Surf Coast Smash Master Pty Ltd ACN: 162 103 675 t/as Melbourne Collision Repair Centre Collingwood

Surf Coast Smash Master Pty Ltd v Owens (Civil Claims) [2025] VCAT 474

1. Proceedings C6899/2020 and C755/2021 were heard and determined together.
2. In proceeding C755/2021, the Tribunal determined that the proceedings against Georgia Macdougall are dismissed. Sue Owens must pay Surf Coast Smash Master Pty Ltd ACN: 162 103 675 t/as Melbourne Collision Repair Centre Collingwood the sum of $8,050.00.

1. By a separate Order made today in proceeding C6899/2020, that proceeding is dismissed.

1. The proceeding against Georgia Macdougall is dismissed.
2. Sue Owens must pay Surf Coast Smash Master Pty Ltd ACN: 162 103 675 t/as Melbourne Collision Repair Centre Collingwood the sum of $8,050.00.
3. No order is made for reimbursement of the Application fee.

1. Proceedings C6899/2020 and C755/2021 were heard and determined together as they were based on the same factual situation.
2. Sue Owens is the mother of Georgia Macdougall. Ms Owens was involved in a motor vehicle accident while driving Ms Macdougall's car.
3. The towing company advised Ms Owens that the car was a "financial write off", by which it meant that the cost of repairing it was not justified when compared to the value of the car. Ms Owens had the car assessed by Melbourne Collision Repair Centre ("MCRCC")[1] which quoted a price of between $10,000-$12,000 to repair the car. Ms Owens paid a $2,000 deposit and, shortly after, signed an authority for MCRCC to repair the car. The final invoice issued by MCRCC was $13,970.00 including GST. I am satisfied that MCRCC's quote was for $10,000-$12,000 including GST, and that on no view is MCRCC entitled to add GST to the amount it claims.
4. Ms Owens did not agree with the amount invoiced nor some of the charges and wanted to have the car assessed by an assessor or an alternative repairer. MCRCC agreed so long as the car remained with them. Ms Owens did not accept this and subsequently she stopped payments until the dispute was resolved. MCRCC refused to return the car and asserted a repairers lien upon it.
5. Ms Macdougall was angry at MCRCC's decision; she claims that at no time did she: i) consent to MCRCC dealing with her motor vehicle; ii) agree to the value of the repairs; iii) agree to the repairs being done; or iv) agree to the removal of the car to MCRCC's premises.
6. Further, Ms Macdougall states that as Ms Owens had no authority to have the car either assessed or repaired, MCRCC acted unconscionably in their dealings, taking advantage of Ms Owens. Ms Macdougall sought the return of her car[2] along with $6,000 compensation for MCRCC's unconscionable retention of it.
7. In proceeding C6899/2020 MCRCC counterclaimed for payment of $9,470.00, against Ms Owens and Ms Macdougall jointly or severally. It calculated the claim as $13,970.00 less a part payment of $4,500.00.
8. The main issues that arise for determination in these proceedings are:

a) Was there a contractual relationship between all of the parties? If so, was MCRCC entitled to retain the car until they had received payment? > > b) Did MCRCC provide their services with due care, skill and within the timeline provided? If no timeline, was the service provided within a reasonable time? > > c) To what relief, if any, is MCRCC entitled as against Ms Owens? > > d) To what relief, if any, is Ms Macdougall entitled as against MCRCC?

9. For the following reasons I concluded that there was a relationship of principal and gent between Ms Macdougall and Ms Owens whereby Ms Owens was authorised to have Ms Macdougall's car repaired by MCRCC, at Ms Owens' expense and on that basis Ms Owens was the contracting party regarding having the car repaired by MCRCC.
10. MCRCC's claim in C755/2021 against Ms Macdougall must be dismissed. As against Ms Owens, MCRCC is entitled to be paid the balance of its invoice less the cost of towing.
11. Proceeding C6899/2020 is dismissed.

1. The dates of the following events were disputed in the hearing. In proceeding C6899/2020 the Application and original and amended versions of the Points of Claim did not disclose the correct timelines. The parties' evidence at the hearing was disputed. All dates that follow, if discussed, are the dates I have accepted as factual based upon the documented evidence, email times and dates provided through correspondence between the parties and dates agreed throughout the hearing by the parties, and the parties' oral evidence. The timelines are important.
2. Ms Owens was involved in a motor vehicle accident on 12 June 2020. Police attended, the car was towed, and Ms Owens was left shocked and upset. The car belonged to her daughter, Ms Macdougall; the insurance had lapsed, and Ms Owens says that she felt responsible for the damage and "needed to do something".
3. The following day, or the day after, Ms Owens called the towing company who advised her that the car was a financial write off.
4. Ms Owens disagreed with their assessment. She felt the car, damaged only on the left hand side, may be repairable at a reasonable price. So, on around or 15 June 2020 she contacted MCRCC seeking their advice and assistance.
5. David Diecke, Managing Director of MCRCC answered Ms Owens' call. She explained her situation requesting assistance. Mr Diecke agreed that the car may be repairable.
6. MCRCC organised for the car to be towed to their Service Centre in Eltham. The car was towed on 15 June 2020.
7. Within days, a vehicle of the same make, model and colour with similar damage to the right hand side was located and available to use for parts. Mr Diecke informed Ms Owens of this and provided his professional opinion.
8. MCRCC's professional assessment was that the car was worth repairing and Mr Diecke provided Ms Owens a verbal quote of between $10,000-$12,000, MCRCC valued similar cars, once repaired, at $22,000 in the private market.
9. Ms Owens accepted the repair quote and consented to the repair. The 'donor car' was obtained by MCRCC on or about 18 June 2020 and repair work commenced on 20 June 2020.
10. Although Ms Owens considered the price reasonable, she contends that, at this time, she had informed MCRCC that she could not afford to pay that price and would need a bank loan. She contends MCRCC agreed to a payment plan.[3] Ms Owens paid a deposit of $2,000 on 22 June 2020.
11. On 25 June 2020 at 5:13 pm, Ms Owens called MCRCC, requesting an email copy of the payment plan.
12. On 26 June 2020, Ms Owens emailed the signed and dated authority to repair to MCRCC.
13. Ms McDougall, the owner of the car, contends that Ms Owens had the vehicle towed to MCRCC without her authority, and that, at or about this time, Ms McDougall requested Ms Owens to inform MCRCC that she had not been authorised to have the repairs carried out, and that Ms Owens was to arrange for the vehicle to be towed to Ms McDougall's residence for storage until Ms McDougall had time to consider what to do.
14. Ms McDougall contends that MCRCC were being manipulative with Ms Owens, who was upset at causing the damage, and was only on a pension and being treated for a major illness. Ms McDougall's evidence implied that she was suggesting that MCRCC, during a COVID lockdown, were having problems obtaining work and were taking advantage of Ms Owens' situation.
15. Ms Owens contends that she complied with Ms McDougall's request and requested MCRCC return the car, on Ms McDougall's behalf, but MCRCC informed her they had already commenced working on the repairs.
16. MCRCC dispute this version of events, and said that Ms Owens did not make this request until late July or early August 2020.[4]
17. Ms Owens and Ms McDougall accepted that they had little practical choice, at that time, other than to continue with repairs. They felt they could not get the car back.
18. When repairs had been completed the invoice totalled $13,970 which was more than what Ms Owens was quoted. The invoice consisted of:

1. There was a delay in Ms Owens receiving the invoice. Ms Owens and Ms Macdougall had moved residences and had made enquiries about the invoice.
2. On receipt, Ms Owens did not agree with the invoice. Contending that there was no discussion about GST, she emailed MCRCC requesting an explanation. She also requested photos of the current condition of the car, because she was concerned that it had not been repaired at all, although Mr Diecke had informed her it was.
3. Ms Owens also requested to have the car reassessed by an assessor friend who could advise on the invoice and the quality of the repairs. This was acceptable by MCRCC who were standing by their work. They agreed to the proposal so long as it took place in their workshop.
4. Ms Owens found this condition to be unacceptable and informed MCRCC that until the bill had been reviewed, she would stop paying under her payment plan.
5. Ms Owens made no further payments under her payment plan after 30 September 2020.
6. MCRCC asserted a repairers' lien on the car and refused to return the car until they had received full payment.
7. Ms McDougall sought the return of her car which she contends was provided to MCRCC by Ms Owens without authorisation and had been unfairly and unconscionably retained. Ms McDougall also seeks compensation for the wrongful, unconscionable retention of the car.

1. From the evidence submitted by the parties and provided at the hearing I was satisfied that there was an agency relationship between Ms Owens as agent and Ms McDougall as principal.
2. There are generally no formalities required for the creation of an agency. In this situation there was, if not an express agreement, an implied agreement whereby Ms Owens consented to act for Ms McDougall as principal.[5]
3. I reach this conclusion because it was in late August 2020 when Ms Owens first asserted to MCRCC that Ms McDougall was the true owner of the car. This was well after Ms Owens had attempted to obtain a reduction in MCRCC's invoiced price by making a complaint that the invoice was not a proper 'detailed' invoice, and requesting her 'assessor friend' reassess the bill, the quality of repair, and cost, seeking a more favourable outcome. Ms Owens also threatened to withhold payments if this was not complied with. MCRCC were prepared to allow this but only if it took place within their premises. They were not prepared to release the car without payment. Ms Owens did not agree to this.
4. By the time Ms Owens had made her complaint, she had disregarded the original towing company's assessment that the car was a write off; sought a favourable repair option, measured MCRCC's statement that they may be able to repair if located a donor car; awaited the finding of a suitable 'donor' car; accepted MCRCC's quote; negotiated a payment plan and paid a deposit.
5. Repairs commenced on 18 June 2020, with the purchase of the donor car, immediately after Ms Owens had orally acepted MCRCC's quote. That this was four days before Ms Owens signed and returned the written authority to repair on 26 June 2020, is irelevant.
6. Throughout the process of having the car repaired Ms Owens had shown, at all times, that she accepted responsibility for the damage to the car.
7. On the above factual basis, I consider the argument put forward by Ms Macdougall, that Ms Owens had "no authority" to be fallacious, implausible and unacceptable. I find that Ms Macdougall had authorised Ms Owens to repair the car and to pay for it herself. The logic underlying this unexceptional arrangement between mother amd daughter was that because Ms Owens damaged the car, she should pay for the repair but was entitled to seek to do so at the lowest acceptable cost.
8. As Ms Macdougall authorised Ms Owens to repair the car at her own cost, I must conclude that Ms Owens is the sole contracting party with MCRCC for the car repairs.
9. Further, as I find that there is an enforceable contract between Ms Owens and MCRCC they, MCRCC, are entitled to exercise their right as a repairer to exercise a lien upon the car as Ms Owens refused to pay the balance owing. Because Ms Macdougall's financier had a greater title to the car than did she, financier entitled to allow that financier to repossess the car when Ms Macdougall failed to make payments under her loan contract. MCRCC was not obliged to issue legal proceedings, for example, seeking to prevent the financier from exercising its rights.

Were the repairs completed with due care, skill and within a reasonable time?

1. I was not satisfied on the evidence submitted by Ms Macdougall or Ms Owens that MCRCC had failed to provide their services with due care and skill.
2. The invoice had been received in July, David Diecke had informed Ms Owens via telephone in mid-July that the car was ready, although not painted[6] causing Ms Owens to suspect the repairs had not been done. By mid-August Ms Owens and Ms Macdougall had continued to question whether the repairs had been done at all; attempted to obtain updated photographs and to have the repairs assessed so they could pay a reasonable price.
3. The documentary evidence indicates that by the time these requests and refusals were made the vehicle had been repaired.
4. The only reason for MCRCC not returning the car was the non payment of the outstanding amount, which is entireky understandable given that MCRCC had a lien.
5. I am satisfied that the repairs were completed within a reasonable time and that MCRCC provided their service with due care and skill.

What is MCRCC entitled to as against Ms Owens?

1. There was some contention as to what the outstanding balance was in respect of the Invoice.
2. MCRCC's record of account showed that Ms Owens had paid $4,500 towards the debt. On each occasion Ms Owens had requested a receipt, a receipt was provided.
3. Ms Owens argued there should be no GST payable as it was not discussed, and also that the payments were made to a "private account" owned by Mr Dieke's wife, suggesting it was to avoid GST. Ms Owens further argued that Mr Dieke had agreed to pay the towing costs between Repair centres. Mr Dieke also mentioned there was an agreement to pay initial towing costs.
4. I was satisfied that Mr Dieke had agreed to pay MCRCC's initial Towing cost at the commencement of negotiations and that Ms Owens had agreed to that.
5. The invoice indicates the original towing to MCRCC amounted to $150.00. I am unable to conclude that the negotiations included the original towing company's towing and storage costs which were paid by MCRCC.
6. The payment plan provided to Ms Owens, on 25 June 2020, indicates that after paying the deposit she was to pay her weekly payments to David Dieke's wife's account. Sue did not make weekly payments: her payments did not commence until 22 July 2020, when advised the car was ready.
7. MCRCC denied that the payments were to go to a private account. Their formal invoice of 22 June 2020 provided to Ms Owens on 23 July 2020 provided details of their Collingwood repair centre's bank account. They stated that the money was paid into their Collingwood account.
8. There were several emails between the parties that show that private account details were provided to Ms Owens, including the payment schedule which had the account clearly marked as the account for funds to be paid into, and another email from Ms Owens requesting the details again. These private account details were, once again, provided to her.
9. The record of payments received, provided at the hearing by MCRCC, indicate the dates payments were made and the amounts received on those dates. This included the $2,000 deposit.
10. The record of payments received from Ms Owens provided to the Tribunal was a brief summary of receipt under a boxed heading labelled:

1. The remainder of the record, under a sub-heading Payments, listed the seven dates payments were made and the amounts received. Also, written in red pen, on that copy provided to the Tribunal was "bal $9470.00".
2. As a registered business boasting several car repair centres MCRCC should take better care in maintaining their records of payments and provision of customer statements. The document presented did not resemble, in any shape or form, an MCRCC customer statement of account.
3. The payment statement did not even indicate what it was in reference to, other than the number 458 which I took to indicate the Tax Invoice number.
4. There was no indication it was an MCRCC document; no letterhead or an indication of which account the payments were made to, or on whose account they were allocated to, other than a centred heading "Private".
5. There was no official MCRCC statement showing the payments were paid to the Collingwood account.
6. Accordingly, I was not satisfied the payments made were going to MCRCC's official account. The official invoice detailing the business account details did not list the deposit of $2,000 made by Sue, on the same date as that invoice. Had it been listed this would have been at least an indication that the business had received the benefit. It failed to do so.
7. I am open to find that the evidence concludes Ms Owens made her payments to a private account provided to her by MCRCC and there is insufficient proof that MCRCC would pay GST upon full payment of the invoice. However, referring back to footnote 1, the alternative possibility is that Ms Owens was directed to pay money into the Collingwood business site to facilitate some adjustment of money between different parts of MCRCC's enterprise. GST is required to be stated on invoices, not on receipts. On balance I consider MCRCC's presentation of its record of payments to be irrelevant to the question of whether Ms Owens owes MCRCC money, but that it has unnecessarily caused confusion to Ms Owens.
8. Ms Macdougall submitted that she had paid MCRCC $5,000 to the private account as directed by Mr Dieke, which she contends was not recorded by MCRCC as being received.
9. MCRCC deny any such conversation or email occurred to support that contention. They did not receive any funds beyond their account records ($4,500).
10. When I asked Ms Macdougall whether she could provide confirmation or proof of payment to support her contention, she answered that she had no documentary evidence, no dates of payments, nor receipts as to amount of money paid.
11. Ms Macdougall submitted that it was during the Covid period, she had misplaced or lost her records and bank statements, that it was a long time ago and she was unable to obtain copies.
12. As Ms Macdougall was unable to verify her contention, and as it was inherently implausible and inconsistent with the tenor of Ms Owens' evidence, I did not accept that a further $5,000 had been paid towards the account outstanding.
13. Of the outstanding balance owing pursuant to the invoice after deduction of the payments received, removal of MCRCC's initial towing costs and removal of the GST amount, I find that Sue Owens must pay MCRCC the sum of $8,050.

1. From the evidence submitted by the parties and provided at the hearing I was satisfied, on a balance of probabilities, that there was an agency agreement as between Ms Owens and Ms Macdougall under which Ms Owens was authorised to have Ms Macdougall's car repaired at Ms Owens' expense.
2. As Ms Owens had, at all times, accepted responsibility for the damage to the car it is logical, and I conclude, that Ms Macdougall authorised Ms Owens to have the car repaired and to pay for it herself.
3. As Ms Macdougall authorised Ms Owens to have the car repaired at her own cost, and as Ms Owens did not say anything to MCRCC to the effect that she was not contracting with MCRCC as its customer, I find that there is an enforceable contract between Ms Owens and MCRCC for the car repairs and that MCRCC gained a repairer's lien upon the car which was in force for as long as MCRCC was owed money, or until MCRCC waived its rights under that lien. In the event, MCRCC waived its lien when Ms Macdougall's financier exercised its right of repossession as a secured creditor.
4. As Ms Owens was the sole contracting party with MCRCC for the car repairs, its proceeding against Ms Macdougall must be dismissed.
5. MCRCC is entitled to be paid for the balance of its invoice less the cost of towing and all associated GST.
6. Ms Owens must pay to MCRCC the sum of $8,050.00.
7. Having considered sections 115B(1) - (3) and 115C(3)(b) of the Victorian Civil and Administrative Tribunal Act 1998, I determine that no order is to be made for reimbursement of MCRCC's Application fee. Seen in the context of the issues in dispute as a whole, I do not consider that MCRCC has "substantially" succeeded in the proceeding, and the way in which it expressed the record of payments which I discussed in paragraph 60 is an aspect of MCRCC's "conduct" which weighs against it under sections 115B(3)(b) and 115C(3)(b).
8. Having found that Ms Macdougall authorised Ms Owens to have the car repaired at Ms Owens' cost, Ms Macdougall is not a party to the contract with MCRCC and does not have standing to bring an action against MCRCC. Proceeding C6899/2020 is therefore dismissed.

[1] Surf Coast Smash Master Pty Ltd t/as Melbourne Collision Repair Centre Collingwood is one of a number of suburban sites of SCSM including Elwood where the vehicle was taken. A reference to MCRCC throughout these reasons is in reference to the Applicant in the proceeding.

[2] The car owned by Georgia was under a finance contract and was subsequently repossessed by the lender pursuant to their loan agreement with Georgia, whilst in the possession of MCRCC. MCRCC did not object to the removal of their Personal Property Security Registration in that proceeding.

[3] MCRCC dispute this date, their account of events placed the payment plan in August which coincides with the car being repaired and the reqirement of final payments. The documentary evidence provides a recorded telephone conversation of 25 June 2020 requesting a copy of the payment plan and an email of said plan outlining payment dates was provided, supporting Sue Owens contention.

[4] The documentary evidence supports MCRCC's contention that the request was made in August when Sue first mentioned that Georgia was the owner of the car.

[5] Coles v Trecothick [1804] EngR 86; (1804) 32 ER 592 [High Court of Chancery].

[6] Call confirmed by Sue's email of 23 July, although the car still needed to be painted which David Dieke did not disclose, according to Sue's email, in that conversation.