Cassimatis v McConnell [2014] QCAT 554

CITATION: Cassimatis v McConnell [2014] QCAT 554 PARTIES: Gerasimos Cassimatis (Applicant) v Kevin George McConnell (Respondent) APPLICATION NUMBER: MCDO389-14 MATTER TYPE: Other minor civil dispute matters HEARING DATE: 11 July 2014 and 8 August 2014 HEARD AT: Brisbane DECISION OF: Adjudicator Bertelsen DELIVERED ON: 5 November 2014 DELIVERED AT: Brisbane ORDERS MADE: 1. Kevin George McConnell shall pay to Gerasimos Cassimatis the sum of $20,624.20 claim, $1,101.70 interest and filing fee $284.60 a total of $22,010.50. CATCHWORDS: Motor vehicle collision – admission of liability – quantum of loss and damage challenged – older style vehicle – condition of vehicle – justification of repairs – justification of repair invoice – assessment of market value APPEARANCES: APPLICANT: Gerasimos Cassimatis RESPONDENT: Kevin George McConnell REASONS FOR DECISION Application [1] By application filed 24 February 2014 the applicant Gerasimos Cassimatis (Mr Cassimatis) seeks the sum of $20,624.20 as loss and damage suffered by him as a result of a motor vehicle collision that occurred at approximately 2:00 am on 4 July 2010 on the Bruce Highway, Burpengary when a vehicle driven by Kevin McConnell (Mr McConnell) collided with -- 1 of 6 -- 2 the rear of his 1971 Holden LC Torana GTR Coupe registration OYU-247 (the vehicle). Background and Evidence [2] Mr McConnell admitted liability for the collision. He did not agree with the quantum of loss and damage claimed by Mr Cassimatis. The loss and damage claimed was: a) Wilkin Auto Body Service for vehicle repairs $18,767.40 b) Trevor Peters (parts) $1,150.00 c) Motor Mania (parts) $184.20 d) Rare Spares Brisbane (parts) $77.25 e) Pacific Towing (seen of collision to home) $279.95 f) Tillmans Towing & Car Relocators (towing home to Wilkin Auto) $80.00 g) Police Report $85.40 Total $20,624.20 [3] Mr McConnell asserted there was no evidence of the market value of the vehicle; that the value of a 1971 Holden Torana GTR was according to redbook.com $2,984; that according to redbook.com the value of same vehicle fully restored was between $23,000 and $31,000. Mr McConnell asserted that he had shown some five photos of the vehicle in its post collision damaged state to three independent persons; that the damage was such as to suggest the possibility of existing rust at the back end of the vehicle. He said no windows had popped out (neither side nor back windows); that the gap between the driver’s door and the rear quarter panel had not closed up; that the exhaust tailpipe had not been crushed in the collision; that had there been no rust the exhaust would have crumpled up under the vehicle. [4] Mr Cassimatis stated that between September 2004 and January 2005 the vehicle had been stripped back and resprayed; that at the time the front and back seats were taken out, carpets taken out, door trims taken off and windows taken out. The body work was sandblasted inside and out. That included the boot. In the engine bay the area around the battery tray and the battery tray itself were sandblasted. All sandblasted areas were primed with, he recalled, two coats of primer and then the vehicle colour orange (apparently it was originally green) was applied as the finishing coat. [5] Mr Cassimatis said that fisholene rust preventative was sprayed in the guards running along the bottom of the vehicle. The boot area was also fisholene sprayed. The chassis was also fisholene sprayed by gaining access through the boot. -- 2 of 6 -- 3 [6] Mr Cassimatis stated there were seat covers on the front bucket seats; that they, as was the rear seat, were still covered with the original vinyl still in good condition. He stated that the engine bay was in original condition apart from the sandblasting and fisholene treatment of the area around the battery tray and the battery tray itself. He stated that the front and rear chrome bumper bars were taken off when the vehicle was repainted in 2004/2005; that the chrome work was in pristine condition. He said the steel wheels were sandblasted in 2004/2005 and resprayed with glass black paint. [7] Mr Cassimatis said in 2004/2005 new rubber seals were fitted to the doors and windows; that new rubber seals were fitted to the front and back windscreens; that new bailey channels (felt abutting the inside of the windows) were fitted. [8] The maintenance/repair work in 2004/2005 took some four and a half months and at the time cost Mr Cassimatis $17,806.18. The work was carried out by Wilkin Auto Body Service Smash Repairs and Restorations of Coopers Plains. After this work was completed no further maintenance/repair work was carried out on the vehicle, other than general servicing, until after 4 July 2010. [9] Mr McConnell asserted there was no evidence of restoration in 2004/2005. [10] Mr Cassimatis produced a copy of Wilkin Auto Body Service tax invoice dated 4 January 2005 in the sum of $13,260.72 and which acknowledged prior receipt of $4,545.46 as paid. The invoice records extensive work on the vehicle. Apart from paint labour at $6,297.00 it records as parts supplied heater/demister assembly, rear radio speakers, bonnet rubbers, hood lining and sun viser, door locking knobs, courtesy light switches and front park light lenses. The invoice also records as sublet miscellaneous items – rear core heater radiator, recondition wiper motor and rechrome front and rear bumper bar. [11] Mr Cassimatis had owned the vehicle since 1976, five years after its manufacture. He stated that in 1992 he had the motor reconditioned – new pistons, rings and valves. [12] Mr McConnnell questioned whether or not the vehicle was in fact a GTR model. Mr Cassimatis produced a registration certificate and exerpt from the original owners manual he held. In particular page 74 of the manual under the heading ‘Engine Number prefixes – 6 cylinder’ refers to 2580s ... CF. Mr Cassimatis said that accorded with the CF prefix to the engine number recorded on the registration certificate. Mr Cassimatis stated the compliance plate was old and weathered, could not be photographed properly but in any event the information on it correlated to the registration certificate and the owners manual. [13] Mr Cassimatis stated that after the collision of 4 July 2010 he took the vehicle to Wilkin Auto Body Service this time for repairs. It was however -- 3 of 6 -- 4 up to Mr Cassimatis to source some parts for the repairs. He did so through Trevor Peters, Motor Mania and Rare Spares at the cost as claimed. Mr Cassimatis also claimed towing by Pacific Towing from Burpengary to his home at Highgate Hill at $279.95 and from Highgate Hill to Mr Wilkin’s premises at Coopers Plains by Tillmans Towing at $80.00. Mr Cassimatis finally claimed the cost of the relevant police report. [14] Mr Wilkin’s invoice for repairs dated 25 January 2011 attaches six pages of hand written details of items as supplied and labour provided. Mr Cassimatis said he paid parts suppliers and Mr Wilkin in full. Mr Wilkin unfortunately passed away in July 2011. [15] Mr McConnell said there appeared to be no receipt for payments made; that there was no record of freight charges; that the photos suggested rust; that the Pacific Towing tax invoice dated 4 July 2010 indicated by virtue of sketches thereon that damage was to the driver’s side of Mr Cassimatis’ vehicle, that such indicated that Mr Cassimatis’ vehicle was impacted from the side rather than or as well as from the rear; that such could lead to the conclusion that more damage was done later. [16] Mr Cassimatis produced a valuation of his vehicle from Automotive Valuation Services of Australia (AVSA) dated 17 February 2011. The valuation stated the vehicle to be ‘in above average condition for year model and miles indicated … current retail replacement value to be $22,500’. The valuation also noted prior repairs to the rear were of a tradesman like quality. Mr Cassimatis produced two photos of the vehicle fully repaired. [17] Mr McConnell produced a valuation from Carsales.com quoting a private price guide for a similar vehicle as $22,300-$29,300. Conclusions [18] Mr Cassimatis’ vehicle sustained substantial damage to the rear and particularly the offside rear as a result of the collision on 4 July 2010. [19] The Tribunal accepts the evidence of Mr Cassimatis that extensive maintenance and repairs were carried out in the period September 2004 through January 2005 by Wilkin Auto Body Service. The invoice from that entity dated 4 January 2005 supports Mr Cassimatis’ contention that the vehicle was in pristine condition as at 4 July 2010. The invoice refers to a multiplicity of maintenance and repair items such as to conclude that Mr Cassimatis was not restoring an old and dilapidated vehicle but rather undertaking on his own account and of his own accord extensive maintenance and repair work so as to be able to categorise this vehicle as being in pristine condition. At some $18,000 it was by any measure a costly undertaking for him. [20] Additionally the Tribunal accepts Mr Cassimatis’ evidence that the motor was reconditioned in 1992. The seven photos produced by Mr Cassimatis five depicting the vehicle in a damaged state and two post collision repairs -- 4 of 6 -- 5 support the view that this was a vehicle to which Mr Cassimatis was paying ongoing attention and on which he was prepared to expend substantial sums of money to maintain it in pristine condition. The Tribunal accepts the vehicle was in fact a 1971 Holden LC Torana GTR Coupe. The correlation between the registration certificate and the owners manual as well as Mr Cassimatis’ oral evidence supports this view. The evidence as produced was not contested. [21] The Tribunal finds that the vehicle was in pristine condition at the time of the collision on 4 July 2010. [22] The free car valuation by Carsales.com produced by Mr McConnell states the private price guide for the vehicle at $22,300 through $29,300. The valuation by Automotive Valuation Services Australia values the vehicle at $22,500. Though this latter valuation is subsequent to the collision date by some seven months the only difference was that the vehicle as valued had been involved in a collision and repaired. It could reasonably be implied that any such valuation would be diminished by virtue of the fact that the vehicle had been damaged and repaired. Any vehicle once damaged no matter how well repaired and if disclosed will never attract the same sort of money as an undamaged original. [23] Mr Cassimatis post collision took the vehicle to the same repairer/restorer Mr Wilkin. He was an independent third party operator repairing and restoring vehicles. Unfortunately he passed away in July 2011. He cannot attest to the efficacy of his repair work. Mr Cassimatis sourced parts required to complete repairs. The items listed as supplied and labour provided by Mr Wilkin accords with the damage sustained to the vehicle. Whilst it may be usual to have an affidavit by the repairer to that effect that is obviously not possible here. The Tribunal is satisfied that Wilkin’s invoice sufficiently accords with the damage sustained in the collision such as to allow the Tribunal to properly quantify Mr Cassimatis’ loss. The Tribunal further accepts Mr Cassimatis’ evidence that he sourced parts from Trevor Peters, Motor Mania and Rare Spares at the cost to him as claimed and as supported by correspondence, tax invoices, cheque production and receipts. [24] The quantum of Wilkin’s invoice in particular and parts suppliers was not attacked other than to say Mr McConnell suggested rust in the rear end of the vehicle. This suggestion was based on information from what he said were qualified persons he had spoken to. He said the damage as depicted in photos could suggest rust. However no person was called nor any document produced to support this apparent claim. [25] Mr McConnell suggested there may have been more damage sustained post collision. He relied on sketches forming part of Pacific Towings invoice; that such sketches indicated damage to the side of the vehicle. That interpretation of those sketches is incorrect. The two sketches as circled presumably by the tow truck driver indicate damage to the rear and to the rear offside. That accords entirely with Wilkins invoice and the five photos of the vehicle in its damaged state. -- 5 of 6 -- 6 [26] The Tribunal accepts Mr Cassimatis’ evidence that he has outlaid all sums of money claimed. The Tribunal allows the application fee of $284.60. [27] Interest on the sum of $20,624.20 is allowed from 16 October 2013 (as claimed) to 8 August 2014 at the QCAT designated rate in the sum of $1,101.70. [28] Mr McConnell shall pay to the applicant the sum of $20,624.20 claim, $1,101.70 interest and filing fee $284.60 a total of $22,010.50. -- 6 of 6 --