Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Tate v Apex Autoworks and Tyres Pty Ltd [2019] NSWCATAP 70 Hearing dates: 14 March 2019 Date of orders: 26 March 2019 Decision date: 26 March 2019 Jurisdiction: Appeal Panel Before: The Honourable F Marks, Principal Member D Goldstein, Senior Member Decision: (1) Appeal dismissed. Catchwords: Motor vehicle consumer claim – allegation of failure to exercise due care and skill in carrying out repair and in failing to do so within a reasonable time – held necessary to bring evidence from an expert with respect to these matters – in absence of expert evidence claims failed – appeal dismissed Legislation Cited: Competition and Consumer Act 2010 (Commonwealth) Category: Principal judgment Parties: Melissa Knothe Tate and Ulf Knothe (Appellants) Apex Autoworks and Tyres Pty Ltd (Respondent) Representation: Counsel: LAH McInnis, Solicitor (Appellants) S Stewart (Respondent) Solicitors: Stevens Vuaran Lawyers (appellants) File Number(s): AP 18/52695 Publication restriction: Nil Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 15 November 2018 Before: C Marzilli, General Member File Number(s): MV 18/39055 REASONS FOR DECISION Background 1. The appellants in these appeal proceedings, Melissa Knothe Tate and Ulf Knothe commenced proceedings in this Tribunal against the respondent Apex Autoworks and Tyres Pty Ltd by bringing a motor vehicle consumer claim application. In that application, the appellants sought an order that the respondent pay them $29,566 and a further order in the nature of a declaration that they did not have to pay the sum of $1500 to the respondent. 2. The appellants' application was dismissed by a Member of this Tribunal on 15 November, 2018. These reasons deal with the appellants' appeal from that decision. Factual background 1. The factual background to the appellants' claims is set out in the original application and in material filed with the Tribunal. The appellants took their 2005 Audi motor vehicle which had travelled approximately 190,000 km to the respondent in August 2017 because the engine was misfiring and there was a lack of acceleration. The respondent was said to have kept the vehicle for "diagnostics and repair" for almost four months and they received an account for $10,075. They said that when they picked up the vehicle it was making "new, deeply concerning noises" but they reluctantly paid the amount invoiced because otherwise the vehicle would not have been released to them. In addition, they were told that the noise would remain audible for the next 1000 km. The noise did not go away and the vehicle was returned to the respondent which decided that it would be necessary to replace a number of items which had to be ordered from overseas. The vehicle was brought in for repair again on 21 May 2018 and remained with the respondent for a further 10 weeks. At that stage the respondent said that it had consulted a cylinder expert who could not detect any problem, the source of the problem had not been located and the vehicle could not be repaired. The appellants said that when the vehicle was ultimately returned to them on 11 August 2018 it was not capable of being driven. The quantum of their claim was seemingly based on the monies said to have been thrown away by payment to the respondent, incidental expenses incurred for the rental of other vehicles, and the diminution in value of their vehicle. 2. Information filed by the respondent in those proceedings indicated that advice was initially given to the appellants to replace the motor, but they refused and requested that it be repaired. Over some months a number of items were identified as requiring repair or replacement and this work was attended to but delayed because parts had to be obtained from overseas. The respondent also consulted with mechanics from two other workshops. The respondent said it charged the appellants for 48 hours labour only when it had spent some 80 hours endeavouring to locate and diagnose the problem. In June 2018 the respondent ordered additional parts from overseas at a cost of $3279.66 for which it did not charge the appellants. Additional costs were incurred by the respondent because a loan vehicle which it had made available to the appellants had been damaged and there was an insurance excess payable. 3. The respondent said that as at 3 August 2018 the appellants were advised that it was unable to identify any fault in the work which it had carried out or in the parts which it had supplied. The appellants were advised that if they wished to pursue the matter the engine would need to be dismantled further to try and locate the source of the noise. 4. Significantly, the respondent offered to remove the engine and send it to a repairer of the appellants' choice. If that repairer found that the respondent was at fault it would pay for the cost of repair. Otherwise, the appellants would be required to pay for the repairs. The appellants declined this offer. They did state, however, that they approached Audi Service Centre Sydney on 28 August 2018 seeking an expert diagnosis. They were told that they would have to pay at least $17,000 to repair the vehicle, and no accurate estimate could be given until the engine had been removed. The cost of removal of the engine was estimated to exceed $8000. The appellants declined this assistance, because having regard to the value of the vehicle, it would have been uneconomic to pay those monies. 5. No information was provided by the appellants from anyone with expertise concerning the cause or probable cause of the problems with their vehicle. More importantly, there is no information provided by the appellants from anyone with expertise finding any fault in anything that the respondent did, in the advice given to the appellants by the respondent, and the conduct of the respondent in general. 6. The application came on for hearing before a Member of this Tribunal on 15 November 2018. It was dismissed because, in essence, the Tribunal was not satisfied that the appellants had established any grounds upon which to make the orders sought by them. At the hearing the appellants sought to introduce new evidence which the respondent did not have an opportunity to consider. The Member said that he would admit the evidence on the basis that the proceedings would be adjourned to enable the respondent to consider its position and put on any evidence in reply. The appellants declined to have the proceedings adjourned and did not pursue that material, although they told the Member that it was not new evidence. The basis of the appellants' claims 1. In essence, the appellants' claim against the respondent was based on alleged breaches of sections 60 and 62 of the Australian Consumer Law (Commonwealth) as it applies in New South Wales. These provisions are in the following terms; 60 Guarantee as to due care and skill If a 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. 62 Guarantee as to reasonable time for supply If: (a) a person (the supplier) supplies, in trade or commerce, services to a consumer; and (b) the time within which the services are to be supplied: (i) is not fixed by the contract for the supply of the services; or (ii) is not to be determined in a manner agreed to by the consumer and supplier; there is a guarantee that the services will be supplied within a reasonable time. 1. In the course of the hearing the appellants accused the respondent of lacking due care and failing to exercise appropriate skills in carrying out the repairs to their vehicle. Furthermore, they alleged that the services provided by the respondent had not been provided within a reasonable time, based on what they asserted was an inordinate period during which the respondent had possession of their vehicle and had failed to rectify the problem. 2. We have been provided with a transcript of the ex tempore reasons of the Member which were delivered orally. The Member asserted at the outset that the appellants had failed to present "any probative evidence in support of their case." This was clearly a reference to a lack of any evidence given by any person with expertise in the area of motor mechanics generally, and certainly any person with expertise to the extent that it might ultimately be relevant with respect to Audi engines of around the 2005 vintage. This was especially so because there was no evidence which attributed any aberrant engine noise claimed by the appellants to any repairs carried out by the respondent. 3. In his reasons the Member referred to the fact that the evidence given personally by the appellants that the repairs had not been successfully carried out had not been "corroborated." In submissions before us, Mr McInnis solicitor for the appellants said that the appropriate corroboration was the fact that the vehicle was not driveable. However, this misreads what was being said by the Member, namely that the assertions of the appellants had not been corroborated by evidence from any source possessing appropriate expertise to give that evidence. 4. The Member also found that there was no probative evidence that the periods during which the respondent had possession of the vehicle in order to attempt to effect the repairs was, in all the circumstances, unreasonable. In the absence of any such evidence given by a person with expertise in that area, the Member found that the appellants had not made out their case on this basis also. 5. It was on these bases that the application was dismissed. The grounds of appeal 1. The grounds of appeal filed by the appellants state firstly that they were not afforded procedural fairness because their "reply evidence" was not admitted, secondly that the Member had erred by finding that there was no, or no sufficient evidence to support the appellants' claims and thirdly that the reasons given were inadequate. 2. In his submissions Mr McInnis said that the Member was wrong to have made the appellant elect whether to have the new evidence admitted on the basis of an adjournment or forego the production of the new evidence, as they did. This is because the "new evidence" was in reality evidence in reply. Such transcript of the proceedings as has been made available to us indicates that when attempting to adduce this evidence, Ms Knothe informed the Member that in reality it was not new evidence but was merely a restatement of the existing evidentiary material. It is clear from the manner in which the proceedings progressed that none of this material contained any statement of opinion from an automotive or mechanical engineer or anyone else with requisite expertise in identifying and discussing the state of the appellants' vehicle and its engine and the time taken by the respondent in endeavouring to repair it. In the circumstances, any such evidence would not have affected the outcome of the proceedings in any way or adversely impacted upon the correctness of the Member's decision. In the circumstances this particular matter becomes irrelevant to the determination of these proceedings. 3. In submissions, both oral and written, Mr McInnis said that the Member was entitled to rely and should have relied on the fact that despite many attempts over a long period of time the respondent had failed to render its services with due care and skill. We reject this submission. The mere fact that a project takes a considerable time to complete does not per se indicate that the person undertaking it has failed to exercise due care and skill. Some matters are more complex than others, and some matters are very difficult to complete. There is evidence that the respondent was ultimately prepared to take the engine apart piece by piece to endeavour to find the cause of the problem. The appellants, perhaps wisely, precluded this from happening. We note also that the respondent spent many more hours in endeavouring to locate the problem than were charged for. This is all consistent with the advice originally given by the respondent to the appellants that they should simply have purchased a new replacement engine rather than have attempted to repair a very old one. 4. In the same way Mr McInnis said that the length of time taken was per se indicative of a failure by the respondent to carry out its work within a reasonable time. This argument suffers from the same deficiency as the one advanced concerning lack of due care and skill. There is simply no evidence from anyone with the requisite expertise to say that in all the circumstances it was unreasonable for the respondent to have taken that amount of time to endeavour to repair the appellants' vehicle. 5. Finally, we reject the appellants of the submission that the Member failed to provide adequate reasons. The fate of the proceedings rested on the lack of relevant expert evidence. The Member made this abundantly clear in his reasons. There is no merit in this submission. The disposition of the appeal 1. For the reasons which we have given we reject the submissions made on behalf of the appellants and their grounds of appeal. In all the circumstances the decision of the Member was open to him on the evidence, and was consistent with the evidence. No appellable error has been demonstrated. 2. Arguably the grounds of appeal involve questions of law and it is not necessary that we consider the necessity to grant leave to appeal. In any event having regard to our primary conclusion that the appeal should be dismissed, it is sufficient that we so order. 3. No application was made for any costs order. Order 1. The appeal is dismissed ********** 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: 26 March 2019