Atalla v West End Motor Group Pty Ltd t/a West End Mazda

[2022] NSWCATCD 168

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

Atalla v West End Motor Group Pty Ltd t/a West End Mazda [2022] NSWCATCD 168

Hearing dates:

1 September 2021, 27 October 2021, 20 December 2021, 10 January 2022, and 18 February 2022

Date of orders:

8 August 2022

Decision date:

08 August 2022

Jurisdiction:

Consumer and Commercial Division

Before:

P French, Senior Member

Decision:

(1) West End Motor Group Pty Ltd t/a West End Mazda must pay Edmond Atalla $7,225.00 immediately.

(2) West End Motor Group Pty Ltd t/a West End Mazda must pay Edmond Atalla his costs of the proceedings in the lump sum of $2,790.00 immediately.

(3) The application is otherwise dismissed.

Catchwords:

CONSUMER LAW – Application of Australian Consumer Law – Australian Consumer Law (NSW) -due care and skill

Legislation Cited:

Australian Consumer Law (NSW) – s 54, 60, 259, 260

Fair Trading Act 1987 (NSW) – ss 28, 79N, 74

Cases Cited:

Becchara trading as Bechara and Company v Bates [2016] NSWCA 294

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

Hadley v Baxendale [1854] EWHC J70

March v Stramare (E & MH) Pty Ltd [1991] HCA 12; (1991) 171 CLR 506

Megeditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120

Category:

Principal judgment

Parties:

Edmond Atalla (Applicant)
West End Motor Group Pty Ltd t/a West End Mazda (First Respondent)
Hills District Repair Centre Pty Ltd (Second Respondent)

Representation:

Applicant (self-represented)
M Constable and S Rochford (First respondent)
J Bandan, E Kanbour, and R Dib (Second respondent)

File Number(s):

MV 21/23826

Publication restriction:

Nil

REASONS FOR DECISION

Introduction

1. This is an application by Edmond Atalla (the applicant) for an order pursuant to s 79N(a) of the Fair Trading Act 1987 (FT Act) that would require West End Motor Group Pty Ltd t/a West End Mazda (the first respondent) or Hills District Repair Centre Pty Ltd t/a Q-West Collision Centre (the second respondent) to pay him $10,417.00 in compensation for damage and loss he contends he has incurred due to either respondent’s failure to repair his motor vehicle with due care and skill. In the alternative, the applicant applies for that order on the basis that the first respondent failed to comply with the guarantee as to acceptable quality by supplying him with a motor vehicle with a defective instrument cluster. The applicant also applies for his costs of the proceeding, being costs incurred in obtaining expert reports, and in his expert attending to give evidence at the final hearing, in a lump sum amount of $2,790.00. This application was made to the Tribunal on 1 June 2021 (the application).

2. For reasons set out in greater detail following, the Tribunal is satisfied that the first respondent’s mechanic, when carrying out a repair to the motor vehicle’s battery on 19 March 2021, failed to comply with the guarantee as to due care and skill, by causing a power surge that fatally damaged the instrument cluster. The first respondent initially failed and then later refused to remedy that failure at its own expense which resulted in the applicant incurring the cost of the remedy, which was the replacement of the instrument cluster. The applicant is therefore entitled to recover this cost from the first respondent and additionally, the consequential loss that he has proved as arising from his loss of use of the motor while it awaited repair.

Procedural history

3. The application has been before the Tribunal for a substantial period, which is regrettable. I apologise to the parties for my part in the delay.

4. It first came before the Tribunal, differently constituted, on 24 June 2021 for hearing by telephone in a Group List for Conciliation and Hearing. At that stage the respondent parties to the proceedings were Mazda Australia Pty Ltd (the Australian manufacturer/distributor of Mazda motor vehicles) (Mazda) and AAI Limited t/a AAMI Car Insurance, which is the second respondent’s insurer. It appears from the notations to the orders the Tribunal issued at the end of the hearing that, at that time, the applicant wanted orders that would require Mazda to accept the return of the motor vehicle and provide a full refund of its purchase price or provide an equivalent replacement vehicle because of a manufacturing defect. It appears that the applicant sought to join the first respondent to the proceeding, but the Mazda representative opposed this on the basis that Mazda was the proper respondent. Consequently, the first respondent was not joined as a party at that time. The dispute could not be resolved by conciliation which resulted in the matter being adjourned for a Special Fixture Hearing. Directions were given to the parties for the filing and exchange of the documentary evidence that they intended to rely upon at the final hearing.

5. When the application first came before the Tribunal, as presently constituted, for a Special Fixture Hearing on 1 September 2021 it was immediately apparent on the face of the evidence that had been filed that the proper respondent parties had not been identified. That is because the applicant’s complaint, as it presented at that time, did not turn on an alleged manufacturing defect, at least primarily. It turned on the question of whether the motor vehicle’s instrument cluster had been fatally damaged in an accident or by defective repair work carried out by the first or second respondent as now identified. AAI Limited t/a AAMI Car Insurance was able to act as the second respondent’s representative in the proceedings, but the proper party was the second respondent, not its insurer. Consequently, the application was amended to remove Mazda Australia Pty Ltd and AAI Limited t/a AAMI Car Insurance and to join the first and second respondents as now identified. The Registrar was directed to file and serve a copy of the application on the proper respondents and the application was adjourned to a directions hearing.

6. The application next came before the Tribunal for directions on 27 October 2021. The dispute could not be resolved by conciliation. Consequently, it was adjourned to a Special Fixture Hearing with directions for the filing and exchange of the documentary evidence the parties intended to rely on at that hearing.

7. The application came before the Tribunal, as presently constituted, for its second Special Fixture Hearing on 20 December 2021. However, there was insufficient time to complete the hearing on that occasion which resulted in it being adjourned part heard. It was subsequently listed for a further Special Fixture Hearing on 10 January 2022, but that hearing could not proceed because the second respondent’s representatives became ill and the business had to be closed on the day of the hearing. The hearing was completed in a Special Fixture Hearing conducted on 18 February 2022.

Evidence and hearing

8. The applicant relies upon bundles of documents filed with the Tribunal on 15 June 2021, 26 August 2021, 27 October 2021, 13 December 2021, 15 December 2021, 6 January 2021, and 28 January 2021. These documents were marked Exhibits A1 to A7 respectively. Exhibits A1 and A2 contain reports authored by the applicant’s Expert Witness, Mr Erich Kannen.

9. The first respondent relies upon a bundle of documents filed on 14 December 2021, which was marked Exhibit R(1)1. It contains a report authored by the first respondent’s Expert Witness, Mr Geoff Senz.

10. It should be noted that Mr Kannen’s and Mr Senz’s reports were written before the proper parties were identified and at a time when the remedy sought by the applicant was return and refund. Despite this, the contents of their reports directly address the issues for determination as they now present and have been relied upon by the applicant and the first respondent.

11. The second respondent relies upon documents filed on 24 January 2022 and 17 February 2022. These were marked Exhibits R(2)(1) and R(2)(2). Exhibit R(2)(1) is a Statutory Declaration dated 24 January 2022 given by Mr Eddy Kanbour, who is the second respondent’s smash repairer who worked on the motor vehicle.

12. The final Special Fixture Hearings were conducted by telephone and AVL in accordance with NCAT’s COVID-19 Revised Hearing Procedure. Mr Atalla attended each of the hearings in person and gave oral evidence under affirmation. He called his Expert Witness, Mr Kannen, to give evidence, who did so under affirmation. The first respondent was represented at the first two Special Fixture Hearings by Mr Matthew Constable, Service Manager. He gave oral evidence under affirmation. At the final hearing the first respondent was represented by Mr Steve Rochford who gave oral evidence under affirmation. The first respondent called its Expert Witness, Mr Geoff Senz, to give evidence, who did so under affirmation. The second respondent was represented at the hearings by Ms Joanne Bandan, Director, and Ms Rasha Dib, a representative of its insurer. The second respondent called as its witness the Mr Kanbour. He gave oral evidence under oath. The parties had the opportunity to present their respective cases, to ask each other questions, and to make final submissions to the Tribunal.

Material facts

13. The applicant is the owner of a Mazda CX 3 Akari which he purchased new from the first respondent at a cost of $33,000.00, taking delivery on 27 November 2020 (the motor vehicle). The motor vehicle was sold with a five-year manufacturer warranty which is administered by Mazda, the Australian manufacturer/distributor of the motor vehicle. The warranty excludes damage caused by “accidents, including collision”, “repairs performed or replacement parts installed by any person other than an Authorised Mazda Dealer”, and “alterations including modification”.

14. The motor vehicle is comprehensively insured by AAMI Limited t/a AAMI Car Insurance (the applicant’s insurer).

15. The first respondent is a licensed motor dealer and repairer. It has a ‘sales division’ and a ‘service division’. The applicant purchased the motor vehicle through the sales division. The service division carried the 1000km service on 19 March 2021 and it has been involved in the subsequent diagnosis of the dysfunction of the MZD Connect system and replacement of the instrument cluster.

16. On 1 December 2020 the applicant’s daughter was driving the motor vehicle and was involved in a motor vehicle accident which caused damage to the driver’s side of the vehicle (the accident). It is not in issue that the motor vehicle’s air bags did not deploy in the accident.

17. The applicant’s insurer arranged for the motor vehicle to be repaired by the second respondent, which is a licensed motor vehicle repairer. These smash repairs were completed, and the motor vehicle was returned to the applicant, on 12 February 2021. A Tax Invoice dated 12 February 2021 that itemises the work carried out and the parts supplied for this repair is found in Exhibit A1 at pages 27-32. The total cost of the repair was $23,814.03 (paid by the applicant’s insurer). Mr Senz observes in his expert report that the cost of repair was 72% of the purchase price of the motor vehicle.

18. In his Statutory Declaration of 24 January 2022, Mr Kanbour states the following with respect to the smash repairs:

…

Qwest collision only carried out body repairs as per our quote … In this instance there were no panel repairs only panel replacements all carried out with Mazda’s repair procedures.

Further to this Airbags Plus Pty Ltd were called out to remove the dash and console. Airbags Plus Pty Ltd was engaged and they attended the workshop on 22 January 2021 to carry out the work. The cluster was removed and refit by Airbags Plus. A full scan of the vehicle was carried out after this work and cleared and reset. … In addition, all mechanical repairs were carried out by Marjan Automotive … Furthermore, the front screen was damaged on removal and subsequently replaced with a genuine screen. Jacky auto glass carried out these repairs…

Mr Atalla’s car had a quality check carried out by a staff member (Shady Dandan) on completion. This is a protocol in the workshop on completion of all vehicles.

All panel replacement alignment, sealing, paint, finish checked. The vehicle was taken for a test drive. The dash is checked for any warning lights. Fluids, blinkers, locks, battery terminals are also check …

19. On or about 3 March 2021, the applicant installed a Blackvue DR750X dash cam in the motor vehicle. Its’ supplier was recommended by the first respondent.

20. On 22 February 2021 the applicant booked the motor vehicle in with the first respondent’s service division for its first service (1,000km) on 19 March 2021. At the time he made the booking he asked for the wheel balance to be checked in addition to the service. When he dropped the motor vehicle off on that date, he told the first respondent’s mechanic or customer service officer that the auto wipers were not working and asked that this be investigated and repaired. He also told the representative that the wheel balance issue had resolved itself and no longer required investigation.

21. The applicant contends that when he collected the motor vehicle later that day, he was advised by the first respondent’s mechanic that a loose battery terminal had been repaired and that some error codes had been found relating to the auto wipers, so a factory reset was performed which would fix the problem. He contends he was also advised that the auto wipers had not been tested due to time constraints, and that if the problem continued, he should bring the motor vehicle back.

22. The first respondent gives a somewhat different account of this. The ‘job card’/tax invoice generated by it in relation to the work carried out that day lists three jobs, being the 1,000km service, check of the wheel balance, and inspection of the auto wipers. In relation to the wheel balance, the job card notes that the mechanic checked the vehicle for suspension damage but found none. It recommends a wheel balance be carried out at retail cost to the applicant. In relation to the auto wipers job, the following description is given:

Scanned vehicle for codes found codes evident. Cleared voltage related code. Negative terminal loose not able to get to rain sensing wiper on MZD. Carried out factory reset to help with concern. Will require further inspection. Customer to re-book for further investigation.

23. While driving home that day, the applicant found that the auto wipers were still not working and that the dash information screen was dim. On arrival home, he found that the motor vehicle’s auto lock feature would not work. He attempted to use the information settings on MZD Connect (the vehicle’s electronic infotainment system) to correct the problem but found that the entire settings screen was frozen and inaccessible. This was the first time that the applicant had experienced any problem of this kind.

24. The applicant returned the motor vehicle to the first respondent on 22 March 2021 (the next working day) for investigation and repair of the auto wiper and MZD Connect. Later that day the first respondent’s mechanic advised the applicant by telephone that a diagnostic analysis had found multiple issues which required investigation. The first respondent’s job card of that date notes the following:

Inspected for DTC’s. Code below logged. Carried out battery charge. Will need to do data pull and open tech case

IC U3003:16 – Battery voltage – circuit below threshold.

25. The applicant attended the first respondent on 23 March 2021 to inquire about the progress of repair. He contends he was advised by a customer service officer that it was still undergoing testing with Mazda’s assistance and that no timeframe could be given for when the investigation and any repair would be completed. He also contends he was told that the motor vehicle has ‘electrical issues’ which were draining the battery requiring it to be jump started.

26. In response to the information he was given, later that day the applicant sent an email to Mazda requesting the vehicle be replaced. This email relevantly states:

…

Today … I contacted Mazda Blacktown to get an update on the repairs and I was advised that they found many other issues, such as electrical wiring and battery not charging and have not been able to fix any of the issues. They said that they have raised the issues with your head office.

I find it totally unacceptable that a brand new car should have all these issues, and I remain without a car for an unidentified time frame,

I am now seeking a replacement vehicle as this should not happen to a brand new car.

I am also seeking a loan vehicle until this matter is resolved.

…

27. On 25 March 2021 Mazda approved the applicant’s request for a loan vehicle to be provided to the applicant. The applicant collected the loan vehicle from a car hire outlet on 26 March 2021.

28. Between 26 March 2021 and 26 May 2021, the applicant made various inquiries of the first respondent and Mazda about the progress of investigation. He repeatedly requested a copy of the report of the diagnostic analysis performed on 23 March 2021. The first respondent did not provide this report to the applicant and in response to his inquiries about the progress of investigations he was told that the motor vehicle was still undergoing testing. On or about 19 April 2021 the applicant told Mazda’s customer service representative during a telephone call that he would not accept the vehicle back.

29. On 22 April 2021 a Mazda customer service officer requested the applicant to provide information about the accident damage the motor vehicle had suffered on 1 December 2021. The applicant provided the information he had later that day. He did not have the second respondent’s Tax Invoice dated 12 February 2021 at that time.

30. On 4 May 2021 a Mazda customer service officer advised the applicant that his request for the motor vehicle to be replaced was refused. He was advised that the first respondent’s mechanics were of the view that the instrument cluster malfunction was caused either by the dash cam or the accident.

31. On 5 May 2021 the applicant made a complaint about Mazda’s decision, which was referred to NSW Fair Trading for investigation. By letter dated 13 May 2021 a NSW Fair Trading customer relations officer wrote to Mazda asking it to review its decision having regard to the background factual matters the applicant had advised them of and provide a response.

32. This resulted in the motor vehicle being inspected by a Mazda Field Technical Specialist, Mr Peter Stuart on 14, 17 and 25 May 2021. During his inspection on 14 and 17 May 2021 Mr Stuart formed the view that the problem was the result the malfunction of the instrument cluster. He proposed to carry out further tests using a second-hand instrument cluster from another CX-3 to confirm this. This information was reported to the NSW Fair Trading Officer who was investigating the applicant’s complaint, who relayed it to the applicant in a telephone conversation on 24 May 2021. The applicant contends that the NSW Fair Trading Officer also told him that Mr Stuart had ruled out the accident as the cause of the malfunction.

33. During his inspection on 25 May 2021 Mr Stuart replaced the malfunctioning instrument cluster with an instrument cluster taken from another CX-3. He found that this resulted in the MZD Connect system becoming fully functional. He thus concluded that the problem was a fatally damaged instrument cluster. In this respect the first respondent relies on a Vehicle Investigation Report prepared by Mr Stuart dated 20 August 2021 which sets out the investigations he conducted and the conclusions he reached. His opinion is set out in section 7 of this report:

7 Conclusion

It is my opinion that the internal concern of the instrument cluster is not a result of a manufacturing defect. I believe the symptom experienced by the customer has been caused by external influences for the following reasons

• No concerns were reported to the Dealer by the customer prior to the accident.

• The concern was reported after the car experienced a motor vehicle accident that involved extensive repairs to the RH side and interior of the car.

• The accident damage and repairs were all in the vicinity of the instrument cluster.

• During the first presentation of the vehicle, a loose battery terminal was found. This may have caused a battery voltage spike which may have damaged the internals of the instrument cluster.

• The instrument cluster damage may also have been a result of force sustained during the accident or the subsequent repair that caused damage to the internals of the cluster.

34. On 26 May 2021 the applicant received a letter from Mazda stating that it had concluded that instrument cluster had been damaged in “the accident and or repair activity” and that, accordingly, the instrument cluster would not be replaced in accordance with the manufacturer’s warranty but would need to the subject of a claim against the motor vehicle’s comprehensive insurance. Mazda reported this information, and further set out Mr Stuart’s opinion, to NSW Fair Trading in correspondence dated to 27 May 2022 and 1 June 2022 respectively. Although not entirely clear on the evidence, this appears to have resulted in NSW Fair Trading closing its investigation.

35. On 28 May 2021 the applicant received a quotation for the replacement of the motor vehicle’s instrument cluster from the first respondent for $3,557.15 to provide to his insurer. He was also advised that one component was not in stock and would take up to 8 weeks to come into stock.

36. The applicant refused to authorise the replacement of the instrument cluster at his (or his insurer’s) expense and he refused to collect the motor vehicle from the first respondent. He instituted these proceedings on 1 June 2021.

37. On some date that is not in evidence, but which was presumably proximate to 26 May 2021, Mazda withdrew its approval for the applicant’s loan vehicle.

38. Due to the protraction of the proceedings, under protest, the applicant paid the first respondent to replace the instrument cluster on 20 December 2021. The instrument cluster was replaced, and the motor vehicle was available for collection by the applicant on 25 January 2022.

39. Upon the motor vehicle being returned to him, the applicant discovered that the auto wipers were still inoperative. They have subsequently been repaired by the second respondent on instruction from the applicant’s insurer.

The expert evidence

40. The applicant’s expert evidence is given by Mr Erich Kannen who is the principal of Fenoru Pty Ltd. Mr Kannen has produced two reports: a primary report dated 5(sic) June 2021, and a supplementary report dated 24 August 2021. Mr Kanen’s qualifications and experience in the motor vehicle industry are set out extensively in his report and in a Curriculum Vitae attached to his primary report. Mr Kannen states in this first report that he has read and agrees to be bound by NCAT’s Code of Conduct for Expert Witnesses.

41. Mr Kannen inspected the vehicle at the first respondent’s premises on 8 June 2021. He outlines his examination of the motor vehicle at paragraphs 21 and 22 where he states relevantly:

Test examinations and investigations

21 The vehicle was inspected at the premises of the [first respondent] …

A. I met with the Service Manager of the [first respondent] and a representative from [Mazda, Mr Stuart]

B. A general discussion took place where the defect was discussed in general terms.

C. I was advised during that discussion that the vehicle has a voltage problem. During the diagnostic testing, it showed that, whereas 12 volts were required for the proper functioning of the instrument cluster, only 8.5 volts were measured reaching the instrument cluster, causing it to malfunction.

D. I was also advised that the Error code, extracted by the Technician was very unusual and not being recognised by the [first respondent and Mazda].

E. Following the discussion I inspected the vehicle and found the instrument cluster partly removed from its normal in-dash position.

F. Upon starting the engine a host of warning lights illuminated on the instrument cluster.

G. The representative from [Mazda] explained that the warning lights were illuminated, partly due to the diagnostic work carried out by the repairer, others were related to “Door Open”, “Seat Belts” etc – that explanation I accepted as factually correct

H. The representative from [Mazda] explained that their diagnostic work included the use of a second “good” instrument cluster that was connected to the vehicle and worked as it should.

I. As I accept that the instrument cluster is defective, I declined the invitation to carry out my own diagnosis.

…

22 The documentation and images were supplied by the Applicant, copy of the documents and images relied on to form my opinion are attached to this report.

42. Mr Kannen’s opinion is summarised at page 2 of his primary report as follows:

Summary of the report

1. The vehicle is near new and remains covered by the factory warranty.

2. The defect is a malfunctioning instrument cluster.

3. I have considered three possibilities that may have caused the defect.

4. My conclusion is that the defect was caused during the “Factory Software Reset” carried out by the 1st Respondent’s Repairer.

5. I am unable to establish a link between the accident (panel) repair and the vehicles electronics.

6. The probability that the defect was caused by the accident (panel) repair in my view is miniscule.

…

43. Later in his primary report, Mr Kannen states the following in relation to the issues requiring determination:

The instructions being reported on

42. The first instruction:

43. In your opinion, which of the respondents is likely to have caused the damage to the instrument cluster.

…

The conclusions and the reason for the conclusion(s) to the instructions(s)

50. The conclusion for the first instruction:

51. There are a number of possibilities that are likely the cause of the defect:

52. Panel Repair: It is unlikely that the defect was caused by the [second respondent] during the panel repairs. Whilst it is possible that the [second respondent] caused the defect, its probability is very low at 10%

53. Vehicle defect: It is possible that the vehicle had a defective instrument cluster or voltage regulator that malfunctioned coincidentally during or after the “Factory Reset” of the vehicle’s software. This possibility I rank as 50% probable.

54. “Factory Software Re-set”: It is also possible that something went wrong during the “Factory Re-set” of the vehicle’s software. This possibility I rank as 40% probable.

55. The reason for the conclusion:

56. It is standard industry practice for panel and smash repairers, when receiving a vehicle for repair to first take photographs, to document the vehicle’s condition and the second action is to disconnect the battery.

57. Once the battery is disconnected the vehicle’s electronics are isolated and not affected by any work the [second respondent] carried out.

58. Had the [second respondent] caused any damage to the instrument cluster, the defect would have been apparent at the time the vehicle was returned on 12.2.2021 to the Applicant, following the panel repair.

59. The vehicle had no defect, except for the rain sensors issue, for 5 weeks between 12.2.2021 and 19.3.2021

60. Electronics, when they fail, fail suddenly, i.e the result is immediately apparent.

61. The first respondent’s claim that the [second respondent] caused the instrument cluster’s defect is therefore implausible.

62. Only the [first respondent] actually worked on the vehicle’s electronics and Software.

63. The defect occurred whilst the vehicle was in the care of the [first respondent]

64. The [first respondent] “Cleared voltage related code”, the “code’s” is also known as a “Trouble Code” and assist the technician to look for “trouble”, i.e. the defect

65. Simply clearing a “Trouble Code” is not adequate, the underlying cause needs to be diagnosed and repaired, i.e in addition to the instrument cluster, the voltage regulator in all probability needs also replacing.

66. The parties at fault are both [Mazda] and [the first respondent]

44. In response to Mr Stuart’s opinion, Mr Kannen states (see paragraph 34) that each of the statements on which that opinion rests “could be misleading” because:

89. The reason for the conclusion:

A. The Applicant had no concerns after the vehicle was returned to him following accident repairs that were completed by the [second respondent].

* The defect however became apparent after the [first respondent] completed a “Factory reset” of the vehicle’s Software.

B. The vehicle was in fact presented two days after [the first respondent] carried out the first service and tried unsuccessfully to repair the malfunctioning rain sensors.

C. Accidental panel repairs do not affect a vehicle’s electronics.

D. The instrument cluster is located in front of the driver, inside the vehicle – the accident panel damage was to the right outside of the vehicle – the airbags did not deploy

E. The [first respondent’s] explanation is incomplete and self-serving and most importantly does not address the reason for the defect.

45. The first respondent relies on an Expert Report by Geoff Senz of Geoff Senz & Associates. Mr Senz’s qualifications and experience in the motor vehicle industry is set out in section 2 and in a Curriculum Vitae attached to his report. Mr Senz states in the report that he has read and agrees to be bound by NCAT’s Code of Conduct for Expert Witnesses. Mr Senz was engaged by Mazda when it was a respondent party to the proceedings to give his opinion (relevantly) in relation to the following matters:

Section 2 – Matters in respect of which your opinion is sought

2.1 You will be required to prepare a written report which details your findings in respect to the vehicle. In particular, we require your opinion in regards to the following concerns as raised by the Applicant:

…

b) The most probable cause of the symptoms being reported in the vehicle;

c) Whether on the balance of probabilities, the concerns being experienced are due to any manufacturing defects;

e) Whether the vehicle requires any repairs; and

f) Whether the vehicle is fit for purpose.

46. Mr Senz conducted what he refers to as a “remote technical inspection” and “virtual inspection” involving examination of “requested digital images and videos, images from others and supplied documentation”. This methodology was adopted because Mr Senz was unable to inspect the motor vehicle due to COVID-19 Public Health Orders restricting movement which were in force at the time.

47. At page 1 of his report Mr Senz summarises his conclusions as follows:

• Electronic systems were damaged by a loose battery terminal connection

• The battery terminal was left loose by Q-West Collision Centre

• The vehicle requires an Instrument Cluster & panel repair completion

• The vehicle is fit for purpose.

48. Mr Senz does express the opinion that the accident caused substantial damage to the motor vehicle [at line 245 and following], but he does not express the opinion that the accident was causal of the failure of the instrument cluster. Rather, his opinion is that the smash repairs carried out by the second respondent were not of an acceptable standard generally [lines 251 to 280] giving rise to a likelihood that the second respondent’s repairer left the negative battery terminal loose [line 400 and 417].

49. Mr Senz does express the opinion that the second respondent’s smash repairs did involve work in the vicinity of the instrument cluster and did involve the instrument cluster’s removal [line 290 to 300]. He also expresses the opinion that the second respondent allowed the instrument cluster to be exposed to dust after its removal [line 301 to 316]. However, he does not express any opinion as to whether this was causal of the failure of the instrument cluster.

50. The first respondent sent the instrument cluster circuit board to Mr Senz for direct inspection. However, he did not note anything remarkable about its presentation. In particular, there was no sign of overheating. However, in this respect he comments [at line 486 to 491]:

…a common problem with digital electronics is that since their circuitry, like that evidenced on the circuit board, involves low voltage and miniscule current flow then even if current or voltage is doubled during an electrical spiking incident, its frequently insufficient power to generate heat to cause discolouration and as such it was a case of there’s nothing to see here.

51. Mr Senz disagrees with Mr Kannen’s conclusion that there is a 50% possibility that the motor vehicle had a defective voltage regulator or instrument cluster that was triggered by the Factory Reset performed by the first respondent on 19 March 2022 on the basis that the reset was in relation to the MZD Connect system which is “upstream” from the instrument cluster, and not on the instrument cluster itself [line 435 to 450]. He also disagrees with Mr Kannen’s conclusion that there is a 40% chance that something went wrong during the Factory Reset of the vehicles software on the basis that there was no malfunction of the instrument cluster before the smash repairs carried out by the second respondent [line 524 to 535].

52. At lines 675 to 710, Mr Senz states as follows:

d) In relation to the question of is the Instrument Cluster unit faulty?

To which the brief answer is, Yes

Primarily the writer’s conclusion commenced with the fact that OEM IDS system interrogation software confirmed the presence of a current and at least 1 previously cleared “U3003:16-48 – IC” low voltage DTC. While subsequent diagnosis by [the first respondent] and Mazda Field Technical Specialist Mr Stuart, confirmed that the MZD in particular was being supplied with insufficient voltage from the damaged/faulty Instrument Cluster. (sic)

…

e) In relation to the question of when did DTC’s start to occur?

To which the brief answer is that this was in the period between repair by [the second respondent] and arrival at the [first respondent] for a routine service.

Evidence is that this vehicle operated normally prior to the collision and up to when it was booked into [the first respondent] for its 1000km service. However, by the time the Applicant actually presented his vehicle for servicing it had developed faults in the Rain Sensing Windscreen wipers and MZD.

f) In relation to the question of what is the most probable cause of the instrument cluster fault?

To which the brief answer is that it is more probably than not propagated from [the second respondent’s] failure to secure the negative battery terminal.

This conclusion is fundamentally derived from the writer’s experience, training and understanding of Alternators and in particular their ability to produce excessive voltage output when confronted with open circuit conditions such as that associated with [the second respondent’s] failure to secure the negative battery terminal i.e. before the vehicle arrived at [the first respondent].

Therefore, it is the writer’s opinion that on the balance of probability, it is way more probable than not that the loose battery terminal lead connection caused the Alternator to spike/intermittently spike and therefore effectively burn out voltage regulatory circuitry on the Instrument Clusters circuit board, hence its failure.

53. In his supplementary report Mr Kannen states further in response to the first respondent’s Field Specialist and Expert’s evidence:

4. After reviewing the evidence, I have not altered the conclusion that I reached and expressed in my original report. My conclusion is that the defect was caused during the “Factory Software Reset” carried out by the [first respondent]. I am unable to establish a link between the accident (panel) repair and the vehicle’s electronics.

…

41. The [second respondent’s Tax Invoice No. 2957 shows that the collision damage was largely panel damage. To suggest, as Mr Stuart does that “the accident damage and repairs were all in the vicinity of the instrument cluster” is not true, i.e.

(a) The driver’s air bag did NOT deploy

(b) Parts that were replaced are mainly panels for the out side of the vehicle

(c) No internal damage was caused by the collision

(d) The dashboard was not damaged.

(e) The instrument cluster worked and was undamaged.

…

68. [Mr Senz conclusion, (expressed in lines 696 to 720) is based that a loose battery terminal caused excessive voltage, damaging the instrument cluster. A conclusion, I could not reach, [Mr Stuart] found to be only a one in three possibility and the [first respondent] did not consider.

69. In simple terms, the battery is only required to start the engine, one the engine is running, the alternator provides the required electricity. At worst a loose negative battery connection would cause the engine not to start. That is why the Technician not even considered the loose connection to be relevant to the instrument cluster’s failure.

The claim

54. The applicant claims the following in compensation:

No.	Description of claim	Amount claimed
1	Cost of replacement of damaged instrument cluster	$3,557.00
2	Car rental costs 26 October 2021 to 23 December 2021	$2,212.00
3	Decline in car value between 22 March 2021 to 10 January 2022 (295 days)	$3,192.00
4	Insurance costs thrown away for 9 months	$703.00
5	Registration costs thrown away for 9 months	$286.00
6	CTP Insurance costs thrown away for 9 months	$467.00
TOTAL	$10,417.00

Contentions of the parties

55. It will be apparent from what has been set out above that the applicant contends that the instrument cluster failure was caused or triggered by work done on the motor vehicle by the first respondent’s mechanic on 19 March 2022, most likely by the Factory Software Reset. He contends, in effect, that a latent defect in the instrument cluster was triggered by the Reset, or in the alternative that the Reset and associated work was not carried out with due care and skill causing the instrument cluster fail.

56. The first respondent contends that the damage to the instrument cluster was caused either by the accident or by the second respondent’s smash repairs. In particular, it is contended that the damage was caused by a power surge resulting from the second respondent’s mechanic’s failure to secure the negative battery terminal upon completion of the smash repairs. The first respondent denies that the instrument cluster failed because of a latent manufacturing defect or that it was caused by any work its mechanic performed on the motor vehicle on 19 March 2022, including the Factory Software Reset.

57. The second respondent denies that the smash repairs have any connection to the instrument cluster failure. It contends the smash repairs were carried out to a satisfactory standard and that the motor vehicle was returned to the applicant on the completion of those repairs in good working order.

Jurisdiction

58. There is no issue that the Tribunal has jurisdiction to hear and determine this application as a consumer claim according to the provisions of Part 6A of the FT Act.

Applicable law

59. By operation of s 28 of the FT Act, the Australian Consumer Law (NSW) (ACL(NSW)) is made part of the law of NSW and may be applied in the determination of a consumer claim. Chapter 3, Part 3.2, Division 1, of the ACL(NSW) contains several specific protections for consumers in trade and commerce, known as the “consumer guarantees”.

60. Subdivision A contains guarantees in relation to the supply of goods, including in s 54, a guarantee as to acceptable quality. It relevantly provides:

54 Guarantee as to acceptable quality

(1) If:

(a) a person supplies, in trade or commerce, goods to a consumer; and

(b) the supply does not occur by way of sale by auction;

There is a guarantee that the goods are of acceptable quality.

(2) Goods are of acceptable quality if they are as:

(a) fit for all the purposes for which goods of that kind are commonly supplied; and

(b) acceptable in appearance and finish; and

(c) free from defects; and

(d) safe; and

(e) durable

as a reasonable consumer fully acquainted with the state and condition of the goods (including any hidden defects of the goods), would regard as acceptable having regard to the matters in subsection (3)

(3) The matters for the purposes of subsection (2) are:

(a) the nature of the goods; and

(b) the price of the goods (if relevant); and

(c) any statements made about the goods on any packaging or label on the goods; and

(d) any representation made about the goods by the supplier or manufacturer of the goods; and

(e) any other relevant circumstances relating to the supply of the goods.

61. There are some exceptions to the guarantee as to acceptable quality which are found in s 54(4) to (7). The exception found in s 54(6) is potentially relevant in this case. It provides:

(6) Goods do not fail to be of acceptable quality if:

(a) the consumer to whom they are supplied causes them to become of unacceptable quality, or fails to take reasonable steps to prevent them from becoming of unacceptable quality; and

(b) they are damaged by abnormal use.

62. Subdivision B contains guarantees in relation to the supply of services. This includes, in s 60, a guarantee that services will be provided with due care and skill:

60 Guarantee as to due care and skill

If a person supplies, in trade or commerce, services to a consumer, there is a guarantee that the services will be rendered with due care and skill.

63. Part 5.4, Division 1, of the ACL(NSW) sets out the remedies that are available to consumers in relation to a failure by a supplier to comply with a consumer guarantee.

64. Subdivision A sets out the action available to a consumer in relation to a supplier of goods. In this respect, s 259 relevantly provides:

259 Action against suppliers of goods

(1) A consumer may take action under this section if:

(a) a person (the supplier) supplies, in trade or commerce, goods to the consumer; and

(b) a guarantee that applies to the supply under Subdivision A of Division 1 of Part 3-2) … is not complied with.

(2) If the failure to comply with the guarantee can be remedied and is not a major failure:

(a) the consumer may require the supplier to remedy the failure within a reasonable time; or

(b) if such a requirement is made of the supplier but the supplier refuses or fails to comply with the requirement, or fails to comply with the requirement within a reasonable time – the consumer may:

(i) otherwise have the failure remedied and, by action against the supplier, recover all reasonable costs incurred by the consumer in having the failure so remedied; or

…

(4) The consumer may, by action against the supplier, recover damages for any loss or damage suffered by the consumer because of the failure to comply with the guarantee if it was reasonably foreseeable that the consumer would suffer such loss or damage as a result of such a failure.

65. Subdivision B sets out the action available to a consumer in relation to a supplier of services. In this respect, s 267 relevantly provides:

267 Action against suppliers of services

(1) A consumer may take action under this section if:

(a) a person (the supplier) supplies, in trade or commerce, services to the consumer; and

(b) a guarantee that applies to the supply under Subdivision B of Division 1 of Part 3-2 is not complied with; and

…

(2) If the failure to comply with the guarantee can be remedied and is not a major failure:

(a) the consumer may require the supplier to remedy the failure within a reasonable time; or

(b) if such a requirement is made of the supplier but the supplier refuses or fails to comply with the requirement, or fails to comply with the requirement within a reasonable time – the consumer may:

(i) otherwise have the failure remedied and, by action against the supplier, recover all reasonable costs incurred by the consumer in having the failure so remedied; or

…

(4) The consumer may, by action against the supplier, recover damages for any loss or damage suffered by the consumer because of the failure to comply with the guarantee if it was reasonably foreseeable that the consumer would suffer such loss or damage as a result of such a failure.

66. Section 74(3) of the FT Act provides that the Tribunal may decide the matter of whether a person has suffered loss or damage because of the conduct of another person that constitutes a contravention of Chapter 3 of the ACL(NSW) if that matter arises in connection with another matter subject to proceedings in the Tribunal. In deciding the matter of loss or damage, the Tribunal may award such sum as it thinks fit.

67. “Reasonable foreseeability” of loss for the purposes of ss 259(2)(b)(i) and 267(2)(b)(i) is determined in accordance with the principles established in on the first limb of Hadley v Baxendale [1854] EWHC J70. The loss must arise naturally from the supplier’s failure to comply with the guarantee.

68. The applicant bears the onus of proving his case to the civil standard of proof, which is on the balance of probabilities, bearing in mind the Briginshaw standard (Briginshaw v Briginshaw (1938) 60 CLR 336) which is found at p362 in the judgement of Dixon J:

…when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence ... It cannot be found as a result of a mere mechanical comparison of probabilities … but reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer.... In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.’

Consideration

69. To determine the outcome of this application the Tribunal must pose and answer the following questions:

1. What caused the instrument cluster to fail?

2. Does that cause constitute a failure to comply with the guarantee as to due care and skill by either the first or second respondents as repairers of the motor vehicle?

3. Alternatively, does that cause constitute a failure to comply with the guarantee as to acceptable quality by the first respondent as the supplier of the motor vehicle?

4. If there was a failure to comply with a consumer guarantee by either the first or the second respondent, was this remedied within a reasonable time?

5. If the answer to (d) is “no” what are the applicant’s reasonable costs of having that failure remedied other than by the first or second respondent?

6. Did the applicant suffer reasonably foreseeable consequential loss because of the failure to comply with a guarantee for which he is entitled to be compensated?

Cause of the failure of the instrument cluster

70. On the material before the Tribunal the following possibilities emerge as the cause of the failure of the instrument cluster:

1. Impact damage sustained in the motor vehicle accident on 1 December 2021;

2. The removal and replacement of the instrument cluster during the second respondent’s smash repair;

3. A loose negative battery terminal;

4. The dash-cam;

5. A power surge in the motor vehicle’s electric field;

6. The installation of the Factory Software Update;

7. Some other latent defect in the instrument cluster which cannot be identified.

71. I am not satisfied that the accident or smash repair (leaving aside for the moment the issue of the loose negative battery terminal) was causal of the failure of the instrument cluster. That is because:

1. the second respondent found no evidence of damage to the instrument cluster. In this respect, I note that it was removed and refitted during the smash repair.

2. the MZD Connect system functioned normally when tested by the second respondent’s mechanic on the completion of the smash repairs.

3. the MZD Connect system continued to function normally after the motor vehicle’s return to the applicant following the smash repair on 12 February 2021 and did so for 31 days up to 19 March 2021 when the motor vehicle was handed over to the first respondent to carry out its’ 1000km service.

4. No visible damage to the instrument cluster was observed by the first respondent’s mechanic, Mr Stuart or Mr Senz.

72. The failure of the instrument cluster wasn’t contemporaneous with the accident or smash repair. These events may be broadly circumstantial, but in the absence of any other factor, they do not permit an inference to be drawn that either was the cause of the instrument failure. In this respect, Mr Stuart’s conclusion to the contrary is no more that speculation based on these broadly circumstantial events. His analysis does not explain how it could be that the MZD Connect system could function normally for such an extended period if it had sustained fatal damage on 1 December 2020 or during smash repairs carried out in January/February 2021. As I have set out above, Mr Senz places emphasis on the extent of the damage to the motor vehicle caused by the accident, and he is critical of the quality of the repair carried out by the second respondent, but he does not express the opinion that either was causal of the instrument cluster failure.

73. Mr Senz is also wrong in his assumption that the MZD Connect system was reported as malfunctioning when the applicant presented the motor vehicle to the first respondent for the 1000km service. That is not the case. The applicant did report that the auto wipers were not working. But it’s clear that this malfunction was entirely independent of the instrument cluster failure. The auto wipers continued not to function after the first respondent completed the replacement of the instrument cluster in January 2022 and returned the motor vehicle to the applicant.

74. Mr Kannen rules out the accident and smash repair as the cause of the instrument cluster failure for the reasons I have summarised above.

75. I am not satisfied that the loose negative battery terminal was itself causal of the instrument cluster failure. That is also because the MZD Connect system functioned normally up to the date the loose negative terminal was discovered during the 1000km service. On 19 March 2021, the first respondent’s mechanic did note an historical and current voltage related Diagnostic Trouble Code (DTC), which he cleared, apparently without investigation. The voltage related DTCs may or may not have been related to the loose negative battery terminal, but this cannot have been causal of the instrument cluster failure because that happened after the battery terminal had been secured by the first respondent’s mechanic.

76. To the extent that Mr Senz contends otherwise I find it difficult to follow the reasoning of his analysis. The first respondent and Mr Stuart identified an unacceptably low voltage power supply to the MZD Connect system through the instrument cluster as the cause of its malfunction. The source of power to the instrument cluster is the alternator not the battery. I therefore do not understand how a loose negative battery terminal could cause low voltage. The battery is a capacitor, and in this respect one of its functions is to absorb power surges generated elsewhere in the electrical system. A loose terminal therefore has the potential diminish or prevent the battery from absorbing power surges. Power surges may overcome voltage regulators and damage the motor vehicle’s electrical components. But power surges involve high not low voltage, and as Mr Kannen states in his report, their impact is instantaneous. Consequently, the loose negative terminal cannot have caused the instrument cluster failure because the MZD Connect system and instrument cluster were operating normally up until 19 March 2021.

77. Early in his investigation, the first respondent’s mechanic speculated that the malfunction of the MZD Connect system may have been caused by the after-market installation of the dash cam. However, that theory of causation has been abandoned. Neither of the experts contend for this. In any event, the dash cam was fitted on 3 March 2021 and the MZD Connect system functioned normally up to 19 March 2021. I am satisfied that if the fitting of the dash cam was causal of the instrument cluster’s failure, the failure would have occurred on or shortly after 3 March 2021.

78. Mr Kannen contends that the instrument cluster was damaged during the Factory Software Reset. In his first report he says that there is a 40% possibility that “something went wrong” during the reset. In his supplementary report he states that it remains his opinion that “the defect was caused” during the Rest. Even after hearing the oral evidence, I remain uncertain if Mr Kannen contends that the damage to the instrument cluster was “caused” by the Software, or its installation, or whether he contends that damage happened spontaneously because of a latent defect and was merely simultaneous with the Reset. If it is the former, it is not explained to my satisfaction how uploading the manufacturer’s software to the onboard computer system could damage the instrument cluster. There is no evidence that the software contained any malware capable of attacking the instrument cluster. Mr Kannen does not say in his evidence that the installation of the software could result in any electrical disturbance that would be capable of damaging the instrument cluster. Updating software is not an invasive mechanical repair that could result in incidental accidental damage to the instrument cluster. I am therefore not satisfied that the software update damaged the instrument cluster.

79. In my view, that leaves two possibilities. Either the damage was caused by a power surge generated when the first respondent’s mechanic was working on the battery on 19 March 2022, or the instrument cluster failed due to a latent and undiscoverable manufacturing defect (it being the only possible other cause of the failure). On the balance of probabilities, I am satisfied the damage was caused by a power surge.

80. The applicant had not experienced and therefore did not report to the first respondent any battery related problem. That problem, being the loose negative terminal, was identified by the first respondent’s mechanic during the service. Other than he secured the terminal, it is not possible to know specifically how the mechanic worked on the battery. There is no witness statement from the mechanic and the job card does not provide any detail about this. What is clear is that the instrument cluster failed immediately after this work was done when the applicant was driving home. I am satisfied that there is a likelihood that the mechanic disconnected the negative terminal to secure it while the engine was running causing a power surge from the alternator that could not be managed by the battery because it was disconnected. Consequently, that surge defeated the voltage regulator and damaged the instrument cluster. I am satisfied that the DTC Code reported on 22 March 2022 (IC U3003:16 – Battery voltage – circuit below threshold), and the “electrical issues” which required the motor vehicle to be jump started on 23 March 2022 are consistent with the motor vehicle’s electrical system being damaged during the work performed on 19 March 2022.

81. This theory of causation finds some support in the conclusion reached by Mr Stuart (dot point 4), Mr Kannen (par 54) and Mr Senz (lines 800 to 805). My point of departure from Mr Stuart and Mr Senz is to not accept that any voltage problem that pre-existed the presentation of the motor vehicle for its 1000km service on 19 March 2021 was causal of the instrument cluster failure. It could not have been because the instrument cluster had not failed before the service.

82. It is of course impossible to be certain that this was the cause of the damage to the instrument cluster, but I am satisfied it is a conclusion as to causation that can be reached to the civil standard of proof by applying common sense to the facts: Marche v Stamare (E & MH) Pty Ltd [1991] HCA 12; (1991) 171 CLR 506.

83. As I have stated above, if I am wrong in this conclusion, the only alternative explanation for the instrument cluster’s failure is a latent defect that manifested randomly and co-incidentally with the 1000km service. That is not an impossibility, but I consider such a co-incidence improbable.

Guarantee as to due care and skill

84. For the reasons I have stated above, there is no satisfactory basis in the evidence for me to find that the instrument cluster was damaged during or because of the smash repairs carried out by second respondent. The application insofar as it concerns the second respondent must be dismissed on this basis.

85. However, I am satisfied to the civil standard that the first respondent, by its mechanic who worked on the motor vehicle on 19 March 2022, did not comply with the guarantee as to due care and skill. He knew, or ought to have known, based on his specialist knowledge and skill as a licensed motor repairer that the motor vehicle’s electronic components, including the instrument cluster, were capable of being damaged by power surges. He knew, or ought to have known, that the disconnection of a battery terminal while the engine is running was likely to produce a power surge. He therefore should not have disconnected the battery while the engine was running.

Guarantee as to acceptable quality

86. As I have stated above, if I am wrong as to my conclusion as to causation of the damage to the instrument cluster, the only other available explanation is the manifestation of a latent defect in the instrument cluster which caused it to fail. In other words, a manufacturing defect.

87. This was a new motor vehicle at the time of purchase. It is a valuable item, as is reflected by its purchase prince. The 1000km service was performed less than 4 months after purchase when the motor vehicle had only had approximately 1600kms of use. I am satisfied that a reasonable consumer, if they knew the instrument cluster had a latent defect that would cause it to fail rendering the MZD Connect system inoperative within 4 months of purchase would not regard the motor vehicle of acceptable quality.

88. I am satisfied that the exception to the guarantee found in s 54(6) has no application in this case because the evidence does not establish that there was any causal connection between the motor vehicle accident and the failure of the instrument cluster.

89. I thus conclude, if there was no failure of due care and skill by the first respondent’s service division, there was a failure to comply with the guarantee as to acceptable quality by the first respondent’s sales division in the supply of the motor vehicle to the applicant.

Remedy

90. There can be no issue in this case that the applicant has provided the first respondent with a reasonable opportunity to remedy failure to comply with the guarantee as to due care and skill, or in the alternative, the guarantee as to acceptable quality. It failed to do so from 22 March 2021 and refused to do so from 26 May 2021. This put the applicant in the position where he had no alternative but to have the instrument cluster failure remedied otherwise than by the first respondent doing so at its cost. He had to pay the first respondent to do so. He is thus entitled to recover from the first respondent the cost he incurred in doing so pursuant to s 267(2)(b)(i), or in the alternative, s 259(2)(b)(i) of the ACL. That amount is $3,557.00.

Consequential loss

91. The applicant is also entitled to recover from the first respondent damages for reasonably foreseeable consequential losses he suffered because of the failure to comply with the consumer guarantees, in the alternative, pursuant to s 267(4) or 259(4) of the ACL.

91. In this case the applicant seeks to recover as damages hire car costs he incurred because he did not have the motor vehicle available for use. There can be no issue that this cost arises naturally from the first respondent’s failure to comply with either consumer guarantee. The motor vehicle was purchased and serviced to provide the applicant and his family with transport. It was reasonably foreseeable that he would incur other costs of transportation if the motor vehicle could not be used. I will therefore allow this head of damage in the amount of $2,212,00 which is fully substantiated by receipts.

92. The applicant also seeks to recover a pro-rated nine-month portion of the annual on-road costs of motor vehicle insurance and registration that he derived no benefit from because the motor vehicle could not be used. I am satisfied that this damage also arises naturally from the first respondent’s failure to comply with either consumer guarantee. If either guarantee had been complied with, the applicant would have received the benefit of his insurance and registration in his use of the motor vehicle. These costs total to $1,456.00 and are substantiated by primary documents. I will therefore allow this head of damage.

93. Additionally, the applicant seeks to recover as damages the reduction in the value of the vehicle between 22 March 2021 and 10 January 2022. The ageing of the motor vehicle and its related decline in value is not causally connected to the first respondent’s failure to comply with either consumer guarantee. That occurred independently of the contravention. The applicant has been compensated for his loss of use of the motor vehicle by the other heads of damage. This element of the claim must therefore be dismissed.

94. For the foregoing reasons the applicant is entitled to be compensated for his consequential loss in the amount of $3,668.00.

Costs

96. The applicant applies for his costs of the proceedings in the lump sum of $2,790.00. This is the cost he incurred in obtaining the primary ($1,495.00) and supplementary ($845.00) expert reports from Mr Kannen, and the cost of Mr Kannen’s attendance at the hearing as a witness ($450.00). The amounts are evidenced by invoices for Mr Kannen’s costs. The costs of an expert report relied on in a proceeding is a legal cost within the meaning of s 60(5) of the Civil and Administrative Tribunal Act 2013 (NCAT Act), in that is it a disbursement.

97. The usual rule in cases such as this is found in s 60 the NCAT Act. In short summary, each party is to bear its’ own costs of the proceedings unless there are special circumstances that warrant the exercise of discretion to make an award of costs in a party’s favour. “Special circumstances” are circumstances that are out of the ordinary, but they do not have to be extraordinary or exceptional: Megeditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120. To ascertain if there are special circumstances that justify an award of costs the Tribunal is to have regard to the relevant considerations set out in s 60(3) and any other matter the Tribunal considers relevant.

98. In this case the application was vigorously defended by both respondents. There was no real possibility that the applicant could have succeeded in his claim without the evidence of an expert. Expert evidence is expensive to obtain (with no disrespect to Mr Kannen intended). If no order for costs is made to compensate the applicant, the cost of his expert will substantially deprive him of the benefit of the money order made in the substantial application. That is not in the interests of justice. I am satisfied that this is a special circumstance that justifies an award of costs in the applicant’s favour. As it is the first respondent that has been found liable for the failure to comply with s 60 of the ACL, the costs order will be made against it.

99. Having regard to the principles discussed in Becchara trading as Bechara and Company v Bates [2016] NSWCA 294, I will make the lump sum costs order requested by the applicant. I have sufficient information before me to determine the lump sum, it is a relatively modest amount so far as legal costs go, and the cost and aggravation of an order for assessment of costs would almost certainly deprive the applicant of the benefit of the costs order. The cost is a disbursement rather than legal practitioner costs. It is therefore not a case where any discount should be applied.

Orders

100. For the foregoing reasons I make the following orders:

1. West End Motor Group Pty Ltd t/a West End Mazda must pay Edmond Atalla $7,225.00 immediately.

2. West End Motor Group Pty Ltd t/a West End Mazda must pay Edmond Atalla his costs of the proceedings in the lump sum of $2790.00 immediately.

3. The application is otherwise dismissed.

**********

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Amendments

13 September 2023 - Formatting amendments.

Decision last updated: 13 September 2023