Colmenares v Neilson (Civil Dispute)
[2022] ACAT 51
•15 June 2022
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
COLMENARES v NEILSON (Civil Dispute) [2022] ACAT 51
XD 419/2021
Catchwords: CIVIL DISPUTE – cost of hire of replacement vehicle – delay in carrying out the repairs – whether vehicle hired was unduly expensive
Cases cited:Arsalan v Rixon [2021] HCA 40
Rixon v Arsalan [2019] NSWSC 1136
Tribunal:Senior Member A Anforth
Date of Orders: 15 June 2022
Date of Reasons for Decision: 15 June 2022
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) XD 419/2021
BETWEEN:
PABLO COLMENARES
Applicant
AND:
EMILY NEILSON
Respondent
TRIBUNAL:Senior Member A Anforth
DATE:15 June 2022
ORDER
The Tribunal orders that:
The respondent to pay the applicant the sum of $10,773.40 within 28 days of this order.
………………………………..
Senior Member A Anforth AM
REASONS FOR DECISION
In July 2020 the respondent ‘rear ended’ the applicant’s vehicle causing damage. The damage to the applicant’s car was repaired under insurance. The applicant’s vehicle was a Toyota MR2 which is apparently an up-market prestige vehicle.
The applicant claimed from the respondent the cost of hiring a replacement vehicle from 6 October 2020 to 23 February 2021 at a cost of $10,701.90 plus the tribunal lodgement fee of $71.50. The replacement vehicle was a Kia Rio S which apparently is also an up-market prestige vehicle similar to the damaged vehicle.
The respondent denied the claim on the basis that:
(a)the hire car was unnecessarily expensive;
(b)the hire car was hired for an excessive period of time; and
(c)the applicant had another vehicle open to him during the period of the hire.
The chronology of events is a as follows:
29 Jul 20The accident
6 Oct 20The applicant took his damaged vehicle to Hume Bodyworks and hired the replacement vehicle;
19 Oct 20The repairer ordered the necessary body parts;
22 Oct 20The parts wholesaler (Janrule Parts) dispatched two of the ordered parts to the repair and notified that the other two items would have to be ordered from Japan which would take eight weeks.
On 28 April 2021, the applicant filed his application in the tribunal. On 26 May 2021 the respondent filed her response denying the claim.
The matter was listed for conference on 25 June 2021 and was adjourned to permit further negotiations. The matter failed to settle at the resumed conference on 19 July 2021 and was listed for hearing on 1 October 2021. Orders were made for filing of evidence, submissions and the issue of subpoenas.
On 27 September 2021 the applicant filed:
(a)A timeline of events.
(b)An invoice from Compass Corp Pty Ltd for the cost of the hire of the car for 141 days at $69 per day, delivery of $65 and GST coming to a total of $10,773.40.
(c)An invoice from Janrule Parts dated 22 October 2020.
(d)An undated invoice from Hume Bodyworks for the sum of $5,202.66. The invoice itemised the parts at $1,936.09 plus GST and labour of 34.92 hours at $80 per hour.
(e)Photographs of the damage to the rear of the car.
(f)A statement from Frank Shields, motor vehicle loss assessor prepared on behalf of the respondent, dated 24 September 2021. He reviewed the repair quote from Hume Bodyworks, the photographs of the damage and the replacement parts. He opined that the damage was minor to the rear bumper bar and its absorbers and the rear panel plastic garnishes. He opined that car was roadworthy after the accident; and that it should not have taken Hume Bodyworks 34.92 hours of labour.
On 1 October 2020 Mr Green, solicitor appeared for the applicant and Mr Koyuncu, solicitor appeared for the respondent. Mr Koyuncu asserted that the applicant’s car was roadworthy following the accident and in fact the applicant had been driving it around town for months after the accident and before it was put in for repairs. The respondent had not filed any evidence in response to the procedural directions including any evidence from witnesses concerning the applicant driving the car. The applicant asserted that the car was not used in that interim period between the accident and the repairs.
The matter was adjourned with orders that the applicant file and serve a statement and evidence concerning the use of his car during the interim period and the respondent file and service evidence in reply from witnesses on that issue. The applicant was to file and serve evidence of his effort to expedite the repairs and a statement from Hume Bodyworks explaining the high costs in parts and labour for what the photos show to be a minor dint or scratch.
On 10 August 2021 the respondent issued a subpoena to Hume Bodyworks, which responded on 25 August 2021 with a set of photographs of the car in various states of repair.
On 10 November 2021 the matter was before the Tribunal. Mr Green and Mr Koyuncu appeared. The applicant had not complied with the orders of 1 October 2021 and sought a further adjournment. By consent, the adjournment was granted to 8 December 2021 on the condition that the applicant comply with the orders of 1 October 2021 by 24 November 2021 and pay the respondent’s costs thrown away of $270.
On 7 December 2021 the applicant filed a statement. The applicant asserted:
(a)The delay with Hume Bodyworks undertaking the repairs arose because Hume Bodyworks had been approved by the applicant’s insurer, but were busy due to hail storms and COVID-19 restrictions.
(b)In the interim period he did not drive the car at all.
(c)There were delays in Hume Bodyworks obtaining parts from Japan.
(d)Christmas and New Year then intervened.
(e)The parts did not arrive from Japan until 9 February 2021.
(f)The repairs were completed and the applicant collected his car on 23 February 2022.
(g)His car was a prestige make and model.
(h)At the time of hiring the replacement vehicle, the applicant had three other cars registered in his name: one was used by his wife, one was in parts and the third was stored in Sydney for his use when there.
On 8 December 2021 Mr Green and Mr Koyuncu both appeared. The respondent pointed out that the applicant had again failed to comply with the timetable for evidence. The respondent had not been served with the applicant’s statement until 5pm the previous day and had not considered it or had a chance to file their evidence in response.
By consent, the matter was again adjourned to permit the respondent time to file and serve her evidence. The parties were given a timetable for then filing submissions on the law and the costs of the adjournment were reserved.
On 10 January 2022 the respondent filed her submissions. Those submissions contended:
(a)The applicant should have used his Sydney based car.
(b)The original vehicle was roadworthy and should have been used except for any immediately repair period following receipt of parts, estimated at nine days.
(c)The applicant had failed to mitigate his losses in accordance with the High Court decision in Arsalan v Rixon [2021] HCA 40.
(d)The applicant failed to diligently pursue the repair.
(e)The evidence of Mr Shields should be accepted.
On 25 January 2022 the applicant’s solicitor filed a statement from Mr Ralveski, solicitor, setting out a series of media cuttings relating to a hail storm in Canberra in January 2022 and a series of media release on COVID-19 isolation, which were both said to have delayed the repair work of Hume Bodyworks. These media cuttings extended over 200 pages.
On 27 January 2022 Mr Green and Mr Koyuncu again, both appeared. The applicant gave evidence in the form of adoption of his statement and was then cross examined. In that evidence the applicant conceded that his vehicle had some minor damage before the accident in question, but not in the area of the impact of the accident.
The applicant conceded that he did not look for other repairers after he had been told that Hume Bodyworks could not do the job until 6 October 2020. He said that he only drove the damaged vehicle on two or three occasions before it was put in for repairs. This included driving the vehicle to the repairer. The car was running ‘rough’ and fumes were coming into the cabin. The applicant did not ask the repairer to seal the cabin against fumes while waiting for repairs. He checked with the repair on a weekly to fortnightly basis about the delay and this caused annoyance to the repairer.
The applicant is a member of an enthusiast car club and wanted his vehicle back as soon as possible. He said that there were personal issues involved in being seen in public in a vehicle that was not commensurate with his standing in the community and the club.
Mr Shields was called to give evidence. He adopted his statement of 24 September 2021 and was cross examined. He conceded that any gap in the boot that admitted fumes may not be visible from inspection outside the car. His evidence was based on photographic inspection only. He said that once the parts were received the repairs should only have taken five days and most of that would be for painting. Mr Ralveski’s statement was admitted into evidence unopposed.
The repairer was not called to give evidence.
The parties made final submissions. For the applicant it was submitted that he was not a mechanic and had to rely on the advice he received from the repairer. He was constrained to use Hume Bodyworks because it was the repairer approved by his insurer. The applicant had no control over the hail storm, COVID-19 or the delay in obtaining the parts from Japan. The applicant did attempt to hurry the repair, but was rebuffed.
The applicant denied that he had used the damaged vehicle during the period after the accident and before taking the vehicle to the repairer. The respondent asserted to the contrary, but adduced no evidence in support of that assertion.
The applicant relied upon the decision in Arsalan v Rixon to the effect that he was entitled to hire a vehicle of the same ‘prestige’ level as that which was under repair.
The respondent submitted that the applicant had no ‘need’ of the expensive car he hired and should have hired one at a more modest cost, taken his wife’s car or used the car he had stored in Sydney. She submitted that the delay in having the repairs carried out was the applicant’s fault and the length of the delay was unnecessary.
The matter was reserved for final decision in writing.
Consideration of the issues
The applicant relied upon the decision of the High Court in Arsalan v Rixon [2021] HCA 40 handed down on 8 December 2021, which was on point in the present case. In this case the appellant was liable for the damage and repair of the respondent’s vehicle which was an expensive ‘prestige’ European car. During the period of the repairs, the respondent hired another similar ‘prestige’ car and sought to recover the hire charges from the appellant. The appellant denied the claim and contended that there was no ‘need’ for the respondent to have hired a ‘prestige’ car and so the additional hire cost incurred was not part of the respondent’s reasonable mitigate of its losses. The case made it’s way from the Local Court through the NSW Court of Appeal to the High Court. The majority of the Court of Appeal found for the appellant.
The High Court held that any concept of ‘need’ no longer formed part of the common law in Australia. The respondent was entitled to the replacement hire cost of an equivalent vehicle. Equivalence was to be determined by reference to personal and emotional factors that include the respondent’s desire that he drive a ‘prestige’ vehicle and “the intangible benefits of their prestige cars.”
The High Court did not directly address the length of time for the hire of the replacement vehicle and who is responsible for delay in repairs. The judgment spoke only of a “reasonable period of time” for the repairs.
The Tribunal is constrained to adopt the ratio of the High Court and therefore to accept that the applicant had the right to hire a vehicle of same level of prestige as the damaged vehicle. He did not have to take his wife’s car or use the Sydney based car.
The presently constituted Tribunal is not personally convinced that the ratio of the High Court constitutes sound public policy, and if not bound by the High Court ratio, would have preferred the ratio of the NSW Supreme Court in Rixon v Arsalan [2019] NSWSC 1136 in which the court held that the respondent’s right was limited to a vehicle that met his ‘needs’ during the repair period and that the concept of ‘needs’ did not extent to narcissistic considerations. The ratio of the High Court seems to bake socioeconomic stratification into the concept of reasonable mitigation.
Nevertheless, the Tribunal is bound to find that the applicant was entitled to hire the car that he chose, and did not have to recover the Sydney based car to use.
The second issue is the length of time over which the replacement car was hired. On its face it seems an inordinate length of time for what was a minor damage. The applicant rightly pointed out that he was not a mechanic and in any event was bound to accept the direction of his insurer in in which repairer was used. This determined the identity of the insurer to be Hume Bodyworks.
The prestige nature of car meant that there was not a supply of parts in Australia and the parts had to be obtained from Japan. This fact was not in dispute.
Then the issue moves to the time taken by the repairer. The respondent points to the hail storms and COVID-19 as sources of delay. The repairer was not called to give evidence on this point. Nevertheless, these are matters of common general knowledge and were both the subject of explicit evidence by the applicant.
The evidential onus rests on the respondent to establish the unreasonable period of delay in the repairs. Although the Tribunal has some reservations on the point, in the end it cannot be satisfied on the balance of probabilities that the delays were deliberate or negligent; or not otherwise consistent with the need to obtain the parts from Japan; the diary of the repairer; and the restrictions imposed by COVID-19.
For these reasons the Tribunal finds for the applicant and orders the respondent to pay the applicant the sum of $10,701.90 plus the tribunal lodgement fee of $71.50 giving a total of $10,773.40 within 28 days of this decision.
An issue of costs was reserved above. If the respondent seeks to press a claim for those costs then it should apply to do so within 28 days or agree those costs with the applicant as a set off of the judgment.
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Senior Member A Anforth
| Date of hearing: | 27 January 2022 |
| Solicitors for the Applicant: | Mr J Green, Primus Law |
| Solicitors for the Respondent: | Mr O Koyuncu, MCK lawyers |
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