Ya Welding Pty Ltd v Danmac Pty Ltd [2016] NSWCATCD 11

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Ya Welding Pty Ltd v Danmac Pty Ltd [2016] NSWCATCD 11 Hearing dates: 23 November 2015 Decision date: 04 February 2016 Jurisdiction: Consumer and Commercial Division Before: G J Sarginson General Member Decision: 1. The application is dismissed. Catchwords: Repairer's Lien Legislation Cited: Civil and Administrative Tribunal Act 2013 s 37 Fair Trading Act 1987 ss 28, 79D, 79E, 79K, 79L Australian Consumer Law 2010 ss 18, 21 Category: Principal judgment Parties: Ya Welding Pty Ltd (applicant) Danmac Pty Ltd (respondent) File Number(s): GEN 15/52675 Publication restriction: Nil

reasons for decision 1. The matter was listed for hearing at the Tribunal in Liverpool on 23 November 2015. Mr Abdishou, director of the applicant, appeared and gave sworn evidence. Mr Novakovic and Ms Novakovic, directors of the respondent, appeared and gave sworn evidence. Prior to the matter proceeding to hearing, the Tribunal encouraged the parties to resolve the dispute, pursuant to Section 37 of the Civil and Administrative Tribunal Act 2013. The parties were unable to reach agreement, despite the best endeavours of the Tribunal to encourage the parties to resolve the dispute, and the matter proceeded to hearing. 2. The dispute involves a forklift owned by the applicant, which was repaired by the respondent. The forklift remains in the possession of the respondent, the respondent refusing to release the forklift until monies owed for repairs are paid. The applicant refuses to pay on the basis that the applicant asserts that no quotation was provided before the work was performed, and it did not consent to the price charged by the respondent nor the repair work performed. The applicant asserts that the respondent is claiming an unreasonable amount to repair the forklift. The respondent asserts that the amount claimed is reasonable, and reflects the amount of work performed on the forklift. 3. The applicant filed proceedings in the Tribunal on 14 September 2015. The applicant seeks an order that it not have to pay the respondent the sum of $8,654.84, in respect of an invoice of the respondent dated 12 August 2015. In respect of both the oral evidence of Mr Abdishou, and the documents that the applicant relied upon, there was reference to the cost of the applicant hiring a forklift from Tara Forklift Services to replace the applicant's forklift which is in the possession of the respondent. The proceedings filed by the applicant does not seek an order for damages, but solely an order that the applicant not have to pay the respondent monies. The application filed with the Tribunal does not seek an order that the applicant not have to pay part of the invoice dated 12 August 2015, but an order not to pay the whole amount. No amended application was filed by the applicant, nor did the applicant seek leave to amend the application at the hearing. 4. Each party had filed and served documentary evidence prior to the hearing. A number of the applicant's documents were annexed to the application filed with the Tribunal, and the remainder were filed and served pursuant to directions of the Tribunal.