White v Carlton Tow Bars Pty Ltd [2015] NSWCATAP 8

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: White v Carlton Tow Bars Pty Ltd [2015] NSWCATAP 8 Hearing dates: On the papers. Decision date: 10 February 2015 Jurisdiction: Appeal Panel Before: N Hennessy LCM, Deputy President S Thode, Senior Member Decision: The appellant's application for leave to appeal is refused. The appeal is dismissed Catchwords: CIVIL AND ADMINISTRATIVE TRIBUNAL – APPEAL – appeal on a question of law and on 'other grounds' – failure to identify source of legal test to be applied – probative value of 'expert' evidence – whether 'new' evidence available at time of hearing Legislation Cited: Competition and Consumer Act 2010 (Cth) Civil and Administrative Tribunal Act 2013 (NSW) Cases Cited: Barghouthi v Transfield Pty Ltd [2002] FCA 666 XYZ v State Trustees Limited & Anor [2006] VSC 444 Category: Principal judgment Parties: Peter White (Appellant) Carlton Tow Bars Pty Ltd (Respondent) Representation: Appellant (in person) Respondent (D Wood) File Number(s): AP 14/46393 (AP 14/0215) Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 15 May 2014 Before: M Eftimiou, General Member File Number(s): MV 13/57046

REASONS FOR DECISION

Introduction 1. Mr White has appealed against a decision of the Consumer and Commercial Division of the Tribunal dismissing his application against Carlton Tow Bars Pty Ltd. Mr White alleged that Carlton Tow Bars provided the service of installing a Hayman Reece 5 wheel hitch to his vehicle without "due care and skill." In addition, Mr White claimed that the wheel hitch was faulty. As a result of the faulty wheel hitch or the lack of care and skill in installing it, Mr White said that many of his vehicle's electronic systems malfunctioned and it had to be repaired. 2. At the Appeal Panel hearing Mr White said that since the Tribunal hearing he has come to the view that Carlton Tow Bars should not have installed the wheel hitch to his vehicle at all. That is because in order to tow a caravan, his vehicle, a Holden Colorado, requires the General Motors Holden "SPS" software. Because the manufacturers of the wheel hitch, Hayman Reese Pty Ltd, could not supply the SPS software or comparable software, the wheel hitch should not have been installed. 3. This claim was not put to Carlton Tow Bars and the Tribunal did not determine it. If Carlton Tow Bars should not have installed the wheel hitch at all, there is no basis for claiming that it was installed without "due care and skill". Mr White cannot change his case on appeal. 4. Despite the change in Mr White's case, we will address the issues he raised in relation to the original claims that the wheel hitch was faulty or that it had been installed without due care and skill.