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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Gregory v Jimboomba Tyres and Mechanical

Details

AGLC: Gregory v Jimboomba Tyres and Mechanical [2014] QCAT 306
Case: [2014] QCAT 306
Decision Date

CaseChat Overview and Summary

The applicants in this matter, James and Mary Gregory, are seeking to recover an amount of $4,694.45 plus costs from the respondent, Matthew John Garrard, who carries on business as Jimboomba Tyres and Mechanical. The dispute arises from the applicants' claim that Mr Garrard misdiagnosed the problem with their van and subsequently failed to properly repair it. The applicants allege that the cylinder head was swapped with another from another van and that the motor was not in fact defective but rather damaged due to a leaking Welch plug. Mr Garrard denies these claims and maintains that the motor was defective and required repair or replacement. The tribunal was required to determine whether the applicants' claims were substantiated and whether they were entitled to the relief they sought.

The tribunal found that the applicants had failed to discharge the onus of proof on the balance of probabilities. With respect to the applicants' claim that Mr Garrard swapped cylinder heads, the tribunal concluded that the assertion was based on conjecture and flimsy hearsay and therefore could not be accepted. The tribunal also found that the applicants had not established a breach of any statutory warranty or guarantee. In respect of the misdiagnosis, the tribunal accepted the evidence of Mr Piper of Beaudesert Engine Reconditioning that the cylinder head presented for examination was defective and concluded that it was reasonable for Mr Garrard to dismantle the motor and send the head away for a quote for machining or replacement. The tribunal found that the damage to the cylinder head was caused by overheating, whether attributable to a leaking Welch plug or otherwise. The tribunal also noted that the applicants had not provided particulars of the value of any missing parts and that despite dismantling the motor to determine the problem with the motor, Mr Garrard had charged nothing for his costs in that exercise.

The tribunal concluded that the appropriate order of the tribunal in this matter was that the application be dismissed. The tribunal found that there was nothing unfair in this conclusion to the applicants and that the motor was damaged and had to be repaired, whether by Mr Garrard or Topgear Mechanics. The applicants would have had to pay someone the moneys they have, or approximately the amount paid, to get the vehicle repaired as it has been.

The tribunal ordered that the applicants 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. The tribunal further ordered that 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. The tribunal ordered that the claim be thereafter determined on the papers without further oral hearing.

Orders