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  • Unreported Judgment

Bargain Spares Auto Wreckers Pty Ltd v Spring

 

[2019] QCATA 165

QUEENSLAND CIVIL AND ADMINISTRATIVE APPEAL TRIBUNAL

CITATION:

Bargain Spares Auto Wreckers Pty Ltd (t/a Southport Wreckers) v Spring [2019] QCATA 165

PARTIES:

BARGAIN SPARES AUTO WRECKERS PTY LTD (T/A SOUTHPORT WRECKERS)

(applicant)

 

v

 

EBANY SPRING

(respondent)

APPLICATION NO:

APL123-19

ORIGINATING

APPLICATION NO:

Q207/19 Southport

MATTER TYPE:

Appeals

DELIVERED ON:

12 December 2019

HEARING DATE:

11  December 2019

HEARD AT:

Brisbane

DECISION OF:

Dr J R Forbes,  Member

ORDERS:

The application for leave to appeal is dismissed.

CATCHWORDS:

APPEAL – CONSUMER AND TRADER AGREEMENT – supply of services – where trader engaged to repair motor vehicle by supplying and installing replacement engine – where repairs failed in four months – where consumer sought compensation for further repairs, hire of substitute vehicle and loss of wages – where conflict of expert evidence between employee of service supplier and independent expert for consumer – where primary tribunal prefers independent evidence – where evidence to support decision – where no appellable error shown – whether leave to appeal should be granted – application for leave to appeal dismissed

Competition and Consumer Act 2010 (Cth), Schedule 2 s 60

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 3(b), s 4(c), s 32

Abalos v Australian Postal Commission (1990) 171 CLR 167

Coulton v Holcombe (1986) 162 CLR 1

Devries v Australian National Railways Commission (1993) 177 CLR 472

Fox v Percy (2003) 214 CLR 118

Grewal v Di Camillo [2014] VSC 640

Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611

Robinson v Corr [2011] QCATA 302

W (an infant), In Re [1971] AC 682

APPEARANCES &

REPRESENTATION:

This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act)

REASONS FOR DECISION

  1. [1]
    On 18 January 2019 the present respondent Ebany Spring (‘Spring’) experienced a sudden and serious breakdown of her Mazda motor car. The engine had shifted on its mountings.
  2. [2]
    The question is whether or not this incident was due to the appellant’s (‘Bargain Spares’) inefficient dealing with the vehicle’s gearbox mount bolt. Spring alleges that it was; Bargain Spares adamantly maintains that it was not.
  3. [3]
    In September 2018 Spring engaged Bargain Spares to supply and fit a replacement engine to her car. Subsequently, between September 2018 and mid-January 2019, Spring complained of excessive vibration of the vehicle, which she reported to Bargain Spares.
  4. [4]
    However, in view of the course this case has taken, it is unnecessary to consider those events in detail. Putting on one side, for the moment, the question of responsibility, it is common ground[1] that the cause of the catastrophic breakdown was a loss of the gearbox mount bolt.
  5. [5]
    Spring’s case depends largely on a brief report of an independent witness, Nerang Mechanical (`Nerang’), dated 25 January 2019, one week after the breakdown. The expertise of that firm has not been challenged. Nerang did not merely inspect the vehicle; it made the necessary repairs, including replacement of the missing gearbox mount bolt. Nerang wrote this opinion:

After further inspection [we] found [the] gearbox mount bolt to have fallen out, causing extensive damage ... [We] believe that this bolt has been left loose after [the] engine replacement cause [sic] engine and gearbox to fall.

  1. [6]
    It is common ground that Bargain Spares had access to the car’s clutch area to fit a new clutch plate.[2] It is implicit in the Nerang report (but denied by Bargain Spares) that replacement of the clutch would necessarily involve removal of the gearbox mount bolt. According to Steven Drabsch, a witness for Bargain Spares, `the clutch bolts to the back of the motor’.[3]
  2. [7]
    However, witnesses for the appellant company repeatedly denied that they touched the crucial bolt in the process of replacing the engine and clutch plate.[4]
  3. [8]
    Most of the evidence and argument for Bargain Spares was presented by Michelle Drabsch, director of the company.[5] She did not do the work itself but for expert evidence she relied on a long-serving employee, Gary Merton. There were no independent witnesses for Bargain Spares. Another employee and a relative of the director was Steven Drabsch. He did not work on Spring’s car, but inspected it after the job was completed.[6]
  4. [9]
    From Bargain Spare’s viewpoint the job was `unfortunately’[7] done for a fixed price’, rather than an hourly rate. `If it’s an hourly rate you can drag the job out and make a lot of money out of it’.[8] But as this was a fixed-price job, time was of the essence, possibly at the expense of painstaking care. As Merton put it: [It was] a set up price, a once off price. You do the least amount of work you possibly can’.[9] `[I]t’s in my own interests to get that engine in and out as quick as possible’.[10]
  5. [10]
    The tribunal, as judge of fact, preferred the evidence of Nerang Mechanical to that of Bargain Spares. There was evidence to support that decision. Once it was made, the legal consequence was that Bargain Spares was liable for breach of a guarantee of due care and skill in its supply of services to Spring, a consumer.[11] The quantum of compensation due, which was not seriously contested on appeal, and was accepted by the tribunal, was made up as follows:- (i) payment of 1501.65 for remedial repairs to Nerang Mechanical[12]; (ii) $380 for care hire[13] (iii) loss of wages $530.65[14] and (iv) filing fee $120.50[15]- in all, $2532.80.
  6. [11]
    The grounds of Bargain Spares’ appeal, as set out in the application for leave, do not specify, let alone elaborate, any error of law, or any appellable error of fact on the part of the primary tribunal. In substance, what purport to be Bargain Spares’ grounds of appeal simply reiterate allegations and arguments that were rejected at first instance.
  7. [12]
    That approach ignores the nature and legal limitations of an application for leave to appeal, which require the would-be appellant to specify errors of fact or law that would have reasonable prospects of success if leave were granted.
  8. [13]
    The law’s very purpose in setting, as a preliminary hurdle, the need to obtain leave, is that primary decisions in minor civil disputes should normally be final. That object is consistent with the policy that in proceedings of the tribunal, justice according to law should be `economical, informal and quick’, minimising costs to the parties.[16]
  9. [14]
    An application for leave to appeal is not an opportunity to re-run the trial, or to `second guess’ the original decision maker in the hope of a different result. The trial is not merely a `preliminary skirmish’ or a practice run.[17] A leave application is not an opportunity to adduce evidence or argument that could have been led at the trial, but in fact was not. Normally – in the absence of legal error or a finding unsupported by any evidence, or is `glaringly improbable’,[18] questions of fact and credit are the prerogative of the primary tribunal. It is not nearly enough for a would-be appellant to express disappointment, or to nurse a subjective impression that justice has not been done.[19]
  10. [15]
    The essence of the present case is found in the tribunal’s preference for the opinion of Spring’s independent expert to that of Bargain Spare’s director and employee. The opinion of the independent witness was evidence upon which the justices were entitled to act. It is not an appellable error to prefer one party’s evidence to the other’s, or to give less weight to one party’s case than he or she thinks it should receive. Findings of fact will not be disturbed if they have rational support in the evidence[20], even if another reasonable view is available.[21] Where reasonable minds may differ, a decision is not erroneous, simply because one conclusion has been preferred to another possible view.[22]
  11. [16]
    Those are the principles that govern this case. I am unable to discern any defect in the relatively informal[23] trial process that could reasonably result in a successful appeal. The application for leave to appeal must be dismissed.

Order

  1. The application for leave to appeal is dismissed.

Footnotes

[1]Transcript of hearing 1 May 2019 (`T’) page 13 lines 9-11. Ms Drabsch (for Bargain Spares): ‘[T]he engine mount that has caused the whole problem is the one that is attached to the engine and the gearbox’.

[2]See Bargain Spares’ undated invoice for $2150; T page 12 lines 1-5 (Drabsch).

[3]T page 26 line 17.

[4]T page 13 line 26;page 14 line 43; page 15 line 3; page 16 line 16; page 21 line 11; page 22 line 48; page 26 line 23; page 33 line 44.

[5]T page 2 line 35.

[6]T page 25 lines 22-23.

[7]T pag 13 line 24 (Michelle Drabsch).

[8]T page 26 line 3 (Merton).

[9]T page 25 line 5.

[10]T page 23 line 12.

[11]Competition and Consumer Act 2010 (Cth), Schedule 2 s 60.

[12]Nerang Mechanical report 25 January 2019 and evidence of Spring at T page 10 lines 5-8.

[13]Invoices tendered and evidence of Spring at T page 5 lines 25ff.

[14]Electronic email from employer produced at trial T page 8 line 44; T page 9 line 17.

[15]T page 39 line 45.

[16]QCAT Act s 3(b), s 4(c).

[17]Coulton v Holcombe (1986) 162 CLR 1 at 7.

[18] Fox v Percy (2003) 214 CLR 118 at [28]-[29]; Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479; Abalos v Australian Postal Commission (1990) 171 CLR 167 at 178-179.

[19]Robinson v Corr [2011] QCATA 302 at [7].

[20]Grewal v Di Camillo [2014] VSC 640 at [12].

[21]Fox v Percy (2003) 214 CLR 118 at 125-126.

[22] Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611 at [131]; In Re W (an infant) [1971] AC 682 at 700. 

[23]Cf QCAT Act s 3(b).

Close

Editorial Notes

  • Published Case Name:

    Bargain Spares Auto Wreckers Pty Ltd trading as Southport Wreckers v Spring

  • Shortened Case Name:

    Bargain Spares Auto Wreckers Pty Ltd v Spring

  • MNC:

    [2019] QCATA 165

  • Court:

    QCATA

  • Judge(s):

    Member Forbes

  • Date:

    12 Dec 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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