TOOWOOMBA transport company Mansell Heavy Towing has been awarded more than $160,000 after a vehicle recovery deal went sour.
A judgement handed down in the District Court of Queensland ordered Heavy Haulage Australia and its national general manager Jon Kelly pay $162,589.86 to Mansell's.
It came after a dispute arose between the two companies over an agreement for recovering a 78-tonne generator being carried by a truck and trailer when it crashed near Augathella in western Queensland on February 18, 2013.
The civil case sought to determine who should pay for the overall recovery of the generator by Mansell Heavy Towing.
Creevey Russell Lawyers principal Dan Creevey, who represented Mansells, said Judge Dorney concluded that an agreement was reached between the parties whereby Mansells would pay Heavy Haulage Australia for work done in the recovery of the generator and it would be the subject of an insurance claim.
"Unfortunately, for the plaintiff's case, the court did not find that the defendant had agreed that it would bear the costs of that recovery," Mr Creevey said.
"When the insurer did not respond to the claim, the agreement was left in limbo and contained no default mechanism to be triggered in such circumstances.
"Fortunately for the plaintiff, the court found there does exist, in Australia, a right given to the plaintiff to seek recovery on a restitutionary basis in the circumstances before it."
Judge Dorney found Heavy Haulage Australia's conduct, through Mr Kelly, was misleading.
"Of significance, the court also found that the director of the defendant company was a person involved in a contravention of the Australian Consumer Law," Mr Creevey said.
"He was personally liable in that he had actual knowledge of all relevant facts and knew it was misleading if the defendant were not to make or facilitate a claim against the actual insurer."
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