Lambros v Riethmuller [2006] NSWLC 45

Local Court of New South Wales

CITATION: Lambros v Riethmuller [2006] NSWLC 45 JURISDICTION: Civil PARTIES: Mike Lambros Craig Riethmuller FILE NUMBER: 11986/04 PLACE OF HEARING: Downing Centre Local Court DATE OF DECISION: 10/04/2007 MAGISTRATE: Magsitrate B A Lulham CATCHWORDS: Assessment of Damages – Motor Vehicle property damage claim – basis of assessment of damages- fair and reasonable costs of repair – whether plaintiff entitled to an indemnity. - Evidence – expert evidence – can party engage itself or employee as expert witness – applicability of Code of Conduct LEGISLATION CITED: Evidence Act Section 79 Uniform Civil Procedure Act R. 31.2(3).R31.18 The Poctolus SWAB 1079 Darbishire v Warran 1963 WLR 1067 (CA) Harriton v Stephens 59 NSWLR 694 Kostik v Giannakopoulos S.C SA 2930 of 1988 CASES CITED: Kirch Communications Pty Ltd v Gene Engineering Pty Ltd 2002 NSWSC485 Collins Thompson v Clayton (2002) NSWSC 366 Makita Pty Ltd v Sproules (2001) 52 NSW LR 705 Sydney Wide Distributors Pty Ltd v Red Bull Australia Pty Ltd (2002) FC AFC 157 Keller v R (2006 NSW CCA 2004) Plaintiff's Counsel: Mr J Gruzman REPRESENTATION: Plaintiff's Solicitors: Mason Black Defendant's Counsel: Mr K.J. Manion Defendant's Solicitors: CKB Partners ORDERS: Judgment for the plaintiff.

BACKGROUND TO DISPUTE

1 The plaintiff Mike Lambros owned a Mercedes Benz SLK230 Compressor convertible. The vehicle was about fifteen months old and had travelled approximately 15,000 kilometres. The plaintiff's vehicle was damaged in an accident which occurred on 17 December 2003. The defendant Craig Riethmuller was driving a Pajero 4 wheel drive, which vehicle struck the plaintiff's vehicle in the rear. The plaintiff took his vehicle to the repair premises of Perfect Autobody Pty Ltd (hereinafter referred to as 'Perfect Autobody') at 22 O'Riordan Street, Alexandria. His vehicle was comprehensively insured with IAG formerly NRMA (and referred to as 'NRMA' in this judgment). A quotation was prepared dated 19 December 2003. NRMA Loss Assessor and employee Mr Todd Wainwright inspected the vehicle on 19 December 2003. Some reductions were made to the quotation. The vehicle was repaired and a tax invoice was prepared by Perfect Autobody totalling $15,054.76. Mr Wainwright's report was tendered as Exh.1. 2 The defendant's vehicle was comprehensively insured by AAMI. Its Technical Loss Assessor Mr Mark Nunn reviewed the repair quotation from Perfect Autobody. He assessed the fair and reasonable cost of the repairs to be $9,252.94. His report was tendered as Exh.5. Subsequently, following the commencement of court proceedings, AAMI arranged for its Loss Assessor and employee Mr Scott Matthews to inspect the plaintiff's vehicle on 21 May 2005. Mr Matthews assessed the fair and reasonable cost of the repairs of the plaintiff's motor vehicle at $8,731.47. Mr Matthews' report was tendered as Exh.4. 3 The NRMA having paid the repairs sought to recover them from AAMI. The proceedings were brought and defended pursuant to each insurers' rights of subrogation in the names of the vehicle owners. However, the real dispute was between the two publicly owned and listed insurance companies. The only witnesses called were the Loss Assessors Mr Wainwright and Mr Matthews. 4 The plaintiff filed a Statement of Claim on 28 October 2004 seeking payment of the sum of $15,054.76 plus interest and costs. The defendant filed a Defence on 16 February 2005 admitting liability, but denying quantum. On the same day the defendant filed a Part Confession in the sum of $9,252.94 plus interest and costs. The amount confessed to was the same as Mr Nunn's assessment. The amount in dispute for the repairs was therefore an amount of $5,802.82. Mr Matthews's subsequent assessment increased the amount in dispute by $521.47 to $6,354.29. 5 This matter is typical of many matters presently before the court involving the same factual situation. Perfect Autobody is the only repairer authorised by Mercedes Benz. In this matter, as part of Exh.A various photographs were tendered without objection, showing the repair and office facilities of Perfect Autobody. Such photographs indicate a very large spacious purpose built repair facility which would appear to be capable of repairing up to fifty vehicles at the one time. The evidence indicated that Perfect Autobody held itself out as specialising in the repair of prestige motor vehicles. The matters presently before the court arise out of the situation where the owner of the prestige vehicle not at fault in the accident was insured with the NRMA. The NRMA assessor approved the repairs for the vehicle. The party at fault in the action was insured by AAMI. AAMI dispute that the costs of the repair are fair and reasonable. Proceedings are then commenced in this court for the cost of the repairs, but the actual amount in dispute is the difference between the amount charged by Perfect Autobody and approved by the NRMA, and the cost of repairs as assessed by AAMI. Such matters presently take a very considerable amount of this court's available hearing time. The amount in dispute, being the difference between the two assessments of the cost of the repairs is usually less than $10,000. In this matter Mr Gruzman appeared for the plaintiff and Mr Manion for the defendant. The same Counsel appear for the NRMA and AAMI respectively in almost all of the similar matters before the court.