1. The history of the litigation of this matter is as follows:-

(ii) Early December 2000 - Daming retains AAC to act on his behalf in relation to the collision.

(iii) Early to mid-December 2000 - Daming directly engaged Daryl Fanning & Associates, Loss Assessors, to assess the damage to his vehicle.

(iv) 18th December 2000 - Mr Fanning assesses the damage to Daming's vehicle and sends to him a bill for $126.50 in this regard.

(v) 5th February 2001 - AAC issue complaint out of Melbourne Magistrates' Court on behalf of Daming against driver of other vehicle ("Defendant").

(vi) 15th May 2001 - Arbitration listed for 21st May 2001 adjourned at Defendant's request with payment of some $650.00 costs to AAC in relation to costs thrown away by reason of the adjournment.

(vii) 24th July 2001 - Daming represented by Mr Graham Berkovitch of counsel at Melbourne Magistrates' Court. No appearance by Defendant or legal representatives, they apparently believing that the matter was settled. Adjourned to a date to be fixed with Defendant to pay Daming's costs of the day fixed at $744.00, being $544.00 in respect of Mr Berkovitch's fee and $200.00 witness expenses (apparently being loss of wages) for Daming.

(viii) 21st September 2001 - Matter again listed at Melbourne Magistrates' Court. Both parties present and represented. Failure to attend by Daming's expert witness, namely Mr Fanning, Loss Assessor. As quantum of damage was only issue in case, matter adjourned to a date to be fixed upon Daming paying Defendant's costs of the day of $794.00. These costs, plus $544.00 in respect of Mr Berkovitch's fee, borne by AAC and no demand made on Daming in this regard.

(ix) 30th November 2001 - Matter again listed at Melbourne Magistrates' Court. Both sides represented. Mr Fanning also present. Matter ultimately settled in the sum of $1,425.00 plus costs.

(x) 24th January 2002 - AAC forwards to Daming cheque for $1,425.00.

(xi) 30th March 2002 - AAC provides to Daming a statement of monies and a letter pointing out that no further costs have been deducted from the settlement amount despite there being such costs.

(xii) 20th March 2003 - Daming issues complaint against AAC, this complaint being on a "Professional Standards" form and with an attached statement. The amount claimed is $1,279.08 which is broken up as follows:-

(a) $475.00, being difference between value of vehicle ($1,900.00) and amount recovered ($1,425.00).

(c) $200.00, being loss of income on 24th July 2001.

(d) $200.00, being loss of income on 21st September 2001.

(e) $277.58, being interest on $1,900.00 from 30th October 2000 to 30th November 2001.

(xiii) 10th March 2004 - Complaint heard by Legal Profession Tribunal. Daming is unsuccessful.

(xv) 6th July 2004 - Appeal heard by Full Tribunal. Daming is unsuccessful.

(xvi) 6th April 2006 - Application by Daming for leave to appeal to the Court of Appeal heard.

(xvii) 7th July 2006 - Leave granted, with reasons.

(xviii) 26th October 2006 - Appeal heard and allowed. Matter remitted for hearing to the Victorian Civil and Administrative Tribunal.

(xix) 16th and 17th April and 21st June 2007 - Matter heard by this Tribunal. Parties are given additional time in which to make written submissions.

1. We have set out the litigation history in some detail because some parts of it relate to the merits and quantum of the claim, whilst reference to others might assist in a general understanding of what has occurred.

1. As previously indicated, Daming represented himself and Mr John Aloe represented AAC. Each gave evidence and was cross-examined. Ultimately we determined to place a limit upon the time which Daming could expend in cross-examination. He was given advance notice of this some days previously. In imposing that time limit, we were conscious of the fact that this Tribunal may regulate its own procedure whilst, of course, the rules of natural justice and the over-arching requirement for fairness must always be borne in mind. We were also conscious of the history of the matter and the comparatively limited scope of the issues involved. As previously stated, confining Daming to the relevant issues was not easy. Similar, but lesser, problems were encountered with Mr Aloe. Mr Aloe's cross-examination of Daming lasted for just on 3½ hours. At the end of the second sitting day, and I might say that we had considered 2 days to be an ample allocation of time for a matter such as this, Daming had been cross-examining Mr Aloe for just over 3 hours. When asked how much longer he had to go, he replied that he had another day. (Subsequently this estimate became one of two days). It was then determined to impose upon him a time limit in respect of further cross examination. That time limit was set at another 3 hours cross-examination, it being considered more than fair that, in a matter such as this, Daming be given in excess of 6 hours in which to cross-examine, Mr Aloe, in lengthy cross-examination, having taken 3½ hours. During the additional 3 hours cross-examination on 21st June 2007, Daming was also reminded from time to time of the constraint that had been imposed and the importance of dealing with the relevant issues. Indeed, on 17th April Daming had repeatedly, and usually in vain, been asked to move his cross-examination on to relevant matters, or had been told that the Tribunal had heard enough concerning particular areas of cross-examination.
2. At the conclusion of the oral evidence, each party was given the opportunity to address the Tribunal. Each party was then afforded the opportunity of putting further submissions in writing, in the event that anything had been overlooked or that further emphasis was wished to be placed upon certain aspects of the material before us or of the oral submissions. As matters eventuated, each party in fact put further material before us in writing, and in fact Daming put not only further written submissions, but written submissions by way of reply.

1. Much of the material placed before us relates to factual matters. The submissions also placed considerable emphasis upon them. We shall not set out in detail the oral and written submissions that were made, but we have borne them in mind, and they have been taken into consideration in our arriving at the following findings of fact. The findings which we now set out are those which we consider to be central to the dispute and to our ultimate ruling.

(1) We are quite satisfied that the employee solicitor of AAC with whom Daming dealt during the conduct of his litigation did not behave honestly. This gentleman, Mr Elias Bakhaazi, is no longer an employee of AAC, and we understand that he has been dealt with by other bodies. We accept that the original costs order which he obtained against the Defendant in respect of the adjourned hearing on 21st May 2001 appears to have been fraudulent (although this finding, of course, is made solely for the purposes of this case and without evidence having been given by Mr Bakhaazi). It would seem that he obtained a costs order which included a barrister's fee when no barrister has in fact been engaged. However, and bearing in mind the subsequent behaviour of AAC and Mr Aloe in particular, we do not see the apparently dishonest behaviour of Mr Bakhaazi as being directly relevant to this claim.

(2) We accept that, at least before us, Mr Aloe has been completely open, if at times emotional, concerning the activities of Mr Bakhaazi and in relation to the manner in which this file was conducted. He has not attempted to evade responsibility for an employee solicitor who has since departed. He freely admits an error which he previously made in relation to the costing of matters. Having seen a considerable amount of him during the conduct of this matter, we accept him as a witness of truth.

(3) Daming is claiming witness expenses of $200.00 in respect of each of four occasions when he used up annual leave entitlements in relation to attendances or adjournments involving the conduct of his case at the Melbourne Magistrates' Court. Daming's claim in this regard, which originally was for loss of wages, was at some stage changed into loss of annual leave entitlements. That is clear from the transcript of what transpired before the Court of Appeal on 26th October 2006 and at paragraph 96 of its judgment. The material placed before us and the evidence given does not satisfy us that any such loss occurred. As shall be discussed in our ruling, the material placed before us would indicate that no annual leave was deducted by Daming's employer, Envelopments Pty Ltd, in respect of any of the four relevant days. Whilst Daming no longer argues that he suffered a loss of wages as such as opposed to annual leave, in any event we also accept that his group certificate for the relevant year indicates that he suffered no loss of wages, this being deposed to in Mr Aloe's affidavit of 18th October 2006. It is true that he was awarded $200.00 witness expenses in relation to his attendance when the matter was adjourned at the Melbourne Magistrates' Court on 24th July 2001, even though he would not appear to have had any entitlement to this amount. However, we also accept that this amount was offset by AAC against costs and disbursements, including expenses of Mr Fanning, the loss assessor, whose report was crucial to the case. Indeed, as indicated in AAC's statement of monies, the issuing and service fees associated with the complaint, together with a witness summons fee, would alone exceed $200.00 before turning to Mr Fanning's fee of $250.00. We do not see how the additional fees wrongfully obtained by Mr Bakhaazi in relation to the adjournment of 21st May 2001 have in some way become the property of Daming. Indeed, before Mr Aloe realised what had occurred, they were in fact referred to in his statement as being, in essence, a credit in favour of Daming and used to offset expenses incurred on his behalf. We would also point out that, as previously stated, Daming received the full settlement amount without the deduction of any additional costs. Indeed, in order to ensure that Daming received the full amount of his settlement monies, AAC reduced its profit costs for the entire case to $229.50 (see the statement of 30th March 2002).

(4) We accept that AAC, upon discovering Mr Bakhaazi's behaviour, refunded the amount wrongly paid by the Defendant upon adjournment. In other words, AAC, whilst accepting responsibility for the negligence or fraud of its employee solicitor, repaid the amounts wrongly obtained in full and without this affecting the payment of the full settlement amount to Daming. Of course, this is as it should be, but we fail to see how Daming has sustained any loss. As stated in the previous paragraph, we are far from satisfied that Daming suffered any loss of wages or of annual leave entitlement in relation to the adjournment of 21st May 2001 or, for that matter, in relation to any adjournments or visits to court.

(5) We are unable to reach any conclusion as to the reason for Mr Fanning's failure to appear on the 21st September 2001, and the matter being adjourned as a result. We accept that AAC has borne the full amount of costs ordered in favour of the Defendant to the action as well as bearing the fee of Mr Berkovitch. No payment has been made by Daming. Suffice to say that eventually Daming received the full settlement amount which was ultimately achieved, and that we are not satisfied that he lost any income as a result of his attendance at court on 21st September 2001.

(6) We are satisfied that, at the ultimate hearing on 30th November 2001, Daming instructed his barrister, Mr Berkovitch, to settle the case for $1,425.00 plus costs, and that such acceptance was conveyed without any attached conditions. A letter, dated 8th March 2002, from Mr Berkovitch is in the material which has been placed before us, and we accept it as being accurate. A result of $1,425.00 plus costs is, in our opinion, better than what could have been achieved if the matter proceeded to litigation. We accept that the loss assessor, Mr Fanning, was only informed on the day that part of the damage which he had inspected in fact occurred in a previous motor vehicle accident. It was not damage sustained in the relevant accident. As early as March, 2004, Mr Fanning swore an affidavit stating that he put the pre-accident value of Daming's vehicle at $1,950.00 which, after a salvage assessment of $50.00, made a nett loss of $1,900.00. Obviously he was of the view, repeated elsewhere, that the cost of repairing the vehicle would have exceeded its value. When Mr Fanning attended the Melbourne Magistrates' Court at the ultimate hearing on 30th November 2001, he conferred not only with Daming but also with the expert loss assessor engaged by the Defendant. After the conference with the latter, he became aware of the fact that the damage to the near side front of Daming's vehicle was in fact sustained in another accident. He advised Mr Berkovitch of this. We accept that Daming admitted that the damage in question resulted from another collision. Mr Fanning advised as to the drastic effect which this could have upon his evidence. The negotiated figure at which settlement was ultimately reached was above the average of the expert's assessments. Mr Fanning recommended that Daming accept the offer of $1,425.00 as representing the damages sustained, and put that recommendation in writing. We accept that, following this, Daming issued instructions that the offer be accepted.

(7) As stated, we accept that AAC paid to Daming the full figure for which he had settled without deduction. Whilst some confusion might reign as to exactly what AAC's disbursements might be, given the behaviour of Mr Bakhaazi, we accept that AAC made every endeavour to minimise its profit costs with the result that Daming received the full settlement figure. We also regard that settlement figure as being fair and reasonable. Leaving to one side Mr Bakhaazi, the advice proffered by Mr Fanning, and, for that matter, Mr Berkovitch, seems to us to be proper. Presumably Mr Bakhaazi's advice was identical with that of those present, so that it could be said that the advice given on behalf of AAC was proper and reasonable, even if Mr Bakhaazi's conduct in some other respects raises questions of propriety. We do not find that Daming was placed under any particular duress in settling the matter for what, in our opinion, was perhaps a generous figure. We certainly do not accept his argument that he was entitled to a replacement vehicle with a value greater than that of the damaged vehicle. Mr Fanning's estimate formed the basis of the original complaint issued out of the Magistrates' Court. It formed the basis of Daming's complaint against AAC. The amount originally claimed by him was based upon a value of the car of $1,900.00. We accept Mr Fanning's assessment. We do not accept the proposition that Daming is in some way entitled to an amount greater than the value of the vehicle as assessed by his own expert. We repeat that, whatever may have been the behaviour of Mr Bakhaazi in other regards, the payment to Daming of the full settlement figure of $1,425.00 represented a very fair, if not generous, outcome.

(8) Daming is also claiming the fee of $126.50 originally charged by Mr Fanning. As shall be discussed in our ruling, it seems to us that this amount is one that was paid directly by Daming to Mr Fanning, who had billed him directly, and was not a disbursement incurred by AAC on his behalf. What, if anything, happened in relation to it thereafter is not clear. What is clear is that Daming received the settlement amount in full and without any deduction.

(9) It might be argued that, regardless of whether he was entitled to it, the $200.00 by way of witness expenses ordered in his favour in relation to the adjournment of 24th July 2001 has been utilised to offset a fee which should not have been the responsibility of Daming. However, we do not accept this proposition. The disbursements incurred by AAC, leaving to one side Mr Fanning, exceed $200.00. If it is accepted that Mr Bakhaazi, on behalf of AAC, promised Daming that he would receive in full any amount received by way of settlement or order, that promise was honoured. In any event, as previously stated, we do not accept that Daming suffered any loss by reason of his attendance at court on the relevant days.

(10) We do not accept Daming as a reliable witness of truth. It may be that he was not deliberately trying to mislead the Tribunal, but rather clung obstinately to certain positions. Until the matter was before us and Mr Aloe had discovered that Daming had other litigation against his former employer in which pay records were relevant, Daming does not seem to have been particularly frank concerning these matters. They have direct bearing upon his claim for loss of wages for attending court. As previously stated, we are not satisfied that any such loss of wages occurred. We would also point out that it was not until the Defendant's loss assessor advised Mr Fanning that not all the damage had occurred in the subject accident that Daming admitted this. Also, as previously stated, we find that Mr Aloe, whilst at times excitable, was a witness of truth and, in circumstances where there was any clash between the evidence of the two in relation to factual matters, we prefer and accept the evidence of Mr Aloe.

1. Having set out our findings of fact, we now turn to our ruling. In delivering this ruling, we are conscious of what was said by the Court of Appeal in its ruling in this matter on 26th October 2006 and reported at [2006] VSCA 235. The appeal provided by the Act is one by way of rehearing, and not by way of judicial review for error of law. Daming is entitled to a re-hearing without pre-conditions. Pursuant to s.169(3)(b) of the Act, fresh evidence may be received at a rehearing. We have also looked at the conduct of AAC and its members, including conduct alleged by Daming to be misconduct, in order to see whether that conduct caused Daming loss.
2. The matter has been conducted as a re-hearing without any pre-conditions. The only condition imposed at any time was the limitation on cross-examination to which reference has been made earlier.
3. We have considered all the material placed before us, the oral evidence, and the submissions. Bearing in mind those matters, we are then obliged to arrive at the correct or preferable decision. As is probably apparent from the above findings of fact, the decision at which we have arrived is that Daming has failed to establish any loss.
4. Without wishing to repeat all that has gone before, we have reached this conclusion for the following reasons:-

(i) We do not accept that Daming did not understand the settlement into which he entered at Melbourne Magistrates' Court on 30th November 2001 and we do not accept that he settled the matter as a result of some unfair duress.

(ii) Daming received the full settlement amount of $1,425.00 without the deduction of any legal costs.

(iii) It also seems to us that such a settlement was fair and reasonable. The revelation that not all the damage to the vehicle was the result of the subject accident would clearly have affected the situation and have a considerable impact upon Mr Fanning's evidence. The ultimate settlement figure was still better than the averaging of the assessments.

(iv) We do not accept that Daming lost any wages or any annual leave entitlements by reason of attendances at court or adjournments of the proceeding. He has not satisfied us in relation to this, and the records of his then employer would indicate that the contrary is the case. As previously stated, the $200.00 witness expenses awarded in his favour on 24th July 2001 is well and truly offset by disbursements which AAC incurred in the presentation of his case, and it is an amount to which he had no entitlement in any event.

(v) We do not accept Daming's argument that he was in some way entitled to an amount greater than the nett loss assessed by his own expert. Without realising that the car was already in a damaged condition as a result of the previous undisclosed accident, Mr Fanning fixed upon a pre-accident value of $1,950.00 which, after $50.00 salvage, resulted in a nett loss of $1,900.00. We fail to see how, on the basis of the available material, a sum greater than this could be claimed in respect of the damage to the vehicle.

(vi) We do not accept that Daming suffered any loss in respect of Mr Fanning's fee of $126.50. This shall be discussed further in our ruling.

(vii) Daming appears to be claiming additional amounts over and above the amount originally claimed. He has referred to emotional damage. No evidence of any substance was placed before us which would justify the making of such an order, even assuming that this could be dealt with fairly at this stage of the proceeding. Section 133(1)(a) of the Act does permit the ordering of compensation up to a maximum of $15,000.00. However, apart from the fact that we find that Daming's primary action fails, there is nothing by way of persuasive material that has been put before us that would justify any compensation order in respect of emotional damage. We repeat that there is simply no material to justify it.

(viii) In his written submissions, Daming has now claimed that his actual damages exceed $100,000.00. Again, there is nothing that has been placed before us that would justify the ordering of any part of that amount, and again we express that opinion as an addition to the fact that Daming has failed in his primary action. We are not satisfied that he has suffered the loss originally claimed, much less being entitled to the additional amounts which he now seeks. We reject the notion that his involvement with this case somehow cost him his employment with Envelopments Pty Ltd, and that some compensation is payable in this regard.

1. Lest there be any doubt as to the reasons for our ruling, and hopefully to make our reasoning perfectly clear, we shall now deal with the items of loss claimed by Daming in turn. We appreciate that this involves some repetition of matters already discussed.

(a) Amount Claimed in Respect of Damage to the Motor Vehicle

1. We are not of the view that Daming has established that the actions of AAC have caused him any loss in this regard. Whilst he was doubtless given firm and repeated advice in relation to settling the matter, we are not of the view that he was placed under any improper duress. We accept what is contained in the letter of his barrister, Mr Berkovitch, and in the affidavit of Mr Fanning in this regard. We accept that Daming gave instructions to settle, even if he did, as he claims, reserve the right to make a complaint should the advice that he was given, or part of it, prove to be incorrect. Even if he were improperly pressured into settling the matter (and this in fact did not occur), the result is still that no loss has flowed to him as a result. Leaving to one side questions of salvage and refund of registration, and at least the latter would add to Daming's return, the figure of $1,425.00 exceeds the averaging of the assessments of the experts. Of course, the Magistrate was not bound to adopt this approach when determining the matter. However, there is nothing before us that convinces us that he was likely to arrive at a higher figure than that for which settlement was achieved.
2. We reach this conclusion without taking into account the fact, discovered at the eleventh hour, that part of the damage to Daming's vehicle was in fact sustained in another accident. As stated earlier, we accept that, when this proposition was put to him, Daming accepted that it was correct. We accept that Mr Fanning was of the view that his valuation could be drastically reduced were he examined on this point. We accept that he considered the valuation of $1,425.00 to be fair and reasonable and that he put this in writing for the benefit of Daming prior to settlement and during discussion of the offer. He also recorded in that signed note that the amount did not include residual registration or salvage.
3. We can well understand why Mr Fanning may have been forced to drastically reduce his valuation. In the circumstances, we consider that the offer of settlement was fair and reasonable, and we regard it as unlikely, if not highly improbable, that a Magistrate would have ordered an amount in excess of the settlement figure.
4. We do not accept Daming's submission that he should have been entitled to a replacement vehicle with a value greater than that assessed by his own expert. That a Magistrate would have approached the matter on this basis also seems to us to be highly improbable.
5. In summary, Daming has not established that he suffered any loss attributable to AAC in relation to the damage suffered to his motor vehicle.

(b) Loss of Wages as a Result of Attending Court Hearings or Adjournments

1. We are not satisfied that Daming has established any loss in this regard. We say this for the following reasons:-

(i) Daming has placed before us no documentary material which establishes that he did sustain any such loss.

(ii) We accept that, by telephone conversation of 9th October 2006 and letter of the same day, AAC requested from Daming proof of his loss of annual leave entitlement (he having moved from a position of claiming loss of wages to one of claiming loss of annual leave entitlements). We accept that Daming did not do this. That letter went on to say:-

"We further confirm of having advised you that by providing this proof that we will be in a position to resolve this matter by making payment to you for your loss. Notwithstanding our offer we confirm that you refuse to provide us with proof of your loss."

The letter went on to emphasise this again in bold type. No material sufficient to substantiate Daming's claim was provided to AAC, and has not been provided to this Tribunal.

(iii) AAC put before us a document from Envelopments Pty Ltd headed "Annual Leave Calculations for Daming He". The conclusion of that document reads "therefore more leave paid than entitled". Furthermore, the records reveal that, for the period 21/3/01 to 28/1/02 the only annual leave taken by Daming was a period of 27 days between 13/12/01 and 25/1/02, not including 3 public holidays. Daming was dismissed on 29/1/02. That period from 21/3/01 to 28/1/02 embraces all relevant dates in relation to hearings and adjournments. Daming placed before us as an exhibit to an affidavit apparently prepared by his former employer. The top half of this document is the same as that put before us by AAC. The bottom half contains a separate set of calculations, and does not have at the end of it the words "therefore more leave paid than entitled". However, for the relevant period 21/3/01 - 28/1/02, it also shows only 27 days annual leave taken. The period during which this leave was taken is not described, but there has been no argument from Daming that he was not on annual leave in December 2001 and January 2002. That is common ground. It seems to us highly likely, if not clear, that the 27 days taken after 21/3/01 were those taken between 13/12/01 and 25/1/02, excluding, of course, weekends and 3 public holidays. Mr Aloe indicated that AAC was not necessarily relying upon the document originally produced by it and containing the words "therefore more leave paid than entitled". Ultimately whichever version of the document is relied upon, the result is the same. There is no indication that Daming lost annual leave entitlements as a result of court appearances or adjournments on the dates in question. Indeed, there is no indication that he suffered any employment-related loss. We might add that, whilst we appreciate that Daming is no longer claiming loss of wages as such, the group certificates placed before us would indicate that he was fully paid during each of the financial years in question. As previously stated, this does not sit particularly well with the claim which he made in the Magistrates' Court for loss of wages on 24th July 2001, to which we shall now turn.

(iv) In relation to the $200.00 loss of wages ordered in his favour by the Magistrate on 24th July 2001, as stated we accept that this was used to offset in part various disbursements and that AAC minimised their profit costs to the extremely low figure of $229.50. This is set out in AAC's statement of monies of 30th March 2002, which, of course, was compiled long before AAC had become aware that Daming had suffered no loss. In our opinion Daming has no entitlement to this $200.00. If anyone has a claim to it, it is the original Defendant, his insurer or his solicitors. One of them paid $200.00 that need not have been paid as a result of Daming's erroneous evidence to the Magistrate on 24th July 2001.

(c) Emotional Damage and Loss Allegedly Sustained by Reason of Loss of Employment

1. As previously stated, no material was placed before us that would satisfy us that Daming is entitled to any amount for what he describes as emotional damage. This is so regardless of the fact that he has not made out his primary case in any event. Our lack of satisfaction is even greater in relation to his suggestion in evidence that this affair in some way cost him his employment. There is nothing to substantiate this. We have also had placed before us three decisions relating to Daming's litigation against his former employer, Envelopments Pty Ltd, concerning his dismissal. These are the judgments of Commissioner Lewin (14th August 2002); the judgment of Senior Deputy President Polites, Deputy President Hamilton and Commissioner Larkin on appeal from Commissioner Lewin's decision (23rd December 2002); and the decision of the Federal Court of Australia upon further appeal ([2004] FCAFC 161). In these decisions there are summaries of submissions made by Daming, and analyses of the circumstances leading to loss of employment. There, is no suggestion that Daming's employment was terminated because of absences related to court attendances. The termination of his employment appears to have been related to factors totally irrelevant to the present case.

1. We do not accept that Daming has any entitlement in this regard. This was an amount paid directly by him at the commencement of the action. It is not a disbursement that was incurred by AAC on his behalf. Mr Bakhaazi, as an employee of AAC, directed Daming as to the necessity of obtaining an assessor's report. He suggested contact with Mr Fanning. This was done by Daming, who was billed directly by Mr Fanning, and paid the required amount of $126.50. Whatever may have been the arrangement with Mr Bakhaazi, it is certainly not clear to us that there was an agreement that this amount should be refunded to Daming in the event that his action was successful. He may have been told that AAC would deduct no amounts from any verdict or settlement figure. If he was so told, this agreement was honoured. However, we are far from satisfied that there was ever any agreement that an amount paid by Daming to an assessor in order to justify or substantiate the initiating of proceedings would be an amount borne by AAC or refunded to Daming.
2. Mr Aloe submitted that AAC had, in an open letter, forwarded to Daming a cheque which, "by way of tender", included an amount of $126.50 by way of the loss assessor's fee. Apparently the cheque was not banked. Whilst this was in an open letter, we do not treat it as being an admission of liability on the part of AAC. We see it rather as an attempt to resolve the matter, as was urged by the Court of Appeal. As it was part of an overall offer of settlement, however open and repeated, we do not see it as being an unconditional payment in satisfaction of this part of Daming's claim. It may have some relevance in relation to ancillary orders.
3. In summary, we are far from satisfied that, in the event of a successful outcome, AAC had agreed that this amount would be paid to Daming. In addition, and whilst it may be of peripheral relevance, we would again point out that AAC reduced its profit cost dramatically in order to ensure that Daming received the full settlement figure.

1. In our opinion, Daming's application fails and is dismissed. We can only say in conclusion that it is a great shame that a matter such as this has consumed such an enormous amount of time, energy and money. We shall hear the parties as to any ancillary orders that may be required.