Jackson v Parrott[2012] QDC 172

QDC [2012] 172

DISTRICT COURT

APPELLATE JURISDICTION

JUDGE SAMIOS

No D6 of 2011

MACKAY

DATE 29/03/2012

JUDGMENT

HIS HONOUR: Darren Jackson purchased a 1973 Ford Mustang motor vehicle from Benjamin Alwood. Mr Jackson took delivery of the Mustang and drove it from Queensland to Melbourne. In Melbourne he had it inspected by the authorities, and it was found, according to Mr Jackson, to have a number of defects.

At the time Mr Jackson purchased the Mustang from Mr Alwood, he was given a roadworthy certificate under the hand of a Mr Camilleri. As later events have proved, Mr Camilleri was prosecuted for giving a false certificate. It appears that Mr Jackson commenced proceedings against Mr Alwood and Mr Camilleri, however, those proceedings do not appear to have gone to a judgement. The best I was told on the hearing of this Appeal today, is that they may have been resolved.

It then appears that Mr Jackson turned his attentions to VIP Automotive Solutions and Eric Thomas Parrott. The reason he turned his attentions to VIP Automotive Solutions and Mr Parrott, is because Mr Parrott had provided a report following a visual inspection of the Mustang, and not a mechanical inspection.

The report is dated 20 March 2004. It deals with a number of aspects of the motor vehicle and their condition. However, it also contained a disclaimer. The disclaimer provides, amongst other things, "VIP Automotive Solution reports are merely to advise you the buyer of the overall basic visual condition of the said vehicle in the window of time allotted, with an aim to giving you to the best of our ability, a fair unbiased and honest appraisal of the vehicle."

The disclaimer also goes onto say, "Mechanical components are not dismantled to confirm diagnosis, engine cam belts are not inspected. It is recommenced the cam belt be serviced in accordance with the manufacturer's recommendations. The condition of brake linings, pads, drums and disc rotors, are not determined during the visual inspection. However, the overall brake performance is assessed during the road test. Instrumentation is not checked for accuracy. Engine additives and certain body detailing may cover up faults which may not be detectable during the inspection. Some noises and faults occur intermittently and are not always evident at the time of inspection. Oil consumption cannot be measured during the inspection."

Mr Jackson claimed in the Magistrates Court that VIP Solutions and Mr Parrott, were liable to him for his loss on the basis of either a contractual duty or a general duty in the tort of negligence. Mr Parrott defended the proceedings brought by Mr Jackson in the Magistrates Court. The claim was for a sum of $17,708.

When the matter came on for trial before the learned Magistrate, the VIP Automotive Solutions did not take part. An undertaking was given by Mr Jackson through Mr Arnold, who appeared on behalf of Mr Jackson, that a notice of discontinuance of proceedings against the first defendant, namely, VIP Automotive Solutions, would be filed within seven days. My search of the file has not revealed that such a notice of discontinuance has been filed.

However, the learned Magistrate accepted that the action against VIP Automotive Solutions had been discontinued. In the course of dealing with the matter, the learned Magistrate noted that Mr Jackson stated that he had read the report compiled by Mr Parrott, and that afterwards he contacted Mr Alwood and sent him a deposit of 10 per cent of the sale price. The learned Magistrate stated that Mr Jackson did this on the same day he received a copy of the relevant report and he did so because of the interest shown by another party.

The learned Magistrate quoted the evidence to be that, "He wanted to get in first." The deposit, the learned Magistrate found, was paid on 22 March 2004. The learned Magistrate then noted that on the evidence Mr Jackson and his cousin travelled to Mackay on the 24th of March 2004. They inspected the vehicle, although they could not get under the car as it was too low. He noted Mr Jackson's evidence, "I just relied on the reports I'd got. Well, this is their job to tell me that the car was good or not."

He noted that Mr Jackson said he then made arrangements to purchase the vehicle. He was given a receipt and the roadworthy certificate. He noted Mr Jackson's evidence that he then took possession of the vehicle and began to travel back to Victoria. He also noted the evidence that once in Victoria, about a month later after purchasing the car the roadworthy certificate was done in Victoria. Clearly, it was not favourable and he made a complaint to the Queensland authorities, and as a result, Mr Camilleri was prosecuted and convicted providing the false certificate.

The learned Magistrate noted that the person who examined the vehicle was not called to give evidence of his expertise or what he found. He noted Mr Jackson stated that if he had received a report listing all the matters he found to be wrong with the vehicle, he would not have purchased it. He said he did not see rust or oil leaks.

The learned Magistrate noted that Mr Jackson was shown copies of previous actions he had taken against Mr Alwood and Mr Camilleri. He noted in those matters, Mr Jackson had at least relied on the assurances of Mr Alwood and the certificate issued by Mr Camilleri in buying the vehicle.

In addition to Mr Jackson's evidence, he called Mr Graham Cuthbert. The learned Magistrate though, regarding Mr Cuthbert's evidence which was about the number of defects in the vehicle, was that Mr Cuthbert's evidence did not progress the matter at all. That is, the learned Magistrate said that any inspection he may have done on the vehicle was done some years later, and the value of the vehicle when he inspected it was $3,000. Apparently, Mr Cuthbert had inspected the vehicle 23 months later.

The learned Magistrate also noted in his judgement that the second defendant elected to give evidence. He noted that Mr Parrott, who was the second defendant, was at the relevant time a motor dealer. He was contacted by VIP and did two jobs for them. He was never qualified as a motor mechanic or as a registered valuer.

Mr Parrott stated he was contacted by VIP and asked to do an inspection of the vehicle. He told them he could not do a mechanical inspection and that he could only do, "an appraisal or visual inspection" of that vehicle. VIP asked Mr Parrott if he would contact the person requiring the report a Mr Murtagh and see if he would accept that.

The learned Magistrate noted Mr Parrott's evidence that he contacted Mr Murtagh and explained to him that he could not do a mechanical inspection, and that he could only do a visual inspection. Mr Murtagh was happy with that and told Mr Parrott to go ahead. Mr Parrott stated VIP asked him to visually inspect the vehicle and paid him $100 for his services.

Mr Parrott's evidence before the learned Magistrate was also that he was undertaking his visual inspection. When he was undertaking his visual inspection, Mr Alwood came out and told him that he had sold the car. VIP requested Mr Parrott to finish his report and forward it to them. Mr Parrott complied with that request, and the report became an Exhibit number 2 in the proceedings before the learned Magistrate. It was dated the 20th of March 2004.

The learned Magistrate also noted Mr Parrott's evidence that he, "I was told not to continue with the report that he Alwood had just sold the car over the phone as is where is, and I was virtually wasting my time to go any further." Mr Parrott went onto say that he spoke to him for a while and then he rang Mr Merloo, who the learned Magistrate assumed was Mr Murtagh, and told him what had occurred, and he spoke to his wife, he wasn't home.

He rang back later and again told him what had happened and apologised that he could not actually finish the report and was not able to take any photos and so forth of the car. He then went home and rang VIP and told them that he had not actually finished the report. He did it from memory. He finished it up the last bit in the report.

The learned Magistrate noted that when Mr Parrott was asked why he had finished the report, he stated VIP had asked if he would send the report down to them. Mr Parrott said he had completed the report on the 21st or the 22nd of March. He could not say the exact date. In the end, the learned Magistrate in terms of acceptance of witnesses, accepted Mr Parrott as against Mr Jackson.

Credit was relevant because part of Mr Jackson's case against Mr Parrott was that Mr Jackson had relied on Mr Parrott's report and that the report was a negligent misstatement by Mr Parrott to Mr Jackson. The learned Magistrate found that Mr Jackson was not an impressive witness, or at least he said "a less than impressive witness". He found Mr Jackson to be occasionally evasive and at times a little selective in his memory, particularly when being cross-examined about previous actions regarding the vehicle in which he was the plaintiff.

The learned Magistrate also became concerned about the evidence of Mr Jackson when Exhibit 2 was tendered by Mr Arnold. Mr Jackson gave evidence that Exhibit 2 was the report he received from VIP, which was the report authored by Mr Parrott. In cross-examination it became apparent Mr Jackson had received at least a further page of that report. These conclusions by the learned Magistrate are not challenged except that it is said credit was not the issue. The issue was the duty owed by Mr Parrott to Mr Jackson, the breach of that duty and the damages that flowed from that breach.

The learned Magistrate noted that the further page that was missing from the exhibit identified by Mr Jackson was the disclaimer. The learned Magistrate thought it was "a crucial page". I have mentioned earlier in these reasons the contents of part of the disclaimer. The learned Magistrate found that Mr Jackson had received the disclaimer. He concluded that, with respect to Mr Jackson's evidence, it should be treated with the utmost caution and he found him to be unreliable.

On the other hand he found Mr Parrott to be impressive, consistent and reliable. He was firm in his evidence and he found the evidence compelling. He accepted the evidence of Mr Parrott where it was in conflict with Mr Jackson. This conclusion by the learned Magistrate about the credibility of Mr Jackson I do not think can be set aside on the hearing of this appeal. I should mention that the learned Magistrate dismissed Mr Jackson's claim.

In Devries and Australian National Railways Commission [1992] to [1993] 177 CLR 472 at page 479; Brennan, Gaudron and McHugh Justices said "More than once in recent years this Court has pointed out that a finding of fact by a trial Judge based on the credibility of a witness is not to be set aside because an appellate court thinks that the probabilities of the case are against, even strongly against, that finding of fact. If the trial Judge's finding depends to any substantial degree on the credibility of the witness the finding must stand unless it can be shown that the trial Judge has failed to use or has palpably misused his advantage or has acted on evidence which was inconsistent with facts incontrovertibly established by the evidence which was glaringly improbable."

The learned Magistrate's reasons show that he accepted though Mr Jackson's evidence that he received the report on the same date that he sent the deposit, that is the 22nd of March 2004, and that was two days after he had spoken to Mr Alwood and agreed on a price with him. He also accepted that Mr Jackson did not have a copy of the report when he spoke to Mr Alwood and made arrangements for him to pay the deposit. It seems those two findings are inconsistent.

However, the issue that the learned Magistrate had to determine was whether Mr Jackson relied on the report. That is he may have had the report but the question still remained did he rely on it? The learned Magistrate found that Mr Jackson acted at this time as, and he quoted "He wanted to get in first and he didn't want somebody else buying it from under him". Later in his reasons the learned Magistrate said, "I accept Jackson relied on the conversation with Alwood the roadworthy certificate and his own observations of the vehicle in determining to go ahead with his previous stated intention to purchase the vehicle".

In my opinion although the learned Magistrate did not express himself well in this respect the proper inference to be drawn from his findings is that he found that Mr Jackson did not rely on Mr Parrott's report. That is Mr Jackson relied on his conversations with Mr Alwood, the roadworthy certificate prepared by Mr Camilleri and his own observations of the vehicle. That was the basis the learned Magistrate concluded that Mr Jackson determined to go ahead with his previously stated intention to purchase the vehicle.

The other finding the learned Magistrate made and the complaint is that he should not have made any of these findings and did not provide adequate reasons for his finding is that there was no credible evidence before him that the report by Mr Parrott was inaccurate. It is said that the learned Magistrate has breached the obligations recognised in Drew v Makita (Australia) Pty Ltd [2009] QCA 66 where at paragraph 57 the Court said, "A court from which an appeal lies must state adequate reasons for its decision. The failure to give sufficient reasons constitutes an error of law."

In my opinion the learned Magistrate has given adequate reasons. He was not prepared to accept the evidence of Mr Cuthbert. The evidence available from a Mr Ivanovich was not called and I do not accept that it became admissible in the proceedings. The learned Magistrate adequately expressed himself that over 23 months had transpired between the purchase of the vehicle and Mr Cuthbert's examination. That was sufficient in my opinion for him to conclude that there was no inaccuracy in Mr Parrott's report.

The learned Magistrate also accepted, and in my opinion it was open to him to accept, that Mr Parrott had placed limitations on his report in the form of the disclaimer. The learned Magistrate said, "I am satisfied on the balance of probabilities the report given by Parrott was as described in the disclaimer." The learned Magistrate also said, "I am of the view that Jackson formed an unrealistic view of the report and I find Parrott has exercised the necessary standard of care in compiling and distributing his report."

In my opinion this finding was open to the learned Magistrate. It is not disqualified by what has been said to be lack of reasoning in this case. The disclaimer was before the learned Magistrate. On its reading it says what it says and in this case the learned Magistrate concluded that it did not breach the duty of care. It may be that in the course of giving his reasons the learned Magistrate said that there was no duty of care owed by Mr Parrott to Mr Jackson. I think in that respect the learned Magistrate was wrong.

On the accepted facts here Mr Parrott did provide a report to VIP Solutions and he knew or would have known or ought to have known that the report would be shown to a prospective purchaser. Notwithstanding there may have been a duty of care owed I accept the learned Magistrate was correct to conclude in this case that the duty of care was not breached.

Therefore in my opinion, notwithstanding the grounds of appeal, the learned Magistrate gave adequate reasons for his findings and those findings were supported by the evidence. I would not set aside these findings. They are findings that there was no reliance on the report by Mr Jackson or alternatively if there was reliance it was not a negligent misstatement in its context. Therefore I dismiss the appeal from the learned Magistrate's decision.

Mr Arnold, what do you say on the question of costs?

MR ARNOLD: I've got no submissions, your Honour. Other than if your Honour was to award them they'd just simply be on the standard basis.

HIS HONOUR: Sorry?

MR ARNOLD: If your Honour was to award them they should be on the standard basis.

HIS HONOUR: I just can't hear your last words?

MR ARNOLD: I'm sorry. If your Honour was to award costs on an application then they should be on the standard basis.

HIS HONOUR: Yes. Mr Parrott, do you have anything to say on the question of costs?

RESPONDENT: Yes, sir, I did claim costs before and I was awarded $8,000. They have never been paid.

HIS HONOUR: Yes, all right.

RESPONDENT: And I would like to claim some costs because I did have some input from the solicitor and - even though I'm looking after the case myself.

HIS HONOUR: Yes, all right. On the questions of costs I order the appellant to pay the respondent, Mr Parrott, his costs of the appeal to be assessed on the standard basis. I should say that I omitted one matter and that is in relation to this appeal it appears to be arguable that leave is required by the appellant pursuant to section 45 subsection (2)(a) of the Magistrates Courts Act.

I should say that for all the reasons I've already given for dismissing the appeal I am not satisfied that some important principle of law or justice is involved in this case and I would not give leave to appeal, but, in any event, because there is some doubt in my mind about it I dismiss the appeal and I order the appellant to pay the respondent, Mr Parrott, his costs of the appeal to be assessed on the standard basis.

Yes, nothing further?

MR ARNOLD: Nothing further, your Honour.

HIS HONOUR: Yes, thank you.