Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Bates v Craig Wrightson Automotive Pty Limited [2022] NSWCATCD 55 Hearing dates: 6 December 2021, 31 January 2022 Date of orders: 20 April 2022 Decision date: 20 April 2022 Jurisdiction: Consumer and Commercial Division Before: S Hanstein, General Member Decision: The application is dismissed. Catchwords: CONSUMER LAW — Consumer guarantees — Supply of services — Guarantee as to due care and skill — Motor vehicle — Whether repairs done with due care and skill Legislation Cited: Australian Consumer Law (NSW) Cases Cited: Hueter v Learn To Trade Pty Limited [2018] NSWCATCD 71 Texts Cited: Nil Category: Principal judgment Parties: Paul Bates (Applicant) Craig Wrightson Automotive Pty Limited (Respondent) Representation: Applicant (Self-represented) Respondent (Self-represented) File Number(s): MV21/39839 Publication restriction: Nil REASONS FOR DECISION 1. The applicant seeks an order that the respondent pay the cost of repairs to his 2001 Ford Transit Winnebago ("Vehicle") which he claims are necessary as a result of previous repairs (involving the supply and installation of a second hand engine) not being carried out by the respondent with due care and skill. Relevant law 1. Section 60 of the Australian Consumer Law (NSW) ("ACL (NSW)") provides that: if a person supplies, in trade or commerce, services to a consumer, there is a guarantee that the services will be rendered with due care and skill. Whether s 60 of the ACL (NSW) has been breached requires an objective assessment of whether the services provided were provided with reasonable care and skill, taking into account all relevant circumstances, including the type of services to be provided and the price of the services (Hueter v Learn To Trade Pty Limited [2018] NSWCATCD 71 at [86]). Applicant's case 1. The applicant seeks the cost of repairs as set out in two quotes provided by All Haul Transport Pty Ltd ("All Haul"), dated 31 August 2021: one to remove and replace the gearbox and clutch ("Gearbox Repairs"); and the other to remove and replace sump and crank angle sensor and bracket ("Engine Repairs"). 2. The applicant claims the Engine Repairs are necessary as there is a crack adjacent to the sump pan and the applicant alleges this was either present when the engine was installed by the respondent or was caused by the respondent during the installation. Also, the crank angle sensor has been glued in. 3. The applicant claims the Gearbox Repairs are necessary as the clutch bearing sleeve had not been installed correctly when the respondent installed the clutch, causing damage to the gearbox. 4. The applicant claims he took the Vehicle back to the respondent several times during the warranty period including for oil leaks. The only oil leak they fixed was in relation to the vacuum pump as the applicant provided a new vacuum pump and gasket and the respondent installed them free of charge. The applicant was informed that he would have to pay for any work to fix oil leaks and, unhappy with the service from the respondent, he later took the Vehicle to All Haul for repairs. 5. The applicant relied on evidence from Mr Kay, a mechanic for 19 years, from All Haul and Mr Lima from Double Chex Vehicle Inspections ("Double Chex"). All Haul worked on the Vehicle (see below) and Double Chex inspected the Vehicle to provide a report for the purpose of these proceedings. Mr Lima's report includes details of his qualifications and experience and agreement to abide by the expert code of conduct. Respondent's case 1. The respondent denies the claim by the applicant. It states that it was engaged to take out the old engine and install the second hand engine which it did. It did not touch or do any work to the gear box, and any issue with the gear box is nothing to do with it. A new clutch was installed, which goes onto the engine flywheel. The clutch was attached onto the sliding sleeve, which was wiped over – the sleeve was not pulled out from the gearbox. 2. The respondent submits the engine is still running. It notes the engine installed was second hand, having done 160,000km, and there may be issues with oil leaks or other issues, and it would be the responsibility of the customer to pay for any further work needed as a result. A six month warranty was provided on the engine. No warranty was provided for the accessories. The Vehicle itself was aged, and parts were worn out. The gearbox was nearly 300,000 km old and that may be the cause of the issue. (Double Chex appears to be open to the possibility that wear and tear may be a factor in the gearbox problem.) 3. The respondent stated that the crank angle sensor came already fitted to the second hand engine and that, if that had not been in place properly, the engine would not have run once it was installed. 4. The respondent stated that the crack was most likely caused by All Haul when the gearbox was pulled out. The respondent submits that, if the crack was present when work was done by All Haul in late 2020 they surely would have noticed it. 5. The respondent claims that the only times the respondent brought the Vehicle back was with difficulty starting caused by an electrical issue - the respondent arranged an appointment for its auto electrician to fix it and charged the applicant at cost price - and an oil leak coming from vacuum pump - the applicant had a new one, so the respondent installed it free of charge. The respondent says the Vehicle was not returned after this. The applicant may have been told that he would have to pay to have any oil leaks fixed as that would not be covered by the warranty. 6. The respondent relied upon a report by David Marston, an Automotive Master Mechanic. Mr Marston's report includes details of his qualifications and experience and agreement to abide by the Tribunal's Practice Direction in respect of Expert Evidence. Mr Marston did not inspect the Vehicle but provided his opinion based on documentary evidence provided to him which included invoices outlining work done to the Vehicle by the respondent and All Haul, the report by Double Chex, photographs of parts of the Vehicle and a video. Findings of fact 1. I am satisfied, on the balance of probabilities, on the evidence before me, of the following matters. 1. In December 2019, the respondent fitted a second hand engine to the Vehicle, with a six month parts and labour warranty provided on the bare long engine only. The engine was sourced from a reputable supplier and had testing done prior to its supply. Existing accessories from the second hand engine were also fitted. No warranty was provided for the accessories. A new clutch and flywheel assembly was also installed. At that time, the Vehicle had travelled about 280,000km. The second hand engine had travelled approximately 160,000km. The installation of the engine and changing of clutch did not involve removing the gear box, and no work was carried out on the gear box. The cost of the work was $11,280. 2. In about mid December 2019, the Vehicle was returned to the respondent with an engine oil leak from the vacuum pump and an electrical issue causing hard engine starting. These issues were addressed by the respondent, with some but not all of the cost passed onto the applicant, which the respondent described as "goodwill". 3. The applicant was informed by an employee of the respondent that any oil leaks would "be at an extra charge". 4. In September 2020, at a mileage of 285,556km, the Vehicle was taken to another business, All Haul. Work was carried out over a two month period which included repair of some oil and coolant leaks, and other work including to the differential and brakes. Some of the leaks were from accessories fitted with the engine by the respondent (which were expressly not covered by the warranty given). 5. The Vehicle was returned to All Haul on 26 July 2021, with a mileage of 287,576km, with an issue of fourth gear failure. All Haul partially dismantled and inspected the Vehicle, including removing the gearbox. It was found that the gearbox was faulty causing the failure of fourth gear. The witnesses appear to agree that the clutch bearing sleeve was cross-threaded or worn, resulting in loss of transmission oil which likely caused the damage to the gearbox. Also discovered at this time was the crack in the engine casing adjacent to the sump pan, and that the crank angle sensor had been glued in. (The respondent stated that the crank angle sensor was already attached to the engine when the engine was installed by the respondent.) 6. Following this time, the applicant contacted the respondent seeking compensation. Consideration 1. I am satisfied this is a consumer claim and the Tribunal has jurisdiction to hear and determine it. 2. A difficulty for the applicant is that he has had extensive further work carried out on the vehicle by a third party, and quite some time has passed, prior to the commencement of these proceedings. It is therefore more difficult than it may have otherwise been to establish that the repairs now needed are due to the work that was carried out by the respondent. The onus is on the applicant to establish the elements of his case. If I am not satisfied, on the balance of probabilities, that the work set out in the two quotes is necessary as a result of the respondent not carrying out the work it was engaged to do with due care and skill, or as a result of the engine not being fit for purpose, then the applicant's case fails. 3. I am not satisfied, on the balance of probabilities, that the crack in the engine casing was either present when the engine was installed by the respondent or was caused by the respondent during the installation. 4. I am satisfied the respondent inspected the engine prior to installation and did not see the crack prior to, or during installation of, the engine. There would be no benefit at all to the respondent in installing the engine with the crack as it would likely cause problems which the respondent would be liable to rectify. 5. I accept the evidence on behalf of the respondent that the manner of installation of the engine did not involve removing the gearbox and was not very likely to have caused the crack. For example, Mr Marston's evidence was that the method of engine installation by the respondent would not put pulling or leverage strain on the back of the engine (which strain may be the cause of a crack like this). 6. It is possible that the crack has occurred when the gearbox was removed by All Haul. I am not making a finding that that was likely (and I do not need to for the purposes of this case), but given that it is real possibility, I am not satisfied on the evidence before me, on the balance of probabilities, that the crack was either present when the engine was installed by the respondent or was caused by the respondent during the installation. 7. There was considerable debate between the witnesses as to whether the crack would have been seen by All Haul when working on the Vehicle in the period between September and November 2020, which work included investigating and repairing engine oil leaks. Mr Marston's evidence was that, had the crack been present from the time of engine installation, it would have been noticed during the repairs by All Haul as it was close to the area of the engine worked on by All Haul. He supported this opinion by indicating the proximity of the area worked on to the crack on photographs supplied of the crack. Conversely, Mr Kay from All Haul stated that the area where the crack is was not visible until the gear box was pried off and therefore was not seen when the earlier repairs were carried out. In light of my findings set out above, it is not necessary for me to resolve this issue. If All Haul had seen the crack in late 2020 that may have strengthened the applicant's case, but it did not. 8. The applicant claims there was an oil leak around the area of the crack both before and after the Vehicle was worked on by All Haul, which he claims supports the position that the crack was present prior to work being done by All Haul. Mr Marston stated that the crack would be likely to have been leaking oil, although Mr Kay denied that. As noted above, All Haul did not discover this crack when investigating for oil leaks. I am not prepared to find, simply on the anecdotal evidence of the applicant that there was an oil leak in this area, that the crack was present and resulting in an oil leak prior to September 2020. There is no corroborating expert evidence about the oil leak prior to that time, and I am not satisfied the only explanation for oil being seen by the applicant was that the crack was present. 9. There was also a difference of views between the parties as to whether the applicant was entitled to have oil leaks repaired under warranty. The applicant claims he had returned the Vehicle to the respondent within the warranty period but then, upset by the service he received, he "decided [he] would have to save up and take it to another mechanic as in no way would [he] want [the respondent] to ever touch [his] van again." The respondent states that the applicant was never refused service but was informed that he would have to pay for oil leaks to be rectified, or that oil leaks were not covered by the warranty. 10. If there were oil leaks as a result of the services provided by the respondent not being provided with due care and skill, then the applicant may have been entitled to have repairs done by the respondent at no cost. I am not satisfied the applicant adequately pursued any issue with oil leaks with the respondent and instead chose to take the Vehicle elsewhere. 11. I am satisfied that the crank angle sensor was "glued in" when the engine was provided to and installed by the respondent. The evidence does not demonstrate any fault with the operation of the crank angle sensor, and I am not satisfied that not replacing that part when the engine was installed demonstrates failure by the respondent to provide the services with due care and skill. 12. I am not satisfied that the respondent is responsible for any faults with the gearbox. I accept that it did not remove the gearbox when installing the engine and did not work on the gearbox. The work done to connect the clutch bearing does not, on the evidence before me, seem likely to have caused the issue. I accept Mr Marston's evidence, who is very experienced, that wiping or even light sanding would be unlikely to have caused this issue. On the evidence before me, it is possible the issue was simply caused by parts being worn out, which may not be surprising in a vehicle of this age and mileage. Mr Lima does not exclude the possibility that "wear and tear" has played a part. As noted above, the onus is on the applicant, and I am not satisfied he has discharged that onus. 13. There was some suggestion in the applicant's case that further steps should have been taken by the respondent to ensure that the engine and accessories were fit for purpose, that some accessories should have been replaced and/or the applicant put on notice that there were worn out parts requiring replacement. However, there appears to be a difference of opinion between the witnesses about whether the respondent needed to go beyond what he had been engaged to do. I note that the repairs done by the respondent cost over $11,000 and repairs done by All Haul in late 2020 cost over $12,500. In a vehicle this old, with this mileage, it is likely there are many parts that may be coming to their end of life. The respondent was not engaged to carry out a full inspection to determine what work might be needed, and it would likely be expensive to do so. I am not satisfied that it has been established, on the balance of probabilities, that the respondent did not do what was agreed, or that there was any failure to provide the services with due care and skill. Order 1. It follows that the application 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: 22 June 2022