McIntyre v Thornbay Holdings P/L - [2011] SADC 36

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Minor Civil Review)
MCINTYRE v THORNBAY HOLDINGS P/L
[2011] SADC 36
Judgment of His Honour Judge Chivell
30 March 2011
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA
REVIEW OF MINOR CIVIL ACTION - CONTRACT - CLAIM FOR WORK DONE
Review of a minor civil action – claim for work done to recondition a diesel engine after it seized – Magistrate found charges fair and reasonable – judgment for plaintiff.
Further evidence led on review.
Held – further evidence does not change position – Magistrate’s decision correct.
Application for review dismissed.
Magistrates Court Act 1991 (SA) s 38(7)(b) and (c), referred to.
Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221; Brenner v First Artists’ Management Pty Ltd [1993] 2 VR 221; Angelopoulos and anor v Sabatino and anor (1995) 65 SASR 1, considered.

MCINTYRE v THORNBAY HOLDINGS P/L
[2011] SADC 36

This is an application by Mr McIntyre to review a decision of Mr K A Millard SM in a minor civil action in the Magistrates Court of South Australia. The decision was made on 15 October 2010. His Honour gave judgment in favour of Thornbay Holdings Pty Ltd (“Thornbay”) for $4,691.65 plus costs of the action.
Mr Millard gave extempore reasons for his decision. The reasons were detailed and gave the parties a very clear understanding of His Honour’s reasoning.
The Claim
Thornbay sued Mr McIntyre for the balance owing on various invoices rendered for work done on his Ford Courier utility in 2006.
Mr McIntyre owns properties in the South-East and the North of the state. In 2006, the utility broke down near Copley. It was taken to Cookes Outback Motors at Copley, a business operated by Thornbay. It was examined by Mr David Pinkerton, the proprietor of the business.
It was apparent that the engine had completely seized, and a number of plastic and metal components had melted. There was no oil or coolant in the engine. The engine had suffered catastrophic damage.
It was common ground at the trial that Mr McIntyre discussed the options with Mr Pinkerton. One option was to install a reconditioned engine: Mr McIntyre rejected that idea because he had previously fitted a replacement engine – that was the one which had seized. It was therefore agreed that the engine would be repaired instead.
It is at this point that the versions of the two parties diverge. The dispute is clearly identified by His Honour at page 2 of his reasons:
There is a dispute about what was said in respect to the degree of damage and the anticipated extent of repairs. Mr McIntyre’s recollection is that he was only told Mr Pinkerton would have to remove the head and other components at the top end of the motor. Mr McIntyre suggests that he understood this would make repairs viable.
Mr Pinkerton says that at no stage did he inform Mr McIntyre that it would simply be the top end of the engine that would require restoration. He said he made it clear that the whole engine would be removed and sent down to a specialist engine rebuilder at Port Augusta. He says he made clear the extent of work required could only be ascertained once the engine had been disassembled.
Clearly Mr McIntyre thought that the repair would cost $4,500 to $5,500 plus labour. For a similar amount, he could have purchased a replacement engine, but he would still have a worn engine with only a limited warranty. He does not assert that he placed any ceiling on how much he would spend. He did not ask for a quotation before authorising the work. His Honour clearly accepted that Mr Pinkerton made it clear that he could not say how much work was required until the engine had been disassembled. At no stage did Mr McIntyre seek to ascertain how much work was costing as it progressed. Mr McIntyre may have had an idea in his own mind about how much it would cost, but that was not the nature of the agreement reached.
With Mr McIntyre’s knowledge and consent, the engine was conveyed to Neill Automotives in Port Augusta. He acknowledged during the trial[1] that he spoke to Neill Automotives as the repairs proceeded, although the details of that conversation were not elicited.
[1] at T 20
Although it was not expressly discussed, since this was a minor civil action where neither party was represented, this was clearly a case where a contract between the parties was entered into in which Thornbay agreed to carry out the repairs, and there was an implied term that Mr McIntyre would pay a reasonable amount. This was the cause of action which used to be described as quantum meruit. It therefore fell to the court to assess the reasonableness of the amounts claimed for the work done and materials supplied.[2]
[2] see Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221, per Deane J at [9-20], Brenner v First Artists' Management Pty Ltd [1993] 2 VR 221 per Byrne J at pp 257-261, and Angelopoulos and anor v Sabatino and anor (1995) 65 SASR 1 per Doyle CJ at pp 6-11
The rest of the hearing proceeded to analyse the reasonableness of Thornbay’s charges, including the amounts Thornbay paid Neill Automotives and others. Mr McIntyre accepted that some of the charges were justified, and he paid them, but $4691.65 remains unpaid.
I will discuss each item which has not been paid in turn:
(a)machining and fitting balance shaft bearings ($437.80) – Mr Garner said because “the motor’s only done 50,000 kms so those bearings would not have been worn out”.[3] In his statement, which His Honour accepted, Mr Neill said that it is a modern requirement that oil and coolant passages in an engine block be cleaned with a caustic solution, which damages the bearings requiring replacement. Mr Garner countered that the bearings should have been removed beforehand. Mr Pinkerton replied that this is impossible because they’re press-fitted and would be damaged if they are removed;
(b)grinding the crankshaft ($217.80) – Mr Garner said if the engine was “heat-seized” it wouldn’t damage the crankshaft bearings. Mr Pinkerton said the crankshaft bearings had been damaged from lack of lubrication. This was apparent when they were inspected;
(c)resizing and rebushing conrods ($352) – Mr Garner said there was no reason why the conrods would have been damaged. Mr Pinkerton said they are often bent in this situation so that they need to be removed and checked;
(d)balance shaft bearings ($488.10) – same issues apply as (a);
(e)new turbo assembly ($2,090) – Mr Garner said the turbocharger should not have been affected by heat because “turbos run under heat”.[4] Mr Pinkerton referred to Mr Neill’s statement that the turbocharger was sent to a specialist who stated it was defective – the shaft was bent due to overheating and no lubrication;
(f)injectors reconditioned ($522.80) – again Mr Garner said that these should not have been damaged, but Mr Neill sent them with the injector pump to a diesel injection specialist who found they were defective so they were replaced;
(g)testing the injector pump ($354.35) – Mr Pinkerton said that the injector pump was tested, but was not damaged;
(h)machining the flywheel ($96.80) – Mr Garner said that heat shouldn’t have damaged the flywheel, but Mr Pinkerton and Mr McNeill state that, on inspection, it was damaged and needed to be machined;
(i)machining exhaust manifold ($132) – Mr Garner said these do not warp unless the studs are broken. Mr Pinkerton argued that they can warp from overheating. The fact is, though, that on inspection, the manifold was warped and needed machining.
[3] T 7
[4] T 9
Mr McIntyre sought to call a Mr J T Garner, an experienced motor mechanic, from Millicent. Mr Garner provided a written statement to Mr McIntyre before the trial, and this was before His Honour at the trial. Mr McIntyre sought to argue that he was not aware that he should have called Mr Garner to give oral evidence at the trial, even though he admitted that he received the notice which very clearly stated that he should bring all available evidence to the hearing.
Mr Pinkerton did not object to Mr Garner being called, and in the circumstances I thought it appropriate to receive the evidence.[5]
[5] see Magistrates Court Act 1991, s 38(7)(b) and (c)
Mr Garner’s oral evidence before me really took the matter no further. He conceded that he was at a disadvantage because he didn’t see the engine when it was disassembled, and did not see the damaged components himself.[6]
[6] T 15
Mr Pinkerton said he had never seen an engine as catastrophically damaged as this one was, and Mr Garner was in no position to contradict him.
His Honour’s acceptance of Mr Pinkerton’s evidence and Mr Neill’s statement at the trial made the outcome inevitable. With no substantial evidence to the contrary, His Honour was entirely justified in finding that all of the above repairs were necessary in order to recondition the engine to an appropriate standard, and that the amounts charged were reasonable in accordance with prevailing industry standards.
Mr Garner’s evidence before me does not change that position at all.
For those reasons, I find that the decision under review was correct, and the application to have it set aside is therefore dismissed.
As to costs, I have a general discretion to make an order for the costs of the review. However, the philosophy of the legislation is that costs should not be awarded in the absence of special circumstances. There are none here. For that reason, I will make no order for the costs of the review.