Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Burton v Chad One Pty Ltd [2015] NSWCATAP 88 Hearing dates: 31 March 2015 Date of orders: 12 May 2015 Decision date: 12 May 2015 Jurisdiction: Appeal Panel Before: M Chesterman, Principal member S Thode, Senior Member Decision: 1. The appeal is allowed. 2. The matter is remitted to the Tribunal to be decided according to law. 3. The parties are to attend a directions hearing in the Consumer and Commercial Division at a date and time to be determined by the Divisional Registrar. 4. Any application for the costs of this appeal must be filed and served, with supporting submissions, within 21 days of this decision. Within a further 21 days, the opposing party is to file and serve submissions in response. Any party desiring a hearing on the question of costs must address this topic in submissions. This question will then be determined by the Appeal Panel, with or without a hearing. Catchwords: Australian Consumer Law – 'acceptable quality' – adequacy of reasons for decision – whether decision against weight of evidence Legislation Cited: Australian Consumer Law (Cth) Civil and Administrative Tribunal Act 2013 Motor Dealers Act 1974 Cases Cited: Burton v Chad One Pty Limited [2013] NSWDC 301 Collins v Urban [2014] NCATAP 17 Contact Energy Ltd v Jones [2009] 2 NZLR 830 Gregory Arthur Burton v Chad One Pty Ltd t/as Crystal Cars [2014] NSWCATCD 191 Khan v Kang [2014] NCATAP 48 Category: Principal judgment Parties: Gregory Arthur Burton (Appellant) Chad One Pty Ltd t/as Crystal Cars (Respondent) Representation: Counsel: P Batley (Appellant) G Rundle (Respondent) Solicitors: File Number(s): AP 14/54543 Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: [2014] NSWCATCD 191 Date of Decision: 7 October 2014 Before: J McMillan, General Member File Number(s): MV 13/65624 REASONS FOR DECISION Introduction 1. This is an appeal from a decision of the Consumer and Commercial Division of the Civil and Administrative Tribunal ('the Tribunal') given on 7 October 2014. This decision ('the decision under appeal') is reported as Gregory Arthur Burton v Chad One Pty Ltd t/as Crystal Cars [2014] NSWCATOD 191. 2. In it, the Tribunal dismissed a claim by the Appellant, Gregory Burton, for compensation amounting to $7,000 from the Respondent, Chad One Pty Ltd trading as Crystal Cars, on account of the failure of the engine in a motor vehicle ('the vehicle') that the Appellant had purchased second hand from the Respondent. 3. The Appellant's claim was initially brought in the Consumer Trader and Tenancy Tribunal ('the CTTT') on 26 February 2013. On 6 June 2013, the CTTT ordered that his application be dismissed. On appeal, the District Court set aside this order (Burton v Chad One Pty Limited [2013] NSWDC 301), on the ground that the CTTT had failed to take into consideration all of the elements of s 54(3) of the Australian Consumer Law. The Court remitted the matter to the CTTT for rehearing. 4. Following the abolition of the CTTT as from 1 January 2014, the matter was reheard by the Tribunal pursuant to Clause 7 of Schedule 1 of the Civil and Administrative Tribunal Act 2013 (hereafter 'the NCAT Act'). This hearing took place on 7 July 2014. 5. The appeal by the Appellant from the Tribunal's dismissal of his application was heard before us on 31 March 2015. Pursuant to leave that we granted, Mr Batley of counsel appeared for the Appellant and Mr Rundle of counsel for the Respondent. Relevant facts 1. The vehicle is a 1998 Nissan Patrol four wheel drive wagon. The Appellant bought it from the Respondent company, which is a licensed motor dealer, under a contract dated 19 October 2012. On 24 October 2012, when the Appellant took delivery of the vehicle, the odometer reading was 250,816 kilometres. 2. Included in the terms and conditions of the sale was a three year warranty with the National Warranty Company, provided at no charge to the applicant. But the vehicle was sold under Form 8 of the Motor Dealers Act 1974. Vehicles sold under Form 8 do not attract a warranty under this Act. 3. The decision under appeal included the following passage at [4]: The [Appellant] tendered an affidavit to the Tribunal. In he stated, inter alia, he "test drove the vehicle; he "knew" that diesel engines had the capacity to do around 500,000 kms or more; he understood that there was no warranty attached to the vehicle stating the "Dealer gave me the warranty for free; I would never have expected it to break down after only three months." 1. Paragraph [17] included the following passage: The respondent attached to his affidavit… a copy of typed notes received from National Warranty Company. These were of conversations between the applicant, his wife and claims officers… The notation of 8 January 2013 is of a conversation with the applicant's wife who inquired whether the policy covered a thermostat housing. The response was that they covered the thermostat but not the housing. It was recorded that the engine was overheating. Mary Burton, the wife of the applicant in her affidavit tendered to the Tribunal denied that she had made any statement that the engine was overheating… 1. While driving the vehicle in the vicinity of Bathurst on 28 January 2013, the Appellant noticed that the engine was getting hot. He pulled over straightaway, checked the belts on it and decided that they were 'fine'. Having waited until the engine cooled down, he drove it for about 1 kilometre to a motel, where he stayed that night. The following morning, he drove the vehicle for a further kilometre to Johnson's Towing and Mechanical Pty Ltd at Kelso. 2. When mechanics employed by this company partly dismantled the engine, they discovered substantial damage. The head was severely cracked; one of the cylinders had sustained water damage; the air conditioner compressor had seized up; the belt that drove it was broken; and the vehicle's dual mass flywheel was warped. The company estimated the cost of rectifying this damage as $15,000.00. 3. According to paragraph [8] of the decision under appeal, the Appellant contacted Mr Chad Baissari, the sole director of the Respondent, on or about 30 January 2013. Mr Baissari advised the Appellant to have the vehicle brought to Sydney, where the Respondent would assist him in 'making a claim on the extended warranty'. The Appellant declined to do this. 4. In his affidavit put before the Tribunal, the Appellant stated that during this conversation Mr Baissari 'made no offer to have the vehicle repaired or to replace the vehicle' and 'never offered any payment'. 5. In this affidavit, the Appellant stated also that on 12 February 2013, having realised that the Respondent would not assist him, he made a complaint to the Department of Fair Trading. Annexed to his affidavit were copies of file notes recorded by Mr Bill Wynn, an inspector employed by the Department. A file note dated 21 February 2013 was in the following terms: Attended the [Customer's] premises and inspected the vehicle. The cylinder head is cracked between the valves on No. 6 cylinder and their (sic) is evidence that water has been leaking into No. 4 cylinder for extend (sic) period of time. As their (sic) is corrosion in the cylinders bore (sic). Photographs were taken. 1. Also annexed to the affidavit was a copy of a photograph of the cylinder bore taken on 27 February 2013, in which (according to the Appellant) rust was visible. 2. As stated above, the Appellant filed his application to the CTTT on 26 February 2013. At this stage, he was not legally represented. His statement of reasons for seeking compensation of $7,000 included the following passage: '… I know there was no warranty on vehicle but to have a motor blow up in three months and it is a four wheel drive diesel…' 3. On or about 28 February 2013, the vehicle was towed to the workshop of ARA Engine Reconditioning ('ARA') at Yennora. In a report by this firm dated 29 March 2013, it was stated that the initial cause of the damage was overfuelling and that the problem was not one that would have been caused 'overnight'. 4. On the instructions of the Appellant, both the engine head and other parts of the vehicle were repaired. The total cost of the repairs was $18,155.30. On or about 8 May 2013, ARA advised the Appellant that the vehicle was 'back into running order'. 5. At the Tribunal hearing on 7 July 2014, the Appellant tendered a report signed by Mr Ara Kelleyan, Ara's workshop manager. This report included the following passages of significance for the present appeal: I Ara Kelleyan… am providing this report at the request of Legal Aid regarding a Nissan Patrol of Mr Greg Burton. I am a full tradsmen/machinest (sic) qualified to fully recondition diesel/petrol engines and have over 11 years working expirence (sic). Ara Engine Reconditioning is a fully equipt (sic) engine reconditioning workshop in which (sic) has been operating for 30+ years with 40 years experience. Mr Greg Burton's Nissan Patrol got towed into our workshop at a estimated date of 28 March 2013 to get the vehicle inspected as the engine was over heating and throwing water out of the overflow bottle… We stripped and inspected the cylinder head and found the cylinder head had been serverly (sic) cracked in between the valve seats and the combustion chamber due to a fuel replated (sic) problem this engine had. The cylinder head… had to be replaced with a brand new cylinder head. The damaged (sic) caused to the cylinder head was caused from the injector fuel pump and fuel injectors. We found that the fuel pump and fuel injectors required repairs as when they were tested it indicated to us that it was over fueling the engine. … [W]e found the cylinder bores severly (sic) damaged and glazed due to overfuelling which has caused it to damage the piston rings and callapse (sic) the piston skirts. To get this engine into a satisfactory running order, it required (sic) to fully recondition this engine as well as to repair the faulty fuel system… The damages that had been caused to this engine was a ongoing problem and as far as our expertise goes this problem has been persisting for well over 3 months. 1. The report then stated that since the problem was an 'internal issue' that could not be 'diagnosed externally', the Appellant could not have stopped it happening, even if he had had the vehicle inspected before purchasing it. The report stated also that the damage caused to the engine 'was not from abnormal use or abnormal driving'. 2. The Respondent did not require Mr Kelleyan to attend the Tribunal hearing for cross-examination. It did not tender any evidence, oral or documentary, as to what caused the damage. 3. The decision under appeal contains other findings of fact and refers to other parts of the evidence. These need not be set out here. The guarantee of 'acceptable quality' contained in the Australian Consumer Law 1. Section 54 of the Australian Consumer Law (Cth) ('the ACL') sets out this guarantee as follows: 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. (4) If: (a) goods supplied to a consumer are not of acceptable quality; and (b) the only reason or reasons why they are not of acceptable quality were specifically drawn to the consumer's attention before the consumer agreed to the supply; the goods are taken to be of acceptable quality. (5) If: (a) goods are displayed for sale or hire; and (b) the goods would not be of acceptable quality if they were supplied to a consumer; the reason or reasons why they are not of acceptable quality are taken, for the purposes of subsection (4), to have been specifically drawn to a consumer's attention if those reasons were disclosed on a written notice that was displayed with the goods and that was transparent. (6) Goods do not fail to be of acceptable quality if: (a) the consumer to whom they are supplied causes them to become of unacceptable quality, or fails to take reasonable steps to prevent them from becoming of unacceptable quality; and (b) they are damaged by abnormal use. (7) Goods do not fail to be of acceptable quality if: (a) the consumer acquiring the goods examines them before the consumer agrees to the supply of the goods; and (b) the examination ought reasonably to have revealed that the goods were not of acceptable quality. The Tribunal's reasoning 1. In its decision at [20 – 24], the Tribunal gave the following reasons for dismissing the Appellant's application for compensation: 20. Under the ACL the vehicle supplied to the applicant is required to be of acceptable quality. Section 54(2) sets out the criteria required to establish acceptable quality. Section 54(3) are (sic) matters to be considered for the purpose section 54(2) (sic). 21. The vehicle supplied to the applicant is a Nissan Patrol four wheel drive vehicle. At the time of sale it was 15 years old being built in September 1998. Its history is not known but being a four wheel drive vehicle it has a capability of traveling off-road. It had travelled 250,816 kilometres. The evidence relied on by the parties as to its price derives from the same publication which is the Red Book. That book is a guide only. The vehicle sold to the applicant has accessories fitted to it that would increase its price. There is no evidence that there was an inequality in the bargaining power of the parties and the price paid is one that arose from the negotiating process. The applicant does not dispute that he was unaware of the particulars of the vehicle. He believed the engine would have a life of 500,000 kilometres but gives no basis for this belief. The applicant does not provide any evidence as to representations made by the respondent or the manufacturer of the vehicle that he relied upon and knew it did not attract a warranty. 22. The engine overheated on 28 January 2014 about three months after purchase. The engine when dismantled showed that the head had cracked and there was water damage to the lower part of the engine. The report signed by ARA Kelleyan states that the bore of the cylinders were glazed which led to the conclusion there was over fuelling, a condition of the engine for "well over three months." The document is unsatisfactory as it refers to "we" it is not clear as to who did the examination of the engine and the qualifications of that person. The method of testing the injectors and the diesel pump is not stated. Neither is the name of the person who did that testing nor their qualifications to do so e.g. were they an experienced diesel mechanic? The Tribunal therefor is not satisfied on the balance of probabilities that over fuelling was a condition of the engine for "well over three months". The vehicle was driven after it had overheated. The report does not disclose the time when the head cracked. 23. In consideration of the evidence before it the Tribunal in considering the provisions of section 54(2) of the ACL finds the vehicle was at the time of sale, capable of travelling off-road (52(2)(a), was of acceptable appearance (52(2)(b), it was safe (as there was no dispute as to any e-safety inspection report) (52(2)(d), and durable consistent with a vehicle of that age and distance travelled (52(2)(e). 24. In regard to section 52(2)(c)), the applicant inspected the vehicle and drove it. It was not inspected by a qualified person at that time but having regard to its age and distance travelled it may have been prudent to do so. The evidence shows there was a problem relating to overheating with the engine in late January 2014. The question that needs to be answered is whether the cause of the overheating was present at the time of supply? For the reasons given at 22 above the Tribunal is not satisfied on the balance of probabilities the cause of the overheating was a defect present in the vehicle present at the time of supply. 1. At the appeal hearing, the parties agreed that in paragraphs [23] and [24], the Tribunal was evidently referring to subparagraphs of s 54 of the ACL, not s 52. The grounds of appeal 1. The principal matters argued before us were the following three grounds of appeal advanced by the Appellant. First, the Tribunal erred in law through failing to provide adequate reasons, particularly with regard to its finding at [23] that the vehicle was 'durable consistent with a vehicle of that age and distance travelled'. Secondly, the Tribunal erred in law through failing to apply the objective test laid down in s 54 of the ACL, namely, whether a hypothetical reasonable consumer fully acquainted with the state and condition of the vehicle would have regarded it as of acceptable quality. Thirdly, the Tribunal's rejection of Mr Kelleyan's evidence was 'not fair and equitable' and its consequent conclusion was 'against the weight of the evidence', with the result that the Appellant had suffered a 'substantial miscarriage of justice' within the meaning of cl 12 of Schedule 4 to the NCAT Act. 2. We will discuss these three grounds separately. Inadequacy of reasons 1. The parties' submissions. The starting-point of Mr Batley's argument on this ground was the general rule, deriving from both the common law and s 62(3) of the NCAT Act, that when reasons are provided for a decision of the Tribunal, they must set out 'the Tribunal's understanding of the applicable law' and 'the reasoning processes that lead the Tribunal to the conclusions it made'. (These quoted phrases are to be found in paragraphs (b) and (c) of s 62(3).) Mr Batley relied in particular on the Appeal Panel's discussion of this topic in Khan v Kang [2014] NCATAP 48 at [40 – 46]. 2. Mr Rundle did not dispute that the Tribunal was obliged to comply with this rule. 3. According to Mr Batley, the reasons given for the decision under appeal were defective in two ways and that these defects amounted to errors of law. 4. First, they did not set out 'the Tribunal's understanding of' s 54 of the ACL. In particular, they failed to mention both the objective nature of the test set out in this section and the fact that it is the opinion of a hypothetical 'reasonable consumer fully acquainted with the state and condition of the goods (including any hidden defects of the goods)' that must be taken into account. 5. Secondly and more importantly, the reasons did not explain 'the Tribunal's reasoning processes' on the question of the extent to which the vehicle was 'durable' within the meaning of s 54(2)(e). Mr Batley claimed in his written submissions that although this issue of durability was a 'live' one because the vehicle's engine failed a little more than three months after it was purchased, the Tribunal 'dismissed it cursorily as if it were of equal relevance to appearance and safety, which were not live issues'. In oral submissions, he argued that a finding that the vehicle was not durable should have followed from consideration of (a) the price paid for it and (b) the short period that elapsed between the Appellant's purchase of it and the breakdown of its engine. 6. Mr Rundle submitted that the Appellant did not argue to the Tribunal that in assessing 'durability' the vehicle's 'capacity to endure' should be given consideration. In reply, Mr Batley drew attention to the Appellant's claim, in his initial application to the CTTT, that he 'would never have expected it to break down after only three months' (see [8] above). 7. Mr Rundle submitted also that in the decision under appeal at [23 – 24], the Tribunal did sufficiently explain its understanding of s 54 of the ACL and that a reasonable reader of these paragraphs could ascertain how it arrived at its conclusions regarding this provision. He referred to the Appeal Panel's, discussion of the Tribunal's duty to give reasons in Collins v Urban [2014] NCATAP 17 at [43 – 64]. In that passage, the Panel indicated that the extent to which reasons should deal with matters of detail depends on the importance and complexity of the proceedings to which they relate. 8. In addition, Mr Rundle advanced an argument which constituted, he said, 'a simple answer to the appeal' in all its aspects. This was that, as the Tribunal held at [22], the Appellant had failed to discharge the onus that lay on him to show that the vehicle was not of 'acceptable quality'. 9. Our conclusions. We have some sympathy with the argument that the Tribunal failed to give an adequate explanation of its understanding of s 54 of the ACL. In particular, its findings at [23] did not make it clear whether it took account of the view that a 'reasonable consumer' would be expected to form on the question whether the vehicle was of 'acceptable quality'. These findings are formulated in a manner that suggests that the Tribunal might have been recording its own opinion on this question, not that of a 'reasonable consumer'. But we are not prepared to make a finding to this effect, since it would inevitably have to be based entirely on inferences drawn from the language used by the Tribunal. 10. We agree with Mr Batley that the Tribunal's treatment of the question of durability was unduly brief. It did not disclose the reasoning on which it based its finding (at [23]) that the vehicle was 'durable consistent with a vehicle of that age and distance travelled'. Contrary to Mr Rundle's submission, the issue of durability was sufficiently raised before the Tribunal, both in the Appellant's application to the CTTT and (more importantly) in his written submissions put before the Tribunal. (A copy of these submissions formed part of a bundle of material put before the Appeal Panel by the Appellant.) 11. The Appellant did not, however, adduce any evidence, lay or expert, on the question of durability, other than the statement in his affidavit that he 'knew' that diesel engines had 'the capacity to do around 500,000 kms or more' (see [8] above). As Mr Rundle emphasised, the Appellant bore the onus of proving that the vehicle was not of 'acceptable quality'. This statement by him fell well short of discharging this onus, in so far as his case depended on proving that it was not 'durable'. It follows that the Tribunal's failure to provide adequate reasons for its finding on durability does not constitute a basis for setting aside its decision. 12. For these reasons, the Appellant's first ground of appeal has not been made out. Failure to apply the objective test set out in s 54 of the ACL 1. Like the first ground of appeal, this second ground was concerned with the Tribunal's application of the test of 'acceptable quality' in s 54. The Appellant claimed that the Tribunal not only failed to give an adequate explanation of its understanding of this test, but also adopted an approach that did not properly reflect the objective nature of the test. 2. Mr Batley based this submission on the last four sentences of paragraph [21] of the decision under appeal and the first two sentences of paragraph [24]. What these passages showed, he said, was that the Tribunal treated as relevant the following questions: (a) whether the Appellant, when deciding whether or not to purchase the vehicle, took sufficient account of the possibility that due to its age and the distance that it had travelled it might develop problems; and (b) whether at this stage he should, out of 'prudence', have had the vehicle inspected by a qualified person. Mr Batley added that according to Mr Kelleyan's report an inspection would not have revealed the defect that caused the engine to break down. 3. Mr Batley argued that these observations by the Tribunal reflected a subjective approach, incorporating the principle of 'caveat emptor', that was quite at odds with the objective test laid down in s 54. As authority, he cited the judgment of the New Zealand High Court in Contact Energy Ltd v Jones [2009] 2 NZLR 830 at [86 – 94]. The District Court relied on this judgment in its decision (see Burton v Chad One Pty Limited [2013] NSWDC 301 at [39 – 42]) setting aside the CTTT's order in the present proceedings. 4. Mr Rundle's submissions did not expressly deal with this ground of appeal. 5. Our view on this ground is that if the Tribunal, in dismissing the Appellant's application, had relied on the matters set out in the passages to which Mr Batley referred, it would have erred in law through misapplying the provisions of s 54. But it is not clear that the Tribunal did rely on these matters. It drew attention to them (as indeed it also drew attention at [17] to a conflict of testimony as to whether the Appellant's wife notified the National Warranty Company on 8 January 2013 that the engine had been overheating). But in the crucial part of its reasons (paragraphs [22] to [24]) it did not indicate, expressly or by implication, that any of them had any impact on its decision. 6. For these reasons, our conclusion is that the Appellant's second ground has not been made out. Unwarranted rejection of Mr Kelleyan's report 1. The parties' submissions. Appropriately, this ground of appeal received the most attention in the arguments on both sides. 2. Mr Batley described as 'not fair and equitable' and 'unreasonable' the justification provided by the Tribunal at [22] for, in effect, rejecting the opinion given in Mr Kelleyan's report that the problem of overfuelling had been 'persisting for well over three months'. He drew attention to the infelicities of language in this report, arguing that they showed that English was not likely to be Mr Kelleyan's first language and that it was therefore inappropriate to attach significant emphasis to his use of 'we' and 'our'. There was no reason, Mr Batley argued, to believe that anyone other than Mr Kelleyan carried out the inspection and reached the conclusions outlined in the report. The experience and qualifications that he described at the beginning of the report showed he was obviously an appropriate person to furnish expert evidence. 3. It was always open to the Respondent, Mr Batley argued, to require Mr Kelleyan to attend the Tribunal hearing and submit to cross-examination. He could then have been questioned on matters such as the identity and qualifications of the person or persons who examined the vehicle's engine and tested its injectors and diesel pump, or the method of testing that was employed. But the Respondent chose not to take this obvious course of action. 4. By way of supplementation of this argument focusing on the rejection of Mr Kelleyan's report, Mr Batley submitted that the Tribunal erred in failing to take account of two other items of evidence tending to show that the defects in the vehicle's engine were present at the time when the Appellant purchased it. These were Mr Wynn's file note dated 21 February 2013 and the photograph of the engine taken six days later (see [14 – 15] above). 5. For these reasons, Mr Batley maintained, the Tribunal's finding of primary importance at [24] – namely, that it was 'not satisfied on the balance of probabilities [that] the cause of the overheating was a defect present in the vehicle present at the time of supply' – was against the weight of the evidence and led to a substantial miscarriage of justice. 6. Mr Rundle submitted that irrespective of whether the code of conduct for expert witnesses set out in NCAT Procedural Direction 3: Expert Witnesses, (February 2014) was applicable to the proceedings in the Tribunal, Mr Kelleyan's report patently lacked the necessities required for an expert report. This was the case even though the report stated at the outset that it had been prepared for the purpose of legal proceedings. In addition to the deficiencies correctly identified by the Tribunal at [22] it was defective in containing no acknowledgment by Mr Kelleyan of having read, and having agreed to be bound by, any such code. 7. In reply to a question from the Bench, Mr Rundle advised that these deficiencies had been identified in the Respondent's submissions at the Tribunal hearing. 8. According to Mr Rundle, two further factors justifying the Tribunal's rejection of Mr Kelleyan's report were (a) that since ARA's workshop had been the place where the vehicle's engine was repaired, it was not an independent report and (b) that if Mr Kelleyan had been the individual who conducted the tests and formed the opinions set out in the report, its statement that the workshop had 40 years' experience was irrelevant. 9. In reply to Mr Batley's submission that the Respondent could have required Mr Kelleyan for cross-examination and questioned him on these matters, Mr Rundle argued that this amounted to shifting the onus of proof on to the Respondent. In reply to the submission that the Tribunal ignored Mr Wynn's file note on 21 February 2013, he argued that this was not expressly mentioned in the Appellant's submissions and that anyway the fact that 'leaking' might have occurred did not indicate that there had been overfuelling. On the matter of the photograph taken six days later, he simply maintained that it was of no use. 10. In view of these considerations, Mr Rundle maintained, the Tribunal had acted correctly in rejecting Mr Kelleyan's report and in concluding that the Appellant had failed to discharge the onus of proving that the vehicle's engine was defective at the time when he purchased it. 11. Our conclusions. We have decided, after careful consideration, that this ground of appeal should be upheld. 12. We arrive at this result by the following route. The report by Mr Kelleyan constituted the only testimony that could be regarded as expert evidence on the crucial question whether the relevant defect in the vehicle's engine – causing it to 'overfuel' – was present at the time of its purchase by the Appellant. The Respondent could have retained an expert of its choice and tendered a report prepared by this expert. But it did not take these steps. 13. Undoubtedly, Mr Kelleyan's report fell short in various respects of the standards that would commonly apply to expert evidence. But having regard to practical aspects of the situation – this was a vehicle that was unusable until it was repaired and was located some distance away from the Appellant's home – the Appellant cannot fairly be criticised for relying on the repairer to act also as his expert witness. 14. We agree with Mr Batley that the standard of Mr Kelleyan's written English was not high, and that for this reason undue significance should not be attached to his use of the words 'we' and 'our'. 15. It may well be that the testing of the significant components of the engine was conducted by one or more of his employees, with or without oversight by him. But it does not follow that the crucial opinion expressed in the report that Mr Kelleyan signed – namely, that overfuelling must have been occurring for 'well over three months' – was not an opinion that Mr Kelleyan held. The Tribunal did not in fact make a finding to this effect. It focused only on the identity of the individual(s) – presumptively, Mr Kelleyan and/or one or more of his employees – who conducted the relevant tests. 16. It was open to the Respondent, as Mr Batley emphasised, to seek to discredit Mr Kelleyan's report by requiring him for cross-examination. They elected against doing this. In consequence, this report should, in our judgment, have been given significant weight, as constituting virtually the only evidence before the Tribunal on the question of primary importance in the case. This conclusion on our part does not entail shifting the onus of proof to the Respondent. 17. We agree with Mr Rundle that the photograph of the engine taken on 27 February 2013 provides no assistance. But Mr Wynn's file note of 21 February 2013 does lend some support to the Appellant's claim that the defect existed before the date of purchase. It may not have been explicitly mentioned in the Appellant's submissions to the Tribunal, but a copy of it was annexed to the Appellant's relatively short affidavit, to which the Tribunal referred in its decision. 18. For the foregoing reasons, we conclude that the Tribunal's finding in the final sentence of paragraph [24] was against the weight of the evidence and led to a substantial miscarriage of justice. The Tribunal should have made the contrary finding, namely, that 'on the balance of probabilities the cause of the overheating was a defect present in the vehicle at the time of supply'. The orders to be made 1. Mr Batley submitted that if we concluded that the appeal should be allowed, we should remit the matter to the Tribunal for a further hearing. This was for the following reasons: (a) the Appellant, without having had the benefit of legal advice, had initially claimed only $7,000 as compensation: (b) the Tribunal had rejected a subsequent application to increase this amount; (c) its reasons for so doing were not available to us; (d) in the decision under appeal at [13], the Tribunal had however noted that the total costs incurred by the Appellant in having the vehicle repaired were $18,155.30; and (e) it was not open to us, sitting as an Appeal Panel, to alter the amount of the Appellant's claim. 2. It is unfortunate that this relatively small-scale matter should have to go to a third hearing. But if the Appellant is to have an opportunity to obtain adequate relief, we see no alternative to this course of action. 3. At the further hearing, both parties should, in our opinion, have the opportunity to tender further evidence. Our orders will therefore include an order that there should in the first instance be a directions hearing before the Tribunal. 4. The question of the costs of the appeal was briefly mentioned in the submissions of the parties. Our strong impression is that neither of them could establish grounds for a costs order under s 60 of the NCAT Act. But there may be circumstances of which we are unaware. Our orders accordingly include directions for the filing of written submissions on costs. ******** 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: 12 May 2015