Romano v Warner
[2014] QCATA 228
•22 August 2014
| CITATION: | Romano v Warner [2014] QCATA 228 |
| PARTIES: | Christopher Romano t/as Bob Romano Performance Motors (Applicant/Appellant) |
| V | |
| Mattew Warner (Respondent) |
| APPLICATION NUMBER: | APL180 -14 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member Stilgoe, OAM |
| DELIVERED ON: | 22 August 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal granted. 2. Appeal allowed 3. The decision of 17 February 2014 is set aside. 4. RJ & EP Romano Pty Ltd shall pay Matthew Warner $12,097.09 by 12 September 2014. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – where car repaired on insurance – where car still defective – where owner paid repairer to fix defective work – where car still defective – where claim for refund of money - whether grounds for leave to appeal Dearman v Dearman (1908) 7 CLR 549 |
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
Mr Warner owned a 2001 Audi S4. In February 2012, he took the Audi to Bob Romano Performance Motors to identify the cause of, and repair, damage to the electrical and turbo system. Romano finished that work in August 2012, at a cost of $15,500. Mr Warner’s insurer paid that sum.
The Audi failed only two days after Mr Warner collected it. He took it back to Romano, who identified a turbo failure. On 17 December 2012, the car was ready. Mr Warner collected it, and paid Romano $11,877.95.
Two days later, the car failed again. Mr Warner took it back to Romano. Romano, again, diagnosed a turbo failure. Mr Warner collected the car in May 2013. It failed again in June 2013. In July 2013, Mr Warner sold the car.
Mr Warner filed a claim for $12,308.90 being the money he paid to Romano, plus $1,292.95 for costs incurred in towing, hire car and other ancillary costs. The tribunal ordered Mr Romano pay Mr Warner $12,317.94.
Mr Romano wants to appeal that decision. He says the learned Member erred at law in a number of her findings of fact. He says the learned Member gave undue weight to Mr Warner’s evidence and insufficient weight to his evidence. He says the learned Member erred in not considering the impact of a previous settlement between Mr Warner and his insurer.
Although Mr Romano filed the application for leave to appeal, and the tribunal heading names him as applicant, the proper applicant is RJ & EP Romano Pty Ltd (“Romano”).
Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary.[1] 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.[2]
[1] QCAT Act s 142(3)(a)(i).
[2] Pickering v McArthur [2005] QCA 294 at [3].
Mr Romano has filed fresh evidence showing that: the sale price of the Audi was $8,800, not $7,000; that the Red Book value of the car was not as per the valuation before the learned Adjudicator at the hearing; that Mr Romano complies with relevant industry standards; that Romano completed authorised works; and that Mr Warner did not comply with the warranty conditions.
The appeals tribunal will only accept fresh evidence if it was not reasonably available at the time the proceeding was heard and determined. Ordinarily, an applicant for leave to adduce such evidence must satisfy three tests. Could Mr Romano have obtained the evidence with reasonable diligence for use at the trial? If allowed, would the evidence probably have an important impact on the result of the case? Is the evidence credible?[3]
[3] Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 408
[10]The learned Member ordered that Mr Romano refund money Mr Warner had paid. The value of the car, though interesting, was irrelevant to that decision. Evidence about the sale price will not have an important impact on the result of the case.
[11]The learned Member had a report about the value of the car from an insurance loss adjuster. The report included evidence from Carpoint.com.au. Mr Romano had the opportunity to challenge this evidence at the hearing and he has not explained why he did not do so. As I have already addressed, valuation evidence will not have an important impact on the result of the case.
[12]Similarly, Mr Romano’s evidence about his practice in the workshop should have been available at the hearing and he has not explained why it was not available. Further, that evidence will not have an important impact on the result of the case. The fresh evidence should not be admitted and the application for leave to appeal must proceed on the basis of the evidence before the learned Member.
Findings of fact
[13] The appeal tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.[4] An appellate tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.[5]
[4] Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.
[5] Chambers v Jobling (1986) 7 NSWLR 1 at 10.
[14] The learned Member’s finding that Mr Warner took the car to Romano, rather than the insurer, has no impact on the result of the case. The learned Member‘s findings that Romano provided a quote, rather than an estimate, and that the account was different from the estimate, are also irrelevant because the learned Member ordered a refund of the invoiced costs.
[15] Mr Romano points out that the invoice includes work on the brakes about which Mr Warner does not complain. He also submits that there is additional work including engine oil and filter sump, power steering fluid, coolant, various bolts and workshop items and spark plugs.
[16] It is obvious from the invoice that Mr Romano had to remove the engine to work on the turbo. To remove the engine, Mr Romano had to drain the engine oil and coolant, degas the air conditioning and disconnect the transmission. The cost of the turbo repair must therefore have included replacing the engine, reconnecting and recommissioning the radiator, air conditioning and transmission. It would be nonsensical to reinstate the engine using defective or worn parts.
[17] I do accept, however, that work on the brakes was not a necessary aspect of the turbo repair. Whether or not Mr Warner agreed to that work, he had the benefit of it. Because Mr Romano did not itemise the labour costs, the only items specifically referrable to the brakes are parts totalling $220.85.
[18] The learned Member heard evidence from both parties about the workmanship on the Audi. She preferred Mr Warner’s evidence. It is true that Mr Warner is not an expert but, where the quality of his work is at the heart of the dispute, Mr Romano cannot be said to be an expert either. The learned Member had evidence of three failed attempts to solve a problem. The evidence can support her finding that Mr Romano’s work was defective. There is nothing in the transcript to persuade me that she should have taken a different view of the facts.
[19]At the hearing on 25 November 2013, Mr Romano told the learned Member that Mr Warner was not entitled to any compensation because he had already received an insurance payout of $22,000 for the same damage. Mr Warner told the learned Member that the insurance related to another incident, the insurance claim had been paid but the money was exhausted, and this claim related to Romano’s work which was related to, but different from, the insurance claim. The learned Member adjourned the hearing to enable Mr Warner to consider whether this loss should also be part of his insurance claim and to enable Mr Romano to consider whether he should make a claim on his insurer.
[20] At the resumed hearing, Mr Romano indicated that Romano’s insurer would cover Mr Warner’s hire car costs and towing fees[6]. Mr Warner told the learned Member[7] that the insurance claim brought the car to a certain point and, if Romano’s work under the insurance had been completed properly, he would not have spent extra money to rectify the car and his application to the tribunal would not have been necessary.
[6] Transcript 17.02.14 page 1-3, lines 22-25.
[7] Transcript 17.02.14 page 1-6, lines 24-42.
[21] The evidence can support the learned Member’s finding that the insurance payment was not connected to the matters the subject of Mr Warner’s application and that the insurance payment did not affect Mr Warner’s right to compensation. The car was damaged in a fire. The insurance company paid around $20,000 to repairers, including Romano. The car was faulty. Mr Warner paid Romano to fix it and Romano did not fix it. Mr Warner wanted a refund of the money he paid to Romano and that was the basis of the learned Member’s order.
[22] Romano is entitled to a reduction in the order to account for the cost of the brakes. Leave to appeal should be granted on that limited ground and the appeal allowed. The decision of 17 February 2014 is set aside. RJ & EP Romano Pty Ltd shall pay Matthew Warner $12,097.09 by [21 days].
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