Glanville v Peter Mitchell Car Care Pty Ltd - [2004] SADC 121

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Minor Civil Review)
GLANVILLE v PETER MITCHELL CAR CARE PTY LTD
Judgment of His Honour Judge Lee
20 August 2004
APPEAL AND NEW TRIAL
Application by unsuccessful defendant to review minor civil decision - application allowed on ground that Magistrate delivered decision without giving defendant sufficient opportunity to give his version of relevant events - order that there be a retrial of the action - plaintiff's claim concerned repairs by defendant to plaintiff's 1986 Ford Laser - held that defendant was in breach of a term of his contract with plaintiff to conduct the repairs in a proper and workmanlike manner - judgment entered for plaintiff against defendant for $1,600.

GLANVILLE v PETER MITCHELL CAR CARE PTY LTD
[2004] SADC 121

Following a minor civil review by me on 3 February 2004, I set aside the judgement imposed by the Magistrate, ordered that there be a retrial of the plaintiff's claim, and gave brief reasons.
The retrial took place before me on 25 June 2004. The defendant was represented by Mr Mitchell. For convenience, I will describe Mr Mitchell as the defendant.
In his claim, the plaintiff seeks recompense from the defendant with respect to the defendant’s repair of his 1986 Ford Laser. He alleges that the repair was defective, and that the defendant was in breach of the warranty that he gave at the time.
The plaintiff's evidence at the retrial may be summarised as follows:
1.    The plaintiff purchased the Ford Laser in about October 2002 for $600. The vehicle had done 179,000 kilometres. The motor was not functioning because the head of the motor had overheated.
2.    The plaintiff took the vehicle to the defendant for repair. After pulling the motor down, the defendant verbally quoted $1100 with a 90-day warranty. He said he would replace the rings and the bearings. The plaintiff accepted the quote, and left the vehicle with the defendant.
3.    The defendant conducted repairs, and on 11 November 2002 presented an invoice to the plaintiff for $1150 (exhibit P6). The plaintiff paid the amount, and the defendant wrote “Paid in full” on the invoice.
4.    When the plaintiff started the motor, a knocking noise could be heard. The defendant suggested that there was a hole in the exhaust. The plaintiff took the vehicle away, had the muffler replaced, but still a knocking noise could be heard. So the plaintiff called the RAA for a roadside inspection.
5.    On 16 November 2002, the RAA roadside mechanic said it sounded like new bearings had not been installed. The plaintiff took the vehicle back to the defendant the next day, and the defendant agreed to look at the motor again. After pulling the motor down, the defendant said he would bore the motor out, and install new pistons and bearings.
6.    The plaintiff made a number of visits to the defendant’s premises to enquire about progress. The plaintiff’s son was wanting to take the vehicle on a holiday. On one occasion, the defendant telephoned the plaintiff to say that people who had done repairs had got two conrods round the wrong way. The defendant cross-examined the plaintiff about that:
"QI organised with Repco and then in a mad rush I changed around the rods, which you delivered to them, correct.
AThat’s right.”
7.    The plaintiff returned to the defendant's premises on 2 January 2003. The defendant produced an invoice for $1246.01 (exhibit P8). The plaintiff did not pay any money. Instead he took the vehicle for a test drive, but still a knocking noise could be heard. The plaintiff contacted the RAA again the same day. On the advice of the RAA mechanic, the plaintiff arranged through the RAA for a tow truck to return the vehicle to the defendant's premises. That was done on 3 January 2003. The plaintiff’s son did not drive the vehicle at that time.
8.    A Mr Keith Walmsley then attended the defendant's premises to inspect the vehicle. Mr Walmsley is a technical liaison officer with the RAA. Mr Walmsley was able to identify an excessive clearance in the number two cylinder. He said the clearance was about three times what it should be. He made some suggestions to the defendant as to how the problem might be rectified. The defendant agreed to do further work on the vehicle.
9.    On 7 February 2003, the plaintiff and his son attended the defendant’s premises to collect the vehicle and pay the bill. The plaintiff had left the invoice exhibit P8 at home. So the defendant wrote out a new one at the plaintiff's request (exhibit P10). The amount of the invoice was $1246.01, with the words “Price Reduced to $1100”. The plaintiff paid that amount to the defendant in cash. The defendant wrote “Paid Cash” on the invoice. The plaintiff had wanted to take the vehicle for a test drive, but the defendant would not allow him to do so. After the plaintiff said that he would be taking the vehicle to the RAA for an inspection, the discussion became heated. The plaintiff asked his son to leave. His son did so by driving the vehicle away. The defendant started to swing punches. The plaintiff ran out of the workshop, and went to the Christies Beach police station to report an assault.
10.   The plaintiff arranged an RAA roadside inspection on 9 February 2003 (exhibit P11). The RAA recommended another repairer, Rod Prime Mechanical Repairs. Mr Prime did repairs, and the plaintiff paid his account for $2088.55 (exhibit P12). The RAA conducted a further inspection at that time, and found, amongst other things, that the defendant had filed the conrods to make them fit, and had returned the old clutch despite having charged for a new clutch on the invoice of 7 February 2003 (exhibit P10).
So much for the plaintiff’s version of events. He then called Mr Walmsley to give evidence on his behalf. Mr Walmsley told me that his first inspection confirmed that the noise was coming from the number 2 cylinder. After the defendant did further work on the vehicle, Mr Walmsley inspected the vehicle again. On that occasion, he found that there was excessive clearance between the conrod big end bearing and the crankshaft in the number 2 cylinder. In other words, the conrod was faulty. His recommendation to the defendant was that the engine be dismantled, that the crankshaft be measured, and that suitable bearings be fitted. Mr Walmsley made further visits to the defendant’s premises to check on progress, and his final inspection of the vehicle was at the premises of Rod Prime after the roadside inspection of the RAA on 9 February 2003. On that occasion, he discovered that the defendant had filed the bearing caps in an attempt to reduce the clearance.
It seems that the defendant had purchased the faulty conrod second hand from a wrecking yard. Mr Walmsley said that the filing of bearing caps was not a recommended practice and was ineffective in any event. He said that filing of bearing caps produces excessive crush on the edges of the bearings which leads to a similar failure later on.
Mr Walmsley said that it was apparent after the vehicle had been dismantled at the premises of Rod Prime that the plaintiff had paid for new parts including a new clutch kit whereas second hand parts had been installed by the defendant.
Mr Walmsley said that, on reassembly of the engine by Rod Prime, the compressions were found to be extremely high, and that Rod Prime remedied the problem by fitting a plate between the block and the head.
Mr Walmsley was asked by me whether misuse of the vehicle by over revving is a possible explanation for the excessive clearance, and his answer was:
“Will stretch the con rod. When it does that it also damages the bearing which is between the con rod and the crankshaft and in this case we examined it at Mr Mitchell’s premises the bearings was still in very good condition and hardly marked at all, there was no long-term use of overrevving. Mr Glanville took the car back to the repairer for this noise to be fixed so I know Mr Mitchell has all the invoices of things that he has purchased, but something has gone wrong somewhere. The noise Mr Glanville took the car in for was still there when he picked the car up. We gave Mr Mitchell the opportunity to repair that vehicle and had he done it correctly we wouldn’t be here now. But he chose to do ineffective repair again and we are back here.”
The plaintiff called his son to give evidence, and his son confirmed the plaintiff’s version of the events of 7 February 2003. His son said he did not over rev the vehicle as he drove it away on that day, and that on prior occasions he only drove the vehicle a couple of times to work. He said he saw the plaintiff hand over $1100 to the defendant.
The defendant gave evidence generally about the repairs that he did in an attempt to eliminate the noise. Without going into detail, the effect of his evidence was that he did all that he reasonably could have done in the circumstances. The defendant also gave his version of the events of 7 February 2003, and said that the plaintiff only paid $600 in cash.
Then the defendant called Jason Harden, an auto-electrician whose workshop is in front of the defendant’s workshop on the same property. Mr Harden told me that, on 7 February 2003, he heard excessive revving and saw a red Escort reversing out fast and then taking off down the road in the same manner. Mr Harden spoke of the spinning of wheels and the spraying of stones. He said that the red Escort left two tracks in the dolomite driveway about 40 to 50 paces in length. He said that the vehicle was an early or mid 70’s Ford Escort mark 2. He said that he would not have confused a Ford Escort with a Ford Laser.
So much for the evidence on both sides. A number of points stand out.
The first is that the only independent expert in the case is Mr Walmsley. He was a satisfactory witness. I accept his evidence and opinion. I hold that the defendant did not conduct the repairs in a proper and workman like manner, and that his failure amounted to a breach of a term of his contract with the plaintiff.
The second point is that the defendant placed substantial reliance upon his version of the events of 7 February 2003. In his defence to the claim in the Magistrates Court, the defendant wrote:
“I will not admit to this claim as the engine in the vehicle has been mistreated namely outside my workshop it was over revved in reverse and 1^st gear leaving long deep gouges in the gravel outside my workshop. Plus the bill was not paid in full and deception was used to not pay the bill.”
There is no evidence to suggest that the vehicle was over revved or otherwise misused on 7 February 2003 or at any other time. The vehicle that Mr Harden saw was not the plaintiff’s 1986 Ford Laser. The defendant wrote “Paid cash” on the invoice of 7 February 2003, and it is unlikely that he would have done so without receiving the amount of the invoice in full. I prefer the version of the plaintiff and his son on those topics.
It is not possible to quantify the plaintiff’s loss with any mathematical precision. Although he has paid three separate amounts totalling approximately $4300 to have his vehicle repaired, he told me the vehicle has been running soundly ever since, and doubtless its value now exceeds by a considerable margin the purchase price that he paid in 2002. In the end, I consider that the cost of most of the repairs conducted by Rod Prime, say $1600, would fairly represent the loss that the plaintiff sustained in consequence of the defendant’s breach of his obligation to repair the vehicle in a proper and workman like manner.
In the result, there will be judgment for the plaintiff against the defendant in the sum of $1600, together with the cost of issuing the summons of $60.