Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Baranowski v Walker [2023] NSWCATAP 59 Hearing dates: 4 October 2022 Date of orders: 28 February 2023 Decision date: 28 February 2023 Jurisdiction: Appeal Panel Before: M Harrowell, Deputy President G Burton SC, Senior Member Decision: 1. Leave to appeal is refused and the appeal is otherwise dismissed. Catchwords: APPEALS – Leave to appeal – no substantial miscarriage of justice – leave to appeal refused 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 Texts Cited: Nil Category: Principal judgment Parties: First Appellant: Bohdan Baranowski Second Appellant: Polgage Pty Ltd as trustee for Baranowski Family Trust trading as Ken Stokes Good St Automotive Smash and Mechanical Respondent: Alan Walker Representation: Appellants: Mr Baranowski by Audio Visual Link Respondents: Mr Walker by phone File Number(s): 2022/00225705 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal of New South Wales Jurisdiction: Consumer and Commercial Division Citation: Not applicable Date of Decision: 13 July 2022 Before: S Hanstein, Tribunal Member File Number(s): MV 22/17753 reasons for decision Introduction 1. This appeal concerns a dispute in relation to replacement of an engine in Mercedes Benz van and a subsequent problem with the air-conditioner. The respondent in this appeal, Mr Walker, commenced proceedings MV 22/17753 in the Consumer and Commercial Division claiming an amount of $2,414.00 against Mr Baranowski and Polgage Pty Ltd (Polgage), an automotive repairer (collectively, the appellants). The claim related to the cost to repair the air conditioner which was not operating following the replacement of the vehicle's engine. 2. Mr Baranowski was the representative of Polgage and the person who dealt with Mr Walker on behalf of Polgage. 3. On 13 July 2022 the Tribunal ordered Polgage to pay Mr Walker the sum of $1,569.00 being the cost to repair the air-conditioner compressor. No orders were made against Mr Baranowski. Oral reasons were given for the decision (Decision). Notice of Appeal, directions for appeal and hearing of the appeal 1. The appellants filed the Notice of Appeal on 3 August 2022. The appeal was filed in time. 2. The grounds can be summarised as follows: 1. the decision was unreasonable, unfair and incorrect based on mistakes of fact or irrelevant grounds; 2. Polgage did not repair and had nothing to do with the repairs to Mr Walker's car; 3. the only work done by Polgage was to buy an "engine on behalf of Mr Walker" but Polgage "never repair[ed] or made any repairs to [Mr Walker's] vehicle". The cost of the engine was $6,600.00; 4. the appellants' evidence had not been taken into account by the Tribunal in making its decision. 1. The appellants sought leave to appeal. 2. Proceedings were listed for call-over and on 19 August 2022 the Appeal Panel directed the parties to file and serve evidence from the proceedings at first instance, including a transcript of the oral reasons and the sound recording of the hearing. In addition, the parties were to provide written submissions. 3. The appellants failed to provide a transcript of the evidence or the oral reasons. Hearing of the appeal and submissions 1. We heard the appeal on 4 October 2022. 2. The effect of the submissions made by the appellants was as follows: 1. Polgage did not have a contract with Mr Walker. An engine was bought on behalf of Mr Walker; however, Polgage did not carry out any repairs or installation of the engine. 2. Owing to issues regarding the absence of required identification number on the original engine (a matter not presently in issue), a second engine was supplied. 3. At the election of Mr Walker, installation of the second engine was carried out by another company (referred to as SGS). 4. The appellants say that Polgage had nothing to do with the installation of the second engine and the only payment that Polgage received was $6,600 (incl GST) for the supply of the engine. This was despite Polgage issuing what was referred to as a "pro forma" tax invoice to supply and install the engine. 1. In reply, Mr Walker said there was evidence that all works had been paid for before the Tribunal, some of the payments being made in cash. Otherwise, the respondent referred to documents filed in the proceedings at first instance which he said supported the findings of the Tribunal that: 1. Polgage contracted with him to supply and install a replacement engine; this was subsequently replaced with a second engine; 2. "SGS" supplied and installed the second engine as agent for Polgage; 3. At the conclusion of the installation of the second engine the air conditioner attached to that engine did not work and the need to repair the air-conditioning arose from work done by SGS. The respondent said that the air-conditioner attached to the second engine was not that attached to his original engine. Further, the air-conditioner attached to the original engine (that was to be replaced) operated correctly when the vehicle was originally delivered for repairs. 4. The cost awarded by the Tribunal reflected the cost to repair the air-conditioner. 1. At the conclusion of the hearing we made further directions concerning provision of the transcript and other documents in the following terms: 1 On or before the 11 October 2022, the Appellants are to forward to the Appeal Panel and Mr Walker, the following: a) A copy of the email from the Tribunal to the Appellants, containing the sound recording, as an attachment in electronic form, or link, in the email; b) A copy of the email dated 18 July 2022, from the Appellants to the Tribunal, requesting written reasons for the decision dated, 13 July 2022; c) A typed copy of any oral reasons of the Tribunal, recorded on the sound recording; d) A clear copy of the bundle previously filed on 12 September 2022, including all dates of emails and any markings. 2 The decision is reserved. 1. No further documents were filed by the appellants. The Decision 1. Despite the failure of the appellants to comply with directions of the Appeal Panel, after completion of the hearing we obtained the sound recording to ascertain if oral reasons were given and what was said. Following is a transcript of the oral Decision (with the time marks of the sound recording) which provides a succinct statement of the issues raised by the parties and why the Tribunal made the order for payment: [1:36:30] I am satisfied that there was an agreement between the applicant and Polgage Pty Ltd, trading as Ken Stokes Goodstreet Automotive/Mechanical, to supply and install the second-hand engine into the applicant's car. I am satisfied that although parts of that work may have been sub-contracted by that company to other bodies or entities to carry out the work, on the basis of the tax invoice provided I am satisfied that the agreement was between Polgage Pty Ltd and the applicant. [1:37:14] I have heard the explanation from Mr Baranowski on behalf of the respondents as to how that invoice has come about but I am satisfied on the balance of probabilities that that agreement existed, and I think it is simply not credible that in effect a dummy invoice would have been created to give the respondent some idea of what the cost would be if it was not the, sorry, to give the applicant some idea of what the cost would be if it was not the respondent who was carrying out the work – so I am satisfied there was the agreement between the applicant and Polgage Pty Ltd. [1:38:00] There were issues with the engine that was supplied and the parties utilised the processes of conciliation through Fair Trading and came to an agreement that the vehicle could either be returned to Ken Stokes Goodstreet Automotive and Mr Baranowski would have it repaired or it could be provided to Jeff Smith of SGS Parts Plus, the supplier of the engine. As it turned out, it was returned to Jeff Smith and a further engine was put in the vehicle, subsequent to which the applicant claimed the air-conditioning compressor was no longer working and required replacement. [1:39:00] Although it may have been an entity different from the respondents who carried out that further work, I am satisfied that that work was done as part of an agreement with the respondent by the applicant to rectify the previous issues and I am therefore satisfied that the respondent is responsible to the applicant for the work that was done. [1:39:25] I come then to whether the work was done in a manner that has caused damage to the air-conditioner compressor such that the applicant has suffered loss or damage in that and now needs replacing. I accept the applicant's evidence that the air-conditioning wasn't working once the vehicle was returned to him with the second replacement engine in it. I accept the evidence from the applicant that it was working before that time, because in my view, if he was going to the expense of having the engine in the vehicle replaced, he would have at least raised the issues with the air-conditioning squarely before that and sought to have had that repaired at the same time. [1:40:25] I note the respondent says there was a comment by the applicant prior to any of the work being done that the air-conditioning was not very efficient. There was no mention of it not working as it was after the vehicle was returned to the applicant with the second engine having been put in the vehicle. The respondent has submitted we don't have evidence as to the state of the compressor before the work but I am prepared to accept that it was within reasonable working state before the work was done. The applicant suggests that the compressor on the vehicle when it was returned to him was the one that had come with the replacement engine rather than being his part in the vehicle based on the official inspection of the air compressor, or the repairer. The respondent states that the compressor would have had to have been removed from the engine in order for it to be put in the vehicle, that its only the bare-block engine that is provided, and the customer's own accessories (which included the compressor) were to be used. Either way, I am satisfied that the vehicle has been returned to the applicant with the air-conditioning compressor not working, and I'm prepared to infer that that was a result of either an inadequate compressor being put onto the vehicle or some damage being caused to the compressor during the course of the exchange of the engine. In those circumstances I'm satisfied it's as a result of work for which the respondent is responsible, therefore I'm satisfied that it's loss or damage for which the respondent should compensate the applicant. [1:42:37] I've considered whether there should be some amount lesser than what's in the invoice, allowed to reflect that the applicant now has the benefit of a new air-conditioning compressor, but I'm not – there's no evidence before me to indicate that that puts him in a better position than he might have been in anyway, as it's not clear that a compressor is an item that needs to be replaced regularly in a vehicle in the usual course of events. In those circumstances I'm satisfied the whole amount that the applicant has paid out should be reimbursed. [1:43:19] In his application the applicant had also sought cost of his time in dealing with this issue but I'm not prepared to allow anything for that in the absence of any clear documentation and detail of that claim. There's also a claim for the cost of the second RMS inspection which was not pressed because that became unnecessary. Um, there was also an issue raised by the applicant about wanting a warranty for the second engine. I'm not satisfied that on the documents, significantly being the invoice provided by the respondent or the estimate, that it was clear that there would be any particular warranty to be provided with the engine. If indeed it is a 6 month, um, warranty then that may be something that can be relied upon if necessary down the track if there is any further issue with the engine but I'm not satisfied that that's something that the Tribunal should make an order about today. [1:44:34] So those are my reasons, that's my decision, an order will come out to both parties by email shortly. So thank you for your time and I'll end the call now. Goodbye. Consideration 1. The challenges made by the appellants require leave to appeal because they raise grounds other than questions of law: s 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). In short, the appellants challenge the Tribunal's findings of fact. 2. These challenges arise from a conflict between the evidence of Mr Baranowski and the respondent and how the Tribunal resolved those conflicts. 3. Schedule 4 cl 12(1) to the NCAT Act provides that leave may only be granted if 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). 1. Collins v Urban [2014] NSWCATAP 17 (Collins) sets out the principles applicable to the grant of leave. 2. As is evident from the Decision which we have set out above, the Tribunal found: 1. there was a contract for the supply and installation of a replacement engine between Mr Walker and Polgage; 2. an issue arose concerning the first replacement engine supplied relating to its engine number which was replaced with a second replacement engine, which work was carried out by Mr Geoff Smith/ SGS Parts Plus on behalf of Polgage; 3. following the return of the vehicle, the air-conditioning did not work and repairs needed to be carried out; 4. whether the air-conditioning unit was the original or one attached to the replacement engine did not matter, the Tribunal accepting the evidence of the respondent that the air-conditioner was working when his vehicle was originally submitted for repairs. 5. while a new air-conditioning unit was supplied as the means of repair, Tribunal was satisfied these costs were reasonable having regard to the nature of the repair required and that such units do not need to be "replaced regularly". 1. These findings were supported by documents provided to the Tribunal as evidence including: 1. The invoice for the original work dated 12 December 2021, to supply and install a replacement engine, provided by Polgage to the respondent (respondent's appeal bundle ("RB") p 5); 2. Email from Geoff Smith from SGS Parts Plus dated 4 April 2022 stating Polgage is the "customer" of SGS (RB p 2); 3. An email from NSW Fair Trading concerning what its officers had been told concerning the relationship between the parties and who would be responsible for the work (RB p 4); 4. Ultra-Tune letter from "Bradley" concerning Mr Baranowski providing the vehicle to Ultra Tune to test the air-conditioning (RB p 8); 5. The invoice from Lambton Automotive for the air-conditioning repairs (RB 7a). 1. In our view the findings of the Tribunal were reasonably open to the Tribunal and it could not be said that "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": Collins at [77]. 2. It follows we are not satisfied the appellants may have suffered a substantial miscarriage of justice. 3. Consequently, leave to appeal should be refused and the appeal otherwise dismissed. 4. In reaching this conclusion, we should note that both parties provide documents to the Appeal Panel that were not part of the evidence before the proceedings at first instance. Leave should not be granted to permit these documents in this appeal as the material is evidence which was reasonably available at the time of the original hearing: see Sch 4 cl 12(1)(c) and Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111. Orders 1. The Appeal Panel makes the following order: 1. Leave to appeal is refused and the appeal is otherwise 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: 28 February 2023