Ausbrand Pty Ltd v Vrahnos [2006] NSWLC 46

Local Court of New South Wales

CITATION: Ausbrand Pty Ltd v Vrahnos [2006] NSWLC 46 JURISDICTION: Civil PARTIES: Ausbrand Pty Ltd Nick Vrahnos FILE NUMBER: 6956/05 PLACE OF HEARING: Downing Centre Local Court DATE OF DECISION: 10/18/2006 MAGISTRATE: Magsitrate B A Lulham CATCHWORDS: Damages - Motor vehicle property damage claim - The measure of damages - Whether plaintiff who is paid cost of repairs is entitled to indemnity or whether onus is on plaintiff to prove cost of repairs are fair and reasonable - Evidence - Whether loss assessor employed by defendant falls within definition of expert witness - Whether loss assessor instead able to give expert evidence. LEGISLATION CITED: Uniform Civil Procedure Rules 2005. Rule 31.2(3) Uniform Civil Procedure Rules 2005. Schedule 7 Darbishire v Warran (1953) 1 W.L.R 1067 (CA) The London Corporation (1953) P 70 CA at 77 Harriton v Stephens (59NSWLR 694) CASES CITED: Kirch Communications Pty Ltd v gene Engineering Pty Ltd (2002) NSWSC 485 Collins Thompson v Clayton (2002) NSWSC 366 Makita Pty Ltd v Sprowles (2001) 51 NSWLR 705 ASIC v Rich (2005) NSWCA 152 Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd FC AFC 157 Plaintiff's Counsel: Mr J. Gruzman REPRESENTATION: Plaintiff's Solicitors:Mason Black Defendant's Counsel:Mr K.J. Manion Defendant's Solicitors:C.K.B. Partners ORDERS: Judgment for the plaintiff

BACKGROUND TO DISPUTE 1 Ausbrand Pty Ltd (hereinafter called 'the plaintiff') owned a Lexus RX330 Wagon which was damaged in an accident which occurred on 4 November 2004. The vehicle was stationary in traffic waiting to turn left when the rear right of the vehicle was struck by a vehicle being driven Craig Riethmuller (hereinafter called 'the defendant'). The plaintiff's vehicle was relatively new and was regarded in the motor vehicle repair industry as a 'prestige vehicle'. The plaintiff's vehicle was taken to North Shore Classic Autobody Repair Centre (hereinafter referred to as 'North Shore Classic') which held itself out as a repairer specialising in the repair of prestige vehicles. The plaintiff's vehicle was comprehensively insured with NRMA, (formerly NRMA and referred to in this judgment as the NRMA). 2 On 6 November 2004 North Shore Classic prepared a quotation for the repair of the plaintiff's vehicle in the sum of $9,708.30. The vehicle was inspected by Darren Kay, motor vehicle loss assessor for NRMA on 11 November 2004. He assessed the fair and reasonable cost of repairs to be $9,239.81. NRMA paid that amount to North Shore Classic in accordance with an authority from the plaintiff. 3 The defendant's vehicle was comprehensively insured by AAMI. The plaintiff's vehicle was inspected by AAMI inspectors Angelo Houliaras and Scott Matthews at North Shore Classic's repair shop on 14 February 2006. Mr Matthews assessed the fair and reasonable cost of repairs to be $4,456.26. Mr Matthews' report was tendered as Exh.3. 4 NRMA having paid the sum of $9,239.81 to the repairer, sought to recover that amount from AAMI. The proceedings were brought and defended pursuant to each insurer's rights of subrogation in the names of the vehicles' owners. However the real dispute was between the two publicly owned and listed insurance companies. The owner or drivers of the motor vehicles were not called, nor was the repairer. The only witnesses called were the loss assessors Mr Kay for the plaintiff and Mr Matthews and Mr Houliaras for the defendant. Generally I intend to regard the two insurance companies as the parties to the dispute. 5 The plaintiff's Statement of Claim filed on 22 June 2005 claimed the sum of $9,239.81 plus costs and interest. The defendant's Defence was filed on 12 July 2005. It admitted liability for the collision but denied the quantum of the plaintiff's claim. The defendant also filed a Part Confession confessing to the sum of $6,549.24 plus costs and disbursements. The amount in dispute between the two insurance companies at that stage was $2,690.57. Mr Matthews' report relied upon in evidence sought to reduce the plaintiff's claim to $4,456.26. The amount in dispute between the parties was therefore $4,783.55. 6 This matter was typical of many matters before the court involving NRMA as insurer for the plaintiff against AAMI the insurer for the defendant. The disputes relate to the repair of prestige motor vehicles. 7 Mr Gruzman and Mr Manion, Counsel in this matter, made detailed submissions to me in relation to a previous matter of Lambros v Riethmuller. I delivered judgment in that matter on 4 October 2006. The submissions made by Mr Gruzman and Mr Manion in this matter were similar and went to the same issues. I propose to set out paragraphs 10 to 57 of my judgment in Lambros as I consider the findings which I made in relation to the measure of damages, the practices within the insurance industry – 'Funny time-Funny money' and the consideration of principles in relation to expert evidence to be similar, if not the same, as the issues in this case. EXCERPT FROM LAMBROS v RIETHMULLER