There have been some recent developments in the Small Claims
Division on the issue of credit hire.
Unlike the decision of Pham v Rahman, where the
Assessor accepted tiered rates for the hire of a replacement
vehicle, in Hayes v Batesman the Court did not accept the
tiered rates in the assessment of loss. However, this matter was
decided on the facts following the cross-examination of an employee
from a rental company. Hayes v Batesman left it open for a
the Court to accept tiered rates if the appropriate evidence was
before the Assessor.
Last week a judgment was handed down in the matter of Gary
Ross v State Transit Authority. In this matter, the Assessor
said that the distinction between special and general damages is
now an important one, and assessed this claim as a general damages
claim (as general or special damages was not specified by the
Plaintiff). The Assessor found that in assessing general damages
the Plaintiff needs to prove 'need' for the replacement
vehicle and said the issue of 'need' was not self-proving.
On the evidence, the Plaintiff did not sufficiently prove he needed
a replacement vehicle and therefore the Assessor found his damages
should not be assessed by reference to the market rates of a
comparable vehicle. Rather, the Assessor calculated damages by
applying interest on the capital value of the plaintiff's
vehicle plus registration costs. The Plaintiff's claim sought
$5,659.50, however the Assessor awarded him $116.87, with an order
for the Plaintiff to pay the Defendant's costs (based on an
This decision demonstrates the changing attitude of the Assessor
to credit hire matters and the assessment of damages. Since
Ritz v Chen, the landscape in the Local Court has shifted
away from awarding exorbitant rates of hire for credit hire
In addition to the Assessor being open to a shift in the
assessment of damages credit hire matters, the Assessor has also
criticised the practices of filing for default judgment when
parties have been in correspondence about the claim prior to
judgment being entered. This has been a procedural issue faced
often when dealing with credit hire claims.
Recently, a motion was filed in the Small Claim Division of the
Local Court seeking to set aside a default judgment which was
entered after there was correspondence between the parties. The
correspondence related to a request for particulars of the
Plaintiff's claim, which was a claim for credit hire, as to
whether damages sought were special damages or general damages. The
Plaintiff's solicitor maintained this was not a proper request,
and ultimately filed for default judgment. The affidavit in support
of the default judgment said nothing about the correspondence
between the parties. The Defendant's solicitor argued that the
duty of candour that solicitors owe to the Court extends to include
all dealings with the Court, and as such there was a duty for the
Plaintiff's solicitor to have included the full reasons why a
defence was not filed. Correspondence between parties should have
been included in the affidavit in support of the motion for
judgment. The Assessor agreed and set it aside with the
Plaintiff's solicitor to pay the Defendant's costs.
In the same hearing of the motion, an issue was raised with the
Plaintiff's solicitor filing for default judgment as a
liquidated claim, not an unliquidated claim (as an unliquidated
claim would need to have the damages assessed as they would be in a
hearing disputing quantum). As such, the Defendant's position,
now that default judgment was set aside, was that the claim should
now be one for special damages (as the Plaintiff filed for judgment
on a liquidated amount) not general damages. If the claim was
locked in as special damages, then the Defendant is entitled to
request particulars of a special damages claim, such as need, the
Plaintiff's financial position , and a range of issues going to
mitigation and reasonableness, which are considered when assessing
special damages claims. We understand this point has not yet been
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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The failure of a party to call a witness does not necessarily give rise to an adverse inference being drawn in accordance with Jones v Dunkel (1959) 101 CLR 298. An unfavourable inference is drawn only if evidence otherwise provides a basis on which that unfavourable inference can be drawn.
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