This is an internal appeal against a decision of the Consumer and Commercial Division of the Tribunal dismissing the appellant's claim for compensation in respect of repairs to a motor vehicle which the appellant asserted were not carried out by the respondent with due care and skill, contrary to the consumer guarantee set out in s 60 of the Australian Consumer Law (NSW).
[2]
Background
The appellant brought its 2009 Hyundai ILoad van to the respondent for service on 5 August 2020. On 20 September 2020 the van broke down. The appellant alleged that the reason the van broke down was a failure of the timing chain which was an issue which the respondent (through its director Mr Elias Dandan) should have identified and repaired on 5 August 2020.
The evidence adduced by the appellant before the Tribunal included a report from Mobile Complete Auto Care dated 25 November 2020 which stated:
"Attend broken down vehicle at *** Penrith, engine oil pool on ground, discovered smashed timing chain cover from chain contact due to timing chain hydraulic tensioner failure … timing chain hydraulic tensioner and chain guides shattered into many pieces (Camshafts to Diesel pump chain) Valve damaged has occurred due to piston to valve contact resulting in loss of compression. Will require removal of Cylinder head to assess complete engine damage."
"Please note: Customer states that timing chain rattle had been present for a while particularly worse on start-ups. Customer stated that he had adviced (sic) repairers at last service about the noise that may be minimised by adding oil to the diesel fuel tank. Timing chain hydraulic tensioner plastic housing was very brittle that may suggest oil pressure loss due to cracks present."
The respondent's evidence, as outlined by the Tribunal, was that that the engine was making a noise not a rattling sound. The Tribunal recorded at [7] - [8]:
"The respondent dispute[d] that he was told by the applicant that there was a "rattling sound" but it was idling rough as there was no oil in the engine. He said there was barely any oil in the engine and that the motor vehicle had not been serviced in a long time. He placed oil in the injectors and the engine noise subsided. He said, "that the cause of the failed timing chain was the loss of hydraulic pressure and hydraulic failure and this was because the vehicle has been neglected and had a low oil pressure. After the service the respondent told the [appellant] to check the oil." .
The appellant sought payment of $9,000 to rectify the damage.
The Tribunal dismissed the appellant's claim on the bases:
1. That the evidence did not establish that the respondent did not exercise due care and skill in repairing the van; and
2. That the appellant had not put evidence before the Tribunal to establish the cost of repair of the engine.
In respect of the former basis, the Tribunal held:
"17 The claim of the applicant of a "rattling sound" at the time of the service versus the respondent's claim that the engine was "idling rough" is conflicting. Even if I accept the evidence that there was a rattling sound there is not an expert written report that Mr Dandan did not use due care and skill. An expert would need to forsee that not repairing the rattling sound would lead to the failure of the hydraulic tensioner. On the other hand, Mr Dandan disputes the rattle noise and repair the rough idling of the motor. On the evidence of Mr Dandan the rattle sound was not within the scope of work which he was to perform as this wasn't mention to him. There was no evidence after the service that the rattling noise continued. Notwithstanding the inaccuracies of the odometer reading, I accept the evidence of Mr Dandan that the issue was the oil pressure and that the motor vehicle had suffered a loss of oil. It would have been difficult for Mr Dandan to forsee that there was an issue with the hydraulic tensioner if the vehicle was idling roughly, leaking oil, and having low oli pressure. The vehicle was manufactured in May 2009 and was 11 years old, having travelled at the time of failing 251,945 kilometres. It was not a new vehicle and had travelled a large number of kilometres.
18 I cannot be satisfied that when the vehicle went for a service on 5 August 2020 that Mr Dandan was aware that there was a rattling sound and whether he could foresee the failure of the hydraulic tensioner."
In so finding, the Tribunal found not reliable a statement by Mr Sultana, the director of the appellant, as to what he had been told by Mr Huss, the mechanic at Mobile Complete Auto, as Mr Huss had not been called to give evidence and had not included any statement in the report which was before the Tribunal, to the effect of what Mr Sultana asserted that Mr Huss had said to him.
In relation to the latter basis for dismissing the claim, the Tribunal referred to Commonwealth v Amman Aviation (1991) 174 CLR 64 and JLW (Vic) Pty Ltd v Tsiloglou [1994] 1 VR 237 and determined that, in the absence of evidence of the cost of repair of the engine, the Tribunal was not able to assess any measure of compensation.
[3]
Scope and nature of internal appeals
Internal appeals may be made as of right on a question of law, and otherwise with permission (that is, with the "leave") of the Appeal Panel: s 80(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act).
In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69, the Appeal Panel set out at [13] a non-exclusive list of questions of law:
1. Whether there has been a failure to provide proper reasons;
2. Whether the Tribunal identified the wrong issue or asked the wrong question;
3. Whether a wrong principle of law had been applied;
4. Whether there was a failure to afford procedural fairness;
5. Whether the Tribunal failed to take into account relevant (i.e., mandatory) considerations;
6. Whether the Tribunal took into account an irrelevant consideration;
7. Whether there was no evidence to support a finding of fact; and
8. Whether the decision is so unreasonable that no reasonable decision-maker would make it.
The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are constrained by cl 12(1) of Schedule 4 of the NCAT Act. In such cases, the Appeal Panel must first be satisfied that the appellant may have suffered a substantial miscarriage of justice on the basis that:
1. the decision of the Tribunal under appeal was not fair and equitable; or
2. the decision of the Tribunal under appeal was against the weight of evidence; or
3. significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
In Collins v Urban [2014] NSWCATAP 17 the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) of Schedule 4 may have been suffered where:
… there was 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 circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance.
[4]
Grounds of Appeal/Leave to appeal
The appellant sought leave to appeal on each of the bases set out in clause 12(1) of Schedule 4 to the NCAT Act, that is that the decision was not fair and equitable, that the decision was against the weight of evidence and that there was significant new evidence now available that had not reasonably been available at the time of the hearing.
The appellant set out in an attachment to the Notice of Appeal eight "grounds of appeal", each of which clearly, as Mr Sultana who appeared for the appellant acknowledged at the hearing before the Appeal Panel, raise issues of fact and not questions of law.
It is not necessary to repeat the grounds in this decision. The high point of the appellant's "grounds" is ground 7, which is:
"I feel the tribunal disregarded Huss's notes which directly proves my argument on his invoice #MCA-00530. It states that "the timing chain hydraulic tensioner plastic housing was very brittle that may suggest oil pressure loss. Another missed diagnosis from Elias [Dandan]."
"The fact that it is "brittle", shows that the issue surely is not a new/sudden issue that just arose, but one that would most likely have been present during Elias's service. Low pressure in the timing chain tensioner would have caused the timing chain to be loose and hit against the casing making a noise which is evident the photos by the chain markings and smashed chain guides on the interior of the timing case. This has been my argument and this evidence clearly proves it, but I feel it was not even acknowledged."
This may be interpreted as an assertion that the Tribunal failed to take critical evidence into account, which may constitute an error of law.
However, the conclusion which the appellant asserts the Tribunal should have drawn was one which did not obviously arise from the evidence relied upon. The Tribunal was not assisted by evidence from any appropriately qualified person which supported the proposition that the fact that the tensioner housing was brittle itself demonstrated that the respondent should have identified an issue with the timing chain.
In our view, the Tribunal made no error of law in finding that the appellant had failed to establish its case.
[5]
Not fair and equitable or against the weight of evidence
The bases put forward by the appellant for the submission that the decision was not fair and equitable and was against the weight of evidence essentially involved the assertion that the Tribunal should have accepted the assertions made on behalf of the appellant by Mr Sultana and rejected the evidence of Mr Dandan. That is also the case in respect of the grounds of appeal, which, as we have noted above, raised issues of fact rather than questions of law.
The appellant's assertions of error on the part of the Tribunal do not acknowledge that the onus of proving the facts necessary to its case lay upon the appellant. The Tribunal found against the appellant because it was not satisfied that the appellant had put evidence before the Tribunal which was sufficient to prove its case.
The appellant submitted that the Tribunal had disregarded the "proven falsities" in Mr Dandan's evidence. This is a reference to the fact that the evidence before the Tribunal included a text message from Mr Dandan, recording the odometer reading at the time of the service by the respondent as 239,340 km, which other documents showed was not correct.
The Tribunal assessed this issue and rejected Mr Dandan's evidence concerning the odometer reading (which was relevant to the question whether Mr Sultana had exceeded the recommended service interval before the van broke down on 20 September 2020).
However, the Tribunal noted that the rejection of one part of Mr Dandan's evidence did not require that all his evidence be rejected. That conclusion cannot be said to be not fair and equitable or against the weight of evidence.
As the Appeal Panel noted in Bowers v Karai [2021] NSWCATAP 316 at [11] and Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10]:
"An appeal to the Appeal Panel does not simply provide a losing party in the Tribunal with the opportunity to run their case again."
[6]
Significant new evidence that was not reasonably available at the time of the hearing
In the Notice of Appeal, the appellant identified the new evidence upon which it sought to rely as follows:
"1 I have paid Huss from Mobile Complete Auto Care to pull apart the motor and report on exactly what has happened and to quote repairs.
2 Also, a text exchange from myself and Huss for clarification.
3 A second quote for repairs.
4 Huss has agreed to be contacted via phone for clarification …
5 Quote for new motor from Hyundai."
The reasons given by the appellant why this evidence was not available at the time of the hearing was:
"The engine had to be pulled apart extensively, I thought my original evidence was pretty straightforward, enough for the Tribunal to make the correct decision as advised by Huss from MCA, who is in disbelief of the Tribunal's decision."
The requirement in clause 12(1)(c) of Schedule 4 to the NCAT Act is that the new evidence be evidence that "was not reasonably available at the time the proceedings under appeal were being dealt with".
A failure by a party to realise that particular evidence is necessary or might be of assistance in advancing the party's case is not sufficient to satisfy that standard.
As the Appeal Panel held in Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111, at [23]-[25]:
"[23] … the test of whether evidence is reasonably available is not to be considered by reference to any subjective explanation from the party seeking leave but, rather, by applying an objective test and considering whether the evidence in question was unavailable because no person could have reasonably obtained the evidence. …"
[24] … something more than a party's incapacity to procure evidence is necessary to satisfy the requirements of cl 12(1)(c).
[25] Further, to grant leave simply on the basis of whether a party had been unsuccessful in their attempt to obtain evidence would allow any party who has a personal excuse for not providing evidence otherwise reasonably available an opportunity to seek leave to appeal any decision of the Tribunal. Such an outcome would not promote finalisation of the real issues in dispute in a just, quick and cheap manner, as an opposing party would be liable to face a successful appeal and a rehearing merely because of the personal circumstances of the person who failed to procure necessary evidence."
We are not persuaded that the evidence which the appellant now seeks to rely upon was not reasonably available at the time of the hearing. The appellant's own explanation for its absence concedes that it could have been obtained and put before the Tribunal but the appellant did not think it was necessary.
Accordingly the appellant's application for leave to appeal must be refused.
Our orders are:
1. Leave to appeal refused.
[7]
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
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Decision last updated: 19 November 2021