Wong v Maroubra Automotive Refinishers Pty Ltd

[2015] NSWSC 222

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Wong v Maroubra Automotive Refinishers Pty Ltd; Ayres v Maroubra Automotive Refinishers Pty Ltd [2015] NSWSC 222
Hearing dates:	9 March 2015; 10 March 2015
Date of orders:	16 March 2015
Decision date:	16 March 2015
Jurisdiction:	Common Law
Before:	McCallum J
Decision:	That judgment be entered for the plaintiff in an amount to be calculated in accordance with these reasons. That the defendant’s cross claim be dismissed. That the amounts paid into court pursuant to the orders of 2 April 2015 be released to the plaintiff.
Catchwords:	TORTS – detinue – where plaintiffs’ cars towed to defendant repairer’s premises following motor vehicle accident – whether repairer can exercise lien over cars or otherwise withhold them pending payment of towing and storage fees claimed by repairer – assessment of damages in detinue
Legislation Cited:	Fair Trading Act 1987 (NSW), s 53 Tow Truck Industry Act 1998 (NSW), s 62 Tow Truck Industry Regulation 2008 (NSW)
Cases Cited:	Anthanasopoulos v Moseley [2001] NSWCA 266; 52 NSWLR 262 Grant v YYH Holdings Pty Ltd [2012] NSWCA 360 Griffiths v Kerkemeyer (1977) 139 CLR 161 Holier v Rambler Motors (AMC) Limited [1972] 2 QB 71 Nibili v Sweeting & Denny (WA) Pty Ltd (1989) Aust Torts Rep 80-258 Stapley v Towing Masters Pty Ltd [2009] NSWCA 382 Stapley v Towing Masters Pty Ltd [2009] NSWSC 139 Wong v Maroubra Automotive Refinishers Pty Ltd; Ayres v Maroubra Automotive Refinishers Pty Ltd [2014] NSWSC 1548
Category:	Principal judgment
Parties:	Wong Proceedings: Sharon Wong (Plaintiff/First Cross-Defendant) Maroubra Automotive Refinishers Pty Ltd (Defendant/Cross-Claimant) Insurance Australia Ltd t/as NRMA Insurance (Second Cross-Defendant) Ayres Proceedings: Salome Ayres (Plaintiff/First Cross-Defendant) Maroubra Automotive Refinishers Pty Ltd (Defendant/Cross-Claimant) Insurance Australia Ltd t/as NRMA Insurance (Second Cross-Defendant)
Representation:	Counsel: S G Habib SC and K Oliver (Plaintiffs/Cross-Defendants) J T Svehla (Defendant/Cross-Claimant) Solicitors: William Robert Lawyers (Plaintiffs/Cross-Defendants) Diamond Conway (Defendant/Cross-Claimant)
File Number(s):	2014/850612014/86368
Publication restriction:	None

Judgment

1. HER HONOUR: These proceedings raise an interesting question as to the contractual significance of having a car towed to a particular repairer following a motor vehicle accident. In two separate proceedings, each plaintiff was the owner of a car insured by Insurance Australia Ltd (NRMA). Each car was damaged in an accident in or near Maroubra. In each case, the tow truck driver attending the scene of the accident nominated the premises of a particular repairer, Maroubra Automotive Refinishers Pty Ltd, as a destination to which the car could be towed and the owner consented to that course. In each case, the owner did not ultimately request Maroubra Automotive Refinishers to undertake any repairs.

2. The two proceedings raise a common issue as to the defendant repairer’s entitlement in that circumstance to withhold possession of the cars until payment by the owner or NRMA of towing and storage fees claimed by the repairer. The plaintiffs contend that the repairer wrongly refused to deliver up possession of the cars upon demand and that the repairer is liable in detinue. By way of cross-claim, the repairer seeks payment of the disputed towing and storage fees from each plaintiff and, alternatively, from NRMA.

3. Although the amounts involved are small, the proceedings were said to be properly brought in this Court since they raise an issue as to the application of an industry code to which a number of insurers (including NRMA) are parties. On that basis, Davies J (in an earlier judgment in the proceedings) was persuaded that it would not be appropriate to transfer the proceedings to the Local Court: Wong v Maroubra Automotive Refinishers Pty Ltd; Ayres v Maroubra Automotive Refinishers Pty Ltd [2014] NSWSC 1548 at [43].

4. The two proceedings were heard together and most of the evidence was admitted as evidence in both proceedings. This judgment determines both claims and both cross claims.

5. The circumstances giving rise to each claim were largely undisputed. The following summary is drawn principally from an agreed chronology provided by the parties.

Background in the Ayres Proceedings

6. Ms Ayres was the owner of a 2004 Toyota Corolla. That car was damaged in a collision in Randwick (which is near Maroubra) on Christmas night in 2013. Within minutes of the collision, a tow truck arrived at the scene (unsolicited). The tow truck operator was Network Auto Care. The tow truck driver asked Ms Ayres whether she need to have her car towed. She said:

"Yes, but my car is insured with NRMA. Don't I need to call them to arrange the towing?"

7. The tow truck driver said:

"No, you don't have to call your insurer. We're approved by the NRMA. We will simply tow your vehicle and then call the NRMA on your behalf so they can organise the repairs."

8. As required under the legislation which governs the highly-regulated tow truck industry, the tow truck driver provided Ms Ayres with a quotation and a Towing Authorisation Form. The quotation was for a total towing fee of $418 (described as an estimate). The total was itemised to include a base tow fee of $294, a subsequent tow fee of $86 (if applicable) and GST of $38.

9. The quotation document also quoted for storage fees after 72 hours of $18.50 per day, stating:

"Safe storage of your vehicle in an approved holding yard for the first 72 hours at no cost. Storage fees after 72 hours must not exceed the prescribed maximum storage fee."

10. The other document which the tow truck driver completed was the Towing Authorisation Form, which is an approved form issued by NSW Government Transport Roads & Maritime Services. Importantly, the form requires the owner to specify the destination to which a vehicle is to be towed. In the form provided to Ms Ayres for her signature, the tow truck driver nominated the destination as "Maroubra Auto Refin. 41 Rhodes Street, Hillsdale". The form stated:

"If the destination above is not accessible at time of the tow the vehicle will be taken into my holding yard [address provided] and then to the destination above as soon as practicable after it becomes accessible."

11. Ms Ayres read both documents and asked whether she had to pay anything. The tow truck driver said:   

"No. We send our invoice for the towing to NRMA and NRMA will pay the invoice directly. You don't have to pay anything."

12. Ms Ayres said:

"And this form says my vehicle is going to be towed to Maroubra Auto."

13. The tow truck driver said:

"Yes, that is where the vehicle is going. It is a nearby repair shop."

14. Ms Ayres said:

"Ok well, if you are approved by NRMA, then please go ahead with the tow."

15. Ms Ayres signed the Towing Authorisation Form acknowledging the driver’s authority to tow her car to the destination identified.

16. The defendant’s premises were full that day and did not open again until 7 January 2014. Accordingly, the car was towed to Network Auto Care’s holding yard. Incidentally, that yard is owned by Mr Schumak, who is the principal of the defendant, but that is irrelevant to the contractual arrangements in issue in these proceedings.

17. That night, Ms Ayres contacted NRMA to lodge a claim and arrange a hire car. Her insurance policy permitted her to have unlimited days car hire up to $88 per day. Ms Ayres informed NRMA that her car had been towed from the collision by Network Auto Care. An NRMA employee informed Ms Ayres that NRMA would arrange to have the damage assessed. She was told that, if the damage could be repaired, she could choose the repairer.

18. Ms Ayres' car was towed to the defendant’s premises on 27 December 2013.

19. Ms Ayres did not at any stage request or authorise the defendant to assess her car or quote for any repairs. She had no direct dealings with the defendant and did not agree to pay the defendant any fee for towing or storage. The defendant did not in fact carry out any repairs to her car.

20. On 7 January 2014, NRMA informed Ms Ayres that they had not had access to the vehicle in order to have the damage assessed. NRMA nonetheless arranged to have the car towed to Ms Ayres’ chosen repairer.

21. On 16 January 2014, a representative of the towing operator retained by NRMA, Combined Towing, notified NRMA that the defendant was refusing to release the car. An entry was made on NRMA’s internal database as follows: “holding yard will not release NRMA vehicles” (annexure G to the affidavit of Brian Faust sworn in the Ayres proceedings). It will be necessary to return to the issue of the defendant’s alleged refusal to release the car.

Background in the Wong Proceedings

22. Ms Wong was the owner of a 2013 model Mazda. That car was damaged on 11 January 2014 when another car collided with it while it was parked in Maroubra. Within minutes, a number of tow trucks arrived (again unsolicited). One driver approached Ms Wong and told her that, if the car was insured, the cost of towing would be paid by the insurer and that she would not have to pay anything now. He said “we will just claim the cost of the tow from your insurance company”.

23. Ms Wong said she was insured with NRMA. She informed the tow truck driver that she wanted to choose where her car would be repaired and wanted to know where it would be taken.

24. The tow truck driver said that, as it was a Saturday, no repairers would be open. He said he would take the car to their holding yard over the weekend and that, on Monday, it could be taken to her chosen repairer. He said she would just need to call to arrange this, and “it will all be paid for by your insurer”.

25. After contacting NRMA, Ms Wong contacted the tow truck driver and asked him to tow her car. He gave her a document quoting towing and storage fees (the fees were the same as were quoted to Ms Ayres). He also gave her a Towing Authorisation Form which specified “41 Rhodes St Hillsdale” (the address of the defendant’s premises) as the destination. The form contained the same endorsement as to taking the vehicle to the tow truck operator’s holding yard if the destination specified was not accessible at time of the tow.

26. The tow truck driver said to Ms Wong:

“Like I said before, we’ll be taking the vehicle to our holding yard over the weekend, and you can call us on Monday to tell us which repairer you need it towed to. Your insurer will pay for everything.”

27. Ms Wong did not at any stage request or authorise the defendant to assess her vehicle or provide a quote for any repairs. The defendant did not in fact carry out any repairs on Ms Wong’s car.

28. On 16 January 2014, NRMA arranged for Combined Towing to collect Ms Wong’s car from the defendant’s premises to tow it to Ms Wong’s selected repairer. The car was not released to Combined Towing on that date. An email to NRMA from Combined Towing (annexure E to the affidavit of Brian Faust sworn in the Wong proceedings) reported:

“Maroubra Towing (sic) refusing to release car or supply payout until all other outstanding payments resolved”.

Defendant’s refusal to release the cars

29. Notwithstanding the position taken in correspondence by the principal of the defendant, Mr Schumak (annexure K to the affidavit of Brian Faust sworn in the Ayres proceedings), it is beyond dispute that, when Combined Towing went to collect the cars on 16 January 2014, the defendant refused to release each car pending payment of fees claimed in respect of that car. The plaintiffs’ case is that the defendant went further in that it refused to release the cars pending payment of all amounts then in dispute between the defendant and NRMA.

30. In his affidavit sworn in the proceedings, Mr Schumak addressed that incident in terms which did not grapple with the accuracy of the report from Combined Towing in the email quoted above. Mr Schumak’s evidence was that, after being advised of a conversation between a member of his staff and Combined Towing that day, he instructed his staff member to inform Combined Towing that the car would be released “upon payment of the towing charges and storage fees that had then accrued”. The defendant did not call any evidence as to what was said by the staff member to Combined Towing either before or after that instruction was given.

31. I am satisfied that, as recorded in the report to NRMA from Combined Towing, the defendant refused to release Ms Wong’s car to Combined Towing on 16 January 2014 pending payment of not just the amount claimed for towing and storage of Ms Wong’s car but other amounts which the defendant then claimed were outstanding and payable by NRMA. The position appears to have been the same in respect of Ms Ayres’ car, according to the internal file note set out above (annexure G to the affidavit of Brian Faust sworn in the Ayres proceedings). In any event, even if that is wrong, in light of the conclusion I have reached in these proceedings, it does not matter whether the amount against payment of which the defendant held each car included amounts unrelated to that particular car.

Formal demands

32. On 21 January 2014, the NRMA sent the defendant a formal demand signed by Ms Wong requiring the immediate release of her car. The defendant did not release the car.

33. On 11 February 2014, NRMA provided a hire car to Ms Wong gratuitously. There was no contractual entitlement to a hire car in her contract of insurance with NRMA.

34. On 13 February 2014, NRMA sent the defendant a formal demand signed by Ms Ayres requiring the immediate release of her car. The defendant did not release the car.

Commencement of current proceedings

35. On 21 March 2014, the current proceedings were commenced. By consent, on 2 April 2014, the Court ordered the release of Ms Wong’s vehicle within 24 hours of security in the sum of $1,424.50 (inclusive of GST) being paid into Court. The Court made identical orders in respect of Ms Ayres’ vehicle, save the security amount being $2,116.40 (inclusive of GST). The funds were paid into Court and, on 9 April 2014, the plaintiffs’ vehicles were released by the defendant to Combined Towing and towed to the plaintiffs’ chosen repairers.

36. On 10 April 2014, NRMA’s assessor determined that Ms Ayres’ car was a total loss. She has since been paid her full entitlement under the policy.

37. On or about 3 May 2014, the repairs to Ms Wong’s car were completed. On 5 May 2014, Ms Wong collected her car from her chosen repairer and returned the hire vehicle.

38. The statement of claim in each case claims the following declaratory relief:

1. A declaration that the defendant is not and never was entitled to exercise a lien over the plaintiff’s vehicle with respect to:

1. Unpaid towing fees claimed for towing the plaintiff’s vehicle to the defendant’s premises;

2. Unpaid storage fees claimed for storing the plaintiff’s vehicle at the defendant’s premises.

39. The plaintiffs also sought orders for delivery up of the two cars but that issue was resolved by the orders entered by consent shortly after the proceedings were commenced. The plaintiffs also seek damages, interest and costs.

40. Strictly speaking, the defendant does not contest the proposition articulated in the declaratory relief sought. The defendant does not, in terms, claim to have or to have had at any point an entitlement to exercise a lien over either car. Rather, the defence appears to be that each plaintiff was under a contractual obligation not to demand release of her car until payment of the amounts in question.

Plaintiffs’ claims

41. The elements of the cause of action in detinue are:

1. that a person having an immediate right to possession of a chattel has made a lawful demand for the return of possession of the chattel; and

2. that the demand was not complied with in circumstances where it constitutes a wrongful refusal to deliver up the chattel:

3. see Grant v YYH Holdings Pty Ltd [2012] NSWCA 360 at [43] per McColl JA; Tobias AJA agreeing at [98] (the separate judgment of Basten JA, which incidentally is interesting for its consideration of the law relating to slaves, implicitly proceeds on an acceptance that those are the elements).

42. It is clear beyond dispute that, in each of the present cases, the plaintiff made a demand for the return of possession of her car and that the demand was not complied with. There was a suggestion in cross-examination that the demands were factually inaccurate (and perhaps not lawful demands on that account). However, I do not think there was any substance in that suggestion. Each demand states “I have not agreed to pay you any cost, fee or expense in respect of my vehicle including storage costs, towing fees, quoting fees, administrative charges or labour”. The proposition appeared to be that each demand was inaccurate in that respect because each plaintiff acknowledged an obligation to the tow truck driver to pay towing fees and storage costs in accordance with the quotation for towing services provided by the tow truck driver at the scene of the accident.

43. For the reasons explained later in this judgment, I do not think it is even arguable that agreement to pay those fees to the tow truck driver amounted to agreement to pay any amount to Maroubra Automotive Refinishers.

44. The critical contention raised by the defendant was that neither plaintiff had an immediate right to possession of her car so as to sustain a lawful demand. It was also contended, or at least suggested, that the refusal to deliver up the cars was not wrongful but that alternative characterisation was based on the same circumstances.

45. The legal premise for those contentions was not made entirely clear on the pleadings. Rather than attempt to summarise the argument, it is appropriate to set out the relevant paragraphs of the defence in full:

7.   In answer to paragraph 5, 6 and 7, the Defendant says that it retained the vehicle, pending proper arrangements being made with the Plaintiff and/or IAL for its release and upon payment of towing charges and storage charges that had been incurred in relation to retaining the vehicle upon the Defendant's premises.

8.   In further answer to paragraphs 5, 6 and 7 of the Statement of Claim, the Defendant says that IAL was a voluntary signatory to the Motor Vehicle Insurance and Repair Industry Code of Conduct (the "Code of Conduct") whereby IAL agreed in its dealings with repairers, including the Defendant, that it would not remove any motor vehicle from the Defendant's premises without notifying the Defendant in advance and compensating the Defendant for any legitimate and reasonable towing and storage costs associated with the vehicle.

9.   By agreeing to be bound by the Code of Conduct, IAL, subrogated to the rights of the Plaintiff, was required to pay the legitimate and reasonable towing and storage costs associated with the vehicle before having it removed from the Defendant's premises.

10.   In circumstances where the Plaintiff had agreed to pay for the reasonable towing and storage charges pursuant to the towing authorisation and IAL, subrogated to the rights of the Plaintiff, agreed under the Code of Conduct not to remove the motor vehicle without compensating the Defendant for any legitimate and reasonable towing or storage costs associated with the vehicle, the Defendant says that the retention of the- vehicle was lawful and proper so as to disentitle the Plaintiff from any entitlement to damages as alleged, or at all.

11.   The Defendant relied on lAL's representations that it would be bound to the Code.

46. While the precise import of paragraph 7 is unclear, I did not understand the defendant ultimately to contend that it had a lien over the cars to secure payment of the fees claimed. In case my understanding is wrong in that respect, I should record my conclusion that the defendant was not entitled at any stage to exercise a lien over either car for any amount. The defendant did not undertake any repairs on either car and was not asked to do so at any stage. All the defendant did was to accept delivery of each car from a tow truck driver. The defendant had no direct dealings with either plaintiff; any anticipation that it might become the repairer of their cars was purely aspirational.

46. In the circumstances no artificer’s lien arose: Stapley v Towing Masters Pty Ltd [2009] NSWSC 139 at [72] per Palmer J (overturned by the Court of Appeal but not on that issue: see Stapley v Towing Masters Pty Ltd [2009] NSWCA 382).

47. In the absence of a lien, the basis for the contention that the plaintiffs did not each have an immediate right to possession of their cars is difficult to discern. The determination of the point sought to be raised by way of defence is complicated by the obscure language of the pleading, particularly in paragraphs 8 to 10 of the defence set out above. Those paragraphs appear to assert a species of inverted subrogation whereby, in reliance upon the principle that the insurer is entitled to stand in the shoes of the insured, it is said that the insured became bound by a discrete obligation of the insurer alleged to arise by reason of the code of conduct.

48. Perhaps implicitly acknowledging the difficulty of that proposition, the defendant sought to expand the defence in submissions at the hearing by reference to an alleged contract of bailment for reward. Specifically, it was contended that, as soon as the defendant accepted delivery of each car from the tow truck driver, a contract of bailment for reward or work and labour came into existence between each plaintiff and the defendant.

49. The alleged terms of the contract for reward were explained in written submissions in the Wong proceedings in the following terms (at para 42):

Part of the terms of the contract of bailment between Wong and [the defendant] were express, being those contained in the Towing Authorisation Form signed and dated by Wong and on the towing notice on the windscreen of Wong’s vehicle. Part were by conduct, namely the delivery of Wong’s vehicle by the tow truck driver…to [the defendant’s] premises. Part were implied by statutory effect [a reference to provisions of the Tow Truck Industry Act and Regulation set out elsewhere in the submissions] and otherwise by law and to give efficacy to the contract.

51. To the extent that the contract of bailment is said to have consisted in express terms stated in the Towing Authorisation Form and the towing notice, the argument cannot be right, in my view. The Towing Authorisation Form operates as a written direction by the owner of a car to a tow truck driver as to destination for the car. It is clear from the recitation of the facts above, which were not contested, that neither plaintiff specified the defendant as her chosen repairer. The address of Maroubra Automotive Refinishing was, in each instance, nothing more than an address for towing suggested by the tow truck driver. Each plaintiff consented to have her car towed to that destination but it cannot be inferred that, in doing so, she made any request to the defendant to undertake repairs.

52. The reliance upon “conduct” in the delivery of each vehicle to the defendant’s premises is misconceived, for the same reason. There was no objective basis for concluding that the object of delivering the cars to the defendant’s premises was to secure its services as repairer, or indeed to enter into a contract of bailment for reward. As noted on behalf of the plaintiffs, it would have been open to the defendant not to accept delivery of either car.

53. In my view, there are simply no circumstances from which it can be inferred that any contract of bailment for reward or work and labour came into existence at any point. The defendant submitted that there is authority for the proposition that the delivery of a motor vehicle to a repairer gives rise to a contract of bailment for reward or work and labour, citing Holier v Rambler Motors (AMC) Limited [1972] 2 QB 71 at page 74 per Salmon LJ and at 84 per Latey J; Nibili v Sweeting & Denny (WA) Pty Ltd (1989) Aust Torts Rep 80-258 at 68, 748 per Malcolm CJ and at 68, 751 per Brinsden J. However, as submitted by Mr Habib SC, who appears with Mr Oliver for the plaintiffs, each of those was a case in which were was an agreement for bailment clearly entered into by direct negotiation between the owner of the vehicle and the repairer. There is nothing of that kind in the present cases.

54. Separately, as indicated in the extract from the defendant’s submissions set out above, the defendant relied upon terms said to be “implied by statutory effect”, invoking provisions of the Tow Truck Industry Act 1998 (NSW) and the Tow Truck Industry Regulation 2008 (NSW). The detail of those provisions was set out in the defendant’s written submissions. In short, the proposition was that, since the scheme of the legislation that governs the towing industry (which is highly prescriptive) requires the specification of a destination for a vehicle to be towed, the specification by the plaintiffs in the present cases of the defendant’s address as the destination for their cars gave rise to an implication that the cars were to be towed there for the purpose of being stored safely for reward and for the purpose of obtaining a quote for repairs.

55. I do not think there is any substance in that contention. The legislation relied upon by the defendant regulates tow truck drivers. Compliance with that legislation cannot be said to inform the formation of a contract between the owner of a vehicle and a repairer. An express provision militating against the conclusion contended for by the defendant on this issue is s 62 of the Tow Truck Industry Act, which prohibits a person from obtaining or attempting to obtain another person’s authority for the repair by a particular repairer of a motor vehicle that has been involved in an accident before it is delivered to the place specified in the towing authorisation as the place to which it is to be towed.

56. The reason for that prohibition is obvious. It is for the protection of owners and the prevention of collusion between tow truck drivers and repairers. In my view, the contractual analysis contended for by the defendant in the present case is a transparent attempt to circumvent that aspect of the regulation of the industry. In each case, it was the tow truck driver and not the owner of the car who specified the defendant’s premises as the destination for the car. That is not to say that the plaintiffs did not, in each case, consent to the nomination of that address as the destination but simply to highlight the artificiality of the argument that a contract of bailment for reward or work and labour came into existence. I am not persuaded that any such contract came into existence at any stage.

57. In case my conclusion on that issue is wrong, it is necessary to consider the next limb of the defence (as developed in argument at the hearing). The argument was based on the fact that NRMA is a signatory to the Motor Vehicle Insurance and Repair Industry Code of Conduct. The Code is “an applicable industry code” for the purpose of s 53 of the Fair Trading Act 1987 (NSW). The defendant submitted on that basis that it is “mandatory and required to be complied with by insurers and repairers”.

58. Clause 4.2(e) of the Code provides:

“In their dealings with repairers in relation to repair work, insurers will:

….

(e)   not remove a motor vehicle from a repairer’s premises without notifying the repairer in advance and compensating the repairer for any legitimate or reasonable towing or storage costs associated with the vehicle and in compliance with relevant legislation …”

59. The term “repairer” is a defined term in the Code. Clearly, the defendant is capable of fulfilling the role of a repairer within the meaning of the Code. However, there is no basis for concluding that it fulfilled that role in either of the present cases, for the reasons already explained. Nor can it be concluded that the owners (or NRMA) were at any point “dealings with” the defendant “in relation to repair work”. That is fatal to the defendant’s argument in the present case.

60. Even if that is wrong, the defendant’s reliance upon the Code as informing the terms of the alleged contract of bailment for reward is, in my view, misconceived. The argument appears to be based on the following premises:

1. There is a contract of bailment for reward directly entered into between the owner and the defendant.

2. In accordance with the contract of insurance, the insurer is entitled to stand in the shoes of the insured owner in her dealings with the repairer.

3. The insured owner’s dealings with the repairer include an implied term that she will pay reasonable storage fees.

4. The insurer is bound by an industry code which prohibits it from collecting a vehicle without paying reasonable storage fees.

5. Accordingly, in order to give effect to the contract of bailment, clause 4.2(e) of the Code is imported into the contract as binding upon the insured owner.

61. In my view, with great respect to the ingenuity of Mr Svehla, the argument fails at every step. I have already explained my reasons for concluding that there was no contract of bailment for reward at all. There were simply no direct dealings between those persons and no circumstances from which a contract could be implied.

62. Lest it be thought that an implied contractual obligation to pay reasonable storage fees arises upon delivery of a car to a particular repairer, the simple answer is that no repairer is obliged to accept delivery of a car towed to its premises. The decision to do so is a commercial one, presumably informed by the prospect of securing the relevant job.

63. The next difficulty is that any obligation to comply with the Code is enforceable by the remedies conferred by the Fair Trading Act, not in contract. The implication of a term of the kind contended for by the defendant is directly inconsistent with the legal framework relied upon as giving rise to it.

64. Finally, even if that is wrong, and assuming for present purposes that the Code is capable of imposing a contractual obligation on insurers (and a correlative entitlement on repairers not to release vehicles pending the payment of fees), I think the notion that, by reason of the existence of a right in some circumstances to stand in the shoes of an insured, an insurer can infect her with its discrete legal obligations is difficult.

65. For those reasons, in my view the defence to the claim in detinue must fail. For the same reasons, the defendant’s cross claims must also fail. If my conclusion on that issue is wrong, I would note that the defendant did not put forward any basis for the calculation of the amount paid into court pursuant to the consent orders. It was not established what amount the defendant has in fact paid to the tow truck operators for towing fees. There was no evidence from which this Court could estimate the reasonable cost of storing the plaintiffs’ cars. In those circumstances, I have not been able to quantify the cross claims (which I otherwise would have done, in case I am wrong in my conclusion that they must be dismissed).

Damages

66. It remains to assess the plaintiffs’ damages in detinue. According to the researches of the parties, there is no authority directly on point as to the appropriate measure of damages in the case of a private motor vehicle wrongly detained.

67. Some guidance may be found in the decision of the Court of Appeal in Anthanasopoulos v Moseley [2001] NSWCA 266; 52 NSWLR 262. That was not a case in detinue. It was a case of negligent damage to property. The issue was whether the owners of cars used for private transportation (not for profit) which had been damaged in accidents could recover from the party at fault the cost of hiring another car while their own cars were being repaired. The plaintiffs had argued in the Court below that the cost of hiring a replacement car should be allowed on the basis of the principles stated by the High Court in Griffiths v Kerkemeyer (1977) 139 CLR 161. Implicitly rejecting that approach, the Court of Appeal held that the better analysis was that derived from a line of English authority to the effect that “injury to property which deprives a party of the use of the thing is compensable”: at [58] per Beazley JA; Ipp A-JA agreeing at [72] with additional reasons; Handley JA agreeing with both at [1].

68. As explained by Ipp A-JA in his Honour’s separate judgment, the general principles of the common law amply support the award of general damages for the loss of use of a non-income earning chattel in the case of negligent damage to the chattel. In reference to the plaintiffs’ contended analogy with the principles stated in Griffiths v Kerkemeyer, Ipp A-JA noted that the true basis of a Griffiths v Kerkemeyer claim is the need of the plaintiff for such services. Since the basis for assessing such damages is to compensate the plaintiff for a need created by the tortious conduct, the fact that such services have been provided gratuitously is irrelevant: at [79].

69. Ipp A-JA expressed the view that the true basis for damages for injury to a non-income producing chattel is also the plaintiff’s need: at [80]; Handley JA agreeing at [1]. His Honour expressed the opinion, in that context, that there was no substantive significance in the distinction between special and general damages: at [84]. Each plaintiff had established that they were dependent on their cars to satisfy their daily transport needs: at [73]. Where, by reason of that need, they were required to hire a replacement chattel, the damages were to be measured by reference to the market rate of hiring a replacement chattel: at [84].

70. I see no reason why the approach should be any different in a case in detinue.

71. The evidence in the Wong proceedings was that, since the contract of insurance did not allow for a replacement vehicle, Ms Wong used public transport for the period until NRMA provided a hire car gratuitously. Ms Wong said that was very inconvenient and that she needed the use of a car (plaintiff’s affidavit sworn 25 July 2014 at para 32). Although there was some cross-examination directed to that issue, that evidence was not successfully challenged. I am satisfied that Ms Wong needed her car to meet her daily transport needs. She is entitled to damages for the whole of the period from the date of failure to comply with the demand (24 January 2014) until 9 April when the car was released. Those damages should be calculated by reference to the market rate of hiring a replacement car, as evidenced by the hire rate in fact paid by NRMA when a courtesy car was provided.

72. For the reasons explained by Ipp A-JA in Anthanasopoulos, in my view the fact that a hire car was provided gratuitously by NRMA for part of that period is irrelevant to the liability of the defendant to compensate Ms Wong.

73. The evidence in the Ayres proceedings was that Ms Ayres needed her car to drive to work each day, to drive her son to school and otherwise to perform general errands (plaintiff’s affidavit sworn 25 July 2014 at para 26). I am satisfied that Ms Ayres needed her car to meet her daily transport needs. She is entitled to damages for the whole of the period from the date of failure to comply with the demand (16 February 2014) until 9 April 2014 when the car was released. Those damages should be calculated by reference to the market rate of hiring a replacement car, as evidenced by the hire rate in fact paid by NRMA when a car was provided in accordance with the contract of insurance.

74. The orders in each case are:

1. That judgment be entered for the plaintiffs in an amount to be calculated in accordance with these reasons.

2. That the defendant’s cross claim be dismissed.

3. That the amounts paid into Court pursuant to the orders of 2 April 2014 be released to the plaintiff.

75. As requested at the hearing, I will hear the parties as to costs.

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Amendments

07 April 2015 - Typographical error to heading on coversheet

Decision last updated: 07 April 2015