Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Vizcarra v Delorian Motors Pty Ltd t/as Woollahra Auto Repairs [2020] NSWCATAP 31 Hearing dates: 3 February 2020 Date of orders: 03 March 2020 Decision date: 03 March 2020 Jurisdiction: Appeal Panel Before: S Westgarth, Deputy President P H Molony, Senior Member Decision: Appeal dismissed Catchwords: APPEAL – consumer claim – Australian Consumer Law – failure to provide repair services with due care and skill – failure to establish a causal connection between repairs and damaged vehicle Legislation Cited: Civil & Administrative Tribunal Act 2013 (NSW) Cases Cited: TLK Transport Pty Ltd v Thornthwaite Pty Ltd t/as Yass Valley Mobile Mechanic [2014] NSWCATCD 147 Texts Cited: None cited Category: Principal judgment Parties: Celinda Flores Vizcarra (Appellant) Delorian Motors Pty Ltd t/as Woollahra Auto Repairs (Respondent) Representation: Solicitors: Inner City Legal Centre (Appellant) S Nalbandian (Director) (Respondent) File Number(s): AP 19/51729 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer & Commercial Division Citation: N/A Date of Decision: 22 October 2019 Before: G Bassett, General Member File Number(s): MV 19/04683 REASONS FOR DECISION Background 1. This is an appeal from a decision made in the Consumer & Commercial Division of the Tribunal on 22 October 2019 (which we will refer to as the Decision). The Decision involved an application by the Appellant for compensation from the Respondent (a motor vehicle repairer). The application was dismissed because the Tribunal was "not satisfied (at the civil standard of proof) that the grounds required to make the orders sought have been established". The Decision 1. To assist in the understanding of this appeal, we summarise the Decision as follows: 1. The Appellant lodged an application in the Tribunal seeking an order that she be paid $8,313. That sum was made up by way of a refund for two invoices she paid for repairs on two separate occasions and also the sum of between $6,500 and $7,000 for a new engine. The Appellant claimed that the Respondent had breached consumer guarantees concerning the supply of repair services and in particular that such services had not been performed with due care and skill. The Appellant submitted that the two failed repairs led to the engine blowing a head gasket necessitating engine replacement. 2. The Appellant's vehicle was approximately 13 years old and had been driven more than 150,000 km. The Appellant had purchased the vehicle in early 2017 but was not aware of its history prior to its purchase. 3. The Appellant took the vehicle to the Respondent on 3 September 2018 for the purposes of having the heater repaired and conducting a full service on the vehicle. Work was conducted, an invoice for $415 was prepared and paid, and the vehicle was collected on 5 September 2018. 4. A few weeks later the red oil light on the vehicle came on and subsequently the Appellant took the vehicle back to the Respondent. That occurred on 11 October 2018. Work was conducted on the vehicle, an invoice for $898 was prepared and paid, and the vehicle was collected on 19 October 2018. 5. The Appellant's evidence was that further issues concerning the vehicle arose in the weeks and months that followed. The Appellant took the vehicle to the NRMA and they issued a report dated 8 November 2018. The report stated that the vehicle had blown a head gasket, had lost compression and that the coolant reservoir was empty. A report from the NRMA dated 25 January 2019 recommended that the engine be replaced. 6. The vehicle was an old vehicle and had done a "considerable amount of kilometres at the time of the first repair". The vehicle had not been serviced properly since purchase in early 2017. The vehicle had been driven 900 km between the first and second repair and the Appellant had utilised it "significantly" after the second repair despite the claims as to a red light warning. The Tribunal also found that the Respondent was not engaged on the second occasion to refurbish the engine. The Respondent was engaged to remove sludge. The Tribunal also found that the Appellant had refused to comply with the Tribunal's direction to allow the Respondent to prepare a report after towing the vehicle to its premises and that refusal allowed the Tribunal to draw an inference that such a report may not favour her case. The conclusion of the Tribunal was that there was no compelling evidence that allows the Tribunal "on the balance of probabilities to draw a causal connection between the engine failure and the repairs". More probably than not it was due to other factors such as the age of the vehicle, lack of maintenance and being driven with a red light warning for over 900 km. Notice of Appeal 1. The Appellant lodged a Notice of Appeal on 18 November 2018 and the grounds of appeal may be summarised as follows: 1. Ground 1: the Tribunal was in error in finding that the vehicle had been driven 900 km. There was contradictory evidence from the NRMA which suggested that the vehicle had not been driven any significant distance. 2. Ground 2: the Tribunal erred in not granting a refund for the cost of the first repair. No weight was given to the Appellant's evidence which consisted of an NRMA report and a report from 4mance Automotive: both suggested that the heater was not repaired. 3. Ground 3: the Tribunal erred in not given weight to the Appellant's evidence, namely the report from 4mance Automotive. The Respondent had charged for work in relation to the engine sump. The 4mance report stated that the sump had not been removed and refitted and appeared to be in its original condition. The Appellant was also charged for the removal of the exhaust, but the 4mance report confirmed that exhaust bolts were in their original condition and had not been removed. 4. Ground 4: the Tribunal erred in giving weight to the Respondent's oral evidence in relation to the repairs. The Respondent had not taken up an opportunity to get his own independent report, and the Tribunal erred in not giving consideration to that fact. 5. Ground 5: the Tribunal erred in misapplying and not considering ss 60 and 61 of the Australian Consumer Law. Due care and skill is relevant and the Appellant relied upon a decision of the Tribunal in TLK Transport Pty Ltd v Thornthwaite Pty Ltd t/as Yass Valley Mobile Mechanic [2014] NSWCATCD 147. The Respondent had an opportunity to "go over the vehicle from top to bottom twice" and the TLK case is authority for the view that if it would have been prudent for the mechanic to check those parts of the vehicle in close proximity to the parts which were being worked upon. If the mechanic failed to do so, then there is a breach of the obligation to undertake services with due care and skill. Here, the Respondent was working in close proximity to the engine which had failed and it would have been prudent to check other parts of the engine. 6. Ground 6: the Tribunal erred in drawing an adverse inference that the Appellant had refused to comply with the Tribunal's direction to allow the Respondent to prepare a report after towing the vehicle to its premises. The error here is that the Respondent agreed to conduct the inspection at the Appellant's home and then later did not conform with that agreement. Amended Notice of Appeal 1. With the leave of the Tribunal, the Appellant filed an Amended Notice of Appeal on 3 December 2019. It is in large measure overlapping with the earlier Notice of Appeal but a summary of the grounds in the Amended Notice of Appeal is set out below: 1. Ground 1: the Member erred in making a finding of fact that the vehicle had been driven from 900 km despite the presence of a red light warning. This finding of fact was contradicted by the report from the NRMA dated 8th November 2018 and the report from 4mance Automotive. 2. Ground 2: the Tribunal erred in law by not giving sufficient weight to the Appellant's independent expert evidence that due care and skill was not exercised. In particular, the Tribunal gave no weight to the report from 4mance Automotive or the report from the NRMA dated 8 November 2018. 3. Ground 3: the Tribunal erred in giving weight to the Respondent's oral evidence in circumstances where the Respondent had rejected the opportunity to get his own independent report. 4. Ground 4: the Tribunal erred in law in misapplying and not considering s 60 of the Australian Consumer Law concerning the repairer's obligation to provide services with due care and skill. The Appellant relied upon the TLK case referred to above. In addition, the Tribunal erred in law in misapplying and not considering s 61 of the Australian Consumer Law. The repairs were inadequate. 5. Ground 5: the Tribunal erred in determining that the Respondent was engaged to remove sludge on the occasion of the second repair. The Tribunal's finding that the Respondent was not engaged to refurbish the engine was in error in that the agreement between the Appellant and the Respondent was to have the car returned in working order. 6. Ground 6: the Tribunal erred in drawing an adverse inference because the Appellant had allegedly refused to comply with the direction to allow the Respondent to prepare a report after towing the vehicle to its premises. 7. Ground 7: the above grounds were also reformulated as grounds requiring leave on the basis that the decision was not fair and equitable and was against the weight of evidence. Reply 1. The Respondent filed a Reply. It is brief and, omitting the hyperbole, states that the current mechanical issues with the vehicle have no relation with the services the Respondent performed. The Appeal Hearing 1. At the hearing of the appeal, Mr Nott for the Appellant sought leave to tender fresh evidence. The fresh evidence proposed was oral evidence of the author of the 4mance report, two statutory declarations of the Appellant and a report from Midas Service Centre dated 14 November 2019 (a month after the Decision was published). 2. We ruled that the fresh evidence should not be allowed. There was no explanation from the Appellant which would enable us to conclude that the proposed fresh evidence was not reasonably available prior to the hearing. To allow that evidence to be included would potentially work an injustice to the Respondent and possibly necessitate the need to adjourn the appeal. Having regard to the Tribunal's obligation to facilitate the just, quick and cheap resolution of the real issues in proceedings (see s 36 of the Civil & Administrative Tribunal Act 2013 (NSW) – the NCAT Act), we disallowed the tender of this fresh evidence. 3. The thrust of Mr Nott's submissions was that the Respondent had failed to act with due care and skill in breach of the obligations in the Australian Consumer Law. He relied upon the TLK case for the proposition that components of the engine of the vehicle in close proximity to the areas of the vehicle on which the Respondent was working should also have been inspected. He relied, in particular, on paragraph 115 of the TLK case where the Tribunal states that the question in that case was whether a qualified repairer with the Respondent's knowledge and skill would have inspected (and if necessary repaired or replaced) the camshaft and bearings either as a matter of routine or in the course of undertaking the particular repairs for which was retained. In paragraph 116 the Tribunal stated that the scope of work for which the Respondent was engaged is influential in determining whether the repairs were carried out with due care and skill. In that case the Tribunal held at paragraph 122 that given the proximity of the camshaft, follower and bearings to the turbo and the other damaged parts, it would have been prudent to check that they were undamaged or in need of service or adjustments. 4. Mr Nott submitted that on 2 October 2018, the NRMA inspected the vehicle and wrote on a report that there was a suspect head gasket. He submitted that it follows that the Respondent should have looked at the head gasket. 5. Mr Nott also submitted that the contradictory evidence concerning the number of kilometres driven of the vehicle from the date of first repair (September 2018) made it unreasonable for the Tribunal to determine that the vehicle had been driven 900 km between the first and second repair. Respondent's Submissions 1. Mr Nalbandian disputed the relevance of the TLK case to the work that he was asked to undertake. He submitted that he was asked to undertake repair work which involved parts of the engine not in close proximity to the area where the head gasket is. He submitted that the oil light had come on because of the presence of more sludge in the sump and he undertook work which removed the sludge. He also submitted that he had not found water in the oil and had given evidence to that effect (see para [47] on page 2 of the transcript provided). He said that had he found that water was in the oil he would have recognised it as a head gasket problem and would have recommended further work be undertaken. 2. In reply, Mr Nott submitted that the mix of water in oil is the pivotal issue and that the Respondent should have addressed it at the time of the second repair. Decision 1. Appeals from decisions made in the Consumer & Commercial Division of the Tribunal are regulated by s 80 of the NCAT Act and clause 12 schedule 4 of the Act. Essentially that means that there is an appeal as of right on any question of law and with leave if clause 12 is engaged. 2. In this case the Appellant's grounds constitute a mixture of questions of law as well as leave grounds. It is our view that the appeal should be dismissed and that it is not necessary for us to distinguish between the grounds that arise as of right and those which require leave. 3. The thrust of the Appellant's case was that the Respondent should have taken more steps than it in fact did on the second occasion when the vehicle was delivered to the Respondent for repair work i.e. October 2018. In particular, the Appellant's case is that had the Respondent performed its work with due care and skill it would have considered evidence suggesting that there were problems with the head gasket and should have taken steps to verify the presence or non-presence of a faulty head gasket. 4. At the appeal hearing we put to Mr Nott that had those additional steps been undertaken and head gasket problems identified the Appellant would have been faced with a decision as to whether to spend money remedying the problem and potentially purchasing a new or reconditioned engine. In particular, we put to Mr Nott that on the Appellant's submissions, it was very likely that the Appellant would be faced with the prospect paying for a new or reconditioned engine whether or not the Respondent had provided its service with due care and skill. In short, there seemed to be no basis for asserting that the Respondent should compensate the Appellant for the cost of a new or reconditioned engine. In our view, Mr Nott had no adequate response to those statements, nor do we think that the Appellant's case has demonstrated any error in the Member's conclusion that the Respondent did not fail in any respect in the provision of services in September 2018. 5. That left open the question of whether the Respondent performed services for which it was engaged in October 2018. We will deal with that aspect and more generally in the following paragraphs by reference to the various grounds of appeal: 1. Ground 1: this ground concerns whether the Member had a basis for finding that the vehicle had driven 900 km between the first and second repairs. In our view, there was evidence which supported that finding. The evidence was the record of kilometres driven on the Respondent's two invoices. On the first invoice the Respondent recorded the vehicle as having been driven 151,185 km and on the second invoice the Respondent recorded that the odometer showed 152,115 km. It is true that there was contradictory evidence in the form of an invoice dated 8 November 2018 from the NRMA which showed that the odometer read 151,287 km and an invoice from 4mance in early 2019 showing the odometer as reading 151,303 km. In any event, the finding that the vehicle had been driven over 900 km between the first and second repairs was a finding relevant to the Tribunal concluding that the work described in the first invoice had been undertaken with due care and skill because after the first work the vehicle had been driven 900 km . As there was no evidence that that work and not been adequately performed the Tribunal had a basis for its conclusion that the invoice was reasonable. In particular the Member did not find that the work on the cooling system service and the service at 151,000 km had not been performed. 2. Ground 2: this ground is to the effect that the Tribunal erred in not giving weight to the Appellant's expert evidence. In our view the Appellant seeks to make more of the 4mance invoice than is justified. For example, 4mance states that the sump seal appears to be the original. The Appellant seeks to argue that that demonstrates that the sump seal was never removed. That conclusion does not appear to follow from the 4mance notation. Similarly, the Appellant seeks to argue that the 4mance notation that the exhaust bolts are rusty and appear to be original and not removed is necessarily inconsistent with the Respondent's invoice which states that the exhaust system was removed and the engine sump was removed. Again, in our view, the 4mance invoice does not indicate that the Respondent failed to act with due care and skill. What the Appellant appears to be lacking is an expert's report linking the state of the vehicle after the Respondent's second repair to inadequate work undertaken by the Respondent at the time of the second repair. Such a report does not exist. In our view, the conclusion of the Member that there was no compelling evidence that allows the Tribunal to draw a causal connection between engine failure and the repairs was justifiable. 3. Ground 3: this ground concerns an assertion that the Tribunal erred in giving weight to the Respondent's oral evidence in circumstances where the Respondent had rejected the opportunity to get his own independent report. This ground is linked to the ground concerning the adverse inference the Tribunal drew about the Appellant's failure to comply with the Tribunal's direction to allow the Respondent to prepare a report after towing the vehicle to its premises. At first instance, the proceedings were heard on 7 May and 19 July 2019. On 7 May, the Tribunal made a direction for the Respondent to arrange for the vehicle to be towed from and returned to the Appellant's premises for the purposes of doing a report. The transcript reveals that there was also discussion about the possibility of the parties agreeing that the inspection could be conducted at the Appellant's home. In the material which the Appellant produced in support of this appeal there are text messages concerning the arrangements to be made for the vehicle to be inspected. On 28 May a representative of the Respondent texted either the Appellant or her daughter to arrange a day for the vehicle to be towed to another repairer to get a report. On the same day the daughter responded by saying that her mother would not allow the vehicle to be towed away. The text said that the inspection must be "roadside". There was then an exchange of texts which resulted in an agreement for the vehicle to be inspected at the Appellant's home. There was evidence that a mechanic arrived to conduct an inspection but then went away. There was some controversy as to whether the Appellant had refused to allow the inspection to proceed. It is not necessary for us to make any specific findings of fact as to who was at fault for the failure of the inspection to take place. However, the Appellant' or her daughter were in error in stating that they would not allow the vehicle to be towed away. That was the direction of the Tribunal. In our view, the Tribunal had a basis for its conclusion that the Appellant had refused to comply with the Tribunal's direction and that, therefore, it was open to the Tribunal to draw an inference that a report obtained by the Respondent might not favour the Appellant's case. 4. Ground 4: It is not necessary for us to consider the broad principle articulated in the TLK case to the effect that where a repairer is tasked with repairing a particular part of a vehicle and the evidence of an expert is to the effect that it would have been prudent to check another part in close proximity then a failure to check the other part might constitute a failure to undertake repairs with due care and skill. In this case, there was no evidence to contradict the Respondent's assertions that it was working on a different part of the vehicle and that the principle in the TLK case could not apply to the work for which the Respondent was engaged. The Appellant has sought to draw from the TLK case that the Respondent had an obligation to "go over the vehicle from top to bottom". We do not read the TLK case as authority for that view. 5. Ground 5: this concerns the assertion that on the second occasion the Respondent was engaged to have the vehicle returned in working order. There is no evidence in support of that assertion. Rather, the evidence suggests that the Respondent was engaged to perform the tasks identified in the Respondent's second invoice. Had the Respondent been engaged to return the car in working order, it is likely that the Appellant would have received an invoice for a sum of money greatly in excess of that which the Respondent rendered. 6. Ground 6: this ground concerns the adverse inference drawn by the Member and we have ready dealt with this under ground 3. 1. Our conclusion is that each of the grounds are rejected. For the same reasons we are of the opinion that the Decision could not be described as not fair and equitable or a decision against the weight of evidence. 2. Fundamentally, the Appellant's case failed because the Tribunal, correctly in our view, concluded that there was no compelling evidence, on the balance of probabilities, to "draw a causal connection" between the engine failure and the repairs. Order 1. Appeal 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: 03 March 2020