Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Haselden v Manning Valley Motor Holdings Pty Ltd t/a Mid Coast Automotive Group [2023] NSWCATCD 104 Hearing dates: 19 May 2023 Date of orders: 08 August 2023 Decision date: 08 August 2023 Jurisdiction: Consumer and Commercial Division Before: S Hanstein, General Member Decision: The application is dismissed. Catchwords: CONSUMER LAW — Consumer guarantees — Supply of goods and services — Guarantee as to due care and skill — Guarantee as to acceptable quality — Motor vehicle — Whether repairs done with due care and skill — Whether part of acceptable quality Legislation Cited: Australian Consumer Law (NSW) Cases Cited: Nil Texts Cited: Nil Category: Principal judgment Parties: Kristy Haselden (Applicant) Manning Valley Motor Holdings Pty Ltd t/a Mid Coast Automotive Group (Respondent) Representation: Applicant in person Mario Tomlin and Mark Stone (Respondent) File Number(s): MV 23/12799 Publication restriction: Nil REASONS FOR DECISION 1. The respondent carried out repairs to the applicant's Nissan X-Trail vehicle in November 2022, including replacing the slave cylinder in the clutch system. The applicant claims the work was not done with due care and skill, or the slave cylinder that was installed by the respondent was faulty. She seeks an order for compensation in the amount paid to another mechanic to have further work done to the clutch system, to replace the slave cylinder. Relevant law 1. Section 54 of the Australian Consumer Law (NSW) ("ACL (NSW)") provides, relevantly: 54 Guarantee as to acceptable quality (1) If: (a) a person supplies, in trade or commerce, goods to a consumer; and (b) the supply does not occur by way of sale by auction; there is a guarantee that the goods are of acceptable quality. (2) Goods are of acceptable quality if they are as: (a) fit for all the purposes for which goods of that kind are commonly supplied; and (b) acceptable in appearance and finish; and (c) free from defects; and (d) safe; and (e) durable; as a reasonable consumer fully acquainted with the state and condition of the goods (including any hidden defects of the goods), would regard as acceptable having regard to the matters in subsection (3). (3) The matters for the purposes of subsection (2) are: (a) the nature of the goods; and (b) the price of the goods (if relevant); and (c) any statements made about the goods on any packaging or label on the goods; and (d) any representation made about the goods by the supplier or manufacturer of the goods; and (e) any other relevant circumstances relating to the supply of the goods. ... 1. Section 60 of the ACL (NSW) provides: 60 Guarantee as to due care and skill 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. 1. Section 259(4) of the ACL (NSW) (and section 267(4) in respect to the supply of services) provides: (4) The consumer may, by action against the supplier, recover damages for any loss or damage suffered by the consumer because of the failure to comply with the guarantee if it was reasonably foreseeable that the consumer would suffer such loss or damage as a result of such a failure. Applicant's case 1. The applicant gave oral evidence and provided documentary evidence. Evidence was also given by Mr Salman, the mechanic who performed the subsequent work on the applicant's vehicle. 2. The applicant's evidence and submissions included the following. 3. The respondent replaced the clutch in the applicant's vehicle in November 2022, at a cost of $2,885. This included the fitment of a new slave cylinder. The vehicle had done nearly 92,000km at that time. 4. In January 2023, the applicant experienced issues with the clutch pedal dropping and took the vehicle to a Nissan dealership in Wollongong. Upon being informed that the dealership could not look at the vehicle for two to three weeks, the applicant arranged for the vehicle to be towed to her mechanic, also in Wollongong. The vehicle had done approximately 95,800km at that time. 5. The applicant informed the mechanic, Mr Salman, that repairs had been done to the clutch in November and the slave cylinder had been replaced, and also that that part was under warranty. 6. Mr Salman carried out a number of repairs, over a number of visits, which he described as a "test, replace and eliminate process". This was done so as to avoid if possible removing and refitting the gearbox, that being a big job. The work involved flushing the clutch hydraulic system, replacing the clutch master cylinder, replacing the clutch damper, and replacing the clutch oil pipe from the master cylinder to the clutch damper. When the vehicle again returned to Mr Salman, he considered there was no alternative but to replace the slave cylinder (which involved removing and refitting the gearbox). The vehicle had done over 97,000km by this time. Following that work, no further problems have presented. 7. Mr Salman is not an authorised Nissan dealer and so could not carry out warranty work on the vehicle, such as replacing the slave cylinder. 8. Mr Salman concluded, from the fact that no further problems presented, that the slave cylinder had been causing the clutch problems with the vehicle, by losing pressure internally. He suggested that the problem with the slave cylinder could have been caused by those who had installed it, by touching it and accidently dislocating the seal inside, or by forcing it and damaging the part which was made of plastic. Or it could be a faulty part. In an apparently throw away line, he said " it could be anything". 9. Under questioning from the respondent, Mr Salman agreed that if it were something done during installation by the respondent that caused the slave cylinder to fail, it is likely the slave cylinder would have failed at an earlier time, which perhaps suggested it was a faulty part. He then later suggested that the system may not have been properly bled, to remove all air, when the slave cylinder was installed. 10. The applicant was informed by NSW Fair Trading that she did not have to have investigation and repairs carried out by a Nissan dealer. She informed the respondent that there had been problems with the clutch after the work it had done. She informed the respondent the vehicle was being looked at and she would keep the respondent informed, and provide a diagnostic report. No report was provided to the respondent because the applicant did not get one. Respondent's case 1. The respondent denies the claim by the applicant. Mr Stone and Mr Tomlin gave oral evidence, and the respondent also provided documentary evidence. 2. The respondent's evidence and submissions included the following. 3. The applicant had not demonstrated that there was anything done wrong by the respondent. No independent report has been provided by the respondent, and there are no photographs of the slave cylinder or other evidence from which the cause of the failure of the part can be determined. It might have been damaged by the applicant's driving, for example if she was "excessively hard on the clutch". Or possibly Mr Salman has caused some damage by not properly bleeding the system when carrying out the other repairs. 4. It is unlikely the vehicle would have driven as long as it did, after the work was carried out by the respondent, if the part was faulty when installed by the respondent or something had happened when the part was installed. 5. If the vehicle had been returned to the respondent, or another Nissan dealer, the part would have been replaced under warranty. The applicant knew the part was under warranty and it is not reasonable to expect the respondent to cover the cost of having it replaced because she did not take it to a Nissan dealer. 6. The applicant did inform the respondent there were problems with the clutch, but did not provide the foreshadowed diagnostic report. There are a number of issues that could have been causing clutch problems that had nothing to do with the respondent, so it was reasonable for the respondent to take no further steps until further information was provided by the applicant, which she said she would do. The applicant did not inform the respondent that there was a problem with the slave cylinder until after it had been replaced. Had the applicant informed the respondent that there was an issue with the slave cylinder, they would have had the vehicle towed to a Nissan dealer for the work to be done at no cost to the applicant. Consideration 1. I am satisfied this is a consumer claim and the Tribunal has jurisdiction to hear and determine it. 2. The onus is on the applicant to establish her claim. 3. On the evidence before me, I cannot determine what has caused the slave cylinder to fail. There is no report as to the cause of failure, and no photographs or other evidence from which it can now be considered, as the part has been replaced and presumably disposed of. Mr Salman, the mechanic carrying out the replacement, was more focussed on repairing the vehicle than working out what had caused the part to fail. As I understood his evidence, he thought perhaps the most likely cause was that it was a faulty part but his position was very uncertain. The respondent has suggested that the failure could be the result of the manner in which the applicant has driven the vehicle or even the failure by Mr Salman to properly bleed the system when he was carrying out repairs. 4. There is not sufficient evidence for me to be satisfied that the failure of the slave cylinder was due to the work done by the respondent. There is no direct evidence and I am not prepared to infer it from the circumstances. In the circumstances I am not satisfied that the respondent has failed to provide services with due care and skill. 5. On balance, I am also not satisfied, on the evidence before me, that the slave cylinder supplied by the respondent was not of acceptable quality within the meaning of section 54 of the ACL (NSW). There appear to be other possible causes of the failure, such as those suggested by the respondent and Mr Salman, and I am not persuaded that the part was faulty when supplied. 6. Further, even if I am wrong about that, I am not satisfied an order should be made for the respondent to pay compensation to the applicant for the slave cylinder being replaced by Mr Salman. In the usual course, a vehicle would be returned to the repairer for the issue to be inspected and repaired if necessary. Here, the applicant informed the respondent that there was generally a problem, but it was not clear on that information that the issue was with work done by the respondent. I accept it was reasonable for the respondent to take no further action at that time, and to await further, foreshadowed, information from the applicant. As it turns out, no further information was provided by the applicant and the respondent was not informed there was an issue with the slave cylinder prior to the part being replaced. That has denied the respondent the opportunity of rectifying the issue, or having the issue rectified. 7. I am satisfied the slave cylinder was covered by Nissan warranty, and the applicant knew that, and it would likely have been replaced without cost to the applicant had the vehicle been taken to a Nissan dealer. I accept the respondent, if properly informed, would have arranged the repair to be carried out at a Nissan dealer. I am satisfied that a consumer, acting reasonably, would pursue the possibility of warranty repairs rather than paying to get repairs done by a repairer not authorised to carry out warranty repairs. I find that it was not reasonably foreseeable, in the circumstances of this case, that the applicant would suffer loss or damage (being the costs incurred in replacing the slave cylinder) as a result of the first slave cylinder not being of acceptable quality. Instead the loss or damage resulted from her not seeking to have repairs done by the respondent, or by another Nissan dealer under warranty. 8. If the claim is considered under general contract law, rather that as a claim under the ACL (NSW), then the same facts would lead to a conclusion that the applicant has failed to act reasonably to mitigate her loss. 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. 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