Read-Shaw v Iozzi and Hall t/as Sportivo Automotive
[2018] QCAT 370
•15 October 2018
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Read-Shaw v Iozzi and Hall t/as Sportivo Automotive [2018] QCAT 370
PARTIES:
ALEX RICHARD READ-SHAW
(applicant)v DOMENIC GIOVANNI IOZZI AND MIRANDA HALL T/AS SPORTIVO AUTOMOTIVE (ABN 384 088 900 64)
(respondent)
APPLICATION NO/S:
MCDO1832-17 (Brisbane)
MATTER TYPE:
Other minor civil dispute matters
DELIVERED ON:
15 October 2018
HEARING DATE:
18 May 2018
HEARD AT:
Brisbane
DECISION OF:
Member McLean Williams
ORDERS:
The Application is dismissed.
CATCHWORDS:
CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – DISCHARGE, BREACH AND DEFENCES TO ACTION FOR BREACH – OTHER MATTERS – Minor Civil Dispute – circumstances where Respondents perform clutch replacement – ongoing difficulties with clutch system – claims of use of non-genuine parts and substandard work – sufficiency of evidence for those claims in light of contrary evidence of extensive and aggressive driving as likely cause for the experienced difficulties
APPEARANCES & REPRESENTATION:
Applicant:
C O Kennedy, solicitor
Respondent:
H J Knowlman,
REASONS FOR DECISION
Mr Alex Read-Shaw (‘the Applicant’) is the owner of a 2007 Holden SS V Series, V8 sedan, (‘the car’). The car has been heavily customised and has had a number of non-standard performance parts added to it.
Mr Domenic Giovani Iozzi and Ms Miranda Hall together operate a mechanical repair shop at Matheson Street Virginia, trading under the name Sportivo Automotive (‘Sportivo’).
On 4 October 2017 the Applicant commenced an Application for minor civil dispute before QCAT seeking the sum of $15,569.15 for loss and damages together with legal costs and interest, as is now detailed in attachment ‘A’ to his Application. The dispute relates to a clutch replacement on the car, by Sportivo.
The Applicant and Sportivo advance differing accounts as to what occurred over a period commencing in December 2015 (when the clutch was replaced), culminating in May of 2017, when the Applicant claims that the car finally became totally un-driveable.
It is helpful now to record the differing versions:
Applicant’s Version
In early December 2015, the Applicant went to Sportivo and spoke with Mr Iozzi, who is the principal mechanic. Mr Iozzi was instructed to replace the entire clutch system with genuine Holden parts. He says that Sportivo agreed to do that. The Applicant says that it was a specific term of their oral contract that the parts used would be genuine Holden parts.
Sportivo replaced the clutch system on the car on 3 December 2015, and then invoiced the Applicant $2,047.
The Applicant says that he collected the car on 3 December 2015. However on driving out of the driveway, the Applicant says that an engine warning light on the dashboard illuminated. Very shortly after that, he says that he heard grinding noises emanating from somewhere within the car, and there was a distinctive burning smell coming from the engine. That evening, the Applicant sent a text message to Mr Iozzi, complaining about those things.
On 4 December 2015 the Applicant took his car back to Sportivo. He says that
Mr Iozzi very briefly looked at the car, yet failed to inspect the clutch. Following what the Applicant says was only a very short test drive; Mr Iozzi merely cleared the warning light (with a diagnostic tool), and declared the car to be fine.
The Applicant says that he left Sportivo on 4 December 2015, only for the warning light to come back on again. He then sent another text message to Mr Iozzi at 1:54pm on 4 December 2015 to tell him that. Mr Iozzi then telephoned, and told the Applicant that the problem was likely to be ‘just a faulty sensor light’, rather than any problem with the clutch. The Applicant says that he accepted Mr Iozzi’s assurances and, in reliance, did nothing further about the problem.
Over the next seven months the Applicant says that the warning light remained illuminated, all of the time. Despite that, he kept driving. The Applicant also says that throughout this period the clutch pedal revealed a tendency to stick, particularly whenever the engine was cold. The Applicant says that the clutch never functioned reliably, such that he was required (in his own terms), to ‘manage’ the vehicle, whenever driving.
More than seven months later, on 25 July 2016, the Applicant put the car in for another service, this time with Eagers Holden, at Windsor (‘EHW’). A report given by EHW on 25 July 2016 notes, in part:
Found clutch master cylinder not tensioned to pedal correctly and seal not siting correctly (master cylinder to clutch line).
Tested clutch. Found clutch has an abnormaly [sic] small amount of travel. Checked pedal. All ok.
Carried out complete inspection of clutch system. Customer has had the complete clutch system replaced in the last six months including clutch slave and master cylinder.
Found clutch cylinder was not mounted sufficiently onto clutch pedal and seal between the master cylinder and clutch line was not seated correctly.
This has caused damage to the new master cylinder.
Requires a replacement master cylinder. Customer is taking vehicle back to where clutch was replaced.
After having received the report from EHW, the Applicant telephoned Sportivo, who arranged for the vehicle to be towed back to their workshop, at Virginia. This cost $110, but the Applicant has not paid it.
Once the car was back with Sportivo, the Applicant says that Mr Iozzi again insisted that the problem was just a faulty sensor light, and that Mr Iozzi refused to open up the clutch to further inspect it. The Applicant says that Mr Iozzi also disputed the accuracy of the EHW report, and merely used his diagnostic tool to reset the sensor light, in the same manner as he had done on 4 December 2015, before again pronouncing the car to be fit to drive.
The Applicant says that he again accepted Mr Iozzi’s assurances, and that he left Sportivo on 25 July 2016 only for the sensor light to come back on again, within the half hour. Despite that, the Applicant says that he continued to drive the car.
There was then no contact between the Applicant and Sportivo, until 2 November 2016.
The Applicant wanted to use the car to earn income driving for Uber. On 2 November 2016, the Applicant took the car to a roadworthy testing centre at Salisbury for a compulsory inspection that needed to be passed before the car could be approved for use as an Uber vehicle (‘the first Uber inspection’).
The Applicant says that the car failed the first Uber inspection, because the dash light was illuminated.
Annexure 4 to the Applicant’s QCAT Application is a copy of the report of the first Uber inspection report. I think it significant to record that this reveals that the car failed the first Uber inspection for a number of reasons, beyond just the fact of the engine warning light being illuminated. The first Uber inspection report records:
…a complex modification [that] does not match the codes specified on the modification plate;
…faults are present on-control units (i.e. airbag fault light, stability control for light etc); and
…pod filter fitted and not secure. Engine warning light on in dash.
The Applicant contends that as a consequence of his vehicle having failed the first Uber inspection, he was unable to drive the car for Uber, thus losing an income of $1,000 for that week. The Applicant has provided what is now Annexure 5 to his claim as his evidence in proof of that. Because Annexure 4 records a host of other reasons why the car failed the first Uber inspection, I am not prepared to conclude that the fact of the car having failed the first Uber inspection was caused by the Respondent. It seems sufficiently clear to me that the car would not have passed the first Uber inspection in any event, notwithstanding anything now claimed by the Applicant to have been caused by Sportivo.
On 4 November 2016 the Applicant says that he took his car back to Sportivo, and that Mr Iozzi again cleared the engine warning light with his diagnostic device. Although the Applicant had booked a second Uber inspection for that same day, he says that the warning light came back on during the drive back to Salisbury, so he cancelled the Uber inspection.
The Applicant says that he then continued to drive his car based upon Mr Iozzi’s representation that there was nothing wrong with the clutch, other than the fact of a faulty sensor light.
On 9 November 2016 the Applicant says that he took his car to Zupps Holden at
Mt Gravatt (“ZHMG”) to obtain a second opinion. The Applicant says that ZHMG found a fault with the clutch.
Now attached to the claim is Annexure 6, being a report from ZHMG. That report reveals:
…inspected vehicle and found fault present for clutch pedal switch B.
Cleared fault and found engine warning light return on road test.
Found cruise control not working due to faulty clutch pedal switch.
The Applicant also says that whilst he was at ZHMG he was advised that if the clutch parts that had been fitted by Sportivo in December 2015 were in fact genuine, then there should not be any problem with the clutch, such that the issue was more likely to be being caused by a faulty clutch sensor light, as had been suggested by Mr Iozzi.
On the strength of that advice, the Applicant says that he then telephoned Mr Iozzi and requested that Sportivo now order in a new clutch sensor kit, to be fitted to his car once those parts had arrived.
On 11 November 2016, Sportivo fitted a new clutch sensor to the car. Immediately afterwards, the Applicant says that he drove back to Salisbury to have his car undertake a re-scheduled Uber inspection. However, the engine warning light came back on again, causing the car to fail yet another inspection. Because of that, the Applicant says that he was still unable to drive for Uber, and continued to lose income at the rate of $1,000 for that week, again as evidenced by Annexure 5 to his Claim.
The Applicant then arranged for a third Uber inspection, scheduled for 17 December 2016. Such was his ambition to drive for Uber that the Applicant says that he asked Mr Iozzi to drive across town and meet with him at Salisbury on 17 December 2016, prior to the third Uber inspection. Mr Iozzi was asked to bring his diagnostic device with him, in order to turn off the engine warning light, immediately prior to the inspection. The Applicant says that Mr Iozzi thus used his diagnostic tool at Salisbury for what amounted to the fifth time, to clear the engine warning light.
The Applicant says that the car then managed to pass the Uber inspection on
17 December 2016, yet as soon as he had departed from the Salisbury testing centre the light came back on again. Thereafter the light remained permanently illuminated, and the Applicant just tried to ignore it.
Notwithstanding the illuminated warning light, the Applicant continued to drive the car right up until 24 February 2017. By that point, the Applicant says that the car had become so unreliable as to be virtually un-driveable, due to the condition of the clutch. The Applicant says that he then had to rent a Toyota Camry, at a cost of $290.50 per week, to continue driving for Uber, and that he has continued to hire rental cars since that time.
On 23 March 2017, the Applicant took the car into ZHMG, who fitted a new clutch sensor switch for him. The Applicant also says that ZHMG told him at that time that the new clutch sensor switch previously installed by Sportivo ‘should have been calibrated’.
On 11 April 2017, the Applicant took the car to the City Auction Group for an appraisal, prior to his attempting to sell it. The Applicant says that he was told that the car would only attract a very low price, because of the illuminated engine warning light and ‘faded’ clutch pedal. Because of this, the Applicant says that the City Auction Group declined to include the car in the forthcoming auction.
On 26 April 2017, the Applicant took the car back to Sportivo to discuss the ongoing problems with the clutch. He says that Mr Iozzi was rude and unsympathetic, and informed him that Sportivo could not even look at the car for at least another week.
Eventually, on 2 May 2017 (and by now suspecting that Mr Iozzi had used non-genuine parts when the clutch was replaced on 3 December 2015), the Applicant took his car to Zupps Holden at Aspley (‘ZHA’), and had them inspect the clutch.
The Applicant says that ZHA identified that the clutch parts had not been installed correctly, and that the flywheel was non-genuine, and that the clutch had, by now, also burnt out. The Applicant also contends that ZHA identified that the pedal box and clutch master cylinder were faulty, and that the clutch pedal switch mount was loose. Later, on 19 June 2017, the Applicant obtained a report from ZHA confirming what they had discovered on 2 May 2017. The ZHA Report is now Annexure 13 to the Applicant’s Claim.
The Applicant says that he was charged $319 by ZHA to inspect the clutch, and that he was given a quote of $4,557.41 by ZHA for them to repair it. The Applicant says that he could not afford that.
On 5 May 2017 the car’s registration expired. The Applicant says that he was unable to renew the registration, because the vehicle was not roadworthy.
Because the vehicle has remained unregistered the Applicant contends that he has also been unable to sell it, despite his having wished to sell the car since 11 April 2017. The Applicant says that he has thus been put in a position where he is required to continue to pay for the car, despite not being able to drive it. Over the period between 11 April 2017 and 15 August 2017 the Applicant says that he incurred additional finance costs of $668.81, and that these continue to accrue, in accordance with Annexure 14 to his claim.
The Applicant contends that the Respondent has been negligent, and is also in breach of the contract formed on 3 December 2017, because Sportivo installed a non-genuine flywheel, and otherwise performed the clutch replacement very poorly.
The Applicant claims that the negligence and/or breach of contract by Sportivo has now caused him $15,569.15 in losses, made up as follows:
Costs to repair the vehicle:
$4,557.41
Costs to register the vehicle:
$547.85
EHW reimbursement (per Annexure 3):
$54.18
EHW reimbursement (per Annexure 3):
$270.90
Reimbursement towing charge:
$110.00
Loss of income from Uber (2-17 November 2017):
$2,000.00
Sportivo invoice:
$55.00
ZHMG reimbursement (per Annexures 6, 12)
$285.00
Interest on the vehicle loan from 11 April to 15 August 2017
$668.81
Rental cost on hire cars 24 November 2017 to 15 August 2017 (24 weeks at $292.50 per week) (per Annexure 11)
$7,020.00
Total Claim:
$15,569.15
Respondents’ Version
Mr Iozzi’s recollection as to what happened on 3 and 4 December 2015 is different to that of the Applicant.
Mr Iozzi says that the Applicant is a former friend and housemate of his brother Marcello, and that he was told by his brother that the Applicant needed help to get the clutch redone as cheaply as possible.
A few days prior to the arrival of the car at Sportivo, Mr Iozzi says that the Applicant had requested Sportivo to replace the entire clutch system with genuine Holden parts, and that he had agreed on behalf Sportivo to do this. Mr Iozzi says that he was not told by the Applicant about any dash warning lights; was not asked to perform any diagnostic services; was not told that the car was a ‘performance’ car, and he was not asked to use any high performance clutch parts.
Mr Iozzi says that Sportivo had no role in determining which clutch kit was ordered for the Applicant’s car. Sportivo orders all of its Holden spare parts via Eagers. At the time, the Eagers sales representative happened to be at Sportivo, so the Eagers representative obtained the vehicle identification number (VIN) directly from the Applicant, and then ordered the relevant clutch kit (GM-92161753), which was then delivered to Sportivo prior to the arrival of the car on 3 December 2015.
There is now an Eagers Parts invoice in evidence before the Tribunal which shows that a complete clutch kit (GM-92161753), inclusive of flywheel, was ordered from Eagers on 1 December 2015.
Mr Iozzi says that the entire kit comes packaged in a box, with the identifying number for the kit on a label on the outside of the box. Mr Iozzi says that he checked the label on the box, before opening it. The fact that kit GM-92161753 is the correct one for this make and model of car is a matter that Mr Iozzi says is also confirmed in the ‘Holden Trade Club’ book. A copy of the relevant page from that book is now also before the Tribunal.
Mr Iozzi says that he personally performed the clutch installation on 3 December 2015. After the installation, Mr Iozzi says that he took the car for a test drive, and everything about the clutch appeared to be as expected, and in normal working order.
Mr Iozzi recalls having received a text message from the Applicant that evening. He says that when he received that text message he telephoned the Applicant and asked him to bring the car back to Sportivo the next morning, so he could look at the problems.
On 4 December 2015, Mr Iozzi says that he put the car up on the hoist. He pulled off the exhaust shroud to inspect whether the smell that the Applicant had complained about was being caused by oily handprints on the exhaust manifold. Mr Iozzi says that this is a relatively common by-product of vehicle servicing. Mr Iozzi says that his inspection confirmed this to be the problem, and he advised the Applicant that the oil residues would soon burn away. Next, Mr Iozzi says that he performed an inspection on the left hand rear wheel (which had been identified to him by the Applicant as the area from where the grinding sounds were emanating), yet says that he could not find any problem.
Mr Iozzi says that he then scanned the illuminated dash warning light with a diagnostic tool, which indicated the problem to be the ‘clutch pedal, switch B circuit’. Mr Iozzi says that he reset the light, and then took the car for a test drive of at least one hour in order to see whether he could make the light come back on again, yet it did not.
Mr Iozzi also says that the Applicant accompanied him throughout that test drive, and the Applicant had even asked him to drive the car more aggressively, to see whether that would make the light come back on again. Mr Iozzi says that he drove aggressively, but the light still did not come on. Mr Iozzi says that the Applicant was not charged any fee on 4 December 2015, despite his spending nearly two hours dealing with the various problems raised by the Applicant.
Mr Iozzi next recalls being re-contacted by the Applicant on the evening of
4 December 2015, and being told that the engine warning light had come back on again. Mr Iozzi denies that he told the Applicant that this was ‘just a faulty sensor’ and says that he would not ever say such a thing. He says that he replied by saying that he had no idea why the light was coming on, and could not provide any reason unless given a chance to first undertake further testing on the car’s sensor systems.
Mr Iozzi says that the Applicant declined the offer.
Although the Applicant contends that there were still ongoing problems with the illuminated dash light and his needing to ‘manage’ the faulty clutch during the period between 4 December 2015 and mid-July 2016, Mr Iozzi disputes that this would have been the case. Mr Iozzi points to the fact that, in February 2016, the Applicant had brought the car back to Sportivo for an entirely unrelated problem. Mr Iozzi fixed that problem, and then took the vehicle for another test drive. No complaints were raised by the Applicant about the condition of the clutch during the February 2016 visit, and nor did Mr Iozzi himself identify any problems with the clutch, or see any illuminated engine warning lights, during his test drive in February 2016.
Mr Iozzi also has a different recollection as to what transpired on 25 July 2016.
Mr Iozzi recalls arranging for the car to be towed back to Sportivo from EHW, because he had been told that the car was un-driveable, and needed to be towed. Once the car arrived, Mr Iozzi says that he visually inspected the clutch and says that it had been left in an obviously dis-assembled state by the mechanics at EHW, and hence the reason why it could not be driven.
Mr Iozzi also says that he told the Applicant that he disagreed with the conclusions contained in the report that had been prepared by EHW as, once he had re-assembled the clutch, and bled the system (necessary because it had been left dis-assembled), a normal clutch operation was immediately attained by him. Mr Iozzi also says that he test-drove the vehicle on 25 July 2016, and this confirmed that the clutch system was functioning normally, and that the dashboard sensor light did not illuminate during the test drive. Mr Iozzi also says that he had further opportunity to test drive the car on the morning of 26 July 2016. Once again, Mr Iozzi says that he found the clutch to be operating normally, and the warning light did not illuminate.
The Respondents also notes that over the approximately seven and a half month period between 3 December 2015 and 25 July 2016 the car had been driven by the Applicant for 25,000km, when a city car might typically be expected to complete between only 10,000km and 15,000km. Equally, the Respondents submit that during this period questions may well be raised as to the manner in which the car had been driven, and as to whether the car was properly serviced, or even maintained at all.
Mr Iozzi notes that he did not see the car again until 9 November 2016, when the Applicant came back to him stating that ZHMG had diagnosed the car as requiring a new clutch sensor. Mr Iozzi says that the Applicant obviously accepted the ZHMG diagnosis, and just wanted a new clutch sensor kit to be ordered and installed. Sportivo did as directed, without conducting any further fault diagnosis.
On 11 November 2016, the Applicant made a further request of Sportivo: this time to repair a non-standard air filter assembly, and reset the PCM codes so as to extinguish the warning light. Mr Iozzi says that on this occasion he was again not asked to diagnose any clutch problem, but only to make the warning light turn off again. Mr Iozzi also says that the Applicant did not raise any complaints about the clutch not operating correctly when at Sportivo on 11 November 2016.
Mr Iozzi also recalls that he was requested by the Applicant to drive to Salisbury on 17 November 2016 to reset the engine codes to extinguish the engine warning light before the Applicant presented the car for another roadworthy assessment for Uber. Mr Iozzi says that the Applicant was very specific about the task at that time (which was only to extinguish the light), and that the Applicant did not complain to him whilst he was at Salisbury about the clutch not operating correctly.
Mr Iozzi next saw the car on 26 April 2017. The Applicant had brought the car in requesting a clutch bleed, because he told Mr Iozzi that he was thinking of selling it. Once again, Mr Iozzi says that the Applicant made a specific request (to bleed the clutch) and that no complaint was raised regarding the operation of the clutch.
Sportivo accepts that the vehicle was no longer roadworthy as at 2 May 2017 when it was inspected by ZHA. However, the Respondents primarily submit that this is because ZHA did not re-assemble the clutch after having disassembled it. Moreover, the Respondents observe that the vehicle had been very intensively used over the period between Sportivo first replacing the clutch on 3 December 2015 and 23 May 2017 (a period of 17 months), given that odometer readings reveal that the car had by that stage been driven approximately 38,000km.
Analysis
Distilled to an essence, the Applicant asserts that Sportivo had agreed to replace the entire clutch assembly with genuine Holden parts, yet did not; and did not undertake the clutch replacement in a competent manner. The Applicant says that these two things together have caused all of the economic loss now claimed by him.
The Applicant’s claim is inelegantly expressed in both contract and negligence. However, given the nature of this jurisdiction I propose to treat the claim as a purely contractual matter. Although I do not discount the theoretical possibility of a cause of action for pure economic loss in the tort of negligence - particularly in cases of ‘vulnerability’ of the type discussed by McHugh J in Perre v Apand Pty Ltd[1] - it seems to me that the negligence claim raised here is just an ‘echo’ of the contractual claim. As such, there does not seem to be any real benefit in my now attempting to also analyse these matters from the further perspective of tort when the result is no different.
[1](1999) 198 CLR 180, 225 [118].
The strongest items of evidence in support of the Applicant’s case are the report from ZHA dated 19 June 2017, (now Annexure 13 to the claim), coupled with Exhibit 1, which is a picture of the flywheel, said to have been removed by ZHA on 2 May 2017. That flywheel has stamped on it the serial number 1255 4130 N. I am told that this is a ‘Repco’ flywheel, and not a genuine Holden flywheel.
The Respondents readily admit that the oral agreement made with the Applicant on or about 3 December 2015 was for Sportivo to use genuine Holden parts, yet maintain that they always did use genuine parts. The Respondents deny that the reputedly Repco flywheel shown in Exhibit 1 is now the same flywheel as that installed by Sportivo on 3 December 2015. The Respondents say that the flywheel that Sportivo installed came as part of a total clutch kit, supplied by Eagers Holden, and there is evidence to show that the correct kit (GM-92161753) was ordered and used.
The Respondent also does not accept the provenance of the ZHA letter dated 19 May 2017 and suspect that the Applicant has self-generated it, and submits that, if a non-genuine flywheel was found on 2 May 2017 by ZHA, then this is only evidence that shows that someone other than Sportivo has also worked on the clutch between Sportivo doing the original clutch replacement on 3 December 2015, and the apparent discovery of the non-genuine flywheel, by ZHA, on 2 May 2017.
The Respondent also submits that the letter from ZHA dated 19 June 2017 purports to assert that the correct clutch parts for the car ‘as per Techline fix’ are different parts from those that were fitted by Sportivo. Yet, the Respondents submit that the parts now referred to in the ZHA letter are entirely different parts from ‘standard’ clutch parts, and are high performance clutch parts brought out by Holden in response to difficulties more recently identified in V series V8 Holdens. The Respondent notes that Sportivo had never been requested by the Applicant to install anything other than a standard clutch kit.
In relation to the ‘Techline fix’ referred to in the ZHA letter, the Respondent says that these bulletins are not available to non-Holden dealers, and that Sportivo ordinarily obtains all of its information about Holden parts from the more widely available Holden ‘trade club’ book. It was only after some ‘forensic’ effort (once these proceedings were already underway) that the Respondents were able to procure a copy of the Techline fix, as referred to in the ZHA letter of 19 June 2017. This undated bulletin (TL1790A – 1002) provides advice to Holden dealers in relation to a ‘service fix’ required in response to an identified Holden defect. In part, that document refers to the need for a replacement clutch, 290mm in diameter ‘which differs from the standard 297mm clutch assembled to the vehicle during production’, together with the need for a revised clutch pedal assembly, and flywheel.
The Techline bulletin also specifies that:
It is written to assist Dealers in the repair of genuine customer complaints of an intermittent clutch pedal stick down condition following aggressive high RPM gear changes. Not all vehicles are affected by this condition which typically occurs on those vehicles often operated in a spirited manner.
The Respondents refute the contents of the EHW letter dated 25 July 2016, and also refute much of the content of the ZHA letter, that dated 19 June 2017.
However, the Applicant did not call any mechanics from ZHA to testify in these proceedings in relation to the matters now claimed in the letter dated 19 June 2017. Nor is there any evidence about the provenance of the allegedly non-genuine flywheel from any of the mechanics involved in the earlier inspections by either of ZHW, or ZHMG, prior to the final 2 May 2017 inspection, by ZHA.
I also note that the ZHA letter (Annexure 13 to the Claim) specifies that the non-genuine flywheel had the serial number 1255 4730n. This is not the same as the number stamped on the flywheel shown in exhibit 1, which is 1255 4130 N. It may be that the author of that letter has simply misread the numeral ‘7’ as ‘1’, and that the lower case ‘n’ is only a typographic error, however I do not know and can only speculate.
In the absence of evidence from the mechanic at ZHA who wrote the contested letter dated 19 June 2017, I am not able to make a determination in relation to the allegedly non-genuine flywheel. It also appears to me that ZHA are probably quoting for an upgrade to a high performance clutch, rather than for a standard V series clutch system.
In the absence of any direct testimony from a mechanic from EHW, I am also unable to make any determination about the contested contents of the EHW letter dated 25 July 2016.
In light of the information contained in the Techline fix document, the Respondents submit that the most likely cause for the difficulties evidently experienced by the Applicant with the clutch in the car have been ‘aggressive high RPM gear changes’ and ‘operation in a spirited manner’, as noted in the Techline fix document as causing clutch problems consistent with those now described by the Applicant; coupled with the fact that the car has been used commercially and has driven 38,000km.
The Respondents submit that the Tribunal can infer that the car has been driven in an aggressive manner on the basis of the extensive performance modifications that have been made to it (yet not to the clutch), as well as from the affidavit evidence of Marcello Iozzi, who deposes that the Applicant was an aggressive driver. The Respondents submit that this car should have always had a high performance clutch installed, yet did not, and this is not a matter that can be safely attributed to any default by the Respondents, who were only ever asked to install a standard yet genuine Holden clutch kit, which they say that Sportivo did.
On the balance of probabilities it seems that the car has been driven extensively and likely also in a spirited manner, and that these factors have combined to become the most likely cause for the difficulties described by the Applicant with the clutch system on the car.
Disposition
As a matter of evidence I am not satisfied that the various economic losses now claimed by the Applicant can be properly attributed to the Respondents. Accordingly, the claim is dismissed.
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