Singh t/as GB Penrith Truck Centre v On Road Transport Pty Ltd [2016] NSWCATAP 129

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Singh t/as GB Penrith Truck Centre v On Road Transport Pty Ltd [2016] NSWCATAP 129 Hearing dates: 8 March 2016 Date of orders: 16 June 2016 Decision date: 16 June 2016 Jurisdiction: Appeal Panel Before: O Shub, Principal Member S Thode, Senior Member Decision: Appeal dismissed. Catchwords: Appeal – Civil and Administrative Tribunal (NSW), Consumer & Commercial Division – Internal Appeal –– Consumer Claim – due care and skill Legislation Cited: Consumer Claims Act 1998 Fair Trading Act 1989 Civil and Administrative Tribunal Act 2013 Cases Cited: Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378; Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Texts Cited: Nil Category: Principal judgment Parties: Guvindar Singh t/as GB Penrith Truck Centre (Appellant)

On Road Transport Pty Ltd (Respondent) Representation: Representation for Appellant: Mr Singh Representation for Respondent: Mr Rodriguez File Number(s): AP 15/65735 Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 4 November 2015 Before: D Goldstein, Senior Member File Number(s): MV14/44852

reasons for decision

Introduction 1. On 20 January 2014 Mr Rodriguez, the director of the respondent company, left his Kenworth Prime Mover (the truck) at the appellant's premises for repair. Mr Rodriguez advised Mr Singh, the director of the respondent company, that the truck had a cooling problem. After inspection of the truck the appellant was advised by respondent that piston liner three had a crack in it and required repair. The engine underwent repair and was collected by the respondent on 29 January 2014 and broke down on the same day. It was returned and a chassis rebuild was undertaken. On 10 March 2014 the truck was collected again but was not in a condition to be driven. The truck was finally repaired by a third party, and fitted with a second hand engine. 2. By application filed in the Consumer and Commercial Division, the respondent sought damages in the sum of $30,929.92 for the cost of the second hand replacement engine and the fitting cost. The appellant was ordered to pay the respondent the sum of $27,025 immediately based on a finding that the appellant failed to carry out the repairs to the truck with due care and skill with the result that the truck's engine sustained damage that warranted its replacement by another repairer. 3. The appellant appeals against the whole of the amount that it was ordered to pay. The appellant's contentions include that there was no evidence to establish its liability and that the Tribunal erred at law. In the alternative the appellant seeks leave to appeal the decision. 4. For the reasons set out below, we do not uphold the appeal. In our opinion, the appeal should be dismissed