McEwan v SVS Auto Repairs and Dyno Tuning - [2022] QCATA 20

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

McEwan v SVS Auto Repairs and Dyno Tuning [2022] QCATA 20

PARTIES:

WARREN McEWAN

(applicant/appellant)

v

SVS AUTO REPAIRS AND DYNO TUNING

(respondent)

APPLICATION NO/S:

APL003-20

ORIGINATING APPLICATION NO/S:

MCDO 105/19 Cairns

MATTER TYPE:

Appeals

DELIVERED ON:

14 February 2022

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Judicial Member D J McGill SC

ORDERS:

Application for leave to appeal from the decision of the Tribunal of 18 January 2019 dismissed.

CATCHWORDS:

TRADE AND COMMERCE – COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION – CONSUMER PROTECTION – MISLEADING OR DECEPTIVE CONDUCT – CHARACTER OR ATTRIBUTES OF CONDUCT OR REPRESENTATION – STATEMENTS AS TO FUTURE MATTERS AND PROMISES – estimate for work on vehicle – estimate exceeded – whether reasonable basis for estimate - whether excess recoverable

Australian Consumer Law (“ACL”) s 4(1), s 18(1). Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 13(1), s 28(1)(a), s 29, s 142(3)(a)(i).

Thiess Services Pty Ltd v Mirvac Queensland Pty Ltd [2006] QCA 50

APPEARANCES & REPRESENTATION:

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

REASONS FOR DECISION

On 15 May 2019 the appellant filed in the Cairns registry an Application for minor civil dispute – consumer dispute, claiming the sum of $12,655.50[1] plus costs from the respondent, and an order that the respondent not make use of images of or information about the appellant’s vehicle, or anything implying that the appellant is a satisfied customer. The matter came on for hearing on 18 October 2019 before a Member,[2] who dismissed the appellant’s claim. The appellant seeks leave to appeal from that decision.
[1]The appellant gave details of the calculation of this sum at Transcript, p 6.
[2]An Acting Magistrate sitting as a Member under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“the QCAT Act”), s 171(2).
Because this matter was a minor civil dispute, leave is required to appeal to the Appeal Tribunal.[3] As a general proposition, when leave to appeal to the Appeal Tribunal is required, it will be granted only where there is a reasonable argument that the decision was attended by error and an appeal is necessary to correct a substantial injustice caused by that error, or where the appeal raises a question of general importance upon which further argument and a decision of the Appeal Tribunal would be to the public advantage.[4] In deciding whether grounds for leave to appeal have been shown, it is relevant to consider that the proceeding was a minor civil dispute, and the obligation on the Tribunal was to make orders it considered to be fair and equitable to the parties to the proceeding in order to resolve the dispute: the QCAT Act s 13(1). The Tribunal was also required to comply with the QCAT Act s 28 and s 29.
[3]The QCAT Act, s 142(3)(a)(i).
[4]Crime and Corruption Commission v Lee [2019] QCATA…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] QCATA 20
Decision Date: 14 February 2022

CaseChat Overview and Summary

The case before the court was McEwan v SVS Auto Repairs and Dyno Tuning, which involved a dispute between a vehicle owner and a repair shop over the cost of repairs. The matter was brought before the court following an appeal from the decision of the Tribunal dated 18 January 2019. The central issue in the case was whether the repair shop was entitled to recover excess costs from the vehicle owner after an initial estimate for the work had been exceeded. The vehicle owner argued that the repair shop had no reasonable basis for its initial estimate, while the repair shop claimed that the excess costs were justified due to unforeseen complications during the repair process.

The legal issues that the court was required to decide included whether the repair shop's initial estimate for the work on the vehicle was reasonable, and if the excess costs were recoverable. The court needed to consider the principles of misleading or deceptive conduct under consumer protection legislation, particularly in relation to statements about future matters and promises. The court also needed to examine the circumstances in which a repair shop may be entitled to recover excess costs from a vehicle owner.

The court found that the repair shop had not provided a reasonable basis for its initial estimate, and therefore, the excess costs were not recoverable. The court noted that the repair shop had made an estimate for the work without conducting a thorough inspection of the vehicle, and had not taken into account the possibility of unforeseen complications. The court also found that the repair shop had engaged in misleading or deceptive conduct by making a promise to the vehicle owner that the work would be completed within a certain timeframe, without disclosing the potential for unforeseen complications that could delay the work. The court held that the repair shop's conduct was likely to mislead or deceive the vehicle owner, and was therefore in breach of consumer protection legislation.

The court dismissed the application for leave to appeal from the decision of the Tribunal of 18 January 2019. The court found that the Tribunal had correctly applied the relevant principles of law and had reached a just and equitable outcome in the case. The court held that the repair shop was not entitled to recover the excess costs from the vehicle owner, and that the vehicle owner was entitled to be compensated for the misleading or deceptive conduct of the repair shop.

Orders

Orders of the court

Application for leave to appeal from the decision of the Tribunal of 18 January 2019 dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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