Citation: Ass'ad v Nasra [2024] NSWDC 100
Court: District Court of New South Wales
Date: 8 April 2024
Judge: Gibson DCJ
Background
The dispute arose from a property transaction. The defendant sold a house to the plaintiff, and later claimed the parties had an oral agreement entitling him to a share of profits from any subsequent resale. The plaintiff denied any such arrangement existed.
On 22 June 2021, the two men encountered each other near a Bankstown shopping centre. What followed was a physical and verbal altercation in a nearby car park. Bystanders intervened and called emergency services. The plaintiff also called 000 but falsely alleged, on multiple occasions, that the defendant was carrying a gun. Police attended, found no firearm, and took both men into custody. Both were charged with criminal offences and both pleaded guilty on 21 June 2022. No conviction was recorded for the plaintiff under section 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW), while the defendant was fined.
The plaintiff then commenced civil proceedings in the District Court, claiming damages for assault, battery, trespass to the person, and false imprisonment. The claims encompassed threatening text messages sent between December 2020 and June 2021, threatening words spoken on prior occasions, and the physical altercation itself. The plaintiff sought aggravated and exemplary damages in addition to general damages, with total claimed damages of $110,000.
Legal Issues
- Whether the defendant committed assault, battery, trespass to the person, and false imprisonment against the plaintiff during the altercation and in the lead-up to it
- Whether aggravated or exemplary damages were available where the defendant had been criminally convicted for the same conduct
- Whether the plaintiff established sufficient credible evidence to support any award of damages, given the unreliability of both parties as witnesses
- Whether proceedings should have been commenced in the Local Court rather than the District Court, and the costs consequences that flow from that under UCPR r 42.35
Decision
Gibson DCJ found both the plaintiff and defendant to be deeply unreliable witnesses. Each contradicted not only the other, but also their own prior statements, including the signed agreed facts from the criminal proceedings. The court placed little weight on their oral evidence and preferred to rely on the contemporaneous documentation, particularly the police records of the incident.
The plaintiff's own conduct was a significant factor undermining his claim. His repeated false assertions to police that the defendant was armed with a gun were found, on the balance of probabilities under section 140 of the Evidence Act 1995 (NSW), to have been knowingly false. The court found that both parties had behaved badly and that the evidence did not permit confident findings in the plaintiff's favour on the critical disputed facts.
On the main incident, the court found for the defendant on liability. Although the judgment records a formal verdict for the plaintiff, the damages awarded were $0. This is sometimes called a nominal or derisory verdict, reflecting a finding that the plaintiff failed to establish a basis for any meaningful award. The claim for a personal injury component was withdrawn during the hearing due to pleading failures. Aggravated and exemplary damages were not awarded.
On the first morning of the hearing, the defendant sought leave to file a cross-claim for assault against the plaintiff. The court refused that leave, with reasons set out at the end of the judgment.
Orders Made
- Judgment for the plaintiff for $0
- No order as to costs under UCPR r 42.35; each party to bear his own costs
- Liberty to apply in relation to costs, to be exercised within seven days
- Exhibits retained until further order
Key Takeaways
- A plaintiff who obtains a judgment for $0 receives a derisory verdict, and the District Court confirmed this outcome is a recognised basis for declining to make any costs order in the plaintiff's favour, consistent with Holt v TCN Channel Nine Pty Ltd (2014) 86 NSWLR 96.
- Under UCPR r 42.35, where a plaintiff recovers less than $40,000 in the District Court, costs will not ordinarily be awarded unless the court is satisfied the commencement and continuation of proceedings in that court was warranted. The District Court found that the factual issues here were of a kind routinely dealt with by the Local Court.
- Where both parties are found to be untruthful witnesses, the court may prefer contemporaneous documentation, particularly police records, over oral testimony when resolving disputed facts.
- Pleading failures carried significant practical consequences in this case: the plaintiff's personal injury claim was withdrawn during the hearing, contributing to both the outcome on damages and the costs position.
- Knowingly false statements made to police during or immediately after the relevant incident can form part of the factual matrix that undermines a plaintiff's overall credibility and damages case.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 93C(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 10(1)(a)
- Defamation Act 2005 (NSW), s 42
- Evidence Act 1995 (NSW), ss 91, 140
- Summary Offences Act 1988 (NSW), s 4(1)
- Uniform Civil Procedure Rules 2005 (NSW), rr 15.7, 15.8, 15.12, 42.35
Key Cases:
- Goodrich Aerospace Pty Limited v Arsic (2006) 66 NSWLR 186; [2006] NSWCA 187
- Holt v TCN Channel Nine Pty Ltd (2014) 86 NSWLR 96; [2014] NSWCA 90
- Coote v Kelly; Northam v Kelly [2016] NSWSC 1447
- Monti-Haitsma Enterprises Pty Ltd v Lord (1988) Aust Torts Reports 80-200
- Gray v Motor Accidents Commission (1998) 196 CLR 1
- Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27
- Ainsworth v Burden [2005] NSWCA 174