Watson v Carss and Co Pty Ltd t/a Home or Away Mechanical

[2022] QCATA 167

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION

Watson v Carss and Co Pty Ltd t/a Home or Away Mechanical [2022] QCATA 167

PARTIES:

rebecca watson

(applicant)

v

carss & co Pty Ltd t/a Home or Away mechanical

(respondent)

APPLICATION NO:

APL280-21

MATTER TYPE:

Other minor civil dispute matters

DELIVERED ON: 

23 November 2022

HEARING DATE:

8 November 2022

HEARD AT:

Brisbane

DECISION OF:

Dr J R Forbes

ORDER:

The application for leave to appeal is dismissed.

CATCHWORDS:

APPEAL – APPLICATION FOR LEAVE TO APPEAL – consumer and trader dispute – where repairs of motor vehicle required – where agreement not wholly in writing - where terms of contract limited to removal and replacement of diesel particulate filter – whether ambit of agreement should be so defined – whether definition of ambit an appellable question of law or question of fact – where despite delays largely beyond respondent’s control tribunal is satisfied that contract duly performed and claim is dismissed – whether tribunal should have been so satisfied – where functions of primary tribunal and appeal tribunal distinguished

Competition and Consumer Act 2010
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 32

Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Carmichael v National Power Plc [1999] 1 WLR 2042

Coulton v Holcombe (1986) 162 CLR 1

Deane v The City Bank of Sydney (1904) 2 CLR 198

Devries v Australian National Railways Commission (1993) 177 CLR 472

Drew v Bundaberg Regional Council [2011] QCA 359

Felton & Anor v Raine and Horne Real Estate [2011] QCATA 330
Fox v Percy (2003) 214 CLR 118http://

Handbury v Nolan (1977) 13 ALR 339

Hawkins v Clayton (1988) 164 CLR 539

JM v QFG and KG [1998] QCA 228

LemongroveServices Pty Ltd trading as Reimer Winter Williamson Lawyers and Anor v Rilroll Pty Ltd and Ors [2019] NSWCA 174
Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611

QUYD Pty Ltd v Marvass Pty Ltd  [2009] 1 Qd R 41

Robinson v Corr [2011] QCATA 302

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

APPEARANCES & REPRESENTATION

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

Introduction

1. At material times the applicant (‘Watson’) was the registered owner of a 2009 model Ford Focus Diesel motor vehicle (‘the car’) and the respondent (‘Home’) carried on business as a motor repairer at Loganlea, near Brisbane.

2. In December 2020, or thereabouts, Watson found that the car was running badly, and sometimes not at all. On 11 December she took it to Scenic Motors, a Ford dealer at Beaudesert, for diagnosis. The Ford dealer told her that any remedial work should begin by fitting a new DPF.[1] (A DPF, better known as a diesel particulate filter, is an addition to the exhaust, designed to reduce the noxious emissions of a diesel engine.) As Home’s witness Gilford explained: ‘ [A]ll it does is heat up and burn stuff … It’s just a mule … That’s basically all it does.’[2]

   [1]Transcript of hearing 24 September 2021 (‘T’) page 2 line 43; report of Scenic, Beaudesert 12 February 2021.

   [2]T page 3 lines 36-38.

3. None of the various mechanics who dealt with car suggested that replacement of the DPF would resolve Watson’s problem. Scenic advised that it would ‘require further testing on EGR’ (exhaust gas reticulation test).[3]  Home’s workshop was not equipped with EGR testing equipment.[4]

   [3]Scenic report 11 December 2020, quoted in T page 2 line 43. See also evidence of Home, T page 25 line 28.

   [4]T page 9 line 8, page 10 line 31 (Ms Gilford); letter Home to Watson 18 February 2021 paragraph 11.

4. Watson asked the Ford dealer what it would charge to replace the DPF. It quoted $6000.[5] The car itself was worth $5,000-$5500[6]. Understandably, Watson sought a less expensive service, and found Home or Away, who quoted $2,654 (GST not included)[7] to remove and replace the DPF. Home took the car to their workshop on 13 January 2021.

   [5]         T page 3 lines 1-4, page 25 line 31 (tribunal’s findings).

   [6]T page 22 line 41, page 25 line 46.

   [7]T page 6 lines 28, 39.

Completion delayed & primary decision

1. One readily sympathises with Ms Watson in her long wait for repairs, but the causes were largely beyond Home’s control.  There were delays due to slow delivery of a new DPF, which was then found to be affected by rust or scaling due to a third party’s interference or incompetence. Home blames the latter for attaching the replacement DPF to a device that repeatedly overheated it – a process which Home’s workshop ‘doesn’t have the capability to do’[8] and for which it denies responsibility. Eventually Home’s supplier provided another new DPF gratis, whereupon, as the tribunal found, Home’s task was satisfactorily completed.[9] ‘The respondent has now done this … in a way that, in my view, releases him from [liability]’.[10] A software update had yet to be done, but it is common ground that this was a matter for a Ford dealer; Home did not have the appropriate equipment.[11] Watson was repeatedly told that a software update was necessary to complete the repairs.[12]

   [8]T page 9 lines 8-9.

   [9]T page 29 lines 14-15.

   [10]T page 28 line 40 (‘This is a case where the mechanic [Home] has done what they were engaged to do.’

   [11]T page 3 lines 43-44, page 12 line 23, page 23 line 40, page 29 line 17.

   [12]T3 line 43, T 12 line 23, T 19 lines 26, 37, T 23 line 40, T 24 line 36, T S29 line 17. Email Home to QCAT 14 Sept 2021.

   Defining the terms

2. The tribunal’s decision predicates that the entire contract involved in these proceedings is to remove and replace the car’s DPF with a new one. There was a subsequent purchase of a sensor and intercooler, but as the decision implies, that was a separate transaction.[13]

   [13]T 7 lines 10-13: Q: ‘You ended by paying an additional $454 for a sensor and an intercool? A: Yeah.’

3. There is evidence to support that interpretation. It was only after Watson collected the car from Home on 31 January 2021 and drove it away that she discovered the need for a sensor.[14] The invoices for the DPF job, dated 15 January 2021 do not mention the sensor. The separate invoice for the sensor appeared three weeks later, on 8 February 2021. It is not unusual for building work or car repair arrangements to comprise a series of separate contracts, as plans change or unforeseen extras emerge. Watson herself put it this way: ‘[Home] told me my DPF needed replacing which was originally what was quoted’.[15] In fact, a good deal of the effort to resolve Watson’s problem was ‘farmed out’. There were referrals to, or consultations with two Ford dealers, Exhaust Clean Australia[16], and suppliers [17] of DPFs. 

   [14]Email Watson to Home 22 February 2021.

   [15]T page 6 lines 1-2.

   [16]T page 11 line 6.

   [17]T page 8 – 25ff.ee

4. There is nothing unreasonable, let alone ‘glaringly improbable’[18] in the adjudicator’s finding of fact that the original and presently relevant contract was simply to remove the old DPF and install a new one: ‘[A] brand new DPF has been installed in the vehicle, which is exactly what the applicant contracted the respondent for’. … [Home] has now done this … in a way that, in my view, releases him from those obligations.[19]

   [18]Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479.

   [19]T page 29 lines 9-10, 13-15.

   Limits of leave application

5. It is essential to appreciate that an application for leave to appeal is not a re-trial, or an opportunity to second-guess the primary judge’s findings of fact. Instead, it is simply a search for appellable, reasonably arguable errors of law (if any) or findings wholly unsupported by evidence that seriously affected the result.[20]  Questions of fact and credit are the prerogative of a trial judge; ‘that is his function’[21]. It is not an error of law to decide against one party, or to give evidence less weight than that party thinks it should receive. It is not nearly enough for an applicant to express disappointment, or to cherish a subjective feeling that justice has not been done.[22] Reasonable findings of fact by a trial court or tribunal are rarely disturbed on appeal.[23] Where reasonable minds may differ, a decision cannot properly be called erroneous, simply because one conclusion has been preferred to another possible view.[24]

   [20]QUYD Pty Ltd v Marvass Pty Ltd  [2009] 1 Qd R 41; [2008] QCA 257 at [6]; Drew v Bundaberg Regional Council [2011] QCA 359 at [18]; Felton & Anor v Raine and Horne Real Estate [2011] QCATA 330 at [19].

   [21]Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 151; JM v QFG and KG [1998] QCA 228 at p 21 per Pincus JA.

   [22]Robinson v Corr [2011] QCATA 302 at [7].

   [23]Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 151; Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479; Fox v Percy (2003) 214 CLR 118 at 125-126; LemongroveServices Pty Ltd trading as Reimer Winter Williamson Lawyers and Anor v Rilroll Pty Ltd and Ors [2019] NSWCA 174 at [173].

   [24]Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611 at [131]; In Re W (an infant) [1971] AC 682 at 700.

   Ambit of agreement issue of fact

6. The adjudicator’s finding that the relevant contract began and ended with removal and replacement of the faulty DPF was a finding of fact that the adjudicator was entitled to make, and which an appeal tribunal cannot properly remake, even if it were inclined to do so. The construction of a wholly written agreement is a question of law, but where (as here) the agreement was less formal, identification of its terms is a question of fact. as Barwick CJ put it in Handbury v Nolan[25]:

   The matter ... is not to be resolved ... by construction of written documents, but as a matter of fact, i.e. what in substance was the subject matter of the sale and purchase.

   [25](1977) 13 ALR 339 at 341; Hawkins v Clayton(1988) 164 CLR 539 at 570–571; Deane v The City Bank of Sydney (1904) 2 CLR 198 at 209.

7. The English courts agree:

   [T]he rule that the construction of documents is a question of law ... does not apply when the intention of the parties, objectively ascertained, has to be gathered partly from documents but also from oral exchanges and conduct.  In the latter case, the terms of the contract are a question of fact.”[26]

   [26]Carmichael v National Power Plc [1999] 1 WLR 2042 at 2049.

8. Accordingly the adjudicator’s definition of the ambit of the contract is not a matter to be canvassed on an application for leave to appeal.

   Arguable ground shown?

9. The application for leave does not identify any arguable ground of appeal. Watson complains that she was ‘cut off’, but her contributions would collectively fill about three pages of a transcript of twenty-three (title page and a decision of almost five pages deducted), not to mention several pages of closely typed submissions in writing. The adjudicator is entitled, indeed required to moderate relevance, and it is not unusual for one party’s case to raise more questions than the opponent’s. The onus was primarily on Home to state and explain technical matters and legal principles, and in fact its case was subjected to more scrutiny than Watson’s. Space was allocated accordingly. In these circumstances I am not persuaded that Watson was unfairly or discourteously treated.

10. The only other suggested ground of appeal is that the appellant felt unwell at the time of the trial and did not realise that she could seek an adjournment. This is not a demonstration of error on the tribunal’s part; besides, she had already experienced an adjournment.[27] Much of the material filed in support of the application for leave is an inadmissible attempt to re-run the trial. It has already been explained that the trial is not a ‘preliminary skirmish’[28] that can now be set aside to reagitate already decided issues of fact, or others more recently conceived.

    [27]30 August 2021.

    [28]Coulton v Holcombe (1986) 162 CLR 1 at 7.

    Conclusion

11. In the absence of any demonstrated or discernible ground of appeal the present application must be dismissed.

ORDER

The application for leave to appeal is dismissed