Khowly v Amoud [2020] NSWSC 1445

Supreme Court New South Wales

Medium Neutral Citation: Khowly v Amoud [2020] NSWSC 1445 Hearing dates: 8 October 2019 Decision date: 23 October 2020 Jurisdiction: Common Law Before: Ierace J Decision: (1) Leave is granted to file the amended summons. (2) Leave is granted to appeal on grounds 1(b) and (c), 2 and 3. In relation to ground 2, leave is only granted insofar as it overlaps with grounds 1, 3 and 4 of the plaintiff's amended summons. (3) Appeal allowed. (4) Remit the matter to the Local Court for re-trial on the question of liability. (5) Leave is granted to the plaintiff to appeal the order made by the magistrate as to costs, pursuant to s 40(2)(c) of the Local Court Act 2007 (NSW). (6) The plaintiff and the first defendant to pay their own costs of the Local Court hearing and each is to pay half the costs of the second defendant. (7) Save for order (7), the plaintiff and the first defendant to pay their own costs of the appeal and each to pay half the costs of the appeal of the second defendant. (8) The plaintiff to pay the costs reserved by R A Hulme J on 30 July 2019 and in relation to the Registrar's directions hearing on 27 August 2019. Catchwords: APPEALS — Local Court – leave to appeal from Local Court to Supreme Court – grounds with questions of mixed law and fact – s 40 of the Local Court Act 2007 (NSW) – whether the Court applied the correct test for contributory negligence – whether the Court failed to make material findings of fact – whether the Court afforded procedural fairness to the plaintiff – whether the Court misconstrued statutes – whether the Court failed to admit relevant evidence COSTS — appeal from Local Court – where the defendants seek costs for both the appeal and the hearing in the Local Court – where the original hearing date for the appeal was vacated Legislation Cited: Civil Liability Act 2002 (NSW), s 69 Civil Procedure Act 2005 (NSW), s 56 Evidence Act 1995 (NSW), ss 59, 69, 76, 78 Local Court Act 2007 (NSW), ss 39, 40 Road Rules 2014 (NSW), r 87 Uniform Civil Procedure Rules 2005 (NSW), r 51.53 Cases Cited: Averkin v Insurance Australia Ltd (2016) 92 NSWLR 68; [2016] NSWCA 122 Beale v Government Insurance Office of NSW (1977) 48 NSWLR 430 Carthew v Badger [2004] NSWCA 317 Hamod v State of New South Wales [2011] NSWCA 375 Lithgow City Council v Jackson (2011) 244 CLR 353; [2011] HCA 36 Ohn v Walton (1995) 36 NSWLR 77 Regency (Showerscreens & Wardrobes) Pty Ltd v Nadinic [2018] NSWSC 68 Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54 Trompp v Liddle (1941) SR (NSW) 108 Category: Principal judgment Parties: Rachel Khowly (Plaintiff) Nancy Amoud (First Defendant) Caroline Taha (Second Defendant) Representation: Counsel: G Schipp (Plaintiff) J Kelly (Solicitor) (First Defendant) N Nelson (Second Defendant)