Georgiades v Indaus Ventures Pty Ltd

(1) The application for compensation due to a breach of the Australian Consumer Laws is dismissed after hearing.

1. For the reasons which follow, we have determined that the appeal should also be dismissed.

1. According to the appellant, the vehicle stopped working on 22 February 2023. The vehicle was towed to Bradbury Automotive on 22 February 2023 and, from there, was towed to Sydney Diesel Centre with a sample of the diesel provided by Bradbury Automotive.
2. On 3 March 2023, Sydney Diesel Centre provided a certificate of analysis for the sample fuel.
3. The appellant had contacted the respondent on 27 February 2023, 24 March 2023 and 4 April 2023. On 4 May 2023, the respondent informed the appellant's representative that their insurance broker was reviewing the matter with the insurer.
4. The appellant lodged a complaint with NSW Fair Trading on 3 January 2024. In correspondence dated 14 February 2024, a NSW Fair Trading representative noted that the respondent had advised that an insurance claim had been rejected in relation to the appellant's complaint. The respondent had advised the NSW Fair Trading representative that fuel was checked daily and in the period between 18 to 20 February 2023, 12,732 litres of Premium Diesel had been sold with no complaints from other consumers. NSW Fair Trading advised that the dispute resolution process was concluded.

Proceedings in the Consumer and Commercial Division

1. The appellant lodged a consumer claim with the Tribunal on 27 March 2024 claiming compensation in the sum of $12,081.00.
2. As noted above, the matter was heard on 13 August 2024 and dismissed with oral reasons on that day.

1. The appellant lodged a Notice of Appeal on 2 September 2024, within the 28 day time period allowed under r 25(4) and (4A) of the Civil and Administrative Rules 2014 (the NCAT Rules).

1. The matter came before the Appeal Panel for call over on 2 October 2024. On that occasion, the parties were informed that, if oral reasons were given and/or what happened at first instance was being relied on by the appellant or the respondent, a typed transcript of the relevant parts of the hearing, together with the sound recording of the entire hearing must be lodged with the appeal registry.
2. On 28 November 2024 the hearing of the appeal was vacated, to be relisted by the registry for the allocation of a new date in order to give the parties, particularly the appellant, the opportunity to obtain a transcript of relevant parts of the hearing , including, in this case, the oral reasons for decision.
3. On 29 January 2025 at another call over, the appellant was given another opportunity to provide a typed transcript of the relevant parts of the hearing, together with the sound recording of the hearing by 20 March 2025.
4. On 1 April 2025, the time in which to provide a transcript and sound recording was extended to 1 April 2025, as the appellant had not requested the sound recording until 26 March 2025.
5. On 29 April 2025 the time to provide the transcript and sound recording was again extended to 8 May 2025.
6. Further documents were provided by the appellant 13 May 2025; however these duplicated documents already provided, apart from a letter from the Tribunal providing a copy of the sound recording of the hearing to the Appellant through a SharePoint link dated 27 March 2025.
7. The matter was heard by the Appeal Panel on 13 May 2025.

1. The Notice of Appeal set out the following grounds of appeal:

(1) the Tribunal overlooked the fact that the diesel removed from the vehicle did not smell right/could be contaminated and a sample was kept for diagnosis

(2) The Tribunal also overlooked the diagnosis result which was obtained from the sample received.

1. The appellant sought orders setting aside the original decision and substituting a new decision in favour of the appellant. According to the materials received on 13 May 2025, the claim on the appeal was $14,163.40, which included a claim of $2000 for inconvenience for two months without a vehicle .
2. The appellant sought leave to appeal on the basis that:

(1) the decision was not fair and equitable;

(2) the decision was against the weight of evidence; and

(3) Significant new evidence is now available that was not reasonably available at the time of the hearing.

1. In light of the appellant's contention that the decision was against the weight of evidence, we have engaged with the evidence provided to the Tribunal as set out below.
2. In the written argument, the appellant claimed to have filled up her Ford Ranger at Metro Petrol Appin with an empty tank. Three days later, the Ford Ranger stopped working and was towed to Bradbury Automotive mechanic. The mechanic at Bradbury recommended sending the Ranger to the Sydney Diesel Centre for further testing, and the vehicle was towed accordingly.
3. The appellant provided documents with the Notice of Appeal which had been provided to the Tribunal. There was uncertainty as to whether the letter from Bradbury Automotive at [25(3)] below or the letter from Sydney Diesel Centre at [25(6)] below were provided to the Tribunal at first instance - this is considered further in the body of this decision.
4. Along with email correspondence between the appellant, the respondent and the respondent's insurer, the documents included:

(1) invoices from Cambelltown District Towing to show that the vehicle had been towed from an address in Campbelltown to Bradbury Mechanics on 22 February 2023 and from Bradbury Automotive to Sydney Diesel Centre on 1 March 2023;

(2) A tax invoice from Bradbury Automotive dated 23 February 2023 which set out the following work:

1 Vehicle towed in customer said running rough blowing smoke then stopped working

1 remove all fuel from tank and filter. Replace fresh diesel recommend diesel specialist possible injector pump problem.

1 Recommend Sydney Diesel Centre ...

1 Ran diagnostic scan found codes ... Pressure regulator exceed control limits pressure low fluid level

1 check fuel smells not right could be contaminated keep sample

(3) A letter from Bradbury Automotive attached to an email dated 23 May 2024 which set out:

Your Ford Ranger; Registration number [...] was towed into our workshop on the 22/02/2023. You notified us that your vehicle was running rough, blowing smoke and vehicle stopped and would not start.

Upon investigation we found that the fuel was contaminated. Drained ¾ of fuel from the fuel tank, flushed fuel lines and replaced fuel filter. With carrying out this work we were still unable to start vehicle. We notified you to advise that the vehicle would need to be taken to Sydney Diesel Centre .... We gave you a fuel sample and advised Sydney Diesel of the issues the vehicle had.

The vehicle was towed out of our workshop and taken directly to Sydney Diesel where they carried out further repairs.

(4) The Sydney Diesel Centre certificate of analysis dated 14 March 2023 for a fuel sample received on 6 March 2023 with the following diagnosis:

DIAGNOSIS:

Results were obtained on the sample as received. Appearance of sample fails due to haziness with both visible particulate contamination and visible free water present. Cleanliness rating (ISO4406) exceeds the Worldwide Fuel Charter Recommendation of 18/16/13. Water content exceeds industry standard specification of 200 ppm max for diesel fuel. All other results applicable to Australian Fuel Quality Standards Act 2019 for Automotive Diesel Fuel are within specified limits. Action: recommend filtering/polishing fuel to remove contaminants.

(5) The Sydney Diesel Centre invoice dated 17 March 2023 which included the following comments:

Comments: the customer booked in for repairs to the fuel system caused by contaminated fuel this had been checked and determined by another mechanic. When the vehicle was towed in the engine was not starting and the tow driver showed us that there was diesel fuel spilled from the vehicle onto the deck of his tilt tray.

The customer advised that the engine had started idling rough and started blowing smoke then cut out. The vehicle was towed to a repairer and they found contaminated fuel - water found in the fuel. The customer wants the fuel system repaired properly so we advised to remove and clean the fuel tank, fit a new in tank pump, flush the fuel lines, replace the fuel filter pump, rail & injectors and associated single use only parts. The customer also requested that we send a fuel sample for analysis and report so this price is also included. ...

(6) A letter from Sydney Diesel Centre dated 27 August 2023 (the Sydney Diesel Centre letter), which was stated to be further evidence to show that the tested diesel originated from the fuel purchased at Metro Appin. This letter sets out:

On our invoice ... dated 17/3/2023 it was noted that the customer requested that we send a fuel sample for analysis and report, which we have provided. Due to the time that has lapsed since this task was carried out, and that I was not personally involved with the job, nobody could recall if we took the sample of fuel from the fuel filter or just used the sample provided by the customer.

I discussed the situation with our head technician and our normal practice would be to obtain a fuel sample from the fuel filter, unless there was a sample already provided by the customer which we would then use to get tested.

As noted on our invoice "the customer advised that the engine had started idling rough and started blowing smoke then cut out. The vehicle was towed to a repairer, and they found contaminated fuel-water found in the fuel."

Sydney Diesel Centre replaced all the fuel injection components and high pressure lines due to rust found inside these components.

(7) The results from the insurer's inspection of the vehicle dated 17 June 2024 which relevantly set out:

I have been advised that fuel system damages have been reported to have had been obtained to motor vehicle registered number [...] on the 22.02.2023 and asked to prepare a desktop assessment report based on my findings.

VEHICLE DESCRIPTION

The vehicle is a white 2012 ford ranger xl 3.2 (4X4) PX, Dual cabin utility.

DESCRIPTION OF THE LOSS:

As per the information provided, we understand that on the 19.02.2023, the third parties vehicle has been filled with 74.7 litres of diesel fuel from the insured's service station (Metro Petroleum Appin).

Specific vehicle tank capacity = 80litres. (5.3 litres/6.6% residue still in the tank from a previous fill).

On the 22.2.23, 3 days after the refill the third parties vehicle has reportedly broken down, noting rough running symptoms, blowing smoke & eventually would not start. The vehicle has then been towed to Bradbury automotive for diagnosis.

Bradbury automotive has diagnosed the vehicle to have had contaminated diesel fuel inside the fuel tank, then drained the fuel and taken a sample for testing. The vehicle has then been towed to the specialist fuel system repairer, Sydney diesel centre for the damaged fuel system to be reviewed & repaired.

The contaminated fuel sample results from ALS on the 14.3.2023, show a significant amount of water within the sample given. Moisture/water content = 6,284 ppm (parts per million) (31 times more than the acceptable maximum Australian standard of200 ppm water content mixed within diesel fuel for suitable use)

As a result, the Third party's vehicle has noted to have suffered resulting damages, from the usage of contaminated diesel fuel.

PLEASE NOTE: The information provided to our office, has noted that the insured performs deep test reports on a daily basis to the onsite fuel tanks.

Based on the insureds records, the tanks were inspected on the 18th, 19th & 20th February 2023, indicating that there was no water found in the specific tank.

The insured has reportedly sold a total of 12,731.22 litres of diesel on the same date of the incident (22.02.2023) and has not received any other complaints, apart from the utilised volume of 74.7 litres, which was sold to the third party.

It cannot be confirmed where the reported contamination of the third party's diesel fuel tank has originated, as there is currently no evidence to suggest that the diesel fuel that was purchased from the insured on the 22.2.2023 was in fact contaminated with water. Also noting the unknown distance (klms) the third parties vehicle has actually driven within the three day period since the purchase date, as to whether the insureds fuel supplied, was in fact the last time the vehicles fuel tank was filled or not.

However, due to the high amount of water noted in the sample & on the balance of probability, the last time the vehicle was filled with diesel fuel before the incident date, water ingress appears to have occurred, which has most likely caused the reported damage is to occur.

We leave this for your consideration.

(8) Also attached to the insurer's report was a monthly statistical inventory reconciliation report for the months of January, February and March 2023 showing that all tanks at the respondent's premises had obtained a pass result in those months.

1. At the appeal hearing, Mr Kutup, who represented the appellant, submitted that the letter from Sydney Diesel Centre had been available at the Tribunal hearing but the letter from Bradbury Automotive was obtained after the hearing.
2. Mr Kutup said that he had not obtained the letter from Bradbury Automotive for the Tribunal hearing because he thought he had sufficient evidence to demonstrate that the respondent had sold contaminated fuel to the appellant. However the Tribunal had found that there was insufficient evidence to show that the fuel which was tested had come from the vehicle. Mr Kutup believed that the Tribunal had overlooked the point that the fuel in the jar which was provided to Sydney Diesel Centre had come from the vehicle, and the further letter from Bradbury Automotive demonstrated that fact. The letter from Sydney Diesel Centre said that the fuel was from the vehicle. He was not sure what other evidence they could have provided. The tow truck driver had towed the car with the jar of fuel. Condensation could happen in a tank overnight. Water was present in the fuel.
3. Mr Kutup noted that he had forwarded the email from the registry with the sound recording to the Appeal Panel registry. He had not provided a transcript. He said that he was unsure what was meant by the term 'transcript'.

1. The respondent supported the orders made by the Tribunal. The Tribunal had dismissed the case based on the lack of conclusive evidence showing that the fuel sample tested belonged to the respondent, among other reasons.
2. The respondent submitted that it was not clear when, where, or from where the diesel sample was drawn. Bradbury Automotive removed all diesel from the tank and fuel filter and so did Sydney Diesel Centre. The date sampled (3 March 2023) suggested that the fuel could have been the fresh diesel filled by Bradbury Automotive. The letter from Sydney Diesel Centre dated 27 August 2023, submitted as additional evidence, stated that they were unsure about the sample's origin and they would normally obtain it from the fuel filter. However, Bradbury automotive had already removed the filter before the vehicle was towed to the Sydney Diesel Centre. There had also been no other fuel contamination complaints with Metro Petrol Appin since July 2020. The evidence presented did not conclusively link the fuel sample to Metro Petrol Appin. Additionally the vehicle's age and mileage, along with the absence of other fuel complaints, further supported the Tribunal's decision to dismiss the case.
3. The respondent opposed leave to appeal being granted, on the basis that the appellant had not provided sufficient grounds to warrant a reconsideration of the Tribunal's original decision:

(1) the appellant had not presented any new or compelling evidence that was not available at the original hearing;

(2) there were discrepancies regarding the handling, storage and origin of the fuel sample;

(3) the vehicle was a 2012 model with approximately 250,000 km on the odometer. The age and mileage of the vehicle suggested issues could be due to factors other than fuel contamination;

(4) the respondent had performed daily deep test reports. The tanks were inspected on 18, 19 and 20 February 2023 indicating that there was no water found in the tank;

(5) there had been no other fuel contamination complaints at Metro Petrol Appin since July 2020.

(1) there was no clear documentary evidence or other evidence indicating how the diesel sample was held stored or transported;

(2) the certificate of analysis from Sydney Diesel Centre showed that the sample was taken on 3 March 2023 and received on 6 March 2023. Given that Bradbury automotive had already removed all diesel from the tank, this raised questions about the origin of the sample tested;

(3) the diagnosis result obtained from the sample received by Sydney Diesel Centre on 6 March 2023 indicated potential contamination. However:

(a) the Sydney Diesel Centre's letter of August 2023 stated they were unsure about the sample's origin;

(b) the vehicle is a 2012 model with approximately 250,000 km on the odometer which might contribute to mechanical issues;

(c) the respondent had conducted daily deep tests;

(d) there were no other complaints regarding fuel contamination at metro appliances by 2020.

1. Along with the towing invoices, copies of correspondence between the appellant, the respondent and the insurer and copies of the documents described at [25(2)], [25(4)], [25(5)], [25(7)] and [ 25(8)] above, the respondent provided:

(1) Correspondence from the insurer dated 14 June 2023 setting out:

From our investigations, we have determined that our client performs deep test reports on a daily basis. Based on their records, the tanks were inspected on 18, 19, 20 February 2023, indicating that there was no water found in the tank.

Furthermore our insured sold a total of 12,731.22 litres on the same date of the incident and we have not received any complaints apart from yours.

In light of the above, and on a balance of probability basis, we deny liability for your claim.

Whilst we regret that this unfortunate incident occurred, we suggest that you refer this matter to your comprehensive motor vehicle insurer for consideration, if applicable. ...

(2) The respondent's Daily Fuel Control Worksheets for 18, 19 and 20 February 2023.

1. At the appeal hearing, the representative of the respondent, Mr Velasquez, noted that the appellant had not provided a copy of the sound recording or the transcript.
2. The report from Bradbury Automotive recommended removing all of the fuel and providing a sample for further analysis. However there was uncertainty as to the source of the fuel which was tested. The letter from Sydney Diesel Centre said that the writer was unclear as to whether the fuel had come from the vehicle's fuel filter or it had been provided by the customer.

1. The basis upon which appeals from decisions of the Tribunal may be brought is identified in s 80 of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act), which states that an appeal may be made 'as of right on any question of law, or with leave of the Appeal Panel, on any other grounds' (s 80(2)(b) of the NCAT Act).
2. It is important to note that an appeal is not an opportunity for the losing party to rerun the party's case (Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10]).

1. As the Appeal Panel observed in Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204, referring to relevant authorities at [25] - [40], a question of law means a pure question of law. It is not a mixed question of fact and law, and it does not depend on facts not found. In Donohoe v Albulario [2025] NSWSC 9 at [30] - [33] Basten JA gave further guidance as to whether a question of law is raised.
2. We have engaged in the process of considering whether there is a question of law that has in fact been raised by the appellant (see Cominos v Di Rico [2016] NSWCATAP 5 at [13]).
3. The appellant did not raise a question of law in the Notice of Appeal, and did not provide any submissions in relation to what was said at the hearing, or a transcript of the proceedings or the reasons for decision.
4. The appellant contended in the Notice of Appeal that (1) the Tribunal had overlooked both the fact that the diesel removed from the vehicle did not smell right/could be contaminated and a sample was kept for diagnosis and (2) that the diagnosis result which was obtained from the sample received. The appellant made further oral submissions to the effect that the Tribunal had missed the point that the fuel which had been tested by Sydney Diesel Centre had been sourced from the vehicle.
5. However it was common ground between the parties that the Tribunal had dismissed the matter on the basis that the appellant had not established to the requisite standard that the respondent was the source of the contaminated fuel. The appellant sought to tender new evidence going to that point.
6. Even if the appeal grounds did raise a question of law as to whether the Tribunal had failed to take into account a central submission that the fuel was contaminated or that it was sourced from the respondent (see Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088; [2003] HCA 26 at [23]- [25] and [88] and Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582; [2022] HCA 17 at [25] - [27]), that ground would be invalidated because both parties acknowledge that the matter was dismissed for failure to make out the point that the contaminated fuel was sourced from the respondent. The points that the appellant alleges were missed by the Tribunal were, on the appellant's account, the very points that formed the basis of the Tribunal's decision.
7. We are not satisfied that any error on a question of law is made out in the appellant's submissions.

1. Clause 12 of Sch 4 to the NCAT Act provides that the Appeal Panel may grant leave to appeal a decision from the CCD pursuant to section 80(2)(b) of the NCAT Act only if it is satisfied that the appellant may have suffered a substantial miscarriage of justice because:

(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).

1. The Appeal Panel considered the meaning of a substantial miscarriage of justice for the purposes of cl 12 of sch 4 to the NCAT Act in Collins v Urban [2014] NSWCATAP 17 at [76], stating that a substantial miscarriage of justice 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.

1. Even if an appellant from a decision of the CCD has satisfied the requirements of cl 12(1) of Schedule 4, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b).
2. In Collins v Urban, the Appeal Panel stated at [84] that, in order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact:

(2) Ordinarily it is appropriate to grant leave to appeal, only in matters that involve:

(a) issues of principle; or

(b) questions of public importance or matters of administration or policy which might have general application; or

(c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; or

(d) a factual error that was unreasonably arrived at and clearly mistaken; or

(e) the Tribunal having gone about the fact-finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed.

1. We turn to the appellant's grounds for leave to appeal. We will consider the new evidence ground first, to establish the relevant evidence for the remaining two grounds.

Has significant new evidence become available that was not reasonably available at the time of the hearing?

1. The Appeal Panel addressed considerations of whether evidence is significant new evidence in Owners - SP 76269 v Draybi Bros Pty Ltd [2014] NSWCATAP 29 at [108] - [109] where it was stated:

108. The appellant also relied upon the ground in cl 12(1)(c) of Schedule 4 to the Act. Under cl 12(1)(c) the Appeal Panel may grant leave if it is satisfied that the appellant may have suffered a substantial miscarriage of justice because:

significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).

109. In order to fall within this paragraph the appellant must be able to point to evidence which:

(1) is significant; and

(2) has arisen and is new in the sense that it was not reasonably available at the time the proceedings below were being heard.

1. The Tribunal's hearing took place on 13 August 2024.
2. In the Notice of Appeal, as significant new evidence the appellant referenced a further letter from Sydney Diesel Centre dated 27 August 2023 which had been attached to the Notice of Appeal (see [25(6)] above); however, at the hearing the appellant submitted that this letter had been available at the Tribunal hearing, but the further letter from Bradbury Automotive attached to an email dated 23 May 2024 (see [25(3)] above) was not.
3. The test of whether evidence was reasonably available at the time is an objective test, that is, whether the evidence was unavailable because no person could have reasonably obtained it (Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 at [23]; Bele-Verdy v The North Coast Community Housing Company Ltd [2025] NSWCATAP 13 at [52]- [54]).
4. Looking at the documents attached to the Notice of Appeal, the letter from Bradbury Automotive is paginated consecutively with the other documents provided at the Tribunal hearing, but the letter from Sydney Diesel Centre is not. This suggests that it was the latter document which was not produced to the Tribunal.
5. In any event, both letters predate the hearing and, objectively, on their dates, were available at the time the proceedings below were being heard.
6. Even if they had not been reasonably available at the time of hearing, in order to form the basis of an application for leave to appeal, either of the letters would need to be significant. That is, if the letter had been tendered at the hearing, it would have affected the case before the Tribunal.
7. As noted above, the parties both acknowledged that the essence of the Tribunal's determination was that the appellant did not establish that the respondent was the source of the contaminated fuel. In our view, neither of these letters would have had an impact on that determination.
8. The letter from Bradbury Automotive sets out that ¾ of the fuel was drained from the fuel tank, the fuel lines were flushed and the fuel filter was replaced. Bradbury Automotive gave the appellant a fuel sample and advised Sydney Diesel Centre of the vehicle's issues. Although this is not consistent with the invoice from Bradbury Automotive which indicates that all of the fuel was removed from the tank and replaced with fresh diesel, the letter does not constitute evidence to the effect that the respondent was the source of the contaminated fuel and so it is not significant new evidence.
9. The letter from Sydney Diesel Centre is equivocal. It states that nobody could recall if Sydney Diesel Centre took the sample of fuel from the fuel filter or just used the sample provided by the customer, although their normal practice would be to obtain a fuel sample from the fuel filter, unless there was a sample already provided by the customer. Similarly it is not significant new evidence which would affect the case before the Tribunal because it also does not constitute evidence to the effect that the respondent was the source of the contaminated fuel.
10. Accordingly, the appellant has not established a ground for seeking leave on this basis.
11. A further consideration in relation to evidence which was not produced to the Tribunal is whether that evidence should be taken into account in the appeal.
12. Mr Kutup stated at the hearing that the letter from Bradbury Automotive had been obtained after the hearing as further evidence that the diesel which was tested had come from the vehicle and was not before the Tribunal. Although the pagination suggests otherwise, we will accept Mr Kutup's submission on that point.
13. As the Appeal Panel stated in Chapman v McLaughin [2016] NSWCATAP 212 at [37]:

... The point of limiting fresh evidence to that which was not reasonably available at the first hearing is to ensure finality of proceedings. This means that it is in the interests of justice for parties to put forward all their evidence as best they can at the hearing, as otherwise, if they were free to add fresh evidence after a case was decided, the proceedings would run the risk of not being finalised until after many hearings. This principle is of particular importance in the Tribunal because of the provisions of s 36 of the Act. That section requires the Tribunal to proceed to decide cases justly, quickly and cheaply.

1. We have already found that the letters do not constitute significant new evidence, and we are of the view that the letter is not material, but in the interests of finality and in consideration of the evidence which was before the Tribunal, we do not grant leave for the appellant to tender the letter from Bradbury Automotive in the appeal.

Has the appellant established that the decision was not fair and equitable?

1. The Appeal Panel in Dhorajiwala PCT Pty Ltd v Peacock [2022] NSWCATAP 313 at [39] noted the following when considering whether a decision was fair and equitable:

... that whether a decision was not fair and equitable will involve a consideration of whether there has been an unfairness in the way the proceedings have been conducted or some other denial of procedural fairness.

1. In the Notice of Appeal, the appellant contended that the decision was unfair and unjust because the analysis undertaken by the respondent's insurer showed that the fuel which had been tested had a moisture content which was 31 times more than the acceptable maximum Australian standard. The appellant claimed that the tax invoice from Bradbury Automotive and the certificate of analysis from Sydney Diesel Centre demonstrated that the fuel tested by Sydney Diesel Centre originated from the respondent.
2. However it was common ground that these documents were before the Tribunal and there is nothing to indicate that the Member did not take them into account in determining that the appellant did not establish that the respondent was the source of the contaminated fuel. There is no evidence that there was unfairness in the way that the proceedings were conducted or a denial of procedural fairness and the appellant has not established a ground for seeking leave on this basis either.

1. The Appeal Panel in Collins v Urban at [77(2)] noted the following when considering whether a decision was against the weight of evidence:

The decision under appeal can be said to be "against the weight of evidence" (which is an expression also used to describe a ground upon which a jury verdict can be set aside) where the evidence in its totality preponderates so strongly against the conclusion found by the tribunal at first instance that it can be said that the conclusion was not one that a reasonable tribunal member could reach.

1. The appellant attached to the Notice of Appeal the documents which had been provided at the hearing and submitted that the tax invoice from Bradbury Automotive (see [25(2)] above) and the certificate of analysis from Sydney Diesel Centre for fuel received on 6th March 2023 (see [25(4)] above) had been overlooked before the Tribunal made the decision to dismiss the application for compensation.
2. We have set out and considered the evidence which was before the Tribunal. Whilst we are wary of allowing the appellant to rerun their case, we are satisfied that the particular documents referred to by the appellant did not constitute evidence that the respondent was the source of the contaminated fuel, merely that the fuel which was tested was contaminated.
3. More broadly overall, evidence was also not presented to the Tribunal that would strongly counter the Tribunal's conclusion that the appellant did not establish that the respondent was the source of the contaminated fuel.
4. The appellant has not established that the decision was against the weight of the evidence.

1. As the appellant has not established any error on a question of law, or that any of the grounds for leave to appeal are made out, the appeal will be dismissed.

(1) 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.