Smith v Ozzy's Cheapest Cars Pty Ltd

Background to appeal

1. On 3 June 2018 the appellant took delivery of a used 2013 Toyota Landcruiser for which he had paid (on 1 and 3 June 2018) the respondent a total of $52,499. The odometer reading at time of delivery was 203,054km, which was over the 160,000km limit for a dealer warranty under the Motor Dealers and Repairers Act 2013 (NSW).
2. There was no issue at the primary hearing and on appeal that the Tribunal had jurisdiction. The claim was made under the Australian Consumer Law (NSW) (ACL) which is part of the law of NSW under s 28 of the Fair Trading Act 1987 (NSW) (FTA). As defined in FTA Pt 6A, the appellant was a consumer and the respondent a supplier, the supply of the vehicle was in NSW, the claim was a consumer claim for one of the available statutory remedies and was in time and under the Tribunal's monetary limit.
3. The appellant had discussed the purchase of the vehicle with a representative of the respondent four times over the month before purchase. The appellant intended to use the vehicle to tow a caravan. The representative said that Landcruisers were the best vehicle for the job, having high towing capacity, and that it was a good vehicle that would suit the appellant's purpose. The appellant did not obtain a pre-purchase inspection report.
4. After having a flat battery replaced at the respondent's cost the day after delivery, the appellant drove the vehicle from the respondent's yard in Penrith to his home in Bateau Bay. As found unchallenged by the primary member at [21], on 5 July 2018, just over a month after delivery, the appellant had the vehicle serviced at 205,385km. The servicing mechanic made no report of suspected "dusting", a condition where dust gets around or through the air filter into the engine, causing excessive use of oil, as further explained below.
5. In late August 2018 approximately, the appellant again had the vehicle serviced, with no indication in the evidence of any adverse report by the mechanic about the vehicle's condition, and on 31 August 2018 set off with his family, towing their caravan, first for Ocean Beach holiday park then on to Fingal Bay holiday park. This was to be the start of a working holiday with the family for a year, travelling around Australia. On 2 September 2018 they drove on to Port Macquarie holiday park, towing their caravan. On 2 September 2018, just before arriving in Port Macquarie, the oil light came on and the appellant topped up the oil. On 25 October 2018, a mechanic fitted a "catch can" to the vehicle to catch oil and noted dust beyond the air filter, and indicated that the vehicle might be "dusted". The mechanic replaced the air filter with a genuine Toyota part and the recommended fuel additive was used. It seems, from the expert evidence reviewed below, that the air filter being replaced was the incorrect size and not seated correctly.
6. "Dusted" was explained in the evidence as a condition where dust gets through the air filter and into the engine itself, making the oil viscous and causing damage to the working parts of the engine and possibly the engine block itself.
7. On 26 November 2018 the vehicle was serviced at 213,322km, just over 10,000km and nearly 6 months after delivery. After that service the appellant contacted the respondent to say that the engine may be "dusted". It is not clear from the material before us whether or not this was a result of the service report on 25 October 2018 alone or whether there was a further report about "dusting" on 26 November 2018.
8. On 1 December 2018 the appellant requested the respondent's assistance to rectify the issue. On 3 December 2018 the appellant took the vehicle to the respondent's Central Coast dealer who indicated that the engine needed to be fully rebuilt or replaced due to excessive "blow by" which we infer was the same condition as "dusting". The respondent refused to rectify because of the lapse of time and the distance travelled since delivery.
9. After this refusal the appellant continued to drive the vehicle interstate until at least early March 2019 when the odometer read 214,073km. He said the vehicle went into "limp mode" with a loss of compression. He had the engine reconditioned on about 18 April 2019 at a cost of $17,243.15. He claimed this amount, cost of oil used, and losses through accommodation not being able to be used, alternative accommodation and hire car costs and loss of income.
10. The appellant said that, some time after purchase, he contacted the previous owner who said that the vehicle had been used to tow horse floats. He also spoke to a previous servicing mechanic for the vehicle in Gundagai who, he said, told him that the vehicle had been "burning a bit of oil before [the previous owner] sold it, but they all do that". He said that he did not drive the vehicle off-road. He provided a number of photographs of what he said he believed was his vehicle being used in a dusty environment before he bought it.
11. The expert mechanic called by the appellant had not personally inspected the vehicle but viewed a number of photos provided by the appellant, including of an air filter fitted to the appellant's vehicle that was the incorrect size and not seated correctly and of a genuine Toyota air filter. He said that some mechanics use compressed air to clean the air filter and that this could blow holes in the filter element paper and blow away sealing of the filter. He said that "dusting" could occur from driving on dusty roads with a defective air filter in place and could take several months, but he also conceded as follows: he could not say when the damage to the air filter occurred that allowed the dust to enter the engine; one might reasonably expect to pick up "dusting" when the oil light came on (showing a problem with oil pressure), and that it was "correct" that upon an engine being "dusted" the light would come on quickly, with or without towing anything.

The primary decision

1. Having recited the facts as he found them (largely along the lines above and largely unchallenged as to the primary facts), and the applicable provisions of the ACL, the primary member at [24] said "Taking into account the whole of the evidence, including the oral and documentary evidence, the Tribunal is not satisfied to the requisite standard of proof that the representations made by the respondent, which were of a general nature, were misleading or deceptive, or likely to mislead or deceive".
2. At [25] the primary member found that the appellant had to establish under ACL s 259 a major failure to comply with applicable consumer guarantees to obtain the relief sought. This required the Tribunal to determine the nature and extent of the failure and the appellant's expert evidence was deficient in this respect, "indicating the exact nature and extent of damage could only be determined after the engine was removed from the vehicle and stripped down. Moreover, taking into account that the vehicle was driven for three months and several thousand kilometres before the problem occurred, and that the expert evidence could not specify when the damage to the air cleaner element happened, which in turn likely allowed the dust to enter the engine, the Tribunal is not satisfied the vehicle was sold with a major failure".
3. At [26] the primary member was not satisfied that the appellant had proved to the required standard of proof (balance of probabilities) that the vehicle was not of acceptable quality or not fit for the disclosed purpose in contravention of the consumer guarantees in, respectively, ACL ss 54 and 55: "As noted above, the evidence, including the expert evidence of the applicant is insufficient for the Tribunal to conclude that the engine was defective when sold".
4. Accordingly, the primary member dismissed the claim.

Applicable law

1. The ACL provides, in respect of the supply of goods to a consumer, guarantees that the goods supplied are of acceptable quality (ACL s 54), are reasonably fit for any expressly or implicitly disclosed purpose or supplier-represented purpose (s 55), and correspond with the description by which the goods are supplied (s 56). Where these guarantees are not complied with, the consumer has rights pursuant to ACL ss 259-264 to remediation, to compensation for reasonably foreseeable loss or damage arising by reason of the non-compliance, and, in the case of a major failure, the right to reject the goods and obtain a refund, provided that such right to claim a refund is exercised within the "rejection period".
2. The ACL provides, in respect of the supply of services to a consumer, guarantees that the services were supplied with due care and skill (ACL s 60) and were reasonably fit for any expressly or implicitly disclosed purpose or result (s 61). Where these guarantees are not complied with, the consumer has rights pursuant to ACL ss 267-269 to remediation, to compensation for reasonably foreseeable loss or damage by reason of the non-compliance and, in the case of a major failure, or another failure which has not been remedied by the supplier as required, the right to obtain a refund, provided that such right to claim a refund is exercised within the "rejection period".
3. Section 64 of the ACL provides that the consumer guarantees cannot be excluded; however, s 64A permits the contractual limitation of the remedies for breach of a consumer guarantee if the goods or services are of a kind not ordinarily acquired for personal, domestic or household use or consumption.
4. In Safi v Heartland Motors Pty Ltd t/as Heartland Chrysler [2016] NSWCATAP 80 at [85]-[107] the Appeal Panel analysed the case law on what constituted a major failure under the consumer guarantee provisions of the ACL mentioned above, summarising its conclusions at [99]-[102]. The Panel rejected the view that any breach of the guarantee of acceptable quality is a major failure. Under s 260(a), the test is objective. A series of individual or specific defects taken as a whole may constitute a major failure. The cost of repairs relative to purchase price and the nature of the defect are factors. Of particular significance is whether the defects are "teething problems" or go beyond that in terms of extent, timing and frequency of repair: that is, whether or not the defects can be remedied easily and in a timely manner. Overall, the test is whether, faced with advance knowledge of the problems and what was needed in terms of time, costs and degree of difficulty to fix them, a reasonable consumer would have bought the goods or bought nothing or something else.
5. Under ACL s 260(a), the rejection period for goods that are subject to a major failure is the period from the supply of the goods within which it would be reasonable to expect the relevant failure to comply with a consumer guarantee to become apparent, having regard to the type and likely use, and length of time and amount of use before a failure would reasonably become apparent. For a major failure constituted by chronic or repetitive defects taken as a whole, such a period is likely to be longer than for a single catastrophic defect. If there is a major failure, the consumer's entitlement to a refund is not dependent on proof of loss: Ferraro v DBN Holdings Aust PL t/as Sports Auto Group [2015] FCA 1127.
6. ACL s 18 prohibits misleading or deceptive conduct in trade or commerce. A person who suffers loss or damage by reason of a breach of s 18 may recover damages for loss caused by the misleading conduct under ACL s 236 and may also obtain other relief under ss 237 and 243 which may include an order for a refund (s 243(d)).

Grounds of appeal and conduct of appeal

1. The Notice of Appeal lodged, in time, on 18 July 2019 said that it challenged the only order made in the primary decision of 20 June 2019, which dismissed the application because the Tribunal was not satisfied that there was a breach of the relevant provisions of the ACL.
2. The grounds for that challenge were, in summary, as follows: 1. Failing to appreciate the difference between the oil pressure light and the low oil light and the significance of that difference. 2. Failing to appreciate the effect of the report of the mechanic who stripped down and rebuilt the engine in April 2019 on the question of the nature of the failure (major or minor). 3. Failing to take into proper account that the expert mechanic was (reportedly) told by the pre-supply servicing mechanic that the engine was "dusted" pre-supply. 4. Failing to take into proper account that the use of the vehicle after supply and before identification of the problem was not such that the vehicle could have become "dusted" after supply.
3. These were put forward as errors of law, being inadequate reasons, or decisions on central matters of evidence, or conclusions, that were beyond the range of reasonableness because they misconstrued or misunderstood or did not take into account these matters or were unreasonable, illogical or irrational. In the alternative, they were put forward in support of a grant of leave to argue them as errors of fact because they were given insufficient weight.
4. The notice of appeal was clearly set out and both parties argued their case on appeal with clarity and informativeness, of which we are appreciative.
5. We were provided, in accord with directions made prior to the hearing of the appeal, with the evidence before the primary member, being the evidence on which parties wished to rely. This included extracts from the oral evidence. Both parties sought to adduce further evidence on appeal.

Applicable legal principles

1. Section 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (CATA) states: (2) Any internal appeal may be made: (a) in the case of an interlocutory decision of the Tribunal at first instance - with the leave of the Appeal Panel, and (b) in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance - as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds.
2. Clause 12 of Schedule 4 to CATA states: An Appeal Panel may grant leave under section 80 (2) (b) of this Act for an internal appeal against a Division decision only if the Appeal Panel is satisfied 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).
3. A Division decision is a primary decision of the Consumer and Commercial Division. The primary decision here is such a decision.
4. A question of law may include, not only an error in ascertaining the legal principle or in applying it to the facts of the case, but also taking into account an irrelevant consideration or not taking into account a relevant consideration, which includes not making a finding on an ingredient or central issue required to make out a claimed entitlement to relief: see Chief Executive Officer of Customs v AMI Toyota Ltd (2000) 102 FCR 578 (Full Fed Ct); [2000] FCA 1343 at [45], applying the statement of principle in Craig v South Australia (1995) 184 CLR 163 at 179.
5. These categories are not exhaustive of errors of law that give rise to an appeal as of right. In John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [13], the Appeal Panel enunciated the following as specifically included: 1. whether the Tribunal provided adequate reasons; 2. whether the Tribunal identified the wrong issue or asked the wrong question; 3. whether it applied a wrong principle of law; 4. whether there was a failure to afford procedural fairness; 5. whether the Tribunal failed to take into account a relevant (that is, a mandatory) consideration; 6. whether it took into account an irrelevant consideration; 7. whether there was no evidence to support a finding of fact; and 8. whether the decision was legally unreasonable.
6. The "no evidence" ground must identify that there is no, or substantially inadequate, evidence to support a "critical" or an "ultimate" fact in order to constitute a jurisdictional error (a form of error of law): AAI Ltd trading as GIO as agent for the Nominal Defendant v McGiffen (2016) 77 MVR 348; [2016] NSWCA 229 at [81]; Jegatheeswaran v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 263; [2001] FCA 865 at [52]-[56].
7. A failure to deal with evidence may also in the appropriate circumstances be characterised as a failure to have regard to a relevant consideration or a failure to have regard to critical evidence. It is generally not mandatory to consider particular evidence: Rodger v De Gelder (2015) 71 MVR 514; [2015] NSWCA 211 at [86]; Allianz Australia Insurance Ltd v Cervantes (2012) 61 MVR 443; [2012] NSWCA 244 at [15] per Basten JA (McColl and Macfarlan JJA agreeing). However, by s 38(6)(a) of the NCAT Act, the Tribunal "is to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings." This obligation includes an obligation to have regard to material which has been disclosed to the Tribunal and which is relevant to the facts in issue, at least where that material is of some significance. Further, at common law, where a decision-maker ignores evidence which is critical to an issue in a case and contrary to an assertion of fact made by one party and accepted by the decision-maker, this is an error of law: Mifsud v Campbell (1991) 21 NSWLR 725 at 728; Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [62]-[63]; Eadie v Harvey [2017] NSWCATAP 201 at [61]-[62].
8. Legal unreasonableness can be concluded if the Panel comes to the view that no reasonable tribunal could have reached the primary decision on the material before it: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 230; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at 364 [68]). A failure properly to exercise a statutory discretion may be legally unreasonable if, upon the facts, the result is unreasonable or plainly unjust: Li (2013) 249 CLR 332 at 367 [76]). There is an analogy with the principle in House v The King (1936) 55 CLR 499 at 505 that an appellate court may infer that there has been a failure properly to exercise a discretion "if upon the facts [the result] is unreasonable or plainly unjust" and legal unreasonableness as a ground of judicial review: Li at 367 [76]. Further, there is some authority to the effect that unreasonableness as a ground of review may apply to factual findings, although this has not been finally resolved: see Pilbara Infrastructure Pty Ltd v Economic Regulation Authority [2014] WASC 346 at [153]; Wehi v Minister for Immigration and Border Protection [2018] FCA 1176 at [29]; Legal Profession Complaints Committee v Rayney [2017] WASCA 78 at [193].
9. The Appeal Panel has stated that, in circumstances where an appellant is not legally represented, it is appropriate for the Tribunal to look at the grounds of appeal generally, and to determine whether a question of law has in fact been raised, subject to any procedural fairness considerations in favour of the respondent: Prendergast at [12].
10. Turning to errors of fact, in Collins v Urban [2014] NSWCATAP 17, after an extensive review from [65] onwards, an Appeal Panel stated at [76]-[79] and [84(2)] as follows: "74 Accordingly, it should be accepted that a substantial miscarriage of justice may have been suffered because of any of the circumstances referred to in cl 12(1)(a), (b) or (c) 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. 75 As to the particular grounds in cl 12(1)(a) and (b), without seeking to be exhaustive in any way, the authorities establish that: (1) If there has been a denial of procedural fairness the decision under appeal can be said to have been "not fair and equitable" - Hutchings v CTTT [2008] NSWSC 717 at [35], Atkinson v Crowley [2011] NSWCA 194 at [12]. (2) 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 - Calin v The Greater Union Organisation Pty Ltd (1991) 173 CLR 33 at 41-42, Mainteck Services Pty Limited v Stein Heurtey SA [2013] NSWSC 266 at [153]. … 78 If in either of those circumstances the appellant may have been deprived of a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved then the Appeal Panel may be satisfied that the appellant may have suffered a substantial miscarriage of justice because the decision was not fair and equitable or because the decision was against the weight of the evidence. 79 In order to show that a party has been deprived of a "significant possibility" or a "chance which was fairly open" of achieving a different and more favourable result because of one of the circumstances referred to in cl 12(1)(a), (b) or (c), it will be generally be necessary for the party to explain what its case would have been and show that it was fairly arguable. If the party fails to do this then, even if there has been a denial of procedural fairness, the Appeal Panel may conclude that it is not satisfied that any substantial miscarriage of justice may have occurred - see the general discussion in Kyriakou v Long [2013] NSWSC 1890 at [32] and following concerning the corresponding provisions of the [statutory predecessor to CATA (s 68 of the Consumer Trader and Tenancy Tribunal Act)] and especially at [46] and [55]. … 84 The general principles derived from these cases can be summarised as follows: … (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."
11. The question of what constitutes significant new evidence not reasonably available at the time the proceedings under appeal were being dealt with was considered by an Appeal Panel in Owen v Kim [2017] NSWCATAP 26. In that appeal the Appeal Panel stated at [37]-[39]: "37 In Owners - SP 76269 v Draybi Bros Pty Ltd [2014] NSWCATAP 29 the Appeal Panel stated at [109] in connection with cl 12(1)(c) of Schedule 4 to the Civil and Administrative Tribunal Act: '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.' 38 In Leisure Brothers Pty Ltd v Smith [2017] NSWCATAP 11 the Appeal Panel stated at [40]: 'The meaning of this clause was considered by the Appeal Panel in Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111. At [23] - [24] the Appeal Panel said: '23 Unlike the WIM Act, the expression "reasonably available" is not qualified by the words "to the party". This difference suggests that the test of whether evidence is reasonably available is not to be considered by reference to any subjective explanation from the party seeking leave but, rather, by applying an objective test and considering whether the evidence in question was unavailable because no person could have reasonably obtained the evidence. For example, in Owners SP 76269 v Draybi Bros [2014] NSWCATAP 20 at [114] the Appeal Panel refused leave because, although the appellant may not have been aware of the evidence (being an email), it could have obtained the evidence by summons. In Prestige Auto Centre Pty Ltd v Apurva Mishra [2014] NSWCATAP 81 at [17] the Appeal Panel granted leave because the respondent to the appeal had fraudulently altered evidence. The party seeking leave under cl 12(1)(c) could not reasonably have had available to them the evidence that the report in question had been fraudulently altered at the time the proceedings were being dealt with by the Tribunal. That fact was not known to the appellant at the time of the hearing and could not reasonably be known due to fraud. 24 Each of these cases illustrates that something more than a party's incapacity to procure evidence is necessary to satisfy the requirements of cl 12(1)(c).' 39 As stated at [27] in Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown: 'the issue is whether, objectively, the evidence has arisen since the hearing and was "not reasonably available" at the time of the hearing.'"
12. In Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 an Appeal Panel stated at [10]: "An appeal does not provide a losing party with the opportunity to run their case again except in the narrow circumstances which we have described. Mr Ryan has not satisfied us that those circumstances apply to his case and we refuse permission for him to appeal."
13. Even if the appellant establishes that he or she may have suffered a substantial miscarriage of justice within cl 12 of Sch 4 to the NCAT Act, the Appeal Panel has a discretion whether or not to grant leave under s 80(2) of that Act (see Pholi v Wearne [2014] NSWCATAP 78 at [31]) The matters summarised in Collins v Urban, above, at [84(2)] will come into play in the Panel's consideration of whether or not to exercise that discretion.
14. In dealing with errors of law and errors of fact, the Panel must be cognisant that the two can intermingle. The Panel must also be alert that, under Australian law, there is a different approach to matters between two situations. The first of these is where the particular decision has involved evaluation from findings of primary facts and the drawing of inferences therefrom on which reasonable minds may differ but which must be accepted as legally correct unless overturned or varied on appeal. The second situation arises where there has been an exercise by the primary decision-maker of a discretion or choice embodied in the statute or law being applied, including as to whether relief is to be granted or refused and the form of relief: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [18], [20], [26], [30]-[32], [43]-[45], [48]-[49], [55]-[56], [85]-[87], [127]-[128], [153]-[155].

Error of law

1. The primary member's use of the phrase "Taking into account the whole of the evidence" at [24] did not expressly elucidate how the whole of the evidence, that was recited as findings of fact in the preceding paragraphs, was taken into account in finding that there were no misleading statements in contravention of ACL s 18. However, the amount of evidence on this topic was small and clear and self-evidently did not make a representation about matters that were demonstrated to be incorrect. It at most related to the suitability of the car because it had a high towing capacity, which was not demonstrated to be incorrect.
2. The finding that the appellant needed to demonstrate a major failure to obtain the relief he was seeking, which is the way we read the opening words of the primary reasons at [25], was not correct in itself as a statement of the preconditions under ACL s 259. ACL s 259(2)(b)(i) with s 259(4), set out above, provide the form of relief sought by the appellant - repair costs invoiced by a third party (once the respondent refused to remedy the alleged issue) and consequential loss - without the requirement to establish a major failure. However, this error of law did not alter the primary member's basis for adverse decision to the appellant, which was that the appellant had not established liability or causation, irrespective of the nature of the alleged contravention as major or non-major.
3. It may be that the focus on major failure arose because the claim as originally lodged on 8 February 2019 sought, as the preferred option, a replacement or refund of the car and, if that was not possible, a new engine.
4. If a major failure had been required to be established for the relief sought by the appellant, we consider that the primary member did err in giving reasons that were inadequate for rejecting a finding of major failure at [25]. The fact that the nature and extent of failure could only be determined after the removal and stripping down of the engine is an irrelevant consideration in that inquiry. The means by which one determines that the legislative test for major failure is satisfied is not mandated by the ACL. Such a process as is revealed in the repairing mechanic's report on its face speaks of a major failure in the engine due to "dusting". However, the real question is whether the appellant demonstrated that such "dusting", or the conditions for its emergence and effect, were the responsibility of the respondent supplier.
5. If the first time that the appellant sought to reject the vehicle was in the application lodged 8 February 2019, there would have been some significant doubt whether such was within the "rejection period" described earlier. We do not need to determine that question.
6. There was no other error in the reasons or inadequacy of reasons, and the decision was not outside the range of reasonableness, because, as demonstrated in the following section on alleged errors of fact, it was well within the range of reasonable outcomes and, in our respectful view, the correct outcome.

Grant of leave to appeal on questions of fact

1. In essence, the central primary facts, as found by the primary member, and in chronological sequence as set out more fully above in these reasons, were as follows (in abbreviated description): 1. A possibly deficient air filter (wrong size and incorrectly fitted) and possible travel on dusty roads (with the nature of the roads not defined) prior to supply, but also possibly not a deficient filter (see (2)). Also some evidence from the pre-supply servicing mechanic that the vehicle had burned a bit of oil before sale, but that this was a feature of the model of the vehicle. Also, a service shortly before the car was sold by the respondent. 2. Replacement of the air filter, and no report of "dusting", a month after supply, on 5 July 2018 at a small number of kilometres after supply, no travel by the appellant in that period off-road, but no indication of what type of filter the mechanic put in, that is, whether or not it was the wrongly-sized and ill-fitted one in the photograph supplied by the appellant, and why it was replaced (as part of regular servicing or because there was a problem with it). No indication whether an ill-fitting filter of the wrong size required more than the ordinary dust encountered on roads to have a detrimental effect. No clear objective evidence as to the nature of the service and the required content of inspection for that type of service, and whether what was required in that service would have picked up "dusting". (The appellant's expert's answer in cross-examination was not clear or comprehensive and the nature of the service was not before us.) 3. Another service in late August 2018 just before the appellant and his family started on their extended trip, with no evidence one way or the other about the state of the engine. 4. Near the start of the trip on 2 September 2018, nearly two months after the new air filter was fitted on 5 July 2018, the oil light coming on and no indication of the cause (one way or the other). 5. Expert evidence that the oil light would come on quickly after "dusting" and that was the means of picking up "dusting", but no evidence whether or not a light that would indicate a problem with oil pressure also could be caused by other than "dusting". 6. Expert evidence that "dusting" may take several months to emerge, which (unexplained) could contradict the expert evidence in (5). 7. Expert evidence which conceded that the expert could not say when the damage to the air filter occurred that allowed dust to enter the engine. 8. No travel off-road by the appellant, but no evidence about the quality of the roads travelled on otherwise (eg, were there gravel roads or sealed roads in dusty environs). 9. The 25 October 2018 service after about 7 weeks into the trip replaced the air filter fitted on 5 July 2018 with a genuine Toyota filter and correct fuel additive and the servicing mechanic noted dust beyond the air filter which might indicate the engine was "dusted". If the photo of the two filters referred to in the primary member's findings was taken by the appellant at this point then the ill-fitting and too-small filter would be the one installed on 5 July 2018. 10. At just over 10,000km after supply the appellant reported potential "dusting" to the respondent.
2. The problem faced by the appellant on the above facts was proving his case on the balance of probabilities.
3. On the facts we have recited in [41(2)-(8)] most of which were expressly referred to by the primary member, and particularly in the context of the uncertainty created by the matters in [41(2)] combined with the lack of certainty of timing that the expert evidence could give as described in [41(7)], it was clearly within the range of reasonable outcomes to find that the appellant had failed to prove it was more probable than not that the "dusting" occurred before delivery, or even that there was a faulty air filter in the vehicle at time of delivery that had caused "dusting" or would cause "dusting".
4. Establishing the matters we have described in the preceding paragraph was essential for the appellant to satisfy the burden of proof on the matters required to establish a contravention of the consumer guarantees and causation from that contravention. The primary member, in our view correctly, found these key matters were not established to the required standard of proof.
5. Turning to the evidence in cross-examination of the appellant's expert, the answers to questions put by the member elicited the answers that the previous mechanic (pre-delivery) had said the engine was dusted and worn out. That hearsay was not able to be tested directly with the pre-delivery mechanic. If taken into account, it needed to be correlated with the same expert's answer, found by the member and set out at [41(5)] that the oil light would come on quickly after "dusting", and that the oil light in fact came on several months after delivery, in early September 2018.
6. It could be possible to reconcile the matters in the preceding paragraph, together with the matter set out in [41(6)] that dusting may take several months to emerge, by a finding that there was dusting pre-delivery which emerged several months post-delivery in September 2018 and that the oil light was triggered only when the problem "emerged" fully-fashioned. But that does not mean that an alternative interpretation of the weight and meaning to be given to different parts of the evidence, that the primary member gave, was beyond the range of reason (so as to constitute an error of law) or as meaning that the matters to be satisfied for an error of fact were established, nor that the primary decision should be set aside as likely to cause a substantial miscarriage of justice and as plainly unjust if allowed to stand.
7. It transpired that the appellant's ground of appeal which turned on the difference between the oil pressure light and the low oil level light was directed to the fact that the appellant had, not appreciating the difference he said, called it simply an oil light in his evidence and, to quote his notice of appeal, "it was such a small difference in wording no one picked up on it".
8. The appellant sought on appeal to introduce into evidence a further letter from his expert "clarifying this issue and other aspects of his evidence". He explained that this evidence was not available at the hearing because "I didn't know before going to court that oil pressure light and oil level lights needed to be differentiated". Another matter sought to be clarified by the expert was his answer, recorded by the primary member at [18], that the oil light would come on "quickly" upon the engine being dusted. The expert sought to remove that word and say that a "dusted" engine does not necessarily result in the oil pressure light being illuminated because regular changing or even topping up of the oil would keep it sufficiently thin in viscosity to flow easily through the oil pressure switch.
9. We refused leave because we considered that the explanation given by the appellant did not indicate that the test we have set out earlier for the introduction of further evidence on appeal was met.
10. Further, one cannot after the event clarify answers given in cross-examination as recorded in the findings. This is particularly the case when the cross-examination by the respondent's representative of the appellant's expert that supported this finding was quite comprehensive. We give some extracts: "Q. … if it had been dusted from the start what time frame would you expect that someone would pick up that there was something wrong … A. The first thing you would notice would be the oil pressure light coming on cause that's very sensitive particularly if you've got thickened oil with carbon it does lead to the oil pressure switch is gonna come on a lot quicker than that. Q. So a lot quicker than 5,500k's. A. Yeah. Q. And 4 months. … but what you're saying is that upon an engine becoming dusted that the ah light would come on reasonably quickly. A. Correct. Q [member] And that's with or without towing something. A. Correct." The expert went on to indicate a number of factors might indicate a problem apart from the oil pressure light.
11. The respondent similarly sought to introduce into evidence a new expert with a new report, prepared shortly after the primary decision, which completely contradicted that the fitted air filter from the vehicle could have caused the "dusting". We rejected this report as well for not meeting the required test for further evidence.
12. We also rejected, as not meeting the required test, new statements from the previous mechanic denying a statement the appellant's expert attributed to him indicating "dusting" of the vehicle before delivery, and from the respondent's sales representative, together with some other documents including the invoice for the 5 July 2018 service.
13. We should add that neither party sought to give an explanation concerning the further evidence on appeal in advance of the appeal hearing, so the other side could seek to meet it. Each stated at the hearing there were technological and other difficulties in obtaining the evidence without explanation of why those difficulties could not have been overcome in the time given by the Tribunal to put on material and why there was no application to extend time on the basis of such an explanation.
14. Accordingly, we consider there is no basis for a grant of leave and, in our view in any event, no material errors of fact in the primary members' conclusions on matters grounding the orders that he made.
15. We should add that that the primary member did not need, because of his findings, to deal with the question of the scope of damage caused by "dusting" for which the respondent was responsible, as opposed to the degree caused by the appellant's delay in repairs and continued driving, and the appellant's statements that he was unable to do anything else given the trip he was on. In the respondent's extracts from the transcript is an acceptance by the appellant's expert "Now once the engine is dusted you catch it before it's really totally worn out and you can do a partial engine rebuild or if it goes far enough and you just keep using it the engine really needs to be rebuilt completely, rebored, new pistons, rings fitted". The repairing mechanic's report of April 2019 in the appellant's evidence indicated a major rebuild of at least the left side of the engine. Accordingly, there was material which, if a contravention had been found, could have cast sufficient doubt, in our view, on the scope of loss attributable to the contravention as to defeat the appellant's proof of claim, but would have needed to take into account the appellant's explanations in mitigation.

Outcome of appeal

1. The appeal accordingly fails and must be dismissed.
2. Neither party sought costs. There is no basis for an order as to costs as leave for legal representation (taken up by the respondent) was granted on 1 August 2019 on the condition that neither party may recover legal costs in any event.

Orders

1. The orders we accordingly make are as follows: 1. Leave to Appeal is refused to the extent that leave is required. 2. Appeal is dismissed.

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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 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 2019