Liu v Zaccaria trading as Precision Automotive Engineers [2017] NSWCATCD 59

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Liu v Zaccaria trading as Precision Automotive Engineers [2017] NSWCATCD 59 Hearing dates: 13 April 2017 and 6 June 2017 Decision date: 19 July 2017 Jurisdiction: Consumer and Commercial Division Before: B Shipp, Senior Member Decision: 1. The Respondent is to pay the Applicant the sum of $21,885.00 on or before 13 August 2017. Catchwords: Motor vehicle repair - Australian Consumer Law – duty to provide services with due care and skill – breach of consumer guarantee – expert evidence – measure of compensation. Legislation Cited: Fair Trading Act 1987 (NSW) Australian Consumer Law Cases Cited: Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; Pownall v Conlon Management Pty Ltd (1995) 12 WAR 370; Mayne Nickless Ltd v Crawford (1992) 59 SASR 490; Read v Nerey Nominees Pty Ltd [1979] VR 47 Category: Principal judgment Parties: Applicant: Mr Yang Liu Respondent: Mr Anthony Zaccaria trading as Precision Automotive Engineers Representation: The Applicant in person The Respondent in person File Number(s): MV 16/55470 Publication restriction: Nil

REASONS FOR DECISION

Background and Jurisdiction 1. The Applicant is the owner of a HINO FM1J Ch1-1WD Tipper truck (the truck). The truck had engine problems in July 2016, and he took it to the Respondent to be repaired. The Respondent completed the repairs in early September 2016. 2. The Applicant claims the truck again broke down while driving it in late October 2016 after having driven it only 550 kilometres since the Respondent's work. He returned the truck to the Respondent who arranged for the installation of a reconditioned engine. He returned the truck to the Respondent in December 2016 and he has had no trouble with it since that time. 3. He had to pay $17,500 for the reconditioned engine and a further $10,000 to the Respondent. The Respondent declined to do this work under warranty. 4. The Applicant claims he was put to the above additional costs as a result of the failure to properly repair the truck when it was first taken to the Respondent. He seeks reimbursement of these amounts. 5. The Tribunal's Consumer and Commercial division has jurisdiction in relation to matters arising under various legislation including the Consumer Claims Act 1998 (NSW)(CCA) which in turn may raise issues rights under the Australian Consumer Law (ACL). This jurisdiction and the legislative provisions have now been transferred to Part 6A of the Fair Trading Act, and that it is the applicable legislation as this application has been lodged after these changes took effect. 6. The ACL was incorporated into the law of New South Wales by section 28(1) of the Fair Trading Act 1987 (NSW) ('FTA'). The ACL (NSW) consists of Schedule 2 of the Competition and Consumer Act 2010 (Cwth), and the regulations under section 139G of that Act (FTA section 27). 7. The ACL applies to create rights at law in consumers that fall within the terms of the ACL including the consumer guarantee provisions in sections 54-57 of Part 3-2 ACL. Whilst the ACL creates a cause of action at law and a range of remedies for parties, it does not of itself confer any jurisdiction on this Tribunal to hear those actions and provide those remedies. 8. Section 79J FTA gives the Tribunal jurisdiction to hear claims falling under the FTA. Section 79D of the FTA defines a 'consumer' to include a natural person to whom a supplier has supplied or agreed to supply goods or services, whether under a contract or not. The Applicant meets this description. 9. The claim arises from the supply of services to the consumer (under a contract or not), and constitutes a claim by the consumer for the payment of a specified sum of money (FTA section 79E). The goods to which the claim relates were supplied in NSW (FTA section 79K). The claim was made within the period of time allowed in Section 79L FTA. 10. The claim is therefore one maintainable under the FTA but as such is subject to the Tribunal's monetary jurisdiction which is limited by section 79S FTA to making orders for the payment of no more than the prescribed amount. The Applicant's claim is within the monetary limits prescribed.