Knight v United Autos NSW Pty Ltd

1. The following materials were provided by the appellant to the Appeal Panel.

1. The Notice of Appeal was filed on 25 September 2024, within the required time under the Civil and Administrative Tribunal Rules 2014 (NSW) (NCAT Rules), being within 28 days of the day on which the appellant was given written reasons for or notified of the Tribunal's decision, whichever is the later in time. (r 25(4)(c) of the NCAT Rules).
2. The appellant indicates in the Notice of Appeal that leave of the Appeal Panel is sought for the appeal under s 80(2)(b) and cl. 12 of sch. 4 to the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) on the basis that the appellant may have suffered a substantial miscarriage of justice because:

(1) The decision was not fair and equitable (the first ground of appeal); and

(2) The decision was against the weight of evidence (the second ground of appeal); and

(3) Significant new evidence had arisen that was not reasonably available at the time of the Tribunal hearing (the third ground of appeal).

1. The appellant filed a bundle of documents on 31 January 2025. These documents were filed after the service date in the directions, being 23 December 2024.
2. The bundle consisted of the following documents:

(1) A 'post it' note containing a phone number for Frances King and a letter from Derek Hocking, which it was agreed were before the Tribunal; and

(2) A copy of the original application to the Tribunal;

(3) Copies of emails containing the appellant's arguments and excerpts from the sound recording of the Tribunal hearing, transcribed by the appellant;

(4) 12 colour photographs of the outside of the car, the engine bay and engine and an engine temperature gauge. Three of these photographs, being of the engine bay and engine, were not disputed as being before the Tribunal. It is unclear whether the photograph showing a temperature gauge indicating 'high', dated 4 October 2023, was before the Tribunal. The respondent denies it was before the Tribunal and the appellant could confirm with other evidence that it was before the Tribunal. The balance of the photographs, it was agreed, were not before the Tribunal; and

(5) two videos on the appellant's phone, showing footage of the engine bay and the outside body of the car. Again, it is unclear if the Tribunal viewed these videos. However, it was conceded by the respondent that some videos were shown to the Tribunal, and it could have been the same videos as submitted to the Appeal Panel.

1. It is accepted by both parties that several of the materials submitted were not before the Tribunal. 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. 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]).
2. The appellant has indicated the reason for the inclusion of the photographs taken after the Tribunal hearing was to reply to statements that the respondent had made in the hearing relating to the cosmetic condition of the car and not to the appellant's initial claims.
3. The appellant argued that the materials are relevant to challenge the credibility of the respondent's oral evidence at the Tribunal hearing. The respondent's written statement before the Tribunal did not include reference to cosmetic works and therefore the appellant could not reasonably have known that evidence in relation to cosmetic issues would be required.
4. After the foregoing position was ascertained, the respondent did not object to any of the appellant's submitted material.
5. We therefore, in the absence of objection, grant leave for the material just described to be relied upon in the appeal. However, it is a separate issue whether those photographs, of themselves or in addition to other material that was before the Tribunal, are sufficient to grant leave to appeal. That will be discussed later in the decision.

1. The respondent filed a Reply to Appeal on 11 October 2024, within the required time under NCAT Rules, being within 14 days of the respondent being notified of the appeal (r 26(5)(b) of the NCAT Rules).
2. The respondent resists the appeal in the Reply to Appeal and seeks that the appeal be dismissed.
3. The respondent filed a bundle of documents on 29 January 2025, consisting of 49 pages. It was not disputed that these documents were the respondent's full bundle before the Tribunal at the hearing.

1. The basis upon which appeals from decisions of the Tribunal may be brought is identified in s 80 of 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).

1. The meaning of a "question of law" was discussed in detail by the Appeal Panel in Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 (Cusumano) at [25]-[40]. A pure question of law does not depend on the facts found and the question of law must be, self-evidently, a question of law and not depend on the answer. A question of law is distinct from a mixed question of fact and law, for which leave to appeal is required. Examples of questions of law include the matters set out in Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [13] and _Cusumano a_t [32]. However, the categories of question of law are not closed. As was stated at Cusumano at [37]-[39]:

"What constitutes a question of law is vexed and context dependent in the sense that the distinction between matters of fact and of law may turn on the circumstances in which the question arises: Targeted Property Investments Pty Ltd v Look Up Technologies Pty Ltd (No 2) [2023] NSWSC 416 at [33(4)], citing Thomas and Naaz [2023] NSWCA 40 at [52] and Da Costa v The Queen [1968] HCA 51; (1968) 118 CLR 186 at 194; [1968] HCA 51.

For instance, a ground of appeal that raises the question whether there were adequate reasons may constitute an attack on the merits which would not raise a pure question of law. On the other hand, it may be a contention that the decision is unreasonable in the requisite sense or that the Tribunal failed to exercise the jurisdiction, which would likely raise a question of law: see the exposition of this issue in Wollondilly at [28]-[32]. Care must in any event be taken. As has been clarified by amendment to the NCAT Act since Prendergast was decided, the Tribunal is not required to give reasons for all decisions it makes: NCAT Act, s 62(2A; see too: New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 at [53]-[54], [109]-[114].

Therefore, discernment and care must be taken to ensure the grounds relied upon by the appellant, properly understood, raise questions of law and arise in the proceedings; or whether leave is required."

1. We have engaged in the process of considering whether there is a question of law that has in fact been raised (see also Cominos v Di Rico [2016] NSWCATAP 5 at [13]). We consider that the only question of law raised by the appellant is whether the decision was so unreasonable that no reasonable decision maker would make it.

1. Clause 12 of Sch 4 to the NCAT Act provides that the Appeal Panel may grant leave to appeal a decision from the Consumer and Commercial division (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. The principles to be applied by an Appeal Panel in determining whether leave to appeal should be granted are well settled. In Collins v Urban the Appeal Panel concluded at [84] that:

(1) 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: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45];

(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. 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. The first ground of appeal raised by the appellant was that the decision was not fair and equitable, as the member had preferred the evidence of the respondent over that of the appellant. The appellant alleged the respondent had misrepresented evidence around the e-AUVIS check (blue slip). The respondent had provided a blue slip dated 3 October 2023 for the vehicle in its evidence bundle. The appellant argued that the blue slip was fraudulent as the assessor, Big Wheel Tyre & Auto Service Minchinbury, was the same entity as Minchinbury Automotive, who had not completed any works for the respondent since 2022. Therefore, the respondent's evidence should be deemed unreliable, and it was not fair and equitable to prefer the respondent's evidence.
2. Additionally, the appellant claimed that no money was spent on the cosmetics of the car by the respondent prior to the sale and the respondent misled the member in the Tribunal hearing with the oral evidence led for the respondent.

1. The appellant submitted the decision was against the weight of evidence because the appellant had provided photographs and a video of the engine overheating on the drive home, the day he collected the vehicle from the respondent, to the Tribunal. Additionally, the appellant referred to the blue slip and cosmetic issues raised above in the first ground of appeal.

1. It was submitted by the appellant that significant new evidence had arisen that was not reasonably available at the time of the Tribunal hearing. The evidence referred to appeared to be the photograph of the temperature gauge reading high and the reply evidence (photographs) related to the cosmetic issues the appellant claims the respondent raised with the Tribunal at the hearing.

Fourth Ground (Purported Error on a Question of Law)

1. The fourth ground of appeal, identified by the Appeal Panel on examination of the appellant's documents, is whether the decision was so unreasonable that no reasonable decision maker would make it. The appellant submitted the photograph of the temperature gauge showing high, the videos of the overheating and the misleading responses of the respondent indicated that the decision was unreasonable and would not have been that of a reasonable decision maker.

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. Although we are unable to discern any basis for the claim the decision was not fair and equitable, the issues raised by the appellant are considered below.
2. The appellant has raised that the blue slip had been assessed by Minchinbury Automotive, who had intimated to the appellant through a representative that they had not performed works for the respondent since 2022. Therefore, the appellant submitted the blue slip in evidence was fraudulent. The appellant submitted that the member should have then found the respondent's evidence unreliable and preferred the appellant's evidence for this reason.
3. The blue slip, completed on 3 October 2023, lists the assessor as Big Wheel Tyre & Auto Service Minchinbury. The appellant has not provided any supporting documentation to demonstrate that Big Wheel Tyre & Auto Service Minchinbury and Minchinbury Automotive are the same entity or have any relationship.
4. The appellant has not included in his evidence any statements from any representative of Minchinbury Automotive.
5. Minchinbury Automotive completed the e-safety check (pink slip) in 2022 on the vehicle. The address listed for Minchinbury Automotive was not the address listed for Big Wheel Tyre & Auto Service Minchinbury on the blue slip. The respondent gave oral evidence that they are two different entities and, to the best of his knowledge, were not related.
6. In relation to the claim the respondent did not spend any money on the cosmetics of the car prior to the sale, it would appear this allegation was made in response to the respondent's oral testimony at the Tribunal hearing. The applicant alleged the respondent gave oral evidence that the car was sold in good condition.
7. We note a full transcript of the Tribunal hearing was not provided by the appellant. No further explanation was offered by the appellant as to how the claim of 'no money spent on cosmetics by the respondent' related to a claim that the decision that was not fair and equitable. No further explanation was offered on how this issue related to the claim made by the appellant in the original application.
8. Although the appellant raised that the respondent had made misrepresentations to the Tribunal in the respondent's oral evidence, a full transcript of the Tribunal hearing was not provided. Limited extracts of the conciliation hearing (to which we cannot have regard) and the formal hearing were provided, but it is not clear as to how these extracts demonstrate the respondent misled the Tribunal at the formal hearing.
9. We are not persuaded this ground of appeal was made out.

1. The Appeal Panel in Collins v Urban at [77] 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 video in which the applicant claims the vehicle was overheating was shown to the Tribunal and referred to in the decision at [47], where the member indicated that he was not persuaded by the video that coolant was leaking from the engine or that the engine was overheating.
2. The appellant indicated that he thought the photograph of the engine temperature gauge, showing the engine temperature as high, was before the member at the hearing. The respondent disputed this was the case and the appellant conceded the photograph may not have formed part of his evidence at the hearing.
3. The member referred to a photograph of the engine temperature gauge at [49] of the decision; however, the member is clear that the photograph showed the temperature as mid-way between upper and lower. This is consistent with the respondent's position that the photograph showing an engine temperature gauge overheating was not before the member.
4. We also note that the photographs provided do not show steam, or any other vapour or liquid substance, coming from the engine, nor any other evidence of coolant dripping in the engine or engine bay. The photographs of the engine and engine bay do not demonstrate signs the engine was overheating.
5. Additionally, the Appeal Panel does not have the full transcript to determine what oral evidence was given at the Tribunal hearing.
6. On the evidence available to the Appeal Panel, we are not persuaded that the Tribunal gave insufficient weight to the appellant's evidence or that the conclusions of the member were not ones that a reasonable Tribunal member could reach.

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 photographs that the appellant said that he submitted in reply to comments the respondent had made at the Tribunal hearing are undated. The appellant has indicated the dates of the photographs are during October 2024, soon after the Tribunal hearing. The appellant's claim before the Tribunal did not include cosmetic issues.
2. Neither party provided a full transcript of the Tribunal hearing. The limited excerpts provided by the appellant do not include comments by the respondent relating to the cosmetic issues alleged by the appellant to have been raised by the respondent. These photographs do not provide any probative value for the determination of the credibility of the respondent's oral evidence at the Tribunal hearing, nor is there sufficient evidence before the Appeal Panel to make a finding on credibility.
3. The photograph of the vehicle temperature gauge reading high was also submitted by the appellant as significant evidence of overheating. The respondent indicated this photograph had not been put to the Tribunal at the hearing. The appellant could neither confirm nor deny this position.
4. The appellant then submitted that this evidence was significant new evidence and that, had the Tribunal member considered this evidence, 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. The date on the photograph is shown to be 4 October 2023.
5. The appellant did not dispute that the photograph was available to the appellant to provide to the Tribunal for the hearing and that the appellant had appeared to have failed to do so.
6. The respondent also pointed out that the photograph does not show enough of the vehicle to demonstrate that the gauge photographed did belong to the vehicle the subject of the Tribunal hearing. It was noted that the appellant did own other vehicles of the same or similar type, with gauges that looked the same or similar.
7. The respondent also noted that the other evidence provided by the appellant, namely, the videos and the photograph of the temperature gauge reading normal, do not support that the vehicle was overheating. Additionally, it was agreed that the appellant had texted the photograph showing the temperature gauge as reading normal to the respondent on the day the appellant collected the vehicle after the sale. It was agreed that this contradictory evidence was before the Tribunal.
8. We are not persuaded that the photograph of the temperature gauge showing high constitutes significant new evidence not reasonably available to the appellant at the time of the Tribunal hearing nor that the appellant may have suffered a significant miscarriage of justice.
9. Additionally, had the photograph been before the Tribunal, the Appeal Panel is not persuaded that the Tribunal gave insufficient weight to the appellant's evidence nor that the conclusions of the Tribunal were not ones that could reasonably be made.
10. Given our findings, it is not necessary to consider issues which go to the Appeal Panel's discretion to grant leave.

1. The issues relating to the fourth ground of appeal appear to relate to the photograph showing a high temperature reading, the video evidence of the appellant and a submission in relation to the unreliability of the respondent's oral evidence.
2. The Appeal Panel is not persuaded on this ground as the issues raised in relation to this ground have been dealt with above in the first three grounds of appeal.

1. The Appeal Panel has determined, for the reasons above, that leave to appeal should not be granted and the appeal should be 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.