So you've received a letter of demand from Botten Dnistriansky Kellis Lawyers?
Botten Dnistriansky Kellis Lawyers are a legal firm based in Adelaide who send letters of demand for private parking companies such as Secure Parking and Traffic Monitoring Services.
Here is an example letter of demand that they sent to an owner of a vehicle in 2012. I draw your attention to the following aspects of the letter from BDK lawyers. BDK Lawyers are claiming that the vehicle owner is responsible for debts created by anyone else who drives the vehicle, simply because the owner allowed the other person to drive his/her vehicle. Melbourne traffic law barrister Sean Hardy says on his own website:
"in the absence of any evidence of who the driver was, the car park operator has no case. If the company tries to allege that the registered operator is liable for the debt it will need evidence that the driver was the operator's employee or agent". Read more ...
Mr Hardy also says on the same page:
" If a car park company wants to enforce its demand it will need to sue the driver and to do that it will need evidence in court of who the driver was. They will get nowhere pursuing the registered operator of the vehicle because the operator is not a party to the contract and can not be liable for breach of contract. The carpark company needs to know the identity of the driver to make its claim against the driver".
The second thing I draw your attention to is that it claims that to avoid legal proceedings being issued against the owner, the owner must pay the sum of $80. However, as Mr Hardy says, unless BDK Lawyers have evidence that the driver was acting as agent for the owner, then legal proceedings could only be issued against the driver of the vehicle, not the owner. As it is clear from the wording of this letter that Secure Parking and TMS do not know the identify of the driver, it stands to reason that, based on Mr Hardy's website, Secure Parking and Traffic Monitoring Services would be unable to issue legal proceedings against the owner of this vehicle (or if they did, then would be unsuccessful according to barrister Sean Hardy). Finally Mr Hardy says on the same page:
It is very unlikely the car park company will have the guts to take you to court. If I am wrong about that - and for over five years now no client has brought me any court papers - I will be very happy to represent you in court on a no-win no-fee basis.
Here is a more recent letter of demand from Botten Dnistriansky Kellis Lawyers. This letter includes the words:
"please provide TMS with an appropriate statutory declaration indicating the name and current address details of the driver of your vehicle at the time of the breach".
If anyone receives this letter from BDK Lawyers, then I draw your attention to section 13 (g) on page 31 of the ACCC Debt Collection Guidelines which states:
"it is misleading to state or imply that the debtor must prove they are not liable for the debt. In legal proceedings, proof of the debt lies with the person alleging the debt is owed to them".
Readers can draw their own conclusions as to whether or not this statement by Botten Dnistriansky Kellis Lawyers is requesting proof that the owner is not responsible for the debt. If anyone receives this letter and thinks the statement of Botten Dnistriansky Kellis Lawyers may be demanding proof that the owner is not responsible for the debt, they should ask the ACCC for clarification by using the ACCC General Enquiry Form.
If any Victorian owners receive the second letter from Botten Dnistriansky Kellis Lawyers, they should also take a look at Section 45 of the Victorian Fair Trading Act which states that "falsely representing to a person who is not a debtor that, in relation to a debt, the person must prove or make a statutory declaration that he or she does not owe the debt" is a prohibited debt collection practice. If any Victorian owners receive this letter, they can seek clarification about their rights from Consumer Affairs Victoria by completing their online form.
I have been contacted by a Victorian motorist who says that he successfully had a fine withdrawn after he made complaints about Andrew Dnistriansky's letters to the South Australian Legal Practitioner's Conduct Board. The person who made the complaint was a Victorian car owner who wasn't the driver of the car when it was issued with a notice. Complaints were made to the South Australian Legal Practitioner's Conduct Board about the letters of demand from Andrew Dnistriansky. Notwithstanding the fact that the Conduct Board did not uphold the complaint, the fine was miraculously withdrawn around the same time, and the owner stopped receiving letters of demand.
There is no name printed at the bottom of letters from Botten Dnistriansky Kellis Lawyers and for some time it was not known which lawyer was sending these letters of demand. There are three partners as BDK Lawyers - Bill Botten, Andrew Dnistriansky and Stephen Kellis. The "About" page of the Botten Dnistriansky Kellis Lawyers website says that amongst other things, the fim specialises in "debt recovery actions". It has now been confirmed that the Secure Parking demand letters from BDK lawyers bear the signature of Andrew Dnistriansky who is one of the partners. Andrew Dnistriansky went to school at Rostrevor College and played football at Norwood Football Club. And he is an Accredited AFL Player Manager.
If you are dis-satisfied with any reply you get from BDK Lawyers, then you might want to contact Andrew Dnistriansky on his direct line of (08) 8410-5780 or his personal email address andrew@bdklaywers.com.au If you are not satisfied with Mr Dnistriansky's response, you may seek a review with the South Australian Legal Practitioner's Conduct Board or by contacting them on on (08) 8212 7924 or 1800 337 570 or email lpcb@lpcb.com.au