Gilgen v Manuka Investments No. DCCIV-96-1402 Judgment No. D3545

[1996] SADC 3545

Court

DISTRICT COURT OF SOUTH AUSTRALIA

Reasons of His Honour Judge Lunn

Hearing

17/12/96.

Catchwords

SECOND HAND MOTOR VEHICLES ACT 1983 Claims under s25 for repair of defects - incorrectly described as statutory warranties - claim for consequential loss based on damage to engine from overheating after coolant leaked out from a split hose - while such a claim may have been maintainable under s26(2)(e) or at common law it had not been proved that there was a defect in the hose within s25 - review of minor civil judgment dismissed.

Representation

Appellant NEVILLE ERNEST GILGEN:
In Person

Respondent MANUKA INVESTMENTS:
Counsel: MR W HALL - Solicitors: W HALL

DCCIV-96-1402

Judgment No. D3545

23 December 1996

On Appeal from MR NEWMAN SM

(Civil)

GILGEN v MANUKA INVESTMENTS

Civil

Judge Lunn

Minor civil action review

The plaintiff sued the defendant in a minor civil action for $2,952.25 for damages for breach of contract in failing to repair a Holden Jackaroo vehicle which the defendant had earlier sold to the plaintiff. After a trial on 21 October 1996 His Honour Mr Newman SM gave judgment for the plaintiff for $153.30 including $57 for costs and dismissed the balance of the claim. The plaintiff has now applied in this Court under Section 38(6) of the Magistrates Court Act for a review of the dismissal of the balance of his claim.

The plaintiff raised many grounds of complaint against the defendant. The Magistrate found in his favour on a few, but against him on many others. I will deal first with the principal item which accounts for most of the amount claimed.

Shortly before the expiration of three months from the plaintiff's purchase of the vehicle he had it examined by the Royal Automobile Association ("the RAA") which gave a report indicating a number of problems one of which was "coolant leak at rear lower inlet manifold area". It was noted in the report as being a matter where urgent attention was essential. It was also indicated to be an item which may be covered by warranty. The plaintiff left the vehicle with the defendant from about 24 March to 4 April 1995 for, inter alia, the matters on the RAA report to be attended to. Some substantial amount of work was done in that period by the defendant without charge, but precisely what work is in dispute. On 19 June the plaintiff took the vehicle back to the defendant because he contended that some of the work which should have been done on the previous occasion in accordance with the RAA report had not been done. However, his complaints on that day did not relate to any leak of coolant or the like, but to unrelated matters. He said in evidence that at about the end of May he was losing coolant, but he did not say to what extent. He did not say anything about the engine then overheating. The defendant's repair order of 19 June, which is an apparently reliable contemporaneous record, makes no reference to any complaint about loss of coolant. After other repairs had been carried out by the defendant on that day the plaintiff drove the vehicle to his home at Berri but when he was near Glossop the engined boiled and seized. It was subsequently ascertained that a small rubber hose, which was not readily visible because of the air cleaner, had split and the coolant had run out of the engine. The consequent overheating of the engine had caused the head to warp badly and it was necessary to fit a reconditioned motor at a cost of $2,419. That cost constitutes the principal part of the claim.

The Magistrate found against the plaintiff on this part of the claim on grounds of both law and fact. He found that s25 of the Secondhand Motor Vehicles Act 1983 applied. The relevant parts of that Act were repealed as from 30 June 1995, but by clause 4 of Schedule 4 to the Secondhand Vehicle Dealers Act 1995 No 9 the duty to repair under s25 of the repealed Act has remained unaffected. Regrettably, the Magistrate, and everyone else concerned in the case, referred to the obligations created by s25 as a "statutory warranty". As a matter of law this is not correct. The term "warranty" is not mentioned in the repealed Act. Section 25 creates a statutory obligation on a dealer to effect certain repairs for certain classes of defects. It is not a contractual obligation. Section 7(2) of the repealed Act preserved any contractual or other legal rights which the plaintiff had at common law. The plaintiff's claim was not confined by his pleading to any statutory claim.

The Magistrate held that the relevant provisions of the repealed Act (presumably s26) merely enabled the rectification of a defect which was encompassed by s25, but did not allow recovery for consequential damage arising from such a defect. Section 26(2)(e) of the repealed Act, and s24(5)(e) of the present Act, each refer to a power to "compensate the purchaser for any loss or damage suffered by the purchaser as a result of the dealer's conduct." This is wide enough to encompass consequential loss. It may be that procedurally the remedy was not open to the plaintiff in the circumstances, but I need not pursue that point. Other causes of action at common law in tort or contract may have been open to the plaintiff, but it is not necessary to pursue them because of the Magistrate's findings on the facts.

The Magistrate found that the split hose and the consequential damage to the engine was not shown on the balance of probabilities to have resulted from a defect "during the period of the warranty", ie within the scope of s25 of the repealed Act. The Magistrate had to make a finding on the balance of probabilities on the evidence which was properly before him on the matter. Regrettably, that evidence was not as extensive or precise as would have enabled a clearcut decision to be made on the point, but that, as is often the case, is a consequence of the informal and truncated procedures used in minor civil actions. In the plaintiff's favour was the identification of a coolant leak on 23 March 1995 in the vicinity of where the hose split and that there was some subsequent unspecified loss of coolant. Against this was the fact that the vehicle had been driven several thousand kilometres over a period of two and a half months between the identification of the leak by the RAA and when the hose apparently split sufficiently to enable most of the coolant to escape from the engine. At the trial the defendant's managing director, who had no personal knowledge of what repairs had been done, said that as a matter of normal practice an item so identified by the RAA as requiring urgent attention would have been attended to by his staff. Unfortunately, the workshop records, which might have given a better indication of what was, or was not, done on that occasion were missing, but the Magistrate was not prepared to draw an adverse inference against the defendant from this. The Magistrate did not make any finding about the plaintiff's assertion that the defendant's workshop foreman had told him on 19 June that the defendant had already spent too much money on repairs to the vehicle and that it was not going to do any more. Even accepting that, and bearing in mind that there were other small warranty items which the defendant had not attended to as it should have done, it is still equivocal on the evidence whether the split in the hose on 19 June was a continuation of the leak noticed by the RAA on 23 March or whether that leak had been repaired by the defendant prior to 4 April and the split in the hose on 19 June occurred on or about that date for reasons unrelated to the earlier leak. The onus was on the plaintiff to prove the causal connection. The Magistrate was correct in concluding that he had not done so. Therefore, the claim based on the split hose correctly failed. This finding of fact must also defeat any other cause of action which the plaintiff may have had at common law in tort or in contract.

Other minor points were raised on the review. The Magistrate was correct in finding that s23(10)(d) of the repealed Act did exclude wear and tear and was correct in finding that the complaints about the rear tailshaft and the speedo malfunction were not claimable items.

The application for review is dismissed. I allow the defendant its costs of the review fixed at a sum of $200.