In legal circles, discussing past cases is often referred to as “telling war stories”. Like old soldiers, recounting battles fought and won is sometimes done for enjoyment but perhaps also to release the stresses retained by the lawyers involved in the encounters.
Motor Vehicle Recoveries
Over the years, E C Legal and its predecessors have handled many thousands of motor vehicle recovery cases. Most of them are about how much the reasonable cost of repairs should be. Our referring repairers want to do the best possible job for our clients and the offending party’s insurance company almost always disputes both the amount charged and / or the scope of works. But there are cases that are a bit unusual:
The Expensive Write Off
Our client was the owner of an expensive Bentley. It was being driven by a friend of the owner when it was hit in the rear while stationary at lights. The vehicle was uneconomical to repair and E C Legal sought damages in excess of $200,000. There was a hardfought dispute about the pre-accident value of the vehicle which ended up being determined by a judge in the County Court of Victoria. The judge determined that the preaccident value of our vehicle was slight slightly less than our client had asked for and far more than the offending party’s insurance company had offered. Costs were awarded in our client’s favour. An interesting part of this case was in the judge,s decision on how book values such as Red Book or Glass’s Guide should be used in the valuation of vehicles. (E C Legal ref 0019553)
Expert Evidence – a win on appeal in South Australia
Our client engaged E C Legal to recover her cost of repairs, assessing and hire vehicle costs from the offending party. Proceedings were brought in the Magistrates Court of South Australia. The offending parties insurer admitted liability but questioned the amount of our client’s loss. The Magistrate made an order in favour of our client but in accordance to the defendant’s expert evidence, which was at a significantly reduced quantum. The Magistrates made no consideration for the plaintiff’s expert evidence and provided inadequate reasons for his findings on contested matters.
E C Legal issued a notice of appeal on the basis that the award was inadequate as the Magistrate fell into error in approaching the assessment. Ultimately, the Supreme Court of South Australia allowed the appeal and struck out the first judgment. The matter was reverted back to the Magistrates Court for rehearing.
The insurer for the at fault party settled the plaintiff and paid all costs and interest for both the initial claim and the claim on appeal. This case shows the different processes between a third party recovery claim and a direct insurance claim. This case reinforced the fact that third party claims should be treated differently to direct insurance jobs and should be allowed a higher rate for the labour components etc. The issue of whether or not the assessors for both sides are regarded as experts was also addressed. Further, this case confirmed that the independent assessment fee is a reasonable foreseeable expense arising from the acts of the offending party which is recoverable at law. (E C Legal ref 0013743)
Our Client Loves His Car – A Typical Recovery
Our client was the owner of an early 1970s Holden Torana. It was his pride and joy and in top class condition. He was driving the car when another vehicle pulled out of a side street into his path, causing a collision. The other driver and their insurance company denied responsibility for the collision and claimed that our client had been speeding. Our client was concerned that his vehicle was going to be repaired back to the excellent condition it was before the collision. He did not have confidence that his insurance company would arrange for the repairs to be completed properly. E C Legal filed a claim on behalf of our client seeking damages in excess of $20,000, and defended our client when he was countersued by the other driver. At trial in the Magistrates’ Court of Victoria, the Magistrate ruled that the other driver was 100% at fault for the collision. Our client was able to have his vehicle repaired by the repairer of his choice. (E C Legal ref 0027331)
Insurers Not Paying
Taking All Avenues of Appeal
Our client engaged a builder to build three units on a residential building site in suburban Melbourne. The builder went broke and could not complete the job. Much of the work that the builder had done needed to be rectified. Our client made a claim on the builders warranty insurance. The insurer was a New Zealand company that no longer operated in Australia. Our clients claim was denied and our client made application to the Victorian Civil and Administrative Tribunal (VCAT) to compel the insurer to pay.
After perhaps 12 months in VCAT, our client was successful but the New Zealand insurer did not pay the amount ordered. E C Legal applied to have the judgment registered in the Supreme Court of Victoria and then transferred to the High Court of New Zealand. All of these steps were opposed by the New Zealand insurer. E C Legal prevailed at a judgment of approximately $300,000 was registered in the High Court of New Zealand.
The New Zealand insurer then appealed the decision of VCAT to the Supreme Court of Victoria. The appeal took over 12 months to be heard and the Supreme Court eventually ruled in our client’s favour.
In the end, our client received the full amount of the amount ordered in VCAT plus costs of $250,000. It would be expected that the insurer had spent more than this with their own lawyers and so this case illustrates the occasional practice of parties with significant funds attempting to exhaust the funds of the other party by taking all avenues of appeal. E C Legal was able to go the distance and in the end, due to the reluctance of the New Zealand insurer to act appropriately, they ended up spending perhaps $600,000 on a case that was only worth about $300,000 to begin with. (E C Legal ref 0014768)
Breach of Contract
Improper Cancellation of Contract
Our client operated a business providing training services and entered into an agreement with other training providers to source new students for those training providers.
The other training providers (effectively our client’s business partners) stopped allowing our client to register new students. The practical effect of this was that our client could not do the work it had agreed to. Our client had staff members being paid who were unable to complete their duties and suffered a loss as a result. E C Legal attempt to negotiate a settlement with the other training providers but this was unsuccessful in litigation was eventually commenced. The case was settled at mediation in a very successful result for our client. (E C Legal ref 0013519)
Former Staff Members
When the above case was settled, E C Legal was engaged to negotiate the termination of our client’s staff members who could no longer work. (E C Legal ref 0014090)
E C Legal has handled many claims where former staff members (and sometimes current staff members) raise a claim against our client.
Disputes Between Business Partners
Our client was the founder of the business that dealt in the emerging market in trading in carbon credits. In order to expand the business, three other partners joined. An agreement was struck for the incoming partners to purchase our clients share. For various reasons, including a change in the overall value of the sharemarket, partners did not complete the purchase of our clients share.
E C Legal was instructed to pursue the incoming partners for the missing purchase price. The case was going to be hardfought. One of the incoming partners was a lawyer and the others were well-versed in legal matters and well represented. A real concern was whether or not incoming partners – now defendants – had the capacity to pay for any judgment awarded against them. E C Legal did some investigatory work and formed the view that payment would be forthcoming.
The litigation eventually settled on the steps of the court and, after some effort to convince the defendants to part with their cash, our client was paid close to the full amount sought. (E C Legal ref 0007949)
Not Throwing Good Money After Bad
Our client had provided a loan of about $50,000 to a husband and wife to assist them with their business operations. The money was not repaid. E C Legal commenced investigations and found that the wife was bankrupt and that the husband did not appear to have any assets to meet any judgment debt. Our regretful advice was that our client would be throwing good money after bad to continue and we ceased further action. (E C Legal ref 0014715)
Resolution rather than Litigation
Our client is a boutique graphic design company owed $45,000 by a property developer. The graphic design company had provided services to and paid for printing costs on the developers behalf pursuant to a contract for service. The commercial developer received all the work completed including printed marketing material, then later denied it had ever approved costs incurred for final sign off and printing. E C Legal assessed the evidence and pinpointed communications received by our client proving agreement by the commercial developer. A commercial settlement was reached between the parties which were favourable to our client and trial was avoided. (E C Legal ref: 0026427)