Browne v Iservice Vans - [2023] QCATA 82

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Browne v Iservice Vans [2023] QCATA 82

PARTIES:

JASON BROWNE

(applicant/appellant)

v

ISERVICE VANS

(respondent)

APPLICATION NO/S:

APL133-22

ORIGINATING APPLICATION NO/S:

MCD621-2021

MATTER TYPE:

Appeals

DELIVERED ON:

3 July 2023

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Richard Oliver

ORDERS:

Leave to appeal is refused

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – where applicant engaged he respondent to carry out repairs on his vehicle – where engine overheating – where repairs carried out but the overheating problem not fixed – where third party engaged to determine cause of overheating – where problem subsequently identified but not addressed by the respondent – whether the payments to the respondent for the work done was reasonable – whether applicant entitled to any refund for money paid when overheating issue not fixed

Queensland Civil and Administrative Tribunal Act 2009 s 142(3)(a)(i)

Rintoul v State of Queensland & Ors [2018] QCA 20

Robinson Helicopter Company Incorporated v McDermott [2016] HCA 22,

Terera & Anor v Clifford [2017] QCA 181.

APPEARANCES & REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

Mr Browne appeals the decision of the Tribunal, in the minor civil disputes jurisdiction, dismissing his claim against Iservice Vans for damages as a result of repair work carried out on his 2011 Volkswagen Transporter Van. He had paid Iservice about $10,000 for repair work to prevent the engine from overheating after a couple of hours running. It seems the problem arose after a previous mechanic had put an additive, Chem-i-Weld, into the cooling system which is supposed to seal cracks in the engine to stop it from overheating. It didn’t work so he took the vehicle to Iservice to try and solve the problem.
There were initial discussions between Mr Browne and Mr Budini of Iservice about the overheating issues and although there was no immediate solution, a trial and error process was agreed upon. This started with the removal and testing the engine head. It was sent to a specialist machinist used by Iservice and it was found that the head was cracked and had to be replaced. Mr Browne agreed to this. Then the radiator was replaced because the remnants of the additive were still in the system. Further work was undertaken, continually trying to remove the additive, which also involved replacement of further parts, such as the water pump.
When the fault could not be resolved, Mr Browne sent a lengthy email to Mr Budini which sets out the chronology of events, from his perspective, and the payments he had made to Iservice for the work done. He was clearly dissatisfied with the work undertaken by Iservice.
Ultimately, he commenced the proceeding in the Tribunal where he sought general relief. This included a return of the vehicle because he…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Browne v Iservice Vans

Details

AGLC: Browne v Iservice Vans [2023] QCATA 82
Case: [2023] QCATA 82
Decision Date: 3 July 2023

CaseChat Overview and Summary

The applicant, Browne, brought an action against Iservice Vans, alleging that the respondent had failed to fix an overheating issue with the applicant’s vehicle despite carrying out repairs. After the respondent had performed the repairs, the vehicle continued to overheat. The applicant engaged a third party to determine the cause of the overheating, who identified the problem but the respondent did not address it. The applicant paid for the repairs but sought a refund of some or all of that payment, arguing that it was not reasonable given the respondent’s failure to address the overheating issue. The primary judge dismissed the applicant’s claim and the applicant now sought leave to appeal that decision.

The key issues for the Court were whether the respondent’s failure to address the overheating issue rendered the payments unreasonable and whether the applicant was entitled to a refund. The Court needed to determine whether the respondent had discharged the onus of proving that the payments were reasonable and whether the applicant had demonstrated that the payments were not reasonable. The Court also needed to consider whether the applicant had a right to appeal the primary judge’s decision.

The Court held that the primary judge had correctly found that the respondent had discharged the onus of proving that the payments were reasonable. The Court found that the primary judge had considered all relevant factors, including the complexity of the issue, the amount of time spent on the repairs, and the respondent’s efforts to address the problem. The Court held that the primary judge’s findings were not unreasonable and that the applicant had not demonstrated that the payments were unreasonable. The Court also held that the applicant did not have a right to appeal the primary judge’s decision as it did not identify any error of law or fact that would warrant an appeal. Accordingly, the Court refused leave to appeal.

Orders

Orders of the court

Leave to appeal is refused

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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