Murray v Bennton Pty Ltd t/as South Coast Boatshed

1. This appeal concerns a consumer claim for work done by the respondent in relation to the appellant's boat engine. The boat engine is a 2008 Mercruiser 350 MAG.
2. The original work done by the respondent was the subject of an invoice dated 22 December 2022 for the sum of $7,134.58, which the Tribunal in the primary proceedings described as "the rebuild of the boat engine" (at [23]). In September 2024, the appellant commenced proceedings in the Tribunal in respect of the contract to carry out that work. In those proceedings, the appellant alleged that the job had not been done correctly, he had been told that the respondent had to pull the engine apart several times but it had not been fixed.
3. On 22 October 2024, the Tribunal made consent work orders in those proceedings. These required the respondent to undertake all necessary repairs to make good the engine and install the engine on the boat so that the boat operated. In late November 2024, the appellant sought renewal of those proceedings on the basis that the work orders had not been complied with.
4. The order the subject of the appeal was issued in those renewed proceedings on 22 July 2025. It was an order that the respondent pay the appellant the sum of $10,771.03, immediately.
5. On appeal, the appellant contends that this damages amount ordered was too low. He contends that this amount awarded does not compensate him for the true loss he suffered.
6. The money order was an amended order of an order made on 17 July 2025 (said to have been amended pursuant to s 63 of the Civil and Administrative Tribunal Act 2013). No issue has arisen concerning the power to make the amended order, although we note that the amended order reduced the quantum of damages awarded from the sum of $25,997.552 to $10,771.03.
7. In the primary proceedings the appellant was successful in obtaining a finding by the Tribunal that the work carried out by the respondent did not comply with the guarantee of due care and skill in respect of the supply of services set out in s 60 of the Australian Consumer Law, NSW (ACL).
8. The amount ordered to be paid under the amended order was made up of two amounts. First, an amount of $7,134.58 for a refund of monies paid to the respondent for what was described as "engine rebuild services". Secondly, an amount of $3,636.45 for reimbursement of monies spent by the appellant in repairing the boat engine after these services had been supplied. No issue arose on the appeal concerning the correctness of an award of damages that includes this second amount of $3,636.45.
9. It is sufficiently clear from the Tribunal's reasons that it accepted that the consequence of the respondent's failure to comply with the guarantee of due care and skill was that the engine needed to be replaced. As to this, having referred to a report from Nautilus Marine Insurance that the workmanship on the engine was bad and the motor needed to be replaced (at [36]), the Tribunal stated at [37]:

A report from Phoenix Boats affirms the finding of Nautilus Marine Insurance. Based on these findings, I am satisfied that the applicant has discharged the onus and I find that the [respondent] failed to provide the service with due care and skill. I also find that the services provided by the [respondent] caused the applicant's loss.

1. Furthermore, the Tribunal found that the respondent's services "caused the loss of the engine suffered by the applicant." (at [40]).
2. The Tribunal, nevertheless, proceeded to award damages on a different basis than the cost of replacement. The reasoning of the Tribunal in relation to assessment of loss was as follows:

38. Given that the current engine in the boat is no longer manufactured by the manufacturer, the applicant obtained a quote for the cost of the updated engine being $24,570.00, and the cost of a similar engine in the amount of $22,361.00. The updated engine has a bigger displacement than the engine it replaces and used the same digital throttle and shift system as the current engine. The similar engine, which is cheaper than the updated engine, is a mechanical version of the current boat engine. However, there is no evidence before me as to the value of the current engine before it was serviced by the [respondent] or when the engine was manufacturer (sic). At the highest the applicant's loss is the value of the service he paid to the [respondent].

40. In those circumstances, I find the applicant has spent $3,636.45 to diagnose and repair the faults in the engine and damage to the wiring caused by the removal and installation of the engine. I also find that the services provided by the [respondent] caused the loss of the engine suffered by the applicant and that the [respondent] ought to compensate the applicant for said loss in the amount of $7,134.58.

1. Under s 80 (2) (b), the appellant has a right of appeal on any question of law. Otherwise, he requires leave (permission) to appeal.
2. Because of the decision we have arrived at, as explained below, it is unnecessary for us to consider the appellant's application for leave to appeal in which he sought to meet the requirements for leave to appeal from a decision of the Consumer and Commercial Division of the Tribunal, as set out in cl 12 of Schedule 4 of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act).
3. As appears from his Notice of Appeal lodged on 30 July 2025 the essence of the appellant's challenge to the damages awarded appears from the following as set out in the section concerning Grounds of Appeal:

This is not enough to cover the cost of getting my engine replaced due to bad workmanship on the engine. The cost to replace the engine they destroyed outweighs the refund amount.

1. In his Notice of Appeal the appellant did not articulate any question of law. This is not surprising given that the appellant has no legal qualifications and is self- represented. In Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 at [25] the Appeal Panel addressed the requirements concerning the need to establish that an appeal raises a question of law. We have applied those requirements in respect of this appeal. In particular, we note the Appeal Panel's reference to the fact that in many cases involving an unrepresented litigant the Appeal Panel itself has considered whether a question of law is raised from the materials and submissions presented on the appeal. That is what has occurred in this case.
2. As explained below, we consider that the appeal raised a question of law as to whether the Tribunal asked itself the right question, or misdirected itself, as to the correct approach to the assessment of loss.

Ground of appeal on a question of law-consideration

1. The appellant did not claim a refund of the amount paid for the services, but this was the amount awarded by the Tribunal (along with the costs of diagnosing and attempting, unsuccessfully, to repair the respondent's work).
2. In taking this approach, it may be that the Tribunal had in mind s 267 (3) (b) of the ACL, which provides:

(3) If the failure to comply with the guarantee cannot be remedied or is a major failure, the consumer may:

(b) by action against the supplier, recover compensation for any reduction in the value of the services below the price paid or payable by the consumer for the services.

1. However, it was sufficiently clear that the appellant's claim was for replacement cost (along with other consequential costs of the diagnosis and attempted repair) pursuant to s 267 (4), which provides:

(4) The consumer may, by action against the supplier, recover 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.

1. On the facts, a question of betterment, potentially, arose, at least, because one of the quotes the appellant put forward as a replacement cost was a quote from Shoalhaven Marine in the amount of $24,570.00 for a new engine (a 6.2L 300 Bravo DTS).
2. In relation to that betterment issue the following principles were applicable, as expressed by Ball J and accepted by the Court of Appeal in Renown Corporation Pty Ltd v SEMF Pty Ltd [2022] NSWCA 233 at [29], namely:

"[55] In Tyco Australia Pty Ltd v Optus Networks Pty Ltd & Ors [2004] NSWCA 333 at [260] ff, Hodgson JA, in a passage referred to with approval by the Court of Appeal in Walker Group Constructions Pty Ltd v Tzaneros Investments Pty Ltd [2017] NSWCA 27 at [201], said that there were two circumstances in which an allowance for betterment would be made. The first is when a plaintiff chooses to acquire a more valuable asset than the one that is being replaced. The second is when "even if there is no alternative available to a plaintiff other than to acquire a more valuable asset, a plaintiff may have to give credit reflecting the greater value of this asset to the plaintiff, if there is a benefit to the plaintiff which is not remote in time or speculative, and which can be quantified": Tyco at [262].

1. In this case, it would seem that the second circumstances might be applicable, namely where there was no alternative for the appellant but to acquire a more valuable asset.
2. The respondent bore the onus of establishing a betterment; see per Bathurst CJ in Walker Group Constructions Pty Ltd v Tzaneros Investments Pty Ltd [2017] NSWCA 27 at [201] referring to Hodgson JA in Tyco Australia Pty Ltd v Optus Networks Pty Ltd [2004] NSWCA 333 at [260].
3. The Tribunal did not apply these principles and as a consequence made an error of law.
4. On appeal, we were not supplied with all of the evidentiary material placed before the Tribunal concerning the assessment of loss. Furthermore, the parties may wish to adduce further evidence concerning this question in light of the correct principles. The question as to what further evidence on this issue should be permitted will be a matter for the Tribunal on the redetermination.
5. The question of the amount of damages payable by the respondent to the appellant in respect of the replacement cost of the engine, pursuant to s 267 (4) of the ACL, will have to be redetermined by the Tribunal in accordance with the law. We do not consider that this necessitates redetermination by a differently constituted Tribunal in view of the nature of the error that occurred.

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

(1) The appeal is allowed.

(2) The amended order made by the Tribunal issued on 22 July 2025, correcting the order made on 17 July 2025, is set aside but only in so far as the amount awarded in the sum of $10,771.03 includes the amount of $7,134.58.

(3) The question as to the additional amount of damages payable by the respondent to the appellant, pursuant to s 267 (4) of the ACL, in respect of the replacement cost of the engine is to be remitted to the Tribunal for redetermination on such evidence as the parties file and serve in accordance with the directions and rules for that hearing.

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.