Kissin Mechanical v Day

[2014] QCATA 64

CITATION: Kissin Mechanical v Day & Ors [2014] QCATA 064

PARTIES:	Matthew Kissin t/as Kissin Mechanical (Applicant/Appellant)
v
Donna Day Connor Day Jeremy Sharp (Respondents)

APPLICATION NUMBER: APL050 -14

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Senior Member Stilgoe, OAM

DELIVERED ON: 7 April 2014

DELIVERED AT: Brisbane

ORDERS MADE: 1.    Leave to appeal refused.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – CONSUMER CLAIM – where mechanic misdiagnosed problem – where problem repaired by another – where tribunal granted relief from payment of invoice – where tribunal ordered mechanic pay filing fees – whether grounds for leave to appeal.

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s3(b)
Queensland Civil and Administrative Tribunal Rules 2009 (Qld) s 83

Pickering v McArthur [2005] QCA 294

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

1. Ms Day owns a 1996 Jeep Wrangler. She bought it so her son, Connor, could drive to work and TAFE. Connor also took the Jeep four wheel driving.

2. In May 2013, the Jeep overheated. Mr Kissin replaced the radiator and he was paid.

3. On 1 June 2013, Connor was four wheel driving outside Woodford. At some point, the Jeep was stuck in second gear. Ms Day arranged for the Jeep to be transported to Mr Kissin for repair.

4. Mr Kissin thought that there was water in the transmission from a leak in the radiator. He tried to fix that problem a number of times, without success. On July 29, Ms Day gave up on Mr Kissin. On 5 August 2013, she had the Jeep transported to a transmission specialist, Mick Hanley.  Mr Hanley fixed the Jeep by installing a new radiator and making minor repairs to the transmission.

5. Ms Day, Connor and Ms Day’s partner, Mr Sharp, filed a claim in the minor civil disputes jurisdiction of the tribunal. They asked for relief from payment of Mr Kissin’s invoice for $456.50 and compensation of $2,780. That claim consisted of: $270 tow fees from Woodford; the cost of a second car for Connor at $1,450; towing the Jeep to Mr Hanley; and Mr Hanley’s cost to fix the problem.

6. Two Justice of the Peace, sitting as a panel in the minor civil disputes jurisdiction of the tribunal, gave Ms Day relief from Mr Kissin’s invoice. They also ordered Mr Kissin pay Ms Day’s filing fee because he had misdiagnosed the cause of the transmission problem.

7. Mr Kissin wants to appeal that decision. He says he should not have to pay the filing fee. He says that he may have misdiagnosed the cause of the problem but, if he did, it was because Connor misled him by underestimating the amount of water he drove through that day at Woodford.

8. Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary. The principles the appeals tribunal applies when considering an application for leave to appeal are as summarised by Keane JA (as His Honour then was) in Pickering v McArthur[1]:

   There are numerous authorities, in varying language but with unvarying emphasis, that leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.

   [1][2005] QCA 294 at [3].

9. The learned Justices’ reasons for decision are terse. They found that Mr Kissin did not cause any damage to the Jeep. That finding is unexceptional. It follows, by inference, that Mr Kissin should not be liable for the repair cost.

10. I agree that Mr Kissin should not be liable for the cost of a new car, as Ms Day has the benefit of that asset. I also agree that Mr Kissin should not be liable for the first tow or Mr Hanley’s repair bill. Those costs would have been payable in any event.

11. I do not necessarily agree that Mr Kissin should not have been liable for the second tow. If Mr Kissin had properly diagnosed the fault, and fixed it, Ms Day would not have incurred that second expense. An order that Mr Kissin pay the second towing fee of $60 would not be unexceptional.

12. The learned Justices also found that a delay of three months had caused “frustration”.[2] The tribunal cannot compensate a party for “frustration”.  However, in a proceeding for a minor civil dispute, the tribunal must make orders it considers fair and equitable[3].  In a minor civil dispute that is not a debt dispute, the tribunal can award costs, but those costs are limited to the amount of the filing fee[4].

    [2]Transcript page 1-61, lines 26-27.

    [3]Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 13(1).

    [4]Queensland Civil and Administrative Tribunal Rules 2009 (Qld) s 83(b).

13. An order that Mr Kissin pay the filing fee on a successful application would not be unexceptional. However, Mr Kissin’s bill was a very small part of the claim and it doesn’t appear that he seriously pressed for payment. The learned Justices’ order, although a little unorthodox, is not so unreasonable that it should be set aside.

1. There is no reasonably arguable case that the learned Justices were in error. Even if their order was in error, they found Mr Kissin at fault and there are grounds to justify a payment order against him. Therefore, there is no reasonable prospect of substantive relief on appeal. Leave to appeal should be refused.