Royce v Youi Pty Ltd[2018] QCAT 5

REASONS FOR DECISION

Introduction

1. [1]
   Cyclone Oswald deluged South East Queensland during January 2013, causing widespread flooding and damage to property. Insurance claims for property damage followed in large number. This case concerns the processing and outcome of one such insurance claim.

Facts and evidence

2. [2]
   Stephen Royce, the Applicant, together with his mother who was a passenger, was driving along Connection Road in the Tallebudgera Valley on the Gold Coast on 28 January 2013 at about 3:30 pm when his Nissan X Trail Registration Number 604 MXH (‘the vehicle’) stalled in floodwater across the road.^[1]
3. [3]
   Mr Royce got out of the vehicle and, with the assistance of another motorist who had stopped, pushed it out of the water and up the road out of harm’s way. However, the vehicle would not start so Mr Royce called for Roadside Assist. He says that no water entered the vehicle.^[2]
4. [4]
   The Roadside Assist person, who attended on Mr Royce, was also unsuccessful in starting the vehicle. He told Mr Royce, and Mr Royce accepted, that the engine’s electronics and sensors needed time to dry out and suggested that the vehicle be towed away “ ... as they could then ensure everything was working OK when it started.”^[3]
5. [5]
   Mr Royce called Gold Coast Tow Trucks. It sent out a tray top truck. The driver, Matthew Jestrimski, loaded the vehicle and drove Mr Royce and his mother home before continuing on with the Nissan X Trail to a storage yard.^[4] Mr Royce’s instruction was to tow it to “Robina Holden – Only.”^[5]
6. [6]
   That evening, at about seven o’clock, Mr Royce telephoned an after-hours emergency contact number for the Respondent, Youi Pty Ltd, his comprehensive motor vehicle insurer. He gave the insurer’s representative an account of what had happened. Being an emergency line, that call was not recorded.
7. [7]
   Mr Royce telephoned Youi again on 29 January 2013 at 7:13 am, in follow up. That call was recorded. A recording^[6] and typed transcript^[7] of the telephone discussion on 29 January 2013 is in evidence.
8. [8]
   The transcript of the recording establishes that Mr Royce asked for, and was given,^[8] an insurance claim number to pass on to the tow truck operator and that he was told that the call was recorded for training, contractual and evidentiary purposes.^[9]
9. [9]
   The following are excerpts from the transcript:

“I put a car in yesterday ... they haven’t got the claim number so I was wondering if I can get that so I could ring it through to the people who towed the car yesterday ...”

(Representative: Did you um, go through and lodge a claim with one of our advisers …)

“Yeah, yeah ... they didn’t call me back, so I don’t have the claim number.”

(Representative: I’ve found your policy number, but there’s no claim logged under that one ... after hours service don’t actually take the claim down, they just go through and as you mentioned, organised emergency transport and towing things like that .)^[10]

(Representative: ... so in order for us to go through and lodge a claim today, I must first advise you that our calls are recorded for training, contractual, and evidentiary purposes.)

“Yep.”^[11]

...

(Representative: Stephen so if you can run me through what’s actually happened in the incident I’m just going to be typing everything as we go ok)

“Yes, I’ve just ah been inundated with ah, I’ve come down to the road, that roads been blocked off by water, I’ve turned there’s been about three cars these guys with big four wheel drives.^[12]

I was just driving along, I thought there’s no depth meter at the end that I came into this ah bit of road and I’ve lived here for a long time so you have a look, ah then so I’ve started to turn, there’s a whole bunch of guys with large four wheel drives ...

They’re using tow ropes and things and they’re skiing through this thing, so anyways, so I’ve been inundated with water like, ah, you know, all over the front of the car, and two or three of these things and I’m just waiting so I can safely get back and so the car starts to splutter ... and then I get out and she stops, so that’s it.”^[13]

(Representative: Ok, so you’ve, they’ve flood waters that you’ve unfortunately gotten yourself into?)

“Well, no, it’s the cars going past and you know when a car goes through a puddle of water and it squirts all over your thing, so I’ve got three cars that have gone through and they’ve drenched the front of my car, but they’re using their cars to do aquaplaning and surfboarding through these ... you know, that section of road and that pathway ...

But the days leading up to that my stone tray underneath, we’ve gone through some puddles, don’t get me wrong you can’t get in and out of where I live without going through something but I’ve had to get home over the last few days, and my stone tray underneath, I had strapped that up, I don’t think that’s gonna make any difference as to how much water has um, been affected. ...

They’ve sprayed the water up over my car and then my car’s stopped working.^[14]

I waited for about an hour, I called roadside assist, I just had the bonnet up and at that stage of the day it wasn’t raining, so I just “oh, it’ll dry out” and they said no the water has gone oh I don’t know in the intake, or whatever it is, so I just went with that.”^[15]

10. [10]
    Also:

“So my biggest question, on my insurance policy, am I covered for a replacement car?^[16]”

(Representative: I’ll have to check that in a moment. ... okiedokie, so it’s not driveable, it has been towed, ok.)

“I mean no water got in the car itself, its just all the, whatever the …”

(Representative: In the intake.)

“Yeah that ...”

(Representative: Ok. Um, in relation to the car hire, you haven’t actually chosen the option on the policy, um, so you don’t have car hire on your policy.)

“Yep”

(Representative: Um what we can do, I’ll organise someone to go um, with the Gold Coast Tow Truck Light and Heavy, um, we’ll have to um get someone to go and take a look at the car, um if not we’ll move the car to a big holding yard that we have all of our cars that have been affected by the water um and we’ll get them all assessed at once.)

“Yep.”^[17]

11. [11]
    The Youi representative then explained the insurer’s claim procedure to Mr Royce:

(Representative: So um ... if the vehicle is repairable, obviously we’ll go through and do that, if it’s a total loss um then we’ll go through and process that one, you’ve got an agreed value here of thirty three thousand and four dollars so um, obviously the damage needs to exceed that amount before we write it off.)^[18]

12. [12]
    To which Mr Royce responded:

“I can’t see that, all they have to do is (inaudible) I’d imagine.”^[19]

And:

(Representative: that’s ok, yeah I haven’t seen the car so I can’t really comment I’m just letting you know what the processes are ... now a six hundred and fifty dollar excess does apply to the claim um, that’ll just get paid to the repairer on completion of the repairs, um, what we’ll go through and do I’ll send an SMS to your mobile phone so that’s gonna have my contact details and the claim reference number)

“Yep”

(Representative: And I’ll give you the claim number over the phone now if you like)

“Yes that’ll be great.”

(Representative: so two six six four zero seven three)

“Yep.”^[20]

(Representative: I’ll be looking after the claim here for you, um, so as I mentioned before we’ll get um our assessing team to take over the car side of it now and they’ll look to either move the car to a repairer or an um, as I say that other assessment area that we’ve got set up, ok?)

“Right, and um, so that stone tray too, they’d come off going through some water too and it’d started flapping so I’d tied that up with a bit of shoelace on one side but the thing kept on flapping so I’d taken the whole thing off ... it’s only a plastic stone tray.”^[21]

13. [13]
    Later that same day, Mr Royce received a telephone call from a Youi assessor assigned to the claim, Mr Banwell, who told Mr Royce that the vehicle had been written off. Mr Royce asked whether this was a practical joke. Mr Banwell said that it was not.
14. [14]
    Mr Banwell told Mr Royce that he’d spoken with the tow truck driver who said that the water had been up to the door handles. Mr Banwell said that the interior was soaked. He said that Mr Royce should collect his personal property from the vehicle.^[22]
15. [15]
    In turn, Mr Royce called Youi and insisted that there’d been a mistake because, he said, no water had entered the vehicle internally. He says that the insurer took no steps to have another Youi assessor look at the vehicle and review Mr Banwell’s assessment. An internal Youi review at that time reached no different conclusion.
16. [16]
    On 30 January 2013, i.e. the next day, Mr Royce attended the holding yard in which the vehicle was parked to collect his belongings. He started the engine. It ran well. He turned it off after two or three minutes.^[23] The logbook and service documents,^[24] which he collected from the vehicle, were dry.^[25] He left.
17. [17]
    Mr Royce says that he noticed that the carpet in the vehicle was wet. He assumed that someone had left the windows or doors open at the holding yard.^[26] However, he does not say that the windows or doors were open when he attended the holding yard.
18. [18]
    Mr Royce’s assumption with respect to the cause of the wetting of the carpet is unsupported by Mr Banwell’s photography^[27] of the vehicle on 29 January 2013. It shows the windows and doors of the vehicle closed, except where doors had obviously been opened for Mr Banwell to photograph the inside of the vehicle from the outside.
19. [19]
    Mr Royce says that he made further calls to Youi to have someone correct Mr Banwell’s “error,” as he puts it, but his actions were to no avail and there was no follow up from Youi.^[28]
20. [20]
    Youi logged the claim as complete on 31 January 2013.^[29] It settled Mr Royce’s claim on or about 13 February 2013 as a “total loss.” That expression has a contractual significance. According to the policy definition which I will later quote in full, total loss meant that Youi had decided that the vehicle was damaged to an extent that it was not safe to repair.
21. [21]
    Youi paid out the vehicle agreed value of $33,004.00.^[30]  It did so by payment of $28,238.57 to St George Finance, which had a registered security interest over the vehicle, and $4,140.43 to Mr Royce after deduction of the policy excess of $625.00 payable by him (“the settlement”).
22. [22]
    The market value of the vehicle, by reference to comparable vehicles of the same age, make, model and mileage, but excluding the Couplertec Rust Protection System fitted to the vehicle and a set of roof racks (“the add ons”) shown in Mr Banwell’s photographs, was between $25,500 and $28,000.^[31] Therefore, the agreed value exceeded the market value of the vehicle by several thousand dollars.
23. [23]
    Mr Royce accepted the amount paid to him and the benefit of the discharge of his liability to St George Finance. He neither objected nor reserved his rights. He did not, and does not, bring the settlement into account in respect of the money claim which he makes in these proceedings.
24. [24]
    Youi arranged to put the vehicle to auction for salvage through Pickles Auctions. Mr Royce spoke with Mr Simon Watson, Youi’s Car Assessing State Manager, on 1 February 2013. He asked about possibly buying the vehicle back from Youi. Mr Watson explained that the vehicle could not again be registered for road use and that it would be sold for parts only.
25. [25]
    Mr Watson’s contemporaneous electronic file note of the telephone discussion, which I accept as accurate, says, “Customer understands. No further concerns.”^[32] Mr Royce thus acquiesced in the final stage of the process, disposal of the salvage.
26. [26]
    Mr Royce attended the Pickles auction of the vehicle on 28 February 2013 as a bidder. The Salvage Vehicle Auction List published by Pickles for the sale on 28 February 2013 referred to the vehicle (Lot 438) as a Statutory Write-off. Alex Coleman, the auctioneer, announced that fact to the public no less than six times before selling the written-off Lots.^[33]
27. [27]
    Against a competing bidder, Mr Royce bought the written-off vehicle back for $7,858.00 at the auction. He says he believed that an independent review would correct the error.^[34]
28. [28]
    Mr Royce called for further information from Youi on 15 September 2015 and complained about the total loss assessment in a telephone call to Youi on 11 July 2016.
29. [29]
    In his email to Joel Carpenter of Youi’s internal disputes resolution service dated 20 July 2016, over three years after settlement, filed in these proceedings, Mr Royce said:

“I simply want Youi to take steps to have the car taken off the register of written off vehicles. I will then take the steps to have ... a roadworthy certificate issued.”

30. [30]
    Youi carried out an internal review, which affirmed the original decision to write the vehicle off, and informed Mr Royce of such on 25 July 2016.

Applicant’s affidavit

31. [31]
    In addition to his oral evidence at the hearings, Mr Royce says in an affidavit^[35] that he did not make, or intend to make, a claim^[36] on the policy. That is clearly untrue.
32. [32]
    The transcript of the telephone recording on 29 January 2013, to which I have referred, establishes without doubt that Mr Royce both intended to make, and did make, a claim on the policy. The claim set in train the processes to which the Youi representative had referred. They carried through to completion and the settlement.
33. [33]
    In his affidavit, Mr Royce also says that he was told by Youi staff that no recordings of his calls on 28 and 29 January 2013 were “captured.”^[37] That is partly untrue. Mr Royce was specifically told of the fact and the purpose of the recording of that telephone call on 29 January 2013, which he acknowledged without objection.
34. [34]
    Ultimately, but only after receiving and reviewing the transcript, Mr Royce conceded that he had in fact made a claim on the policy. He admitted that the transcript of his call on 29 January 2013 is accurate.
35. [35]
    In his affidavit, Mr Royce refers to the fact that Gold Coast Towing has no repair facilities or equipment but is referred to as a repairer in Mr Banwell’s assessment report.^[38] However, nothing turns on that seemingly inaccurate description.
36. [36]
    Mr Royce says that the vehicle was towed to the Gold Coast Towing yard against his written instruction,^[39] however the transcript clearly establishes that he was told that the vehicle would be inspected there, or at a big holding yard, which he acknowledged, and in which process he acquiesced.
37. [37]
    Mr Royce says that he did not indemnify Youi against any losses that he might suffer that “... are not part of my insurance policy” or any losses or costs that Youi incurred based on their own errors. He refers to Youi’s payment of $28,238.57 as one relevant example.^[40]
38. [38]
    Perhaps unsurprisingly in the modern era of transactional expedition, Youi did not require that Mr Royce sign a release, discharge and indemnity in consideration of the receipt and benefit of settlement.
39. [39]
    In his affidavit, Mr Royce does not acknowledge that Youi’s payment of the settlement sum was a benefit to him. Mr Royce was relieved of the liability for the residual amount of his indebtedness to the financier when Youi discharged the loan and he was paid out the balance of the agreed value of the vehicle, less the policy excess.
40. [40]
    In his affidavit, Mr Royce refers to, but does not exhibit, a Form F 4054 which he says is a standard document, available to any written-off vehicle notifier, Youi in this case, and that can be found in the corporate form area of Queensland Motor Transport.
41. [41]
    Mr Royce says that Form F 4054 allows corrections to be made to documents which notifiers have filed^[41] but I am not satisfied, on the state of the evidence that is, that the write-off of a vehicle can be reversed by that process.
42. [42]
    Mr Royce asserts an estoppel against Youi in “... seeking to now revert to the statutory write off defence of their glaring and numerous errors.” This, properly, is a matter for submission, not evidence. I will consider it as such, later.

Affidavit of Kevin Royce

43. [43]
    Kevin Royce is Mr Royce’s brother. He is a qualified motor mechanic. In his affidavit sworn on 14 March 2017, Kevin Royce says that he carefully examined the vehicle in his brother’s presence at the Pickles auction on 28 February 2013.
44. [44]
    In summary, Kevin Royce says that:

    1. There were no dirty water marks anywhere within the vehicle;
    2. There were no dirty stains or water marks over the door sills or via the air-conditioning vents;
    3. There was no smell within the vehicle other than leather;
    4. There was no pooling of water anywhere and no water in the glove box, door document holders, cup holders and floor areas;
    5. There was no debris within the engine compartment or on the electrical components;
    6. There were no tell tail signs of water along the air intake system that leads to the air filter within the car, just an even dust pattern;
    7. The vehicle was in excellent order;
    8. His brother’s version of events matched the vehicle’s condition; and
    9. In contrast, other vehicles written off for water inundation going to auction that day which he inspected had clearly visible signs of water staining, water presence, and smelt rank.^[42]
45. [45]
    Kevin Royce says that the vehicle was transported back to his workshop at Salisbury after the auction and that the engine started without any work required.
46. [46]
    Though hearsay through him, and therefore of little, if any, weight in proving the fact independently in these proceedings, Kevin Royce also says that the tow truck driver delivering the vehicle to his workshop stated that “... someone got this wrong, there’s not a water mark within this car.”
47. [47]
    I must consider Kevin Royce’s evidence in support of Mr Royce (Stephen Royce) with circumspection, given the sibling relationship.
48. [48]
    I do not accept Kevin Royce’s findings and conclusions in (g) and (h), summarised above,^[43] because:

    1. He does not acknowledge or consider his brother’s reference to inundation of the vehicle confirmed in the recording and typed transcript of the telephone call to Youi on 29 January 2013, to which I have referred earlier;
    2. He says (only) that he (Kevin Royce) had been told that “no water had entered the X Trail” and that “the car had stalled in water”^[44] and does not refer to the fact, confirmed by both his brother and the roadside assist person, that water had in fact entered the engine air intake and wet the engine electronics and sensors;
    3. On his own evidence^[45] of the position of the engine air intake position at .9 of a metre (or 900 mm) above ground, water surge and/or spray from  four wheel drives aquaplaning and surfboarding through the floodwater described by Mr Royce^[46] must therefore have reached at least that height within the engine bay immediately prior to the engine spluttering and stalling in the flood water, before receding; and
    4. Photographs forming part of Mr Banwell’s assessment report show residual water droplets and some residual water and debris in the engine air intake housing and some associated debris in the air filter itself.^[47]
49. [49]
    I also do not accept Kevin Royce’s evidence^[48] that Mr Banwell’s photographs show an unidentified car, implicitly, not his brother’s car, with water coming from its exhaust.
50. [50]
    On the contrary, the colour photographs attached to Youi’s submissions and numbered 62 to 100, taken at the holding yard by Mr Banwell on 29 January 2013, in combination show Mr Royce’s vehicle throughout, even though the vehicle registration plate 604 MXH appears in only some of them.
51. [51]
    Two of a number of original assessor’s photographs filed by Mr Royce clearly show the back registration plate of the same vehicle in shots looking from the left toward the rear of it. It is the same vehicle that is depicted in Mr Banwell’s other photographs.
52. [52]
    They show the letters “ARK”^[49] on the ground immediately beyond the rear of the vehicle, the same letters that appear in the same position on the ground in Mr Banwell’s other photographs which show water coming from the exhaust of the vehicle where the rear registration plate is not depicted.
53. [53]
    Further, there is no evidence, whether from Kevin Royce, his brother, or anyone else, that there was another Nissan X Trail of the same colour and configuration as Mr Royce’s vehicle in the holding yard at the time, with which his vehicle might have been confused in the photography.
54. [54]
    Kevin Royce says that water within a muffler, catalytic converter and exhaust system is “common.”^[50]
55. [55]
    However, I do not accept that the obviously significant quantity of water and water spray pictured coming from the exhaust of the vehicle and sprayed on the ground in the immediate vicinity of the vehicle tail pipe,^[51] when started the day after the incident, was normal or “common.”
56. [56]
    Mr Banwell’s photographs permit the inference, which I draw, that water entered the exhaust system through the tail pipe when the vehicle stalled in the floodwater and, therefore, that the floodwater must have reached that level, at least momentarily, to explain the ingress.
57. [57]
    I accept Kevin Royce’s evidence that Mr Banwell’s assessment report contained the following errors:

    1. The vehicle’s transmission was not manual as stated, it was (and is) automatic;
    2. The stated month of manufacture was incorrect;
    3. The Model Sheet Number “Z87” was incorrect, in fact the number on the compliance plate photographed by Mr Banwell is “T31” which is also recorded in the log book and owner’s manual; and
    4. The vehicle status section referred to heavy panel damage, whereas the vehicle had suffered no panel damage in the flood and Mr Banwell’s photographs do not show heavy panel damage.
58. [58]
    However, see Mr Royce’s letter of demand to Barry Banwell dated 12 March 2013^[52] (soon after buying the vehicle back at the Pickles auction) in which Mr Royce demanded compensation in various amounts including “Replace front bumper, brackets and paint, damaged prior to my pre-purchase - $1,500.”
59. [59]
    Youi admits that the assessment report, which it describes as an Audatex Value Report, was incorrect in these respects. It says that the process is susceptible to human error. I will refer to Youi’s explanation later.^[53]
60. [60]
    There is no evidence before me to show that Youi lodged the assessment report with the Department of Transport and Main Roads.
61. [61]
    The formal notification of write-off^[54] lodged by Youi with the Department of Transport and Main Roads is a two-page document that does not contain any vehicle specification errors. It refers to the write-off type as statutory, for water damage.
62. [62]
    Finally, in his affidavit, Kevin Royce itemises by description and amount, claims, costs, outlays, and prospective outlays, totalling $5,415 in connection with the return of the vehicle to his workshop after the auction,^[55] none of which are vouched for by him.

Safety Certificate

63. [63]
    Mr Royce relies on a copy of a safety certificate^[56] of vehicle examiner Paul West of Autoking Southport dated 17 October 2016, proving that the vehicle passed a roadworthy test on that date at Mr Royce’s home.
64. [64]
    The odometer reading was 85,153 kilometres. The vehicle’s odometer reading as at 29 January 2013, the day after the incident, was 85,141 kilometres.^[57] In other words, the vehicle had travelled a mere 12 kilometres in over three and three quarter years. That is unsurprising, it cannot be registered and driven on a public road.

Statement of Paul West

65. [65]
    In a handwritten statement in a tax invoice dated 17 October 2016, Mr West states that he thoroughly checked the vehicle for any signs of flood damage. He says that he “could not fault. (sic)” and that all electrics were “faultless,” as was the electric rust prevention system.
66. [66]
    Mr West refers in his statement to 30 years of experience and he says that his report is thorough and genuine. This statement is general in observation and conclusion. Mr West does not say what checks he made for corrosion or any electronic malfunction in the vehicle.
67. [67]
    Nevertheless, Mr West’s statement must be read in conjunction with his roadworthy certificate^[58] that identifies the parts of the vehicle inspected and passed (with a tick), namely:

“Identification, Seats and restraints, Lights and electrical components, Windscreen and windows, Body and chassis, Steering and suspension, Wheels and tyres, Brake components, Engines and drivelines, Exhaust emissions, Road test, Service brake test, Hand brake test.”

Affidavit of Jason Storey 

68. [68]
    Jason Leonard Storey, the Respondent’s head of assessing and investigations, was general manager of claims and assessing with the Respondent at the time of the Applicant’s insurance claim on 29 January 2013.
69. [69]
    In his affidavit,^[59] Mr Storey says that:

    1. Mr Banwell had completed assessment/e-learning that covered the National Motor Vehicle Theft Reduction Council’s National Training Course and that Youi invests significant time and expense in both internal and external accredited training of assessors to equip them in making accurate assessments;^[60]
    2. In the months prior to Mr Royce’s claim, water inundation guidelines had changed, reducing the threshold for a statutory write-off classification;^[61]
    3. The guidelines have, over time, become more explicit in acknowledging that it is often difficult to determine long term effects of moisture and water ingress in terms of structural corrosion and the effects of moisture on sensitive electronic components and wiring, including safety systems;^[62]
    4. Youi is audited internally and externally by State agencies for vehicle assessors’ compliance with relevant write-off legislation. He says that accurate determination of the repairable and statutory write-off status of total loss vehicles is vital to ensure satisfaction of legislative requirements and that safe, quality repairs are achieved where appropriate;^[63]
    5. Youi has been extensively audited by external authorities and acknowledged for its successful satisfaction of the classification of statutory write-offs;^[64]
    6. Given extensive auditing and strict penalties, it is not uncommon for a motor vehicle assessor to err on the side of caution when inspecting and assessing possible statutory write-offs, that the legislation and guidelines have been developed to safeguard motorists and consumers by ensuring only vehicles that can be safely repaired are repaired and returned to registered use;^[65] and
    7. Though he did not physically inspect Mr Royce’s vehicle after the incident, he did review the incident as described by Mr Royce and the photographs of the vehicle and that he considers that it was not unreasonable to assess the vehicle as a statutory write off.^[66]
70. [70]
    I accept that Mr Storey is a certified motor mechanic and assessor with over 28 years of experience in the motor vehicle and insurance assessing industries and that he has the extensive qualifications to which he refers in his affidavit.^[67]
71. [71]
    I also accept the stringency of audit guideline compliance to which Mr Storey refers and, in a consumer age, the need to err on the side of caution.
72. [72]
    I afforded Youi the chance to inspect the vehicle at Mr Royce’s home for a forensic report. That opportunity was foregone without explanation from the insurer. Also, though it appears that Youi intended to supply an affidavit of Mr Banwell,^[68] that was never forthcoming.
73. [73]
    Whilst I accept that Mr Banwell is no longer in Youi’s employ,^[69]  Youi’s failure, without further explanation, to produce Mr Banwell as a witness or to file an affidavit permits the inference that his evidence would not have further assisted the insurer.^[70]
74. [74]
    Similarly, Youi’s failure to take up the inspection opportunity to ascertain the current condition of the vehicle.

National Vehicle Write-Off Criteria

75. [75]
    National Written-off Vehicle Criteria,^[71] for water damage vehicle write-off include the following:

“Where the internal cabin of a vehicle is inundated with any water (fresh, salt and/or brackish water) such that the internal cabin water level rises above the level of the inner door sill for any period the vehicle is to be classified as a SWO.”^[72]

76. [76]
    Further:

“A SWO may only be sold subject to a statutory restriction that it may only be used for parts or scrap metal.

...

A vehicle determined to be a total loss must also be assessed against the criteria set out in this guide to determine its classification. There are 11 categories of potential damage that each vehicle must be assessed against, comprising:

• Three forms of specific ‘event’ related criteria (fire, water and vehicle stripping). If the vehicle meets any of these criteria, it must^[73] be classified as a SWO; and
• Eight separate areas of potential structural damage to be reviewed. These are set out on pages 4-20 of this guide.

...

The criteria have been developed to err on the side of caution in terms of safety to ensure that vehicles that have sustained significant damage are consistently identified and appropriately classified as suitable only for dismantling or processing as scrap.”

Banwell report

77. [77]
    Mr Banwell’s assessment of the vehicle as a statutory write-off is somewhat impugned by his incorrectly completing the assessment report^[74] in the respects to which I have already referred. Errors such as those do not inspire confidence in the author’s attention to detail.
78. [78]
    Mr Banwell’s report took into account an oral statement of the tow truck driver, presumably Mr Jestrimski, whom the Respondent did not call to give evidence, who said that “ ... the water was up to the door handles.”
79. [79]
    Mr Banwell was entitled to take this anecdotal information from the tow truck driver into account, but that would be no substitute for his own observation and conclusions. However, for the purpose of these proceedings, the tow truck driver’s statement is hearsay as to the fact.
80. [80]
    There is no evidence to establish that Mr Jestrimski was present at the time of the incident and witnessed it firsthand. Though the Tribunal is not bound by the rules of evidence, the tow truck driver’s mere assertion, repeated in Mr Banwell’s report, carries little, if any, weight as evidence in these proceedings.
81. [81]
    Youi’s failure, without explanation, to produce an affidavit from Mr Jestrimski of Gold Coast Towing, permits the inference that his evidence would not have assisted Youi’s case either.
82. [82]
    Mr Banwell’s assessment notes also state, without identifying the source of the information, that “... the vehicle has been driven in deep water” but one is left to speculate whether this information was provided by Mr Jestrimski or by some other unidentified person or whether it was a conclusion drawn from Mr Banwell’s own inspection and observation.
83. [83]
    Mr Banwell’s assessment notes include that the:

“…carpet (was) soaked, interior steamed up, airbags would have to be replaced, electrical components would have to be replaced, engine was full of water, (and) air box full of water.”

84. [84]
    Certainly, the photographs^[75] of the vehicle taken by Mr Banwell depict wet carpet in the vehicle but there is no photograph which depicts the vehicle interior steamed up. Other photographs^[76] of the interior do not depict more pervasive internal dampness than just the cabin floorpan carpets.
85. [85]
    I accept that Mr Banwell’s inspection of the vehicle occurred after a catastrophic weather event where more than 1,400 claims were reported in 96 hours^[77] and that Mr Banwell completed approximately six (6) inspections per day.^[78]
86. [86]
    I therefore accept that there were serious time limitations imposed upon Mr Banwell. Haste explains his input errors to some degree and his reliance on the statements of others in combination with his own inspection and photography in reaching the conclusion that the vehicle should be written off.
87. [87]
    In summary, notwithstanding the absence of an affidavit from Mr Banwell, I am satisfied on the balance of probabilities on the totality of the parties’ evidence that:

    1. Flood water and water spray entered the engine air intake by reaching an under bonnet level of at least 900 mm from the ground, wetting the engine electronics and sensors and causing the engine to stall;
    2. Flood water also entered the vehicle’s exhaust system through the tail pipe to that level as well; and
    3. Some water did enter the cabin floor area wetting the carpets.
88. [88]
    However, the evidence presented in this case is insufficient to establish that the cabin of the vehicle was inundated to the extent that the water level inside rose above the level of the inner door sill for any period, such that Youi was compelled by the guidelines to write the vehicle off as it did.
89. [89]
    That does not mean that Youi could not write the vehicle off as a total loss in its discretion according to the policy terms and conditions as in fact occurred.

Affidavit of Julia Thompson

90. [90]
    Ms Thompson is in-house legal counsel employed by Youi. She affirmed her affidavit on 3 March 2017, to which is exhibited:

    1. The Insurance Policy and Schedule (Exhibit A);
    2. Mr Banwell’s assessment report (Exhibit B);
    3. The Payment Screens contained in the record of insurance claim  confirming that Mr Royce was fully indemnified for his loss under the policy which was for an agreed value (Exhibit C); and
    4. The contemporaneous notes of Simon Watson, Youi Assessing State Manager which confirm that Mr Royce was advised that the salvage of his vehicle would be disposed of through Pickles Auctions for sale for parts only and that the vehicle could not be re-registered for road use (Exhibit D); and
    5. The Pickles Auctions report for the sale of the vehicle (Exhibit E).
91. [91]
    Exhibits A, C, D and E, in form and content, are not in dispute. Exhibit B, in the respects to which I have referred, is in dispute.

Affidavit of Andrew White

92. [92]
    Mr White is Youi’s Actuarial Manager. He affirmed his affidavit on 4 May 2017, has been employed with Youi since 2010, and is responsible for actuarial and underwriting management of the Youi Car Insurance product including rating premium. Mr White’s evidence is not challenged by Mr Royce.
93. [93]
    Mr White refers to Mr Royce’s claims history with Youi and explains that his policies were re-rated annually on a renewed basis having regard to a claim in 2011 for accidental damage to a Holden Barina, a claim in 2012 for malicious damage by an unknown person to the Nissan X Trail glass, and the claim in 2013 the subject of this proceeding.
94. [94]
    Mr White explains the basis of premium increases through those years according to claims experience and that there was an increase from 5% to 9% on stamp duty payable to the Queensland Government on 1 August 2013 which had no immediate impact on Mr Royce’s premium.
95. [95]
    Mr White says, and I accept, that the combination of previous re-rates and amendments, the detail of which is stated elsewhere in his affidavit but unnecessary for me to repeat here, meant that the claim giving rise to this matter did not impact Mr Royce’s renewal premium in the 2013 or 2014 renewal.

The Insurance Policy

96. [96]
    The insurance policy^[79] and its terms and conditions are not in dispute. Insofar as inspection after notification of an insured event is concerned, Clause 2 (Insured’s Responsibilities) provides as follows:

“You must ... allow us the opportunity to view the insured property unchanged directly following an insured event, inclusive of any damaged goods or property that you are claiming for. You must not repair, sell or otherwise dispose of any property prior to advising us of the damage and allowing us the opportunity to assess the damage. This includes providing us the opportunity to assess unsatisfactory repairs that need to be rectified, unless emergency repairs are required to prevent further loss or damage to the insured property…”^[80] 

97. [97]
    Clause 3, as to salvage, provides that:

“You must ... at our discretion, deliver to us any damaged or destroyed goods or items ... for which we have paid your claim. These salvage items become our legal property.”^[81]

98. [98]
    As to Storm or Flood , Clause 3 (Insured Events) provides that:

“If you have chosen Comprehensive cover, we will pay for accidental damage caused by a storm or a flood.”^[82]

99. [99]
    As to General Exclusions, the policy provides that:

“We will not pay for loss, damage or legal liability caused directly or indirectly by:

wear and tear, rust, corrosion or deterioration;^[83]

mechanical, electrical or electronic (including computer software) breakdown or failure.”^[84]

100. [100]
     Insofar as claims under the policy are concerned, the policy provides that:

“If you claim under your policy, we have the choice to settle your claim in   any of the following ways:

1. Settle your claim by:

• Paying for the reasonable cost of repairs; or
• Paying to you an amount equal to the reasonable cost of repairs; or
• Paying to you the market value or agreed value of your car, depending on the cover shown on your policy schedule; or
• Replacing your car;
• Any combination of the above.

2. At our option, pay in full any sum owed to a financier or legal owner of your car, from any settlement.^[85]
3. If you have Agreed Value cover, non-standard or after factory fitted accessories are included in the agreed value.”^[86]

101. [101]
     The Excess Clause provides that:

“For each and every claim you make under your policy, you are required to pay an excess.”^[87]

102. [102]
     Finally, insofar as is relevant to this case, policy definitions include:

1. “Agreed value means the amount shown on your policy schedule, which we agree to insure your car for at the time of the loss. We may change this amount at each renewal date of your policy and will advise you of the new agreed value before we renew your policy.”^[88]
2. “Excess means the first amount you must pay in relation to each and every claim made under your policy.”^[89]
3. “Total loss means when your insured property is damaged to the        extent that we decide it is not economical or safe to repair, or it is stolen and not recovered.”^[90]

Claim

103. [103]
     When the Tribunal may exercise jurisdiction for a minor civil dispute is set out in section 12 of the Tribunal’s Act.^[91] The discretion to exercise minor civil dispute jurisdiction depends upon a “relevant person,” a consumer in this case, applying for the Tribunal to deal with the dispute^[92] for not more than the prescribed amount.^[93]
104. [104]
     Originally, Mr Royce’s consumer claim was for $19,786.16, including the filing fee. Subsequently, with leave, Mr Royce amended^[94] his claim to $25,000, the limit of the Tribunal’s monetary jurisdiction in minor civil disputes, abandoning the substantial balance of the claim, the breakdown of which I will refer to later.

Amended Claim

105. [105]
     In his amended claim, Mr Royce wants the Tribunal to make the following orders:

“1 That the Tribunal makes a declaration under section 60 of the Queensland Civil and Administrative Tribunal Act 2009 (“QCAT Act”) that:

1. The (sic) Youi Pty Ltd assessment reports numbered 7113 conducted on the 29.01.13 are inaccurate and at odds to (sic) the evidence and will be reissued pursuant to the points hereunder; items (i. to ix) .. Or further as the tribunal sees fit.
   1. The car is an Automatic. Not a manual as stated.
   2. The car is a Nissan X-Trail T 31. Not Z58 as stated.
   3. The month of manufacture is 2/2010. Not 3/2010 as stated.
   4. That there is no panel damage. Not Heavy Panel damage or unroadworthy as stated.
   5. That repairs are to be noted as Nil. Not the list as shown within the current document.
   6. That no water inundation was visible or evident inside the vehicle.
   7. That no water was evident within the motor, the car started without any works being undertaken or needed.
   8. That the vehicle is available for collection by the owner.
   9. The damp carpets within parts of the car occurred after the vehicle was towed.

2. That Youi Pty Ltd notice (sic) to the Queensland Department of Transport and Main Roads Written off Vehicle Register concerning
   1. The applicants 2010 Gold Nissan X-Trail, Identification number; JN11ANT31A0052751 (former reg number 604MXH) is at odds to the evidence and is to be corrected by Youi Pty Ltd (respondent) pursuant to these declarations and orders.
   2. That the corrected notification is then to be forwarded to Queensland Department of Transport and Main Roads Written off Vehicle Register and a copy of that supplied to the applicant. Including a covering letter and a copy of the tribunals declarations, orders and intent.
3. The intent of this declaration and orders are to;
   1. Have the Gold 2010, Nissan X-Trail (formally (sic) reg (sic) as 604MXH) ID number JN11ANT31A0052751 taken off the written off register.
   2. It could then be used or registered subject to all requirement (sic) of registration being met.
4. Definition of; “water inundation” in this instance is.(sic)  Any pooling of water above 5 mm.

2. Make orders giving effect to the declarations, under s 60 QCAT Act 2009, allowing 14 days for compliance.

3. Order Youi Pty Ltd to pay damages/restitution or combination of these to the Applicant to the amount of $25,000^[95] within 14 days of this order.

4. That if interest and or (sic) the filing fees can be added to the $25,000 damages/restitution (or a lessor (sic) amount so awarded) that this occurs, so long as that does not affect the maximum amount that can be awarded.”

Discussion

Declarations

106. [106]
     Only a legally qualified member^[96] may make a declaration, binding on the parties to a proceeding,^[97] about a matter in a proceeding instead of, or in addition to, an order it could make.^[98] The declaratory power is in addition to the power to make a declaration under an enabling Act.^[99]
107. [107]
     I am a legally qualified adjudicator, not a legally qualified member, of the Tribunal, so unless pursuant to an enabling Act which expressly authorises it, I have no power to make the declarations sought by Mr Royce. However, I am empowered to make orders in minor civil disputes in terms prescribed by section 13 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“QCAT Act”) and as empowered in an enabling Act such as the Australian Consumer Law.
108. [108]
     Even if I had the power to make the declarations sought by Mr Royce in the respects sought in paragraph 1(a)(i) to (ix) of the Consumer Claim, which I do not,  I would have declined to exercise it because facts are routinely found, not declared, in the process of giving reasons for a decision. Findings of fact are as binding on the parties as are declarations and orders made to dispose of a dispute in the Tribunal.
109. [109]
     Insofar as the interest declaration sought by Mr Royce is concerned, making a declaration about whether interest may be added to the claim, which Mr Royce wants in terms of paragraph 4 of the orders sought, is unnecessary. Where claimed, interest may be allowed in the exercise of discretion.

Injunction

110. [110]
     Mr Royce wants a mandatory injunction requiring that Youi notify the Department of Transport of the matters referred to in paragraph 1(b) of the orders sought.
111. [111]
     As with the power to make declarations, the exercise of injunctive power is qualified.^[100] A legally qualified member, but not a legally qualified adjudicator,^[101] constituting the Tribunal may by order grant an injunction, whether on notice or ex parte^[102] and whether on application of a party or of its own initiative,^[103] including an interim injunction in a proceeding if it is just and convenient to do so.^[104]
112. [112]
     The limitation period for a claim for loss or damage arising out of a contravention of the provisions of chapter 2 or 3 under the Australian Consumer Law is six years.^[105] The limitation period for a claim for damages for breach of contract is also six years in Queensland.
113. [113]
     Mr Royce filed his consumer claim in this Tribunal on 23 November 2016, approximately three years and ten months after the incident. Though filed within the limitation period, delay in bringing these proceedings is a relevant consideration against granting injunctive relief.  Even if I had the power to enjoin Youi, I would not have done so because of Mr Royce’s inordinate delay.

Orders of Intent

114. [114]
     It is neither necessary nor appropriate that the Tribunal declare the intent of orders. Orders carry their literal meaning. Anything more by way of explanation is, as a general proposition, superfluous and inappropriate. Accordingly, and because the orders for declarations and injunctions will not be made, the orders sought by Mr Royce in paragraph 1 (c) will not be made either.

Order for Definition of Water Inundation

115. [115]
     It is neither necessary nor desirable that the Tribunal define what water inundation means by making a metric order in the terms sought by Mr Royce in paragraph 1 (d).
116. [116]
     I have earlier referred to, and quoted from, the National Written-off Vehicle Criteria, as they might apply in this case. There is no fixed measurement as such. Rather, the threshold for water damage write-off under the guidelines is internal cabin water level rising above the inner doorsill for any period.
117. [117]
     The doorsill height will differ in measurement from one vehicle to another. Accordingly, no Order in terms of paragraph 1(d) of the orders sought by Mr Royce will be made.

Orders Giving Effect to Declarations

118. [118]
     In paragraph 2 of the orders sought, Mr Royce wants the Tribunal to make orders giving effect to the declarations which he seeks. Undoubtedly, the Tribunal has the power to make orders to give effect to declarations that it makes,^[106] however, for the reasons already stated, I will not make any of the declarations sought by Mr Royce. Therefore, there can be no related orders.

Damages and Restitution

119. [119]
     The nub of Mr Royce’s claim, in terms of paragraph 3 of the orders sought, is for damages in the amount of $25,000 or restitution or a combination of damages and restitution within 14 days.
120. [120]
     Correctly characterised, it seems to me that Mr Royce’s claim is variously a liquidated demand of money within the meaning of section 12(4)(a) of the QCAT Act, to the extent of the policy excess, and otherwise a consumer claim under section 12(4)(b) of the QCAT Act for unliquidated damages in the respects to which I refer later.
121. [121]
     Mr Royce submitted that his claim for damages is also justiciable in the Tribunal under section 12(4)(d) of the QCAT Act for property damage arising out of the use of a motor vehicle.
122. [122]
     Clearly, Mr Royce’s claim is not one for property damage arising out of the use of a motor vehicle. It is a claim for damages against his own comprehensive motor vehicle insurer arising out of the allegedly incorrect assessment of damage to his own motor vehicle resulting in it being declared a total loss and statutory write-off.
123. [123]
     Mr Royce also submitted that his claim for damages is justiciable in the Tribunal for breach of a contractual term of due care and skill implied by the common law^[107] in respect of services. I accept that such a claim is within Tribunal jurisdiction when for a liquidated demand of money within the meaning of section 12(4)(a) of the QCAT Act.
124. [124]
     However, where a claim is for unliquidated damages for breach of a duty of care and skill implied by the common law, is it justiciable in the Tribunal even though the cause of action does not arise under the ACL? It is, in my opinion, because the transaction itself was one between consumer and trader and the claim is between a consumer and trader.
125. [125]
     The boundary between what is a liquidated, as opposed to an unliquidated, demand for money is sometimes difficult to ascertain with certainty.
126. [126]
     Examples of a liquidated demand of money include:

1. “ ... an amount that can be ascertained by calculation or fixed by any scale of charges, or other positive data.”^[108]
2. “ ... damages recoverable in satisfaction of a right of recovery created by the contract itself and accruing by reason of the breach, while ‘unliquidated damages’ are compensation as assessed by the Court for loss occasioned by breach.”^[109]
3. “ ... a claim for which the action of debt would lie; for which an ‘indebitatus’ (or ‘common’) count would lie – including those cases formerly covered by the quantum meruit or quantum valebat counts, notwithstanding that the only agreement implied between the parties in such cases was for payment at a ‘reasonable’ rate; for which covenant , or special assumpsit, would lie, provided that the claim was for a specific amount, not involving in the calculation thereof elements the selection whereof was dependent on the opinion of a jury.”^[110]

127. [127]
     Examples of what is not a liquidated demand of money include:

1. “... where there is an absence of a contract ... and hence the absence of any formula or mechanism under a contract by which (Mr Summers’) claim could be calculated ... (meaning that) in truth, his remedy was always in the nature of a quantum meruit claim, i.e. for fair recompense for work and labour done.”^[111]
2. “A ‘debt’ or liquidated demand is, as the Deputy President explained in Ziegler t/as Ziegco Pty Ltd v Recochem Incorporated [2010] QCATA 78, one where the amount is determined and, in effect, beyond dispute as to how it is calculated. If the amount depends upon assessment by the court or tribunal, it is not liquidated.”^[112]
3. “... a claim ... (which) is not a liquidated claim pursuant to a contract but a claim for loss when negotiations (for a contract) went sour.”^[113]
4. “... a claim for a sum which cannot be determined without consideration, by the Tribunal, of the applicant’s evidence in support of the claim – for example, a claim in which the precise amount which should be awarded cannot be determined from the terms of a prior agreement between the parties, or some other standard; and must be calculated by reference to invoices, quotations or the like.”^[114]

128. [128]
     Mr Royce claims the following amounts:^[115]

1. $33,004 for X Trail agreed value at time of assessment.
2. $5,415 for costs and fees  referred to in the affidavit of Kevin Royce as follows:
   1. $1,785 for vehicle storage at his work location;
   2. $1,760 for 16 hours at $110.00 per hour for attending the auction and transport of the vehicle to Kevin Royce’s workshop plus arranging independent assessments and travelling to and from Brisbane and to Southport to assist his brother:
   3. $660 for considering and preparing an affidavit; and
   4. $1,210 for fluids and filter service, four new tyres for the vehicle which “are underinflated”.
3. $510 for costs of fees and towing.
4. $18,000 for costs of “attending to this issue with Youi and the Tribunal, in excess of 200 hours say 200 @ $90 per hour.”
5. $435 for outlays, copying, photographs, parking, telephone calls.
6. $315 for QCAT filing fee.
7. $2,140 for additional insurance premiums.
8. $5,260 for replacement vehicle.
9. $450 for new key for X Trial.
10. $320 for two car batteries for X Trail.
11. $2,000 for repairs to X Trail including paint works.
12. Less $4,141 received from Youi.
13. $7,858 for purchase of the X Trail at auction.
14. $625 for excess retained by Youi.
15. $7,000 paid to Youi post auction.
16. Interest for two years at a rate to be determined.

129. [129]
     Except in the case of item n), the itemised claims are for unliquidated demands of money for the following reasons.
130. [130]
     Item a) is not a claim to recover a liquidated demand of money. Rather, it is the agreed amount actually paid out in terms of the policy with Youi for total loss, for which Mr Royce was indemnified, now claimed a second time as damages.
131. [131]
     Items b), d) and e), in part in the case of item b) and wholly in the other instances, are essentially claims for costs of and incidental to the proceeding and for preparation of the case, none of which are for a liquidated demand for the following reasons.
132. [132]
     Section 47(2)(c) of the QCAT Act empowers the Tribunal to make a costs order against a party to compensate another for any reasonable costs, expenses, loss inconvenience and embarrassment resulting from the proceeding or part.
133. [133]
     However, s 102(2) of the QCAT Act limits the Tribunal’s power and discretion in the case of minor civil disputes to ordering only those costs provided for in the rules.
134. [134]
     Rule 83 of the Queensland Civil and Administrative Tribunal Rules 2009 (Qld) (‘the QCAT Rules’) provides that, for s 102 of the QCAT Act, the Tribunal may award costs against a party to the proceeding only if:

     1. the party is a respondent against whom the Tribunal has made a final decision; and 
     2. only to order the party to pay the applicant the amount of the prescribed fee for filing the application for the proceeding.
135. [135]
     In my opinion, Mr Royce cannot circumvent the statutory cost recovery limitation in minor civil disputes by disguising claims that are for costs of and incidental to the proceedings as damages for breach of contract and statute. 
136. [136]
     In the case of item b), no tax invoices, vouchers, receipts or other documents from Kevin Royce are in evidence. Even if supporting documents such as missing tax invoices were supplied, which is not the case, they would need assessment. Therefore, the claims are not liquidated demands for payment of money.
137. [137]
     Mr Royce (the Applicant) does himself exhibit some invoices but, for the same reasons, they too do not evidence liquidated demands for payment of money and would require assessment, in particular:

     1. Towing Authority and Invoice dated 28 January 2013 for $293.80;^[116]
     2. Pickles Tax invoice dated 28 February 2013 for purchase of the vehicle at auction for $7,858.00;^[117]
     3. Autoking Tax Invoice dated 17 October 2016 for inspection and report for $101.18;^[118]
     4. Rob Meyers Automotive Tax Invoice dated 5 March 2013 for inspection of the vehicle for $44.00;^[119] and
     5. Royce Motors Tax Invoice for towing the vehicle to the Gold Coast for $220.00.^[120]
138. [138]
     Item f) for filing fee is an outlay that may be recoverable in the Tribunal’s discretion if the claim succeeds. It is liquidated only in the sense that it is ascertainable by reference to the QCAT filing fee scale. Liability to pay it, however, does not arise out of the terms and conditions of the insurance contract. 
139. [139]
     Items c), h), i), j), k), m) and o) are not, individually or in combination, claims for a liquidated demand of money either. Rather, on the assumption that Youi was liable for damages for breach of contract, which is not the case for reasons to which I will later refer, they are claims for damages which cannot be determined from the terms of the policy. Even if proven, these claims would have to be assessed for mutual contemplation and foreseeability,^[121] reasonableness and remoteness. Similarly, item g) as to increased insurance premium for the same reasons.
140. [140]
     I accept that item n) is a liquidated claim in that it is an amount fixed by the policy which would be refundable if it was not within the insurer’s discretion to declare the vehicle a total loss as it did.
141. [141]
     Item p) is a claim for non-contractual interest which is in the Tribunal’s discretion to award^[122] and is ascertainable by reference to a Practice Direction. It is not a liquidated demand for payment of money in the relevant sense, i.e. it is not interest calculable pursuant to a formula or covenant in a contract.

The Law

The Australian Consumer Law

142. [142]
     At the first hearing, Mr Royce relied on the consumer guarantee provisions in Subdivision B – Guarantees relating to the supply of services, in Schedule 1 of the Australian Consumer Law (ACL) for his cause of action, as the basis of his claim for damages.
143. [143]
     The ACL implies statutory guarantees into consumer contracts where services are supplied by a person in trade or commerce. They guarantee due care and skill,^[123] fitness for a particular purpose etc.,^[124] and a reasonable time for supply^[125] of services.
144. [144]
     However, as I pointed out to Mr Royce, Subdivision B does not apply to services that are, or are to be, supplied under a contract of insurance.^[126] Accordingly, the ACL remedies under Part 5 – 4 – Remedies relating to guarantees, are not available to Mr Royce in this case.
145. [145]
     Subsequently, Mr Royce submitted that the ACL does not apply to exclude the policy from its operation because the Trade Practices Amendment (Australian Consumer Law) Act (No. 2) 2010, and the ACL, came into operation on 1 June 2011, after (he says) “ ... our engagement commenced.”^[127]
146. [146]
     However, Mr Royce’s submission is circular because there were no ACL guarantees prior to 1 June 2011 so it did not apply anyway.
147. [147]
     His submission is also incorrect because Youi renewed the policy for the period 22/04/12 (at 00:00) to 21/04/2013 (at 23:59) when a new product disclosure statement and new terms and conditions, i.e. a new contract, issued.^[128] The renewed contract of insurance commenced well after the ACL came into effect.
148. [148]
     Therefore, the provision excluding insurance policies from the statutory guarantees under the ACL undoubtedly applies.
149. [149]
     To come within the definition of a relevant person for purposes of section 12(4)(b) of the QCAT Act, Mr Royce must be a consumer and have a consumer cause of action. There is a rebuttable presumption that a person is a consumer unless the contrary is established.^[129] Youi has not rebutted that presumption in this case, so Mr Royce is a consumer for purposes of these proceedings. Youi is a trader.
150. [150]
     In Schedule 3 of the QCAT Act, “consumer” means an individual, Mr Royce in this case, for whom services are supplied for fee or reward, with some qualifications that are not relevant in this case.
151. [151]
     Indemnity is the coverage of a loss or the holding of someone indemnified harmless from the suit of another, or both depending on particular facts and circumstances. A person is indemnified, in the former instance, when the loss is made good by payment of money according to the terms of a contract, such as the insurance contract in this case.
152. [152]
     The word “services” is defined in the ACL as including:

“…the rights, benefits, privileges or facilities that are, or are to be, provided, granted or conferred under a contract of insurance.”^[130]

153. [153]
     The right to be indemnified, and the benefit of indemnity when indemnified, therefore falls within the ACL definition.
154. [154]
     Contracts of insurance are not excluded from operation of the following parts of the ACL: Chapter 2 – General provisions, Part 2-1 Misleading or deceptive conduct, section 18, which prohibits misleading and deceptive conduct;  and Part 2-2 – Unconscionable conduct, sections 20 which prohibits unconscionable conduct under the unwritten law, and 21 (and 22) which provide a statutory definition of unconscionable conduct which is prohibited.
155. [155]
     Section 18 of the Australian Consumer Law provides that a person must not, in trade and commerce, engage in conduct that is misleading or deceptive or likely to mislead or deceive.
156. [156]
     Section 20 of the Australian Consumer Law, which does not apply to sections 21 and 22, provides that a person must not, in trade or commerce, engage in conduct that is unconscionable within the meaning of the unwritten law from time to time.
157. [157]
     The phrase ‘unwritten law’ means the common law. Under the common law, equity permits the setting aside of a contract obtained by taking unfair advantage of a party’s special disability.^[131] Therefore, section 20 of the ACL provides a statutory cause of action for breach of common law unconscionability.
158. [158]
     Notably, the ACL does not provide a statutory cause of action for breach of a duty of care and skill implied by the common law.
159. [159]
     Section 21 of the ACL provides that a person must not, in trade or commerce, in connection with the supply or possible supply of goods and services to another person, engage in conduct that is, in all the circumstances, unconscionable.
160. [160]
     Considerations, to which the Tribunal may have regard under subsection 21(2) of the ACL include, but are not limited to, the following:

     1. The relative strengths of the bargaining positions of the supplier and the consumer.
     2. Whether, as a result of conduct engaged in by the person, the consumer was required to comply with conditions that were not reasonably necessary for the protection of the legitimate interests of the supplier.
     3. Whether the consumer was able to understand any documents relating to the supply or possible supply of the goods or services.
     4. Whether any undue influence or pressure was exerted on, or any unfair tactics were used against, the consumer or a person acting on behalf of a consumer by the supplier or  person acting on behalf of the supplier in relation to the supply of the goods or services.
     5. The amount for which, and the circumstances under which, the consumer could have acquired identical or equivalent goods or services from a person other than the supplier.
161. [161]
     Section 21(3) of the ACL provides that the institution of legal proceedings does not amount to unconscionable conduct and section 21(4) of the ACL provides that, for purposes of determining whether a contravention of subsection (1) has occurred, any circumstances that were not reasonably foreseeable at the time of the alleged contravention must be disregarded.
162. [162]
     However, regard may be had to the circumstances and conduct engaged in before the commencement of the subsection.
163. [163]
     Section 22 of the ACL is akin to section 21 and prohibits unconscionable conduct in business transactions between a supplier and a business consumer. In determining whether the prohibition has been infringed, the Tribunal may have regard to the requirements of any industry code of conduct.^[132] Curiously, there is no such provision in the criteria referred to in section 21(2) of the ACL but they are, in any event, not a closed set.
164. [164]
     Mr Royce does not fall into the category of a business consumer in this case because he registered the vehicle for private, not commercial, use and he had no ABN.^[133] No financial interest of his then employer, the Queensland Government,^[134] was noted in the policy schedule.^[135]
165. [165]
     An injured individual may make a claim for damages,^[136] whether or not liquidated, where misleading and deceptive and/or or unconscionable conduct has occurred in the course of supply of services.

Australian Securities and Investments Commission Act 2001

166. [166]
     Mr Royce submits that section 12ED of the Australian Securities and Investments Commission Act 2001 (the ASIC Act) implies similar warranties to the same effect as the ACL.
167. [167]
     That is not so. Contracts of insurance are expressly excluded from the operation^[137] of the ASIC Act.

Sale of Goods Act 1896 (Qld)

168. [168]
     Mr Royce submits that sections 55 and 56 of the Sale of Goods Act 1896 (Qld) provide him with a cause of action. That is not so for the following reasons.
169. [169]
     The implied conditions and warranties in Part 2, Division 5 of the Act apply only to the sale of goods. Goods include all chattels personal other than things in action and money, including emblements and things attached to or forming part of land which are agreed to be severed before sale under a contract of sale.^[138]
170. [170]
     This claim does not concern the sale of goods, it concerns an insurance policy and the settlement of a claim under that policy. A policy of insurance is not a ‘good’ in any relevant sense. Sections 54 (remedy for breach of warranty) and 55 (interest and special damages) have no relevance on the facts of this case.

Insurance Contracts Act

171. [171]
     The Insurance Contracts Act 1984 (Cth) (“ICA”) is substantive black letter law to be applied by the Tribunal in determining whether a party to a policy of general insurance has breached any of its provisions.
172. [172]
     In particular, section 13 of the ICA, upon which Mr Royce relies, provides as follows:

“A contract of insurance is a contract based on the utmost good faith and there is implied in such a contract a provision requiring each party to it to act towards the other party, in respect of any matter arising under or in relation to it, with the utmost good faith.”

General Insurance Code of Practice

173. [173]
     Mr Royce refers to the General Insurance Code of Practice (“the Code”). It is not a statute. In the foreword, it sets out the way in which consumers can expect their insurer to behave and the recourse that policy holders have in disputes. It is binding on ICA member companies. Breaches, it says, are treated seriously.
174. [174]
     Section 3 of the Code covers insurance claims processes and standards and section 4 covers response to catastrophes and natural disaster and claims handling. Insofar as is relevant to this case, section 4 provides that:

“4.1 This section applies to catastrophes and disasters resulting in a large number of claims.

4.2  We will respond to catastrophes and disasters in a fast, professional and practical way and in a compassionate manner.

4.3 If you have a property claim resulting from a catastrophe or disaster and we have finalised your claim within one month of the catastrophe or disaster, you can request a review of your claim if you think the assessment of your loss was not complete or accurate, even though you may have signed a release. We will give you six months from the finalisation of your claim to ask for a review of your claim. We will inform you of: a) this entitlement when we finalise your claim; and b) our complaints handling procedures

4.4 We will co-operate and work with the Insurance Council of Australia in its role of industry coordination and communications under the Insurance Council of Australia’s catastrophe coordination arrangements.”

175. [175]
     The errors in the Banwell report, readily acknowledged by Youi, do not establish that Youi responded in an unprofessional and impractical way. They are explained by the work load and time limitations to which I referred earlier. The insurer’s response was fast, as required by the code, in catastrophic circumstances.
176. [176]
     Further, the errors in the Banwell report did not affect the insurer’s conclusion that it was not safe to repair the vehicle. That was entirely within Youi’s contractual discretion. Youi reviewed the conclusion at Mr Royce’s request and confirmed it. Youi staff handled Mr Royce’s communications efficiently and courteously. No code breach is demonstrated.
177. [177]
     Section 5 of the Code deals with education and information and section 6 covers complaint handling procedures.
178. [178]
     Again, there is nothing in Mr Royce’s evidence to establish a breach of the code in these respects.
179. [179]
     Section 7 of the code covers code monitoring and enforcement. Alleged breaches of the Code can be reported to the Financial Ombudsman Service Limited (‘FOS’) for investigation. FOS is vested with disciplinary powers and reporting procedures. Reports to the Code Compliance Committee may result in sanctions and committee decisions are binding on member insurers.
180. [180]
     These are all procedural provisions.
181. [181]
     Further, neither the FOS nor the Code Compliance Committee are vested with power to adjudicate disputes and claims by an insured as against the insurer.
182. [182]
     There is no evidence to suggest that Mr Royce made a complaint of code breach to the FOS for investigation and there is no evidence to establish breaches of the code by Youi, either at all or in a way which would establish a claim for damages against Youi for breach of the duty of the utmost good faith.

The Defence

183. [183]
     Summarised, Youi’s defence^[139] is this:

     1. It admits^[140] that Mr Royce contacted Youi Claims Services on 1 February 2013 expressing dissatisfaction that the vehicle had been assessed as a statutory write off and placed on Queensland’s Written Off Vehicle Register and stating that he wished to buy the vehicle back from Youi (“The initial complaint”).
     2. It recites^[141] the policy terms and conditions and Damage Assessment Criteria for the Classification of Statutory Write-Offs which I have earlier quoted.
     3. It says^[142] that the initial complaint was escalated to Youi’s assessment management to review and consider further, that Simon Watson telephoned Mr Royce on 1 February 2013 and confirmed that, under the guidelines, the vehicle was classified as a “statutory total” based on the Banwell assessment, that it would no longer be registrable for road use, that Pickles Auctions would dispose of the vehicle by public auction for parts only, and that Mr Royce did not indicate any wish to further escalate his complaint.
     4. It admits^[143] that Mr Royce noted his disbelief that the vehicle had been deemed a statutory write off in a telephone call to Youi Claims Services.
     5. It admits^[144] that Youi Claims Services spoke with Mr Royce on 5 and 6 February 2013 regarding the insurance settlement.
     6. It admits^[145] that Mr Royce contacted Youi Claims Services on 19 February 2013 and enquired when the vehicle would be released for public auction.
     7. It admits^[146] that Mr Royce contacted Youi Claims Services on 15 September 2015 (my emphasis) and requested the following information: date and time of incident; name of the towing company; date of the inspection; the inspection report; Youi’s determination following the inspection report; the details of the claim settlement; the total loss letter; a recording of a telephone call with the Youi Assessing Manager after Mr Royce was advised of the claim outcome.
     8. It relies on Mr Royce’s statement during the call that  he had an issue, not with Youi, but with someone else, and that he needed to confirm facts prior to progressing the matter, that his query had nothing to do with Youi, that he had been satisfied with how the claim had progressed, but that he was being quoted a higher insurance premium when he disclosed to insurers that he’d had a claim for a total loss vehicle and he was looking to change or clarify his insurance history.^[147]
     9. It says that that call was not recorded because it was made to a mobile telephone number.
     10. It admits no telephone recordings were provided to Mr Royce in 2015.^[148]
     11. It says that the Banwell Assessment Report dated 31 January 2013 was an Audatex Value Report, that data on page 1 of the report is both pre-filled according to information on the insurance policy and also filled by the Assessor by selecting options available in drop down menus, that Mr Banwell completed approximately six inspections per day around the catastrophic event where more than 1,400 claims were reported in 96 hours, that given the nature of data collection on page 1 of the Audatex Value Report it is susceptible to human error, that the other data shown on page 1 clearly matched the information supplied by Mr Royce on inception of the policy and was supported by photographs taken by Mr Banwell, that by comparison the information on page 3 of the Audatex Value Report must be manually typed by the Assessor and is supported by the 39 photographs of the vehicle taken during his inspection.^[149]
     12. It says that Mr Royce contacted Youi’s Internal Dispute Resolution Service on or around 11 July 2016 complaining about the total loss assessment of the vehicle which was then referred to Youi Car Assessing Management for review and attempted resolution, that Mr Royce was told that the vehicle had been appropriately deemed a statutory write-off based on information available at the time, and that the Written Off Vehicle Register law would not allow Youi to remove the statutory write-off application on the basis of total loss, that Mr Royce was dissatisfied with that review.^[150]
     13. It says that Youi’s Internal Dispute Resolution Service then raised a dispute for Mr Royce, that information available from the Department of Transport and Main Roads Queensland website confirmed that only limited changes are allowed for entries in the Register, for example updating typing errors, and that based on assessment reports and photographs of the vehicle taken during Mr Banwell’s inspection the Written Off Vehicle Notification application lodged on 31 January 2013 and that Mr Royce was notified of the review decision by letter dated 25 July 2016, with Mr Royce notifying his dissatisfaction on or around 26 July 2016 and Youi then supplying him “telephone recordings” by email on or around that date.^[151]
     14. It says that the Audatex Total Loss repair quotation was prepared by Mr Banwell which, had the vehicle not been written off, outlines some of the repairs that he considered would be required, that information shown on the repair quotation is automatically populated on the basis of the vehicle information inputted.^[152]
     15. It says that Mr Royce omitted photographs from his claim which showed liquid spraying from the rear exhaust of the vehicle and water debris in the airbox filter.^[153]
     16. It says that Youi was within its rights to deem the vehicle a total loss pursuant to the terms and conditions of the policy, that there was no error in the assessment and inspection, that Youi had an obligation in the circumstances to consider the vehicle a statutory write off and that it fully indemnified Mr Royce as a result.^[154]
     17. Alternatively, if Youi was not within its rights to deem the vehicle a statutory write-off, it says that Mr Royce has been fully indemnified for his loss under the policy.^[155]
     18. It says that it is not within Youi’s power to reverse the application made to the Written Off Vehicle Register and that any decision to re-register the vehicle would be solely within the power of Queensland’s Department of Transport and Main Roads.^[156]
     19. It says that costs incurred by Mr Royce in purchasing the salvage (the vehicle) at auction, towing the salvage, or costs associated with the replacement car, are not the result of any error, omission, or action on Youi’s part and are not covered under the policy.^[157]
     20. It therefore denies any liability as claimed or any liability for a contribution.^[158]

Liability

184. [184]
     Mr Royce relies on the decision in CGU Insurance Ltd v AMP Financial Planning Pty Ltd^[159] in support of his damages claim. He says that section 13 of the ICA operates, and applies, independently of the provisions of the ACL. That is undoubtedly so. The duty of the utmost good faith is very broad. Its application includes the manner in which an insurer handles its insured’s claim.
185. [185]
     The facts in the CGU Insurance (“CGU”) case are as follows. CGU had agreed to a protocol whereby its insured, AMP Financial Planning (“AMP”) handled and settled investor claims against itself. CGU reserved its position on indemnity claimed under the policy for prospective settlement payments made by AMP in its discretion. Meanwhile, AMP had to act as a prudent uninsured.
186. [186]
     AMP sued CGU for indemnity. It was unsuccessful at first instance in the Federal Court of Australia. Justice Heerey held that that breach of the duty of the utmost good faith required proof of dishonesty. He decided that the insurer had not acted dishonestly and dismissed AMP’s claim for indemnity in respect of settlements paid to former investors.
187. [187]
     AMP appealed the dismissal to the full Federal Court. It upheld the appeal against the trial Judge’s decision that dishonesty had to be proved to establish a breach of section 13 of the ICA. Dishonesty is not a necessary element of the cause of action. The full Federal Court ordered remittal of the matter to the trial Judge for consideration of pertinent questions pertaining to indemnity and a decision.
188. [188]
     CGU Insurance appealed the full Federal Court’s decision to the High Court. It confirmed that proof of dishonesty was not required to establish a breach of the duty of the utmost good faith but allowed CGU’s appeal against the full Federal Court’s remittal of the case to the Judge at first instance, in effect dismissing AMP’s claim for indemnity in the result.
189. [189]
     Their Honours, Gleeson CJ and Crennan J, in a joint judgement in the CGU Insurance case said:

“However, the Act does not empower a court to make a finding of liability against an insurer as a punitive sanction for not acting in good faith. If there is found to be a breach of the requirements of s 13 of the Act, there remains the question how that is to form part of some principled process of reasoning leading to a conclusion that the insurer is liable to indemnify the insured under the contract of insurance into which the parties have entered.”^[160]

190. [190]
     A similar principled process of reasoning to that referred to by their Honours in the High Court, without punitive sanction, is required in the present case in a very different factual context. 
191. [191]
     That is, a reasoning process is required by which I may conclude that Mr Royce is, or is not, entitled to be indemnified a second time by way of compensation for damages for the same loss for which he was indemnified under the insurance policy in the first instance, and by which he may be compensated for other alleged loss and damage.
192. [192]
     My reasoning process is as follows.
193. [193]
     The vehicle was water damaged in the incident on 28 January 2013. The vehicle’s engine ceased functioning after the inundation. The effect of water ingress was, ostensibly, temporary. However, associated problems can emerge many years later with corrosion and electronic malfunction.
194. [194]
     Once the engine electronics and sensors had dried out after the incident, the car started and ran without difficulty the next day. Mr Banwell expelled much of the water in the exhaust system by running the vehicle as the photographs show. The wet carpets dried out. The vehicle is in a roadworthy condition now, but has not travelled any appreciable distance because it cannot be re-registered.
195. [195]
     Mr Banwell’s assessment report was incorrect in the instances to which I have referred. However, his photographic evidence concerning the state of the vehicle, taken the day after the incident, in conjunction with Mr Royce’s report of the incident, stands unaffected by those errors.
196. [196]
     Youi’s evidence in these proceedings fell short of establishing that guideline criteria were satisfied for the mandatory write-off of the vehicle. Nevertheless, on the totality of the evidence to which I have referred, Mr Royce having made a claim under the policy, Youi had sufficient reason at the time to decide that the vehicle was not safe to repair and that it should be declared a total loss as it did.
197. [197]
     Youi’s decision at the time to write off the vehicle is supported by the fact that any future claim for corrosion or electronic malfunction would be excluded under the policy and neither Mr Royce nor any subsequent holder of a Youi policy could claim indemnity for loss and damage in that event.
198. [198]
     It is necessary to look at the situation as it presented to Youi at the time of the incident, not as it presents now, many years on, with the benefit of hindsight and after exhaustive forensic and investigative scrutiny.
199. [199]
     Youi was contractually entitled to err on the side of caution and it did so by writing the vehicle off. Erring on the side of caution for the benefit of an insured does not amount to a breach of the insurer’s duty of utmost good faith.
200. [200]
     The description “total loss” is synonymous with “write-off,” though not according to the criteria published in the guideline. The outcome, however, is the same. On my reading of them, the write-off guidelines do not prevent an insurer from writing a vehicle off in circumstances where the threshold for doing so is not met.
201. [201]
     Youi settled Mr Royce’s claim to its substantial financial detriment by fully indemnifying him for the vehicle’s agreed value. The agreed value exceeded the vehicle’s market value. Mr Royce cannot demonstrate any compensable loss flowing from his claim and Youi’s settlement of it.
202. [202]
     Mr Royce’s claimed losses in fact flow from his own decision to make the claim and, once settled, buy the vehicle back from Youi at auction in full knowledge of the vehicle’s written-off status, not from any breach of contract, breach of statutory duty, error or negligence, on Youi’s part. The alleged losses are not causally related to Youi’s decision to declare the vehicle a total loss and write it off.
203. [203]
     Further, even if the losses claimed by Mr Royce were causally related to, and arose from, Youi’s decision to write the vehicle off, which is not the case, he had a duty to mitigate such loss and damage. Mr Royce’s decision to buy the vehicle back compounded any loss that he could prove that he suffered, rather than mitigating it.
204. [204]
     Contrary to Mr Royce’s submission in this respect, the usual principle of compensation referred to in Johnson v Perez^[161]  applies in this case. Mr Royce is to be put back, insofar as money can do so, in the same position as if the damage had not occurred. That was achieved by Youi paying out the settlement sum, i.e. the vehicle’s agreed value of $33,004.00, substantially more than its market value, in discharge of its liability to indemnify Mr Royce for his loss and its decision.
205. [205]
     Mr Royce relies^[162] on the decision in Manser v Spry^[163] for the proposition that the Tribunal is not to take into account the insurance payment received from Youi when assessing and awarding damages. That reliance is misplaced.
206. [206]
     The decision in Manser related to statutory indemnity for losses paid out under a State Insurance Scheme in respect of which the High Court ordered as follows:

“In so far as the plaintiff has received or is entitled to receive compensation under the Workers Rehabilitation and Compensation Act 1986 (S.A.) which does not have to be repaid to the Workcover Corporation of South Australia and which is compensation for a loss or expense for which the defendant would be liable but for the receipt of the entitlement, the receipt or entitlement should be taken into account in the assessment of the plaintiff’s award of damages in a way which ensures that the plaintiff does not receive and retain double compensation for the same loss or expense.”

207. [207]
     Mr Royce’s case does not involve a third (non) party agency and statutory compensation received as in Manser.
208. [208]
     Though the rule that a benefit from a third party must be brought to account in assessing damages is displaced where, for example, a payout from a policy of personal accident insurance does not have to be brought to account in reduction of a claim against a third (unrelated) party (not the insurer) for damages for negligence,^[164] no such displacement arises in the present case.
209. [209]
     Mr Royce’s claim does not fall within the exception that would entitle him to compensation twice from the same insurer for the same loss. Here, he is suing Youi, his own insurer, not an unrelated third party tortfeasor that, by displacement of the rule, cannot benefit by Mr Royce’s independent insurance arrangements covering the same loss.
210. [210]
     Mr Royce submits that Youi’s conduct was unconscionable, in breach of sections 20 and 21 of the ACL to which I referred earlier. He submits that QCAT has the power to “void” a contract that is affected by unconscionable conduct.^[165]
211. [211]
     In his submissions, Mr Royce says that he was forced into the settlement, that he went “ ... kicking and screaming” into it, that “ ... genuine consent of one party to the transaction was clearly not displayed,” and that Youi “ ... held all the aces and forced me into the position.”^[166] However, the facts and evidence, to which I have referred, do not support those submissions.
212. [212]
     I do not accept that Mr Royce acted under duress. On the facts and evidence to which I have referred, Mr Royce:

     1. Acknowledged and acquiesced in the claim process as explained to him by Youi’s representative in the recorded telephone call of 29 January 2013, though asserting that Mr Banwell had erred and requesting a review which, nevertheless, did not alter the insurer’s decision.
     2. Did not object to the settlement process completing.
     3. Did not withdraw his claim and demand the return of the vehicle, whether before the vehicle was listed on the statutory write-off register or afterwards, which was open to him to do at any time before settlement.
     4. Accepted the settlement payment and the benefit of discharge of his indebtedness to St George Finance without objection or reservation of his rights.
     5. Bought the vehicle back as a statutory write-off at the Pickles auction on clear notice that the vehicle was not re-registrable.
     6. Did not commence proceedings for the orders which he seeks until three years and ten months later.
213. [213]
     The facts and evidence to which I have referred in this decision do not satisfy the statutory prerequisites for a cause of action founded in unconscionable conduct in breach of the ACL.
214. [214]
     Youi discharged its contractual obligations to Mr Royce when it settled his claim. The policy ended. Mr Royce ceased to have any insurable interest in the vehicle. The contract cannot now be avoided retrospectively all of these years later.
215. [215]
     For completeness, I note that Mr Royce does not assert that Youi engaged in misleading or deceptive conduct, either by Mr Banwell as its employee or agent in completing a report which contained material errors, or in its decision to write the vehicle off.
216. [216]
     There is, in any event, no suggestion that Mr Royce relied detrimentally on any misrepresentation in the Banwell report or on Youi’s decision to write the vehicle off. On the contrary, Mr Royce challenged Mr Banwell’s conclusion (and still does) but took no legal action to vindicate his position until almost four years later.
217. [217]
     Mr Royce does assert an estoppel against Youi. In his affidavit, to which I referred earlier, he said that Youi is estopped from “ ... seeking now to revert to the statutory write-off defence of their glaring and numerous errors.”
218. [218]
     As I understand Mr Royce’s submission,^[167] Youi, in its explanatory letter to him dated 16 September 2015,^[168] said that Mr Banwell had advised that the vehicle had been deemed uneconomical to repair which meant that Youi “would be paying Mr Royce the pre-accident value of the vehicle.”
219. [219]
     Mr Royce points out that the cost of repairs referred to in Mr Banwell’s report was less than $8,000 against an insured agreed value of $33,004.00. He says that this letter “retracted the statutory write-off position” and that Youi cannot simply keep changing its mind to suit the situation.
220. [220]
     Whilst I accept that there is a verbal inconsistency between Youi’s stated position on 13 February 2013 that the vehicle was a total loss, in contrast with the statement in its letter dated 16 September 2015 that the vehicle was uneconomical to repair, nothing turns on that inconsistency.
221. [221]
     For an estoppel to arise, Mr Royce has to establish that he relied on the representation in Youi’s letter dated 16 September 2015 to his detriment.^[169] However, he did not rely on that letter. Rather, he challenges the insurer’s right to rely on it. No estoppel arises in the circumstances.
222. [222]
     Insofar as Mr Royce’s claim for restitution is concerned, the question is: what restitution?
223. [223]
     Mr Royce cannot mean restitution of property in the vehicle which he bought back at auction because he owns it. Therefore, I infer that what Mr Royce means by restitution is the restoration of the vehicle to its pre write-off status by a reversal of the write-off and payment of damages.
224. [224]
     No order for restitution in that sense will be made for the reasons that I have given.
225. [225]
     In summary:

     1. To the extent that there is a component of liquidated damage claimed by Mr Royce, i.e. the excess deducted by Youi when it settled the claim by paying out the agreed value of the vehicle, he has not satisfied me that it is recoverable for breach of the policy, the legislation and/or the common law to which I have referred.
     2. Insofar as the unliquidated damage claimed by Mr Royce is concerned, he has not satisfied me that it is recoverable for breach of the policy, the legislation and/or the common law to which I have referred.
     3. Mr Royce has not suffered any compensable loss and damage in any event.
226. [226]
     Therefore, Mr Royce’s claim against Youi fails.

Disposal

227. [227]
     The consumer claim filed on 23 November 2016 is dismissed.