Hall v Wyatt Automotive

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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 77

Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480

APPEARANCES & REPRESENTATION:

Applicant:  Self represented

Respondent: Self represented

REASONS FOR DECISION

Introduction 

  1. 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.

  2. 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.

  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.

  4. For several weeks, when the car was with Wyatt, Hall was obliged to hire suitably equipped…

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Details
Case
[2022] QCATA 150
Decision Date

CaseChat Overview and Summary

In the case of Hall v Wyatt Automotive, the plaintiff, Mr Hall, brought a claim against Wyatt Automotive, a motor vehicle repair company, following a series of unsuccessful attempts to repair his vehicle. Mr Hall alleged that the company had agreed to waive a portion of the repair charges and reimburse him for the costs of hiring a substitute vehicle due to delays in the repair process. The trial was held on 16 November 2021, and the tribunal awarded Mr Hall $1,710, implicitly rejecting his claim for a credit of $2,012.70 for failed repairs. The primary issue before the court was whether the tribunal had properly assessed the evidence and the extent of the agreement between Mr Hall and Mr Luggton, an employee of Wyatt Automotive. The court held that there was insufficient evidence to support the tribunal's findings, particularly given the absence of Mr Luggton, who was the only other person who could provide evidence regarding the agreement.

The court further found that Wyatt Automotive had not exercised due diligence in locating Mr Luggton as a witness. The court held that Wyatt Automotive's failure to call Mr Luggton or tender any written statement from him was a serious omission. The court also found that Wyatt Automotive had not made every reasonable effort to obtain Mr Luggton’s version of the alleged Hall-Luggton agreement, and a last-minute and unsuccessful telephone call during the trial hardly amounted to a diligent quest for crucial evidence. The court held that Wyatt Automotive had ample opportunity to obtain a statutory declaration or statement from Mr Luggton, who remained in their employ for several months after repairs were completed.

The court allowed the appeal and set aside the decision of the tribunal made on 16 November 2021. The court dismissed Wyatt Automotive's application filed on 4 March 2020 in lieu thereof. This decision highlights the importance of due diligence in locating witnesses and the need for courts to properly assess the evidence presented before them.

Orders

Orders of the court

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.