Issacs v Michael

REASONS FOR DECISION

1. This is an appeal from a decision of the Consumer and Commercial Division of the Tribunal dismissing the proceedings. Both parties appeared at the appeal hearing self-represented. They also appeared at the Tribunal hearings self-represented.
2. The decision of the Tribunal the subject of this appeal is dated 27 March 2024. Written reasons, comprising of 23 pages, were provided by the Tribunal.
3. The dispute primarily involved repair or reconditioning work to a gearbox his vehicle. The works occurred in mid to late 2021.
4. In this decision, any reference to the consumer is a reference to the appellant and any reference to the supplier is a reference to the respondent.
5. The appeal was filed on 24 April 2024. It has been filed within the prescribed period for an internal appeal under s 80 of the Civil and Administrative Tribunal Act 2013 (NCAT Act) and r 25(4)(c) of the Civil and Administrative Tribunal Rules 2014 (NSW) (NCAT Rules).
6. The matter was listed for a call-over at the Appeal Panel of the Tribunal on 10 May 2024 before Suthers PM. The Appeal Panel made procedural directions for the preparation of the appeal. The procedural directions included the provision of a sound recording or typed transcript of the Tribunal hearing the subject of the appeal, if either party wanted to rely upon what occurred at the hearing in the appeal.
7. Neither the consumer nor the supplier provided a sound recording of the hearing or a typed transcript of what occurred at the hearing.
8. In this decision, when refence is made to a parties evidence, that is a reference to the documents that were before the Tribunal hearing (as best we can identify in the appeal) and what is set out in the detailed reasons of the Tribunal.

Background

1. The consumer filed proceedings in the Tribunal on 10 July 2023 seeking damages of $35,980 and, additionally, an order that the consumer be relieved of payment in the amount of $3,500.
2. The consumer's vehicle is a modified high performance 1986 model VL Commodore Calais Turbo. The consumer referred to the vehicle in the application filed with the Tribunal on 10 July 2023 as a "historic collectable car only for weekend use".
3. The supplier operates a business known as "M2 Mechanical".
4. The consumer's father is a licensed mechanic operating a business identified in its tax invoices as "A & J Auto Repairs-Isaacs Corporation Pty Ltd."
5. In 2019, the supplier had performed significant modification work to the vehicle's engine that raised the power output of the engine.
6. In mid to late 2021, the consumer approached the supplier and informed him the gearbox was slipping. The consumer had, according to the supplier's evidence at the Tribunal hearing, obtained a quotation from a gearbox specialist to rebuild the gearbox to withstand the increased power of the motor in the sum of $10.000. The consumer and the supplier agreed that the supplier would perform more limited work to the gearbox. According to the supplier, this was because the consumer intended to sell the vehicle. The supplier arranged for the "retired gearbox technician" to perform the work at an agreed cost of $2.500.
7. According to the supplier's evidence to the Tribunal, this work was performed in August 2021. The consumer's evidence to the Tribunal was the work was performed in November 2021. No invoice was provided for payment.
8. Irrespective of the precise date the work was performed, there is no dispute it was performed and paid for. Contemporaneous text messages of the consumer show the consumer arranged for the vehicle to be picked up from the supplier's premises on 10 November 2021 with a tow truck.
9. From about July 2022 onwards, there were negotiations between the consumer and the supplier about the supplier performing work to a V8 Holden motor owned by the consumer, to be installed in a different vehicle owned by the consumer. According to the supplier, there was an agreement to do this work for the amount of $3,500. The supplier performed the work. The consumer did not pay the supplier. According to the consumer, he never agreed to the work being performed without a formal quotation to do the work and the charge by the supplier was excessive. The consumer disputed that there was an agreed price. The supplier asserted there was an agreement before the work was performed.
10. According to the consumer, or about 15 August 2022, the gearbox of the vehicle exploded causing significant damage not only to the gearbox, but the floor pan and parts of the interior of the vehicle. The consumer asserts this occurred when he and his partner were driving at a moderate speed.
11. At a date that is unclear from the evidence, the consumer's VL Commodore Calais Turbo was transported back to the supplier's premises and the gearbox removed.
12. Between about July 2022 and July 2023 there were various contemporaneous text messages between the parties about the rebuilding of the V8 motor (including additional work involving machining an engine block), and repairs to the vehicle to repair the gearbox of the VL Commodore Calais Turbo. According to the consumer, the supplier had indicated that the gearbox could be repaired for the amount of $1,500 by the "retired gearbox specialist" he knew. The consumer asserted that there were unreasonable delays and that he did not agree to pay the cost of repairs to the gearbox because he asserted that the original work by the supplier (via the "retired gearbox specialist" he subcontracted to do the gearbox repairs in 2021) was not performed with due care and skill and was not fit for purpose.
13. The majority of the contemporaneous text message between the parties from late 2022 to July 2023 refer to the dispute about the works to the V8 motor, rather than the repairs to the gearbox. There is a reference in a text message by the supplier on 20 December 2022 , in response to a text by the consumer enquiring with the supplier whether the supplier had "sorted out" the gearbox with "the guy who built my gearbox", that the gearbox would be finished by the end of January 2023, and cost "$1.500 when it's done before pickup".
14. On 29 May 2023, Mr Negro, automotive inspector from NSW Fair Trading, wrote to the consumer in response to "correspondence dated 4 April 2023" that relevantly stated as follows: A review of NSW Fair Trading's records based on the information you provided indicates Mr Micheal Michael is not the holder of a current NSW Motor Vehicle Repairers Licence.
15. By early July 2023, the supplier was demanding payment for the engine rebuild or he would retain possession of the motor. The supplier was asserting that he would obtain legal advice. The consumer was asserting that he would seek assistance from NSW Fair Trading, and proceed to NCAT.
16. The vehicle was, at a date that is not clear, towed back to the consumer's father's business premises. As discussed previously, the consumer's father is a mechanic. The vehicle has been stored at those premises.
17. On 10 July 2023, the consumer took proceedings in the Tribunal.
18. The application in the Tribunal sought orders that: (a) the consumer not have to pay $3,500; and (b) he be awarded damages of $35,980 for the cost of repairing the 1986 VL Commodore Calais Turbo and the storage fees his father's company was purportedly charging him for the vehicle.
19. After procedural directions were made by the Tribunal on 27 July 2023, for the parties to file and serve documentary evidence, the matter was set down for hearing in the Tribunal. The hearing commenced on 15 November 2023. It was adjourned part-heard. Various further dates had to be adjourned for reasons it is unnecessary to explore. The hearing concluded on 1 March 2024. The decision was reserved. Comprehensive and detailed written reasons were published on 27 March 2024.

Decision Under Appeal

1. The Tribunal summarised the evidence and submissions of the consumer as follows:

Consumer's Evidence

1. The supplier installed the repaired gearbox on 10 November 2021.
2. On 15 August 2022, the gearbox "blew up" when the consumer was driving with his partner at "normal speed".
3. The vehicle was towed to the supplier's premises. At some subsequent date, it was towed to the consumer's father's mechanical workshop.
4. On 20 December 2022, the supplier requested payment of $1,500 to rebuild the gearbox. The consumer refused, asserting the repair should be at the cost of the supplier, because the original work in November 2021 was not performed with due care and skill and was not fit for purpose.
5. While there was an ongoing dispute about the gearbox rebuild, the consumer had in September/October 2022 instructed the supplier to machine an engine block and requested a quote before authorising the work. According to the consumer, he was not given a quote and the supplier performed the work without authorisation. In February 2023, the supplier demanded payment of $3,500.
6. The supplier offered to repair the gearbox at no charge if the consumer paid $3,500 for the engine. The consumer refused.
7. The consumer relied on lay evidence including a statement from his partner, who gave evidence of being in the vehicle when the gearbox "blew up." She asserted the vehicle was being driven in a normal manner.
8. The consumer relied upon expert reports of Mr Ray Axia of IAE Services (NSW) dated 11 August 2023 and 26 October 2023. Mr Axia asserted that "automatic transmission best practice was that "all hardware" in a reconditioned gearbox should be checked for signs of wear and tear; excessive clearances and signs of fractures and if a defect was identified the parts should be replaced. Mr Axia asserted the gearbox works performed by the supplier (through his 'retired gearbox specialist') were "substandard." In his supplementary report of 26 October 2023, Mr Axia dealt with assertions in the supplier's reply evidence, and stated that the reply evidence did not alter his opinion.
9. The consumer also relied upon an expert report of Bill Tech Automotive dated 25 October 2023, where it was opined that the gearbox "…from when it was built…slowly started to go resulting in the significant amount of damage it had caused…this gearbox should not have blown up".
10. The consumer relied on a quote from Inghams Restorations dated 10 October 2023 for repair to the vehicle and storage fees. The total amount was $48,138.20. The "storage fees" amount was $23,400.
11. The consumer relied on a tax invoice from his father's business (A & J Auto Repairs) dated 29 October 2023 for purported "storage fees" in the amount of $10,000. The consumer also provided two receipts for payment from A & J Auto Repairs in the total amount of $10,000.
12. The consumer also provided quotes for the cost of machining an engine block to support his assertion that the supplier's claim for the costs of performing the engine work was excessive.
13. The consumer called evidence at the hearing from his partner regarding what happened in the vehicle when the gearbox 'blew up.'

Supplier's Evidence

1. The supplier stated he performed engine modifications to the vehicle in 2019. His next contact with the consumer was in August 2021, when the consumer approached him. According to the supplier, the consumer told him he wanted to "refresh" the gearbox back to standard specifications as he was planning to sell the vehicle and "just wanted it to be drivable." According to the supplier, the consumer stated he did not want to spend $10,000.
2. According to the supplier, the parties agreed that the supplier would arrange for the "retired gearbox technician" he knew to perform the work at a cost of $2,500. According to the supplier, this occurred in August 2021. On 10 November 2021, the consumer arranged for a tow truck to collect the vehicle. The supplier relied on contemporaneous text messages to support his version of events regarding the scope of works to the gearbox; the price; and that the supplier was arranging for the work to be done by a third party.
3. The supplier pointed to an engine dyno tune of the motor of the vehicle dated 23 November 2021 to support his position that the gearbox works were adequate. The document from Bill Tech Automotive referred to the vehicle being brought to Bill Tech Automotive for a "fuel system upgrade" and that the vehicle made "450 hp…through a Jatco box and microtech ecu".
4. The supplier asserted that the engine modifications to the vehicle had increased power of the vehicle "from 200hp to about 500 hp" and that the consumer should have installed a heavy duty gearbox to withstand that increased power, but deliberately chose not to because he did not want to spend the money and intended to sell the vehicle.
5. The supplier asserted that the consumer had attended an event called "Power Cruise Sydney" on 4 June 2022 and had been witnessed doing "burnouts" in the vehicle the subject of the dispute. The supplier relied upon a statutory declaration by a witness, Mr Tyson; and a statement by another witness Mr Karezi, a tow truck driver. Both of those witnesses attended the hearing and were questioned.
6. The supplier relied on two expert reports. The first was by Mr Rigatos (automatic transmission specialist mechanic) dated 25 July 2023. The second was Mr Ahmed, mechanic, of Eurologic, dated 4 September 2023. Neither Mr Rigatos or Mr Ahmed attended the hearing for questioning.
7. Both Mr Rigatos and Mr Ahmed asserted in their respective reports that the gearbox of the vehicle could not sustain the damage it sustained by normal use, and that the explosion of the gearbox was caused by the vehicle being used in an abnormal manner, at very high engine speed.
8. The supplier also provided his quotation for $3,500 for the machining of the V8 engine block; and quotations from other mechanics for similar work, to support his assertion that the cost of the engine works were reasonable.

Factual Findings of the Tribunal

1. At paras [96]-[106], the Tribunal dealt with the lay evidence of the consumer's partner; Mr Tyson; and Mr Karezi. The Tribunal found that none of those witnesses gave reliable cogent evidence and explained the basis of that finding.
2. At paras [80]-[94], the Tribunal dealt with the expert evidence that both parties relied upon. The Tribunal referred to the applicable legal principles in Shakiri v Holland [2024] NSWCATAP 28 at [91]-[98] for assessment of the weight to be given to expert evidence. The Tribunal explained in detail as to why there were significant flaws in the expert evidence relied upon by both parties. The Tribunal concluded at [94] that it was: "…not greatly assisted by the expert evidence tendered by the parties which had little or no probative value in determining the real issues in the case."
3. At paras [107]-[112], the Tribunal dealt with the evidence of the consumer and supplier. The Tribunal set out inconsistencies in the evidence of both the consumer and the supplier. The Tribunal found the evidence of both parties was "inconclusive" and due to the extent of inconsistencies it could not accept one version of events over another.

Legal Findings of the Tribunal

1. The Tribunal found that it had jurisdiction to consider the proceedings under Part 6A of the Fair Trading Act 1987(NSW).
2. The Tribunal identified that applicable legal causes of action relied upon by the consumer in respect of the gearbox works where whether the consumer guarantees under ss 60 and/or 61 of the Australian Consumer Law 2010 (NSW) (ACL) had been breached by the supplier. Section 60 of the ACL is the consumer guarantee that services will be provided with due care and skill. Section 61 of the ACL is the consumer guarantee that services will be reasonably fit for purpose.
3. The Tribunal found at [108]-[110] that there was not sufficient cogent evidence to make factual findings about (a) the agreed scope of works to repair the gearbox in 2021; and (b) why the gearbox failed. At [111] the Tribunal concluded that the consumer had failed to prove that the supplier had breached the consumer guarantees under ss 60 and/or 61 of the ACL in respect of the work performed to the gearbox in 2021.
4. At para [112] the Tribunal considered the consumer's claim for relief from payment in respect of the V8 engine works. Again, the Tribunal found that the evidence was so inconclusive and flawed that no factual findings could be made in favour of the consumer. At para [113] the Tribunal referred to the principles discussed in Donoghue v Compass Housing Services [2015] NSWCATAP 97 at [114]-[117] where evidence was so flawed and conflicting that it is open to the Tribunal to find that the party with the onus of proof has failed to discharge it. The Tribunal concluded at [114]-[115]: "Applying the legal principles referred to above to the facts of this case, the evidence is inconclusive and does not persuade me one way or the other. The Tribunal is unable to resolve the numerous conflicts and discrepancies in the evidence. Isaacs has failed to discharge the onus of proof placed upon him. Isaacs has not proved his case on the balance of probabilities."

Scope and Nature of Appeals

1. An appeal to the Tribunal's Appeal Panel does not simply provide a losing party in the Tribunal below with the opportunity to run its case again, nor is it sufficient for an appellant to disagree with the outcome and to contend there should have been a different outcome: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10]; Brahm Bhatt v Osorio [2023] NSWCATAP 188 at [27]-[28].
2. To succeed in an appeal, an appellant must demonstrate either an error by the Tribunal below on a question of law, which may be argued as of right; or that permission (that is, "leave") to appeal should be granted to bring the appeal: NCAT Act, s 80(2).
3. An appellant to an internal appeal brought under s 80(2)(b) of the NCAT Act must identify with precision a question of law said to be raised by the appeal: Ferella & Anor v Chief Commissioner of State Revenue [2014] NSWCA 378 at [6], [22]; Schwartz Family Co Pty Ltd v Capitol Carpets Pty Ltd [2017] NSWCA 223 at [13]. Whether a question is one of law must be approached as a matter of substance: Haritos v Federal Commissioner of Taxation (2015) 233 FCR 315; [2015] FCAFC 92 at 62, [94], [203]; Kudrynski v Orange City Council [2024] NSWCA 33 at [50]. Each question must be a pure question of law (Orr v Cobar Management Pty Limited (2020) 103 NSWLR 36; [2020] NSWCCA 220 ("Orr v Cobar") at [44], [49]; and Thomas and Naaz Pty Ltd v Chief Commissioner of State Revenue [2023] NSWCA 40 at [71]). In Orr v Cobar at [109] it was said by Bathurst CJ and Bell P (as the Chief Justice then was) with Garling, Johnson and Lonergan JJ agreeing: "Those questions of law should be, in our opinion, what are sometimes described as 'pure questions of law.' They should not draw the Court of Criminal Appeal into questions of fact. Moreover, they must be questions whose character as a question of law can be recognised on the face of the question, and not depend upon the answer given to the question. This does not include a question which may ultimately disclose an error of law depending on an analysis of the facts but where this cannot be known without scrutiny of the facts. The construction accords with the cases we have referred to at [48] and [70] above."
4. Examples of pure questions of law include: 1. Denial of procedural fairness (Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at 13); FVA v Commissioner for Police, NSW Police Force [2024] NSWCATAP 127 at [83]-[84]). 2. A constructive failure to exercise jurisdiction, which includes the failure to consider and address a material issue raised by a party in the proceedings that is within the jurisdiction of the Tribunal to determine (Alexandria Landfill Pty Ltd v Transport for NSW (2020) 103 NSWLR 479; [2020] NSWCA 165 at [8]-[12] and [413]). This category of error also includes a failure by the Tribunal to engage with a clearly articulated argument put to it. 3. Acting on the application of the wrong legal principle which materially affected the outcome (Bison, Roads & Maritime Services v Dam orange Pty Ltd [2014] NSWSC 734 at [38]-[53]). 4. No evidence to support a factual finding (Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 23 at [91])
5. The principles governing an application for leave to appeal under the NCAT Act are well-established and are repeated in many decisions of the Appeal Panel, often quoting Collins v Urban [2014] NSWCATAP 17. They are the same principles applied by the courts. It is only if the decision is attended with sufficient doubt to warrant its reconsideration on appeal will leave be granted. Ordinarily it is appropriate to grant leave where there is an issue of principle, a question of public importance or an injustice which is reasonably clear, in the sense of going beyond what is merely arguable: Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597 at [28]. As explained in Collins v Urban at [84], it is not sufficient merely to show that the Tribunal below was arguably wrong or that there was a bona fide challenge to an issue of fact.
6. Further, the circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division of this Tribunal under s 80(2)(b) of the NCAT Act are limited to those set out in cl 12 (1) of Sch 4 of the NCAT Act. In such cases, the Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice on the basis that: (a) the decision of the Tribunal under appeal was not fair and equitable; or (b) the decision of the Tribunal under appeal was against the weight of evidence; or (c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
7. In Collins v Urban, the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12 (1) of Sch 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

Grounds of Appeal

1. The Notice of Appeal identifies a number of issues that are purported to be errors on a question of law. We summarise those issues as follows: 1. The finding of the Tribunal at para [16] that the supplier held a "tradesperson's certificate issued under the Motor Dealers and Repairers Act 2013 (NSW)" was "not sufficient" because a Tradesperson Certificate "does not suffice for operating a repair business" under that Act. The supplier "employed" a "retired mechanic" who also did not hold a repairers license or a current trade certificate. 2. The gearbox works were not provided with due care and skill under s 60 of the ACL nor where they reasonably fit for purpose under s 61 of the ACL because they were performed by persons who are not suitably licensed. 3. The supplier engaged in misleading and deceptive conduct because he was not suitably licensed under the Motor Dealers and Repairers Act 2013 (NSW) nor was the 'retired mechanic' who he had engaged to perform the actual work on the gearbox. 4. The letter from NSW Fair Trading dated 29 May 2023 that the supplier was not suitably licensed demonstrated the supplier "did not meet the objective criteria for due care and skill as he fundamentally failed to comply with legal and professional standards". 5. The standard as to whether a supplier had provided services with due care and skill under s 60 of the ACL and provide services reasonably fit for purpose under s 61, is objective, and the supplier had breached this objective standard because he was not suitably licensed, and had used a suitably licensed person to perform the gearbox works. 6. By reason of the supplier not being duly licensed and not using a suitably licensed and qualified person to perform the gearbox works in 2021, the Tribunal should have found the supplier had breached the consumer guarantee provisions of ss 60 and 61 of the ACL. 7. The Tribunal "ignored" the letter from New South Wales fair trading at the supplier was not duly licensed. Disregarding this "key piece of evidence" could have "influenced the outcome of the case."
2. The consumer's Notice of Appeal also referred to the Tribunal generally failing to "consider relevant case law and principles". That general comment does not identify what issues the Tribunal failed to consider (i.e. a constructive failure to exercise jurisdiction) or what legal principles adopted by the Tribunal were incorrect. In any event, for reasons discussed later in this decision, we are not satisfied that there was any error on a question of law established; nor that leave to appeal should be granted; and the legal authorities referred to by the consumer in the Notice of Appeal and submissions do not assist the consumer in any event.
3. The consumer's written submissions in support of the appeal filed on 4 June 2024 elaborated upon the matters set out in the Notice of Appeal.
4. The consumer also sought leave to appeal on the basis that the decision was not fair and equitable, and was against the weight of evidence. The notice of appeal does not identify that the appellant was seeking leave to appeal on the basis of significant new evidence that was not reasonably available at the time of the hearing.
5. In his oral submissions at the appeal hearing, the appellant did not identify any significant new evidence that was not reasonably available at the date of the Tribunal hearing upon which he sought leave to appeal. Accordingly, the grounds upon which leave to appeal were sought were exclusively that the decision was not fair and equitable; or was against the weight of evidence.
6. The supplier filed a Reply to Appeal on 9 May 2024; and also written submissions. The supplier asserted that he was a suitably licensed mechanic, and had provided a copy of his trade certificate to the Tribunal at the hearing. The supplier denied that he was in breach of the licensing provisions of the Motor Dealers and Repairers Act 2013 (NSW). The supplier submitted that in 2021 he had removed the gearbox; and then outsourced the repair work to the "retired gearbox specialist mechanic" with the knowledge and permission of the consumer.
7. The supplier submitted that the consumer was merely seeking to reargue the case that he had lost at the hearing before the Tribunal and that the consumer's arguments had been appropriately rejected by the Tribunal on the basis of the same evidence and documents the consumer had provided to the Appeal Panel.

Error on a Question of Law

1. The grounds of appeal and appeal arguments of a self-represented litigant need to be considered fairly and with a view to the substance of the grounds rather than on a technical basis, subject to procedural fairness issues that may arise (Cominos v Di Rico [2016] NSWCATAP 5 at [13]).
2. However, to succeed on the appeal without being granted leave to appeal, an appellant must establish an error on a question of law (Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 at [25]-[39]). As discussed previously, mere decision dissatisfaction is not sufficient to establish an error on a question of law. It is also insufficient to be granted leave to appeal.
3. In substance, the grounds of appeal identified by the appellant raise the following grounds: 1. The finding of the Tribunal that the supplier was duly licensed as a motor mechanic and held a Tradesperson's Certificate. 2. The findings of the Tribunal regarding the gearbox work in 2021, and that the Tribunal had not applied the correct legal test. 3. The failure of the Tribunal to consider a potential cause of action that the supplier had engaged in misleading or deceptive conduct, or conduct likely to mislead or deceive (s 18 of the ACL). 4. Leave to appeal.

Ground 1-The Finding of the Tribunal The Supplier Was Duly Licensed

1. As discussed previously, the Tribunal made a factual finding that the supplier was duly licensed.
2. From the reasons of the Tribunal; and the documents that were relied upon by the supplier at the hearing, that finding was supported by documentary evidence of the supplier of a NSW Fair Trading Tradesperson's Certificate under the Motor Dealers and Repairers Act 2013 (NSW) that the supplier had a Tradesperson's Certificate for the repairer class "motor mechanic" that expired on 15 September 2027.
3. The Tribunal's reasons do not refer to the letter of Mr Negro of NSW Fair Trading dated 29 May 2023. However, the consumer's appeal documents did not contain his letter to NSW Fair Trading dated 4 April 2023, so there is no clear context to the letter of NSW Fair Trading.
4. The consumer did not provide a sound recording or transcript of the hearing to identify whether any argument was raised about the letter of NSW Fair Trading dated 29 May 2023 at the hearing; or whether it was asserted at the hearing that due to there being unlicensed work performed in respect of the 2021 gearbox works, that caused the work to not be provided with due care and skill or not fit for purpose under ss 60 and/or 61 of the ACL.
5. It is the consumer who bears the onus of establishing an error on a question of law, and also bears the consequences of failing to provide a sound recording or transcript (Whear v Kids on Hayes Street Pty Ltd [2021] NSWCATAP 123 at [25]; Sengos v Hassan [2022] NSWCATAP 366 at [42]-[43]).
6. At the appeal hearing, the respondent submitted that he was duly licensed as to perform the gearbox works in 2021, although he had outsourced the actual work to the "retired gearbox specialist mechanic".
7. We are not satisfied, in the absence of a sound recording or transcript of the hearing, that there was no evidence to make a factual finding that the supplier was duly licensed. From the documents and submissions in the appeal, there was evidence to make the factual finding at para [16] of the reasons. This is not a matter where there was no evidence to make a factual finding such that an error on a question of law is established. Whether the factual finding was in error is a matter that goes to whether leave to appeal should be granted under s 80 and cl 12 of Sch 4 of the NCAT Act.
8. A party cannot raise in an appeal a matter or argument that was not raised in the hearing below, except in limited circumstances. The applicable principles were set out by the Appeal Panel in Divola v Natural Solar Power Pty Ltd [2022] NSWCATAP 379 at [28]-[29]: As the plurality of the High Court of Australia noted in Colton v Holcombe (1986) 162 CLR 1 at 8; [1986] HCA 33: … in a recent decision of six Justices of this Court (University of Wollongong v. Mentally [No. 2] ) the Court said: "It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so. (citations omitted) See too Drivas v Burrows [2014] NSWCATAP 87 where the Appeal Panel observed: 32. The considerations favouring finality of litigation are at least as strong, and probably stronger, in the case of the Tribunal given the importance attached to the expeditious and inexpensive disposition of proceedings [under the] Civil and Administrative Tribunal Act (the Act). 33. Generally, a new point will not be allowed where the consequence would have to be a new trial because "evidence could have been given which by any possibility could have prevented the point from succeeding": Suttor v Gundowda [1950] HCA 35; (1950) 81 CLR 418 at 438.3.
9. The assertion of the consumer in the appeal (which was disputed by the supplier) is that the mere lack of a suitable license under the Motor Dealers and Repairers Act 2013 (NSW) meant the works were not performed with due care and skill, or were not fit for purpose. In the absence of sound recording or transcript, we cannot ascertain whether or not that argument was raised before the Tribunal Member, or is a fresh argument raised on appeal.
10. Whether services are not provided with due care and skill; or not fit for purpose, involves the application of an objective standard in the context of the particular facts of the case (Lets Go Adventures Pty Ltd v Barrett [2017] NSWCA 243 at [6] in respect of s 60; Karpiak v Carnival plc (The Ruby Princess) [2023] FCA 1280 at [497] in respect of s 61). The mere fact (if proven) that services have been provided in trade or commerce by a person who is not duly licensed does not automatically mean the services were not provided with due care and skill; or are not fit for purpose. The critical enquiry is the services actually provided assessed to an objective standard in all the relevant established factual circumstances. Whether nor not the service provider held a suitable statutory license may be relevant to that objective assessment, but it is not, of itself, determinative of breach of the consumer guarantees under ss 60 and 61 of the ACL.
11. No error on a question of law is established on ground 1

Ground 2-Application of the Incorrect Legal Test

1. At paras [27]-[38] of the decision the Tribunal set out in detail the legal principles it was considering to determine whether the consumer had proved, on the balance of probabilities, the gearbox works in 2021 were not performed with due care and skill; or were not reasonably fit for purpose. The legal authorities referred to by the Tribunal correctly identify the applicable legal test.
2. No error on a question of law is established in respect of ground 2.

Ground 3-Failure to Consider a Claim for Misleading and Deceptive Conduct

1. The Tribunal's reasons do not refer to an claim made by the consumer that the supplier engaged in any misleading or deceptive conduct or conduct likely to mislead or deceive in breach of ss 18 (or 29) of the ACL. Depending upon the factual matters established and whether a claim for misleading and deceptive conduct has been duly raised at the hearing, actual or implied representations about a person holding an appropriate statutory license that are relied upon by a consumer to enter a transaction for the provision of goods or services may constitute a breach of s 18 of the ACL if loss is established (see, for example, Mills v Walsh [2022] NSWCA 255 at [92]-[94])
2. The reasons do not indicate that the consumer gave evidence at the hearing or made any specific complaint that the supplier made any misleading or deceptive representations about his licence; or the license of the "retired gearbox mechanic;" or that any such representations were relied upon and caused him to enter into the agreement for the gearbox works to be performed in 2021.
3. In the absence of a sound recording or transcript, we cannot be satisfied that this was a cause of action raised by the consumer at the hearing that was not dealt with by the Tribunal such that a constructive failure to exercise jurisdiction is established.
4. Further, the Tribunal made factual findings that the evidence of both parties lacked reliability, and the evidence of the consumer was so deficient that the Tribunal could not be satisfied on the balance of probabilities of the factual matters he asserted. Considering those findings by the Tribunal, even if a claim by the consumer under s 18 (or 29) of the ACL had been raised, it would have failed.
5. No error on a question of law is established in respect of ground 3.

Leave to Appeal

1. No error on a question of law has been established. The next issue is whether grounds for leave to appeal are established.
2. We are not satisfied that leave to appeal should be granted on the basis that the decision is not fair and equitable, or is against the weight of evidence, applying the principles set out in Collins v Urban.
3. The reasons of the Tribunal are detailed. The correct legal principles have been identified. The factual findings made by the Tribunal were open to it on the basis of the evidence discussed in those reasons. The reasoning process was logical and orthodox. There is no issue of legal principle, or issue of public importance; or any injustice which is reasonably clear, in the sense of going beyond what is merely arguable. There is also no substantial miscarriage of justice under cl 12(1) of Sch 4 established.
4. Leave to appeal is refused.
5. Accordingly, the appeal fails.

ORDERS 1. Leave to appeal is refused. 2. The appeal is otherwise 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

Amendments 21 November 2024 - At [59] last line before the quote, spelling fixed from Gerling to Garling. 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: 21 November 2024