Halima v Auto & General Services Pty Ltd

[2025] NSWCATCD 104

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Halima v Auto & General Services Pty Ltd [2025] NSWCATCD 104

Hearing dates:

28 May 2025

Date of orders:

5 August 2025

Decision date:

05 August 2025

Jurisdiction:

Consumer and Commercial Division

Before:

G Bassett, General Member

Decision:

The respondent, Auto & General Services Pty Ltd, is to pay the applicant, Ahmed Halima, the sum of $12,655.80 immediately.

Catchwords:

CONSUMER LAW — Consumer guarantees — Supply of services — Guarantee as to due care and skill — Misleading conduct at to the nature of services — Nature or characteristics of services —Unfair terms of consumer contracts

Legislation Cited:

Australian Consumer Law ss 18, 23, 60, 63(1)(b)

Fair Trading Act 1987 s 79

Category:

Principal judgment

Parties:

Applicant: Ahmed Halima

Respondent: Auto & General Services Pty Ltd trading as Budget Direct

Representation:

Applicant: self-represented (Interpreter Spanish)

Respondent: Ms Cook

File Number(s):

2025/00021120

Publication restriction:

Nil

REASONS FOR DECISION

Application and procedural history

1. On 17 January 2025, the applicant applied for an order for the respondent (“Budget”) to pay:

1. $16,750.00 as pre-accident market value (“PAMV”)

2. unlawful policy payments $570.78

3. personal effects $500.00

4. emergency transport $778.16

5. vehicle registration fees $580.54

6. “non-financial losses” $4,260.00.

2. In notes on the file at the conciliation hearing on 27 February 2025 the presiding member stated:

“Issues in dispute - jurisdiction: issues as to insurance assessment of motor vehicle damaged in an accident. Total claim $23,350. Questions as to whether this is a consumer claim - s 60 ACL relied on.”

Jurisdiction

3. Under s 79E(1) of the Fair Trading Act 1987 (“the Act”) the dispute involves an agreement that arises from a supply of services by Budget to the consumer applicant, being services to supply an insurance contract for applicant’s motor vehicle. The Act at s 79F(1)(f) specifies that “services” means the provision of insurance cover. The services were supplied in NSW as prescribed in Section 79K(1) of the Act. The proceedings have been brought within the 3-year limitation period prescribed under Section 79L. The claim is within the monetary limit of consumer claims to the Tribunal. At commencement of the final hearing the applicant clarified that he sought a total money order of $23,369.50. Under section 79N the applicant sought an order that requires a respondent to pay to the claimant a specified amount of money.

4. Section 28 of the Act stipulates that Australian Consumer Law (“ACL”) applies to the Tribunal’s jurisdiction. However, when asked to identify what sections of ACL were relied on the applicant stated he was relying on ss 18 (misleading and deceptive conduct), 23 (unfair contract terms) and 60 (consumer guarantee due care and skill).

5. Section 60 of the ACL states:

60 Guarantee as to due care and skill

If a person supplies, in trade or commerce, services to a consumer, there is a guarantee that the services will be rendered with due care and skill.

6. The applicant’s attention was drawn to s 63 of the ACL which states:

63 Services to which this Subdivision does not apply

(1) This Subdivision does not apply to services that are, or are to be, supplied under:

(a) ……..

(b) a contract of insurance.

7. On being advised that the s 60 consumer guarantee in relation to supply of services with due care and skill did not apply do contracts of insurance the applicant stated there was a contractual term obligating Budget to supply insurance services with due care and skill. Budget denied there was any such contract term.

8. At page 16 of the applicant’s documents lodged on 19 March 2025 is a copy of the contract for insurance relied on. The contract is for ‘Gold Car Insurance Policy - Low kilometres, type of cover comprehensive’ for a 2001 Land Rover Discovery. Start date was 16 September 2023 and it expired on 15 September 2024. Applicant was to pay a premium of $1,060.38 for the contract.

9. The applicant was given multiple opportunities to demonstrate any contractual terms to provide services with due care and skill. He was unable to do so.

10. The matter could only proceed as claim for breaches of ss 18 and 23 of the ACL.

Issues for determination

11. The application was not an opportunity for the applicant to reagitate the process and findings of the insurer to examine whether the insurer acted with due care and skill. For example, it is not an opportunity to examine whether the disputed write-off valuation of the vehicle was estimated with due care and skill by the insurer. It is not an opportunity for a rehashing of the facts and circumstances relating to processing of the claim, such as issue of standard-form text messages or to reexamine whether such processes were supplied with due care and skill.

12. The only thing that can be considered is whether the insurer engaged in conduct that was misleading and deceptive under s 18 of the ACL and whether any terms of the contract were unfair under s 23.

13. On examination of the written and oral submissions of the applicant early in the hearing it became clear that many of the facts and circumstances alleged related to breach of the impermissible s 60 consumer guarantee (in particular, see paragraph 3.1(e)(iii) and 3.1(e)(v) of applicant’s documents lodged 19 March 2025).

14. When running a hearing I am bound by s 38 of the Civil and Administrative Tribunal Act 2013 to proceed as follows:

38   Procedure of Tribunal generally

(1)  The Tribunal may determine its own procedure in relation to any matter for which this Act or the procedural rules do not otherwise make provision.

(2)  The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.

(3)……..

(4)  The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.

(5)  The Tribunal is to take such measures as are reasonably practicable—

(a)  to ensure that the parties to the proceedings before it understand the nature of the proceedings, and

(b)  if requested to do so—to explain to the parties any aspect of the procedure of the Tribunal, or any decision or ruling made by the Tribunal, that relates to the proceedings, and

(c)  to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings.

(6)  The Tribunal—

(a)  is to ensure, as far as practicable, that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings, and

(b)  may require evidence or argument to be presented orally or in writing, and

(c)  in the case of a hearing—may require the presentation of the respective cases of the parties before it to be limited to the periods of time that it determines are reasonably necessary for the fair and adequate presentation of the cases.

15. To properly assess the substantial merits of the case and to ensure the applicant understood the nature of proceedings limited to a claim under ss 18 and 23, I explained to the applicant that to properly consider their submissions only facts and material relevant to that limited claim ought be relied on.

16. Consequently, the applicant was given the opportunity to extrapolate any facts and circumstances claimed as breach of the impermissible consumer guarantee as a possible breach under ss 18 or 23. To give but one example, at paragraph 3.1(e)(i) of written submissions the applicant characterised the insurer’s failure to consider the value of the roof rack on the vehicle at the time of the accident in its own evaluation as a failure to provide insurance services with due care and skill. During hearing, this failure was presented as a deliberate deception with the insurer having “tampered” with the vehicle by removing the roof rack prior to valuation assessment to reduce the quantum of the assessment.

17. Having made those s 38 changes to conduct of the hearing the first issue for determination is whether any term of the contract ought be voided as the term was unfair.

18. Secondly, did the insurer who was obviously involved in trade and commerce, engage in conduct that was misleading or deceptive or was likely to mislead or deceive the applicant in its consideration of, and findings on the insurance claim?

Relevant legislation

19. Under s 18(1) of the ACL a person in trade or commerce must not engage in conduct that is misleading or deceptive or is likely to mislead or deceive.

20. Conduct must be in trade or commerce as it is in this case. Misleading conduct leads a consumer into error. Deceptive conduct may intend to deceive, though intention is not necessary to establish. It is sufficient for a consumer to be misled or deceived, such as by error, ambiguity, false or inaccurate information, silence on essential information, creation of a false impression such as using some other brand or alleging a false association with a well-known person or business. Such conduct may also include a misrepresentation which, either deliberately or unintentionally, induces a consumer to enter a contract they might not normally have accepted but for the misrepresentation.

21. Further, s 23 sets out the invalidity of terms of a consumer contract as follows:

23 Unfair terms of consumer contracts and small business contracts

(1) A term of a consumer contract or small business contract is void if:

(a) the term is unfair; and

(b) the contract is a standard form contract.

(2) The contract continues to bind the parties if it is capable of operating without the unfair term.

(3) A consumer contract is a contract for:

(a) a supply of goods or services; or

(b) a sale or grant of an interest in land;

to an individual whose acquisition of the goods, services or interest is wholly or predominantly for personal, domestic or household use or consumption.

(4) A contract is a small business contract if:

(a) the contract is for a supply of goods or services, or a sale or grant of an interest in land; and

(b) at the time the contract is entered into, at least one party to the contract is a business that employs fewer than 20 persons; and

(c) either of the following applies:

(i) the upfront price payable under the contract does not exceed $300,000;

(ii) the contract has a duration of more than 12 months and the upfront price payable under the contract does not exceed $1,000,000.

(5) In counting the persons employed by a business for the purposes of paragraph (4)(b), a casual employee is not to be counted unless he or she is employed by the business on a regular and systematic basis.

22. The legislation details the meaning of “unfair” as follows:

24 Meaning of unfair

(1) A term of a consumer contract or small business contract is unfair if:

(a) it would cause a significant imbalance in the parties’ rights and obligations arising under the contract; and

(b) it is not reasonably necessary in order to protect the legitimate interests of the party who would be advantaged by the term; and

(c) it would cause detriment (whether financial or otherwise) to a party if it were to be applied or relied on.

(2) In determining whether a term of a contract is unfair under subsection (1), a court may take into account such matters as it thinks relevant, but must take into account the following:

(a) the extent to which the term is transparent;

(b) the contract as a whole.

(3) A term is transparent if the term is:

(a) expressed in reasonably plain language; and

(b) legible; and

(c) presented clearly; and

(d) readily available to any party affected by the term.

(4) For the purposes of subsection (1)(b), a term of a contract is presumed not to be reasonably necessary in order to protect the legitimate interests of the party who would be advantaged by the term, unless that party proves otherwise.

23. Without limiting the discretionary scope of s 24, the ACL at s 25 further highlights examples of unfair terms as follows:

(a) a term that permits, or has the effect of permitting, one party (but not another party) to avoid or limit performance of the contract;

(b) a term that permits, or has the effect of permitting, one party (but not another party) to terminate the contract;

(c) a term that penalises, or has the effect of penalising, one party (but not another party) for a breach or termination of the contract;

(d) a term that permits, or has the effect of permitting, one party (but not another party) to vary the terms of the contract;

(e) a term that permits, or has the effect of permitting, one party (but not another party) to renew or not renew the contract;

(f) a term that permits, or has the effect of permitting, one party to vary the upfront price payable under the contract without the right of another party to terminate the contract;

(g) a term that permits, or has the effect of permitting, one party unilaterally to vary the characteristics of the goods or services to be supplied, or the interest in land to be sold or granted, under the contract;

(h) a term that permits, or has the effect of permitting, one party unilaterally to determine whether the contract has been breached or to interpret its meaning;

(i) a term that limits, or has the effect of limiting, one party’s vicarious liability for its agents;

(j) a term that permits, or has the effect of permitting, one party to assign the contract to the detriment of another party without that other party’s consent;

(k) a term that limits, or has the effect of limiting, one party’s right to sue another party;

(l) a term that limits, or has the effect of limiting, the evidence one party can adduce in proceedings relating to the contract;

(m) a term that imposes, or has the effect of imposing, the evidential burden on one party in proceedings relating to the contract;

(n) a term of a kind, or a term that has an effect of a kind, prescribed by the regulations.

Evidence of the parties

Evidence submitted / given

24. Parties submitted the following evidence:

1. applicant witness statement with annexures submitted on 23 March 2025

2. Budget chronology and documents submitted on 28 March 2025

3. further statutory declaration of the applicant sworn 21 March 2025.

25. Parties also gave oral evidence at hearing and were questioned on this evidence.

26. All this evidence has been considered in coming to this decision.

Conduct and terms challenged

27. At paragraph 1.3 of the applicant’s written submissions, it was submitted that Budget engaged in misleading and deceptive conduct by:

1. failing to accurately record information disclosed by the applicant

2. engaging in tactics altering the course of services rendered to result in outcomes favourable to Budget

3. failing to provide insurance services under the contract for five consecutive months contrary to obligations under the General Insurance Code of Practice parts 8.76 and 8.77 and pursuant to ACL section 221(h). At s 221(h) a court may have regard to the requirements of any industry code if the consumer acted on the reasonable a belief that the supplier would comply with that code

4. engaging in “cover up tactics” to claim its automated system generated messages were to be taken by a consumer as progress of a claim when in fact they were disingenuous

5. by failing to be able to locate the vehicle between 15 February 2024 and 24 April 2024 and engaging in tactics to shift responsibility for locating the vehicle to the applicant or blaming the applicant for any delays caused

6. relying on unfair contract clauses and conditions regarding emergency transport and accommodation to deny a claim for same

28. In relation to alleged unfair terms of the insurance contract the applicant alleged:

1. standard-form contract did not indicate methodology and conditions under which Budget accepts and records the odometer reading of the vehicle under the low-kilometre policy

2. Budget failed to record the odometer reading on the policy documents even though these were provided verbally by the applicant

3. Budget recording in its system automatically generated historical events that are not previewed to the phone calls or Internet link activities with the applicant.

29. Having considered all evidentiary material related to conduct and the fairness of contract terms, the issues agitated may be summarised as:

1. provision of odometer reading

2. insurer losing the vehicle / conduct and delay in processing claim including standard-form messages

3. insurer conduct in assessing value of vehicle

4. contract term relating to payment of accommodation and transport.

Evidence and findings of fact and law on allegations

Provision of odometer reading

30. The parties entered a standard-form consumer contract for motor vehicle insurance on 15 September 2021. A condition of the policy limited the applicant’s annual mileage to 5,000 kilometres. Recorded mileage at the time the contract was formed was 130,000 kilometres. Policy was subject to annual review and direct debit payments. A condition of the contract was for the consumer to supply an annual odometer renewal before renewal so the insurer could establish the vehicle fell within the low kilometre range.

31. The contract clause in relation to odometer reading disclosure stated:

As you’ve chosen a Low Kilometre Policy, you need to provide the odometer reading from your car. Not providing the reading within 21 days of your policy renewal date may result in an additional $1,000 excess should you make a claim. You will receive an SMS with a unique link you can follow to supply the information. Alternatively, you can call our automated odometer capture service on 1800 055 633.

32. Applicant said the odometer notification clause in the contract was unfair as it did not say how such data was to be provided. Applicant said Budget issued automatic policy renewals on 16 September 2022 and 2023 but did not document the applicant’s updated odometer readings despite the applicant providing the reading verbally by telephone. Applicant said that during the phone call he stated “I am still within 5000 kilometre odometer reading and I am around 140,000”. Budget’s renewal policy for September 2023 renewal showed reading was “not recorded”.

33. The applicant was involved in the accident on 4 January 2024. Between 5 and 7 January 2024 Budget issued excess payment requests totalling of $1,700.00, being $700.00 standard excess and an additional $1,000.00 excess alleging the applicant failed to provide an odometer reading within 21 days of the policy renewal in September 2023 via automated link generated by Budget and communicated to the applicant via email / SMS. The applicant disputed the $1,000.00 additional excess and further complaint with the Australian Financial Complaints Authority.

34. Budget maintained that its system accurately generated the request and found no recorded communication at the time of the 2023 renewal. In its documents were reminders sent to the applicant to indicate the kilometres dated 30 October 2023, 7 October 2023, 7 October 2022 and in 2021. Insurer evidence also showed the applicant did provide a service document showing that at the time the vehicle was serviced on 7 December 2023 the odometer reading was 141,200.00. On 22 January 2024 Budget was told by the applicant that he had provided the most recent odometer reading via phone call. Budget said that its consultant advised the applicant that there had been no online access of the policy between 27 August 2022 until the claim was lodged on 5 January 2024. Consequently, it was not possible the odometer reading had been updated online as Budget alleges was a requirement under the agreement. The consultant offered to waive the odometer reading if the applicant could supply service documents supporting a low kilometre reading.

35. I do not accept the odometer notification contract clause was unfair. It unambiguously and transparently set out in reasonably plain language the insured’s obligations to notify an essential data point relating to a low kilometre policy. This was an obligation on the insured in accordance with the intent of the contract. It was a necessary contract term to protect the legitimate interest of Budget to ensure that the insured remained within the 5000 kilometre use limit before renewing the policy. It did not cause financial detriment to the insured. On the contrary, it retained the benefit of lower policy amounts for a vehicle of low kilometre use.

32. Nor do I accept Budget engaged in misleading or deceptive conduct in not recording the applicant’s reading. On the evidence put to me I cannot make any finding whether the applicant notified his kilometre use or not 21 days prior to the September 2023 renewal. On the one hand, the applicant says he did make the notifying phone call. On the other hand, Budget can find no records of access under the policy agreement relating to notifications prior to that date.

33. But the issue of notification matters little for two reasons. First, Budget allowed the applicant to rectify their alleged notification deficiency by providing in December 2023 a service record for the vehicle showing the odometer reading. From this point Budget engaged in conduct to satisfy the applicant’s complaint that he ought not pay the $1,000.00 excess for want of providing the odometer reading. On 8 January 2024, the applicant was notified that any additional kilometre excess would be removed once the odometer reading was received. Secondly, even if I had been satisfied and that the consumer had been misled by the failure of Budget to record the odometer reading before September 2023 this was rectified by Budget when it did not pursue the excess claim from January 2024. In addition, the applicant has suffered no loss as the $1,000.00 excess was not required and the insurance claim proceeded.

Insurer losing the vehicle / conduct and delay in processing claim including standard-form messages

38. Applicant alleged Budget engaged in misleading or deceptive conduct when it lost track of vehicle location for 71 days between 15 February and 24 April 2024. Applicant also said that between 20 February 2024 and 24 April 2024 Budget did not communicate regarding processing of the claim. Applicant alleges misleading conduct was engaged in through issuing standard form-text messages (page 107-111, applicant’s documents) reminding him to book the vehicle in for a repair even though it was Budget that had delivered the vehicle to the repairer after the accident. The applicant said it was not his role to book the vehicle for repair. On Wednesday, 24 April 2024 Budget indicated in a text message the vehicle had been booked in with the repairer. Applicant said Budget stated he was the cause of further ongoing delays from that point. Applicant alleged that he received over 24 phone calls from the person where the vehicle was stored after the accident asking when the vehicle would be picked up. Applicant said he emailed that person but this document was not in evidence.

39. Applicant referred to clauses of the ‘General insurance code of practise’ to which Budget was obligated. He said that in progressing the claim Budget did not comply with code clauses 70-71 and 77 as follows:

70. We will tell you about the progress of your claim at least every 20 Business days.

71. We will respond to your routine inquiries about your claims progress within 10 Business days.

77. Our decision will be made within four months of receiving your claim, unless paragraph 78 applies. If we do not make a decision within that time, we will tell you in writing about our complaints process.

40. Clause 78 indicated circumstances where a claim might not be resolved within the four-month period. Those circumstances involve claims for extraordinary catastrophes, fraud, lack of response to Budget’s reasonable requests for documents or information about the claim, difficulties communicating with the claimant or when the claimant requests a delay in the claims process. In any of those circumstances the decision in relation to the claim would be made within 12 months.

41. The applicant said that after 24 April 2024 the next he heard in relation to the claim was the decision given by email on 17 May 2024. Applicant said he had not caused any delay. Applicant said he was not informed of progress of the claim down to the decision on 17 May 2024.

42. Budget relied on a detailed timeline with annexures of the insurance claim progress. Delay occurred up to 16 January 2024 while Budget confirmed blood alcohol test results carried out at the hospital the applicant attended after the accident. Hospital discharge papers had not mentioned blood results. On 24 January 2024, the applicant told a Budget consultant he would be making a complaint to AFCA regarding the excess waiver and odometer reading. On 14 February 2024 Budget received the blood alcohol results from police enabling it to authorise the claim the following day. An SMS message was sent confirming the claim authority and making a request for an assessment.

43. On 19 February 2024, a decision letter was sent the to the applicant. It highlighted the complaint regarding the odometer readings as being resolved by customer dispute resolution. It reiterated that no evidence was found about the applicant updating the odometer reading but offered to waive the $1,000.00 excess for the claim. The letter contained a timeline of events for processing the claim up to 15 February 2024.

In relation to alleged loss of the vehicle Budget gave evidence that from the time of the accident until 24 April the vehicle sat in the holding yard it was taken to after the accident while Budget was processing the claim. It said sending text messages to a claimant was normal practise. Normal practise also involved an applicant booking an assessment to initiate the assessment for a repairer and this was finally done by the applicant on 24 April 2024. Budget immediately arranged for pickup of the vehicle from the holding yard by the claims team so it could be processed by an assessor. Budget said the applicant must have had some conversation with a consultant to activate the claim and arrange pickup from holding yard. Budget said that once applicant acted on the text message of 24 April the claim was processed within 11 days, albeit not to the satisfaction of the applicant. The total loss settlement figure was sent on 17 May. On 20 May the applicant disputed the loss figure and complained of claim process in general.

44. I do not accept that Budget engaged in misleading or deceptive conduct in losing the vehicle or it attempted to cover up loss of the vehicle or failing to progress the claim in a timely manner.

45. There was no substantial breach of Clause 70 of the code as the 17 May 2024 decision on the claim was made within four months of the claim being lodged on 5 January 2024. In strict compliance the decision ought to have been made no later than 5 May 2024, so in circumstances where there were many delays the decision was given only 12 days outside the 4-month period.

46. Delays in processing the claim were a result of circumstances under clause 78 which allow the claim to be decided in 12 months. Multiple text messages were sent in March to the applicant indicating he needed to book the vehicle for repair to progress the claim. In the absence of any person at the holding yard giving evidence, I accept that the applicant would have been informed by that person that the vehicle had to go elsewhere for an assessment to be done to activate the repair process. On his own oral evidence, the applicant admitted he took the view that he did not think it his responsibility to book this repair. A stand-off resulted. However, the contract terms specifically referred to the process to be followed after an accident occurred. The insured must allow Budget to inspect the car at a suitable location before repairs are undertaken, or the damaged vehicle is sold. The insured was also to allow Budget to arrange for the car to be relocated or towed to a repairer or location nominated by Budget from the holding yard where it was held after accident.

47. In addition, delays were caused in processing the claim while the AFCA complaint about the issue of the odometer notification excess was resolved even though Budget had agreed to forego this charge and would progress the claim.

48. Regarding alleged loss of the vehicle by Budget, I am satisfied it was normal process for it to be held at the holding yard until the assessment booking was made. A consumer acting reasonably would have booked. There must have been some conversation for booking to occur. The applicant was at least also a contributor to delay by not process the claim while their complaint was handled regarding the odometer reading which had been waived in February anyway.

Insurer conduct in assessing value of vehicle

49. Applicant said Budget engaged in misleading and deceptive conduct to use lower research material to support a claim for a lesser PAMV. The applicant rejected Budget’s finding based on research the applicant carried out himself. Applicant also said the PAMV of Budget was misleading and deceptive as it failed to consider the value of roof racks that were on the vehicle at the time of the accident.

50. On 17 May 2024, Budget determined the accident resulted in a total loss of the vehicle and assessed its PAMV at $10,862.60. The applicant lodged a second complaint with AFCA on 12 July 2024 regarding the assessed value and the settlement process and assessment was increased. On 11 February 2025 Budget issued a settlement payment of $12,455.80 to the applicant. It was not accepted, and the applicant gave oral evidence he shredded the settlement cheque offered.

51. Applicant argued that the true PAMV was $16,750.00 as set out in his own research provided at annexure G of his documents for hearing. Research showed a vehicle with roof racks, photos of the interior prior to accident and market research from the Carsales website. Applicant also alleged conduct was misleading deceptive in relation to valuation of the vehicle as budgets initial valuation did not include the cost of a roof rack. Photos showed these items on the vehicle at the time of the accident. No evidence of the roof rack was shown in Budget’s initial market research documents evaluating the vehicle. Applicant claimed Budget deliberately removed this roof rack to lessen PAMV. However, the assessment was increased by $200.00 to allow value for the roof racks. Budget’s representative said he had never heard of any claim for value of canoes during processing of the insurance claim.

52. The final AFCA determination of the complaint regarding assessment was dated 19 December 2024. The determination found that the increased offer made by Budget in July 2024 as PAMV included an allowance for roof racks plus some stamp duty and transfer of the outstanding premium and included waiver of $1,000.00 excess payable. It was found to be a reasonable assessment. It said that settlement offer was calculated in accordance with the policy terms. It said the applicant had not provided documents to support claims made for damaged personal effects and accommodation costs. Overall, AFCA found:

The outcome is fair because the insurer has reasonably assessed its liability under the policy on the claim. As the insurance claim handling was reasonable and noting it’s $1000 excess waiver, it would be unfair to require the insurer to pay the refunds for compensation sought. The determination did state the complainant was entitled to $200 for the maximum daily payable for emergency transport.

53. The AFCA determination pointed out increasing amounts of assessment offered to the applicant after 17 May 2024 until the final offer in mid-July 2024. In assessing what weight ought to be given to the applicant’s own PAMV assessment the determination stated Budget’s basement was based “on an independent valuation by a company specialising in motor vehicle salvage and detailed investigations by a qualified assessor”. There had been an inspection of the vehicle under recognised industry guidelines and value comparison with like vehicles.

54. The determination specifically stated that though the applicant had identified at least one vehicle for sale at a higher price that was not enough to establish that Budget unreasonably assessed the PAMV let alone engaged in misleading and deceptive conduct in coming to that determination. The determination stated that the sale examples the applicant relied on were not comparable to those in Budget’s assessment because the applicant’s examples contained vehicles of differing ages. The AFCA determination also established the insurer can collect the full annual premium amount when a total loss payment is made. The AFCA determination also considered whether an award for compensation for non-financial loss ought be made if the insurer has unreasonably delayed processing the claim. The determination referred to the claim having been processed within the 4-month period I have referred to above. It found that the delay of some days was not unreasonable given the location of the accident and difficulties in obtaining applicant blood alcohol samples and other information from police.

55. I am not satisfied that the insurer engaged in any misleading and deceptive conduct in assessing the PAMV of the vehicle. The applicant was offered a higher assessment to account for the value of disputed roof racks. The insurer based its valuation on research of an independent valuer. I give more weight to that independent research then I do to the self-serving research of the applicant. The AFCA complaint investigation was also a process independent of either party and it came to essentially the same conclusions about whether the PAMV of the insurer was reasonable.

56. The contract for insurance also specifically stated that it was the role of the insurer to assess whether a vehicle was a total loss and assess the amount of total loss. It was a term for the insured to assess the PAMV. Budget did not engage in any deceptive or misleading conduct in assessing and attempting to pay the loss assessed as was their obligation under the contract terms.

Contract term relating to payment of accommodation and transport

57. In relation to the unfair terms alleged pursuant to s 23 of the ACL the applicant referred to a contract clause entitled “Emergency Transport and Accommodation” (page 27 Applicant’s documents) which stated:

“- if we pay a claim for damage to the car, we will also pay for the driver and occupants to be transported to the address where the car is normally kept at night. Where transport is unavailable, we will pay for the cost of their temporary accommodation.

The maximum cover under this section is the amount shown in PDS Part B. If your daily transport and accommodation costs are more than this amount, you will have to pay the additional costs”.

58. Applicant said he paid cash for accommodation and emergency transport costs. He alleged the contract term was unfair because it did not indicate receipts needed to be provided for any costs incurred. Absent receipts, Budget offered only $200.00 per the PDS limitation of $200.00 per day up to $1,000.00 for emergency transport and accommodation (page 39 Applicant documents).

59. It is true that the clause ‘Emergency Transport and Accommodation’ is silent as to the insured retaining receipts to prove costs claimed. The applicant was inferring that the clause was unfair due to this silence, and he was not required to provide such proof. He also said it was unfair as the clause did not indicate how receipts were to be submitted.

60. I do not accept the clause ought be voided for unfairness. The term expressly limits the insurers monetary liability for such costs. Any insured acting reasonably would know that if a claim were made for more than 1 day up to the $1,000.00 document evidence would need to be provided. The term was reasonably necessary to protect the legitimate interests of Budget so that insureds could not make unsubstantiated claims up to $1,000.00 absent any proof. If that had been the intent of the contract the limit absent such proof would have been set at $1,000.00 not $200.00. Even though not specifically stated, the requirement to keep records for expenditure beyond $200.00 was obvious to the insured. Without the requirement for proof of costs beyond one day and $200.00 an insured could unliterally make unsubstantiated claim beyond the limit.

Conclusion

61. For the reasons set out above, I am not satisfied the insurer engaged in misleading or deceptive conduct or that any of the contract terms ought be voided for unfairness.

62. But what order is appropriate? The applicant has admitted he has destroyed the money instrument (cheque dated 11 February 2024) by which Budget paid him the final settlement offer of $12,455.80. The only finding AFCA made in favour of the applicant was that $200.00 ought to have been paid under the limitation in the ‘Emergency Transport and Accommodation’. It is open to me to dismiss the matter. Yet if I do that in circumstances where the financial instrument of payment has been destroyed by the applicant, he runs the risk of receiving no money at all in respect of the insurance claim.

63. The most utile order is to make is another money order for the final settlement offer of $12,455.80 which was challenged in AFCA and determined on 19 December 2024. There was no evidence put at hearing that the final offer of Budget included $200.00 for accommodation and transport. I add that amount to the money order.

Order

64. I make the following order:

1. The respondent, Auto & General Services Pty Ltd, is to pay the applicant, Ahmed Halima, the sum of $12,655.80 immediately.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 14 October 2025