Auto Panel Beaters Radiators Pty Ltd v Chantal J Hilderbrant [2004] NSWLC 6

Local Court of New South Wales

CITATION: Auto Panel Beaters Radiators Pty Ltd v Chantal J Hilderbrant [2004] NSWLC 6 JURISDICTION: Civil PARTIES: Auto Panel Beaters Radiators Pty Ltd Chantal J Hilderbrant FILE NUMBER: 12900/03 PLACE OF HEARING: Downing Centre DATE OF DECISION: 04/08/2004 MAGISTRATE: Magsitrate B A Lulham CATCHWORDS: Practice and Procedure - Assignability of chose in action - claim in tort for negligence LEGISLATION CITED: Browntown Limited & Ors v Edward Moore Inbucon Ltd (1985) 2 ALL ER 499 at 506 Trendtex Corporation v Credit Suisse (1982) AC 679 Poulton v The Commonwealth & Ors (1952 - 1953) 89 CLR at 602 CASES CITED: Dawson v Great Northern and City Rail Co (1905) 1 KB 260 Defries v Milne (1913) 1 Ch 98 Monk v Australia and New Zealand Banking Group Limited (1994) 34 NSWLR 148 National Mutual Property Services (Australia) Pty Limited & Ors v City Bank Savings Limited & Ors 132 ALR 514 Mr Reimer by leave for the plaintiff REPRESENTATION: Mr Vinden of Counsel Abbott Tout Solicitors ORDERS: Assignment to the plaintiff of the tort of negligence was not effective, and the proceedings by the plaintiff should be dismissed.; I will hear from the parties as to the approprate orders and also on the question of costs.

Reasons for Decision

1 This matter was heard by me in the Motions List at the Downing Centre. There were in fact five matters before the Court. The plaintiff in each case was Auto Panel Beaters & Radiators Pty Ltd. There were different defendants in each of the other matters but each of the defendants was represented by the same firm of solicitors, and each of those matters raised the same issues to be determined by me in this matter. I understand there may be further similar cases raising the same issues. 2 When the Notice of Motion was filed on 31 October 2003, the NRMA Insurance Limited was the second defendant. The Motion sought that the proceedings against both defendants be dismissed upon the grounds that the Statement of Claim did not disclose a cause of action, and that the plaintiff has failed to prosecute the matter. The defendant relied upon the affidavit of Sylvia Agatha Kozlowski, sworn 31 October 2003. Subsequently an order was made by consent that the proceedings against the second defendant be dismissed. 3 The ground argued before me was that the Statement of Claim did not disclose a cause of action against the first defendant, and I propose to determine the matter on that issue. The plaintiff did not file any evidence on the Notice of Motion. The factual situation can be ascertained from the documents annexed to affidavit of Ms Kozlowski. 4 The plaintiff carried on business as a panel beater or car repairer. The plaintiff sought to rely on a document dated 27 September 1996, which document was entitled Deed of Release Paper and Assignment of Debt. I propose to set out the form of the document in full; CLAIM NUMBER: MVA 42726440