VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
civil DIVISION
CIVIL CLAIMS LIST		VCAT REFERENCE NO. C3227/2020
CATCHWORDS	
Car panel repair and painting — what standard of work was required — whether defects in surface were the result of paint thickness from pre-existing paint. 	

APPLICANT	Brent Linley	
RESPONDENT	Revamp Refinishing Pty Ltd ACN:058 367 801	
WHERE HELD	Melbourne	
BEFORE	Senior Member A. Vassie	
HEARING TYPE	Hearing	
DATE OF HEARING	22 March 2022	
DATE OF ORDER	12 May 2022	
DATE OF REASONS	12 May 2022	
CITATION	Linley v Revamp Refinishing Pty Ltd (Civil Claims) [2022] VCAT 524	

Order
1.	The proceeding is dismissed. 

A. Vassie 
Senior Member			

APPEARANCES:		
For Applicant	In person	
For Respondents	Mr C. Ross, director	

Reasons
1	The applicant, Brent Linley, is the owner of a 1966 Ford Mustang car. In August 2018 he took the car to the workshop of the respondent, Revamp Refinishing Pty Ltd (“Revamp”), with a view to having impact damage to the car’s front left side and bonnet repaired and having the car painted once the panel repairs had been done. After showing some initial reluctance to accept the job, Revamp agreed to do panel repair and painting for a price of $10,000.00. Mr Linley agreed to the price and left his car with Revamp, which proceeded to do the work. Mr Linley is dissatisfied with the outcome and has claimed in this proceeding $14,366.00 as the cost of having another panel beater rectify defects in the work. 
2	Mr Linley paid a total of $11,000.00 to Revamp. The additional $1,000.00 was for sanding and painting of door jambs and underneath the bonnet. There is no complaint about that work. The complaint is about the work that Revamp agreed to do for $10,000.00 and did. 
3	The hearing of the proceeding took place on 22 March 2022 by video conference. Mr Linley and his father Denis Linley gave evidence and Mr Linley relied upon a quotation for $14,366.00, the written opinion of a loss assessor and photographs of the car that he taken and had delivered to VCAT. For Revamp, its director Christopher Ross and a loss assessor Branko Ivkovic gave evidence, Mr Ross by telephone only. Revamp also relied upon a statutory declaration by Graham Szentesi, the manager of Revamp at all material times but no longer employed by it. I reserved my decision. 
4	The outcome of the proceeding depends upon the answer to two questions. First, was Revamp’s work done to the standard to which the agreement between the parties pointed? Secondly, are blemishes in the appearance of the painted exterior of the car the result of Revamp’s work not having been done to the necessary standard, or are they explained by the underlying condition of the paint on the car before Revamp painted it? I am answering both those questions in a way that favours Revamp and so I am dismissing the proceeding. 
5	Mr Linley began his evidence by saying simply that in August 2018 Revamp had given him an oral quotation of $10,000.00 for panel beating and painting, he had accepted the quotation, and he had left his car with Revamp for the work to be done. The evidence of Mr Ross and of Mr Szentesi about the agreement between Mr Linley and Revamp was more detailed. Mr Ross had filed and served a statutory declaration on 2 August 2021 which he verified during the hearing and then enlarged upon. Mr Szentesi’s evidence was by statutory declaration only, dated also 2 August 2021 and also filed and served. Their evidence was consistent. I have borne in mind that Mr Szentesi’s evidence has not been tested during the hearing, but Mr Ross’s evidence has been. 
6	Mr Ross’s statutory declaration, verified in the course of his oral evidence, began. 
Brent Linley was referred to Revamp Refinishing for repairs to the front left side of his mustang by Craig Murphy of Moorabbin Mechanical.
Brent's mustang had major damage to the left side and front of his car consistent with a motor vehicle impact, Brent was requesting repairs and paintwork to the front & left side of his car. This area of work constituted approximately $6000.00.
The paintwork on the mustang was very poor and I suggested it would be very difficult to match the colour and repairs on the front would be very obvious. Brent agreed and we discussed giving the rest of the car a "quick" coat of paint so the colour would be consistent. This area of work constituted
$4000.00.
At no stage was there a suggestion of a bare metal respray and a warranty for the paint work could not be given because of the extremely poor & weathered condition of the current paintwork.
Brent was aware of this and had previously received a quote from Bridge rd Body Works for a "bare metal respray starting at approximately $20,000.
He then consulted Mr Szentesi, Revamp’s manager, about Mr Linley’s request that there be a coat of paint to achieve consistency of colour after the panel repairs. 
7	Mr Szentesi began his statutory declaration by describing his qualifications and experience: 
At the time of the Ford Mustang being quoted and booked in I was the manager of Revamp Refinishing PTY LTD. I've been the manager since 2016. Before that I was the Leading spray painter in the same company. Previously to being employed at Revamp, I have been lead spray painter at three other panel shops including Mercedes Benz Toorak. So over 20 years in the spray painting industry, I have been trained in all fields of the job.
He went on to say — although he did not say whether he told Mr Linley so — that he was reluctant to undertake the job, because there was no way of knowing what was beneath the existing paint, and that the right way to paint a 50-year-old car was to have all panels taken back to bare metal and then to paint: a task that would cost upwards of $40,000.00. Mr Ross said that Mr Szentesi, in his presence, told Mr Linley that to do a proper job a stripping down to bare metal was required. Each of them said that Mr Linley stated that he was not interested in a complete restoration of the car and that all he wanted was a quotation for the cost of fixing the damage and giving the exterior a sanding and a coat of paint, and that Mr Ross eventually gave an oral quotation of $10,000.00 for that scope of work. Mr Szentesi in his statutory declaration went on to say (although Mr Ross did not) that when Mr Linley accepted the quotation it was also agreed that rust repair was to be done on the right hand door, that chrome moldings were to be taken off before the painting, and that Mr Linley was to glue the moldings back on himself. 
8	Mr Linley gave evidence a second time after hearing Mr Ross’s oral evidence, in the course of which Mr Ross repeated that the quotation was for $10,000.00 of which $6,000.00 was for repairs and the balance was for painting. The only part of Mr Ross’s evidence described above that Mr Linley challenged was the division of the quotation into $6,000.00 for repairs and $4,000.00 for painting; Mr Linley said that only one undivided figure of $10,000.00 was mentioned. As Mr Szentesi did not mention any division of the $10,000.00 in his statutory declaration, I accept Mr Linley’s evidence on the point. Otherwise, however, there was no dispute that the scope of work agreed upon was not any stripping of the paint back to metal but a sanding and an application of one layer of paint, and the repair was to include rust repair for the right hand door. The layer of paint was to achieve consistency of colour and nothing more. 
9	On 23 November 2018 Mr Linley collected his car after Revamp had informed him that the job had been completed. His evidence, which I accept, was that that day was wet and because of water on the car he was not able to inspect the paint work properly before he took the car away. His father confirmed that it was a wet day. That was the only relevant evidence that his father gave. Mr Linley had paid for the work at the same time as he had collected the car. 
10	Before March 2020, when relations between the parties completely broke down, Mr Linley had brought the car back to Revamp and had asked Revamp to attend to some things that he was unhappy with, which Revamp did for no charge. Exactly when those occasions occurred, and in what order that occurred, is not clear to me.
11	The first matter related to a badge that was on the exterior of the car. There were two badges. Revamp removed one of the badges before the paint was applied but did not remove the other. The reason, according to Mr Ross and Mr Szentesi, was that the badge was fragile and Revamp did not want to run the risk of breaking it while removing it. Mr Linley removed the badge himself, so there was an unpainted area where the badge had been. Revamp painted that part of the exterior again. 
12	The second matter was some rust that appeared, or re-appeared, on the right hand front guard. This was something that Mr Linley noticed about a year after the panel beating and painting had been done. His allegation was that Revamp had not patch-panelled the area, as it should have done, but had simply painted over the area. Mr Ross, while denying the allegation, agreed to do some further repairs on the affected area. They were done but Mr Linley is still not happy with the result. Obviously any 50-year-old car is rust-prone, but the parties are in dispute about whether Revamp did all it should have done to a rust-affected area. 
13	The third matter was some scratches that were on the paint work. Mr Ross attributed those to Mr Linley having put a cover over the car while the paint work was still fresh, but agreed to give the car another cut and polish, which Revamp did. 
14	As I understood the evidence, the matter which escalated a dispute between the parties was damage, through warping, to a plastic shroud fitted to a fan. Mr Linley alleged that Revamp’s work had caused the warping. Mr Ross’s evidence was that the plastic shroud was an aftermarket product susceptible to warping from engine heat, and that a “genuine part” for a shroud is metal, not plastic. Mr Linley has now removed the shroud. 
15	The escalation of the dispute led to Mr Linley taking some photographs in March 2020 of places on the car where he says there has been poor workmanship, and to his seeking from Bridge Road Body Works a quotation for the cost of what he says are necessary repairs. Despite the photographs, Mr Linley’s evidence to me was that his principal complaint is about something that cannot be shown in photographs: rippling and blistering throughout the paint work. 
16	Bridge Road Body Works written quotation, undated, is for $14,600.00 for repairing and painting. At the foot of the quotation appear these two paragraphs: 
We have inspected this vehicle and found that current paint job is of very poor standard. It has a lot of reactions in the paint that are over almost every panel, very uneven peel, lots of repairs not completed (painted over chips etc.) Deep scratching from buffing, dry areas in paint. exposed edges, rust in r/h door, pin holes, humidity in paint, dust in paint. every panel requires extensive attention.
We have quoted to seal the exterior of vehicle and repaint, this is not a restoration and we can not guarantee what is under existing paint nor can we guarantee against future rust. cost of full restoration is likely to be triple the price. 
17	On 9 April 2020 a loss assessor, Nick Diakrousis of Auto Collision Assessing Group Pty Ltd, viewed the car at Mr Linley’s request and gave a written report that included the following sentences: 
In My Professional Opinion, Paintwork is to a BELOW INDUSTRY STANDARD
Paintwork has EXTENSIVE Paint Shrinkage, Humidity Blister, Pin Holes. Fish Eyes, Dry Spots, Dust Particles in all Painted Panels (Refer Photos attached)
Due to the EXTENT OF PAINTWORK IMPERFECTIONS. Vehicle requires to be REWORKED AND REPAINTED
Rectifications Cost's as per Assessment attached $14,366.00.
Black and white photographs of the car, apparently taken by Mr Diakrousis, were attached to the report. I do not know whether there are original colour photographs. I could not tell anything from those black and white photographs. 
18	Revamp called as a witness Branko Ivkovic of Exclusive Loss Assessing Pty Ltd. He gave a written report to Revamp dated 15 August 2021 after having inspected Mr Linley’s car, in Mr Linley’s presence, on 12 July 2021. In his report he listed his experience and qualifications: 43 years in the automotive industry and 30 years’ experience as a claims assessor successively for RACV Insurance, FAI Insurance, HIH and Allianz. Since 2007 he has operated as an independent loss assessor. They are impressive qualifications and he was an impressive witness. In his evidence he verified his report and then expanded upon it. 
19	Mr Ivkovic began his report by taking issue with Mr Diakrousis’s comparison of the car’s paintwork to an “industry standard” without specifying what the standard was and without any consideration of whether there had been an agreement between the parties that comprehended the sufficiency of a lower standard. Revamp had briefed Mr Ivkovic about its version of its agreement with Mr Linley: a version which, on the whole, Mr Linley did not dispute, as I noted above. 
20	Except on close inspection, said Mr Ivkovic in his evidence, Mr Linley’s car “looks fantastic”, but on close inspection there are imperfections in the painted finish. During his inspection he used a “coating thickness tester” machine on all of the car’s panels, in Mr Linley’s presence, for the purpose of discovering the thickness of the paint. If paint thickness exceeds 300 microns, he told me, paint manufacturers will not allow any claim under their warranty. Revamp’s brief to him had been, and his opinion about it was, as follows: 
As per the information provided by the repairer that the vehicle was sanded back, two coats of hi build primer to seal the surface and the application of the colour and two  coats of clear. This would be a standard and correct procedure in refinishing a vehicle, therefore all the guidelines have been followed.
As neither Mr Ross nor Mr Szentesi gave any direct evidence that confirmed the above “information”, Mr Ivkovic’s evidence about it is hearsay, but I have no reason to doubt its accuracy. 
21	Mr Ivkovic set out the results of his thickness test: 
The paint measurements taken and the readings obtained in microns are as following:
L/H GUARD:
L/H DOOR:	91,590,575,627
0/F, 447, 626	
L/H QUARTER:	528,626,566	
R/H QUARTER:	741,496,626	
R/H DOOR;	0/F, 566, 624	
R/H GUARD:	286,544,615,833	
BONNET;	238,286,740,490	
BOOT LID:	381,386,235	
TURRET:	492,566,515,618	
Please note that the 0/F (over //ow) applies to sections of panels where the reading took place, the material was that thick that the testing machine was unable to take a reading.
22	The conclusion that Mr Ivkovic reached after his inspection and testing, was that the pre-existing thickness of paint, once Revamp had added paint to it, made the surface exhibit the rippling and blistering that is apparent. He stated: 
In conclusion, due to the paint thickness and the condition of the pre-existing paint even if all the guidelines and procedures are followed, possible paint issues will arise. It is not the failure of the repairer who carried out the work, he had taken all the possible steps to minimise this arising, it is the unknown surfaces and products that have been applied previously over the years, and the paint thickness test readings confirm the unacceptable thickness that was on this vehicle would lead to paint failures.
He also said, in his oral evidence, that the work for which Bridge Road Body works had quoted $14,600.00 was “a waste of time and will achieve nothing” and that the only recourse available was to strip the paint back to bar metal and re-paint, which Mr Linley had decided not to do and reached agreement with Revamp accordingly. 
23	I prefer the evidence of Mr Ivkovic to the opinion of whoever prepared the Bridge Road Body Works quotation and the opinion of Mr Diakrousis. Mr Ivkovic’s evidence was sworn to and was able to be tested at the hearing; the other opinions were not. Mr Ivkovic judged Revamp’s work in accordance with an appropriate standard, set by the parties’ agreement, not an “industry standard”. 
24	Mr Linley’s photographs were of: 
i.	Chips to a bonnet edge. He acknowledged that Revamp had repaired those. 
ii.	The rust affected area. The photograph certainly shows a ripple of rust. I have not been persuaded that it has appeared as a consequence of the car’s age. 
iii.	The bare patch left after Mr Linley removed the badge. Revamp re-painted the area to make the colour consistent. 
iv.	Damage to a bumper. Mr Linley’s evidence was that Revamp had admitted that the damage was its fault. Mr Ross denied making any such admission. I cannot say that one version is more likely than the other to be correct, so Mr Linley has not made out his case in this respect. 
v.	Alignment of the bonnet, “poor”. I cannot tell from the photograph whether the alignment is poor. Mr Ross gave evidence that Mr Linley had told him that he was happy with the alignment because another body shop had told him that the alignment was correct. Without necessarily accepting Mr Ross’s evidence about that, I am not persuaded that Mr Linley has proved any defect. 
vi.	The warped fan shroud. I have dealt with this matter in paragraph 14 above. I have not been persuaded that the warping was a result of anything that Revamp did wrongly or failed to do. 
vii.	“Drip line after respraying guard where badge was painted over”. As no other witness gave evidence about this alleged imperfection I accept that it exists. Its presence, however, does not mean that Revamp failed to achieve what it was asked to achieve, namely, a basic paint job to achieve consistency of colour. 
viii.	Two photographs of chrome mold, one showing “mold fits as it should” and the other showing mold “which no longer sits flush as shown in previous photo”. Revamp’s evidence that Mr Linley had undertaken to glue the moldings back on himself throws enough doubt on the matter for me not to be satisfied that Mr Linley has demonstrated any fault on Revamp’s part. 
ix.	“Poor re-assembly”. The photograph shows a bolt sitting out from the wheel arch, according to Mr Linley. I can see what he means, but if this is a fault for which Revamp is responsible there was no evidence of how much it would cost to rectify. 
x.	“Failure to remove all of the previously existing weather stripping”. This seems a minor imperfection. 
xi.	“Unfinished surface”. I cannot understand the photograph. 
xii.	“Evidence of poor work”. I cannot understand this photograph either. 
25	As Mr Ivkovic concedes, there are imperfections in the paint finish when one looks at the car closely. All in all, however, Revamp’s work has met the basic standard that was required for the achievement of colour consistency, for which Mr Linley agreed to pay a price that was much lower than a price 

he probably would have had to pay for a job which met a higher standard. Accordingly the proceeding is dismissed. 

A. Vassie 
Senior Member