Irving v D’Michelle t/as Westside Customs and Mechanical [2015] NSWCATCD 152

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Irving v D'Michelle t/as Westside Customs and Mechanical [2015] NSWCATCD 152 Hearing dates: 7 October 2015 Decision date: 10 December 2015 Jurisdiction: Consumer and Commercial Division Before: G.J. Sarginson, General Member Decision: 1 The respondent is to pay the applicant $7,000.00 on or before 21 days from the date of this decision. Catchwords: Consumer claim-Due care and skill-Causation-Damages Legislation Cited: Fair Trading Act 1987 ss 28, 79D, 79E, 79L, 79U Australian Consumer Law 2010 s 60 Cases Cited: Mayne Nickless Ltd v Crawford (1992) 59 SASR 490 Read v Nerey Nominees Pty Ltd [1979] VR 47 Hadley v Baxendale (1854) 156 ER 145 Clark v Macourt (2013) 304 ALR 220 Alexander v Cambridge Credit Pty Ltd (1987) 9 NSWLR 310 at 361 Chand v Commonwealth Bank of Australia [2015] NSWCA 181 Bellgrove v Eldridge (1954) 90 CLR 613 Tabcorp Holdings Ltd v Bowen Investments Pty Ltd (2009) 236 CLR 272 Category: Principal judgment Parties: Darran Richard Irving (applicant) Patrick Sasha D'Michelle t/as Westside Customs and Mechanical File Number(s): MV 15/43487 Publication restriction: Nil

REASONS FOR DECISION 1. The dispute involves engine reconditioning work that the respondent performed on the diesel motor of applicant's 1998 Toyota Landcruiser vehicle. The applicant alleges that the work performed by the respondent was not performed with due care and skill, and seeks the cost of rectification of the allegedly defective work. 2. Proceedings were filed with the Tribunal on 15 July 2015. The application seeks an order for damages of $14,000.00. The matter was listed before the Tribunal on 12 August 2015, when the parties were not able to resolve the dispute, despite conciliation. The matter was set down for hearing, with orders that each party file and serve documentary evidence. Each party filed and served documentary evidence in accordance with the directions of the Tribunal. 3. The matter was listed for hearing on 7 October 2015. It proceeded to hearing. Both the applicant and the respondent gave evidence. The applicant's expert, Mr Organ, appeared at the Tribunal and gave evidence.