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General => General Discussion => Topic started by: muzza01 on September 12, 2014, 12:48:13 PM
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On behalf of my sons girlfriend (Mary)
Some time back she accidentally backed into a parked car. it was a 5 pr 6 year old Commodore that is still driveable, still roadworthy but has side dents and needs repainting. She waited for the owner to come back to their car and she exchanged details. She has no insurance (I know, but she is not my daughter).
Anyway he gets a quote from a panelbeater, $1800 I think it was. She says to him no insurance, don't have $1800 but I am willing to try and pay it off.
Panel beater agrees for her to enter into a payment plan with her. Fast forward 6 weeks..... She finishes paying the panel beater the $1800. Fast forward another week.
Panel beater rings her to say that the owner of the car wants to get the $1800 cash panel shop. Panel beater asks when he is getting car repaired. The guy replies that he won't be getting his car repaired as he has sold the commodore but wants to pocket the $1800 cash.
Panel beater says no, I will ask Mary if you can have the cash. Mary says that wasn't our agreement and you are not getting the $1800 cash.
Last week she receives paperwork in the mail (not a court summons) that he is suing her for $1800 plus $130 for claim application. I think these cases go to a mediator in QLD before they go to court.
I told her that she should offer to pay him restitution of $1000 seeing as though she damaged his car but considering he broke the agreement. Her parents have advised her to pay nothing...
What do you guys think?
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As a first step I think I'd do some research on the Redbook site to see what the recommended selling price is for the Commmodore, and ask the owner for evidence on his selling price to see what the difference was.
If the difference is less than the $1 800 I would be tempted to offer him only that.
Other wise I'd leave it up to the mediator to make a determination, but I can't see the mediator making the payment any higher than the original $1 800 agreement.
As to the $130 claim application I'd be telling him to shove it because he is the one breaking the agreement.
PS. I have no formal legal education and this is a personal suggestion.
Good luck.
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Was it a verbal agreement? If so it is not worth the paper it was written on ;D
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If he has sold the vehicle without getting it repaired that's his problem. I would not pay him a cent, as she said that was not the agreement.
Since the vehicle is not getting repaired, as agreed, by the Panel Beater, I would get your money back from the panel beater, give him a nice gratuity/beers for taking care of things and looking after your interest. Sounds like a nice guy.
The paperwork sound bogus if it is not from QCAT (QCAT Queensland Civil and Administrative Tribunal). QCAT process takes a lot more than a week. I had one going for 18 months. Sounds like he wrote, which you can do, a simple written letter of demand and see if you baulk. If its not from QCAT I would ignore it.
Move on and get Insurance.
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What accident?
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Are you saying that she paid the panel beater the $1800 (under a payment plan) before he carried out any work? Did said payment plan have any paperwork or was it also verbal?
Per lobster, if the work was not carried out then she should try and get the $1800 back from the panel beater. If the panel beater refuses then she should try and claim it back from him as he has taken that money in good faith and not incurred an expense that justified him keeping it.
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Hang on, she pid the panel beater before the car was repaired?
So the panel beater hasn't done any work at that car so she should get the money back. No work done, no payment needed.
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Get the 1800 back, give the panel guy some beers and go to the court hearing. A judge is just as likely to throw the case out as the whole setup is a bit odd
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What accident?
Ha ha
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If the accident did go through Insurance, the payment would go to the repair for the work, not the vehicle owner. He sold the vehicle before the work was done, so good luck with that. Tell her to make inquiries with Legal Aid to get legal advice before handing over any $$$.
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If the panel beater is prepared up give money back take it with a peck on the cheek.
Put it in the bank.
If knob nuts goes through to court then let the judge decide. It won't be more than 1800 and I bet max would be prove able loss of value.
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get a pen and paper out and make notes of everything that has happened up until this point. Call it a statement of facts ..date and sign it.
Get a statement from the panel beater or write down the record of conversation between Mary and the panel beater.
Mary agreed to pay $1800 to XYZ panel beaters for the carrying out of repairs to vehicle XYZ owned by MR PLOD.
Mr Plod has now decided for whatever reason that he no longer wishes to have vehicle XYZ repaired and wishes to make a claim for a financial settlement in relation to the accident. This is now a new process.
I am pretty sure Marys responsibility is to pay for any/ all repairs incurred as a result of her accident. With a statement of facts and a record of conversation plus any paperwork she has with the panel beater . I think she could satisfy a magistrate that she has made all attempts to meet her obligations. Furthermore the panel beater could hold the cash until such time as the vehicle is brought in for repairs. as this was the agreement Mary pay ..panel beater fix.. Mr Plod bring car . only one party has failed to meet the contractual agreement between all parties.
But sounds like the panel beater is the real hero or Mr Plod was just to greedy .. these things are normally a 2/3rds ..1/3rds split between the panel beater and Mr plod. or at least that's how it used to be. ;D ;D ;D ;D ;D
If Mr Plod had offered the panel beater $600 cash for his trouble I bet we would not be having this conversation. ;D ;D ;D ;D
good luck . Don,t be afraid of QCAT its a pretty laid back process but just be better prepared than the other party, the tribunal gives value to documents and statements not he said she said . write a statement of facts then sign it attach a stat dec to it and it will hold more weight then his ramblings.
In my case this year the other party claimed i made all sorts of threats against her, however the mediator said unless she was prepared to write them down and sign it or make a police complaint then it would not be considered by QCAT and it was not.
jet ;D ;D
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Hmmmmm....I smell a rat here.
Why did the panel beater collect the money without having repaired the car? Is he going to give the money back now that the repair is not going ahead or have these 2 collaborated to collect some money from an innocent and perhaps naïve young girl?
Anyway....
Contract law here is pretty complex and not very straight forward. Having said that we can establish if a contract (or contracts) existed in the first place remembering a verbal contract is as good as a written one as long as the facts can be established.
For a contract to exist there has to be an offer, an acceptance and consideration (or payment). Because money was handed over to the panel beater, that constitutes consideration so there is likely a contract that can be shown to exist between the panel beater and Mary simply to pay the $1800 within a specified period of time. Nothing to suggest this was dependant on anything, like the car appearing in the first place. If Mary owned the car, it would be a different matter. She has now paid the $1800. Contract completed. Panel beater is $1800 richer. Car owner and Mary loose out. All parties part company.
No contract existed between her and the car owner. No claim can be established here.
The car owner and the panel beater had an agreement (not a contract as such as there's no consideration) that the car would be bought in for repairs at some point.
Complications that arise.
It could be argued that the panel beater was holding the money in escrow. The proviso being the car is actually bought in for repair. Since that didn't happen, Mary is entitled to have the money returned to her no questions asked. The panel beater in this case has an obligation to enforce his side of the agreement with the car owner, that is to get the car in for repair. By not insisting and making the owner perform his part of their agreement, he must now pay the money back to Mary.
The car owner forfeited any rights he MAY have had when he sold the car. Again..all parties part company.
The other way this could be argued is there was a 3 way contract between all parties. The law of Estopel could apply here. The act of not putting the car in for repair means the panel beater could not perform his part of the contract. He has effectively been estopped from performing his part of the contract. He now has to repay the money back to Mary but he can sue for damages from the car owner. (probably to the value of $1800 plus interest and reasonable costs). That's a long bow to draw especially without a written agreement but a case can be made. Mary walks away happy and the panel beater and the car owner fight it out in court.
I would advise Mary to approach the Panel Beater and ask for the money to be returned. I would almost put money on it he will refuse. Either way I would respond to the letter saying that by selling the car, the car owner has reneged on his part of the contract and is at risk of being sued by both parties for damages. See how he responds to that...!
Moral of the story.....never agree to anything without a written contract.
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OK to clarify, Mary has the $1800 in her possession. The panel beater gave her the money back and refused to give it to Mr Smith (the guy who owns the Commodore).
The panel beater is not a rat.
I haven't sited the paperwork claim but will try and get a look over the weekend.
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OK to clarify, Mary has the $1800 in her possession. The panel beater gave her the money back and refused to give it to Mr Smith (the guy who owns the Commodore).
The panel beater is not a rat.
I haven't sited the paperwork claim but will try and get a look over the weekend.
In that case...all good. I would still go back and tell the car owner he is not entitled to the money. He forfeited any rights to the money when he changed his mind about having the car repaired and then selling the car. Further by not putting the car in to be repaired, he has cost the panel beater a loss of business and associated costs.
If he wanted the money, he should have insisted she pay him monthly, not the panel beater. His claim wont stand up in court.
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As mentioned. Hold on to the money and seek legal advice. The panel beater is a top guy in my books for doing the right thing. The guy who was hit had the option to get it fixed or could have asked for the money instead. But went and sold the car.
Mark
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Hang on why did she agree to pay in the first place would not his or her compulsory 3rd party property cover the damage???
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Hang on why did she agree to pay in the first place would not his or her compulsory 3rd party property cover the damage???
Compulsory third party doesn't cover damage to other vehicles.
"Compulsory Third Party (CTP) Insurance protects you in the event of compensation claims for personal injury after a car accident". (RACQ website)
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She didn't have insurance. 3rd party property on vehicles isn't compulsory - only for injuries.
If you are at fault, you pay the cost of the repairs (or your insurance company does)
I'd follow through with the courts - what's the worst that happens? They take a few hundred back
Aaron
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Legal aid and documenting everything sounds like a good idea. And don't forget to tell Mary she owes the panel beater a carton. Well played Mr Panel Beater. :cup:
Maybe she can ask the panel beater for a signed copy of his version of events also.
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The ex-Commodore owner should be happy that Mary waited on him and told him that she damaged his car.
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Would he have claimed on his insurance to have the car repaired, then sold the car. Still wanting to pocket the $1800 cash? If so, then that would be insurance fraud, so he might not want to push it too far in the legal system!
Why would he have sold the car without having it repaired? (if he did).
Most of all, that panel beater is a top bloke and switched on. As someone mentioned above, at least buy him a carton of beer and tell all your friends to use him. Honest business people need to be rewarded.
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What would be the sale price difference from what the owner got for a damaged commodore to the current red book price for the said car.
Then, offer the difference, which i'm guessing would be way short of $1,800.
Do it through a solicitor if possible or legal aid.
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Hang on, she pid the panel beater before the car was repaired?
So the panel beater hasn't done any work at that car so she should get the money back. No work done, no payment needed.
x2
Legal aid and documenting everything sounds like a good idea. And don't forget to tell Mary she owes the panel beater a carton. Well played Mr Panel Beater. :cup:
Maybe she can ask the panel beater for a signed copy of his version of events also.
yep i rekon
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So if someone damages your property and you then sell that property for what ever reason (fixed or not) without receiving compo for the damage, there off the hook ?
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So if someone damages your property and you then sell that property for what ever reason (fixed or not) without receiving compo for the damage, there off the hook ?
why wouldn't you be? unless the owner of the property has paid for repairs themselves, why shouldn't you be? The money is for repairs not a bonus.
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Sorry for the change of topic, sort of, but I think the panel beater should be named. he sounds like he's worthy of getting the business of anyone close by.
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So if someone damages your property and you then sell that property for what ever reason (fixed or not) without receiving compo for the damage, there off the hook ?
Well I advised her to pay $1000 not the original $1800 as he broke the agreement. We actually don't know if he got the car repaired under insurance elsewhere and is now trying to get the cash out of Mary.
She is not trying to just get off the hook. She did the right think in the first place. She waited for some considerable time for him to return to his car so she could inform him that she damaged the car.
She admitted it was her fault.
She could have said to him she had no money, sue me, but she didn't, she worked out a payment plan with the repairer to try and once again do the right thing. He broke the agreement not her.
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So if someone damages your property and you then sell that property for what ever reason (fixed or not) without receiving compo for the damage, there off the hook ?
technically no, but if someone damaged my car, then i sold it as is, i would bother chasing for the money. Why does it matter, i dont own the car now, and the girl also showed good faith and paid for it, i would tell her to keep the money its all good. the guy is just being an donkey ( clean word).
But hey thats just me. :cheers:
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why wouldn't you be? unless the owner of the property has paid for repairs themselves, why shouldn't you be? The money is for repairs not a bonus.
So if someone damaged your property and you have to wait for an unspecified period of time there effectively got the control to stop you from selling your own property ?
I don't think so.
If you damage someones property you are liable for that damage.
If he had it fixed by his insurer there entitled to seek the amount, he may have said it was an unknown offender and got it repaired and still trying to collect a bonus (which is illegal/ fraudulent ).
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why wouldn't you be? unless the owner of the property has paid for repairs themselves, why shouldn't you be? The money is for repairs not a bonus.
yeah, you typed it nicer than i was thinking it :cheers:
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Sorry for the change of topic, sort of, but I think the panel beater should be named. he sounds like he's worthy of getting the business of anyone close by.
Will do when this all gets sorted :cheers:
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So if someone damaged your property and you have to wait for an unspecified period of time there effectively got the control to stop you from selling your own property ?
I don't think so.
If you damage someones property you are liable for that damage.
If he had it fixed by his insurer there entitled to seek the amount, he may have said it was an unknown offender and got it repaired and still trying to collect a bonus (which is illegal/ fraudulent ).
thats right, liable for the damage, i bet donkey didnt tell the new owners, all they have to do is take it to such and such smash and the repairs will be taken care of? did he? he just wants compensation now, not money for damage.
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thats right, liable for the damage, i bet donkey didnt tell the new owners, all they have to do is take it to such and such smash and the repairs will be taken care of? did he? he just wants compensation now, not money for damage.
Agree :cup:
As I said earlier, she is not my daughter, this is not my problem but I think she has done the right thing and acted with integrity. :angel:
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She has done the right thing IMO, I'd now wait for him to take it to the next level before
handing over any $$$ but regardless whether he gets it fixed or not he is still entitled to be compensated for the damage. What he needs to prove is how much the claim is.
EG you have a nice ole car and someone puts a dent in it and you decide you can live with it, doesn't mean there not liable for the repair or the cost of it, it's the owners choice whether he repairs or chooses to live with it.
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EG you have a nice ole car and someone puts a dent in it and you decide you can live with it, doesn't mean there not liable for the repair or the cost of it, it's the owners choice whether he repairs or chooses to live with it.
god i give up ???
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As far as I know, a verbal contract is just as binding as a written one. Then again, I'm not a lawyer.
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god i give up ???
Yep x2 ;D
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Muz, I have to say its a credit to her for accepting responsibility and doing the right thing. These days it's rare this happens especially from the younger generation.
Mark
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I can see why the panel beater wanted money up front. If it was me I would not want to do the repairs then have to chase the disputing parties for payment (I'm sure that's a mistake he would only ever make once).
The panel beater was chosen by the other side and the quote presented to her, so he cant dispute the estimated cost of damages.
If she agreed that she caused $1,800 worth of damages, and she now has that in her pocket, is there a problem with her paying that amount to the car's owner instead of the panel beater? The first posting sounded like she paid $1,800 and was then asked for more. If she got the $1,800 back, then cant she give that to the owner (in stead of the panel beater)?
While the other party may be acting a little strategically with respect to disposing of the car, he has been inconvenienced by her actions and her lack of insurance. She is lucky he didn't hand the matter over to his insurance company (as I would have done) and let the insurance company chase her for payment.
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It seems to me there are heaps of people on here that are lacking in the ethics departmrnt.
The Commodore owner may be decent person. His car is damaged and the repairs are covered by a verbal agreement. He sells the car for whatever reason and shouldn't lose money over it.
If he lost $1800 in sale price I don't see why he should be left out of pocket.
However, I find it hard to believe he would have dropped $1800 for damage received from a low spped prang, so I would leave it up to a mediator.
The other thing is this guy has the address, and with all the crazies around, not being reasonable may have consequences.
Cheers
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If this was in front of a magistrate...
Pretty sure that at the end of the day the young lady who acted in "total good faith" to pay for the repairs of the car will get to hold onto her $1,800.
The other guys sold his car with no communication to the young lady or the panel beater of his intentions so he has voided any kind of agreement because the car is no longer in his possession, nor can he claim for any loss on the sale price because again, he never informed anyone of his decision, and because selling a used car is a negotiated sale there's no real way that the loss can be proved 100%
Than and the fact that he was bold enough to try to claim for the repair after the car was sold, he has no grounds.
My bet is that a magistrate would tell him to pull his head in and get lost.
As a safety I would try to get as much detail on the guy as possible in case he tries some payback afterwards.
If we're talking FNQ, it's a small town and most people know who the ratbags are.
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Hi mate. Im not a lawyer, but am nearly finished law degree. This is not qualified legal advice, and I would advise that she sees a solicitor which should cost only a couple hundred dollars for an hour.
As Jet said, document everything first, and then sit down with them and talk it through.
My take on this is that the seller of the vehicle now needs to show that the 1800 was the value of his loss on the vehicle, or he suffered such loss through the disposal of the vehicle.
The original agreement is not capable of being performed as the thing is sold. The original contract was the repair of the vehicle to a value appraised by the panel beater, not the payment of cash equivalent to the owner. As the panel beater never performed the work, no payment is required.
I can dig through some precedents on similar matters and pm you some info. Without going into all of it here, if it were me in that situation I would be happy to go to court or small claims equivalent. But like anything, a lot will come down to what was discussed and agreed between the parties. Recommend dropping a carton or bottle to the panel beater for his honesty - if it goes to court, you will need him there to vouch for the details
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As sure as Im typing this, if I was in Marys place I wouldnt give him anything.
And I also dont care who doesnt like it...
Bill
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really she hit the car she should pay the money ,I think its the right thing to do ,
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Hi mate. Im not a lawyer, but am nearly finished law degree. This is not qualified legal advice, and I would advise that she sees a solicitor which should cost only a couple hundred dollars for an hour.
As Jet said, document everything first, and then sit down with them and talk it through.
My take on this is that the seller of the vehicle now needs to show that the 1800 was the value of his loss on the vehicle, or he suffered such loss through the disposal of the vehicle.
The original agreement is not capable of being performed as the thing is sold. The original contract was the repair of the vehicle to a value appraised by the panel beater, not the payment of cash equivalent to the owner. As the panel beater never performed the work, no payment is required.
I can dig through some precedents on similar matters and pm you some info. Without going into all of it here, if it were me in that situation I would be happy to go to court or small claims equivalent. But like anything, a lot will come down to what was discussed and agreed between the parties. Recommend dropping a carton or bottle to the panel beater for his honesty - if it goes to court, you will need him there to vouch for the details
Yep agreed.
Make him spend the money to prove he lost $1800 on the sale of the vehicle..
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really she hit the car she should pay the money ,I think its the right thing to do ,
So you would be happy to pay for some thing that wasn't fixed?
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So many Legal advices here by back yard Lawyers, don't risk it seek professional advice, do not ask for legal advice on here or Face book, proper advice will cost and you can feel confident with that advice, here or Face book can only lead to disaster
Cheers
Carl
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Yep agreed.
Make him spend the money to prove he lost $1800 on the sale of the vehicle..
No. A panel beater estimated the damage was $1,800 and she accepted liability for this.
It's none of her business what he does to his car and nothing to do with what he sold the car for.
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So you would be happy to pay for some thing that wasn't fixed?
Bingo!
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No. A panel beater estimated the damage was $1,800 and she accepted liability for this.
It's none of her business what he does to his car and nothing to do with what he sold the car for.
She agreed to $1800 in repairs to the vehicle, which was an estimate of his loss when he owned the vehicle. Not to pay him $1800 cash.
She was willing to carry out the terms of the agreement, he sold the vehicle which could mean a termination of the agreement.
As a result, the contract is not able to be performed. Frustration by impossibility springs to mind. Ie the performance of the contract is now impossible, or the contract is frustrated. Doesn't mean she would pay nothing, or is partly off the hook, but an interesting case and worth challenging in my opinion.
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She agreed to $1800 in repairs to the vehicle, which was an estimate of his loss when he owned the vehicle. Not to pay him $1800 cash.
She was willing to carry out the terms of the agreement, he sold the vehicle which could mean a termination of the agreement.
As a result, the contract is not able to be performed. Frustration by impossibility springs to mind. Ie the performance of the contract is now impossible, or the contract is frustrated. Doesn't mean she would pay nothing, or is partly off the hook, but an interesting case and worth challenging in my opinion.
Thanks mate.. Like I said before, I give up. It's not rocket science. Take it to court, a judge will throw it out.
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So you would be happy to pay for some thing that wasn't fixed?
yes I would and I have ,and I do not want to get into any argument's , if you have a older car and its damage and its a toll lose wich would not take much the insurance comp would pay you out and its up to you to what you do with the car ,and if you have dune damage to somones stuff you should pay for it it the right thing to do
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Not that it matters anymore but the other driver should have accepted a payment plan from Mary, sold the car and pocketed the money which is well within his rights. Obviously the car had depreciated with the damage and the $1800 was the difference.
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Give the bloke his money. She damaged his car and agreed to pay for it, what he does with it is up to him. Give him $1500 and give the panel beater $300 for the stuffing around.
You can get all legal about it and go a round of solicitor letter writing or mediation and maybe get out of it. Or just pay up for your mistake.
If it only took her 6 weeks to save $1800. Imagine how quickly she could save for 3rd party insurance and avoid any of this type of mess.
If you can afford to buy a car you also need to be able to afford insurance. I have little sympathy for uninsured drivers.
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No. A panel beater estimated the damage was $1,800 and she accepted liability for this.
It's none of her business what he does to his car and nothing to do with what he sold the car for.
jetcrew and mik01 had it right. A contract is an offer, acceptance and a consideration, verbally or in writing albeit a written contract is more easily proven but in this case the panel-beater is the corroborative witness so I doubt the owner will be able to slide out of the original contract.
Firstly hitting a stationary car legally parked you're 100% liable for the damage unless someone shunted you into it. Yes it was agreed to prepay the pb for the repairs awaiting the car to be produced for repairs and the contract completed and that would have been the end of it in the sense that the claimant and defendant had come to a mutual agreement as to compensation to return the vehicle to its previous state. Notice however that even insurers do not always do that but often write a vehicle off as too dear to repair in their estimation and only pay out market value less scrap value (indeed they will often offer the wreck to the owner at that scrap value if they so desire)
That's the rub here that once the owner reneged on the agreed contract to repair those bets were off and it now reverts to a question of the owner's economic loss under that new situation ie what lesser value did he get for the car with the extra damage and that's something he'll need to prove in any small claims court ultimately now, or else come to a new agreement. My bet is he'll be willing to settle for a lesser amount (in writing of course) rather than the hassle of small claims and on that basis I'd make a take it or leave it offer of $1000 to settle now or whistle for it. Small claims courts do not involve lawyers or lawyers costs but you should respond to a formal small claim lodgement with a formal counterclaim. Otherwise a letter of demand only justifies a letter of reply headed 'without prejudice' with any denial or counteroffer.
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Or to put it simply the owner liked the car and hence wanted it returned to its original state for ongoing utility, not oh great here's my chance to get rid of the old banger and profit at this unfortunate woman's expense.
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A point I think has been missed here is......If Mary had been fully insured and provided her insurance details to the owner of the Commodore then it would have been up to the Insurance company to handle the claim. OK. Now the Commodore owner decides to sell the car and then attempts to get Mary's Insurance company to pay him $1,800.....yeah, I can just see Mary's insurance company doing that without the car actually being repaired.
In this case Mary is a self insurer therefore the same rules should apply.
Original agreement was not adhered to therefore unless the Commodore owner can prove a loss was incurred then Mary cannot fulfil the original agreement.
I'd be letting it go to QCAT. The advice regarding statements etc is sound.
As for saying Mary caused $1,800 damage therefore I'd be paying it regardless as to whether the other party has already sold the car is not on IMO. He must prove he incurred a loss.
Cheers.
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He must prove he incurred a loss.
Cheers.
That he suffered a loss is no longer in dispute so there is no longer a burden of proof.
Both parties agreed that his car was damaged to the tune of $1800. The panel beater gave a quote for repairs, so there is documentation that the car was damaged. That sounds like a loss to me.
She broke it, she should pay. It is absolutely none of her business what he does with the wreck.
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In that case, why not have the buyer produce the car for repairs. Mary fulfills her obligation, the repairer gets paid, and Mr Smith can get stuffed.
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Is everyone forgetting the fact that its a 6 year old bommadore, he probably only got $2000 when he sold it ;D ;D ;D
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There are moral obligations and there are legal obligations. It is interesting to read how many people would avoid their moral obligations if they could do it legally.
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There are moral obligations and there are legal obligations. It is interesting to read how many people would avoid their moral obligations if they could do it legally.
x2
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There are moral obligations and there are legal obligations. It is interesting to read how many people would avoid their moral obligations if they could do it legally.
Title of the thread says 'legal question'. Not moral question.
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There are moral obligations and there are legal obligations. It is interesting to read how many people would avoid their moral obligations if they could do it legally.
Let's look at it differently. I am john and just had my car hit by this girl, we came to an agreement, she paid the beater, in the mean time I sold the car as is, damage and all. Legally, as you say I have can get the money off the girl, but really, why does it matter to me now, car is gone, I'm not going to get it fixed, give the girl a ring and do a morally good thing and tell her to put the money towards insurance as I don't need it anymore anyway, and hope she learns a lesson.
Each to their own though
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Seriously, who really cares what he does with the money ??? $1800 was agreed by both parties as a settlement. Whether the $1800 is spent repairing the car, or is spent by him buying new clothes, does it really really matter......? Why is the girl so hung up with what he does with the cash? It's not like she's going to be out of pocket anymore or any less.
Just pay the $1800 that was originally agreed so you can move on and get back to living your life!
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The guy who sold the car has taken a hit no pun intended on its value through no fault of his own. He had an asset worth x amount and sold it for y amount which is less so why shouldn't he receive the estimated difference from the party that caused the damage in this case $1800.00
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There are moral obligations and there are legal obligations. It is interesting to read how many people would avoid their moral obligations if they could do it legally.
Either way she agreed to pay for the repair, vehicle has still not been repaired and now sold on, the original still gets nothing and the panel beater who was going to get paid is the one that has lost out has done the legally and morally right thing and given the money to the person it should go to. Remember she is paying for the repair of the damage caused to the vehicle, not paying the owner of the vehicle, legally or morally. If the original owner had of made arrangements with the buyer and the smash repair and the new owner continued with the repairs then she would still have to pay the repairs, not the owner.
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The guy who sold the car has taken a hit no pun intended on its value through no fault of his own. He had an asset worth x amount and sold it for y amount which is less so why shouldn't he receive the estimated difference from the party that caused the damage in this case $1800.00
None of us know this.
As he sold the vehicle, he now has to prove he continues to suffer a loss caused by the damage.
What if he sold it and took off only $300 for the damage. Or $0? The law can only restore a person back to the state they were in prior to the event. You might not like it, but that's the law of equity.
So, for those of you saying he is owed the full 1800 - he is no longer owed it. He was never owed it. He was owed repairs to his vehicle. She could have found a dodgy panel beater who offered to do it for a slab.
If he didn't agree to the cheap repair, he could have sought his own quotes, and if she refused, they could go to court and argue what the actual damage was and what the actual cost was that she should pay.
She got lucky here. But as I said earlier, an hour with a solicitor will tell you your chances of fighting this. Get them to write him a letter stating your legal position as you see it.
I reckon your chances of avoiding any payment are very good. Would love to hear the outcome.
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Or, the owner of the car and the girl, could go to the casino with the $1,800 and attempt to double there money, while there, they both end up getting drunk, then get a room and have wild kinky monkey sex, fall in love, get married, have kids and live happily ever after.
There endth the lesson. 8)
Yeah, i know...... Who ever lives happily ever after where marriage is concerned.
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Lol
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People complain about it and it can be expensive, but this is why you should have insurance, even if it is only TPO, then you don't have to worry about this nonsense.
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Lol
(http://media.tumblr.com/tumblr_m6z0lju1rz1qktkc3.gif)
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People complain about it and it can be expensive, but this is why you should have insurance, even if it is only TPO, then you don't have to worry about this nonsense.
cost me $180 for third party insurance for my work ute (probably could have gotten cheaper if I'd shopped around), why would you not have it at that price.
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The more I think about this, the unusual part of all this issue is actually the involvement of the panel beater.
Typically the negotiations / discussions / agreements would have been between Mary and the guy that owned the car - no-one else. The panel beater had become involved because Mary couldn't afford to pay for the repairs so she cut a deal with the panel beater for a payment plan. For six weeks he collects the money thinking that in the near future he's going to get an nice $1800 cash job. At the end of the six weeks the guy that owned the car decides he wants the cash instead of having the car fixed. My bet is that he hasn't sold the car, but probably thought by saying he had it would make the situation easier, which it hasn't.
So the interesting thing to me is what's really motivating the panel beater - morals? I doubt it. More likely he's bitter he collected the money over six weeks and now isn't going to see any of it so has decided if he isn't going to get any cash, neither is the guy that owns the damaged car. He hasn't done himself out of $1800 cash either as someone suggested, because when he decided to inform Mary of the situation he wasn't going get the repair job anyway.
Would this be any different if the guy with the damaged car said at the end of the six weeks he would like his car repaired at another panel shop (for whatever good reason)? You reckon the guy holding the $1800 would freely hand it back? Call me cynical..... ;D
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Not that it matters anymore but the other driver should have accepted a payment plan from Mary, sold the car and pocketed the money which is well within his rights. Obviously the car had depreciated with the damage and the $1800 was the difference.
Mate,
The above is correct. The fact is Mary did the damage and agreed it was $1,800. The fact the car was sold means the owner would have got less for it in the perfect world $1,800.
Arguing over verbal contacts or not is a lot of "BS". Fact is Mary is no worse off. It's a matter of who does Mary pay? Clearly she should be paying the owner.
By the way good Repair shop giving her the money back.
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Seems a divided debate...
I have been on the receiving end of someone not paying and yes all the members who site "Moral Obligation" are correct.
however it must be noted that.
The Guy negotiated a settlement under the pretension of the vehicle being repaired to original state NOT a Financial loss settlement. Therefore I could argue on marys behalf that he has acted without Moral obligation, furthermore a stat dec from the PB would support the fact that he negotiated the contractual arrangement for repairs only or if he argues he never intended to get it repaired then he is equally screwed.
Or he changed his mind half way through .fair enough ...yet told no one and attempted to entice the PB to commit fraud by him billing Mary for the work that was never carried out.
I am under no doubt that MR PLOD has incurred a loss somewhere here through no fault of his own, however the ways and means he has gone about attempting to recover his loss are what I believe constitute a lake of moral obligation on his part.
It is also clearly obv that he himself does not hold insurance otherwise mary would be speaking with his insurer.
I believe his loss needs to paid for but it is now up to him to demonstrate that loss, as he was the one who negotiated a "repair" contract not a Settlement for losses contract.
In all areas of law these are 2 very different things.
to prove his loss is $1800 he will need to satisfy the Tribunal that this loss is clearly evident. ...Not sure how he will go about that one.
Maybe a copy of the original advertisement, Showing the vehicle priced within the right market value for its age ect. a stat dec from the purchaser stating that he paid $1800 less than he otherwise would have due to the damage caused by mary. Therefore his financial loss is $1800.00. remember this is now a claim for financial loss NOT REPAIRS. The Burden of proof will lie with him to prove his loss.
So he will have a fun time spending hours and hours doing all his paperwork ect and he will still need to answer the point of why he tried to convince the panel beater to commit fraud in order to obtain the $1800.
I would argue for mary that he had the panel beater increase the cost of repairs on the quote in order to maximise his return and furthermore any interest obtained by the panel beater be subtracted from any settlement. I would site countless rulings where a liable party (insurer) has paid less in total losses than the quote of repairs. So it is not a fait accompli that the figure of $1800 is the sum of his financial losses.
Will get messy if he sold the car with a road worthy and it had panel damage.
He has played the game and now he looks like working very hard for any $$$ he might get.
Mary is no longer liable for repairs as the car is goooooone but she is liable for any financial loss her accident caused MR PLOD.... he just needs to prove what the figure is.
Moral of this story... INSURANCE ;D ;D ;D ;D and don't be doddgy ..
Jet ;D ;D ;D
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A couple of points that I would like to address
As I said earlier, she is not my daughter but my sons girlfriend.
I was proud to find out that Mary showed good character and waited for Mr Smith to return to his vehicle so she could inform him of the damage and claim responsibility. Although this may have been the right thing to do, it is rare to encounter these days. Over the last 25 odd years, my wife and I have had our cars scratched, dented and run in to at least 10 times without anyone sticking around to admit their fault.
I agree 1000% that she should have 3rd party insurance. It should be compulsory. My sons car is insured and always will be (I know because I pay it)
I agree that Mary caused the damage and that it is her responsibility. If the car was repaired back to original condition then she was going to pay full restitution. It was not until Mr Smith sold the car, cancelled the repair and wanted to pocket the money that Mary changed her mind. mr Smith could have sold the car for full value and informed the new owner that they could have the car repaired free of charge at ABC panelbeaters.
I will stick to my original advice that I gave Mary. Offer him $1000 cash as recompense or let him take you to court. He broke their verbal agreement not her. He on sold the car and wanted to keep the cash.
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Jetcrew
Let’s be clear the law doesn’t necessarily equal what is “morally” right. The law follows a reasonably clear set of common law rules dating back 100’s years which have been modified, enhanced and invented, some would say bastardised by governments (Legislation).
What you have with Mary is very simple. Mary’s damaged Mr Plod’s car. The law requires Mary to put Mr Plod back in the same position as Mr Plod was prior to the incident. This is done by financial compensation to Mr Plod by Mary.
The measure of Mr Plod’s loss is the PB quote $1,800. Mary accepted this and agreed to pay and did pay the PB $1,800 directly. If Mary was to infer the PB quote was excessive or “loaded up” Mary’s missed her opportunity. This should have been done at when Mary agreed to pay.
The only argument Mary has would be to argue the sale price Mr Plod received was not fully offset by the damage. Better put, if Mary were to pay Mr Plod the full $1,800 this added to the sale price would mean Mr Plod was being over compensated
Car value no damage $7,500
Accident damage $1,800
Car with damage $5,700
Sale of car
Sold for $6,000
Accident damage $1,800
Mr Plod gets $7,800
Mr Plod is $300 better off/over compensated
In this case and assuming you know the sale price and market value Mary would be entitled to pay Mr Plod $1,500.
There are variations on this but the above is the basic principal. I’ve done 1,000's of these.
As to the PB good bloke for allowing the time payments and returning the money. But as you say probably pissed off he didn’t get his work.
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Jetcrew
Let’s be clear the law doesn’t necessarily equal what is “morally” right. The law follows a reasonably clear set of common law rules dating back 100’s years which have been modified, enhanced and invented, some would say bastardised by governments (Legislation).
What you have with Mary is very simple. Mary’s damaged Mr Plod’s car. The law requires Mary to put Mr Plod back in the same position as Mr Plod was prior to the incident. This is done by financial compensation to Mr Plod by Mary.
The measure of Mr Plod’s loss is the PB quote $1,800. Mary accepted this and agreed to pay and did pay the PB $1,800 directly. If Mary was to infer the PB quote was excessive or “loaded up” Mary’s missed her opportunity. This should have been done at when Mary agreed to pay.
The only argument Mary has would be to argue the sale price Mr Plod received was not fully offset by the damage. Better put, if Mary were to pay Mr Plod the full $1,800 this added to the sale price would mean Mr Plod was being over compensated
Car value no damage $7,500
Accident damage $1,800
Car with damage $5,700
Sale of car
Sold for $6,000
Accident damage $1,800
Mr Plod gets $7,800
Mr Plod is $300 better off/over compensated
In this case and assuming you know the sale price and market value Mary would be entitled to pay Mr Plod $1,500.
There are variations on this but the above is the basic principal. I’ve done 1,000's of these.
As to the PB good bloke for allowing the time payments and returning the money. But as you say probably pissed off he didn’t get his work.
I fully agree with you ScottOZ... it is now up to mr Smith to work out his financial loss, establish the proofs of these losses to a satisfactory standard to compel a Tribunal to rule that Mary owes him that amount.
In relation to Morally.... I was making reference that for others to imply Mary has done or is doing anything immoral is not fair IMHO. She upheld her end of the deal. The deal is now in renegotiation stage and I am sure she will pay the new amount as required.
Anyway the law is the law and Mr Smith can make a claim against Mary .. hell he could claim alot more than $1800 if he wants to (up to the small claims ceiling of course) but there still exists the PROOF ..he must satisfy the tribunal of the Loss. weather that's for $1 or $10000 he must prove the LOSS.
Should be pretty simple resolution for all parties If Mr Smith is prepared to be honest about his actual loss and obv looks like mary is a decent person. So should not be hard
But poor old Mr PB gets nothing for all his time he should make a claim against Mr SMITH for time lost on quotes and management of the situation. ;D ;D
Jet ;D
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If this matter was being dealt with by an Insurance company would Mr Smith get anything. NO. The Insurance Company pays the bloke that does the work. Mr Smith is not entitled to any money for repairs to his vehicle.
With the vehicle being sold before any work being done, the Insurance Company would want to establish the agreement between seller and buyer. If buyer bought the vehicle as is in a damaged condition or at an agreed price with the vehicle repaired by the Insurance Company.
Either way Mr Smith does not pocket any money. The Insurer pays the one that repaired the vehicle.
If the vehicle was a write off, then the owner gets the payout.
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If this matter was being dealt with by an Insurance company would Mr Smith get anything. NO. The Insurance Company pays the bloke that does the work. Mr Smith is not entitled to any money for repairs to his vehicle.
With the vehicle being sold before any work being done, the Insurance Company would want to establish the agreement between seller and buyer. If buyer bought the vehicle as is in a damaged condition or at an agreed price with the vehicle repaired by the Insurance Company.
Either way Mr Smith does not pocket any money. The Insurer pays the one that repaired the vehicle.
If the vehicle was a write off, then the owner gets the payout.
"Wrong"
Mr Smith's insurer would "normally" have paid the PB and then recovered off Mary.
Mr Smiths insurer "may", though "unusual" have paid Mr Smith. There is nothing to prevent his insurer from doing this. When they do this they usually cancel the policy so he cant claim again in the event of another accident.
Don't confuse what usually happens to what can be done by an insurer. For obvious reasons Insurers dont like paying for repairs where there is a chance the repairs could be "claimed again". Was a good trick in the "old" days.
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Not sure about it these days, but years ago a insurance company paid me out directly. I only had 3rd party and a full comp driver was at fault in a roundabout altercation, so I had to deal direct with the blokes insurance company. Gave them 3 quotes and they gave me a cheque for the cheapest not the panel shop.
Only took me 3 months to get the money! I've had full comp ever since then.
I will stick to my original advice that I gave Mary. Offer him $1000 cash as recompense or let him take you to court. He broke their verbal agreement not her. He on sold the car and wanted to keep the cash.
Good advice and a good lesson for her. With the remaining $800, fling the panel beater something for being decent about it and spend the rest on insurance. If there's a next time she can pay her excess fee and not have to deal with this type of stuff.
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Good advice and a good lesson for her. With the remaining $800, fling the panel beater something for being decent about it and spend the rest on insurance. If there's a next time she can pay her excess fee and not have to deal with this type of stuff.
Agreed
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This is really contract law.
Sweet, mysterious contract law.
Here is a question.
Your name is Bob and you have a local pub you drink at.
You invite Ted around for a ginger beer.
You buy the ginger beer from the barman Pete and give it to Ted.
Pete buys his beer from Graemes Ginger Beer Company.
Ted drinks half the GB, spits some out and finds a decomposed snail in the drink.
To find fault you need a contract - who is the contract between.
:D
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Years ago (mid 90s) I had a accident where a guy done a U-turn in-front of me without checking over his shoulder first, (i was in his blind spot traveling at about 50klm an hour in the main st of a town. Bang T-boned a 6month old falcon in my hilux, had a witness swapped info
guy seem all legit unbeknown to me (he was mr dodge ) false license and details. My car was not roadworthy to keep driving for the long term so after getting 3 quotes and finding out his details stopped short of helping me recover my losses/repairs I bought a cheap car to get to work, took 18months to track the sod down but through trail and error I found his insurance company and found that they where informed that his car had been involved in a hit and run type of accident with know-one hanging around to take the rap. (me) I informed them that if they check the repair details they'll see that the damage repaired would correspond with me version and that I also had a witness, they then asked me to have my car quoted for an upto date repair cost and forward it to them. Next thing I know is a panel beater rings and says your car has been approved for repair bring it in, to which I say I'm not fixing the car as I've had to get another to which he answers then you'll have to ring the insurance company and see whether they'll pay you out (which I did) received a cheque couple days later. (all settled) Bought old mate the panel beater a box and apologized for his time lost and the effort he'd put into quoting the repair for me and the rest is history. Oh, I wasn't insured either at the time. (Lesson learnt) I don't see much difference in my out come to (mr smiths) To be honest I think he was more than reasonable agreeing to wait for the money for the repair to come together for the repair and the young lady has done the right thing up until receiving to money back (well done to her). Now Mr smith needs to forward the bill/quote to her for the damage before receiving the compensation, signing off that alls settled. I doubt very much I would have received any money from a company like suncorp metway if I was trying to profit fraudulently. If you damage someones property your obligated to repair, replace or compensate them for there loss.
I have the feeling to many people watch TV court, peoples court or judge judy. lol
I've also received a cheque from trans pacific for a similar type of situation where they
caused 5K of damage to a vehicle that I repaired myself. You don't have to like or be happy about it, it's just what happens in the real world. Saved a few bob on this one
which made up for the inconvenience as far as I'm concerned.
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my head hurts.....
Swannie
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my head hurts.....
Swannie
X2
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Agreed
X2
If he doesn't take the grand let it go through the process. It will be recognised that the offer was made and likely to be seen as an appropriate offer given the circumstances.
Good luck
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OK we set out the legal position and I'd suggest it's the same outcome as the moral position (assuming for the sake of it Mary's extra damage to the already dented old banger Commode reduced its sale price by around $1000)
So Mary does the right thing waiting for the owner to fess up and both parties agree the PB chosen is a fair and reasonable repairer and it will cost $1800 which Mary says she'll need time to pay to the PB as you know how it is fellers. At that point our moral owner fesses up that he was about to get rid of the old banger anyway and selling it like it is should only reduce the price by a grand max, so howsabout that Mary?
Same deal as Judge Judy I'd suggest and why we have the laws we have on this issue.
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OK we set out the legal position and I'd suggest it's the same outcome as the moral position (assuming for the sake of it Mary's extra damage to the already dented old banger Commode reduced its sale price by around $1000)
So Mary does the right thing waiting for the owner to fess up and both parties agree the PB chosen is a fair and reasonable repairer and it will cost $1800 which Mary says she'll need time to pay to the PB as you know how it is fellers. At that point our moral owner fesses up that he was about to get rid of the old banger anyway and selling it like it is should only reduce the price by a grand max, so howsabout that Mary?
Same deal as Judge Judy I'd suggest and why we have the laws we have on this issue.
Yep, if I was mary then I would pay the G and run. :cup:
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Unless I am missing something these are the facts.
Mary backs into car causing damage and does the right thing, waits for owner to return and offers to make good.
Expert assesses damage at $1800 and Mary agrees to pay.
Mary saves up the $1800 using a payment plan with panel beater.
Car owner sells car before repair is started.
What the owner does with his car has not changed the fact that Mary caused an assessed $1800 damage to his property and agreed to pay restitution. Any attempt to reduce the amount through legal argument is just an attempt to avoid what Mary has already admitted was her liability.
Pay the $1800 to the owner and get on with your life Mary. You have demonstrated you are a good person by doing the right thing in the first place, don't lower you morals by trying to find a legal way out now.
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The way I see it there are 2 questions:
1. Does Marty have a moral obligation to give the money to the guy?
2. Does Mary have a legal obligation to give the guy the money (or a portion thereof)
We could go around and around in circles with the second point for years. Contract law is so grey its not funny (trust me I know, its what I do for a living..!!) and, at the end of the day, there are only 7 people in the country who's opinion will matter, depending on how far Mary and the car owner are prepared to go.
Muzza, I'd suggest if Mary wants a legal opinion, she should talk to a solicitor. Just remember they will not give her a specific answer, just a choice for a course of action. Their advice will also cost money. They may advise her on the path of least resistance (and cost).
As for moral advice, again....everyone here has different morals to each other. If it were me I'd offer the guy $1000 and see what he says. He's the one paying the solicitor. Worst he can say is no and you're back to square 1.
Ultimately, Mary will have to be able to sleep at night with whatever decision she makes.
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And in the case of Mary having TPPI her insurer would have handled it similarly. ie Dear Owner- We accept the claim for repairs of $1800. However we assess the value of your car at $3000 before the damage and now $2000 in its current condition. As a result we are prepared to offer you $1000 as full settlement and you keep the car or we dispose of the car and pay you the sum of $3000. Yours Truly...
Owner naturally accepts the latter under the circumstances unless he wants to argue in Court over the valuations.
Edit: Bearing in mind that $1800 of damage sounds like a scrape to a couple of panels as we all know the cost of minor repairs nowadays. ie daughter backs a Subaru Impreza wagon into a bollard in an unfamiliar carpark and $4000 consists of catching the corner of the bumper, breaking the taillight and barely pushing the back quarter panel out of shape over the rear wheel. Complete quarter panel cut and shut due to its double panel hi-tensile construction.
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Just to clarify a point.
There are six essential elements of a contract, all of which must be met:
1) Offer;
2) Acceptance;
3) Valuable consideration;
4) Capacity to contract;
5) Genuineness of consent;
6) Legality of objects.
All six elements must be met, and as previously observed by others, there are many, many rules devised by the courts over the centuries ...
As for the question posed by Dazzler, liability revolves around whether the ginger beer was served in a glass or in a sealed bottle or other container, and on whether it was cloudy or clear ginger beer ... ;) (the rule in Donoghue vs Stevenson may apply ... ).
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In defence of the commodore guy with the damaged car. There's been a lot of assumptions made of his character, his motives and that his car was likely a POS.
But what if the car was his pride and joy? He's done nothing more than come out to the car park to find it dented up. It may seem superficial damage to some, but put yourself in his shoes and I bet you'd be peeved if it happened to your car. Cars are never the same after being repaired.
It's also great that Mary stuck around and a lot of emphasis has been placed on this point, but honestly, so she should have! So not only has she dinged up his car, she's inconvenienced him by sending him to get a quote for repairs and then he's had to wait to get it fixed because she hasn't got the money to make it happen immediately.
So through no fault of his own he's involved in an accident, he's forced to wait for repairs but then to top it off decides he'd rather have the cash - but Mary and the repairer decide he doesn't deserve it.....
He could have potentially been a real *rick about it all - shopped around for the most expensive quote, been more demanding on payment and getting his car fixed, but from what we know he wasn't any of these things. I think the guy needs to be given a bit more credit as some people wouldn't have been so obliging.
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Hey ratbag. I reckon if the acceptance of the contract was to fix the vehicle once the $ were paid to the repairer then the contract is between Mary and the car owner to fix the car. Once the car is sold the capacity is gone. Thoughts ?
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What accident?
btt.....
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Gidday Dazzler
Hey ratbag. I reckon if the acceptance of the contract was to fix the vehicle once the $ were paid to the repairer then the contract is between Mary and the car owner to fix the car. Once the car is sold the capacity is gone. Thoughts ?
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The matter is tricky in Contract Law, IMHO. Other than as a side issue, Contract doesn't apply at all in the issue between Mary and Commodore. His remedy and her liability lie in Tort (i.e. in Equity, in the main).
There are also Equity issues per se that could impact also.
IMHO, the morality is easier to sort out than the legalities in this case! Now, there's a turn up for a change!!
Morally, it is my belief that Mary should pay to the Commodore owner ["Commodore"] the difference in the price he received (assuming the transaction between Commodore and buyer were at arm's length ... ), and what he could reasonably have expected to have received had his car not been damaged by Mary. I had a similar "discussion" with a loss adjuster, then the loss adjuster's boss, WRT my niece's car when she was tail-ended by another car - long story ...
So if he got $5,000 and he could reasonably have been expected to get $5,800 if the damage caused by Mary had either not occurred, or had been repaired, then Mary would, in Equity, be obliged to pay him the $800 difference.
At Law, things get much more complicated, as the replies in this thread rightly attest.
AFAICS, a number of things impact here:
1) The car is no longer available for inspection (presumably) by an independent third party (e.g. his insurer/loss adjuster - even ... ). This makes it difficult, if not impossible to assess what the difference in value might have been.
2) In the absence of any pre-sale valuation of the car "as was", and the absence of any evidence from Commodore as to what he got from the sale, the point in (1) makes it even more difficult for Commodore to sustain any claim against Mary. Any proceedings should start with Mary's legal adviser issuing interrogatories in respect of these matters.
3) Chances are that he sold the car for more than the Glass's Guide price (bloody hard not to ... ), in which case there has been no detriment to him at Law.
4) Mary patently wants to do the right thing, and good on her for that. Determining what "the right thing" is, is the difficult part.
5) Mary could start by asking the questions I have outlined above in (2) and (3) to attempt to establish what "the right thing" is as a quantum of damages that Mary should pay to Commodore.
6) In the absence of any documentation being forthcoming from Commodore, I would advise Mary to: a) seek legal advice; and b) hang on to all the money until there is some concrete evidence that shows that Commodore has suffered any kind of financial loss. Payment of any amount could be interpreted as an admission of some liability, where there is none ATM on the (total lack of) evidence to hand presently.
Just IMHO, and FWIW.
[EDIT]
Another thought is that if he were insured, Mary's liability would initially extend only to payment of his excess. His insurer would then attempt to recover the balance over and above his excess from Mary, but they could be constrained by the court if she pleaded financial hardship. It is a tricky matter, whichever way one slices it.
[end edit]
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See - simple. LOL
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