Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Oasis Aussies Pty Ltd t/as Combined Smash & Mechanical Repair Services v Chai [2018] NSWCATAP 65 Hearing dates: 13 December 2017 Date of orders: 16 March 2018 Decision date: 16 March 2018 Jurisdiction: Appeal Panel Before: S Higgins, Senior Member T Simon, Senior Member Decision: 1. Grant leave to appeal. 2. Appeal allowed in part. 3. Order 1 of the Tribunal is varied by setting aside the order for the sum of $3190.74 and substituting it with the sum of $2021.36. 4. Mr Chai to repay Oasis Aussies Pty Ltd t/as Combined Smash & Mechanical Repair Services with the sum of $1,169.38 immediately. Catchwords: APPEAL – appeal on question of law and application for leave to appeal - breach of the statutory guarantee that services will be rendered with due care and skill – assessment of damages – no issues of principle – failure of the Tribunal to take into account in the assessment of damages a finding that the appellant had not dented the front bumper bar Legislation Cited: Australian Consumer Law (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Competition and Consumer Act 2010 (Cth) Fair Trading Act 1987 (NSW) Cases Cited: Collins v Urban [2014] NSWCATAP 17 Hadley v Baxendale (1854) 156 ER 145 Prendergast v Western Murray Irrigation Pty Ltd [2014] NSWCAPT 69, at [13] Category: Principal judgment Parties: Oasis Aussies Pty Ltd (Appellant) Cunyong Chai (Respondent) Representation: Counsel: A Ogborne for the Appellant Solicitor: CFC Lawyers for the Appellant C Chai (Respondent in person) File Number(s): AP 17/42709 Decision under appeal Court or tribunal: New South Wales Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 22 September 2017 Before: S Thode, Tribunal Member File Number(s): MV 17/27627 Reasons for decision Introduction 1. The appellant, Oasis Aussies Pty Ltd t/as Combined Smash & Mechanical Repair Service (Oasis Aussies), has appealed the following order made by the Tribunal, in the Consumer and Commercial Division, on 22 September 2017: "1. Oasis Aussies Pty Ltd t/as Combined Smash & Mechanical Repair Service … is to pay Cunyong Chai … the sum of $3190.74 immediately." 1. The Tribunal's order related to a consumer claim application the respondent, Mr Cunyong Chai (Mr Chai), alleging that Oasis Aussies had breached the statutory guarantee that its services would be rendered with due care and skill when repairing and repainting his car, a 2016 Honda Civic: see s 60 of the Australian Consumer Law (NSW). Mr Chai had engaged the services of Oasis Aussies (a smash repairer), in March 2017, as he wanted to prepare his car for sale. 2. The Tribunal heard Mr Dunn's claim on 22 September 2017 and published its decision and reasons for decision on the same day after the hearing had been concluded. 3. Oasis Aussies lodged its Notice of Appeal on 5 October 2017 and there is no dispute that the decision of the Tribunal is an internally appealable decision. Oasis Aussies may make this appeal as of right on a question of law, or with the leave of the Appeal Panel on any other ground: see Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 80(1) and (2)(b). 4. As this is an appeal from a decision of the Tribunal in the Consumer and Commercial Division, cl 12 of Sch 4 of the Civil and Administrative Tribunal Act applies in that the Appeal Panel may only grant leave to appeal where it is satisfied the appellant may have suffered a substantial miscarriage of justice because: "(a) the decision of the Tribunal under appeal was not fair and equitable, or (b) the decision of the Tribunal under appeal was against the weight of evidence, or (c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with)." Notice of Appeal and Reply to Appeal 1. In its Notice of Appeal, Oasis Aussies sought the following order in the event its appeal was successful: "1. Cunyoung Chai of … is to pay Oasis Aussies Pty Ltd t/as Combined Smash & Mechanical Repair Service of … the sum of $2,690.74 immediately by way of restitution so as to have the effect that Cunyoung Chai retains $500.00 of the amount paid to him by Oasis Aussies Pty Ltd pursuant to the order made on 22 September 2017." 1. In effect, Oasis Aussie was seeking an order that the appeal be allowed and that the order of the Tribunal be set aside together with an order that Mr Chai, repay him $3,190.74 (less $500), as it had already paid Mr Chai this amount prior to the hearing of this appeal. The $3,190.74 was paid to Mr Choi after he took action to enforce the order that was made. The $500 was the amount Oasis Aussies said might be due to Mr Chai in respect of any damage it may have done. 2. In his Reply to Appeal, Mr Chai, said that the orders made by the Tribunal were correct. 3. In its Notice of Appeal, Oasis Aussies contended that there were 10 errors of law in the Tribunal's reasoning. Based on similar grounds, Oasis Aussie also made an application for leave to appeal. In this regard it was contended that the decision of the Tribunal was not fair and equitable and against the weight of evidence and as a consequence Oasis Aussie had suffered a substantial miscarriage of justice. 4. For the reasons that follow we find that, based on the Tribunal's findings as to liability, it erred in its assessment of damages by having regard to the costs of replacing the front bumper bar of Mr Choi's car when it found that Oasis Aussies had not dented the front bumper bar. Hence we have allowed the appeal and varied the order made by the Tribunal by setting aside the amount of $3,190.74 and substituting this amount with $2,021.36, which is $3,190.74 less $1,169.38 being the cost of replacing the front bumper bar. We have also ordered that Mr Chai repay Oasis Aussies an amount of $1,169.38, as he has already been paid the Tribunal judgment amount. Material before the Appeal Panel 1. At the hearing of the appeal the parties relied on the following material they had filed and served: 1. Oasis Aussies' Notice of Appeal and the attachments thereto, which appear to have been prepared and filed by the solicitor acting for Oasis Aussies in this appeal; and 2. three small bundles of documents provided by Mr Chai. The first bundle contained Mr Chai's Reply to Appeal and a copy of the written evidence relied on by Oasis Aussies at the hearing before the Tribunal below. The second bundle contained a copy of Mr Chai's consumer claim application before the Tribunal below and the written evidence and photos relied on by Mr Chai at the hearing. The third bundle contained a transcript of the sound recording of the hearing below. 1. At the hearing of the appeal, counsel for Oasis Aussies, Mr A Ogborne, sought to tender: 1. further written submissions that contained the original grounds of appeal, together with some additional grounds of appeal; and 2. a tender bundle of documents, containing a selection of the documents that had already been filed by the parties in this appeal. 1. Mr Chai objected to the tender of this material, as he had not been served with a copy prior to the hearing. He pointed out that orders had been made for the filing and serving of material and the failure of Oasis Aussie to comply with these orders. He said that it would be unfair to him if Oasis Aussies were permitted to rely on this new material, as he had not had an opportunity to view it, or respond to it, should it be necessary to do so. 2. We note that, at the call-over on 31 October 2017, the Appeal Panel, constituted by Principal Member Harrowell, made orders for filing and serving of evidence and submissions by the parties. Oasis Aussies was ordered to file and serve its evidence and written submissions, by 21 November 2017, which it failed to do. Mr Chai, on the other hand, had served his reply and the documents (other that the transcript of the hearing below) prior to the call-over. 3. On the basis of Mr Chai's objection to any new grounds of appeal we did not accept the tender of Mr Ogborne's further written submissions. Nor did we accept the tender bundle, as it was agreed that this material was included in the material filed by the parties. Background 1. The background to the dispute between Mr Chai and Oasis Aussie is set out in the Tribunal's reasons for decision as follows: "Mr Chai is a consumer and the respondent is a supplier of smash repair services. The parties agreed that the respondent would repaint parts of the applicant's 2016 Honda Civic. In particular the parties agreed to the repair of five items. 1. scratches on the front bumper bar, (damage shown in photographs 25 – 26 of the applicant's bundle); 2. peeling paint on front left bumper bar of a couple of inches diameter; 3. scratches on the left rear door; 4. scratches on the body of the car; 5. painting left rear door. The parties agreed to a contract price of $1500. The applicant alleges that he noticed shortly after the car was returned that the service was not performed with due care and skill. The applicant alleges that the right bumper bar was roughly painted and had a dent. The applicant realised after a few days that the left rear door was painted yellow. Both the front right and left bumper bar did not match the colour of the car. He also alleges that the left rear door had a colour difference. The respondent also painted over the seals of the door. The applicant claims that this was not a professional service carried out with care and skill. A technician told him later that the colour had been applied defectively with a chemical spray that may have damaged that colour." 1. Mr Chai's car was white in colour. At the time of manufacture, it was painted in a "White 3 Layer Pearl Paint". It was not disputed that this meant that there was a three-step process in order to achieve the three-layer effect. 2. Mr Chai had taken his car to Oasis Aussie on 5 March 2017, where he dealt with Mr James Yu (Mr Yu), the owner of the business. He picked it up on 11 March 2017. At the time he made no complaint to Mr Yu about the repair work. He returned the car five days later, on 16 March 2017, to Mr Yu. Hearing before the Tribunal below 1. At the hearing below Mr Chai gave evidence and relied on a statement he made on 20 July 2017. Attached to that statement were a number of photographs. Mr Chai also relied on an expert report, dated 25 July 2017, by Mr Steve Mansueto of SM Assessing who had inspected his car and the work that was done by Oasis Aussies. In his report, Mr Mansueto said he was of the opinion that the workmanship of Oasis Aussies was not performed with due care and skill because: "1. Poor repairs to the right front bumper bar near the headlamp area, the line at this area has not been repaired properly and there is also a defect in the repair finish. 2. Right headlamp clear plastic edge has been sanded/ground back. 3. Both sides of the front bumper bar has been painted and these do not match the original paint to both the front guards. 4. The left rear door has also been painted after having been repaired and the colour does not match the adjoining panels, the difference is more evident to the rear quarter panel where I assume that damaged and repaired area of the door was closest to. 5. The left rear lower door mould has the original colour and there is a notable difference in colour between the door mould and the new door paint. 6. The left rear door mould is not properly secured at the rear section that may well have been damaged from the removal process, note that in certain cases due to the way a door mould may be attached to the door by either double sided table clips, a door mould may become damaged when being removed and will therefore require replacement. 7. The left rear door front rubber vertical seal has been painted/ over sprayed. The repairer has poorly mask this rubber seal causing it to become painted and this item requires replacement." 1. Mr Chai also tendered into evidence three fully itemised repair quotes that he had obtained and which ranged between $3,067.24 and $3,314.25. 2. Mr Yu gave evidence at the hearing on behalf of Oasis Aussies. He relied on a statement he made that was dated 8 September 2017. Oasis Aussies also relied on a statement of Mr Gabi Thaja (Mr Thaja), dated 12 September 2017. Mr Thaja is the owner of CNS Smash Repairs and he gave evidence of having inspected Mr Chai's car, in June 2017, at the request of Mr Yu and Mr Chai. 3. It was Mr Yu's evidence that the front right hand bumper was already a different colour when the car was delivered to him. He said that this occurred naturally between plastic and metal panels of a car. That is, when the same colour paint is applied to different materials there will be a colour difference between the plastic and the metal painted surfaces. 4. Mr Yu said he undertook the work he had agreed to do. 5. He said that when Mr Chai picked up his car it was a sunny day and Mr Chai did not complain about the repair work and paid for the work that had been done. In his oral evidence at the hearing, Mr Chai disputed this evidence of Mr Yu. He said the car was in the work shed when he picked it up and it was dark in there. 6. Mr Yu said that when Mr Chai returned the car, it was then that he saw some damage to the front bumper bar and it looked like some dust had settled on the paint. 7. He said Mr Chai had overstated the work that Oasis Aussies had performed on the car. He said that the only repainting that had been done was to the left side of the front bumper bar of the car and this only involved applying a clear coat of paint to the bumper bar. This coat he explained was the last coat of the three-layer coat of paint process that was used to paint Mr Chai's car originally. He denied he returned the car with yellow panels. 8. Mr Yu denied repairing the left rear door and said there was no problem with the paint on the right rear door, or that he had damaged the headlamp of the car. He also denied that the door seals had been damaged. However, he did note that the paintwork on the front right bumper bar was rough and he offered to repaint it by sanding it back and respraying it. He also offered to overspray and replace the seals. He said he estimated that the costs of doing this work and doing the repainting of the front right bumper bar would not exceed $500. 9. In his statement, Mr Thaja said Mr Chai told him that he was unhappy with the repairs that had been carried out on his car and in particular, he complained that the surface of the paint on the front right bumper bar was rough. He also complained that there was a difference between the colour of the paint applied to the left rear door when compared with the colour of the paint on the adjoining panels. He said that Mr Chai did not make any complaint about there being a dent in the right front bumper bar, there was damage to the right headlamp, that the colour of the paint on the bumper bar was different to the paint on the guards, or that the left rear door mould was not properly secured. In regard to the differences in paint colour, Mr Thaja said that in his experience it was usual for there to be a minor colour difference between repair paintwork compared to the original paintwork. Findings of the Tribunal 1. In her reasons for decision, the Tribunal Member noted that, during the hearing, Mr Yu had confirmed that he had known Mr Thaja for at least 5 to 6 years and that from time to time, Mr Thaja performed contract work for Oasis Aussie. 2. In the reasons for decision, under the heading consideration, the Tribunal set out the applicable law as follows: "As a result of the amendments to the Fair Trading Act 1987, section 60 of the ACL applies in New South Wales. That section deals with guarantees regarding acceptable quality in consumer transactions. Section 60 of the Australian Consumer Law provides as follows: "60 Guarantee as to due care and skill If person supplies, in trade or commerce, services to a consumer, there is a guarantee that the services will be rendered with due care and skill." For the purposes of the ACL, the applicant is a consumer and the term service includes repairs and services as provided by the respondent. Accordingly, section 60 of the ACL applies with the effect that the respondent painted the car for the applicant with a guarantee that the painting was of acceptable quality, without damaging the car. The issue then becomes whether the service was carried out with due care within the meaning of section 60 of the ACL. Before that question can be examined it is necessary, in my view, to have regard to section 60 of the ACL in order to consider the matters referred to in that section." 1. Oasis Aussies has taken no issue with the above statement of the Tribunal. 2. The Tribunal went on to say the following: "For the purposes of section 60 I consider the following facts are relevant. a) the respondent did not notify the applicant that the car was already painted in different shades of white at the time the applicant delivered the car. This was asserted for the first time when the respondent filed and served its evidence. b) the respondent stated that he could repaint the three panels for the cost of $1500 and made no mention that the colours or shades of white may vary." 1. The Tribunal's additional findings can be summarised as follows: 1. the expert report of Mr Mansueto of SM Assessing, was accepted as an independent assessment that the paintwork was defective and that the services were not carried out with due care and skill; 2. Mr Thaja was not an independent witness as he had been known to Mr Yu for a number of years – his statement was afforded little or no weight; 3. the repair quotes by three independent repairers attached to Mr Mansueto's report were acceptable and reasonable to repair the damage and a reasonable assessment of Mr Chai's loss; and 4. however, in the absence of contemporaneous evidence led by Mr Chai, the Tribunal did not accept that the bumper bar of his car had a dent in it, or that the headlight of the car was damaged by Mr Yu and liability in regard to those defects were not established. 1. In regard to damage or loss suffered by Mr Chai, the Tribunal said: "In assessing quantum I have taken the median price of repairs being the three repair bills. I accept the expert statement that he has assessed the repair range between $3067.24 and $3314.25. I accept his opinion that the quotes from three independent repairers and independent expert are reasonable assessments of the applicant's loss. I award the median between the two figures being $3190.74. I declined to make an award for damaged headlamp." Grounds of Appeal 1. As we have noted, in its Notice of Appeal, Oasis Aussie identified 10 errors of law. At the hearing of the appeal, counsel for the respondent did not press grounds 7 to 10. However, it was contended that grounds 9 and 10 were relevant to Oasis Aussie's application for leave to appeal. 2. In Prendergast v Western Murray Irrigation Pty Ltd [2014] NSWCAPT 69, at [13], the Appeal Panel set out a number of possible questions of law. The list is not exhaustive. 3. We have separately dealt with each ground of appeal pressed by Oasis Aussies below. Ground 1 1. Oasis Aussie contended that the Tribunal erred in law by failing: "… [to] have regard to the unanimous opinion of both experts (including the expert relied on by the respondent) that, when using the paint system required to spray paint on [Mr Chai's] car, it was practically impossible (and, therefor, not a failure to use due care and skill) to match new paint to the existing paint without there being a notable difference in paint colour where the new and existing paints were lined up edge-to-edge in adjoining panels." 1. In our view, this contention does not raise a question of law and is primarily a challenge to the factual findings of the Tribunal. In our opinion, the Tribunal did not fail to have regard to the evidence of the experts in so far as it related to the paint system that was used in the manufacture of Mr Chai's car. Nor in our view is the above contention a correct statement of the evidence, or the Tribunal's findings. 2. While the evidence of Mr Mansueto, Mr Chai's expert, was that it "was very difficult or nearly impossible" to obtain an exact same colour edge-to-edge finish between the damaged panel or replaced panel with the undamaged adjoining panel this was not what he said he had observed when he inspected the repairs Oasis Aussies had undertaken on Mr Chai's car. It was his evidence that the "colours did not match" the original paint. He went on to say he was of the opinion that in order to rectify the damage, the entire left side of Mr Chai's car needed to be painted as well as the repaired front bumper bar and mud guard. His evidence was that this was needed to ensure there was minimal or no evidence of the repairs that had been undertaken. 3. Mr Thaja, on the other hand, did not go so far and was of the opinion that the repair work had been done adequately. 4. As we have noted, the Tribunal accepted the evidence of Mr Mansueto and placed little or no weight on the evidence of Mr Thaja. On the material before us, in our opinion, such a finding was open to the Tribunal. 5. Accordingly, this ground of appeal is not established. Ground 2 1. It was contended that the Tribunal erred in law by failing to hold that, on the proper application of the unanimous opinion of both experts, the appellant did not fail to spray paint Mr Chai's car with due care and skill by reason that there was an existing colour difference between the paint applied by Oasis Aussie and the existing paint on the undamaged panels. 2. Again, this ground does not raise a question of law and is a challenge to the factual findings of the Tribunal. 3. In our opinion, this ground is in effect a restatement of ground 1, which we have rejected for the reasons set out above. Hence, we find that this ground of appeal is not established. Ground 3 1. It was contended that the Tribunal erred in law by; "… [failing] to have regard to the fact (not challenged by the evidence of [Mr Chai] and, apparently accepted by the Tribunal) that the left front bumper bar retained the original white coat of paint that had been applied when the car was manufactured, so that the colour difference between the left front bumper bar and the adjoining panel was not as a result of any work done by Oasis Aussie." 1. This ground also does not raise a question of law and again is a challenge to the factual findings of the Tribunal. 2. As we have noted above, it was the evidence of Mr Yu that in repairing the left front bumper bar, he had only applied the final clear layer of the original three-layer coat of paint to the bumper bar, as the original white coat of paint had not been damaged. 3. We understand Oasis Aussies to contend that the paint it sprayed on the bumper bar did no more than restore the bumper bar to its original colour and any difference in colour between the re-sprayed bumper bar and the remainder of the car was there before the repairs were undertaken. 4. On the material before us there is no evidence to indicate that Mr Chai conceded that originally the front bumper bar was a different colour, or different shade of white. On the contrary, the evidence of Mr Chai and his expert, Mr Mansueto, was that the colour of the resprayed front bumper bar was different and no longer matched the original colour. 5. We reiterate the findings of the Tribunal in that the evidence of Mr Mansueto was preferred to that of Mr Yu and Mr Thaja in so far as it related to the colour difference of the re-sprayed bumper bar and that of the rest of the car. Again, in our opinion, it was open to the Tribunal Member to make such findings on the material before her. 6. Again, we find that this ground of appeal has not been established. Ground 4 1. It was contended that the Tribunal erred in law by: "… [failing] to hold that, having regard to the fact that there was a colour difference between the bumper bar and the adjoining panels when the car was manufactured, [Oasis Aussie] did not fail to spray paint [Mr Chai's] car with due care and skill by reason that there was a colour difference between the paint applied by Oasis Aussie to the right front bumper bar and the existing paint on the undamaged panel." 1. This ground of appeal also does not raise a question of law. It is a restatement of ground 1 and 3 above. For the reasons set out above, we also find that this ground of appeal is not established. Ground 5 1. It was contended that the Tribunal erred in law in: "… [failing] to apply the proper measure of damages so as to award a sum which compensated the respondent for any loss or damage, but instead, applied a measure of damages as if to enforce a contractual promise (which was not made by [Oasis Aussie] to make repairs to the car (and do spray painting work on undamaged areas of the car) so that there would be no differences in paint colour between any of the panels of the car (whether damaged or undamaged). 1. A failure to apply the proper measure of damages is an error of law: Prendergast v Western Murray Irrigation Pty Ltd [2014] NSWCATAP 69, at [13(3)]. 2. Section 28 of the Fair Trading Act 1987 (NSW) provides that the Australian Consumer Law text applies as a law of New South Wales and it applies as part of the Fair Trading Act. That is, it is to be applied, as relevant, in the determination of a consumer claim brought under Part 6A of the Fair Trading Act. 3. The Australian Consumer Law text is contained in Schedule 2 of the Competition and Consumer Act 2010 (Cth), (Australian Consumer Law). Section 60 of the Australian Consumer Law is contained in Part 3 of Chapter 2 of that Law which contains several guarantees in regard to the supply of goods and services to consumers, which cannot be contracted out of. 4. Section 267 to 268 of the Australian Consumer Law sets out the remedies that may be available to a consumer a consumer if a supplier fails to comply with a consumer guarantee, including the due care and skill guarantee in s 60. Section 267 relevantly provides as follows: "267 Action against suppliers of services … (4) The consumer may, by action against the supplier, recover damages for any loss or damage suffered by the consumer because of the failure to comply with the guarantee if it was reasonably foreseeable that the consumer would suffer such loss or damage as a result of such a failure." 1. Division 3 of Part 6A of the Fair Trading Act contains provisions relating to orders the Tribunal can make in relation to a consumer claim made under that Part. Section 79N within Division 3 provides that the Tribunal can make an order in favour of a claimant in a consumer claim, which includes an order "that requires a respondent to pay to the claimant a specified amount of money": see Fair Trading Act, s 79N(a). 2. Section 79U within Division 3, sets out the matters to be considered by the Tribunal when making orders in relation to a consumer claim. That section relevantly provides: "79U Matters to be considered by Tribunal when making orders (cf CC Act 1998, s 13) (1) When making any orders under this Division, the Tribunal must be satisfied that the orders will be fair and equitable to all the parties to the claim. (2) Without limiting subsection (1), when determining whether or not to make an order under this Division, the Tribunal is to take the following factors into consideration if they are material to the particular circumstances of the case: (a) whether or not there was any material inequality in bargaining power between the parties to the claim, …, (h) where the subject of the claim is a contract for the supply of goods or services or a contract collateral to such a contract: (i) whether or not before or at the time when the contract was made its provisions were the subject of negotiation, and (ii) whether or not it was reasonably practicable for the claimant to negotiate for the alteration of the contract or to reject any of its provisions, and (iii) …, and … (v) the extent (if any) to which the provisions of the contract and their legal effect were accurately explained by any person to the claimant and whether or not the claimant understood the provisions and their effect, and (vi) the commercial or other setting, purpose and effect of the contract." 1. We understand Oasis Aussies to contend that it had contracted with Mr Chai to do no more than the work specified in the tax invoice it had issued, on 11 March 2017, when Mr Chai came to collect his car. Hence, any award of damages was limited to any damage arising from any damage to the specific work identified on the tax invoice. The work identified in that invoice was as follows: "REPAIR FRONT BAR REPAIR REAR BAR REPAIR L/H REAR DOOR." 1. At the hearing of the appeal, Mr Ogborne, refined this ground of appeal and submitted that, based on the Tribunal's finding that, at the time Mr Chai delivered his car for repair, Mr Yu, of Oasis Aussies: 1. failed to tell Mr Chai that his car was already painted different shades of white; and 2. said he could repaint the three panels of his car for $1,500, but failed to mention that the colours or shades may vary amounted to a finding of a failure to warn. 1. Mr Ogborne, went on to submit that the appropriate measure of damages based on these findings was a loss of opportunity. That is, Mr Chai's loss of the opportunity to have the whole left side of the car painted if Mr Yu had informed him that there was already a colour difference between the side panel and the bumper bar. Mr Ogborne contended that, had Mr Yu informed Mr Chai of the colour difference and Mr Chai wanted the side panel painted in the same colour, Mr Yu would have charged him more. 2. In our opinion, Mr Ogborne has taken the Tribunal's findings out of context. 3. In his statement, Mr Chai said he had decided to let Mr Yu, of Oasis Aussie, do the repair work on his car as Mr Yu "was very confident and also because he promised top quality spray painting". He said he told Mr Yu that he wanted to sell his car after the repair work was done, which he said showed that he had "high expectations of a high quality work by [Mr Yu]". That is, he had agreed to Oasis Aussies undertaking the repair work as they could do "high quality" work – he did not want a patch up job. 4. While Mr Yu and Mr Thaja asserted that Mr Chai's car was painted in different shades of white at the time of manufacture, the Tribunal noted there was no independent evidence to that effect nor had this been raised by Mr Yu when Mr Chai left his car with Oasis Aussie for repair. We reiterate, it was agreed that the same colour paint could differ slightly depending on the material it was applied to. But the Tribunal, in accepting the evidence of Mr Mansueto, found that the work undertaken by Oasis Aussies was not carried out with due care and skill because, amongst other defects, the colour Oasis Aussies had re-sprayed the front bumper bar was significantly different in colour to what it had been painted originally. The Tribunal had also accepted the evidence of Mr Mansueto in providing smash services with due skill and care, Oasis Aussies needed to ensure that "very minimal or no evidence of repairs having been undertaken", which it failed to do. 5. It was in this context that the Tribunal made the abovementioned findings and not in the context of a failure to warn. That is in the context of Mr Yu having agreed to undertake, on behalf of Oasis Aussies, repair work to Mr Chai's car with due care and skill so as to ensure there would be minimal or no evidence of repairs having been undertaken and he would do so for the cost of $1,500. 6. Hence, we find this ground of appeal not to have been established. Ground 6 1. It was contended that the Tribunal erred in law in: "… [failing] to apply the proper measure of damages so as to award a sum which compensated [Mr Chai] for any loss or damage, but, instead, awarded an amount to completely replace the front bumper bar (the new one) in circumstances where the work done by the appellant did not cause any structural damage to the bumper bar and the only defect needing to be repaired was some minor roughness in the paint job (caused by dust settling on the paint)." 1. This ground raises a mixed question of question of law and fact. 2. As we have noted above, where there is a breach of the consumer guarantee in s 60 of the Australian Consumer Law, the consumer's remedy includes compensation for loss and damage the consumer suffered as a result of the breach. That loss and damage must be a foreseeable loss arising from the breach (i.e. not too remote Hadley v Baxendale (1854) 156 ER 145). 3. In this case, Mr Mansueto's evidence was that to ensure that there would be very minimal or no evidence of repairs having been undertaken to Mr Chai's car the following repair work needed to be undertaken to fix the damage caused by Oasis Aussies as a result of having failed to do the repair work with due skill and care: "In order to rectify this vehicle and to ensure that there will be very minimal or no evidence of repairs, the following work will be required – 1\ The front bumper will require replacement (as the initial repair was unsuccessful) and repainting as the new bumper does not come colour-coded to the car. 2/ The complete left side of the vehicle will need to be painted as well as the front bumper and right front guard and this is required in order to ensure that there is an even colour and texture to the vehicle after the paintwork has been carried out. 3/ Removal of all necessary items such as headlamps, guard flares, wheel arch liners, door moulds, tail lamps and numerous other necessary fittings will be required in order to carry out paintwork into all of the adjoining panels. The work required to rectify this vehicle is fully itemised in the attached 3 assessed quotes." 1. Each quote attached to Mr Mansueto's report was itemised and each item was costed. Quotes (inclusive of GST) were obtained from the following smash repairers: 1. Marrickville Prestige Smash Repairs Pty Ltd $3,755.00 2. GIA Smash Repairers $3,561.53 3. Muirs Automotive $3,012.71 1. The abovementioned quotes did not include any amount for the alleged damaged headlight. 2. As we have noted, an issue before the Tribunal below was whether Mr Yu had dented the front bumper bar and damaged the headlight. The Tribunal, as we have noted, found that Mr Yu did not damage the headlight or dent the front bumper bar. 3. Yet the Tribunal accepted Mr Mansueto's statement as to the quantum of damage. That is, the Tribunal accepted Mr Mansueto's opinion that the three quotes obtained by Mr Chai to undertake the repairs was a reasonable assessment of his loss and made an award of damages accordingly. In his report, Mr Mansueto said the repair costs (excluding the cost of replacing the headlight) was between "$3,067.24 to $3,314.25". The Tribunal accepted this evidence and as we have noted, made an award of damages based on the median between these amounts (i.e. $3,190.74). 4. The total repair costs identified in the report of Mr Mansueto differ to those contained in the quotes mentioned above. Mr Mansueto, nor the Tribunal explain why they differ. However, as neither party has raised an in regard to the differences, we have not considered this issue any further and accept the finding of the Tribunal as to the median amount between the quoted amounts. 5. As we have noted above, in his statement, Mr Mansueto, expressed the opinion that the front bumper bar needed replacement. However, in the light of the findings of the Tribunal that Mr Yu had not dented the front bumper bar, this was not a loss arising from, or caused by Oasis Aussies. Hence, Mr Chai was not entitled to be compensated for the cost of repairing this damage. The Tribunal had also found that this dent was not present at the time Mr Chai took his car to Oasis Aussies for repair and that it had occurred subsequent to him collecting it. In the absence of any evidence as to why the front bumper bar required replacing due to the unsatisfactory spray painting work undertaken by Oasis Aussies, this was an item the Tribunal found Oasis Aussies was not liable for. Hence, this was an item for which Mr Chai was not entitled to be compensated for. 6. However, each quote relied on by Mr Chai included an item(s) for the replacement of the front bumper bar and this item(s) were included in the Tribunal's award of damages. For example, as pointed out by Mr Ogborne at the hearing of the appeal, the last three items on the quote obtained by Mr Chai from Marrickville Prestige Smash Repairs Pty Ltd included the following items in its quote to undertake repairs to the front bumper bar as identified by Mr Mansueto in his report: "FRONT BAR New …. 544.14 FRONT BAR CENTRELOWER GARNISH New …. 537.82 FRONT BAR GRILL New 87.42" 1. Mr Chai did not dispute these amounts, which amount to $1,169.38. This, in our opinion, is not an insubstantial amount. 2. On the basis of the Tribunal's findings, we accept Mr Ogborne's contention that these items should not have been included in the award of damages. That is, we accept the Tribunal erred in its assessment of damages in failing to have regard to its finding that the right bumper bar on Mr Chai's car had a dent to it when he took it to Oasis Aussies, or that Mr Yu was responsible for having dented it. 3. Accordingly, we find this ground to have been established. Application for leave to Appeal 1. Oasis Aussie contends that the decision of the Tribunal was not fair and equitable and that it was against the weight of the evidence. 2. In Collins v Urban [2014] NSWCATAP 17, at [68], the Appeal Panel noted that cl 12 did not require the Appeal Panel to find that the appellant in fact "suffered a substantial miscarriage of justice." It was only required to find that the appellant "may" have suffered such a miscarriage. However, the Appeal Panel went on to say that there must be a sound basis for granting leave to appeal, namely a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant" had the relevant circumstances in cl 12(1)(a) or (b) not occurred or if the fresh evidence in para (c) had been available: see at [76]. 3. In regard to the contention that the decision of the Tribunal was not fair and equitable, Oasis Aussies relied on the same grounds set out in Ground 1 to Ground 4 above. In summary it was argued that the decision of the Tribunal was not fair and equitable in that Oasis Aussies had not contracted with Mr Chai to repaint the whole of his car to ensure there would be no colour difference. Instead it was contended that Oasis Aussies had contracted with Mr Chai to carry out the specific work, identified by Mr Yu in his statement, with due care and skill and it was not fair and equitable "to require [Oasis Aussies] to effectively pay for the cost of the whole car being repainted when any minor colour differences were not as a result of any want of due care or skill". 4. As we have already noted, the Tribunal Member made contrary findings on the material before her. For the reasons stated above, in our opinion, these findings were open to her on the evidence. 5. However, for the reasons stated above in relation to Ground 6 above, we do find the Tribunal's assessment of damages was not fair and equitable in that the Tribunal failed to take into account its findings concerning the dent and replacement of the front bumper bar. The amount attributed to the cost of replacing the bumper bar was estimated to be about $1,169.38, which Mr Chai does not dispute. This amount is not trivial, as we have already noted. 6. In regard to the contention that the Tribunal's decision was against the evidence, it was submitted that had the Tribunal properly applied the unanimous evidence of the experts that it was practically impossible to match the new paint with the existing paint without there being a notable colour difference it would have found that Oasis Aussies had undertaken the repair work with due skill and car. The difficulty with this submission, as we have noted under the heading "Ground 1", the Tribunal accepted the evidence of Mr Chai's expert, Mr Mansueto, that the colour of the front bumper bar differed to that of the car. That is, the colour difference of the bumper bar was not attributable to there being a slight difference in colour between different materials. 7. In regard to the assessment of damages, for the reasons set out above, we also find that the Tribunal's award of $3,190.74 compensation to Mr Chai is excessive given the evidence and the Tribunal's findings as to liability of Oasis Aussies. 8. Accordingly, we find that Oasis Aussies might have suffered a substantial miscarriage of justice in the Tribunal's assessment of damages. Conclusions and orders 1. For the reasons set out above, we have found that the appellant, Oasis Aussies, has erred in its assessment of damages, in that it failed to have regard to its finding that at the time Mr Chai took his car to Oasis Aussies it did not have a dent in the front bumper bar, or that Mr Yu had dented it or that he had damaged the head light. 2. In our opinion, this is primarily an error of fact. Nevertheless, it is a significant error and for the reasons we have given, we are satisfied that the decision of the Tribunal was not fair and equitable and that it was against the weight of the evidence and that Oasis Aussies might have suffered a substantial miscarriage of justice. 3. Hence, it is appropriate to grant the application of Oasis Aussies for leave to appeal and to allow the appeal on a limited basis as to the assessment of damages. 4. In our opinion, it is unnecessary to set aside the decision of the Tribunal and remit it for reconsideration on the issue of damages as we have ample material before us to make appropriate orders to give effect to our decision on appeal without the need for any further hearings. 5. Hence, in our opinion, it is appropriate to allow the appeal in part and to vary the order made by the Tribunal below by deducting the amount of $1,169.38 from the order that was made. As Oasis Aussies has paid Mr Chai the amount judgment amount (i.e. $3,190.37), it is also appropriate to make an order that Mr Chai repay Oasis Aussies a sum of $1,169.38. That amount should be paid immediately. Orders 1. For the reasons set out in these reasons for decision, we order: 1. Grant leave to appeal. 2. Appeal allowed in part. 3. Order 1 of the Tribunal is varied by setting aside the order for the sum of $3,190.74 and substituting it with the sum of $2,021.36. 4. Mr Chai to repay Oasis Aussies Pty Ltd t/as Combined Smash & Mechanical Repair Services with the sum of $1,169.38 immediately. ********** 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: 16 March 2018