages, if capable of accurate quantification, to be "proved in dollars and cents".
[46] An alternative measure of the loss of use, now as general damages, is Stevens' "cost of [the] replacement vehicle". Although not incurred by the plaintiff, such cost is a proxy for the particular loss of use. In that setting, the reasonable cost of a replacement car reflects the value of the plaintiff's continued use of an undamaged car.40 Here, what is 'reasonable' is to be determined by reference to that counterfactual.
[47] But the plaintiff will suffer no loss of use if in fact she obtained a replacement car. Instead, she has incurred a mitigation expense, which is recoverable in damages to the extent it is reasonably incurred. Whether the cost of that replacement car is the same as would be reasonable by reference to the preceding counterfactual is immaterial. That is because mitigation expenses are not reflecting the value of the loss, but are the cost of avoiding its impact. That cost is recoverable in damages to the extent it was reasonably incurred."
The New Zealand court did not find the decision in Anthanasopolous v Moseley of assistance in determining this issue, and clearly in New Zealand the distinction between general and special damages has been maintained. That decision is of persuasive authority only. The matter before me was not argued on the same basis as that decision.
I consider that on the binding authority of Anthanasopolous v Moseley and Droga v Cannon, where a plaintiff seeks to quantify damages by referring to the actual cost of the replacement vehicle hired, I must first ask whether the plaintiff has established his need for a replacement vehicle. I have found that he has.
How then is the quantum of those damages to be assessed? The answer is clearly "the market rate of hiring the replacement": Anthanasopoulos v Mosely.
The issue of the relevant replacement vehicle has been specifically and thoroughly addressed in Western Australia in particular in Beamish v Kanakis [2017] WADC 33 a decision of Derrick DCJ. As his Honour noted, the issue of the appropriateness of the replacement vehicle was not in question in Anthanasopolous, nor in the other decision to which I have also been referred, Wong v Maroubra Automotive, which related to damages for loss of use in a detinue claim.
The issue has also been addressed in this court in by her Honour Magistrate Greenwood in Gladstone Lazarus Pty Ltd v Tumur (the decision currently awaiting appeal in the Supreme Court) and by Assessor Olischlager in a number of decisions but particularly Lowe v Pearce [2016] NSWLC 5 where he said at [44]:
"44. In a claim for loss of use of property it is not the "need" for a replacement vehicle that is being compensated, rather it is the interference with the plaintiff's right to use particular property that is being compensated. While the plaintiff's need for the chattel will be relevant to determining the proper basis for assessment of damages the fundamental issue is what award reasonably restores a plaintiff to the position they were in if the deprivation did not occur. If restoration is best achieved by a temporary replacement chattel then it is most appropriately achieved by reference to a similar replacement chattel."
In Lazarus v Tumur her Honour rejected that approach in rejecting a claim for replacement of a Tesla with a lower value Porsche, instead assessing damages for loss of use by reference to the market rate of hire of a Mercedes Benz C200. Her Honour accepted that in his real estate business the plaintiff needed a luxury vehicle. Her Honour referred to the aside in Droga and applied the test of the market rate of hire of a vehicle that was reasonable to meet the plaintiff's needs, rather than of a vehicle of equivalent value.
The comprehensive review of the authorities undertaken by Derrick DCJ in Beamish v Kanakis resulted in his Honour concluding (at [132]):
"In summary, and for the reasons I have stated, if damages for loss of a non-income producing vehicle damaged by the negligence of a third party are to be calculated by reference to the cost of hiring a replacement vehicle, the determination of what is an appropriate replacement vehicle by reference to which the market rate hire costs are to be quantified requires the taking into account of the precise nature of the need of the person who has lost the use of the damaged vehicle, the value of the damaged vehicle, and the value of available replacement vehicles which are capable of meeting the precise need of the person who has lost the use of the damaged vehicle."
In Beamish it was not argued that a lesser value vehicle would have been an appropriate replacement vehicle (see at [123] and [124]) and his Honour very clearly agreed with that position because:
"the provision to a person of a replacement vehicle of lesser value than his or her damaged vehicle, albeit one which meets the nature of the person's need, would be inconsistent with the basic purpose of awarding damages in tort, namely to put the person, so far as money can do it, in the position they would have been in had the damage to their vehicle not occurred. Thus it is in this way that the value of the damaged vehicle and the value of the replacement vehicle becomes relevant to the identification of an appropriate replacement vehicle."
I consider the test propounded by his Honour at [132] is consistent with the authorities binding on me, is consistent with principle and provides a readily quantifiable method of assessing damages by reference to market rates for an appropriate replacement. Where the actual cost is within the range of market rates for a vehicle of similar value to the damaged vehicle that also meets the need for a replacement, that actual value will be an appropriate measure of damages. The fact that a cheaper vehicle could meet the need for a replacement is not, in my view, relevant to the measure of damages.
In this case the plaintiff has approached its task of persuading me that its rates are within the reasonable market range by obtaining relevant rates of hire for vehicles from its database for the relevant period, those being vehicles of equivalent value to the plaintiff's vehicle. That is the evidence of Mr Warren. On the basis of his evidence I would accept as a matter of fact that the rates charged by Right2Drive for the vehicle provided to the plaintiff are within the range of market rates for a vehicle of equivalent value to the plaintiff's vehicle at the relevant time. The defendant has provided evidence of Ms Allen which relates to the actual rates available, and actual rates charged, for hire cars at the relevant time from commercial providers such as Hertz, Avis, Europcar and Thrifty (Exhibits 6 and 7). As the defendant does not accept that the value of the plaintiff's vehicle is a relevant consideration in considering the reasonable market rate for a replacement vehicle there is no evidence from the defendant as to market rates for a vehicle of similar value. Essentially the defendant has given me values for a Toyota Corolla, or for a Holden Caprice. The rate for the latter vehicle were given on the basis that it is a larger vehicle than a Corolla, and that "some magistrates like to have those comparison rates". There is no evidence of the value of that vehicle.
The plaintiff relies to some extent on the evidence filed by the defendant to show that the obligations imposed on a hirer by an ordinary car rental contract are potentially significantly more onerous than those undertaken by someone who enters into a contract with Right2Drive. For example, if a person has a collision in a rental vehicle there is frequently a portion of the cost which is not able to be insured against, and some types of damage are unable to be covered. Some people, such as younger drivers, may not be able to hire a car at all. The contract with Right2Drive on the other hand involves the provision of credit so that there are no upfront costs and the only liability of the hirer is to pay the whole of the cost of Right2Drive in the event that it is not recoverable from the defendant's insurer. In the absence of impecuniosity, which is not a feature of this case, I do not regard those matters as relevant to my determination of the measure of damages for loss of use, where damages are being calculated by reference to market rates for an appropriate replacement vehicle.
I consider that it was reasonable for the plaintiff in this case to obtain the use of a vehicle of equivalent value to his vehicle, not just of a vehicle that is capable of transporting him and any other people or things he needed to transport. To put it another way, a vehicle of equivalent value was an appropriate vehicle to his need, and an appropriate vehicle to compensate him for the loss of use of his vehicle. A more expensive vehicle was not required, although it may have been if need could have been proved. A less expensive vehicle is not the appropriate measure of damages in this case, as it would not have put the plaintiff in the same position as he would have been in had the defendant not negligently damaged his car.
I am aware that this conclusion is arguably inconsistent with the dicta of Harrison J to which I have already referred. It is consistent with the carefully argued conclusion in Beamish v Kanakis, and his Honour in that case regarded his decision as consistent with the dicta in Droga. The difficulty with using the use to which the vehicle is to be put to determine the appropriate market rate (without reference to its value) is that it invites inevitably subjective assessment. Is a person required to accept a vehicle with lesser safety features than the one being replaced while their vehicle is repaired, just because they are only using it to drive children to school and run errands? Does a person selling real estate actually "need" a luxury vehicle more than a person with a different occupation?
I accept that the cost of the temporary replacement vehicle the plaintiff has chosen to use is not necessarily the appropriate measure of damages. In my view he is entitled to the market rate of hiring a vehicle of equivalent value to his vehicle, for the period during which he has established need for a replacement. I accept that he is not entitled to associated costs of entering into a credit hire contract, in the event that the actual costs exceed the market rate for a vehicle of equivalent value to his vehicle. The market rate for hire can fall within a range.
The evidence filed on behalf of the plaintiff (Exhibit 4, Statement of Timothy Warren) establishes that at the date of the collision the value of the plaintiff's vehicle was in the range $27,600 to $36,600. The value of the vehicle provided by Right2Drive was in the range $18,500 - $25,500. Market rates of hire for a vehicle of that value are established by Mr Warren's evidence. The evidence filed on behalf of the defendant goes to establishing the market rates for a Corolla and for a Caprice in a somewhat inaccessible format (Exhibit 6, Statement of Patrice Allen). There is no evidence of the value of a Holden Caprice or of its features and it is not clear to me why that vehicle has been chosen as one in respect of which evidence has been provided. Exhibit 7 consists of documents produced on subpoena that are actual contracts for hire of vehicles from Thrifty's Alexandria depot. I accept that contracts for hire of Corolla vehicles are significantly lower than the cost charged by Right2Drive. For the reasons I have given I do not consider the market rate of hire of a Corolla an appropriate measure of damages.
The actual contract rates for a Holden Caprice are at the following pages of Exhibit 7:
Page Number of days Total cost Cost per day
10 3 247 82
12 2 201 100
13 2 122 61
14 1 170 170
15 3 259 86
16 1 221 221
18 4 290 73
19 3 341 113
20 2 321 160
21 1 255 255
22 1 103 103
23 1 101 101
24 4 444 148
Average: 129
[4]
The quoted rate on the VroomVroomVroom website for a Holden Caprice is $165 per day without collision waiver insurance. That is significantly higher than the actual amounts in the contracts produced on subpoena, however I do note that there is no evidence at all of the nature of the hirers, and what is to be inferred from those subpoenaed documents is opaque at best.
The base rate of $149 per day for the Nissan Infiniti claimed in these proceedings is not outside the range of market rates for a Holden Caprice hired for more than one day. It may be that the Holden Caprice is of similar value and characteristics as Mr Cassim's vehicle, however there is no evidence of it. The defendant does not accept that is the appropriate test to apply.
The rental and associated costs charged by Right2Drive are within the range of market rates for the vehicles it says are appropriate replacement vehicles, being the Infiniti Q50, the Mercedes C200 and Mercedes E200 (see [31] statement Timothy Warren). There is no evidence that the Caprice is an appropriate replacement vehicle. In those circumstances, I consider that the amount claimed for the provision of the Infiniti Q50 is within the range of market rates of hiring a vehicle that was reasonable to meet the plaintiff's needs. Accordingly, I propose to enter judgment and verdict for the plaintiff in the sum of $17,158.02.
I do note that had I accepted that the test was as argued for by the defendant, a Corolla would have been a vehicle that would have met the plaintiff's need in the sense that it would have conveyed him from place to place during the period of the loss of use. Had I accepted that argument then I would have quantified the damages payable at $89 per day on the evidence of Patrice Allen, being $7476 for the 84 days he had the Infiniti plus $3738 for the 42 days he did not have a replacement vehicle and was in Australia, making a total of $11,214.
The order that I would propose is that the defendant pay the plaintiff's costs as agreed or assessed, however I will hear the parties in the event any other order is sought.
C Farnan
Magistrate
6 December 2018
NOTE: This decision was overturned on appeal to the Supreme Court by Basten J (Nguyen v Cassim [2019] NSWSC 1130). However, his Honour's decision was overturned by majority in the Court of Appeal (Lee v Strelnicks; Souaid v Nahas; Cassim v Nguyen; Rixon v Arsalan [2020] NSWCA 115).
[5]
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Decision last updated: 05 October 2021