Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Michael Jackson v Michael Anthony Edser t/as Raceart Graphics [2014] NSWCATCD 7 Hearing dates: 17 December 2013 Decision date: 10 January 2014 Jurisdiction: Consumer and Commercial Division Before: K Ross, General Member Decision: 1 The application is dismissed. Having considered the material placed before, it the Tribunal is not satisfied, at the civil standard of proof, that the grounds required to make the orders sought have been established. Legislation Cited: Motor Vehicle Repairs Act 1980 (NSW) Category: Principal judgment Parties: Michael Jackson (Applicant) Michael Anthony Edser t/as Raceart Graphics (Respondent) File Number(s): MV 13/46818 reasons for decision The Proceedings 1The proceedings were commenced by application filed with the Tribunal on 5 September 2013. The application was listed on 14 October 2013. Both parties appeared but the matter could not be resolved and was adjourned for formal hearing. Directions were made for the exchange and filing of evidence. The applicant provided his evidence to the Tribunal and to the respondent. However the respondent failed to do so. The matter was listed for hearing on 17 December 2013. The respondent produced a bundle of documents. The Tribunal gave the applicant an opportunity to consider the documents and request an adjournment if necessary. The applicant stated that he did not wish the matter to be adjourned. The Tribunal allowed the admission of the documents produced by the respondent and the hearing proceeded. At the conclusion of the hearing the Tribunal reserved the decision. The Application 2The applicant claims the sum of $5,000.00 as a refund of the amount paid to the respondent as a deposit in circumstances where the applicant has become aware that the respondent does not hold a license for the contracted work, and where he says that there has been little or no work done to date. The respondent opposes the order sought and says that he has done work to the value of the monies paid. Jurisdiction 3The Tribunal is satisfied that the applicant is a consumer who contracted with the respondent for the provision of motor vehicle repair services within NSW. The application is brought within time and seeks an order within the jurisdictional limit of the Tribunal. The Tribunal has jurisdiction to hear and determine the claim as framed. Applicant's Evidence 4The applicant gave evidence that he entered into an oral agreement with the respondent for the respondent to finalise the bodywork and paint his XY Falcon. He said that he was given the respondent's name by a colleague. He made no enquiries but assumed that the respondent held an appropriate license to do the work. The respondent gave him a verbal price of $15,000.00, to be paid in three instalments. The applicant said that he did not care how long the job took. He left the vehicle with the respondent in November 2011 and paid $5,000.00 to the respondent in December 2011. 5In October 2012 he went to inspect the vehicle, expecting it to be completed, and found that very little had been done to the car. In addition he was dissatisfied with the work carried out to date. The respondent said that the car required more work than he had anticipated, and the repair would now cost $22,000.00. The applicant did not agree to the increased quote and the dispute escalated. 6Eventually, in January 2013, he collected the car. He has now discovered that the respondent does not have an appropriate license. He seeks a refund of what he has paid to date on the basis that there has been minimal work carried out, and that the work which has been carried out has caused damage to the car. He relies upon an estimate for repair of the work done by the respondent which exceeds the amount paid to date. The quotation has been endorsed with comments by its author, but it cannot be said to be an expert report (see below). Respondent's evidence 7The respondent gave evidence that he had provided an estimate of costs to the applicant, and not a quotation. He said that when he began working on the vehicle, it became apparent that more work would be required than what he had estimated. He agreed that he did not carry an appropriate license under the Motor Vehicle Repairs Act 1980 (NSW), but said that he had employed a licensed panel beater to carry out some of the work. He provided a hand written note, allegedly by that person. He said that he had done work to a value which exceeded the sum of $5,000.00 paid by the applicant to date. He relied upon a report entitled "motor vehicle inspection report", a letter from a panel beater, and a series of photographs of the vehicle. He also provided a calculation of work allegedly carried out, invoices said to be for parts used on the vehicle and an estimate of further parts required. 8The respondent said that he had done considerable work on the vehicle. He had encountered a number of problems related to previous work carried out. In particular, the car had been sand blasted, causing extensive damage to various panels. In addition, the car was not properly aligned, causing difficulties in refitting panels. He said that when the applicant had collected the car it was to take it back to the original panel beater to have the work rectified and completed. He expected the vehicle to be returned and was prepared to complete the work for the revised price of $22,000.00. Discussion and Findings 9In order for the applicant to succeed, he must prove on the balance of probabilities that the respondent was in breach of the agreement between the parties, or that otherwise the applicant was entitled to determine the contract. If he was indeed entitled to determine the contract, he must also prove an entitlement to refund of the monies paid pursuant to it. 10The applicant has alleged that the respondent did not hold an appropriate license for the work, under the Motor Vehicle Repairs Act 1980 (NSW)"(the MVRA") " This was not disputed by the respondent during the hearing. The MVRA provides as follows: 15 Licences (1) A person (other than an exempted person) must not: (a) carry on or advertise that the person carries on or is willing to carry on the business of a repairer in respect of any repair work unless the person is the holder of a licence in respect of a class of repair work that includes that repair work, or (b) carry on the business of a repairer at any place of business unless the person is the holder of a licence granted in respect of that place of business. Maximum penalty: 1,000 penalty units. Note: An offence against subsection (1) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation-see section 88. (2) A person carries on the business of a repairer if the person does so either by himself or herself, as a member of a partnership or by his or her servant or agent. (3) The holder of a licence in respect of a class of repair work who carries on the business of a repairer in respect of any other class of repair work does not contravene subsection (1) if: (a) that other class of repair work is done by the holder of a licence in respect of a class of repair work that includes that other class of repair work pursuant to an agreement between the holders of those licences, and (b) he or she does not advertise that he or she carries on or is willing to carry on the business of a repairer in respect of that other class of repair work. (4) A person who is convicted of a second or subsequent offence under this section is liable to a penalty not exceeding 1,000 penalty units or imprisonment for a term not exceeding 12 months, or both. 11The effect of this provision is to make it unlawful for the respondent to complete the contract. It is not lawful for the respondent to carry out the work whether himself, or through a licensed servant or agent. The applicant is entitled to terminate the contract in these circumstances. 12In addition, the applicant alleges that the work done by the respondent is defective. He relies upon his own evidence and the endorsed comments on the quotation. The quotation does not comply with the Chairperson's directions for expert witnesses and cannot be said to be an expert report. The opinions expressed are not explained, and appear in some cases to be no more than a restatement of information provided by the applicant (eg "all panels lined up until Tony had the car according to the owner"). The Tribunal can place little weight on the opinions included on the quotation. 13The respondent has also provided a report to support his submission that he has done work the value of which exceeds the deposit paid by the applicant. This report does not adopt the Chairperson's direction. The author discloses the former relationship which he has had with each of the parties. However the main difficulty is the acknowledgement that the author of the report does not know the original condition of the vehicle, nor what work was carried out by the respondent. 14The applicant has the onus of proving an entitlement to refund of the deposit. The Tribunal is satisfied that work was carried out to the vehicle by the respondent, and cannot make a finding that the work was defective, bearing in mind the state of the evidence, and the lack of clarity about the condition of the vehicle before the work was carried out. For this reason the application is dismissed. ORDERS 15The application is dismissed. Having considered the material placed before, it the Tribunal is not satisfied, at the civil standard of proof, that the grounds required to make the orders sought have been established. Katherine Ross General Member Civil and Administrative Tribunal of New South Wales 10 January 2014 I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar ********** 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: 07 March 2014