Gengiz v Fishburn [2014] NSWCATAP 96

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Gengiz v Fishburn [2014] NSWCATAP 96 Hearing dates: 21 November 2014 Decision date: 04 December 2014 Jurisdiction: Appeal Panel Before: S Westgarth Deputy President; S Thode, Senior Member. Decision: 1.Leave to appeal refused; 2.appeal otherwise dismissed. Catchwords: MOTOR VEHICLES - breach of contract -leave to appeal - blue slip Legislation Cited: Civil and Administrative Tribunal Act 2013. Cases Cited: Collins v Urban [2014] NSWCATAP 17. Category: Principal judgment Parties: Errol Gengiz (appellant) Allen Fishburn (respondent) Representation: Mr Newman Mr Balasubramanian File Number(s): AP 14/46466 (was AP 14/0288) Decision under appeal Date of Decision: 2014-06-17 00:00:00 Before: K Rosser, Senior Member File Number(s): MV13/32483

reasons for decision 1The appellant conducts an automotive engineering business and entered into a contract with the respondent (the applicant in the proceedings below) to convert a Ford F250 commercial truck from left to right hand drive. The work was performed and the respondent paid $9500 to the appellant. 2On 17 June 2014, the Tribunal's Consumer and Commercial Division awarded $9500 to the respondent on the basis that the work was not performed in a proper and workmanlike manner.

The decision of the Tribunal 3The Tribunal published its written reasons for decision on 17 June 2014. 4The evidence before the Tribunal below included the sworn oral evidence of the parties and the expert opinion of Mr Gaudie, a mechanical engineering consultant for the respondent. The respondent also relied on quotes from PJs Auto Electrics, Taplins Auto Repairs, Cummins Classic Cars, Mobility Engineering. The respondent also provided a report by J Montano. 5The appellant did not tender any expert report, witness statements or other documentary material before the Tribunal below. 6As stated, a report by Mr J Montano of JC Montano Engineering Consultants Pty Ltd was before the Tribunal (the Montano certificate). Mr Montano certified the roadworthiness of the vehicle as a precursor to registration. The vehicle was registered and a blue slip was issued. The Tribunal recorded that there was no issue that the blue slip was issued but that document was apparently not before the Tribunal. 7The Tribunal considered whether the work of converting the applicant's vehicle from left hand to right hand drive was performed in a proper and workmanlike manner. 8The Tribunal placed significant weight on the Gaudie report. The Tribunal recorded that the Gaudie report identified a number of issues with the vehicle arising from the work. The issues included poor welding, a defective handbrake assembly, problems with the welding of the steering column, and inadequate fastening (three bolts as opposed to the required four) of the replacement steering box. Exposed electrical cabling was identified as a potential fire hazard and safety issue. It was also noted that the appellant does not hold relevant qualifications and his business is not licensed. Based on the strength of the Gaudie expert opinion the Tribunal arrived at a finding that the appellant "did not undertake the conversion from left hand to right hand drive in a proper and workmanlike manner". 9The relevant findings are contained at page three of the Tribunal's decision: Whilst the pink and blue slips summonsed by the respondent were not produced, there is no dispute that the vehicle was registered or that the blue and pink slips had been issued. However, given Mr Gaudie's evidence and the deficiency in Mr Montano's report referred to by Mr Gaudie, the fact that the pink and blue slips were issued and the vehicle was registered does not lead me to conclude that the respondent's work is not defective. 10The Tribunal found that weight could be placed on the Gaudie Report as Mr Gaudie's qualifications and experience were sufficiently set out and therefore his report should be accepted as expert evidence. The respondent's argument that the Montano certification should be preferred over the Gaudie opinion was rejected. The Tribunal reasoned: "I do not accept this argument, in my view Mr Gaudie's report and his oral evidence establishes sound reasons why his opinion should be preferred to the report provided by Mr Montano." 11The Tribunal accepted that the conversion to left hand drive was carried out defectively. Quotations for the cost of repair were tendered by the respondent. However, the Tribunal member noted that all quotations exceeded the original contract price and were deemed excessive. Rather than accepting the repair quotes as a reasonable reflection of the respondent's loss, the Tribunal ordered that the respondent be given a full refund of the contract price.