Focus Logistics Pty Ltd v AP Eagers Pty Ltd t/as Austral Volkswagen - [2015] QCAT 499

CITATION:

Focus Logistics Pty Ltd v AP Eagers Pty Ltd t/as Austral Volkswagen & Anor [2015] QCAT 499

PARTIES:	Focus Logistics Pty Ltd (Applicant)
v
AP Eagers Pty Ltd t/as Austral Volkswagen David Easlea and Christine Easlea t/as Dynamic Autocare Plus (Respondent)

APPLICATION NUMBER:

MCDO923-15

MATTER TYPE:

Other minor civil dispute matters

HEARING DATE:

28 August 2015

HEARD AT:

Brisbane

DECISION OF:

Adjudicator Bertelsen

DELIVERED ON:

27 November 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The Respondents David Easlea and Christine Easle t/as Dynamic Auto Plus pay to the Applicant the sum of $22,633.80.

CATCHWORDS:

Installation of engine timing belt – defective installation – rectification of timing belt mistiming – extent of rectification work required – whether crankshaft pulley retaining bolts formed part of necessary rectification work

APPEARANCES:

APPLICANT:

John Morris, Director

RESPONDENT:

Joseph Twohill, Dealer Principal
Kevin Hope, Workshop Foreman

REASONS FOR DECISION
Application

By application filed 4 May 2015 the Applicant Focus Logistics Pty Ltd (‘Focus’) claims the sum of $22,339.20 being the quoted cost of replacement of the motor in a 2009 VW Crafter Van (‘the vehicle’) from one or both of AP Eagers Pty Ltd t/as Austral Volkswagen (‘AW’) and David and Christine Easlea t/as Dynamic Autocare Plus (‘DAP’) arising out of the complete breakdown of the motor due to failure to properly install and / or make properly functional a change of timing belt.

Background and evidence

On about 4 December 2014 Focus presented its vehicle to DAP for service and timing belt replacement. That work it seemed was carried out and paid for. Thereafter, the vehicle was driven in the period following through to 21 January 2015. On or about that date Focus returned the vehicle to DAP’s workshop. The engine warning light was on and there was a rattle from the engine. The warning light issue was fixed, the rattle persisted.
DAP’s Mr Easlea being unable to identify the cause of the rattle told Focus’ Mr Morris to take the vehicle to a VW dealer.
Focus presented the vehicle to AW on 16 February 2015 to solve the rattle problem which was ongoing. AW had never previously serviced the vehicle and was notified that the timing belt had been changed some ten weeks prior. It asserted the scope of its brief was to diagnose the cause of the sound coming from the engine; that the rattle ‘was coming from the camshaft / cylinder head area in the top of the engine’; that when checked it was found that the timing belt was incorrectly set by possibly half a tooth; that even a very minor incorrect setting of the timing belt could lead to vibration / rattling; that only the use of genuine Volkswagen alignment tools would ensure correct resetting of camshaft timing. AW contended that permission was obtained from Mr Morris of Focus to reset the timing, that when the timing was reset the rattling disappeared immediately; that such was confirmed by the mechanic who worked on the vehicle as well as the quality checker road testing the vehicle. AW asserted that at no time was it instructed to review or re-perform all of or even the balance of DAP’s work.
AW’s work to reset the timing was conducted in the top of the engine. It contended there was not even direct vision to the bottom of the engine which was where it contended that the second area of the faulty workmanship on the part of DAP was later found to have occurred. AW stated that incorrectly set timing was not a symptom of a larger mechanical problem, particularly where the rattle complained of ceased upon resetting the timing.
Mr Easlea argued through his insurers loss assessors Emerald Assessing Services Pty Ltd (‘Emerald’) that DAP set the belt timing correctly, that its only mistake was not to tighten the crankshaft pulley retaining bolts sufficiently, and that whilst it was ‘recommended by VW to replace the one use stretch bolts, stretch bolts have been reused on numerous occasions without incident.’ Emerald went on to state, however, ‘there is no denying that Dynamic Autocare should have replaced the crankshaft pulley retaining bolts.’
On 20 February 2015 AW issued its invoice for $1,581.50. It included resetting the engine timing correctly and checking the engine for faults. Mr Easlea admitted liability for the inspection and work carried out by AW in mid-February 2015 and reflected in its invoice of 20 February for $1,581.50. That invoice was paid either by Mr Easlea and / or by his insurer.
According to Mr Morris after work was completed and invoiced by AW on 20 February 2015 the vehicle ‘returned to service but continued to make worrisome engine noises.’ These worrisome noises were not complained of by Mr Morris until 2 March 2015 when the vehicle was returned to AW for a drive-by inspection of what AW said was a different sound attributable on a preliminary basis to a vacuum pump. AW stated it asked for the vehicle to be booked in for a more detailed and thorough diagnosis later that day but that was declined. AW claimed that shortly after DAP purchased a genuine Volkswagen vacuum pump from AW Parts Shop. No charge was made by AW in respect of the drive-by inspection.
Mr Morris of Focus claimed AW told him that despite the rattle coming from the vacuum pump the vehicle was okay to drive and should last another 40,000km. That was denied by Mr Hope of AW.
Some days later on 11 March 2015 the vehicle broke down completely and was towed to AW workshop for inspection in the presence of a number of persons, including Mr Easlea of DAP and Kevin Hope of AW. When the bottom part of the engine was dismantled and the crankshaft pulley exposed it became clear that the crankshaft pulley retaining bolts were loose (there are five, a central bolt and four securing bolts) with one having popped out entirely, damaging the engine irreparably.
AW asserted that it was at this point that Mr Easlea acknowledged that crankshaft pulley retaining bolts and diamond head washers were not replaced at the time he installed the timing belt in early December 2014.
It transpired that Mr Easlea had purchased an aftermarket timing belt installation kit and had followed an Autodata guide which did not require the changing of bolts and washers. He said it was a good quality kit. No bolts were supplied with the kit so he made the call not to replace the bolts. He admitted ‘that’s on my head…I’ve got to take responsibility for that.’
AW argued that Autodata was not a Volkswagen technical guide; that Volkswagen internal technical procedure required new bolts and washers (because they are specifically designed for one use only); that genuine Volkswagen timing change kits included replacement of all such bolts and washers and that these were in fact supplied with the genuine kit. Additionally AW asserted that genuine VW alignment tools ought to be used to assess and reset camshaft timing.
Mr Easlea questioned why the camshaft pulley retaining bolts were not checked when the timing was reset. He said he would never have thought that the ‘timing would just be tweaked on the top pulley and not the whole job be rechecked.’ Mr Hope of AW stated:
There is no adjustment from – at the bottom of the engine at all in the manual. The only adjustment is at the top. That procedure is for installing a new belt, for checking and resetting it. The only setting is at the top of the engine. You cannot undo anything at the bottom to adjust the timing.
Mr Hope said there was an arrow on the tensioner bracket (at the bottom of the engine) which was aligned. Mr Easlea asserted that AW had simply fixed the symptom and not the cause. Mr Easlea said he believed that once his installation of the timing belt had been checked by AW that he had a right to assume that no other errors would be identified. He said ‘the vehicle ran for 3,500km without the noise.’ He asserted the timing must have been correct when the vehicle first left his workshop. He said the vehicle only came back to him some seven weeks and 3,500km later i.e. on about 21 January 2015.
Mr Easlea argued through Emerald that AW being aware the timing belt had been replaced ‘did not check to ascertain if it had been installed correctly’. It was asserted AW ‘did not even check the pulley retaining bolts to see if they were tight’; that AW ‘would have or should have known that loose pulley bolts would have altered the valve timing and also caused an abnormal noise’. It was asserted that Mr Morris initially informed AW that the timing belt had been replaced some seven weeks earlier and that such should have directed an ‘investigation towards the timing belt installation’.
AW asserted that if the crankshaft pulley retaining bolts were loose at the time of adjusting the timing belt in mid-February the rattling would have returned immediately. That was not the case.
On 18 March 2015 AW quoted $22,983.20 for the full replacement of the motor. At the time of hearing a new motor was in the process of being fitted by Bosch Car Services of Brendale which had matched AW’s replacement quote.
AW asserted the Redbook value of the vehicle would be around $15,000.00 - $16,000.00; that the trade-in value would be $15,000.00 - $18,000.00; that the vehicle was not in pristine condition.
Mr Morris said there was:
$10,000 worth of tailgate in the back of it. There is $2,500 worth of low lock systems inside it. There’s $3,000 worth of sign writing on it, so that certainly brings it up above the so called $15,000 - $18,000 in value. I spoke to Joe and said, ‘what would it cost me to replace this?’ Joe said $55,000.
The cost of $55,000.00 referred to a new vehicle similarly fitted out. Mr Morris suggested even a similar second hand vehicle, similarly fitted out, would be costly.

Conclusions

It seems clear DAP’s replacement of the timing belt using an aftermarket timing belt installation kit and following an Autodata guide, led to defective functioning of the timing belt, beginning probably but not necessarily discernable immediately after that installation in early December 2014. This is so because the crankshaft pulley retaining bolts were reused (not replaced), loosened over a period of time causing a total failure of the engine on 11 March 2015. If Volkswagen’s technical guide had been followed the timing belt malfunction probably would never have occurred.
Mr Easlea through Emerald admitted that his only mistake was not to tighten the (reused) crankshaft pulley retaining bolts sufficiently; that ‘there is no denying that Dynamic Autocare should have replaced the crankshaft pulley retaining bolts’.
The question arises that when the vehicle was placed with AW to diagnose the rattle in mid-February 2015 was it necessary for AW to review or re-perform all of DAP’s work? Or was it a reasonable assumption on the part of Mr Morris that all work associated with the replacement of the timing belt would be checked and if necessary reworked.
There was no evidence to suggest that Mr Morris was looking for a complete overhaul of DAP’s work, nor any evidence of a request of that nature being made to AW. He just wanted the rattle, which on his own account, had persisted in the period early December 2014 through to mid-February 2015, fixed. The rattle was promptly identified as the timing being incorrectly set by a very minor probably half a tooth. The setting of the timing belt is performed at the top of the engine. There is no adjustment of the timing belt at the bottom of the engine. What has to be in place at the bottom of the engine is an aligned tensioner bracket. AW said the tensioner bracket was aligned and the timing belt reset; that the engine functioned with the rattle eliminated. The vehicle was road tested. The engine performed and the rattle had disappeared.
The fact that the timing belt adjustment eliminated the rattle is some indication that the rest of the timing belt system was functioning i.e. crankshaft pulley retaining bolts were adequately tight at that time.
The Tribunal finds that it was never necessary for AW to entertain an ‘investigation towards the timing belt installation’. That would have involved the undoing or dismantling of the crankshaft pulley retaining bolts, the provision of, and the affixing of a new set of stretch bolts. There was no evidence that at the time (mid-February 2015) the retaining bolts were the cause of the rattle; only an assertion that the bolts were likely progressively coming loose. That was probably correct but does not ground a conclusion within the purview of correcting a rattle that there should have been a complete replacement of one use bolts simply as some sort of cautionary measure or good practice. Nor does simply being informed the timing belt has been replaced some 10 weeks earlier ground a conclusion that a full investigation of the whole timing belt system was necessary.
In short, there was no evidence that the state of the crankshaft pulley retaining bolts were the cause of anything at the time in mid-February 2015. If anybody was entitled to assume anything, then AW was entitled to assume that prior mechanical work had been carried out competently. That is so given the very minor nature of the timing belt correction. AW’s invoice of 20 February 2015 included the checking of the engine for faults. There was never any suggestion that did not occur. Checking the engine for faults does not involve undoing crankshaft pulley retaining bolts and affixing new one use bolts which amounts to a replacement of parts. That sort of work was never within the purview of checking the engine for faults.
Even if it was accepted that AW’s inspection / servicing of the vehicle in mid-February of 2015 fell short of expectations, the gratuitous drive by inspection at AW on 2 March 2015 (with a preliminary diagnosis) and the invitation by AW to book the vehicle in later that day for closer scrutiny of the worrisome noises complained of by Mr Morris, can reasonably be construed as a willingness on the part of AW to accept responsibility for its own work and impliedly rectify that work if found to be faulty.
In the absence of Mr Morris availing himself of further inspection of the vehicle by AW it seems the vehicle was continued to be driven through to 11 March 2015 when the engine seized completely due to loose crankshaft pulley retaining bolts i.e. the bolts reused by DAP.
The seizure of the engine on 11 March 2015 was directly referable to the reuse of crankshaft pulley retaining bolts by DAP in December 2014. As a result of reuse, rather than replacing of bolts, the engine required replacement some months later. That ought to be at DAP’s expense.
The only way for Mr Morris’ loss to be compensated is for the engine to be replaced. There is no issue of betterment here. Clearly there were a number of modifications made to the vehicle by Mr Morris applicable to the purpose for which the vehicle was used. It seems unlikely that the value of the six year old vehicle would be materially enhanced by the installing a new motor. Betterment was not in any event asserted by either AW or DAP, but rather some statements were made about the Redbook value of the vehicle absent modifications.
Liability primarily devolves on DAP and it is responsible for payment of the replacement motor at $22,339.20 (as claimed) together with the application fee of $294.60, a total of $22,633.80.