France v Man Up Group Pty Ltd trading as Pitstop Auto and Marine [2020] NSWCATAP 50

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: France v Man Up Group Pty Ltd trading as Pitstop Auto and Marine [2020] NSWCATAP 50 Hearing dates: 10 December 2019 Date of orders: 17 March 2020 Decision date: 17 March 2020 Jurisdiction: Appeal Panel Before: K Ransome, Senior Member P H Molony, Senior Member Decision: (1) Appeal allowed. (2) Orders 1 and 3 made by the Tribunal 22 August 2019 are affirmed. (3) Orders 2 made by the Tribunal 22 August 2019 is set aside and, in its place, the following order is made: The respondent shall pay the appellant sum of $7,095.42 being damages for breach of a consumer guarantee under s 267(4) of the Australian Consumer Law forthwith. (4) Order 4 made by the Tribunal 22 August 2019 is set aside and, in its place, the following order is made: On 8 April 2020 at 12 noon the respondent, at its expense, is to make the appellant's boat, disassembled motor and all parts supplied by him for use with the motor available for collection by the appellant from the respondent's premises in Bombaderry, or as otherwise agreed in writing by the parties. The parts and the boat, but not the bottom end of the motor, are to be in the good order and undamaged. If they are not, then the appellant has leave to renew before the Consumer and Commercial Division under cl 8 of Sch 4 of the Civil and Administrative Tribunal Act 2013. Catchwords: Appeal – Consumer Law – Australian Consumer Law - breach of consumer guarantee under s 60 that services will be rendered with due care and skill – measure of damages under s 267(4) – repairs to vintage inboard boat motor not done with due care and skill – measure of damages - reasonably foreseeable loss – reduction in value of motor or costs of repair, reassembly and refitting of inboard motor Legislation Cited: Australian Consumer Law Civil and Administrative Tribunal Act 2013 Fair Trading Act 1987 Cases Cited: Allianz Australia Insurance Ltd v Cervantes (2012) 61 MVR 443, [2012] NSWCA 244 Anthoness v Bland Shire Council (1960) 60 SR (NSW) 659 Collins v Urban [2014] NSWCATAP 17 Cominos v Di Rico [2016] NSWCATAP 5 Eadie v Harvey [2017] NSWCATAP 201 at [61]-[62]. Gates v City Mutual Life Assurance Society Ltd [1986] HCA 3 Mifsud v Campbell (1991) 21 NSWLR 725 Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Rodger v De Gelder (2015) 71 MVR 514, [2015] NSWCA 211 Texts Cited: Catherine Penhallurick, The principle of 'betterment' in damages for contract and tort, (2002) 22 Aust Bar Rev 109. Category: Principal judgment Parties: Appellant – Darren France Respondent - Man Up Group Pty Ltd trading as Pitstop Auto and Marine Representation: Appellant – Self-represented Respondent – Ms Pickup, agent File Number(s): AP 19/41712 Publication restriction: Not applicable Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: Not applicable Date of Decision: 22 August 2019 Before: A Halstead, General Member File Number(s): 2019/0024352