Buzadzic v Calliden Insurance Limited
[2014] VCC 1253
•11 August 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
COMMERCIAL LIST
EXPEDITED CASES DIVISION
Case No. CI-13-02704
| DANNY BUZADZIC | Plaintiff |
| v | |
| CALLIDEN INSURANCE LIMITED (ACN 004 125 268) | Defendant |
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JUDGE: | HIS HONOUR JUDGE LACAVA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2, 3 and 4 December 2013 | |
DATE OF JUDGMENT: | 11 August 2014 | |
CASE MAY BE CITED AS: | Buzadzic v Calliden Insurance Limited | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1253 | |
REASONS FOR JUDGMENT
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Subject: FRAUD
Catchwords: Fraudulent insurance claim
Legislation Cited: Insurance Contracts Act 1984 (Cth), s13 and s56; Evidence Act 2008, s91 and s140
Cases Cited:Briginshaw v Briginshaw (1938) 60 CLR 336; Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd & Ors (1992) 67 ALJR 170; Browne v Dunn (1893) 6 R 67; David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353
Judgment: Judgment for the defendant.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Langmead QC with Ms K Foley | Nick Logan & Co |
| For the Defendant | Mr C Hanson | Turks Legal |
HIS HONOUR:
1 This proceeding is concerned with the insurance of two expensive motor vehicles, a Ferrari and a Mercedes C63. It is convenient that I first outline the issues in the proceeding that concern the insurance of the Ferrari. I will then outline the issues that concern the insurance of the Mercedes. I will then deal with each of the issues that arise for decision separately.
2 On 23 December 2011, the plaintiff owned a Ferrari motor vehicle. He insured it under a comprehensive policy of insurance with the defendant, an insurer. The agreed value of the Ferrari for the purposes of the policy was $568,270.00.[1] The policy insured the plaintiff for damage to the Ferrari and for damage to other vehicles as a result of an accident.[2] It also insured the plaintiff for reasonable legal costs incurred in defending legal proceedings instituted against him by others.[3]
[1]Court Book (“CB”) 437
[2]CB 418. These facts are admitted in paragraph 3 of the Defence
[3]CB 418
3 The Ferrari was damaged in a collision with another vehicle on 23 December 2011. The cost of repairs was $56,570.90. Under the terms of the policy, the plaintiff was obliged to pay an excess for each claim of $3,000.00 in the result that the defendant insurer was obliged to pay $53,570.90 towards the costs of repairs of the Ferrari.
4 The other vehicle involved in the collision with the Ferrari was a Honda CRV driven by Mr Tri Nguyen of 15 Cumberland Drive, Maribyrnong. Mr Nguyen’s vehicle was insured comprehensively for loss and damage by RACV Insurance.
5 On or about 29 December 2011, one John Gardiner inspected the Ferrari on behalf of RACV for the purpose of assessing the damage to the Ferrari arising from the collision. The inspection took place at Western General Body Works located at 84 Gordon Street, Maribyrnong. When John Gardiner inspected the Ferrari he was provided with an “Estimate” of the costs of repairing the Ferrari prepared by David Stephenson, an employee of Western General Body Works.[4] John Gardiner assessed the costs of repairs to the Ferrari in the sum of $36,066.00 inclusive of GST.[5]
[4]CB 439
[5]CB 441
6 As its name suggests, Western General Body Works is a panel beating and tow truck business. That business is owned or controlled by the plaintiff. [6]
[6]Transcript (“T”) 42
7 At the time that the collision occurred, the plaintiff did not hold a driving licence.[7] He gave evidence, which I do not accept, that at the time of the collision, the Ferrari was being driven by his brother-in-law and, manager of his tow truck business, Michael Harrison. The plaintiff gave evidence that at the time of the collision, he was seated in the front passenger seat of the Ferrari “reading the newspaper”.[8]
[7]T119
[8]T48-49
8 Michael Harrison also gave evidence, which I do not accept, that at the time of the collision, he was driving the Ferrari and, he gave evidence about how the collision occurred.
9 Tri Nguyen also gave evidence. He said that at the time of the collision, the plaintiff, not Harrison, was driving the Ferrari, and he also described how the collision occurred.
10 On contentious issues in this proceeding that relate to the circumstances of the collision between the plaintiff’s Ferrari and Tri Nguyen’s Honda CRV, I accept the evidence of Tri Nguyen, preferring his evidence to the evidence of both the plaintiff and Michael Harrison.
11 The plaintiff did not immediately make a claim on the policy. Both the plaintiff and Harrison gave evidence that Tri Nguyen admitted responsibility for the collision at the scene of the collision immediately following the collision. However, in March 2012, solicitors acting on behalf of RACV, subrogating to the rights of Nguyen, issued a proceeding in the name of Tri Nguyen in the Magistrates’ Court at Melbourne against the plaintiff and Michael Harrison, seeking to recover the costs of repairing the Honda CRV driven by Tri Nguyen. The amount of the claim was $2,348.40. In that proceeding, it was alleged that at the time of the collision, the Ferrari was being driven by the plaintiff, alternatively by Harrison[9] (“the Magistrates’ Court proceeding”)
[9]CB 29
12 After the Magistrates’ Court proceeding was commenced, the plaintiff made a claim on his policy.[10] The claim form is dated 14 March 2012. The plaintiff said that although he did not fill out the claim form, he did sign it.[11] He said he lodged the claim after it became clear that the RACV, on behalf of Nguyen, was holding him responsible for the collision.[12]
[10]Exhibit C – CB 445-447
[11]T46
[12]T102
13 The claim form invited a description of the circumstances of the collision. A description was given which attributed the cause of the collision to Tri Nguyen. The claim form also asked for details of the driver of the insured vehicle (the Ferrari) and, asked for the date of birth of the driver, his licence number, and said “Please Provide a Photocopy of Your Drivers Licence With This Claim Form”.[13] When the claim form was completed and lodged with the defendant as insurer, it advised that the Ferrari was being driven by Michael Harrison at the time of the collision and gave his details of licence and attached a photocopy of his licence.
[13]CB 446
14 The defendant accepted what it had been told by the plaintiff about the circumstances of the collision and the identity of the driver of the Ferrari in the claim form. It retained solicitors to act for the plaintiff as insured to defend the Magistrates’ Court proceeding. In doing so it incurred costs.
15 Acting upon what it was told in the claim form, the defendant also had the damage to the Ferrari assessed by its loss assessor, Harry Planko. He assessed the damage to the Ferrari on 28 March 2012, after the repairs had been carried out. When he assessed the costs of repairs to the Ferrari, the “quoted” costs of repairs was $55,965.48 inclusive of GST, but he assessed the figure at $49,453.92 inclusive of GST.[14] The defendant paid to the plaintiff the amount of $36,066.00, being the assessed costs of repairs arrived at by Gardiner.
[14]Exhibit 8
16 The Magistrates’ Court proceeding was decided on 12 November 2012. The Magistrate found that the Ferrari was being driven by the plaintiff and not Harrison. He found that the collision was caused by the negligence of the plaintiff and not the negligence of Tri Nguyen. He ordered the plaintiff to pay the amount of the claim by Tri Nguyen, together with interest and costs, a total sum of $23,617.49 (“the judgment amount”).
17 The plaintiff commenced this proceeding by Writ on 5 April 2013. He seeks a declaration that the defendant is liable under the policy to indemnify him for the full costs of repairs to the Ferrari, together with the costs of car hire and towing and, an order that the defendant is liable to pay the judgment amount.
18 In its Defence and Counterclaim, the defendant admits it is the insurer of the Ferrari. It denies that it is liable to indemnify the plaintiff for damage to the Ferrari. It admits that it has paid the sum of $36,066.00 to the plaintiff for damage to the Ferrari but claims that it had no legal obligation to do so. It seeks to set off that sum against any amount for which the plaintiff might otherwise obtain judgment, and counterclaims for return of that money on the basis that it was paid under a mistake of fact.
19 It admits that it has refused to pay the judgment amount and denies that it is liable under the policy to do so. The defendant also seeks to set off the sum of $12,712.90 for legal costs paid to solicitors to represent the plaintiff in the Magistrates’ Court proceeding against any amount for which the plaintiff might otherwise obtain judgment and, counterclaims for that amount.
20 The basis of the defendant’s Defence and Counterclaim, so far as the claim relating to the Ferrari is concerned, is an assertion that the claim was fraudulent within s 56 of the Insurance Contracts Act 1984 (Cth) (“the Act”) entitling it to refuse to pay the claim.[15] The defendant asserts that the information provided by the plaintiff in the claim form was false and, that the plaintiff knew that to be so.[16] Alternatively, the defendant asserts that the plaintiff provided the information in the claim form, not caring whether the information was true or false.[17]
[15]CB 19 paragraph 16
[16]CB 18 paragraph 15d
[17]CB 18 paragraph 15d
21 In its pleaded Defence, the defendant pleaded that the plaintiff was estopped from arguing that the plaintiff was driving the Ferrari. The defendant pleaded that issue had been decided by the Magistrate and it would be an abuse of process to now have that question re-litigated in this Court. In an earlier ruling, I ruled that s 91of the Evidence Act 2008 prevented the Magistrate’s finding being used as proof of the fact in this proceeding. I permitted the plaintiff to lead evidence of the whole of the circumstances of the collision involving the Ferrari including who was the driver.[18]
[18]T38-41
22 The defendant pleads that it acted on the information provided by the plaintiff in the claim form and, believing that it had a legal obligation to do so, it paid $36,066.00 towards the costs of repairs of the Ferrari and now claims it is entitled to recover that sum from the plaintiff.[19]
[19]Defence and Counterclaim paragraph 20 CB 19-20
23 The plaintiff served and filed a Reply and Defence to Counterclaim.[20] An Amended Reply and Defence to Counterclaim was also filed by leave on 2 December 2013. In that pleading, the plaintiff admitted making the claim in the terms alleged by the plaintiff but denied that it was false in any way. He denied that he made any claim knowing it to be false or, that it was made by him recklessly.[21]
[20]CB25
[21]CB 26 paragraph 15
24 I now turn to outline the issues that concern the insurance of the Mercedes. There are two matters relevant to this proceeding and both are raised by Counterclaim.
25 The Mercedes was owned by the plaintiff when it was damaged whilst being driven by his wife on or about 26 August 2011. The circumstances of the collision are not here relevant, save that the Mercedes was damaged to the front when a vehicle driven by a third party reversed into it whilst the vehicle was stationary. The Mercedes was damaged to the front end. Amongst other damage, the Mercedes was visibly dented on the front numberplate and, in an area of grill that is located immediately beneath the number plate.
26 The Mercedes was also insured comprehensively by the defendant. The plaintiff made a claim for damage on the policy.[22] The defendant accepted the claim and allocated claim number CADF032860.
[22]CB 548
27 The Mercedes was assessed by an assessor, Harry Planko at Western General Body Works, on 9 September 2011.[23] At the time of his assessment, Planko photographed the damage. Planko assessed the damage to the Mercedes in the amount of $7,732.40 and Western Body Works agreed to repair the Mercedes for that sum. The costs of Mr Planko’s assessment to the defendant was $191.40 inclusive of GST.[24] On 13 September 2009, Western General Body Works invoiced the defendant for $7,732.40, being the agreed costs of repairs for parts and labour including GST.[25] On 22 September 2011, the defendant paid $7,732.40 to Western General Body Works.[26]
[23]Exhibit 9
[24]CB 563 and evidence of Pyett
[25]CB 560
[26]CB 563 and evidence of Pyett
28 The defendant (plaintiff by counterclaim) alleges in this proceeding, that the plaintiff did not repair the Mercedes as his company had represented in the invoice[27] and, that was a breach of utmost good faith implied into the policy of insurance for the Mercedes by s13 of the Act. The defendant counterclaims, seeking an order the plaintiff repay to it, inter alia, the sum of $7,732.40.
[27]CB 560
29 The plaintiff denies that the Mercedes was not repaired and he gave evidence that the Mercedes was in fact repaired.[28] No documentation was produced by Western General Body Works to show what work was done, such as job sheets or the like.
[28]T56-57, T73, T76
30 In a quite separate and unrelated incident, the plaintiff made a second claim relating to the Mercedes on or about 10 December 2012.[29] In the claim form signed by the plaintiff and submitted to the defendant, the plaintiff said:
“Vehicle stolen from 84 Gordon St Footscray on approximately Thursday 29th November 2012 and Friday 30th November. Reported to Sunshine police on the Friday over phone and was told the owner had to report the car stolen. The owner did this when he came home as he was away racing and he reported it again at Footscray police station on Friday 7th December at approx (sic) midday to a Constable Williams”
[29]Exhibit H, CB 590-592
31 The defendant (plaintiff by counterclaim) pleads that the Mercedes was not the subject of theft as set out in the claim form or at all.[30] The defendant argues, and it is not now in dispute, that the vehicle was taken in very different circumstances, properly described as robbery, by a person or persons, the identity of whom was known to the plaintiff. The defendant pleads that when it queried the plaintiff about the claim arising from theft, the plaintiff withdrew the claim. In the counterclaim, the defendant claims the amount of costs and expenses it expended to process the claim before it was withdrawn, amounting to $4,977.87.
[30]Counterclaim paragraph 30 CB 21
32 In its Counterclaim, the defendant pleads that the theft claim relating to the Mercedes was also in breach of s13 of the Act and was a breach of utmost good faith implied into the policy of insurance for the Mercedes.
33 In his Defence to the Counterclaim, the plaintiff admits that he withdrew the claim. He asserts that he did this because the defendant was taking too long to process the claim and he needed to reinstate the vehicle. He denies that the Mercedes was not stolen and he denies any breach of a duty to act with the utmost good faith.
34 These are the issues that must be decided in this proceeding.
35 I turn now to look separately at the issues that surround the claim made by the plaintiff relating to the Ferrari and then the two claims in the Defence and Counterclaim that relate to the Mercedes.
36 The plaintiff gave evidence. He said he was the managing director of Western General Body Works and he said cars were his hobby. He said he races V8 utes and go-karts.[31] He went on to say he has a “fondness” for luxury cars.[32] He said he owned the Ferrari, the Mercedes C63 and, a Porsche.[33] After reciting the luxury vehicles that he had previously owned, he was asked about the role of the Ferrari in his life. He said this:
[31]T42
[32]T43
[33]T44
Q:“Compared to the V8 utes, for example, go back to December 2011, in driving your Ferrari what was the role of the Ferrari in your life, was it a centre piece of your motor interest, you tell the court, what was it?---
A:It’s a beautiful. It’s like a bit of a mantelpiece to me.
Q:When you say ‘a bit of a mantelpiece’ what do you mean by that?---
A:It’s lovely to look at all. It’s got a lot of value to look at.”[34]
[34]T44
37 I have concluded that the Ferrari was a very valuable motor vehicle that meant a lot to the plaintiff and it held pride of place amongst his possessions.
38 The plaintiff gave evidence that he was driven to work by his wife, and a decision was made to go to the house of a work colleague for some breakfast. He said he and his brother-in-law, Michael Harrison, left Western General Body Works at 84 Gordon Street, Maribyrnong in the Ferrari.[35] He said Harrison was driving. They were proceeding along Edgewater Boulevard towards Ascot Vale down a steep decline. He said he was “reading the paper, just minding my own business enjoying the nice day”.[36]
[35]T48
[36]T48-49 and T81
39 He was asked what happened. In his answer, I have taken the view that the plaintiff was deliberately vague, distancing himself from what occurred. He said this:
Q:What happened?---
A:Well, as far as I understand, as far as actually - there was no-one in front of us and I was reading the paper and then all of a sudden a car pulls out from the left, as far as I understand, it was all last second for me so I was pretty vague.
Q:Was that out of a drive, at an intersection?---
A:At the intersection. At (indistinct) Way. There was no car in front of us, definitely no car in front of us.
Q:What was the set up of the road at this intersection, was it a straight, four way, T, roundabout?---
A:Yes, it is a four way with three different ways.
Q:So keep going?---
A:And the other vehicle which is a four wheel drive Honda pulled out of the left hand - well, drove out of the left hand street and we collided on the roundabout there.
Q:Not going into all the details but where did the other vehicle strike the Ferrari?---
A:In the left hand front of my vehicle and the right hand rear vehicle.”[37]
(Emphasis added)
[37]T49
40 It can be seen that the plaintiff is giving evidence of his understanding of what happened as if told by some other person, presumably Harrison. This is presumably to create an impression consistent with him sitting back reading the newspaper in the passenger seat. Yet, at the same time, the plaintiff is prepared to say adamantly that there was definitely no way that there was another car in front of his.
41 The plaintiff gave evidence about what occurred after the collision. He said he was first out of the vehicle, followed by Harrison and, Nguyen was third out.[38] He said Nguyen said he was sorry and he and Harrison asked Nguyen if he was insured, to which he said that he was, with RACV. He said he was “comfortable with that”.[39] He said he was a bit annoyed but took the view there was nothing much he could do and told Harrison to exchange details and “let’s get on with today”.[40] He said once he found out Nguyen was insured, he went back to the car and, after Harrison exchanged details, they left.[41]
[38]T51-52
[39]T49-50
[40]T50
[41]T50-51
42 In cross-examination, he said he did not recall whether he gave his business card to Nguyen after the collision.[42] Nguyen said that he did. He denied that he had been drinking prior to the collision.[43] Nguyen said that he could smell alcohol. He said Harrison drove the Ferrari away after the accident back to 84 Gordon Street and then Harrison returned to the accident scene in a tow truck.[44]
[42]T85
[43]T87
[44]T89
43 He said the Ferrari came to a stop a metre or so over the island in the roundabout intersection. He said the Ferrari stopped quickly and the Honda continued on after impact another six metres or so further forward.[45]
[45]T51-52
44 The plaintiff identified the claim form he submitted to the defendant.[46] He said the costs of repairing the Ferrari was $53,500.81[47] and there was an excess of $3,000.00. He said the defendant had paid $36,066.00 but had refused to pay the balance.[48]
[46]Exhibit C - Claim Form, copy of which is at CB 445 to 447
[47]Exhibit D
[48]T52-54
45 He said that he had signed the claim form but he did not fill it out and he could not say who had filled it out. He gave this evidence:
Q:“What’s the document that you’re holding?---
A:A motor vehicle claim form.
Q:Does it have your signature on it?---
A:Yes, it does.
Q:There’s a signature, initials on the left. Are they your initials?---
A:Sorry, last page?
Q:Yes?---
A:Yeah, that’s my signature.
Q:Whose handwriting is it on the body of the document?---
A:I don’t know.”
HIS HONOUR:
Q:“I’m sorry?---
A:I don’t know, sir.”
MR LANGMEAD:
Q:“How was the document filled out that you signed?---
A:I don’t recall.
Q:Did you discuss the claim form with anyone?---
A:Yes.
Q:While you don’t recall the name of the person do you recall the process, how was it that this form came to be completed? ---
A:I don’t know.
Q:But before you signed it did you become aware of its contents?---
A:Yes.
Q:Do you know what the source of the contents was, where did the information come from?---
A:Basically myself, yes.
Q:Did you submit that to the insurer, Calliden?---
A:Yeah, via my broker, yes.”[49]
[49]T46-7
46 I do not accept this evidence from the plaintiff. In circumstances where the plaintiff’s valuable Ferrari has suffered more than $50,000 damage and he regards the vehicle as his “mantelpiece”, I cannot accept that he does not know who it was that filled in the details on the claim form or the circumstances in which it was completed. In my view, the plaintiff, in his evidence, was deliberately trying to distance himself from what is contained in the claim form. In giving his evidence, he tried to convey an attitude of indifference to what happened in filling out the claim form. I do not accept his evidence.
47 The policy of insurance for the Ferrari provided that there would be no insurance cover where the vehicle was being driven by a person who did not hold a current driving licence.[50] No doubt with this exclusion in mind, in the claim form the defendant requires the driver of the insured vehicle that is involved in an accident to be identified by date of birth and drivers licence number and asks for a photocopy of the driving licence to be provided with the claim form. On the claim form submitted by the plaintiff, the driver is identified as “Michael Harrison D.O.B. 19/8/75 Licence No. 049659232”.[51] That information could only have been provided by either the plaintiff or Harrison. I do not accept that the plaintiff does not know who provided it. I have concluded he was being deliberately evasive in his evidence.
[50]CB 397 and 424
[51]CB 446
48 The claim form asks for various boxes to be ticked and these have been completed on the form. For example: “Was driver driving with knowledge and consent of insured?” To this question the “yes” box is ticked. Another question asks: “Did any driver admit liability?” To this question the “yes” box is ticked, followed by the question: “Whom?”, to which the information provided is “Other Car”. This information could only have been supplied by the plaintiff or Harrison. Again, I do not accept that the plaintiff does not know who provided it.
49 Also, the claim form asks for a “plan of the accident” where the vehicle designated “A” is the insured vehicle. This has been completed on the claim form and shows the front left of the insured vehicle colliding with the front right of the other vehicle. The diagram is below a description of the accident in these terms:
“My Car allready (sic) in Roundabout almost through when O/P drove striaght (sic) through in front of me, tried to miss him but got R/H side of his car with my L/H front. Also hit edge of roundabout causing damage to rear.”[52]
[52]CB 446
50 Again, this information could only have come from either the plaintiff or Harrison. I do not accept that the plaintiff does not know who provided the information in the claim form signed by him.
51 The plaintiff said he did not draw the diagram in the claim form but said it was approximately right.[53] In cross-examination, the plaintiff was asked about another version of the accident on another form also signed by, but not completed, by him.[54] He agreed the description was different, as it appears to me.[55] I find the information in the claim form deliberately gave an inaccurate description of how the accident occurred.
[53]T91
[54]Exhibit 1, CB 544
[55]T91
52 Michael Harrison gave evidence that he was employed by the plaintiff as his tow truck driver. He said he was driving the Ferrari at the time of the collision. He said he was driving along Edgewater Boulevard when Nguyen came from his left “from out of nowhere”. He said the right side rear of Nguyen’s vehicle hit the front left front of the Ferrari. This description differs from what is in the claim form. He said Nguyen admitted responsibility by saying “sorry, sorry, sorry”. He said he gave Nguyen a business card of the plaintiff that was in the Ferrari. He said Nguyen got out of his car first and he and the plaintiff got out of the Ferrari at the same time.[56] This differs from the plaintiff’s evidence.
[56]T111. As to points of impact see also T122
53 Harrison gave evidence he did not see the plaintiff have a conversation with Nguyen. He said the plaintiff got out of the car, looked at the damage and got back into the Ferrari.[57] Given that the plaintiff’s so-called “Mantelpiece” had just been damaged at a cost of over $50,000, I find this evidence very hard to believe and do not accept it. He said he “would have taken over” and he exchanged details with the other driver and “Danny was already back in the car”.[58] He said he drove back to 84 Gordon Street because Danny was in the car and went back to the scene in his tow truck to see if he could tow Nguyen but his car was driveable.[59] Later that afternoon, Nguyen came to the office and brought his claim number with him. He said he rang RACV to establish liability and to make sure liability had been established, which he said it was. He said he tried to telephone Nguyen a few times later on his mobile and could not get hold of him so he went around to his house.[60] Given that by this time Nguyen had lodged a claim on RACV, there was, in my view, no reason why Harrison would need to continue to make contact with Nguyen either by telephone or visiting him other than to ensure that Nguyen would be made responsible for the accident.
[57]T112
[58]T112
[59]T113
[60]T113
54 In cross-examination, he said he was driving the Ferrari because the plaintiff did not hold a licence. He said he was travelling at 20 to 30 kilometres per hour along Edgewater Boulevard intending to go straight ahead through the roundabout. He disagreed that Nguyen was travelling in the same direction.[61]
[61]T119
55 He disagreed that the plaintiff was driving the Ferrari and that it was the plaintiff who spoke with Nguyen. He disagreed that he was the person in the passenger seat who did not get out of the car. He said after exchanging names and addresses with Nguyen, he spoke with the police on Nguyen’s telephone after Nguyen had telephoned the police.[62] He said Nguyen had telephoned the police because he was worried because he had collided with a Ferrari and he (Nguyen) was worried because he thought he was going to lose his house. He said Nguyen kept saying “sorry, sorry, sorry”.[63] Nguyen, in his evidence, denied these conversations took place. He said he exchanged details with the driver of the Ferrari whom he said was the plaintiff, not Harrison.
[62]T120-121
[63]T123-124
56 It is common ground that Nguyen immediately telephoned the police. He said he wanted an eye witness.[64] Yet the claim form informs the defendant insurer that the accident was not reported to the police.[65] The defendant does not rely upon this further misstatement in the claim form.
[64]T156
[65]CB 446
57 Tri Nguyen gave sworn evidence with the assistance of an interpreter when necessary. Although he generally was able to understand the questions put to him, there were occasions in his evidence where he required the assistance of the interpreter and this was given.
58 Mr Nguyen said he lives at 15 Cumberland Drive Maribyrnong. It is important to understand where Cumberland Drive is in relation to the point of collision and the evidence given by Nguyen as to the route taken by him from his workplace in Essendon. Both an aerial Google[66] map and map 28 from the Melway street directory went into evidence. As the roundabout is approached along Edgewater Boulevard from the Gordon Street direction, Magazine Street is on the left at the roundabout and Hillsdale Avenue is on the right. Edgewater Boulevard otherwise continues past the roundabout. Cumberland Drive is the first street on the left off Hillsdale Avenue.
[66]Exhibit 4
59 Mr Nguyen gave evidence he was travelling from a newsagency where he worked in the morning delivering papers. The newsagency is located in Rose Street, Essendon, shown on the Melway map 28 at approximately F4. He travelled back to his home via Maribyrnong Road and Van Ness Avenue, then Gordon Street, cutting through to Edgewater Boulevard from La Scala.[67] Mr Nguyen’s evidence was that he was not travelling from Magazine Way on the left of the roundabout at all, because there is no way to get into Magazine Way from Gordon Street. Further, there is no need for him to go into Magazine Way because that is away from the direction of his house in Cumberland Drive, which is right at the roundabout. He said it was impossible that he was travelling along Magazine Way prior to the collision.[68] At the time of the collision, he said he was in front of the Ferrari, intending to turn right at the roundabout and go to his home about 100 or 150 metres away.[69] I accept this evidence. It is a perfectly plausible on the available evidence.
[67]See generally Map 28, B12, and T137
[68]T136 and in cross-examination at T172
[69]T135-6
60 Mr Nguyen said he did not see the Ferrari before the collision but he heard a very loud sound which he described as a “hoon” like sound. I asked him how the collision happened. He said this:
HIS HONOUR:
Q:“Mr Nguyen, how did this accident happen, what happened between the cars? Just tell me if you would how the accident happened?---
A:When I turn in the roundabout I just heard a very big roar, hoon, like hoon, and after that bop in my car in the back so I get out and I seen the black Ferrari so I was, I immediately call, you know, 000 to get the eye witness.”[70]
[70]T156
61 The reason why Mr Nguyen did not see the Ferrari before the collision was because it was behind him, not in front of him. He said the driver of the Ferrari got out and gave him a card and told him to bring his car to his body shop. He said the name on the card was Danny Dusic “or something like that”.[71] He said one person got out of the Ferrari and one person remained inside it. The driver approached him and he said he got a strong smell of alcohol and he reported the matter to the police. He said the driver stayed only about one minute before he reversed and ran off.[72] He said that after about ten minutes, a tow truck arrived and the driver spoke to him and said he was the driver of the Ferrari and he (Nguyen) said he was not. He gave this evidence:
[71]T139
[72]T146
Q:“Did you speak to the driver of the tow truck?---
A:Yes, I did.
Q:What did he say to you?---
A:He told me that he was driver, Ferrari driver.
Q:What did you say?---
A:I say, ‘You are not Ferrari driver’, I told him.
Q:Did he reply?---
A:He very upset and, you know, irritated and, you know, I scary and I say that you was not matter and I gave him about my phone and my address and he give me the card and the telephone as well.”[73]
[73]T147
62 Mr Nguyen gave evidence that the tow truck driver then gave him a business card with “Michael” written on it. About a day or two later, the tow truck driver visited him at his home and pressured him to have his car repaired at Western General Body Works.[74] He denied absolutely that Harrison was the driver of the Ferrari[75] and he denied admitting the accident was his fault.[76] He denied saying that he was going to lose his house and pointed out that he was insured. Importantly, he gave a description of the driver of the Ferrari which, in my judgment, best fits with the plaintiff rather than Michael Harrison.[77] I accept this evidence of Mr Nguyen which, as I say, is perfectly plausible.
[74]T148
[75]T148
[76]T149
[77]T149
63 In cross-examination, he was pressed on who it was that gave him a business card. He said the driver was the one who gave him the card. In this passage of evidence he said he was one hundred per cent the driver gave him the card and Michael was the tow truck driver. This is his evidence:
Q:“Do you know who the person who gave you the card was?---
A:Yes, I give him my (indistinct).
Q:What was his name?---
A:The driver?
Q:No, the man who gave you the card?---
A:He Danny.
Q:Who was it?---
A:The driver give me the card, with the card, Danny.
Q:He gave you a card with Danny on it?---
A:Yes.
Q:But who was the person who gave you the card?---
A:This is driver, Danny.
Q:I put to you that you’re mistaken there, that because you were terrified?---
A:Yes.
Q:Because you’d just had a fright, because it was early in the morning and you were working two jobs from 4 a.m. till
5 o’clock in the afternoon that you were understandably confused after the collision, do you accept that?---
A:No, no, I don’t accept about that.
Q:Do you accept that your identification that you were not
100 per cent sure?---
A:Yes, I say that I recognise 100 per cent that’s the driver and Michael tow truck driver.”[78]
[78]T162
64 He was pressed in cross-examination on the circumstances of the collision. He was adamant the Ferrari collided with his vehicle from behind when he was already in the roundabout preparing or commencing to turn right. The front passenger side of the Ferrari collided with the rear driver’s side of his car, extending along to the rear driver’s side door. This exchange occurred:
Q:“There is Magazine?---
A:Yes.
Q:There is Hillside and there is the street you live in, do you see that? I put to you, you were coming down Magazine Way through the intersection that way to get to your house?---
A:No, no. Afterwards, no. I come from Essendon and went home so there’s no way up from the Magazine Drive to come there.
Q:Do you agree that Edgewater Boulevard that when it goes through the roundabout it’s one lane?---
A:Yes, it’s two.
Q:I put to you that you say you entered, on your evidence, you entered the roundabout before the Ferrari?---
A:Yes.
Q:It’s one lane?---
A:Yes.
Q:But the Ferrari didn’t hit you on the back bumper bar, did it, it hit you on the side?---
A:No, not really on the side. He come from the bumper and, you know, come to the - my rear wheel. So from the bumper to rear wheel.
Q:Mr Nguyen, you’ve already agreed that the Ferrari struck your vehicle on the driver’s side back passenger door?
---
A:(Through interpreter) I agree that is where the Ferrari stopped but the collision began at the rear bumper and it dragged all the way along the side and stopped at the rear door.
Q:I put to you the only way that the damage you describe could have occurred, if the Ferrari was coming along Edgewater Boulevard is if you were coming down through Magazine Way towards Hillside, do you agree with that?---
A:(Direct) No, no, I did not agree. The reason if I come from up there so my bumper absolutely, you know, (indistinct). This is they came from the bumper so it touch the bumper and stop in the back door.
Q:It didn't stop in the boot, did it, or the back of the Honda?---
A:(Through interpreter) Because my car was executing the turn and it just slip on the side of it.”[79]
[79]T172-3
65 As to claiming on his RACV policy, he said he did report the matter to RACV when he got home. He said he lodged a claim and told the RACV of the circumstances of the accident, saying that he told the RACV he was hit in the back.[80] He gave evidence that when Harrison later visited him at his home, he put pressure on him and that the accident was his fault. He said he told Harrison he had to follow the RACV.[81]
[80]T174
[81]T174-6
66 Mr Nguyen was cross-examined about what he told the RACV about who was driving the Ferrari. He said he did not confuse Michael and Danny. This is his evidence, which I accept:
MR LANGMEAD:
Q:“Indeed, yes. (To witness) So did you tell someone from the RACV that Mr Buzadzic was the driver in your claim?---
A:Yes, of course, Mr Buzadzic, yeah.
Q:Did you say, ‘I think it was Mr Buzadzic, it might have been Mr Harrison,’ or did you say it was Mr Buzadzic?---
A:I did not confuse about Michael and Danny. I still, I still remember exactly 100 per cent short man, white skin, big head that drive that Ferrari.”[82]
[82]T177
67 That description of the driver fits the plaintiff and not Michael Harrison.
68 In the Magistrates’ Court proceeding, the RACV, suing in the name of Nguyen, pleaded that the plaintiff, alternatively Harrison, was driving the Ferrari. Mr Nguyen was pressed about this in cross-examination on the basis that it showed he was unsure who was driving: This is his evidence:
MR LANGMEAD:
Q:In any event, that document doesn’t say
Mr Buzadzic was the driver. It says Mr Buzadzic or
Mr Harrison was the driver. Do you have any knowledge of the circumstances of that document being created?
---A:(Through interpreter) Honestly only know that, you know, like I only Danny was the guy who got out of the car and said he was driving the car and gave me the card and that’s about it.”[83]
[83]T179
69 As I said earlier, I prefer the evidence of Mr Nguyen to the evidence of both the plaintiff and Mr Harrison. I found the plaintiff to be evasive in his evidence and he tried to distance himself from playing any part in the content of the claim form although he admitted to having signed it. I specifically do not accept his evidence that he does not know who completed the content of the claim form. Further, there are inconsistencies in the evidence of the plaintiff and Mr Harrison.
70 I do not accept the evidence of either the plaintiff or Mr Harrison that Mr Harrison was the driver of the Ferrari at the time of the collision. I accept the evidence of Mr Nguyen that immediately after the collision, he spoke with the driver of the Ferrari, who was the plaintiff, and it was the plaintiff himself who gave Mr Nguyen a business card with his name on it.
71 As to the circumstances of the collision, I also prefer the evidence of Mr Nguyen to the evidence of both the plaintiff and Mr Harrison. I find that Mr Nguyen was travelling home in his Honda CRV along Edgewater Boulevard, intending to turn right at the roundabout, with Magazine Way on the left and Hillsdale Avenue on the right. When Mr Nguyen’s vehicle was in the roundabout turning right, it was hit from behind by the plaintiff’s Ferrari being driven by the plaintiff. The Ferrari was travelling too fast and ran into the rear driver’s side of the Honda, damaging it from the rear to the driver’s side rear passenger door. The point of impact with the Ferrari being on the front left-hand corner suggests to me the high probability the collision occurred just as Mr Nguyen commenced to turn the Honda right at the roundabout to go to his home.
72 I accept the evidence from Mr Nguyen that he was travelling home from his place of work in Essendon and there was no need and, no way for him to be travelling along Magazine Way at all in a direct route from Essendon.
73 I accept the evidence of Mr Nguyen that he did not admit responsibility for the collision at the scene, as both the plaintiff and Mr Harrison said. Further, I find the evidence of the persistence of Harrison in approaching and pressuring Mr Nguyen well after the collision at his home in his capacity as a tow truck driver employed by the plaintiff and after a claim had been lodged with RACV to be most unusual. The action of the RACV as Mr Nguyen’s insurer in commencing the Magistrates’ Court proceeding strongly suggests to me that what Mr Nguyen said in evidence is correct, namely, when he lodged his claim from his home he said he was hit from behind by the Ferrari. That is entirely inconsistent with him having admitted responsibility for the collision at the scene a short time earlier.
74 I found Mr Nguyen to be a witness of truth. He was adamant in his evidence and he was not an interested party in this proceeding, having been the successful party by name in the Magistrates’ Court proceeding and this proceeding meaning nothing to him. There was no reason for him to give untruthful evidence in my court and I find that he did not do so. I accept his evidence.
75 I cannot say the same for either the plaintiff or his brother-in-law and employee, Mr Harrison. In my view, both gave deliberately false evidence about both the circumstances of the collision and who was driving the Ferrari.
76 I find that the claim form lodged by the plaintiff claiming indemnity was false and deliberately so. It was false in two important respects. It falsely stated that Michael Harrison was the driver and, it falsely stated the circumstances of the collision. As to the former, I infer it was the plaintiff’s intention to deceive the insurer as to who was driving the vehicle, because the plaintiff knew that his insurance policy would not cover him if he was the driver because he did not hold a current drivers licence and the policy explicitly excluded the defendant insurer from liability under the policy in such a circumstance.[84] I am mindful of the plaintiff’s evidence that the claim form was submitted to the defendant by the plaintiff’s broker.[85]
[84]CB 397 and 424
[85]T47
77 In submissions, Mr Langmead submitted that even if the claim form was false as pleaded, the defendant had not proved that the form was falsified by the plaintiff with the intention of defrauding the insurer. I reject this submission. As I say, I infer the necessary intention from all of the evidence. The plaintiff knew that the damage to the Ferrari would only be met by the insurer under the policy if a licenced driver was driving the Ferrari at the time it was damaged. He knew that he did not fit that description but Mr Harrison did. I find it was for that reason that the claim form falsely described Mr Harrison as the driver of the Ferrari at the time of the collision. The plaintiff made the false claim knowingly to induce the defendant to pay under the policy.
78 In making findings about the facts and the intention of plaintiff and Mr Harrison in relation to these matters, in particular an intention to have the insurer pay out under the policy where the true circumstances excluded a payout, I am conscious of the provisions of s140(2) of the Evidence Act 2008. I am comfortably satisfied the evidence enables me to make these adverse findings.[86]
[86]Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-362 per Dixon J (as he then was); Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170
79 Mr Langmead also submitted that Counsel for the defendant, Mr Hanson, had made submissions on the evidence about the plaintiff’s intention when the claim form was lodged without putting what was submitted to the plaintiff in cross-examination. Mr Langmead submitted this amounted to a breach of the well-known rule in Browne v Dunn.[87] I reject that submission. What was submitted was clearly raised on the pleadings and denied in reply. The plaintiff here cannot be said to have been taken by surprise or of having been deprived of the opportunity of giving answering evidence.
[87](1893) 6 R 67
80 The defendant has paid to the plaintiff $36,066.00 towards the costs of repairs to the Ferrari.[88] It has also paid $12,712.90 to legal practitioners appointed to represent the plaintiff in the Magistrates’ Court proceeding.[89] In its counterclaim, it seeks an order for repayment of these amounts on the basis that when the payments were made the defendant acted on the information in the claim form and therefore it made, the payment and incurred the costs of the legal practitioners in the mistaken belief that it had a legal obligation to do so under the terms of the policy.
[88]T52-54
[89]Exhibit 5 and evidence of Pyett at T184
81 By its Amended Reply and Defence to Counterclaim, the plaintiff denies there was a mistake but if there was, it pleads the mistake was one of law. Since David Securities Pty Ltd v Commonwealth Bank of Australia Ltd,[90] the relevance of any distinction between mistake of fact and mistake of law has not been part of the laws of Australia.
[90](1992) 175 CLR 353
82 Here, the witness, Pyett, gave evidence about the payments made by the defendant as a result of the claim, and that evidence was not challenged. I find the defendant paid the sum of $36,066.00 towards the costs of repairs to the plaintiff’s Ferrari and, $12,712.90 to legal practitioners appointed to represent the plaintiff in the Magistrates’ Court proceeding, in the mistaken belief that it had a legal obligation under the policy to do so. In fact, because the Ferrari was being driven by the plaintiff at the time of the collision and, the plaintiff did not then hold a drivers licence, any liability of the defendant to cover the plaintiff for loss under the policy was specifically excluded.
83 Accordingly, the plaintiff’s claim relating to the Ferrari must fail. The defendant (plaintiff by counterclaim) must succeed under paragraphs 1 to 20 of the Counterclaim. There will be orders on the Counterclaim that the plaintiff (defendant by counterclaim) pay to the defendant (plaintiff by counterclaim) the sums of $36,066.00 and $12,712.90, together with interest.
84 I turn to the first part of the counterclaim relating to the Mercedes.[91] There is no dispute between the parties that the plaintiff made a claim[92] or, that the costs of repairs was assessed by Mr Planko and agreed in the sum of $7,732.40[93] or, that the defendant paid this sum to Western General Body Works.
[91]Counterclaim CB 20 paragraphs 21 to 28
[92]Claim No CADF032860
[93]Exhibit 9
85 In order to prove its claim the defendant relies entirely on the evidence of Mr Planko that when he re-assessed the same car after the theft claim was lodged, the damage to the Mercedes still had not been repaired.[94]
[94]T195-197
86 The defendant’s case is that the repairs were not carried out and the plaintiff, having accepted payment, breached his duty to act with the utmost good faith towards the defendant, his insurer, imposed by s13 of the Act.
87 I am not satisfied the defendant has proved its case for this part of the counterclaim. Whilst I accept Mr Planko as a witness of truth, given that the Mercedes had been taken from the plaintiff and, in his words “thrashed”,[95] suffering extensive damage such that he described it as a “repairable write off”, I cannot find that the Mercedes was not repaired. The damage seen on the second inspection observed by Mr Planko could have been caused whilst the vehicle was being thrashed. There was an intervening act such that I cannot say the repairs were not undertaken.
[95]T196-197
88 For this reason, the claim in paragraphs 21 to 28 of the Counterclaim is dismissed.
89 But even if I am wrong about this, there is another reason why this part of the counterclaim must fail not argued by Mr Langmead. Paragraph 23 of the Counterclaim pleads that the invoice given by Western General Body Works[96] was an invoice for “repairs purported to have been undertaken”.[97] I have examined the invoice closely. Nowhere does it represent that the repairs have been carried out as pleaded. On the contrary, the total on the first page only purports to be an “Estimate”.[98] I would reject this part of the Counterclaim on this basis alone, for it is at the heart of the pleaded argument that the sending of the invoice was a breach of the duty of good faith.
[96]Exhibit G CB 560-562
[97]CB 20
[98]CB 20
90 The final part of the Counterclaim relates to the “theft claim” so-called. The defendant claims for the costs and expenses incurred by it in investigating the theft claim made by the plaintiff for the theft of the Mercedes before the theft claim was withdrawn by the plaintiff. The amount of this claim is $4,977.87. There is no issue about the amount of the claim which was proved through the evidence of the witness Pyett who produced a computer printout listing the expenses.[99] That evidence was not challenged.
[99]CB 652 and see the evidence of the witness Pyett at T188
91 The defendant also claims this sum as a breach of the good faith duty in s13 of the Act.
92 It is common ground that in reporting the car stolen, the plaintiff did not tell the insurer the full story. In the claim form, the plaintiff informed the insurer “Vehicle stolen from 84 Gordon Street, Footscray on approximately Thursday 29th November 2012 and Friday 30th November”.[100] The first page of the claim form recorded that the time the vehicle was taken was “Unknown”. It reasserted that the vehicle went missing between the dates 29 to 30 November, 2012.
[100]CB 591
93 In fact this was all untrue, and the plaintiff knew it to be so. He knew that the vehicle had in fact been taken by persons known to him from his workplace using the keys to the vehicle. When the vehicle was taken, it was captured on CCTV footage.[101] The persons who took the Mercedes did so after threatening violence to the plaintiff and I accept his evidence on this point that he may have been in fear of his life. It was for this reason that he did not reveal the true circumstances of the Mercedes being taken by others, either to the police[102] or to the insurer. Both had been told the Mercedes had been stolen by unknown offenders and by unknown means.
[101]T66
[102]Compare CB 590-592 with CB 599
94 In paragraph 30 of the Counterclaim, the defendant (plaintiff by counterclaim) stated that “The Mercedes was not subject to theft, either as set out in the Mercedes theft claim or at all”.[103] In my judgment, the defendant has also failed to prove its case for this part of the Counterclaim.
[103]CB 21
95 Although the evidence clearly shows that what the plaintiff said to the insurer in the claim form was clearly not true, the evidence does show that the vehicle was taken from the plaintiff in a robbery. Robbery is a species of theft. It has the added element of the making of a threat. I can see nothing in the policy that excludes liability to the insurer where the vehicle insured is taken in circumstances of a robbery. The pleading in paragraph 30 of the Counterclaim is critical to the defendant’s claim in this regard and is not made out on the evidence.
96 For this reason, the claim in paragraphs 29 to 34 of the Counterclaim is dismissed.
97 I will hear Counsel on the form of the orders and costs.
98 The orders I propose are as follows:
(1) The plaintiff’s claim is dismissed.
(2) There be judgment for the defendant (plaintiff by counterclaim) on paragraphs 1 to 20 of the Counterclaim in the sum of $48,778.90, together with interest otherwise the counterclaim is dismissed.
(3) The plaintiff pay the defendant’s costs of and incidental to the claim (including reserved costs) and, three-quarters of the defendant’s costs of and incidental to the counterclaim (including reserved costs). Absent agreement, such costs to be taxed by the Costs Court on the County Court Scale.
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