1. Costs, including reimbursement of the VCAT filing fee and hearing fees, reserved.

1. Proceedings C1033/2014 and C2914/2014 arise from the sale, by Traralgon Contractors Pty Ltd to Mr Stalteri, of an American pick up truck in 2013. The vehicle was a "new" 2012 model Chevrolet Silverado, which was to be converted to right hand drive. Mr Peter Nicola is a director of Traralgon.

1. In C1033/2014 Mr Stalteri sues Traralgon and Mr Nicola for damages. By the time the hearing commenced, the claim was for a total of $10,903.55 plus costs. In C2914/2014 Traralgon sues Mr Stalteri for $4,253.29 as the balance due under the contract, having regard to alleged variations.

1. C2914/2014 is a "small claim" as defined for the purposes of the Victorian Civil and Administrative Tribunal Act 1998 and the Tribunal has no power to award costs in that case[1]. However C1033/2014 is not a small claim and costs may be awarded in it.

1. Mr Stalteri's claim at the hearing for $10,903.55 was in stark contrast to his initial claim for $142,514.62, which was based on allegations that the vehicle had myriad defects, having undergone an unprofessional conversion and being dangerous. These allegations amounted to a claim that the vehicle had experienced a catastrophic failure.

1. The way in which Mr Stalteri made his claim, and then amended it during the pre-hearing stages, may prove to be relevant on the question of costs. Unsurprisingly, Traralgon retained legal practitioners when the claim against it stood at $142,514.62, and I have some concern that had Mr Stalteri quantified his claim at a more realistic sum earlier, Traralgon might have been spared what are no doubt substantial legal costs.

1. I also express my concern that on the last day of the hearing the parties disclosed that Mr Stalteri had issued proceedings in a Western Australian Court against Traralgon. I have not seen those Court documents. Mr Stalteri said that the Western Australian proceeding concerned "entirely different" issues, but his brief description did not seem to bear this out. No orders were sought in relation to the prosecution of that Western Australian proceeding, but I express the hope that the parties obtain legal advice on the ability of Mr Stalteri to take such proceedings before additional costs are incurred.

1. By the time the hearing commenced, Mr Stalteri's claim for $10,903.55 was set out in Amended Points of Claim filed on 17 May 2015. Traralgon's legal practitioners added paragraph numbers to the document for ease of understanding, and cross referencing with the Amended Points of Defence.

1. Mr Stalteri says he bought the vehicle in February 2013 and took delivery in April 2013, at which time he concluded that various accessories he had ordered had not been fitted. Subsequently he found defects in the vehicle. In his Amended Points of Claim Mr Stalteri claimed two categories of damages:

(a) the cost to rectify defects which are still present in the vehicle, and

(b) a number of expenses which Mr Stalteri incurred, in fitting accessories to the vehicle because Traralgon had failed to do so. Also in this category were expenses which Mr Stalteri said had been wasted, such as the cost of insuring the vehicle before Traralgon had delivered it.

1. Mr Stalteri alleges, in paragraph 17 of the Amended Points of Claim, that Traralgon failed to meet its obligations under the consumer guarantees set out in sections 54 and 55 of the Australian Consumer Law, and the subsequent paragraphs set out the claims he makes as a result. These are the claims, by reference to the paragraph numbers in the Amended Points of Claim:

Paragraph 18 cost to repair vinyl dashboard $2,360.00.

Paragraph 20 cost to install a rubber seal below the left side of the bonnet $150.00.

Paragraph 21 cost to repair the foot brake $660.00.

Paragraph 22 cost to repair a water leak through the left front door seal: new seal $762.81 plus new carpet and underlay $639.60.

Paragraph 23 cost to repair some drilled holes and rust spots under the kick panel at the left front door $250.00.

Paragraph 24 cost to repair/replace the faulty motor in the driver's seat $400.00.

Mr Stalteri claimed "out of pocket expenses." Some of them were actually claims for "costs" and I leave them aside. These are the arguable claims:

Paragraph 25 Australian Customs charges on an imported H & S Tuner $206.70.

Paragraph 26 car hire (based on an implied allegation that in breach of contract, Traralgon had delivered the vehicle late) $140.15.

Paragraph 28 cost of a bed liner for the vehicle $405.64.

Paragraph 30 cost of an under seat storage unit $46.55.

Paragraph 31 cost of one week's loan repayment, during the delay in delivery $520.00.

Paragraph 32 cost of one week's insurance, during the delay in delivery $32.00.

Paragraph 33 cost of transport of rims, tyres and exhaust $594.00.

Paragraph 34 cost of 3 day's car hire, when water entered the vehicle $200.66.

Paragraph 36 cost of an all weather floor mat $98.00.

Paragraph 37 credit due for exhaust system not supplied $880.00.

Paragraph 38 cost of car hire, which Traralgon agreed to pay $139.80.

Paragraph 39 cost of freight for a hard lid to be transported from USA $600.00.

1. Traralgon's claim is for money due under the contract.

1. Traralgon acknowledges that Mr Stalteri ordered TerraGrappler tyres and MHT wheel rims, but says that because the MHT wheel rims were not available on time it supplied the vehicle with a set of standard wheel rims. Traralgon says the parties agreed that it would supply the MHT rims, and Mr Stalteri would return the standard rims. Traralgon's Invoice 804 for $1,000.00, dated 15 March 2013, is in respect of Traralgon's supply of the MHT rims. An invoice for $594.00 from Willaton Transport, dated 20 June 2013, in respect of a "pallet (of) car parts" is said to evidence the supply of the MHT rims, tyres and an exhaust system. The Willaton invoice is document 149 in the Tribunal Book. Traralgon says that Mr Stalteri has not returned the original rims, and so Traralgon claims $1,000.00.

Invoice 590 and Credit Note 805 (which lead to a credit to Mr Stalteri of $56.10)

1. Traralgon says that it supplied a number of parts to Mr Stalteri, valued at $823.90, set out in Invoice 590. Against this invoice, Traralgon credited Mr Stalteri $880.00 in respect of an exhaust system, set out in Credit Note 805 dated 11 July 2013. This leads to a credit of $56.10 being due to Mr Stalteri.

1. Traralgon says that it engaged Chevrolet Conversion Centre to inspect the vehicle when Mr Stalteri complained that there was an intermittent problem with starting the vehicle. Traralgon complains that Mr Stalteri instructed Chevrolet Conversion Centre to carry out work on the vehicle, and without authorisation told it to bill Traralgon. Even though Traralgon has not paid Chevrolet Conversion Centre, it has billed Mr Stalteri for this expense on the basis that it has a contingent liability to Chevrolet Conversion Centre. The bill is Invoice 802, dated 12 August 2013, which includes: Invoice of Chevrolet Conversion Centre $1,920.00 plus Traralgon's own administration costs $90.00, and GST $201.00. It totals $2,211.00.

1. Mr Stalteri says that Traralgon told him to book the work up on its account with Chevrolet Conversion Centre.

1. Mr Kris Shute of Chevrolet Conversion Centre gave evidence for Traralgon.

1. The exhaust system, which is the subject of the credit of $880.00 in Credit Note 805, was returned to its manufacturer in the USA. The shipping company was CFR Rinkens. Similarly to the dispute over Invoice 802, Traralgon says that it has been billed by CFR Rinkens, and that it has not paid that bill because Mr Stalteri should. It has invoiced Mr Stalteri for this expense on the basis that it has a contingent liability to CFR Rinkens. Invoice 803, dated 25 September 2013, includes the Invoice of CFR Rinkens $818.54, Traralgon's administration costs of $180.00 and GST $99.85. It totals $1,098.39.

1. In the hearing the following people gave evidence:

1. Mr Peter Nicola, director of Traralgon and the Second Respondent in proceeding C1033/2014, did not give evidence[2].

1. Traralgon had filed a "Tribunal Book" of common documents. Some additional documents were tendered in evidence. Where relevant I refer to documents by their page number in the Tribunal Book.

1. The starting point is of course the contract, because it defines the parties' rights and obligations.

1. Traralgon produced a copy of its advertisement of the vehicle for sale, at page 91 of the Tribunal Book. Mr Stalteri gave evidence that he saw and relied on this advertisement. Omitting irrelevant text, it said the following

Deal direct from the wholesaler and save thousands.

Chevrolet Silverado, the 2011 Truck of the year built tough for the toughest of conditions. Equipped with a powerful 6.6 litre Duramax Turbo Diesel pushing out 397 hp, with a groundbreaking 1037 nm of torque with the fifth wheel tow rating of over 8000 kg and if that's not enough upgrade to the 3500 HD with a tow rating of over 10,000 kg! All this power is backed by the brilliant Allison 1000 6 Speed Automatic transmission, which puts the power to the road whilst also helping tow that load with its unique features.

This brand-new immaculate Crew Cab 4 Wheel Drive 2012 Chevrolet Silverado LTZ 2500 HD is fully loaded with all the options you could want and long list of extras including:

Brand new truck with all the extras you could want at an incredible price.

This truck is available with an unmatched 5 year unlimited kilometre warranty so you have peace of mind when purchasing your new truck.

We are also very proud to say that we have gone through a lengthy process of engineering a new housing which is a mirror image to the Chevrolet factory steering box. This means that your new truck will drive exactly as it should and was intended from the factory, this is just one of the differences that puts our conversions ahead of the rest.

Founded in 1996, we have been importing and converting American vehicles for over 18 years and have been proudly delivering the highest quality Chevrolet trucks to Australia. Our mirror image conversions are second to none and are done fully in-house in our RAWS approved & ISO certified workshop.

Our price listed includes the conversion of the vehicle and comes with 12 months registration and includes all on road fees[3].

[There followed a description of the truck - make, model, VIN number which included "Km's /Mileage: 0 kms"]

1. Traralgon is a licensed motor car trader. It says that it sent Mr Stalteri the standard form contract documents, with all details completed, but that it did not keep file copies and that Mr Stalteri has not signed and returned them. Traralgon included a blank sample of a "contract of sale of used motor vehicle", a Form 6 "Not covered by statutory warranty" and a Form 4 "Waiver of cooling off rights" in pages 181 - 183 of the Tribunal Book. It also included its "Conversion Warranty" at page 112. Mr Stalteri says he never received these documents.

1. In giving evidence Mr Roxburgh of Traralgon asserted that Traralgon's obligations to Mr Stalteri, in respects of defects in the vehicle, only existed in relation to the conversion work which Traralgon had performed, and which were covered by the Conversion Warranty. He saw no role for the Australian Consumer Law. Mr Roxburgh also said, as he had said to Mr Stalteri prior to the litigation, that if anyone other than Traralgon or its authorised agent carried out any modification of the vehicle, that would "void the warranty". In view of this argument, there was a lot of debate in the hearing as to whether Mr Stalteri had "modified" the vehicle.

1. After identifying the vehicle by its VIN number, and stating that the reading on the odometer was 197 km, the Conversion Warranty [page 112 of the Tribunal Book] said the following:

This warranty covers only modification work carried out on the above mentioned vehicle by (Traralgon) in accordance with the Australian Design Rules (ADR) and complies with the Motor Vehicle Standards Act 1989 under the Registered Automotive Workshops Scheme administered by the Federal Department of Transport and Regional Services.

For details of modification and ADR compliance for this vehicle refer to the attached Consumer Information Notice applicable to this make and model of vehicle.

(Traralgon) warrants in respect of each modified vehicle sold that for a period of one year from the date of delivery of the vehicle to the first purchaser, it will repair or rectify any modified part of that vehicle found to be defective in materials or workmanship provided that

The vehicle has been properly and reasonably used in accordance with the normal expectations of its design and where relevant.

The vehicle has been properly maintained and regularly serviced as scheduled on the Australian Owner's Manual.

Any repairs and all replacements performed under (Traralgon) warranty must be undertaken by a licensed mechanic and stamped in the owner's manual provided with the modification.

This warranty will not be valid if any unauthorised modifications to the vehicle are carried out or if the service scheduled on the Australian Owner's Manual is not kept up to date.

Modifications or adjustments which may be required due to alterations in local legislation and new changes to ADR's after the original sale and/or registration of the vehicle are beyond the control of (Traralgon) and are therefore not acceptable as a claim against this warranty.

This warranty will not apply to any modification component, assembly or associated component damaged as a result of accident, loss, fire, misuse or exceeding any one of the manufacturer's specified maximum speeds, revolutions or load capacities.

1. So much for Traralgon's "unmatched 5 year unlimited kilometre warranty" described in its advertisement! I note that in Traralgon's closing submission, it said that the five-year warranty was advertised as being "available", which indicated that it had to be paid for separately. This point was said to be reinforced by the fact that on road costs were set out separately from the bare price. The submission was unpersuasive, but as it is not relevant to the outcome of the proceeding I will not dwell on it.

1. The Consumer Information Notice was produced at page 109 of the Tribunal Book. It is a certificate that the vehicle complies with the Motor Vehicle Standards Act 1989. It includes this text:

This vehicle... has been imported from another country as a used vehicle. The vehicle may not comply with Australian Design Rules (ADRs) that apply to new vehicles.

Service and replacement parts to this vehicle may not be available from a recognised franchised dealer for this make of vehicle.

At the time the used import plate was fitted, this vehicle had the following:

Seat belts that are securely fixed, functioning and in good condition.

An owner's manual (vehicle handbook) giving information on seatbelts, child restraints, starting, driving and maintenance of the emission system.

The engine has been serviced to the manufacturer's specifications.

1. The document then sets out details of the vehicle, including its engine number and the VIN. In this part of the document, it states the odometer reading as 197 km.

1. The last part of the document describes various aspects of the vehicle by reference to parts of the Australian Design Rules (for example, that the replacement windscreen relates to part 8/01 of the Australian Design Rules). Some part numbers are listed against these items.

1. Traralgon also produced in the Tribunal Book documents which related to its importation of the vehicle, including the formal approval it received from the Department of Transport and Regional Services, and its own "Incoming Vehicle Inspection Report" (page 94 of the Tribunal Book). However these are internal documents of Traralgon. They were not produced to Mr Stalteri until they were discovered in the litigation.

1. Traralgon's invoice number 503, dated 22 February 2013, was produced at pages 92 and 93 of the Tribunal Book. In its description of the "goods sold", this invoice lists the vehicle with its VIN number and other details (including "Build date: 03/2012" and "Approval date: 06/12/2013") as costing $76,910.00 including GST.

1. It then contains the item "Conversion of Vehicle" as costing $42,000.00 including GST. It then lists various accessories and expenses individually as follows (all prices include GST):

Brushed Aluminium Door Sill Plates (front and rear) $199.00

Magnaflow Full Stainless 4 inch Split Exhaust System $880.00

1. The total invoice including GST was $135,012.68.

1. The dispute over this device was emphasised in the hearing.

1. An "H & S Tuner" is a device which can affect the tuning of the engine, to improve power output and fuel consumption. It has an electronic display unit, namely a screen which displays data. You could say that in appearance the screen is similar to the screen of a GPS navigation system. The "H & S Tuner" also acts as a diagnostic device, with a similar ability to the electronic devices mechanics use to read the "codes" in the computers on modern engines. The display unit can be affixed to the inside of the windscreen using a suction cap device, as with some GPS displays, but Mr Stalteri preferred to have it mounted in the dashboard. The site chosen was the airvent on the right hand side of the dashboard. However, the display unit was a little too big to fit perfectly within the airvent, and so a "pod" was made to hold the device (and all the wires that run out of the back of the device), and the pod was attached to the dashboard. A new vinyl surface was placed over the pod.

1. Whilst the new vinyl surface is consistent in colour and texture with the vinyl surface on the rest of the dashboard, the shape of the pod is all wrong. Instead of the display screen sitting inside the dash, like a factory fitted GPS display or the digital display of a sound system would, it sits within an unsightly lump. Worse, because a vinyl coating can only be so flexible, it is apparent that the person who fitted the vinyl coating - the Dashboard Doctor - had a choice of cutting the vinyl and leaving visible joins, or of trying to lay the vinyl in a way that made it attach to both the pod and the flat surface of the dashboard, without creasing. The fitter went for the latter option but the angles are too great, with the result that the vinyl coating appears to be peeling off the structural part of the dashboard. It is an unsightly mess which on any view looks amateur and is unacceptable in a new or recent vehicle. Indeed, Mr Cusworth whose business 'vinyled' the dashboard and who was called as a witness by Traralgon, said in chief that the job had "failed".

1. The battle over the dashboard, then, is not about whether it is defective - because it undoubtedly is - but over who bears the responsibility.

1. This Warranty was raised by the witnesses in the context of many defects and it is appropriate to mention it here.

1. It includes the words, "This warranty will not be valid if any unauthorised modifications to the vehicle are carried out or if the service scheduled on the Australian Owner's Manual is not kept up to date". It seems to me that both sides have misunderstood the effect of this clause.

1. Mr Stalteri gave evidence that he took delivery of the vehicle on 12 April 2013, and that on 19 April 2013 he contacted Traralgon because the vehicle would not start. He says that Traralgon immediately told him that the warranty was void because Mr Stalteri had modified the vehicle. Mr Stalteri gave evidence that he had not received a copy of the Warranty, and he argued that the work he did on the vehicle was not a "modification". He has also focussed on the expression "properly and reasonably used" and said that because the vehicle had some kilometres on its odometer when he took delivery, abnormal use could have occurred before he owned it. That is, he approached the dispute as if the Warranty could be made void under the above clause, and that it is a matter of interpreting the clause or seeing whether it applied on the facts.

1. In giving evidence for Traralgon, Mr Cody Roxburgh said the Warranty could be made void under the above clause. He argued that Mr Stalteri had "modified" the vehicle - like Mr Stalteri, focussing on the interpretation of the clause. It must be said that Traralgon's lawyers have not put the matter so highly. The lawyers instead refer to section 54(6) of the Australian Consumer Law, submitting that if Mr Stalteri damaged the vehicle by abnormal use, the vehicle would not have failed to be of acceptable quality for the purposes of the consumer guarantee in section 54.

1. Traralgon was not performing the service of modifying a vehicle which Mr Stalteri owned. Traralgon was selling Mr Stalteri a modified vehicle. Accordingly, Traralgon bore the obligation of complying with the "consumer guarantees" applicable to the sale of goods, under the Australian Consumer Law. Traralgon was also the "manufacturer" of the vehicle to an extent. Section 7 of Australian Consumer Law defines manufacturer to include a person who processes or assembles goods, and also a person who imports goods into Australia where the actual manufacturer does not have a place of business in Australia. Obviously General Motors, which is ultimately the owner of the Chevrolet brand, has a connection with Australia through General Motors Holden, but it does not market these Silverado pick up trucks in Australia. The significance of Traralgon being the manufacturer is that section 59(1) of the Australian Consumer Law provides that if a person supplies, in trade or commerce, goods to a consumer there is a guarantee that the manufacturer of the goods will comply with any express warranty given or made by the manufacturer in relation to the goods.
2. If as a matter of law Traralgon is not the manufacturer, it was undoubtedly the supplier of the vehicle to Mr Stalteri. Section 59(2) of the Australian Consumer Law provides that there is a consumer guarantee "that the supplier of the goods will comply with any express warranty given or made by the supplier in relation to the goods".

1. So Traralgon is bound by its Conversion Warranty, both as a matter of contract and under section 59 of the Australian Consumer Law.

1. It is not unusual for a vendor's "warranty" to give the purchaser less rights than the purchaser has under the Australian Consumer Law (Victoria), or its predecessor the Fair Trading Act 1999. In that sense, if a "warranty" is "void", the purchaser still has their statutory rights.

1. A "warranty" must be construed in accordance with the normal rules of construction in the law of contract. Ambiguities are read against the interests of the author of the document. A contractual document must be read as a whole. It might be arguable that the 'warranty' on one component becomes inapplicable if the purchaser abuses that component; or that as a simple matter of construction the warranty only covers defects in the component which the purchaser did not create. But it is another matter entirely for Mr Roxburgh to assert - as he did - that abuse or modification of, say, a guide for a handbrake cable voids the warranty on the entire vehicle. Mr Roxburgh is wrong.

1. The Australian Consumer Law contains some provisions about suppliers' warranties. "Express warranty" is defined in section 2. Section 29(1)(m) provides that

(1) A person must not, in trade or commerce, in connection with the supply or possible supply of goods or services or in connection with the promotion by any means of the supply or use of goods or services:

(m) make a false or misleading representation concerning the existence, exclusion or effect of any condition, warranty, guarantee, right or remedy (including a guarantee under Division 1 of Part 3-2); ...

1. Thus, a supplier who misled a consumer about the meaning or operation of its "warranty" would breach section 29.

1. The relevant statutory guarantees are contained in sections 54 and 55 of the Australian Consumer Law_._ They provide that goods sold to a consumer in trade or commerce "are of acceptable quality" and that the goods are "fit for any disclosed purpose, and for any purpose for which the supplier represents that they are reasonably fit".

1. I reject the submission by Mr Roxburgh of Traralgon, even though not pressed by its legal practitioners, that Mr Stalteri's conduct has "voided the warranty".

1. I note by way of introduction that it is no longer part of Mr Stalteri's claim that he is entitled to damages because he was misled into buying a used vehicle. However the point has some relevance because it puts Mr Stalteri's loss of confidence in Traralgon into some context. Clearly, Traralgon's advertisement represented (5 times) that the vehicle was "new", and yet Traralgon imported it with a "used import plate" and its own internal documents show the vehicle had at least 197 km on the odometer after it had been converted.

1. Mr Stalteri researched the history of the vehicle on an American website called "Carfax" which gathers information from American government bodies similar to VicRoads (Exhibit R3). The vehicle was noted as not having been damaged, in an accident or subject to a recall. It was shown as being owned by a car dealer on 29 March 2012, and sold by a dealer called Peterson on 24 September 2012. Mr Stalteri gave evidence that the Carfax said the vehicle had travelled 33, 46 and 46 miles when held by its previous owners, but in my observation Exhibit R3 does not say that.

1. I am satisfied that the vehicle sold by Traralgon to Mr Stalteri was "new". The word has to be seen in context. The vehicle is advertised as coming from the USA and being converted from left-hand drive to right-hand drive. It was also advertised as being a 2012 model, when Mr Stalteri bought it in 2013. 197 km is nothing. Even a car manufactured in Australia would not have 0 km on it when delivered to the purchaser. When Mr Stalteri cross-examined Mr Roxburgh, he was keen to know whether anyone in Traralgon's business test drove its converted vehicles before delivering them to customers. Mr Stalteri would have been critical of Traralgon had it not done so. It is pedantry to argue that this vehicle was not "new".

1. I set out the witnesses' evidence in relation to each of the alleged defects, and my analysis.

1. As I said above, the way in which the H & S Tuner has been installed is not acceptable. It is not acceptable in appearance, it is not free from defects, and because the vinyl has developed bubbles near the pod suggesting that the vinyl is no longer adhering to the underlying dashboard, it is not durable. These are criteria under subsections 54(2)(b),(c) & (e) of the Australian Consumer Law for measuring whether goods are of acceptable quality.

1. Mr Stalteri said that it was Traralgon's job to supply the vehicle with the H&S Tuner fitted, as recorded in Invoice 503, "H & S Tuner to be vinyled into the dash". However, Traralgon delayed ordering the unit. In June 2013 Traralgon appointed Joseph Huber to handle Mr Stalteri's problems with the missing accessories. Mr Stalteri says that Traralgon deliberately failed to deliver the H & S Tuner, to put him in the position of installing it himself so that Traralgon could then assert that this 'modification' voided Traralgon's warranty. Because I have concluded that there is no merit in Traralgon's argument that the warranty was voided, I leave this theory to one side.

1. Mr Stalteri says that he did not receive a copy of Traralgon's warranty, and that had he received it, he would had chosen not to install the H & S Tuner, or he would have deferred installation until the 12 months had expired.

1. Traralgon installed the H & S Tuner, and engaged as a sub-contractor The Dashboard Doctor to "re-skin" the dashboard. As such, Traralgon is responsible for the outcome.

1. Mr Stalteri said that Mr Roxburgh told him that he had fitted a pod which held the H & S Tuner to vehicles before with success, and that he did not warn Mr Stalteri that it was problematic. This is to be contrasted with Mr Roxburgh's evidence, which was to the effect that he informed Mr Stalteri of the risk of wrapping an unusual pod, and that Mr Stalteri accepted the risk.

1. The Dashboard Doctor "re-skinned" the dashboard, meaning that it applied a new vinyl coating to the dashboard after it had been fitted with the pod to contain the H & S Tuner. Mr Cusworth explained the process. He said that the Dashboard Doctor only received the dashboard, not the whole vehicle. It uses machines to vacuum form a new layer of vinyl over a dashboard. The new vinyl is treated with a two pack adhesive, and it is vacuum wrapped onto the dashboard and heated. As it is heated the vinyl curves around the dashboard, and as it sets the adhesive hardens. He said that in some 26 years of his experience, The Dashboard Doctor's process was successful "99.99%" of the time. Mr Cusworth said that when the dashboard was delivered to him he knew immediately that it would not work, because of the shape of the pod. It rose too far above the height of the dashboard, and its angles were two square. As a result the vinyl was forced to stretch further than it should in order to curve over the pod. The vinyl stretched too much: which meant that there was less adhesive in the stretched area than over the other areas of the vinyl which were asked to perform normally. Mr Cusworth said that the Dashboard Doctor wants to keep its customers happy, and so rather than refusing to do work it would do what it could. However, because he knew that this work would fail he said to Traralgon that The Dashboard Doctor would only do the job on the basis that it was not warranted and that the risk of failure fell on Traralgon. He said that it was orally agreed that the work proceed on this basis. On 25 March 2013 The Dashboard Doctor invoiced Traralgon $429.00 for this work. Mr Cusworth said that about three or four months later Mr Stalteri phoned him and advised that the vinyl was lifting. Mr Stalteri asked if anything could be done, but there was no part of the discussion relating to liability the defect. Mr Stalteri cross-examined Mr Cusworth but did not challenge him on this part of his evidence.

1. On 23 May 2014 Mr Cusworth wrote to Traralgon, at its request when these VCAT proceedings had arisen. It is apparent that Mr Cusworth intended his letter to be used in evidence, but that he did not expect to because a witness. In his letter Mr Cusworth wrote:

When completing the original work with the fitment of an additional pod on the dash I specifically stated to you (Peter Nicola) that there would be no product warranty on the vinyl wrapping I completed. At the time you had accepted these conditions for me to complete the work. After previous testing in-house I had already come to a conclusion that such pods with sharp edges inevitably stretch the vinyl too much and the adhesion of the vinyl in time fails leaving bubbles like you have described. Now after the fact that there is a claim against my work I would like to confirm that this dash is not under warranty and I had a verbal agreement with you that there would be all care and no responsibility on this job. I will not accept any liability nor shall I repair the dash under warranty. If you wish to pay me to complete the repairs I am happy to do so. However it would be my recommendation to remove the pod prior to re-vinyling the dash otherwise we will run into the same issues and the repair will not be warranted. Furthermore if we remove the pod I will be happy to one of the 12 month warranty agreement that we have with one another.

1. I do not accept Mr Roxburgh's evidence of having warned Mr Stalteri. The evidence shows that Mr Stalteri was looking forward to acquiring this very expensive vehicle with its range of accessories in good condition. It is highly improbable that such a consumer would take the risk of defacing the dashboard of a new vehicle with this amateurish installation. There was no evidence from Mr Roxburgh that Mr Stalteri was even told of the size of the pod that was proposed to be used to house the H & S Tuner.

1. In his evidence in chief Mr Cusworth said that if the Dashboard Doctor revinyled the dashboard, it would cost around the same, $429.00. Mr Cusworth stood by his above letter as accurately setting out the facts. When Mr Cusworth was cross-examined, he was not challenged on those propositions. Mr Nicola did not give evidence and Traralgon did not seek to contradict Mr Cusworth's evidence. That said, saying that a cost would be "around the same" as an old invoice is equivocal and I am sure that Mr Cusworth would not allow the Dashboard Doctor to be held to that figure as a "binding quote".

1. Mr Stalteri's figure of $2,360.00 is based on the report of Mr Rod Style, of Rodney Style & Associates Automotive Engineering Consultants, dated 14 February 2015. This report was at page 183D of the Tribunal book, but Mr Style did not give evidence in person. Mr Kris Shute of Chevrolet Conversion Centre gave evidence for Traralgon, and said that there were several methods of re-skinning a dashboard and that he would estimate the cost of $1,500.00. Nevertheless, Mr Shute has no qualifications in the re-skinning of dashboards.

1. Even though Mr Style did not give evidence in person, I am entitled to take his report into account. I also take into account that the Dashboard Doctor, as the business which carried out the original unacceptable work on the dashboard, would have some incentive to downplay the cost of rectification and that re-skinning the dashboard will necessarily require disassembly from the vehicle and disassembly of the H & S Tuner from the pod. Taking all of these factors into account, I award $1,500.00 to Mr Stalteri. I acknowledge the limitations of Mr Shute's opinion, but I do not accept those of Messrs Cusworth or Style.

1. Mr Stalteri relies on a service tax invoice issued by Crate Engines Australia Pty Ltd, trading as "Performance West". Its invoice was issued on 22 October 2014, when according to that invoice the vehicle had travelled 41,800 km. In the invoice Performance West states, "Complaint - coolant loss from the radiator. Cause - power steering lines, rubbing on the radiator. Correction - replacement of the radiator and reroute the power steering lines. Check for damage to the power steering lines: $2,200.00 plus GST".

1. Mr Shute of Chevrolet Conversion Centre gave evidence that he did not see the radiator, so any problem must have arisen after he inspected the vehicle. Mr Shute had written an undated letter to Traralgon, setting out his observations when Mr Stalteri brought the vehicle to him in 2013. This letter appears at pages 179-180 of the Tribunal book, and it does not mention the radiator. Mr Shute said that his letter was written about a year before Performance West's invoice of 22 October 2014, although he also said his inspection was in August 2013. Mr Shute said that he did not put a tray under the radiator to see if it leaked, but that the vehicle had been in his workshop for long enough for him to have seen a leak in the radiator if it existed. His conclusion was that the radiator was not leaking when he had the vehicle in 2013.

1. At page 183I of the Tribunal book is a photograph of the engine, within the report of Mr Style. The photograph purports to depict a leak of coolant, but my observation of the photo is that it falls far short of doing so as it shows the usual amount of dirt and grime that gathers within an engine bay. Mr Shute was asked to comment on this photograph and he said that it could depict anything, and he was not convinced that it showed leaking coolant. Mr Shute also said that as the radiator operates under pressure, it would be unlikely in his view that the vehicle would be able to travel so many kilometres if there was a leak in the radiator. This comment is within Mr Shute's expertise and I accept the logic behind it. Mr Shute was cross-examined on matters to do with the radiator, but made no concessions and stood by his evidence in chief.

1. Mr Stalteri has not had the radiator repaired, and on the evidence presented has not had any pressure testing done on the radiator. He gave evidence of having to top up the coolant, and having used some 60 litres of coolant over a period of time. However he did not produce any evidence of having purchased this coolant. He said somewhat vaguely that he had obtained it from his employer, but he did not mention whether this had been done with permission. I found this part of his evidence difficult to accept.

1. I do not accept that Mr Stalteri has proven his allegation of a leak in the radiator, and I dismiss this claim.

Cost to install a rubber seal below the left side of the bonnet $150.00

1. During the hearing Traralgon admitted this claim and accordingly I allow $150.00 in favour of Mr Stalteri.

1. The evidence establishes that the foot brake was defective. Traralgon seeks to avoid liability on the basis that Mr Stalteri modified the foot brake. Whilst Mr Roxburgh put this in terms of the warranty being void, his legal practitioners submit that Mr Stalteri's conduct amounts to abnormal use within the meaning of section 54 of the Australian Consumer Law.

1. The so-called modification is that the cable was rubbing on a component of the chassis, because Traralgon had not installed it with proper care_._ A parking brake cable simply should not rub against the chassis. Mr Stalteri welded a small piece of metal onto the chassis to act as a guide for the cable, to stop it rubbing. This was akin to applying a bandaid and, given that Mr Stalteri had the vehicle in rural Western Australia when he did this minor item of work, making it entirely impractical to send the vehicle back to Victoria for Traralgon to repair its defective work, it is frankly outrageous for Traralgon to defend the claim on the basis that Mr Stalteri had voided the warranty. It is a gross exaggeration to suggest that Mr Stalteri's installation of the guide was a modification of the vehicle. Nor do I accept the submission that it amounted to abnormal use of the vehicle.

1. Mr Style's written report says that Mr Stalteri's temporary solution is inadequate and, at page 9, that Performance West has suggested $600.00 as the cost of rectification. Mr Shute was asked about the handbrake in giving evidence in chief, but his answers focused on the fallacious assertion that Mr Stalteri had voided the warranty by doing the work rather than addressing the cost of rectification. When he was cross-examined, Mr Shute agreed with the proposition that Traralgon's method of installing the cable had been inadequate and that it amounted to a poor aspect of the conversion to right hand drive. Mr Shute said that rectification was required, but when shown photographs it was clear that Mr Shute was saying that Mr Stalteri's temporary repair would have to be removed. In cross examination Mr Shute did not comment on the cost of rectification.

75. Mr Roxburgh did not give evidence on the cost of rectification.

76. On the basis of the evidence I award $600.00 to Mr Stalteri.

Cost to repair a water leak through the left front door seal: new seal

1. Mr Stalteri relies on the service tax invoice of Performance West dated 22 October 2014, which appears at page 183A - 183C of the Tribunal Book. On the second page of this document Performance West wrote, "Complaint - left-hand front door seal requires replacement. Cause - no fault found. Correction - inspected the seal and found no leaks or defects. No correction. Complaint - replace the carpet and underlay. Cause - unknown. Correction - due to time restraints, the underlay/carpet was not inspected and the cause of the water leak was not diagnosed. Note - seats, carpet etc would need to be removed to carry out a visual inspection and water leak test".

1. Mr Shute gave evidence that when he inspected the vehicle in 2013, before Performance West, he thoroughly inspected it for water leaks and found none. He said that he did extensive water testing and found that there were no water leaks. He said that the photograph of the inside of the vehicle at page 214 of the Tribunal Book was consistent with someone getting into the vehicle with wet boots, or driving across a creek. He said that if the vehicle was leaking he would expect to see photographs of soaking wet carpet, but that the photograph showed no such thing.

1. Mr Roxburgh gave evidence that the door seal is not removed during the conversion process.

1. Mr Stalteri did not give evidence that he had subjected the vehicle to water testing.

1. I do not consider that there is sufficient evidence to verify Mr Stalteri's claim for this item, and I dismiss this part of the claim.

Cost to repair some drilled holes and rust spots under the kick panel at the left front door $250.00

1. A lot of evidence was given on this item. When you boil down the evidence, it amounts to this. Some holes have been drilled under the kick panel. Filings have been left in the area. This is a problem because filings can rust and rust can then spread. Mr Stalteri says that he did not drill the holes and that they must have been done by Traralgon. Traralgon says that it did not drill the holes, and that it knows this because if it drills holes it is careful not to leave filings and it also patches the holes with silicon or the like and there is no evidence of silicon being left on these holes. I note at this point that even though the word "rust" is used, this issue is not about the creation of a serious rust problem which undermines the structural integrity of the vehicle. It is a matter of some discolouration. Clearly the matter could be addressed by vacuuming away any remaining filings and then applying an anti-rust treatment. Mr Stalteri's estimate is $250.00, based on the invoice of Performance West.

1. I consider on the balance of probabilities, that is more likely than not that the holes were created by Traralgon, and I find that it is liable to compensate Mr Stalteri in the sum of $250.00.

Cost to repair/replace the faulty motor in the driver's seat $400.00

1. As Traralgon pointed out in its closing submission, this issue was not raised by Mr Stalteri until he filed the second version of his Points of Claim, more than a year after taking delivery of the vehicle. The point made by Traralgon's legal practitioners is that the one-year conversion warranty had expired by this time. Accepting that this is so, it still leaves the question of whether a motorised driver's seat which fails a bit after a year from the sale of a new vehicle is of acceptable quality within the meaning of the Australian Consumer Law.

1. Traralgon submitted that the likely explanation for any defect was abnormal use or fair wear and tear. I must disagree. There is no evidence of the driver's seat being subjected to abnormal use, and one questions how one could abnormally use the driver's seat. Nor is it appropriate to talk of this as wear and tear.

1. Traralgon complains in its submission that Mr Stalteri essentially relies on his own observation that the driver's seat is defective, rather than producing expert evidence as to the diagnosis of the cause of the defect. However this complaint is misguided. The issue under the Australian Consumer Law is whether the goods are of acceptable quality, as required by the consumer guarantee in section 54, and where a driver's seat in a relatively new car does not operate properly, which I accept is the case here, it is not the task of the consumer to prove why the defect has arisen. Mr Roxburgh of Traralgon also said that when a vehicle is converted, the motorised components are not touched by it, but again this is irrelevant because Traralgon is the supplier of the vehicle to Mr Stalteri.

1. In relation to quantum Mr Stalteri relies on the service tax invoice of Performance West dated 22 October 2014, in which it wrote the following: "Complaint - driver's side seat does not operate in all directions at times. Cause - unknown. Correction - due to time restraints the seat switches were not removed to check. Note - possible dry solder joints in the switches, from conversion. May need new switches $400.00"

1. To my mind this very superficial evidence only suggests that $400.00 is a minimum charge that might be billed by an automotive technician in relation to a defect, and I accept it as evidence only to that extent. Mr Stalteri bears the risk of not producing better evidence, and a more accurate costing, on the issue.

1. Mr Shute gave evidence that when he inspected the vehicle in 2013, the driver's seat was not brought to his attention. He said in general terms that had he been told of a problem with the driver's seat, he would have adjusted it. He did not speak of the cost that would have been charged for such work.

1. The evidence establishes that there is a defect in the driver's seat, and that a cost of at least $400.00 would be incurred in investigating and rectifying it. I award $400.00 to Mr Stalteri.

Australian Customs charges on the imported H & S Tuner $206.70

1. Mr Stalteri's claim is that Traralgon was to supply and fit the H & S Tuner, and that when it initially did not do so Mr Stalteri imported it, incurring this customs charge. Traralgon says that the claim cannot be brought as if it is a remedy for a breach of a consumer guarantee under the Australian Consumer Law, which I accept, but also that it cannot be brought under the law of contract either.

1. I quoted from the contract of sale above and there is no doubt that Traralgon was to supply and fit the H & S Tuner. As I see it, in breach of the contract Traralgon said that it was unable to supply the item and in order to mitigate his damages arising from that breach Mr Stalteri imported the item. Traralgon then installed it, using the Dashboard Doctor as its subcontractor. I consider that Traralgon is liable to compensate Mr Stalteri for the Customs expense. As a matter of contract law, money spent by a person in order to mitigate their damage is able to be claimed.

1. I dismiss this part of the claim. Mr Stalteri did not actually give evidence in support of it. The contract is not entirely clear as to the date on which the vehicle was to be delivered. I do not accept that this expense amounts to damages arising from a breach of contract.

1. Traralgon alleges that the key, and other items, were purchased by Mr Stalteri in these circumstances. Mr Stalteri was unhappy with the standard key supplied with the vehicle. He purchased a key as a replacement, and Traralgon says that he received a refund/credit from Traralgon. I have examined the documents in which Traralgon says this refund/credit was given, but I do not see the cost of the key being credited. Further, Mr Stalteri says that he had a spare key cut, because new vehicles come with two sets of keys but Traralgon delivered the vehicle with only one key.

1. I accept Mr Stalteri's assertion that new vehicles come with two sets of keys. It follows that it was an implied term of the contract of sale that this expensive new vehicle would come with two sets of keys. I accept Mr Stalteri's evidence that he only received one key. It follows that Traralgon breached the contract, by supplying a new vehicle with only one key. Mr Stalteri is entitled to damages.

1. Despite Mr Stalteri claiming $60.00, it is clear from the invoice issued by Performance West on 16 April 2013 (document 132 in the Tribunal Book), that the key cost Mr Stalteri only $50.00. I award $50.00 to Mr Stalteri as damages for breach of contract.

1. Mr Stalteri said that when he took delivery of the vehicle on 12 April 2013 he saw that it had not been supplied with the bed liner. Unlike the position with the spare key, Traralgon's Credit Note 570, at page 327 of the Tribunal Book (and being Exhibit R4), shows Mr Stalteri receiving a credit of $458.00 including GST in respect of the bed liner. That sum slightly exceeds the $405.64 excluding GST which Mr Stalteri claims. On 13 June 2013 Mr Stalteri wrote to Traralgon acknowledging that he had been credited for the bed liner. This leads me to dismiss this part of the claim.

1. As with the bed liner, Traralgon's Credit Note 570, at page 327 of the Tribunal Book (and being Exhibit R4), shows Mr Stalteri receiving a credit of $145.00 including GST in respect of the door handles. That sum exceeds the $100.45

excluding GST which Mr Stalteri claims. On 13 June 2013 Mr Stalteri wrote to Traralgon, acknowledging that he had been credited for the door handles. This communication is document 143 in the Tribunal Book. I dismiss this part of the claim.

1. As with the two items above, Traralgon's Credit Note 570, at page 327 of the Tribunal Book (and being Exhibit R4), shows Mr Stalteri receiving a credit of $208.00 including GST in respect of the door handles. That sum greatly exceeds the $46.55 excluding GST which Mr Stalteri claims. On 13 June 2013 Mr Stalteri acknowledged having received this credit in writing. Accordingly, I dismiss this part of the claim.

Cost of one week's loan repayment, during the delay in delivery $520.00

1. The contract is insufficiently certain as to the date for delivery of the vehicle to render one week's loan repayment damages for breach of contract. I dismiss this part of the claim.

Cost of one week's insurance, during the delay in delivery $32.00

104. For the same reason as in the previous paragraph, I dismiss this part of the claim.

Cost of transport of rims, tyres and exhaust $594.00

1. Traralgon concedes that it did not supply the TerraGrappler tyres and MHT rims which were specified in the contract, and that the vehicle was therefore sent to Mr Stalteri with its 'original' tyres and rims. Traralgon says that the parties agreed that it would send Mr Stalteri the specified tyres and rims when they arrived from overseas, and that Mr Stalteri would then return the originals. Traralgon says that it did eventually supply Mr Stalteri with the specified tyres and rims and it alleges that he did not return the originals. This does not go to the issue of Mr Stalteri being entitled to the specified tyres and rims under the contract to purchase the vehicle. Mr Stalteri is entitled to the cost he incurred in having the specified items delivered to him. It is a simply matter of Traralgon being in breach of the contract, and of Mr Stalteri incurring the transportation costs by way of damages. I award $594.00 to Mr Stalteri.

Cost of 3 day's car hire, when water entered the vehicle $200.66

1. Mr Stalteri has not proven that water did enter the vehicle as a result of any breach of obligation on Traralgon's part and I dismiss this part of his claim.

1. The contract of sale did not say that the vehicle would be fitted with doorsill plates which bore the word "Chevrolet". The contract only said that they would be "brushed aluminium". It follows that Mr Stalteri cannot succeed in his argument that the plain doorsill plates that were fitted to the vehicle were defective or in breach of contract because they did not display that word. His claim in this respect is for the cost of an optional extra which was not part of the contract. I dismiss this claim.

1. The contract did not include the supply of an all weather floor mat. There is no implied term requiring its supply. Mr Stalteri's claim in this respect is for the cost of an optional extra which was not part of the contract. I dismiss this claim.

1. The contract specified that a Magnaflow full stainless steel 4 inch split exhaust system would be supplied. The specified cost was $880.00. It was not supplied.

1. Traralgon issued to Mr Stalteri a credit note, by way of Invoice 590 dated 11 July 2013 (page 77 of the Tribunal Book) which credited Mr Staltteri $823.90 plus $74.90 GST in respect of this. The credit slightly exceeds the $880.00 claimed, and provided Mr Stalteri has been paid or credited $880.00 I would dismiss this part of the claim.

Cost of car hire, which Traralgon agreed to pay $139.80

1. Traralgon denies having agreed to pay this sum. I think it is likely that Traralgon did not agree to pay this amount, having regard to the level of customer service afforded Mr Stalteri and Traralgon's willingness to assert that its warranty was "void".

1. Once again, the success of this claim depends on Mr Stalteri establishing that a firm date for delivery of the vehicle was set in the contract, such that a delay in delivery would amount to a breach of contract. Mr Stalteri is unable to establish this, and I dismiss this claim.

Cost of freight for a hard lid to be transported from USA $600.00

1. The contract said that a hard lid was to be supplied, at a cost of $1,830.00 within the overall purchase price.

1. Mr Stalteri said that when he took delivery of the vehicle on 12 April 2013 he saw that it had not been supplied with the hard lid.

1. Mr Stalteri said that the hard lid was delivered on 30 July 2013, even though he had taken delivery of the truck on 12 April 2013. Whilst in paragraph 7 of its Points of Defence Traralgon says that it contacted Mr Stalteri about what accessories had been fitted, before shipping the vehicle to him, Mr Stalteri denies that this occurred. Traralgon says it credited Mr Stalteri for the item.

1. Mr Roxburgh gave evidence that Chevrolet Conversion Centre fitted the hard lid, and charged for this work within its invoice dated 2 May 2014 (document 80). Traralgon passed the charge of $1,920.00 on to Mr Stalteri, in its invoice 802 (document 79).

1. In its Credit Note 568 (exhibit R6), Traralgon credited Mr Stalteri $90.00 in respect of the hard lid. It seems that this was to reduce that charge of $1,920.00 back to the contract sum of $1,830.00.

1. What is missing from Traralgon's case is evidence that it credited Mr Stalteri the $1,830.00. As Mr Stalteri paid for the hard lid within the purchase price of $135,012.68 if Traralgon fails to credit Mr Stalteri this $1,830.00 Mr Stalteri will be paying for the hard lid twice. I award $1,830.00 to Mr Stalteri.

1. This is the sum which Mr Stalteri paid to Performance West on 15 July 2013 for its work in seeking to identify the cause of problems with the vehicle. Even if Traralgon had not been arguing by this point that Mr Stalteri had voided the warranty, the diagnostic work could not be carried out by Traralgon because the parties were geographically so far apart. It was reasonable for Mr Stalteri to engage Performance West. I find that Traralgon is liable to reimburse Mr Stalteri this sum.

120. In the above circumstances I find that the arithmetic is as follows:

(a) sums which I have found are payable by Traralgon to Mr Stalteri:

Add the credit of $56.10 which Traralgon says is still due to Mr Stalteri ( in respect of Invoice 590 and Credit note 805)

(b) claims which I reject because Mr Stalteri has acknowledged that Traralgon has already credited them:

1. Traralgon acknowledges that Mr Stalteri ordered TerraGrappler tyres and MHT wheel rims, but says that because the MHT Wheel rims were not available on time it supplied the vehicle with a set of standard wheel rims. Traralgon included a charge of $2,809.00 including GST for the specified tyres and rims in its invoice 503 dated 22 February 2013. An invoice for $594.00 from Willaton Transport, dated 20 June 2013, in respect of a "pallet (of) car parts" is said to evidence the supply of the MHT rims, tyres and an exhaust system, and I have found above that Mr Stalteri should not have been required to pay that invoice and I have awarded the sum of $594.00 to Mr Stalteri. The Willaton invoice is document 149 in the Tribunal Book.

1. Traralgon says the parties agreed that when it supplied the MHT rims, Mr Stalteri would return the standard rims. Traralgon's Invoice 804 for $1,000.00, dated 15 March 2013, is in respect of Traralgon's supply of the MHT rims. Traralgon says that Mr Stalteri has not returned the original rims, and so Traralgon claims $1,000.00.

1. Document 125 in the Tribunal Book is an email from Traralgon to Mr Stalteri dated 11 April 2013, in which Traralgon wrote about the MHT rims. The author reported that the rims, and other items, were in a particular DHL courier shipment, and she concluded that Traralgon would keep in contact and advise Mr Stalteri of progress. There was no mention in this email of Mr Stalteri having to return the original rims at his expense.

1. On 12 June 2013 Traralgon emailed Mr Stalteri (document 143 in the Tribunal book), saying that it had "got from the container 5 tyres and rims" and "I'll get the stuff I have to you as soon as I can". On 13 June 2013 Mr Stalteri replied, "After going through my paperwork, I remembered that (Traralgon) refunded me the bedliner, under seat storage and chrome door handles so please don't send with my other items". This email was document 143 in the Tribunal book.

1. There is no evidence of the value of the rims, and as the MHT rims are apparently special compared to the originals, I can see no basis for Traralgon asserting that $1,000.00 is their value. The parties had written to each other about numerous matters, and particularly about the late supply of the MHT rims, but had not mentioned in them any arrangement about Mr Stalteri having to return the rims at his expense. In these circumstances I do not accept the basis of Traralgon's claim for $1,000.00 and I dismiss this part of its counterclaim.

Invoice 590 and Credit Note 805 (which lead to a credit to Mr Stalteri of $56.10)

1. Traralgon says that it supplied a number of parts to Mr Stalteri, valued at $823.90, set out in Invoice 590. Against this invoice, Traralgon credited Mr Stalteri $880.00 in respect of an exhaust system, set out in Credit Note 805 dated 11 July 2013. This leads to a credit of $56.10 being due to Mr Stalteri. The credit is to be taken into account in the overall calculation.

1. Traralgon says that it engaged Chevrolet Conversion Centre to inspect the vehicle when Mr Stalteri complained that there was an intermittent problem with starting the vehicle. Traralgon complains that Mr Stalteri instructed Chevrolet Conversion Centre to carry out work on the vehicle, and without authorisation told it to bill Traralgon. Even though Traralgon has not paid Chevrolet Conversion Centre, it has billed Mr Stalteri for this expense on the basis that it has a contingent liability to Chevrolet Conversion Centre. The bill is Invoice 802, dated 12 August 2013, which includes: Invoice of Chevrolet Conversion Centre $1,920.00 plus Traralgon's own administration costs $90.00, and GST $201.00. It totals $2,211.00.

1. Mr Stalteri says that Traralgon told him to book the work up on its account with Chevrolet Conversion Centre. Document 18 of the Tribunal Book is Chevrolet Conversion Centre's invoice. Bearing in mind that Traralgon has not paid it, I must say that the invoice does not seem genuine. It is addressed to "ACS" but without a street address. It says that 16 hours work has been performed, so it applies a charge out rate of $120 per hour without saying so expressly. Its text is very rough, as if thrown together. It does not identify an ABN. Without correction it reads, "dash lights coming on. Vehical will not start. Problem in canbus system. we buy pased can wires from bcm to glow plug control module. Tested vehicle had nom problyms time spent on vehical 16 hours $1920".
2. Mr Kris Shute of Chevrolet Conversion Centre gave evidence for Traralgon. When he was cross-examined he said that Mr Roxburgh of Traralgon knew of Chevrolet Conversion Centre, and that the two businesses had dealt together "for years." He was asked if the above invoice was a "dummy bill." Mr Shute said that he had done the work mentioned on the bill, and more. Mr Shute said that there were no legal proceedings anticipated when the bill was prepared, and each of Traralgon and Chevrolet Conversion Centre billed each other in a very short form. Mr Shute acknowledged that Traralgon had not paid the bill. The importance of the bill was to show the amount of hours spent, rather than describing the type of work performed. Mr Shute said that he was not a mechanic, but was a fabricator with common sense. Mr Shute said the reason the bill did not display an ABN, was that the business changed hands.

1. I consider the evidence about this invoice for $1,920.00 to be most unsatisfactory. As the invoice is dated 6 March 2014, and remains unpaid around 20 months later, and seems to have been issued by a defunct business, I do not find that Traralgon has any intention of paying the invoice from its own money. I do not consider that Traralgon believes it has a liability to Chevrolet Conversion Centre. Clearly Chevrolet Conversion Centre has not pressed for payment. The two businesses seem to have the attitude that if the money can be obtained from Mr Stalteri they are happy for Chevrolet Conversion Centre to have it.

1. On the other hand, Mr Stalteri's evidence was that Traralgon told him to take the vehicle to Chevrolet Conversion Centre for it to be repaired, but that once Chevrolet Conversion Centre did its work Traralgon refused to pay its bill. I accept Mr Stalteri's evidence on this point. As he was in Western Australia, and Traralgon was in Victoria at the time of this work, it is likely that Traralgon would appoint a business with which it had had prior dealings to attend to a warranty matter. Traralgon's refusal to pay is consistent with its fallacious assertion that Mr Stalteri had voided the warranty on the vehicle.

1. I am not convinced, on the balance of probabilities, that Chevrolet Conversion Centre's invoice is payable at all. I dismiss this part of the counterclaim.

1. The exhaust system, which is the subject of the credit of $880.00 in Credit Note 805, was returned to its manufacturer in the USA. The shipping company was CFR Rinkens. Similarly to the dispute over Invoice 802, Traralgon says that it has been billed by CFR Rinkens, and that it has not paid that bill because Mr Stalteri should. It has invoiced Mr Stalteri for this expense on the basis that it has a contingent liability to CFR Rinkens. Invoice 803, dated 25 September 2013, includes the Invoice of CFR Rinkens $818.54, Traralgon's administration costs of $180.00 and GST $99.85. It totals $1,098.39.

1. CFR Rinkens' invoice does not specify what was transported. It is in the standard form that has room for this type of information, but only records that a quantity of "one" was transported, and that the item of cargo had a weight of zero and a size of 0 Cubic feet. Of the US $724.00 charged, only US $250.00 appears to be for actual freight movement within the USA, and all other components are administration fees. The invoice does not charge for a freight movement from Australia into the USA. CFR Rinkens' invoice is most unusual.

1. It is unclear why Traralgon's "administration costs" in respect of Chevrolet Conversion Centre is around 5%, but that in respect of Rinkens it is around 22%. As Traralgon has not paid Rinkens for over 2 years, and Rinkens' invoice does not seem to charge for an actual return of goods from Australia to the USA, I am not prepared to find that Mr Stalteri has any liability in respect of the matter. I dismiss this part of the counterclaim.

1. Mr Stalteri's claim against Mr Nicola must be dismissed. Mr Stalteri did not set out any grounds upon which Mr Nicola could be personally liable to him. This may be understandable at the commencement of the proceeding, as Mr Stalteri was self represented, but it becomes less understandable as the proceeding continued, given that a compulsory conference was held in the matter in which, I would expect, legal issues would have been discussed on a private and without prejudice basis, and where Mr Stalteri amended his Points of Claim several times. Had Mr Nicola had separate legal representation to Traralgon, the failure of Mr Stalteri's claim against him may have been important. However, even though Mr Stalteri's claim against Mr Nicola has proven to be baseless, it is not apparent that any additional costs were incurred by Mr Nicola. Nevertheless it is appropriate to reserve Mr Nicola's costs, as he may seek to make submissions on that issue.

1. The sum payable to Mr Stalteri on his claim is $5,636.80.

1. No sum is payable to Traralgon on its counterclaim. I will, therefore, dismiss Traralgon's proceeding C2914/2014.

[1]See Chapter 7 of the Australian Consumer Law and Fair Trading Act 2012 and clauses 4C and 4I(1) of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998

[2]In Traralgon's closing Submission, it submitted that Mr Nicola should never have been a party personally as Mr Stalteri did not articulate a claim against him, and that he had no involvement in the transaction other than by being a director

[3]The price "includes" on road fees because the price is expressed as $120,900.00 plus $5,390.00 on road costs