Jones v Purnell Motors Pty Ltd

[2010] NSWDC 82

CITATION:	Jones v Purnell Motors Pty Ltd & Anor [2010] NSWDC 82
HEARING DATE(S):	27-30 October 2009, 2-4 November 2009 and 4 December 2009
JUDGMENT DATE:	24 February 2010
JURISDICTION:	Civil
JUDGMENT OF:	Hungerford ADCJ
DECISION:	1. Verdict and judgment for the first defendant against the plaintiff. 2. Plaintiff to pay the first defendant's costs as to 80% of those costs assessed on the ordinary basis. 3. Note action settled on 26 October 2009 as between the plaintiff and the second defendant and consent orders made.
CATCHWORDS:	CONTRACT - Sale of motor vehicle – Wiring of four additional driving lights to roof rack – Incorrectly wired into vehicle’s engine management system causing engine failure on overheating from extended use of lights – Negligence – Alleged breach of statutory conditions and warranties in performance of work – Loss and damage – Causal connection to work done in breach of duty of care – Whether within exclusive jurisdiction of Federal Court in view of the pleading under the Trade Practices Act 1974 (Cth) – Whether loss assessed against first defendant within damages settled with second defendant – Avoidance of "double counting" of loss – Damages against first defendant de minimus - Costs
LEGISLATION CITED:	Fair Trading Act 1987, ss 40Q, 40S, 40U and 40W Motor Dealers Act 1974 Sale of Goods Act 1923, s 19 Trade Practices Act 1974 (Cth), ss 71, 74, 86 and 87 and Div 2 of pt V and Pt VI
CASES CITED:	Baxter v Obacelo Pty Ltd [2000] NSWCA 69; (2000) 48 NSWLR 522 Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation (1987) 18 FCR 212 Fencott v Muller (1983) 152 CLR 570 Hooper v Kirella (1999) 167 ALR 358 Kohnke v Karger [1951] 2 KB 670 Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457 Stack v Coast Securities (No 9) Pty Ltd (1983) 154 CLR 261 Unilan Holdings Pty Ltd v Kerin (1993) 44 FCR 481 United Australia Ltd v Barclays Bank Ltd [1941] AC 1
PARTIES:	Richard Jones – Plaintiff Purnell Motors Pty Limited – First Defendant Jaguar Land Rover Australia Pty Limited (formerly Premier Automotive Group Australia Pty Limited) – Second Defendant
FILE NUMBER(S):	4712 of 2007
COUNSEL:	Mr JB Turnbull and Ms C Allan for Plaintiff Mr SA Gregory for First Defendant
SOLICITORS:	Curlington Legal for Plaintiff Bamford Associates, Lawyers for First Defendant Clinch Long Letherbarrow Pty Limited for Second Defendant

JUDGMENT
1 A longstanding owner of Range Rover motor vehicles since 1976, Richard Jones in early-2004 decided to purchase a Series III Range Rover because of its diesel engine to give better fuel economy and extended engine life. On 27 March 2004 he took delivery of the vehicle from Purnell Motors Pty Limited at its Arncliffe showroom for the sale price of $118,150 which included accessories of two additional driving lights, headlight protectors, a bullbar and a tow bar. The vehicle was a 2003 model and had an odometer reading of 10,270 kilometres being then owned by Jaguar Land Rover Australia Pty Limited (formerly Premier Automotive Group Pty Limited) as the importer and distributor of the vehicle through Purnell Motors as the dealer.

2 On 19 October 2004, Mr Jones arranged for Purnell Motors to fit four additional driving lights and a rear-facing work light mounted on a roof rack of the vehicle which he himself had earlier fitted in September 2004. It seems that Mr Jones was dissatisfied with a number of aspects about the vehicle’s appearance and functioning (poor AM radio reception, stone chips on bonnet, disconnected air cleaner tubes, dimming of headlights unexpectedly, dent in roof, maladjustment of bullbar, leaking windscreen, bonnet not closing properly, screeching in the steering column and so on) and the lack of response by Purnell Motors in attending to them. Even so, Mr Jones continued to drive the vehicle extensively in rural New South Wales both at night and during the day without incident.

3 However, on 11 November 2004 just before midnight while driving from Armidale to Maleny in Queensland on a country road a failure in the vehicle’s electrical system caused the engine to stop and all external lights extinguished. After repair of the fault by Purnell Motors, the vehicle was returned to Mr Jones on 3 December 2004 for collection at Coffs Harbour airport. On doing so he noticed various defects, including sand on the tow bar, inspection covers in rear cargo area not replaced, grease marks on the driver’s door and upholstery, loose external mirrors and faults shown on the in-board computer screen. Also jerky and erratic gear changes were experienced – gradually over a few kilometres of driving the error messages cleared and the gear changes became smooth but the two bullbar driving lights would not activate although the four roof rack lights did operate. Then, while crossing a high level bridge that day at about 9.30pm on the road from Coffs Harbour to his home at Dorrigo, Mr Jones said “the vehicle’s lights went out, the engine died and the interior lights went on.” Fortunately, no personal injury or property damage occurred from either incident. The vehicle was eventually returned to Purnell Motors for further repair of this latest electrical failure.

4 By 16 December 2004 Purnell Motors had apparently diagnosed and corrected the fault in the electrical system. Mr Jones continued to be concerned about the safety of the vehicle and had many discussions with Purnell Motors and Land Rover Australia before it was returned to his home on 17 March 2005. On receipt, however, Mr Jones noticed some faults, namely greasy hand marks on doors and upholstery, damage to rear-view mirrors, damaged paint work, dents and scratches on rear mudguard and damaged sump guards. The vehicle, with his continuing safety concerns, was not used by Mr Jones until August 2005 but as at November 2009 he said the odometer reading was around 70,000 kilometres. The vehicle was only driven sparingly with night driving avoided.

5 Mr Jones as plaintiff in these proceedings, as a result of alleged negligence in the fitting of the two sets of additional driving lights causing the Range Rover vehicle to be not of merchantable quality or not fit for the purpose of driving, including also various warranty and statutory counts, sought compensation for loss of approximately $180,000 from Purnell Motors as the first defendant and Land Rover Australia as the second defendant. As it happened, on 26 October 2009, the day before the hearing was listed to commence, Mr Jones’ claim against Land Rover Australia was settled for $10,000 plus costs. The case proceeded against Purnell Motors as the sole defendant and, it is to be said, where Mr Jones’ claims were vigorously resisted.

Factual background and context of dispute

6 The plaintiff resided on a rural property at Dorrigo North on the tablelands inland from Coffs Harbour. Until the end of 2005 when he retired, he conducted a consultancy business, known as Precision Training and Management, providing services to students mainly at the University of New England in Armidale; in addition, he engaged in farming on the property by running cattle and operating a fish hatchery and he leased other properties.

7 It seems too that he was somewhat of a car enthusiast. At the time of purchasing the subject Range Rover in March 2004, the plaintiff owned a Series II Range Rover purchased in 1997 used for work around his property and for business and personal use; that vehicle was sold in October 2004 with about 130,000 kilometres of travel. A Series I Range Rover purchased in 1977 was currently having its original petrol engine replaced by a diesel engine after travelling over 450,000 kilometres, including to outback areas and interior Australia. Since 2000, the plaintiff had owned seven vehicles – Series I Range Rover, Series II Range Rover, Series III Range Rover (the vehicle subject of these proceedings), Oka (very large four-wheel drive), Subaru (small four-wheel drive), Mazda MX5 (small sedan) and a Jaguar XK8 (convertible). At present, he still has the Series I and III Range Rovers and the Jaguar, Oka (not registered) and Subaru vehicles. In 2004, he said the average annual distance travelled in all vehicles was about 80,000 kilometres but since then it has reduced to between 50,000 to 60,000 kilometres.

8 In the course of enquiring in March 2004 about the purchase of another Range Rover, the plaintiff visited the first defendant’s dealership at Arncliffe and spoke to a salesman introduced to him as John Gallico. He informed Mr Gallico of the type of vehicle he wanted, namely, a reliable four-wheel drive for business travel and able to get into, out from and around his rural property and for extended outback travel, in particular a proposed trip to the Kimberley Ranges in Western Australia; the need to be able to tow heavy loads was important. The subject Range Rover was shown to him and he test drove it. Later, over the telephone, the plaintiff negotiated a deal with Mr Gallico to purchase the vehicle, including with the fitting of the earlier stated accessories, and on 27 March 2004 the purchase contract was signed and financed through Land Rover Financial Services. Although the vehicle was technically a “used” vehicle with a warranty under the Motor Dealers Act 1974 of three months or 5,000 kilometres whichever first occurred, the plaintiff was able to obtain a new car manufacturer’s warranty from the second defendant of five years or 160,000 kilometres whichever first occurred. The plaintiff took delivery of the vehicle.

9 Three days later, on 30 March 2004, Mr Gallico emailed the plaintiff in what appeared as a courtesy call following the sale but it was not until 16 April 2004 that the plaintiff responded by advising of various problems with the vehicle – the AM radio reception, chips, dents, bullbar, bonnet, steering column, etc as earlier stated. What then occurred was fairly blunt and direct correspondence by the plaintiff with Mr Gallico and on 10 May 2004 to the first defendant’s principal and director, Rodney Dale, advising of the problems and seeking redress “before I pursue any claims with Land Rover Australia or the CTTT.” Mr Dale replied on 19 May 2004 by addressing the plaintiff’s concerns and on 23 June 2004 the plaintiff emailed Mr Dale regarding booking the vehicle for a 20,000 kilometre service and, at the same time, to deal with the warranty issues. That occurred on 28 July 2004 but during the journey home the plaintiff noticed unresolved problems with radio reception, fuel economy, driving light mountings, bonnet and bullbar; a spare key was still unavailable. The plaintiff voiced his complaints to Mr Dale in an email of 9 September 2004 and again in a meeting at the Arncliffe showroom on 18 September 2004. Beyond asserting compliance with the Land Rover guidelines, the plaintiff maintained the first defendant did not satisfactorily remedy the warranty issues.

10 In preparing for his trip to the Kimberleys, the plaintiff purchased in September 2004 the roof rack which had four additional driving lights and a rear-facing work light. In August 2004 he purchased improved lights to replace those on the bullbar, breakdown and recovery gear, tyre repair equipment and a UHF radio.

11 In early-September 2004, the plaintiff attended the first defendant’s premises at Arncliffe where he saw Geoffrey Simmons, the service manager, who said the problems with radio reception and the leaking windscreen would be fixed when the vehicle was next serviced.

12 After himself mounting the roof rack at that time, the plaintiff took the vehicle to the Arncliffe workshop of the first defendant on 19 October 2004 for the four additional driving lights to be wired. Specifically, the plaintiff said he asked for the wiring connections to be made so that he had the options of using the regular headlights only, regular headlights plus the two lights on the bullbar or regular headlights plus bullbar lights plus roof rack driving lights. In addition, the plaintiff asked that the outstanding unresolved warranty problems with the steering column, radio reception, leaking windscreen, rear knocking noise, oil leak and adjustment of in-board computer be corrected; also, he asked for the fitting of a power supply plug for a short wave radio and two aerial cables for UHF and HF radio reception. He understood that his requests would involve no problems. However, after collecting the vehicle on 25 October 2004 the plaintiff noticed that his requests regarding the aerial cables, wiring of roof rack lights and power supply plug had not been met; specifically, he said there was no separate switch for the roof rack lights which were wired to the same switch as the bullbar lights. Also, the plaintiff noticed that occasionally when using the brake pedal the steering column moved away from the driver. On contacting Mr Simmons, the plaintiff said he was assured the problems would be fixed at the vehicle’s next service.

13 A distance of about 2,600 kilometres was then travelled in the vehicle over the next seventeen days until, on 11 November 2004, the first power failure occurred just before midnight on the road nearing Maleny causing the vehicle to come to a stop. The vehicle’s engine would not restart, so the plaintiff called for assistance and a tow truck took him to Maleny and the vehicle to Pacific Land Rover in Maroochydore for repairs. The next day, the plaintiff went to Pacific Land Rover and was informed that the fault had been corrected by replacing a 10-ampere fuse controlling the steering column. However, the plaintiff was unsure whether such a blown fuse would cause the whole vehicle’s system to fail, even though the engine now started, and so he had the workshop manager, Paul Poncini, attempt to contact Land Rover Australia (the second defendant) to check, but without immediate success. In the meantime, the plaintiff declined to accept the vehicle because of his concerns about its safety and he arranged transport back to Maleny and borrowed a relative’s car so he could meet his commitments over the weekend. On the Monday, 15 November 2004, the plaintiff spoke to Adam Swain in the second defendant’s customer service section and arrangements were made for the vehicle to be transported by the second defendant to the first defendant for review of the electrical problem. The second defendant was to provide the plaintiff with a rental car. It may be noted that from records held by the second defendant, Mr Poncini was reported as commenting that it could be “a safety related problem.”

14 The plaintiff that night returned to Armidale due to work commitments with the University ,which he said had been delayed because of the problems with the Range Rover, but on arrival, as he said, “I was very tired from lack of sleep and felt stressed from the experience of the vehicle failing and the difficulties associated with getting Pacific Motors and Land Rover Australia to the address the safety issues...I had a severe headache and symptoms of cold and flu.” In the result, the plaintiff said he declined an offer of work in Sydney from Matthew Donnan, a corporate trainer, to conduct executive training over two days on 17 and 18 November 2004 for which he would have earned approximately $5,000 – although his then usual fee was $150 per hour this was specialised training which attracted a premium rate. Mr Donnan confirmed the fees and said he told the plaintiff he would fly him to Sydney for the course but on 16 November 2004 the plaintiff advised he was too ill to travel.

15 Mr Simmons eventually contacted the plaintiff on 25 November 2004 to inform him that the vehicle’s fault, which had been a blown number 53 fuse and relay switch, had been corrected and the vehicle performed normally after being tested both at night and during the day. Notwithstanding some miscommunication as to arrangements, the vehicle was delivered by the first defendant to Coffs Harbour airport on 3 December 2004 where it was collected by the plaintiff; the rental car was returned.

16 Concerns about the vehicle’s reliability and safety, having in mind its intended use for business, work on the Dorrigo property and outback travel, had earlier led the plaintiff to enquire of the first defendant as to its exchange for a new model. Mr Gallico provided on 28 November 2004 a quotation for two 2005 Range Rovers, including with accessories as on the subject vehicle, of respectively $135,496 and $142,846 with in each case a trade-in value of $80,000. Thus, as the plaintiff complained, his Range Rover in just on eight months had depreciated in value by $38,150 from its original price of $118,150, that is by 32 per cent. He decided not to proceed and retained the vehicle.

17 On first seeing the vehicle at the Coffs Harbour airport on 3 December 2004, the plaintiff noticed certain faults described by him in this way:

“...the tow bar fitting had sand heaped on it...the inspection cover panels that are normally fitted in the rear cargo area were removed and lying on the carpet...grease marks on the drivers door, the carpet on the driver’s side and the upholstery in the drivers seating area...external mirrors swung back and forth...”

18 In the course of driving the vehicle back to his home at Dorrigo North in the early evening of that day, the plaintiff said “the two bullbar driving lights were not working...roof lights were connected and operated...I accelerated to overtake another vehicle and the headlights temporarily dimmed...” Then, at about 9.30pm at the foot of Dorrigo Mountain while crossing a bridge the second power failure of the vehicle occurred as already outlined. The NRMA transported the vehicle and the plaintiff to Dorrigo and the next morning the vehicle was returned to Coffs Harbour where the plaintiff regained use of the rental car. The vehicle ultimately was collected by the second defendant and taken to the first defendant’s workshop at Arncliffe for examination and repair.

19 Apparently the vehicle did not arrive at the first defendant’s workshop until 14 December 2004. In light of the two experiences of engine failure, the plaintiff expressed a loss of confidence in driving the vehicle and sought assurances from the second defendant that the fault had been corrected. Although none were immediately forthcoming, he said the customer service manager of the second defendant, Margaret Horesh, told him on 17 December 2004 that additional testing would be done by the first defendant before the vehicle was returned so as to address his concerns. However, and it seems before that testing was done, the plaintiff the same day was advised by Mr Simmons the problem was “a defect with the wiring loom under the front seat...when the loom sagged (from heating under load), it allowed a damaged wire to earth and that may have caused the vehicle to fail.” Then, by letter dated 20 December 2004 Ms Horesh inter alia advised the plaintiff:

“...can confirm that Geoff Simmons at Purnell Motors has now repaired your vehicle clear of any faults and the vehicle is currently being returned to you.

The power lose (sic) concern your vehicle experienced has been thoroughly investigated by Land Rover Australia in conjunction with your dealer Purnell Motors and as responsible manufacturer, and to ameliorate the situation we have also contacted Land Rover UK who have assisted with the technical diagnosis and repairs performed. Furthermore Purnell Motors have thoroughly test driven the vehicle and now is diagnosed, operating to manufacturers specification.

As discussed, please accept our offer of your next 2 scheduled services as a gesture of goodwill. We would also like to offer you a free detail of your vehicle at its next service.
…
Please be assured that Land Rover Australia have investigated your concerns with all due positive intent towards yourself and confirm that your vehicle is operating to manufacturer’s specification.”

20 Mr Simmons gave evidence in which he addressed the fitting of the two sets of driving lights in March and October 2004. As to the first, the two driving lights and the bullbar, he said they were genuine Range Rover accessories fitted by Peter Bowtell. Mr Bowtell, who was the first defendant’s then workshop foreman, deposed that he fitted in March 2004 the two driving lights and the bullbar and added that the lights were so fitted “in accordance with fitting instructions” from Land Rover Australia. He said the “instructions require that the driving lights take their power from the battery via a relay without effect on the engine main management system. These driving lights were not directly connected to the engine management system.”

21 As to the wiring of the four roof rack driving lights and rear-facing light in October 2004, already fitted on the vehicle by the plaintiff, Mr Simmons commented that they “were not Land Rover parts”. He said he advised the plaintiff against fitting them as it could void the warranty but the plaintiff said “I want you to go ahead anyway”. In any event, Mr Simmons denied the plaintiff asked for the lights to be on a separate switch and, in the result, they were connected to the same switch as that which activated the bullbar lights. It seems the lights were wired by an employee of the first defendant called “Nick” but who was not now employed and could not be contacted. However, in examining the problem after the second engine failure, Mr Simmons liaised with Marcel Fabris, a technical expert with the second defendant, who attended the workshop a couple of times during the repairs to advise; he suggested the electrical load be split for the roof rack driving lights over two circuits which, when done, appeared to Mr Simmons to solve the problem. However, as to the original wiring of those lights on 19 October 2004, Mr Simmons admitted to Mr Fabris that “we’ve fucked up, the boys have wired the roof rack driving lights in incorrectly. That mistake resulted in the engine intermittently cutting out when the electrical system was placed under load.”

22 Thus, the earlier diagnoses of the fault in November 2004 after the first failure of a blown fuse and a trapped wire under the driver’s seat were wrong.

23 Once repaired, Mr Simmons said the vehicle was tested under the supervision of Mr Fabris and returned to the second defendant for delivery to the plaintiff. At this time in late-December 2004 it is to be noted that the vehicle’s odometer reading was 32,554 kilometres.

24 In his affidavit, not challenged by any cross-examination, Mr Fabris said as to the problem arising from the wiring of the roof rack driving lights in November 2004 that “...the driving lights on the roof rack in this Land Rover were incorrectly wired into a circuit for the ignition switch and engine management systems; therefore, when the driving lights were turned on for an extended period, there was excess load on the circuit and the fuse would blow. The major failures were not caused by a trapped wire.”

25 The repaired vehicle was to be collected by the plaintiff on 29 December 2004 at Geoff King Autocare in Coffs Harbour but he did not do so. Over the Christmas period, the plaintiff said he reviewed the whole situation with his Range Rover and, notwithstanding the assurances given to him by Ms Horesh in the letter of 20 December 2004, decided, as he said:

“...that I would not accept the vehicle until I had a clear statement from Land Rover Australia that all the major vehicle faults had been corrected and that it was safe to drive. I now had no faith in Land Rover assurances that the faults with the vehicle had been repaired. On 29 December 2004, I returned the hire care to Avis and on the same day purchased a Mazda Eunos/MX5 for $10,000 from AMC Automotive in Wyong so that I had transportation whilst I worked with Land Rover Australia and Purnells to resolve the problems.”

26 After further discussions with Ms Horesh in which he was assured the vehicle was now safe and fit to drive, the plaintiff wrote to Stephen Morten, the general manager of the second defendant, expressing his dissatisfaction with the differing explanations given for the cause of the engine power failure from a blown fuse to a faulty fuse and relay switch to a faulty wiring loom. In a letter dated 5 January 2005 to Mr Morten, the plaintiff pointed out the futility in Ms Horesh’s assurances and advised:

“Today I will forward direct to the Chairman of the Ford Motor Company my complaints with respect to the performance of Land Rover and their CEO in Australia, and the life threatening fault with my Range Rover.

I have prepared media releases for all motoring journals in Australia and motoring writers of the major daily newspapers, explaining the multiple and life-threatening failure of my TD6...

I have contacted the RTA, the NRMA and the Office of Road Safety with respect to my safety concerns and the way in which Land Rover Australia has chosen to deal with them...

As the vehicle is financed through Land Rover Finance, the next problem will be withdrawal of finance as disclosure of the events experienced will most likely render the vehicle uninsurable. This of course will pose a problem for all Range Rover owners, when insurance companies question their risk over these faults.

I will update the chairman of the Ford Motor Company with respect to my most recent conversations.”

27 On 13 January 2005, Mr Morten replied in apologetic terms but affirmed that after extensive road testing the vehicle was “now operating within manufacturing specifications.” In a further letter of 22 February 2005 written on behalf of Mr Morten for the second defendant to the plaintiff, the nature of the electrical fault was stated in a manner consistent with the explanation by Mr Fabris and confirmed satisfactory repair of the fault. Accordingly, the vehicle was to be transported by the second defendant to the plaintiff’s home address on or before 2 March 2005 from Geoff King Autocare. There then followed some quite blunt and direct letters between the plaintiff and the second defendant about the return of the vehicle and its timing until ultimately it was received by the plaintiff at his Dorrigo home on 17 March 2005. Even then the plaintiff noticed blemishes on the vehicle (greasy hand marks on doors and upholstery, paintwork damage, dents and scratches, mangled sump guard and damage to rear-view mirrors) but, on advice to the second defendant, it agreed to reimburse the plaintiff for the cost of rectifying them, together with the cost of the rental car.

28 The plaintiff said he put the vehicle in a garage on his property where it remained until August 2005. On 29 August 2005 he drove the vehicle to Killens Smash Repairs in Armidale for a quotation to repair all of the damage to it. Generally, that covered bodywork, panels, bumper bar assemblies and refitting accessories for a total cost of $3,216.62. The odometer reading at the time was 33,064 kilometres. The second defendant declined to accept responsibility for these repairs.

29 The plaintiff repeated his loss of confidence in the vehicle’s suitability to be safely driven. However, in an invoice dated 22 November 2005 from the first defendant for a service to the vehicle it was shown that the odometer was 39,432 kilometres – the vehicle thus had travelled, no doubt driven by the plaintiff, 6,368 kilometres in the period of about twelve weeks from 29 August 2005 to 22 November 2005 and this seemed to include an extended trip of 4,000 kilometres in September 2005 but only, as the plaintiff said, “in daylight.” Service invoices of the first defendant dated 24 March 2006 and 24 November 2006 showed the vehicle’s odometer reading as respectively 46,747 and 50,903 kilometres. As the plaintiff admitted during evidence, the odometer was about 70,000 kilometres in October 2009. In view of prior usage of the vehicle, one may seriously think that that figure of 70,000 kilometres (which represents only 20,000 kilometres of travel in three years) was an understatement. Even so, the plaintiff maintained he had “driven the vehicle an absolute minimum and have only driven the vehicle twice at night since the second failure. I refrain from driving the vehicle at night to avoid a potential failure and possible injury that I might suffer.” Indeed, the plaintiff said, somewhat surprisingly in view of the distance travelled, that “since the two major faults in 2004, I have only used the vehicle sparingly.” He added that the vehicle continued to have intermittent electrical faults so that by the end of 2005 he “had reached the end of my tether”; in evidence he described the vehicle as “a lemon.” He decided on legal action against Land Rover Australia.

30 Then, on 9 April 2008 the plaintiff found the vehicle would not start so that, on instructions from the second defendant, it was transported by the NRMA to John Patrick Land Rover in Port Macquarie for repairs. While there, Brian John Moore, technical training manager for the second defendant, inspected the vehicle on 22 April 2008 and its odometer reading was found to be 58,474 kilometres. Mr Moore concluded:

“Carried out general inspection of the vehicle and found that the interior of the vehicle was in poor condition. The exterior of the vehicle was in poor condition with scratches and small dents around the vehicle, possibly caused by off road use. The front lower engine splash tray was damaged, appeared to have hit some object. Parts of dashboard missing where non-genuine accessories have been fitted. Found non-approved tyres to be very noisy besides causing the vehicle to vibrate at speed. Side mirrors loose and rattle, appeared to have come in contact with another object, possibly caused by off road use. Found door seals to be damage from non-genuine harness being fitted incorrectly. Found driving lamps on bumper to be fitted correctly as per Land Rover recommendation. Found lamps on roof rack to be poorly wired and fitted on to vehicle and possible risk of water leaks due to the routing of the harness over the driver’s side door seals.

Also the wiring to the positive terminal of the battery as a power source for the non-genuine accessories. (An extremely poor example of workmanship and not recommended by Land Rover).

Extensive water entry into vehicle was evident, caused by the sunroof being left open. The shade cover was pulled closed over the stops which would have had to been forced. Water damage was obvious by the noticeable rust on the front seat brackets. Carpets were damp which could cause damage to onboard computers due to humidity build up unless actioned in the near future, this would involve complete removal of the interior seats and carpet.”

31 The plaintiff relied on expert evidence from Dr Peter Michael Hart, an electrical engineering consultant who had been involved in the vehicle industry as an engineer for twenty years specialising in vehicle electrical systems. He inspected the subject Range Rover on 8 September 2008 to report upon the quality of the work and any possible side effects of the electrical problems. Dr Hart’s main conclusions were:

“1. The cause of the vehicle and lighting shutdowns (two events) was that the roof-mounted driving light load was excessive for fuse #53.
2. Purnell Motors connected the roof-mounted driving lights to fuse #53 and installed a nominal 30A electrical relay. The choice of fuse #53 was negligent. The use of a 30A relay was inadequate.
3. The vehicle has exhibited several other electrical misbehaviours that are apparently unrelated to the shutdown events. These misbehaviours are consistent with the poor reputation that Land Rovers (and by association Range Rovers) have for poor electrical reliability.
...
5. There are fit and finish defects evident on the vehicle. They are not safety problems...
6. ...These items (vehicle performance) are unrelated to the initial shutdown problems.
...”

32 Richard Ferry, a director of Ferry Motor Company Pty Limited, valued the vehicle on 30 March 2009 at a market price range between $32,000 and $34,000. He noted the kilometres travelled as 68,511. Using earlier figures, this would seem to indicate that as at November 2009 the kilometres of travel would be at least 85,000. As to the market value assessed however, Mr Ferry gave no reasoning on which to base his conclusion other than to assert it.

33 From the factual evidence, the following significant findings are made –

(1) The two additional driving lights fitted to the bullbar of the vehicle were accessories approved by Land Rover Australia, the second defendant.
(2) Those lights were fitted by Purnell Motors, the first defendant, at the time of purchase of the vehicle by the plaintiff on 27 March 2004 and were so fitted and wired in accordance with specifications laid down by the second defendant.
(3) In themselves, those driving lights did not cause any difficulties with the operation of the vehicle.
(4) Almost immediately after purchase the plaintiff expressed to the first defendant dissatisfaction with the vehicle as to certain problems with radio reception, bodywork faults, fuel economy, spare key, leaking windscreen, bullbar fitment, bonnet operation and the steering column; no complaint was made concerning the driving lights.
(5) Due to what was perceived as an inadequate and timely response by the first defendant to remedy the problems, the plaintiff threatened to pursue claims with the second defendant or through the Consumer, Trader and Tenancy Tribunal.
(6) The problems were addressed the first defendant at the time of regular services but not to the satisfaction of the plaintiff.
(7) In September 2004, in preparing for a trip to the Kimberley Ranges in Western Australia, the plaintiff fitted a roof rack to the vehicle with four additional driving lights and a rear-facing work light. The roof rack and lights were not approved Land Rover Australia accessories.
(8) On 19 October 2004, the plaintiff obtained the agreement of the first defendant to wire the four additional roof rack driving lights into the vehicle so that they could be operated.
(9) At the same time, further attention to the outstanding warranty issues was sought.
(10) The first defendant incorrectly wired the four roof rack driving lights into a circuit for the ignition switch and engine management systems, with the result that when the lights were active for an extended period there was an excess load on the circuit causing the fuse to blow and the engine to shut down.
(11) The incident on 11 November 2004 at night near Maleny when the engine failed was caused by the incorrect wiring of the four additional driving lights on the roof rack – it was not caused, as then diagnosed, by a blown fuse which controlled the steering column nor, as later diagnosed, by another blown fuse and relay switch nor by a defective wiring loom under the driver’s seat.
(12) The incident which occurred on 3 December 2004 when the engine failed for a second time at night while being driven from Coffs Harbour to Dorrigo was caused by the same uncorrected fault concerning the four roof rack lights as was responsible for the first incident.
(13) By 20 December 2004, the first defendant corrected the real fault with the wiring of the lights and the vehicle was in a condition safe and satisfactory to be driven.
(14) Although so assured by the second defendant about the vehicle’s condition, the plaintiff refused to accept it unless further assurances were given. He continued to complain of the other faults.
(15) Finally, by mid-January 2005 those assurances were repeated by the second defendant and the plaintiff resumed possession of the vehicle, but not until 17 March 2005 when he garaged it at his Dorrigo property; he did not drive it until 29 August 2005 when he took the vehicle to Armidale for a quotation to remedy the outstanding faults – the quotation was in the amount of $3,216.62.
(16) From the time of purchase in March 2004 to October 2009 the vehicle travelled about 75,000 kilometres; that is 13,600 kilometres per year.
(17) As at April 2008, the interior and exterior condition of the vehicle was poor, including from apparent off-road use and water entry from the sunroof being left open.
(18) As at March 2009, the market value of the vehicle was between $32,000 and $34,000 with an odometer reading of 68,511 kilometres. That compares to a trade-in value of $80,000 in November 2004 from an initial purchase price of $118,150 in March 2004.

34 Very much, it seems to me, this case is an example of the tension existing in customer relations in reasonably meeting a dissatisfied customer’s demands. The point is to be made that that dissatisfaction, and about which much evidence was given, initially concerned matters unrelated to the electrical faults with the wiring of the four roof rack driving lights which caused the later two engine failures. There may be no doubt that those incidents in themselves were frightening for the plaintiff but, and despite assurances, he refused to accept correction of the electrical fault had occurred. Even so, he drove the vehicle thereafter for the not inconsiderable distance of an average of 13,600 kilometres per year, including off-road usage and where alternative use of his other vehicles, such as the Series II Range Rover, Subaru, Mazda and Jaguar, was available.

35 In the result, the case developed to a claim for economic loss of about $180,000 in relation to a vehicle costing $118,150 which in a period of five years had been so maintained to have deteriorated to a poor condition. And that was so largely in relation to matters unconnected with the issues arising from the additional driving lights and where in August 2005 an amount of $3,200 was quoted to remedy those matters. It is to be emphasised that the case against the first defendant was directed only to the problems from the driving lights and not those other matters whereas that against the second defendant, which settled for $10,000, was concerned with the wider issues as well.

Course of the litigation

36 In a detailed written submission, counsel for the first defendant, Mr SA Gregory, traced what counsel described as the “unsatisfactory history of the litigation”. I do not propose to recite that as it is sufficient to indicate for present purposes, which really involves consideration of counsel’s submission that the plaintiff’s case was not credible and with consequent cost implications, that Mr Jones originally commenced proceedings against Land Rover Australia in the Consumer, Trader and Tenancy Tribunal on 3 October 2006. On 24 November 2006 and 3 April 2007 the claim was amended. On 15 March 2007 the then respondent Land Rover Australia cross-claimed against Purnell Motors but that claim was withdrawn on 12 September 2007. In view of the amount claimed exceeding its jurisdictional limit, the CTTT transferred the proceedings to this Court in September 2007 and on 19 May 2008 Mr Jones filed the statement of claim against Purnell Motors only. On 7 October 2008 Mr Jones as plaintiff obtained leave to move on an amended claim in which he joined Land Rover Australia as a defendant. Then, on 23 February 2009 by leave a further amended statement of claim was filed and that was the current pleading.

37 At the commencement of the hearing of this action on 27 October 2009 the Court was advised that the claim against the second defendant had settled the day before so that it would be pursued against the first defendant only. It will nevertheless be necessary to shortly deal with that claim in dealing with an argument by the first defendant as to the effect it had on a verdict the plaintiff may obtain against it. Then, on 27 October 2009 the first defendant was granted leave, without opposition, to amend its defence to the further amended statement of claim by making an admission as to transport of the vehicle to its premises in November 2004 and as to obligations concerning the Australian Design Rules, seat covers fitted by the plaintiff and the plaintiff’s alleged failure to mitigate his loss.

38 On the second day of the hearing on 28 October 2009 at the conclusion of opening addresses, counsel for the plaintiff, Mr JB Turnbull who appeared with Ms C Allan of counsel, made an application for adjournment. Effectively, the adjournment was sought to enable the plaintiff to further amend the further amended statement of claim to plead loss not only from the defects as to the driving lights from the modification work but also from alleged defects at the time of delivery of the vehicle in an electrical, mechanical and appearance sense. The first defendant opposed the application. For reasons then given on 29 October 2009, the Court refused the application for adjournment which, in light if the way it was argued, meant any application to amend the plaintiff’s pleading was refused.

39 The hearing thus proceeded for another five days. It is to be noted that on 29 October 2009 counsel for the plaintiff abandoned the claims under the Trade Practices Act 1974 (Cth). However, it will be necessary to refer to those claims later in dealing with an argument by the first defendant that the Court did not have jurisdiction to hear and allow any of the claims the subject of these proceedings.

The claim and defences

40 In its final form, and as argued, the plaintiff sued the first defendant for damages in negligence and for breach of statutory conditions and warranties pursuant to s 40Q and s 40S of the Fair Trading Act 1987, and s 19 of the Sale of Goods Act 1923. All counts related to the fitting and wiring of the two sets of additional driving lights – the two bullbar lights in March 2004 and the four roof rack lights in November 2004 – and did not concern the other alleged faults with the vehicle of a mechanical or appearance nature.

41 As to the negligence count, the allegations were that the first defendant breached its duty of care to the plaintiff in supplying, installing and wiring in March 2004 the two bullbar lights; installing and wiring in October 2004 the four roof rack driving lights; incorrectly repairing either or both of those set of lights in November 2004; and failing to warn the plaintiff that the fitting of the four roof rack lights could or would impact on the roadworthiness of the vehicle.

42 As to s 40Q of the Fair Trading Act and s 19 of the Sale of Goods Act, it was alleged that the first defendant breached conditions as to quality and fitness implied into the contract of sale by the vehicle in March 2004 in circumstances where the two bullbar lights did not so comply.

43 Breach of warranty implied in the March 2004 sale contract under s 40S of the Fair Trading Act was pleaded in that the first defendant did not exercise due care and skill in the supply of services and materials as being reasonably fit for the intended purpose.

44 Like the Trade Practices Act claims, the plaintiff conceded his claims under s 40U and s 40W of the Fair Trading Act had no application to the first defendant and were thus not pursued.

45 Thirty-six separate heads of damage from economic loss occasioned by the faulty or defective two sets of driving lights were claimed in the total amount of $180,000, the largest single item being for a decrease in the value of the Range Rover of $93,150. During final submissions the heads of damage were reduced to sixteen, in the total sum of $150,351.03.

46 A primary submission put for the first defendant on its pleading, as foreshadowed, was that there was no jurisdiction in the Court to allow the plaintiff’s claims by reason of s 86 of the Trade Practices Act which made the plaintiff’s claims, including those at common law and under the NSW State statutes, exclusive to the Federal Court of Australia and even though the Trade Practices Act claims were abandoned. Otherwise, the first defendant admitted negligent breach of its duty of care in wiring the four roof rack driving lights in October 2004 but pleaded that omission was rectified in November 2004 when re-wiring was done and, in any event, it was put that no damage was thereby suffered by the plaintiff. The plaintiff’s remaining claims were either not admitted or denied and, specifically, any consequent damage or loss to the plaintiff was vigorously resisted.

47 If the plaintiff were to succeed in obtaining a verdict against the first defendant then, so it was submitted, the verdict amount should be reduced by the $10,000 amount settled to be paid by the second defendant in the action.

Jurisdictional issue

48 In the further amended statement of claim as against the first defendant, the plaintiff sought orders under s 87(1A) of the Trade Practices Act founded on breaches of an implied condition in s 71 as to the vehicle’s merchantable quality and of an implied warranty in s 74 as to it being reasonably fit for the intended purpose. By reasons of s 86(1), jurisdiction is conferred on the Federal Court in any matter arising under the Trade Practices Act in respect of which a civil proceeding has been instituted under Pt VI thereof – s 86 and s 87 both appear in such Pt VI. The jurisdiction of this Court to hear and determine those claims, if at all, is dependent upon s 86(2) which vests federal jurisdiction in it as a court of a State with respect to certain specified provisions in the statute. Otherwise, s 86(4) confers exclusive jurisdiction on the Federal Court to deal with matters arising under the statute. Sections 71 and 74, however, and as relied on by the plaintiff here, are in Div 2 of Pt V of the statute which is not a division of Pt V to which s 82(2) vests federal jurisdiction in a State court. Thus, the claim made under s 87 relying on those sections did not attract the conferral of federal power by s 82(2) and so was beyond this Court’s jurisdiction but within the exclusive jurisdiction of the Federal Court. Indeed, so much was conceded by counsel for the plaintiff in final submissions and no doubt was the reason why the Trade Practices Act claims were abandoned on the first day of the hearing leaving reliance on the common law negligence count and the statutory counts under the State legislation.

49 In that scenario, Mr Gregory made the submission that as the plaintiff had instituted proceedings for relief under s 87(1A) of the Trade Practices Act, then federal jurisdiction had been attracted in the matter so arising between the parties, and that included the common law and State statutory counts which were justiciable in the Federal Court under s 86(1). However, because s 86(4) made the Federal Court’s jurisdiction “exclusive”, due to the limited scope of s 86(2) not giving this Court jurisdiction, the result was that this Court had lost also its jurisdiction in relation to the non-federal counts which were only properly within the Federal Court’s exclusive jurisdiction. In other words, as counsel put:

“Once exclusive jurisdiction of the Federal Court was attracted (by the institution of a civil proceeding under Pt VI), it did not cease by a party to the controversy, namely the plaintiff, abandoning the claim which attracted that jurisdiction...Hence, federal jurisdiction did not cease as a result of counsel for the plaintiff announcing to the Court on the third day of the hearing, Thursday 29 October 2009, that the plaintiff abandoned all claims founded in the Trade Practices Act.”

50 Reliance was placed by Mr Gregory on Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation (1987) 18 FCR 212 at 219; Unilan Holdings Pty Ltd v Kerin (1993) 44 FCR 481 at 482; and Hooper v Kirella (1999) 167 ALR 358 at 371, [55] in which federal jurisdiction was held to continue despite the Trade Practices Act claim which gave rise to such jurisdiction being struck out.

51 Ms Allan, in resisting Mr Gregory’s approach, pointed out that the authorities relied upon all dealt with the Federal Court’s jurisdiction or power to determine non-federal questions which formed part of a matter in respect of which jurisdiction had been conferred on that Court, its so-called “accrued jurisdiction,” even though the federal claims under the Trade Practices Act be struck out or otherwise failing. The authorities cited, as Ms Allan emphasised, did not deal with the position here of whether a State court lost its jurisdiction to deal with non-federal matters where a matter in the exclusive jurisdiction of the Federal Court was raised in proceedings in a State court. Counsel relied on Stack v Coast Securities (No 9) Pty Ltd (1983) 154 CLR 261. Accordingly, whilst the Federal Court had exclusive jurisdiction to deal with the claims under the Trade Practices Act, but since abandoned by the plaintiff, the balance of the plaintiff’s claim being non-federal in nature was not exclusive to the Federal Court so this Court had power to continue to deal with it.

52 The short answer, in my view, to Mr Gregory’s proposition is that it is misconceived. It may be given that the Federal Court has jurisdiction to determine non-federal questions forming part of a matter or a justiciable controversy in respect of which jurisdiction has been conferred on it: see Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457 and Fencott v Muller (1983) 152 CLR 570. However, although the Federal Court may have had exclusive jurisdiction to deal with the claims here made under the Trade Practices Act, whatever the fate of those claims in this Court, the Federal Court was never seised with the State-related claims to enable them to be within its accrued jurisdiction. So viewed, I do not think it is open to categorise those non-federal claims as also being within the exclusive jurisdiction of the Federal Court when they were simply not before it.

53 In Stack, the issue arose for direct consideration, indeed it would seem for the first time, and where it was held that the jurisdiction of the Federal Court was exclusive of other courts only in respect of actions, prosecutions and other proceedings under Pt VI of the Trade Practices Act but was not exclusive with respect to the attached or accrued jurisdiction so that each of the Supreme Court of Queensland and the Federal Court had jurisdiction with respect to the non-federal claims. In Stack (at 282), Gibbs CJ commented that if it were not so then the “inconvenience of such a result would be very great...cannot have been intended by the Parliament.”

54 In the joint judgment of Mason, Brennan and Deane JJ (at 295) it was said:

“The question here relates not to the ambit of the jurisdiction conferred upon the Federal Court by s 86, but to the extent to which that jurisdiction is made exclusive by that section. It is a question which has not previously arisen in this Court. There is a strong argument that the two limbs in s 86, namely that conferring jurisdiction and that making jurisdiction exclusive, should be regarded as co-extensive so that the entire jurisdiction conferred on the Federal Court, including accrued jurisdiction, is made exclusive. However, in our opinion this is not the correct construction of s 86. The reference to ‘that jurisdiction’ which is made exclusive should be read as a reference to the jurisdiction conferred, other than the accrued jurisdiction.”

55 I conclude, therefore, that the argument for the first defendant that there was no jurisdiction in this Court to hear and determine the non-federal matters must fail.

Liability

56 The first defendant conceded negligence in the wiring of the four additional driving lights on the roof rack on 19 October 2004. In the circumstances, I think the concession was properly made. As to the two lights on the bullbar, and as I have found, the evidence did not establish any negligence in that those lights were approved Land Rover Australia accessories correctly fitted in accordance with its specification. Thus, the first defendant is liable to the plaintiff for any loss occasioned to him being that causally related to such negligence from the date he took delivery of the vehicle after the lights were fitted on 25 October 2004. The operative effect continued until at least the wiring fault was corrected, which it was by 20 December 2004 even though, due to concerns about the safety of the vehicle, the plaintiff did not accept recovery of his vehicle until 17 March 2005. The question then is when did the liability for any loss cease.

57 It is true, on the evidence, that the first defendant since the first incident of engine failure on 11 November 2004 gave three explanations for the cause and the real cause, diagnosed about 20 December 2004, was not immediately made known. However, even at that time, the first defendant gave assurances to the plaintiff that the vehicle fault had been corrected satisfactorily but the plaintiff refused to accept delivery until he had been assured it was “safe” to drive. Finally, albeit with reluctance, the plaintiff accepted delivery on 17 March 2005.

58 Ms Allan submitted that the Court could not be satisfied the fault had been corrected, particularly in light of Mr Moore’s evidence that the wiring of the roof rack lights when he inspected the vehicle on 22 April 2008 displayed poor workmanship with exposed wiring, grommets not properly installed and damaged door seals from the wiring of the spot lamps. For his part, Mr Gregory said the wiring faults had been rectified by 23 December 2004, and materially in the period to March 2005, so that any failure to use the vehicle during that period was not caused by the first defendant’s breach of duty of care.

59 It is to be noted that although the first defendant wired the four roof rack lights it was the plaintiff himself who, in September 2004, purchased the roof rack and lights and fitted them to the vehicle; they were not Land Rover Australia approved accessories. The problems observed by Mr Moore existed about three and a half years after correction of the wiring fault and where the vehicle had travelled about 47,000 kilometres, including in rural areas and off-road in the outback. Mr Moore’s report as to the condition of the vehicle and how it had been maintained was not favourable to the plaintiff’s case.

60 It is significant that by its letter of 20 December 2004 the first defendant through Ms Horesh advised the plaintiff that the vehicle was clear of any faults and was operating according to manufacturer’s specifications. The plaintiff simply refused to accept this. However, in the course of lodging complaints with various organisations about the problems with his Range Rover, the plaintiff contacted the Department of Transport and Regional Services (DOTARS) which was the authority responsible for the safety of new vehicles offered for sale in Australia. On 8 February 2007, after reviewing the situation with the vehicle, DOTARS advised the plaintiff that “the fault with your vehicle was from fitment of after-market lights possibly incorrectly wired to the vehicle. We do not believe therefore that this is evidence of a systemic fault that would require a recall of all Range Rovers.” Again, the plaintiff in a reply to DOTARS on 20 March 2007 refused to accept the explanation and said “DOTARS has chosen to allow Land Rover to provide incomplete and inaccurate information and not to answer the questions with respect to compliance... I will have no choice but to refer the matter to the Commonwealth Ombudsman for investigation.”

61 In the overall circumstances, I conclude that the plaintiff unreasonably declined to accept his Range Rover after it was relevantly repaired as to the wiring fault by 23 December 2004. He was told he could collect the vehicle in Coffs Harbour on 29 December 2004 but refused to do so and it was not until 17 March 2005 he was persuaded to accept delivery of the vehicle at his Dorrigo property. In that situation, I find that the operative period of any loss arising from the negligence in the incorrect wiring of the four driving lights on the roof rack was from 25 October 2004 to 29 December 2004.

62 A finding of negligence having been made, it is strictly unnecessary to deal with the statutory counts, as liability of the first defendant exists, but I will do so as shortly as I can for completeness. In view of the findings made as to the two bullbar driving lights it is only to the four roof rack lights that attention need be given in considering these statutory counts.

63 The plaintiff’s claims under s 40Q of the Fair Trading Act and s 19 of the Sale of Goods Act, as the further amended statement of claim pleaded, were related to the 27 March 2004 contract of sale between the plaintiff and the first defendant when the first defendant supplied the Range Rover, including with the supply and installation of the two bullbar driving lights. It was pleaded that the statutory conditions and warranties as to quality and fitness implied in that contract were breached by the first defendant in the circumstances of the fitting of the bullbar lights and the other work carried out in October, November and December 2004 (which comprehended the wiring, not the supply of the four roof rack lights). As such, and as Mr Gregory argued, the sale contract of March 2004 was not capable of being breached in the manner alleged because the work of wiring the four roof rack lights and any other later work was not done pursuant to that contract but under a separate contract later made between the plaintiff and the first defendant. I agree with Mr Gregory’s submission. The pleading was misconceived and the case supporting it was simply not open because it sought to apply to an earlier sale of goods contract what had occurred under a later contract for the supply of services. These claims must therefore be dismissed.

64 At most, s 40S of the Fair Trading Act as to warranties in relation to the supply of services arguably could have application. However, again the pleading in that respect was referable to the March 2004 sale contract but where the alleged breaches relevantly concerned the fitting of the four roof rack lights as additional accessories and carrying out work to the vehicle in October, November and December 2004. Of course, the additional accessories had already been fitted by the plaintiff and the first defendant wired them into the vehicle’s system. As Mr Gregory argued, the work done concerning the four roof rack lights, indeed including other work at the time, was not done pursuant to the sale contract and, so, could not constitute a breach of it. This claim therefore fails and must be dismissed.

65 The surviving claim, as has been found and for which the first defendant is liable in damages, is that in negligence in the wiring of the four roof rack lights.

Damages

66 The assessment of damages by reference to the various heads of loss claimed is to occur in light of the finding that the operative period of any loss was from 25 October 2004 to 29 December 2004. It is necessary to deal with each element concerned and that may conveniently be done by use of the revised summary of loss and damage provided by Ms Allan on 30 November 2009 as used during final submissions on 4 December 2009.

67 Item (b) – Cost of replacement vehicle: A claim of $7,358.23 was made for this item representing the difference between the purchase price of $10,000 (with added registration, insurance and stamp duty) on 29 December 2004 of the Eunos motor vehicle and the sale price of it on 29 November 2008 for $4,500. As I have found, the plaintiff unreasonably refused to accept on 29 December 2004 the return of the Range Rover after the wiring repairs. In any case, at the time the plaintiff had other vehicles to use such as the Subaru, and by 17 March 2005 the Range Rover was available to him. This item does not arise as a relevant loss and it is disallowed.

68 Item (c) – Registration and insurance during non-use of Range Rover: In respect of the period from December 2004 to March 2005 an amount of $606.36 was claimed for the proportional cost of the registration and insurance for the vehicle when it was not used after the repairs. It is to be noted that the second defendant provided a rental car for the plaintiff’s use during the time the Range Rover was being repaired by the first defendant from 15 November 2004 to 3 December 2004 and from 7 December 2004 to 29 December 2004. Therefore, I do not see this element represents any loss at all to the plaintiff – he was adequately compensated for non-use of the Range Rover by the provision of another vehicle at relevant times and not at his cost. This claim is disallowed.

69 Item (d) – Lease payments on Range Rover during its non-use: An amount of $12,147.20 was claimed for lease payments said to be “lost” during the period of the vehicle’s non-use from December 2004 to March 2005. For the same reasons given for Item (c), I do not see how this item is a relevant loss. The lease payments were never “lost” in the sense that they were made in respect of the purchase of the vehicle outright at the end of the lease period. This item is disallowed.

70 Item (e) – Incidental transport costs: An amount of $370.40 was claimed for various travel costs on five occasions, two of which were later than 29 December 2004 being in April and August 2005 and so beyond the relevant period of loss. The remaining three occasions were for the cost of fuel in using a borrowed vehicle after the first engine failure on 11 November 2004: $65 return travel to Maroochydore on 12 November 2004 to Pacific Land Rover where the Range Rover was said to have been repaired; $20 for travel to Maroochydore on 15 November 2004 to collect rental car; and $15 for travel to Coffs Harbour on 3 December 2004 to collect Range Rover – the total was $100. Although opposed by Mr Gregory, these fuel costs related directly to the faulty Range Rover from the first incident and so I will allow them.

71 Item (f) – Loss of use of Range Rover during repairs: $2,940 was claimed at the rate of $105 per day (lease costs plus registration and insurance) when the Range Rover was being repaired at the first defendant’s Arncliffe workshop and no alternative vehicle was provided – four days from 12 to 15 November 2004; three days from 4 to 6 December 2004; six weeks from August 2007 to 12 September 2007; and three weeks from 9 to 24 April 2008. The only relevant periods are those in November/December 2004 for a total of seven days so that the limit of this claim must be $735. However, for the same reasons as given above for Items (c) and (d) I do not accept that the loss of use of the vehicle during repairs represented a relevant loss to the plaintiff and when he had other vehicles to use. In any case, the use of the lease costs is an inappropriate measure. This claim is refused.

72 Item (j) – Decrease in value of Range Rover: This was by far the highest single item of claim in the amount of $93,150. In supporting it, Ms Allan relied on the evidence of Mr Ferry who assessed the market value of the vehicle on 30 March 2009 as between $32,000 and $34,000, that is $86,150 to $84,150 less than the purchase price on 27 March 2004 of $118,150. It was not clear how otherwise the amount of $93,150 was made up. In the alternative, accepting such factors as the age of the vehicle and its mileage travelled (about 58,240 kilometres to that time), Ms Allan suggested a figure of $40,000 as reasonable for depreciation being the difference in the original purchase price and the $80,000 trade-in value of the vehicle on a new model quoted by the first defendant on 28 November 2004 after the first engine failure. Mr Gregory wholly opposed the allowing of this claim as there was no evidence Mr Ferry’s valuation was other than that appropriate for a vehicle of this Range Rover’s age, distance travelled and condition (particularly the poor condition found by Mr Moore on 22 April 2008) and no evidence of any causal connection between the first defendant’s negligence regarding the wiring of the four roof rack lights with such alleged loss in value.

73 I can only but agree with Mr Gregory. There was indeed no evidence relating the consequences of the first defendant’s negligence to this alleged loss. Specifically, Mr Ferry provided no reasoning at all for his market value assessment. In any case, the faulty wiring was corrected. This claim is disallowed.

74 Item (k) – Loss of income: An amount of $17,900, presumably gross before tax, was sought for lost earnings as a result of the two engine failures in the vehicle. The plaintiff said he lost $5,000 for being unable to conduct a two-day training course for Mr Donnan in Sydney on 17 and 18 November 2004 but reduced by $1,500 to $3,500 for earnings from the University of New England on 18 November 2004. Mr Donnan confirmed the offer of work. On being informed of the problems with the Range Rover he offered to fly the plaintiff to Sydney to conduct the course, but the next morning the plaintiff said he was quite sick and unable to travel – apparently as the plaintiff explained, he had cold and flu-type symptoms, but even so, was able to travel to Armidale the following day to work at the university. There was no evidence relating to the plaintiff’s illness in a causal sense to the vehicle’s problem. This aspect of the claim was not established.

75 The second aspect concerned various days said to be lost from work in late-2004 when dealing with the vehicle’s problems. In all, 12 days were claimed at $1,200 per day, a total of $14,400 (gross). Although it may not be doubted that the plaintiff spent some time in dealing with the vehicle’s problems following the two engine failures, there was no evidence in respect of the 12 days claimed what work he actually lost. At the time, the plaintiff performed part-time training and consultancy work but also earned income from work on his property. Further, he conceded in cross-examination that his claim as specified in his affidavit included loss of income in 2007 and 2008 even though he had effectively retired at the end of 2005. This aspect for loss of income is refused.

76 Item (q) – Repair of loose driving mirrors: An amount of $330 was claimed for the repair of loose driving mirrors which were said to have been damaged during the repair of the vehicle after the first engine failure in November 2004. The claim was based on a quotation from MJK Discovery Auto Parts in Bellingen for that amount to re-secure two exterior side mirrors. However, the quotation was given on 7 May 2009 as one item in very many items requiring repair in the total sum of $16,514.95. Mr Simmons in his evidence said that as service manager for the first defendant at the time he insisted on technicians being very careful in working on vehicles and that the driving mirrors were intact when it left the workshop to be delivered by the second defendant to the plaintiff. The evidence did not, in my view, establish any involvement by the first defendant in any damage to the driving mirrors. This claim was not made out.

77 Item (aa) – Insecure driving lights: $165 was claimed as the cost for securing the two driving lights on the bullbar said to be in that condition at the time of purchase of the vehicle. The assessment, like the loose driving mirrors, was included in the quotation from MJK Discovery in May 2009. This fault related to the plaintiff’s unsuccessful claim for breach of the implied warranties and the supply of services by the first defendant and, so, must fail. It did not concern the incorrect wiring of the four roof rack driving lights.

78 Item (cc) – Electrical malfunctions and unreliability: Unspecified damages were sought for the cost incurred in assessing and repairing electrical malfunctions in and unreliability of the Range Rover. The plaintiff said he relied on an affidavit of Murray Kingman of MJK Discovery but that affidavit was not read by Ms Allan in the proceedings and the plaintiff’s evidence took this aspect no further. At most, the quotation (dated 5 July 2009) itself from MJK Discovery was an exhibit but absent any explanation or reasoning. This claim is refused.

79 Item (ee) – Separate switch for roof lights: An amount of $660 was sought for the installation of a separate switch to operate the four roof rack driving lights as the plaintiff said he requested the first defendant to do in October 2004 but which was not done. The cost was as quoted by MJK Discovery in May 2009. Mr Simmons denied such a request was made and there was no evidence the first defendant obtained payment from the plaintiff for this. In any case, I do not see this as a loss to the plaintiff as even if there were a separate switch for these lights they were still incorrectly wired into the engine management system. I disallow this claim.

80 Item (gg) – Repair to installation of driving lights: Again based on the quotation from MJK Discovery, an amount of $450 was sought to repair the installation of the four roof rack driving lights. Those lights were fitted originally by the plaintiff himself in September 2004 and not by the first defendant who only wired them. This claim is disallowed.

81 Item (hh) – Cleaning grease marks: The plaintiff claimed $250, again from MJK Discovery’s May 2009 quotation, for cleaning grease damage to the vehicle’s carpet allegedly caused during the first defendant’s repair after the first engine failure. Mr Simmons denied this. This claim was not established and is disallowed.

82 Item (ii) – Cost of components: An amount of $2,000 was sought as the estimated cost of the various components needed for the repairs as quoted by MJK Discovery as part of the total cost of $16,514.95. As some of the specified repairs were no longer claimed as against the first defendant but only the second defendant, the component cost was accordingly reduced also. However, for reasons stated above as to the items covered by the quotation given by MJK Discovery this claim is similarly refused.

83 Item (jj) – Damage to vehicle by first defendant while repairing it: An amount of $3,590.84 was claimed to cover the cost of remedying this damage. According to a quotation given by Killen’s Smash Repairs on 29 August 2005 (the quotation was for a lesser amount of $3,566.20). The quotation covered very many items clearly unrelated to the driving lights and no attempt was made to make them relevant. Mr Simmons denied any such damage. This claim is refused.

84 Item (kk) – Installation of four driving lights on roof rack and aerial cables: $660 was claimed for this item. It was not fully explained but seems to relate to recovery by the plaintiff from the first defendant of the cost on 21 October 2004 of connecting and wiring the spot light located on the roof rack to the bullbar light assembly. How this represented a loss was not made clear. The claim is refused.

85 Item (ll) – Cost of accessories: Over the period from April 2004 to January 2005 the plaintiff purchased certain accessories for fitment to the Range Rover for outback travel, being sheepskin seat covers, a roof rack, four driving lights and rear-facing work light, two driving lights to replace the originally supplied lights on the bullbar and off-road tyres. Excluding the sheepskin seat covers, the total cost of those accessories was $7,773 which the plaintiff claimed as a loss because they could no longer be used due to the unmerchantable quality of the vehicle. That claim against the first defendant has not succeeded. Therefore, this claim for the lost use of them cannot succeed.

86 Overall view of claimed losses: On any view of the items claimed, which amounted to a total of $150,351.03, the success to the extent of $100 for fuel costs is clearly de minimus. Otherwise, in my view, the claims as being losses with respect to the incorrect wiring of the four roof rack driving lights were simply misconceived and not supported by any credible evidence or logic. Indeed, the single highest claim of $93,150 for the alleged decrease in value of the Range Rover had no reasoned support. And neither did the claim for loss of income of $17,900. I have to say that in setting out the detailed claims in his affidavit the plaintiff seems to have embarked upon a course to unreasonably recover significantly more than the original cost of the vehicle of $118,150 and where the fault occasioned by the incorrect wiring of the four roof rack driving lights was rectified. However, he seemed determined to pursue his dissatisfaction with the vehicle, not only with the defendants but with other relevant bodies such as the Roads and Traffic Authority, DOTARS, the Ombudsman, motoring journals, the national press, the CEO of Ford, and so on. Regrettably, it seems to me, that determination has resulted in a case against the first defendant, of a not insignificant nature occupying eight hearing days plus extensive written submissions, of claims wholly disproportionate to the issues and of the real measure of any economic loss he may have thought he sustained.

87 That the matter settled beforehand with the second defendant as the distributor of the Range Rover is to be commended. That it did not do so with the first defendant and despite the obvious attempts by the parties during the hearing is unfortunate. Of course, these matters are not for mere passing comment but are most relevant in terms of case preparation, case management and, in particular, the costs of litigation.

Effect of settlement with second defendant

88 It only remains to deal with the submission by the first defendant’s counsel, Mr Gregory, that the settlement with the second defendant meant the first defendant should receive credit for any verdict against it obtained by the plaintiff. Ms Allan resisted this.

89 Ms Allan explained that the claim against the first defendant relied on negligence and breach of the statutory warranties relating to the supply, wiring and installation of the two sets of driving lights whereas that against the second defendant, in essence, relied on various manufacturing defects in the vehicle. Counsel said that from the schedule of damages the two sets of loss claimed against each defendant were separate, given that some items were not pressed against either defendant. As to the items against the second defendant the loss claimed amounted to $18,964.34 but settlement was reached and consent orders ordered (payment has been made on the judgment debt) on a compromise of $10,000. Therefore, the claim against the first defendant was the larger claim so that the plaintiff should not be penalised where the settlement was less than the claim against the second defendant.

90 Against that, Mr Gregory submitted that on the pleadings there was “an almost complete overlap between the heads of loss in respect of which the plaintiff claimed from the first defendant and those in respect of which the plaintiff claimed from the second defendant...The almost complete overlap between defects attributed to breaches by the first and the second defendants and the heads of loss claimed...” Mr Gregory emphasised that it was misconceived to attribute any part of the judgment against the second defendant to any particular cause of action pleaded against it or any part of loss claimed.

91 It is a basic principle, in my view, that a plaintiff may not receive double recovery for the loss occasioned to him by the wrongful act of another: see United Australia Ltd v Barclays Bank Ltd [1941] AC 1 at 21 and Kohnke v Karger [1951] 2 KB 670 at 675. However, in Baxter v Obacelo Pty Ltd [2000] NSWCA 69; (2000) 48 NSWLR 522, Giles JA (with whom Mason P and Sheller JA agreed) as to the operation of the rule against double satisfaction said (at [83]; 545):

“...whether receipt of the settlement amount enlivened the rule against double satisfaction depended on whether the settlement amount was received in full satisfaction of the tort. Enquiry by the Court determining what it would have assessed as the plaintiff’s damages was excluded. But where, from the terms of settlement or for some other reason within the enquiry, it was shown that the settlement amount was not received in full satisfaction of the tort, the settlement amount would not be full satisfaction for the purposes of the rule against double satisfaction, and there would be no bar to further proceedings against another tortfeasor or tortfeasors...”

92 I did not understand Mr Gregory to be submitting that the settlement with the second defendant was a complete bar to the action against the first defendant, only that if the plaintiff obtained a verdict against the first defendant for more than the $10,000 settlement amount then the plaintiff could only recover the excess from the first defendant. Of course, if, as here, the verdict be less than the $10,000 then the plaintiff could not recover from the first defendant.

93 The enquiry requires attention to the question whether the action against each defendant resulted in a loss to the plaintiff from the same or separate wrongs. Ms Allan said not but Mr Gregory said there was an almost complete overlap. Whilst one may acknowledge the distinction drawn by Ms Allan as to the claims, I think the fact remains from the pleadings that the loss and damage said to be sustained as a result of the second defendant’s omissions was the same as that for the first defendant and in relation to the same defects in the vehicle as to serious engine failures, lighting failures and other faults and failures. I accept that Mr Gregory’s submission was correct.

94 Accordingly, I find the plaintiff has received satisfaction of his loss of $100 as found against the first defendant within the $10,000 settlement with the second defendant. Damages being the gist of the action, the appropriate result is that the first defendant is entitled to a verdict.

Conclusion and order

95 The first defendant is entitled to a verdict against the plaintiff. I will hear the parties on costs before making final orders.

COUNSEL ADDRESSED ON COSTS

96 In the determination of this matter I make the following orders –

1. Verdict and judgment for the first defendant against the plaintiff.
2. Plaintiff to pay the first defendant's costs as to 80% of those costs assessed on the ordinary basis.
3. Note action settled on 26 October 2009 as between the plaintiff and the second defendant and consent orders made.