Lee v Strelnicks

The Proceedings before the Assessor

1. The Statement of Claim that was filed in the Local Court in August 2017 alleged the tort of negligence by the defendant as the driver of a motor vehicle involved in a collision at Westmead. A number of particulars of negligence were given, which are not presently relevant. The Claim continued, As a result of the Collision the Plaintiff's vehicle was damaged and the plaintiff has suffered loss and damage.
2. The particulars of "Loss and Damage" were given as: Loss of Use - hire car charges: $2340.09.
3. Interest on that sum of $12.25 was also claimed, together with costs.
4. Before this Court, the plaintiff described this Claim as a claim for special damages, although that categorisation of the claim does not seem to have been used previously.
5. In the Defence filed in the Local Court, the defendant denied negligence and, relevantly, "denies the particulars of loss and damage claim and or allegedly suffered by the Plaintiff". Specifically, the Defence stated that [as written in the original], i. "The Defendant alleges the claim for hire car charges is excessive; ii. The Defendant alleges the daily rate for the hire of the alternative vehicle is excessive; iii. The Defendant alleges the duration of the repay period was excessive; iv. The Defendant alleges the Plaintiff has failed to prove He/she had a need for an alternative vehicle or that no alternative vehicle e was available to her; v. The Defendant alleges the Claim for a hire car charge is exorbitant and unreasonable; vi. The Defendant requires strict proof the Plaintiff has an obligation to pay for the hire car charges incurred and that the vehicle is not otherwise a free, loan or courtesy; vii. The Defended requires strict proof that these proceedings are brought on the instructions of the Plaintiff and not on behalf of any other party or entity; viii. The Defended alleges the claim for the vehicle registration and recovery fee is excessive. ix. The Defendant alleges the claim for delivery and relocation fee is excessive and/or to remote a head of damage and/or far-fetched or fanciful. x. The Defendant alleges in the event it is held the Plaintiff had a need for an alternative vehicle, which is not admitted and specifically denied, the Plaintiff has acted unreasonably in failing to source and hire an alternative vehicle at a more reasonable cost. xi. The Defendant alleges the significant hire car charges, registration recovery fee, excess reduction and delivery and relocation fee incurred are all to remote a head of damage, break the chain of causation and are therefore not recoverable from the Defendant. xii. The defendant alleges the Plaintiff is not entitled to claim non-compensable benefits from the Defendant."
6. The matter came before the Assessor on 14 May 2018. Judgement was given ex tempore that day. The defendant was found to have been negligent, although the plaintiff was held to have contributed to that negligence, to a degree reflected by an estimate of 20%. Having made those findings, and noting that he would "reduce the quantum [to] 80%" [4] of what it would otherwise have been, the Assessor heard submissions on "what that quantum might be". [5]
7. Although the detail of the evidence is not before this Court, with only very limited portions of the record of proceedings tendered, there was no dispute that the plaintiff had made a statement that was relied upon in the Local Court, and in which she asserted that she needed to hire a replacement vehicle, to travel to and from work, to take her kids from place to place, and for domestic and social purposes, such as visiting friends and family. [6]
8. After giving that summary of the evidence in the course of his judgment on the claim for damages, the Assessor continued, She states she decided to hire the vehicle from I'm In The Right, partly because the company delivered her vehicle to her home address, and that she did not have funds available to pay for what she refers to as a cash bond for a replacement vehicle. Although, one has to say there is certainly no suggestion that this is a claim for special damages based on the impecuniosity of the plaintiff being unable to go into the mainstream car hire market. Of course on the issues of need, it has been said by this Court in Ross v State Transit & Higgins, and other cases that are not reported, that the plaintiff does bear a burden of proving need, as a basis for assessing damages according to the market rate for the replacement. Here the defendant has put the plaintiff to proof on the question of whether it needed a replacement vehicle. […] I, again, continue that here the plaintiff was put to strict proof on the question of need. In terms of the evidence of the plaintiff, it has to be said that what is given is really nothing more than lip service to the question of what need she had. She does not provide any details as to where she works and so where she has to travel to and from, she does not give any details other than the most general motherhood statements of needing a replacement vehicle for family purposes and taking kids from place to place and visiting friends. They are really meaningless and opaque in terms of providing any particularity as to what need a plaintiff has. I find it surprising in this day and age, in light of the length of time that the Court has said in Ross v State Transit Authority & Higgins, that still the Court gets a statement from a plaintiff that gives nothing but glib statements as to a general need. Ultimately, the defendant does not know the basis upon which a plaintiff hires a vehicle. It is necessary for the plaintiff to give some evidence - it is not a high bar to jump over - but some evidence as to the particular needs that she required the replacement vehicle for, that are apparent both to the other side and to the Court. Here, there really is no clear understanding about really why a need for a replacement is, other than her fair assertion. It would not be difficult to place some particulars in her statement as to what she needed the vehicle did(as said), but she simply has not. In terms of the fact that she hires a vehicle from I'm In The Right suggests that it was simply a vehicle that was available to her without cost, so the Court does not consider that the mere fact that she went out and hired a replacement vehicle, in those circumstances, as of itself being evidence of a need. There is no evidence as to the degree of the use of the vehicle; often the Court is provided details of the odometer readings as far as how far the vehicle might have been driven whilst it was in the possession of the plaintiff. Here the Court has nothing, it does not have any indication as to whether this vehicle was driven 1000 kilometres or 0 kilometres. Again, there really is nothing but the barest assertion in general terms that means nothing, in truth, regarding factual matters of evidence. ACCORDINGLY, I AM NOT SATISFIED THAT THE PLAINTIFF IS TO BE ENTITLED TO ITS DAMAGES TO BE ASSESSED ACCORDING TO THE MARKET RATE. RATHER, IN THOSE CIRCUMSTANCES, A NOMINAL AMOUNT SHOULD BE AWARDED IN TERMS OF THE CAPITAL INTEREST ON THE VALUE OF THE PLAINTIFF'S OWN VEHICLE. THE COURT WILL STILL ENTER A VERDICT IN FAVOUR OF THE PLAINTIFF.
9. The reference in his Honour's judgment to "Ross v State Transit & Higgins" is a reference to the decision of Ross, Garry v State Transit Authority of NSW & Higgins, Sean [2015] NSWLC 11.
10. On the basis that the plaintiff's Toyota Camry was worth in the vicinity of $17,000, the capital interest on that value for the period when the Camry was unavailable, less 20% for contributory negligence, was assessed as $30.73. That is the quantum of the damages awarded in the Local Court, and the decision about which the plaintiff complains.

Ground 1: Questions of use, need, and the assessment of quantum

1. The Assessor determined the issue of quantum on the basis that the plaintiff bore a "burden of proving need as a basis for assessing damages according to the market rate for replacement". He was not satisfied that the evidence of the use made of the damaged vehicle, and the need for a replacement, which he described as "bare assertions", was sufficient to discharge that burden.
2. The plaintiff contends that this is not the correct test to be applied in determining quantum. She submits that the reasonableness or otherwise of the decision to hire a replacement vehicle is to be assessed by reference to the facts and circumstances existing at the time the vehicle was hired, and that the Assessor was in error in requiring her to establish a sufficient need for a hired replacement, by tendering detailed evidence of the degree of use of the replacement vehicle.
3. The plaintiff submitted that the principle of restitutio in integrum should apply. The plaintiff had a car prior to the crash and, inferentially, had a car because she needed it. In that she was not hospitalised or overseas during the period of the car hire, inferentially, the same need existed at that time. Citing the judgment of Lord Steyn in Giles v Thompson [1993] 3 All ER it is argued that evidence to that effect ought to have been sufficient to establish that the plaintiff needed to hire a replacement vehicle, with damages assessed by reference to the car hire fees, since they were not extravagant.
4. On the same basis, the plaintiff added that when an accident occurs, even if a plaintiff does not hire a replacement car, he or she should still be entitled to general damages to compensate for the inconvenience caused. She argued that the need for a non-income producing chattel is irrelevant to the question of how damages for the temporary loss of the use of the chattel are calculated.
5. Finally, the plaintiff submitted that once reasonableness of hiring the vehicle is established, damages should not be reduced depending on the nature and extent of the use of the replacement vehicle.
6. The defendant also relies upon the case of Giles v Thompson, although citing the judgment of Lord Mustill, in which his Lordship said, (at 167B), The need for a replacement car is not self-proving.
7. The defendant argues that the Assessor was correct in proceeding on the basis that the plaintiff had to establish her need for a replacement car in the period when her Camry underwent repairs. She referred the Court to the decision of Ipp AJA, with whom Handley JA agreed, in Athanasopoulos v Moseley (2002) 52 NSWLR 262; [2001] NSWCA 266, at [84], where his Honour said, […] 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 per Lord Hobhouse.

Ground 2: Mischaracterisation of evidence

1. The plaintiff's second complaint is that the Assessor mischaracterised the evidence of need and use of a replacement vehicle. Referring to the Assessor's rejection of her evidence on that point as no more than general assertion, she submitted that his Honour's conclusion was "patently irrational", a paradoxical decision that no reasonable mind could reach. [7]
2. The plaintiff submitted that this was a mischaracterisation of the evidence, and that the Assessor should not have required detailed evidence to justify the reasonableness of the plaintiff's decision to hire a replacement car. It is argued that this mischaracterisation further underlines the Assessor's error in asking himself the wrong question with respect to damages, and approaching the matter contrary to the principle of restitutio in integrum.
3. The first defendant argued that the Assessor recognised and understood the plaintiff's evidence of need, but was simply not persuaded by it. That is, applying the test set out by Ipp AJA in Anathanopoulos, the Assessor was not satisfied that the plaintiff had adduced evidence to support her claimed need of a replacement hire car during the relevant period. That decision was a conclusion of fact, and one which was open to the Assessor.

Consideration

1. During the hearing of this matter, the Court was referred to a daunting amount of authority, much of it from the United Kingdom, and much of it concerning claims in equity, or for breach of contract, rather than for claims in tort.
2. The plaintiff's argument stems from what she submits is the principle that should have been applied by the Assessor in the assessment of damages, including that flowing from her decision to use a credit hire car whilst her own was undergoing repairs. Senior Counsel for the plaintiff referred to this principle in differing ways during the hearing of the matter, but commonly as the principle of restitutio in integrum or the "Banco principle".
3. Restitutio in integrum is a Latin phrase meaning restoration to the original position. It is a remedy administered by courts of equity, commonly in rescinding a contract, to return the party who has incurred the wrong to the position he or she occupied before the events the subject of the litigation occurred. The compensatory principle is about the measure of damages, insofar as that can be determined in monetary terms.
4. The "Banco principle" derives from the English decision of Banco de Portugal v Waterlow [1932] AC 452, a case in contract. At 506, Lord Macmillan said, Where the sufferer from a breach of contract finds himself in consequence of that breach placed in a position of embarrassment the measures which he may be driven to adopt in order to extricate himself ought not to be weighed in nice scales at the instance of the party whose breach of contract has occasioned the difficulty. It is often easy after an emergency has passed to criticize the steps which have been taken to meet it, but such criticism does not come well from those who have themselves created the emergency. The law is satisfied if the party placed in a difficult situation by reason of the breach of a duty owed to him has acted reasonably in the adoption of remedial measures, and he will not be held disentitled to recover the cost of such measures merely because the party in breach can suggest that other measures less burdensome to him might have been taken.
5. The question is whether those principles should have been applied, in the way the plaintiff contends for, to the assessment of the quantum of damages relevant to the cost of hiring a replacement motor vehicle, for use when the damaged car was off the road undergoing repairs.
6. I have concluded that the Assessor was not in error in determining the matter as he did, and there is no basis for the intervention of this Court.
7. Liability on a claim in negligence was determined by the Local Court substantially in favour of the plaintiff; it then fell to the Assessor to determine the quantum of damages. The only disputed aspect of the damages claimed by the plaintiff was the cost of a credit hire car she had secured for her use in the 15 day period of the repairs, there being no issue as to the repairs to the car.
8. The plaintiff's claim to the Local Court was for "loss of use - hire car charges". This claim was at all times disputed by the defendant, who "denie[d] the particulars of loss and damage claim", citing 12 relevant particulars which put in issue, amongst other matters, whether the claim was excessive, exorbitant, or unreasonable; whether the daily rate of hire was excessive; and whether the duration of the hire period was excessive. The defence filed in the Local Court noted that the plaintiff was to be put to "strict proof".
9. Whether the plaintiff was entitled to the damages claimed was clearly in issue. It follows that the claim had to be proved by the plaintiff. To adopt Lord Mustill's words in Giles v Thompson, the need for a replacement car was not self-proving.
10. Following the Assessor's decision as to liability, the temporary loss of use of the plaintiff's Camry was a loss that the defendant was liable to compensate the plaintiff for by way of an award of general damages. That is the principle to be derived from the line of authority commencing with The Owners of No 7 Steam Sand Pump Dredger v The Owners of SS Greta Holme ("The Greta Holme") [1897] AC 596, and The Owners of Steamship Mediana v The Owners, Master and Crew of Lightship Comet [1900] AC 113 ("The Mediana"), which both deal with the recovery of damages for injuries to property.
11. Beazley JA (as the present Governor of the State then was), wrote the leading judgment in Anthanasopoulos, and discussed both The Greta Holme and The Mediana, concluding that injury to property which deprives a party of the use of the property is compensable, in accordance with the long line of authority traceable to The Greta Holme (at [58]). However, it was not necessary in Anthanasopoulos to go on to consider quantum of damages, and her Honour specifically refrained (at [59]) from considering the principles which would govern the amount of damages in any given case.
12. That may be because liability to pay damages, and the quantum of those damages, are separate questions.
13. The latter does not automatically follow the former, and did not do so in the amount claimed by the plaintiff in this case. Her need for a replacement car remained relevant to the assessment of quantum and had to be proved.
14. In Anthanasopoulos, although Beazley JA did not consider the issue of quantum, Ipp AJA, who agreed with her Honour, did consider that issue in a separate judgment. I have referred already, at [30] above, to part of what his Honour there said. It is useful to extract a greater portion of that judgment at this point, as it attracted a great deal of contentious argument before me. Ipp AJA said, at [74] - [84], The appellants argue that the magistrate erred as, according to them, the law of negligence does not recognise a claim for compensation for the expense of incurring hire charges for non-income producing vehicles. Without reference to authority, this argument is unattractive. A legal system, having the result for which the appellants contend, would, as Lord Nicholls remarked in Dimond v Lovell [2000] 2 WLR 1121 at 1125, "be sadly deficient", as it would not "reflect the practicalities of the situation". As Beazley JA has demonstrated, however, our law does indeed respond to the community's need in this respect. Her Honour has traced the line of cases since The Owners of No 7 Steam Sand Pump Dredger v The Owners SS "Greta Holme" [1897] AC 596 which establishes a plaintiff's right to damages for the loss of use of a non-income producing chattel. One of those cases, Admiralty Commissioners v SSSusquehanna [1926] AC 655, concerned damage to an oil tanker that would not have been chartered during the period that it was being repaired. The vessel "was not a ship of the kind which could secure commercial employment and earn consequent reward" (per Viscount Dunedin at 659). The House of Lords, following the Greta Holme, The Mediana [1900] AC 113 at 117-118 and Admiralty Commissioners v SS Chekiang [1926] AC 637, held that the claim was for general damage (and not special damage - see in particular at 667) and damages were payable. Lord Blanesburgh, in particular, made it plain that the decision was based not on some principle peculiar to Admiralty law but rested on the general principles of the common law. Recently, in Dimond v Lovell, Lord Hobhouse at 1139 to 1140 accepted that where the chattel is non-income earning (as was Mrs Dimond's car) "there may still be scope for awarding general damages for loss of use". He, too, accepted that this followed from the general principles of the common law. In the course of argument on appeal there was much discussion as to whether there was a relevant similarity between the respondents' claims for damages for loss of use of their vehicles and Griffiths v Kerkemeyer (1977) 139 CLR 161 claims by injured plaintiffs in personal injury actions. It is now well-established that the true basis of claims that fall into the latter category is the need of the plaintiff for such services, not the actual financial loss suffered by the plaintiff: Van Gervan v Fenton (1992) 175 CLR 327; Grincelis v House (2001) 201 CLR 321 at 327 per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ. The fact that the services are provided gratuitously does not affect the characterisation of the damages in question. The gratuitous nature of the services merely points up the fact that damages in respect thereof are based on need and not on actual financial loss, and also raises the question whether such services are to be regarded as res inter alios acta. In my opinion, the true basis of claims for damages for injury to a non-income producing chattel is also based on need. In the Greta Holme line of cases, the plaintiffs were held, generally, to be entitled to damages based on the cost (including the capital cost) of keeping and maintaining the damaged vessels while they were being repaired. Underlying the measure of damages so adopted is the owner's need to keep (or replace) the damaged chattel during the period while it is being repaired and cannot be used. Accordingly, in my view, as claims for damages to a non-income producing chattel and claims of the Griffiths v Kerkemeyer category are both based on need, the latter category of cases provides additional support for the proposition that the respondents are entitled to damages against the appellants. In Griffiths v Kerkemeyer Stephen J (at 179) observed that, in the area of the law he was then considering, there is no substantive significance in the distinction between special and general damages. His Honour said: "[I]f a plaintiff's accident-caused need is the loss to be compensated, the reasonable cost of satisfying that need being only a means of quantifying the damages to be awarded, the distinction between these two kinds of damages becomes unreal. Apart from the use of special damage to describe that which a plaintiff must suffer in torts not actionable per se if he is to have a remedy and to distinguish, in contract, between losses arising naturally from breach and other losses, the term seems to serve little other useful purpose." In Kars v Kars (1996) 187 CLR 354 Dawson J at 359 reiterated these remarks. Whatever the nomenclature to be attributed to the nature of damages represented by a plaintiff's need for services, the damages in question are not to be determined by reference to the actual cost to the plaintiff of having the care or services provided, or by reference to the income foregone by the provider of the services, but, generally, by reference to the market cost of providing them: Grincelis v House (2001) 201 CLR 321 at 327 per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ; Van Gervan v Fenton (1992) 175 CLR 327. 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 per Lord Hobhouse.
15. The presiding judge in Anthanasopoulos, Handley JA, agreed with both Beazley JA and Ipp AJA, at [1].
16. The defendant placed great significance upon the judgment of Ipp AJA in Anthanasopoulos. The Court was also referred to (amongst others) the decision of McCallum J (as her Honour then was) in Wong v Maroubra Automotive Refinishers Pty Ltd; Ayres v Maroubra Automotive Refinishers Pty Ltd (No 2) [2015] NSWSC 222, at [69]-[72]; and to that of Harrison J in Droga v Cannon [2015] NSWSC 1910, at [46] and [54], where the principles given by Ipp AJA in Anthanasopoulos were accepted and applied.
17. The plaintiff contended that the relevant portions of the judgment of Ipp AJA were obiter dictum, and that what was said by his Honour at [84] was no more than a "cryptic" or "bare" statement.
18. Although I accept (as did Senior Counsel for the defendant) that his Honour's comments on the issue of quantum in the paragraphs extracted above were obiter, Handley JA agreed with them, and they have been applied by other judges of this Court. Considerations of comity require that, unless I was to be convinced that what his Honour said in Anthanasopoulos was wrong, I should not depart from it (or from the separate decisions of McCallum and Harrison JJ). I am not so convinced.
19. I do not think that the authorities referred to by the plaintiff required the Assessor to approach the question of quantum in a way different to the approach that he took. His Honour found that the defendant was liable for damages, consistent with authority that provides for damages for loss of use; that did not oblige him to necessarily accept that the defendant was liable to pay the sum claimed for the use by the plaintiff of a credit hire car. It remained for the plaintiff to prove her need of such a car. If she established that, quantum fell to be assessed by reference to the market rate for a leased vehicle, and not by reference to the amount the plaintiff actually paid to I'm In The Right.
20. There is a statement in McGregor on Damages, [8] to which the Court was referred by the plaintiff, that the cost of securing a car through a credit car hire company is or may be significantly greater than hiring a car through a company which requires payment of a fee on hire. If so, and credit hire car companies charge excessive fees when compared to non-credit car hire companies, then it would be wrong in my view to refer to the fee charged by such companies as determinative of quantum. Such a fee would not represent the market rate.
21. Securing a decision on liability in one's favour is not and should not be viewed as an invitation to gratuitous expenditure, knowing it will be borne by someone else. There remains an obligation on a successful litigant to act reasonably in mitigating loss.
22. In Giles v Thompson, the authority on which the plaintiff relies, and a case which dealt with issues of maintenance and champerty, Lord Mustill seems to have accepted that a claim for a recoverable loss must be proved by the plaintiff (at 362(b)), and that any claim made excessive by a plaintiff resorting to the use of a motor vehicle hired but not needed, could be defended (at 361(b)). On the second point he observed, And as to the possibility that the scheme will encourage motorists to hire cars which they do not need, at the ultimate expense of the insurers, I am confident that resourceful lawyers are well able to press by interlocutory measures for a candid exposure of the motorist's true requirements, and, if all else fails, to fight the issue at an oral hearing, as happened in the present case. If the motorists are found to have been tempted by the hire companies into the unnecessary hiring of substitute vehicles, the claims will fail pro tanto, with consequent orders for costs which will impose a healthy discipline upon the companies.
23. There is no question that loss of use of property is a loss which is compensable; the Assessor's decision reflects that. There was no error of law in that regard in my opinion. The next question to be determined by his Honour was what monetary value was to be put on that loss by way of quantum of damages. His Honour found that the particular claim advanced by the plaintiff, for $2340.09, was not sustainable on the evidence tendered in support of it.
24. That, in my opinion, was a conclusion of fact that was open to his Honour and, accordingly, not subject to review pursuant to s 69 of the Supreme Court Act.
25. As his Honour said in his judgment, the "bar" of proof was "not high", as the defendant was the wrongdoer, and the plaintiff the party entitled to damages for loss. The Assessor was not, however, satisfied that the assertions of the plaintiff of general use of her motor vehicle prior to the collision met even the relatively low bar that applied. I do not regard that conclusion as either "irrational", or "one that no reasonable mind could reach".
26. The period of loss of use to the plaintiff was one of 15 days. On the basis of the record of proceedings provided to this Court (it being, as I earlier observed, far from complete), there was no evidence from the plaintiff as to her need for a vehicle in that period. As an example, she said, as what appears to be a general statement, that she used her car to visit family and friends, but there was no evidence that any such visits were made or planned in the 15 day period. It may be that there was no such visit in that time, and no need for the use of a car for that purpose. There was an assertion that the plaintiff needed her car to "take the kids to and from school", but no evidence was led as to whether her children were in school in the relevant period, how far away the school was, or whether there was any alternative means of transport conveniently available, for example.
27. The Defence filed by the defendant put all of these matters in issue; proof of a need for a replacement car was thus required. In that context it was neither irrational nor unreasonable to expect the plaintiff to provide adequate evidence of her actual need for a car during the period of loss of use of her own vehicle. Neither was it irrational or illogical to conclude that assertions of a general nature from the plaintiff, devoid of the detail that would allow her claim to be properly assessed, were inadequate to that purpose.
28. Returning again to the judgment of Lord Mustill in Giles v Thompson, (with which Lord Keith of Kinkel, Lord Ackner, Lord Jauncey of Tullichettle, and Lord Lowry agreed), his Lordship said at 363(b) - (d), The need for a replacement car is not self-proving. The motorist may have been in hospital through the accident for longer than his vehicle was off the road; or he may have been planning to go abroad for a holiday leaving his car behind; and so on. Thus, although I agree with the judgments in the Court of Appeal that it is not hard to infer that a motorist who incurs the considerable expense of running a private car does so because he has a need for it, and consequently has a need to replace it if, as the result of a wrongful act, it is put out of commission, there remains ample scope for the defendant in an individual case to displace the inference which might otherwise arise.

Conclusion

1. I am not persuaded that the Assessor erred in law in determining whether the plaintiff had established her claim for damages in the sum of $2340.09, or that this Court should intervene to exercise the jurisdiction conferred by s 69 of the Supreme Court Act. I would dismiss ground 1. Neither am I satisfied that there was an error of law with respect to his Honour's consideration of the evidence relevant to use of the damaged property. This was a conclusion of fact that was open to the Assessor. Ground 2 also fails.

orders

1. The Court makes the following orders: 1. The Amended Summons filed on 22 March 2019 is dismissed. 2. The plaintiff is to pay the first defendant's costs.

Endnotes

1. T5:30 of proceedings on 22 March 2019 in this Court.
2. T6:07, ibid.
3. T6:43, ibid.
4. Court Book("CB") 21:35
5. ibid
6. ibid, CB 22 - 23
7. Plaintiff's written submissions ("PWS") of 4 March 2019, at [31]
8. James Edelman, Sweet and Maxwell, 20th edition, pp263 - 264 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 May 2019