Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Lansdown Nominees Pty Ltd v Barker t/as JK & A Automotive [2021] NSWCATAP 212 Hearing dates: 10 June 2021 Date of orders: 14 July 2021 Decision date: 14 July 2021 Jurisdiction: Appeal Panel Before: A Bell SC, Senior Member D Robertson, Senior Member Decision: (1) Leave to appeal refused. (2) Appeal dismissed. Catchwords: CONSUMER LAW – No issue of principle Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Cases Cited: Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 Collins v Urban [2014] NSWCATAP 17 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Texts Cited: None cited Category: Principal judgment Parties: Lansdown Nominees Pty Ltd (Appellant) Matt Barker t/as JK & A Automotive (Respondent) Representation: T Lansdown (Director) (Appellant) Respondent (Self Represented) File Number(s): 2021/00056104 (AP 21/06905) Publication restriction: None Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 25 January 2021 Before: P Boyce, Senior Member File Number(s): MV 20/37359 REASONS FOR DECISION 1. This is an appeal from a decision of the Consumer and Commercial Division of the Tribunal (the decision) dismissing an application by the appellant, Lansdown Nominees Pty Ltd (Lansdown), against the respondent, Matt Barker t/as JK & A Automotive (Mr Barker), seeking compensation in the amount of $7,650 in respect of damage to the engine of a motor vehicle owned by Lansdown, which Mr Barker had serviced. Mr Barker carries on business in Albury, New South Wales. Background 1. Mr Theo Lansdown, the director and principal of Lansdown, delivered the vehicle to Mr Barker for service on or about 27 February 2020. On that occasion, as part of the repairs, Mr Barker fitted a new oil filter, which apparently had been supplied by Lansdown. 2. On 10 March 2020, Lansdown returned the vehicle to Mr Barker's workshop stating that there was oil leaking from the engine. 3. Mr Barker removed the oil filter and gave evidence at the hearing before the Consumer and Commercial Division that he had identified that the oil filter was defective and noticed "that a crimp of the filter had separated" which he identified as where the oil was coming from. Mr Barker's evidence was that he showed that defect to Mr Lansdown and his son, who was present with him, and replaced the oil filter. 4. Mr Barker's evidence was that Mr Lansdown had taken the vehicle and that Mr Barker had then gone on holidays. It was only on 20 March 2020 that he received a text from Mr Lansdown seeking the oil filter which he had removed from the vehicle on 10 March 2020. Mr Barker's evidence was that at that time he discovered that the oil filter had been disposed of while he was away on holidays. 5. Mr Lansdown disputed Mr Barker's evidence concerning the time at which he had been asked to provide the oil filter and maintained that Mr Barker had deliberately destroyed the oil filter to conceal the fact that the oil filter had not been correctly installed. 6. Mr Lansdown's evidence was that the vehicle had not been driven from Mr Barker's workshop but had been towed to another auto repairer in Albury, Jeff Eirth Trucks Pty Ltd. 7. Jeff Eirth Trucks had recommended the replacement of the engine. Lansdown had the vehicle transported by BIP Auto Spares and Repairs in Melbourne. BIP Auto Spares and Repairs replaced the engine at a cost of $6,000 for the engine plus $1,000 for labour. Mr Lansdown sought to recover that sum from Mr Barker on the basis that Mr Barker had not fitted the oil filter correctly, leading to the oil filter leaking and consequential damage to the motor requiring its replacement. 8. Mr Lansdown also sought reimbursement of the cost of transport of the vehicle from Albury to Melbourne in the amount of $650. 9. After hearing from the parties the Senior Member hearing the proceedings dismissed the application on the basis that "having considered the material placed before it, the Tribunal is not satisfied (at the civil standard of proof) that the grounds required to make the orders sought have been established". 10. The written order of the Tribunal noted that the proceedings of the Tribunal had been sound recorded and that reasons for decision had been given orally. 11. The Appeal Panel was provided with a transcript of the hearing which included the Member's oral reasons. 12. The papers provided to the Appeal Panel included the documents which were before the Tribunal at the original hearing. 13. Lansdown also included in the documents put before the Appeal Panel a number of further documents, including statutory declarations from Mr Lansdown and his son, and further letters from other parties addressing the operation and fitting of oil filters and the circumstances in which oil filters might fail. Mr Lansdown acknowledged that this material had not been put before the Tribunal at the original hearing. The scope and nature of internal appeals 1. By virtue of s 80(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), internal appeals from decisions of the Tribunal may be made as of right on a question of law, and otherwise with leave of the Appeal Panel. 2. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 the Appeal Panel set out at [13] a non-exclusive list of questions of law: 1. Whether there has been a failure to provide proper reasons; 2. Whether the Tribunal identified the wrong issue or asked the wrong question. 3. Whether a wrong principle of law had been applied; 4. Whether there was a failure to afford procedural fairness; 5. Whether the Tribunal failed to take into account relevant (i.e., mandatory) considerations; 6. Whether the Tribunal took into account an irrelevant consideration; 7. Whether there was no evidence to support a finding of fact; and 8. Whether the decision is so unreasonable that no reasonable decision-maker would make it. 1. The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are limited to those set out in cl 12(1) of Schedule 4 of the NCAT Act. In such cases, the Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice because: 1. The decision of the Tribunal under appeal was not fair and equitable; or 2. The decision of the Tribunal under appeal was against the weight of evidence; or 3. Significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with). 1. In Collins v Urban [2014] NSWCATAP 17, the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) of Schedule 4 may have been suffered where: … there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance. 1. Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Schedule 4, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b). 2. In Collins v Urban, the Appeal Panel stated at [84] that ordinarily it is appropriate to grant leave to appeal only in matters that involve: 1. issues of principle; 2. questions of public importance or matters of administration or policy which might have general application; or 3. an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; 4. a factual error that was unreasonably arrived at and clearly mistaken; or 5. the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed. Grounds of Appeal 1. Lansdown sought to appeal on an asserted question of law and also sought leave to appeal on the basis that the decision was not fair and equitable and against the weight of evidence and on the basis that significant new evidence was now available that was not reasonably available at the time of hearing. 2. The ground of appeal stated by Lansdown in the Notice of Appeal was "not enough emphasis was placed on the destruction of the evidence, ie the oil filter was disposed of". 3. In support of the submission that the decision was not fair and equitable and that it was against the weight of evidence, the Notice of Appeal repeated the argument that Mr Barker had wilfully destroyed the oil filter which prevented Lansdown from having it examined by an expert. Consideration (i) New evidence 1. The document which Lansdown submitted was significant new evidence that was not reasonably available at the time of the hearing was a letter from the manufacturer of the oil filter which addressed the meaning of the term "crimping" when used in relation to an oil filter. As noted above, Mr Lansdown also sought to put before the Appeal Panel other material which had not been before the Tribunal, including statutory declarations from Mr Lansdown and his son. 2. Mr Lansdown did not put forward any basis upon which it might be said that any of that material was not reasonably available at the time of the original hearing. In the Notice of Appeal Lansdown suggested that the evidence had not previously been obtained because it was only at the hearing that Mr Barker had raised the suggestion that the damage to the filter was the result of "crimping". 3. We note that, in fact, Mr Barker's evidence to the Tribunal was provided by way of a written statement dated 30 September 2020 in which he stated "I inspected the filter and noticed that a crimp of the filter had separated." 4. Accordingly, we are not persuaded that there is any basis upon which it could be said the further evidence put forward by Lansdown was not reasonably available at the time of the original hearing. The fact that a party did not realise evidence would be of assistance to its case is not a basis upon which we could conclude that the evidence was not reasonably available at the time of the hearing: Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111. 5. It would therefore not be appropriate to grant Lansdown leave to appeal in order to challenge the decision by reference to the further evidence. (ii) Destruction of the oil filter 1. The remaining bases upon which Lansdown seeks leave to appeal, and the sole ground of appeal, relate to the alleged destruction of the oil filter. 2. However, the transcript of oral reasons of the Tribunal discloses that the critical reason why the Tribunal dismissed Lansdown's application was that there was no evidence to establish that the leak from the oil filter caused any damage to the motor, and, in particular, that there was no evidence which indicated that the leaking oil filter was the cause of the engine needing to be replaced. 3. It appears that the engine was disposed of by the repairers who removed it from the vehicle and no independent expert was able to examine the engine to ascertain the cause of any problems. 4. The only direct evidence of the state of the engine after it was taken from Mr Barker's premises on 10 or 11 March 2020 was a report dated 13 November 2020 signed by Mr Bruce Doughty of Jeff Eirth Trucks Pty Ltd. That report recorded that the vehicle was presented to that company on 11 March with a very bad engine rattle and that Mr Lansdown was advised that the engine was "shot" and that the motor should be rebuilt or replaced. 5. As the Tribunal noted: "significantly, at the end of that report, Mr Doughty says, 'NOTE: we didn't check cause of engine failure. Just advised his options available to rebuild or engine swap'". 1. The Tribunal held: "I am not satisfied that that evidence is sufficient to establish whether the leak from the oil filter caused, or in fact what damage was caused by the leak from the oil filter to the motor". 1. The Tribunal subsequently concluded: "The evidence I have before me is insufficient to support the applicant's allegation that the damage caused by the alleged failure to comply with the statutory guarantee that the work would be done with all due care and skill, was responsible for the damage to the engine to the motor [sic], necessitating a full replacement of the motor". 1. In oral submissions before the Appeal Panel, Mr Lansdown submitted that it was obvious that an oil leak would cause damage to an engine. However, whether or not that is the case, it is not self-evident that the failure of the oil filter in this case was the cause of the engine failure. That is a matter that would require evidence from someone with sufficient qualification to assess the cause of the damage and identify any link between the failure of the oil filter and the terminal damage to the engine. 2. Accordingly, regardless of the circumstances in which the oil filter was lost or disposed of, the reason Lansdown failed in its application was unrelated to the question whether the oil filter had been properly or competently installed. The reason Lansdown failed in its application was that it failed to establish any link between the failure of the oil filter and the need to replace the engine. 3. The issues raised by Lansdown in its Notice of Appeal could not, even if established, form grounds for setting aside the orders of the Tribunal. 4. The issue raised by Lansdown does not raise any question of law. Nor can it be said that the decision under appeal is against the weight of evidence or not fair and equitable. In our view there is no basis upon which it could be suggested that the applicant had suffered a substantial miscarriage of justice so as to warrant a grant of leave to appeal. 5. Accordingly, our orders will be: 1. Leave to appeal refused. 2. Appeal 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: 14 July 2021