Hall v Wyatt Automotive
[2022] QCATA 150
•6 October 2022
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION
Hall v Wyatt Automotive [2022] QCATA 150
PARTIES: peter hall (applicant)
v
wyatt automotive (respondent)
APPLICATION NO:
APL354-21
MATTER TYPE:
Other minor civil dispute matters
DELIVERED ON:
6 October 2022
HEARING DATE:
27 September 2022
HEARD AT:
Brisbane
DECISION OF:
Dr J R Forbes
ORDERS:
1 Leave to appeal is granted.
2 The appeal is upheld.
3 The decision of the tribunal made on 16 November 2021 is set aside.
4 In lieu thereof the application filed herein by Wyatt Automotive on 4 March 2020 is dismissed.
CATCHWORDS:
APPEAL – APPLICATION FOR LEAVE TO APPEAL – MINOR CIVIL DISPUTE - MINOR DEBT – where motor vehicle owner engages applicant company to make repairs – where owner’s wife, to the knowledge of the repairer is physically disabled – where several attempts to repair are required – where vehicle owner is obliged to hire specially equipped vehicle during delays in repair process – where customer alleges that repairer waived portion of charges and agreed to reimburse customer expense of hiring substitute vehicle – where principal repairer company denies agreement to withdraw bill and pay car hire expenses – where responsible employee of repairer not produced as witness – whether due diligence exercised in locating absent witness – whether Jones v Dunkel applicable – where repairer company fails to respond to business correspondence claiming liability – where appeal allowed and primary decision set aside
Commonwealth of Australia v Pharmacy Guild of Australia (1989) 91 ALR 65
Davies v Nyland (1974) 10 SASR 76
Davis v Davis Wissing (Party Cited) (1963) 5 FLR 398
Earle v Castlemaine District Community Hospital [1974] VR 722
Jet 60 Minute Cleaners Pty Ltd v Brownette [1981] 2 NSWLR 232
Jones v Dunkel (1959) 101 CLR 298
O’Meara v Dominican Fathers (2003) 153 ACTR 1
Parkes v The Queen [1976] 1 WLR 1231
R v King; Ex parte Westfield Corporation (Victoria) Ltd (1981) 91 ALR 65
R v Mills [1986] 1 Qd R 77Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480
APPEARANCES & REPRESENTATION:
Applicant: Self represented
Respondent: Self represented
REASONS FOR DECISION
Introduction
In or about May 2019 the applicant (‘Hall’) took his BMW motor vehicle (‘the car’) to the respondent (‘Wyatt’) for repairs. It was ‘shuddering’ when driven.
The car is specially adapted to transport a disabled passenger. As Wyatt knew at all material times[1], Hall’s wife is severely handicapped.
[1]See transcript of primary hearing 16 November 2021 page 9 lines3-4; page S 16 line 36; email Hall to Wyatt 26 January 2020 paragraph 1; email Hall to Wyatt 6 February 2020 paragraph 3.
Unfortunately, the path to customer satisfaction did not run smooth. The subject defect was not remedied until September 2019. Meanwhile Hall had to return the vehicle to Wyatt several times while the latter made unsuccessful efforts to complete the necessary repairs. So much is not in dispute.
For several weeks, when the car was with Wyatt, Hall was obliged to hire suitably equipped vehicles. The reasonableness of that action, and the quantum of hiring costs are not in issue.
Wyatt’s total charges for its services amounted to $8,000.[2] Hall paid Wyatt just $4,000[3], leaving an unpaid balance of $4,000, for reasons that appear below.
[2]Invoice Wyatt to Hall 8 July 2019.
[3]T page 3 line 15; page 7 line 10.
Action commenced – defence specified
On 4 March 2020 Wyatt filed an action for debt against Hall, alleging an unpaid and overdue debt of $4,000. Hall, by his Response of 12 November 2020, denied liability alleging that the balance of the account had been cancelled ‘as agreed with [Wyatt’s] Service Manager [Luggton] at the time’.[4] The Response proceeded:
Wyatt Auto has failed to credit two amounts agreed by a senior staff member[5] of the company. … $2012.70. Wyatt failed to repair the same fault no less than on 3 or 4 occasions. On the last occasion … Wyatt Auto requested the car for two weeks and guarantee[d] the fault would be fixed. It wasn’t and the Service Manager agreed to credit the repair. $1,990 because the last repair … failed … Owing to the health issue of my wife this seriously complicated our lives. The Service Manager [Luggton] agreed to credit the cost of a disabled vehicle hire.[6]
[4]Response Part C.
[5]Cliff Luggton, former Service Manager.
[6]Response annexure paragraph 4.
Hall maintained that narrative in several emails to Luggton[7], and in his evidence at the hearing:
I can’t see that the cost of the hire car is mine, and I can’t – I can’t see why the cost of the failed repair shouldn’t be credited, and that’s what Mr Luggton agreed.[8]
I went straight back to Mr Luggton and that’s when the negotiations[9] were held about refunding … that repair and starting the whole process again and also around the hire of a specialised [substitute] vehicle so that I could move my wife around.[10]
[7]Hall to Luggton 22 October 2019, 23 November 2019, 10 January 2020.
[8]T page 9 line 25.
[9]From now on referred to As ‘the Luggton-Hall agreement’.
[10]T page 18 lines 10-14.
Evidence undisputed
There is no evidence that Luggton ever disputed Hall’s story of the Luggton-Hall agreement. Luggton was not a witness at the hearing, and he provided no documentary evidence of relevant dealings with Hall. Hall dealt with Luggton alone[11]; Mr Wyatt was not present at any material meeting of that pair. Understandably then, Wyatt could but lamely say that he ‘doesn’t believe that [Luggton] made an agreement as such on that basis’,[12] and that Luggton himself ‘doesn’t believe he made an agreement as such on that basis’.[13]
[11]T page 22 line 1.
[12]T page 2 line 36.
[13]T page 3 line 31.
Wyatt fairly concedes that if Hall’s account of the Luggton-Hall agreement were accepted, it would bind his company.[14]
[14]T page 3 line 40.
Trial and decision
The trial was held on 16 November 2021. In an extempore decision Wyatt was awarded $1,710, the adjudicator remarking: ‘That’s taking into consideration the car hire of $2,290.’[15] (In fact Hall claimed $1,990 car hire of $1,990.) Implicitly, then, Hall’s claim of a $2,012.70 credit for failed repairs was disallowed.
[15]T page 26 lines 25-26.
Hall’s evidence
When the hearing began, the adjudicator summarised Hall’s story in pellucid terms:
I have read through the majority of the material, and what I get from Mr Hall’s position is he said he had an agreement with Mr Luggton, who worked for you, that he was going to be credited the first invoice of 2180[16], and that … Wyatts were going to pay the cost of a hire car for a period of two weeks [and that] this was actually resolved with Mr Luggton.[17]
[16]$2,012.70 to be precise: Wyatt Auto invoice 10 June 2019.
[17]T page 2 lines 15-19.
But when it came to the decision the description of the transaction was rather less precise, although the making of an agreement was vaguely accepted:
Luggton … clearly made some sort of offer to [Hall] about making some type of payment.[18]
I am satisfied that there were some representations made by Mr Luggton. As to their full extent, I can’t be satisfied.[19]
But as to either waiving the bill or paying the costs of the repair car[20], there seems to have been some conversations surrounded by that, which is in some ways supported by the correspondence.[21]
[18]T page 25 lines 40-41.
[19]T page 25 lines 46-47.
[20]I.e. the hire car.
[21]T page 26 lines 1-3.
With respect, the evidence of Hall – the only available evidence of the Luggton-Hall agreement – deserves a less vague and equivocal description. In short, Hall’s version, and the tribunal’s initial summary of it, specify (a) a release from the bill for the failed repair, and (b) an undertaking to reimburse Hall for car expenses occasioned by delays due to unsuccessful repairs.
While the car expenses were allowed – despite the tribunal’s revisionist expressions of uncertainty about the agreement – no reasons are given for the implicit rejection of Hall’s claim of waiver of the bill for a service that proved futile. Hall gave the only direct evidence on this point, and his evidence draws support from Wyatt’s failure to call Luggton, and Luggton’s failure to contest several assertions of Hall’s case[22] in emails to him.
[22]I.s. terms of the alleged Hall-Luggton agreement.
Luggton’s absence
The only person apart from Hall who could contest or confirm the existence of the Hall-Luggton agreement was Luggton himself. But Wyatt did not call Luggton, nor did he tender any written statement by him. As the adjudicator observed, the absence of Luggton at the trial was a serious omission. There is, in my view, insufficient evidence that Wyatt made every reasonable effort to obtain Luggton’s version of the alleged Luggton-Hall agreement. A last-minute and unsuccessful telephone call during the trial, ordered by the tribunal, hardly amounts to a diligent quest for ‘crucial’[23] evidence. Wyatt had ample opportunity to obtain a statutory declaration or statement from Luggton, who remained in his employ for several months[24] after repairs were at length completed, even if Luggton was really uncontactable at the time of the trial.
[23]T page 23 line 48.
[24]September to December 2019.
Failure to produce a material witness without an adequate explanation justifies an inference that his evidence would not have assisted the party who failed to call him, or at least to produce his version in writing.[25]
[25]Jones v Dunkel (1959) 101 CLR 298 at 312; Earle v Castlemaine District Community Hospital [1974] VR 722; O’Meara v Dominican Fathers (2003) 153 ACTR 1.
Hall’s claims to Luggton not disputed
There is no evidence that Luggton contested the assertions of Hall’s case in emails that Hall directed to him, other than Wyatt’s hearsay statement that Luggton ‘doesn’t believe that he made an agreement as such’[26]. Failure to respond to an imputation in business correspondence between persons on equal terms may warrant an inference that silence is tantamount to an admission.[27] That appears to be the case here.
[26]T page 2 line 36.
[27]Parkes v The Queen [1976] 1 WLR 1231; R v Mills [1986] 1 Qd R 77; Davies v Nyland (1974) 10 SASR 76 at 88.
Absence of reasons
Quite apart from the points made in paragraphs [15] to [17] above, there is another consideration that affects, fundamentally, the subject decision. No reasons are given for disregarding or rejecting Hall’s evidence of Luggton’s waiver of the bill for $2,012.70, despite the tribunal’s clear notation of that claim early in the proceedings.[28] No contrary evidence of fact, or criticism of credit is cited to support that ruling. A failure to give reasons, or adequate reasons when there is a statutory duty to do so avoids the decision in question.[29] An adjudicator who has to give reasons is less prone to `caprice or purely emotive or impulsive reactions’.[30] Absent sufficient reasons an appeal tribunal tends to conclude that no good reason existed.[31]
[28]See paragraph [11] above.
[29]Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; Commonwealth of Australia v Pharmacy Guild of Australia (1989) 91 ALR 65 at 88.
[30]Davis v Davis Wissing (Party Cited) (1963) 5 FLR 398 at 401.
[31]R v King; Ex parte Westfield Corporation (Victoria) Ltd (1981) 91 ALR 65 at 88; Jet 60 Minute Cleaners Pty Ltd v Brownette [1981] 2 NSWLR 232 at 235.
Conclusions
For the several reasons set out above the primary decision must be set aside.
I have considered the possibility of remitting the matter for rehearing. However, bearing in mind the inconvenient consequences of such a decision, and the expeditious spirit of the QCAT legislation, I consider that the proceedings can and should be resolved forthwith. On the evidence available this appeal tribunal is as well placed to finalise the case as an adjudicator would be at a later stage. Besides, the absence of reasons is an insuperable hurdle.
Accordingly, the subject decision will be set aside, and in lieu thereof the original application, filed on 4 March 2020 must be dismissed.
ORDERS
Leave to appeal is granted.
The appeal is upheld.
The decision of the tribunal made on 16 November 2021 is set aside.
In lieu thereof the application filed herein by Wyatt Automotive on 4 March 2020 is dismissed.
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