Moshe v Commissioner for Fair Trading, NSW Office of Fair Trading [2007] NSWADT 292

CITATION: Moshe v Commissioner for Fair Trading, NSW Office of Fair Trading [2007] NSWADT 292

DIVISION: General Division

APPLICANT Emad Moshe PARTIES: RESPONDENT Commissioner for Fair Trading, NSW Office of Fair Trading

FILE NUMBER: 073248

HEARING DATES: 17 September 2007

SUBMISSIONS CLOSED: 17 September 2007

DATE OF DECISION: 13 December 2007

BEFORE: Leal S - Judicial Member

CATCHWORDS: Motor Vehicle Repair Act - Motor Vehicle repair grant of licence

MATTER FOR DECISION: Principal matter

LEGISLATION CITED : Administrative Decisions Tribunal Act 1997

CASES CITED: Not applicable

In person REPRESENTATION: V Griswold, solicitor

ORDERS: The Commissioner's decision to cancel Mr Moshe's motor vehicle repair licence is affirmed.

REASONS FOR DECISION Introduction 1 Mr Emad Moshe, trading as Smart Touch Auto Repairs, was the holder of licence number 39617 in partnership with Khaledra Oraha, in the class of repair of motor mechanic. He had been working from a fixed workshop on the corner of Prospect Highway and Station Road, Seven Hills. 2 Mr Moshe's licence was cancelled on 8 June 2007. 3 In cancelling Mr Moshe's licence, the delegate of the Commissioner for Fair Trading, NSW Office of Fair Trading ('the delegate') was satisfied that Mr Moshe had carried on the business of a repairer in such a manner that the repair work done in connection with the business had been below usual trade standards. On this basis, the delegate found Mr Moshe to be in breach of section 42(1)(a) of the Motor Vehicle Repairs Act 1980 ('the Act'). In making this finding, the delegate relied on the statement of the motor mechanic, Christopher Giblin, who stated that: "On Monday 4 December 2006 Mrs Lim drove her Toyota Landcruiser to my workshop (Dural Motor Maintenance). Mrs Lim told me she had the radiator replaced on Saturday second of December and since that repair the bonnet was not locking and lifting up whilst driving. Due to the serious nature of the problem I looked at the vehicle and found all the bolts on the upper centre radiator support loose. The centre vertical brace lock bolt to the bonnet lock was finger tight. I noted one bolt was different. The safety catch bolts were also loose." 4 The delegate was also satisfied that Mr Moshe had carried out the business to which the licence related in a dishonest or unfair manner and was therefore in breach of section 42(1)(h) of the Act. In reaching this conclusion, the delegate relied on the following: A statement by Leon Elias, the owner of LM Auto Services, stating that Mr Moshe had asked him to provide him with an invoice dated 2 December 2006 for $660 for a radiator. Because Mr Moshe was a friend, Mr Elias had agreed to provide the invoice despite not having supplied or repaired such a radiator. That Mr Moshe had charged $1200 for the supply and installation of a radiator, which according to the delegate, was excessive. That Mr Moshe did not explain why he had not provided Mrs Lim with either an invoice or a warranty for the repair. 5 Despite not relying on this ground, the delegate found that Mr Moshe had ceased to carry on the business to which the licence related at the place of business to which the licence related, as set out in section 42(1)(m) of the Act. 6 On 22 August 2007, Mr Moshe applied to this Tribunal for a review of the decision to cancel his motor vehicle repairer's licence. An application to the Tribunal for an urgent stay application was refused on 28 August 2007. 7 In determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including any relevant factual material and any applicable written or unwritten law. (Section 63 Administrative Decisions Tribunal Act 1997). Proceedings before the Tribunal 8 In a statement provided to the Tribunal, Mr Moshe stated that: "… [Mrs Lim] fixed these 3 bolts which is less than a 1 minute job. For the second point she has a receipt from me which is the receipt number 38, that receipt covers the part, labour and warranty from the 2nd December 2006 till 2nd of December 2007. Until now I am still responsible for that job completely. For the third point I was scared to tell the Motor Vehicle Industrial Authority the truth which was that I took the radiator from my friend. I didn't want to put him in this problem with me so I preferred if I [went] to another one of my friend and I told him about the problem that was happening, the one that's name is L.M mechanical, he told me that he'll give me a receipt in the value of the radiator which I had taken from my other friend which I told his story in point answer 3." 9 In a further statement filed with the Tribunal, which Mr Moshe had earlier sent to the Motor Vehicle Repair Industry Authority ('MVRIA'), Mr Moshe wrote "However in case if I have made a small mistake since the day this has started I have been making bigger mistakes because I have been trying to fix the small mistakes which keeps getting bigger. Since the 28/4/07 when you had sent me these papers to my workshop, on that day I had lost control of everything, especially after I had read the papers, I started to get scared because there were words like imprisonment and suspension for 10 years, I decided to leave the shop and stay at home, because I couldn't work anymore because I was scared to make another mistake and go to jail for life or something worse." 10 Mr Moshe gave oral evidence at the Tribunal on 17 September 2007. 11 He told the Tribunal that in relation to the missing bolts, he had been the one to bring the matter to Mrs Lim's attention. 12 He also stated that he had provided Mrs Lim with a receipt. A copy of a handwritten receipt number 38 dated 2 December 2006 is contained on file and includes the words '12 month warranty part plus labor'. In oral evidence before the Tribunal, Mr Moshe stated that although he had later written a receipt for Mrs Lim, he had written it after she left. He didn't agree that although receipt 38 was dated 2 December 2006, receipts 37 and 39 had been dated in September 2006. 13 Mr Moshe conceded that he had obtained the radiator from a friend who owed him money. "and we offset that money for the money for the customer ... when the issue grew bigger and bigger, I had no choice but to go to my friend. I didn't ask him for a receipt. was telling him like any friend. He is the one who offered to give me a receipt." 14 Mr Moshe agreed that he had stopped working soon afterwards, around March 2007, and that he had informed the manager that he couldn't work because of the problems. He said that he had tried to find work in other shops but that he was not employed when he told them that his licence had been cancelled. 15 Mr Moshe gave evidence that after he had replaced Mrs Lim's radiator, he had instructed his 16 year-old son to tighten the bolts. Mr Moshe's son is not a licensed motor vehicle repairer. Mr Moshe conceded that he hadn't checked his son's work and that as soon as he had realised that one of the bolts was missing, he had contacted Mrs Lim. 16 Mr Moshe provided a reference by the principal dealer of The Quality Yard which states that: "May we forward our personal and professional reference, for the honesty of Mr Emad Moshe, his integrity is above question. All clients and business relationship for the last five years have my personal guarantee of outstanding workmanship." 17 Mr Moshe also supplied a reference from Mr Sunny Narayan, the operator of a fleet of 10 taxicabs. Mr Narayan states that since 2003: "… Mr Moshe became my preferred repairer for my fleet. The knowledge and skills displayed [by] Mr Moshe is more than commendable. Not only Mr Moshe's services are exceptional but also Mr Moshe displayed high levels of work ethics and integrity, which really impressed me overwhelmingly … Mr Moshe is a very honest, reliable and credible motor mechanic that I have come across in my business experience. Mr Moshe has high levels of integrity and ethics and follows procedures and guidelines when he conducts his business. He is a professional motor mechanic and let me say in my view Mr Moshe represents the Motor Vehicle Repair industry in a very courteous and professional way." Findings and reasons 18 Section 42 of the Act enables a licence holder to be dealt with on a number of grounds. These include where the licence holder has carried on the business of a repairer in such a manner that the repair work done in connection with that business has been below usual trade standards; where the business to which the licence relates is being carried on in a dishonest or unfair manner and where the holder has, for a period of one month or more, ceased to carry on the business to which the licence relates at a place of business to which the licence relates. 19 Section 44 of the Act allows MVRIA, after issuing a show cause notice under section 41 of the Act, to take action against a licence holder, including suspending or cancelling the holder's licence. 20 In this case, a decision was made to cancel Mr Moshe's licence. Section 45 of the Act empowers a person whose licence has been cancelled to apply to the Administrative Decisions Tribunal for a review of the decision. 21 In reviewing the decision, it is my task to decide what the correct and preferable decision is, having regard to the material before me, including any relevant factual material and any applicable written or unwritten law. 22 I am satisfied that a Notice to Show Cause was issued to Mr Moshe on 27 April 2007 and that Mr Moshe replied to the Notice on 18 May 2007. The grounds raised in the Notice to Show Cause are as follows: That the holder has carried on the business of a repairer in such a manner that the repair work done in connection with that business has been below usual trade standards (s 42(1)(a)). That the holder may have failed to comply with this Act or the regulations, a condition or restriction to which the licence is subject or an order of the Tribunal applicable to the holder (s 42(1)(d)). That the business to which the licence relates is being carried on in a dishonest or unfair manner (s 42(1)(h)). 23 In the subsequent decision to cancel Mr Moshe's licence on 8 June 2007, the delegate of the Commissioner relied only on those grounds contained in section 42(1)(a) and section 42(1)(h) of the Act. 24 I have also confined my review to a consideration of those two grounds determined by the delegate. 25 It is common ground between Mr Moshe and the respondent that some bolts were not secured and one bolt was missing following the repair to Mrs Lim's car. There is evidence in the form of a statement by Christopher Giblin, motor mechanic of Dural Motor Maintenance, detailing the unsecured bolts which included the bolts on the upper centre radiator support, the centre vertical brace lock bolt to the bonnet and the safety catch bolts. 26 In his oral evidence, Mr Moshe conceded that his 16 year-old son had been left to tighten the bolts and that Mr Moshe had not checked them afterwards. 27 Mr Moshe has apologised for what he has termed a 'small mistake'. I am satisfied that the failure to secure the centre vertical brace lock and the safety catch bolts left the bonnet of Mrs Lim's car liable to lifting while driving. In reaching this conclusion, I accept Mr Moshe's evidence that he failed to check the relevant bolts and that of Christopher Gilbin of Dural Motor Maintenance. 28 It is of further concern to me that Mr Moshe allowed his 16 year-old son, who he had conceded is not a licensed car repairer, to conduct part of the repair to Mrs Lim's car, namely replacing and tightening the relevant bolts. Not only was Mr Moshe's son allowed to assist in the repairs of the car despite having neither the qualification nor the certification to do so, but also he was allowed to do so both unsupervised and without his work subsequently being checked. 29 In light of both the failure to secure the bolts and, in particular, by allowing an unqualified and uncertified person to assist in the repair, I am satisfied that, on that occasion, Mr Moshe carried on the business of a repairer in such a manner that the repair work done in connection with that business has been below usual trade standards, as set out in section 42(1)(a) of the Act. 30 On the basis of the statement provided by Leon Elias, motor mechanic, and the oral and written evidence provided by Mr Moshe, I am satisfied that the receipt provided by Mr Elias stating that he was paid $660 for a radiator on a Landcruiser is false. I accept Mr Moshe's evidence that he had been given the radiator in question by a friend as partial repayment for money owed by him to Mr Moshe. I accept that Mr Moshe panicked when asked by the MVRIA investigator to provide evidence of his purchase of the radiator provided to Mrs Lim and that he acquired a false receipt from Mr Elias to give to the investigator. 31 On this evidence alone, I am satisfied that, on this occasion, the business to which the licence related was being carried on in a dishonest or unfair manner as set out in section 42(1)(h) of the Act. 32 I understand that Mr Moshe no longer carries on business at Smart Touch Auto Repairs in the premises on the corner of Prospect Highway and Station Road Seven Hills and that this in itself might be a ground under section 42(1)(m) of the Act. As this ground was not put forward in the Notice to Show Cause dated 27 April 2007, nor used as a basis for the cancellation decision, I have not considered it in my decision. 33 I have some sympathy for Mr Moshe. I accept that upon realising that one of the bolts had not been replaced in Mrs Lim's car, he contacted her and offered to fix up the problem. Once the investigation started in relation to the alleged overcharging for the service, I accept that Mr Moshe panicked and submitted the false receipt to the investigator. Although none of Mr Moshe's referees acknowledge that they were aware of the cancellation of Mr Moshe's licence, I accept that Mr Moshe has been well regarded as a motor vehicle repairer by them. 34 Nevertheless, it is a serious matter to allow a 16 year-old, who is unqualified and uncertified, to assist in motor vehicle repairs. In this case, allowing the boy to undertake part of the repair job was compounded by the failure to supervise him and then check his work, resulting in a car leaving the workshop with the risk that the bonnet would fly up. This situation was exacerbated by Mr Moshe's subsequent dishonest behaviour in pretending to have purchased the radiator that was in fact given to him in part payment of a pre-existing debt. 35 Considering all the evidence before me, I find that the delegate of the Commissioner was correct in determining that he was able to deal with Mr Moshe on the basis of the grounds set out in section 42(1)(a) and section 42(1)(h) of the Act. 36 The next question is whether, on the basis of these grounds, it was the correct and preferable decision for the delegate of the Commissioner to cancel Mr Moshe's licence. 37 I am satisfied that it was the correct and preferable decision. By allowing an uncertified and unqualified 16 year-old to assist in a car repair, Mr Moshe allowed Mrs Lim to leave the workshop in a car that was dangerous to drive. By then producing a falsified receipt to try to answer the investigator's questions, Mr Moshe showed that he was also prepared to act in a dishonest manner. It was the correct and preferable decision to cancel Mr Moshe's licence on the basis of these actions. Given that I have been able to reach my decision on the basis of these matters alone, I have not made any findings in relation to the writing and provision of a receipt and warranty to Mrs Lim. 38 I am satisfied that Mr Moshe regrets his actions and that this may be relevant to any decision by the Commissioner to grant Mr Moshe a licence in the future. 39 On the basis of the evidence before me and in light of the relevant law, I am satisfied that the delegate of the Commissioner made the correct and preferable decision in cancelling Mr Moshe's licence. Order The Commissioner's decision to cancel Mr Moshe's motor vehicle repair licence is affirmed.