Chun v Tyre Empire Pty Ltd [2019] NSWCATAP 192

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Chun v Tyre Empire Pty Ltd [2019] NSWCATAP 192 Hearing dates: 23 July 2019 Date of orders: 30 July 2019 Decision date: 30 July 2019 Jurisdiction: Appeal Panel Before: M Harrowell, Principal Member J McAteer, Senior Member Decision: 1. Leave to appeal is refused and the appeal is dismissed Catchwords: DAMAGES – claim for costs incurred in pursuing alternative rectification method to that finally adopted – liability of wrongdoer for such costs – failure to mitigate. Legislation Cited: Australian Consumer Law (NSW) Cases Cited: Nil Texts Cited: Nil Category: Principal judgment Parties: Jiang Chun (Appellant) Tyre Empire Pty Ltd (Respondent) Representation: J Chun (Appellant in person) M Sharifi (Head Mechanic) and C Keshishian (Sales Manager) (Respondent) File Number(s): AP 19/19339 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal of New South Wales Jurisdiction: Consumer and Commercial Division Citation: Not applicable Date of Decision: 28 March 2019 Before: J Ringrose, General Member File Number(s): MV 18/51589

reasons for decision

Introduction 1. This appeal relates to a claim for damage to a motor vehicle owned by the appellant which had been serviced by the respondent motor vehicle repairer. 2. The appellant said that in carrying out the service to his vehicle, the respondent had failed to properly check and/or refill the oil in the vehicle in consequence of which the vehicle seized and the engine required repair or replacement. 3. On 28 March 2019, the Tribunal accepted that "the engine failed because oil was not replaced after the vehicle was serviced" and that the respondent was liable for damages. The Tribunal awarded the appellant the sum of $3530 being the cost of supply and replacement with a second-hand engine, towing charges, the callout costs for a mobile mechanic and a refund of the original service costs. That award included $2000 for the cost of a second-hand engine and $1000 for the installation of that engine. An order was made requiring the respondent to pay the appellant the amount of $3530.00 (Decision). 4. However, the Tribunal declined to award the amount of $1815 being a charge incurred by the appellant in having his failed engine removed, stripped and a quotation prepared for its repair. 5. The Tribunal provided written reasons for its decision (Reasons). 6. The appellant appealed the Decision by Notice of Appeal filed 26 April 2019. The appellant sought leave to appeal. The appeal was filed in time.