The State of Western Australia v Wilkinson

[2000] WADC 224

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION:   PERTH

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- WILKINSON & ANOR [2000] WADC 224

CORAM:   FENBURY DCJ

HEARD:   11 AUGUST 2000

DELIVERED          :   Delivered Extemporaneously on 11 AUGUST 2000 typed from tape and edited by Trial Judge.

FILE NO/S:   CIV 264 of 1999

BETWEEN:   THE STATE OF WESTERN AUSTRALIA

Appellant

AND

DAMIAN JOHN WILKINSON
First Claimant

GRAHAM CHARLES MARKHAM
Second Claimant

Catchwords:

Appeal from Registrar's decision - Turns on own facts

Legislation:

Nil

Result:

Appeal allowed

Representation:

Counsel:

Appellant:     No Appearance

First Claimant               :     In Person

Second Claimant           :     No Appearance

Solicitors:

Appellant:     No Appearance

First Claimant               :     No Representation

Second Claimant           :     No Appearance

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:

Nil

1. FENBURY DCJ:  This is an appeal from a decision of a deputy registrar made in Chambers on 30 May 2000.  It is an appeal by way of a re‑hearing.  On that date learned Registrar Kingsley made an order that Mr Wilkinson pay Mr Markham, that is, the first claimant pay the second claimant the sum of $400 within 150 days.  It is that order which is challenged by the first claimant, Mr Wilkinson, who has appeared in court today in respect of this matter.  There is no appearance on behalf of Mr Markham or of Mr Markham.

2. The matter arises as follows:  Mr Wilkinson's motorcycle was stolen on or about 3 February 1999.  It was worth about $5500 new and at least $3000 at the time of the theft.  Mr Wilkinson made inquiries about the motorcycle following its theft and discovered that it had been purchased by Mr Markham who is the proprietor of a business called Extreme Motorbikes, unit 2, 645 Dundas Road, Forrestfield.

3. It appears that Mr Markham had purchased the motorcycle for about $1500, well under the market value.  Police became involved in the matter and the motorcycle was seized and placed in the police holding depot pending resolution of a dispute that arose between Mr Wilkinson and Mr Markham concerning costs of repairs.  It appears that Mr Markham had done some work on the motorcycle after he purchased it but before it was seized by the police.

4. According to Mr Markham and the documents on the file, it appears that Mr Markham sought $550 for the work that he had done and there is a quote or invoice in that amount on the file that is exhibited to the affidavit of Mr Markham and that quote is dated 3/8/99.  It refers to $550 for a variety of work.

5. When the matter came before Mr Kingsley, again Mr Markham did not appear but Mr Wilkinson did and after some submissions were made, an order was made that Mr Wilkinson pay Mr Markham the sum of $400.  That sum was ordered because Mr Wilkinson produced two independent quotations for the cost of repairs that Mr Markham had done which were in the amount of about $400.  In fact one was for $406, the other for $413.  I was told and I accept that that is the reason why Mr Kingsley made the order.

6. Mr Wilkinson appeals against that order because he says that the quotes included an allowance for profit being that they were independent quotes.  He makes the point that given that Mr Markham had done this work on a motorbike that, objectively, he should have had a pretty strong suspicion was stolen (given the price that he paid for it), then he should not be allowed to make any profit on the work he did.  He should be paid purely for the parts he provided and some fair allowance for labour.

7. Mr Wilkinson also argues that there should be a further deduction from the $400 because of the totally inadequate decorative tank decals that were attached to the motorcycle's petrol tank and which had peeled off.  According to Mr Wilkinson, the wholesale quote for the repairs, less the profit margin would be in the region of $326 and that as tank decals are worth $80, he says that he should only have to pay $250 and that is, in effect, what he is offering to pay.

8. There has been no contact from Mr Markham who has never appeared in relation to this matter save to say that he wrote a letter on 6 July which raises the question of allowance being made for 22 per cent wholesale tax.  He says that he would have had to pay $71.72 by way of wholesale tax.

9. Mr Wilkinson appears to concede that theoretically that could be true.  I think having regard to all I have heard and having regard to the nature of the dispute, that it would be fair and reasonable and just if I were to allow the appeal.  I accept what Mr Wilkinson tells me, that a fair amount would be $250 on the basis that I have explained, but I do think some allowance should be made for the sales tax and so I propose to vary the order such that instead of being ordered to pay $400, Mr Wilkinson should pay $250 plus the sales tax of $71.72 making a total of $321.72.  I do not think any other order is necessary in all the circumstances.