Templeman v Idjit (Aust) Pty Ltd t/as Slades Paradise Point Marine - [2014] QCAT 549

CITATION:

Templeman v Idjit (Aust) Pty Ltd t/as Slades Paradise Point Marine [2014] QCAT 549

PARTIES:	Kim Templeman (Applicant)
v
Idjit (Aust) Pty Ltd t/as Slades Paradise Point Marine (Respondent)

APPLICATION NUMBER:

MCDO246-14

MATTER TYPE:

Other minor civil dispute matters

HEARING DATE:

7 August 2014

HEARD AT:

Brisbane

DECISION OF:

Adjudicator Bertelsen

DELIVERED ON:

29 October 2014

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The application is dismissed.

CATCHWORDS:

Outboard motor service/parts replacement – subsequent failure – condition of motor – rebuild of motor - expectation of performance of old motor rebuilt – quality of work performed – evidence of efficiency of workmanship

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Kim Templeman

RESPONDENT:

Jim Chessum, director

REASONS FOR DECISION

Application

By application filed 6 February 2014 Mr Templeman sought $12,918 damages for breach of contract, consequential loss, negligence and breach of bailment arising out of failure by Idjit (Aust) Pty Ltd trading as Slades Paradise Point Marine (‘Mr Chessum’) to properly repair a 1998 Mercury Haines Signature Outboard Motor (‘the motor’) and put it in good working condition and fit for its purpose.

Background and Evidence

In September 2011 Mr Templeman brought his boat ‘Ninkesi’ to Mr Chessum’s boatyard for service and repair of the motor. The motor was functional but running hot. The motor had been purchased by Mr Templeman from Mr Chessum some two years prior and up until September 2011 was fully functional. Mr Chessum carried out a general service of the motor and replaced number 4 piston (low compression). By invoice dated 6 October 2011 Mr Chessum invoiced Mr Templeman $3,584.60 for the service and replacement and was paid.
Mr Templeman collected the boat and drove it away. He said shortly after and less than two hours running time later the motor failed. He stated he returned the boat to Mr Chessum in October 2011 for further repair; that the motor was returned to be repaired again in terms of the first agreement ie the general service/piston replacement. It was November 2011 according to Mr Chessum that the boat was returned. As Christmas was approaching Mr Chessum decided to leave the examination of the motor until early in the new year 2012.
When examining the motor in early 2012 he found oil to be contaminated with water. He considered this to be a serious issue. He advised Mr Templeman to lodge an insurance claim which Mr Templeman did through his insurers named as Lawlers Marine Insurance.
In about April 2012 an insurance assessor inspected the motor and found the cause of failure to be water in the oil. The insurance claim was accepted. The motor was deemed a write off. Mr Templeman received the insured value of the motor less the policy excess of $500.
Mr Chessum stated he advised Mr Templeman to buy back the motor from the insurer otherwise there would be no motor to rebuild; that otherwise he Mr Chessum would be ‘out of it’; that Mr Templeman wanted to start again; that Mr Templeman said to rebuild the motor get it going because he wanted to sell the boat.
Mr Templeman purchased the motor as salvage for $500. According to Mr Chessum he was told by Mr Templeman to rebuild the motor and get it going because he wanted to sell the boat.
Mr Chessum began to rebuild the motor in about May 2012. The rebuild took place in May/June 2012. Mr Chessum produced a letter dated 6 August 2014 from his then mechanic who undertook the rebuild, one Reece Samuels, stating that Mr Samuels was employed by Mr Chessum and that he rebuilt the motor as directed by Mr Chessum. Mr Chessum also produced invoices from All Marine Spares dated 9 May 2012 and 18 May 2012 for the purchase of new pistons for the rebuild. He stated that once rebuilt every time the motor was started it ‘revved really high’. Mr Chessum said he ‘nutted it down to a faulty ECU’ ie a fault in the computer that controlled the timing. He said he tried together with Mr Templeman to source a secondhand ECU but without success.
Mr Templeman stated that he was informed by Mr Chessum in October 2012 that one reason for the motor not running was that a computer component of the motor, the ECU was defective and required replacing. Mr Templeman stated that it was agreed in October 2012 that the motor would be rebuilt with a new ECU supplied by him. He said he purchased a new ECU at a cost of $2,043 and gave it to Mr Chessum to be fitted.
Mr Chessum said time dragged on with both he and Mr Templeman attempting to source a second hand ECU; that eventually Mr Templeman sent Runaway Bay Marine Service to his boat yard to retrieve the defective ECU; that Runaway Bay Marine Service said they could have the ECU ‘reflashed’ (fixed so as to be fully functional) by Mercury. The ECU was taken away by one Ian Gifford of Runaway Bay Marine Service to be reflashed; that a period of time went by with no reflashed ECU materialising; that eventually Mr Templeman bought a new ECU from Runaway Bay Marine Service in February 2013. It was delivered to Mr Chessum’s boat yard and bolted onto the rebuilt motor. Mr Chessum said the motor then ‘started fine, ran fine’; that this occurred about March/April 2013.
Mr Chessum indicated that Mr Templeman and his solicitor came to his boat yard it seems some time in April 2013 and looked at the boat; that he felt he was not going to be paid for the rebuild; that at that point he just wanted out; that the motor was now running; that he just wanted to move on.
On 9 May 2013 Mr Templeman and his solicitor attended Mr Chessum’s boat yard. Mr Templeman’s solicitor brought fuel. According to Mr Chessum the boat had been detailed by him. Mr Templeman inspected the boat. The motor was started. It functioned without mishap. At this point both Mr Templeman and Mr Chessum executed a release the operative part of which recites as follows:
1.The company and the client mutually release one and the other from all and any claim which one or the other may have against the other, past present and in the future touching and relating to the vessel and the companies rebuilding of the 200 hp motor attached to the vessel.
2.This deed may be pleaded in bar to any proceeding, action or claim brought by one or other of the parties against the other.
3.Each party agrees that they are under a duty of confidence to keep the terms of this deed secret and not to divulge or disclose any matter or thing in regard thereto to any third person other than for taking legal advice.
4. Executed as a deed.
No monies changed hands. Mr Templeman drove the boat away. The motor failed a shortly thereafter.
Mr Templeman asserted that the deed was executed in reliance on Mr Chessum’s representation of having rebuilt the motor to a fully reconditioned state. He asserted that this was false, known to be false by Mr Chessum and/or made wilfully recklessly and without regard to the truth.
Mr Templeman relied on a report by Runaway Bay Marine Service dated 28 May 2013 (actually two the same but one is an invoice) which referred to an inspection indicating defects in the motor.
The report firstly indicated low compression in one cylinder. Secondly ‘ignition power pack is not separated by spacers, causing short circuit to rear pack wiring, also has a failed trigger and stator’. Mr Chessum said the ignition spacers were external items; that a failed trigger and stator would mean that the motor simply would not function at all. Thirdly ‘wiring to voltage regulator burnt’. Mr Chessum said this was an old external component. Fourthly ‘remove cylinder head 1 cylinder scored and 3 cylinder head and combustion chamber damaged’. Mr Chessum stated that all six pistons had been replaced as part of the rebuilt. The report stated finally that ‘pistons are maximum oversize, requires new block’. Mr Chessum said that was not the case; that the block could be re-sleeved; that dealerships do not bother to rebuild motors. The report in its invoice form concluded that the cost of repair was beyond economic value.

Conclusions

The motor, a 1998 Mercury model, was purchased second hand by Mr Templeman from Mr Chessum some two years prior to September 2011. The motor was fully functional in the two years prior to September 2011.
The motor failed shortly after a general service and number 4 cylinder replacement carried out in September/October 2011.
The boat was returned to Mr Chessum probably in November 2011.
Considering that there could be some further serious issues with the motor Mr Chessum decided to attend to the motors failure early new year 2012. When Mr Chessum examined the motor he found oil to be contaminated with the water. Mr Chessum advised Mr Templeman to lodge an insurance claim. Mr Templeman did so. The claim was accepted. The motor was deemed a write off. Mr Templeman was paid the insured value less $500 excess. Mr Templeman purchased the motor from the insurer as salvage for $500.
Mr Chessum proceeded to rebuild the motor during the course of May /June 2012. Mr Chessum produced a letter dated 6 August 2014 confirming that his employee rebuilt the motor. As well two invoices from All Marine Spares were produced to support the purchase of pistons in May 2012. The Tribunal accepts that the motor was rebuilt.
The motor having been rebuilt would overrev. Mr Chessum thought this referrable to the ECU (computer) which controlled the timing. Eventually in February 2013 or perhaps later in March/April 2013 a new ECU was fitted to the motor and it functioned properly.
Sometime in April 2013 Mr Templeman and his solicitor visited Mr Chessum’s boat yard. Subsequently on 9 May 2013 Mr Templeman accompanied by his solicitor collected the boat and motor with Mr Templeman driving the boat away. At the same time a release was executed. Mr Templeman and Mr Chessum released each other from all and any claims past, present and in the future. Shortly after the motor failed.
Mr Templeman obtained a report from Runaway Bay Marine Service dated 28 May 2013 which he asserted was evidence of failure to rebuild and a contravention of the terms of the release in that Mr Chessum falsely and knowingly so, and/or wilfully recklessly and without regard to the truth represented that he had rebuilt the motor to a fully reconditioned state.
There was no evidence of poor workmanship produced to the Tribunal in respect of the general service and one piston replacement in September/October 2011. The fact that the motor failed shortly thereafter alone is not enough to conclude poor workmanship.
Rather it appears that there were serious underlying problems with the aging motor namely oil contamination by water. There was nothing in evidence to suggest that this ought to have been discernable at the time of the general service/one piston replacement.
The underlying problem was of such a serious nature that it lead Mr Templeman’s insurance assessor to write the motor off. Ownership of the motor passed to his insurer as evidenced by the payment of $500 to buy back the motor as salvage.
For Mr Templeman to argue that the motor was to be then repaired again in terms of the general service/one piston replacement is illogical. As indicated there was no evidence to suggest that the service/replacement was lacking in any respect. There was a dramatic shift in the starting point for the rebuild. A written off $500 salvage value motor to be rebuilt so that Mr Templeman more than likely could sell the boat.
The Tribunal accepts Mr Chessum’s evidence that it was Mr Templeman who wanted to rebuild the motor. Mr Chessum undertook that rebuild. The rebuild was always a far cry from the original brief of general service/one piston replacement. Nor is there any evidentiary link between the two.
The report from Runaway Bay Marine Service dated 28 May 2013 does not refer to a rebuilt motor. In fact it does not address the point as to whether the motor had been rebuilt or not. Rather it refers to external components that might be subject to replacement not necessarily part of a rebuild. There is nothing as to the cause of low compression or cylinder scoring or combustion chamber damage, only that it appears to have happened.
Mr Chessum was never paid for the rebuild despite outlaying money for new pistons. The release can reasonably be construed as putting an end to the entirety of the relationship between Mr Templeman and Mr Chessum particularly so in the absence of any compelling evidence that Mr Chessum did not rebuild the motor satisfactorily. The Tribunal finds there was nothing false wilful reckless or without regard to the truth in his conduct.
In passing the insurance assessors observations were, in the event, probably correct ie. that the motor was a write off and by implication not worth the attempt to instil new life.
Finally, Mr Templeman made a claim for carpet replacement. That was never of concern on 9 May 2013 but rather it appears a latter day complaint by Mr Templeton. Mr Chessum said he detailed the boat for final collection that day. There were no photos of any affected carpet. There is not enough evidence to determine firstly that the carpet was oil affected and secondly, if so, by whom was the damage done and when.
The application is dismissed.