Sillins v Caress Panels (Civil) - [2017] VMC 4

IN THE MAGISTRATES’ COURT OF VICTORIA

AT MELBOURNE

F12991120

BETWEEN:

TRENT SILLINS Plaintiff

-and-

CARESS PANELS (VIC) PTY LTD Defendant

MAGISTRATE: GINNANE

DATE OF DECISION: 3 MARCH 2017

WHERE HEARD: MELBOURNE

MEDIUM NEUTRAL CITATION: [2017] VMC004

APPEARANCES COUNSEL SOLICITORS

For the Plaintiff Mr N Turner Battley & Co

For the Defendant Mr T Greenway Davies Collison

Cave Law

REASONS FOR DECISION

HIS HONOUR

This proceeding comprises a motor vehicle damage claim but not of the ordinary type. The damage alleged did not arise from a motor vehicle collision but instead from the alleged failure of the defendant, ca restorer and finisher to undertake the repairs to a prized Porsche vehicle owned by the plaintiff either in accordance to the terms of the agreement entered between them or in the alternative contrary to consumer guarantees existing under the Australian Consumer Law (the ACL).
The vehicle in question is a Porsche of some value and on the evidence a model of increasing value.
The plaintiff was represented by Mr N Turner of counsel and the defendant was represented by Mr T Greenway of counsel. The proceeding was heard over the course of 7 and 9 June and 25 July 2017. In addition a view of the vehicle was conducted in the presence of the parties and their legal representatives.
The plaintiff sued for an amount of $43,389.20 by way of damages being the assessed cost of fully stripping the car back to metal and being repainted.
The plaintiff and defendant adduced expert opinion evidence.
The plaintiff’s vehicle that he delivered up to the defendant for work to be performed is a 2011 Porsche 911 GT3. I was told it was the last of the gear shift variants prior to Porsche shifting to paddle gears. I was told it had a market value of $250,000 to $295,000.
The plaintiff purchased the vehicle used vehicle.
The vehicle presents as painted white with a clear over a base paint.
The plaintiff in addition to his own testimony relied on the opinion of Mr Wayne Hayes (Hayes) an assessor employed by Autohaus Assessing and also Trevor Davis (Davis).
The defendant in addition to the oral evidence of its director and its spray painter relied on the opinion of Mr Brian Munyard (Munyard), the Managing Director of Brian Munyard & Associates Pty Ltd (trading as Australasian Associated Assessors). Munyard’s evidence is to the effect that the works undertaken by the defendant were narrow in scope and limited to works connected with stone chips to front bumper, the left and right sills and the rear spoiler. He said that if the works were defective the extent of liability must be limited to the costs of rectification consistent with the scope of the works.
The plaintiff’s sought to amend up the claim by way of a charge for storage. Because I am not prepared to accept the basis of the claim for storage due to the evidence given by Sillins, the question of the amendment became moot.

The Plaintiff

The plaintiff Trent Sillins (Sillins) is an advertising director. He purchased the Porsche vehicle some three years ago. Sillins purchased the vehicle from a private seller in Adelaide. He said he undertook a “due diligence” on the vehicle prior to purchase. The due diligence was informal and limited to having inspected it in company with a family member whom he said had some expertise in the field and he said he then had the vehicle detailed and shipped by road to Melbourne under a protective covering and in an enclosed truck.
He described the vehicle as painted with a white base coat with a clear lacquer cover. He said he is a car enthusiast and he has shown the vehicle on a number of occasions. He said that at no stage up until the controversy arose with the quality of the work undertaken by the defendant was he aware of any suggestion of colour variation to the vehicle.
Sillins said he used the vehicle sparingly, perhaps once a fortnight or monthly and for the purpose of leisure driving to places such as Sorrento and Portsea on the Mornington Peninsula or Torquay.
He said that on one occasion he had driven the car to Pakenham and traversed an unsealed road and on his return home he discovered that there were stone chips underneath the doors and sill panels (i.e. the panel that runs under the doors) and under the rear bumper together with minor stone chips on the front bumper. He said there was no damage occasioned to the doors above the sill panels but there was some minor stone marks to the top of the rear spoiler.
The plaintiff said he came to put the vehicle with the defendant for repairs because he had sent work to them previously and had been “very satisfied” with their quality. He said their work was bespoke. He had that in his previous previously he had dealt with Mr Dennis Rogers (Rogers), the principal of the defendant. He said he dealt with him on this occasion as well.
Sillins did not however address the stone damage with any urgency. Sillins said that he first spoke with Rogers “about three months after the Pakenham drive”. He said he referred Rogers to the areas on the vehicle he had concerns about and he pointed out what he required to be done in order “to get it back to perfect”. Although this expression was utilised by Sillins and his counsel Mr Turner, I am not satisfied that it was a term of the agreement the parties struck but was an expression of desire. In my judgment it was expressed in too broad and insufficiently certain terms as to be afforded the character of a term of their agreement.
Sillins said his discussions with Rogers included the possibility of altering the colour of the brake callipers. They were red and Sillins asked Rogers if they could be changed to green. Sillins said Rogers told him that a third party mechanic would need to be involved to effect the change in colour and ultimately Sillins decided against the idea. Sillins said that he did not impose a time line for the completion of the repair job and that he told Rogers to “take as long as you require” because the Porsche was his secondary and not primary mode of transportation.

Various quotations

I received evidence of a variety of quotations that passed between Sillins and Rogers. The quotations all bear the date of the original quotation of 29 September 2014 but were sent by email to Sillins on progressively different dates with the specified works to be undertaken being updated.

The Narrative of Events

It seems the vehicle went into repair in February 2015. Sillins said 4 days later he was telephoned to come and collect the vehicle. He said he was told it had to be collected because there was no room for it to be stored on site and if it was not collected it would be left on the street. He said despite the inconvenience but because of being concerned that it would be left on the street he hurried to collect it from the defendant only to find that when he arrived the vehicle was still being worked on.
He said when he saw the car he harboured areas of concern in relation to the quality of the work of repair to the spoiler and under the doors. He said surface areas including under the sill seemed “rough on touch”. He said a hand polish wheel was brought out and applied and an attempt was made to cut back the rough areas by Rogers and another worker (whom it would become clear in the later evidence was the spray painter). Sillins said that Rogers told him that the surface felt rough because they had been unable to paint it in the booth. He said that after the polishing had been undertaken the area felt smoother but from a visual perspective he was still not satisfied. Sillins said that nonetheless he was “scurried out” of the shop by Rogers.
Sillins said he drove the car away and placed it in storage in an underground car park. He said the demands on his time meant that he was unable to fully inspect it for a period of about a week.
Sillins said he subsequently took the car for a drive to a bbq. Afterwards he said he took it be washed as it had been rained on. He said the person washing his car approached him with a wash cloth and it had flakes of paint on it. He said he drove the car home and it was only then when he inspected it under outside light that he became aware of variations in colour on the car. He said it was agreed with the defendant that the front bar was to be fully painted by the defendant but when he examined it he saw that it was a “completely different shade”.
It was accepted by the plaintiff and the defendant that it was not part of the agreement that the bonnet or the roof or the doors or the boot lid was to be painted by the defendant.
Sillins said that in relation to the sill panels he had a discussion with Rogers about the process of blending but the extent of the blending that would be necessary to be undertaken by the defendant was not the subject of discussions between the two of them.
Sillins said the front guards were not to be painted as part of the job.
Sillins said he said he saw bubbles and pitting in the texture around the filler cap rim. The fuel filler neck itself is located in the area of the front right guard near the wind screen area.
Sillins said he was not satisfied with the painting to the top of the door sills as he observed “a yellow on top of white” that he described as “like a line in the sand that has just stopped”. He said it could not be observed from the outside when the doors of the car are closed but is observable when open.
He said the colour applied was inconsistent on the cant rail area to approximately half way up extending to the rear window and he said there appeared to be a line that just stopped and that was “more evident to driver’s side”.
He said the rear quarter panels appeared to be of a different colour as well from the doors and presented with a rough finish on the inside edge.
Reverting to the work that he required performed, he said that the underside of the rear bumper bar had suffered stone chip damage on its underside and its repair was part of the scope of the agreed works.
He said that the bumper was to be painted on the underside only. He said the outer vertical corners on both exposed sides of the bumper however appeared to have been painted and presented with colour variation as well as drip marks underneath the bar on the outer corners that appeared to have set.
The plaintiff said he had Wayne Hayes from Autohaus Assessing assess the vehicle.
As to the claimed amendment of the quantum in respect of storage, Sillins said moving the car would require washing and washing it in turn would have risked further deterioration of the paint. Sillins said he had room in his garage for it and has had so throughout the relevant period of time. As already mentioned the storage claim of $100 per week that the plaintiff applied to add was not allowed.
Sillins was cross-examined. He confirmed that he bought the vehicle in 2011 from a private seller in Adelaide for which he paid $200,000. He said his “due diligence” was undertaken together with a friend who was also a Porsche enthusiast. He said he saw no variations in colour in the paintwork when he made the purchase and denied it was possible that the car suffered from the same.
Sillins said that his previous experience with work performed by Rogers was “exemplary”.
As to the content of his discussions with Rogers about the work he required to be performed Sillins said he told Rogers that he had three areas of concern. He was directed to an email he sent to Rogers dated 5 August 2014 that referred to the “list of work I need carried out” that was identified as follows:

Paint side skirts both sides including inner ends on wheel walls.

Sillins said there was some chips on that area.

Paint rear spoiler top section

Sillins said this area also suffered from chip damage.

Remove and repaint 4 x brake callipers in custom acid lime green.

This was not pursued.
Sillins requested an estimate for the cost of the work in his email.
Time elapsed and by a further email dated 29 September 2015 to Rogers, Sillins wrote:

I was hoping you could give me an estimate to do all the paint work minus the brakes as pointed out.
Here is an itemised list of what I’d like carried out:
-Paint side skirts both sides including inner ends on wheel walls
-Paint rear Spoiler Top Section
-Paint front bumper lower grill semi-gloss black.

Sillins said he wanted the front bumper lower grill painted black gloss because of stone chips and not because it was a different colour as was suggested to him by Mr Greenway.
Email 2 (so referred to by the parties) included a first quotation in the amount of $1,244.10 that reflected the extent of the works at that time identified.
On 7 November 2014 Sillins emailed Rogers inquiring how long the car he require the car in order to undertake the repairs and also inquired how far up the rear quarter the paint would need to be applied. Rogers responded to Sillins email and said he might need the car for three days and “not sure how far up the quarter panel we will travel as yet lower the better”. Sillins in turn replied by another email dated 14 November 2014 writing:

Happy to give you the car for longer to ensure it’s perfect.
Few things I’d be keen for you to look over…How about I bring the car over next week and we get it all locked”. Rogers replied on the same date and said: “That’s okay, I’ll be here”.

More time passed without Sillins delivering up the car for repair and he said that it was not until he bumped into Rogers at the Doncaster Shopping Centre sometime in January 2015 that he took up the matter of repairs again by telling Rogers that he would come in and see him which he recalled doing in late January or February 2015.
It was suggested to Sillins by Mr Greenway that he came to the defendant’s shop in November 2014 shortly after the date of the further email of November referred to and that he and Rogers had a discussion about the work to be undertaken in which Sillins said the stone chips were to be removed on the sills and the spoiler and the works were to be “limited” and “contained as much as possible”. Sillins disagreed that a meeting had occurred in November occurred.
The plaintiff was directed to a third email dated 11 February 2015containing the agreed “second quotation” by which date the vehicle had been delivered back to the defendant.
Sillins was told that Rogers evidence would include that their discussion in relation to work requested to be performed went beyond the matters identified in the quotation and that Sillins wanted the front bumper to be painted because it was a different colour to the rest of the car. Sillins denied this. As well, Sillins wanted the rear bumper to be painted for the same reason, which Sillins also denied. Sillins said the rear bumper needed to be painted purely because of stone chips.
Sillins said that Rogers told him that he “would keep the work as low as possible” which I interpreted as a reference to the cost of repairs because, on the question of how far the paint would need to be applied by the defendant to effect the repairs, Sillins’ evidence was that this was “never discussed or agreed”.
Sillins denied specifically asking Rogers to keep the cost of the works “low”. Mr Greenway Sillins denied that his inquiry to pay in cash was suggestive of a desire to keep the cost of the repairs low.
Sillins said he visited the defendant’s premises a couple of days after dropping off the car because he needed to retrieve some documents he had left in the vehicle. He said he was told there had been some difficulty encountered in getting the wheels off the car.
The defendant’s case included that Sillins returned to the garage once again a couple of days later at which time he observed pre-existing overspray on the left front guard liner. Mr Greenway suggested to Sillins that he told Rogers to fix the pre-existing overspray but Sillins denied this and said what he saw was no more than white polish or powder.
In addition it was put to Sillins that Rogers told him that the wiring loom plug was damaged and bolts to the front guard were missing. Sillins denied this. The obvious point of relevance about these alleged comments was to reinforce one of the defendant’s primary themes that the car had undergone previous paint and other works such as to belie its “original” condition. The wiring loom was in fact replaced according to the works sheet. It was suggested as well to Sillins that this discussion occurred at the same time Rogers told him that the car had previously been spray painted. Sillins denied this. Sillins said he collected his car on 12 February 2016 and that was also the date he was provided with Quotation No 3. The third quotation was much the same as before save that a part was included.
When the plaintiff collected his Porsche he said, “I just walked around the car briefly”. It was suggested to him that in fact he had a conversation with Rogers of about 10 minute’s duration during which he was shown the front bumper bar and back bumper bar and that because they were of apparent different colours he was told by Rogers that the bonnet and right guard had been blended previously. Sillins denied that was said. Furthermore, Mr Greenway put to Sillins that he was told that a decision had been made to paint the front bumper to match left hand guard because it was the most consistent colour on the car. Sillins denied this was said. It was also put to him by Mr Greenway that he “poured” over the vehicle. He denied this and said he was hurried off the premises. It was put to Sillins by Mr Greenway that whilst looking over the work that had been performed he saw two areas of paint shrinkage which he was not happy about and that these were remedied there and then. Sillins cavilled with the characterisation that his concerns had been remedied and instead said they were “attended to”. Sillins said he pointed out the rear spoiler and the lower sills and denied they were rectified on the spot. He said that Rogers told him they would polish out.
Sillins agreed with Mr Greenway that he made no complaint about the appearance of paint colour when he collected the vehicle on 12 February 2015 and that he had inspected the sill panels there and then. It was suggested to him that in their conversation when he collected the car Rogers said, “You can’t even see the blending” but Sillins denied this was any part of their conversation.
Sillins said he drove the Porsche from the defendant’s premises to his office storage where it stayed. He said he observed nothing wrong with the colour of the car or any variation in colour in the apertures until about 10 days later after he had driven the car to a BBQ. He said the car had been rained on and so he took it to a ‘Magic Car Wash’ commercial outlet. He said he was approached by an attendant who showed him a wash cloth with flecks of paint.
He said he examined the car and saw paint drip marks under the bumper.
Sillins said that the car had been given two hand washes since the repairs to it were performed by the defendant.
Sillins said he did not return to the defendant with the car and raise matters of concern. His explanation was that he was travelling a good deal and was very busy. Instead he said that he telephoned the Porsche Centre who recommended he have the car independently assessed. He said it was in about mid-March/April 2015 that he “reached out to Wayne Hayes” but an inspection of the vehicle did not occur until about June/July 2015.
It was suggested that Hayes was wrong because his report noted that Caress Panels had painted the quarters, cant rails and front guards which Sillins knew was incorrect. Sillins disputed this and maintained that the defendant did paint these areas. Sillins said he was unable to provide Hayes with the quotes because he did not have access to them due to a change in jobs and the quotes having been retained on his previous work computer.

Trevor Wayne Davis

Trevor Davis (Davis) gave sworn evidence. He conducts a business trading as “Trevor Davis Auto Refinishers”. He is a spray painter by qualification. He inspected and assessed the plaintiff’s vehicle on 7 July 2015. He reported that “the vehicle had undergone previous repairs which were sub-standard in quality and required rectification”. He estimated the fair and reasonable cost of rectification to be in the sum of $42,863.73. It was subsequently assessed down by Wayne Hayes of “Autohaus Assessing” by a few hundred dollars. It is this assessed down sum that the plaintiff seeks to recover from the defendant.

Davis described the car as “quite immaculate” but he said on inspection he noticed that it bore several different shades of colour. He said he first saw the vehicle at Sillins work place. He said his manner of approach to the inspection was to commence by “asking Sillins what he was not particularly happy with” and he said that Sillins then walked him around the vehicle and directed him to “overspray marking and the inadequate clear”. Davis said that after he had finished going over the car he concluded that there were “so many little things wrongs with it that it was better to do the whole car again”.
Davis said he observed that the two front mud guards were different in colour to the bonnet, and that the doors were also a different colour. He said that the quarter panels were different from the doors. He recalled the presence of dry paint in the return on back window, the back bumper and recess “where the tail lights go”. When asked about the sill panels, he said the paint was peeling on the right hand panel. The edges as they presented “were more just dryness on the edges”.
Davis testified about what he regarded as the proper standard for masking up a vehicle. He said that if the vehicle is masked up and painted to the edge “then there can be a problem” in that there is a risk of leaving a discernible line or edge behind. He said there are products on the marked that can be used that help soften the edge. Davis said one would “normally take the edge to a further point that can be rubbed and mad less noticeable”.
In addressing rectification, Davis said that if the car had been painted just once (i.e. once in addition to its production paint coat) then it could be painted again but that if it proved to have been painted more than once then he would think it probably necessary “to strip it back and start again”. He said the greater the layers of paint that had been applied to the vehicle, the greater the risk of cracking.
Davis said that the optimum environment in which to view a painted surface is under direct natural sunlight.
Davis was cross-examined. He accepted that his evidence in chief in which he said that the vehicle presented with multiple colours was hyperbole however although the car was “all white… but the bonnet stood out to me as blended”. He said “I could not say the front mud guards were a different white to the back of the car but the adjacent panel was a different colour. The doors, the bonnet roof all appeared factory paint but the mud guards and rear quarter panel appeared different colour”. Davis said he “did not think” the cant rails had been painted. He said he looked at the rear spoiler but he had no specific recollection of it.
He accepted the spoiler could be separately removed and painted “pretty competently when being painting white” and he agreed he would probably do that separately as he would the bumper.
He said each adjacent panel appeared to be a different tone of white.
He said that the tonal differences could be consistent with being painted on different occasions.

Wayne Hayes

Hayes testified on behalf of the plaintiff. He is a motor vehicle assessor by occupation. He has 30 years’ experience. I was satisfied of his expertise on the matters about which he offered his opinion. He assessed the plaintiff’s vehicle. He produced two reports. He said he had been told that the car had undergone paint repairs. At the time of his inspection he was unaware of the quotations from the defendant for the work.
He said that he discussed the vehicle with Sillins. He assessed its value at about $270,000. When asked to describe the vehicle Hayes said “generally the condition of the vehicle was pristine”. However, he described the work which he believed had been performed by the defendant as “very bad” and went on to say that “the overall job was shocking”.
Hayes’ first report concentrated on a number of faults. He found that the front bumper suffered from paint that had flaked and peeled and delaminated from the sill panels. He said there was overspray on the scuttle panel (i.e. where wipers are positioned) and next to the guards. He thought the over spray was fresh as opposed to pre-existing. He saw fresh paint to the front bar, both guards, the sill panels, both quarter panels, the ends of the bar, the left hand and right hand sides of bumper bar, the upper part of the boot wing and both cant rails.
Hayes did not attribute the allegation that paint flecks had come off when being washed as having anything to do with the car not having been oven baked after painting. Also he discounted any likely adverse effect on the quality of the paint work if a vehicle collected only a few days after the painting was subsequently washed. Instead Hayes thought that if there was flaking after the car was washed it was suggestive of a lack of proper paint adhesion which he attributed to poor preparation by the defendant and he referred to a photograph (part of Ex P2) as evidence of the same. He referred as well to photographs that showed the outer sill as partially painted but the inner sill not painted. He pointed to evidence of “shine” which he described in this case as indicative that the existing factory paint had been painted over prior to the application of paint by the defendant which he said was not a practice that should be followed because it will lead inevitably to delamination.
Hayes said that following his inspection of the vehicle he was satisfied that the colour of front bumper bar did not match the colour of the front guards. He believed the probable scenario was that the spray painter had “blended up” up and when he realised, for whatever reason, that he was not able to match the bar in colour he went further. Of course Hayes could only speculate why the spray painter had not been able to match the colour although he said there is a multitude of variations in tints making obtaining a perfect match of colour very difficult.
Hayes said the paint colour appeared consistent across the front bumper and the colour of the doors more closely matched the bonnet, neither of which were suggested as having been painted by the defendant. He said that in his judgment the front guards do not match the bonnet.
Hayes said that the micron depth for a Porsche vehicle is close to 140-150 and across various areas of the car the paint depths show significantly higher readings. Hayes estimated that a coat of clear and lacquer would be in the order of 120 microns at the time the car came out of the factory.
Hayes identified the front guards at 175 microns, the doors at 158 and 144 (these not having been painted by the defendant). The sill panels were measured at 350 to 359 and the rear quarter at 312. Hayes said it would not be prudent to exceed 300 microns in paint depth. Thus Hayes said the paint depth on the car already exceeded 300 microns in a number of areas and that the correct method to avoid the deleterious effects of adding even more paint is to strip the vehicle back to bare metal.
Hayes was asked about the work undertaken by the defendant to the sill panels and how far one would should go with the paint. Hayes said a spray painter would go “into the quarter panel, over the cant rails and back to the mirrors”. He said his observation was the paint work on the cant rails suggested a blending out by the spray painter and that it “just stopped on the cant rail and normally the paint would extend all the way to the break of the cant rails”.
Hayes referred to photograph (Ex P5) which he described as identifying a back masking and also of the accumulation of dirt at the area of the bumper. In similar vein he pointed to the presence of overspray to the grommet (Ex P6) and that he attributed to mere carelessness in preparation.
Hayes said as well that a back masking edge and peel is visible at the top of the back of the window and the inside edge of the cant rail.
Hayes expressed the opinion that the matters identified cannot be individually rectified because it would result in a patchwork appearance and therefore it would be necessary to take sections not painted by the defendant back to bare metal in order to obtain an even and consistent micron level.
In cross-examination Hayes was directed to his two reports dated 23 July 2015 (He was asked about his understanding of the obligations of an expert under the expert witness code of conduct. He was directed to his second report and the email to the plaintiff’s solicitors that accompanied it and the conclusion that read, “Trent has read and understood the report and feels comfortable to proceed with this one”. Hayes said he believed Sillins had put some input into his report but could not recall what it was other than perhaps some grammatical corrections. In my view it was inappropriate for Hayes to have engaged with the plaintiff in this way in the finalisation of his report of opinion nonetheless I am not satisfied the opinions expressed have been compromised as a result of his conduct.
Hayes accepted that his expertise did not extend to spray painting.
He said he was unaware at the time he undertook his brief of the work that the defendant was contracted to perform by reference to the provision of any quotation.
He said he was unaware of the pre-existing condition of the car prior to it being delivered to the defendant and he made no inquiries of its provenance.
Hayes said he when he was requested to inspect the car the extent of information about the work performed on it was being told “the front bar had been painted and the sills and just generally although he believed there was an email of complaints”. He said he understood the quotes for the work agreed to be performed by the defendant were to be supplied to him however he said he had not been provided (Quote 2) for the work performed by Caress Panels.
Hayes was directed by Mr Greenway to his report and his conclusion that “all the damage was consistent with the one repairer”. It was suggested to him that he could not know what work had been performed by Caress Panels as the one repairer without reference to the quotation of works and he could not know if work had been performed by others than the defendant. He accepted this was the case.
Hayes agreed that in the ordinary course a scope of works dictated the extent of the paint work necessary to be undertaken. Hayes was directed by Mr Greenway to the quote from Caress Panels that identified the work to the front bumper, right and left sills, left bar end and right bar end and the spoiler as the primary point of reference in determining the areas and the extent of paint.
Hayes was questioned about his second report (Ex P9) and in particular the passage in it in which he undertook a “Q&A” type of analysis using opinion expressed in the expert report of the Mr Brian Munyard (Munyard) relied on by the defendant. He said that by the time he wrote his second report he had been supplied the quote for the works undertaken by the defendant.
One question that had been posed to Munyard by the defendant’s solicitors and his response was expressed as follows:

Q: Is it reasonable to expect Caress Panels Pty Ltd to pay the Plaintiff’s overstated assessed costs?
A: No, Caress Panels painted small confined areas, lower door sills and boot wing spoiler. Caress panels did not paint the large area of the rear quarter panels, boot etc., that exhibit slight colour variation.

Hayes addressed Munyard’s opinion in these terms:

Repairers use inaccurate quoting terminology to ensure certain workmanship is hidden. This is evident when a repairer quotes to paint sill panels, when in fact he is required to paint quarter panels in the process, to the untrained eye the focus is based on the sill panel and not further along the vehicle, denial is then used to lure the client into confusion, to whether he was the culprit or not.

Hayes was asked to identify the factual basis and relevance of the impression he intended to convey by the use of such language given the imputation it carried against the defendant. Hayes was unable to identify any relevance to the present case in his comments and, in my judgment, it was an unwarranted and unhelpful inclusion in an expert report.
Hayes contended that defendant painted the rear quarters, the cant rails & front guards even though the scope of works referrable to the quotation was to paint and blend. Hayes said he looked for where the blend stopped which he said he could identify it stopped on the top of the cant rail. Hayes said that he believed the spray painter “has painted the front bar etc. and seen the colours are not right and so said to himself ‘let’s paint into the guards to try and blend the colour variations’”. Hayes also said that in his opinion the defendant’s spray painter painted the outside of the bumper bar as well.
Hayes was asked about his adoption of micron levels to two photographs of the vehicle. He said that factory production would reveal a depth of about 120 microns whereas on the Porsche as tested the sill panels showed depths of between 350 and 359. Hence it was suggested to him that this necessarily led to the conclusion that the vehicle had been painted twice since original production coat.
Hayes said that each repaint is of the order of about 100 microns. The quarter panels returned a micron reading of 312 whereas the doors that had not been painted by but they recorded 158, a depth of about 38 microns greater than Hayes estimated was applicable for a new production Porsche. Therefore, it was suggested to Hayes that it was probable that at some other point in time there had been some touching up done to the doors. Hayes was directed to various other panels of the vehicle that recorded a variety of paint depths. For example, the cant rails record 250 microns and the front guards of 175. Mr Greenway put to Hayes that there are so many variable readings of paint depth that the only sensible explanation is that the car had previously been painted at some other stage in its life. Hayes did not agree.
Hayes was asked about Munyard’s opinion who in his report under the heading “VEHICLE INSPECTION” wrote:

Generally the vehicle presents very well and has immediate visual appeal. Closer critical inspection reveals some slight colour variation of the front doors (both sides) and the rear quarter panels and the rear area of the vehicle and the front bumper bar and the front fenders as shown in the illustration on page 4…
The paint finish material used by Porsche in this case, is of clear coat over white base coat. When a surface is recoated with base coat/clear coat material it is likely the colour shade can visually appear different than that next to it that has not been recoated. If it is assumed that the base coat is the correct shade, the visual affect of a different shade can be due to the depth or thickness of the clear coat. It is most unlikely to obtain a perfect visual match when painting (edge to edge) one panel adjacent to another that has not been painted.

Hayes agreed with the contents of that extract of assessment by Munyard.
Hayes agreed that front bumper bar is made of plastic. Munyard reported that the visual appearance of paint on plastic is different to paint applied to metal. Hayes agreed with this statement as well.
Hayes was also directed to that part of Munyard’s report that responded to matters raised by Hayes. As to the front bumper bar Munyard said it did not reveal any faults of flaws in the paint finish and the slight variation is explicable due to the different type of material. Hayes said that the paint finish of the bar was “consistent”.
Hayes said however that the paint finish was different to the bonnet. Hayes said the bar and bonnet was as different as chalk and cheese. He relied on his photographs attached to his report that revealed the same.
Munyard’s report surmised that the more extreme evidence of the coming away of the paint material from the right hand sill panel was due to “stone chips that have broken the surface, causing the paint material to come away, however, a study of the photo on page 10 reveals that delaminating of paint layers is due to being impacted by small stones and gravel during usage and road travel and lack of adhesion of the paint material under the Caress Panels outer paint film. It is the previous paint film lack of bonding with the original paint that is causing paint layers to delaminate”. Hayes said the paint was peeling off the primer. He also expressed the belief that “this is all Caress Panel’s paint work”.
In respect of the rear bumper bar, Munyard wrote that it did not exhibit any damage however the “underneath side of the bumper does have two small paint runs behind the R/H rear wheel. Caress Panels did paint this area and therefore, is responsible for rectification of this defect” and that the “area will require sanding and refinishing”.
Hayes said that in his opinion the defendant painted both rear quarter panels and his opinion was informed by the apparent signs of blending of paint and the consistency of back masking and as were the sill panels. According to Hayes the rear glass aperture contained evidence of paint and as well there was paint overspray on the wheels and the scuttle vent panel, all of which led him to his conclusion.

Re Examination

Hayes was asked to elaborate in regard to back masking. He said that there are various types of tape and that each type leaves a “fingerprint” or sign that can be identified. Hayes said he found the same type of back masking used on the left hand front door and left hand sill panel (what he called the “step in”). The fact of the matter is, however, that the existence of the same type of tape is not evidence on the balance of probabilities that the tape was applied by the same repairer on one single occasion. Hayes accepted that was the case.
Hayes said that to paint a sill panel the correct procedure is to commence from underneath and go into the aperture. He described the area of the sill panel by reference to an upper horizontal and vertical and underneath sections. He observed that the paint stops at the bottom and over spray was applied underneath the sill over flaking paint and grime. Hayes said that only the vertical had been painted.
Hayes said that clear over base should not be applied edge to edge but blended to adjacent panels. He said that there was no evidence of blending.
Hayes said the colour of the sill panel was consistent with the guard and quarter panels.
Hayes said that in his opinion exhibiting of the evident stone damage identified on inspection of the vehicle should not be expected if driven only once or twice since the repairs.

Defendant’s witnesses

Dennis Rogers

Rogers is the director of Caress Panels. He said that the manner of the conduct of his business is to attract customers by means of referral work. He said he has conducted his business for over 30 years and he employs a full time painter whom he said has been with the business some 12 years and an office worker and two part time employees.
Rogers said he knew Sillins well. He said he had had a number of previous dealings with him over the years and had undertaken work to several of his motor vehicles. He specifically recalled having spray painted the front of an Audi RS4 as well as “performing a variety of other work on different cars”. He described Sillins as “fussy”, “particular” and someone “who knows what he wants”.
Rogers said that Sillins came in one day with the Porsche and showed him both sills with stone chips along with a chip on left hand side of the rear wing. He thought this occurred in about September 2014. He was shown (Exhibit D2) comprising various email communications and quotations. He was asked about Quote No 1 attached to an email he sent to Sillins on 29 September 2104 (part of Exhibit D2). The quote was fashioned as an “Estimate” and was broken up into the following descriptions:

Labour – Repair and Align

Front lower lid spoiler
Left Hand Sill and Ends
Right hand Sill and Ends
Rear Spoiler Top Section
Labour - Refinish
Left Hand Sill and Blend
Right Hand Sill and Blend
Top Spoiler Section
Mix and Match and Oven Allowance

Rogers said the lip on the spoiler was to be painted as were both ends sills which were chipped and needed to be repaired and painted together with chips that were present on the rear spoiler. Rogers said, “That was the work we carried out”.
Rogers said he thought that it was in early February 2015 that he sent through to Sillins a scope of repair works which included additional areas and added the painting of the front bumper bar, “because it was cream and not the white colour of the car”. He said the spoiler had two chips on left hand side.
Rogers said that Sillins wanted to confine the area of repair and so “we discussed how far up the quarter panels it would be necessary to paint”. He said Sillins added the grill surround as also to be painted together with the grill mesh. As to the rear of the car, Rogers said he asked Sillins if he wanted the back bumper bar done because it was a different colour and Sillins said “not at this stage”.
A revised estimate that was sent by Rogers to Sillins by email dated 11 February 2015 and it was made up as follows:

Labour – Remove and Replace
Front bar and D/A Grilles etc
Left Hand Guard Liner
Right Hand Guard Liner
Front Wheels and Stands
Clean Front Air Ducts
Labour – Repair and Align
Front Lower Lip Spoiler
Left hand Sill and Ends
Right hand Sill and Ends
Rear Spoiler Top Section
Left Hand Rear Bar End
Right hand Rear Bar End
Labour – Refinish
Left Hand Sill and Blend
Right Hand Sill and Blend
Top Spoiler Section
Mix and Match Oven Allowance
Front Bar Cover
Front Bar Grilles
Left Hand Rear Bar End
Right Hand Rear Bar End

Rogers said he got started on the car by putting it in position to remove the wheels but “we could not get nuts off and I rang Trent and he organised Donellans to remove the nuts”.
Rogers said Sillins came back the following day by which time he had the guard liners off as well as the front bumper bar and the wheels. He said they chatted about the car. He said Sillins saw the overspray on front plastic air ducts and he asked if the overspray could be cleaned off. Rogers said he regarded the presence of the overspray as evidence that the bumper bar had been painted previously.
Rogers said he did most of the work himself other than the actual painting. He said he took the guard liners off to protect it from paint and in order to remove the overspray that he attributed to previous paint work. He said there was also evidence of masking that had left a thick overpaint of the floor pan liner and also left paint behind on the guard liner. He said he next took off the front bumper and found bolts missing that also led him to conclude that the car had previously had areas removed and that would be consistent with previous painting. He said that a wiring loom plug had been damaged and he regarded this as also consistent with a previous repair.
As to process undertaken, Rogers said the front bar “was machined right down to the stone chips with sandpaper”. It was then masked up and put into the oven and a primer put all over a base coat. The car itself was covered with plastic in the shop. He said the wheels that had been removed were placed to the side of the car.
Rogers said his spray painter Hung worked on the stone chips nearby and on the front edge around the sill and at the back edge around the sills. He said, “We sanded off material and paint and we repaired some of the chips and primed it and got it ready for colour and we did this on the four corners of the sills”.
Rogers said the bar ends had inner edge chips. He said he described this area as “bar ends” but in fact he said that the area is better described as the inner curls around the tyre edge. He said despite the misdescription he and Sillins “knew what they were discussing” at the time. He described the process undertaking as one in which “we sanded back, prepared it, spot puttied the deeper holes, applied a coat of primer and filler was put on it”.
Rogers said “there were 4 sections we painted and we had areas we could blend out and lose the colour and then put clear on”. He said “we blended maybe a foot up”. He said the blend “was taken from the sill into the quarter panel which was the natural thing to do as they were largely one panel”.
Rogers said he looked under the car and he found it was heavily stone chipped. He assumed this was caused from track work. He said it is the nature of the model Porsche owned by Sillins to be susceptible to this type of damage because the car is designed to be light weight and is not made with body deadening material with the result that it is prone to stone damage. Rogers said the guard liners were “all battered” with stone damage apparent and having been inflicted at some stage.
Rogers said the colour of the rear bumper was a different shade again from other sections of the car Rogers said that when Hung was attending to the little inner edge he pointed out to him some paint runs and asked Rogers if he was supposed to correct them and Rogers told him not to because, if he did that, it would necessary to continue with the rear bar and that was not within the scope of works as agreed with Sillins and anyway Sillins had said he would have the rear bumper attended to on a subsequent occasion. Rogers said the rear spoiler was removed, two chips repaired and Hung put colour around the area and “we repaired and then spayed the rear spoiler in the oven”.
Rogers was directed to Munyard’s report. He said that Munyard misunderstood the area that the defendant painted of the rear bumper because of his own misdescription of the inner ends. Rogers said all of the front bumper bar was painted.
It was put to Rogers by Mr Turner that the painting process involved a blending all the way up from the sills through quarter panels up to the cant rail. He denied this. He said had he undertaken work of such an extent it would have required significantly additional work than he quoted. Rogers said it would have been necessary to remove door and remove the rear window and quarter window and remove the tail and wing assembly. He estimated this additional work in an amount of about $4,000.
Rogers said the front guards were not painted by the defendant. He said that as he understood the way the work was performed, his spray painter matched the colour of the bumper bar to the left hand front guard of the car as it was the closest match.
Rogers was asked about his observations of the colour variations of the car when it was examined by him. He said the left side of the car looked different to the right side of car and under lights he saw a definite blend through the bonnet and the right hand guard. However, Rogers said he made no mention of this to Sillins until he came to collect the car after the work had been completed. Sillins of course denied that such a conversation occurred as referred to earlier.
As to what did occur when Sillins came to collect the car, Rogers said when Sillins arrived he was waxing and cleaning the Porsche. He said Sillins walked around the car and was “picking little things where paint was a little uneven and so we rubbed it and polished it a few places around the areas of the work we did”. He said he told Sillins that “we had problems matching paint on the front bar because of the bonnet and right had front guard had been blended a different colour and so I matched it to left hand front guard”. He said he told Sillins that he made an “executive decision” to do so. He said Sillins did not raise any problem about what he did. Bearing in mind the cost of the car to purchase and its appreciating worth and the that Rogers’s opinion of Sillins from prior jobs he performed was that he was very particular and fussy I find it highly improbable that Sillins would have received the news without demur.
As to the sills, Rogers said they were discussed on collection of the car by Sillins as there were a couple of little areas where paint had shrunk and it was necessary to rub them out. He said their conversation occupied about 10 or 15 minutes.
Rogers said Sillins paid cash for the work.
Rogers was directed to Munyard’s report and page 9 and the photographs of stone damage. He said the vehicle is fitted with “huge tyres” with no areas of protection. Rogers identified what he believed was previous white paint, together with factory paint along with apparent stone chip damage.
Rogers said he accepted Munyard’s opinion that there are problems with the quality of the work applied to the top spoiler. Rogers said that it was not picked up at the time and he conceded there was insufficient coverage of clear applied to the edge of the spoiler and he accepted liable for the cost of its rectification.
Rogers said the first time he became aware that Sillins had complaints about the work performed was on the receipt of a solicitor’s letter of demand in July 2015.

Rogers cross-examined

There was a significant degree of uncertainty exhibited by Rogers about the exact areas of the vehicle that were painted or blended by his business.
Rogers agreed with Mr Turner that if he concluded that a proposed scope of works would not result in a proper job he would discuss it with the owner.
It was put to Rogers that until he testified it had not been suggested in the defence to the plaintiff’s claim that the only part of the sill panels to be painted were the corners. Rogers said they were blended. He said the clear coat “might have been applied across the entire sill”. When asked what paint was applied to the sills, Rogers said “most was done on both ends of the sills and the quarter panel side”. He added that “maybe because it was small it was blended along the whole sill in clear” but he then added that he was “uncertain”.
Rogers said he saw the sill masked up, however, that does not necessarily mean the whole sill was painted. Rogers said the outside or vertical edge of sills was done but not the horizontal top or bottom edges. He said, “We did not paint up to the doors so we just did the vertical side of the sill”. When asked why the car was not painted that far up, Rogers said “we didn’t need to”.
Rogers said the edge that was noticeable was not left as a result of the defendant’s work. However, later on in his evidence he said he “would not say” if there was an edge when the work was completed because “I had no reason to look”. Mr Turner suggested that it was because only the vertical was painted that an edge was left behind. Mr Turner suggested that “it was not good practice to paint just up on the horizontal”. When Mr Turner asked Rogers about his evidence that the vertical edges were painted Rogers said that the outer edge i.e. “the bit that can be seen was painted”. Mr Turner suggested therefore that the paint “stopped at the bit you can’t see” and that the reason for this was nothing other than “a short cut”. Rogers disagreed.
Rogers was asked if he disputed that Sillins had been told that that if the car was not collected it would be left on the street. He said he disputed the interpretation Sillins placed on his conversation. However, he agreed that he was not privy to the conversation that apparently was conducted between Sillins and a member of the defendant’s staff. Rogers said that sometimes if a car cannot not be collected by its owner before the business closes of a day, arrangements are be made to leave a vehicle on the forecourt with the keys left at a designated spot. That may be so but it is understandable that this would not prove to be a satisfactory arrangement for an owner of a vehicle of such acknowledged value as the Porsche. However, poor service is not a particular of negligence or of poor workmanship.
Mr Turner suggested that such was the rushed state of the repair work performed by the defendant that it had not been completed when Sillins came to collect the car. Rogers denied this was the case and said that the car was undergoing a complimentary wax when Sillins arrived. Mr Turner put to Rogers that if the job was completed then it was the work performed was “completely unsatisfactory” because there was already evident areas of paint shrinkage as was pointed out to him by Sillins. Rogers said that when Sillins complained of areas that had shrunk a bit i.e. on the sill and the spoiler he told him that some shrinkage could be expected. He agreed he told Sillins the problems would polish out.
When again directed by Mr Turner to the processes undertaken to effect the repairs, Rogers said the front bar was removed and the wheels were stacked about 3 metres from the body of the car. Mr Turner suggested that paint settled on the wheels while the car was being painted outside the booth. Rogers then said the wheels were covered. It was not suggested to Sillins when cross-examined that he observed the wheels covered when he visited the defendant’s premises. As far as I am concerned the condition of the wheels is not relevant to the issues I must decide.
Rogers said that he did not see the problem with the edge until he saw the magnified photos taken by Munyard and referred to in his report. Rogers said that “edges are difficult” to perfect.
Mr Turner said that he had never had it put to the plaintiff’s assessor that the edge of the spoiler had been polished off as opposed to it presenting due to the application of insufficient clear. Rogers said he “could not be certain” but neither he nor Sillins saw anything wrong with it.
Mr Turner directly challenged Rogers that he ever mentioned the variation of the colour through the bonnet to Sillins.
Rogers said he blended into the bottom part of the quarter panels to the extent “of about a foot”. Rogers described the process adopted by which the paint was removed. He said the “existing paint and material is removed with a scotch brite”. Rogers said in the area “that you lose the colour there might be a build-up but at the bottom because some or sufficient paint had been taken off the bottom”. Mr Turner suggested it was an absurd suggestion that a whole layer of paint would have been removed by use of a scotch brite. I agree.
Mr Turner questioned Rogers about the extent of work done to prepare the sills panels for repair. Rogers said the paint chips were removed by sanding back “and the deeper ones we would probably[1] apply a filler and then put a primer filler over the top”. He said he did not in fact see the work being performed. Mr Turner asked Rogers how he could explain the presence of dirt that is evident underneath the paint on the sill panels. Mr Turner suggested the answer lay in the fact that the paint was applied over the dirt without the dirt being cleaned off. Rogers said, “I don’t know”. Mr Turner suggested to Rogers that if the sill panel had stone chips that were not filled but painted over there would be problems that would present by way of delamination. Mr Turner reminded Rogers of the plaintiff’s evidence that the car was driven once after having been collected from the defendant and the subsequent car wash disclosed paint simply wiping off on a rag. That evidence was uncontradicted. Rogers agreed that if this was the case it would be unsatisfactory.

[1] My emphasis

Mr Turner asked Rogers whether his expertise extended sufficiently to be able to determine on a visual inspection if a car presented with a number of layers of paint applied to it. Rogers said he would not be able to tell unless he stripped it back to bare metal.
Rogers said he did not strip back the quarter panels of the Porsche and that “the quarter panels were not touched”. He said he “only abraded the area with a scotch brite”. Rogers said as a result “some microns would be removed”. Mr Turner suggested to Rogers that all such a process would do would be to roughen up the surface but not remove microns. Rogers was diffident in his response but he maintained that some amount of microns would be reduced in consequence.
Rogers did not take the clear coat top layer off but said that “we scotch braided the top layer of clear”. He said that “where we blend we rub and polish by machine”. As a result it was suggested that when the edge is reached there is but the slimmest layer of paint and if the clear is not applied then there will be a prospect of the paint lifting off.
Turner suggested to Rogers that a panel must be finished edge to edge with the clear coat. Rogers disagreed.
Mr Turner suggested that the position was simply that when it was discovered that the colour did not match the work was broadened to paint whole of the rear quarters and all the way around the back to the guards. Rogers denied this had occurred.
Mr Turner put to Rogers that his evidence that he abraded an area of the quarter panels and painted part of them and then finished with a top coat about a foot into the quarter panels, should not have been done. Rogers said he disagreed with that assertion based on what he had understood “from technicians he had consulted”. Mr Turner said the performance of a proper job would not leave areas blended off across the sill panels. Again Rogers disagreed.
Mr Turner asked Rogers if he had in fact observed the paint work being undertaken. Rogers said he helped the painter mask up the car and that he was present when the painter did most of the painting outside the booth but not when he was painting parts inside the booth.
Mr Turner returned to questioning Rogers about his conversation with Sillins. It was suggested that because of the passage of time from when Sillins had first approached him to undertake repair work and the subsequent delivery up of the car, he needed to be reminded of the work that Sillins required done. He agreed and that there was a subsequent conversation with Sillins as well as emails from Sillins that served as a reminder of their initial discussion.
Rogers disagreed with Mr Turner’s proposition that he was the party to the agreement who possessed the relevant expertise. I do not accept that proposition. Self-evidently Rogers was the party with the expertise and upon whom Sillins was entitled to rely for the quality of the work that Sillins required to be done and Rogers agreed to perform. Rogers conducts a specialised business that undertakes repairs and restoration whereas of course Sillins does not possess such experience or expertise but perhaps on what I heard is best described as an enthusiast.
Rogers acknowledged that it fell to him to determine how far up the quarter panels it would prove necessary to paint in order to repair the sills. Rogers endeavoured to explain his tentativeness in discussions with Sillins about precisely how far up he would need to paint because he said he was aware it had previously been painted and therefore he was unsure the extent of adhesion. I simply cannot accept his evidence about this. If it were the case then I find it improbable that he did not mention it to Sillins. After all the matter of the adhesion of new paint to previous paint is a central problem that presented itself.
As to the current condition of the vehicle and the extent to which more paint could be applied to it without rendering it more susceptible to further distortion in visual appearance and potential further delamination, Rogers said that more paint could be added to the quarter panels although they were already sitting at over 360 microns based on the analysis performed and depths identified by Munyard. Rogers said the sills could be repaired without stripping back.
Rogers suggested the existing presentation of damage was caused by stone chips even though only evidence was of one drive by Sillins. It is difficult to accept that explanation if I accept the account of use of the vehicle given by Sillins whose evidence I accept and therefore the appearance of the car is inexplicable other than by reason of cause residing in the defendant’s corner.

Rogers persevered with his evidence that he told Sillins the car had been previously painted but that Sillins said nothing in response. Sillins denied any such conversation.
Mr Turner asked Rogers how deep he would be prepared to go into the quarters in terms of removal of microns and Rogers said he “didn’t know”. However, he had earlier agreed that he could add more paint to the quarter panels without adverse effect to the appearance of the vehicle. Rogers said that if the condition of the paint underneath was in good condition and because in any event some microns are removed as part and parcel of the abrading process then the effect of adding further paint would be negligible. I do not accept that opinion.
Rogers said a large area of the quarter panel is abraded up from the repair area and then is “masked to a stop point and you put primer at bottom of sill and colour in area of repair and the clear just past the colour and then you blend with a special blending solution, like a thinner and you blend out until you lose the colour”.
Mr Turner put to Rogers that the work carried out by the defendant has caused overspray on scuttle panel, the tails light and the wheels and that the masking edges that are visible was left by his painter. Rogers disagreed. Mr Turner put to Rogers that if there is evidence of a masking edge along the top horizontal edge where it meets the vertical, then the edge was either there before the work was performed or left by his processes. I accept these are the only logical possibilities.
Mr Turner put to Rogers that the inner edge of the door jam area or apertures where the door closes are difficult and need to be done by hand because it has a curvature. Rogers agreed. He said he only did the flat rounded side of the sills.
Rogers said that that his previous dealings with Sillins in undertaking repair work the scope of works was on all fours with the way they proceeded in this instance.
Rogers said he did not tell Munyard what was not painted such as door apertures and door jams. Mr Turner suggested he went into the apertures but masked off badly as was apparent as well at the rear glass aperture. Rogers disputed this.
Rogers agreed that once paint work is taken into the quarters there is no cut off point or break in the panels and the only cut off line would be if one was to paint to the sill, paint the quarters and go up to the cant rails which Rogers maintained was not done.
Mr Turner suggested that proper practice would dictate that the top coat must be taken edge to edge in order to meet the requirements for the provision of a warranty from a paint manufacturer. Rogers disagreed. I make no finding on matters of warranty as no evidence was adduced to support that contention.
Rogers said he was unconcerned by the apparent multiple layers of paint and their potential adverse impact on matching up the paint to be used in the work to be performed or its adhesion and that it was only when he mixed the colour “and we put it against the front guard” that the problem was evident but he did not think it warranted telling Sillins until after this decision was taken and the car was collected.
Rogers said the doors appeared different from the quarter panels and the doors also appeared “a bit different”. Rogers said the differences in the rear bar and the front bar ought to have been apparent to Sillins without the necessity of him to point them out. I am unable to accept this evidence as either as a matter of fact or if otherwise that such omission was reasonable.

Huong Duong

The defendant adduced evidence from the painter employed by the defendant. He said he is a spray painter of over 22 years’ experience and is qualified in his trade. His speciality is painting prestige vehicles and he said he has been employed by the defendant for 17 years.
He described Sillins as “fussy”. Oddly, this was the adjective Rogers adopted in his evidence to describe the plaintiff. Duong said he knew Sillins because he had worked on other of his vehicles.
Duong described the work he performed on the Porsche as redressing damage caused by stone chips “on the front bar, rear spoiler and corner of side skirts and bottom left hand quarter”.
Duong described the various steps that were taken. He said Rogers removed the front bar. He said he observed overspray inside the bar that is, to say, overspray that was in place when the car was delivered up to the defendant. He said the right hand sill had stone chips in the corner and the left hand sill presented in similar condition. Duong said the process of repair included filling the stone chips, then rubbing that area down and applying primer and then sanding the affected area followed by the application of paint.
Duong said he “blended into the corners of the sill”. He explained what he meant by blending by identifying that he painted the immediate areas and then “faded out and blend into original colour”. He said he blended into the low left hand quarter panel and then blended up into that panel to about a distance of 30 centimetres.
Duong said the stone chip area of damage was small and confined to the corners.
Duong said the rear spoiler was removed and painted. He said he used a spray gun. The type of paint used was a two pack with a clear for the base.
Duong said he was present when Sillins arrived to collect car. He said Sillins observed saw areas he wanted polished and this was done.
Duong said the front bumper bar was a slightly different colour to the panels. He said that “when I painted the front bumper I saw the left hand and right hand front guards was slightly different”. He said that as a result of that observation he matched the colour of the paint used to the colour that was apparent on the front right guard.

Duong Cross-Examined

Doung said the car was not put in the oven to dry after the painting because the wheels were off and it was too difficult to fit. He said however that the oven only enhances the curing process.
He accepted that when the vehicle was collected by Sillins there remained areas that needed to be polished out that had been overlooked when the repairs were undertaken.
Duong could not explain why the paint would have come off on a wash cloth when the vehicle was washed as referred to by Sillins but suggested that if the surface area was already broken from road use and a pressure washer applied to it then this could cause paint to come off. Sillins said the car was hand washed at a commercial car wash and whether or not a pressure hose was used was not explored in evidence but in any event the number of occasions Sillins said the car had been driven from the time f repair to the time the washing incident occurred was negligible.
Mr Turner suggested to Duong that good practice by a painter would not be to paint to an edge and stop. Duong said he did not paint across the whole middle of the sill panel and Mr Turner suggested that he blended into the the corners and he painted only the vertical side and underneath and not inside aperture of door frame. Duong said he painted the ends of the sill panels and he commenced about 15 centimetres from each end. He said he did not go into the horizontal area inside the door frame. Hence Mr Turner suggested to him that he “must have left an edge at the end of the sill panel”. Duong denied this was the case.
Mr Turner suggested to Duong that a competent spray painter would “paint the area with clear only if painting a whole panel” and furthermore “would you not take the colour into the adjacent panel and clear over the rest of the panel?” Duong said, “No”. Mr Turner suggested to Duong that, he “took a short cut”. Duong did not agree. Mr Turner put to Duong that there was back masking on rear bar and at the rear window. He put to him that he painted the whole of the rear quarter panels up to the cant rails but Duong denied it. He said he did not apply clear to the whole area as it was not required “because it was a small area”. Duong said he would be unable to identify where he had finished the clear by looking at the car. Mr Turner put to him that he had for “whatever reason” encountered problems with the paint and “you just kept painting”. Doung replied, “No”.
As to the section on the spoiler where the paint was applied too thinly on the edge, Duong could not recall how that occurred but he agreed that it was not satisfactory.
Mr Turner suggested to Duong that there was overspray on wheels of the vehicle but Duong said he had not heard of that complaint. He said the wheels were placed some distance away from the car. The wheels do not form part of the complaint.
Duong said when asked that he could not recall if the presence of roughness and overspray marks around the vents was pointed out to him by anyone.

Brian Munyard

The defendant adduced evidence from Brian Munyard who is a loss assessor by occupation with many years of experience. He prepared an expert assessment of the vehicle.
He said that the email “Quotation No 3” was provided to him by the defendant. He said he understood the work the subject of the quotation comprised:

·     remove and replace;
·     repair and align; and
·     labour

He identified the diagram of the vehicle and the differently coloured areas that reflected his understanding of the paint work that had been applied to the Porsche. He said he understood the areas in green were painted otherwise than by the defendant and the yellow represented paint work undertaken by the defendant.
He described the visual presentation of the car as “a very attractive vehicle but on very close and critical examination a variation in colour is evident for the entirety of the wrapped rear of the vehicle”. He said that the more clear that is applied the more depth there is that results in more readily apparent variations in shade. He testified that between door and rear of car the paint colour is slightly different and “probably near what one would expect if one was painting edge to edge”.
Munyard was asked by Mr Greenway whether if he was the owner of the vehicle he would regard the paint work as acceptable. He said if the requirement had been to paint edge to edge then it would be “reasonably acceptable”. Munyard said if that if the painter went edge to edge but then went further, the problem that then presents itself is, “where to stop”. He said that in his opinion, the correct procedure would be to “blend by sandwiching the panel back and then tapering out the colour and put a clear over it so there is no hard edge to it”.
Munyard testified that the micron depth of paint applied to a new Porsche is substantially identical and consistent across the various models of that make. He said the “average about the car is 140 to 142 microns”. He identified the rear panels of a Porsche as varying between 135 to 136 microns. When he took measurement depths of the plaintiff’s car they revealed microns of between 310 to 317 and 353. He said this meant that the rear quarter panels had been applied with the original production coat and “one more at least”. He testified that “nearly all panels have been repainted with exception of right hand door of 144 and left hand door has been painted once above the original”. He said, the “sill panels are 350 to 360 meaning they have been painted multiple times”. He said also that “the front guards were painted more than once over the original”. In summary, he said that in his opinion the only area consistent with original micron readings is the “right hand door and roof”.
He said the front bumper bar standard of work was “quite satisfactory”. In regard to the front bumper bar, he said the lower lip is plastic and it appeared bruised and scarped and this was to be expected, and was unavoidable and not something in any event he thought the plaintiff had suggested the defendant was responsible for.
In relation to the underside of the left hand sill panel, Munyard said that it exhibited normal road grime.
Munyard referred to the photographs of the underside of the car and that included some microscopic enlargements of areas of complaint. Munyard said that there “are at least 3 layers of paint above the original” and the area accords with the heavy micron build up identified across the vehicle. Munyard expressed the opinion that reason the paint is presenting as is depicted in the photograph is due to the thickness of layering of paint in the area depicted. He said one could not possibly know the condition or quality of the process used at the time by way of preparation and application of the previous layers had been applied.
When asked about the top spoiler Munyard said there is a breakdown of the clear coat film coming away from the surface and that it requires repainting. He explained that when painted it would be expected to receive the lightest coating and when polished the most likely explanation is that the clear coat has been rubbed through. He said the spoiler is plastic and it would need to be removed and repainted.
Munyard said that the underside of the rear bumper reveals two small paint runs. He said he allowed for its rectification although the defendant advised him this was not an area of painting work undertaken by it.
He said that in his opinion the rear of the vehicle would need to be stripped back to bare metal or at least several layers of paint removed or sanded off to allow new paint because of the heavy existing build-up of paint but to strip the entire vehicle back to metal is not a matter of necessity.
Munyard said the action of masking along the door jams was to avoid the time and cost of removing the doors but accepted that it was not acceptable although he could not say who had undertaken that step. Munyard said this would require the door to be taken off together with the hardware and to mask off the inner and then paint door jamb up to the pinch well. Such a process he said would warrant an increase in his estimate of the cost of rectification.
Munyard said the defendant would not have been able to know how many layers of paint the Porsche presented with by a mere visual inspection of the car or the stone chips.
Munyard said the process that one would expect to be used in a job of the type he understood the defendant was to undertake would be to sand the chips and feather them out and possibly apply a 2 pack primer to fill the layers and then lay the paint over the top. However, he said that if the vehicle presented with a visual appearance of multiple layers of paint and lack of adhesion then the repairer would need to turn their mind to the question of how much further one would need to go and in that respect he said the proper thing to do would be to contact the owner and advise of the problem.

Cross-Examination of Munyard

Munyard said his knowledge of the work performed on the Porsche was based on what he was told by the defendant.
Munyard said that in those areas of the vehicle where the paint depth had been recorded at of 350 microns one would not add more paint.
Munyard said it is a simple technical exercise to use a micrometer to gauge depth. Munyard said however that repairers “usually don’t check paint depth although some of the higher end repairers do”. He accepted that it was a wise thing to do. In my judgment it is reasonable to have expected the defendant to have undertaken such an exercise because based on Rogers’s evidence and Duong’s evidence and before the work commenced there were visual indications in appearance that put them on notice.
Munyard said that his understanding was that the whole of the sill was painted and not just the ends which is at odds with the evidence adduced by the defendant, although, the evidence Rogers gave about the matter ultimately was uncertain. Munyard said that he could not say whether the defendant painted the end of the sill or the whole of the sill “but that all they have painted was the vertical edge because it has been masked off and the aperture not painted”. Munyard said such a method is used but “it is not the way I would choose to have my Porsche painted”. However, he qualified his evidence, by saying that if the area had previously been masked, about which he could not reach a conclusion in any event, “then that would be the line to follow”.
Mr Turner suggested that the quarter panels had been painted by the defendant at the same time as the sill panels. Mr Turner also suggested one can normally see where a blend finishes in a panel. Munyard agreed that the blend is observable in the cant rail.
Mr Turner suggested that if there is a blend of small area into quarter panel with colour and a clear coat blended off into quarter panel but without going edge to edge with clear then it was possible this would lend to delamination. Munyard could not exclude that possibility.
Munyard said that in regard to the rear area of the vehicle where it presented with over 300 microns whether it should be sanded back or taken back to bare metal was “a matter of choice”. Mr Turner suggested that if the car was sanded back an edge would still be evident “unless the whole car was repainted”. Munyard said he did not “fully agree”.
Munyard said he would strip the rear to bare metal but he did not believe that on balance it was necessary to do so to the whole vehicle. He said that from the doors forward there is not a lot of material and sanding would remove 50 microns. Munyard said however he would not know what adhesion lay beneath so much paint.
Munyard was asked if he was surprised that the paint had begun to delaminate in the area underneath the sills after the vehicle had been driven no more than approximately 300 kilometres. Munyard said that it would depend on the type of road it had travelled.
Mr Turner suggested that the underside of the sill panels evidenced a lack of preparation prior to painting. Munyard said that since the repairs had been undertaken the car had been on the road and “it has lots of grime”. Mr Turner suggested to Munyard that because the top coat had come away then “surely suggested something was not right”. Munyard agreed that was an available inference. Munyard was asked if it was wise not to have applied further paint to the area. He said with the benefit of hindsight that might be so.
The evidence was that front bumper was removed and painted. Munyard said that if the whole rear bar was to be painted one would remove it but not if just the ends were painted. Munyard agreed the paint runs were unsightly.
Munyard said given the quarter panels appear to have been painted edge to edge the result was a reasonable result.
Munyard said a second coat would add about 130 microns.
Munyard said he did not get the amount of paint applied from Porsche. He said he measured the paint depth on 3 new models in showrooms which were almost all the same but he could not say if the plaintiff model vehicle had different micron levels.
Munyard also could not say if the area around the glass aperture or inner jams were prepared by the defendant. He said he was aware of the allegation of overspray on wheels but he was unable to say where it came from if it did and in any event the wheels on the car are different as are the tyres.
Mr Turner asked if he looked closely at the estimate of repairs from Trevor Davis. He said he accepted that the scope of the tasks that would be required was fair but he did not accept the costs were reasonable although he did not provide an alternative estimate of the tasks contained in the Davis estimate and no other estimate was adduced in evidence by the defendant.
Munyard estimated that painting of the quarter panels would take approximately “a week of work”.

Submissions

At the conclusion of the evidence I invited submissions from the parties particularly in light of the plaintiff’s allegations contained in the Statement of Claim and said to invoke the Australian Consumer Law Act (the ACLA). Mr Turner on behalf of the plaintiff made no legal submissions other than to agree with Mr Greenway in response to his submission that the case required me to determine the scope of the agreement or retainer. I was not addressed by either counsel on the ACLA and the claim by the plaintiff on this ground was not developed. I have not found it necessary to determine the outcome of the case other than on the common law.

Mr Greenway’s submissions included that the vehicle was purchased by the plaintiff as a 4 year old second hand vehicle and that there was clear evidence the car has been painted previously.
Were the rear quarter panels painted? I was urged by Mr Greenway to conclude that they were not.
Mr Greenway submitted that the primary question is to identify the cause of cation and the scope of the agreement. He submitted that the agreement involved a small job to undertake repairs to limited and identified sections of the car and that the defendant was not contracted or engaged to be at large and address all manner of things that the vehicle presented with.
As to the quality of the work undertaken by the defendant, Mr Greenway submitted that in regard to the presentation of the sills the preferable view to take of the evidence is that the cause was an insufficiency of preparation in previous paint work applied to the car. The defendant also submitted that the masking was present already and the scope of works was not to paint the apertures which amounted to a further reason to find on the balance of probabilities that the apertures were not painted by the defendant and all it did was to follow the masking line left by others at some earlier point in time.
I inquired of Mr Greenway why there was no obligation by way of a duty on the part of the defendant of care in carrying out the repairs to advise the plaintiff of the observations of variations in paint colour that Rogers said he had made before he commenced work on the vehicle. Mr Greenway responded that no obligation arose because of the extent of the limited retainer. I am not satisfied that is a satisfactory or sufficient answer particularly when the plaintiff’s evidence was that he relied on the defendant’s skill and expertise in undertaking the agreed works, which in my judgement he was entitled to do. In my judgment, a repairer who willingly takes on for reward the repair of a vehicle of such value as the plaintiff’s car, and who, when fixed with knowledge of a matter that will lead to an inability to restore specific areas in the manner required, such as matching colour, cannot excuse itself from potential liability by taking recourse in quotes and emails about work to be performed when it is also observed that the quotes in this case had the character of a precis of the work required. In other words, to give effect to the specific work, there were other attendant requirements on the part of the defendant that needed to be considered and performed in fulfilling the scope of works and the skill and knowledge to give effect to these things fell exclusively within the ken of the defendant.
The duty of care owed by the defendant to the plaintiff was to effect the agreed works in a way that disclosed a reasonable application of the skills that the defendant held itself out as capable of performing for reward. There are other relevant facts that help identify the extent of the duty that fell on the defendant. Rogers had undertaken other work for Sillins in the past. Rogers knew Sillins nature and described him as fussy and a customer who knew what he wanted. Rogers’s business is not one that invites customers off the street but takes work by way of referrals. Rogers also said that he was aware the car was not an “average car”. It is reasonable to expect that the standard of care expected in the performance of the work will be commensurate with a high standard and should be assessed in that light.

Identifying the agreement

The understanding the parties had of the scope of the work to be performed varied according to the plaintiff and defendant. The plaintiff naturally enough carries the onus of proving on the balance of probabilities the extent of the agreement and its essential terms and the breach of the same and the extent of his loss and damage sustained as a result of any negligence occasioned by a breach. The defendant bears no onus. So much is trite.
It struck me however that some of the argument relied on by the defendant was misconceived because regardless of the scope of the agreement if the defendant undertook work that extended beyond what was agreed and the work was performed negligently or, alternatively, in the course of the performance of the agreed works, the defendant became aware of facts that would inhibit it in discharging the agreed works in a skilled manner but failed to notify the plaintiff with the result that rectification is required, then in my judgement there will also arise a primary finding of liability in the defendant.
Is the agreement capable of meaningful understanding by reference to the quotations alone? In one sense it can. They identified certain work required to be performed by the plaintiff and the quote was the defendant’s expression of the steps needed to give effect to such repairs. However there are other facts at play.
In Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37, French CJ, Nettle and Gordon JJ summarised the applicable principles of contractual interpretation in these terms:

“The rights and liabilities of parties under a provision of a contract are determined objectively by reference to its text, context open racket the entire text of the contract as well is any contract, document or statutory provision referred to in the text of the contract) and purpose.
In determining the meaning of the terms of a commercial contract, it is necessary to ask what a reasonable business person would have understood those terms to mean. The enquiry will require consideration of the language used by the parties to the contract, the circumstances addressed by the contract and the commercial purpose or objects to be secured by the contract.
Ordinarily, this process of construction is possible by reference to the contract alone. Indeed, if an expression in a contract is unambiguous or susceptible of only one meaning, evidence of surrounding circumstances (events, circumstances and things external to the contract) cannot be adduced to contradict play meaning.
However, sometimes recourse to events, circumstances and things external to the contract is necessary. It may be necessary in identifying the commercial purpose or objects of contract where that task is facilitated by an understanding “of the Genesis of the transaction, the background, the context [and] the market in which the parties are operating”. It may be necessary in determining the proper construction where there is a constructional choice. The question whether events, circumstances and things external to the contract may be resorted to, in order to identify the existence of a constructional choice, does not arise in these appeals.
Each of the events, circumstances and things external to the contract which recourse may be had is objective. What may be referred to our events, circumstances and things external contract which are known to the parties or which assist in identifying the purpose or object of the transaction, which may include its history, background and context in the market in which the parties were operating. What is inadmissible is evidence of the parties’ statements and actions reflecting the actual intentions and expectations.”

In the determining the scope of the agreement therefore it is necessary to have regard to the objective purpose and object of the transaction. In this respect the predominant purpose of the transaction was for identified repairs desired by the plaintiff to be effected. That in giving effect to the repairs Sillins was mindful of the extent of paint to be applied and how far that would need to extend and in both respects he placed his reliance in the expertise of the defendant which he was entitled to do based on the fact that the defendant procured its business by word of mouth and their previous business dealings. The plaintiff was entitled to have the contract for repairs carried out with an appropriate level of care and skill.

Preliminary issues of proof in determining the defendant’s exercise of care and skill

The following facts are important in determining the standard of work performed by the defendant. The provenance of the Porsche prior to its purchase by the plaintiff is not known. The period of time that elapsed before the plaintiff took any remedial action against the defendant in response to the work it performed was not insubstantial despite the plaintiff in his evidence stating that he became aware of deficiencies in the paint work and colour variations some weeks after he collected the car from the defendant’s premises. The plaintiff’s first recourse was not to revert to the defendant to complain about the quality of work but rather to cause a solicitor’s letter of demand to be sent. However, he explained this because he said he was disheartened by someone from the defendant’s business having phoned him and threatening to leave his very valuable car on the street if he was unable to retrieve it within the very short period of time he was afforded to collect it. I accept Sillins explanation and rationale for resorting to law.
Has the plaintiff proved on the balance of probabilities that the vehicle only presented with variations in colour after it had been painted by the defendant? On this issue, I am not satisfied that he has. On the balance of probabilities there would appear to have been paint applied particularly to the rear before the defendant undertook the works but I am also satisfied this occurred before the vehicle was purchased by Sillins. The variation in shade is however a different matter to the paint depth. Both the plaintiff and defendant’s experts agreed that the vehicle exhibited variations in colour. They of course saw the car after it had been painted by the defendant. Davis described the car as “quite immaculate” but he said he noticed it bore several different shades of colour as did Hayes and also Munyard.
Sillins said he was not aware of any colour variation to panels at any stage before he examined the car in daylight after he had it washed and he was alerted to flakes of paint. It might be thought surprising that Sillins was not conscious of variations until after he departed the defendant’s premises with the car and at that later stage. The period of time that elapsed after he collected the car was explained by Sillins as due to him travelling a good deal in his job and the car not being his daily drive and also because the car was kept off the street under cover and not under natural light. I accept his account as it related to this period but there is of course the broader question of pre-existing variations in colour about which Sillins said he was not conscious at any relevant prior time. In terms of being able to differentiate differences in colour on the body work of the car the evidence from each expert was that the car presented as in very good condition if not immaculate. Munyard said that the variations were evident on “critical examination”. I am satisfied that the previous variations were sufficiently subtle as to not have altered the plaintiff at an earlier stage.
Sillins denied that he was told by Rogers of any existing variations in the colour of panels when he collected the car. On balance, I accept his evidence. I am satisfied he was not told. I am satisfied that it would be a remarkable, or at the very least, an unlikely event if Rogers whose evidence was that he was aware of the matter and was aware of the “fussy” and demanding nature of his client and high value of the car would not have alerted the plaintiff the very moment he arrived at his conclusion about the colours and certainly not have decided take a unilateral and executive decision to paint up the sections in a colour closest to the largest corresponding mass area of the car. I also reject as implausible that if Sillins had been told of this fact and of the executive decision to paint the car to the closest shade of colour that he would not have challenged the defendant’s actions, but according to Rogers, Sillins received the news and accepted the decision that had been taken with equanimity. I prefer the plaintiff’s evidence.
I am also satisfied as a matter of fact that there are significant variations in paint depths and that these have been identified by micron readings and these differences present across various panels of the car. The logical consequence of the readings is that the vehicle has been subjected to the application of paint beyond the manufacturing process but at time prior to the application of paint by the defendant. However, the micron depths across the car are not uniform and in the area of the doors the readings are not significantly greater than the range one would expect. I was not told that the figures produced are infallible.
What then are the consequences that flow from this in terms of the establishment of the plaintiff’s claim?
One of the terms of the agreement pleaded by the plaintiff is that:

It was an implied term of the agreement that the repairs would be completed in a proper and workmanlike manner and would be of merchantable quality

The plaintiff also pleaded in the alternative (paragraph 7) that:

Further, in undertaking the repairs the defendant owed a duty of care to the Plaintiff as the owner of the vehicle to undertake those repairs with due care and skill, and to undertake such repairs so as to achieve the restoration of the vehicle to its original condition.

The composite allegation pleaded at paragraph 7 cannot succeed on its face on no construction of the evidence was it a term of the agreement that the defendant restore the Porsche to its original condition (whatever that is intended to mean). There is no evidence of the original condition of the car. The scope of the agreement was far more limited.
In addition paragraph 8 of the statement of Claim is pleaded that:

Further, in undertaking the repairs the Defendant guaranteed to the Plaintiff that it would undertake those repairs with due care and skill and to undertake such repairs so as to achieve the restoration of the vehicle to its original condition.

The plaintiff alleged that the defendant did not meet the content of the guarantees in relation to its work by reason of not undertaking the work with due care and skill and by not achieving the restoration of the vehicle to its original condition. The pleading then went on, somewhat awkwardly, to allege in the context that the guarantees were breached, that the repairs “were performed negligently” and “particulars of negligence” were pleaded.
A central particular of negligence pleaded by the plaintiff was that the defendant in the performance of its work failed “to adhere to a standard of workmanship reasonably expected within the motor vehicle repair industry”. Even though Mr Turner suggested to Rogers, to his spray painter and to Munyard that certain procedures amounted to “the way things are done” neither of the plaintiff’s expert witnesses gave any detailed evidence to identify the existence of common or accepted standard about the manner that the work done by the defendant should reasonably be performed. However, Mr Munyard said that in regard to a standard one would reasonably expect in the painting and application of clear and the painting into adjacent panels and the repair of the stone chips, that if it was found that the painting done by the defendant extended into adjacent panels as opposed to being limited to painting edge to edge then then he would not regard the work carried out as satisfactory whereas if the agreement was to paint only edge to edge then “arguably it would be” a satisfactory.
The agreement whether by reference to the written quotes or the conversations did not particularise how far the defendant would paint. The written quotes are silent on the point and the conversation the parties had clearly identified that the plaintiff was alert to keeping work as low as possible and Rogers concurred by indicating that he would endeavour to do so. Rogers said in evidence that one reason he said this was because he was aware that the car suffered from different shades of colour but this is inconsistent with evidence he otherwise gave that it was not until the car was ready and the paint was being mixed that he became aware of the variation. Nor is the evidence consistent with Rogers believing the sensible option was to make an “executive decision”, because if he was aware of the problem when he discussed the work with Sillins, as he said he was, it is reasonable to expect that he would have raised the matter with Sillins there and then but he did not. He said in evidence he felt no need to do so because Sillins would have realised the state of affairs relating to the variation in colour. I reject this explanation.
I am satisfied that paint work applied to the car has led to paint work peeling off – the evidence of delamination and the grit disclosed between the surface that is evident in pictures taken of the car is inconsistent with the vehicle presenting with the same because of use of the vehicle on particular surfaces after the car was repaired by the defendant. The uncontested evidence from the plaintiff, which I accept, is that the vehicle was barely driven after repairs and the presentation is inexplicable by reference to such a limited account of use. Rogers conceded that if the evidence of use was found to be that as advanced by Sillins, then the result would be unsatisfactory.
I am satisfied of the evidence of overspray on the scuttle panel and tail lights. I make no comment about overspray on wheels as apart from anything else they were not pursued by the plaintiff.
I am also satisfied that the defendant painted over surfaces that were not properly prepared leaving evident signs of “shine”. The presence of the same was not satisfactorily explained away by the defendant and the probable explanation is that of poor surface preparation prior to application.
As mentioned already Munyard said that the defendant’s work admits of an acknowledged insufficiency in the application of proper workmanship at least the area of the rear top wing spoiler due to an insufficient application of clear.
The car also presented with paint drip marks under the driver’s side bumper that exhibits a lack of attention to proper care in ensuring the integrity of the car and the work done to it.
The issue of overspray and the extent to which I can reasonably conclude that in all probability the evidence satisfies me that the overspray was left behind by earlier work or in the application of preparation by the defendant is more problematic.

Standard of proof and “actual persuasion”

In considering the extent to which a court when faced with two or more competing accounts by way of explanation of an occurrence should approach the matter is assisted by recourse to judicial guidance. The standard of proof on the balance of probabilities requires that I am satisfied in the sense that I can reach a state of “actual persuasion of the occurrence or existence of the fact in issue before it can be found” (NOM v DPP [2012] VSCA 198 at [124]. A ‘[m]ere mechanical comparison of probabilities independent of a reasonable satisfaction will not justify a finding of fact” (NOM v DPP [2012] VSCA 198 at [124]. Under s140 of the Evidence Act, a party will not have proven its case if the likelihood of the plaintiff’s case and defendant’s case is perfectly balanced (Carney v Newton [2006] TASSC 4 at [61]). Similarly, a plaintiff will not succeed merely be establishing that his or her case is more likely than the defendant’s. The plaintiff must show that his or her case is more likely than not (Jackson v Lithgow City Council [2008] NSWCA 312 at [9]-[10] per Allsop P. I have reached my conclusions by reference to and applying these principles.
The significant matter of potential liability in this case is ultimately whether due to the method of application of paint and clear and blending that extended beyond the agreed areas of repair and the unsatisfactory variations to the balance of the car whether the defendant is required to make good by an award of damages an amount limited to the costs of and attendant on a respray of affected areas or whether the plaintiff is entitled to an amount represented by the cost of a respray of the entire car.

The defendant pressed the case for limiting the scope of its reparation to a respray of the small and confined areas of the car that correlated to the requested area of repairs of the lower door sills and boot wing spoiler for two reasons: first, this was the agreed area of repair and, second, to do more would be to provide the plaintiff with a windfall gain that is, to say, taking the car back to bare metal and a respray would not be to restore it to the condition it was in before it was delivered up to the defendant but rather to put it in a better position that it was at that time. The ordinary principles underpinning an award of damages in negligence is that a party is entitled to be placed back into the position he was prior to the conduct of the tortfeasor that resulted in a direct and foreseeable loss.
The fact is that the defendant has by its work impacted the vehicle and left it in a worse condition than it was in when delivered up to it. Had the defendant made the most rudimentary inquiry of Sillins of whether the car had previously been painted at any one of a number of stages open to it before undertaking the repairs, Sillins would have been afforded the opportunity to have made an informed decision about the scope of works but this never occurred, with the result that to now only make allowance by way of damages for a respray of particular areas of repair would lead to an unacceptable thick build-up of paint to the rear and to only strip the rear would lead to in inconsistency elsewhere. It is true that an inconsistency in paint depths previously existed but it cannot be known what the plaintiff might have elected to do had this knowledge possessed by Rogers been imparted to him but one option of course would have been to do nothing by way of adding further paint to existing areas of build-up. Furthermore, the use of a micrometer would have been an ordinary measure and not an exceptional or special measure, for the defendant to have applied to such a valuable car not because that in every case this should be a requirement in order discharge a duty of car owed to someone in the plaintiff’s position, but by reason of the defendant’s admission (both Rogers and his painter) of an awareness in the variations in paint colour. It was negligent in my judgement for Rogers to have taken an “executive decision” without having reverted to Sillins. There was nothing to suggest that he could not have contacted Sillins but this did not occur and, as I have mentioned, his explanation at one point was that he remained mute because he believed it ought to have been apparent to Sillins in any event. I reject that explanation.
Rogers said that Sillins never said the car had been previously painted so as to put him on notice that any additional paint applied by it could result in an excessive build-up or that because of previous poor surface preparation the application by it of paint to affected areas could lead to a deleterious consequences such as enhanced delamination. The plaintiff was at pains to say that he had no idea that the car exhibited evidence of previous paint applications. Munyard, whose evidence the defendant relied, on wrote in his expert statement that “Generally the vehicle presents very well and has immediate visual appeal. Closer critical inspection reveals some slight colour variation of the front door (both sides) and the rear quarter panels and the rear of the vehicle and the front bumper bar and front fenders…” He went on to express a conditional conclusion that if the plaintiff had only wanted a section of the vehicle painted then “the paint application, surface finish, lustre visual appearance is reasonable acceptable”. However, the opinion must necessarily be modified because of my findings of fact of the additional paint work the defendant applied of its own volition.
I am satisfied on the balance of probabilities that the defendant did paint into the larger areas of the rear quarter panels and that the same exhibits colour variations. I am satisfied on the balance of probabilities that the defendant did not confine the scope of works to small areas consistent with the quotations but went beyond the scope of work.
I am not satisfied that the front bumper bar exhibits variation in appearance to the extent wholly explicable because it is manufactured plastic and not metal and the uptake of paint and the appearance of the same for both will vary.
As to the sill panels I am satisfied that they exhibit delamination. As between the left hand sill panel and right hand sill panel the resistance made to the claim predicated on the defendant’s poor workmanship is that there must be expected to be a build-up of road dirt and grime and road debris occasioning some damage to paint surfaces. That explanation would have greater force had I been persuaded that the road use experienced by the car was greater than Sillins testified to but, as I have expressed earlier, I accept the plaintiff’s evidence of the very limited use made of the car after he collected it from the defendant. I am also satisfied that the right hand panel has been effected to a greater degree and I am not satisfied that the defendant is relived of liability for the costs of making good because of the allegation of poor previous paint adhesion. If that be the reason, (and I am not satisfied that it is) then in my judgment it was a direct result of the defendant being fixed with knowledge of previous paint applications that he was obliged to have undertaken either better preparation of the surface in light of that “which lay beneath” or to have notified the plaintiff that the capacity to effect suitable repairs may be compromised and require a greater scope of works than that which had been agreed. This did not occur.
Contrary to the evidence of Rogers and his spray painter and for the reasons I have already expressed, I am satisfied that the rear quarter panels were painted by the defendant and I am similarly persuaded that the defendant did paint the inner sills and did fail to do so completely and sufficiently and I think it is more probable than not that the evidence of masking is evidence of masking by the defendant around the door jamb edge and it is more probable than not that this was done when the defendant painted beyond the scope of works and into the rear quarter panels as opposed to having limited itself to the lower sills and the observable edge is evidence of inadequate preparation. I reject the probability that I should prefer and account the edge was left by masking taken at some earlier time as part of a previous paint application. I have already addressed the defendant’s liability for the top rear spoiler and the evidence also identifies the run and drip marks under the rear bumper that I am satisfied were caused by the painting by the defendant. The photographic evidence and vehicle presentation exhibited signs of overspray also consistent with a less than satisfactory execution of work.
Mr Turner posed the question whether the stone chips existed before hand and not as a result of the work undertaken by the defendant. I am satisfied on balance that the presentation of the stone chips was caused by the lack of proper investigation and care taken by the defendant to the repairs. In my judgement it is not a satisfactory answer to meet the allegation of negligence in this aspect of the work for the defendant to point to and rely upon the existence of other layers of paint previously applied by others. The fact that the defendant relies on the pre-existing paint as a contributing cause beyond its control is not sustainable. In my view, it is more probable than not that the paint has come away because of inadequate preparation of the surface by the defendant. I am satisfied that the existence of dirt underneath is more consistent with the defendant having applied paint over grime leading to poor adhesion and that in all probability this led to the delamination and not because of the car having been driven over rough surfaces.
Ultimately my conclusion is that there are distinguishing features of this case that attaches liability to the defendant to make good the vehicle by way of an award of damages that reflects the cost of stripping it and respraying it beyond the areas that the defendant worked on because:

i.The defendant’s interventions to the car extended beyond the scope of works;
ii.The evidence given by Rogers was that he believed the car had been previously been painted because of the difference in colour he observed when the car was delivered up to him;
iii.The failure by Rogers to refer the matter of the variations to the plaintiff in the course of their discussions about the extent to which the defendant would need to go above the sills in order to make good the repairs was an omission and contrary to what the plaintiff was reasonably entitled to expect;
iv.The acknowledgment by Rogers that if he concluded a scope of works was insufficient to give effect to a proper repair he would advise a customer accordingly;
v.The failure by the defendant to notify the plaintiff that the scope of works would be compromised due to circumstance that Rogers became aware of prior to commencing the repairs forestalled the plaintiff from making an informed decision about the repairs;
vi.The absence of use by the defendant of a standard piece of equipment that one would reasonably expect to be used by an experienced repairer as part of the preparation of repairs to a highly valuable vehicle in order to ascertain paint depths across the vehicle in light of the knowledge the repairer possessed about variations in paint contributed to the application of a paint that has left an excessive build up;
vii.The taking of an “executive decision” to match paint to the closest panel without first reverting to the plaintiff;
viii.The comparative lack of specialised knowledge by Sillins of what would be required to repair the defects and the placing of his reliance in the defendant;
ix.The taking of the works into areas beyond the scope of repairs that has further aggravated the variations in the colour and depth that previously applied.

I am not satisfied that it would amount to reasonable mitigation by the plaintiff to limit the amount of damages awarded to him as confined to the areas relied on by the defendant. For the reasons expressed there will be an order on the plaintiff’s claim in the amount sought. I will hear the parties on the issue of interest and costs.

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