Browne v Iservice Vans[2023] QCATA 82

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   Mr Browne appeals the decision of the Tribunal, in the minor civil disputes jurisdiction, dismissing his claim against Iservice Vans for damages as a result of repair work carried out on his 2011 Volkswagen Transporter Van. He had paid Iservice about $10,000 for repair work to prevent the engine from overheating after a couple of hours running. It seems the problem arose after a previous mechanic had put an additive, Chem-i-Weld, into the cooling system which is supposed to seal cracks in the engine to stop it from overheating. It didn’t work so he took the vehicle to Iservice to try and solve the problem.
2. [2]
   There were initial discussions between Mr Browne and Mr Budini of Iservice about the overheating issues and although there was no immediate solution, a trial and error process was agreed upon. This started with the removal and testing the engine head. It was sent to a specialist machinist used by Iservice and it was found that the head was cracked and had to be replaced. Mr Browne agreed to this. Then the radiator was replaced because the remnants of the additive were still in the system. Further work was undertaken, continually trying to remove the additive, which also involved replacement of further parts, such as the water pump.
3. [3]
   When the fault could not be resolved, Mr Browne sent a lengthy email to Mr Budini which sets out the chronology of events, from his perspective, and the payments he had made to Iservice for the work done. He was clearly dissatisfied with the work undertaken by Iservice.
4. [4]
   Ultimately, he commenced the proceeding in the Tribunal where he sought general relief. This included a return of the vehicle because he was being held pursuant to a lien for non-payment of an invoice issued by Iservice, compensation for loss of work (the van was a work vehicle) and hiring a replacement vehicle. Also legal costs because he had engaged a solicitor concerning the lien. The damages claimed were not particularised nor was there any recognition of the work that was necessary in any event.
5. [5]
   During the Tribunal process a mediation was arranged and a compromise agreement was reached for the release of the vehicle and Iservice providing a 30day warranty. Also Iservice would waive any further payment. The vehicle was collected, but within a short time the vehicle overheated again. Mr Budini was going to send a mechanic to check the vehicle but Mr Browne decided to then have the vehicle inspected by Tweed Volkswagen to try and chase down the cause of the overheating.
6. [6]
   In a report dated 14 December 2021 Tweed Volkswagen detailed some issues with the engine of the vehicle. Relevantly it identified two possible causes for the overheating:

…..carried out TK test and found exhaust fumes in cooling system as cylinder head and gasket was replaced (if we assume this job was done correctly) the fumes can only come from two places. EGR cooler or there is a crack in the engine block.

7. [7]
   Mr Budini was adamant that the EGR cooler was not touched during the various repair works carried out by Iservice. There was no reason not to accept that evidence. That then left the engine block. To check this, the engine would have to be removed from the vehicle to be tested properly. It is not a simple task to check the whole of the engine block for a crack. It must also be borne in mind that the vehicle had done over 200,000 kilometres.
8. [8]
   It was this issue that was significant in the learned adjudicators decision to dismiss Mr Browne’s claim. The other issue was that it was clear that Mr Browne did get some value for what was paid to Iservice for the work they carried out even though the overheating issue was not fixed.
9. [9]
   Having dismissed the claim, Mr Browne filed an application for leave to appeal or appeal. As this is an appeal brought under s 142(3)(a)(i) of the Queensland Civil and Administrative Tribunal Act 2009 in respect of a decision in a proceeding for minor civil dispute, an appeal may be made only if the party has obtained leave of the Tribunal. Leave to appeal will usually only be granted where there is a reasonable argument the decision was attended by error, or that an appeal is necessary to correct the substantial injustice caused by the error.^[1] Further in Rintoul v State of Queensland & Ors [2018] QCA 20 at [10] the Court of Appeal reiterated the general principles:

The principles governing a grant of leave to appeal are well-established. In short, an applicant for leave to appeal must show:

1. (a)
   the appeal is necessary to correct a substantial injustice;

2. (b)
   there is a reasonable argument that there is an error to be corrected.

There must be reasonable prospects of success to warrant a grant of leave. Therefore, in deciding whether to grant leave to appeal the Court usually makes some preliminary assessment of the prospects of the proposed appeal.

10. [10]
    The substantive grounds of appeal here relates to the Tribunal’s use and reliance on  the Tweed Volkswagen report.  It is contended by Mr Browne that learned adjudicator erred in not taking into account that the report found some of the work on the vehicle was negligent and involved poor workmanship. Also, that the cause of the overheating was related to another issue. What the grounds of appeal do not raise specifically is why the findings of the learned adjudicator were wrong and the basis of it.
11. [11]
    It is correct that the report did identify some poor workmanship but it does not say this is the cause of the overheating. The possible cause of that is the EGR cooler or a crack in the engine block. Of particular relevance is what the learned adjudicator said in her reasons about the work done by Iservice as follows:

His point is essentially that Mr. Budini has not exercised due care and skill in the provision of his services and despite all the money paid by Mr. Browne to Mr. Budini, Mr. Browne still has a car that does exactly what it was doing prior to taking it to Mr. Budini. However, it's clear that the work that was done - I think it's clear that the work that was done - was required to be done and should be paid for and that's where $10,000 went. Obviously any due care and skill might relate to Mr. Budini missing - to the extent there is a cracked engine block - missing that on his initial diagnosis but it's relevant to assume whether or not it was reasonable for him to know that, given the difficulty in removing the engine, which Volkswagen couldn't even do. There's no evidence, therefore, that the engine had a crack when it was taken to Mr. Budini and because there's no evidence of that, there is no evidence that he did not exercise due care and skill in failing to diagnose that particular issue.

12. [12]
    Having read the transcript of the evidence given at the hearing, the reasoning above was clearly open to the learned adjudicator to find. The issue of the cracked block, if investigated and found to be the cause, would result in additional work for which Mr Browne would have had to pay for in any event.
13. [13]
    These matters were reiterated in Mr Browne’s written submissions to the Appeal Tribunal. Even if Mr Browne’s complaints are to be accepted that some of the poor workmanship was by Iservice, as already alluded to, there was no evidence linking that work to the cause of the overheating. There is also no break-up of the cost of the rectification of the faulty work, and no actual claim was made for this. It is difficult to discern from Mr Browne’s submissions what remedy he seeks. He is not claiming a refund of the $10,000 but contending generally that he did not get a satisfactory result from Iservice in isolating the overheating problem. To some extent that it true, but if it is the engine block, then that work is in addition to the work already done. One can easily appreciate that as a work vehicle any downtime would result in financial loss. Again although generally claimed it was not particularised. This whole case revolved around Iservice not fixing the overheating engine, despite many attempts at doing so.
14. [14]
    The learned adjudicator did the best she could with the evidence that was before her and her conclusions of fact were open on the evidence. The Appeal Tribunal will not, and cannot interfere with findings of fact which were open on the evidence before the decision maker.^[2] As no error is demonstrated in the decision, leave to appeal is refused.