Hayes v Navre [2024] NSWLC 10

Local Court New South Wales

Medium Neutral Citation: Hayes v Navre [2024] NSWLC 10 Hearing dates: 17 April 2024 Date of orders: 13 December 2024 Decision date: 13 December 2024 Jurisdiction: Civil Before: Farnan LCM Decision: Verdict for the plaintiff Catchwords: Motor vehicle hire; credit hire Cases Cited: Arsalan v Rixon; Nguyen v Cassim [2021] HCA 40 Cassim v Nguyen [2018] NSWLC 28 Lazicic v Rossi [2024] NSWSC 777 Dimond v Lovell [2002] 1 AC 384 Category: Principal judgment Parties: Kylie Hayes Plaintiff Ketki Navre Defendant Representation: Counsel: C Carter (plaintiff) K Oliver (defendant)

Solicitors: RTN Law (plaintiff) MCK Lawyers (defendant) File Number(s): 2023/00016841 Publication restriction: No

1. On 21 May 2021 the plaintiff was driving her 2019 Toyota Kluger on Canberra Crescent Campbelltown NSW when the defendant unexpectedly opened the driver's door of his parked vehicle striking her vehicle. It is not in dispute that the defendant was negligent. Although Ms Hayes' vehicle was driveable, it required significant repair. For reasons that are explained in her affidavit, the vehicle remained with the repairer for 77 days. There is now no dispute that the period of repair was reasonable, nor that she has standing to sue. 2. Ms Hayes gave evidence that the weekend after the collision she spoke to another mother at a children's soccer game, who told her about the services provided by Right2Drive. That other person had used Right2Drive when she had been without a vehicle after an accident. On the day that Ms Hayes dropped her vehicle at the repairer she called Right2Drive telling them that she needed a seven seater vehicle similar to her own, as she had four children she needed to drive around. A seven seat Isuzu MU X was delivered to her that evening, on the Monday following the Saturday collision. 3. Ms Hayes entered into an agreement to hire the vehicle. Annexed to her affidavit of 23 January 2024 is a copy of what she described as "the rental agreement and authority to act that I signed" (at para 26). 4. These proceedings concern the defendant's liability to pay for a total of 77 days' hire of that replacement vehicle at a total all inclusive cost of $325.85 per day. The defendant says there was an alternative appropriate vehicle available which could have been hired from Hertz at Campbelltown for $158.77 per day. There were also other alternative vehicles available at a lower rate of hire than that agreed to by Ms Hayes. 5. Although evidence was apparently served by the defendant in the proceedings, at the close of the plaintiff's case no evidence was led by the defendant. 6. The remaining issues that have been identified in the Statement of Agreed Facts and Issues dated 17 April 2024 are relevantly (and retaining the original numbering) as follows: 4. a. Is it open to the defendant to dispute the quantum of the plaintiff's claim on the ground that the invoice sum is an unreasonable amount of hire costs for the reason that the entirety of the charges comprising it cannot be said to have been incurred in mitigation of the plaintiff's actual loss; and if so b. Is the invoiced sum an unreasonable amount of hire costs for that reason. 5. If the answer to question 4 is in the affirmative, what part of the charges comprising the invoiced sum can be said to have been incurred in mitigation of the plaintiff's actual loss? 6. Is the invoiced sum an unreasonable amount of hire costs by reason of the replacement vehicle supplied, in light of the range of vehicles that might fairly be regarded as equivalent to the damaged vehicle? 7. If the answer to question six is in the affirmative, what amount of hire costs would the plaintiff have incurred had she taken such steps in mitigation of her actual loss as would have been reasonable in her circumstances? 8. Was the daily rate agreed between the plaintiff and Right2Drive ("R2D Daily Charge") a sum that fell within the range of daily rates at which vehicles that might fairly be regarded as equivalent to the damaged vehicle were offered for hire in the Sydney geographic region on the day on which the R2 D daily charge was agreed? 9. If the answer to question 8 is in the affirmative, is each or either of question 4 and/or question 6 for that reason to be answered in the negative? 1. The plaintiff was put to proof in respect of four issues, however following the evidence in the plaintiff's case there is now no issue that the plaintiff was the owner of the vehicle and has standing to sue, and that the temporary unavailability of the damaged vehicle pending repair caused the plaintiff physical inconvenience and loss of amenity of use of the vehicle. Loss of amenity of use of a chattel has been recognised by the High Court as a recoverable head of damage (Arsalan v Rixon; Nguyen v Cassim [2021] HCA 40) 2. The defendant accepts that the plaintiff is entitled to recover as special damages hire costs that: