legal question - advice - car accident

[muzza01]

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?

[terravista]

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.

[time]

Was it a verbal agreement?  If so it is not worth the paper it was written on 

[Lobster]

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.

[Bird]

What accident?

[Goose]

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.

[WilSurf]

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.

[The punter]

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

[dazzler]

What accident?

Ha ha


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[alnjan]

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 $$$.

[dazzler]

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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[jetcrew]

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.   

If Mr Plod had offered the panel beater $600 cash for his trouble I bet we would not be having this conversation.

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

[Darcy7]

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.

 

 

[muzza01]

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.

[Darcy7]

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.

[McGirr]

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

[chester ver2.0]

Hang on why did she agree to pay in the first place would not his or her compulsory 3rd party property cover the damage???

[noel_w]

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)

[Aaron Schubert]

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

[paulo]

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.

Maybe she can ask the panel beater for a signed copy of his version of events also.

[WilSurf]

The ex-Commodore owner should be happy that Mary waited on him and told him that she damaged his car.

[Homer_Jay]

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.

[Jeepers Creepers]

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.

[oldmate]

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.

Maybe she can ask the panel beater for a signed copy of his version of events also.

yep i rekon

[Mrs smith]

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 ?