Grimes v Silversmith Pty Ltd - [2013] QCAT 648

CITATION:

Grimes v Silversmith Pty Ltd [2013] QCAT 648

PARTIES:	Nathan Grimes (Applicant)
v
Silversmith Pty Ltd (Respondent)

APPLICATION NUMBER:

MCDO116/13

PARTIES:	Nathan Grimes (Applicant)
v
Steve Smithers Pty Ltd (Respondent)

APPLICATION NUMBER:

MCDO117/13

MATTER TYPE:

Other minor civil dispute matters

HEARING DATE:

29 October 2013

HEARD AT:

Coolangatta

DECISION OF:

Adjudicator Bertelsen

DELIVERED ON:

15 November 2013

DELIVERED AT:

Coolangatta

ORDERS MADE:

1. The applications are dismissed.

CATCHWORDS:

Minor Civil Dispute – Sale of vehicle advertising – prepurchase inspection – adequacy of inspection report – right of redress - terms and conditions of sale – right of redress under sale contract

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Nathan Grimes appeared in person

RESPONDENT:

Silversmith Pty Ltd represented by Paul Britten
Steve Smithers Pty Ltd represented by Steven Smithers

REASONS FOR DECISION
Application 116/2013

By application 116/13 Mr Grimes claimed the sum of $20,091.15 from Silversmith Pty Ltd trading as Auto Service Centre also known as Paul Britten Motors (Paul Britten) being 50% of the loss incurred by him resulting from a pre purchase mechanical inspection identifying only 4 minor cosmetic defects in a 2009 Toyota Landcruiser Workmate V8 Turbo Diesel utility which Mr Grimes asserts was actually in an appalling condition requiring an unquantifiable degree of both structural and cosmetic repair such that the vehicles worth was for wrecking purposes only.

Application 117/2013

By application 117/13 Mr Grimes claimed the sum of $20,091.15 from Steve Smithers Pty Ltd (Steve Smithers) being 50% of the loss incurred by him resulting from the sale by Steve Smithers to him of a 2009 Toyota Landcruiser Workmate V8 Turbo Diesel utility on condition that it would be received as advertised i.e. in excellent condition and supplied with a roadworthy certificate. Mr Grimes asserts the vehicle as delivered was actually in an appalling condition requiring an unquantifiable degree of both structural and cosmetic repairs such that the vehicles worth was for wrecking purposes only.

Background and evidence

On 15 May 2013 Mr Grimes answered an advertisement displayed on carsales.com. It was for a 2009 Landcruiser Workmate V8 Turbo Diesel in excellent condition with four months registration and a roadworthy certificate to be supplied. This advertisement was placed by one Justin Shore of United Lending, a financier touting for business.
Mr Grimes telephoned Justin whom Mr Grimes asserted was in fact Mr Smithers. In any event, he says, he was informed the sale was private; that the vehicle was not a mine vehicle; that only monies sufficient to pay out the vehicle lease were sought and that there would be no statutory warranty included in the sale. Mr Grimes asserted that he then spoke to Don of Steve Smithers who confirmed all of the above. Mr Grimes indicated he wished to purchase the vehicle ‘subject to a mechanical check’. He stated that Don recommended Paul Britten. A mechanical inspection was carried out by Mr Britten at his business premises. Mr Britten drove the vehicle at the time of inspection. Mr Britten then provided to Mr Grimes what he termed his six module inspection report at a cost of $120.00. The inspection report was not nor did it purport to be a roadworthy certificate. The six modules were brakes visual, electrical, under body, tyres, engine and road test. Defects noted on the report were:
No washers, no mud flaps, under guard front damage, hand brake cover damage, tyres average. Any further enquiries ph Paul 07 5531 1727 thanks Paul.
Upon receipt of the inspection report Mr Grimes contacted Mr Britten who confirmed there was damage under the left hand side of the vehicle which looked ugly but to what extent he could not say. According to Mr Britten Mr Grimes indicated that such did not really matter as he, Mr Grimes, was buying the vehicle cheap enough. Mr Britten asserted that Mr Grimes appeared ‘happy enough with the telephone conversation’. Mr Britten stated he also advised Mr Grimes that the ‘motor diff and gearbox all functioned well, there was no overheating, excess oil or smoking from the motor, the gearbox, brakes and steering were all okay and anti freeze in cooling system etc all okay’. Mr Britten stated it was a mechanical check and that’s all; that he pressure tested for water leaks; that the 4x4 functioned; that the clutch thrust bearing was noisy but that was expected at 130,000 km. He indicated that it was not for him ‘to get tools and start digging away’; nor did he ever indicate the vehicle was in excellent condition.
Mr Grimes when asked what was his expectation of Mr Britten he indicated that he relied on Mr Britten and that he would ‘buy the car solely on his recommendation’. Mr Grimes alleged major defects in all six modules of Mr Britten’s report. Mr Britten said he was just asked to do a mechanical report; that nothing was said about relying on the report to purchase the vehicle. Mr Grimes in correspondence stated, ‘engine and drive line is good, body is poor… the car is drivable’.
Subsequent to receiving Mr Britten’s inspection report Mr Grimes telephoned Don at Steve Smithers about the defects identified by Mr Britten. According to Mr Grimes Don indicated that these items were roadworthy items and that they would be fixed when the roadworthy was done. Mr Grimes then agreed to purchase the vehicle. On 20 May or perhaps 21 May 2013 Mr Grimes received a fax from Steve Smithers enclosing a sale contract. When he rang to discuss the contract with Don he was told by Don that the contract was standard for the type of transaction concerned i.e. not accompanied by any statutory warranty. Mr Grimes then ‘read through, signed all together and sent back …’ Mr Grimes stated that shortly after he was informed the finance had gone through and that the roadworthy and shipping would follow. The purchase price of the vehicle is $27,990.00 and shipping $1,000.00 a total of $28,990.00 and this was the sum financed.
On 29 May 2013 the vehicle arrived at Altona, Victoria. Mr Grimes stated that when he saw the car he realized a roadworthy had not been completed. He arranged a temporary registration permit and had the vehicle taken to his mechanic in Diamond Creek. He stated that he then spoke to Don and asked him ‘if the roadworthy had been done and where was the receipt’. He stated that Don explained that they ‘did not believe I needed a roadworthy because it would be useless in Victoria’. Mr Grimes said that he then explained that he was promised a roadworthy as part of the verbal contract of sale and was not given one. Mr Grimes says he was then referred to Steve Smithers. Mr Grimes stated that shortly after his mechanic indicated to him that ‘this car is trouble’.
On 30 May 2013 Mr Grimes telephoned Steve Smithers explaining that he had not received the roadworthy certificate as ‘promised in our verbal contract’. Mr Grimes asserted that Steve Smithers then became abusive and hung up that thereafter he was not able to speak to Steve Smithers in any civil manner. On 31 May 2013 Mr Grimes collected the vehicle from his mechanic “AA Prompt Mobile Mechanics” in Diamond Creek and drove the vehicle to Collingwood Automotive Repairs. On 1 June 2013 Mr Grimes was informed by Collingwood Automotive that the ‘car was a very long way off getting a roadworthy if at all’. There appeared to be serious concerns such as the use of body deadener and over spraying of rusted areas as well as chassis repairs. On 2 June 2013 Mr Grimes telephoned Justin on the advertised mobile number. Mr Grimes asserted that Justin was actually an alias Steve Smithers. On 3, 4, 5 June despite attempts Mr Grimes was not able to have any meaningful conversation with Paul Britten about his report. Thereafter Mr Grimes ascertained he says that vehicles such as the one in question in similar condition to this vehicle would fetch between only $1,000.00 - $5,000.00. There was no evidence that the vehicle was ever physically inspected to arrive at such values.
Mr Britten insisted his inspection was a mechanical inspection only and that mechanically the vehicle functioned adequately; that such is what is recorded on his 6 module inspection report; that it was never the equivalent of a, for instance, full RACQ inspection of 51 modules costing up to $395.00. Mr Smithers produced quotes firstly from Franks Auto Parts of Smithfield NSW retailing a 2010 Landcruiser engine for $14,885.00 and secondly from Gold Coast 4WD wreckers retailing a 2009 Landcruiser engine for $11,400.00. Mr Britten produced a quote from Hinterland 4x4 & Commercial Wreckers for a 2010 Landcruiser V8 turbo engine for $13,500.00.
Mr Grimes produced photos indicating rusted chassis, faulty wiring, rusted brakes, pitting, bent/broken mudguard, rusted body work, uncapped wiring, faulty lock, rust in structural member, faulty ECU, faulty filler neck.
The contract with Steve Smithers Pty Ltd signed by Mr Grimes on or about 21 May 2013 makes it clear the vehicle was purchased through a licensed motor dealer; that no statutory warranty attached to the sale with Mr Grimes having agreed to waive such; that Mr Grimes had had the vehicle independently inspected; that Mr Grimes acknowledged the purchase.
Attached to the contract was a statement that the vehicle was sold unregistered, sold for the purpose of wrecking, renovation, repairs or alterations under section 44K(1)(B) of the Inspection of Machinery Act. The statement goes on to state ‘this motor vehicle has been acquired by me for (a) use on private property (b) for the purpose of wrecking, renovation, repairs or alteration of the vehicle and that whilst such vehicle remains unregistered, I am of the understanding that it shall not be used on public roads’. Mr Grimes admitted that the vehicle was sold unregistered but stated that he was to receive a roadworthy certificate with the vehicle. This was an oral agreement that he asserted formed part of the contract for the purchase of the vehicle. He was to receive a Queensland roadworthy certificate even though it was not acceptable for registration purposes in Victoria.
Mr Grimes obtained a structural condition report from Oven Baked Enamel Services of Ringwood, Victoria indicating structural repairs to cost $33,076.68 and a mechanical report from Collingwood Automotive Repairs for mechanical repairs upwards of $7,000.00.
Mr Smithers asserted that Mr Grimes initially wanted a refund of some $3,000.00 to $3,500.00; that if he, Mr Grimes, did not obtain satisfaction that he would turn the whole of his dealing with Mr Smithers into a claim for tens of thousands of dollars. Mr Smithers stated that Mr Grimes had driven the vehicle on public roads in Victoria and that to do so the vehicle must have been mechanically sound or at least stated to be safe to drive; that Mr Grimes had driven the vehicle over 200km in the meantime.
Mr Britten said the first page of the Collingwood Automotive Repairs quote was headed up “vehicle report”. Mr Britten said that in fact was consistent with his own mechanical report; that the second page of the Collingwood Automotive Repairs report listed numerous items for the purpose of a roadworthy report; his, Mr Britten’s report, was never a roadworthy report so the second part of the Collingwood Automotive Report was not relevant.
Mr Grimes acknowledged that the price paid for the vehicle was less than market; that the sale price would be more like $35,000.00 in Melbourne. Mr Smithers suggested more like $45,000.00.

Conclusions

When initially considering whether to purchase the vehicle Mr Grimes had Mr Britten inspect the vehicle. Mr Britten’s report is by any measure rudimentary. The Tribunal accepts his inspection was a mechanical inspection only; that he drove the vehicle; that the vehicle functioned well enough mechanically. Whilst there may have been some componentry not in what turned out to be Mr Grimes desired condition, particularly for roadworthy purposes, there was no evidence produced to indicate the vehicle was not functional mechanically. Indeed Mr Grimes confirmed in correspondence that the engine and drive line were good and that the vehicle was drivable. Mr Smithers assertion the vehicle had been driven some 200km post purchase was not denied but rather affirmed by the evidence of the obtaining of a limited permit by Mr Grimes to drive the vehicle on public roads.
Prior to signing the sale contract Mr Grimes never personally inspected the vehicle. He placed, he said, “complete reliance” on Mr Britten’s short report for a purchase well under market value. Although it appears the vehicle may have had a hard life there was no evidence determinative of it being a mine vehicle as opposed to a vehicle that may have spent time in rural areas.
The Tribunal accepts Mr Britten’s evidence that he was not aware of Mr Grimes placing complete reliance for the purchase of the vehicle on him; that Mr Britten’s report was never in the nature of a roadworthy certificate; that it was only ever incumbent upon Mr Britten to carry out a mechanical check.
It is not reasonable for Mr Grimes to attempt to hold Mr Britten liable where numerous of the defects depicted in his photographic evidence are not such as would have affected the content of Mr Britten’s report for example some chassis rust does not render the chassis wholly defective and pitting does not render metal componentry inoperable; rather they come with age and usage. Mr Grimes asserted major defects in all 6 modules of Mr Britten’s mechanical report. However, there was no evidence before the Tribunal that the road test module was deficient or defective; that the engine did not function as stated by Mr Britten or that the tyre tread was anything other than as stated by Mr Britten.
Mr Britten’s mechanical report is generally consistent with page 1 of Collingwood Automotive Repairs Report of 4 June 2013 page 1, vehicle report. Whilst the latter identifies some items such as ‘RHF ¼ window button not working and interior light not working’ these are not items the subject of Mr Britten’s report in any event. Mr Britten’s mechanical report set out what was checked by him. It was in the nature of a check rather than a statutory based roadworthy certificate. Mr Britten’s report is adequate in terms of the brief given to him to carry out a mechanical check on the vehicle.
The vehicle advertised for sale on Carsales.com. bore little resemblance to the vehicle contracted to be purchased by Mr Grimes. It was clearly not in excellent condition, it was unregistered and not accompanied by any roadworthy certificate. In terms of the statement attached to the sale contract signed by Mr Grimes as purchaser the vehicle was acquired for use on private property and/or for the purpose of wrecking, renovation, repairs or alteration; nor was it to be used on public roads while remaining unregistered. This statement is certainly at odds with Mr Grimes assertion that he was purchasing a vehicle in excellent condition. A roadworthy certificate (or safety certificate as now called) is usually a prerequisite to transfer i.e. it is required to be completed before and produced at the time transfer of registration takes place. This vehicle was sold unregistered.
There was no mention of a roadworthy certificate on the sale contract. At the time of signing the sale contract no attempt to include a roadworthy certificate appears to have been made; rather according to Mr Grimes it was Don of Steve Smithers who indicated some days later that a roadworthy would be completed. Mr Grimes asserted that an oral component, namely provision of a roadworthy certificate, formed part of the written contract. Mr Britten was never briefed to produce a roadworthy certificate. The Tribunal finds it unlikely that Steve Smithers would have acceded to the provision of a roadworthy certificate i.e. going to the trouble and expense of obtaining a roadworthy certificate when it was clear to all parties that such was of no use for registration in Victoria. Rather the use of the words “wrecking, renovation, repairs or alteration” are strongly suggestive of the expectation of money having to be spent on the vehicle in circumstances where Mr Grimes was purchasing the vehicle “cheap enough” and on the undisputed evidence, well under market value.
The Tribunal accepts the evidence of Steve Smithers that the provision of a roadworthy certificate never formed part of the dealing between Mr Grimes and Steve Smithers.
It was always Mr Grimes decision to purchase the vehicle; that he did so sight unseen pursuant to a written contract recording the vehicle as unregistered, unaccompanied by a roadworthy certificate and positively stated to be purchased for wrecking, renovation, repairs or alteration is compelling evidence he purchased the vehicle entirely at his own risk; nor is it competent for Mr Grimes to blame Mr Britten whose only involvement was to provide a mechanical check to ascertain if the vehicle functioned mechanically which it did.
The applications are dismissed.