Flavio and Sons Civil Pty Ltd v Commercial Industrial Brake and Mechanical Service - [2015] SADC 53

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Minor Civil Review)
FLAVIO AND SONS CIVIL PTY LTD v COMMERCIAL INDUSTRIAL BRAKE AND MECHANICAL SERVICE
[2015] SADC 53
Judgment of His Honour Judge Tilmouth
1 April 2015
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES
Review from a judgment given in a minor civil action allowed to the limited extent of reducing the judgment sum by $1,080 to $29,091.62. The orders and decisions of the Magistrate are otherwise affirmed
Magistrates Court Act 1991 (SA) s 38(5), referred to.

FLAVIO AND SONS CIVIL PTY LTD v COMMERCIAL INDUSTRIAL BRAKE AND MECHANICAL SERVICE
[2015] SADC 53

This is an application for the review of a decision of a Magistrate given on 25 November 2011, sitting in the Minor Civil jurisdiction at the Holden Hill Magistrates Court.
Judgment was given in favour of the respondent, Commercial Industrial Brake & Mechanical Services Pty Ltd (CIBMS) against the plaintiff, Flavio & Sons Civil (Flavio) in the sum of $30,171.62 including filing fees. That sum represents a combined claim with respect to repairs by CIBMS of two trucks owned by Flavio.
The first concerned a separate action including a claim of $4,435.79 plus GST for repairs to a Volvo FL10, for air leaks in the rear brakes. A component of this was $2,160 for labour, calculated from mechanics daily timesheets of 28.5 hours at the rate of $120 per hour. The average standard industry rate appears to be closer to $100 per hour. This was reduced to 18 hours to achieve what CIBMS regarded as ‘a fair and reasonable cost’.
The complaint of Flavio relates to the hourly rate charged and the overall time taken to effect the repairs. The Magistrate accepted the work was carried out at the request of Flavio and that the time charged was reasonable, as were the costs of parts used in the repairs, for which there was a mark up of somewhere between 25 per cent and 50 per cent. According to the evidence this was depending on the circumstances and the parts involved, an industry standard. The judgment given by the Magistrate totalled $5,040.62, including court filing fees.
On review, Flavio presented an invoice rendered by G&C Automotive Services Pty Ltd for work carried out later on the Volvo, with respect the replacement of an air compressor and other items said to have arisen because of inadequate repair carried out in the first place by CIBMS. This was for a total of $6,300.00, but it also contained charges for a number of unrelated items. The argument presented on review was that the air compressor should have been replaced by CIBMS, and if it had the later additional charges amounting about $1,770, would not have been incurred.
Evidence was called on the review at the instigation of Flavio from Mr Ciccocioppo, a mechanic with G&C Automotive Services. He was responsible for undertaking the work to which the above invoice related and which took place after the decision of the Magistrate was handed down. He considered the air dryer to have been fitted appropriately by CIBMS, however that the labour component for fitting the air compressor, should only have been about $400-$500, or ‘four, five hours depending on who is doing the job’. He considered the 13 hours actually charged by CIBMS to be ‘probably a little bit’ excessive or double what he would have expected. Nevertheless, given that the system was cleaned by CIBMS and that there was no indication of oil coming from the compressor, his view was that it was reasonable not to have replaced the compressor earlier and to ‘review what the air filter of the air dryer was doing’ in the meantime.
Based on this evidence, the assumption that the air compressor should have been replaced earlier cannot be substantiated. On the other hand, the charge of $2,160 by CIBMS for labour of 13 hours on the job was excessive on this evidence, so that it should be reduced by half to $1,080.
The second action to which the review relates, concerns a second invoice rendered by CIBMS of $25,131, for repairs to an International truck. The vehicle was brought in for repair because of noise emanating from the drive train under the drivers’ cab. Mr Anfiteatro, the principle of Flavio, had expressed concern as to the manner in which the vehicle had been driven by one of his employees. Evidence was taken before the Magistrate from the mechanic employed by CIBMS, who said he took it for a test drive and diagnosed the problem as coming from the gear box. This evidence was confirmed by that of a senior mechanic with Flavio, who recommended the frontal and rear differentials be drained to enable oil testing. However he also detected noises that led him to believe the noise was coming from the gear box.
It is not surprising in the circumstances, that the attention was focussed on the gear box. When it was brought in, Mr Flavio instructed CIBMS to ‘have a look at the gear box … at the clutch and the associated areas’. According to the evidence of Mr Papa, the service advisor to CIBMS and a qualified mechanic, who was called for the first time on review, the job card prepared at the time Mr Flavio came in read ‘attend to gear box’ in the section ‘customer’s instructions’. Mr Papa said an examination of the gear box indicated it had a broken tooth. His opinion was that although it may have been functioning reasonably well, this was consistent with internal damage.
After yet another test drive, a different noise with a different pitch was detected coming from the rear of the truck. After some difficulty, eventually a diagnosis was made tracing the noise to the rear differential, which was found to have two broken teeth from the crown wheel. This was despite the fact that the oil drained from the rear differential was clean; the broken teeth appeared to be ‘a clean break’.
It does appear that there were multiple problems with this truck. As it turned the correct diagnosis of the problem took a good deal of time and expense before the underlying fault was finally identified.
In light of this evidence, the Magistrate reasoned at [15]:
Had there been nothing found in relation to the gear box and the rear differential then I would tend to agree with Mr Anfiteatro’s assessment. In this case however, there was clear evidence of damage to the gear box which quite reasonably could have been thought to be the cause of the problem. Equally there was evidence to suggest it was the front differential. There is photographic evidence of all the damage and I accept the evidence of both mechanics. In particular, Mr Bourne was an impressive witness who had clearly given the matter thought. I did not get the impression that he was giving his evidence with a view to ensuring that he said what his employer wanted him to say.
The Magistrate accepted that Mr Anfiteatro was kept informed of the issues and was given options at each stage to have the vehicle repaired or otherwise. Having heard his evidence her Honour concluded that her ‘impression’ was that his primary concern was to have the vehicle fixed and that he authorised the repair work to be carried out at all stages, knowing that he would be charged at the CIBMS’s usual rate.
To this point, once again, no error is exposed in the approach taken by her Honour. It was the case for Flavio on review that money could have been saved if the rear differential were changed first, but this is approaching the matter very much from the benefit of hindsight. The evidence of Mr Papa was that he obtained express approval to proceed with the gear box by telephone on 14 February 2014 at 11.15am, which he duly noted on the job card. That evidence connects with the earlier related evidence that Flavio had expressly instructed CIBMS to look at the gear box. At each stage, a quote was prepared and express approval obtained from Flavio before proceeding. Even though the dated manual based job card contained a space for the signature of the owner to be countersigned to express such approvals, the evidence was that these had fallen into disuse for some considerable time.
In the result, the application for review must for the greater part be dismissed. Given the ‘fresh’ evidence in relation to the repair to the Volvo as outlined above, the labour charged was too much, so that ought to be reduced according to the estimate given by Mr Ciccocioppo that it would have taken four to five hours, so the judgment sum in respect of the Volvo will be reduced to the extent of $1,080, to $3,960.62. There will be no order as to costs of the appeal: s 38(5) Magistrates Court Act 1991 (SA).
The decision of the Magistrate is otherwise affirmed so that the combined judgment is in the sum of $29,091.62.