Thomet v Butcher [2026] NSWCATAP 115;

1. On 22 September 2024, the respondent requested the appellant to repair his motor vehicle. The oil light on the motor vehicle was continually flashing even after he filled the motor vehicle with oil. The respondent took the motor vehicle to his usual mechanic at Mudgee Service Repair Centre, but the repair shop was not open, and it was suggested that he may consider using the repairer across the road, Bzar Performance, which was operated by the appellant. The motor vehicle was left with the appellant who diagnosed the problem as being excess oil in the engine, which the appellant drained, and a faulty turbocharger that needed replacement. The respondent was given a quotation for the replacement of the turbocharger. After finding a less expensive turbocharger, the respondent provided the cheaper turbocharger to the appellant to use as the replacement part. The appellant used the part supplied by the respondent to complete the turbocharger replacement. The motor vehicle was ready to be returned to the respondent on 26 September 2024. When the respondent picked up the motor vehicle, he noticed that there was still smoke coming out and there was a rattle in the car. He says that he was told by the appellant that the smoke was caused by residual oil in the exhaust as a result of the excess oil that the respondent had filled the engine with prior to the repair and that the timing chain "might be a bit stretched".
2. The appellant drove the vehicle away and after about 20 minutes, the motor vehicle broke down in the middle of the road. The respondent organised for the motor vehicle to be towed back to the appellant's premises, and it was left outside the workshop area. There was further communication between the appellant and the respondent in relation to the repairs required and on 30 September 2024, the appellant told the respondent that the timing chain had snapped. What followed was a dispute between the appellant and the respondent about the cause of this damage, evidenced by the text communications.
3. The motor vehicle was then taken to the respondent's usual repair workshop, and his repairer reportedly told him that he did not believe the turbocharger had been the original problem and confirmed the timing chain had failed. Thereafter, the respondent attempted to engage with the appellant and requested that he pay for the repair of the motor vehicle by the Mudgee Service and Repair Centre. When the appellant refused to pay for the repair, the respondent made a complaint to NSW Fair Trading in an attempt to resolve the issue. As part of the process, the respondent was advised by NSW Fair Trading that the appellant was not licenced.
4. The issue did not resolve, and the respondent commenced proceedings against the appellant on 6 December 2024. He alleged that the appellant had misdiagnosed the problem and did not fix the vehicle, resulting in further damage.
5. On 30 May 2025, the proceedings came before the Tribunal for hearing. It is recorded in the decision that the proceedings were heard online by AVL from Tamworth and that the respondent did not appear and there was no evidence filed, served or tendered by the respondent [4]. At [8], it was further noted that, there being no appearance by the appellant (then the respondent), there was "uncontested evidence", which the Tribunal set out at [8]−[13]. Relevantly, the Tribunal repeated and accepted the evidence filed by the respondent at [10] to the effect:

The respondent said to expect some smoke from oil in the exhaust but that the vehicle was fine, the timing chain is a bit stretched causing some ongoing rattling, but not to worry about that. The applicant asked the respondent: "Apart from the smoke is the car drivable?. The respondent said replied: "Yes". The applicant paid the invoice and recovered the vehicle. The applicant described that he relied upon the advice of the respondent in driving the vehicle toward his home.

1. The Tribunal states that after 20 minutes of driving the motor vehicle lost power and the oil and engine lights came on. The vehicle was towed back to the appellant's premises [11]. The respondent was then advised by the appellant, which is not in dispute, that the timing chain had snapped, also at [11].
2. In the hearing before the Tribunal the respondent relied on a written report of Mr Smith, who is the head mechanic of the Mudgee Service and Repair Centre, to the effect that the timing chain had snapped and appeared to have seized the camshaft in the head, which would have done irreparable damage [12]. The report concluded that the engine needed to be replaced as it was no longer repairable at a cost of $10,625.95 and the author also opined that the replacement of the turbocharger was never required, also at [12].
3. The Tribunal set out its findings at [14]−[20]. The Tribunal was satisfied that it had jurisdiction to hear and determine the matter under ss 60 and 61 of the Australian Consumer Law (NSW) (ACL) [14]. The Tribunal was also satisfied that the damage to the motor vehicle resulted from the breaking of the timing chain, which broke within 20 minutes of the appellant telling the respondent it was "ok to drive", also at [14]. The Tribunal found that, without the incorrect advice the applicant (now the respondent in this appeal), would not have driven the vehicle. The timing chain could have been changed without any further driving, thereby avoiding the damage [14]. The Tribunal found that it was reasonably foreseeable that the respondent would have suffered the damage claimed [16]. The Tribunal was satisfied at [17] that there had been a breach of the consumer guarantees of due care and skill within the meaning of s 60 ACL and the guarantees to fitness for the purpose for which they were intended with the meaning of s 61 ACL.
4. The Tribunal was also satisfied that this was a major failure within s 268 of the ACL and that the respondent was entitled to recover damages under s 267(4) ACL, at [18]−[20]. However, the Tribunal was not satisfied that the respondent could recover all of the damages claimed and therefore limited those damages to the damages that the Tribunal considered would have been reasonably contemplated by the parties at the time of the contract [25].
5. The Tribunal ordered that the respondent was entitled to a refund of monies for the services paid to the appellant of $450, a refund of the supplied turbocharger which cost $850, the cost of replacement of a used engine at a cost of $8000 and for labour and parts and hire car cost of $1000.
6. The appellant appeals this decision and contends he did not receive the notice of the hearing or the notice of decision which records his address as unit 5A, 5 Industrial Ave, Mudgee. The appellant does not dispute that this is his business address.

1. Section 80(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) provides that a party may appeal the 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. If a party does not raise a question of law, the party must seek, and be given, leave to appeal from a decision of the Tribunal at first instance.
3. The circumstances in which the Appeal Panel may grant leave to appeal under s 80(2)(b) from decisions made in the Consumer and Commercial Division are limited to those set out in cl 12(1) of Sch 4 to the NCAT Act. In such cases, the Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice on the basis that:

(a) the decision of the Tribunal under appeal was not fair and equitable; or

(b) the decision of the Tribunal under appeal was against the weight of evidence; or

(c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).

1. In Collins v Urban [2014] NSWCATAP 17 (Collins), the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) of Schedule 4 may have been suffered where:

... there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance.

1. Even if an appellant from a decision of the Consumer and Commercial Division satisfies the requirements of cl 12(1) of Sch 4, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b). In Collins, at [84], the Appeal Panel stated that the appellant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact.

1. The appellant contends that decision was not fair and equitable because he did not have the opportunity to defend the claim made or to present his case. He says he did not receive the notice of hearing or the notice of the decision and was unaware that the proceedings were on foot until he received the letter from the Sheriff's Office on 28 October 2025. He says that if he had known about the hearing, he would have provided evidence contesting the orders made on the grounds that he told the respondent there was a problem with the timing chain, yet the respondent refused to have it fixed. The appellant disputes the respondent's version as set out in paragraph [10] of the decision. He otherwise agrees that he repaired the motor vehicle by replacing the turbocharger and that the timing chain snapped after the respondent drove the motor vehicle away from his workshop. He states that he told the respondent at the time he came to pick up the vehicle that the timing chain was stretched and required replacement at a cost of $1,300. The appellant further states that the respondent said he could not afford this and he took the car of his own free will.
2. The appellant provided further submissions to the Appeal Panel on 4 February 2026 in support of his appeal, including a statement outlining his version of events, a short statement from his wife which he contends supports his version and a quotation dated 27 September 2024 for the replacement of a timing chain in the sum of $1,334.75. He also provided correspondence with NSW Fair Trading relating to his application for his motor vehicle repairs licence dated 1 August and 30 August 2024. The correspondence reveals that the appellant made an inquiry about licencing and had a telephone conversation with NSW Fair Trading on 1 August 2024. He was advised that if he was a sole trader, it was his responsibility under the Motor Dealer and Repairs Act 2013 to possess or employ a qualified person who holds a motor vehicle tradespersons certificate in the relevant class of repair work. In the email from the appellant to NSW Fair Trading dated 30 August 2024, the appellant enquired about how his application was going as he had not heard from NSW Fair Trading since he sent through his identification. There is no further information about the progress or status of the application, but there is a letter from NSW Fair Trading dated 25 October 2024 (which was in the evidence before the Tribunal) recording that the appellant did not hold a current motor vehicle repairs licence.

1. The respondent did not file a reply to appeal but on 8 January 2026 filed and served the documents that he relied on that were before the Tribunal at first instance. The respondent disputes the claims made by the appellant and also disputes the contention made by the appellant that he did not receive notice of the hearing. The respondent says that it is implausible that he did not receive the notice of hearing given he has since received all other documentation from the Tribunal, including documents served by the Appeal Panel.

1. The appellant does not dispute that he repaired the respondent's motor vehicle or that the timing chain snapped after the repair. What he does dispute is the contention by the respondent that the turbocharger did not need replacing and that he told the respondent he could continue to drive the motor vehicle even though the timing chain was stretched. These two matters are critical to the findings made by the Tribunal. The appellant further contends that he was not served with the notice of hearing, nor was he served with notice of the decision, which is why he did not appeal the decision until after he received the correspondence from the Sheriff's Office.
2. The appellant's grounds raise a question of law, namely, whether the appellant was denied procedural fairness by the Tribunal in proceeding with the hearing in his absence. It is well established that the failure to afford a party procedural fairness and the opportunity to present their case raises a question of law, which may lead to error and result in the decision under appeal being set aside where the denial deprives the party of the possibility of a successful outcome or a different result: Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141 at 145 and 147.
3. This is also recognised in s 38(5)(c) of the NCAT Act, which provides that the Tribunal is to take such measures as are reasonably practicable to ensure that the parties have reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings. However, as recognised by the Appeal Panel in Waters v Waghorn [2016] NSWCATAP 247 (Waters) at [27], "it will not be in every case where proceedings were heard in the absence of a party, that there will have been a breach of procedural fairness". This is because r 35 of the NCAT Rules provides that the Consumer and Commercial Division may hear and determine proceedings in the absence of a party who has failed to attend a hearing, if the Tribunal is satisfied that notice of the hearing was duly served or duly attempted to be served on the party.
4. Rule 35 of the NCAT Rules states:

Ex parte proceedings in Consumer and Commercial Division

(1) This rule applies to proceedings for the exercise of functions of the Tribunal that are allocated to the Consumer and Commercial Division of the Tribunal.

(2) Where a hearing is held for proceedings to which this rule applies, the Tribunal may proceed to hear the proceedings in the absence of a party who has failed to attend the hearing if -

(a) the Tribunal is satisfied that notice of the hearing was duly served on the party, or

(b) the Tribunal, being satisfied that service of notice of the hearing on the party has been duly attempted or having given directions under rule 15 to bring it to the notice of the party, considers that justice requires that the matter be dealt with in the absence of the party.

(3) If proceedings to which this rule applies are adjourned by the Tribunal in the absence of a party, a registrar is to give notice (or direct that notice be given) of the time and place of the adjourned hearing to the absent party.

1. Regulation 9(1) of the Civil and Administrative Tribunal Regulation 2022 (NSW) (NCAT Regulation) provides that the Tribunal may order that a decision it has made that determines proceedings be set aside or varied if the decision was made in the absence of a party and the Tribunal is satisfied that the party's absence has resulted in the party's case not being adequately put to the Tribunal. An application for an order under this section must be made within 7 days after the decision concerned was made: r 9(3).
2. As observed by the Appeal Panel in Waters at [27]:

Due to the existence of these rules and regulations, in the usual case, a party will not be denied procedural fairness merely because the proceedings were determined adversely to them in their absence.

1. Unfortunately, in this case the decision does not disclose the basis for the Tribunal proceeding in the absence of the appellant. There is no reference to r 35 or to the question of whether the Tribunal was satisfied notice of the hearing had been served on the appellant or that the notice had been attempted to be served and the Tribunal considered that justice required that the matter be dealt with in the absence of a party.
2. In Ryan Trenholme t/as Trenholmes Construction v Anthony Kurt Paltram [2015] NSWCATAP 36 (Trenholme) the Appeal Panel set aside the decision under appeal where the Tribunal proceeded in the absence of the respondent builder, yet the file did not disclose any record of consideration by the Tribunal of the exercise of this discretionary power. The Appeal further found at [16]−[18] as follows:

16. In view of the absence of reasons or record on the file, we conclude that either the Tribunal below did not consider or properly consider whether it could and should proceed ex parte to make final orders against Mr Trenholme or, if it did, error has occurred because of a breach of the duty to provide reasons.

17. With respect to the failure to provide reasons concerning the exercise of the discretionary power, there needed to be findings on material questions of fact concerning service of notice, referring to the evidence on which those findings were based and an explanation of the reasoning process for the conclusion to proceed ex parte: as to what is required of reasons for decision, see, for example, Director General, Department of Finance & Services v Porter [2014] NSWCATAP 6 at [32].

18. The extent of such reasons will vary with the circumstances and with the gravity of the orders being sought. Frequently, we would expect such reasons to deal with the issue quite shortly, particularly in the context of a sizeable daily list of matters for hearing.

1. In the present case, the only reference in the reasons to the role of the appellant in the proceedings at first instance, was that he did not appear and no evidence was filed, served or tendered by him at [4]. The Tribunal further noted at [8] that there being no appearance by the appellant (being the respondent), the Tribunal then relied on the "uncontested evidence" of the applicant (now the respondent). There is no reference to service of the notice of hearing or to r 35. It is not clear whether the appellant had been previously involved in the proceedings, he says not, and the respondent does not contend otherwise.
2. While the respondent submits it is implausible the appellant was not served with the notice of hearing or the notice of decision, the appellant says he was not served and was unaware of the hearing until he was notified of the money order from the Sheriff's Office. The appellant says that he then rang the Registry to obtain a copy of the decision, which was emailed to him. There is no dispute that the appellant lodged his appeal on 19 November 2025, which is within a few weeks of the time he says he received notice of the decision.
3. We accept the respondent's submission that it is difficult to understand how the appellant did not receive the notice of hearing or the decision at his business address, which is the address he provided in the Notice of Appeal and is the address used by the respondent to serve documents. Despite this, there is no evidence to the contrary either from the respondent or evidenced by the file. It is possible there was some error in the address which infected the service of all documents in the proceedings at first instance and the appellant's actions in filing an appeal soon after he says he became aware of the decision is consistent with his version that he did not receive notices from the Tribunal. Relevantly, there is no record in the decision of inquiries made by the Tribunal about these issues, nor does the decision record that the Tribunal turned its mind to the question of whether it could or should proceed under r 35 of the NCAT Rules.
4. In our view, and consistent with the decision of the Appeal Panel in Trenholme, this was either:

(a) a failure of the Tribunal to provide adequate reasons about the exercise of discretion to proceed but, more relevantly, this discloses a failure of the Tribunal to properly exercise its discretion to proceed because there is no record that the Tribunal turned its mind to the discretion under r 35; or

(b) that appellant was not afforded procedural fairness in circumstances where there is no record in the decision that the preconditions in r 35 had been satisfied.

1. There was no transcript provided for the hearing by either party to establish whether the Tribunal raised this as a preliminary issue or made enquiries at the outset of the hearing. We would not expect the appellant to provide such evidence as he is entitled to rely on the reasons. Nor did the respondent contend that this was the case in his oral submissions.
2. We are satisfied that if the appellant had attended the hearing and presented his case there was a possibility of a different outcome. This is because the appellant contends he told the respondent about the timing chain. He also contends the turbocharger did need to be replaced. If this evidence had been presented to the Tribunal and had been accepted, there is a real possibility that the proceedings may have resulted in a different outcome. For instance, this is not a case where the critical facts are not in contest or where the documents provided by the respondent are incontestable and compel a conclusion in support of the respondent's case at first instance.
3. In this regard, we note there is some inconsistency in the statements made by the respondent in support of his claim and the text messages between the appellant and the respondent dated 30 September 2025 and the quotation said to have been provided to the respondent for the repair of the timing chain on 27 September 2025. These are matters that may have been explained and tested by the parties in the evidence before the Tribunal.
4. In summary, we are satisfied that the appellant was denied procedural fairness because the Tribunal proceeded to hear and determine the case in his absence. We are not satisfied the Tribunal properly turned its mind to the discretion under r 35 of the NCAT Rules to proceed in the absence of the appellant.

(1) The appeal allowed.

(2) The orders made by Tribunal on 6 June 2025 be set aside.

(3) Remit the proceedings to the Consumer and Commercial Division for reconsideration on such evidence as the Tribunal sees fit.

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.