Drive My Car Rentals Pty Ltd v Gabriel [2021] NSWCA 73 (29 April 2021) (Macfarlan JA at [1], Meagher JA at [2], Gleeson JA at [3])


Catchwords:


CIVIL PROCEDURE – third party proceedings – motor vehicle collision – where plaintiff’s son driving vehicle at time of collision – where defendant driving a rental car – where defendant cross-claimed against rental car company seeking indemnity – where admission by defendant on the pleadings that plaintiff owned the vehicle – where third party contested plaintiff’s ownership on the cross-claim – whether ownership issue foreclosed by defendant’s admission on the pleadings – whether the parties were bound by issue estoppels arising from the judgment in the proceedings – Civil Procedure Act 2005 (NSW), s 22

APPEALS – finding of fact – where Magistrate found that plaintiff’s son owned the vehicle – where ownership finding informed by Magistrate’s assessment of the credibility and reliability of the plaintiff and his son – whether Magistrate’s decision was glaringly improbable or contrary to compelling inferences – where small amount in issue – whether leave to appeal should be granted

COSTS – third party proceedings – “pass on” costs orders – where Local Court hearing took 8 days – where third party alleged motor vehicle collision fraudulently staged – where fraud allegation not established – where Magistrate implicitly found 50% of trial related to fraud allegations – where Magistrate ordered plaintiff to pay 50% of third party’s costs – whether exercise of costs discretion miscarried – whether leave to appeal should be granted – appropriate costs order in Local Court upon re-exercise of costs discretion

COSTS – appeal to Supreme Court from Local Court – where mixed outcome in proceedings – where judge did not decide all grounds of appeal – where Court of Appeal decided remaining grounds of appeal – whether separate costs orders should be made

COSTS – appeal to Court of Appeal from Supreme Court – where respondent belatedly conceded error at the hearing – where appellant successful on principal ground of appeal – whether respondent should pay appellant costs of the appeal