McEwan v SVS Auto Repairs and Dyno Tuning
[2022] QCATA 20
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- McEwan v SVS Auto Repairs and Dyno Tuning[2022] QCATA 20
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McEwan v SVS Auto Repairs and Dyno Tuning[2022] QCATA 20
McEwan v SVS Auto Repairs and Dyno Tuning[2022] QCATA 20
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | McEwan v SVS Auto Repairs and Dyno Tuning [2022] QCATA 20 |
PARTIES: | warren mcewan (applicant/appellant) v svs auto repairs and dyno tuning (respondent) |
APPLICATION NO/S: | APL003-20 |
ORIGINATING APPLICATION NO/S: | MCDO 105/19 Cairns |
MATTER TYPE: | Appeals |
DELIVERED ON: | 14 February 2022 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Judicial Member D J McGill SC |
ORDERS: | Application for leave to appeal from the decision of the Tribunal of 18 January 2019 dismissed. |
CATCHWORDS: | TRADE AND COMMERCE – COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION – CONSUMER PROTECTION – MISLEADING OR DECEPTIVE CONDUCT – CHARACTER OR ATTRIBUTES OF CONDUCT OR REPRESENTATION – STATEMENTS AS TO FUTURE MATTERS AND PROMISES – estimate for work on vehicle – estimate exceeded – whether reasonable basis for estimate – whether excess recoverable Australian Consumer Law (“ACL”) s 4(1), s 18(1).
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 13(1), s 28(1)(a), s 29, s 142(3)(a)(i). Thiess Services Pty Ltd v Mirvac Queensland Pty Ltd [2006] QCA 50 |
APPEARANCES & REPRESENTATION: | This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) |
REASONS FOR DECISION
- [1]On 15 May 2019 the appellant filed in the Cairns registry an Application for minor civil dispute – consumer dispute, claiming the sum of $12,655.50[1] plus costs from the respondent, and an order that the respondent not make use of images of or information about the appellant’s vehicle, or anything implying that the appellant is a satisfied customer. The matter came on for hearing on 18 October 2019 before a Member,[2] who dismissed the appellant’s claim. The appellant seeks leave to appeal from that decision.
- [2]Because this matter was a minor civil dispute, leave is required to appeal to the Appeal Tribunal.[3] As a general proposition, when leave to appeal to the Appeal Tribunal is required, it will be granted only where there is a reasonable argument that the decision was attended by error and an appeal is necessary to correct a substantial injustice caused by that error, or where the appeal raises a question of general importance upon which further argument and a decision of the Appeal Tribunal would be to the public advantage.[4] In deciding whether grounds for leave to appeal have been shown, it is relevant to consider that the proceeding was a minor civil dispute, and the obligation on the Tribunal was to make orders it considered to be fair and equitable to the parties to the proceeding in order to resolve the dispute: the QCAT Act s 13(1). The Tribunal was also required to comply with the QCAT Act s 28 and s 29.
Background
- [3]The appellant was at the relevant time the owner of a 2009 Toyota Hilux. He approached the respondent and asked about having a replacement V8 petrol engine installed so as to make the vehicle roadworthy, and was given an estimate of $22,000. He was also given an estimated time of two months for the job, but in the event it took about four and a half months, and cost $35,463, including three payments to other parties for related work, said to have been made at the direction of the respondent. They kept in touch during the course of the work, but he claimed that he was never told about cost overruns.
- [4]There was a dual exhaust system fitted with the replacement motor. The parties were not in dispute that this was not included in the work originally requested, but was a variation. The appellant said that he had to pay the amount demanded by the respondent to recover possession of his vehicle, and in the claim sought to recover most of the difference between the original estimate and the amount he had paid.
- [5]The respondent did not dispute that the work took longer than expected, for various reasons. Originally the plan was to swap the existing engine for a different one, but when that other engine became unavailable, it was necessary to buy the replacement engine, at a cost of $5,500, which was an additional cost. The respondent said it was open to the appellant to sell the replaced engine himself, and offered to assist with that. There were various complications with the job, and they said they discussed these with the appellant and obtained his agreement to what was done. On occasions he approved something, but they were able to do a cheaper alternative, and he had the benefit of that. The appellant was given a discount on the final bill, of about $2,500: p 15, p 23.
- [6]The respondent said there was air-conditioning work done by a third party, who ended up charging more than they had estimated, but that was a matter between the appellant and the third party. They said that from their point of view it was a successful project, the result was a good job, and they have subsequently attended to two small issues on a warranty basis. They did not oppose removing reference of the appellant and his vehicle from digital media if that was what he wanted.
Decision of the Member
- [7]The Member found that the respondent had agreed to do an engine swap and instal the replacement engine to roadworthy standard in the vehicle. It was an oral agreement made around November 2018, when an estimated cost of $22,000, possibly blowing out to $25,000 was given to the appellant: p 1-24. The Member found that the dual exhaust was a variation, and that some unexpected issues had arisen. The estimate had been given on the basis that the replacement engine could be obtained as a swap for the replaced engine without cost, but that turned out not to be the case, and it was necessary to pay $5,500 for a replacement engine: p 1-25. The Member said that the appellant had claimed that he thought the cost was included in the original estimate, but preferred the evidence of the respondent’s witness, that he was told it would be an additional cost, for reasons he gave: p 1-25.
- [8]The Member said that he treated the dual exhaust as an extra, for which he allowed $2,500, whereas the cost of dealing with an issue with the clutch should have been covered by the $3,000 allowed in the original estimate for possible blow-out: p 1-25. He found that there were also unexpected issues with the air-conditioning which came to $794, and a water pump which added $540.95: p 1-26. If the cost of the replacement engine, the dual exhaust, and the unexpected extras were added to the original estimate of $22,000 it came to $32,483.75, which was very close to what the appellant had paid the respondent, $32,500. Given that the figure for the dual exhaust was only an estimate, in substance the amount paid had been justified in this way, and the claim was dismissed.
Submissions of the parties
- [9]The appellant in the grounds of appeal challenged the finding that the cost of the engine was an additional cost, and the finding that he had been told that it would be by the respondent, on the basis that the original proposed swop at no cost of the engines was unrealistic and must have been an act of manipulation to lure the appellant into the arrangement. It was submitted that it was the responsibility of the respondent to bear any additional costs involved in obtaining a replacement engine. The appellant submitted that the amount allowed by the Member for the exhaust variation was not supported by evidence, but was an off-the-cuff estimate, not consistent with the cost of the stainless steel material half of which would have been needed anyway for the single exhaust. The amounts for the clutch and the air-conditioning should have been included in the original estimate and should not have been allowed by the Member, as the respondent should have estimated accurately.
- [10]The appellant also submitted that the cost had been inflated by the respondent after he had complained about additional charges, a point not dealt with by the Member. The amounts paid by the appellant to an auto electrician and another business should not have been excluded from the estimate, as the respondent had nominated these businesses and should have allowed for these costs, and they should have been taken into account by the Member in his analysis of additional charges. The amount charged for labour came to 217.5 hours, when the estimate allowed only 160 hours, and the additional time taken ought not to have been at the cost of the appellant.
- [11]In submissions in writing filed 17 February 2020 the appellant complained that a statutory declaration setting out the content of a recorded conversation on 15 March 2019 had been overlooked by the Member. This he said involved an admission which suggested that the original estimate was lacking integrity. I have looked at this statutory declaration which is on the file. It does not purport to verify a transcription of the recorded conversation, but rather puts forward a series of interpretations by the appellant of the effect of what was said. As it stands, and without the relevant witnesses having been cross-examined on the supposed admissions, it was of little value as evidence, and it is understandable that the Member did not mention it. It would have been open to the appellant to have played the recording of the conversation at the hearing.
- [12]The appellant also complained that:
- (a)what subsequently happened about the replacement engine was inconsistent with there being originally an engine available on a swop basis.
- (b)The respondent had provided documents in response to the claim late on the original date for the hearing.
- (c)The respondent had published material on social media about this job without his consent.
- (d)The respondent had relied on false rationalisations or untruthful statements.
- (a)
- [13]Otherwise, the submissions essentially repeated the points made with the Application for leave to appeal. No submissions were filed by the respondent, and there is a note on the appeal file that the respondent has been non-complaint with all directions.
Consideration
- [14]One difficulty facing the appellant is the identification of the true nature of what was said about the cost of the work to be done. If a supplier of services offers to do certain work for a particular amount, and that offer is accepted, the supplier can only charge that agreed amount, even if doing the work involves additional difficulties not foreseen by the supplier at the time.[5] On the other hand, if a supplier gives an estimate of what particular work is expected to cost, and the customer asks the supplier to undertake the work, the customer is bound to pay either a reasonable amount for the work done, or charges in accordance with the costs and usual charges of the supplier. In that situation, if any unforeseen difficulties arise in doing the work, the burden of them falls on the customer.
- [15]In the statutory declaration annexed to the appellant’s original application to the Tribunal, it is not clear whether he was alleging that the respondent had entered into a fixed price contract, or had given an estimate of what the job would cost if charged for on the basis of the usual rates for labour, plus materials.[6] The respondent’s affidavit said that what was given was a “rough estimate”,[7] and the Member said that the figure of $22,000 to $25,000 was the “estimated cost”: p 24. He added that that was not in dispute. On the evidence as a whole, that was not an error. In those circumstances it was not a fixed price contract to do the work, and not the responsibility of the respondent to cope with unexpected difficulties. On the contrary, the obligation on the appellant was to pay for what work was done at the usual charging rates of the respondent. The appellant’s only remedy was if the original estimate was misleading or deceptive, which would be the case if, at the time the estimate was given, the respondent had no reasonable grounds for giving it.[8] That it turns out to have been wrong does not prove it was misleading or deceptive.[9]
- [16]The effect of the Member’s decision was that after the estimate things changed, with the result that the charges increased as a result of matters not taken into account when the original estimate was given. If that was the case, there was no basis on which a claim based on misleading or deceptive conduct could be sustained.
- [17]As to the cost of the replacement engine, the respondent’s evidence was that at the time of the estimate they believed they could source a replacement engine as a swop from a particular business, but ultimately that business said they were not able to do so. The respondent’s evidence was that the appellant was then given the option to pull out of the job, because the cost would go up by $5,500, but the appellant said he would go ahead anyway. That was the evidence that was accepted, and on the basis of that evidence the $5,500 was on top of the original estimate. Indeed, the version of the appellant in his statutory declaration was to the effect that he was told the swap was not available, and the replacement engine would cost $5,500, and asked whether he wanted to proceed. He claimed (p 5) that he thought that this would not affect the estimated cost, but it is obvious on the version given in paragraph 2 of his statutory declaration that the $5,500 would be an additional cost on top of the estimate.
- [18]As to the double exhaust, the respondent’s evidence was that the original estimate was on the basis of using the existing exhaust system, and the appellant was told that a replacement system would be an extra.[10] This would have involved the whole cost of the stainless steel material required, and all the labour, said to be over 30 hours.[11] At the charge rate quoted by the appellant in the submissions with the Application for leave to appeal, $88 per hour, this comes to $2,640, plus the cost of the stainless steel $867,[12] a total of $3,507. On this basis the amount of $2,500 adopted by the Member was actually too favourable to the appellant.
- [19]As to any extra work on the clutch, the Member accepted that this was an extra on the basis of the respondent’s evidence, along with the additional cost for fitting the compressor for the air-conditioning on the replacement motor and the cost of replacing a seized water pump. This was also resolved by the Member preferring the evidence of the respondent. The problem was not that the clutch did not suit the replacement engine, but that the one that came with the engine was worn out and needed to be replaced.[13] That was not a cost which could be identified until the replacement engine was received and examined.
- [20]The problem with the air-conditioner was explained in technical terms in the respondent’s affidavits. It may be that this presented additional difficulties than were expected because of a failure of the respondent to foresee the particular problem faced as a result of the use of a Holden replacement engine in a Toyota vehicle, but it does not follow that the respondent did not have a reasonable basis for giving the estimate originally given. The respondent said that the appellant dealt with the auto electricians directly, and they were not responsible for what was charged, or indeed what work was done. The appellant admitted when questioned that the auto electrician identified some additional technical issues, which increased their charges by $478: p 12.
- [21]It follows that some of the cost of third-party work paid directly was not within the estimate anyway. It is the case that the Member compared the adjusted original estimate with the amount paid by the appellant just to the respondent, and did not take into account in the calculation the amounts paid to the third parties, but not all the third party work was included in the original estimate, and in any case, the issue was really whether there was a reasonable basis for the original estimate. The calculation done by the Member demonstrated that there was a reasonable explanation for most of the increase in cost in a way which not inconsistent with the existence of a reasonable basis for the original estimate, which was only an estimate. Hence the appellant’s claim was, on the findings of the Member, correctly dismissed.
- [22]As to the proposition that the total charged by the respondent was increased maliciously, on the approach of the Member it was much more likely that the owner was simply corrected an error by the manager in saying what the final charge was. The proposition that this was malicious was not put to Mr Hallman when the appellant had the opportunity to cross-examine him (p 23) and in the circumstances it was reasonable for the Member to ignore it.
- [23]I have already dealt with the main new point in the further submissions filed on 17 February 2020. What subsequently happened with the replacement engine may suggest that the business which was originally talking about a straight swop of the engines was acting unwisely, and may explain why that proposal did not come to fruition. But it does not show that the claim that the respondent had been told that such an arrangement was available was false. It was a matter for the Member to decide whether to attribute any significance to the lateness of the respondent’s material.
Conclusion
- [24]I have considered the evidence before the Member. So far as the Member preferred the evidence of the respondent’s witnesses to the evidence of the appellant, I have not seen and heard them, and the conclusion of the Member has not been shown to have been inconsistent with reliable documents or other material. On the evidence before the Member, the findings made were open, and are not shown to have been in error. The appellant has failed to show that there are grounds for the grant of leave to appeal. The Application for leave to appeal from the decision of the Tribunal of 18 January 2019 is dismissed.
Footnotes
[1] The appellant gave details of the calculation of this sum at Transcript, p 6.
[2] An Acting Magistrate sitting as a Member under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“the QCAT Act”), s 171(2).
[3] The QCAT Act, s 142(3)(a)(i).
[4] Crime and Corruption Commission v Lee [2019] QCATA 38 at [12], citing appellate authority. See also Campbell v Queensland Building and Construction Commission [2021] QCATA 34 at [17].
[5] Thiess Services Pty Ltd v Mirvac Queensland Pty Ltd [2006] QCA 50 at [34], [54].
[6] See also his evidence at p 5.
[7] See also the evidence at p 14.
[8] Australian Consumer Law (“ACL”), s 4(1), s 18(1); Fair Trading Act 1989 (Qld), s 16(1).
[9] Global Sportsman Pty Ltd v Mirror Newspapers Ltd (1984) 2 FCR 82 at 88. See now ACL, s 4(1); here the respondent went into evidence, and explained the discrepancy.
[10] Evidence, p 5. The appellant claimed he thought it would cost only about $1,000.
[11] Long affidavit of Rostron, para 14. The respondent filed two affidavits both affirmed 4 September 2019, but the appellant refused to accept a copy of them, and at the hearing declined to read them when advised by the Member to do so: p 16.
[12] Also taken from the appellant’s submissions.
[13] The respondent had not expected this: p 19.