Purkhart v Autotrans Express (Aust) Pty Ltd

[2011] QCATA 304

CITATION: Purkhart v Autotrans Express (Aust) Pty Ltd [2011] QCATA 304

PARTIES:	Helmut Rudi Purkhart (Applicant/Appellant)
v
Autotrans Express (Aust) Pty Ltd (Respondent)

APPLICATION NUMBER: APL304-11

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Richard Oliver, Senior Member

DELIVERED ON: 2 November 2011

DELIVERED AT: Brisbane

ORDERS MADE:

Leave to appeal granted.1.    

The decision of the Tribunal that the respondent pay to the applicant $1,025.00 is set aside.2.    

.The respondent pay to the applicant $3,704.57 by 9 December 20113.      

CATCHWORDS:

Minor Civil Dispute – where damage to vehicle during transit – where acceptance of responsibility of part of damage to applicant’s vehicle – where error in assessment of damages

Queensland Civil and Administrative Tribunal Act2009, ss 142(3), 146(b)

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act2009 (QCAT Act).

REASONS FOR DECISION

1. Mr Purkhart purchased a Volkswagen Syncro 4WD motor vehicle on 13 May 2005 for $1,025.00 on Ebay.  The vehicle was located in Darwin.  He made arrangements with Autotrans to have the vehicle transported to Brisbane.  During transportation, the gearbox fell out of the vehicle.  Also it was damaged when it was removed from the carrier at the respondent’s Brisbane depot.

1. Mr Purkhart brought a claim for damages against Autotrans in the minor civil disputes jurisdiction of the Tribunal.  He claimed $7,175.01.  He had a quote to repair the panel work for $3,440.57 and the gearbox, $3,058.74.

1. At the hearing before a Tribunal Adjudicator, Mr Irish, who appeared for Autotrans’ acknowledged that the panel damage to the car was caused by Autotrans’ employees.  He said that the panel damage occurred when the car was lifted off the carrier with a forklift at the depot.[1]

[1]        Transcript page 6, line 1.

1. With respect to the damaged gearbox, it was contended at the hearing that the gearbox fell when the mounts failed during transit from Darwin to Brisbane. 

1. Having heard all the evidence, the learned Adjudicator made an order that Autotrans pay to Mr Purkhart $1,025, being the purchase price of the vehicle.

1. From that decision, Mr Purkhart filed an application for leave to appeal or appeal in the Tribunal on 26 August 2011.  As this is an appeal from the minor civil disputes jurisdiction leave is necessary.[2]  His grounds of appeal are not particularly helpful but essentially what he is saying is that the learned Adjudicator erred in concluding that $1,025.00 was proper measure of compensation for the damage done to his vehicle by the respondent contrary to the evidence he submitted to the Tribunal.

[2] QCAT Act, s 142(3).

1. Leave to appeal will ordinarily only be granted where there is some question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage; or, there is a reasonably arguable case of error in the primary decision and a reasonable prospect that the applicant would obtain further substantive relief.  Another question sometimes asked is: is leave necessary to correct a substantial injustice to the applicant, caused by some error?

1. There was no evidence before the Tribunal as to the value of the vehicle other than its purchase price.  What is known, is at the time of purchase the gearbox was in place, and the panel work was not damaged.

1. Although Mr Purkhart contends that the vehicle was worth substantially more than its purchase price because of its rarity, the learned Adjudicator quite rightly concluded that there was no evidence to substantiate this contention.  It does seem reasonable though that it had particular value to Mr Purkhart and because it was purchased on Ebay the purchase price does not necessarily reflect its true value.

[10]  It goes without saying that it is the obligation of Autotrans to deliver the vehicle in the condition it was when it was collected.  The condition of the vehicle when collected is uncertain firstly, because of the vehicle’s age, and secondly there was no roadworthy certificate issued nor was the vehicle registered.  It may well have been, and the learned Adjudicator made no findings in respect of this issue, that by reason of its age and condition the transportation of the vehicle could have caused the gearbox to become detached from the chassis.  That is somewhat speculative and for that reason it would be difficult to make any finding that the damage to the gearbox was the responsibility of Autotrans.  In this respect there is no basis to interfere with the decision of the learned Adjudicator.

[11]  What is clear though, is that Autotrans did do the panel damage, the cost of that repair work is $3,444.57 and this evidence was unchallenged. 

[12]  It seems to me, that the learned Adjudicator did fall into error in not accepting this compelling evidence irrespective of the value of the vehicle.  It is not necessarily the case that this vehicle was beyond economic repair and therefore it is only the salvage value which is the true measure of loss, as is often seen when insurance companies are involved.  The vehicle was in the nature of a collector’s item.

[13]  The vehicle was purchased because of its age and its rarity and Mr Purkhart is entitled to have the vehicle that he purchased delivered to him in that condition.  Although the learned Adjudicator was attempting to reinstate Mr Purkhart in the position he was before he purchased the vehicle, there was clear evidence that the respondent was responsible for the damage to the vehicle and he was entitled to be reimbursed for the cost of repairing this damage.  In failing to award damages for the respondent’s negligence and/or breach of contract in the face of that evidence was an error of law.  There was an acceptance that Autotrans was negligent and that the contract was breached by reason of the damage to the vehicle and the proper and reasonable measure of loss flowing from the breach is the cost of repair.

[14]  I am satisfied that there has been an error of law in the assessment of damages and therefore, leave to appeal should be granted.  Because leave is granted on an error of law this Tribunal can substitute its own decision[3].  Rather than send the matter back for rehearing, the Appeal Tribunal proposes to make an order that the respondent pay to Mr Purkhart $3,444.57 together with the filing fee for the application for leave to appeal of $260.00.

[3] QCAT Act, s 146(b).