Ya Welding Pty Ltd v Danmac Pty Ltd

NCAT Consumer and Commercial|2015-11-23

reasons for decision

The matter was listed for hearing at the Tribunal in Liverpool on 23 November 2015. Mr Abdishou, director of the applicant, appeared and gave sworn evidence. Mr Novakovic and Ms Novakovic, directors of the respondent, appeared and gave sworn evidence. Prior to the matter proceeding to hearing, the Tribunal encouraged the parties to resolve the dispute, pursuant to Section 37 of the Civil and Administrative Tribunal Act 2013. The parties were unable to reach agreement, despite the best endeavours of the Tribunal to encourage the parties to resolve the dispute, and the matter proceeded to hearing.
The dispute involves a forklift owned by the applicant, which was repaired by the respondent. The forklift remains in the possession of the respondent, the respondent refusing to release the forklift until monies owed for repairs are paid. The applicant refuses to pay on the basis that the applicant asserts that no quotation was provided before the work was performed, and it did not consent to the price charged by the respondent nor the repair work performed. The applicant asserts that the respondent is claiming an unreasonable amount to repair the forklift. The respondent asserts that the amount claimed is reasonable, and reflects the amount of work performed on the forklift.
The applicant filed proceedings in the Tribunal on 14 September 2015. The applicant seeks an order that it not have to pay the respondent the sum of $8,654.84, in respect of an invoice of the respondent dated 12 August 2015. In respect of both the oral evidence of Mr Abdishou, and the documents that the applicant relied upon, there was reference to the cost of the applicant hiring a forklift from Tara Forklift Services to replace the applicant's forklift which is in the possession of the respondent. The proceedings filed by the applicant does not seek an order for damages, but solely an order that the applicant not have to pay the respondent monies. The application filed with the Tribunal does not seek an order that the applicant not have to pay part of the invoice dated 12 August 2015, but an order not to pay the whole amount. No amended application was filed by the applicant, nor did the applicant seek leave to amend the application at the hearing.

APPLICANT'S DOCUMENTS

The applicant's documents were as follows: 1. A tax invoice of the respondent addressed to the applicant dated 12 August 2015 in the sum of $8,654.84. The tax invoice is in respect of "repairs carried out on your Nissan forklift from 09/07/15 to 11/08/15". The work performed on the forklift is set out in narrative form. The cost of the parts used are identified as $155.98 in respect of "transmission stop leak" and $1,992.06 in respect of "other parts" which are listed and itemised. The invoice of the respondent attached various invoices for the cost of parts. The invoice set out a labour component of $5,720.00 comprising of 71.5 hours at $80.00 per hour; 2. Documents from the respondent entitled "Field Service Reports". The first is dated 9 July 2015 and states that 2 hours was spent by the respondent repairing the tilt of the forklift. The second is undated, but refers to work performed on 23 July 2015 (3.5 hours); 24 July 2015 (2 hours) and 14 July 2015 (1 hour). The third is undated, but refers to work performed on 30 July 2015 (9 hours); 21 July 2015 (8 hours); 22 July 2015 (4.5 hours); 27 July 2015 (8 hours); 28 July 2015 (3 hours); and 29 July 2015 (4.5 hours). The fourth is also undated, but refers to work performed on 30 July 2015 (3.5 hours); 31 July 2015 (3 hours); 10 August 2015 (8.5 hours) and 11 August 2015 (7 hours). The "Field Service Reports set out a description of the work performed; 3. A letter of the respondent dated 20 August 2015. Relevantly, that letter states that the person who performed the work was "Wayne our sub-contractor, who has worked for us for over 10 years". The letter states that work was only performed on the basis of consultation with the applicant, and repairs were only performed "after your verbal approval was received". The letter states that the amount of labour cost is below the amount charged by competitors of the respondent further states: "Please arrange for our forklift to be returned to our workshop and for yours to be picked up once you pay the full amount of the invoice of $8,654.84 which is now overdue". 4. An email from the applicant to the respondent dated 24 August 2015. The email states that the applicant did not authorise work performed "after 6 August 2015"; that the applicant expected the forklift to be repaired by the "second week of July" and that the applicant "continued calling your workshop"; and "If we told (sic) the cost of repairing a 20 year old forklift will be $8,654.84 and more than 5 weeks, we could rather pay a slight more (sic) and buy one with (sic) good condition". The email makes an offer to pay for the cost of parts and 18.5 hours of labour at the cost of $65.00 per hour; 5. An email from the applicant to the respondent dated 8 October 2015 denying that the applicant had a "hire agreement" to pay for the cost of the forklift that the respondent provided to the applicant while the applicant's forklift was being repaired; 6. An email from the respondent to the applicant dated 8 October 2015 stating that the applicant "organised the collection of our forklift and drop off of your own forklift for repairs" and demanding that the applicant return the respondent's forklift; pay the invoice dated 12 August 2015; and collect its forklift; 7. A quotation of Powerlift Material Handling dated 4 November 2014 to "Supply and fit new brakes and wheel cylinders and new seals, new adjuster and new hub seal and new brake cables on a Nissan forklift model GRGH02F35U in the sum of $1,662.62; 8. Various invoices of Tara Forklift Services in respect of the hire of a Komatsu T573 forklift by the applicant.

APPLICANT'S ORAL EVIDENCE

The evidence of Mr Abdishou can be summarised as follows:
The applicant is the owner of a Nissan forklift, and had owned the forklift for a number of years. The applicant and the respondent had a long relationship over a number of years, with the respondent repairing forklifts of the applicant.
In July 2015, the forklift developed a problem with the operation of the fork. Mr Abdishou telephoned the respondent, who sent a mechanic to the applicant's premises. The mechanic attended on 9 July 2015. Mr Abdishou signed the 'job authorisation' section of the Field Service Report he was presented by the mechanic. Mr Abdishou stated the mechanic attended for "half an hour" but the Field Service Report states that the mechanic (D Brown) attended for 2 hours, and repaired the tilt mechanism of the forklift. The mechanic stated the problem was fixed.
Soon after 9 July 2015, Mr Abdishou noticed the forklift was leaking oil. He telephoned Mr Novakovic of the respondent. Mr Novakovic said the oil would clear up. After a few days, the oil had not cleared up. Mr Abdishou telephoned Mr Novakovic who asked the applicant to bring the forklift to the respondent's premises to be inspected;
The forklift was taken to the premises of the respondent. This occurred on or about 14 July 2015. There was a discussion between Mr Abdishou and Mr Novakovic. Mr Abdishou stated that there were problems with the brakes and wheels of the forklift, in addition to the oil leak. Mr Abdishou stated that Mr Novakovic stated that he believed the cost to repair the brakes and wheels would be approximately $3,000.00 and the repairs would take 1 week. The respondent provided a forklift to the applicant whilst the repairs were being conducted.
Approximately 1 week later, Mr Novakovic telephoned Mr Abdishou. According to Mr Abdishou, Mr Novakovic stated that inspection of the forklift had revealed problems with hydraulic hoses in the engine, and the engine would need to be removed. Mr Abdishou stated that he went to the respondent's premises to collect the forklift. The forklift had broken bolts on the chassis. There was an argument between Mr Abdishou and Mr Novakovic regarding how the bolts had been broken. Mr Abdishou stated that he instructed the respondent to repair the chassis bolts, and made clear that he was prepared to pay $3,500.00 for the cost of repairing the forklift. Mr Abdishou stated that he told Mr Novakovic that his business could afford to pay $2,000.00 when the forklift was repaired, and $1,500.00 1 week later. Mr Abdishou stated that Mr Novakovic agreed to do the repairs for that sum.
Between late July 2015 and early August 2015, Mr Abdishou stated that he repeatedly called the respondent regarding when the repair would be completed, but was told there was a delay in respect of parts. In early August 2015 he attended the respondent's premises. He was told the repairs had been completed, but the total cost of repairs was $8,654.84. Mr Abdishou refused to pay, stating that he had not approved the repairs and had not been informed of the cost. The respondent refused to release the forklift until it was paid for the work.
On 13 October 2015, the applicant returned the forklift provided by the respondent, and has been renting a forklift from Tara Forklift Services.

RESPONDENT'S DOCUMENTS

The respondent's documents were as follows: 1. A chronology of events and written summary of its position dated 9 November 2015; 2. A list of the work performed on the applicant's forklift; the amount of labour hours and the cost of parts; 3. The tax invoice of the respondent dated 12 August 2015; 4. A statutory declaration of Mr Wayne Cox dated 5 November 2015. Mr Cox relevantly states as follows: "I worked on Ya Welding's Nissan forklift Serial Number 000107 in July and August 2015 on the following dates: 20/07/15, 21/07/15, 22/07/15, 29/07/15, 30/07/15, 31/07/15, 10/08/15 and 11/08/15. I spent a total of 59 hours working on this forklift. I documented my work in job cards number 07854 and 07855 and have invoiced Danmac Forklifts for the time spent on the job. I sub contract to Danmac Forklifts and have over 40 years' experience fixing forklifts". 5. A statutory declaration of Mr Donald Brown. Mr Brown relevantly states: "I worked on Ya Welding's Nissan forklift serial number 000107 on the following dates: 09/07/15; 14/07/15; 23/07/15; and 11/08/15 for a total of 12 hours. I documented my works in the Service reports number 07774 and 07779". 6. The invoices for parts that were attached to the tax invoice of the respondent dated 12 August 2015, and sent to the applicant; 7. A quotation of Tara Forklift Services dated 10 November 2014 addressed to the applicant in the sum of $2,527.08 for the cost of "overhaul brakes" of the applicant's Nissan forklift; 8. Field Service Report Job Numbers 07786 and 07799 signed by "D Brown"; 9. Various emails between the parties regarding attempts to resolve the dispute; 10. Telephone records of the respondent. According to the respondent, such records demonstrated that Mr Novakovic telephoned Mr Abdishou on 17 July 2015 (twice) and 24 July 2015; 11. An unsigned statement from Mr Novakovic setting out in summary form the events in issue. Mr Novakovic elaborated upon this statement in oral evidence to the Tribunal.

RESPONDENT'S ORAL EVIDENCE

The evidence of Mr Novakovic can be summarised as follows:
No written quotation was provided to the applicant. The respondent has been in business for many years, and only provides written quotations when requested by the customer. Mr Novakovic stated that he "works on trust" and no customer has ever disputed a bill previously.
On 9 July 2015, Mr Abdishou told Mr Novakovic that the forklift required rebuilt brakes and new tyres and requested such work be performed, as well as a "full service" of the forklift. Mr Abdishou informed Mr Novakovic that his business was having financial problems, and Mr Novakovic agreed to perform the work. According to Mr Novakovic, he initially quoted the applicant a labour cost of $100.00 per hour plus parts, but did not give an estimate of the total cost. Mr Novakovic agreed to reduce the hourly labour cost from $100.00 per hour (the respondent's usual rate) to $80.00 per hour because of the applicant's financial position.
After the brakes were serviced and tyres replaced, further inspection of the forklift revealed the torque converter seal of the transmission was leaking. The tilt cylinders also required a rebuild. Repair of the torque converter seal was a "major repair" requiring the motor to be removed. The engine of the forklift also had a broken Mr Novakovic telephoned Mr Abdishou and told him about the problems with the fork lift, and that repair of the torque converter seal of the transmission was a "very large job" that would require significant time being spent on repairs, but he could not give a precise estimate. Mr Novakovic stated he informed Mr Abdishou of the work that would be required to replace the torque converter seal, including ancillary work.
Mr Abdishou then attended the respondent's premises. He believed the engine chassis bolt had been damaged by the respondent. He did not want the torque converter seal repaired. Mr Novakovic told Mr Abdishou that he could add "stop leak" to the transmission, which may stop the leak, but the only way to properly repair the forklift was to replace the torque converter seal. Mr Abdishou instructed the respondent to see if the "stop leak" would repair the leak from the torque converter seal. After 2 days, it became clear that the "stop leak" did not rectify the oil leaks from the transmission. Mr Novakovic again telephoned Mr Abdishou on or about 24 July 2015. Mr Abdishou instructed Mr Novakovic to replace the torque converter seal and whatever was necessary to repair the forklift. When the respondent issued the applicant with an invoice in the sum of $8,654.84 after completing the work, the applicant refused to pay.
Mr Novakovic denied that he had quoted the applicant the sum of $3,500.00 to do all of the repairs on the forklift, or that he agreed to accept $2,000.00 upon completion of the work and $1,500.00 one week later. He asserted that Mr Abdishou had given oral approval prior to the work being performed, although the respondent had not given an estimate of the likely total cost.

JURISDICTION

Part 6A of the Fair Trading Act 1987 provides for the jurisdiction of the Tribunal in respect of consumer claims, and empowers the Tribunal to make certain orders. The applicant is a "consumer" within the meaning of Section 79D (c) of the Fair Trading Act 1987. The dispute involves a "consumer claim" within the meaning of Section 79E (1) (b) of the Fair Trading Act 1987. The dispute involves an agreement to provide services (the repair of a forklift) and such services were provided in NSW as prescribed in Section 79K of the Fair Trading Act 1987. The proceedings have been brought within the limitation period prescribed under Section 79L of the Fair Trading Act 1987. The Tribunal has jurisdiction in this matter.
The power of the Tribunal to make remedial orders is set out in Part 6A Division 3 of the Fair Trading Act 1987. Relevantly, the powers of the Tribunal include a power under Section 79N (d) of the Fair Trading Act 1987 that monies are not due and payable to a respondent. Pursuant to Section 79U (1) of the Fair Trading Act 1987, the Tribunal must be satisfied that any orders made are fair and equitable to both parties to the claim.
Although Part 6A of the Fair Trading Act 1987 sets out the remedial orders that the Tribunal may make, and the matters to be considered in respect of whether or not to make such orders, the applicant must establish, on the balance of convenience, a cause of action such as breach of contract or breach of a relevant provision of the Australian Consumer Law 2010 ('the ACL', such as unconscionable conduct under Section 21 of the ACL, or misleading or deceptive conduct under Section 18 of the ACL, or breach of a consumer guarantee under Part 3-2 Division 1 of the ACL). Pursuant to Section 28 of the Fair Trading Act 1987, the Australian Consumer Law 2010 is a law of NSW. APPLICABLE LAW
The dispute in this matter involves a repairer's lien, also known as an artificer's lien. A repairer's lien is a type of possessory security, and is a separate cause of action to breach of contract. In Dinmore Meatworks Pty Ltd v Kerr (1962) 108 CLR 628 at 632, the High Court stated: "It is a long established principle that if a chattel be delivered to a man so that he may for reward do work upon it, as for example by repairing or altering it or making something of it, he may, having completed the work retain possession of it until he has been paid for the work".
The principles applicable to the existence of a repairer's lien have been recently discussed by the Victorian Civil and Administrative Tribunal in Fitzgerald v Davis [2015] VCAT 295 (11 March 2015). A repair's lien over a chattel as security for payment in respect of repairs performed is separate to any alleged lien arising from the cost of towing a vehicle to a smash repairer, or the cost of storage of a vehicle (Wong v Maroubra Automotive Refinishers Pty Ltd [2015] NSWSC 222). The elements of a repairer's lien can be summarised as follows: 1. The work must be done at the request of the owner of the goods, or a person with the authority of the owner; 2. The work must repair or improve the goods; 3. The repairer is entitled to the agreed price for the work under the contract, or if the contract does not provide for a price, the fair and reasonable value of the work performed (Bolwell Fiberglass Pty Ltd v Foley [1984] VR 97). If the repairer is not paid, the repairer is entitled to retain the goods as security.

APPLICATION OF LEGAL PRINCIPLES TO FACTS

In this matter, it is clear that there was an agreement between the parties that the respondent perform repair work on the forklift. It is also clear that the respondent has performed repair work. The application filed by the applicant with the Tribunal seeks an order that the applicant not be liable to pay for any repairs to the forklift. Clearly, work has been done and the applicant has, on the applicant's own case, approved some of the repairs (but the parties are diametrically opposed as to whether or not the repair to the torque converter seal was agreed to or not). However, the applicant has failed to: 1. Identify in the application the precise work which the applicant alleges was not performed by consent, and the value of such work; 2. Identify in the application the precise components of the invoice that it alleges it is not liable to pay, and the precise amount it asserts it is not liable to pay (rather than seeking an order that the applicant not have to pay any monies for repairs); 3. Provide any expert evidence disputing the amount in the invoice as the fair and reasonable value of the work performed by the respondent. The applicant's failure to provide such evidence distinguishes this matter from the Tribunal decision in Tasker v GT Automotives [2013] NSWCTTT 303, where the applicant provided independent expert evidence regarding the value of the work performed.
In Tasker v GT Automotives, the applicant paid the full amount of a disputed invoice to a mechanic so that the applicant's vehicle was returned after proceedings had been commenced in the Tribunal, and then continued with the claim against the mechanic on the basis that the mechanic had overcharged the applicant for work performed. There was no written quotation, and the mechanic had not provided a precise oral estimate of the cost of the work. The applicant tendered a report from an expert setting out the fair and reasonable cost of the repairs performed. The Tribunal found that the respondent had overcharged for part of the work, and ordered a partial refund to the applicant.
In the absence of the above, the Tribunal is not satisfied on the balance of probabilities that the applicant has proved a cause of action, either in contract or pursuant to any provision of the Australian Consumer Law 2010, for an order that the applicant not pay the respondent $8,654.84 pursuant to the invoice of the respondent dated 12 August 2015. It is unnecessary to make factual findings regarding the disputed version of events regarding the repair of the torque converter seal, particularly in circumstances where no action has been taken by the respondent in the Local Court to seek payment of the disputed invoice.
For the above reasons, the application is dismissed. G J Sarginson General Member Civil and Administrative Tribunal of New South Wales 4 February 2016 I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 April 2016

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Judgment (7 paragraphs)

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Cases Cited (3)