AAMI Limited v Eastwood Towing & Auto Salvage Pty Limited and Rydalmere Motor Industries Pty Limited [2001] NSWSC 70

New South Wales Supreme Court

CITATION : AAMI Limited v Eastwood Towing & Auto Salvage Pty Limited and Rydalmere Motor Industries Pty Limited [2001] NSWSC 70 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 12392/00 HEARING DATE(S) : Monday 12 February 2001 JUDGMENT DATE : 23 February 2001

PARTIES : AAMI Limited v Eastwood Towing & Auto Salvage Pty Limited and Rydalmere Motor Industries Pty Limited JUDGMENT OF : Michael Grove J at 1

I. Raine (Plaintiff) COUNSEL : M. Lawson (First Defendant/Cross claimant) No appearance (Second Defendant) SOLICITORS : Potts Latimer (Plaintiff) Gadens Lawyers (First Defendant) CATCHWORDS : Motor Vehicle - Insurer becomes owner of stolen car consequent upon payment under policy - Later recovery by police - Towing and storage charges - Insurer/owner erroneously rejects delivery but later seeks it - Diminution in value claimed while in possession of salvager - Lien LEGISLATION CITED : Local Court (Civil Claims) Act 1970 DECISION : Judgment for defendants on plaintiff's summons; Judgment for cross claimant on cross claim.

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

MICHAEL GROVE J

Friday 23 February 2001

12392/00 - AAMI LTD v EASTWOOD TOWING & AUTO SALVAGE PTY LIMITED & RYDALMERE MOTOR INDUSTRIES PTY LIMITED

JUDGMENT

1 HIS HONOUR : This matter came before me in the Duty Judge's application list on Monday 12 February instant. I was informed by counsel that in the light of the relatively small amount of money involved it was their mutual wish to dispose of the hearing within the time limit for short applications, rather than having the matter referred to a holding list for allocation of a fixture with consequent likely escalation in costs. The second defendant has not appeared or taken part in the hearing. There is evidence that at relevant times the second defendant shared a vehicle storage yard with the first defendant. I was told that it was agreed that all affidavits could be read without objection or cross examination of the deponents even though the affidavits contained hearsay material. In addition, some short evidence was adduced from Mr Neiberding on behalf of the defendant (as I shall refer to the first defendant which appeared to contest the plaintiff's claim and pursued a cross claim ). Further, I acceded to the request that written submissions be received in lieu of oral argument. 2 I find the following facts and circumstances: