Kim v Best Car Maintenance Pty Ltd

1. Ms Kim filed the 2023 Proceedings on 28 August 2023, seeking a money order of $6,570.
2. Reasons provided in the application to support that money order were:

(1) Engine stoppage on highway;

(2) Breach of "repair agreement schedule" and delay;

(3) "Not all parts and labour had been provided";

(4) "New engine locker cover is broken and damaged due to the careless behaviour of the mechanic and some parts are missing after labour";

(5) "Even after lifters replacement 100% same noise from the engine and the engine continues to leaks more oil" [sic.];

(6) "Parts and repair were charged dishonestly";

(7) "Nothing has been properly repair serviced (same defect)" [sic.]; and

(8) "Damage and poor repair".

1. The money order was quantified (although with a discrepancy of $238.70 which does not appear relevant) by reference to the following invoices from BCM:

(1) 9 February 2022 - shaft, muffler, high power steer hose attendances $1,619.50;

(2) 10 June 2022 - oil service attendances $206.75;

(3) 8 March 2023 - engine installation $3,900;

(4) 28 April 2023 - oil maintenance attendances $382.45;

(5) 11 July 2023 - labour for replacing hydraulic lifters $700.

1. Ms Kim's 18 September 2023 affidavit included reference to:

(1) payments made to BCM on 9 February 2022 and 10 June 2022, for work described as "replaced rear muffler and high power steering hose" and change of engine oil (at [1] and [2]);

(2) after installation of the New Engine, problems including "air conditioner malfunction", coolant leak, engine oil leak, exhaust gas leak from muffler, "shaking in the engine room", "cracking noise", "non assembly of bolts" and "damaged under cover" (at [15]);

(3) paying $700 to BCM for the replacement of 24 hydraulic lifters (at [11]);

(4) a visit on 15 August 2023 (at [12]):

"to another repair company and requested my car inspection and re-repair but they refused to repair my car. Because, the mechanic said they found too many problems and huge repair costs. He give me informed that it is eligible for compensation for damages car from Respondent" [sic].

1. Ms Kim's claim was to the effect that BCM (ascertainable from the reasons for decision in the 2023 Proceedings on 18 January 2024):

(1) "did not replace the engine with due care and skill; unreasonably delayed the repairs; and that in conducting the repairs the respondent did not use the new parts or did not change the faulty parts at all" (page 1);

(2) sought an order for the amount of $6,570.00, "being refund of monies paid to [BCM] for motor vehicle repairs" (page 1), being more than simply a refund of the fees paid by Ms Kim to BCM for installation of the New Engine (which was $3,900).

1. The reasons for decision show that the claim in the 2023 Proceedings was considered and decided for reasons which included the following causes of action and issues.

(1) Prior to being satisfied of the Tribunal's jurisdiction, Ms Kim's applicable causes of action were discussed at page 2:

"I have considered and determined her application pursuant to contractual principles; the law of tort; and the guarantees regarding the supply of services in the Australian Consumer Law 2010 (NSW) (ACL), specifically:

i) Breach of guarantee as to due care and skill - section 60

ii) Breach of guarantee as to reasonable time for supply - section 62".

(2) The remedies assuming the causes of action could be established were discussed at page 5:

"The only remedies for a "major failure" are set out in s 267. Either:

i) Compensation for reduction in the value of the services below the price paid or payable by the consumer for the services. (s 267(3)(b)); or

ii) Damages for any loss or damage suffered by the consumer because of the failure to comply with the guarantee if it was reasonably foreseeable that the consumer would suffer such loss or damage as a result of such a failure (s 267(4)." [sic.]

1. The 2023 Proceeding was dismissed on the basis that the causes of action could not be established, and even if they could have been, Ms Kim could not establish an entitlement to compensation.
2. The causes of action encompass repairs and maintenance when the car had the Old Engine and the New Engine, and the installation of the New Engine.

1. The present three proceedings the subject of this appeal purport to have been brought for different claims. As will be seen, there is, though, a common thread, being orders for damages associated with alleged breaches of duty owed for work performed by BCM in relation to the Old Engine, the New Engine and general servicing of the vehicle. Those proceedings are summarised by reference to the applications as filed and the quantum particularised in the summary by the Tribunal in the 2024 Proceedings.

1. In this proceeding Ms Kim initially sought $9,000 in compensation understood by us to be because services were not performed with due care and skill.
2. The services the subject of the claim were expressed to relate to the New Engine which was damaged by BCM allegedly because of a failure to perform an oil service and damage caused by mechanical work.
3. Compensation in the amount of $12,546.59 by Ms Kim was sought at hearing for various items listed at paragraph 6 the Tribunal's decision. Amongst items claimed were a refund of BCM's labour charge for replacement and purchase of "hydraulic lifters" which were items before the Tribunal in the 2023 Proceedings.
4. Furthermore, Ms Kim sought $7,321 for repairs performed on the New Engine by a third party contractor, as a consequence of BCM's work on the New Engine.

1. In this proceeding Ms Kim initially sought $9,000 in damages. She expressed this claim to relate to the "old engine", understood by us to be because services were not performed with due care and skill, in this case relating to an oil change service to the Old Engine.
2. Although the claim was expressed to be damage to the Old Engine, the compensation order sought referred to $3,900 in cash being paid to BCM for labour, and "about $13,000 on engine replacement". That engine replacement was the installation of the New Engine.
3. At hearing, $13,238.55 was sought as compensation.
4. The commonality with the damages sought in the 2023 Proceedings regarding complaints about installation of the Old Engine is apparent including the oil change complaint.

1. In this proceeding Ms Kim initially claimed a refund of $1,300, which we understand to be because services were not performed with due care or skill or at all. Replacement parts for her car were allegedly not provided between 31 January 2022 and 29 February 2022, although the claim is not expressed clearly in the application which was filed.
2. Breaches of duty are alleged in relation to maintenance and servicing by BCM, including for parts not supplied. Those claims were alleged to have occurred as a result of breaches in February 2022, discovered in August 2023 according to the application.
3. As may be deduced from the Tribunal's reasons in the 2024 Proceedings, the compensation sought by Ms Kim was increased to $3,625.84, relating to a power steering hose which was allegedly not installed by BCM. A complaint about the steering hose was also made in the 2023 Proceedings, as were complaints about parts not being installed which BCM had purported to supply.

1. The underlying facts of the three proceedings the subject of this appeal (that is, the 2024 Proceedings) have been outlined above at [25]-[36].
2. The Tribunal dismissed the 2024 Proceedings on two primary grounds, being that:

(1) the proceedings were precluded by the doctrine of issue estoppel; and

(2) in the alternative, the failure to substantiate the claims on the evidence.

1. Supporting the conclusion that issue estoppel applied, the Tribunal found that the issues had already been determined in the 2023 Proceedings involving the same parties, and in particular that:

(1) "there was no fresh cause of action that had arisen since the last proceedings... and, the applicant continues to claim substantially on the same basis" (at [19]);

(2) "although some of the specific allegations in these proceedings were being raised by the applicant for the first time ... the applicant could have made these specific allegations in the first proceedings had the applicant undertaken the necessary investigations..." (at [20]);

(3) "these three fresh applications amount to no more than the applicant attempting to further investigate the respondent's workmanship and invoicing in more detail and, to overcome the deficiencies in the applicant's evidence during the first proceedings" (at [21]).

1. In the alternative, the Tribunal found (at [25]):

"the claims should otherwise fail because the new evidence presented by the applicant is still insufficient to substantiate the applicant's allegations against the respondent to the legal standard required, that is, on the balance of probabilities."

1. To attempt to prove the breaches alleged, Ms Kim has filed voluminous material featuring photographs of engine and other mechanical components, and her handwritten annotations and conclusions. The Tribunal concluded that such evidence was "insufficient", providing an example. Furthermore, the Tribunal made the following observation in relation to the "expert report" relied upon by Ms Kim which was new to the 2024 Proceedings:

"[24] In relation to the new purported expert report by Mr. Gil relied upon by the applicant in these fresh proceedings, this is not in the form of sworn/affirmed evidence. The report consists of one (1) page only. The final paragraph states, "It is believed that this vehicle was released from the ex repair shop without engine oil and engine coolant'. [sic.] Assuming it is Mr. Gil who believes this, there is no explanation for how Mr. Gil has formed this belief, particularly given that Mr Gil inspected the vehicle on 1 June 2024, being some 15 months after the respondent replaced the engine with the engine provided by the applicant.

1. Ms Kim seeks by her appeal to set this decision aside and have the matter remitted to the Tribunal for a rehearing. (In her separate submission filed 5 January 2026, Ms Kim seeks to "uphold [her] claim for $70,000", the basis for which increase is found in a newly added compensation claim for a new car she has since been "forced" to purchase for $62,500 because of the alleged breaches by BCM, according to Ms Kim's 22 December 2025 submission.

1. Under s 80(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), a party may appeal as of right to the Appeal Panel in an internal appeal on any question of law.
2. The meaning of a "question of law" has been considered by the Appeal Panel in Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 and in Narraport Woollahra Holdings Pty Ltd v Ice Box Liquor Pty Ltd [2024] NSWCATAP 240. The principles enunciated by the Appeal Panel in those authorities include the following:

(1) A question of law means a pure question of law;

(2) A mixed question of fact and law is not a pure question of law;

(3) A question of law must be articulated with precision, as (as absent leave to appeal) it is the subject matter of the appeal;

(4) A question of law must be discernible on the face of the ground of appeal;

(5) A question of law does not depend upon disputed facts; and

(6) A question of law must be capable of being stated and considered from the facts to which it may be connected in a given case.

1. 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.

1. In respect of any other grounds, in the case of an appeal from the Consumer and Commercial Division of the Tribunal, as this is, the appellant must satisfy the Appeal Panel that leave to appeal should be granted under cl 12 of Sch 4 of the NCAT Act on the basis that:

... the appellant may have suffered a substantial miscarriage of justice because:

(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).

1. Even if these conditions for the grant of leave are satisfied, the Tribunal has a discretion concerning the grant of leave which it will ordinarily only exercise in the circumstances described in Collins v Urban [2014] NSWCATAP 17 at [84(2)], namely:

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

(a) issues of principle;

(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;

(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. Ms Kim relied upon a notice of appeal filed 27 August 2025, three plastic sleeve folders filed 27 August 2025 numbered to page 265 containing documents relied on before the Tribunal, fresh evidence, written submissions, transcript evidence, an application for costs, a USB drive said to be a recording of the hearing of the Tribunal hearing, a statutory declaration filed 5 September 2025, an affidavit filed 8 September 2025, an application for miscellaneous matters dated 9 September 2025 seeking to submit further evidence including of "fabricated evidence and unauthorized information sharing" attaching documents, and "final written submissions in reply summary" filed 22 December 2025, "final supplementary statutory declaration" filed 5 January 2026. Ms Kim had placed on the bench, before the hearing began, 4 bundles of documents said to be clearer copies of documents already in the appeal materials, which we marked for identification.
2. BCM relied upon a reply to appeal filed 3 October 2025 and a bundle of documents containing 5 tabs, filed 18 December 2025.

1. Ms Kim, who was unrepresented, appeals questions of law and fact without separating the concepts. In Cominos v Di Rico [2016] NSWCATAP 5, the Appeal Panel stated at [13]:

13. It may be difficult for self-represented appellants to clearly express their grounds of appeal. In such circumstances and having regard to the guiding principle, it is appropriate for the Appeal Panel to review an appellant's stated grounds of appeal, the material provided, and the decision of the Tribunal at first instance to examine whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal. The Appeal Panel has taken such an approach in a number of cases, for instance, Khan v Kang [2014] NSWCATAP 48 and Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69. However, this must be balanced against the obligation to act fairly and impartially (Bauskis v Liew [2013] NSWCA 297 at [68] citing Hamod v State of New South Wales [2011] NSWCA 367 at [309]- [316]). Relevantly, s 38(2) provides that that Tribunal "may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.

1. This approach has been adopted in attempting to discern Ms Kim's grounds of appeal.
2. From the appellant's written material, we identify the following relevant grounds of appeal, referenced to whether they reflect questions of law (which do not require leave) or fact (which do require leave).

(1) Ground 1. Error in concluding that an issue estoppel arose from the determination of the 2023 Proceedings. This raises a question of law.

(2) Ground 2. Errors in applying relevant sections of the Australian Consumer Law (NSW) (ACL), primarily around misleading or deceptive conduct (s 18), guarantees as to acceptable quality (s 54), fitness for disclosed purpose (s 55), supply by description (s 56), care and skill (s 60), reasonable time for supply (s 62), action against suppliers of goods (s 259), major failure (ss 260 and 268), and action against suppliers of services (s 267). These alleged errors raise questions of law.

(3) Ground 3. Errors in factual findings which are numerous, relating to the conclusion of the Tribunal that Ms Kim had not proven the facts required to establish her claims. These alleged errors raise questions of fact, requiring leave to appeal.

(4) Ground 4. There was significant new evidence that was not reasonably available at the time of the hearing in the primary proceedings. This raises a question of fact.

(5) Ground 5. Bias. This raises a question of law.

(6) Ground 6. Procedural unfairness. This raises a question of law.

1. During the hearing of this appeal, Ms Kim was assisted by a Tribunal appointed interpreter, who was required to translate all words spoken at the hearing into and from Korean. Most of the hearing time was taken up by Ms Kim's submissions.
2. Ms Kim's submissions, both written and oral, repeated her analysis that the work performed by BCM showed breaches of consumer guarantees. Ms Kim spent significant time attempting to show that BCM's documents should not be believed because of the fraud she contends she has uncovered since this appeal was filed. Whilst difficult to follow to a conclusion which would establish the breaches alleged, Ms Kim alleged discrepancies between job cards from the workshop and invoices, such as in respect of the time the car was taken into the workshop and the time it left, and the inclusion on invoices of an email address now used by Ms Kim which she says she did not use at the time BCM performed work (although those invoices showing her email address were in evidence in the 2023 Proceedings and the 2024 Proceedings). The Appeal Panel attempted to focus Ms Kim's submissions on demonstrating errors of law or persuading the Tribunal of matters required to satisfy the Appeal Panel that leave should be granted to allow her to appeal against what she maintains were errors by the Tribunal in its findings of fact.
3. BCM, represented by Mr Ham, required a much shorter period of time to make his oral submissions, supplementing BCM's written submissions. Essentially BCM's argument was that there was no expert evidence relied upon by Ms Kim, the work the subject of the claims in the 2024 Proceedings was the same as that in the 2023 Proceedings, and to the extent fraud was alleged, discrepancies in the documents could be explained, for example, by work cards showing start times prior to an invoice being generated separately for the entire work without regard to actual times on job cards, said to be an administrative practice. The postdated inclusion of Ms Kim's email address in documents subsequently printed and produced in the earlier proceedings was said to be a function of the software updating personal customer data.

1. This ground was the primary basis upon which the Tribunal dismissed the 2024 Proceedings. If we find the Tribunal was correct in its application of this principle, the appeal should be dismissed.
2. We agree with the Tribunal's finding that Ms Kim's claims in the 2024 Proceedings were precluded by the doctrine of issue estoppel (broadly defined, although with some refinement offered in our reasons below), arising from the 2023 Proceedings.
3. A number of decisions of the Appeal Panel recognise that the common law principle of estoppel prevents a party raising an issue of fact or law (or the assertion of a right or obligation) in decisions of the Tribunal where those issues of fact or law have been previously raised: see, for example, Ravenscroft v Skinner [2016] NSWCATAP 107; Mae v Ho and Ors [2021] NSWCATAP 5 and Bauer v Farm Cove Investments Pty Ltd [2022] NSWCATAP 14. These cases rely upon the following statement of principle by the plurality of the High Court of Australia in Tomlinson v Ramsey Food Processing Pty Limited [2015] HCA 28 at [22]- [23] (footnotes omitted):

22. Three forms of estoppel have now been recognised by the common law of Australia as having the potential to result from the rendering of a final judgment in an adversarial proceeding. The first is sometimes referred to as "cause of action estoppel". Estoppel in that form operates to preclude assertion in a subsequent proceeding of a claim to a right or obligation which was asserted in the proceeding and which was determined by the judgment. It is largely redundant where the final judgment was rendered in the exercise of judicial power, and where res judicata in the strict sense therefore applies to result in the merger of the right or obligation in the judgment. The second form of estoppel is almost always now referred to as "issue estoppel". Estoppel in that form operates to preclude the raising in a subsequent proceeding of an ultimate issue of fact or law which was necessarily resolved as a step in reaching the determination made in the judgment. The classic expression of the primary consequence of its operation is that a "judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies". The third form of estoppel is now most often referred to as "Anshun estoppel", although it is still sometimes referred to as the "extended principle" in Henderson v Henderson. That third form of estoppel is an extension of the first and of the second. Estoppel in that extended form operates to preclude the assertion of a claim, or the raising of an issue of fact or law, if that claim or issue was so connected with the subject matter of the first proceeding as to have made it unreasonable in the context of that first proceeding for the claim not to have been made or the issue not to have been raised in that proceeding. The extended form has been treated in Australia as a "true estoppel" and not as a form of res judicata in the strict sense. Considerations similar to those which underpin this form of estoppel may support a preclusive abuse of process argument.

23. The present significance of the recognition of those three forms of estoppel is that each has the potential to preclude assertion of a right or obligation, or the raising of an issue of fact or law, between parties to a proceeding or their privies. Absent a principled basis for distinction - and none has been suggested - one principle must govern the identification of privies for the purpose of all forms of estoppel which result from the rendering of a final judgment in an adversarial proceeding.

1. The 2023 Proceedings involved allegations of breaches of duty in relation to the maintenance of the Old Engine and the installation of the New Engine and several general maintenance complaints including in respect of a steering hose. An element of the 2024 Proceedings also involved an expansion of complaints about maintenance issues including for parts not supplied in proceeding 2024/00310383. Those claims were alleged to have occurred as a result of breaches in February 2022, discovered in August 2023, according to that application. In the 2023 Proceedings decision, however, it is apparent on page 4 of the reasons that Ms Kim had alleged that BCM had not installed new or correct parts.
2. Ms Kim raised the issue of failure to supply parts or perform work properly in the 2023 Proceedings. The Tribunal made findings on that allegation as presented to it. Regardless of when Ms Kim may have subsequently discovered additional failures of this nature, it was open to Ms Kim to have investigated those failures at the time by making proper enquiries when preparing her evidence to make that allegation and raise what was the same issue - complaints about maintenance and parts supply. Ms Kim had obtained evidence in the 2023 proceedings from a mechanic, Mr Horner, who had observed missing bolts and leaks and examined the New Engine in October 2023. We consider that this cause of action was decided in the 2023 Proceedings, as were issues including and closely related to the making of factual findings in relation to that cause of action in the 2023 Proceedings. This renders the 2024 Proceedings subject both to cause of action estoppel and issue estoppel.
3. In any event, Anshun estoppel applies to any new issue raised in relation to BCM's repair and maintenance of Ms Kim's vehicle in the 2024 Proceedings. We consider that the issues raised and legal claims brought in the 2024 Proceedings were so connected with the subject matter of the 2023 Proceedings that it was unreasonable in the context of the 2023 Proceedings for all allegations not specifically brought in the 2024 Proceedings not to have been raised in the 2023 Proceedings.
4. No error of law has been demonstrated on this point.

1. No error of law has been demonstrated. Having made the finding that issue estoppel precluded this bringing of the 2024 Proceedings, warranting their dismissal, the Tribunal considered the ACL claim in the alternative. Because of the factual findings in relation to Ms Kim's evidence (namely its inadequacy), the Tribunal found that the ACL claims brought by Ms Kim could not be established. It was unnecessary in the circumstances to give consideration to the ACL in any detail.

1. As mentioned, we would not allow the appeal on Ground 1 alone (estoppel). Neither would we grant leave to appeal the findings of fact, and the alternate conclusion of the Tribunal that Ms Kim could not succeed because her facts did not prove the alleged breaches, for the following reasons.
2. The Tribunal's decision on our review was not against the weight of the evidence. That evidence, in its totality, does not preponderate so strongly against the conclusion found by the Tribunal at first instance that it was not one that a reasonable Tribunal Member could reach: Collins v Urban at [77].
3. We cannot escape the conclusion that Ms Kim is attempting to run her case again. An appeal does not however allow a losing party in the Tribunal to do that: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10]. The Tribunal's Guideline 1, Internal Appeals (which can be found on the Tribunal's website) notes: "... an appeal is not an opportunity to have a second go at a hearing".
4. In addition, leave to appeal is not granted simply because, if we were hearing the matter anew, we might reach a different conclusion: see Temple v AMR Motors Pty Limited [2017] NSWCATAP 221 at [38].
5. Furthermore, we are not satisfied that the Tribunal's findings and conclusions were not fair and equitable. Ms Kim has not identified a significant possibility or chance that was "fairly open" (Collins v Urban at [76]) to her for a more favourable result based on the evidence that she placed before the Tribunal.
6. Therefore we find that the appellant has not established that she may have suffered a substantial miscarriage of justice based on this ground of the appeal on any of the three grounds specified in cl 12(1) of Sch 4 of the NCAT Act. Leave to appeal is therefore not enlivened.
7. Even if our discretion had been enlivened, we would have refused to grant leave for the following reasons.

(1) First, this appeal involves no issue of principle or question of public importance or policy which might have general application.

(2) Secondly, nothing in the appellant's submissions satisfies us that the findings and conclusions of the Tribunal disclose a factual error which was unreasonably arrived at, or that there is a finding or conclusion which was clearly mistaken.

(3) Finally, there is nothing before us to suggest that the Tribunal has 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. Ms Kim seeks to persuade the Appeal Panel that significant new evidence has arisen which should persuade us to grant leave to appeal, being an element referred to in cl 12(1) of Sch 4 which might persuade the Appeal Panel to grant leave because the appellant may have suffered a substantial miscarriage of justice (in addition to those elements discussed at [65] and [68] above).
2. The new evidence is in the nature of information which Ms Kim contends exposes a fraud on the part of BCM. At the outset we note that is a serious allegation to make and it would be difficult to establish on the evidence we have seen.
3. Ms Kim says that since the Tribunal hearing, she has realised that documents from BCM contain an email address for Ms Kim which, at the time Ms Kim would have received the original invoice, she was not using email for communication with BCM. Ms Kim submits that this is evidence of fabrication of invoices by BCM. That email address is contained in documents used in the 2023 Proceedings. Investigations and submissions about the meaning of this alleged discrepancy should have been addressed in the 2023 Proceeding. The fact that Ms Kim did not think to make the submission based on her new insights does not entitle her to raise what is in effect a new submission, not new evidence.
4. So far as it might be relevant to the current appeal and the 2024 Proceedings, this allegation is connected with the focus of oral submissions discussed at [54] and [55] above, around discrepancies between invoices and job cards and the use of Ms Kim's email address. The suggestion by Ms Kim seems to be that all of the work undertaken by BCM should be viewed more cynically because of what Ms Kim contends has been an underlying deception. That does not follow. Even accepting Ms Kim's submission at its highest, that all invoices of BCM should not be accepted, does not lead to a conclusion that BCM breached its duties when performing work on Ms Kim's car. Furthermore it is not evidence which leads us to conclude that this is significant new evidence. There is no conclusion we can draw that the exclusion of this evidence and Ms Kim's new insights from this evidence may have caused a substantial miscarriage of justice, within the meaning of cl 12(1) of Sch 4 of the NCAT Act.
5. To the extent the 2023 Proceedings were decided on documents which were manufactured deceptively if one accepts Ms Kim's submission at its highest (which we do not), that would be a matter outside an appeal process and perhaps more connected with a separate cause of action addressing the perpetration of a fraud (which, we should emphasise, we make no finding nor offer advice on).
6. For the above reasons, Ms Kim has not established that the admission and fresh consideration of this new evidence would establish any of the discretionary matters required to satisfy us that leave to appeal should be granted on the criteria discussed above in relation to the alleged errors involved in fact finding.
7. Accordingly, leave to appeal on the basis of new evidence is denied.

1. Whether the Tribunal's decision was vitiated by bias or a reasonable apprehension of bias raises a question of law: Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 at [32].
2. Actual bias will not be made out by suspicions, possibilities or other equivocal evidence: Ikimdzhieva t/as C & L Upholstery Services v Fudala [2017] NSWCATAP 196 at [49]. We have considered the transcript of the Tribunal hearing. On our review of that transcript we have found no evidence of bias - for example, that the Tribunal prejudged this matter or closed its mind to any argument in support of Ms Kim's position.
3. The test for apprehended bias is objective. The question is whether a fair-minded lay observer might reasonably apprehend that the decision maker might not bring an impartial mind to the resolution of the question it is required to decide: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [6]- [7]; Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20 at [12], [57].
4. The way the allegation is advanced by Ms Kim, the failure by Ms Kim to persuade the Tribunal of her factual assertions seems on her submission to show the lack of impartiality. We do not consider that the hypothetical observer would be so sceptical of the Tribunal Member's reasons or conduct of the hearing as to apprehend that the Tribunal Member might not have brought an impartial mind to the determination of Ms Kim's application.
5. No error of law has been shown on this ground.

1. Whether there was a failure to afford procedural fairness raises a question of law: John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [13(4)].
2. Under s 38(2) and s 38(5)(c) of the NCAT Act, the Tribunal has a duty to conduct its hearings in a procedurally fair manner and to take such measures that are reasonably practical to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings.
3. The principles relevant to this ground of appeal were summarised by the Appeal Panel at [59] to [67] in Boreland v Brewis [2024] NSWCATAP 140. Relevantly:

(1) Procedural fairness requires that the Tribunal give the parties a fair hearing, and that it be free from actual or apprehended bias.

(2) The Tribunal must conduct a hearing that gives procedural fairness to both parties, even taking into account the less formal nature of Tribunal proceedings (s 38(4) and subs (5) of the NCAT Act). What is necessary and appropriate to ensure a fair hearing depends on the particular facts and statutory context, rules of procedural fairness being flexible and adaptable.

(3) Where there has been a breach of the requirement to afford the appellant procedural fairness, the question arises whether that error was material to the Tribunal's decision. A breach of procedural fairness will constitute jurisdictional error, if the error is material to the Tribunal's decision.

(4) Materiality is established if the procedural unfairness deprived the appellant of a realistic possibility of a different outcome on the application lodged.

1. The facts relied on by Ms Kim to assert procedural unfairness are:

(1) "The tribunal member unfairly delayed the decision, violating the applicant's right to a speedy trial".

(2) "Furthermore, the five-month delay in issuing the decision was procedurally unfair, depriving the applicant of control over the proceeding".

1. These facts do not establish procedural fairness has been denied and there has been no error on this ground.

1. No error of law or error of fact has been established by Ms Kim.
2. Accordingly, the Appeal Panel will make the following orders.

(1) To the extent that the appeal raises a question of law, the appeal is dismissed.

(2) To the extent that the appeal raises any other error, leave to appeal is refused and 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.