Spiller v Hellyer - [2011] SADC 9

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Minor Civil Review)
SPILLER & ANOR v HELLYER
[2011] SADC 9
Judgment of His Honour Judge Soulio
10 February 2011
MAGISTRATES
Application for review of decision of Magistrate. Application dismissed.
Magistrates Court Act 1991 s 38; Fair Trading Act 1987 s 56; Sale of Goods Act 1895 s 14, referred to.
Devries v Australian National Railways Commission (1993) 177 CLR 472; Fox v Percy (2003) 214 CLR 118; TNT Management Pty Ltd v Brooks (1979) 53 ALJR 267, considered.

SPILLER & ANOR v HELLYER
[2011] SADC 9
Background

In April 2010 Lauren Hellyer, (‘the plaintiff’), purchased a Toyota Coaster bus from one Michael Collett, (‘the vendor’). She had seen the bus advertised for sale in Adelaide. She lived in Broken Hill. Prior to the purchase she arranged for the bus to be inspected, for a fee, by Russell Spiller, (‘the defendant’), in order, she said, to determine whether the bus was in a roadworthy condition and could be driven from Adelaide to Broken Hill. After receiving a brief verbal report from the defendant, she attended in Adelaide and paid the sum of $5,300 for the bus and drove it to Broken Hill. She experienced difficulties during the journey and had the vehicle examined upon arrival in Broken Hill where it was found to be unroadworthy.
She instituted proceedings both against Mr Spiller (and his wife with whom he is in partnership) and Mr Collett, claiming the sum of $4,800 being the difference between what was paid and the true value of the bus, in addition to certain costs she incurred.
The Magistrate’s Decision
In an ex tempore judgment delivered on 2 August 2010, following the hearing of the minor civil claim, the Magistrate dismissed the plaintiff’s claim against the vendor, but allowed the claim against the defendant. He found that the plaintiff purchased the bus on the basis that it was mechanically sound, and that no further monies would need to be outlaid to make the vehicle roadworthy. The Magistrate found that the vehicle was not roadworthy, and would cost a sum of $2,808 to be made roadworthy, and awarded damages in that amount, together with costs and disbursements of $2,496.46. He awarded judgment against Mr Spiller in the sum of $5,304.46. He ordered Ms Hellyer to pay Mr Collett his costs.
Application for Review
Mr Spiller applied to review the Magistrate’s decision pursuant to s 38 of the Magistrates Court Act 1991 which sets out the powers of this Court on an application for review. In particular, the Court may inform itself as it thinks fit and is not bound by the rules of evidence. On the hearing of an application for review the Court must act in accordance with “equity, good conscience, and the substantial merits of the case without regard to technicalities and legal forms.” (see s 38(7)(e)).
Although there is a power to re-hear evidence taken before the Magistrates Court should the Court determine to do so, in this case I did not consider that there was any necessity to do so.
I am obliged to respect the advantage enjoyed by the Magistrate in a situation where the decision is based upon his impression as to the credibility of witnesses. In particular, a finding of fact by the Magistrate based on the credibility of a witness may only be set aside on appeal where the decision is either manifestly wrong by reason of error indicated by incontrovertible facts or uncontested testimony, or is glaringly improbable, or is contrary to compelling inferences in the case. See, for example, Devries v Australian National Railways Commission.[1]
[1] Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479.
However, as was observed in Fox v Percy:[2]
... an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it ...
[2] Fox v Percy (2003) 214 CLR 118.
Further, any inference drawn or relied upon must reasonably arise from proven facts or circumstances.[3]
[3] See TNT Management Pty Ltd v Brooks (1979) 53 ALJR 267 at 349.
Upon the hearing of the review Mr Spiller appeared, as did the plaintiff. Following submissions, a Mr Kerr, representing Mr Spiller’s insurer, sought to be heard, but, he said, only to “recap” the defendant’s submissions. I granted an adjournment for Mr Kerr to confer with Mr Spiller, following which Mr Spiller made brief supplementary submissions.
The Plaintiff’s Case at Trial
The plaintiff’s case against the defendant, as originally pleaded, was that the plaintiff entered into an oral contract with the defendant whereby the defendant was to conduct a pre-purchase inspection of the bus, and was to provide the plaintiff with an inspection report following inspection, in consideration of the sum of $90.
The plaintiff alleged that the defendant did not provide an inspection report, failed to advise the plaintiff that the vehicle was not roadworthy and in fact advised that the vehicle was roadworthy. The plaintiff asserted that, acting upon the representation that the bus was roadworthy, she purchased the vehicle from the vendor, and on 25 April 2009 drove the bus from Lobethal to Broken Hill. She asserted a number of causes of action including a breach of s 56 of the Fair Trading Act, misrepresentation, and a breach of s 14 of the Sale of Goods Act 1895.
Upon the initial hearing the plaintiff gave evidence that she had seen an advertisement offering the bus for sale. She attempted to arrange an RAA inspection of the bus, which was located at Lobethal, but was unable to do so. She ultimately contacted the defendant by telephone and ascertained that he was prepared to conduct a pre-purchase inspection. She paid the agreed fee of $90 by credit card over the telephone. The plaintiff said that she relied on the defendant as a licensed mechanic to conduct the pre-purchase inspection.
The plaintiff said that she did not simply require an engine inspection, and had a list of items that were checked in RAA inspections, and asked the defendant whether he conducted full inspections. She said that the defendant later rang and told her that he would have to perform the inspection at the vendor’s house. She said in evidence that the defendant said he could still do the inspection, and did not advise her that it was going to be a limited inspection.
It was quite clear that this was a point of considerable dispute between the parties, and during the course of evidence the defendant interjected and said that he had told the plaintiff that he could only do a limited inspection. The plaintiff asserted that the defendant said that he could perform a full inspection but that it would have to be done at the vendor’s premises.
The plaintiff said that after the inspection had been performed, she requested a receipt and an inspection report which she was told would be with the bus when she went to collect it. When she collected the bus there was no report. In fact the report the defendant provided was dated 16 June 2009 and was ultimately posted to the plaintiff.
The plaintiff said that the defendant told her that mechanically everything was in good order. She asked whether it was safe to drive the 550km to Broken Hill, and was told “yes, no problems”. In reliance on that advice, the plaintiff and her partner flew to Adelaide, paid for the bus, and proceeded to drive the bus back to Broken Hill.
She said that on the journey to Broken Hill she had to stop at Terowie, because the bus was jolting from side to side and she was having trouble controlling it; her arms were getting sore and she decided to stop. She said it took five hours to get to Terowie when it should have taken two and a half hours. She stayed there the night. The next day she drove to Broken Hill and said that that section of the journey also took a long time. She assumed that perhaps the bus simply needed a wheel alignment, but, upon taking the bus to a mechanic, was informed that a great deal of work would be required.
As I have said, she claimed losses of $4,800, presumably on the basis that the true value of the vehicle was $500, not $5,300; plus the cost of a permit to drive an unregistered vehicle; and overnight accommodation expenses, because the vehicle was so difficult to drive it could not be driven to Broken Hill during the course of a single day’s journey.
The Defendant’s Case at Trial
As I have said the defendant asserted at trial that he had told the plaintiff that he could only do a limited inspection. The defendant said that the vehicle was parked at the vendor’s premises in such a way that it was not possible to carry out a proper mechanical inspection and his mechanic only went to the address, started the engine and checked the fluid levels, and on that basis expressed the opinion that the vehicle was in a sufficiently good condition to make the journey from Lobethal to Broken Hill.
During the course of the hearing the Magistrate asked Mr Spiller:
QWell, I ask you now formally, why couldn’t it have been moved to the concrete driveway and had a decent look at the – all you had to do was jack up the wheels and shake them. Jack up the front and give it a good shake.
ACould have been, yes, it could have been, but I wasn’t involved in the actual process of it, it was my mechanics and I didn’t understand where it was, who it was, all of that.
He was also asked:
QDon’t you think that it should have been appropriate, would have been appropriate to give it a bit of a safety check.
AI would have, for a proper safety check and whatever, it should be over a pit so you can go over the whole thing. We weren’t able to do that.
Mr Spiller said, “We are not the RAA, we don’t have an RAA list. We don’t do many pre-purchase inspections in the hills.” He asserted that all he was asked to do was see whether the engine ran, and if it would make it to Broken Hill.
Magistrate’s Findings
The Magistrate preferred the evidence of Ms Hellyer. He said:
It seems to me that having regard to the amount of trouble Ms Hellyer went to and as she sought an inspection in the first place, she wanted a proper pre-purchase safety inspection. She wasn’t to know if the vehicle she was buying was mechanically sound.
I am satisfied on the balance of probabilities this was conveyed to Mr Spiller.
The Magistrate found that there were a number of problems with the bus, some of which, however, were not safety items and not related to the mechanical operation of the bus. The Magistrate found that the specific mechanical problems that should have been apparent to someone conducting a proper pre-purchase inspection included problems with the steering track rod, and the king pins and bushes. He found that Mr Spiller should have advised Ms Hellyer that the seat and seat belts were not properly attached to the bus, that the king pin bushes were badly worn, that the steering track rod needed adjustment and that the brakes required adjustment. He accepted the evidence of Mr Deeble, a mechanic called by Ms Hellyer, and found that the cost of rectifying those items was $2,808.
He also awarded costs, namely the costs on the summons of $380; an airline ticket in the sum of $293.61 for Mr Deeble’s attendance, plus an attendance fee of $400; an airline ticket in the sum of $456 for the plaintiff’s attendance, and an attendance fee of $100; accommodation expenses of $259.50; $315.15 for an inspection report; $244.20 for towing fees and $48 for a permit fee.
The Defendant’s Complaint
In addition to the grounds for review set out in the application, the defendant, through solicitors, filed a document entitled “Defendant’s Written Case”, which set out a number of factual matters and set out a number of written submissions.
The defendant criticised the Magistrate’s decision, asserting that he failed to adjourn the trial “to prevent embarrassment on the part of the (defendant)”; erred in accepting the plaintiff’s evidence as to quantum, the construction of the oral agreement between the plaintiff and the defendant, and the work carried out by the defendant; and erred in finding that the defendant failed to discharge any contractual obligations they had to the plaintiff, failed to satisfy their duty of care, and breached statutory obligations. Further, the defendant asserted that the Magistrate failed to provide sufficient reasons, particularly in relation to the cause or causes of action in respect of which he found the claim was made out. No complaint was made as to the findings as between Ms Hellyer and Mr Collett.
Findings on Review
At the hearing before the Magistrate the plaintiff gave evidence, as did the plaintiff’s mechanic, the vendor Mr Collett, and the defendant Mr Spiller. There is no record in the transcript of any application for an adjournment being made, by the present defendant. He confirmed that no application was made and said that he was not aware that he was entitled to make an application for an adjournment.
Whilst the defendant said that he found out, at short notice, that the matter was listed for hearing in the Magistrates Court, nothing was put to me as to any embarrassment which may have been caused, and in any event, given the absence of an application for an adjournment, the Magistrate cannot be criticised for failing to grant an adjournment.
The claim by the plaintiff was brought, in part, on the basis that she had entered into a contract with the defendant, pursuant to which the defendant was to provide her with an inspection report for which she had paid. In breach of the contract, she asserted, the defendant did not provide an inspection report, and failed to warn the plaintiff that the vehicle was not roadworthy.
In my view it is sufficiently clear from the findings of the Magistrate that he accepted that there was a contract pursuant to which the defendant would conduct a mechanical inspection of the vehicle to ascertain whether it was roadworthy, and as part of that, whether the bus was safe to be driven to Broken Hill. It is apparent that, having seen and heard the witnesses, the Magistrate preferred the evidence of the plaintiff.
It is also apparent, on the basis of the defendant’s own evidence, that the inspection was most perfunctory. No attempt was made to move the vehicle to a position on the vendor’s property where it could be properly inspected, no mechanical inspection was conducted, and a written inspection report was not provided until well after the event. The verbal report was based on the perfunctory inspection to which I have referred, and did not address all of the issues upon which the plaintiff required advice. The defendant was thereby in breach of the contract entered into with the plaintiff.
Having regard to the Magistrate’s acceptance of the plaintiff’s evidence as to the conversation she had with the defendant, Mr Spiller owed Ms Hellyer a duty of care, which was breached by the failure to conduct a proper inspection and to accurately report as to the condition of the vehicle.
It was open to the Magistrate to find that the plaintiff suffered loss as a result of both the defendant’s breach of contract, and breach of duty. There is no basis upon which I should interfere with his findings as to liability. The defendant also complained about the Magistrate’s award of, and assessment of costs. I do not consider that the award was inappropriate and would not interfere with the Magistrate’s decision in that regard.
Accordingly the application for review is dismissed. I will hear the parties as to costs.