Day v DC Motors Gladstone Pty Ltd [2011] QCAT 714

CITATION: Day v DC Motors Gladstone Pty Ltd [2011] QCAT 714 PARTIES: Mr Mervyn Day Mrs Gloria Day (Applicants) v DC Motors Gladstone Pty Ltd t/as Gladstone Nissan (Respondent) APPLICATION NUMBER: MCDO107-11 (Gladstone) MATTER TYPE: Other minor civil disputes matters HEARING DATE: 20 October 2011 HEARD AT: Gladstone DECISION OF: Mr R Warfield, Member DELIVERED ON: 26 October 2011 DELIVERED AT: Gladstone ORDERS MADE: 1. The Order of this Tribunal is that the Respondent pay to the Applicants the sum of $13,485.00 for rectification of their engine plus $265 filing fee within 28 days. Total Order: $13,750.00. CATCHWORDS: Rectification work to engine of vehicle – no evidence for part of claim APPEARANCES and REPRESENTATION (if any): APPLICANT: Mr and Mrs Day in person RESPONDENT: Mr Errol Roots, Owner, in person REASONS FOR DECISION [1] At the commencement of the hearing I advised both parties that the applicants bore the onus of proof in respect of their claim and that this tribunal must make an order that it considers fair and equitable to the parties in order to resolve their dispute. The parties were also advised that the tribunal must act fairly and observe the rules of natural justice and that the rules of evidence do not apply and that the proceedings were fairly informal. -- 1 of 4 -- 2 [2] The applicant’s claim is broken into five components and involves an amount sought for rectification work to be carried out on the engine of their 2001 Nissan patrol motor vehicle. The claims are: 1. Investigation report from Accurate Engine Rebuilders $1,450.00 2. Refund of money for repairs to clutch/gearbox $4,725.71 3. Costs of preparation of documents $50.00 4. Estimate of cost of repairs to motor vehicle $13,485.00 5. Filing Fee $265.00 [3] The total claim comes to $19,975.71. [4] At the outset the claim for preparation of documents is refused as the Queensland Civil and Administrative Tribunal Act 2009 does not allow for such an order: see s 102 of the Act and s 84 of the Regulations. [5] The claim for the clutch and gearbox is also refused. No evidence was given in respect of this claim and it appears that these issues arose quite some time ago. [6] The main claim is for repairs to the engine. This vehicle was bought second hand in 2003 by the applicants and it had travelled approximately 96,000 klms at this time. After the vehicle came out of the warranty period it was regularly serviced by GPR Automotive Pty Ltd of Gladstone. Mr Russell Houghton is the workshop manager and owner of this business and gave evidence at this hearing. [7] In May 2009 Mr Houghton was servicing the vehicle and he could not get it to run properly. He suggested that the vehicle be taken to a diesel mechanic and it was subsequently taken to Gladstone Nissan. They discovered that the cylinder head was cracked and a replacement was provided by Mr Houghton. There was some discussion at the tribunal as to whether this replacement cylinder head was new or re-conditioned. Mr Houghton’s evidence is that it was new and I accept that evidence. There is no evidence to the contrary from any other witnesses to dispute this. [8] It should be noted that Mr Roots did not call any of his employee mechanics to give any evidence about the repairs carried out to this vehicle. [9] When the vehicle was inspected by Gladstone Nissan it was found that there was a myriad of mechanical faults which required repairing. A copy of that invoice (dated 3 June 2009) outlines the repairs carried out (including replacing the cylinder head) and the total invoice came to $7,818.42. This tends to support Mr Roots’ claim that this vehicle had many problems. Nevertheless the cylinder head was replaced and the vehicle was collected sometime after 30 June 2009. [10] The vehicle subsequently broke down on 15 December 2010 and had to be towed back to Gladstone Nissan. Work had commenced stripping down the engine but Mr and Mrs Day subsequently requested that work cease and the vehicle was taken to Accurate Engine Rebuilders in Chapple Street, Gladstone for an independent inspection. The fee for that report is the first -- 2 of 4 -- 3 part of this claim ($1,450.00). The inspection report forms part of the material provided to this tribunal and also as estimation of the cost of rectification and rebuilding this engine. That cost is $13,485.00. I do note that the repair estimation cost does seem to include the cost for the inspection report as the first eleven items on the estimate are the same as on the inspection report. If this claim is allowed it will only be for the amount of $13,485.00. [11] Evidence was given from Mark Frewen-Lord the owner/manager of Accurate Engine Rebuilders. His evidence is that the motor vehicle was delivered in Mid January 2011. An investigation was carried out and it was discovered that the engine was in a bad way and the engine block was damaged. An investigation was carried out and the report given to Mr and Mrs Day. The report is dated 24/1/11 and gives an opinion as to how the damage could have been caused. Mr Frewen-Lord stated that he believed the cylinder head was new and not reconditioned. [12] Evidence was given by Patrick Saunders. Mr Saunders is a trade qualified engine re-conditioner and is employed by Accurate Engine Rebuilders. Mr Saunders was responsible for dismantling the engine to try and determine the cause of the damage. His report outlines what he discovered and his belief for the cause. [13] He discovered that a stripped thread on the idler gear retaining bolt had allowed it to come loose in the thread. This allowed the idler gear to run out of its normal vertical position. Continued running of the engine with this gear not running vertically has resulted in the flattening of the thread on the idler gear retaining bolt and the teeth of the idler gear and camshaft gears wearing unevenly. The wear on the teeth of the idler gear has been sufficient to allow it to slip against the teeth on the gear on the right hand camshaft. The gear slip has caused the right hand camshaft to stop rotating in sync with the left hand camshaft. The valves that are operated by the right hand camshaft have stopped opening and closing at the correct time which has allowed them to come in contact with the tops of the pistons. The pistons that were on the up stroke have contacted the valves forcing the valves and the valve lifter buckets riding on top of them back up under the right hand camshaft fitted on top of the cylinder head. This has bent several of the valves and broken the camshaft and camshaft cap on the top of the cylinder head. The impact of the pistons contacting the valves has also cracked the valve lifter buckets and jammed three of the valve lifter buckets in their recesses in the top of the cylinder head. [14] Further in the inspection report Mr Saunders gives his opinion that the idler gear retaining bolt thread in the front of the cylinder head has been stripped. The thread has been stripped by over tightening of the idler gear retaining bolt. This would have occurred when the idler gear was fitted to the front of the cylinder head. The scoring in the number two cylinder bore has probably been caused by a piece of foreign metal becoming lodged between the piston and the cylinder bore and being moved up and down the cylinder bore by the piston. -- 3 of 4 -- 4 [15] The report goes on but it is not necessary to fully repeat its contents. Mr Saunders was cross-examined by Mr Roots. He did not believe that there was some other cause for the damage. He stated that the retaining bolt still had thread on it. Mr Saunders did not believe the damage could be caused by normal wear and tear. He was asked whether he could give an estimation of time for the damage to occur if the retaining bolt was over tightened. He stated that if the vehicle was not “thrashed” it might last for some time. [16] Evidence was also heard from Mr Russell Houghton, manager of GPR Automotive Pty Ltd. His evidence was short and went to the condition of the second cylinder head. His evidence is that the second head was new and not re-conditioned. As stated above I accept this evidence. [17] The evidence from Mr Roots was mainly in relation to the mechanical history of this vehicle when it was serviced by Gladstone Nissan. There is no doubt that this vehicle had many problems when it came from Mr Houghton’s workshop. Nevertheless a large amount of mechanical repairs was carried out by Gladstone Nissan, including the new cylinder head. [18] Despite Mr Roots questioning the other witnesses about other possible causes for the engine damage, he did not call any of his employees who may have inspected and/or worked on this vehicle. The absence of their evidence seems strange. [19] On balance, I accept that the damage caused to this vehicle resulted from the over tightening of the idler gear retaining bolt when it was in the possession of Gladstone Nissan. The thread on this bolt has subsequently stripped over time, the bolt has become loose and resulting damage is as described by Mr Saunders in his report. [20] In the absence of any other compelling evidence to the contrary I find that the applicants have proven their claim to the required standard in relation to the damage to the motor vehicle engine. The balance of their claim is refused. Order [1] The Order of this tribunal is that the respondent pay to the applicants the sum of $13,485.00 for rectification of their engine, plus filing fee of $265.00. Total Order is $13,750.00. Such amount to be paid within 28 days. -- 4 of 4 --