Civil and Administrative Tribunal New South Wales Medium Neutral Citation: My Pool Safety Inspector Pty Ltd v MCM Sutherland Pty Ltd [2024] NSWCATAP 58 Hearing dates: 5 February 2024 Date of orders: 10 April 2024 Decision date: 10 April 2024 Jurisdiction: Appeal Panel Before: K Rosser, Principal Member RC Titterton OAM, Senior Member Decision: (1) The appeal is allowed. (2) Orders made on 23 October 2023 in proceedings MV 23/14391 are set aside. (3) In substitution for the orders made by the Tribunal, the following orders are made: "1. MCM Sutherland Pty Ltd is to pay My Pool Safety Inspector Pty Ltd the sum of $33,673.77 within 14 days of the date of these orders. 2. MCM Sutherland Pty Ltd is to pay My Pool Safety Inspector Pty Ltd's costs of the Tribunal proceedings in the sum of $578.30 within 14 days of the date of these orders." (4) The respondent is to pay the appellant's costs of the appeal in the sum of $972.00 within 14 days of the date of these orders." (5) If either party seeks a different costs order in relation to the Tribunal proceedings and/or the appeal proceedings, the following orders apply: (a) The costs orders made above cease to have effect. (b) The party seeking a different costs order (the costs applicant) is provide to the other party (the costs respondent) and the Appeal Registry any evidence and submissions in support of the different costs order within 14 days of the date of these orders. (c) The costs respondent is to give to the costs applicant and the Appeal Registry any evidence and submissions in response to the application for a different costs order within 28 days of the date of these orders. (d) The costs applicant is to give to the costs respondent and the Appeal Registry any evidence or submissions in reply within 35 days of the date of these orders. Catchwords: APPEALS – Compensation claim – question of law – Tribunal ordering a refund of the purchase price rather than compensation for the reasonable cost of repairs as sought Legislation Cited: Australian Consumer Law, ss 54, 259, 260, 263 Civil and Administrative Tribunal Act 2013 (NSW), ss 80, 81; cl 12 of Sch 4 Civil and Administrative Tribunal Rules 2014 (NSW), rr 4, 25 Fair Trading Act 1987 (NSW), ss 79E, 79I, 79J Motor Dealers and Repairers Act 2013 (NSW), ss 68, 69, 77 Cases Cited: Barbour v Autosports Five Dock Pty Ltd [2020] NSWCATAP 141 Cachia v Hanes (1994) 179 CLR 403 Collins v Urban [2014] NSWCATAP 17 Cominos v Di Rico [2016] NSWCATAP 5 Latoudis v Casey [1990] 170 CLR 534 Malkinson v Trim [2003] 2 All ER 356 Oshlack v Richmond River Council (1998) 193 CLR 72 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Texts Cited: N/A Category: Principal judgment Parties: My Pool Safety Inspector Pty Ltd – Appellant MCM Sutherland Pty Ltd – Respondent Representation: T Yeoh (Appellant) A Penafiel (Respondent) File Number(s): 2023/348145 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 23 October 2023 Before: P Millar, General Member File Number(s): MV 23/14391 REASONS FOR DECISION Introduction 1. This is an internal appeal under s 80(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act) against a decision made in the Consumer and Commercial Division of the Tribunal (the Tribunal) on 23 October 2023. At the appeal hearing, the appellant's director Mr Yeoh appeared on behalf of the appellant and the respondent's principal Mr Penafiel appeared on behalf of the respondent. 2. The Tribunal's decision concerned an application brought by the appellant against the respondent under the Fair Trading Act 1987 (NSW) (the FT Act), in relation to an allegedly defective Land Rover the respondent supplied to the appellant in December 2022. 3. The application was heard on 23 October 2023 and the Tribunal's decision was published on 26 October 2023. The Tribunal ordered the respondent to refund to the appellant $45,990, which was the purchase price of the Land Rover. The Tribunal also ordered the respondent to collect the Land Rover from the appellant at the respondent's cost. 4. The appellant appeals from this decision because he wanted the Tribunal to order the respondent to pay him the quoted cost of repairing the vehicle. He did not want to return the vehicle and obtain a refund of the purchase price. 5. For the reasons set out below, we have decided to allow the appeal, set aside the Tribunal's orders and order the respondent to pay the appellant the sum of $33,673.77. Background and Tribunal proceedings 1. The appellant's application to the Tribunal was lodged on 26 March 2023. In the application, the appellant sought an order for payment of the sum of $33,673.77. This is the sum he was quoted to repair the Land Rover by Brisbane City Jaguar Land Rover (JLR Brisbane). It is not in dispute that the respondent had asked the appellant to take the vehicle to this dealer to be inspected. 2. The application was originally listed for conciliation and hearing on 27 April 2023. As the parties did not settle their dispute, the Tribunal made procedural directions for the filing and service of documents and adjourned the matter for final hearing. 3. The matter was listed for hearing on 25 July 2023. The hearing on that date was adjourned because the appellant had not given the documents on which he wished to rely at the hearing to the respondent. The Tribunal made further procedural directions in respect of the provision of documents and adjourned the matter for hearing. The directions included directions designed to facilitate inspection of the Land Rover. 4. The final hearing was listed on 23 October 2023. Mr Yeoh appeared for the appellant and Mr Penafiel appeared for the respondent. The appellant had provided documents to the respondent and the Tribunal on which the appellant sought to rely at the hearing. The respondent did not rely on any documents. 5. The Tribunal's reasons for decision indicate that for a variety of reasons the respondent was not prepared to undertake repairs to the vehicle. The respondent offered to refund the purchase price and pay the costs claimed for transport and registration. 6. Mr Yeoh indicated that the appellant did not want a refund of the purchase price given the time it would take to purchase a new vehicle and the risk that he could have the same problems with another vehicle. 7. The Tribunal recorded oral evidence given by Mr Penafiel's as follows: 6…. In his evidence, Mr Penafiel said that the respondent did not dispute the defects listed in the inspection form. For that reason, he said the respondent was willing to refund the applicant the entire purchase price for the vehicle. Mr Penafiel stated that the respondent would not undertake repairs to the vehicle due to the total cost amounting to approximately $33,000 for a used vehicle the value of which would only decrease over time. 7. Mr Penafiel stated that the cost of those repairs was significant and there was also the risk that there could be further defects after repairs were undertaken given that the car was used and had an odometer reading over 100,000 kilometres. In addition, he was concerned that there could be a shortage of parts for the vehicle and so the respondent could not give a time frame for how long these repairs would take, which Mr Penafiel stated would affect the applicant's business for which the vehicle was used. He also said that to settle the dispute the respondent would pay the amounts claimed for transport ($1,500) and re registering the vehicle ($2,000). The Tribunal's reasons for decision 1. In written reasons for decision published to the parties on 26 October 2023, the Tribunal relevantly found: 1. The Tribunal had jurisdiction to determine the application as a consumer claim within the meaning of s 79E of the FT Act. 2. The cause of action was whether the respondent had failed to comply with the acceptable quality guarantee set out in s 54 of the Australian Consumer Law (the ACL). 3. A major failure to comply with s 54 could entitle the appellant to a refund of the purchase price of the vehicle. 4. The vehicle was not of acceptable quality. 5. There was a major failure to comply with the guarantee of acceptable quality "based on the evidence about the defects in the vehicle and the estimated cost of repairing the vehicle". 6. The appellant's notification to the respondent of defects in the vehicle could be considered as a rejection of the goods within the meaning of the ACL. 7. The appellant was entitled to a refund of the purchase price. 8. The appellant did not claim compensation under s 259(3) or s 259(4) of the ACL and did not advance evidence in respect of those sub-sections. 9. Had the appellant made any claims or made submissions in respect of compensation, the correct amount to award to him would have been the cost of repairs that need to be done to the vehicle. On that basis the applicant could keep the vehicle and use the money received to undertake repairs where he lives in Brisbane. However, that amount of money is significantly less that a refund of the purchase price when the respondent said it is willing to pay (as well as the transport cost of moving the vehicle from Brisbane to Sydney). Scope and nature of internal appeals 1. Internal appeals may be made as of right on a question of law, and otherwise with leave (that is the permission) of the Appeal Panel: NCAT Act, s 80(2). 2. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69, the Appeal Panel set out at [13] a non-exhaustive list of questions of law. This includes making a finding of fact for which there is no evidence. 3. For the Appeal Panel to grant leave to appeal from decisions made in Tribunal, it must be satisfied that the appellant may have suffered a substantial miscarriage of justice on the basis that: 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 (Collins v Urban), the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) of Sch 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 Tribunal has satisfied the requirements of cl 12(1) of Sch 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: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) 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; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) 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. 1. It may be difficult for self-represented appellants to clearly express their grounds of appeal. In such circumstances it is appropriate for the Appeal Panel to review an appellant's stated grounds of appeal, the material provided on the appeal and the decision of the Tribunal at first instance to examine whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal: see Cominos v Di Rico [2016] NSWCATAP 5 at [13]. We have followed that process in this case. Submissions and evidence 1. In deciding the appeal, we have had regard to the following: * The Notice of Appeal lodged on 2 November 2023; * The Reply to Appeal lodged on 24 November 2023; * The appellant's written submissions dated 12 December 2023; * The Tribunal's reasons for decision dated 26 October 2023; * The procedural directions made at callover; * The application to the Tribunal; and * The oral submissions made by Mr Yeoh and Mr Penafiel at the appeal hearing. 1. We note that the respondent did not file any submissions in response to the appellant's written submissions. Mr Penafiel confirmed that the respondent's written submissions were those attached to the Reply to Appeal. Notice of Appeal 1. The Notice of Appeal was lodged on 2 November 2023, which is within the 28 day time period specified in r 25(4) of the Civil and Administrative Tribunal Rules 2014 (NSW) (the Rules). The appeal is therefore in time. Grounds of Appeal 1. The Notice of Appeal does not clearly set out the grounds of appeal. However, it is reasonably clear from the Notice of Appeal that the appellant's position is that Tribunal erred in ordering a refund of the purchase price and the return of the vehicle in circumstances where the appellant was seeking compensation and not a refund. 2. The appellant seeks leave to appeal on the basis that the decision is not fair and equitable and against the weight of the evidence. 3. A secondary argument set out in the appellant's submissions is that if the appeal was unsuccessful, he should be awarded compensation for what he referred to as "sunk costs" in the sum of $4,874.59. 4. The appellant also seeks costs of the original proceedings and costs of the appeal. Issues 1. The issues to be decided in this case are: 1. Did the Tribunal make an error on a question of law in ordering a refund of the purchase price? 2. Has the appellant suffered a substantial miscarriage of justice because one of the reasons set out in cl 12 of Sch 4 of the NCAT Act? 3. If so, should leave to appeal be granted? 4. If the appeal is allowed or leave is granted, what order should the Appeal Panel make? Consideration Did the Tribunal made an error on a question of law in ordering a refund of the purchase price rather than compensation for the reasonable cost of repairs? 1. As noted above, the Tribunal considered the appellant's application as a claim under the ACL, which is contained in Schedule 2 to the Competition and Consumer Act 2010 (Cth). In his application, the appellant did not specify that he was seeking a remedy under the ACL. Rather, the application states that the respondent had "not honoured the 3 month dealer guarantee" under the Motor Dealers and Repairers Act 2013 (NSW) (the MDR Act). 2. It is not in dispute that the Land Rover the respondent supplied to the appellant was covered by a three month dealer guarantee under the MDR Act. This is because, according to the Tribunal's reasons for decision, the Land Rover was a 2015 build - and therefore less than 10 years old – at the time of purchase, and at that time had an odometer reading of less than 160,000 km: see s 69(5) of the MDR Act. Where it applies, a dealer guarantee under the MDR Act requires a dealer to "repair or make good a motor vehicle sold by the motor dealer, if it is a defective vehicle, so as to place the motor vehicle in a reasonable condition having regard to its age": see s 68(1) of the MDR Act. 3. The Tribunal did not consider whether the appellant had a cause of action under the MDR Act even though this legislation was referred to in the application. Rather, the Tribunal found that the appellant had not enforced and the respondent had not complied with the dealer guarantee. This meant that s 77 of the MDR Act did not prevent the appellant from taking action against the respondent under the ACL. Section 77 prevents a person taking action under the ACL if the dealer guarantee has been enforced and the dealer has fully complied with the guarantee. 4. In our view, it would have been open to the Tribunal to determine the application on the basis that the appellant was seeking to enforce the dealer guarantee under s 69(5) of the MDR Act, particularly in circumstances where the application did not indicate that the appellant was seeking a remedy under the ACL. 5. That said, it not unusual for a self-represented applicant with no legal training to not specify a cause of action in their application or the documents they provide in support of the application. In such circumstances, it is appropriate for the Tribunal to consider the evidence and submissions provided and, subject to the requirements of procedural fairness, determine the application based on the cause or causes of action which arise from that material. In this case, it was open to the Tribunal to consider the appellant's claim as a claim under the ACL. Neither party suffered prejudice by the Tribunal do so. The appellant has not argued on the appeal that the Tribunal should not have considered the claim under the ACL. 6. The ACL provides guarantees to consumers about goods they acquire if certain conditions are met and sets out the remedies consumers are entitled to if there is a failure to comply with consumer guarantees. Section 28 of the FT Act incorporates those guarantees into the law of New South Wales as the Australian Consumer Law (NSW). 7. Under s 79I of the FT Act, a consumer may apply to the Tribunal for determination of a consumer claim. Subject to other provisions of Part 6A of the FT Act, the Tribunal has jurisdiction to hear and determine consumer claims under s 79J. It is not in dispute that the appellant's application could be considered as a consumer claim which was within the jurisdiction of the Tribunal had jurisdiction to hear and determine. 8. The Tribunal treated the appellant's cause of action as a claim that the respondent had failed to comply with the guarantee of acceptable quality set out in s 54 of the ACL. Section 54 relevantly states: 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. Exceptions to the definition of acceptable quality which are not relevant to these proceedings are set out in s 54(4) to s 54(6). 2. Part 5.4 of the ACL sets out the remedies available to consumers in proceedings where there has been a failure to comply with a consumer guarantee. Sections 259 to 266 deal with remedies against suppliers. 3. Section 259 refers to actions against suppliers. It states: 259 Action against suppliers of goods (1) A consumer may take action under this section if: (a) a person (the supplier) supplies, in trade or commerce, goods to the consumer; and (b) a guarantee that applies to the supply under Subdivision A of Division 1 of Part 3 2 (other than sections 58 and 59(1)) is not complied with. (2) If the failure to comply with the guarantee can be remedied and is not a major failure: (a) the consumer may require the supplier to remedy the failure within a reasonable time; or (b) if such a requirement is made of the supplier but the supplier refuses or fails to comply with the requirement, or fails to comply with the requirement within a reasonable time—the consumer may: (i) otherwise have the failure remedied and, by action against the supplier, recover all reasonable costs incurred by the consumer in having the failure so remedied; or (ii) subject to section 262, notify the supplier that the consumer rejects the goods and of the ground or grounds for the rejection. (3) If the failure to comply with the guarantee cannot be remedied or is a major failure, the consumer may: (a) subject to section 262, notify the supplier that the consumer rejects the goods and of the ground or grounds for the rejection; or (b) by action against the supplier, recover compensation for any reduction in the value of the goods below the price paid or payable by the consumer for the goods. (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. (5) Subsection (4) does not apply if the failure to comply with the guarantee occurred only because of a cause independent of human control that occurred after the goods left the control of the supplier. (6) To avoid doubt, subsection (4) applies in addition to subsections (2) and (3). (7) The consumer may take action under this section whether or not the goods are in their original packaging. 1. What constitutes a "major failure" is set out in s 260, which provides: 260 When a failure to comply with a guarantee is a major failure A failure to comply with a guarantee referred to in section 259(1)(b) that applies to a supply of goods is a major failure if: (a) the goods would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of the failure; or (b) the goods depart in one or more significant respects: (i) if they were supplied by description—from that description; or (ii) if they were supplied by reference to a sample or demonstration model—from that sample or demonstration model; or (c) the goods are substantially unfit for a purpose for which goods of the same kind are commonly supplied and they cannot, easily and within a reasonable time, be remedied to make them fit for such a purpose; or (d) the goods are unfit for a disclosed purpose that was made known to: (i) the supplier of the goods; or (ii) a person by whom any prior negotiations or arrangements in relation to the acquisition of the goods were conducted or made; and they cannot, easily and within a reasonable time, be remedied to make them fit for such a purpose; or (e) the goods are not of acceptable quality because they are unsafe. 1. Section 262 states: 262 When consumers are not entitled to reject goods (1) A consumer is not entitled, under section 259, to notify a supplier of goods that the consumer rejects the goods if: (a) the rejection period for the goods has ended; or (b) the goods have been lost, destroyed or disposed of by the consumer; or (c) the goods were damaged after being delivered to the consumer for reasons not related to their state or condition at the time of supply; or (d) the goods have been attached to, or incorporated in, any real or personal property and they cannot be detached or isolated without damaging them. (2) The rejection period for goods is the period from the time of the supply of the goods to the consumer within which it would be reasonable to expect the relevant failure to comply with a guarantee referred to in section 259(1)(b) to become apparent having regard to: (a) the type of goods; and (b) the use to which a consumer is likely to put them; and (c) the length of time for which it is reasonable for them to be used; and (d) the amount of use to which it is reasonable for them to be put before such a failure becomes apparent. 1. If goods are rejected in accordance with s 259(3)(a), s 263 applies. Under s 263(2), the consumer must return the goods to the supplier (unless they have already been returned or they cannot be returned, removed or transported without significant cost to the consumer). Under s 259(4), the supplier must then, at the election of the consumer, either refund the purchase price or replace the goods. 2. In this case, the Tribunal found, and it is not in dispute on the appeal, that the respondent had failed to comply with the guarantee of acceptable quality and that the failure to amounted to a major failure to comply in accordance with s 260 of the ACL. Having made that finding, the Tribunal found that the appropriate remedy was the return of the goods and the refund of the purchase price - that is, the remedy provided by s 263 - even though this was not the remedy sought by the appellant. 3. The Tribunal correctly concluded that to grant the return and refund remedy under s 263 of the ACL, it needed to find that the appellant had rejected the goods. As noted above, the Tribunal found that the appellant's notification of the defects in the vehicle constituted a rejection of the vehicle. 4. In our view, the notification of defects to the respondent was not evidence of rejection of the vehicle. On the contrary, it is clear from the material before the Tribunal that the appellant's representative did not at any stage notify the respondent that the appellant wanted to reject the vehicle and obtain a refund of the purchase price. Rather, the evidence before the Tribunal was that at all relevant times the appellant wanted to retain the vehicle and have it repaired. The fact that the appellant wanted the vehicle to be repaired by a Jaguar Land Rover authorised repairer in Queensland rather than by the respondent in New South Wales does not make this less the case. At the appeal hearing, Mr Penafiel agreed that the appellant had not rejected the vehicle and sought a refund of the purchase price. 5. In Barbour v Autosports Five Dock Pty Ltd [2020] NSWCATAP 141 at [78], the Appeal Panel found that to obtain the remedy specified in s 263, a consumer needs to establish that they notified the supplier that they rejected the goods and of the ground or grounds for the rejection. Advising a supplier that goods are defective cannot, without more, amount to a notice to the supplier that the goods have been rejected. 6. We conclude that the Tribunal made a finding for which there was no evidence. Making a finding of fact in the absence of evidence constitutes an error on a question of law. The appellant has established a ground of appeal for which no leave is required. We have therefore allowed the appeal and set aside the Tribunal's decision. 7. As we have allowed the appeal on a question of law, it is not necessary to decide whether the appellant should be granted leave to appeal. What order should the Appeal Panel make? 1. When determining an internal appeal, the Appeal Panel may make such orders as it considers appropriate in light of its decision on the appeal. This includes setting aside the Tribunal's decision and substituting another decision for that decision: NCAT Act, s 81(1). 2. In this case, we have decided to substitute another decision for the decision made by the Tribunal, on the basis of the evidence that was provided by the parties to the Tribunal and which is in the Appeal Bundle. This is because we are satisfied that another decision was available to the Tribunal based on the evidence before it. 3. We have not considered a cause of action other than the ACL. 4. An award of damages remains an available order, even in circumstances where there has been a major failure to comply with a consumer guarantee. In relation to this, s 259(3)(b) of the ACL states that a consumer may take action against the supplier for loss of value of the goods. While on the appeal the appellant referred to seeking damages under s 259(3)(b), the appellant provided no evidence of the loss of value of the goods. The amount specified in the quote does not constitute evidence of loss of value. In the absence of evidence quantifying the loss of value of the vehicle attributable to the identified defects, damages cannot be awarded under s 259(3)(b). 5. However, we consider that damages can be awarded under s 259(4) of the ACL, which is an additional remedy to s 259(3)(b). The remedies in s 259 (3) and (4) should be interpreted as supplementing each other, not in such a way that one remedy excludes the other. 6. An award of damages under s 259(4) is subject to factual findings being made about the loss being reasonably foreseeable and not caused by events independent of human control under s 259(5). 7. In this case, there was no evidence that the faults with the vehicle were caused by events independent of human control. The respondent has not claimed that this is the case. Further, it is clear from the reasons for decision that the respondent did not want to undertake repairs. As the appeal hearing, the respondent's representative did not dispute that this was case. 8. However, the quote from JLR Brisbane clearly demonstrates that the vehicle can be repaired and provides evidence of the cost of doing so. In written submissions, Mr Penafiel stated that as at 21 November 2023 (that is, almost one month after the hearing before the Tribunal) the respondent had "sourced a repair via the use of pre-owned parts and the onboarding of a mechanical specialist utilizing its own labour that will cost $5,500". 9. The respondent provided no evidence in support of the claim that the vehicle could be repaired for $5,500. However, even if a quote had been provided, this could not be characterised as evidence that was not reasonably available at the time of the hearing. It was open to the respondent to provide evidence about the reasonable cost of repairs to the Tribunal, but it elected not to give the Tribunal an alternative quote. Nor did the respondent provide any evidence to support a conclusion that repairing the vehicle was not a reasonable step to take. In effect, the evidence before the Tribunal at the hearing was that the vehicle could be repaired, but that the respondent was not prepared to repair the vehicle or pay the cost of doing so. 10. In such circumstances, and where the appellant had not rejected the vehicle, it was reasonably foreseeable that the appellant would have to bear the cost of repairing it. In our view, this is a reasonably foreseeable loss which can be the subject of an order for damages under s 259(4) of the ACL. 11. Neither the wording of the ACL, nor its objects, support the proposition that a supplier can choose the remedy that is most suitable to it other than as specified in s 261, which gives the supplier the right to comply with the consumer guarantee by repairing the goods. However, this only applies where the failure to comply with a consumer guarantee is not a major failure. 12. We therefore conclude that the appropriate remedy is an order for damages in the sum of $33,673.77, which was the only evidence before the Tribunal as to the cost of repairing the vehicle. We have accordingly made that order. Our conclusion may have been different if the respondent had provided competing evidence about the reasonable cost of repairs or had indicated that it was willing to repair the vehicle and sought an order requiring it to do so. However, the respondent made it clear that it did not want to repair he vehicle and did not provide evidence to the Tribunal to counter the evidence provided by the appellant as to the reasonable cost of repair. Costs 1. The appellant seeks an order for costs in respect of the Tribunal proceedings and the appeal proceedings. 2. As the amount in dispute in both the Tribunal proceedings and the appeal proceedings exceeds $30,000, r 38 of the Rules applies to costs. This means that the Tribunal has a general discretion and may award costs in the absence of special circumstances. The starting point in exercising such discretion is that a successful party should be entitled to an order for costs in their favour: see Latoudis v Casey [1990] 170 CLR 534 per Mason CJ at 554 and Oshlack v Richmond River Council (1998) 193 CLR 72 per McHugh J at 97. 3. In this case, the appellant has been successful and there is no reason why a costs order should not be made in favour of the appellant, both in respect of the Tribunal proceedings and the appeal proceedings. 4. The appellant was self-represented. A self-represented party may recover reasonably incurred disbursements and witness expenses, including costs and disbursements for legal work done by others: Malkinson v Trim [2003] 2 All ER 356, but not travelling expenses or loss of earnings: Cachia v Hanes (1994) 179 CLR 403. 5. We are satisfied that the appellant has incurred the costs of filing an application in the Tribunal and filing the appeal proceedings. The Tribunal application form indicates that the appellant paid $578.30 to lodge the application in the Tribunal. The appeal application fee for a company is $972.00. There is no other evidence before us of costs incurred by the appellant which would be recoverable as costs of either the Tribunal or the appeal proceedings. 6. Given the relatively low value of the costs incurred by the appellant, we are satisfied it is appropriate to make fixed sum costs orders in respect of the Tribunal and appeal application fees. However, we have made orders which will apply in the event that either party seeks a different costs order. Orders 1. The Appeal Panel orders: 1. The appeal is allowed. 2. Orders made on 23 October 2023 in proceedings MV 23/14391 are set aside. 3. In substitution for the orders made by the Tribunal, the following orders are made: "1. MCM Sutherland Pty Ltd is to pay My Pool Safety Inspector Pty Ltd the sum of $33,673.77 within 14 days of the date of these orders. 2. The MCM Sutherland Pty Ltd is to pay My Pool Safety Inspector Pty Ltd's costs of the Tribunal proceedings in the sum of $578.30 within 14 days of the date of these orders." 1. The respondent is to pay the appellant's costs of the appeal in the sum of $972 within 14 days of the date of these orders." 2. If either party seeks a different costs order in relation to the Tribunal proceedings and/or the appeal proceedings, the following orders apply: 1. The costs orders made above cease to have effect. 2. The party seeking a different costs order (the costs applicant) is provide to the other party (the costs respondent) and the Appeal Registry any evidence and submissions in support of the different costs order within 14 days of the date of these orders. 3. The costs respondent is to give to the costs applicant and the Appeal Registry any evidence and submissions in response to the application for a different costs order within 28 days of the date of these orders. 4. The costs applicant is to give to the costs respondent and the Appeal Registry any evidence or submissions in reply within 35 days of the date of these orders. ********** 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: 10 April 2024