Webster Ltd v Clark

[1987] TASSC 132

Serial No B62/1987
List "B"

COURT:                 SUPREME COURT OF TASMANIA

CITATION:            Webster Ltd v Clark [1987] TASSC 132; B62/1987

PARTIES:  WEBSTER LTD
  v
  CLARK, John Henry
  CLARK, Beverley Fay

FILE NO/S:  1444/1983
DELIVERED ON:  24 December 1987
JUDGMENT OF:  Wright J

Judgment Number:  B62/1987
Number of paragraphs:  6

Serial No B62/1987
List "B"
File No 1444/1983

WEBSTER LTD v JOHN HENRY CLARK and BEVERLEY FAY CLARK

REASONS FOR JUDGMENT  WRIGHT J

24 December 1987

1. This is a claim by a company carrying on business (inter alia) as a repairer of heavy vehicles. The claim was commenced by Writ dated 31 May 1983 and relates to repairs effected upon the defendants' MAN truck between September and December 1982. It came to trial in November 1987 and unfortunately its staleness leaves me with the clear impression that I have not heard a full and completely accurate story as to the sequence of events which necessitated a number of very expensive repairs to the vehicle over a comparatively short period of time. Mr Robertson, the plaintiff's workshop manager at the time of all relevant transactions, died before the trial and was consequently unavailable to give evidence. The vehicle received attention from the plaintiff's workmen on no less than 6 separate occasions for various mechanical defects. The plaintiff's case is that the problems requiring rectification were caused primarily by the rundown condition of the truck when it was first brought to them for attention and, at least in one important instance, by the difficulty of diagnosing a fault which was ultimately found to have been caused by inadequate and defective repairs to the water pump impeller carried out by a third person on an earlier occasion. The plaintiff says that the male defendant had a reasonably good mechanical knowledge and was able to give specific instructions for the work which he required to be performed on each occasion. The plaintiff also says that the male defendant representing the partnership between himself and his wife, the second defendant, provided some of the parts to be installed and at no time prior to the institution of proceedings did he dispute the partnership's liability to pay for the fair and reasonable cost of labour provided and parts supplied by the plaintiff in carrying out the various repair jobs. Further more, the plaintiff alleges (and this was not disputed) that in February 1983 when the company was pressing for payment of the debt now claimed, the male defendant agreed to pay the same at the rate of $1800 per month without, at that stage, contending that the partnership was not liable or was entitled to a set–off or counterclaim.

1. The defendants allege that the numerous items of work and parts supplied after the performance of the initial repairs on the fuel injection system in September 1982, were necessitated by the plaintiff's faulty workmanship and failure to carry out those repairs with due care and diligence and in a good and workmanlike manner with good and proper materials. However the male defendant clearly resiled from this stance during his evidence and it is obvious that some of the repair jobs were quite unrelated to and were incapable of affecting work carried out previously or subsequently.

1. At the trial there was no real contest as to the reasonableness of the charges actually made by the plaintiff for labour and parts and I am quite satisfied on the evidence that the work charged for was done and the parts charged for were supplied. I am also satisfied that these charges were fair and reasonable and in accordance with similar charges being made for the same type of service by other establishments at the relevant times. I am also satisfied that the plaintiff's claim for interest on the overdue account is in accordance with the credit arrangements made by the parties in December 1981.

1. The plaintiff's principal witness was Mr Hans Kremer who at all relevant times was foreman in the plaintiff's workshop and had a general supervisory role in respect of the work done on the defendants' truck. He was at times prone to rationalize his answers and in some instances his evidence in chief was demonstrated to be incorrect or unreliable by cross examination. Nonetheless, and despite the close scrutiny of his testimony necessitated by such shortcomings, I am satisfied that generally speaking his evidence can and should be accepted as to the sequence of events, the repairs performed and the explanations and opinions ventured by him as to pertinent matters relating to repairs to the truck on each occasion. There is one component of the claim, however, which causes me some concern and that is the claim comprised in paragraphs 15 to 17 of the Amended Statement of Claim dated 1 July 1987. The Job Card for this job is headed "Workshop Faults – Acc J Clark" and there is a note upon it "Not charged". Mr Kremer had only a vague recollection of this item but did remember that no labour charge was made in respect of this particular job. Its exact nature was unexplained but the documentary evidence coupled with Mr Kremer's evidence strongly suggests to me that this part of the plaintiff's claim does indeed consist of materials supplied for the purpose of rectifying faulty workmanship by the plaintiff and for this reason I propose to disallow the item.

1. The only defence witness called was the male defendant himself. He had no written records of his own to support his case and conceded that he had never complained to Mr Kremer that the work which Websters had performed on the truck was valueless or brought about by the previous poor workmanship of the plaintiff's employees. The faulty workmanship relied upon was not particularized in the pleadings or at any stage prior to trial and even at the end of the case it is difficult to understand the exact nature and extent of the defendants' allegations in this respect. No expert witness was called by the defence. The counterclaim based upon loss of earnings occasioned to the defendants whilst the vehicle was being repaired was formally abandoned. The male defendant did not strike me as a dishonest witness but he seemed to me to be unreliable and to have a patchy and selective memory. He was inclined to introduce matters both in evidence–in–chief and under cross examination which had not been put to Mr Kremer and which so far as I could tell had not previously been in issue. At all events the whole of the evidence has left me completely unpersuaded that the repairs carried out by the plaintiff were unnecessary or were done without proper care and skill on the part of the plaintiff's workmen. I find that the defendants requested the plaintiff to carry out the various jobs referred to in the Statement of Claim. I find that it was an implied term of each agreement (with the exception of that comprised in paragraphs 15 to 17) that the plaintiff would charge fair and reasonable prices for labour and materials and that the defendant would pay these charges together with interest if the terms of credit were exceeded. I also find that it was an implied term that the plaintiff would use due care and skill in the performance of the work. If the defendants are to resist the plaintiff's claim, it seems to me that they must establish that the plaintiff's lack of care and skill resulted in an unnecessary escalation of the claim or that the work done was valueless. The defendants have simply not proved a breach of this implied term in respect of any of the work performed by the plaintiff and, in my opinion, their defence fails except as to the sum of $151.47 claimed in paragraph 17 of the Statement of Claim.

1. There will be judgment for the plaintiff for $13,684.49, plus simple interest at 17% per annum from 1/1/1983 to 24/12/1987, amounting to $11,587.07, a total of $25,271.56