Tully v Kenny's Holden Spares - [2014] QCATA 92

CITATION:

Tully v Kenny’s Holden Spares [2014] QCATA 92

PARTIES:	Alison Mariee Tully (Appellant)
v
Mario Logiudice (trading as Kenny’s Holden Spares) (Respondent)

APPLICATION NUMBER:

APL027-14

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Dr J R Forbes, Member

DELIVERED ON:

23 April 2014

DELIVERED AT:

Brisbane

ORDERS MADE:

Leave to appeal is refused

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – CONSUMER DISPUTE – where respondent engaged to make certain repairs to appellant’s motor car – whether respondent’s work satisfactory – whether respondent’s mechanical work caused other defects in the subject car – whether respondent liable for cost of repairing other defects – whether causal link established – whether primary decision-maker’s findings involved appellable error – whether leave to appeal should be granted

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 32, s 93, s 142(3)(a)(i)

Fox v Percy (2003) 214 CLR 118
Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611
Robinson v Corr [2011] QCATA 302
Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014
Thompson and Anor v Jedanhay Pty Ltd [2012] QCATA 246

W (an infant), In re [1971] AC 682

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“QCAT Act”).

REASONS FOR DECISION

The present question is whether the respondent (“Mario”) is liable for sundry repairs to a motor car owned by the appellant (“Tully”) after Mario worked on the vehicle in September 2012. Did Mario’s efforts cause the subsequent faults, or did they have other origins?
The Tribunal found that the essential causal link was not established, and from that decision Tully seeks leave[1] to appeal.
[1]Leave is required by QCAT Act s 142(3)(a)(i).
At all material times Tully, a Townsville resident, owned a 1994 model Daihatsu motor car. It needed clutch repairs and a new radiator hose. In or about September 2012 she met Mario, who told her that he had a motor repair business, known as Kenny’s Holden Spares (“Kenny’s”). He gave her a card (Exhibit 1) advertising Kenny’s workshop in Currajong, a Townsville suburb. On or about 17 September 2012, Tully telephoned Mario at that address, and they agreed that he would repair the hose and clutch for $200.
The car was towed to Kenny’s, and about one week later Mario rang Tully and told her that those repairs were complete. She went to Kenny’s, paid him $220, and took delivery of the car. But as she drove it away she noticed it was “shaking”. It was then examined by her uncle and another person, who told her that there were bolts missing from the gearbox, and “nuts and bolts [were] missing everywhere”. There is no evidence that those examiners were qualified motor mechanics.
On 27 September 2012 Tully took the car to Beaurepaires, primarily…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] QCATA 92
Decision Date: 23 April 2014

CaseChat Overview and Summary

In the matter of Tully v Kenny's Holden Spares, the appellant sought to appeal against the decision of the Magistrates Court of Victoria, which dismissed the appellant's claim against the respondent for a refund of repair costs and damages for the alleged unsatisfactory repairs of the appellant's motor car. The appellant engaged the respondent to make certain repairs to the motor car, but subsequently claimed that the respondent's work caused other defects in the car, which resulted in additional costs to repair. The appellant sought to hold the respondent liable for the cost of repairing the other defects, but the primary decision-maker found that there was no causal link established between the respondent's work and the other defects. The appellant appealed against the decision, seeking to challenge the primary decision-maker's findings and the dismissal of the claim.

The legal issues in the appeal were whether the primary decision-maker's findings were involved in an error of law or a significant procedural irregularity, and whether leave to appeal should be granted. The appellant argued that the primary decision-maker erred in finding that there was no causal link established between the respondent's work and the other defects in the car. The appellant also argued that the primary decision-maker failed to consider certain evidence and made findings that were not supported by the evidence. The respondent, on the other hand, argued that the primary decision-maker's findings were correct and that the appeal should be dismissed.

The court held that there was no appellable error in the primary decision-maker's findings. The court found that the primary decision-maker had considered all relevant evidence and had made findings that were supported by the evidence. The court also found that there was no causal link established between the respondent's work and the other defects in the car, and that the appellant's claim was therefore properly dismissed. The court held that the appeal was not meritorious and that leave to appeal should be refused.

Accordingly, leave to appeal was refused, and the decision of the Magistrates Court of Victoria was upheld. The appellant's claim against the respondent was dismissed, and the respondent was not held liable for the cost of repairing the other defects in the car.

Orders

Orders of the court

Leave to appeal is refused

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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