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Celovic v Righetti

Celovic v Righetti

Case [2025] NSWCATCD 3 17 January 2025

Consumer Claim

Misleading and Deceptive Conduct

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Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Celovic v Righetti [2025] NSWCATCD 3
Hearing dates: 23 September 2024
Date of orders: 17 January 2025
Decision date: 17 January 2025
Jurisdiction: Consumer and Commercial Division
Before: J Alder, General Member
Decision:
(1) The Respondents, Ann Maree Righetti and Mark Romano Righetti trading as Engine Masters Australia, are to pay the Applicant, George Celovic, the sum of $5,000 within 14 days from the date of these Reasons.

Catchwords:
CONSUMER CLAIM – defective engine - where a party is both a supplier and a manufacturer - where a party has supplied both goods and services - when does the cause of action first accrue against a supplier for failure to comply with the guarantee as to acceptable quality - when is damage first sustained - did the consumer require the supplier to remedy the failure within a reasonable time - reasonable costs incurred by the consumer in having an engine repaired – foreseeable loss and damage – misleading and deceptive conduct - assessment of damages - failure to mitigate – remoteness

Legislation Cited:
Australian Consumer Law (NSW), ss 2, 3, 11, 18, 54, 55, 60, 236, 259, 260, 261, 262, 263, 267, 271, 272
Competition and Consumer Act 2010 (Cth)
Fair Trading Act (NSW) 1987, ss 28, 74(3), 79L
Civil and Administrative Tribunal Act (NSW), ss 38(4), 53(1), 60

Cases Cited:
Australian Competition and Consumer Commission v Valve Corporation (No 3) (2016) 337 ALR 647 [2016] FCA 196
Barbour v Autosports Five Dock Pty Ltd [2020] NSWCATAP 141
Cairns v AHG Newcastle Pty Ltd [2020] NSWCATAP 103
Capic v Ford Motor Company of Australia Pty Ltd [2021] FCA 715
Commonwealth v Amann Aviation Pty Ltd [1991] HCA 54.
Como Leather Pty Ltd v Harris [2017] NSWCATAP 95
D’Agostino v Anderson [2012] NSWCA 443
Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31; 110 ALR 608
Do Carmo v Ford Excavations Pty Ltd [1984] HCA 17; (1984) 154 CLR 234
Elivir Halilovic v Prestige Motor Sport Sydney Pty Ltd trading as Prestige Motor Haus Sydney [2018] NSWCATCD 4
Hawkins v Clayton [1998] HCA 15; (1988)164 CLR 537
Little v Khoury T/As GAS-250 Restorations [2018] NSWCATCD 47
McBride v Christies Australia [2014] NSWSC 1729
Medtel Pty Ltd v Courtney [2003] FCAFC 51
Moloney v Taylor [2016] NSWCA 199
My Pool Safety Inspector Pty Ltd v MCM Sutherland Pty Ltd [2024] NSWCATAP 58
Sacks v Hammoud [2016] NSWCATAP 225
Safi v Heartland Motors Pty Ltd t/as Heartland Chrysler [2016] NSWCATAP 80
Sutherland Shire Council v Heyman[1985] HCA 41
Tang t/as Better Aquariums v Karatasoulis [2018] NSWCATAP 140
Upton v Martin & Stein Antiques Pty Ltd [2016] NSWCATAP 228
Wardley Australia Ltd v Western Australia (1992) 175 CLR 514
Wilson v Winnicott [2021] NSWCATAP 211
Winnote Pty Limited (in liq) v Page [2006] NSWCA 287
Woolcock Street Investments Pty Ltd v CDG Pty Ltd [2004] HCA 16; 216 CLR 515

Category: Principal judgment
Parties: Applicant: George Celovic
Representation:

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Celovic v Righetti

Details

AGLC: Celovic v Righetti [2025] NSWCATCD 3
Case: [2025] NSWCATCD 3
Decision Date: 17 January 2025

CaseChat Overview and Summary

The case of Celovic v Righetti involved George Celovic, the Applicant, who claimed against Ann Maree Righetti and Mark Romano Righetti, trading as Engine Masters Australia, the Respondents, for defective engine repairs and misleading and deceptive conduct. The dispute centred on the Respondents' failure to comply with a guarantee of acceptable quality for the engine repairs they performed, along with associated misleading and deceptive conduct claims. The case was heard in the Federal Circuit Court of Australia.

The primary legal issues the court had to address were the point at which the cause of action accrued against the Respondents for failure to comply with the guarantee of acceptable quality, the timing of when damage was first sustained, whether the Applicant required the Respondents to remedy the failure within a reasonable time, and the assessment of reasonable costs incurred by the Applicant in having the engine repaired. The court also considered whether the Respondents' conduct was misleading or deceptive and if there were any mitigating factors or issues of remoteness in the Applicant's claim.

The court determined that the cause of action accrued when the engine first failed, which was shortly after the repairs were completed. It was found that the Applicant did require the Respondents to remedy the failure within a reasonable time, and the costs incurred by the Applicant in repairing the engine were deemed reasonable. The court found that the Respondents' conduct was misleading and deceptive as it involved a failure to disclose the true condition of the engine. The Applicant's failure to mitigate losses did not preclude him from recovering damages, as the Respondents' liability was established. The court awarded the Applicant $5,000 for the losses incurred.

The court ordered that the Respondents, Ann Maree Righetti and Mark Romano Righetti trading as Engine Masters Australia, pay the Applicant, George Celovic, the sum of $5,000 within 14 days from the date of the Reasons. This sum represented compensation for the costs incurred by the Applicant due to the defective engine repairs and the misleading and deceptive conduct by the Respondents.

Orders

Orders of the court

(1) The Respondents, Ann Maree Righetti and Mark Romano Righetti trading as Engine Masters Australia, are to pay the Applicant, George Celovic, the sum of $5,000 within 14 days from the date of these Reasons.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

Celovic v Righetti [2025] NSWCATCD 3

Cases Citing This Decision

No citing cases yet.

Cases Cited

Capic v Ford Motor Company of Australia Pty Ltd [2021] FCA 715
Citation 1 (Para 272)

…The guarantee under s 54 applies at the time the goods are supplied (which is 11 November 2017): C apic v Ford Motor Company of Australia Pty Ltd [2021] FCA 715 at [606], informed by what is known of their subsequent condition and by what it was reasonable to expect from the type of goods in issue: see generally,…
Little v Khoury T/As Gas-250 Restorations [2018] NSWCATCD 47
Citation 2 (Para 253)

…came known to the applicant, or could have become known with reasonable diligence before 4 December 2020: Little v Khoury T/As GAS-250 Restorations [2018] NSWCATCD 47 at [26].…
Elivir Halilovic v Prestige Motor Sport Sydney Pty Ltd trading as Prestige Motor Haus Sydney [2018] NSWCATCD 4
Citation 3 (Para 209)

…recovery of his ‘reasonable costs’ – see Elivir Halilovic v Prestige Motor Sport Sydney Pty Ltd trading as Prestige Motor Haus Sydney [2018] NSWCATCD 4 at [90-91]…
Moloney v Taylor [2016] NSWCA 199
Citation 4 (Para 216)

…to technicalities or legal forms” under s 38(4) of the Civil and Administrative Tribunal Act (NSW) 2013 ( NCAT Act ) and also Moloney v Taylor [2016] NSWCA 199 at [30] – [31].…
Australian Competition and Consumer Commission v Valve Corporation (No 3) [2016] FCA 196
Citation 5 (Para 165)

…rly characterised as a supply of goods: Australian Competition and Consumer Commission v Valve Corporation (No 3) (2016) 337 ALR 647; [2016] FCA 196 at [131]-[134]; Wilson v Winnicott [2021] NSWCATAP 211 at [77]-[99].…
Australian Competition and Consumer Commission v Valve Corporation [2015] FCA 721
Citation 6 (Para 165)

…However, it is not necessary to deal with the provisions regarding “services”. This is because the contract to sell the engine (which had been manufactured by the respondents) involved the provision of both goods and services. The sale of the “goods” was “a core part of the supply”. By reason of the…
McBride v Christie's Australia Pty Ltd [2014] NSWSC 1729
Citation 7 (Para 245)

…conomic loss caused by misleading and deceptive conduct, such a category of case was recognised by Bergin CJ (in Eq) in McBride v Christies Australia [2014] NSWSC 1729 at [217-228] in a case involving a forged painting. The plaintiff bought the painting at auction in 2000. Ten years later, when she was preparing to…
D'Agostino v Anderson [2012] NSWCA 443
Citation 8 (Para 246)

…f action therefore accrues “when measurable damage is first suffered even though further damage continues to accrue”: D’Agostino v Anderson [2012] NSWCA 443 at [7] and Sacks at [57] citing Wardley at [526-527].…
Winnote Pty Ltd v Page [2006] NSWCA 287
Citation 9 (Para 241)

…gins to run and it does not matter that the applicant was ignorant of the true position (i.e. aware of the loss): Winnote Pty Limited (in liq) v Page [2006] NSWCA 287 at [40].…
Woolcock Street Investments Pty Ltd v CDG Pty Ltd [2004] HCA 16
Citation 10

…lson v Winnicott [2021] NSWCATAP 211 Winnote Pty Limited (in liq) v Page [2006] NSWCA 287 Woolcock Street Investments Pty Ltd v CDG Pty Ltd [2004] HCA 16; 216 CLR 515 Category: Principal judgment Parties: Applicant: George Celovic Representation: Applicant: self-represented Respondents: Ann Maree Righetti File N…
Medtel Pty Ltd v Courtney [2003] FCAFC 51
Citation 11 (Para 272)

…known of their subsequent condition and by what it was reasonable to expect from the type of goods in issue: see generally, Medtel Pty Ltd v Courtney [2003] FCAFC 51 per Moore J at [40], Branson J at [70], and Jacobson J agreeing with Branson J at [81].…
Forestview Nominees Pty Ltd v Perpetual Trustees WA Ltd [1998] HCA 15
Citation 12

…54 CLR 234 Elivir Halilovic v Prestige Motor Sport Sydney Pty Ltd trading as Prestige Motor Haus Sydney [2018] NSWCATCD 4 Hawkins v Clayton [1998] HCA 15; (1988)164 CLR 537 Little v Khoury T/As GAS-250 Restorations [2018] NSWCATCD 47 McBride v Christies Australia [2014] NSWSC 1729 Medtel Pty Ltd v Courtney [2003…
Wardley Australia Ltd v Western Australia [1992] HCA 55
Citation 13

…yman[1985] HCA 41 Tang t/as Better Aquariums v Karatasoulis [2018] NSWCATAP 140 Upton v Martin & Stein Antiques Pty Ltd [2016] NSWCATAP 228 Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 Wilson v Winnicott [2021] NSWCATAP 211 Winnote Pty Limited (in liq) v Page [2006] NSWCA 287 Woolcock Street Investments Pty Ltd v CDG Pty Ltd [2004…
Commonwealth v Amann Aviation Pty Ltd [1991] HCA 54
Citation 14 (Para 328)

…fficulty of assessment is no bar to the assessment of damages, and a Court or Tribunal must do the best it can: Commonwealth v Amann Aviation Pty Ltd [1991] HCA 54. In Amann at [31], Mason CJ and Dawson J note that in Jones v. Schiffmann [1971] HCA 52; (1971) 124 CLR 303 at 308, Menzies J. said that that the “ a…
Hawkins v Clayton [1988] HCA 15
Citation 15 (Para 243)

…But the majority of the High Court in Hawkins v Clayton (1988) 164 CLR 537: (see, as per Deane J in Wardley at page 540.3) rejected the submission that there be a general qualification that time does not commence to run until the damage is discovered by the plaintiff or could on reasonable inquiry have been discovered in c…
Sutherland Shire Council v Heyman [1985] HCA 41
Citation 16 (Para 244)

…oolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515, said in relation to the findings of Deane J in Sutherland Shire Council v Heyman [1985] HCA 41; (1985) 157 CLR 424:…
Do Carmo v Ford Excavations Pty Ltd [1984] HCA 17
Citation 17 (Para 240)

…ge of the legal implications of the known facts is not an additional fact which forms part of a cause of action - Do Carmo v Ford Excavations Pty Ltd [1984] HCA 17; (1984) 154 CLR 234 at [245].…
Jones v Schiffmann [1971] HCA 52
Citation 18 (Para 328)

…ust do the best it can: Commonwealth v Amann Aviation Pty Ltd [1991] HCA 54. In Amann at [31], Mason CJ and Dawson J note that in Jones v. Schiffmann [1971] HCA 52; (1971) 124 CLR 303 at 308, Menzies J. said that that the “ assessment of damages ... does sometimes, of necessity involve what is guess work rather…
Sacks v Hammoud [2016] NSWCATAP 140
Citation 19 (Para 175)

…In Sacks v Hammoud [2016] NSWCATAP 140 at [59], a case of a claim against a supplier for a failure to comply with a consumer guarantee (in that case, s 60), the Appeal Panel held that the cause of action first accrues under s 267(4) (and time begins to run) based on a factual finding of “when the alleged damage became…
Curtis v Potter & Co Pty Ltd t/as The African Safari Co [2016] NSWCATAP 196
Citation 20 (Para 277)

…Even if the s 137B does not apply to the NSW ACL (see Curtis v Potter & Co Pty Ltd t/as The Africa Safari Co [2016] NSWCATAP 196 at [59-60]) , it may still be that any contributory negligence by the applicant can still be taken into account by the Tribunal in light of s 74(3) of the FTA, which provides a discretion as…
Como Leather Pty Ltd v Harris [2017] NSWCATAP 95
Citation 21

…c v Ford Motor Company of Australia Pty Ltd [2021] FCA 715 Commonwealth v Amann Aviation Pty Ltd [1991] HCA 54. Como Leather Pty Ltd v Harris [2017] NSWCATAP 95 D’Agostino v Anderson [2012] NSWCA 443 Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31; 110 ALR 608 Do Carmo v Ford Excavations Pty Ltd [1984] HCA 17; (1984) 1…
Cairns v AHG Newcastle Pty Ltd [2020] NSWCATAP 103
Citation 22 (Para 234)

…ecessary to entitle a person to make a consumer claim are present: Sacks v Hammoud [2016] NSWCATAP 225 at [34]. In Cairns v AHG Newcastle Pty Ltd [2020] NSWCATAP 103, the Appeal Panel said at [28], in the context of s 79L FTA, that the “cause of action giving rise to the claim” refers to the set of facts which support…
Wilson v Winnicott [2021] NSWCATAP 211
Citation 23 (Para 165)

…Competition and Consumer Commission v Valve Corporation (No 3) (2016) 337 ALR 647; [2016] FCA 196 at [131]-[134]; Wilson v Winnicott [2021] NSWCATAP 211 at [77]-[99].…
My Pool Safety Inspector Pty Ltd v MCM Sutherland Pty Ltd [2024] NSWCATAP 58
Citation 24 (Para 211)

…oreseeable loss which can be the subject of an order for damages under s 259(4) of the ACL: My Pool Safety Inspector Pty Ltd v MCM Sutherland Pty Ltd [2024] NSWCATAP 58 at [57-60].…
Demagogue Pty Ltd v Ramensky 36 ER 422
Citation 25 (Para 274)

…The applicant must show he relied on the misleading conduct or omission. As made clear in Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31; 110 ALR 608, the fact that no positive statement was made does not preclude a finding of misleading and deceptive conduct causing damage. Silence may itself constitute such conduct.…

Legislation Cited

Competition and Consumer Act 2010 (Cth)
1 mention (from Para 158)
Consumer Act 2010 (Cth)
1 mention (from Para 276)
Legal Profession Uniform Law Application Act 2014 (Vic)
1 mention
Limitation Act 1969 (NSW)
1 mention

Medium Neutral Citation:	Celovic v Righetti [2025] NSWCATCD 3
Hearing dates:	23 September 2024
Date of orders:	17 January 2025
Decision date:	17 January 2025
Jurisdiction:	Consumer and Commercial Division
Before:	J Alder, General Member
Decision:	(1) The Respondents, Ann Maree Righetti and Mark Romano Righetti trading as Engine Masters Australia, are to pay the Applicant, George Celovic, the sum of $5,000 within 14 days from the date of these Reasons.
Catchwords:	CONSUMER CLAIM – defective engine - where a party is both a supplier and a manufacturer - where a party has supplied both goods and services - when does the cause of action first accrue against a supplier for failure to comply with the guarantee as to acceptable quality - when is damage first sustained - did the consumer require the supplier to remedy the failure within a reasonable time - reasonable costs incurred by the consumer in having an engine repaired – foreseeable loss and damage – misleading and deceptive conduct - assessment of damages - failure to mitigate – remoteness
Legislation Cited:	Australian Consumer Law (NSW), ss 2, 3, 11, 18, 54, 55, 60, 236, 259, 260, 261, 262, 263, 267, 271, 272 Competition and Consumer Act 2010 (Cth) Fair Trading Act (NSW) 1987, ss 28, 74(3), 79L Civil and Administrative Tribunal Act (NSW), ss 38(4), 53(1), 60
Cases Cited:	Australian Competition and Consumer Commission v Valve Corporation (No 3) (2016) 337 ALR 647 [2016] FCA 196 Barbour v Autosports Five Dock Pty Ltd [2020] NSWCATAP 141 Cairns v AHG Newcastle Pty Ltd [2020] NSWCATAP 103 Capic v Ford Motor Company of Australia Pty Ltd [2021] FCA 715 Commonwealth v Amann Aviation Pty Ltd [1991] HCA 54. Como Leather Pty Ltd v Harris [2017] NSWCATAP 95 D’Agostino v Anderson [2012] NSWCA 443 Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31; 110 ALR 608 Do Carmo v Ford Excavations Pty Ltd [1984] HCA 17; (1984) 154 CLR 234 Elivir Halilovic v Prestige Motor Sport Sydney Pty Ltd trading as Prestige Motor Haus Sydney [2018] NSWCATCD 4 Hawkins v Clayton [1998] HCA 15; (1988)164 CLR 537 Little v Khoury T/As GAS-250 Restorations [2018] NSWCATCD 47 McBride v Christies Australia [2014] NSWSC 1729 Medtel Pty Ltd v Courtney [2003] FCAFC 51 Moloney v Taylor [2016] NSWCA 199 My Pool Safety Inspector Pty Ltd v MCM Sutherland Pty Ltd [2024] NSWCATAP 58 Sacks v Hammoud [2016] NSWCATAP 225 Safi v Heartland Motors Pty Ltd t/as Heartland Chrysler [2016] NSWCATAP 80 Sutherland Shire Council v Heyman[1985] HCA 41 Tang t/as Better Aquariums v Karatasoulis [2018] NSWCATAP 140 Upton v Martin & Stein Antiques Pty Ltd [2016] NSWCATAP 228 Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 Wilson v Winnicott [2021] NSWCATAP 211 Winnote Pty Limited (in liq) v Page [2006] NSWCA 287 Woolcock Street Investments Pty Ltd v CDG Pty Ltd [2004] HCA 16; 216 CLR 515
Category:	Principal judgment
Parties:	Applicant: George Celovic
Representation: