Arenas & Battisson and Automotive Computer Diagnostic Centre (Acdc) Pty Ltd
[2010] ACAT 12
•19 March 2010
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
ARENAS v BATTISSON & AUTOMOTIVE COMPUTER DIAGNOSTIC CENTRE (ACDC) PTY LTD (Civil Disputes) [2010] ACAT 12
XD 882 of 2009
Catchwords: CIVIL DISPUTES – Contract performance – ACT Civil and Administrative Tribunal Act 2008 (ACT) s 48
Legislation: ACT Civil and Administrative Tribunal Act 2008 (ACT)
Books/Articles: Cheshire and Fifoot, Law of Contracts in Australia (7th edition)
Tribunal: Ms J A David Senior Member
Date of Orders: 19 March 2010
Date of Reasons for Decision: 19 March 2010
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) XD 882 of 2009
BETWEEN:
JEFF ARENAS & SHERYN ARENAS Applicant
AND:
GRAHAM PETER BATTISSON
First Respondent
AND:
AUTOMOTIVE COMPUTER DIAGNOSTIC CENTRE
(ACDC) PTY LTD
Second Respondent
Tribunal:Ms J A David, Senior Member
Date: 19 March 2010
ORDER
The Respondents are to pay the Applicants the sum of $4324.40 within 14 days.
Each party is to pay their own costs.
……………………………….
Ms J A David
Senior Member
REASONS FOR DECISION
This case concerns a claim by the Applicants, Mr and Mrs Arenas (‘the Applicants’) against Mr G P Battisson (‘1st Respondent’) and Automotive Computer Diagnostic Centre (ACDC) Pty Limited (‘2nd Respondent’) for reimbursement of fees of $4324.40 paid by the Applicants to the Respondents for work on their motor vehicle together with $202.50 for two reports and quotes from independent mechanics and the commencement fee of $115 to apply to the Tribunal. The 1st Respondent is a Director of the 2nd Respondent.
The Applicants filed their claim on 3 August 2009, listing the grounds of the application as a claim for the cost they had paid to the Respondent/s for repairs undertaken to the gas system in their motor vehicle for which they had paid
$4, 324.40 but the gas system still was not working. Whilst not expressed as such by the Applicants, who were unrepresented throughout, the Applicants are claiming that they had a contract with the 2nd Respondent (and perhaps the 1st Respondent) to install an LPG gas system into their motor vehicle, a Toyota Prado, and that the respondent/s has not honoured that contract.
The 1st and 2nd Respondents filed a Response – Civil Dispute Notice on 7 October 2009; the 2nd Respondent naming the 1st Respondent as its representative. Both Responses stated that liability for all claims by the Applicants was disputed and that the “integrity of most documents” was disputed. No counter-claim or set-off was made by either Respondent.
The matter was listed for conference before the Tribunal on 28 October 2009; it did not settle at the conference and was subsequently listed for hearing before the Tribunal on 14 December 2009. Neither party was legally represented at the hearing; the 2nd Respondent was represented by the 1st Respondent. After hearing both parties, the Tribunal adjourned the matter, at the request of the 1st Respondent, for the Respondents to make written submissions and for the Applicants to reply.
The Respondents lodged written submissions on 6 January 2010. By an omission those written submissions were not forwarded to the Applicants until late in January 2010. The Applicants lodged their written response on 7 February 2010.
The Tribunal apologies for the delay in providing these reasons and decision.
Applicants’ Submissions –
In their Application to the Tribunal dated 3 August 2009, the Applicants attached a written diary of their dealings with the 1st Respondent, a summary of which is below. The Applicants reiterated this version of the facts at the hearing.
(a)On 15 May 2009, Mrs Arenas left the motor vehicle with the Respondents for a gas system test that was necessary prior to re-registering the vehicle.
(b)Later that day the 1st Respondent advised that the gas system could not be passed for registration and offered two alternatives:
(i) Patching the existing gas system for a cost of $800-$1000; or
(ii) Replacing the whole system for a cost of around $1680.
(c)The Applicants advised the 1st Respondent on the same day that they wanted the new gas system installed. The 1st Respondent stated that the work could not be done until Wednesday 20 May and that the vehicle would be ready for collection on Thursday 21 May; it would take two days. The vehicle was dropped off at the Respondents’ garage on 19 May 2009.
(d)On 21 May Mr Arenas called to collect the vehicle; the 1st Respondent advised that no work had been undertaken on the vehicle but it would be ready on 22 May 2009. When Mr Arenas phoned the 1st Respondent on 22 May he was advised the vehicle would not be ready until the following Monday, 25 May 2009.
(e)On 25 May 2009, Mr Arenas arrived at the Respondents’ garage to be advised that the vehicle was still not ready and that the repairs would cost a further $1500. The Applicants assert that at no time did the Respondents seek approval for this further cost and just commenced the additional repairs without any communication to the Applicants. The Applicants believed they had to let the Respondents complete the additional repairs as the Respondents had already removed some of the old parts.
(f)On 27 May 2009, Mrs Arenas was advised by the 1st Respondent that parts were to come from interstate and the vehicle was not ready. Mrs Arenas stated she needed the vehicle by Friday 29 May to travel to Sydney; the 1st Respondent stated it would be ready by Thursday 28 May 2009.
(g)Mr Arenas collected the vehicle in the evening of Friday 29 May and was advised by the 1st Respondent that the vehicle was still not “fixed” as the gas system was not firing properly, however, Mr Arenas could take the vehicle and use the petrol system only. The 1st Respondent also advised that Mr Arenas could return the vehicle for a dyno tune to see why “the gas system was missing and stalling at lights and roundabouts”. The dyno tune would be an additional cost to the Applicants, as would be any additional repairs to fix the identified problem.
(h)The 1st Respondent then advised Mr Arenas that he had to pay the outstanding cost of repairs up to that date, amounting to $4324.40, before the 1st Respondent would release the vehicle to Mr Arenas. This Mr Arenas did and took the vehicle.
(i)On 27 July 2009, Mrs Arenas contacted the Respondents to book the vehicle in for the dyno tune. The 1st Respondent stated the dyno tune would cost from $50 - $75.
(j)On 28 July 2009 the 1st Respondent advised Mr Arenas that the dyno tune now would be no more than $150. He requested the vehicle be dropped off as early as possible on 29 July 2009.
(k)Mr Arenas dropped off the vehicle late on 28 July 2009 and asked for a quote for things that needed to be done. Mr Arenas also checked that the vehicle would be ready on Thursday afternoon, 30 July 2009.
(l)On 30 July 2009 both the Applicants arrived to collect the vehicle which was not at the Respondents’ garage. After an altercation in which Mr Arenas demanded to know where his vehicle was, the 1st Respondent asked Mr Arenas to leave the premises. Shortly thereafter, the 1st Respondent telephoned Mr Arenas to say the vehicle would be outside the Respondents’ garage at 8.30pm that night. The Applicants collected the car that night.
(m)The 1st Respondent has not provided a quote for any further repairs.
(n)The gas system is still not working and the Applicants have had to use the petrol system since May 2009, a significant cost to them as petrol costs a lot more than LPG gas.
The Applicants obtained quotes to fix the LP Gas system in their vehicle which were:
(a)Cuthbert Engineering dated 3 August 2009, for $1398.65 for “parts plus fitting and tuning a new LP Gas system (if injected system removed)”;
(b)Mitchell Service Centre, dated 12 August 2009, stating:
Check vehicle for not running on LPG.
An “Ultra-Gas” vapour injection system has been fitted to this vehicle. Ultra-Gas is a little known brand that I nor my suppliers have heard of and therefore cannot comment on the quality of this system.
However, the 3.4Ltr Prado has an engine management system that operates in ‘open loop’, ie the car does not have an oxygen sensor to monitor the engines fuelling and relies on a pre-mapped program.
It is of my opinion that this would make it very difficult to create an LPG map that will work under all conditions. Changes in altitude would also create major problems for any programmed map.
In my opinion the best option for the vehicle from here would be to return it to a conventional air valve system.
These systems have been utilized on Toyota Prado 3.4Ltr engines since about 1996 and there is no problem with the vehicle complying with Australian Standards.(c)Mitchell’s Service Centre, dated 13 August, 2009 for $2090.91 to remove the vapour injection system and install an Impco air valve system in its place. The quote also said that the cost to refit the equipment originally removed to install the vapour injection system in the vehicle would be less, however, the kit would have to be inspected prior to installation for an accurate quote to be given.
With their written response to the Respondents’ written submissions (summarised below), the Applicants included a report from Gas Tune Automotive Gas & Mechanical Repairs, dated 22 December 2009, stating:
The gas switch lights are flashing, possibly indicating a fault in the gas system which has shut down the gas system to petrol default.
We did add gas to the gas tank to check that the gas system has some gas in it. This did not correct the gas system operating and the gas switch continued to flash, we also disconnected the battery to try to reset the gas system. This had no effect - gas switch still flashing, no go on gas.
Hooked up scan tool to engine management system to check for faults in petrol system Code 41 Throttle position, this cad [sic] may be from gas system wiring.
The gas system needs to be diagnosed and repaired or removed if the installer cannot repair the system.
Respondents’ Submissions –
The Respondents tendered the following documents at the hearing of 14 December 2009:
(a)Copy of Tax Invoice from ACDC Pty Ltd to Jeff Arenas dated 25 May 2009 for $4,324.40.
(b)A quotation for $0, dated 27 July 2009 from the 2nd Respondent to the 1st Applicant, for a dyno tune.
(c)Repair Order/Job Card, undated and unsigned.
(d)An Invoice dated 27 July 2009 from Janrule Pty Ltd to ACDC Automotive for $582.54 for “Coil Assy, IGNI J596” and “Cord Set, Coil J596”.
(e)Signed and dated Statement by Donovan Battisson entitled “My account of the events that occurred on 30 July 2009”.
(f)Copy of Tax Invoice from Russell’s Race and Rally Service to ACDC dated 30 July 2009 for $227.27 to “Run Car on Dyno and check miss fire problem”.
(g)An Invoice dated 23 May 2009 from Janrule Pty Ltd to ACDC Automotive for $260.80 for the following plus freight and GST:
v Hose, Air Clean J598 $108.80
v Gasket, Air Sur J596 $11.84
v Gasket, Intake J596 $96.00
v Gasket, Air Sur J596 $11.84
v Gasket, Throttle J596 $5.44
(h)A further Tax Invoice dated 28 October 2009 for $1,939.93 for labour plus GST.
The Respondents also lodged written submissions on 6 January 2010 stating in summary:
(a)On 13 May 2009 Mr Arenas visited the Respondents’ workshop seeking an ACT Motor Registry Inspection Certificate. The 1st Respondent booked the inspection for 15 May 2009.
(b)Mrs Arenas dropped off the vehicle on 15 May 2009.
(c)The 1st Respondent undertook the inspection that day and did not pass the vehicle for a listed number of reasons. The 1st Respondent advised Mrs Arenas by phone of the result of the inspection and that, as a safety precaution, he had switched off the LP Gas supply.
(d)Mrs Arenas collected the vehicle later that evening; the 1st Respondent advised her that the cost of repairs needed to the gas system would be $800-$1,000 (including the Vehicle Inspection Certificate) and that he could not undertake the work until 20 May 2009 and that the vehicle would be needed overnight. He had also turned off the LP Gas supply.
(e)The 1st Respondent told Mrs Arenas that, on further inspection, there were other parts of the gas system (the vaporiser/converter and air valve) that needed repair and/or replacement. The 1st Respondent also offered to retro-fit an Ultra Gas Injection System front kit to the vehicle (the 1st Respondent is the importer and sole supplier of this system) for an additional $1680, the wholesale price of the kit, without labour charge. The total cost would be $2,400 - $2,600.
(f)Finally, the 1st Respondent advised Mrs Arenas that it was potentially dangerous to use the vehicle on LP Gas.
(g)The Applicants left the vehicle at the Respondent’s workshop in the evening of 18 May 2009 requesting the repairs be undertaken and the Ultra Gas Injection System installed. The 1st Respondent explained that the repairs would be $800 - $1,000 and the new unit $1680. There was discussion of further repairs being needed once the top section of the intake manifold was removed. The 1st Respondent undertook to phone Mr Arenas if that possibility occurred.
(h)When working on the vehicle the 1st Respondent found more repairs and new parts were needed that would cost approximately $1500, bringing the cost of the entire job to $4,347.70.
(i)Mr Arenas phoned to ascertain what was happening to his vehicle and the 1st Respondent asked Mr Arenas to come to the workshop, which he did. The 1st Respondent stated that he explained in great detail why it was essential to carry out the additional repairs and that, if Mr Arenas decided not to go ahead, the Respondent would reassemble the engine and the old gas components for no charge.
(j)On 21 May, Mr Arenas phoned the 1st Respondent to authorise the total job. The 1st Respondent advised that the job would not be finished until 27 May.
(k)On 27 May Mrs Arenas phoned and the 1st Respondent advised her that the vehicle was not ready. Mrs Arenas said she wanted the vehicle on 29th to travel to Sydney that weekend.
(l)The vehicle was not ready at 5.30pm on 29 May 2009 as an ignition problem had not been resolved. With the clear understanding that a dyno tune was needed to identify the problem, Mr Arenas took the vehicle after paying the cost of repairs so far, that is, $4347.70.
(m)The vehicle was to be returned for the dyno tune on 8 June 2009. This was later changed by the 1st Respondent to 11 June 2009. The vehicle was not brought back until 28 July 2009, for a dyno tune on 29 July when the 1st Respondent advised Mr Arenas that the dyno tune costs had increased. The dyno tune was not commenced until late in the afternoon of 29 July and was terminated by the 1st Respondent at the request of Mr Arenas after an altercation between them.
(n)The 1st Respondent stated that there is a problem with the vehicle and that the Respondents are not responsible for it (Statement p30); that until the problem is resolved, it is not possible to correctly re-adjust the LP Gas system. The 1st Respondent also stated that the Respondents were not advised until 28 October 2009 that there was a problem with the vehicle operating on LP Gas (Statement p31). The 1st Respondent also stated that there was no problem with the LP Gas system fitted (Statement p31).
The following were attachments to the 1st Respondent’s above written statement:
(a)A further Repair Order/Job Card dated 15 May which had signatures under the Approval for Additional Work section which read “Jeff Arenas”. The dates next to the signatures are 18/5/09 authorising repairs of $1680 and 22/5/09 authorising repairs of $1500. The signatures do not look the same as Mr Arenas’ signature on the Goods Application - Civil Dispute form lodged with the Tribunal in September 2009.
(b)A written note from a “Russell Battisson” dated 24 December 2009 stating he undertook the dyno tune on 29 July which was stopped by Don Battisson after he received a phone call from his father, the 1st Respondent.
(c)A written note by Donovan Battisson dated 13 December 2009 detailing the events of 29 July 2009 stating that the vehicle was taken for dyno testing at approximately 3.30 - 4pm; testing was unfinished when the 1st Respondent rang to stop the testing as there had been an altercation at the workshop between Mr Arenas and the 1st Respondent.
Issue 1 – Was a contract formed and what were its terms?
The parties did not dispute that on 15 May 2009 the Applicants had sought an ACT Motor Registry Inspection Certificate for the LP Gas system in their vehicle. The Applicants stated at the hearing and in their written response that the 1st Respondent quoted $800 to $1000 for necessary repairs to the LP Gas system to enable a Certificate to be given. The Respondents agreed. The parties also agreed that the 1st Respondent quoted $1680 to install the new Injected Ultra-Gas system. The disputed facts arise thereafter.
The Applicants are adamant that the 1st Respondent did not advise them on 15 May 2009, or thereafter until after the installation had commenced, that the quote of $1680 for the new Injected Ultra-Gas system was in addition to the $800 - $1000 for repairs originally quoted. The 1st Respondent is also adamant that he made very clear to Mr Arenas that the cost of the new system was additional to the cost of the repairs. Mrs Arenas stated in the Application to the Tribunal that she contacted Mr Battisson and advised him that the Applicants were happy to go ahead with the new system at the cost of $1680 and a two-day time frame for repairs. The Tribunal finds that the contract was for the amount of $1680 to install the new Ultra-Gas system in the Applicants’ vehicle, and not the $2,400 - $2,600 asserted by the Respondents.
After having the vehicle for approximately 5 days to install the new Ultra-Gas system, the Respondent advised Mr Arenas, who had called at the workshop to collect the vehicle on 25 May 2009, that further repairs would cost $1500. At the hearing the 1st Respondent stated that they had to undertake the additional repairs once they discovered problems when they started on the installation and that Mr Arenas authorised the additional cost of $1500 by phone to the 1st Respondent on 22 May 2009. The Applicants stated they believed they had to pay for these additional repairs as the Respondents had already undertaken, or were in the process of undertaking, the additional repairs. The Applicants assert that at no time did the Respondents seek approval for this further cost, but went ahead with the additional repairs without any notice to either of the Applicants. The Applicants believed they had to let the Respondents complete the additional repairs as the 1st Respondent stated that some of the old parts had already been removed from the vehicle and new parts ordered.
Having had the benefit of observing the parties at the hearing, and having read the Respondents’ written submissions (especially the contradictory statements set out in paragraph 11(n) above) and taking into account the lack of efficient organisation in the Respondents’ workshop that resulted in continued delays in having the vehicle repaired and the new Ultra-Gas system installed in working order, the Tribunal is satisfied that the Applicants’ version of events is the correct one and that the Tribunal finds that the contract was for the installation of an Ultra-Gas system in working order to be installed by the Respondents in the Applicants’ vehicle for $1,680.
The Tribunal finds that the parties had a contract for the installation of a new Ultra-Gas system in working order at a cost of $1,680 and that the additional repairs of $1,500 were agreed to by the Respondents only because they understood that they had no choice but did so because of the representations by the 1st Respondent on behalf of both Respondents. Therefore, the agreed total amount for the cost of the installation and repairs was $1,680.
The additional sum of $1,500 agreed to by the Applicants on the basis that they believed they had no choice as the Respondents had already commenced the repairs covered by that price and had apparently ordered parts to complete the repairs, was not part of the original contract between the parties. The Applicants’ agreement to that additional cost was obtained by the Respondents representing that the repairs had already been commenced and had apparently ordered parts to complete the repairs. At the least, this is an innocent representation made by the 1st Respondent on behalf of both Respondents to obtain the Applicants’ agreement to the additional cost. Therefore, the additional $1,500 is to be repaid by the Respondents to the Applicants.
The Applicants had no choice but to pay the $4,324.40 demanded by the 1st Respondent on 29 May 2009 as the 1st Respondent would not release their vehicle to them until they had paid the full sum the Respondents alleged was owed. The payment of that sum did not represent any agreement by the Applicants that the sum paid was an agreed amount for the work done thus far by the Respondents on the vehicle.
Issue 2 – Was the Contract Performed?
The contract would have been for the installation of the new Ultra-Gas system in a fully functioning working order.
The contract was not performed by the Respondents as the new Ultra-Gas system is still not in fully functioning working order. This is evidenced by:
(a)The Applicants have not been able to operate the vehicle on LP gas since they received the vehicle from the Respondents on 29 May 2009;
(b)Mitchell Service Centre inspected the vehicle in August 2009 and advised that the engine management system for the vehicle would make it very difficult to create an LPG map for the gas system that would work under all conditions and recommended returning the vehicle to a conventional air valve system;
(c)Gas Tune Automotive Gas & Mechanical Repairs inspected the vehicle in December 2009 and reported that the gas lights were flashing in the vehicle indicating a fault in the gas system and after inspection concluded that the gas system needs to be diagnosed and repaired or removed if the installer cannot repair the system;
(d)The Respondents sought to have the system dyno test to ascertain the problem with the system in June 2009 so the cause of the problem with the system could be identified and repaired.
The dyno testing undertaken on 30 June 2009 was not completed as the 1st Respondent stopped it after an altercation between Mr Arenas and the 1st Respondent. The results of that test may have identified the problem. By 30 July 2009, the Applicants were concerned that further costs would be incurred without their approval, hence their concern to have the vehicle returned to them that day. Even if the dyno testing had been completed, and had identified the problem with the new Ultra-Gas system, the Respondents indicated that repairs would then have to have been undertaken to rectify the problem/s identified, thus further costs would be incurred.
The contract was not performed and the common law of contract does not recognise “best efforts” or a “reasonable attempt” as a substitute for the exact performance required under contracts (Cheshire and Fifoot, Law of Contracts in Australia (7th edition) at [9.2]). Therefore, the Respondents are to repay in full the $4324.40 paid by the Applicant to the Respondents on 29 May 2009.
Costs
The Applicants included in their claim a component for the cost of their application to the Tribunal. Section 48 of the ACAT Act provides that the prima facie position is that parties bear their own costs. There are limited circumstances in which costs may be awarded but there is nothing in the present case that warrants a departure from the general rule.
The Applicants also sought the cost of obtaining reports from other gas fitters. These costs also fall within section 48 above and are not to be paid by the Respondents to the Applicants.
………………………………
Ms J A David
Senior Member
PUBLICATION DETAILS
TO BE PUBLISHED
To be completed by Tribunal Staff
PART A FILE NO: XD 09/882
APPLICANT: JEFF & SHERYN ARENAS
FIRST RESPONDENT: GRAHAM PETER BATTISSON
SECOND RESPONDENT: AUTOMOTIVE COMPUTER DIAGNOSTIC CENTRE (ACDC) PTY LTD
COUNSEL APPEARING: APPLICANT:
RESPONDENT:
SOLICITORS: APPLICANT:
RESPONDENT:
OTHER: APPLICANT: SELF
RESPONDENT: SELF
2nd RESPONDENT: BATTISSON
TRIBUNAL MEMBER/S: MS J A DAVID Senior Member
DATE/S OF HEARING: 14 December 2009 PLACE: CANBERRA
DATE/S OF DECISION: 19 March 2010 PLACE: CANBERRA
PART B
RECOMMENDATION:
FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )
COMMENTS:
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