Louis v Allianz Australia Ltd [2003] ACTSC 48 (11 June 2003)

Last Updated: 15 August 2003

GRAHAM JAMES LOUIS v ALLIANZ AUSTRALIA LIMITED

[2003] ACTSC 48 (2003)

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No SCA 10 of 2003

Judge: Higgins CJ

Supreme Court of the ACT

Date: 11 June 2003

IN THE SUPREME COURT OF THE )

) No SCA 10 of 2003

AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: GRAHAM JAMES LOUIS

Plaintiff

AND: ALLIANZ AUSTRALIA LIMITED

Defendant

ORDER

Judge: Higgins CJ

Date: 11 June 2003

Place: Canberra

THE COURT ORDERS THAT:

1. The appeal be upheld.

2. The judgment of Magistrate Somes, handed down on 7 February 2003, be amended to

award $895.77 to the appellant, in substitution for the sum of $645.77 previously

awarded.

3. There be no order as to the costs of the appeal.1. This is an appeal from a decision of Magistrate Somes, which was handed down on 7 February 2003. In essence the matter concerned a claim by this appellant, against the respondent, arising out of damage to the plaintiff's (as he was before the magistrate) motor vehicle, a 1983 Mazda 929 sedan.

2. In essence, the dispute for the learned magistrate came down to a question as to what really was the value of the vehicle at the time when the damage occurred to it. Mr Louis contended that any damage that had been done to the vehicle exceeded the market value of the vehicle, and that he should be paid that higher amount, although he concedes that he would have to pay the excess. It was Mr Louis' contention that the value of the vehicle was considerably in excess of $1,000, which was the value ascribed to it by Mr Faithful, the loss assessor engaged by the insurer in Launceston.

3. There was, as Mr Louis rightly points out, conflicting evidence on the point. On the one hand there was the schedule of the RACT policy, which on 17 March 2000, it would appear, recorded that it had agreed the value of the vehicle at $5,000.

4. The defect in that contention is that one does not know: What the basis for that valuation was; for how long it was likely to be current; how it compared at that time with market conditions; or, what market conditions were at the time when the loss occurred (which was on 3 December 2001).

5. So whilst the RACT valuation was indeed, as Mr Louis contends, some evidence that would cause a critical look at the later evidence of Mr Faithful, (that it was worth $1,000 at that time), it would not have been sufficient to compel the magistrate to have so found.

6. The learned magistrate found that he accepted the evidence of Mr Faithful, despite the latter being seriously challenged, Mr Louis informs me, in cross-examination. But nevertheless, it was ultimately a decision for the learned magistrate as to what extent he accepted Mr Louis' evidence and whether he regarded Mr Faithful as a credible witness or whether he did not.

7. Unfortunately, I cannot second-guess that particular decision. I do not have Mr Faithful before me and I do not even have the transcript of his evidence, so it is impossible for me to say that the learned magistrate was wrong to accept Mr Faithful's evidence.

8. However, the learned magistrate also found that the insurer had determined to pay out $895.77. At the time of making that finding, the learned magistrate had before him the relevant correspondence outlining that determination. This amount represented the value in full of the repairs, as estimated to be the case by the repairer (who had been, I think, contacted in Launceston, and provided information to Mr Faithful).

9. Now if the insurer had been paying out on a basis that that was the only factor involved, it would have been entitled to pay out that sum less $250. They chose not to and notified Mr Louis of that decision. It seems to me that if you compare Mr Louis' contentions, as put to the insurer, that the value was more than $1,000 - (in fact Mr Louis put the contention, I think, that the vehicle was worth at one stage $4,000 and has since indicated that he is prepared to accept $3500) - it would have been a reasonable decision to make. But the insurer had decided that the value was in fact somewhere around $1,000, so they took off $250, and thus the payout was to be around about $750. So to have offered to pay out $895.77 and to have decided so to do, could not be regarded as, of itself, evidence of any bad faith. But I do think the insurer should be held to that decision.

10. It follows, therefore, that there is a case made out for some alteration of the magistrate's decision, based on two things. One is that it seemed to me that the evidence was overwhelmingly that the vehicle was, on the basis of the evidence the magistrate had, a write-off, and he could have proceeded so to find. On the other hand, there was also the fact that the insurer had determined to pay out $895.77 and had indeed sent a cheque to Mr Louis in that sum.

11. I therefore grant leave to appeal by extending the time for appeal. I would uphold the appeal to the extent that the amount ordered by the learned magistrate be paid - (I refer now to the judgment of his Worship delivered on 7 February 2003) - of $645.77 should be amended to be $895.77 and there will be judgment for the appellant in that sum in substitution for the sum of $645.77 awarded.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

Associate:

Date: 17 June 2003

Counsel for the Appellant: Self represented

Counsel for the Respondent: Mr DJC Mossop

Solicitor for the Respondent: Phelps Reid Lawyers

Date of hearing: 11 June 2003

Date of judgment: 11 June 2003