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NSW Uninsured Car Written Off - No Car Insurance

Discussion in 'Insurance Law Forum' started by nemanja0, 3 February 2015.

  1. nemanja0

    nemanja0 Member

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    Really hoping you guys can help me as i'm in a bit of a terrible position.

    Almost 12 months ago my car was parked out the front of my house when it was smashed into and written off by an underage, unlicenced drunk driver. My insurance had lapsed and my car insurance company had refused to assist with the matter. The at fault driver's insurance would also not cover this as the drivers insurance was voided ( DUI).

    After assisting the police with the criminal aspects of the case (statements etc.) they advised me they aren't pursuing my civil claim. I've been told by some that I need a lawyer which I am not sure I can afford. The car was valued as AU$15,000 - do I have any recourse for pursuing this further? Is it advisable to represent myself in small claims court?
     
  2. Tracy B

    Tracy B Well-Known Member

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    Hi nemanja0,

    This sounds like a very unfortunate situation.

    You are correct, the police will not initiate civil matters and reclaiming any money from the driver would be a civil matter between you and the driver.

    The driver did damage your car, which means you have a good case in trespass - damage of property, and consequently, should be able to receive compensation for the value of the car and other loss and expenses caused by the incident. The driver's criminal conviction would greatly assist in proving the driver's responsibility. If you claim costs and the driver is refusing to pay, you may also have an action in debt.

    Unfortunately, you will need to pursue this yourself in court. The Small Claims Division has a claim limit of $10,000: Local Court Act 2007 (NSW) s 29. You can either
    • Cap your claim to $10,000 and pursue the matter in Small Claims. In this case, you may also seek Law Assist to help you.
    • Pursue the full amount in the General Division (capped at $100,000)
    You can self represent in both cases. Given the driver already has a criminal conviction for the incident and you have a police report detailing what happened, the case appears fairly straight forward so it is possible to self-represent. Although, having a lawyer will greatly assist. You should also consider whether the driver (or his family if he was underage) is able to compensate you.
     
  3. nemanja0

    nemanja0 Member

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    Thanks so much for your response Tracey.

    Beyond a police report is there any other documentation i would require? To date I've collected:

    -Notices of assessment, deeming the car a write-off
    -Letter of demand along with response (denying request for payment)
    -Pictures and notice of disposal for the vehicle.

    In the response to my letter of demand, the driver responded stating they cannot pay for the damages, given the drivers was 19 at the time as i understand it would be their responsibility to do so? How could their inability to pay affect the outcome?

    Thanks again for taking the time to respond.
     
  4. Tracy B

    Tracy B Well-Known Member

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    Hi nemanja0,

    It seems like you have sufficient evidence. See if you can get a copy of the conviction order (but that may be difficult, approach the police or court). If the driver was 19, they are mature enough to be held responsible for any damage caused. Inability to pay is always an issue, but you can negotiate to have the payment in instalments or other options (e.g. charge, bank account). Try and negotiate with them again (state that if they refuse, you may initiate legal action). If this still fails, obtain a debt judgment against the driver and once you've obtained a court order, you can register the order and it becomes known to other creditors and enforcement should be slightly easier.
     

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