Davies v Hollywood Restorations Pty Ltd [2021] QDC 305

DISTRICT COURT OF QUEENSLAND CITATION: Davies v Hollywood Restorations Pty Ltd [2021] QDC 305 PARTIES: JAMES DAVIES (plaintiff) v HOLLYWOOD RESTORATIONS PTY LTD ACN 615862550 (defendant) FILE NO: 93 of 2020 DIVISION: Civil PROCEEDING: Hearing DELIVERED ON: 2 December 2021 DELIVERED AT: Southport HEARING DATE: 22 and 24 November 2021 JUDGES: Jackson QC DCJ ORDER: The order of the court is that: 1. the plaintiff’s claim is dismissed. 2. judgment for the defendant on the counterclaim for the payment of $9,097. 3. the parties are to provide written submissions as to costs limited to four pages within seven days of the delivery of this judgment. CATCHWORDS: CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – FORMATION OF CONTRACTUAL RELATIONS – TERMS – where the parties entered into an agreement in April 2019 that the defendant was to perform various repairs on the plaintiff’s vehicle and respray it at an estimated cost – where it became apparent that the defendant would have to undertake additional work and that work was invoiced and paid for by the plaintiff – where the plaintiff claimed he was overcharged for some of that work – where the plaintiff also claimed that there were defects in the vehicle and the defendant agreed to rectify those defects free of charge – where the defendant claimed there were no defects in the car – where the defendant also claimed that he did not agree to undertake work on the plaintiff’s vehicle free of charge – whether the parties agreed that the rectification work to the plaintiffs vehicle would be completed free of charge -- 1 of 21 -- 2 TORTS – INTERFERENCE WITH PROPERTY – INTERFERENCE WITH GOODS – DETINUE – where the plaintiff returned the vehicle to the defendant to rectify the alleged defects and the defendant undertook that work – where the defendant issued the plaintiff two invoices for this work – where the plaintiff refused to pay the two invoices – where the defendant retained the plaintiff’s vehicle asserting a lien – where the plaintiff seeks return of the vehicle – where the defendant seeks to be paid the amount of the two invoices – whether the defendant is entitled to exercise a possessory lien over the vehicle COUNSEL: J Sproule for the plaintiff J Mould for the defendant SOLICITORS: Rose litigation Lawyers for the plaintiff Armfield O’Brien Law for the defendant Introduction [1] The plaintiff owns a 1967 Volkswagen Beetle. The defendant owns and operates a business providing restoration services, including panel beating and spray painting. Mr Robert Bushby is its sole director. The defendant’s workshop manager at the relevant time was Ryan Spencer. [2] On 4 April 2019 the plaintiff obtained a quote from the defendant to respray his car for $10,797.95 including GST.1 Subsequently it became apparent that additional work was required and that was undertaken and paid for. The plaintiff claims that he overpaid for some of that work, and he seeks the recovery of $5,403 in this respect. Also, it is claimed that there were defects in the car and that the defendant agreed to repair those without charge. The defendant says that the matters identified by the plaintiff were not defects and that there was no agreement to undertake work without charge. The car was returned to the defendant. The defendant undertook work as to the matters identified and invoiced the plaintiff for $9,097. The plaintiff did not pay the invoices for that work and the defendant has retained the car asserting a lien. The plaintiff seeks its return and the defendant seeks to be paid $9,097. [3] It is common ground that in April 2019 the parties entered an agreement by which the defendant was to perform various repairs on the plaintiff’s car and respray it and that the estimated cost of the repairs was $10,797.95.2 [4] Surprisingly the defendant denies that there were terms of the agreement requiring it to perform the repairs in a good and workman like manner or to exercise due care and skill such that the repairs would be free from defects. However, this has now been rectified in a list of agreed and disputed matters.3 This matter is now admitted. 1 Exhibit 4. 2 See paragraphs 2 and 3 of the statement of claim and paragraph 1 of the defence. 3 Exhibit 2. -- 2 of 21 -- 3 [5] The plaintiff also pleads what it refers to as a supply agreement which was an agreement by which the defendant would supply parts for the car. It is pleaded that pursuant to that agreement the plaintiff would only be charged for parts actually supplied and would not be charged for parts which were incorrectly ordered. The defendant pleads a non-admission in respect of that allegation, although ultimately the parties are agreed as to issues concerning the parts. [6] It is also common ground that once the car had been sandblasted, it was apparent that it needed significantly more in the way of repairs than the parties had in mind at the time the agreement was made. While much is pleaded in relation to this topic, it does not seem that there is any lasting disagreement between the parties as to the further works that were to be undertaken, although there is as to the cost of them. [7] While there had been a proposed amendment to the claim and statement of claim which would have had the effect that there was no allegation that work was undertaken which was not agreed to, that amendment did not proceed for reasons which are not before the Court. [8] Of most significance in the matter, the plaintiff claims that when the car was returned to him on 8 January 2020, he identified that the work which had been undertaken by the defendant was defective in respects particularised in paragraph 13 of the statement of claim. The defendant denies that those matters identified may be described as defects or that the work was defective and instead says that those things were imperfections in the paint work of the car. Despite the matter being put that way, it was very clear that the defendant’s position as to the alleged pitting in the gutters was that there was no defect or imperfection. Instead, the defendant’s position was that this “pitting” was the factory spot welds attaching the roof skin to the car. As to the imperfections otherwise, the defendant’s case is that the work the defendant was doing had not been completed and would not be until the plaintiff had assembled the vehicle and returned it to the defendant for colour sanding, buffing, and polishing. Put another way, the work was not defective or imperfect, but the car required colour sanding, buffing and polishing. [9] The plaintiff pleads that the defendant was required to rectify that work and that the plaintiff was not required to pay for it.4 In a proposed amended statement of claim it was pleaded that the plaintiff and the defendant agreed that the plaintiff would return the car and the defendant would rectify the defects free of charge. As I mentioned though, those amendments did not proceed. Nonetheless the plaintiff gave evidence that this was the arrangement. Mr Bushby denied it. [10] The defendant says that the imperfections were standard for this stage of the repair of the car and that it was “custom and usage” within the defendant’s industry that such imperfections would be remedied by a vehicle restorer only once the vehicle owner had reassembled the vehicle and returned it to the restorer for finishing. Again, this is not so in relation to what the defendant says were spot welds which it contends were not a defect but a factory assembly method. [11] The defendant pleads that the rectification work undertaken by it was in accordance with the custom and usage which it had pleaded in subparagraph 9(b) to 9(d) of the defence. The focus in the pleadings on custom and usage in this way served to distract 4 See paragraph 16 of the statement of claim. -- 3 of 21 -- 4 in a sense from the parties’ agreement that any colour sanding, buffing and polishing to be completed by the defendant would not occur until after the plaintiff had reassembled it. [12] The plaintiff also makes a claim for the sum of $500 in respect of the defendant having lost the tyres from the car. The defendant says the tyres were stolen from its premises and that the tyres were replaced with a standard size after its enquiries of the plaintiff as to details of the tyres that were on it were unsuccessful. The defendant paid for the tyres. [13] The plaintiff claims for the amount paid for parts said to have been incorrectly ordered, because they are for a different year model. The defendant admits having incorrectly ordered them, but says that the plaintiff has retained the incorrect parts. The plaintiff also claims in respect of parts he has paid for and which have not been supplied. To this claim, the defendant appears to claim that it is not obliged to provide the parts because it has not been paid for the two controversial invoices totalling $9,097. The sums claimed in relation to parts total $1,280.42. [14] Following the list of issues, the quantum is agreed in relation to the plaintiff’s claims. There is also agreement between the parties that the appropriate way to deal with the issues as to the parts is that the parts which were ordered and not supplied be provided to the plaintiff and the plaintiff return the parts incorrectly ordered. [15] The rectification of the defects (or completion of the imperfections) occurred by 11 March 2020. The defendant refused to permit the plaintiff to take the car unless the sum of $9,097 was paid. The invoices in that sum were mailed to the plaintiff on 13 March 2020. There is disagreement between the parties as to whether the plaintiff had also been provided with them on 11 March 2020 at the defendant’s premises. [16] The defendant counterclaims for payment said to be outstanding in the sum of $10,062 which includes towing fees, storage fees and the $9,097. Otherwise, orders are sought permitting the sale of the vehicle and an injunction requiring the plaintiff do all that is necessary for transfer of it. The issues [17] The issues as distilled from the list of issues in dispute5 are as follows. [18] First, whether there was agreement as to additional work to be carried out after the car was sandblasted and, if so, at what rate. Secondly, whether the work referred to in the invoices identified in subparagraph 27(c) of the statement of claim is “work not properly undertaken by the defendant”, such that the defendant is liable to the plaintiff for $5,403. Thirdly, whether the plaintiff was provided with the defendant’s terms of trade and whether they were binding on the plaintiff. Fourthly, what the agreement was in terms of return of the car to the plaintiff and whether that was for reassembly by him prior to sanding, buffing and polishing or, in effect, whether those things should have been completed by then and not be the subject of any later additional charge. Fifthly, the associated question of whether the sum of $9,097 is payable to the defendant in relation to these works. Sixthly, whether there were defects in the car which were the result of a lack of due care and skill. Seventhly, whether there 5 Exhibit 2. -- 4 of 21 -- 5 was agreement that the “defects” identified by the plaintiff would be rectified without charge. Eighthly, whether s 267(2) of the Australian Consumer Law required the defendant to remedy the defects at no cost. Ninthly, whether the defendant is liable to the plaintiff on some basis in respect of the tyres and, if so, for how much. Tenthly, whether the plaintiff was charged for wheel balancing on four tyres which was not performed. Eleventhly, whether the defendant is entitled to claim a lien. Twelfthly, whether the defendant is entitled to recover towing and storage fees during the period it has asserted the lien. [19] There was no issue as to the value of the work done in the two invoices totalling $9,097 and nor was there any suggestion that the work had not been done or that the plaintiff had been charged for it on some other earlier occasion. There was no case advanced that suggested that that amount ought to be discounted for any repair that was carried out beyond colour sanding, buffing and polishing, such as for example the repair of the seam in which the seam sealer appears to have shrunk or had a small hole in it. These issues were specifically raised, and the plaintiff’s counsel made clear there was to be no submission as to this.6 In any case, there is no evidence that the plaintiff was charged for any repair to the seam. The evidence James Davies [20] The plaintiff gave evidence by reference to an invoice dated 13 May 20197 that the sandblasting undertaken on the vehicle charged on that invoice was as per the quote. That is not accurate. The sandblasting on the original quote was $750 plus GST. On the invoice dated 13 May 2019 the sandblasting is twice as much. As is set out below in the summary of Mr Busby’s evidence, the reason for that was that it became apparent after a small amount of blasting was done on the car that the whole car would have to be sandblasted. Mr Bushby said that changed the whole exercise which was being undertaken on the car from some spot repairs to repairing the whole body and more extensively. [21] Mr Davies gave evidence by reference to an invoice dated 29 May 20198 that at that stage all the metal work had been completed such that, at least as he considered it, the vehicle was ready for painting. He described, without objection, that in his view the painting process should be a fairly static piece of work in the sense that there were no variables in it. That was completely contrary to Mr Bushy’s evidence as to how the standard of preparation for painting through stages of primer and filling depends upon the type of job being done, the extent to which the car has been sandblasted, the finished product desired and how the process proceeds. [22] Mr Davies gave evidence by reference to exhibit 18 which he described as a “quote to finish” which he said arose out his dissatisfaction by October 2019 with the costs. From his point of view this document was designed to try and lockdown the remaining spend and remaining timeline.9 6 T2-9/17-23, T2-9/33-39, T2-10/20 - T 2-11/7 and T2-13/1-14. 7 Exhibit 6. 8 Exhibit 9. 9 T1-23/35-46. -- 5 of 21 -- 6 [23] Mr Davies also gave evidence about the defects he observed in the car on 8 January 2020. 10 The existence of those matters is admitted as I have indicated. However, the difference between the parties is whether they were matters which colour sanding, buffing and polishing would correct or whether they were more significant. The second issue is whether the plaintiff was obliged to pay for them. The third issue which arises is in relation to what Mr Davies describes11 as a whole series of random depressions. He says these were the same depressions that he tried to fix when he was doing some work on the body before agreeing to have the defendant take over. As I have mentioned, the defendant’s position is that these are the spot welds securing the roof skin to the car. [24] The defendant’s case is that that is not so, and it was explained on behalf of the defendant that this was the reason for the notation on the original quote12 to the effect that the car would likely need two days for colour sanding and buffing which was not included in the price. [25] Mr Davies gave evidence that an oral agreement was reached with Mr Bushby on 10 January 2020 to the effect that the defects, as he had described them, would be rectified at the defendant’s cost. He described a long handshake and a long stare between the two of them to seal what he considered was a gentlemanly agreement. 13 [26] When cross-examined about whether there had been a conversation on about 15 April 2019 to the effect that the sandblasting which had been done indicated there was significant rust in the vehicle, Mr Davies refused to accept that must obviously be the case given it was accepted by Mr Davies that further rust work was required. It was suggested to him that it had been indicated in that conversation that the whole vehicle needed to be sandblasted, not just the areas that Mr Davies had pointed out. He did not accept that there was a discussion as to extra sandblasting being required. That was a particularly odd response given that the sandblasting charge was double what it was in the original quote and that was explained by Mr Bushby on the basis that the whole car was sandblasted not just the smaller areas.14 There was no suggestion that this extra amount was not payable. [27] On the topic of spot welds, Mr Davies gave evidence that in his view there were no visible spot welds on the roof of a Volkswagen Beetle although there were what he described as “spot welds within the seam that joins the body to the roof”. However, he said that seam is covered by “a piece of folded metal.”15 He went on to say that what Mr Bushby was referring to as spot welds were rust pitting. As I explain below, that is not a matter as to which I would be satisfied that the proprietor of a business such as the defendant would be mistaken. [28] Mr Davies denied having been provided with the terms of trade.16 10 T1-31. 11 T1-31/31-37. 12 Exhibit 4. 13 T1-36/29-36. 14 T1-42. 15 T1-43/10-15. 16 T1-44/20-28. -- 6 of 21 -- 7 [29] Relevant to the need to colour sand, buff and polish the car, Mr Davies accepted17 that Mr Bushby had told him the car would have to be brought back for colour sanding and buffing, and later clarified that was inferred from the original quote. In any case, there seems to be little doubt that he was aware that that was to occur. Given that was the necessary means by which the identified defects in the paintwork were completed, it is difficult to see how there could be an objection in principle to paying an amount for that. [30] Curiously as to this Mr Davies gave evidence by reference to Mr Duncombe’s report to the effect that he understood that steps 17, 18 and 19 outlined in that report had been completed. In other words, he proceeded on the basis that the colour sanding, buffing and polishing had been done before the car was returned to him. There appears to be no basis for this at all. Also, he was clearly not charged earlier for this work. I found his evidence as to this quite troubling.18 [31] Similarly, Mr Davies was cross-examined about the photographs in Mr Akbarian’s report and insisted that there was no orange peel on the vehicle19 when that is clear from some of the photographs and the evidence of Mr Bushby, Mr Akbarian and Mr Duncombe. This occurred in the context of the suggestion that orange peel could be removed by colour sanding and buffing. I perceived Mr Davies to be reluctant to agree that that was the case because it would mean that at least one of the defects was able to be corrected by a process that had been contemplated from as early as the time the estimate20 was given and which had not yet been carried out. [32] Mr Davies refused to accept that the defendant had repaired, primed, blocked, painted, sanded and sealed the roof gutter area. 21 Just why that was so is not apparent. [33] Although Mr Davies accepted that the colour sanding, buffing and polishing22 did not appear in any previous invoice,23 he nonetheless would not accept that the car was to be anything other than complete, including that step at the time, it was returned to him. Thus, as he would have it, any small imperfections in the paint must by definition be defects, even though they would be corrected in this way. I consider that his evidence in this respect was particularly self-serving and inaccurate. [34] During cross-examination I observed a profound reluctance in Mr Davies to agree to even the most obvious propositions. Morteza Akbarian [35] Mr Akbarian provided an expert’s report on behalf of the plaintiff which was dated 22 February 2021. He has experience giving expert evidence in respect of paint defects, as both a panel beater and spray painter and otherwise has engineering experience. He gave evidence that the amount of body work required for a concours restoration would be significantly more than the 40 hours of body work, metal work and fabrication referred to in the original quote. This amount had led him to conclude 17 At T1-45/10-14. 18 T1-48/15-42. 19 T1-50/9-16. 20 Exhibit 4. 21 T1-51/20-22. 22 Referred to in the invoice dated 27 February 2020 (exhibit 37). 23 T1-54/7-14. -- 7 of 21 -- 8 that this was restoration work rather than a concours restoration and that the charges were excessive.24 [36] In section 4.3.1 of this report, he states that “my understanding is that the top surface of the roof gutter is just a folded panel and does not have any spot welds.” He did not state the source of that understanding and had never seen the car he was referring to. It became clear that someone had simply told him this and he had no knowledge of it at all. Also, in section 4.3.5 of his report, he says that in a photograph he looked at there is indication of spot welds in the roof, although he identifies that the photographs provided of the car are not particularly clear. He speculates that the defendant must have introduced those spot welds on the basis of his belief (because somebody else told him) that there are no spot welds in the roof skin. Given the source of this information (and that it was unable to be tested), I prefer the evidence of Mr Bushby, an experienced restorer of Volkswagen vehicles. [37] Of perhaps most concern as to the use that might be made of the report, Mr Akbarian said that without the benefit of an inspection of the vehicle, he was not able to comment on the extent of defects indicated on the photos due to surrounding light in the photos and their resolution. I would not be prepared to find that in those circumstances the defects or imperfections are not ones which may be rectified by the colour sand, buff and polish which was always anticipated to be part of the restoration of this vehicle as is clear from the original quote. [38] Mr Akbarian gave evidence that once one had regard to the possibility of a concours restoration, his comment in 4.7.1 was incorrect. He thought that a sum of $47,000.00 was not excessive for concours restoration of this vehicle assuming it had rust in about 30 per cent of the body.25 He also gave evidence about the contents of Mr Duncombe’s report which he clearly generally agreed with in terms of the process for work on a car of this kind. [39] He conceded that he had never been personally involved in restoring a vehicle and had never been involved in the costing of the restoration of a vehicle. [40] When shown the “quote to finish”26 having already seen the original quote,27 he agreed with the proposition that assuming all of that was correct, then that would not be a restoration of a vehicle, it would be equivalent to a concours standard.28 He accepted that typically it would take much longer to carry out concours work.29 He identified that he had not appreciated that the original quote did not include any quote for colour sanding and buffing, even though it says just that.30 He agreed that restoring a car to a concours standard does not involve removing, covering, sealing or concealing spot welds.31 He confirmed that when reviewing the photographs he had made the assumption that the restoration work had been completed.32 Of course, 24 Section 4.1.2 of his report. 25 Which was the effect of the evidence otherwise. 26 Exhibit 18. 27 Exhibit 4. 28 T1-72 / 5 – 9. 29 T1-72/29. 30 T1-72/41-45 and T1-73/14-28. 31 T1-74/1-2 and 31-33. 32 T1-75/1-2. -- 8 of 21 -- 9 that was not correct in this case because it had not yet been colour sanded, buffed and polished. [41] Mr Akbarian generally agreed with the contents of Mr Duncombe’s report.33 Mr Akbarian considered that three to five days to colour sand, buff and polish might make sense.34 Mr Akbarian appeared to accept that other than the spot welds, the other defects would be rectified by a colour sand, buff and polish or could be, perhaps with the exception of the seam sealer.35 [42] Mr Akbarian identified the true limitation to his report in relation to the spot welds when he was seeking to give evidence that other spot welds could not be seen further along the roof in either direction when he said, “don’t forget I’m going by this photo which is not exactly high-resolution”.36 Ultimately, this is the limitation of the exercise purportedly undertaken by him. Robert Bushby [43] Mr Bushby is the director of the defendant and has been involved the vehicle restoration business specialising in Volkswagens for about 16 or 17 years. He said that the original quote was for a refresh on the paint work37 and a repair of identified rust in the car.38 He gave evidence that after having looked at the car when it was in the workshop, significant rust was found inside the A pillars and hidden channels therein. It was decided to send the car out to have it all sandblasted rather than simply blasting parts on a piecemeal basis in his own shop.39 Of course, one can see the difference in the sandblasting prices between the original quote and the invoice dated 13 May 201940 - the sandblasting price doubled. That appears to be consistent with Mr Bushby’s evidence in this respect. [44] Once the vehicle was fully sandblasted it was appreciated that it was in pretty bad shape41; that 25 to 30 per cent of the lower sections of the car were rusty.42 He gave evidence that Mr Davies said in that respect that while they were doing it, they should make it perfect inside and out, leave nothing untouched – like the factory.43 [45] He said in relation to the original quote that as soon as the car was sandblasted the quote gets thrown out the window because while 40-hours of body work might be satisfactory when you are only doing half the work, once the whole car was sand- blasted and the whole body needed to be without ripples and so on, the work was very significantly more.44 33 As is apparent from T1-76/25 through to T1-78/24. 34 T1-79/2-3. 35 T1-83. 36 T1-84/1-3. 37 Described as a closed door respray, which it became clear is not a term that can be taken completely literally. 38 T1-88/21-24 and 41-44. 39 T1-89/20-25. 40 Exhibits 4 and 6. 41 T1-90/11-13. 42 T1-90/17-18. 43 T1-90/31-36. 44 T1-91/15-24. -- 9 of 21 -- 10 [46] Mr Bushby gave evidence about the spot welds in the roof45 and that, as seems to be uncontroversial, if they are factory spot welds one would not fill them when restoring a car to concours standard.46 [47] As to the meeting on the morning of 10 January 2020, he says that Mr Davies was not happy with the body work; he wanted it all colour sanded and buffed to which Mr Bushby said, “that was all part of the deal, you were supposed to put it back together and then it was to be done after that.” Mr Davies also said that he wanted the holes in the roof fixed. Mr Bushby rejected the proposition that it was agreed that he was to meet the costs of these things. He said there was no discussion about the cost. He simply said he would get on with it and get it done.47 As to the suggested doubling- up in invoices, he dealt with the relevant procedure when preparing a car to concours standard.48 He said in this respect that the time spent filling, priming and blocking panels was much greater when seeking to achieve a concours standard. [48] It was quite clear in my view that despite it originally being agreed that the car would only be returned for colour sanding, buffing and polishing once assembled, Mr Davies was demanding that49 be carried out immediately, together with filling of what he regarded as being pitting in the gutters. [49] Mr Bushby explained that Mr Davies asserted that he was not paying for the invoices for the work done on the car after it was returned to the defendant because he considered that it was all part of the paint job. He explained to Mr Davies that it was not and that it was always agreed that there was a going to be a later date when the car would be brought back for colour sanding, buffing and polishing.50 [50] Mr Bushby gave evidence that he had paid about $200 to have the car towed to storage and that he charged $25 a week for storage although it actually cost $150 a month.51 He also gave evidence that the original tyres on the car only had about 20 or 30 percent wear and they were scrubbed out on the outside edges he thought because the car needed a wheel alignment.52 It is clear from Mr Bushby’s evidence that the defendant sought to replace the tyres with the size that had been on the car but Mr Davies was unable to tell them, so they replaced the tyres with a standard size Volkswagen Beetle tyre.53 Mr Bushby gave evidence that he had shown Mr Duncombe a bundle of photographs54 he referred to in his evidence. 55 [51] During cross-examination Mr Bushby said as to the sanding and buffing referred to in the original quote56 that for what was originally proposed you would allow a day. He said that there would be no point doing a 50-hour colour sand on a $10,000 respray because there would be underlying ripples in the bodywork anyway. He pointed out 45 T1-94. 46 T1-95/6-9. 47 T1-101/31 - T1-102/30. 48 T1-103/15-35. 49 Or whatever would fix the paint issues. 50 T1-108/5-10. This is consistent with the original quotation which is exhibit 4. 51 T1-108/32 – T1-109/4. 52 T1-109/12-22. 53 T1-111/1-5. 54 Exhibit 42. 55 T1-112/27-30. 56 Exhibit 4. -- 10 of 21 -- 11 that it would not have been block sanded, primed and re-blocked over and over to remove all the ripples as had been the case with the job done on this car. His evidence was, in effect, that the two-day allowance in the original estimate was too much for the work which was then anticipated but far too little for what was ultimately done.57 [52] Mr Bushby gave evidence as to the difference in bodywork between a car which had been fully sandblasted and one which was to have only the lower part of the car repaired to the effect that once it was sandblasted issues identified with the panels would have to be repaired including ripples.58 [53] Mr Bushby explained that in the ordinary course he would disassemble and reassemble the car. In this case because Mr Davies wished to do that himself, the car would not be completely finished when it went back to Mr Davies because it still had to be assembled and the final colour sanding, buffing and polishing only took place thereafter.59 It was clear that his evidence was that the trim on the car could be taped to allow this process to be undertaken when it was fully assembled, whether or not that would have been the process had the defendant also been assembling the car. [54] There appeared to be some confusion from the plaintiff’s point of view during cross- examination of Mr Bushby. Mr Bushby made clear that while he had anticipated that what he regarded as minor issues with the paint would be fixed as part of a colour sand, buff and polish which was always required in any case, this was to be done subsequent to the complete reassembly of the car by Mr Davies (so that any scratches or other damage occurring during the process of reassembly could also be fixed). However, Mr Davies insisted on the repair being done and thus the colour sanding, buffing, and polishing was done despite the fact that the car had not been reassembled.60 It was not the case that the car had been returned in some incomplete or defective form, it was simply that he undertook the work which his customer insisted be done, even though it was not the same timing as originally agreed. [55] As to the suggestion in cross-examination that the work was finished at the time of the invoice dated 17 December 2019,61 he made clear that all that meant was that the works necessary for the car to go back to Mr Davies to be reassembled prior to final colour sanding, buffing and polishing were complete. When he was asked the question “why would you render a final invoice when there was further work”, he said that that was because work was complete to that stage and Mr Davies might not come back, he might get someone else to do the colour sand and buff.62 [56] It was put to Mr Bushby that having heard all of Mr Davies’ evidence he had tailored his evidence so that it was as favourable to him as it could be. He rejected that proposition. He was then questioned as to whether or not he was on good terms with Mr Spencer. He said he had not seen him for many months. When it was suggested that Mr Spencer was not any employee and was not present in March 2020 when the car was collected, he said that he was there. He added that Mr Davies had been throwing papers on the ground and saying to Mr Bushby, “I’m going to ruin you 57 T1-113/11-24. 58 T1-114/14-23. 59 T1-114/46 – T115/7. 60 T1-115/25-29. 61 That invoice contained a note which stated: “as this is a finalisation of invoicing and end of agreed workings, any outstanding payments must be finalised and settled before return of vehicle”. 62 T1-116/20-35. -- 11 of 21 -- 12 mate”. He also said that when Mr Davies drove away his car swerved at one of Mr Bushby’s employees.63 [57] In respect of the terms of trade Mr Bushby said that he saw Mr Spencer handing a piece of paper to the plaintiff. He accepted he couldn’t be certain this was the terms of trade. 64 Mr Spencer otherwise gave evidence that on one of the plaintiff’s frequent visits to the defendant’s premises in July 2019 he provided those terms of trade to the plaintiff. On the topic of whether there was some invariable custom or usage in terms of whether a car is colour sanded, buffed and polished when assembled or not assembled, Mr Bushby was cross-examined on his description of the plaintiff having demanded the vehicle be returned to him. He said as to this: “Yeah, because he chucked a psycho and he fuckin wanted to – sorry, Judge, but he wanted it back before Christmas.”65 Mr Bushby rejected the proposition that Mr Davies had not demanded the car back.66 [58] Mr Bushby was cross-examined as to whether the tyres had been stolen as he had said. He gave evidence that they were put next to a shipping container in an area with a gated fence with barbed wire on top and sheeted steel around so that nobody could actually see what was in there and that there was a security camera.67 He gave evidence about the matter having been reported to police, that he had not retained the footage from the security camera, that batteries had also been stolen and that he had observed battery acid from where the batteries were thrown.68 [59] It was put to Mr Bushby that the tyres were mixed up with other tyres that were also in the workshop and put on another person’s car. He squarely rejected that proposition.69 [60] I found Mr Bushby to be a forthright witness. He was clearly frustrated at times during cross-examination, but I do not regard that as reflecting poorly on him. He was, in my view, a credible and reliable witness. In any respect in which there is a difference between the evidence of Mr Bushby and the plaintiff, I prefer Mr Bushby’s evidence. Ryan Spencer [61] Mr Spencer gave evidence that the original proposal in relation to the plaintiff’s car was a quick facelift basically with paint on the exterior of the vehicle and that the original quote70 reflects that.71 He gave evidence that it soon became apparent that the car needed far more than a bit of paint to “make it look pretty”.72 Mr Spencer gave evidence that Mr Davies made quite a few visits to the defendant’s premises and 63 T2-15/14-19 and 35-42. 64 T2-18/1-25. 65 T2-18/35-44. 66 T2-19/1-15. 67 T2-20/37-40. 68 T2-21/17-35. 69 T2-26/30-45. 70 Exhibit 4. 71 T2-33/28-33. 72 T2-33/40-45. -- 12 of 21 -- 13 he was physically shown what was happening to the car and it was explained to him.73 He gave evidence that there was discussion with Mr Davies that he would assemble everything to a point where the defendant was confident enough it would not be scratched and they would then do their detailing and colour sanding.74 Mr Spencer said there were discussions with Mr Davies that after it had been assembled by him he would bring it back to the defendant for final colour sanding and detailing; detailing meaning buffing and polishing.75 Mr Spencer gave evidence that he recalled giving Mr Davies a copy of the terms of trade both physically and electronically.76 [62] He said that on the next follow-up as to the progress of the car after he had provided the terms of trade to Mr Davies, he asked Mr Davies about the terms of trade and Mr Davies replied that he didn’t have an issue. From Mr Spencer’s view he considered that it was “all good” and “all sweet”.77 [63] He gave evidence that the “quote to finish”78 only related to the period up to paint being finished and Mr Davies taking the car, and not to completion of colour sanding and detailing.79 [64] Mr Spencer gave evidence as to the changing standard of the work required on the car following it being stripped and that it moved to a full restoration which was referred to in visits, text messages and so on. He specifically recalled “concours standard” being referred to.80 Mr Spencer gave evidence that he had observed this vehicle on numerous occasions, and it had spot welds in the roof gutter.81 [65] Mr Spencer gave evidence that he would be happy to store his own car in the backyard of the defendant’s premises82 and explained that it had a six-foot chain wire fence with barbed wire all the way around and a camera with night vision.83 [66] Mr Spencer gave evidence about the day Mr Davies came to see his finished car and explained that he threw the invoices on the ground and when another employee tried to give him back those invoices he had gone speeding off down the road in his car and that that employee was shaken up believing that he had nearly been run over. Mr Spencer explained that there was a lot of hostility and that Mr Davies had said: “You’ll never own a shop again Bob. I’m going to take you down. You guys are effed” and that he was very aggressive.84 [67] It was suggested to Mr Spencer in cross-examination that Mr Davies had never been told that after the painting was complete there would be need for sanding and buffing of that paint. Mr Spencer said that he felt that that was fully explained in depth. It 73 T2-34/16-25. 74 T2-35/40-44. 75 T2-36/17-27. 76 T2-37/7-19. 77 T2-38/32-T39/10. 78 Exhibit 18. 79 T2-40/20-29. 80 T2-43/1-T2-44/5. 81 T2-44/10-29. 82 Relevant to whether the defendant used reasonable care. 83 T2-45/5-10. 84 T2-46/10-36. -- 13 of 21 -- 14 also should be observed immediately that the plaintiff’s evidence was clear as to knowing this as can be seen from the transcript at page 45.85 [68] Mr Spencer said in cross-examination that although he could not recall specific dates of discussions there were phone calls updating Mr Davies on the progress of the build (the restoration); that he made it as clear as he could what the process was, and that Mr Davies seemed to understand and that he wanted to upscale the build, changing it from a basic paint job making the car “look pretty” to a restoration.86 [69] Mr Spencer was cross-examined as to the accuracy with which a document such as the “quote to finish” could identify the remaining work required. I thought that this process proceeded on a wholly false assumption as to the precision that might be applied to an estimate of the time and cost to finish such a project. It treated the task of panel beating and preparing for painting panels on a car that is more than 50 years old as one where what is required is able to be predicted with real certainty. There was no evidence was a reasonable thing to do.87 I thought it was a completely artificial exercise. Mr Bushby had given evidence about the number of times that one might prime and block a single panel to ensure that, as part of that paint preparation, it was ripple free by the time it was painted. While it might be reasonable to predict how long it might take to paint a new factory panel fitted to a car, that is clearly a very different process from what was required here. [70] Mr Spencer impressed me as an honest and reliable witness. I thought that at all times he was doing his best to assist. While he was not precise as to dates, it would be surprising if he were. He had no doubt that Mr Davies was kept informed. [71] In any respect in which there is a difference between the evidence of Mr Spencer and the plaintiff, I prefer Mr Spencer’s evidence. David Duncombe [72] Mr Duncombe has experience in smash repair and car restoration. He provided a report relied upon by the defendant dated 30 October 2020. That report was written by the solicitor for the defendant, David Bensen because he was of the belief, at least originally, that Mr Duncombe was unable to read and write. He subsequently became aware that Mr Duncombe could read and write to some degree. [73] As a result, Mr Bensen swore an affidavit as to the circumstances in which the report was prepared and upon which he was cross-examined by counsel for the plaintiff. It was reasonably clear from that exchange that the extent to which he could read and write is unclear and it is clear that Mr Bensen did not make all that many enquiries about the extent of his ability in this respect. It was also very unclear what documents had been read to Mr Duncombe or otherwise shown to him to allow him to offer the opinion he did, such as it is. I say that because the report is in the most general of terms as to usual practice in the restoration industry as opposed to being a report that specifically deals with the condition of this vehicle at any time. However, he dealt with the same poor quality photos Mr Akbarian had when given evidence orally. 85 T2-49/4-9. 86 T2-49/15-19. 87 T2-50 and 51. -- 14 of 21 -- 15 [74] The significance of any of the issues as to admissibility or weight in relation to Mr Duncombe’s report was overshadowed to a very large extent because Mr Akbarian largely agreed with the matters raised by Mr Duncombe on pages three and four of his report. The only exception was that Mr Akbarian did not accept that even for a concours restoration a charge of $16,000 for colour sanding, buffing and polishing would be appropriate. Having said that, Mr Akbarian clearly had less practical experience of restoration or costing such work than Mr Duncombe. [75] He gave evidence that he had numerous years’ experience in motor vehicle restoration. During cross-examination, it was sought to establish that at the time the car was given back to the plaintiff it must have been colour sanded and buffed because there was some invariable practice about that and therefore any issue with it meant that there was a defect in the workmanship rather than an aspect of the work which had not yet been completed. Mr Duncombe sensibly enough said his evidence was about general practice and he was not aware of what had been said between the people in relation to this car and that it is up to individual people to decide how it will be done.88 He agreed that, obviously enough, discussions between the customer and the shop could alter what might ordinarily be done and a restorer would simply do what the customer wanted.89 As to spot welds, Mr Duncombe said that the image depicted in photo one of Mr Akbarian’ s report could be the sharp point of a spot weld that has gone in there from the factory creating shadows. He also noted the limitations of the evidence he was able to give without having seen the car at the relevant time.90 The parties’ submissions The defendant [76] The defendant submitted that: (a) the initial quote was prepared on the basis that there was to be a refresh of the paint rather than a restoration; (b) after work started, it became apparent that significantly more work was required and sand blasting was in part done off-site rather than on-site as had originally been anticipated; (c) it was ultimately conceded by the plaintiff that he was to be charged $88.00 per hour inclusive of GST for that; (d) the Court would find that the defendant’s terms of trade were incorporated from the time the plaintiff acknowledged receiving them and that he did not object to them in July 2019; (e) the Court would find that the plaintiff was not entitled to recover the monies in excess of the “quote to finish” of October 2019. Specific reference was made to the terms of trade in this respect; (f) there was no agreement by the defendant to fill the spot welds in the roof and the restoration of a car to concours standard does not involve filling factory spot welds; 88 T2-73/42-46. 89 T2-74/1-5. 90 T2-74/20-46. -- 15 of 21 -- 16 (g) although the plaintiff claimed it was a breach of contract to return the car to the plaintiff without having performed the colour sanding, buffing and polishing (because there were allegedly defects in the paint), he admitted in cross- examination that on one occasion at the beginning of the process he was told by Mr Bushby that once he had assembled the car it would brought back for colour sanding and buffing;91 (h) the plaintiff’s suggestion that he understood the colour sanding and buffing process had been completed was submitted to be nonsense and self-serving in an attempt to persuade the Court that the job was done short of the defects. I accept that submission. I found this part of the plaintiff’s evidence particularly unsatisfactory; (i) as to the five alleged defects recorded in the report of Mr Akbarian, the first is a spot weld and not a defect, the second is orange-peel which is routinely removed as part of the colour sanding and buffing process, the third needed a bit of sealer, a bit of basecoat, a bit of clear and then continuation of the colour sanding and buffing;92 the fourth depicted a bit of fibre or hair which the plaintiff’s expert and the defendant said could be remedied by colour sanding and buffing and even the plaintiff conceded that. Lastly as to the fifth photograph that was a spot weld which was not a defect; (j) the Court would not find that there was an agreement that the defendant would bear the cost of the colour sanding and buffing and obscuring the factory spot welds; (k) the plaintiff’s action in throwing the invoices dated 27 February 2020 to the ground,93 reflected poorly on his credit; (l) no inference ought be drawn from the defendant’s failure to respond immediately to the plaintiff’s email which appears at page 278 of the court book or the text of 9 January 2020; (m) in relation to the tyres, there is no evidence as to their value at the time they went missing and nor is there evidence as to what size they were so that there might be some basis upon which to objectively determine their value. [77] The defendant concedes the plaintiff’s submission as to the lack of entitlement to claim for storage and towing. The plaintiff [78] For the plaintiff, it was submitted that: (a) the plaintiff should be accepted as a credible and reliable witness. For the reasons I have expressed elsewhere, to any extent to which the plaintiff’s evidence differs from Mr Bushby and Mr Spencer, I prefer the evidence of those witnesses; 91 The evidence as to this is collected in paragraphs [21] to [23] of the defendant’s submissions. 92 As I have identified, no separate claim is made in relation to this in any case and there is no evidence that the plaintiff was charged for that bit of work. 93 This evidence was given by Mr Spencer. -- 16 of 21 -- 17 (b) the invoices reveal that by the end of May 2019 the “body work” aspect of the restoration was largely complete. I do not accept the submissions based on a minute dissection of the invoices in this way. I accept the evidence given on behalf of the defendant as to the impossibility of predicting with precision how long the process of preparing the body of a car subject to a concours restoration for paint will take. I have not overlooked in this respect that by the time exhibit 18 was created, the paint had been removed from the car and significant repairs had been undertaken. I do not accept that the work for which $5,403 was paid may be described as not properly undertaken by the defendant; (c) as to the terms of trade, the plaintiff’s conduct did not objectively indicate acceptance of the terms. Counsel for the plaintiff rightly conceded though that if the Court accepted the evidence that Mr Davies was provided with the terms of trade and that he responded that he was agreeable to them, as testified by Mr Spencer, that would indicate acceptance of the terms; (d) the “quote to finish”94 effectively could not be exceeded. I do not accept that in the context of an industry such as this one, a document headed “projected work times and finish date” consists of a promise that the defendant’s future invoices will not exceed the amount in the quote; (e) prior to a properly made concession, there was a deemed admission as to the $5,403.00 said to be relating to work not properly undertaken; (f) the work was complete when the vehicle was returned to the plaintiff. I do not accept that at any time it was represented that the work on the car was complete at the time it was returned to the plaintiff on 8 January 2020. To the contrary, all the evidence points to the fact that it was intended by all that the car would be returned to the defendant after the plaintiff reassembled it. This is not altered by the fact that the plaintiff, having received the car in January, demanded that the spot welds be filled and that the colour sanding, buffing and polishing be undertaken prior to his reassembly of it. The fact that he unilaterally changed the arrangement in that way cannot assist with determining what agreement there was before that point. Also, as is common sense, and as was clear from the evidence of Mr Duncombe, there cannot be some invariable industry practice. There may well be a general industry practice which Mr Duncombe and others gave evidence about, but that does not mean that the customer may not require something else to occur; (g) the Court would reject the defendant’s evidence that Mr Davies demanded the vehicle back in December. I accept Mr Bushby’s evidence in that respect and I have had regard to Mr Spencer’s evidence as to the hostility experienced by him in relation to Mr Davies; (h) the defendant’s submission that the plaintiff demanded the car back is difficult to reconcile with the defendant’s pleaded case - that the issues were not defects but were imperfections or incomplete work which would be fixed later. Contrary to the submission that Mr Davies’ evidence as to these matters should be accepted, I reject it for the reasons expressed elsewhere. Chief among those is that he insisted that that work be done at that time in January 2020, despite 94 Exhibit 18. -- 17 of 21 -- 18 the fact that he not reassembled the car. That was both unreasonable and not in accordance with the previous arrangement; (i) the defendant’s pleaded case does not identify that the spot welds were not defects or imperfections. While I understand the point of the submission as to the pleading, the existence of the spot welds and the surprising position that the plaintiff wished to have factory spot welds filled, has been contemporaneously referred to by the defendant since Mr Bushby’s text messages in early January 2020. It is dealt with in both the expert’s reports. The plaintiff’s own expert concedes that spot welds appear in the gutter of the roof of Mr Davies’ car, but speculates without any knowledge that the defendant must have performed that spot weld, for some unstated reason. That expert accepted, consistent with all the other evidence in the case, apart from Mr Davies, that original spot welds would not be filled as part of a concours restoration. Against all of that, one has the assertion of Mr Davies that there were no spot welds there and the issues he was complaining about in the gutters were pitting. By the time submissions were made it seemed that the plaintiff now wanted to say the position might be both things – pitting and spot welds. The difficulty with that is that Mr Davies has flatly rejected that there were any spot welds in that area, and he is the only witness to suggest there were none; (j) the Court would find that the painting problems (really being the five matters identified in Mr Akbarian’ s report) should be identified as defects resulting from a lack of due care and skill rather than imperfections. There are multiple difficulties with this. First, there is no credible evidence that any of these matters resulted from a failure to exercise due care and skill, especially having regard to how they may be corrected. Two of the issues I have found in fact constitute the presence of factory spot welds in the roof of the vehicle and are neither defects nor imperfections. I am not satisfied that the reference to a hair or some other foreign material being trapped in the paint, the orange peel or the sinkage of the seam sealer resulted from a failure to exercise due care and skill. It was common ground in relation to the first two of those that they would be able to be corrected by a colour sand, buff and polish. I accept that the depressions in the gutters are spot welds and that Mr Davies, whether through misunderstanding or otherwise, has asked for those to be filled; (k) little weight would be given to Mr Duncombe’s report, given the circumstances in which it was prepared. However, the thrust of Mr Duncombe’s evidence is that set out in paragraphs [1] to [19], which other than the amount of $16,000.00 for the colour sanding, buffing and polishing, is largely agreed with by the plaintiff’s expert. Secondly, whilst there might otherwise be limitations given the manner in which the report was prepared, which would mean that I would give it little weight, that is of no great significance because Mr Duncombe gave the evidence orally anyway as to his views as to the defects identified by Mr Akbarian; (l) the Court should find that Mr Bushby orally agreed to fix the various alleged defects without charge. For the reasons I have already expressed, I do not accept that submission; (m) the Australian Consumer Law claim only arises if the painting issues were defects or that there was an absence of due care and skill; -- 18 of 21 -- 19 (n) there should be an exchange of parts. I accept the submissions made as to the car parts which appear to be uncontroversial; (o) as to the tyres, the Court would reject Mr Bushby’s evidence about them being stolen. For the reasons I have already expressed, I accept that they were stolen and that occurred without negligence on the part of the defendant. In any case, given the tyres had at least some use, and the sizes cannot be identified, it is simply impossible for the Court to put any value on them by way of assessment of damages; (p) a lien does arise should the Court find that the terms of trade are incorporated and, in any case, would arise at common law, assuming it is found that an amount is outstanding from the plaintiff to the defendant. I am satisfied that the amount of $9,097.00 is outstanding; (q) storage fees and towing were not recoverable such that the Court should dismiss the defendant’s counter claim in that respect, even if the defendant was otherwise successful. The defendant accepted this submission and accordingly that part of the counter claim is dismissed. Consideration [79] I am satisfied that it was agreed in May 2019 that further works would be carried out at the rate of $88 per hour inclusive of GST. Although this was stated as an issue, it was not seriously contentious. Contrary to the pleaded case that there was some unstated allowance for additional work, Mr Davies agreed that it would be work at $88 per hour inclusive of GST. All that was unstated was a total amount. [80] For the reasons set out in paragraphs [69] and [78](b) above, I do not accept the submission that the work referred to in the invoices identified in subparagraph 27(c) of the statement of claim is work not properly undertaken by the defendant such that the plaintiff is able to recover it as being paid under some mistake of fact or law. I do not accept that the defendant is liable to pay the plaintiff the sum of $5,403 for the reasons set out above in relation to the particular invoices. [81] I am satisfied that the plaintiff was provided with the defendant’s terms of trade by Ryan Spencer in late July 2019. I am also satisfied that the plaintiff is bound by them. [82] I am satisfied that upon return of the vehicle to the plaintiff in January 2020 the work was complete other than the colour sanding, buffing and polishing. It was anticipated that the plaintiff would assemble it. Clearly the defendant expected that it would then be returned, but whether or not it was, is of no moment. It was plain from the original estimate that colour sanding, buffing and polishing was anticipated, and it was equally clear that the plaintiff was never charged for it. Whether the plaintiff sent the car back to the defendant was a matter for him, but he could not expect that the colour sanding, buffing and polishing95 would be done for nothing. [83] Related to this issue, I do not accept that the imperfections demonstrated an absence of due care or skill. I also accept that where a vehicle owner is assembling the car personally rather than having the restorer do it, it is sensible that such painting 95 Which was required to remove the imperfections. -- 19 of 21 -- 20 imperfections be remedied once the final assembly has been undertaken so that any damage done to the vehicle can be fixed at the same time. [84] I am not satisfied that there was an agreement that the defendant would rectify the imperfections without cost to the plaintiff. In my view it is inherently improbable that someone in the defendant’s position who had clearly indicated from the beginning that a colour sand, buff and polish would be required and who had never charged for undertaking that work (because it had not been done before) would suddenly agree to do that work which they might reasonably have anticipated to take up to five days without charge. Equally, that they would agree to fill in factory spot welds for an owner who wanted that done and indicated that only after the car was painted, again without charge, defies any common sense. This position is not changed because of the text96 and email97 from the plaintiff. I accept Mr Bushby’s evidence as to those. I have no doubt that the plaintiff wished to have this work completed without cost, but I do not accept that an agreement was reached as to this. [85] There were arguments advanced by the plaintiff regarding whether the colour sanding, buffing and polishing of the car would have rectified the ‘defects’ or whether more than that would have had to be done. However, there was no evidence led in relation to more having been done to the car, no evidence regarding how any of the ‘defects’ were otherwise fixed and no evidence that the plaintiff was charged for any work rectifying such ‘defects beyond colour sanding, buffing and polishing. I find in the circumstances that the defects, as identified by the plaintiff, were capable of being fixed by a colour sand, buff and polish. [86] I am satisfied on the basis of the matters set out in the previous four paragraphs that the sum of $9,097 is payable to the defendant. [87] Because I am not satisfied that the painting issues were defects or that there was an absence of due care and skill, the claim based on the Australian Consumer Law must also be dismissed. [88] As to the tyres, the issue for determination is whether the defendant’s loss of the original tyres occurred without any negligence. There is no question that the tyres had to be removed from the rims in order for the wheels to be painted. Mr Bushby explained that he thought that the tyres were stolen because some other things were stolen from his premises at about the same time. There is no basis for any serious suggestion that the defendant had been negligent in this respect. [89] Even if I were otherwise satisfied that there had been some negligence, the supposedly superior tyres fitted to the car by the plaintiff were in any case only on the front and I would only find any damages in respect of those two tyres. Even that is difficult because the defendant replaced those tyres after having enquired with the plaintiff as to what size they were, which he could not answer. There is no basis for the Court to be satisfied as to what those tyres were size wise or as to the level of wear they might have had at the time. [90] I do not accept that the wheels on the car have not been balanced. While there was evidence that they had not been balanced at the time the car was redelivered to the 96 Exhibit 33. 97 Exhibit 35. -- 20 of 21 -- 21 plaintiff, there was unchallenged evidence that that was rectified. Ultimately, this aspect of the claim was conceded on behalf of the plaintiff in any case. [91] I am satisfied that the defendant is entitled to exercise a possessory lien over the vehicle. [92] There should be no recovery on the counterclaim for storage or towing costs given the concession I have set out above. [93] The orders should be that: (a) The plaintiff’s claim be dismissed; (b) There be judgment for the defendant on the counterclaim for the payment of $9,097. [94] I will otherwise hear the parties as to the form of any orders consistent with these reasons and as to costs. -- 21 of 21 --