Auda Tyre Auto v Wong & Anor [2010] QCATA 48

CITATION: Auda Tyre Auto v Wong & Anors [2010] QCATA 48 PARTIES: Auda Tyre Auto (Applicant/Appellant) v Mr Bernard Wong & Mrs Serena Wong (Respondents) APPLICATION NUMBER: APL039-10 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Justice Alan Wilson, President DELIVERED ON: 15 September 2010 DELIVERED AT: Brisbane ORDERS MADE: Application for leave to appeal refused. CATCHWORDS : MINOR CIVIL DISPUTE – CONSUMER DEBT – where respondents brought their vehicle to the applicant for repairs to the engine – where the applicant replaced the engine and carried out additional repairs – where the engine problems persisted – where learned Member accepted that the purported repairs did not fix the engine problems and made findings of credit in favour of the respondents – whether findings supported by evidence – whether any error of law Queensland Civil and Administrative Act 2009, s 142(3)(a)(i) REASONS FOR DECISION [1] In mid-June 2009 Mr and Mrs Wong took their Mazda motor vehicle to Auda Tyre Auto regarding an engine problem, namely a perception that -- 1 of 3 -- 2 the engine was running ‘weakly’. The mechanic, Mr Wesley (Ming) Hsien Tsai1 , advised them that the engine should be replaced. [2] The engine was replaced, in July, at a cost of $1,600. Mr Tsai also believed, however, that additional repairs were necessary and while the vehicle was still in his possession sent sms messages to Mrs Wong seeking authority to carry them out. The Wongs, under the impression that the additional work was necessary to fix the engine problems, agreed and the vehicle was finally ready for collection in August. The final cost for all repairs amounted to $2450. [3] The Wongs then returned twice to see Mr Tsai to complain that the engine problems were persisting. By late December 2009 the engine had seized. Mr and Mrs Wong brought proceedings in QCAT’s Minor Civil Disputes jurisdiction for a full refund of the repair costs of $2450; their application fee; and a towing fee, to tow the car to a ‘reputable’ mechanic. [4] The matter was heard by a QCAT Member on 5 March 2010. Mr and Mrs Wong appeared. Mr Tsai was accompanied by a Mr Cheng, who assisted him. The evidence included oral testimony from both parties, invoices for all of the repairs, and the sms messages (which were confirmed by Mr Tsai) regarding the need for the additional repairs. [5] In his reasons the learned Member accepted that Mr and Mrs Wong engaged Mr Tsai to repair the engine and that, on his advice, additional repairs were undertaken; but found that, despite this work, the vehicle was ‘not fixed’. By clear inference it was found that Mr Tsai had, in effect, represented that he could repair the engine; but, he had failed to do so and the moneys paid by Mr and Mrs Wong were wasted. [6] On that basis the learned adjudicator ordered that Mr and Mrs Wong recover what they had paid, and the QCAT application filing fee. He declined to make an order about the towing fee. [7] Mr Tsai now seeks leave to appeal that decision. Leave is necessary, because the original decision involves a minor civil dispute: QCAT Act, s 142(3)(a)(i). By direction the matter was heard on the papers; both parties filed written submissions. [8] In the application for leave to appeal Mr Tsai purported to include Mrs Wong’s father Mr Sa Lim as a respondent, alleging that ‘her parents Help [sic] her done the addition [sic] jobs’ and that ‘her father know something about car, must be a mechanic before.’ It appears Mr Tsai contends that Mrs Wong’s father interfered somehow, either in physically attempting to repair the engine or hiring another mechanic to do so, before or after Mr Tsai had completed all the repairs. 1 Mr Tsai names himself as the appellant in these proceedings and trades, it seems to have been (safely) assumed, as ‘Auda Tyre Auto’ -- 2 of 3 -- 3 [9] The first difficulty confronting Mr Tsai is that the allegation, or anything of its kind, was not raised at the original hearing. Secondly, Mr Tsai has not provided (or pointed to) any evidence to substantiate it. Mr and Mrs Wong deny that Mr Lim ever attempted any repairs on the vehicle or, that he has any mechanical competency; and that his involvement (and that of Mrs Lim) was only to assist in driving the vehicle to Mr Tsai’s establishment. There is no basis for giving this new allegation any weight, or credence. [10] Leave to appeal will ordinarily be granted only where there some question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage; or, there is a reasonably arguable case of error in the primary decision and reasonable prospect of the applicant would obtain further substantive relief. Another question sometimes asked is: is leave necessary to correct a substantial injustice to the applicant, caused by some error? [11] Mr Tsai’s further written submissions contend that the Wongs’ testimony that their vehicle is no longer running should not have been accepted because they were able to bring it back to see him twice following his repairs. The learned adjudicator made findings in which he accepted the credit of Mr and Mrs Wong. Nothing in the transcript of the hearing suggests that particular finding was not reasonably open, or against the weight of the evidence before him. An appeal tribunal will usually defer to the advantage the primary adjudicator had in seeing the witnesses and forming conclusions about their credit, and there is no reason not to do so here. [12] Mr Tsai is not able to point to any apparent error in the primary decision, or any apparent injustice; or, for the record, that he has a reasonable prospect of obtaining substantive relief if leave to appeal is granted. There is no question of importance about which further argument and a decision of the Appeal Tribunal would be of public advantage. Leave to appeal is refused. -- 3 of 3 --