Biffone v Scharenguivel
[2012] QCAT 202
•3 May 2012
| CITATION: | Biffone and Anor v Scharenguivel [2012] QCAT 202 |
| PARTIES: | Vera Biffone (First Applicant) Francesco Biffone (Second Applicant) |
| v | |
| Tye Scharenguivel trading as Queensland Valiant Spares & Restorations (Respondent) |
| APPLICATION NUMBER: | MCDO380-11 |
| MATTER TYPE: | Other minor civil dispute matters |
| HEARING DATE: | 24 January 2011 |
| HEARD AT: | Southport |
| DECISION OF: | Christine Trueman, Adjudicator |
| DELIVERED ON: | 3 May 2012 |
| DELIVERED AT: | Southport |
| ORDERS MADE: | [1] THAT the Claim is dismissed. |
| CATCHWORDS: | Motor vehicle repairs – claim for refund due to unsatisfactory repairs – alleged substandard workmanship to vehicle restoration – claim for towing costs |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Ms Vera Biffone |
| RESPONDENT: | Mr Tye Scharenguivel |
REASONS FOR DECISION
Introduction
Ms Vera Biffone (“Ms Biffone”) appeared and was granted leave to appear on behalf of the second Applicant, her brother Mr Francesco Biffone, who was interstate and unable to be present at the hearing. The applicant Ms Biffone initially filed the claim as the only Applicant on 12/4/2011 seeking orders from the tribunal that the Respondent repays the sum of $8,000 which is the amount paid him to perform repairs and restore their 1967 VC Valiant Wagon. A further sum of the filing fee and towing costs of the vehicle was sought in the combined sum of $302.00. The total claim is $8,302.00. An order was made on 21/11/2011 granting leave to amend the claim to include the Second Applicant, Mr Biffone.
Mr Tye Scharenguivel (“Mr Scharenguivel”) filed a response on 11 May 2011 requesting an order that the tribunal dismiss the claim. Mr Scharenguivel is the owner and operator of the business trading as Queensland Valiant Spares and Restorations (“QVSR”).
Applicants’ Case
Ms Biffone appeared on behalf of her brother who could not be present at the tribunal but tendered an affidavit of Francesco Biffone of Randwick sworn on 17/11/2001, the contents of which were relied upon.
Ms Biffone alleges that on 5 April 2008 she and her brother obtained a quote[i] via email for the restoration of their Valiant Safari wagon. She said on 7 April she emailed Mr Scharenguivel again to consider other restoration options including the payment of a $1,000.00 deposit. She said at that stage he noted that the vehicle’s engine was working quite well and only required a simple service, there were no oil leaks found and that he would provide photos to Ms Biffone during the restoration process.
Ms Biffone said that on 9 April 2008 she emailed Mr Scharenguivel agreeing to proceed with a quote to restore the Biffone family vehicle. The quote was for “under $9000.00”. The vehicle had been owned by the Applicant’s father who was deceased and it was very precious and therefore sentimental to them. On 14/4/2008 a deposit was paid of $1,000.00.
Ms Biffone said that on 7 May 2008 she emailed Mr Scharenguivel asking for a progress report. The next day he requested a further payment of $1,000.00 for the panel beater. A payment of $1,000.00 was transferred by Mr Biffone. On 13 May 2008 Ms Biffone said she received some photos from Mr Scharenguivel relating to the restoration works and progress being made. On 23 May 2008 Ms Biffone said she was advised that the spray painting was almost finished and that the painting, rubber kits, labour costs, front bench seat repair and part the final amount would be approximately $3,500.00. On 29 May 2008 Ms Biffone states that Mr Scharenguivel advised that the vehicle respray was completed and was just “waiting interior to go in”. A request was made for payment for spray paint and rubbers. Ms Biffone said at this stage she requested invoices for the previous payments and an invoice for the current amount being requested.
Ms Biffone said that on 3 June 2008 she advised Mr Scharenguivel that a payment would be made by cheque. She said that he told her that until payment had been received he would work on other cars and that there was still further work to be done to their vehicle. On 4 June 2008 it is alleged that Mr Scharenguivel demanded that she pay quicker and unless payment was made he would charge a daily storage fee.
Ms Biffone said on the 17 June 2008 Mr Scharenguivel advised her that works have resumed to her vehicle. In addition that the dash required replacement due to rust and that the vehicle needed to be treated with “some kind of rust kill”. She said that she requested further photos of the vehicle. On 26 June Mr Scharenguivel requests payment for the rest repairs and oiling for $1,100.00. Ms Biffone stated that around this time she discovered that work had ceased on her vehicle due to “Tye Scharenguivel in a pay dispute with mechanic Lawrence “Truck” Humphries”.
Ms Biffone said that work proceeded on the vehicle including her “choosing burgundy seat belts, fitting tyres to mags, balance wheel & Prestastar Wheel centre caps, installation of guards, installing side chrome moulds, new door board for drivers door trim, painting dash instrument cluster, refitting of dash, some electrical work, refitting windscreen and getting engine started.”
On 8 August 2008 Ms Biffone said that Mr Scharenguivel emailed her stating that 99% of the work “will be done by the end of the following week.”
Ms Biffone said she paid a further amount on 13/8/2008 and Mr Scharenguivel reported to her on 18/8/2008 that there were a final few things that needed to be done to finalise the works.
Ms Biffone gave evidence that when she went to the workshop on 27 August 2008 she noted the following faults and problems:
a) That a tyre was bulging and looked unsafe, that the tyre had been fitted after the wheels had been balanced;
b) She questioned as to why the pentastar wheel centre caps were not fitted, was told they could not be fitted, despite having paid for them;
c) That the hole in the front guard was not rectified;
d) Was assured that the paint work on the vehicle would “buff up to a good standard”.
Ms Biffone claimed that the final invoice was emailed to her on 2/10/2008 and on 4/10/2008 she collected the vehicle. She said on this date she noted that the vehicle had “scratches to the paint work, hanging out wires, cutting material caked on the car and windows and that she was unable to open the front passenger door.” She said that she agreed to come back and collect the vehicle when everything was finished. She said she sent him a letter[ii] on 16/10/2008 requesting that all areas of unsatisfactory workmanship be rectified before collection. On 18/10/2008 Ms Biffone said she received an invoice via email[iii] from Mr Scharenguivel which states that if the vehicle was not removed from his premises that he would start charging a sum of $20 per day for storage fees. She stated that he told her that he could not assure her that the vehicle would be kept under cover and secure.
Ms Biffone stated that the problems with the vehicle included that the panel beating work was unsatisfactory. She said the whole body of the vehicle had evidence of excess and uneven use of bog. She said the paint work had an “orange peel effect” and there was overspray, runs and the paint work had a “gritty texture.”
Ms Biffone said that the front passenger guard was replaced and that the incorrect model part was used. She said this was evident and obvious to her as the new panel had an aerial hole in it and the previous panel did not. She said that her vehicle did not have a radio and therefore had no need for an aerial.
Ms Biffone claimed that the final price she paid to Mr Scharenguivel was more than the estimated quote and costs given to her and the repairs took far longer than originally stated to her. She said that she paid for two wheel alignments that “were invalid as the bushes require replacing” and that this work was unnecessary and should not have been done. She was also critical of the fact that Mr Scharenguivel was “inaccurate in his assessment of the restoration work and repairs to the vehicle”. She said he did not mention initially that the vehicle had oil leakage from the gearbox, engine and differential and that the wheel bushes required replacement. She also raised the fact that Mr Scharenguivel incorrectly fitted the dash warning lights back to front.
Ms Biffone provided to the tribunal 30 photos[iv] of the vehicle and evidence of the alleged defective paint works. A further 10 photos[v] were provided to the tribunal of further works in progress, including the respraying of the vehicle, the condition of the engine bay and before and after shots of the vehicle during the progress of the restoration works.
A further 6 photos[vi] of the vehicle were provided by Ms Biffone of various parts of the vehicle removed and being worked on. The photos depict the wheel rims, brakes and door parts and panels being individually sprayed. Various invoices were provided to the tribunal for various works undertaken to the vehicle. An invoice number 1685 dated 20/4/2008[vii] for the sum of $4,436.20 was provided. An updated invoice[viii] of the same number and same date was provided for the sum of $7,535.20.
Another invoice appears to be an amended version of the original dated 20/4/2008 in the sum of $9,469.20[ix]. A further invoice was provided to the tribunal with a final total of $12,636.38. The invoice reveals that Ms Biffone has paid the following sums:
1. $999.00 on 15/4/2008
2. $1,000.00 on 9/5/2008
3. $4,436.20 on 5/6/2008
4. $1,100.00 on 1/7/2008
5. $1,934.00 on 25/7/2008
6. $1,732.00 on 15/8/2008
7. TOTAL $ 11,201.38
Ms Biffone states that the invoice referred to an outstanding balance of $1,435.00 which was due and owing as at 23/8/2008. This final invoice listed all of the details of the work, including labour and parts used in the repairs to the vehicle.
Ms Biffone collected the vehicle on or around 28 October 2008. She had the vehicle towed to Viper Knock Shop for assessment and quote. She stated that the vehicle was then towed to RACQ Inspection Centre at Southport for assessment and then to her residence at Mermaid Beach. She said the vehicle was towed on three separate occasions and the invoices[x] for the towing costs were provided to the tribunal and form part of the claim.
Ms Biffone provided a voluminous bundle of emails to the tribunal as evidence in support of her case. She said the emails support her contention that the works to the vehicle took longer than she was told and that the price of the works exceeded the original quotation. She said the emails are also evidence of her specifically requesting that it be reported to her and her brother if any oil leaks were evident in the vehicle which they were told there were none. She said this was later to be incorrect and oil leaks were detected.
Ms Biffone provided to the tribunal an report[xi] prepared by RACQ dated 30/10/2008. The report was annexed to an affidavit[xii] of Mr Robert Collins from RACQ sworn on 20/7/2011. The report is a spot check undertaken on the vehicle at Mermaid Beach and was to report on “finish of body repairs”. She claims that the report supports her position that the vehicle has defective works and that the conclusion of the report is that the “Repairs and finish do not meet industry standards”.
Ms Biffone said that they had paid the final invoice in full but were only seeking refund of the amount of $8,000.00 for the painting of the vehicle as some of the other works that were performed and paid for were acceptable to her.
Ms Biffone stated that the letter of complaint sent to Mr Scharenguivel in October 2008 was in the first instance requiring rectification of the works by QVSR at their own cost. The letter also provides the option of them refunding monies to Ms and Mr Biffone in full. She said the offer has been ignored.
Ms Biffone stated that the vehicle was driven after November 2008 and that it “blew a water hose and water pump required replacing”. She said the vehicle was taken to Mermaid Mechanics and they detected:
a) “The oil warning light had been fitted back to front
b) That the vehicle was leaking a considerable amount of oil from under the engine and from other areas
c) The differential was very noisy and required repair
d) The wheel bushes require replacing hence making all wheel alignments invalid”.
Ms Biffone said she has paid for repairs to the vehicle since she collected it from Mr Scharenguivel and provided a tax invoice from Mermaid Motors dated 22/12/2011[xiii]. The invoice was for $2,439.00 and included works to gear box, steering coupling, engine mount, tyres and rear w/cylinders and the price was for mainly parts and labour of $680.00.
Ms Biffone provided to the tribunal a quotation[xiv] from West Burleigh Smash repairs dated 30/10/2009 to have the vehicle repainted. The cost of the quotation was $15,000.00.
Ms Biffone provided to the tribunal a signed statement[xv] from Mr Laurence Phillip Humphries (know as “Truck”) dated 19/7/2011. Truck said that he was the mechanic that worked on Ms Biffone’s vehicle. He said he met Mr Scharenguivel in 2001 when they were both working on the film “Inspector Gadget 2” from their Labrador workshop. He said that he was requested to do work to Ms Biffone’s vehicle in March 2008. He states that he was asked to do the quote for the work. He described the works as a “partial restoration”. He said he commenced working on the vehicle and later became aware that he knew Mr Franc and Mrs Vera Biffone from working with them in the film industry. He said he told Mr Scharenguivel this and it was considered a positive thing that he actually knew the owners of the vehicle. Truck’s statement provides some evidence about the works he did to the vehicle and that in his opinion the mechanical work should have been completed prior to the paint and panel working being done. Truck states that he no longer worked for Mr Scharenguivel. He states that he in fact referred Ms Biffone to another spray painter, Viper Knock shop, for an independent assessment of the paint work done by QVSR.
Truck said that after he finished working for QVSR that Mr Scharenguivel phoned him and said that Ms Biffone had sent to him a “list of faults regarding the restoration done on the Valiant.” He said that Mr Scharenguivel asked him to tell Mr Biffone that “she got her moneys worth and the paint & body work were to a good standard.” He said that he “wouldn’t do that ‘cause the paint and bodywork were not to a standard that it should be.”
Ms Biffone provided evidence to the tribunal in a letter[xvi] from Mr Gordon Barrington (undated) that alleged that Ms Biffone had asked him to inspect the vehicle and to have a “general look over the exterior work.” He said he went to QVSR on Saturday 11 October 2008. He states he noticed “a number of things that I (he) thought were unsatisfactory”. He said he raised those issues with Mr Scharenguivel. He claims that Mr Scharenguivel said “she hasn’t paid much, so she can’t expect much”. He said he heard Ms Biffone discuss issues with the vehicle with Mr Scharenguivel and that Mr Scharenguivel said that he said he would “have a good look over it and fix what I can”.
Respondent’s Case
Mr Scharenguivel is the owner of the business that trades as Queensland Valiant Spares & Restorations. He seeks orders from the tribunal that the claim should be dismissed. He claims to have completed all of the repairs and “tidy up” of the vehicle as contained in the contract between the parties, being the quotation of 7/4/2008.
Mr Scharenguivel stated that Ms Biffone approached him wanting to have some work done on her father’s VC Wagon. He said that she had told him that her father had passed away and that she wanted the car to be “tidied up”. He said that she wanted the car to “look better” and that he discussed with her a “tidying up of the car… there was never any suggestion that the car was being “restored”.” Mr Scharenguivel said he did not do the panel beating himself and that he talked with Ms Biffone and the owner of the panel beating business who were going to do all the rust repairs and spray painting. He said he recalled asking Ms Biffone what work she wanted done and what her budget was. He said she said that she had a budget of $8,000.00 and didn’t want to spend much more money than that. He said he overheard the panel beater tell Ms Biffone that he would do a “quick tidy up of the vehicle”, and that would be for “the outside only for just over $2,000.00”. He said he recalled that the panel beater told her what work he would do and that it would just be a “freshening up” of the old dull paint and that the “same colour” was to be used.
Mr Scharenguivel said that at that stage there was no mention of the vehicle being spray painted in the engine bay, inside the doors, the rear cargo area, dash frame, door jams, and top of the doors, lower sills and wheels. He said that Ms Biffone requested an estimate for the works and he agreed to send her a quote via email.
Mr Scharenguivel said that he sent a quote to Mr Biffone by email on 7 April 2008, the email quote presented to the tribunal on that date is agreed by the parties to be the quote price and includes the list of works to be performed. The quote provided for some works to be done that was yet to be priced and included a general quote for “other miscellaneous items of your choice, extra labour etc.???” The total quote price was for $8,844.00.
Mr Scharenguivel said that Ms Biffone knew a man called “Truck” Humphries who restored cars and it was agreed that Truck would work for Mr Scharenguivel to complete the work to her car. He said he considered the tidy up of the car would be very “basic” as there were a lot of areas around the vehicle that were not “going to be touched”. He said they included the engine, gearbox, suspension, roof lining, bumpers, lenses, tyres and polishing of the mag wheels. He said he provided in the quote other items of work that Ms Biffone might be interested in having done to the vehicle as he considered that although her budget was for $8,000.00 that the vehicle might look “unfinished” if some other things were not done. He said he quoted on extras like the re-chrome of the front and rear bumpers, to polish mag wheels and repairing the front seat and for new carpet.
Mr Scharenguivel said that he also advised Ms Biffone that it might be a good idea that the rear cargo rubbers be removed to see if there was any rust underneath and he said he quoted on replacing the cargo rubbers. He said he quoted on re-echoing the bumpers but Ms Biffone rejected that quote. He said that during the tidy up of the vehicle that Ms Biffone did agree to have the wheels polished, and the dash panel, inside the doors, the cargo area and inside the tail gate sprayed as well.
Mr Scharenguivel stated that during the works that Ms Biffone did agree with his suggestions to replace various parts of the vehicle with new parts and spraying inside the vehicle to make it look better. He said that all extra works were agreed to by Ms Biffone and that is why the cost of the works to the vehicle increased from the initial quoted price. He said that the original prices from the first quote did not increase at all and in fact some were actually cheaper than quoted.
Mr Scharenguivel alleges that Truck noticed that the original dash was very rusty and needed to be replaced as large rust holes were found under the front cowl area. He said that photos were taken of the rust area and sent by email to Ms Biffone and a copy was provided to the tribunal showing the condition of the vehicle and extent of the rust.
Mr Scharenguivel said that in the email of 7/4/2008 he sent to Mr Biffone he made it clear that the repairs they were doing to the vehicle were very basic and that they should add funds for additional items. He said that it was always made very clear to him that the budget was tight and only to $8,000.00, with very “little room to move.” He said he sent the quote to Mr Biffone but believed that he would be dealing with Ms Biffone overlooking the restoration as she lived on the Gold Coast and Mr Biffone did not. He said that Mr Biffone emailed him on 8/4/2008 stating that if the engine was running well to not do the servicing. He said he checked the radiator hose and there were not leaking and he thought they did not require replacement. He said that if the hoses and pump have blown up since the vehicle was collected from him, that it was not his fault and that he is not liable for such costs.
Mr Scharenguivel said he looked after Mr and Ms Biffone and during the works reduced his hourly rate to $25 per hour just so as to cover “Truck’s wages”. He said that he wanted to ‘sack’ “Truck” due to the fact he was not happy with his workmanship and found some work “substandard and slow”. He said that Mr and Ms Biffone knew that he wanted to sack Truck, yet they insisted that Truck work on their vehicle. He said that caused problems. He said that Mr Biffone was complaining about the costs having escalated so he reduced the hourly rate to assist them. He said that Truck was working slowly on the vehicle, that he made numerous mistakes and on “many occasions scratched the paint.” He stated that Ms Biffone saw the scratches and knew that Truck had done them and that the panel beater fixed them and did not charge her for them. He said that he was aware that the delivery date for the project was delayed, and he said that was because of Truck working so slowly and Mr and Ms Biffone’s insistence that Truck, and nobody else was to do the work to the vehicle.
Mr Scharenguivel said he knew a problem was developing in that getting close to the end of the works he found that as Mr and Mrs Biffone only wanted Truck to work on the vehicle but did not want to pay for his work. Truck was making mistakes and damaging the car and he said that the delays were causing him a loss as he was required to pay Truck’s wages but Mr and Mrs Biffone were not forthcoming in making payment to him. He said this caused further delays in finishing the vehicle which were directly caused and due to the actions of Mr and Ms Biffone. He stated that when they did not pay their invoice he stopped work. He refers to an email he sent to Mr Biffone on 4 June 2008 requesting payment be “quicker” as he had paid for parts and the panel beater and was “running out of money”. The email states that “your car is holding up other jobs, and I will have to start charging you a daily storage fee for lost income and the car sitting in the middle of the shop doing nothing”.
In a further email on 3 June 2008 to Mr Biffone, Mr Scharenguivel states, “The carpet and seats need to go in. We need to change the dash frame, as yours is rusty. The glove box can not be fixed. We are replacing it with a good frame. The rubbers, windows and windscreens need to go in, the disc brakes need to be installed. The engine needs to be tuned etc. We are working on other customers cars while we are waiting for more funds.” Mr Scharenguivel stated that any criticism by Mr and Ms Biffone relating to delays with works to the vehicle is unfair and unfounded as they directly caused delays themselves by making late payments of invoices. He said they were always informed that after the initial deposit of $1,000 was paid for the works to commence that subject to further regular invoices being raised and paid promptly that works would continue. He claimed that invoices were not paid on time and often delayed the works.
Mr Scharenguivel provided a summary to the tribunal in his response that stated that the works and sums there were relevant included:
“The initial quote was $8844.00
The shock absorbers, tie rod ends were not bought - $444.00
New quote price $8400.00Extra costs of parts agreed to be bought $1534.68
Lowered prices on parts from original quote $215.00
To repair rust and paint inside $1100.00
Extra labour $2070.00Including
·Fit new lenses
·Removal and fitting of mag wheels
·Remove front drum brakes, remove and fit master cylinder, fit disc brakes, brake callipers, brake hoses, wheel bearings, brake lines, brake booster, bleed brakes
·Fix broken door cards, and fit trim to board
·Remove distributor, vacuum advance unit, replace unit and fit distributor. Correct timing on engine
·Fit 40 door mould clips, and fit moulds to body.
·More work was done that is not mentioned. Including spare wheel cover board supplied and fitted, polishing of chrome around the car including bumpers, seat belt plates.”
Mr Scharenguivel said that the evidence provided to the tribunal from Truck should be considered in light of the fact that there was animosity between them as he had sacked him due to poor workmanship, that he was too slow and made many mistakes and caused damage to the Biffone’s vehicle.
Mr Scharenguivel disputes Ms Biffone’s allegation that he placed the wrong parts to the vehicle and in particular the guard. He said that the new guard he placed on the vehicle was from the same model but that the replacement guard he used did have a hole for a stereo antenna. He said the hole was a factory hole and for a vehicle fitted with a radio. He said that he agreed that Ms Biffone’s vehicle did not have a radio but he offered to install a blank aerial plug which is used on many vehicles to cover a hole where an aerial was. He said that Ms Biffone was not happy with that and wanted him to weld the hole shut and then to respray the guard. Mr Scharenguivel said that there was “no money in the quote to weld and respray a guard”. He said that such costs and works were not necessary.
Mr Scharenguivel said that any scratches to the vehicle were caused by Truck. He said that the panel beater did remove and repair the scratches at his own cost and that if there were still scratches to the vehicle that he was not responsible for them.
Mr Scharenguivel said that Ms Biffone was not happy with the paint work on the bonnet. He said he agreed with her and that he was not happy with the bonnet either. He said that the problem with the bonnet was due to the condition and the age of the car and not from bad repairs or painting. He stated that due to the fact that the body of the vehicle was not sanded back to bare metal, that the imperfections would always to some extent remain. He said that this was discussed with Ms Biffone originally when the quotation was first provided to her and that she understood the quality of the work that could be achieved by doing a “tidy up”. Mr Scharenguivel said that the “vehicle was not sanded back past the original primer paint and that if there were reactions in the paint it could be caused by rust in the body but not visible, previous repairs or painting and general age of the car.”
Mr Scharenguivel said that Ms Biffone provide quotations to the tribunal stating that a quote to paint the vehicle was $15,000.00. He said that was supportive of what he was alleging in that the total price he quoted and was paid for painting the vehicle was $3,500.00. He said that if Ms Biffone has wanted to paint the vehicle by taking it back to bare metal and then respraying the entire body that he could have arranged for it to be done for the same price of $15,000.00. He said that in his opinion, the issue in dispute was that Ms Biffone requested a tidy up, she had a strict budget, and she was given a quotation of $3,500 for the paint works and accepted and agreed to that price and scope of works and was now not happy with the quality of the tidy up paint job. He said for her to now claim a refund of the full $8,000 was unfair as the paint works were only some $3,500 of the total amount of $12,636.38 that she had paid. He claims that if Ms Biffone had wanted a total respray at the beginning it would have been quoted. He said to now seek the full refund of $8,000 for the quoted price is unreasonable as the quote of $8,000 included other works other than painting. He said that the costs were for other additional extras that were requested by the Biffones and performed on their vehicle.
Mr Scharenguivel stated that the other complaints made by Ms Biffone relating to minor problems with a bulging tyre and issues with the centre caps are minor and not his fault. He said these minor issues have been raised to defer from the real issues. He said that if there was a bulging tyre, he did not know about it and if so it would be to the original tyre and not a new one. He said he did not know if another tyre was purchased or replaced and he had nothing to do with that. He stated that in his opinion the painting works to the vehicle were adequate, that she got what she had requested and paid for, and that for the price the paintworks and body of the vehicle were buffed up to a good finish.
Mr Scharenguivel did agree there were some slight issues with overspray but they were so minor and difficult to see it required a detailed scrutiny of the vehicle to see them. He said that the overspray issue was not a reasonable excuse to require a reimbursement of a payment of $8,000.00.
Mr Scharenguivel said that in his opinion, Ms Biffone was only prepared to pay for a “tidy up” of the vehicle and to pay a budget price paint job of $3,500 but expected a “show quality paintwork” job that would usually cost $15,000.00. He said that at no time did he ever believe that Ms Biffone could afford a back to bare metal respray and never requested or discussed that with him. He said that their total budget for paint and repairs was $8,000.00 and a bare metal respray would never have been able to be achieved with that budget.
Mr Scharenguivel stated that Ms Biffone demanded many repairs and things fixed with the paint works. He said the panel beater did them all at no cost and tried to appease Ms Biffone. He said she often demanded things be done again that were not necessary. He said that often things were done again where they looked no better or were largely unchanged, but the finish was due to the fact of the age and condition of the vehicle. He said that despite the age and condition of the vehicle she demanded everything be changed for free. He said that Ms Biffone claims that there were imperfect finishes in the doors of the vehicle. He said that the initial quote was to not paint inside the doors and it was an extra at his suggestion. He said that having new paint on the outside of the doors made the inside look incomplete. He said they were sprayed with the doors still on and it was just a “touch up”. He said that Ms Biffone now claims that the work is not done properly and without her approval. He said that is not correct and that all extra works were approved by her. Mr Scharenguivel stated that to do the car doors properly the doors should have been taken off, stripped down to a shell, had the door trims, handles, arm rests, winder and glass removed and then sandblasted each piece. He said that they would need to be primed and then the bailey channels and locks removed to have done a perfect job. He said Ms Biffone would not have agreed to that as the cost would be approximately $1,000 per door and their “budget” would never have permitted this.
Mr Scharenguivel said that Ms Biffone complained about the badges on the vehicle being broken. He said she demanded they be reattached. He said that the badges on the vehicle were held on with double sided mounting tape instead of two pins when the vehicle was brought to him. He said the other badges were badly pitted, dull and damaged. He said it was difficult to repair them. He said he suggested to her to buy new ones. He said he told Ms Biffone that it would cost more than twice the cost to fix up old ones than to buy new ones and that often the repairs were unsuccessful.
Mr Scharenguivel said that Ms Biffone’s complaint that the paintwork looks pitted, and looked like “orange peel”, was uneven, patchy, and has imperfections is exaggerated. He said that in his opinion, taking into account the age and condition of the vehicle and for the cost she has paid for the paint work, that the “paint looks great”. He said he agreed it is not like a brand new car but the paint work is satisfactory. He said it required you to look very closely before you can see slight imperfections.
Mr Scharenguivel said he spoke to the owner of Budds Classic Restorations who inspected the vehicle and they told him that “the paint was satisfactory for the work completed, and the price paid”. He said he wanted to have the vehicle inspected by another panel beater before the vehicle left his yard but did not get the opportunity to do so when the vehicle was towed from the property by Ms Biffone.
Mr Scharenguivel said the report from RACQ was not conclusive evidence that the works were defective. He said that the report states that “the repairs and finish do not meet industry standards”. He said that he was not aware of any industry standards relating to the painting of a second hand vehicle when consideration must be given to the fact that the paint works were performed for $3,500 and not a total back to bare metal repaint that would have cost some $15,000.00. Mr Scharenguivel was critical of the report and stated that the report was performed from a “spot check” and was therefore not thorough. He suggested that the report was defective and questioned as to the appropriate industry standards that would apply to this job, as if it cost $15,000.00 to make a paint job to industry standards, how could a $3,500 job be properly assessed against industry standards.
He said Ms Biffone complained that the water pump blew due to radiator hoses failing and had to be replaced at enormous costs. Mr Scharenguivel said that he never replaced those times and there is no warranty as those works were not done by him. He said that if there were problems with the water pump and hoses that this was a general maintenance issue and that he was not liable for these repairs. He said that all the parts in the vehicle are in need of repair or replacement and that these are costly works. He said that he told the Biffones that if they had a larger budget then more works could be done to get the vehicle completed and to have the vehicle looking good. He said that Ms Biffone did not request those works to be performed by him and that the costs to get the vehicle back on the road, and roadworthy, required a lot more work and expense for the Biffone family which he believed they could not afford.
Mr Scharenguivel said that for Ms Biffone to demand a full refund of $8,000 fails to acknowledge all the other repairs and work that he did on the vehicle besides the paint works. He said he sourced new and second hand parts and fitted them, arranged repairs to the seats, installed carpet and other works that do not appear to be alleged to be defective or complained about. He said he spent a lot of time which he was not paid for and that the demand for a refund does not include the cost of painting the engine bay, which he said, appears to have been done satisfactorily.
Mr Scharenguivel stated that if Ms Biffone had wanted a back to bare metal respray of the vehicle plus have all the car works and repairs completed that were needed to be done, that the budget would have needed to be approximately $25,000.00. He gave evidence that this would be the usual cost of a complete restoration of a similar vehicle in a similar condition with a complete respray by sanding the paint off back to bare metal.
Mr Scharenguivel said in the painting of the vehicle that other areas were painted and not charged for. As an example he said that the wheel arches and underneath the sills were resprayed even though they were not part of the original quote. He said this was demanded by Ms Biffone and he said this was a ludicrous request as you could not even see those areas of unpainted metal unless you lay on the ground and looked under the car or if it was on a hoist.
Mr Scharenguivel claimed in his defence that as Ms Biffone had a very small and limited budget that it was agreed, and she accepted, that the vehicle would only be sanded back to “enough for the new top coat to attach itself properly”. He stated in response to the photos provided to the tribunal by Ms Biffone that, when the repairs were done the sections were sanded back enough to finish the repairs, that the engine, radiator, manifolds were not removed from the engine bay to be tidied up, that the engine and parts were “covered or taped to reduce the chances of overspray”. He said that the “wheels stayed on for the respray and from the photos “the car was stripped as much as possible, we tried very hard to make the car look as tidy as possible when completed, there is a lot of work done that was not quoted, or charged to Vera [Mrs Biffone]”. He further claimed that “Vera’s budget was not big enough to do a full bare body respray, so we just did as much as we could with her budget and she was happy with that at the time.”
Mr Scharenguivel claimed that he replaced the tail gate with another part that was 40 years old but in a better condition. He said the price Ms Biffone paid would indicate it was not a new part and not in perfect condition, but it was better than the original one on Ms Biffone’s vehicle. He stated that some of the photos allegedly showing marks or damage to the roof of the vehicle were not clear and did not adequately show the location on the vehicle. He said that the marks could have been caused by “hail, rock or branch”. He said that the photo of the poor bogging under the window was not clear and that while the rubbers looked to be original as they were crazed and cracked. He stated that the rubbers around the window had shrunk; he said that he quoted for the windows to be removed and strongly recommended to Ms Biffone that they were. He referred to an email of 8 April 2008 to support that contention. He said that Ms Biffone had advised him that the “cost was out of...price range” and that Ms Biffone “refused to have them removed”. Mr Scharenguivel said that even if he had removed the windows and replaced the rubbers it would not be able to be fixed 100% due to the “moisture build up and the shrunken locking strip.” He said that for Ms Biffone to now complain about the rubbers is unfair as she was given the opportunity to replace them, to make them look better, but she refused to do so due to the “cost”.
Mr Scharenguivel said that he agreed that the paint work was not perfect and he agreed that there were some “minor signs of imperfections under the paint…as it were not a bare metal respray.” He said that the vehicle was resprayed and that the imperfections occur because the new paint sometimes reacts to the original undercoat on the vehicle. He said this paint type used on a Valiant in the 1960s is different to the paint available today… “that the car itself is at fault and not the new paint or the painter”. He alleged that there was not warranty on this repair as if the repair was to be done properly, the body of the vehicle would have had to be taken back to bare metal and the cost would have been around $15,000.00. He said if Ms Biffone had indicated that she had wanted a showroom finish he would have quoted for that accordingly. He said Ms Biffone had a limited budget and that as she only wanted a “tidy up” and to spend $3,500.00 on the paint works that a back to bare metal paint finish was impossible on her limited budget.
Findings
I am satisfied and find that the total quoted price of the Valiant works was for the sum of $8,844.00 dated 7 April 2008. I find that the quotation was for limited works and that the quote included potentially other works to be performed that were not quantified or estimated. For example the quote states “LHS front brake grabbing – need to replace worn parts, or fit disc brakes – to be priced”. The quote also states for “other miscellaneous items of your choice, extra labour etc. ????”. I find that the quotation was to some extent an estimate of particular works to be done with the possibility of other works to be performed to the vehicle, once works commenced and depending on the condition of the vehicle and any faults or problems that were discovered as the works progressed.
I find that the total price included in the quotation for the painting of the vehicle was $2,100.00. The quote stated to “repair and respray outside of car, in 2 pac white – using body filler 2100.” I find that the price quoted for the vehicle was not for a thorough back to bare metal respray and that it was only for a minor “tidy-up”.
I find that Ms Biffone and her brother did approve and pay for other works and repairs to be performed to the vehicle. I find that Mr Scharenguivel did take photos and email them to Ms Biffone advising the progress of the repairs, recommending undertaking further works and repairs and giving estimate prices of the works. For example, in an email Mr Biffone stated to Mr Scharenguivel “OK I take your advice on the disc brakes, so go ahead with those for the front…I agree with welding rust sections and making the car and the repairs last.” Mr Scharenguivel emailed Mr Biffone advising him that “the engine seems to run quite well, so a simple service might be all it needs.” Mr Scharenguivel advised Mr Biffone on 3 June 2008 that “the carpet and seats need to go in. We need to change the dash frame, as yours is rusty. The glove box cannot be fixed.” I find that Mr and Ms Biffone were sent emails about further works and they approved them to be done and paid for all extra works.
Mr Scharenguivel did perform the works to the vehicle as contained in the quotation and other works that were both orally and agreed to in emails between the parties. Ms Biffone claimed that the works and repairs were not done to a standard that she found acceptable. She relied upon the report from the RACQ that stated that the repairs and finish do not “meet industry standards”. However, no evidence was provided to the tribunal to indicate what industry standards would apply to a tidy up paint job to a vehicle manufactured in 1967 and some 45 years old. I place little weight on the evidence of the RACQ Inspector, Mr Collins, as he did not appear and give evidence in person, he could not therefore be cross examined and have his evidence tested. Mr Collins provided a report but it appears his opinion is based on a spot check and that he spent little time inspecting the vehicle as the total cost of his report, which is indicated in the report[xvii], was $40.00. Mr Collins also does not disclose as to whether he found the repairs and finish as not meeting industry standards and if he knew that the paint job was a “tidy up” for the cost of approximately $3,500 and not a back to metal respray that would have cost $15,000.00 or more. I was not presented with any evidence that would support the report’s assertions that the paint works did not meet industry standards and I am unsure if such a position would render the vehicle unroadworthy. I find that the paint works would not be a factor alone that would make a vehicle unroadworthy. I find that the evidence of the RACQ inspector was of little use to the tribunal in assisting me to determine the matter.
Ms Biffone is claiming that Mr Scharenguivel should reimburse her the total sum of $8,302.00 which includes $8,000.00 reimbursed for the repairs and works, a filing fee and towing costs. The claim for $8,000.00 is not justified or particularised as to why the sum of $8,000.00 is sought from a total payment of $12,636.38 made to Mr Scharenguivel. Ms Biffone claims to be unhappy with the quality of the painting of the vehicle, yet that part of the quote and works is limited to a sum of $3,500.00. She complains about the quality of other works but has not particularised what actual work that he performed that she is unhappy with and what particular sums should be reimbursed due to alleged faulty work or poor quality of workmanship. It appears that Ms Biffone has just estimated a sum of $8000.00 to be refunded to her without clear and precise evidence as to how that sum is justified. Ms Biffone alleges that the cost of having to respray the vehicle is going to cost in the vicinity of $15,000.00. I find that this is not a consideration that I should be concerned with in this case. The fact that Ms Biffone may now have realised that a “tidy up” of the paint work was not going to satisfy her as to the quality of paint finish to the vehicle does not justify of itself a claim against Mr Scharenguivel to reimburse her for the monies to have the vehicle repainted again. This might be a case where Mr and Ms Biffone may have regretted skimping on the paint works to the vehicle and now seek to have the vehicle repainted with a back to bare metal sand and paint. This will certainly provide a superior finish and will cost them a significant amount of money, far more than the amount initially quoted by Mr Scharenguivel for $2,100.00. I am not satisfied that Mr and Ms Biffone have provided sufficient evidence that supports their allegations that Mr Scharenguivel has not restored the vehicle to the “agreed standard’ and that the vehicle is not now at an “industry standard”. There was no evidence that there are industry standards for paint works to second hand, very old vehicles, and for vehicles that are repainted and restored. The quality of the paint works to any vehicle will often depend upon the amount of work in preparation of the surface, which is in direct correlation to the amount of money spent. There was no evidence that the painting works and repairs had caused the vehicle to be unroadworthy. In fact Ms Biffone gave evidence that she had driven the vehicle on public roads after collecting it from the premises of Mr Scharenguivel. There was no evidence that there were any “agreed standard’ of the repairs of works, as nothing appeared in the quotation about “standard” of work and Ms Biffone did not give any evidence as to whether there were actual agreed terms or conditions, either oral or in writing, relating to the quality or standard of repairs. It may be that Ms Biffone had in her mind a quality of repairs and painting that vastly differed from that of Mr Scharenguivel. Ms Biffone expected a better finish to the paint works and Mr Scharenguivel said he advised Ms Biffone that a “tidy up” was all that he could do with such limited a budget. I accept the evidence of Mr Scharenguivel that Ms and Mr Biffone were on a strict budget as numerous emails referred to costs, and difficulties with making prompt payment of invoices, as finances were a consideration while undertaking the repairs and paint works.
It is difficult in these type of cases to determine if a particular replacement part is sufficient as in the repairs and restoration of a vehicle manufactured in 1967 it is likely impossible to source new parts and restorations rely on good quality second hand parts. Mr Scharenguivel gave evidence, and I accept that the parts he replaced in the vehicle were in better condition than the parts he replaced. I also accept Mr Scharenguivel‘s evidence that when he could not source parts he repaired other items and parts as best he could in all the circumstances, importantly, within the budget allocated to him to undertake the repairs and “tidy up” of the vehicle. I accept the evidence of Mr Scharenguivel that if he had a budget of $30,000.000 he could have performed a major restoration of the vehicle, he could have performed a back to bare metal respray of the paint works and the vehicle would have been near “show room” quality if such a budget had been allocated. I accept his evidence that he did the best job he could with such a limited budget, specifically allowing $3,500.00 for painting and approximately another $9,000.00 for all the other repairs that included new front brake flex hoses, installed new front windscreen, provided two new tyres, installed door card, installed new carpet, welding and removal of rust, repairs and resprung vinyl seats, replacing new guard, new rubber kit, installed new front disc brakes, remote brake booster installed and rust proofed dash, doors panels and top of doors and resprayed, tailgate skin, replacing rubbers, seals and weather strips, tail gate seals, installing 6 new seatbelts, brake light lenses, polished mag wheels, overhauled master cylinder, fitted types and balanced wheels, installed distributor vacuum advance unit, and other miscellaneous works.
Mr and Ms Biffone claim that the sum of $8,000 should be reimbursed to them for many reasons, not just the paint works. I do not accept that the delays in the works were solely caused by Mr Scharenguivel as the evidence supports the fact that some delays were caused by the Biffones’ late payment of invoices. The Biffones were critical of Mr Scharenguivel for the vehicle developing problems with an oil leak, and work to the gear box, steering coupling, engine mount, tyres and rear w/cylinders yet he did not work on those areas of the vehicle. They said they asked Mr Scharenguivel to check for oil leaks and other problems and he gave evidence and stated that he did and that there were no other problems evident. I accept that and it is not fair for the Biffones’ claim that other problems that developed with the vehicle after leaving the workshop are the responsibility of Mr Scharenguivel if he did not do any of the work. The complaint by the Biffones that the vehicle had rough bog work, paint overspray, that a type was bulging and that the oil warning light had been fitted back to front are all matters that Mr Scharenguivel stated were minor, and a diversion, or not his responsibility. He said that the tyre was the original tyre and it was not his problem if it bulged. He said the overspray was slight and nit picking as in his opinion the paint works were good. I accept the evidence of Mr Scharenguivel that these are all minor matters and do not justify the reimbursement of the amount sought by the Biffones. In this case the Biffones are the applicants to the claim and the onus is on them to provide sufficient evidence to the tribunal that supports their claim and an order that Mr Scharenguivel refund to them the sum of $8,000.00 from the funds paid to him for the vehicle repairs and works. I find that Mr and Ms Biffone have not provided sufficient evidence that supports their contentions and claim for a refund and that their claim must therefore fail.
Considering all of the evidence of the parties and having carefully considered the content of all the voluminous exhibits provided to the tribunal and for the reasons set out above I make the following decision and order as follows.
ORDER
THAT the Claim is dismissed.
[i] Exhibit A.
[ii] Exhibit L.
[iii] Exhibit M.
[iv] Exhibit X.
[v] Exhibit B.
[vi] Exhibit D.
[vii] Exhibit C.
[viii] Exhibit E.
[ix] Exhibit F.
[x] Exhibits Q(i)(ii) and (iii).
[xi] Exhibit R.
[xii] Exhibit 1.
[xiii] Exhibit 5.
[xiv] Exhibit V.
[xv] Exhibit 2.
[xvi] Exhibit 4.
[xvii] Exhibit R.
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