Gregory v Jimboomba Tyres and Mechanical - [2014] QCAT 306

CITATION:

Gregory v Jimboomba Tyres and Mechanical [2014] QCAT 306

PARTIES:	James Gregory and Mary Gregory (Applicant)
v
Matthew John Garrard T/as Jimboomba Tyres and Mechanical (Respondent)

APPLICATION NUMBER:

MCDO0029/13

MATTER TYPE:

Other minor civil dispute matters

HEARING DATE:

17 April 2014

HEARD AT:

Beaudesert

DECISION OF:

Adjudicator Howe

DELIVERED ON:

24 June 2014

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The Applicant file in the Tribunal and give to the Respondent one copy of any sworn statements of evidence with supporting documents attached and the relevance of the documents explained in the statements of evidence, together with any submissions, all of which must be page numbered, by 12 February 2014.

2. The Respondent file in the Tribunal and give to the Applicant one copy of any sworn statements of evidence with supporting documents attached and the relevance of the documents explained in the statements of evidence, together with any submissions, all of which must be page numbered, by 28 February 2014.

3. The claim be thereafter determined on the papers without further oral hearing.

CATCHWORDS:

Minor civil dispute

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

James Gregory and Mary Gregory

RESPONDENT:

Jimboomba Tyres and Mechanical
represented by Matthew John Garrard

REASONS FOR DECISION

This matter involves a consumer dispute whereby Mr and Mrs Gregory seek recovery of an amount of $4,694.45 plus costs from Mr Garrard.
Mr Garrard is a mechanic who conducts a mechanical repair business and trades as Jimboomba Tyres and Mechanical. I note Mr Gregory is also a mechanic, though retired.
Mr and Mrs Gregory own a 1998 white Mitsubishi Express L300 van registration number 932 HAR. In around January 2011 Mr Garrard did mechanical work on the van for the Gregory's. At that time he replaced the engine with a second-hand motor.
On 23 July 2013, 2 ½ years later, Mr Garrard was called out to visit Mr and Mrs Gregory at their house to look at the van which had an overheating problem. It had overheated whilst being driven and been towed back to their home. It does not seem to be in dispute that it was then agreed that Mr Garrard would take the van to his workshop and diagnose the problem and give a quote for the costs of repair necessary to rectify the overheating problem.
Mr Garrard says he took the vehicle to his workshop and together with an employed mechanic determined that the head gasket was damaged or the motor had a cracked head. He then took the van home to work on it in his shed because there was not enough room to work on it in his workshop. According to a statement from the employed mechanic, the vehicle was taken home to allow Mr Garrard to work on the vehicle in his own time.
Mr and Mrs Gregory maintain he took the vehicle straight from their home to his own home. I do not place significance in their different versions, though if necessary I would conclude the van was first taken to the workshop.
Mr Garrard says he diagnosed the problem as a cooked motor when he was at Mr and Mrs Gregory's house and advised them they would have to either recondition the engine or again fit a replacement second-hand motor. At that time he says he was instructed by Mrs Gregory to give a quote for reconditioning. Mr Garrard says he told Mrs Gregory that he would have to strip the motor to be able to give that quote.
Mr Garrard says he stripped the engine and sent the cylinder head and camshaft to Beaudesert Engine Reconditioning for a quote.
A statement of evidence has been filed on behalf of the respondent by Mr Martin Pipers, apparently a mechanic with Beaudesert Engine Reconditioning. In that statement Mr Pipers says he received a cylinder head from Mr Garrard and was asked to quote to rectify any damage done to it by overheating. Mr Pipers examined the head and decided it would cost more to repair the damage to the head than to buy a new aftermarket bare head. He said he received instructions to purchase a new head and he did that but during the assembly of parts he was told to stop. He does not say who told him to stop or who gave him instructions to buy the new head. He says the following day however one of the owners by the name of Mary telephoned him and he explained that the price of repairing the old head exceeded the price of a new aftermarket head. She did not appear to comprehend what he was telling her he says. He goes on to say however that the "go-ahead” was finally agreed to for completion of the job with the owners giving a verbal guarantee for required payment as per his quote. Subsequently, after another telephone call from the owners concerning the camshaft, he advised the owners the work was done but they reneged on payment and they currently owe him $894.
Whilst Mr Pipers was obtaining a new cylinder head and doing work on it, Mr and Mrs Gregory fell out with Mr Garrard. That dispute appears to have been over a telephone discussion where Mr and Mrs Gregory understood by the discussion the engine had been fixed. It was obviously not fixed but the parties fell out over the matter with each accusing the other of abusive language and conduct.
Because of the dispute Mr Garrard no longer wanted to do work on the motor. He towed the vehicle as was without the head, and according to Mr and Mrs Gregory certain other parts, back to or near Mr and Mrs Gregory's house.
Subsequently Mr and Mrs Gregory paid for another second-hand replacement motor through another mechanic. Mr and Mrs Gregory want to be reimbursed all the costs associated with that further second-hand replacement motor.
The issues as far as the applicants are concerned appear to be threefold. First Mr Gregory maintains there was nothing wrong with the cylinder head but the problem was a failed Welch plug that caused the coolant to leak. Associated with that he says they should be entitled to be recompensed for any damage done to the van engine attributable to the Welch plug pursuant to "statutory warranty".
Finally Mr and Mrs Gregory maintain the cylinder head which was put in for repair with Beaudesert Engine Reconditioning was not from their van but swapped with another from another van.
Mr Garrard denies swapping the cylinder heads and maintains their motor had been cooked.
First, with respect to the claim to a statutory warranty. It is not clear by what statute the warranty claimed is said to spring. The original second-hand replacement motor fitted to the van by Mr Garrard was fitted approximately 2 ½ years prior to the motor failing in July 2013. Mr Gregory says it hadn’t travelled far over that period. According to Mr Gregory the part that failed was the Welch plug. There has been no evidence led concerning any agreed standard of the original second-hand motor fitted to the van in January 2011. Welch plugs, which as I understand it, simply fill the cavity left after an engine block is poured, often corrode. There is no evidence that it was a requirement of the original supply of the first second-hand motor that the Welch plugs be new or warranted to remain good for any particular period. I note the warranty given Mr and Mrs Gregory for the second hand motor supplied by Topgear Mechanics in October 2013 was limited to 3 months only. I do not see why the motor supplied in 2011 would not have had a similar restricted agreed warranty period (leaving aside any possible statutory “warranty”).
There are guarantees rather than warranties, implied by the Australian Consumer Law. There is a guarantee as to acceptable quality of goods supplied in trade or commerce given under the Australian Consumer Law. Without evidence of any representations made as to condition at the time of supply of the motor by Mr Garrard in 2011 and taking into consideration the fact that 2 ½ years had passed since the purchase before there has been any failure I am not prepared to find a breach of any such guarantee. The applicants cannot succeed under any claim to any statutory warranty or guarantee on the evidence led.
In respect of the other matters in issue, Mr and Mrs Gregory allege that Mr Garrard swapped their cylinder head with another cylinder head from another van at his property and sent that cylinder head to Beaudesert Engine Reconditioning. Mr Gregory says there is no proof that it was their head that was sent to that shop.
Mr and Mrs Gregory are the applicants in this matter. The onus of proof lies with them to persuade the tribunal on the balance of probabilities that matters in dispute should be decided in their favour. The only basis upon which this claim is made is conjecture and flimsy hearsay. They maintain they went to Mr Garrard's house and saw another similar van to theirs parked in front. They say a pedestrian walking by said to them that he had seen another van, which they suggest may have been their van, parked next to the van parked at the property. This appears to be the entire basis of the applicants’ leap to the assertion that Mr Garrard swapped cylinder heads and put in a different head for assessment by Beaudesert Engine Reconditioning.
Whilst s 28 of the Queensland Civil and Administrative Tribunal Act 2009 provides that the tribunal is not bound by the rules of evidence and may inform itself in any way it considers appropriate, I conclude it would be unfair to accept this assertion on this tenuous basis. The applicants bear the onus of proof on this matter and they have failed to convince me about it. Accordingly I do not conclude that Mr Garrard swapped cylinder heads.
That leaves the issue as to whether or not Mr Garrard misdiagnosed the problem with the van.
I have concluded that the cylinder head presented for examination to Beaudesert Engine Reconditioning was from Mr and Mrs Gregory's van. I accept the conclusion to be drawn from the statement of evidence from Mr Piper of that firm that that cylinder head was defective.
There is a statement filed from Campbell Davidson a mechanic employed by Mr Garrard at Jimboomba Tyres and Mechanical in which he says he inspected the vehicle when it was first brought into the workshop with Mr Garrard. He found the cooling system empty of coolant and the vehicle would not start. They added water to the cooling system and then attempted to start the vehicle which resulted in water being blown out of the radiator with combustion fumes and the vehicle still didn't start. He said this meant the vehicle had a blown head gasket or cracked head.
Mr Gregory is a retired mechanic. He has examined in some detail the engine parts and the block of his van’s motor when it was returned to his property by Mr Garrard. He says after examining the top surface of the engine block and the other components removed from the engine he was unable to detect any signs of engine overheating. He also examined the piston rings, connecting rods, big end shells and their mating surfaces on the crankshaft but none of them showed evidence of overheating. The crankshaft rotated freely. He said there was therefore no evidence that would indicate that it was necessary to dismantle or strip down the engine.
A statutory declaration by Antoon Salentijn, apparently a mechanic from the motor repair shop Topgear Mechanics, has been filed on behalf of the applicants. In that statutory declaration Mr Salentijn states that on preparing a quotation for repairs he saw no indicative evidence of engine overheating on the upper surface of the dismantled engine cylinder block which mated with the lower surface of the cylinder head assembly or within the cylinder bores.
I note there is nothing from that mechanic concluding that there was simply a Welch plug problem with the block. Further, if the matter had always been simply a Welch plug, one wonders why Mr Gregory didn't diagnose that problem before calling Mr Garrard, given he is a retired mechanic.
I might note there is no evidence that the van could not have suffered from both a leaking Welch plug and a blown head gasket or damaged cylinder head, the latter caused by the leaking Welch plug.
What is not deposed to by Mr Salentijn however is that because there were no such signs of engine overheating in the parts he examined, the cylinder head could not in result have been cracked or a head gasket blown. Mr Salentijn’s evidence does not go far enough, nor Mr Gregory’s, to discount that possibility.
Mr Piper appears to be the only repairer apart from Mr Gregory and Mr Garrard who actually examined the cylinder head and Mr Piper concluded it was damaged. As such I am not persuaded by the applicants that the cylinder head did not need repair or replacement. I further conclude the damage has been caused by overheating, whether attributable to a leaking Welch plug or otherwise.
I conclude in all the circumstances it was reasonable for Mr Garrard to dismantle the motor and send the head away for a quote for machining or replacement. He did no more than he said he would.
I note the applicants raised an issue about the statements of evidence filed on behalf of the respondents not being sworn as ordered. Parties often have a difficulty understanding what this means and often fail to fully comply. The statements from Mr Piper, Mr Campbell and Mr Garrard are all signed in the presence of a justice of the peace, however they are not in the form of a statutory declaration nor in the form of an affidavit. In the circumstances however and given I have explained the tribunal is not bound by the strict rules of evidence, I accept the statements of evidence in the form taken and have given such weight to them as I have considered appropriate.
Finally I also note the applicants made mention that certain parts from the engine were never returned when the van was returned to their property. No particulars of the value of the parts missing have been provided however and in any case I note that despite Mr Garrard dismantling the motor to determine what the problem with the motor was he has charged nothing for his costs in that exercise. The costs apparently owed by the applicants to Mr Piper of Beaudesert Engine Reconditioning are a separate issue and not a matter to be determined here.
On my findings there is nothing unfair in this conclusion to Mr and Mrs Gregory. The motor was damaged and had to be repaired, whether by Mr Garrard or Topgear Mechanics. They would have had to pay someone the moneys they have, or approximately the amount paid, to get the vehicle repaired as it has been.
In all the circumstances the appropriate order of the tribunal in this matter is that the application be dismissed.