Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Brown v A Hambridge & G Riog Pty Ltd [2022] NSWCATAP 134 Hearing dates: 15 March 2022 Date of orders: 02 May 2022 Decision date: 02 May 2022 Jurisdiction: Appeal Panel Before: P Durack SC, Senior Member D Goldstein, Senior Member Decision: (1) Leave to appeal is refused. (2) The appeal is dismissed. Catchwords: CONSUMER LAW-alleged defective work done on second-hand motor vehicle engine-claim by consumer for the total sum paid for the work was misconceived. APPEALS – respondent's documents served late and only received on the morning of the hearing-no offer of adjournment from the Tribunal- procedural unfairness-appellant did not show there was a possibility of his claim succeeding-attempt by appellant to present on appeal a new case of defective work based upon further investigation by experts after the Tribunal decision-reliance on new evidence not permitted. Legislation Cited: Australian Consumer Law NSW Civil and Administrative Tribunal Act 2013 Civil and Administrative Tribunal Rules 2014 Cases Cited: Brarny Partners Pty Ltd v Miller [2020] NSWCATAP 256 Collins v Urban [2014] NSWCATAP 17 Italiano v Carbone & Ors [2005] NSWCA 177 John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Owen v Kim [2017] NSWCATAP 26 Re Minister for Immigration, Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 Roach v Swain [2021] NSWCATAP 258 Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 Stead v State Government Insurance Commission (1986) 161 CLR 141 Tiwari v Champion Homes Sales Pty Ltd [2016] NSWCATAP 73 Category: Principal judgment Parties: Lawrence James Brown (Appellant) A Hambridge & G Riog Pty Ltd (Respondent) Representation: Solicitors: Mrs Mckay for the appellant File Number(s): 2021/356729 Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Citation: N/A Date of Decision: 22 November 2021 Before: S Daly, General Member File Number(s): MV 21/41440 REASONS FOR DECISION Introduction 1. On 3 October 2021 the appellant lodged an application in the Tribunal seeking an order that the respondent pay him $2,050.00, being the whole of the amount paid to the respondent for work carried out by the respondent in November 2020 on an old second hand L67 short engine which the appellant had purchased. The appellant claimed this money on the basis of the respondent's 'totally unsatisfactory work'. 2. This is an appeal from the decision of the Tribunal Member on 22 November 2021 which dismissed the appellant's application on the basis that she was not satisfied that the work carried out by the respondent was faulty. The Tribunal's decision 1. The Tribunal Member addressed the question as to what work the respondent was asked to carry out and the work that the appellant carried out himself in respect to the installation of the engine into a Holden Statesman about 2 months after he collected the engine from the respondent. She then described an alarming noise the appellant stated he encountered once he started the engine after it had been installed. The Member said the appellant claimed that the noise occurred because the camshaft was worn and that he was required to purchase a new one and that the respondent should have notified him of the need for a new camshaft. The engine was not taken back to the respondent but rectification work was carried out on it by others, but not immediately after he noticed the noise, and there was a considerable gap in time (a number of months) before he took the engine to be assessed. 2. The Tribunal Member found that the appellant bore the onus of proving that the work carried out by the respondent was faulty and it was the cause of the noise that was heard by the appellant. The Tribunal Member then stated: '7. There is nothing in the invoice for repair works by the third party relied upon by the Applicant which notes what the cause of a "cam lobe flatend" is and whether it could have been caused in the 5 months since the works were carried out by the Respondent or whether it had been in existence for a longer period of time such that it was present when the Applicant left the engine with the Respondent. 8. The Applicant also relies upon an email from Sam Akbar which says in relation to the camshaft #3 lobe is badly pitted and worn. This email is dated 3 November 2021 which is almost 11 months since the works were carried out by the Respondent. 9. Based on the evidence before me I am not satisfied on the balance of probabilities that the work carried out by the Respondent was faulty.' The appellant's case before the Tribunal 1. As Ms McKay, who appeared for the appellant on the appeal, but not at the hearing before the Tribunal, told us at the hearing of the appeal, the appellant's case to the Tribunal revolved around a defective camshaft. This case was founded upon investigative, and other work, carried out, at the request of the appellant, by Macklyn Air-conditioning and Servicing (Macklyn) in May 2021. The invoice from this company in respect of this work, included: Remove and Strip L67 To Find Noise Found Cam Lobe Flatend & Orderd (sic) Parts ….. Roller Lifters………………………. 12 [quantity] ..... 1. The appellant's application to the Tribunal reflected this assessment by Macklyn. The application set out the terms of a letter before action, dated 9 June 2021, sent by the appellant to the respondent. This letter referred to Macklyn's "diagnosed the problem ??? a worn cam shaft." It was said in the letter that the appellant had now been obliged to purchase a new camshaft and lifters. There was no indication in the letter or in the invoice from Macklyn's as to the nature of the defect, if any, with the lifters. 2. The letter also stated: Obviously this entire matter has cost me considerable additional money and the vehicle is not yet roadworthy. Solution to this problem is immediate repayment of the monies I paid you for totally unsatisfactory work… 1. The letter of 9 June 2021 also set out what the appellant had asked the respondent to do. It stated that after he collected the engine from the respondent he completed the assembly of the engine and installed the motor, and that on starting the engine it made 'an alarming noise', which had led him to have the engine investigated by Macklyn's. In the letter, the appellant speculated that the respondent had replaced the cam shaft in the engine with one that was worn. 2. The appellant's case before the Tribunal was supported by an email from Mr Akbar to the appellant sent on 3 November 2021. The email said that the engine had been brought to the author "dismantled, to check, measure & write a report" 3. The email from Mr Akbar went on, in short form, to list his findings, but without elaboration. The findings included "Camshaft was not replaced.#3 lobe is badly pitted & worn. Lifters were all good…. This Camshaft should not have been used." Nature and scope of appeal 1. The decision of the Tribunal below is an internally appealable decision and an appeal can be made from the decision as of right upon a question of law, and otherwise with leave of the Appeal Panel: see, s 80(1) and (2)(b) of the Civil and Administrative Tribunal Act 2013 ('NCAT Act'). 2. As the decision the subject of the appeal is a decision of the Tribunal in the Consumer and Commercial Division, the Appeal Panel may only grant leave to appeal where it is satisfied the appellant may have suffered a substantial miscarriage of justice because: (a) the decision of the Tribunal under appeal was not fair and equitable, or (b) the decision of the Tribunal under appeal was against the weight of evidence, or (c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with). (see NCAT Act, Sch 4, cl 12) 1. Even if an appellant from a decision of the Consumer and Commercial Division requiring leave to appeal has satisfied the requirements of cl 12(1) of Sch. 4 of the NCAT Act, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b) of the NCAT Act. 2. In Collins v Urban [2014] NSWCATAP 17, 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; 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. The appellant's grounds of appeal (set out in the Notice of Appeal lodged on 17 December 2021) raise a number of matters within the category of alleged procedural unfairness, which gives rise to questions of law; John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [13(4)]. 2. First, the appellant states that the Member made an error of law because she did not take notice of the fact that he did not receive a copy of the respondent's evidence until approximately an hour and a half before the hearing was to commence, and 'only at a place where it could not be read or any advice taken.' 3. It is said that the late receipt of the respondent's evidence had three consequences, namely he: 1. 'had insufficient time to discover the argument mounted by the respondent'; 2. was unable to compare the photographs provided in the respondent's bundle with photographs in the applicant's bundle of documents or to gain an expert opinion as to whether the "lifters" in the respondent's bundle were the same as those supplied to the respondent with the short motor in compliance with the Orders of the Tribunal; and 3. 'had insufficient time to prepare his rebuttal of the respondent's argument.' 1. Secondly, and connected with the first matter, the appellant states: 1. the respondent's bundle of documents provided to the Tribunal contained a copy of a 'Job Book' but the bundle provided to the applicant did not contain a copy of the 'Job Book'; 2. due to a shortage of time resulting from the late receipt of the respondent's documents, the applicant was unable to draw to the Member's attention the fact that the invoices provided in the respondent's bundle were not identical to those supplied to and paid by the applicant as appearing in his own evidence. 1. Thirdly, the appellant states that the directions made at a directions hearing on 27 October 2021 were unreasonable. 2. The appellant also states that the decision was not fair and equitable, was against the weight of evidence and that significant new evidence is now available that was not reasonably available at the time of the hearing. Leave is required for an appeal based on these grounds. Error of law ground-alleged procedural unfairness 1. As to the late service of the respondent's documents, the appellant has provided a transcript of parts of the sound recording of the hearing, as ordered on 13 January 2022 in relation to the conduct of the appeal. The excerpt relied upon by the appellant states at 31.33 in the recording of the hearing: 'Member: Lawrie, I have a question for you, remember how Aaron was talking about the handwritten entry in his book. Did you have a look at that? Applicant: I haven't seen anything of that sort. I know nothing of that. Even in the documents he sent me, there's no copy of that. No handwritten document. Member: So it's with the… have you got the Engine Build Sheet? Applicant: I've got the ahh, let me see what I've got here. I only got it this morning, I was supposed to have got it by the 12th. I only got it this morning because I had to go away last week and it hadn't arrived by Wednesday (interruption by Respondent) I got a notification in the mail that it had arrived between Wednesday and Friday saying I could pick it up on the 17th' 1. At a directions hearing held on 27 October 2021 the respondent was directed file and serve its evidence by 12 November 2021. The respondent filed evidence in the appeal to establish that it provided its evidence to Australia Post for delivery by express post to the applicant on 12 November 2021 at 3.43pm. The documents were delivered to the Goulburn Post Shop awaiting collection at 7.46 am on Wednesday 17 November. There is an indication in the evidence that was before the Tribunal that there was an attempted delivery to the appellant's address that was unsuccessful. Be that as it may, the documents were collected by the applicant at 9.01 on Monday, 22 November 2021, the morning of the hearing. 2. The respondent's evidence filed at first instance has been filed in this appeal. 3. The respondent did not serve the applicant with a copy of its evidence by Friday 12 November 2021 in compliance with the Tribunal's direction. In the following week, the relevant documents establish that the respondent's evidence was available for collection as from 17 November, but were not collected by the applicant until the morning of the hearing. There is also evidence that the respondent sent an email to the applicant on 12 November 2021 at 2.27 pm which attached its evidence. The appellant informed us at the hearing that he does not have access to emails at his residence, except on his phone and was unable to download the documents attached to the respondent's email until sometime after 12 November 2021. 4. In these circumstances, we consider that service of the documents occurred in at 9.01 am in the morning of 22 November 2021. The material we have referred to establishes this time of service on the basis "the contrary is proved" to when service will be taken to have occurred, as prescribed in Rule 13 (4) (a) of the Civil and Administrative Tribunal Rules 2014, namely at the end of the seventh working day after the documents were posted on 12 November 2021, which is 23 November 2021 (after the day of the hearing). 5. The documents which were served by the respondent were not extensive but they contained some, relatively, substantial material. They consisted of 8 documents, including a four-page statement from Mr Hambridge from the respondent, an earlier one- page report on behalf of the respondent, a number of photographs and a one-page report from third party (Mr Sant from Proflo Performance) about an inspection he carried out on the engine on 30 October 2021. 6. In these circumstances, plainly, the service of these documents sought to be relied upon by the respondent at the hearing did not occur within a reasonable time before that hearing. 7. The transcript provided by the appellant establishes that he told the Member that he had only received a document that the Member had asked him about on the morning of the hearing. The appellant did not expressly say that he did not receive the totality of the respondent's documents until the morning of the hearing, although that could have been readily inferred since it was part of the bundle supplied, and he did not say he was at a disadvantage because of the late receipt of the respondent's documents. He did not request an adjournment of the hearing; nor did the Member ask if he needed an adjournment. 8. The issue of when a Tribunal Member should offer a party an adjournment has been considered by Appeal Panels in Roach v Swain [2021] NSWCATAP 258 and in Tiwari v Champion Homes Sales Pty Ltd [2016] NSWCATAP 73. These decisions refer to the judgement of Basten JA in Italiano v Carbone & Ors [2005] NSWCA 177 particularly at [105] where his honour stated: '105 The remaining question is thus whether, on the evidence, the Tribunal was under an independent obligation to take particular steps which it did not do. If so, the consequent question is whether its failure invalidated the resulting orders. There is statutory support in the CTTT Act for such obligations. Thus, s.35 (set out at [69] above) provides that the Tribunal "must ensure" that each party is given "a reasonable opportunity" to present its case. Where necessary this will entail offering an appropriate adjournment, whether sought or not. In addition, s.28(4) (see [68] above) requires the Tribunal to "take such measures as are reasonably practicable" to ensure that the parties understand not only the nature of the assertions made in the proceedings, but also "the legal implications of those assertions".' (Emphasis added') 1. In the NCAT Act the content of the obligation upon the Tribunal to afford a party an opportunity to be heard is in terms that the Tribunal "is to take such measures as are reasonably practicable to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings ": s 38 (5) (c). 2. We appreciate that Tribunal Members set out to hear and decide cases in an expeditious manner in the context of very busy schedules for the hearing of a number of matters and that in this case the Tribunal Member had been allocated 90 minutes to hear the evidence and to produce a decision. Also, the fact that the appellant was 'away', as he stated in the transcript, in the week of 15 – 19 November appears to have been a factor, for which he was responsible, in his late receipt of the respondent's documents. 3. Nevertheless, it was the responsibility of the respondent to comply with the timetable for service of his documents and he was in substantial default in doing so. Tribunal Members need to be alert to matters such as late receipt of evidence by one party having an adverse effect on that party's ability to be in a position to consider and understand the other parties' evidence and to be able to address it at the hearing. 4. In the circumstances of this case, we consider that on hearing that the appellant had only received the respondent's document on the morning of the hearing, the Tribunal Member was required to enquire whether the appellant was in a position to proceed with the hearing and to offer 'an appropriate adjournment'. What an appropriate adjournment will be will depend upon the affected party's position, the size and nature of the late delivered material and the time allocated for the hearing. An appropriate adjournment may be for a short period on the day of the hearing, or to another day. 5. Furthermore, regardless of what transpired at the hearing in this case, for the reasons we have already given about late service of the documents and the nature of those documents, we consider that there was of procedural unfairness to the appellant because of the late service of the respondent's documents. 6. Despite these matters, however, as we explain below, we have decided that this procedural unfairness does not result in the decision being set aside. This is because the appellant has not shown that there was a possibility that his claim would have succeeded if he had been given sufficient time to consider and respond to the respondent's material. 7. In Re Minister for Immigration, Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 Gleeson CJ stated at paragraph 37: 'Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.' 1. In Stead v State Government Insurance Commission (1986) 161 CLR 141 ('Stead') the plurality stated at paragraphs 9 ,10 and in the first sentence of 11: 'That general principle is, however, subject to an important qualification which Bollen J. plainly had in mind in identifying the practical question as being: Would further information possibly have made any difference? That qualification is that an appellate court will not order a new trial if it would inevitably result in the making of the same order as that made by the primary judge at the first trial. An order for a new trial in such a case would be a futility. For this reason not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial. By way of illustration, if all that happened at a trial was that a party was denied the opportunity of making submissions on a question of law, when, in the opinion of the appellate court, the question of law must clearly be answered unfavourably to the aggrieved party, it would be futile to order a new trial. Where, however, the denial of natural justice affects the entitlement of a party to make submissions on an issue of fact, especially when the issue is whether the evidence of a particular witness should be accepted, it is more difficult for a court of appeal to conclude that compliance with the requirements of natural justice could have made no difference. 1. And at [16] in Stead that: 'Alternatively, if the Full Court is properly to be understood as saying no more than that a new trial would probably make no difference to the result, their Honours failed to apply the correct criterion. All that the appellant needed to show was that the denial of natural justice deprived him of the possibility of a successful outcome. In order to negate that possibility, it was, as we have said, necessary for the Full Court to find that a properly conducted trial could not possibly have produced a different result' 1. In Brarny Partners Pty Ltd v Miller [2020] NSWCATAP 256 the statements made in Stead were explained in the following way at [39]: 'If the appellant was not contacted, then an issue of procedural fairness arises as the appellant has been denied an opportunity to fairly put its case. However, denial of the opportunity to put its case does not necessarily result in a new hearing. An order for a new hearing will only be made if the appellant proves that the denial of an opportunity to put its case deprived it of a possibility of a successful outcome – Stead v State Government Insurance Commission [1986] 161 CLR 141. Put another way, if there was no possibility of a different result then a new hearing will not be ordered. On this issue, it is the appellant which must prove on appeal that, if it was given a new hearing, there would be a possibility that it would succeed.' 1. It is evident that the appellant's complaint was limited to an alleged failure by the respondent in relation to the camshaft of the vehicle. The respondent's main invoice for the work done, dated 12 November 2020, reveals that a variety of work was carried out, including goods supplied, which were not the subject of any criticism by the appellant. 2. On the basis of the facts alleged by the appellant the nature of the claim should have been seen as a claim for breach of statutory warranties as to acceptable quality concerning supply of goods (s 54 (1) of the Australian Consumer Law NSW) and as to due care and skill concerning the supply of services (s 60 of the Australian Consumer Law NSW). The remedy being a claim for loss and damage reflecting the cost of rectifying the problem with the camshaft: s 259 (3) (b), s259 (4), s 267 (3) (b) or s 267 (4) of the Australian Consumer Law NSW. 3. It follows in our view that the appellant had no basis for claiming a refund of all money paid to the respondent and that his claim, if established in connection with the cam shaft, would have been limited to: 1. any additional cost that he paid for the new cam shaft over and above the amount that the respondent would have been paid had it replaced the existing cam shaft; and 2. the amount expended in labour costs in having the old camshaft removed and the new cam shaft installed. 1. The material filed in the appeal by both parties included the evidence filed by the appellant at first instance. His evidence did not address the costs referred to in the preceding paragraph. The appellant's case for a total refund of the money paid to the respondent was misconceived. 2. Furthermore, the appellant did not show how the Tribunal Member's conclusion about failure to prove faulty work in respect of the camshaft might have been overcome. This was a problem that did not arise from the respondent's documents that were served late. It arose from the deficiencies in the material put forward by the appellant to the Tribunal at first instance. 3. In saying this, for reasons which we explain below, we disregard the new case about the cause of the noise in the engine that the appellant sought to advance on appeal based upon further investigation and assessments by new experts long after the hearing in November 2021. 4. As mentioned above, in further support of his late service of the respondent's documents point, the appellant contends that due to a shortage of time arising from the late receipt of the respondent's document, the applicant was unable to draw to the Tribunal Member's attention the fact that the invoices provided in the respondent's bundle were not identical to those supplied to and paid by the applicant as appearing in his own evidence. 5. However, this assertion was contested by the respondent and not otherwise established by the appellant on the appeal. In any event, the appellant did not show how any differences in these invoices could, possibly, have affected the outcome of the proceedings. 6. As to the contention about the 'Job Book', it was in fact this 'Job Book' document that the Tribunal Member was referring to in the excerpt from the transcript that we have referred to. The appellant submits that this document would have been pivotal in the proceedings as the respondent claimed that it formed an implied term of the contract between the parties as to the work to be performed and the cost to be incurred. The document in question has been provided by the respondent. It is an internal document that it prepared. 7. There is nothing in the Member's reasons that suggest that the contents of this 'Job Book' were in any way material to the outcome. Nor is there any indication in anything that was stated to the Tribunal Member by the respondent that we have been shown that this 'Job Book' document was relied upon by it in support of some implied term. At the hearing of the appeal, the appellant was unable to show any reason why the contents of this document or his earlier knowledge of it might have affected the outcome. 8. Finally, as to the directions made on 27 October 2021 before the hearing, the appellant complains that they were unreasonable 'given the distance between the location of the short motor, the distance between the Applicant and his mechanical expert and the requirement to assemble the evidence in the time permitted.' 9. The directions of 27 October 2021 stated so far as is relevant: '3. The applicant agrees to allow the respondent to collect the motor from Marulan on or before Friday 29 October 2021 for the purpose of inspection of the goods, and to return the goods to Marulan on Monday 1 November 2021. 4. The timetable is extended. The applicant shall provide to the respondent and the Tribunal, either in person or by post, a HARD copy of all documents (see note below), on which the applicant intends to rely at the hearing by 05-Nov-2021. 5. The respondent shall provide to the applicant and the Tribunal, either in person or by post, a HARD copy of all documents (see note below), on which the respondent intends to rely at the hearing by 12-Nov-2021.' 1. The applicant states in support of this Ground of Appeal: 'It will be noted from these Directions that the timetable was unreasonable for both Parties, but in particular the Respondent returned the motor to the Applicant on 1 November in the late afternoon, the next day was Melbourne Cup Day and the location to which the motor had been returned was closed. The next working day, 3 November the applicant took the motor to Seven Hills for inspection and returned with it the same day. The expert report was received on the morning of 5 November after which the Applicant needed to assemble the Applicant's Bundle in duplicate (being one for the Respondent and one for the Tribunal) by copying and filing the original documents. The Applicant then drove to Liverpool to deliver the Tribunal's copy (as emails are not acceptable) in person and to post by express post the identical copy to the Respondent.' 1. What the appellant does not, however, refer to is the Notice of conciliation and hearing in a virtual hearing room for 27 October 2021, dated 5 October 2021 (the day appellant commenced his proceedings in the Tribunal), which was given to the parties by the Tribunal. This Notice stated so far as the appellant was concerned: 'The applicant is to give to the respondent and send to the Tribunal any documents on which they intend to rely within 14 days from 05 October 2021.' 1. Accordingly, from on or about 5 October 2021, the appellant was on notice that he was obliged to provide the documents on which he relied by 19 October 2021. By order 4 made on 27 October 2021 the appellant was given further time to provide his evidence. All told the appellant was given about one month to provide his evidence. This was in circumstances in which, according to his application to the Tribunal, he had written to the respondent on 9 June 2021 setting out his complaint about defective work and he had taken the engine to Macklyn's for investigation in May 2021. 2. In these circumstances, we consider that the appellant was given ample time to prepare his evidence. Despite this, the appellant's Grounds of Appeal indicate that, at least in connection with the expert evidence consisting of a 1 page email from Mr Sam Akbar (at Seven Hills), dated 3 November 2021, that the obtaining of this evidence was not commenced until after the directions hearing on 27 October 2021. 3. For the above reasons, the appeal does not succeed on the grounds of procedural unfairness. Leave to Appeal New evidence ground 1. As we have mentioned, at the forefront of Ms Mckay's arguments on the appeal, was her contention that new evidence showed that the alarming noise heard on start-up of the engine was caused by poor machining of con-rods for two of the pistons causing misalignment with the crankshaft. This had nothing to do with the alleged defective camshaft. 2. This new case was centred upon an expert report obtained from Mr Kannen from Car Solutions Motor Vehicle Consultants, dated 8 February 2022, which, in turn, followed an inspection of the engine by Southern Engine Reconditioning on or about 28 January 2022, at the appellant's request (there were some additional associated evidence as well). 3. However, with respect to this evidence, the appellant could not overcome the hurdle that he needed to show that the evidence was not reasonably available at the time of the hearing. The ground of appeal with respect to new evidence does not allow the introduction of new evidence, the desirability of which becomes apparent after the first instance proceedings are concluded and the Tribunal decision handed down. The appellant is not entitled to a "second go" in this manner. The test is an objective one and whether "no person could have reasonably obtained the evidence": Owen v Kim [2017] NSWCATAP 26 at [40]. 4. Well before the hearing on 22 November 2021, and indeed before he commenced proceedings, the appellant had the opportunity to fully investigate the cause of the alarming noise that he said occurred and to fully investigate for any other defects in respect of the respondent's work. As appears from Macklyn's invoice and the email from Mr Akbar, the engine was dismantled and problems were identified. 5. Ms Mckay submitted at the hearing of the appeal that the appellant did not have enough time to have the work fully investigated and assessed, but, as we have indicated in the timeline of events earlier in these reasons, that is, plainly, not correct. 6. The appellant stated in his Notice of Appeal that he has new evidence about the lifters in light of the photographs and an inspection of the lifters supplied to the respondent. He states that this material was not available at the time of the hearing owing to the timetable. 7. At the hearing of the appeal, after Ms Mckay left the hearing, Mr Brown sought to show us that photographs of the lifters presented to the hearing by the respondent were not the lifters in the engine returned to the appellant by the respondent. He asserted that the photographs were knowingly false evidence presented to the Tribunal by the respondent. As we understood it, Mr Brown was claiming that the respondent changed the lifters to better ones after his expert (Mr Sant) had inspected the engine parts (who reported that the lifters were 'quite dirty") and before these were returned to the appellant and provided to Mr Akbar (who, as mentioned above, reported that the lifters were "good"). We should note that the respondent gave evidence to the Tribunal to the effect that the dirty lifters were installed by the appellant and that he told the appellant that this was a problem. 8. On the appeal, these matters did not rise beyond assertions by the appellant. 9. The problem for the appellant was that he had a reasonable opportunity to investigate and present to the Tribunal any case about defective lifters, but he failed to do so. For reasons we have already explained, the opportunity existed well before the engine parts were presented, very late in the piece, to Mr Akbar. The opportunity existed at the time when Macklyn's inspected the engine and for a lengthy period thereafter. In this regard, as we identified above, we also note that Macklyn's invoice included a cost in respect of 12 roller lifters. Not fair and equitable 1. The appellant seeks leave to appeal on the basis that the decision was not fair and equitable. 2. At 6Bi of his Notice of Appeal the appellant stated in connection with this aspect of his appeal: 'The Member failed to understand the true nature of the complaint. The Applicant did not suggest that the respondent failed to supply and fit rings and bearings, to hone and linish (sic) etc. The argument was not that the engine noise was caused by the Respondents faulty workmanship. The Applicant would not have known that the camshaft was unserviceable or other parts not up to standard, if it had not been for the engine noise. The fact that the Applicant was unable to demonstrate that no quote had been provided (because the purported quote was not included in the Bundle of Documents supplied by the Respondent) the Member found in favour of the Respondent. This may have prejudiced the opinion of the Member about the credibility of the Applicant's evidence.' 1. If correct, it seems to us that if these are contentions about the approach taken by the Tribunal in its reasons were correct then the Tribunal made errors of law in asking itself the wrong questions. 2. However, they are not correct. The reasons do not show that the Tribunal considered and responded to a case was that the respondent failed to supply and fit rings and the other matters referred to. The appellant's application, with its account of what had occurred, in conjunction with the Macklyn's invoice, entitled the Tribunal to consider and respond to a case that the noise was caused by a defective camshaft. Finally, the Tribunal's reasons do not indicate that it attached any significance to the lack of proof by the appellant that a quote had not been provided. Against the weight of evidence 1. The appellant has also applied for leave to appeal on the basis that the decision of the Tribunal Member was against the weight of evidence. 2. In Collins v Urban the Appeal Panel explained at [77] that: '77. As to the particular grounds in cl 12(1)(a) and (b), without seeking to be exhaustive in any way, the authorities establish that: …. (2) The decision under appeal can be said to be "against the weight of evidence" … where the evidence in its totality preponderates so strongly against the conclusion found by the tribunal at first instance that it can be said that the conclusion was not one that a reasonable tribunal member could reach - Calin v The Greater Union Organisation Pty Ltd (1991) 173 CLR 33 at 41-42, Mainteck Services Pty Limited v Stein Heurtey SA [2013] NSWSC 266 at [153].' 1. The appellant's Grounds of Appeal and Submissions are not precise in connection with this aspect of the appeal. For example, it submitted in general terms that: 'the Member failed to take adequate notice of the Applicant's evidence' and that 'There was unequal credence given to the Respondent's expertise and history with engines in preference to the knowledge and expertise of the Applicant.' 2. Neither in the Grounds of Appeal nor in submissions did the appellant attempt to show that the totality of the evidence demonstrated clearly that he should have succeeded. Amongst the problems for the appellant in establishing this ground of appeal was that we were not provided with the transcript of the whole of the hearing. 3. Whilst a claim such as this in the Tribunal for some $2,000 should not occasion extensive expert evidence, nevertheless, the material from the appellant's experts was, notably, "light on". It was, particularly, unsatisfactory that the only evidence from Macklyn's, to whom the appellant first took the engine for assessment, consisted of a tax invoice only, with no analysis of alleged defective work by the respondent. Furthermore, the one- page report from Mr Akbar also lacked relevant analysis. 4. This ground of appeal does not succeed. Orders 1. For the above reasons, we make the following orders: 1. Leave to Appeal is refused. 2. The Appeal is 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: 02 May 2022