Ian Andrew Smith Trading As Ian’s Service Centre v Van Der Toorn & Anor (Civil Dispute) - [2015] ACAT 66

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

IAN ANDREW SMITH TRADING AS IAN’S SERVICE CENTRE v VAN DER TOORN & ANOR (Civil Dispute) [2015] ACAT 66

XD 14/1657
Catchwords: CIVIL DISPUTE - vehicle repairs – unlicensed motor vehicle repairer – whether contract valid when motor vehicle repairer is unlicensed

Legislation cited: Fair Trading (Motor Vehicle Repair Industry) Act 2010 s 8

List of
Texts/Papers cited: Explanatory Statement, Fair Trading (Motor Vehicle Repair Industry) Bill 2009

Tribunal: Ms J. Lennard – Senior Member

Date of Orders: 30 September 2015
Date of Reasons for Decision: 30 September 2015

ACT CIVIL & ADMINISTRATIVE TRIBUNAL XD 14/1657

BETWEEN:
IAN ANDREW SMITH TRADING AS
IAN’S SERVICE CENTRE
Applicant

AND:
JAMIE VAN DER TOORN
KARLY AMY WATERS
Respondents

TRIBUNAL: Ms J. Lennard – Senior Member

DATE: 30 September 2015

ORDER

The respondents are to pay the applicant the amount of $1411 within 14 days of the date of this order.

………………………………..
Ms J. Lennard – Senior Member

REASONS FOR DECISION

Background

The applicant conducts the business of motor vehicle repair from a workshop at his home. The workshop consists of a single garage with a pit in the ground with lights, airlines, electricity, drains and stairs. The applicant gave evidence that he had been conducting the business of motor vehicle repair from this site for approximately 35 years. The applicant does not have a licence issued under the Fair Trading (Motor Vehicle Repair Industry) Act 2010.
The invoice supplied by the applicant is headed Ian’s Repairs & Servicing Centre and has a hand written notation that Ian Andrew Smith is not registered. It is not clear whether this means that the applicant is not a licensed motor vehicle repairer or that the business name is not a registered business name.
The applicant does not have a trade certificate or formal qualifications in motor vehicle repairs, but provided evidence that he had completed a 12 month course with Auswide Colleges and had achieved competencies in workshop practice activities, use and maintenance of workplace tools and equipment, safe working practices, environmental regulations and best practice in a workshop on business and small engine maintenance. The testamur provided stated that these competencies form part of the requirements for Certificates I & II in Automotive Studies.
The respondents purchased a second-hand car which was unregistered. They approached the applicant and engaged him to work on the car, including undertaking a full service, installing shock absorbers and undertaking a general check to get the car into roadworthy condition. The evidence before the Tribunal was that the car was able to be driven away from the applicant’s workshop.
The applicant gave evidence that the work performed on the car was valued at $1500; calculated at 50 hours work at an hourly rate of $50 being $2500 and then discounted by $1000 for payment within 14 days. The cost of the parts used was $803. The applicant claimed that a total of $2303 was due to him. He acknowledged that the respondent had already paid him $700 and claimed payment of the balance of $1603 in this application. The applicant provided a copy of the invoice he had prepared in relation to this work and showed that on the back he had recorded that the respondents made the following payments: $100 on 4 June 2014, $50 on 17 June 2014, $150 and $200 on 13 July 2014, and $200 on 4 September 2014.
The respondents assert that they have made a total of $800 in payments to the applicant, but provided no evidence to support this. Further, the respondents dispute that they are liable to pay the amount claimed on the basis that the wiper blades were incorrectly fitted and the windscreen was scratched and that the spare tyre, wheel brace and carjack had not been returned, the applicant had damaged the car while it was at his workplace and that the interior lights were not working.
The applicant conceded that he damaged the door of the vehicle while it was in his care, but noted that he had taken steps to repair the damage.
The respondents have not made a counterclaim. The respondents provided evidence that they had paid an independent mechanic $250 for the hand brake and power steering to be repaired. A receipt from Triple M Mobile Mechanics was provided, but no report of the work done or the reason for the work.
The applicant provided written statements from the following of his customers: Joanne Glasson, Mihail Staicu, Anna Kamarul, Leon Beames and Jolanta Noj-Matheson. Each expressed satisfaction with the servicing and repair of their motor vehicle and several stated that they would not hesitate to recommend the applicant’s car servicing to others.
Joanne Glasson gave sworn evidence that she has worked for the applicant for eight years. She stated that the respondents’ car was in a filthy state with the car boot full of water and cockroaches when delivered to them and that it was the usual practice of the applicant to clean out the cars prior to doing any work on them. She gave evidence that she assisted the applicant to write the reports and invoices in relation to the work done on the respondents’ vehicle, that the vehicle was in the applicant’s workshop for approximately 4 months and that he had worked on it almost every day.
Andrew Brady gave sworn evidence that he was the owner of an Audi convertible with the twin turbo engine and that he had engaged the applicant to service the car and that he was extremely happy with the work done and that he would continue to use the applicant services. Mr Brady further gave evidence that he was aware that the applicant had no formal motor vehicle repair qualifications, and that he did not have a licence pursuant to the Act.
Mihail Staicu gave sworn evidence that he had been using the applicant as a motor vehicle repairer for about six months and that he was very satisfied with the work that had been done.
Leon Beames gave sworn evidence that the applicant had been servicing his vehicles for many years and that he was very happy with the work that was done. He further gave evidence that he understood that the applicant was ‘a back yardie’ and that he had no formal mechanical qualifications. It did not concern the witness that the applicant was not licensed pursuant to the Act.
When the respondents were asked by the Tribunal why they didn’t want to pay the applicant’s bill they answered “because this is just lies, lies, lies and lies.” The respondents did not deny that the parts listed by the applicant had been supplied, but objected that they had not seen receipts for the parts. In written submissions filed after the hearing, the applicant provided receipts for some parts used in the repair of the respondents’ vehicle. The receipts total $865.53; however, they do not appear to easily correspond to the list of parts supplied by the applicant with the original application.
The applicant conceded that he should not claim for the cost of recharging the battery, repairing the damaged door, the wiper blades which damaged the windscreen, sand blasting four wheel spacer plates, a can of white engine enamel for the spacer plates and a can of fluoro green paint. Some of these parts were offered as an apology for the damage sustained by the respondents’ vehicle. It was not disputed by the respondents that the damage done by the applicant had been repaired.
The applicant provided evidence as to the parts used, the work done and the time taken to do the work on the respondents’ vehicle. The witnesses provided evidence as to the reliability of the work done by the applicant and their satisfaction with the work and the prices he charged. The applicant readily admitted that he was not registered pursuant to the Act, but gave evidence as to his extensive experience in the motor vehicle repair industry. The applicant stated that he was not aware of the need for a licence. The evidence establishes that the applicant has never represented himself as anything other than an un-licensed backyard operator.
The respondents provided no evidence that the work done had not been done properly, or that the parts alleged to have been supplied had not been supplied.
At the conclusion of the hearing the Tribunal noted that the respondents had provided very little evidence. The matter was adjourned for a written decision and the parties were given leave to file written submissions on or before 24 April 2015. The applicant provided copies of receipts for the parts purchased, but the respondent made no further submissions.
The Tribunal is satisfied that the parties were in a contractual relationship. The contract provided that the applicant would do all necessary work and supply all necessary parts to bring the dilapidated second-hand vehicle owned by the respondents, to a working and roadworthy condition. The Tribunal is satisfied on the balance of probabilities that the applicant did the work in a competent manner. The Tribunal is satisfied on the balance of probabilities that the respondents have paid an amount of $700 to the applicant.
Section 8 of the Fair Trading (Motor Vehicle Repair Industry) Act 2010 provides that a person carrying on business as a motor vehicle repairer is to be licensed and that a person who carries on business as a motor vehicle repairer and does not hold a licence commits an offence under that Act. There is no evidence before the Tribunal as to whether the applicant would be entitled to a licence pursuant to the Act.
The Explanatory Memorandum for the Act states that the regulatory regime is set up with strict liability offences for reasons such as public safety and that the public interest is in ensuring that regulatory schemes are observed. One of the aims of this regulatory scheme is to ensure that minimum standards of conduct and care are enforced. The Act imposes sanctions by way of prosecution and possible fine for people who fail to comply with the licensing provisions. The Explanatory Memorandum[1] says that the prohibition of unlicensed behaviour is crucial to ensuring that the regulatory scheme meets the following community expectations:
·   addressing market failure and an imbalance in the consumer/trader            relationship which arises from information asymmetry;
·   preventing misleading and dishonest business practices in motor      vehicle repairs;
·   promoting and enhancing fairness of trading in the market place from         the viewpoint of both business and consumers;
·   improving the competency of motor vehicle repairers, and the quality          of motor vehicle repairs, and reducing the incidence of rework;
·   enhancing public safety by reducing the incidence of accidents to      which inadequately performed repairs are a contributing factor;
·   reducing the harmful environmental impact of motor vehicle emissions        and motor vehicle repair work practices;
·   enabling access to a speedy, relevant and efficient dispute resolution           process between repairers and consumers; and
·   making consumers and traders more aware of their rights and         obligations.
[1] Explanatory Statement, Fair Trading (Motor Vehicle Repair Industry) Bill 2009, page 5
There is nothing in the legislation that makes it unlawful to enter into a contract for motor vehicle repairs to be done by a person who is not licensed. Where there is no express prohibition on the making of a contract, but where conduct surrounding the making of the contract contravenes a statute, it could be implied that the contract is unlawful. It will not, however, always follow that a contract which results in the breach of a statute is illegal, and thus unenforceable.

23. The statute imposes sanctions on people who perform the work of motor vehicle repairs without a licence. If the Tribunal refuses to enforce the contract because the work was associated with an unlawful activity, the respondents will have a windfall and the applicant will face a sanction beyond that contemplated by the Act. The Tribunal therefore orders that the respondents pay the $1603 claimed by the applicant, minus the amount of $192 being the value of those items conceded by the applicant as being related to the repair of the damage done to the vehicle by him and/or offered by way of ‘apology’. The amount is to be paid within 14 days of the date of this order.
………………………………..
Ms J. Lennard
Senior Member

HEARING DETAILS

FILE NUMBER:	XD 14/1657
PARTIES, APPLICANT:	Ian Andrew Smith t/as Ian’s Service Centre
PARTIES, RESPONDENT:	Jamie Van Der Toorn Karly Amy Waters
TRIBUNAL MEMBERS:	Ms J. Lennard – Senior Member
DATES OF HEARING:	14 April 2015