Telac v Helweh
[2022] VMC 20
•7 July 2022
IN THE MAGISTRATES’ COURT OF VICTORIA
AT MELBOURNE
Case No. L11623871
MICHAEL TELAC
Plaintiff
and
ALI HELWEH
Defendant
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MAGISTRATE: | J. P. Foster |
WHERE HELD: | Melbourne (Online) |
DATE OF HEARING: | 21, 22, 23, 24, 28 February 2022 |
DATE OF DECISION: | 7 July 2022 |
CASE MAY BE CITED AS: | Telac v Helweh |
MEDIUM NEUTRAL CITATION: | [2022] VMC 20 |
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Standing to bring claim - Owner of Vehicle – Bailment
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APPEARANCES: | COUNSEL | SOLICITORS |
| For the Plaintiff | Mr A Strauch | John Curtain & Associates Pty. Ltd. |
| For the Defendant | Mr K Oliver | William Roberts Lawyers |
HIS HONOUR:
BACKGROUND
In this proceeding, the Plaintiff claims:
a.net loss of the value of his motor vehicle of $33,620 (being the assessed pre-accident value of $41,620 less the salvage sum received of $8,000);
b.assessment fee incurred of $495.00;
c.replacement vehicle cost of $58,612.40; and
d.Stamp Duty and Transfer fees on Net loss of vehicle of $1,796.39.
The Defendant says, amongst other things, that:
a.he does not admit that the Plaintiff is the owner of the vehicle, as alleged in the Statement of Claim;
b.the vehicle is not an economic write-off. In fact, the vehicle is economical to repair and could have been repaired and back on the road within 5 days;
c.even if the vehicle was an economic write-off, the Plaintiff is not impecunious. Therefore, the Plaintiff ought to have purchased a replacement vehicle within 30 days; and
d.even if the Plaintiff was impecunious, the Plaintiff acted unreasonably by disposing of the vehicle to a salvage company with unseemly haste and failed to take basic steps to satisfy the Defendant’s insurer as to the proper basis of the Plaintiff’s claim.
KEY ISSUES
Various questions arise for determination by the Court.
Firstly, does the Plaintiff have standing to bring these proceedings or otherwise an entitlement to recover loss and damage?
Secondly, was the damaged motor vehicle uneconomical to repair and hence a write off?
Thirdly, if the vehicle was in fact economical to repair, did the Plaintiff nevertheless act reasonably in relying upon the assessment by an independent expert informing him that it was uneconomical to repair and hence a write off?
Fourthly, did the Plaintiff act reasonably in mitigating loss and damage by hiring a replacement vehicle?
Fifthly, if the Plaintiff acted reasonably in mitigating loss and damage by hiring a replacement vehicle, what rate of hire reflects his loss and damages?
Sixthly, if the Plaintiff acted reasonably in mitigating loss and damage by hiring a replacement vehicle, what duration of hire reflects his loss and damages?
Seventhly, did the Plaintiff commit a fraud in making a claim or otherwise giving evidence that he himself purchased the vehicle and/or he himself was the driver of the vehicle at the time of the accident?
Eighthly, did the Plaintiff act reasonably in disposing of the wreck once informed by an independent assessor that it was uneconomical to repair and hence a write off?
Ninthly, if the Plaintiff acted unreasonably in disposing of the wreck, of what consequence is that action to the Claim before the Court?
FINDINGS
Does the Plaintiff have standing to bring these proceedings or otherwise an entitlement to recover loss and damage?
The Statement of Claim asserts the Plaintiff is the owner of the subject vehicle.
The Notice of Defence ‘does not admit’ the allegation.
The Plaintiff was therefore required to establish ownership in this proceeding.
The Defendant cross examined the Plaintiff at considerable length on the issue of ownership.
The alternative hypothesis which arose on the evidence, was that the Plaintiff’s father was the owner of the vehicle.
This hypothesis arises, amongst other things, because the certificate of registration reveals the vehicle to be registered in the Plaintiff’s father’s name.
That alternative hypothesis was not an unreasonable line of enquiry for the Defendant to pursue in circumstances where the Plaintiff’s own lawyers, by a “Notice to Admit Authenticity of Documents” dated 5 October 2020, required the Defendant to admit:
“1. VicRoads registration certificate of registration number 1RC9LM evidencing ownership of the subject vehicle.”[1]
[1] Courtbook 21.
The certificate of registration attached to the Notice to Admit, contained a document in the name of Mirko Telac, the Plaintiff’s father.[2]
[2] Courtbook 22.
It is common ground between the parties that the certificate of registration does not, of itself, evidence ownership.
Yet here were the Plaintiff’s own lawyers asserting that very thing about a document which undermined the Plaintiff’s standing to bring the claim as owner of the vehicle.
A VicRoads Vehicle Registration document before the court also reveals that Mirko Telac (as applicant), on 6 February 2020, signed a document declaring that:
a.“the information in this form and related supporting documents is true, correct and complete, and the applicant understands the privacy statement.”;
b.“the applicant is entitled to be recorded as the registered operator because the applicant owns or is legally entitled to manage this vehicle.”; and
c.“the applicant takes full responsibility for any loss, damage or claim caused by any false statement or misrepresentation made on this declaration, and the applicant indemnifies VicRoads and holds it harmless in respect of any such loss, damage or claim.”[3]
[3] Courtbook 553.
The declaration in ‘b’ in the preceding paragraph is particularly noteworthy.
The Plaintiff conceded in cross examination that his father was an honest man.
Despite this documentary evidence before the Court, the Plaintiff’s father was not called to give evidence by the Plaintiff.
The Defendant invites this Court to draw a Jones v Dunkel[4] inference on account of Mirko Telac’s unexplained absence.
[4] (1959) 101 CLR 298 at 320 (‘Jones v Dunkel’).
The rule operates where there is an unexplained failure by a party to give evidence, to call witnesses or to tender documents or other evidence. In appropriate circumstances, this may lead to an inference that the uncalled evidence would not have assisted the party.
In RHG Mortgage Limited v Rosario Ianni[5] the court reiterated that the circumstances for drawing a JonesvDunkel[6] inference are found where an uncalled witness is a person presumably able to put the true complexion on the facts relied on by a party as the ground for any inference favourable to that party. The three conditions to be applied are:
a.first, whether the uncalled witness would be expected to be called by one party rather than the other;
b.secondly, whether his or her evidence would elucidate the matter; and
c.thirdly, whether his or her absence is unexplained.
[5] [2015] NSWCA 56.
[6] Jones v Dunkel (n 4).
The rule is complex and unless the appropriate circumstances are present, the court will not be bound to draw the adverse inference. Moreover, where the inference is drawn, the rule cannot be used to fill gaps in the evidence or to convert conjecture into suspicion: “[t]he failure [to call a witness] cannot fill gaps in the evidence, as distinct from enabling an available inference to be drawn more comfortably”.[7]
[7]Jagatramka v Wollongong Coal Ltd [2021] NSWCA 61 at [49]; Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361 at [64]. See J D Heydon AC, Cross on Evidence, 12th edn, 2019, LexisNexis, Sydney at [1215].
In the present case:
a.Mirko Telac would be expected to be called by the Plaintiff;
b.Mirko Telac’s evidence would elucidate the matter of ownership of the vehicle and explain VicRoads documentation which declared that Mirko Telac “owns or is legally entitled to manage this vehicle”; and
c.Mirko Telac’s absence is unexplained.
Accordingly, I would draw the inference that the uncalled evidence from Mirko Telac would not have assisted the Plaintiff.
Nothing in evidence before me, suggests to me that I ought to determine that the Plaintiff’s father made a false declaration in the VicRoads Vehicle Registration document.
I note that the Plaintiff gave evidence that:
a.he used the vehicle exclusively;
b.he purchased the vehicle for himself;
c.he paid $20,000 for the acquisition of the vehicle;
d.he withdrew $14,000 in cash preceding the purchase of the vehicle for $20,000; [8]
e.he caused and funded the transaction at VicRoads to effect the transfer of registration;[9] and
f.his father paid to him a refunded portion of the VicRoads registration fee.[10]
[8] Courtbook 342 entry on 16 January 2020.
[9] Courtbook 341 entry on 11 Feb 2020.
[10]Courtbook 349 entry on 19 November 2020 entitled “VicRds Dad” $720.00
However, my assessment of the totality of the Plaintiff’s evidence is very poor.
The Plaintiff was evasive on a number of important occasions in cross examination. His evidence was prone to run off on tangents in response to simple questions put by counsel for the defendant. The Plaintiff could not remember important details about the circumstances of the registration of his vehicle in his father’s name. Yet he was later able to remember important details with great precision.
The Plaintiff’s evidence left me with the firm impression that he would say anything that would support his case without regard to the truth of the matter.
The Plaintiff’s evidence concerning the circumstances in which the vehicle came to be registered in the Plaintiff’s father’s name (namely that he left his licence at home on the day he visited VicRoads and therefore he arranged for his father to sign the VicRoads documentation instead) was unconvincing and I reject it.
I say the above, bearing firmly in mind the difficulties associated with giving evidence in the new “online” court environment.
In my view, the Plaintiff’s substandard evidence does not rise to a level which satisfies me, on the balance of probabilities, that he is the owner of the vehicle.
That, together with the Jones v Dunkel[11] inference that I make by reason of the failure of the Plaintiff to call his father as a witness (when, by reason of the VicRoads documentation in evidence, it was quite plain that he should do so) leaves the Plaintiff in a position where he has not made out paragraph 1 of the Statement of Claim.
[11] Jones v Dunkel (n 4).
The Plaintiff, in my view, brought his father along with him to VicRoads to arrange registration on the vehicle in the Plaintiff’s fathers name because that registration then accorded with the true owner of the vehicle.
The Plaintiff’s father made the declarations on the VicRoads registration form that he did, because that declaration was truthful and accorded with the Plaintiff’s father being the true owner of the vehicle.
Some discussion took place in closing submissions, concerning the issue of whether the Plaintiff would have standing as bailee.[12]
[12] See also Plaintiff’s closing submissions at [3].
In essence the Plaintiff sought to contend that:
a.if the Court determines that the Plaintiff’s father owned the vehicle then the law of bailment would be invoked;
b.the law of bailment is clear in that, as a bailee in possession at the time of the tort, the Plaintiff has standing to claim against the tortfeasor. This follows from the general principle of law that possession gives title against a stranger/wrongdoer;[13] and
c.the Plaintiff was the driver of the vehicle when the Defendant committed the tort and no evidence was called by the Defendant to refute that fact.
[13] See Halsbury’s Laws of Australia 40-5. See also Peters v Kilmurray (1989) 5 SR (WA) 258. See also The Winkfield [1902] P. 42 (C. A.).
The Plaintiff did not plead bailment in the Statement of Claim.
In closing submissions, I suggested that the Plaintiff give consideration to amending the Statement of Claim to plead standing in bailment.
After standing the matter down to allow further discussion between counsel, and after further discussion before me, the issue of bailment was not pressed further by the Plaintiff.
That being the case, I am of the view that the Plaintiff does not have standing to bring a claim against the Defendant.
By reason of this finding, it is not necessary for me to address the further matters arising in paragraphs 5 to 12 of this judgment.
For the record however, had it been necessary for me to do so, I would prefer the view of the Defendant’s expert over the view expressed by the Plaintiff’s expert.
The Plaintiff’s expert, Mr Martin, of Martin Assessing Service assessed:
a.the pre accident value of the vehicle at $41,620;
b.salvage of $8,000; and
c.a net loss of $33,620.
Despite assessing the vehicle as a ‘total loss’, or an economic write-off, (which would occur if the cost of repairs exceeded the pre-accident value less salvage value), the ‘Cost of Repair and Comments’ section of his assessment report specified the approximate cost of repairs at $32,000.[14]
[14]Courtbook 8.
In other words, Mr. Martin assessed the vehicle to be a ‘total loss’ despite his specified cost of repairs not exceeding the pre accident value less salvage value.
An attempt was made to submit a report from a repairer (Rapid Smash Repairs) to buttress the evidence of Mr. Martin, but that quote, produced 14 months after Mr. Martin’s assessment, was not permitted to be tendered.
After extensive cross-examination, my view of Mr. Martin’s evidence was poor in that:
a.important photos showing the damage to the vehicle (particularly the chassis rails) were not taken;
b.photos that apparently were taken and forwarded to Daniels Recovery Service[15] were somehow redacted from the final version of Mr. Martin’s expert report used in the proceeding;
c.six photos were taken of the rear offside of the vehicle;
d.no photos were taken (or at least produced) concerning the rear nearside of the vehicle;
e.no photos were taken (or at least produced) concerning the damaged chassis rails;
f.Mr. Martin had a practice of deleting electronic copies of photos taken by him as soon as such photos were developed;
g.Mr. Martin (in a belated effort to bump up the costs of repairs) asserted for the first time during the course of giving evidence, that extra costs would be added to the $32,000 assessed cost of repairs due to “uncertainties”; and
h.much of the cost assessed by Mr. Martin would be attributed to repairing or replacing the chassis rails in circumstances where the photographic evidence produced to the Court did not demonstrate any damage to the chassis rails whatsoever.
[15]An entity handling the claim on behalf of the Plaintiff prior to the involvement of the Plaintiff’s lawyers.
The Defendant’s expert, Mr. Naude of Australian Accident Management Commercial (AAMC) assessed:
a.the pre accident value of the vehicle at $37,300;
b.salvage of $10,550; and
c.the cost of repairs at $10,156.07 (inc GST).[16]
[16] Courtbook 457 & 467.
Mr. Naude did not assess the vehicle as a “total loss”, or an economic write-off, as the cost of repairs did not exceed the pre accident value less salvage value.
Mr. Naude’s evidence, in stark contrast to that of Mr. Martin, was straightforward, understandable, detailed and believable.
Mr. Naude states in his exert report and I accept, as a fact, that:
The vehicle has impact damages to the right-hand body area. The estimated cost of repair to this vehicle is approximately $10,000. There is no evidence supplied of structural damage suffered by the vehicle. In my experience, this kind of rear step fitted to the vehicle absorbs the impact to the rear chassis rails. The towbar mounting bolts appear not to have moved. The right hand quarter panel appears repairable, however, I have made allowance to replace the panel in my estimated cost of repairs which is attached to the report.[17]
[17] Courtbook 457.
Mr. Naude rejected the view expressed by Mr. Martin that there had been damage to the chassis rails. I accept Mr. Naude’s evidence in this regard.
I make these findings notwithstanding the fact that Mr. Naude’s report is based upon a ‘desktop assessment’ and Mr. Martin’s report is based upon a physical inspection.
I note that my view expressed above is buttressed by ‘Linkt’ reports showing that the subject vehicle was recorded as being driven extensively all over Melbourne in the days which followed the accident and disposal of the vehicle for salvage.[18]
[18]Courtbook 628-693 (especially at Courtbook 683 which shows the vehicle being driven on 18, 19 and 20 March 2020 shortly after the vehicle was disposed of by the Plaintiff to Victoria Salvage on 18 March 2020 – see Courtbook 15).
This tends to suggest that the vehicle did not suffer the chassis rail damage suggested by Mr. Martin.
If it were otherwise, it would be safe to infer that the purchasers of the salvage (Victoria Salvage) would not be driving all over Melbourne in an unroadworthy and dangerous vehicle.
Had it been necessary for me to do so, I would have determined that the vehicle was economical to repair (for a cost of $10,156.07 (inc. GST)) and hence was not a write off.
Conclusion
By reason of the matters set out above, I dismiss the claim.
I will hear from the parties on the question of costs.
Magistrate J. P. Foster
7 July 2022
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