Eid v Powertune Australia Pty Ltd

1. For the reasons we have already indicated, it is unnecessary for us to deal with Ground 5 because the appellant has not established any appealable error in respect of the Tribunal's critical conclusion that the appellant had failed to prove its case, regardless of any question about subsequent work by another person.
2. Nevertheless, since much time was spent upon this issue of subsequent work in the appellant's submissions, we make the following brief remarks about this ground of appeal even though they are not material to the outcome of the appeal.
3. First, the appellant provided no answers to the evidence from Mr Marston about the indications (blue sealant, gasket residue on the cylinder block) that a different head gasket had been used in the engine subsequent to the head gasket installed by the respondent.
4. Secondly, the strongly put assertions by the appellant that the cylinder head at the time of failure was the same cylinder head installed by the respondent and that Mr Marston was mistaken about this, were not well supported. The photograph relied upon by Mr Marston of the cylinder head without letters and numbers, provided to him by the appellant, was a satisfactorily clear photograph and it showed no such letters and numbers. Added to this, was the fact that Mr Marston had physically examined the cylinder head found in the cardboard box and said to have been the one dismantled from the engine. The appellant provided on appeal as new evidence a photograph of a cylinder head with the letters and numbers on it. However, this was no more than an isolated photograph unaccompanied by any objective or independent evidence (for example, from Joseph) that this was the cylinder head at the time of the engine failure. The appellant's position about this matter was also weakened by the fact that no such evidence to rebut that given by Mr Marston was presented in the primary proceedings.

Consideration-Ground 6 (against the weight of evidence)

1. Ground 6 cannot be sustained because we were not supplied with the totality of the evidence before the Tribunal (the need for such evidence in support of such a contention should have been apparent from the directions made for the conduct of the appeal on 22 November 2024).
2. Again, we emphasise that to succeed on the appeal the appellant needed to overcome the Tribunal's conclusion that it had failed to prove its case, regardless of the question about subsequent work on the engine after the rebuild by the respondent. Bearing in mind the content of the expert evidence given by Joseph and Mr Marston, to which we have already referred, the weight of such evidence was in favour of the respondent.
3. We reject Ground 6.

1. As appears from the Notice of Appeal (and from our consideration of Ground 4), the new evidence was a photo of the cylinder head showing the letters and numbers that appear on the cylinder head installed by the respondent.
2. However, such evidence is insignificant for two reasons. First, it does not address the Tribunal's conclusion that the appellant had failed to prove its case-it is only concerned with the separate matter concerning the subsequent work after the respondent's rebuild. Secondly, as already mentioned, it is an isolated photo with no objective or independent evidence supporting the appellant's position about the cylinder head. No explanation was provided as to why, more pertinently, evidence about the letters and numbers on the cylinder head was not obtained from Joseph who had dismantled the head.
3. Finally, there is no satisfactory explanation as to why such evidence was not presented to the Tribunal at the time of the hearing. The explanation given in the Notice of Appeal was that the head was being tested at "the machinist" (not identified) and the appellant was unable to gain access or pick up the head prior to submitting his documents within the deadline. The Marston report was dated 10 October 2024, which was nearly 3 weeks before the hearing. There is no explanation why the appellant could not have obtained access to the cylinder head during such period even if it could not have met the deadline for evidence.
4. There was also an additional two pages of new evidence supplied with the appellant's submissions lodged on 4 March 2025. The first page contained a copy of a message sent on 5 September 2022 accepting the respondent's quote for the rebuild work. Plainly, this was reasonably available at the time of the hearing. In any event, it was uncontroversial in the primary proceedings that the quote had been accepted giving rise to a contract for the rebuild work. The second additional page was an undated photograph of parts of the dashboard of the car. On its own, this photograph is incapable of having any evidentiary value.
5. Accordingly, we do not grant leave to present new evidence on the appeal and Ground 7 is rejected.
6. Ground of appeal that the decision was not fair and equitable
7. Our reasons with respect to Grounds 1 to 7 of the appeal cover the contention that the decision was not fair and equitable.

1. For the above reasons we make the following orders:

(1) The application for leave to appeal is refused.

(2) 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.