Evans v P v Pirlo Investments Pty Ltd

[2025] NSWCATCD 49

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Evans v P V Pirlo Investments Pty Ltd [2025] NSWCATCD 49

Hearing dates:

16 April 2025

Date of orders:

13 June 2025

Decision date:

13 June 2025

Jurisdiction:

Consumer and Commercial Division

Before:

G. Bassett, General Member

Decision:

(1)   The application is dismissed.

Catchwords:

CONSUMER LAW — Consumer guarantees — Supply of services — Guarantee as to due care and skill

Legislation Cited:

Australian Consumer Law ss 60, 61, 62

Fair Trading Act 1987 s79

Cases Cited:

Babic v De Souza [2019] NSW CATAP 279

Category:

Principal judgment

Parties:

Applicant: Christian Evans

Respondent: P V Pirlo Investments Pty Ltd trading as Midas Tweed Heads

Representation:

Applicant: self-represented (Interpreter Spanish)

Respondent: Peter Pirlo

File Number(s):

2024/00412533

Publication restriction:

unrestricted

REASONS FOR DECISION

Application and procedural history

1. On 6 November 2024, the applicant applied for an order for repairs to be carried out to a vehicle and refund of payments for repairs and vehicle registration. In addition, compensation for the value of the vehicle was sought, being $14,000.00.

2. On 19 January 2025, the matter came before the Tribunal for conciliation hearing. It was adjourned for a contested hearing with the usual directions made for exchange of documents.

3. To rectify evidentiary deficiencies that arose during the final hearing, I made the following directions:…

2. The respondent P V Pirlo Investments Pty Ltd Trading as Midas Tweed Heads is to lodge with the Tribunal and give to the other party the documents of the Brisbane computer service provider who worked on the memory and document of DACC by 28 April 2025.

3 The applicant Christian Evans is to lodge with the Tribunal and give to the other party any submissions (no more than 2 pages) on these 2 documents by 07 May 2025.

4 The respondent P V Pirlo Investments Pty Ltd Trading as Midas Tweed Heads is to lodge with the Tribunal and give to the other party any written submissions in reply by 14 May 2025.

4. In response to the applicants request for an extension of time to comply with end-of-hearing directions the Tribunal made the following orders on 5 May 2025:

1 The directions of 16 April 2025 are amended as follows:

(a) time to comply with order 3 is extended to 14 May 2025; and

(b) time to comply with order 4 is extended to 21 May 2025.

Jurisdiction

5. Under s 79E(1) of the Fair Trading Act 1987 (“the Act”) the dispute involves an agreement that arises from a supply of goods by the respondent supplier (“Pirlo”) to the consumer applicant, being repair services to a 2005 model BMW318i Cabrio. The goods were supplied in NSW as prescribed in Section 79K(1) of the Act. The proceedings have been brought within the 3-year limitation period prescribed under Section 79L. The claim is within the monetary limit of consumer claims to the Tribunal. Under section 79N the applicant sought an order that requires a respondent to pay to the claimant a specified amount of money.

6. The Tribunal has jurisdiction to determine the matter.

Evidence of the parties

Evidence submitted / given

7. Parties submitted the following evidence:

1. affidavit of applicant sworn 21 January 2025 submitted on 23 January 2025

2. written statement respondent with various documents submitted on 3 February 2025

3. further statutory declaration of the applicant sworn 21 March 2025.

8. Parties also gave oral evidence at hearing and were questioned on this evidence.

9. Further evidence supplied under the 16 April end-of-hearing amended directions is:

1. Pirlo bundle of documents lodged on 28 April 2028 and marked “Doc 6” by registry

2. applicant documents entitled “Applicant’s Outline of Submissions” lodged 14 May 2025.

10. All this evidence has been considered in coming to this decision.

Summary of events and party contentions

11. The odometer reading at an inspection on 1 December 2023 was 278,027 kilometres. The vehicle did not pass that authorised inspection station E safety check report due to oil leaks from the engine. The applicant took the vehicle to a repairer unrelated to this matter on 6 February 2023. Applicant said that repairer indicated the main seal would need replacement, but that repairer could not do the work.

12. Instead, applicant attended Pirlo’s repair shop on 9 February 2023 for the first repair works. Applicant says Pirlo informed him that the seal was not the problem but a leak from the oil sump. This was repaired for the sum of $954.60. The invoice for works indicated “major oil leak sump”.

13. The vehicle was subject to 9 attendances after the 9 February Pirlo diagnosis and repair services. It is not the purpose of this determination to detail what took place at each of those visits. I have considered the totality of the document and oral evidence to give a useful summary of the alleged defects and attempts at repair both agreed and as contested by the parties.

14. Turning to the second repair works. On or about 17 March 2023, applicant picked up the vehicle and drove to Brisbane. He noticed an oil smell at the first traffic light and checked under the vehicle. The vehicle went into sleep mode. Applicant was advised by Pirlo to go to a nearer repairer at the time of breakdown. Applicant alleged he had an oral report only from this repairer that Pirlo’s work had not been done properly. The vehicle was returned to Pirlo to do the work again. This took some four months to complete, and the applicant picked up the vehicle again on 14 August 2023. Applicant said he was told the sensor mode had been cleared. He was charged $1,440.00 again for repair services in an invoice of 15 August 2023. This invoice stated the sump had been checked and found to have a very minor warp, but a new sump and sump gasket was required and installed. The vehicle was checked for oil leaks. None were present. The invoice also indicated when the vehicle was parked at the repair centre a coolant leak was evident. After instruction from the applicant, the radiator was removed and replaced. There was also an issue in relation to the battery not holding charge. But for the cost of $256.00 for replacement of engine oil in the new sump the invoice of $1,440.00 charged only for the coolant leak repair and battery repair, not the replaced sump. In other words, regarding the first sump repair Pirlo had resupplied services and related sump goods free of charge.

15. I turn to the third repair. The applicant drove the vehicle and found a further oil leak underneath. The vehicle also displayed a limp-mode sensor light again. An invoice dated 1 September 2023 showed repairs to remove and replace a tappet cover gasket which Pirlo said can leak oil. A bottom radiator hose was also replaced. The applicant paid $340.00 for these repairs.

16. The vehicle was returned for a fourth repair. It was collected on 13 February 2024. The rear main seal assembly was removed due to a leak. The applicant asserted this was the issue alleged by the unrelated repairer before the vehicle was brought in for the first repair on 9 February. Applicant alleged Pirlo had misdiagnosed the problem on 9 February and failure to repair this on 9 February 2023 was a failure to provide services with due care and skill.

17. However, in addition to the oil leak Pirlo’s invoice in the sum of $220.00 for the fourth repair of 15 February 2024 shows diagnosis of a further unrelated issue as the computer DME (Digital Motor Electronics) failed. The DME was replaced. The applicant was charged $2,200.00 for both repairs. The DME in a BMW manages various engine functions, like fuel injection and ignition timing to optimise engine performance and efficiency. To summarise, at this stage the alleged defects with the first repair and the alleged failure to recognise the seal diagnosis of the unrelated repairer prior to 9 February repair had been rectified. Further, there was diagnosis of new defects not related to those repairs.

18. Over the following months the applicant brought the vehicle back for further repairs on at least 4 occasions. The facts show that on each occasion Pirlo did not concede there were defects in relation to engine oil leaks, just repairs related to the computer, DME and vehicle electronics.

19. I turn to the fifth repair. The vehicle was again returned and repaired at no cost to the applicant. Comments of the investigator of the Office of Fair Trading show that the DME was sent for diagnosis of the defect. It had internal water damage at the circuit board. A replacement unit was installed and the defective DME cloned to transfer data to the newly installed DME. In the evidence of Pirlo provided under the end-of-hearing directions Pirlo admitted it could not obtain documents from a Brisbane-based computer service that analysed and repaired the defective computer / DME. Pirlo still had he old computer in its possession and reiterated that it was damaged. An invoice dated 11 January from a third-party computer repairer issued to Pirlo indicated fault codes to the valvetronic and recommended bench-testing of the DME. Pirlo said it had bench-testing done by the third party Brisbane repairer from whom it could not obtain documents. In his end-of-hearing submission affidavit the applicant submitted the vehicle was not functional despite claims by Pirlo at a hearing on 9 February 2025 that it was fully functional.

20. Pirlo submitted the applicant owes it $2,800.00 for services but it did not seek an order for this amount.

21. As the claim was the failure to comply with a consumer guarantee was a major failure the parties gave evidence of the current market value of the vehicle ranging from $5,500.00 to $11,000.00.

22. During the final repair Pirlo scanned the vehicle and found the crank sensor light relating to rotation at the bottom of the engine had failed due to wear and tear. Pirlo said this repair was done as goodwill for the applicant. However, the applicant refused to pick up the vehicle. When the applicant did eventually appear to pick up the vehicle, there was an altercation between a representative for Pirlo and the applicant. Pirlo reiterated the request for the vehicle to be taken to an auto electrician as Pirlo did not have capacity to carry out such repairs.

Issues for determination

23. The issue for determination is whether the failure of the vehicle engine was caused by any breach of the Australian consumer guarantee to provide repair services with due care and skill.

Relevant legislation

24. The Australian Consumer Law contains consumer guarantees in respect of services. Section 60 guarantees services will render services with due care and skill. Section 61 stipulates that when a consumer makes known any particular purpose for which the services are being acquired the services and any product resulting from the services, will be reasonably fit for that purpose.

25. Under s 62 there is a guarantee that the time in which services are to be supplied when not fixed under contract or not determined by a manner agreed to by the parties, is in a reasonable time.

26. In Babic v De Souza [2019] NSW CATAP 279, the Appeal Panel of the Tribunal provided a useful summary of the legal principles in considering ss 60-61 of the ACL NSW. At [21]-[22] the Appeal Panel stated:

21 The ACL provides, in respect of the supply of services to a consumer, guarantees that the services were supplied with due care and skill (ACL s 60) and were reasonably fit for any expressly or implicitly disclosed purpose or result (s 61). Where these guarantees are not complied with, the consumer has rights pursuant to ACL ss 267-269 to remediation, to compensation for reasonably foreseeable loss or damage by reason of the non-compliance and, in the case of a major failure, or another failure which has not been remedied by the supplier as required, the right to obtain a refund, provided that such right to claim a refund is exercised within the “rejection period”.

22 Section 64 of the ACL provides that the consumer guarantees cannot be excluded; however, s 64A permits the contractual limitation of the remedies for breach of a consumer guarantee if the goods or services are of a kind not ordinarily acquired for personal, domestic or household use or consumption.

27. Where a finding has been made that a supplier has breached a consumer guarantee, a consumer may bring an action against that supplier under section 267 of the ACL.

28. There is an important qualification to this capacity to bring an action. If the breach does not relate to a guarantee under s 60, an action may not be brought if the failure to comply with the guarantee was only because it was due to an act, default or omission of, or a representation made by, any person other than the supplier, or an agent or employee of the supplier. An action may not be brought if the failure was only due to a cause independent of human control that occurred after the services were supplied.

29. Where the breach is capable of remedy the consumer can require the supplier to remedy any failure to comply with a guarantee. If such failures are not remedied within a reasonable time, section 267(2)(b) of the ACL empowers the consumer to have the failure remedied and, by action against the supplier, recover all reasonable costs incurred. In the alternative, the consumer may terminate the contract for the supply of the services.

30. If the failures are not capable of being remedied or they are a major failure, under section 267(3) of the ACL the consumer can terminate the contract for services, and by action against the supplier recover compensation for any reduction in the value of the services below the price paid or payable for the services. In addition, at section 267(4) the consumer may recover damages for any loss or damage suffered by the consumer because of the failure if the loss or damage was reasonably foreseeable.

31. What constitutes a major failure in relation to the supply of services? Section 268 states the following:   

A failure to comply with a guarantee referred to in section 267(1)(b) that applies to a supply of services is a major failure if:

(a)   the services would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of the failure; or

(b)   the services are substantially unfit for a purpose for which services of the same kind are commonly supplied and they cannot, easily and within a reasonable time, be remedied to make them fit for such a purpose; or

(c)   both of the following apply:

(i)   the services, and any product resulting from the services, are unfit for a particular purpose for which the services were acquired by the consumer that was made known to the supplier of the services;

(ii)   the services, and any of those products, cannot, easily and within a reasonable time, be remedied to make them fit for such a purpose; or

(d)   both of the following apply:

(i)   the services, and any product resulting from the services, are not of such a nature, or quality, state or condition, that they might reasonably be expected to achieve a result desired by the consumer that was made known to the supplier;

(ii)   the services, and any of those products, cannot, easily and within a reasonable time, be remedied to achieve such a result; or

(e)   the supply of the services creates an unsafe situation.

32. At section 269 where a consumer has terminated the contract for services, they can take action against the supplier for any money paid for the services and an amount that is equal to the value of any other consideration provided by the consumer for the services. Both these remedies must consider the extent to which the consumer has not already consumed the services to the time of termination.

33. What if goods are supplied with the rejected services? Section 270 stipulates that at the time the contract for services is terminated the consumer is also taken to have rejected the goods and must return the goods to the supplier unless the goods cannot be returned, removed or transported without significant cost to the consumer because of the nature of the failure. In this case the supplier must refund any money paid by the consumer for the goods and any amount that is equal to the value of any other consideration provided by the consumer for the goods.

Findings and determination

34. Repairs to old, well-travelled vehicles is a fraught business.

35. A consumer might reasonably consider that any re-emergence of the same fault, particularly if it occurs close in time to the provision of the repair services, could be a failure arising from defective repair services not supplied with due care and skill. On the other hand, a repairer also runs a risk when repairing an old vehicle that defects unrelated to the repair services supplied may arise even at a time close to when repair services were provided let alone at times more distant to provision of the repair services.

36. In addition, the useful summary in Babic v De Souza in respect of the supply of services to a consumer applies to failures which have not been remedied. When a refund is sought for a major failure, the consumer must reject the services within the rejection period. Any compensation to be ordered must arise from reasonably foreseeable loss or damage due to non-compliance with the consumer guarantee.

37. Even if the original provision of services to rectify the sump on 9 February did breach the consumer guarantee I am satisfied Pirlo rectified that deficiency when it carried out the repairs for no charge indicated in the invoice of 15 August 2023.

38. Nor do I find that there was any breach of the guarantee to provide services with due care and skill in relation to the diagnosis of the oil leak arising from the sump rather than the replace seal diagnosis of unrelated repairer to whom the applicant took the vehicle on 6 February 2023. Again, if it were a misdiagnosis in breach of the consumer guarantee Pirlo complied with the obligation to re-supply and rectify repair services and had made good any seal at the fourth repair and as shown in the invoice for works of 15 February 2024.

39. The provision of services in relation to both the sump and the seal was done with great care and skill. When confronted with the possibility the repair services had been faulty Pirlo resupplied those services as it was required to do under the ACL.

40. I am not satisfied that the electronic problems that arose with the vehicle were result of any repair services supplied for the sump/seal oil leaks. It is more probable than not these issues word inherent within the vehicle at the time the repair services relating to the oil leaks were supplied.

41. Despite this, Pirlo provided services to diagnose the DMA / valvetronic system and carried out repairs to that system for which it had the skills. The refusal of the applicant to take possession of the vehicle after these repair services meant the applicant had no expert evidence to show that the vehicle was still non-functional or a major failure.

42. The only evidence I have from any independent party as to the vehicle’s functionality after repairs to the electronic systems is the report of 5 January 2025 where the vehicle passed a safety check, no fault codes were returned after scan and the vehicle was found to be operating “fine”. Any rejection of the vehicle from this point was premature and not a valid rejection. Even though Pirlo was unable to obtain documents from the Brisbane-based firm that diagnosed the electronic devices of the vehicle I am satisfied that Pirlo engaged those services on behalf of the applicant. I have no reason to find Pirlo’s representative was misleading the Tribunal or the applicant when sworn evidence was given on that point and Pirlo also complied with the end-of-hearing directions to provide the documents. Pirlo did not seek its costs in providing those services to the applicant.

43. Nor do I accept there has been a breach of the consumer guarantee to provide services within a reasonable time. It is true it took some months to provide initial services, but this arose due to a scarcity of parts for vehicles of the age and type. Any delays in diagnosis and analysis of the electronic faults arose from the need to have the vehicle inspected and diagnosed by third parties over whom Pirlo had little control. Finally, the most significant delay has been caused by the applicant who refuses to take possession of the vehicle after repairs had been carried out. He also refused to take the vehicle to an independent auto electrician for further diagnosis for the problem as Pirlo suggested as it did not have the capacity to provide such services.

34. Having considered all the evidence, on the balance of probabilities I am not satisfied that Pirlo breach its obligation to supply repair services with due skill and care.

Order

45. I make the following order:

1. The application is 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

Decision last updated: 13 August 2025