D C Motors Gladstone Pty Ltd v Day [2012] QCATA 29

CITATION: D C Motors Gladstone Pty Ltd v Day and Anor [2012] QCATA 29 PARTIES: D C Motors Gladstone Pty Ltd t/as Gladstone Nissan (Applicant/Appellant) v Mrs Gloria Dawn Day Mr Mervyn Day (Respondents) APPLICATION NUMBER: APL432-11 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Justice Alan Wilson, President DELIVERED ON: 21 February 2012 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal is refused. CATCHWORDS: APPEAL – LEAVE TO APPEAL – where the Respondents had sought compensation for faulty engine repair work carried out by the Applicant – where the Tribunal had awarded payment of $13,485.00 for rectification costs and filing fees – whether the amount awarded was excessive in light of the value of the vehicle Queensland Civil and Administrative Tribunal Act 2009, ss 29, 32 Bellgrove v Eldridge (1954) 90 CLR 613, cited Cachia v Grech [2009] NSWCA 232, cited Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, cited McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, cited QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41, cited -- 1 of 4 -- 2 APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers pursuant to s32 of Queensland Civil and Administrative Tribunal Act 2009 (‘QCAT Act’). REASONS FOR DECISION [1] Mr and Mrs Day took their 2001 Nissan Patrol Wagon to Gladstone Nissan in 2009 and some mechanical work was performed there, to the value of $7,818.42. The work included replacing a cylinder head. [2] The vehicle subsequently broke down in December 2010 and was returned to Gladstone Nissan but, after some repair work commenced, Mr and Mrs Day took it to another mechanic called Accurate Engine Rebuilders. An engineer there subsequently produced a report in January 2011 to the effect that the cause of the breakdown was some apparent damage to the engine which had been caused by the over tightening of the idler gear retaining bolt, in the course of the work done by Gladstone Nissan in 2009. [3] Mr and Mrs Day brought a claim in QCAT’s Minor Civil Disputes jurisdiction claiming the estimated engine repair costs of $13,485.00, plus some other expenses including the cost of the investigation report from Accurate Engine Rebuilders of $1,450.00. [4] Following a hearing before a Magistrate sitting as a QCAT member in this jurisdiction on 20 October 2011, it was ordered that Gladstone Nissan pay Mr and Mrs Day $13,485.00 for the rectification costs to the engine, plus filing fees of $265.00. The learned Magistrate reserved his decision on 20 October, but delivered it with written Reasons on 26 October 2011. [5] An appeal has been filed in the name of Mr Errol Roots, apparently on behalf of D C Motors Gladstone Pty Ltd t/as Gladstone Nissan. There is no evidence about Mr Roots’ precise position in or association with the company, but for the purposes of this application for leave to appeal I think it is safe to assume that he has been authorised to bring the proceedings on behalf of the company. [6] By direction, the application for leave to appeal (and the appeal, if leave is granted) is to be determined on the basis of written submissions of the parties, which they have exchanged and delivered. [7] Mr Roots’ submissions are very short. It can be assumed, from them, that he does not now dispute the learned Magistrate’s findings that it was the defective work on the engine in Gladstone Nissan’s workshop in 2010 that caused the problems detected in 2011. Rather, he says that the amount awarded is excessive in light of the value of the vehicle and that there can be ‘…no economic justification in spending this sum... for a total rebuild when a second-hand engine of equal or lower mileage is readily available to be fitted.’ [8] He then appears to submit that the order the learned Magistrate should have made was that Gladstone Nissan must supply a second hand engine, -- 2 of 4 -- 3 of equal or lower mileage to the damaged engine, to Accurate Engine Rebuilders at no cost, and pay the latter its reasonable costs of installing and tuning it; and, that Gladstone Nissan then warrant the replacement engine for a period of 12 months or 20,000 kilometres. [9] Mr Roots also says that he has had conversations with Mr Day in which it was ‘intimated’ that the Days were in fact looking at buying a second-hand or reconditioned engine at far lower cost than the sum the Court awarded, and keeping the difference. [10] Mr and Mrs Day’s submissions in response are also quite short. In particular, Mr and Mrs Day deny that there had ever been any discussions about a replacement second hand-motor, and say that they do not plan to seek a motor of that kind. Indeed, they say that with the associated costs of parts, freight and labour, the sum awarded to them will not be sufficient, and they seek an increase by another 10%-15%. They have not, however, cross-applied for leave to appeal. [11] The Reasons of the learned Magistrate are, with respect, clear and comprehensive. He accepted the evidence of the engineer about the cause of the problem, and noted the absence of any contrary evidence. The basis upon which he came to that finding is clearly set out, and explained. [12] It is also clear from the Reasons, however, that Mr Roots did not call any of his employees, and that his own evidence was largely related to the mechanical history of the vehicle on the occasions it had been serviced by Gladstone Nissan. For reasons which will be apparent, it is clear Mr Roots did not argue that the sum claimed for repairs was excessive or uneconomical; or, offer to replace the engine in the manner he now suggests; or, attempt to present any evidence to show that a replacement engine was reasonable in the circumstances, and that its cost was significantly less than the repair costs claimed by Mr and Mrs Day. [13] Nor, it appears, did Mr Roots suggest that Mr and Mrs Day did not intend to spend any damages they might recover on those repair costs, and that they rather intended to use the damages to buy a replacement engine at a lower cost and, in effect, profit from the difference. [14] As a matter of general principle, the costs associated with repairing or reinstating property or goods that are defective or damaged as a consequence of a breach of a contract must be reasonable1. The law imposes an obligation upon the party that has suffered damage to take reasonable steps to minimise its losses. Unsurprisingly, however, where the other party argues that the party seeking damages should have taken steps that would have reduced or ‘mitigated’ that loss, the burden of proving that the party claiming the damages has acted unreasonably, and has failed to keep their losses to a reasonable amount, falls upon the party who raises that allegation – here, Mr Roots. [15] Here, Mr Roots’ own submissions concede that Mr and Mrs Day’s Nissan Patrol still has a value that is probably greater than the cost of the repairs. 1 Bellgrove v Eldridge (1954) 90 CLR 613. -- 3 of 4 -- 4 He did not produce any evidence or argue before the learned Magistrate that the cost of a replacement engine would be less than the cost of repairs claimed by the Days, or attempt to show that their claim was unreasonable. [16] A knowledge of the law of contract, or of the principles mentioned above, would not have been necessary before these things might have occurred to Mr Roots. Those principles reflect what a non-lawyer, applying some thought to the matter, would certainly work out for themselves. Had Mr Roots raised these arguments in evidence, or in submissions before the learned Magistrate, then the Magistrate would have been constrained under s 29 of the QCAT Act to explain them to him. Mr Roots’ failure to advance these matters at the original hearing mean that this obligation, on the part of the learned Magistrate, never arose. [17] In any event, even if they had been properly argued at the hearing, it is improbable they would have succeeded. As Mr Roots himself concedes, the vehicle still has a value that exceeds the repair costs. He has not, at the original hearing or in this application for leave to appeal, advanced any evidence to show that the cost of a replacement second hand engine would be so significantly less that the learned Magistrate’s findings, and the relief he ordered, were unreasonable. [18] The question whether or not leave to appeal should be granted is usually addressed according to established principles: Is there a reasonably arguable case of error in the primary decision?2 Is there a reasonable prospect that the applicant will obtain substantive relief?3 Is leave necessary to correct a substantial injustice to the applicant caused by some error?4 Is there a question of general importance upon which further argument, and a decision of the appellate court or tribunal, would be to the public advantage?5 [19] Nothing in Mr Roots’ submissions shows that there is a reasonably arguable case of error in the decision of the learned Magistrate. Nor do they raise a reasonable prospect that an appeal would succeed. There is no sign of any substantial injustice to him, caused by any error during the hearing or in the learned Magistrate’s Reasons. There is no question of general importance upon which further argument, and a decision of this Appeal Tribunal, would be to the public advantage. [20] In these circumstances, the application for leave to appeal must be refused. 2 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 3 Cachia v Grech [2009] NSWCA 232 at 2. 4 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 5 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580. -- 4 of 4 --