Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Ruddick v Rossiter [2021] NSWCATAP 87 Hearing dates: 25 February 2021 Date of orders: 9 April 2021 Decision date: 09 April 2021 Jurisdiction: Appeal Panel Before: S Westgarth, Deputy President D Robertson, Senior Member Decision: Appeal dismissed. Catchwords: CONSUMER LAW – Consumer guarantees - Australian Consumer Law – scope of works: loss not established. Legislation Cited: Civil and Administrative Tribunal Act 2013 NSW) Australian Consumer Law (NSW) Cases Cited: Nil Texts Cited: Nil Category: Principal judgment Parties: Grace Ruddick (Appellant) Peter Rossiter (First Respondent) Tauntons Electrics Pty Ltd (Second Respondent) Representation: Solicitors: Kim Bolas Legal Group (Appellant) Peter Rossiter (Self-Represented) Peter Rossitor (Agent) (Second Respondent) File Number(s): 2020/00371169 (AP 20/48429) Publication restriction: Nil Decision under appeal Court or tribunal: New South Wales Civil & Administrative Tribunal Jurisdiction: Consumer & Commercial Division Citation: Not applicable Date of Decision: 30 October 2020 Before: J Lynch, General Member File Number(s): MV 20/25612 REASONS FOR DECISION Background 1. The Appellant filed an application seeking an order that she be paid $3,489 as a refund for repairs conducted to the Appellant's motor vehicle. On 30 October 2020 the Tribunal dismissed the application because the Tribunal was "not satisfied (at the civil standard of proof) that the grounds required to make the orders sought have been established". The Appellant appeals against that decision (which we will refer to as the Decision). 2. In her application the Appellant set out the following as reasons for the order sought, that she be paid the amount of $3,489: "Peter Rossiter, as part of Taunton Electrics Pty Ltd agreed to give me a quote to repair and make good my Holden Astra following damage from a kangaroo accident. The vehicle had both body damage… as well as electrical problems as the vehicle would not start. I knew it was an electrical problem as I had driven my car home from the accident, some 30 kms. Thereafter the car would not start and the lights went out. I cancelled the vehicle registration and handed in the plates. I called Peter Rossiter as his company advertises as an electrical automotive company and he agreed to give me the quote for repairs and to make good the car. He also said he could get panels from the wreckers… I had the vehicle towed to his workshop in late October 2019. Peter Rossiter called me on or around 19 December 2019 and told me he could not get the car started as it needed a Holden computer to fix it, as he said, it was in Crash Mode and his computer could not do it." I complained as I thought I had been fully quoted by him, and he said take it to Gerald Slaven Motors… or another Holden expert and it would only cost me around $100". 1. The balance of the application states that the Appellant paid Mr Rossiter, and took the vehicle to Gerald Slaven Motors who gave her a quote, to repair the vehicle for registration, totalling $4,782.42. The Appellant alleged that Mr Rossiter had "misquoted me and underquoted for the job" and that "Had [Mr Rossiter] given me a full quote for repairs to reregister the vehicle I would not have told him to proceed with his underquote". 2. Although the application identifies the nature of the dispute as "overcharging", in particulars provided by the Appellant on 1 September 2020, the Appellant contended that there was a breach of consumer guarantees (under the Australian Consumer Law (NSW)) in that the service provided by the Respondents was performed without acceptable care and skill and/or was not fit for purpose. There was also an allegation that the service was not provided within reasonable time. 3. The amount sought by the Appellant represented the amount of the invoice issued by the Respondents and paid by the Appellant's mother, Ms Bolas, on the Appellant's behalf. 4. The Appellant named in her application both Mr Rossiter, and Tauntons Auto Electrics Pty Ltd. At a directions hearing in relation to the appeal, the name of the Second Respondent was corrected to Tauntons Electrics Pty Ltd. Mr Rossiter is a director of Tauntons Electrics Pty Ltd. 5. The application was heard by phone on 22 October 2020 and the Decision was delivered on 30 October 2020. The Decision briefly described the documents filed by the parties and recorded that oral evidence was given by the Appellant and Ms Bolas, and also by Mr Rossiter. 6. In the Decision the Tribunal summarised the evidence given by the parties in the following terms: 8. The applicant owned a Holden Astra motor vehicle. Ms Ruddick gave evidence that on 5 August 2019 she collided with a kangaroo on the road at Lake George. She drove the vehicle 30km home. 9. Her mother arranged to take the vehicle to the respondent in late October 2019 to obtain a quote. 10. The consumer was provided an oral quote which was communicated to her mother Ms Kim Bolas by Mr Rossiter and then from Ms Bolas to the applicant. The quote was accepted and work undertaken. 11. An invoice for $3489 dated 9 December 2019 was provided to the Tribunal as evidence of the work done on the vehicle by the respondent. 12. The applicant Grace Ruddick ("the consumer") claims she contracted with the respondents Peter Rossiter and Tauntons Auto Electrics Pty Ltd ("the trader") for work on her 2005 Holden Astra motor vehicle. The consumer seeks a refund of $3489 which she paid for the work. It is agreed this sum was paid. 1. The Tribunal summarised the Respondent's evidence as follows: 16. When the applicant brought in the vehicle he rang around to obtain parts quotes and on the basis of this provided an oral quote to Ms Bolas on behalf of the applicant. He states the quote was for damage by kangaroo and reason for not starting. 17. He did the work on the applicant's motor vehicle that is set out in his invoice dated 9 December 2019. The Decision 1. The following is a summary of the reasons contained in the Decision explaining the basis for the application being dismissed: 1. The Decision records that the Appellant is a consumer as defined in s 3 of the Consumer Claims Act 1998. 2. The Tribunal determined that the Appellant contracted with the Second Respondent company and that Mr Rossiter acted at all times in his representative capacity as a director of the company and not in his personal capacity. 3. The Decision records that there was a dispute as to whether the Second Respondent was contractually obliged to remedy the fact that the vehicle remained in Crash Mode, whether the Respondents had promised that the panels used to replace damaged panels would be in a colour matching the balance of the vehicle and whether the Respondents were obliged to undertake such repairs as were necessary to enable the vehicle to be registered. 4. The Tribunal found that the scope of work which the Second Respondent agreed to perform did not include such repairs as were necessary to get the vehicle registered (para 29). In paras 30 and 31 the Decision describes the reasons for coming to that finding: 30. The reasons are this is inconsistent with the oral evidence of Ms Bolas about her initial conversation with Mr Rossiter: "car hit kangaroo won't start smashed up panel" and Mr Rossiter suggested if you bring it in I can have a look and quote. 31. It is internally inconsistent with Ms Bolas oral evidence that the quote was "get ready for rego check" which is not the same as a requirement to get the car to a position where it will be passed for registration. 1. The Tribunal also referred to the fact that the Appellant had made a complaint to Fair Trading NSW, which "contended a different scope of the contract namely that the trader agreed to 'repair the car to its former functioning capacity' in the context where 'former' is the pre-kangaroo collision state", and stated: "This complaint to Fair Trading is consistent with repairing the damage caused by the kangaroo rather than meeting any requirements for registration of the vehicle". 2. The Tribunal further found that it was not established by the Appellant that it was a term of the contract that the second-hand panels which the Second Respondent undertook to source from a local smash repairer would be matching in colour (para 36(b)). 3. The Tribunal found that the Appellant had not established a breach of due care and skill by the Second Respondent undercharging (para 37). 4. The Decision records at para 40 that the Respondents stated that the vehicle had a "Crash Mode" which meant that the interior light stayed on following the crash and the result was that this would flatten the battery. The Respondents' evidence was that they had no ability to unlock the Crash Mode and that the vehicle needed to go to a Holden dealer. 5. At para 46 the Tribunal considered the Appellant's allegation that the Respondents had undertaken the work without acceptable care, skill or technical knowledge, because the Respondents' claim that the vehicle had a "Crash Mode" was incorrect. The Tribunal found that it was not satisfied that a "Crash Mode" did not exist and that the Appellant had the onus of establishing this. The Tribunal observed that there was no independent evidence that the Crash Mode did not exist, only an assertion from the Appellant. 6. With respect to the allegation that the Respondents underquoted, the Tribunal found that the Respondents quoted for the contracted work but that there had been no request that the Respondents provide an opinion or quote on whether it was economical to undertake the repairs (para 48). In addition, the Appellant did not contend that she relied on the skill and judgment of the Respondents to assess the repairs required to re-register the vehicle (para 48). 7. With respect to the quotation obtained from Gerald Slaven Motors, the Tribunal found that it was not clear what instructions were provided to Gerald Slaven Motors and that the quotation was not persuasive and did not assist the Tribunal "in terms of an opinion relating to the services provided previously by the respondent". 8. The Tribunal concluded that it was not satisfied that the Appellant had established that the services provided by the Respondents were not fit for purpose or did not give the results for which the parties had contracted (see para 54). The Tribunal also found that the services were provided within a reasonable time. Notice of Appeal 1. The Appellant lodged a Notice of Appeal on 13 November 2020. The grounds of appeal may be summarised as follows: 1. The Tribunal has shown apprehended bias and failed to give a fair hearing. 2. The Tribunal made a finding of fact without any evidence to support it and took into account evidence that was not before it. 3. The Tribunal took into account irrelevant information. 4. The Tribunal failed to understand the case of the Appellant and did not address the issues, that is the Tribunal failed to give adequate reasons and did not address the relevant issues. 1. The Notice of Appeal stated that the Appellant was not seeking leave to appeal. 2. In an attachment to the Notice of Appeal, the grounds were elaborated upon as follows: 1. The Tribunal gave full weight to and accepted the evidence of Mr Rossiter but failed to give adequate weight to the Appellant's evidence which was corroborated by the Appellant's witness (Ms Bolas). 2. The Tribunal made a finding of fact without any evidence to support it. The Appellant contends that she did not assert that the Respondents had undercharged but the Tribunal treated the Appellant's assertions as if she alleged undercharging. With respect to the Tribunal's finding that the Respondent was not requested to provide an opinion or quote on whether it was economical to undertake the repairs, the Appellant says that that finding was made without evidence. 3. The Tribunal took into account irrelevant information being that the car's registration had been cancelled, that the issue between the parties was the fact that the car had hit a kangaroo rather than that repairs were required to the vehicle and whether or not the car would start at the Respondent's workshop. 4. The Tribunal failed to understand the Appellant's case and failed to give adequate reasons. In particular, the Tribunal failed to consider whether the Respondents had made a misrepresentation in the quote, whether the Respondent had competency to undertake the work quoted for, whether the Respondent had a duty to inform the Appellant whether or not the car was worth fixing given its market value of only $3,500. Further issues not addressed were why the Respondent did not have the competency to fix the vehicle, why the Respondent should not have taken the vehicle to a specialist, and whether or not the Respondent had a duty to inform customers about the full extent of damage and repairs. Reply 1. By their Reply, the Respondents support the Decision. The Respondents did not file any other submissions. Appellant's Submissions 1. The Appellant initially filed submissions on 22 December 2020. Those submissions included a bundle of documents that had been filed and served for the hearing at first instance. That bundle included a statement of Ms Bolas dated 1 September 2020. 2. The Appellant's bundle of documents filed for the appeal also included two supplementary statements dated 17 December 2020, one from the Appellant and the other from Ms Bolas. 3. On 22 January 2021 the Appellant filed a further set of submissions which included typed up portions of the first instance hearing. Ms Bolas explained to the Appeal Panel that she had applied for and obtained three discs of the sound recording of the hearing at first instance, however, the sound recording was not entirely audible. Large portions were not audible at all and other portions were extremely difficult to hear. 4. At the hearing of the appeal Ms Bolas put forward the following oral submissions: 1. There was a denial of natural justice at the hearing because the Tribunal did not allow the Appellant to tell her side of the story. In addition, the Tribunal asked a large number of questions of the Appellant, and very few questions were addressed to the Respondents. That indicated unfairness. 2. In addition, the Tribunal misunderstood the assertion concerning underquoting and described it as undercharging. We understood Ms Bolas to be saying that the complaint was that the Respondents underquoted, which led the Appellant into agreeing to have the Respondents undertake the work when the Respondents knew that more work would be required which when added together would exceed the value of the vehicle. Consideration 1. Appeals from decisions made in the Consumer & Commercial Division of the Tribunal are regulated by s 80 of the Civil & Administrative Tribunal Act 2013 NSW (the NCAT Act) and by clause 12 of schedule 4 of the NCAT Act. The effect of those provisions is that the Appellant may appeal as of right concerning a question of law or may appeal with leave on one or more of the grounds set out in clause 12. Leave to appeal may be granted only "if the Appeal Panel is satisfied the Appellant may have suffered a substantial miscarriage of justice". In this case the Appellant has expressly stated on the Notice of Appeal that she does not seek leave to appeal. Thus, the Appellant's appeal is limited to questions of law, in respect of which the Appellant may appeal as of right. 2. In our view, the Tribunal correctly identified the central issue in the case, which was what did the parties agree to (ie, in the language of the Tribunal "what was the contract between the parties?"). The Tribunal found that the parties agreed that the Second Respondent was to repair the damage to the vehicle occasioned by the collision with the kangaroo. This did not include undertaking those repairs necessary to enable the vehicle to be registered. 3. In our view, on the evidence presented, that finding was available and no error of law is discernible. Indeed, the finding is entirely consistent with para 8 of the Statement of Ms Bolas dated 1 September 2020. 4. The Tribunal found that there was no evidence to contradict the assertion of the Respondents that the reason the interior light stayed on was because the vehicle was in "Crash Mode". 5. The Tribunal referred to evidence from Ms Bolas that she had been told by an unidentified person at Gerald Slaven Motors that the vehicle did not have a Crash Mode installed. In our view the Tribunal was not required to give that evidence any weight. 6. The Appellant included in her bundle material which she contended established that the vehicle did not have a Crash Mode but the evidence supporting that contention was not presented by the Appellant at the hearing and it is not appropriate for it to be taken into account on the appeal. 7. An appeal is not an opportunity to re-open the case. Nor is it an opportunity to supplement the evidence to fill gaps in the evidence presented at the first instance hearing. Further evidence is permitted on appeal in accordance with clause 12(1)(c) of Schedule 4 to the NCAT Act, that is when it is significant new evidence that was not reasonably available at the time of the original hearing and only by leave of the Appeal Panel. The new material put forward by the Appellant does not meet that requirement. 8. Next, we address the Appellant's assertion that the Tribunal conducted a hearing infected by unfairness and displayed bias. The difficulty with this assertion is that the discs recording the conduct of the hearing are incomplete. However, we were taken by Ms Bolas to some examples from the portions of the transcript which the Appellant had typed up. None of the examples display unfairness or bias. One complaint is that the Member denied the Appellant an opportunity to put her case. We were not provided with any explanation of the Appellant's case which is not recorded in the Decision. The Decision clearly indicates that the Tribunal understood the Appellant's case. The fact that the Member asked many questions of one party and few of the other party does not of itself display bias. That contention must be dismissed. 9. In summary, we are of the opinion that the Appellant has not been able to demonstrate that had the hearing being conducted differently the Appellant's case would have been better presented, more persuasively set out or otherwise led to a different result. 10. The ground of appeal founded upon an alleged failure to accord procedural fairness must fail. 11. With respect to the contention that the Respondent failed to undertake such work as was necessary to achieve registration for the vehicle, we have already stated that we agree with the Tribunal that that work was not included in the scope of works, the subject of the Respondents' quote. To the extent that the Respondents were obliged to identify work to be done to achieve registration (but not to actually do it) and they did not do so, the question is whether the Appellant is able to demonstrate loss as a consequence of the Respondents' failure in that regard. We are of the opinion that there is no evidence to demonstrate that the failure of the Respondents to perform that obligation (namely to identify work requiring to be done to achieve registration) was a failure which produced compensatory loss for the Appellant. Indeed, in our view, the scope of works is best described in the statement of Mrs Bolas in para 8 in these words: "He [Mr Rossiter] told me to bring it [the vehicle] into his workshop, and he would give a quote for repairs, undertake repairs and then get a registration check from the service station he knows next door to get the car back on the road." 1. Whilst it is correct that the Tribunal at one point referred to "undercharging" it is clear from the context that the Tribunal meant "underquoting" and treated the allegation made by the Appellant as one of underquoting. 2. We are not persuaded that any of the other issues raised by the Appellant, as set out at 13(3) and (4) above, raises a question of law. As we have indicated, in our view the Tribunal addressed the critical question and answered it in a way which we consider was correct. 3. There are two respects in which we consider that the Tribunal may have erred in its conclusions concerning the obligations of the Second Respondent. 4. However, we are not persuaded that either matter warrants the decision of the Tribunal being set aside or varied. 5. The first matter arises in relation to the Tribunal's finding that the Appellant had failed to establish that it was a term of the contract that the panels supplied by the Respondents would be matching in colour. We do not find the reasoning in respect of this finding to be persuasive. In our view, in the absence of the parties having specifically addressed the issue of colour, it could be reasonably implied that replacement panels would be of a colour which matched the balance of the vehicle. To this extent we are of the opinion that the Decision displays an error. However, there is no evidence before the Tribunal, either at first instance or before us, to establish what loss the Appellant suffered as a consequence of being provided with a vehicle with non-matching panels as opposed to a vehicle with matching panels. There is evidence neither of the difference in value between a vehicle with matching panels and a vehicle with non-matching panels nor of the cost of painting the panels so that their colour matched the balance of the vehicle. 6. Secondly, on the assumption that the vehicle did have a Crash Mode, then in our view the Second Respondent has failed to perform the work it contracted to undertake, and the Appellant would be entitled to damages measured by the cost of having that work completed elsewhere. However, again, there is no evidence of that cost apart from the evidence that Mr Rossiter told Ms Bolas that the cost could be about $100 (the amount alleged in the application), or around $150 (the amount alleged in the evidence of Ms Bolas). We do not think that that evidence is sufficiently persuasive to justify an order requiring payment to the Appellant of an amount of $100 or $150, nor did the Appellant submit that such an order should be made. 7. However, although we might have come to a different conclusion to the Tribunal on the facts, we are not persuaded that the Tribunal's consideration of these issues discloses an error of law. Even if the Appellant had sought leave to appeal on that issue, we would not have been persuaded that the Appellant has suffered a substantial miscarriage of justice so as to warrant the grant of leave to appeal. 8. Accordingly, there is no basis for concluding that the order dismissing the application was made in error. 9. In conclusion, although we take a different view to the Member as to some aspects of the Decision, we are of the view that the Appellant has not been able to demonstrate loss by reason of any failures by the Respondents to perform contractual obligations and that therefore the Tribunal's decision dismissing the application was correct. 10. It follows that the appeal must be dismissed. ********** 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: 09 April 2021