Topline Paint Pty Ltd v Ruggieri and Katopodis No. Scgrg-98-539 Judgment No. S150

[1999] SASC 150

TOPLINE PAINT PTY LTD v RUGGIERI AND KATOPODIS
[1999] SASC S150

Magistrates Appeal

Debelle J

1. The issues in this appeal arise out of the re-spraying of a motor car. There is no real dispute concerning the manner in which the events unfolded. The issues in this appeal concern the conclusions drawn by the magistrate from those facts.  The following summary is taken from the findings made by the magistrate.  I will refer to the parties by their respective names.

2. Mr L P Ruggieri owns a Torana SL 5000 motor car.  In about August 1994 he asked a friend, Mr Theo Katopodis, to re-spray the Torana and remove some rust.  Katopodis then carried on business as a car painter trading as Prestige Paint & Panel.  Ruggieri provided Katopodis with four doors, a bonnet and a boot lid which were all in good condition.  He asked for those parts to be placed on the motor car.  Katopodis agreed to carry out the work.  He worked on the car.  The work took some time.  Ruggieri was not in a hurry.  It was agreed that the work would be done between other work which Katopodis received.  Time was obviously not of the essence of the contract.

3. In about December 1994 the Torana was ready to be re-sprayed.  Ruggieri obtained some paint from a paint manufacturer, Topline Paint Pty Ltd (“Topline”).  The paint is known as “2-Pack Estagloss Paint”.  It is suitable for re-painting motor vehicles and is designed to produce a high gloss finish.  Ruggieri delivered the paint to Katopodis.  He also gave Katopodis an information sheet published by Topline which described how the paint should be applied.  Katopodis re-sprayed the vehicle in January or February 1995. Katopodis then utilised a process of baking the paint work to accelerate the drying process.   Within two to three days of applying the paint, Katopodis cut and polished the paint work.  After he had completed the work, Katopodis returned the car to Ruggieri. 

4. Evidence was given on behalf of Topline that it was unnecessary to cut and polish vehicles sprayed with this paint because a gloss would result after the vehicle had been painted, and that, if cutting and polishing were required, it should not be carried out until at least seven days after the paint had been applied.  The magistrate found that it was a practice in the crash repair and car painting industry for paint work to be baked after application and then cut and polished within two days of the baking process. Katopodis had baked Ruggieri’s vehicle after painting and had cut and polished it after two days.

5. Within two to three months Ruggieri noted that the paint was fading to a noticeable degree. He spoke to Katopodis, who re-polished the Torana.  However, after a time, the paint again faded noticeably.  Over the next twelve months Katopodis tried to get assistance from other sources to restore the gloss to the paint. Nothing was successful. The matter was reported to Topline, which unsuccessfully endeavoured to ascertain the cause of the problem.  Neither Katopodis nor Topline would accept responsibility for what had occurred.

6. In the result, Ruggieri brought an action naming Katopodis and Topline as defendants.  In that action he claimed $9,500 damages to remove the rust and re-spray and re-paint the Torana.  The claim against Katopodis was for negligence in the performance of the contract to re-spray the Torana.  The claim against Topline was for breach of contract in providing a paint which was not fit for the purpose and for negligence in providing instructions for the application of the paint which were inadequate. The magistrate found that Katopodis did not use all of the parts supplied to him and, in particular, did not use all of the car doors.  Rust had appeared in the doors.  He, therefore, held that Katopodis was negligent in not using the parts supplied and for not removing the rust.  He assessed the cost of making good the damage caused by the rust in the sum of $1,500.

7. As to the liability for the paint work, the magistrate found that the paint work was defective because Katopodis was unfamiliar with the Topline brand of paint.  He also found that the information provided on the information sheet was inadequate and out of date.  The magistrate found that the defective paint work resulted from the fact that Katopodis had cut and polished the paint work within two to three days of applying the paint.  This had destroyed the integrity of the paint.  The cutting and polishing should not have been carried out until at least seven days had elapsed after the application of the paint.  He found that Topline was liable for supplying an inadequate and out of date information sheet. The magistrate, therefore, found that both Katopodis and Topline had been negligent in relation to the painting but that Katopodis should bear the greater responsibility.  He assessed the damages for making good the defective paint work in the sum of $3,700.  He ordered that Topline should contribute $1,000 towards that sum.  The magistrate made the following orders:

8. That Ruggieri have judgment against Katopodis in the sum of $1,500 plus interest and costs for the rust damage.

9. That the plaintiff recover judgment against Katopodis and Topline in the sum of $3,700 plus interest and costs for the defective paint work.

10. That the amount of contribution as between Katopodis and Topline in respect of the liability to Ruggieri shall be borne as to $2,700 by Katopodis and as to $1,000 by Topline.

11. That if Ruggieri recovers from either defendant a proportion of the judgment in excess of the contribution for which that defendant had been found liable, the defendant from whom such excess shall have been recovered shall be at liberty to enter judgment therefor against the other defendant together with the costs of entering such judgment.

Topline has appealed against the orders in paras 2, 3 and 4.  No other party has given notice of an appeal or cross-appeal.

1. Topline’s appeal essentially turns on three grounds.  An important issue at the trial was whether Katopodis should have waited seven days before cutting and polishing the paint work, even after baking.  Another issue was whether the information sheet published by Topline was misleading and whether Topline was negligent in publishing it.   The first ground of appeal is that the magistrate erred in finding that the first information sheet provided by Topline was misleading.  The issue turns on the information provided under the headings “Drying” and “Finish”. 

2. The first information sheet is in these terms:

   “Drying: Surface dry time is 2 to 3 hours.  Hard dry overnight and full cure after 7 days at 25° C...

   Finish:  Brilliant high gloss.  Satin finish available on request.”

The second sheet contains the same two headings and states:

“Drying:  Surface dry time is 2 to 3 hours.  Re-coat after 16 hours.  Hard dry overnight and full cure after 7 days at 25° C...

Finish:  Brilliant high gloss.  Satin finish available on request.  Cut/Polish of finished product is not required.”

The expression “full cure” refers to the stage at which the paint had obtained its full chemical resistant properties.  It was Topline’s case that Katopodis should not have cut and polished the paint work until a full cure had been achieved after seven days.  It will be noticed that the information as to both drying and finish in the two information sheets differs. The second sheet refers to re-coating and under the heading “Finish” adds that it is unnecessary to cut and polish the finished product.

1. Neither information sheet said anything about accelerating the curing time by baking the paint.  Mr Goodall, who appeared for Topline submitted that, although there was evidence that it was not an uncommon practice in the industry to accelerate curing by baking the painted car in an oven, it was not reasonable to expect that the first information sheet should seek to cover every possible use or method of application of the paint.  He added that, while the paint was suitable for painting motor cars, it was not specifically marketed for that use.  The information sheet described the uses for the paint in these terms:

   “859 Estagloss is eminently suited for the finishing of chemical plants, storage tanks, the interior and exterior surfaces of buildings, fixtures and fittings where a chemically resistant or extremely touch coating is required.  Also ideally suited for the finishing of buses, transport fleet, oil and chemical tankers, rail cars, chemical trucks, aircraft and fibreglass boats.”

Evidence given on behalf of Topline was to the effect that a small part of its business was the supply of paint for re-spraying vehicles and for use in the crash repair business. 

1. As Mr Goodall said, it was not practical to seek to cover in the information sheet every kind of use or method of application of the paint. I agree that the sheet did not have to cover every contingency.  However, given the evidence as to industry practice, it was open to the magistrate to find that the practice of baking paint to accelerate the drying process was sufficiently widespread in the industry to require it to be covered in the information sheet. The information sheet expressly addressed the topic of curing.  Those in the industry might believe that the process of baking has the capacity to accelerate the drying process and, in turn, accelerate the time when paint can be cut and polished.  Different paints will have different properties.  The information sheet should have addressed the question whether baking would affect the curing process.  If, after baking, it was still necessary to wait seven days for the curing process to complete, the information sheet should have said so.  The evidence for Topline was that the time when the process of cutting and polishing occurred is critical in terms of the outcome and the durability of the finish.  That reinforces the conclusion that it was misleading not to refer to the extent to which, if at all, the procedure should be modified if the paint work was baked.

2. Topline has published a document advising how the paint should be applied and in particular the required curing time.  It ought to have been aware of the practice in the industry to bake paint work in order to accelerate the drying time. This practice was sufficiently well-known for another paint manufacturer to refer to it in its information sheets. It was, therefore, reasonably foreseeable by Topline that its paint would be used by trades people who would bake the paint work after application in order to accelerate the drying process.  Topline also knew that it was undesirable to cut and polish before the curing time of seven days had elapsed and that this curing time was not affected by baking to accelerate the drying process. Having assumed the responsibility of advising as to the use and method of application of its paint, Topline had a duty to warn that accelerating the drying process by baking would not accelerate the curing time: Grant v Cooper, McDougall and Robertson Ltd [1940] NZLR 947; Watson v Buckley [1940] 1 All ER 174l James Hardie Industries Ltd v Prenc (unreported, Supreme Court of Victoria, Full Court, 6 December 1988). For these reasons, the magistrate did not err in finding that the first information sheet was misleading.

3. Mr Goodall sought to reinforce his submission by pointing to the fact that the second information sheet contained the same information as to curing.  He submitted that the magistrate had erred in finding that a second sheet may have alerted Katopodis to the fact that he should wait at least seven days before cutting and polishing the paint work, even after baking it.  The submission assumed that the magistrate was referring to the second information sheet published by Topline.  A careful reading of the magistrates’ reasons shows that he was not.  The magistrate was saying that, had another sheet been published which alerted the reader to the need to wait for seven days even after baking the paint work, Katopodis may have followed the instructions.  Thus, the second information sheet published by Topline is wholly irrelevant to the question whether the first is misleading.

4. Mr Goodall’s next submission was that the supply of the first information sheet did not cause the defective paint work. The magistrate’s unchallenged finding is that the accelerated drying process by means of baking did not result in complete curing of the paint work.  It is implicit in that finding that it was undesirable to cut and polish until the paint had completely cured after seven days.  That was the effect of the evidence of Mr Nicmanis, who gave evidence for Topline.  The magistrate found that an information sheet which stated how long after baking it was desirable to allow the paint work to cure might have caused Katopodis to modify his practices.  He had given evidence that he had read the information sheet supplied to him.  It was open to the magistrate to find that Katopodis may have heeded such a direction and acted differently if an information sheet dealing with the process of baking had been supplied.  There is no reason for interfering with the finding that Katopodis may have read and acted upon a more complete information sheet.

5. Finally, Mr Goodall challenged the finding that it was a practice in the crash repair industry to cut and polish paint work shortly after baking.  This submission too must fail.  Evidence to that effect had been given by Katopodis and by an expert called by Ruggieri.  The practice was confirmed by a Mr Prescott, an experienced crash repairer, who was also called by Ruggieri. Although Mr Prescott said that it was the general practice within his company to wait one week after baking before cutting and polishing, he acknowledged the practice in the industry not to wait so long.  Mr Prescott’s reason for waiting for seven days was that it enabled a better durability in the paint.  That evidence does not gainsay the general practice.  It do not think there is any reason for interfering with the finding made by the magistrate.

6. For all of these reasons, the appeal is dismissed.