Gillman v Beadle - [2013] QCAT 83

CITATION:

Gillman v Beadle [2013] QCAT 83

PARTIES:	Christopher Charles Gillman (Applicant)
v
John Beadle (Respondent)

APPLICATION NUMBER:

MCDO68-13

MATTER TYPE:

Other minor civil dispute matters

HEARING DATE:

19 February 2013

HEARD AT:

Brisbane

DECISION OF:

Paul Favell, Member

DELIVERED ON:

21 February 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The application is dismissed.

CATCHWORDS:

MINOR CIVIL DISPUTE – whether contract – extent of contract – whether breach of contract

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Christopher Charles Gillman

RESPONDENT:

John Beadle

REASONS FOR DECISION

The applicant in October 2010 purchased and imported a boat from Japan. He started to refurbish the boat and in doing so he engaged John Beadle to examine the motors. He says that Mr Beadle examined the motors and advised him that there was little or no compression in two cylinders and that the rest were very low and that the engines needed to be reconditioned.
In early January 2011, the applicant phoned Mr Beadle and told him that he was going to bring new engines in from the USA. He was told, he says, that Mr Beadle had gone into business with someone else and he could get two reconditioned long motors from his partner. He says that he asked Mr Beadle if all the parts from his old motors would fit to the long motors and was told that they could.
Mr Gillman says that he got a quote from Mr Beadle to source all the parts plus fit engines to his boat and run them in for $2,000 plus parts. He was told that the job would take 4 weeks to do.
Mr Gillman said he asked Mr Beadle to purchase the engines which he subsequently paid for and Mr Beadle took the engines as well as his old engines in order to do the work.
Mr Gillman complains that there was a delay in doing the work and in the end the work was not done properly. He said that he was told by a marine mechanic who looked at the engines subsequently that there were mistakes so far as attaching a rubber fuel line was concerned, the hoses fitted to the exhaust water flow were wrong and unsuitable for the job, and generally he was unhappy with the standard of the work.
When he contacted Mr Beadle to tell him of the defects that had been found, and he was told by Mr Beadle, he says, that Mr Beadle had finished his part and wanted to be paid. Mr Gillman complained that the engines were only run for ten seconds to see if they fired up. He then terminated services and paid for the cost of the parts. At the hearing I was told that Mr Gillman paid $1500 for parts and paid Mr Beadle $1100 for what he says was half of the labour plus GST, a total payment of $2600.
Mr Gillman moved the boat to dry storage at a marina where he engaged a recommended mercury marine mechanic to go over the engines and give him a quote to rectify any problems and get the engines running. He says that upon inspection, the following was found:
a)Bungs missing out of exhaust manifolds;
b)Flywheel cover plates not on motors;
c)Dip sticks supplied wrong for late model motors and would not fit;
d)Dip stick tubes should have been put on motors before manifolds put on;
e)Wiring harness in wrong position;
f)Exhaust outlet not cleaned out before motors were connected;
g)Engine mount bolts loose;
h)Riser base plates paint not cleaned off before assembly;
i)Head bolts loose or sticking out of 2 heads on 1 motor;
j)Fuel pump bolts loose;
k)Fuel filters had not been replaced;
l)Wrong hoses on water inlets;
m)Steel fuel hose missing replaced with rubber hose;
n)Wrong oil put in stern drive legs;
o)One of the stainless steel bladed hoses crimped;
p)Bracket missing off distributor to hold in place;
q)Both engines should have been bench tested before putting in boat;
r)Unconnected wiring to shift plate switches.
Mr Gillman then engaged the services of that mechanic to complete the job.
Mr Gillman claims $6925 plus a filing fee of $95. He says that he claims that amount “to cover costs to rectify poor workmanship and wrongly fitted parts to complete job contracted to OO plus out of pocket expenses for storage while repairs carried out.”
He says the reasons for seeking the orders are “because work carried out by John Beadle would have caused damage to engines if started and possible risk of fire due to faulty parts fitted or and damage to motors due to parts not being fitted (which were supplied) but you could not see by looking at the motors and if boat was hooked up to water to start engines, it would have flooded engine bay.”
Neither side has directed me to any written contract between the parties. It seems that all of the negotiation was verbal. There are some emails which make reference to an agreement or quote or estimate.
When this matter first came on for hearing at Holland Park on 4 June 2012, it was apparent that the parties were not ready for the hearing. On that day it was ordered that the respondent file a response to the facts relied on by the plaintiff which were filed on 24 May 2012, by 22 June 2012 and serve a copy on the applicant, and that the applicant file any reply to the response by 29 June 2012. I am told that those orders were complied with.
The applicant says that various representations were made to him prior to an agreement. Those representations include a representation that Mr Beadle was a marine mechanic and a person experienced and knowledgeable in the performance of the work of a marine mechanic, and capable of performing such work in a competent and tradesman-like manner; and the that replacement motors were about the same age as the original motors, being 1990-91 the year of manufacture; and that Mr Beadle had inspected the replacement motors and that they were good; and that parts of the original motors that were not supplied with the replacement motors could be swapped over from the original motors as the parts would fit.
He says that they then entered into an oral agreement in late January 2011 which contained the following express terms:
a)Beadle would complete the long motors by transferring parts from the original motors and fitting them to the replacement motors;
b)Beadle would install new parts where parts from the original motors were not good for further service;
c)Beadle would bench test the replacement motors when completed;
d)Beadle would tune the replacement motors;
e)Beadle would fit and install the replacement motors into the boat;
f)Beadle would run in the replacement motors with the boat in water;
g)Beadle and the applicant would carry out sea trials to ensure the proper running of the boat with the replacement motors installed;
h)In consideration of the work and labour set out in (a) to (g), the applicant would pay Beadle $2000 (GST inclusive) and in addition the applicant would pay for parts and consumable at cost (ex. GST);
i)The work would be completed within four weeks of receipt of the replacement motors.
In early February 2011, the applicant paid $8,500 to the supplier of the replacement motors.
In mid February 2011, the applicant delivered to Mr Beadle the original motors.
Mr Gillman complains that Mr Beadle did not complete the long motors by transferring parts from the original motors and fitting them to the replacement motors in that he failed to install the following items.
a)Fly wheel cover plates from the original motors were not transferred and installed on the replacement motors;
b)Bracket required to hold a distributor in place was missing;
c)One steel fuel line from the original motors was not transferred to and installed on the replacement motors;
d)Two tappett covers from one of the original motors was not transferred to and installed on one of the replacement motors;
e)Mr Beadle did not install new parts where they were supplied in replacement for old parts beyond further useful service;
f)Mr Beadle did not bench test the replacement motors;
g)Mr Beadle did not run in the replacement motors;
h)Mr Beadle did not tune the replacement motors and both motors were running rich;
i)Mr Beadle did not take part in sea trials to ensure the proper running of the boat with the replacement motors;
j)Mr Beadle did not complete the work within four weeks of the receipt of the replacement motors and did not complete the work at all.
The applicant’s claim is divided up as follows: expenses for replacement parts required due to loss by Mr Beadle and because parts not fitted, breach of warranty ($1652.59); to complete the work left undone by Mr Beadle and rectify defective work ($3113.88); marina fees ($2,557.91); refund of the payment for half of the work done by Mr Beadle ($1,100).
Mr Beadle disputes the allegations made and has filed a statutory affidavit setting out his account of what occurred.
Mr Beadle in that affidavit said, “we had a verbal agreement that we would remove the old engines, replace the parts possible for re-use, and refit new engines he was going to source. The estimate I gave Mr Gillman was $2,200 for exactly this, and it should be noted at Mr Gillman’s request it was all to be cash.”
He said that Mr Gillman was unable to find any replacement engines and it was then that Mr Beadle informed him of two engines he had heard about at a marine company which were compatible to the existing engines. Mr Gillman decided to use those mercury remanufactured engines. Mr Beadle said that on the date that they received the engines on 17 February, the time that had elapsed before the termination by Mr Gillman was eight weeks. He said that Mr Gillman by email terminated their services from 18 April 2011. He points to different claims being made by Mr Gillman and says that at no time during the negotiation was there any time agreement discussed or agreed upon. He says that Mr Beadle and Mr Miller were not given the opportunity to complete the work.
Mr Beadle says that he is appropriately qualified to be involved in the marine industry, but says that at no stage did he purport to be a qualified marine mechanic and he was, as the proprietor of Cool Water Marine, able to subcontract to a qualified mechanic (Mr Miller). He says that as part of the agreement, it was agreed that the swapping of the engines would be done out of ordinary working hours.
He says that he and Mr Miller removed both of the old engines and did fit the new engines. He says that the vessel was moved because the storage at the back of the wrecking yard, where it was initially placed, was no longer available.
Mr Miller, who carried out subcontract work on the replacement engines, provided a statutory declaration.
He says he has 17 years marine experience, and says he is a qualified light marine engineer who is mercury-mercruiser factory trained technician who has workshop-managed two of the largest Mercruiser dealerships in Queensland. His declaration sets out the work that was done to the engines. He says that the engines were received and assembled with bolt on parts of the old engines, new exhaust manifolds were fitted, and any parts that need replacement were replaced. He says that their access to the boat was hampered because the boat was stored at a friend of Mr Gillman’s who only provided access when it was convenient. He says that after the engine were started, Mr Gillman was happy to hear them run for a short time and it was verbally agreed at that stage that the boat would go on a boat and travel to a marina where the engines would be run properly, carbies adjusted as would the timing with good cooling water present. His evidence was to the effect that the work would be finished appropriately after that had occurred.
Mr Miller addresses each of the complaints concerning alleged negligent works as follows:
·Wiring harness was not incorrectly installed and they simply plug into the on-engine harness. The harness does not move whatsoever and doing this cannot suffer any wear. If Mr Gillman is commenting on the vessel harness, this was not touched through the re-power.
·New exhausts were fitted to both engines so the jointing faces are factory prepared with a baked on corrosion paint resistance normal application to install gaskets directly on these faces.
·Flywheel covers are used in automotive application to prevent dust and debris flicking into the fly wheel running gear. Not used in marine as no dust in water and have no function.
·Mr Gillman commented that the head bolts needed retightening. Word of warning chev. head bolts protrude into the cooling system and need their threads sealed on application, if these bolts had re-torque then the sealing integrity of the bolts have been sacrificed. This can lead to water entry into the engine. I find this hard to believe a knowledgeable mechanic would have carried out such a service.
·Fuel pumps and carbies serviced by Mr Gillman’s contact – unsure of work carried out.
·Cooling hoses were replaced with Braided ribbed supporter hose rated at 250psi, has a rating for food/water/petrol/oil usage and you can virtually see into the hose for blockages. This is a great hose for commercial and private use. Not a problem with this application. Max water pressure through the cooling system by Mercruiser spec. 45psi at 4000 rpm.
·Regards to the back conflated hose in the picture taken, is not part of the engines so it is simply the deck water drain off hoses.
·Ortac fuel hoses were installed just to run off the engines due to the water and the fuel sitting in the steel fuel line had corroded and put small pit holes in the line. In saying this – Ortac hose is a fuel certified product graded to 300psi, a mechanic lift the fuel pump pressure of a Mercruiser is 3-5 psi so this hose is easily suitable for use.
·In comment to the trim rams, these are stainless steel lines fastened to an alloy ram and due to dissimilar metal materials they react causing electronic corrosion seizure.
·The normal action is to try and salvage these rams by repairing, which I believe Mr Beadle tried, this is more cost effective than replacing but if they are that bad replacement is the only option.
·Personally I feel we involved Mr Gillman too much, letting him use his contacts to save him money, working at his friend’s premises, restricting us when needing Mr Gillman or his friend to open up to gain access to the vessel. We were getting played by Mr Gillman’s change of time with regard to freight etc.
·In regard to Mr Gillman’s comments about Mr Beadle not being a marine mechanic, I personally know that Mr Beadle has been working for the last 5 years in the marine industry and he also has an automotive background and working on new Mercruisers which are based on an automotive small block chev. V8 would not be uncommon to Mr Beadle; Mr Beadle is currently working for a major marine dealership for Australia where he holds a managerial role in the service division. Mr Beadle as a younger man also had marine knowledge influences at a few of the local dealerships he worked at. And yes Mr Beadle is a carpet layer too, that’s not uncommon to have one or more trades.
The material filed discloses an email from Mr Beadle to Mr Gillman which sets out some costings. It includes the following statement: “Chris, as discussed the labour for each engine to transfer of parts/bracketry through to fitting and gearbox fitting will be 12 hours each side approximately …”
The statutory declaration by Mr John White is to the effect that he gave the applicant permission to store his boat for the purposes of carrying out some work on it at a hardstanding premises occupied by him. Initially the permission was given in October 2010 with the expectation that the boat would be off the premises by Christmas 2010 however he was told that the motors would need to be replaced and the estimation for removal shifted to February of 2011. In the end, the boat had to be moved because of his operational requirements and it was moved in late April 2011.
Mr Hart says that on initial inspection he noticed four problems/defects as follows:
a)Dipstick and tubes had not been inserted into the blocks of the motors;
b)Wiring to shift plates switches were not connected;
c)One distributor was not secured down and in fact the clamp was missing;
d)Fuel filters were old and required replacing.
He said that during his work when he removed manifolds, he noticed that bungs had not been fitted and that when he removed risers, he noticed that there was an accumulation of debris from old corroded risers still in the exhaust cavities.
After the work was completed, he caused the engine to be run in. During the course of that he noticed that one motor was flooding. He removed a carburettor and gave it to Mr Gillman to return to the business that had serviced the carburettors. He said that he charged Mr Gillman $3113.88 for his time and work and some parts supplied. The calculation was on the basis of $95 per hour plus GST for 26.6 hours, plus $250.80 plus GST for parts supplied.
On the evidence available I am not satisfied that there was an agreement as alleged by the applicant. I am satisfied that there was an agreement that replacement motors paid for by the applicant would be installed in Mr Gillman’s boat and where possible parts from the existing motors would be used in the replacement motors and otherwise new parts to be paid for by the applicant would be installed. I am satisfied that an estimate of $2000 for the installation work was given but I am not satisfied that such an estimate included GST or was a fixed contractual sum.
In my view the agreement was general in nature and did not include any express terms as to testing, running in or tuning.
I find that there was no breach of the agreement by Mr Beadle and that the applicant did not have the right to terminate the agreement. The work was terminated early by the applicant.
The complaints made by the applicant in my view supported by the evidence of Mr Hart. I am not satisfied that the work done by Mr Beadle and Mr Hart was in breach of the agreement or negligently done.
The work was not completed. It was terminated early. I do not accept that the work was done incorrectly or was inappropriate. Some of the work complained about was done by others. The evidence given by Mr Hart does not establish that work done by Mr Beadle and Mr Miller was in breach of the agreement or was defective. In my view it was simply not completed.
For the reasons given I am not satisfied there were the contractual obligations as claimed nor that there was any breach of the contract between the parties. I am not satisfied that the work done was defective. The application is dismissed.