Authority to Act and Recovery Agreement
The parties to this agreement are:
- {Name Signature:55} (Client)
- Racecourse Motors Pty Ltd (ABN 94 001 787 079) of 16 Alison Road, Randwick NSW 2031 (Service Provider)
- Titan Legal Pty Ltd (ACN 639 064 056) of 6 Margate Street, Ramsgate NSW 2217 (Titan Legal)
Definitions
"At Fault Party" means any individual or entity responsible, including vicariously, for the Collision and the resulting Charges.
"Charges" means any amount owed by the Client to the Service Provider, or any related entity of the Service Provider within the meaning of the Corporations Act 2001 (Cth), arising out of or incidental to the Collision.
"Collision" means the motor vehicle collision involving the Client's Vehicle.
"Client's Vehicle" means the motor vehicle damaged in the Collision.
"Insurer" means any person or entity that has agreed to, or may be called upon to, indemnify any party, including You, for the Charges, or any part thereof.
"Recovery Claim" means a claim for the recovery of the Charges by way of damages from the At Fault Party or Insurer.
Recovery Claim
- The Client is liable to pay the Charges.
- Subject to clause 10, to enable sufficient time for the Recovery Claim to be finalised, the Service Provider will not seek payment of the Charges from the Client for a period of 180 days from the date of the issue of an invoice by the Service Provider, unless there is a liability dispute which cannot be resolved in the Client’s favour within 14 days of its arising.
- In the event of a liability dispute which cannot be resolved in the Client’s favour within 14 days of its arising, the Charges become due and payable immediately.
The Service Provider's Agency
- The Client hereby irrevocably appoints the Service Provider as the Client's agent, representative and attorney to provide instructions to Titan Legal in relation to all matters concerning the Recovery Claim, including those matters enumerated in clause 5.
Titan Legal's Engagement
- The Client engages Titan Legal to prosecute the Recovery Claim.
- For the avoidance of doubt, the Client authorises Titan Legal to:
- collect, hold and use the Client's personal information obtained from the Client and/or any third party who may hold information relevant to the Recovery Claim;
- disclose the Client's personal information to any third party requiring such information so as to prosecute the Recovery Claim, or as required by law;
- commence and maintain legal proceedings in the Client's name to recover the Charges and, if necessary, appeal any adverse decision;
- settle the Recovery Claim on terms and for an amount the Service Provider, in its absolute discretion, considers to be reasonable;
- release other parties from liability on behalf of the Client, including by way of a deed or consent orders, but excluding any claim for personal injury and without prejudice to any other recovery rights the Client may have;
- receive and deposit any monies arising out of the Recovery Claim into its or Service Provider’s account and to pay from those monies the Charges and any interest thereon recovered to the Service Provider after deducting and paying any amount owed to any other person or entity that incurred costs associated with the Recovery Claim, including Titan Legal, without further authorisation or instruction being necessary. Any money received by the Client on account of Charges must be immediately transferred as directed by the Service Provider or Titan Legal.
Client's Warranties and Covenants
- The Client warrants that:
- the Client is (and was at the time of the Collision) the owner or bailee of the Client's Vehicle. Alternatively, the Client represents and warrants that they are duly authorised to sign and enter into this Agreement for and on behalf of the owner or bailee;
- the Client was not at fault for the Collision;
- the Client has the right to recover the Charges and has not assigned or otherwise transferred that right to any third party;
- the Client has provided all relevant information to the Service Provider and the information provided is true and correct in every particular. The Client acknowledges that the Service Provider has relied on the accuracy of that information when considering its preparedness to accept the obligations in clause 12.
- If the Charges include the cost of hiring a replacement vehicle, then:
- at the time of the Collision, the Client’s vehicle was registered and roadworthy and the Client held a current driver’s licence valid for the Client’s vehicle and for the likely duration of the hire period;
- prior to the Collision, the Client used the Client’s Vehicle to meet their transport needs and desires and, but for the Collision, they would have continued to use the Client’s Vehicle to meet those needs and desires;
iii. the Client hired a replacement vehicle as a result of the Collision so that they would not have the inconvenience that they would otherwise suffer by not having a vehicle readily available to use for the above purposes, whilst the Client’s Vehicle was being repaired or replaced;
- if the replacement vehicle is to be used to meet the Client’s business needs, then the income the Client will earn by using the Rental Vehicle for business purposes will exceed the cost of hiring the Rental Vehicle; and
- the Client does not have the ability to use any other vehicle to meet their transport needs and desires whilst the Client’s Vehicle is being repaired or replaced.
- The Client covenants that they will:
- act in the best interests of the Service Provider in connection with the Recovery Claim;
- co-operate with the Service Provider and Titan Legal and do all things reasonably necessary to assist them in the Recovery Claim, including by providing and executing witness statements or affidavits, appearing in court to give evidence and providing any information or documents reasonably necessary for the prosecution of the Recovery Claim;
- not do anything to compromise the Recovery Claim, including by making an admission of liability in respect of the Collision or purporting to release the At Fault Party or Insurer from the Client's recovery rights by signing a form of release (or otherwise);
- not withdraw their instructions for Titan Legal to prosecute the Recovery Claim;
- not withdraw their authority for the Service Provider to act as their agent, representative and attorney;
- only provide instructions to Titan Legal via the Service Provider;
- Where another person or entity (for example, the Client’s Insurer) seeks to recover, on the Client’s behalf, any property loss or damage (in addition to the Charges) suffered by the Client as a result of the Collision, the Client will give control and carriage of any legal proceedings commenced on the Client’s behalf for that purpose to the Recovery Firm, provided that the Charges are also (or are intended to be) claimed in those legal proceedings.
- If the Charges include the cost of hiring a replacement vehicle:
- use their best endeavours to ensure the repair or replacement of the Client’s Vehicle proceeds without any delay;
- not engage in unreasonable conduct that delays the repair or replacement of the Client’s Vehicle;
iii. immediately notify the Service Provider once the repairs to the Client’s Vehicle have been completed or they have received a total loss payout, and thereafter immediately return the replacement vehicle;
- if the Client’s Vehicle is a total loss, immediately provide the Service Provider of the replacement vehicle with a copy of any notice(s) or letter(s) they receive advising them of this fact and/or about any payout;
- immediately notify the Service Provider if the Client’s Vehicle is moved from one location or Service Provider to another location or Service Provider.
Termination
- The Service Provider shall be at liberty to terminate this Agreement if:
- the Client breaches any of the warranties or covenants in clauses 6 and 7;
- the Client refuses to accept Titan Legal's advice;
- liability for the Collision is disputed by the At Fault Party or Insurer; or
- Titan Legal is unable to settle the Recovery Claim on terms and for an amount the Service Provider considers to be reasonable.
- If the Service Provider terminates this Agreement, then the Client will pay the Charges to the Service Provider within 7 days;
- If the Service Provider terminates this Agreement under clauses 8(c) or (d), then the Service Provider will pay Titan Legal’s costs.