Gosch v COPLEY (Appeals) - [2024] ACAT 32

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

GOSCH v COPLEY (Appeals) [2024] ACAT 32

AA 33/2023 (XD 124/2023)

Catchwords: APPEALS – (CIVIL DISPUTE) – claim for damages arising from poor respray of a vehicle – appeal against award of $10,000 for loss claimed on sale of the vehicle – appeal on grounds of insufficient evidence including absence of any expert evidence to establish loss – evidence to show poor workmanship, but no evidence as to cost of repair, save for evidence of the appellant – no evidence of any loss on sale of the vehicle – error of law to award damages in absence of any evidence to quantify loss – appeal allowed in part

Cases cited:Commissioner for Social Housing v Tenant AA202154 [2022] ACAT 57
Giusida Pty Limited v Commissioner for ACT Revenue [2016] ACTSC 275
Pires v DibbsBarker Canberra Pty Limited [2014] ACTSC 283
Pye v Registrar, Domestic Animals Act [2022] ACAT 102

Tribunal:Presidential Member G McCarthy
Senior Member T Warwick

Date of Orders:  14 May 2024
Date of Reasons for Decision:      14 May 2024
AUSTRALIAN CAPITAL TERRITORY          )
CIVIL & ADMINISTRATIVE TRIBUNAL     )          AA 33/2023

BETWEEN:

TYCEN GOSCH

Appellant
AND:

ANDREW COPLEY
Respondent

APPEAL TRIBUNAL: Presidential Member G McCarthy
Senior Member T Warwick

DATE:14 May 2024

ORDER

The Tribunal orders that:

The decision under appeal is set aside.
The appellant pay the respondent $3,500 within 28 days.
………………………………..

Presidential Member G McCarthy
For and on behalf of the Appeal Tribunal

REASONS FOR DECISION

The appellant (Mr Gosch) appealed from an order of the original tribunal made on 7 August 2023 that he pay the respondent (Mr Copley) $10,000, arising from Mr Gosch’s respray of Mr Copley’s car: a 1961 Lincoln Continental.
The hearing before the original tribunal proceeded in the absence of Mr Gosch. This occurred consequent upon Mr Gosch informing the original tribunal by email on the morning of the hearing (7 August 2023) that, for personal reasons, he would be unable to attend the hearing. In his email, Mr Gosch added:
If it needs to be heard with myself not present I completely understand and hope the evidence I have provided would be sufficient.
The hearing proceeded on that basis.
The transcript of the hearing on 7 August 2023 records dialogue between the original tribunal and Mr Copley in which Mr Copley explained his claim; explained that he paid Mr Gosch $14,600 for the work done;[1] contended that if the paint job had been properly done he would have been able to sell the car for at least an additional $10,000; explained that Mr Gosch was unwilling to re-do the work save for respraying the boot and the bonnet; and that he sold the car for $48,000 “without getting a full paint job done”[2] because he did not have the money to do so.[3]
[1] Transcript of original proceeding, 7 August 2023, page 5, line 6
[2] Transcript of original proceeding, 7 August 2023, page 6, lines 1-2
[3] Transcript of original proceeding, 7 August 2023, page 6, line 10
On the evidence, the amount Mr Copley stated he paid Mr Gosch was incorrect. Mr Gosch's tax invoice dated 18 November 2022,[4] shows the quoted and invoiced amount for Mr Gosch's work was $14,000. An additional $600 was invoiced for respray of an "XY Falcon inner boot", which had no connection with the subject car. That is consistent with Mr Copley's claim for $14,000 in his initiating civil dispute application. We draw no adverse inference from the error. We regard the reference to $14,600 as an oversight.
[4] See attachment C to Mr Copley's documents filed in the original proceeding
Mr Copley did not calculate $10,000 as his loss. Rather, it was put forward as a compromise between the amount Mr Copley paid for work done ($14,000) and Mr Copley’s claimed loss consequent upon the work done being “nowhere near acceptable”, he said, in an effort “to recover some of the money that I have lost”.[5]
[5] Transcript of original proceeding, 7 August 2023, page 7, lines 25-26
The original tribunal member took a short adjournment after hearing from Mr Copley following which she ordered Mr Gosch to pay Mr Copley $10,000. The order states:
The respondent, Tyson (sic) Gosch, is to pay the applicant, Andrew Copley, the sum of $10,000 being an amount the applicant claims for loss sustained from a failed respray of a vehicle which he had to sell at a loss after the inferior job performed by Mr Gosch.
The original tribunal gave short reasons as follows:
So, Mr Copley, I have considered the material provided by you and the material provided by Mr Gosch and I am prepared to make an order in your favour. And the order will be that [Mr Gosch] is to pay [Mr Copley] the sum of $10,000, being an amount [Mr Copley] claims for loss sustained from a failed respray of a vehicle which he had to resell at a loss after the inferior job performed by [Mr Gosch].[6]
[6] Transcript of original proceeding, 7 August 2023, page 8, lines 23-30
Mr Gosch appealed from the original tribunal’s decision, stating in his application for appeal “I do not believe it to be fair”. Mr Gosch contended Mr Copley “did not provide any professional opinions or inspections from other spray painters as requested prior to the hearing”. He also stated his belief “there was no satisfactory evidence to allow for a judgement to be made against the quality of work that I completed”.
From reading Mr Gosch’s submissions dated 7 and 22 December 2023, it is clear Mr Gosch consider the order was not fair for the 2 reasons given. We have treated those reasons as his grounds of appeal against the original tribunal’s order.
For the purpose of the appeal, Mr Gosch provided written submissions expanding upon the grounds of appeal. In his written submissions, filed on 7 December 2023, Mr Gosch said:
Facts
I have lodged this appeal as I do not believe acceptable evidence has been provided to warrant the orders made against me in the original hearing.
The respondent … was ordered to provide an expert opinion/inspection of the vehicle prior to the hearing however this was never received.
The orders have been made with the only evidence being photos, videos and Mr Copley’s opinion (to my knowledge Mr Copley is not a spray painter or panel beater).
Photographs and videos are extremely easy to be taken in such a way to show either good or bad, as you can see Mr Copley has tried to reflect anything bad about the job he can find (bear in mind it was never to be a show finish.)
Issues
My issue is as stated above, I do not believe the decision and orders made against myself are warranted due to insufficient and incomplete evidence provided by Mr Copley.
For the purpose of the appeal, Mr Copley provided written submissions dated 11 December 2023. Leaving out procedural matters, and statements that are repeated, Mr Copley said:
[T]here was more than enough evidence… for the member at the time to make a well-informed decision regarding the matter. ACAT was provided with detailed videos and images to review which clearly showed all the imperfections in the paintwork performed by Mr Gosch. Evidence provided by both parties shows that Mr Gosch even admitted fault in the work he performed.
Further evidence shows that Mr Gosch could not perform the requested works correctly the first time as upon collecting the car for the first time, the work was so bad, I refused to accept the vehicle in that condition. I have provided all the written evidence that backs this up.
Mr Gosch continually mentions not a ‘show finish’ - all the imperfections and lack of talent in the spray painting industry does not mean you can provide well below industry standard by saying it was never meant to be a ‘show finish’.
In relation to Mr Gosch’s claim that no expert statement was provided by myself. At the time this was requested by Mr Gosch … I informed both Mr Gosch and the Member that I would be unable to provide such a statement as the vehicle had been sold. The Member was fully aware of this when making their decision.
In relation to Mr Gosch’s issues, the Member at the time not only reviewed all evidence prior to the hearing commencing but also stopped the hearing to have a break so the Member could review ALL the evidence that both parties had submitted.
Upon reviewing all the evidence for a second time, the Member made an informed decision based on that evidence. I am yet to see any evidence to the contrary where the Member has made an ill-informed decision which is the whole point of the appeal process.
Mr Gosch states that my evidence is incomplete, yet I provided overwhelming evidence clearly showing all the imperfections and defects to which the Member agreed. To base the appeal on suggesting that the detailed high definition photos and videos I provided were taken in such a way to make the paint job look poor is utterly ridiculous.
If there was not anything wrong with the paint job, no photo or video could make it look bad. Is Mr Gosch suggesting I’m using fake or trickery photography to help boost my claim? That would be suggesting I am committing fraud which I will not tolerate.
Mr Gosch has admitted on more than one occasion that his work was well below par which is clearly consistent with all the overwhelming evidence I have provided and as such, the Member clearly and rightly agreed.
Mr Gosch admitted the chrome work was not up to standard and offered a full refund and also admitted to respray the bonnet and the boot for a second time because that was also not up to standard. Obviously I do not accept this due to all the other defects but this clearly shows that Mr Gosch’s ability to paint a car is well below industry standard and he is trying anything he can do get out of paying his debts for ripping off a hard working Australian paid him in full for work an apprentice would be embarrassed about.
Further to, for Mr Gosch to say I made a poor financial decision when selling the car, I am a licensed motor dealer and have been for over eight years - I am in a far better informed [position] when it comes to the value of cars, not Mr Gosch
The only poor financial decision I made was trusting Mr Gosch with a vehicle of such high value to perform works that were well beyond his capabilities as clearly proven and agreed to by the informed Member the time.
I request the appeal be dismissed immediately and the order for the payment of $10,000 be paid within 7 days or I will continue with the garnishee over Mr Gosch’s personal and business bank accounts.
In his written submissions in reply filed on 22 December 2003, Mr Gosch said:
If we go back and actually listen to the audio correspondence Mr Copley is referring to here we can see that he had not sold the vehicle at this time as he stated “he would find a spray painter on the Gold Coast to do so”.
I believe if this had been done and the expert was advised of the dollar amount paid it would be made clear that the outcome was beyond satisfactory for an older American vehicle that was not to be stripped back to metal.
The industry standard and acceptable quality of a brand new car is 1-8 nibs (bits of dirt) allowable per panel, bear in mind that is on a brand new car, Mr Copley’s vehicle was far from brand new being 62 years old.
I keep on referring to it being a daily driver finish due to the fact that it was simply that, a 62 year old car that was not taken back to metal to repair every single dent and multiple layers of paint built up over the years. If Mr Copley has the experience he states with cars and the industry he surely should of known you can never get perfect results over something other than perfect to begin with which is why I was clear from the beginning of it not being show quality.
I don’t believe there was sufficient enough evidence from any expert or any other person for that matter other than Mr Copley himself which should not be an allowable deciding factor against a job that was done on a 60 year old vehicle as a tidy up and flip down the track as Mr Copley stated.
…
As I stated previously I strongly believe Mr Copley is simply trying to recoup costs on a poor buy to begin with. He has stated he had to sell for well below market value due to paint (please see attached of another 61 continental for sale currently at $38,000, I believe the original listing of Mr Copley’s lincoln also showed he would have purchased for $38,000, this would put market value at around that figure.
Anyone involved with cars knows you rarely get back what you spend on a car when modifying it, it seems Mr Copley got above market value (I believe he said he sold it for $47,000?
At the appeal hearing, Mr Gosch stated he had nothing to add beyond the points made in his written submissions, save for stating his main concern being “there was no expert or professional opinion other than my own”.[7]
[7] Transcript of proceeding, 29 January 2024, page 3, lines 42-44, page 6, lines 22-27
Mr Copley similarly stated he had nothing to add beyond that stated in his written submissions, save for stating there was “overwhelming evidence” that Mr Gosch’s work was not “up to scratch” and that Mr Gosch admitted his work was “below par”.[8] On inquiry, Mr Copley agreed Mr Gosch had admitted fault or substandard work only in relation to the bonnet, the boot lid and, arguably, the chrome work[9] but relied on the additional photographic evidence of “the other imperfections, overspray and missed and dints and what not”.[10]

Leave to adduce further evidence

[8] Transcript of proceeding, 29 January 2024, page 6, line 34 – page 7, line 36
[9] Transcript of proceeding, 29 January 2024, page 7, lines 9-30
[10] Transcript of proceeding, 29 January 2024, page 7, lines 16-17

Before turning to the grounds of appeal, we comment on a preliminary point. In his written submissions in reply dated 22 December 2023, Mr Gosch attached a printout of a listing on eBay of “another 61 Continental for sale currently at $38,000”. Mr Gosch relied on the listing to challenge Mr Copley’s claim he had to sell his car at well below its market value due to the poor paintwork. Mr Gosch claimed, by reference to the eBay listing, that Mr Copley was “simply trying to recoup costs on a poor buy to begin with”.[11]
[11] Mr Gosch’s written submissions in reply dated 22 December 2023, page 2
Mr Gosch did not seek leave to rely on the additional evidence or provide any written submissions in support of an application for leave to rely on the proposed further evidence as he was ordered to do,[12] but we were not persuaded by the further evidence even if leave to rely upon it had been granted.
[12] See order of the Appeal Tribunal dated 29 November 2023, orders 2(c) and (d)
The eBay listing describes the car as being “in original condition” but otherwise provides no detail about the car, in particular no comment about its bodywork, interior or drivability. For a car of this age and kind, prices would vary greatly depending on the condition of the car and other factors such as its owner history. Where the condition of the car on eBay is unknown, we were not persuaded its asking price provided any reliable comparison for determining the value of Mr Copley’s car. For this reason, we saw little if any value in the proposed further evidence, even if we were to have given for Mr Gosch to rely upon it.

Ground 1: no expert opinion evidence

Mr Gosch contended the original tribunal was in error by finding in Mr Copley’s favour without Mr Copley providing any expert evidence to support his claim as he was ordered to do. Mr Gosch referred in particular to order 3 (d) made on 11 May 2023, which required Mr Copley to provide “any expert’s report the applicant will rely on at the hearing” by 1 June 2023.
Mr Gosch contended that if an expert opinion had been obtained, then – presumably by that opinion – “it would be made clear that the outcome was beyond satisfactory for an older American vehicle that was not to be stripped back to metal”.[13]
[13] Submissions in reply dated 22 December 2023, page 1
In our view, the submission is misconceived. By use of the word “any” in order 3 (d), Mr Copley was not required to provide an expert report. Rather, if he intended to rely on an expert’s report at the hearing he needed to provide it by 1 June 2023. As it happened, Mr Copley chose not to provide an expert report and to rely only on the evidence he provided.
We note Mr Gosch was similarly ordered to provide any expert’s report on which he intended to rely but was similarly not required to provide an expert report. Like Mr Copley, Mr Gosch did not provide any expert report.
In the result, the original tribunal needed to make a decision based on the evidence provided, none of which included an expert opinion from anyone about the quality of the work.
For these reasons, we saw no error in the original tribunal deciding the application without the benefit of an expert report. It was obliged to decide the application based on the information it held, and it did so. Ground 1 fails.

Ground 2: the decision was not fair

Mr Gosch submitted there was insufficient and incomplete evidence to warrant the order made. He submitted that where the only evidence was photos, videos and Mr Copley’s opinion, the original tribunal should not have been persuaded to make the order. He submitted Mr Copley’s opinion was of little (if any) value where Mr Copley does not suggest he is a spray painter or panel beater.
We acknowledge Mr Gosch’s point of view, but a different viewpoint is not a sufficient basis to allow the appeal. Per order 7 of the orders made on 29 November 2023, the appeal was to be conducted as a rehearing unless the Appeal Tribunal ordered otherwise. We did not otherwise order.
The Tribunal has commented many times in past decisions on the nature of an appeal that is a rehearing. For example, in Pye v Registrar, Domestic Animals Act the Appeal Tribunal stated:
22. In short, an appellant must show that the original tribunal committed an error of fact or law that was material to the result.
23. An appellant must do more than contend that the decision of the original tribunal was wrong and that there should be a different result. A rehearing does not give an appellant the opportunity to have a second run at the target, as if the original decision had never been made, simply because the appellant is dissatisfied with the result.[14]
[14] [2022] ACAT 102
Applying these statements of principle, our role on appeal was to consider the evidence before the original tribunal and decide whether there was adequate or sufficient evidence for the original tribunal to make the order it did, even if we might not have done so had we heard the original claim.
The starting point was to ascertain, as best as possible, the terms of the agreement between Mr Copley and Mr Gosch. In our view it is captured in an exchange of text messages between them on 10 November 2022, the substance of which is as follows:
Copley: [Attaching two photos of a yellow 1961 Lincoln continental]
Hey mate I’m after a quote for a colour change inside out respray on my 61 Lincoln continental?
Gosch: Beautiful car mate love the suicide door lincolns. Does it have any damage & what colour are you wanting to go on it?
Copley: [Attaching 5 photos of yellow car, showing chips in paint]
Thanks mate. Yeah I love them. No major damage. Just some paint chips around the body. I am wanting to spray it Ford ego which is a metallic dark grey. And I’m chopping the roof off so that wont need to be painted.
Gosch: No dramas man, what type of finish are you expecting on it? Just as price can vary greatly between a show finish to a nice daily finish.
Copley: Not expecting elite mate. Just the cheapest quality job you can do please. It will only be a cruiser and I’ll probably flick it after a year anyway as I’m on the look out for a 64.
Gosch: No stress man, cheapest I could do it in and out in EGO would be $12,000. I use PPG envirobase paints also.
Copley: Thank you mate. I assume that includes filling in those chips etc?
Gosch: Yer man of course, I’d repair all those sections & any others needed.
Copley: OK Perfect. Let’s do it. I will need to get the motor ripped out so I’ll book that in to be done. When could you do it and how long would you need it for roughly?
Gosch: Perfect mate I look forward to it. I could get started any time from next Thursday. I’ll need it roughly 2-3 weeks.

On the same day, Mr Copley and Mr Gosch exchanged other text messages regarding Mr Copley’s wish to rechrome the bars and other trim pieces. The substance of those messages was as follows:
Copley: OK I’ll see what my mechanic can do re removing the motor and get back to you. When you remove the bars and other trim pieces, would it be OK if I picked them up to have them rechromed while it’s all apart to save removing it all later?
Gosch: No dramas at all mate sounds good. Yer of course, always better to only remove things once.
Copley: I don’t suppose there’s any trick pain[t] that can spray my bars chrome to save me taking them up to Sydney?
Gosch: There is spray chrome but I don’t reckon its ever as good as rechroming to be honest man. If you look up DNA virtual chrome that’s the spray chrome. I just reckon it looks a bit silver compared to plated chrome.
Copley: I get what you’re talking about with it being a bit but it would save me a shit load of money. The bars and grills alone are 6K to rechrome. Is that something you could do?
Gosch: Ohhh true shit I didn’t realise it was 6K to get them rechromed that’s a lot hey! I spose they charge it as there’s not many platers around anymore. Yer I could do it man, I’ve sprayed it a few times in the past. I could do all the chrome pieces for 1500 plus the 500 for the chrome kit so 2k. So all up job would be 14K.
Copley: Yeah it’s not cheap. Plus take them up to Sydney and the three month wait time. I understand if you were building an elite car you would do it but I think that DNA stuff would pass just fine for a more budget conscious build.
On 17 November 2022, Mr Copley and Mr Gosch exchanged text messages in which Mr Copley said he would not be taking out the motor and Mr Gosch said he would “give the bay a bit of a tidy up” and mask the engine. The substance of the text messages was as follows:
Copley: Thank you mate. I’ll be there between 11 and 12. I’m not going to take the motor out of the Lincoln. There’s actually no a whole lot of the engine bay exposed anyway so can’t really justify the 2k to take it out and back in again.
Gosch: Perfect man. Yer I hear that, I’m happy to give the bay a bit of a tidy up around what I can mask of the engine for ya anyway.
Copley: Sounds great mate thank you. When did you want the lincoln?
Otherwise, the communications on 17 November 2022 did not vary the above agreement. On 18 November 2022, Mr Copley delivered the car to Mr Gosch’s workshop for work to begin.
On 30 November 2022, Mr Gosch sent Mr Copley several photographs showing the work in progress. The car was now metallic rose in colour. The parties communicated as follows about the work done:
Copley: Thanks mate. Colour looks awesome! How has the chrome come up? Looks silver with no reflection in the photos?
Gosch: Yer its honestly like a silver man, I’m pretty disappointed in the look compared to what they advertise it as in all honesty. But yer I think that’s as close as it’d get aside from the silver spraying they do mirrors with (I had that set up years ago but it didn’t work with 2K clears and would yellow off in a week so wasn’t worth it) or dipping them LOL
Copley: All the videos I watched and pictures I saw at least had a decent reflection. The pictures make it look matt silver?
Gosch: Could just be the pics man, its def not a matte silver. But yer in the vis I think they definitely show it before they put the 2k clear over it. They looked more chromeish before the 2k clear went on but then even washing it you would have been scratching it.
Copley: Yeah no worries. Worth a try. If it looks shit, I’ll just bite the bullet and get the bars rechromed.
Gosch: Yer its hard to say really, like it does look good cuz its all uniform & the bars look tidy etc but yer not really as shiny as chrome.
Copley: All g man. Looking good anyway. Really happy with the rose metallic…
On 20 January 2023, Mr Copley came to Mr Gosch’s workshop to collect the car. On inspection, Mr Copley was concerned about many defects, as he perceived them, and did not take possession of the car. The parties exchanged text messages about the alleged defects, the substance of which was as follows:
Copley: Hey mate, just to let you know that I haven’t collected the car and the keys are still in the same place. Firstly, overall, I think it looks great and am generally happy with it. However, I’ve found a fair few things wrong with it
•    A heap of dints in bonnet and boot
•    chips on boot
•    needs a really good wet sand to get out other paint imperfections that have come off the gun when spraying
•    engine bay overspray everywhere
•    engine prep work not great
•    front bar wasn’t prepped for paint
•    badges not installed
•    chrome work is silver and nothing like the chrome they advertised. Can you go back to them to see if they sent you an off batch or something as its just a silver finish and nothing chrome remotely about it
•    overlap paint lines on bonnet.
I know we weren’t going for a full show car job but most of these imperfections are down to the prep work. I figure there was no point me taking the car as it would just need to come back again to have all the above fixed anyway I thought it would be best and easier just to leave it. Sorry mate, I’m not trying to be difficult but do expect a bit better attention to detail. If you want me to meet you there to go through it all, I’m happy to do so.
Gosch: OK no problems I’m happy to go over all those things and redo bonnet, boot. Cut & buff etc. Front bar we did prep, prime etc. The chrome is as it came man, I did mention it isn’t like chrome and I can’t change how it came out as its mixed with just the kit they supply. I’m not too sure about the engine bay prep work & overspray as there definitely shouldn’t be any as that’s just gmh (engine bay) black but I’ll have look again definitely.
Gosch: Also the old badges are broken and the new ones are too small (don’t fit in the holes and would leave holes exposed)
Copley: Thanks mate that would be good. If the front bar was prepped, there is a heap of imperfections that were missed. You’ll see it straight away, particularly on the passenger side. I’ll send pics of the engine bay for reference but you’ll easily see it as soon as you open the bonnet. As for the chrome, I’d appreciate if you took some photos and videos and send it to the supplier as the finished results is just a matt silver essentially and definitely nowhere near what they advertised it as. There is basically zero reflection. I’m going to have to get everything rechromed so essentially just would have wasted 2K otherwise which I don’t believe is fair to me.
Copley: [Attaching three photos of engine bay]
Some engine bay pics showing overspray etc but there is more which you’ll see once you open the bonnet.
Gosch: Yer fair enough mate, I’ll sort it all out. I’ll contact DNA also regarding the chrome spray and hopefully get a solution.
Copley: Thanks mate.
Gosch: Have just emailed them about the chrome, I doubt I’ll get a reply until Monday at earliest. I’ve requested at minimum the cost for the kit reimbursed ($900). I don’t think they’d do any more than that. If they accept that once I provide them pics etc I will cover the remaining $1100 to reimburse you the 2K.
Copley: Thanks mate, I appreciate that.
On 9 February 2023, Mr Gosch advised Mr Copley the car was ready for collection. Before the car was collected, Mr Gosch sent a photo of the car and a text to Mr Copley which included:
Gosch: … I’d honestly like to redo the bonnet & bootlid again, I’m not overly happy with them & need to strip them back a bit more before respraying. … The rest of it I’m happy with for what was discussed being a nice daily finish etc.
After Mr Copley collected the car, he drove the car to his garage and inspected the car under artificial light. The parties exchanged text messages, the substance of which was as follows:
Copley: Hi mate. Look I’m not happy. Doesn’t look like much has changed at all mate. There’s chips and dints in the boot, bonnet and roof. Chips on the passenger door. The whole paint job has overlapping spray marks. The paint is cloudy and not shiny. Even still has masking tape on rear quarter. This is what I’ve found with limited light. This needs a whole new paint job mate. There’s no pride in this paint job mate. Prep work is shit. Not even cleaned when I pick it up. Still has wet sanding water all over the front and rear bars. Bonnet emblem flaps about as it hasn’t even been screwed on properly. And the radiator is pissing out water after a 5 minute drive when it’s never done that before. Put simply mate, I want all the money I’ve paid to you back and I’ll get a new paint job done on the Gold Coast. I’m not impressed. Overspray on the glass. Overspray on the tyres. What will I find in the morning when I have good light?
Gosch: Ok mate, I can understand what your saying about wet sanding water & overspray etc that was obviously an oversight & I should have had that cleaned. As stated in the earlier msg I’m not happy myself with the bonnet & bootlid. The rest of it though I feel is well within reasonable for what was agreed upon as a nice daily driver finish. If I were to eliminate every single chip on the car, every single minor dent (mind you the only damage you originally sent was pretty much the big flaking paint section) etc then it ends up getting to a point where I may as well have stripped the entire thing back & done a show finish. & prep work was also done to exactly what we quoted. Was never going to be a back to bare metal job. We sanded the entire car & primed the entire outside before sanding etc for paint.
Gosch: & also mate we have done nothing to the engine or cooling system aside from fit your new battery.
Copley: Nice daily driver finish? There is overlapping spray lines throughout the entire job mate from poor technique and or poor gun setup. That alone is not good enough without taking into account all the other issues. I don’t want this to get messy mate. The job is well below par and clearly needs to be redone correctly. Please refund the entire amount to the following account or I’ll have to take it to ACAT to sort out.
Mr Gosch did not agree. He acknowledged the bonnet and boot lid needed to be redone but that was all. On 10 February 2023, there was a further exchange of text messages, the substance of which was as follows:
Gosch: … I said I’d like to redo the bonnet & bootlid, that is all I feel needs to be redone. Obviously that can’t happen as you’ll be in Gold Coast. Happy for you to get a couple of quotes when up there for respray of bonnet & bootlid (daily driver finish & not stripped back to bare metal). Failing that mate if you feel you need to go through ACAT then we’ll have to go that route unfortunately.
Copley: I’m sorry mate but it’s far from the boot and bonnet needing to be redone. All the issues I spoke with you at time haven’t even been actioned. You originally told me 2-3 weeks, three months later, this is what I get? Not good enough. If I don’t get at least 10K into my account today and the rest at a later time, I’m filing an application with ACAT and will also be requesting legal representation on my behalf.
Gosch: Like I said mate I’ve offered to rectify what I feel needed, by law I’m allowed that right. After that is offered I am then allowed to be supplied with 3 quotes to rectify the above issues.
Mr Gosch did not dispute the original tribunal considered all the above evidence. Rather, his claim was that the evidence was not sufficient. The question is whether that is so. In this respect, we note the following comments of the Appeal Tribunal in Commissioner for Social Housing v Tenant AA202154:
When reaching conclusions of fact the tribunal must consider only information of reliability and reasonable substance; give ‘appropriate’ weight to each piece of information and draw only those inferences that are rationally available.[15]
[15] [2022] ACAT 57 at [41]
In support of that statement, the Appeal Tribunal drew on observations of the Supreme Court in Pires v DibbsBarker Canberra Pty Limited regarding the need for evidence to make findings of fact and the reliability of the evidence:
10. Thus, as Kiefel J observed in Rodriguez v Telstra Corporation Ltd [2002] FCA 30; (2002) 66 ALD 579 at 585-6; [25], decisions must not be made without evidence having probative force, inferences must not be drawn without evidence and the tribunal must not base its conclusion on its own view of a matter which requires evidence.
11. Recently, the Full Court of the Federal Court of Australia has given some quite detailed consideration of the relevance of the rules of evidence in hearings by tribunals not bound by such rule. Thus, in Sullivan v Civil Aviation Safety Authority (2014) 141 ALD 540, the Court considered common law principles such as those set out in cases such as Browne v Dunn (1894) 6 R 67 at 70-1 and Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 347, 361-2 do not apply as rules of law in such tribunals, which I consider includes the ACAT, though the underlying principles of fairness, natural justice, reliance on credible and relevant evidence which underpin those rules remain applicable. The approach is to be determined from the circumstances of the precise case.
12. In this case, neither party adduced any evidence on oath and much of the oral evidence was given in a rather conversational style, though it appears both parties had made written statements. This is not to criticise the procedure; indeed, such informality can be quite appropriate as long as the parties have the full opportunity to put their cases, the issues are made clear so that each party can address them and the appeal tribunal or this Court can ascertain with appropriate clarity the facts found from credible and reliable evidence and the reasons for decision.[16]
[16] [2014] ACTSC 283 at [10] – [12]
Along the same lines, in Giusida Pty Limited v Commissioner for ACT Revenue the Supreme Court said:
39. A final comment is necessary. The proceedings before the ACAT on appeal and before me refer at times to the common reference in appellate discourse as to what is “open” to a first instance decision-maker. It seems to me that this is a wide term that needs careful consideration. It also needs to be clear that, if there is an error of fact or law in a finding of the ACAT, then it is not open to it to make such a finding unless the error is not a material one.
40. The evidence that permits a decision maker to draw a conclusion must have a character of reliability and reasonable substance; it must not be mere evidence, that it is simply what is put before the tribunal.[17]
[17] [2016] ACTSC 275 at [39] – [40]
The question then becomes whether there was sufficient evidence of reliability and reasonable substance to support an order requiring Mr Gosch to repay $10,000 to Mr Copley.
It is apparent the original tribunal understood this obligation. We note the following exchange:
SENIOR MEMBER: And how do you calculate the $10,000, Mr Copley? Explain that to me in detail.
MR COPLEY: I haven’t calculated it. You just asked what would I would accept as a reasonable solution.
SENIOR MEMBER: I know. But this is not a resolution by settlement. This is me hearing your case and having to understand what it is you claim and being able to justify a finding in your favour at all and then if I do, for what amount.
MR COPLEY: Yes. Yes. Yes. Yes.
SENIOR MEMBER: So, you have to tell me how you calculate a figure that I might be inclined to award to you if I am inclined to make an award at all.
MR COPLEY: Sure. No problem. So I touched on it before. So the total paint job was $14,600. And as I said, he did do work on the car. Obviously, he has done work, you know, it’s a different colour than what it originally was. But it’s no where near acceptable. So, given that he has done some work on the car, I, you know, decided – I suggested to bring down that figure. Instead of paying me $14,600 to get a new respray, why don’t we make it $10,000. You know, that covers his labour time, you know, and the materials time, or vice versa, and I recover some of the money that I have lost. That’s how I came to that calculation. If that’s not right, yes, well just the total cost of the respray.
SENIOR MEMBER: All right. Do you have anything else to say?
MR COPLEY: No. Just everything that I have relied on in my statement and evidence.[18]
[18] Transcript of original proceeding, 7 August 2023, page 7, lines 1 - 32
Immediately following the above quoted exchange with Mr Copley, the original tribunal adjourned for 10 minutes to “look through the materials again”[19] following which it ordered Mr Gosch to pay Mr Copley $10,000 for the reasons set out in paragraph 8 above.
[19] Transcript of original proceeding, 7 August 2023, page 7, line 35
The question is whether there was enough evidence to support an award of $10,000, even if by way of compromise as Mr Copley contended.
We begin with the chrome work. On the evidence, Mr Gosch admitted the DNA chrome spray produced a poor result. In particular, it was silver in colour but that was all: it provided no reflection at all. The question is whether Mr Gosch should be held responsible for that result. On this subject, we note the following exchange of text messages at the time Mr Copley was considering spray chrome as opposed to plated chrome:
Copley: I don’t suppose there’s any trick pain[t] that can spray my bars chrome to save me taking them up to Sydney [for re-chroming]?
Gosch: I don’t reckon [a spray chrome] is ever as good as re-chroming and ‘I just reckon it looks a bit silver compared to plated chrome.
Copley: I get what you’re talking about with it being a bit [silver] but it would save me a shit load of money. The bars and grills alone are 6K to rechrome. Is that something you could do?
Gosch: Yer I could do it man, I’ve sprayed it a few times in the past. I could do all the chrome pieces for 1500+ 500 for the chrome kit so 2k. So all up would be 14K.
Mr Copley proceeded on that basis.
Whilst it is arguable Mr Copley agreed to the spray chrome knowing it would “look a bit silver compared to plated chrome” and so cannot complain when he got what he paid for, it can also be said the result was significantly inferior to what he was expecting, especially where (according to Mr Copley) there was no reflection at all. Mr Gosch’s acceptance that the result was disappointing and his willingness to repay $2,000 to Mr Copley is also telling.
Whilst there is no objective evidence about the spray chrome, especially as to whether the result was poorer than that depicted on DNA’s website, the agreement between Mr Gosch and Mr Copley that the result was poor and Mr Gosch’s willingness to repay $2,000 is, in our view, sufficient reliable evidence to justify an order that Mr Gosch repay that sum.
Next, we considered the “heap of dints in [the] bonnet and boot” and the “chips on [the] boot.” There was, of course, ample photographic evidence of the dints and chips. Mr Gosch admitted the respray of the bonnet and boot lid was not of a sufficient standard and agreed to redo the work on the bonnet and boot lid. However, he was unable to do so because Mr Copley had taken the car to the Gold Coast. The question, then, was how much money Mr Copley should receive to compensate for the substandard work on the bonnet and boot lid. We expect Mr Gosch would have been able to respray the bonnet and boot at much less cost to him that Mr Copley would pay for the work to be done by someone else working on the Gold Coast.
Mr Gosch said he was “happy for [Mr Copley] to get a couple of quotes for respray of bonnet & boot lid (daily driver finish & not stripped back to bare metal”[20] but there is no evidence of him taking up that offer. There is also no evidence Mr Copley arranged for the bonnet and boot lid to be re-sprayed despite him stating to Mr Gosch he would do so or, if he did, how much he paid for the work. In the absence of any such evidence, which Mr Copley would surely have provided to the original tribunal had he arranged for the work to be done, it can be reasonably presumed Mr Copley sold the car without further work done on the bonnet or boot lid.
[20] See paragraph 37 above

Nevertheless, Mr Copley remained entitled to some compensation consequent on the admitted substandard work to the bonnet and boot lid. He did not put forward any evidence as to the cost of removing the dints and chips and then re-spraying the bonnet and boot lid. The only evidence as to the likely cost was that put forward by Mr Gosch: $750 for each of the bonnet and boot lid.[21] Where that was the only evidence regarding the cost of correcting the substandard work on the bonnet and boot lid, no more could or should have been allowed. In conclusion, there was sufficient evidence to enable the original tribunal to order $1,500 compensation for this aspect of the defective work, but no more.
[21] Transcript of original proceeding, 7 August 2023, page 6, line 24
The remaining claims of defective work presented difficulty for the purpose of awarding compensation.
After coming to collect the car on 20 January 2023, Mr Copley contended the respray needed “a really good wet sand to get out other paint imperfections that have come off the gun when spraying”. On the evidence, Mr Gosch carried out the wet sanding, hence Mr Copley’s subsequent complaint when he later collected the car that there was still “wet sanding water all over the front and rear bars” for which Mr Gosch apologised. However, there is no evidence as to the cost, if any, of cleaning off the wet sanding water or what was necessary to do so. If there was a cost, quoted or incurred, it was incumbent on Mr Copley to identify the amount and seek compensation for it. Where he did not do so, there is no evidence on which the original tribunal could have awarded compensation for this defect.
We make a similar comment about the claimed “engine bay overspray everywhere”. Mr Gosch disputed the claim, noting there shouldn’t be any as the paint is just engine bay black”. Whichever it is, there was no evidence of any cost, quoted or incurred, to make good any engine bay overspray. In the absence of any evidence regarding the approximate cost of making good any engine bay overspray, we see no proper basis upon which compensation could have been awarded.
We make the same comment about overspray on the tyres and glass. Whilst overspray of this kind is indicative of carelessness and should be rectified, there was no evidence about whether it was done or, if it was, what cost, if any, was incurred or would have been incurred to do so. Where there was no evidence about any cost or anticipated cost to rectify the overspray, we see no proper basis to award compensation for the defect.
Likewise, Mr Copley’s complaint about badges not installed or that the bonnet emblem “flaps about as it hasn’t even been screwed on properly”. The complaint, on its face, suggests relatively simple and near cost-free rectification even if there was evidence about these defects. Also, there is no evidence about the condition or existence of the badges or the bonnet emblem before or after the respray to support any claim regarding any change in the condition of the badges or emblem after the respray. In short, again, there is no evidence to quantify a claim for compensation.
Likewise, the complaint about substandard respray of the roof. Again, there is no evidence Mr Copley arranged for the roof to be re-sprayed or, if he did, how much he paid for the work. There is also doubt about whether the respray of the roof was relevant at all because Mr Copley said he intended to “chop off” the roof.[22]
[22] See paragraph 29 above
Likewise, the complaints about dints and chips elsewhere on the car body. Mr Gosch contended these imperfections were acceptable because, after explaining to Mr Copley that prices can vary greatly between a show finish and a nice daily finish, Mr Copley said he wanted “Just the cheapest quality job you can do”. Mr Copley submitted he did not know what is meant by ‘daily drive’ finish and that, regardless of its meaning, the imperfections were unacceptable. For the purpose of compensation for these imperfections, there were at least two difficulties.
First, there was no evidence from a reputable spray painter about different standards of finish that can be achieved; whether the standard achieved in this case was acceptable by one standard, but not by another; whether the finish was unacceptable by any standard; or what a reputable spray painter would understand as the standard to be achieved by reference to the agreement between Mr Gosch and Mr Copley.
Second, even if the work was unacceptable by any standard, there was no evidence about what cost, if any, was incurred or would have been incurred to rectify the defects. In short, again, there was no evidence to quantify a claim for compensation.
We recognise Mr Copley did not claim compensation by reference to any quantified amount to make good the defects. Rather, it was based on a claim he sold the car at a loss and that he “should have at least got another $10,000 for the car”[23] if Mr Gosch’s work had been properly done. Mr Copley acknowledged he did not calculate his loss at $10,000.[24] Rather, it was an amount Mr Copley thought reasonable, by way of compromise for the work Mr Gosch had done and the loss he claimed to have suffered because of the defective work.
[23] Transcript a proceeding, 7 August 2023, page 5, line 34
[24] Transcript a proceeding, 7 August 2023, page 7, line 5
Whilst the submission sounded reasonable, there was no evidence to support it. The car was worth what the market would pay, irrespective of what Mr Copley spent to purchase the car or spent on changes, improvements, re-spraying or repairs. Especially for an unusual and perhaps rare car of this kind and age, the market value could vary greatly depending on numerous factors such as its condition, rarity, prior ownership, originality, demand and so on. We acknowledge an assessment of market value would have an element of subjectivity, and perhaps be within a range based on different factors, but Mr Copley provided no evidence at all regarding the market value.
In particular, there was no evidence of the car’s market value at the time he sold it. There was no evidence as to the extent, if any, Mr Copley rectified any of the defects. There was no evidence as to whether the defects or remaining defects had any material bearing on the car’s market value.
Nor can it be inferred that the cost to rectify the defects would have translated into a corresponding increase in value. To illustrate, a quote evidencing a cost of (say) $1,500 to repair minor panel damage to a car does not mean the car’s market value increases by $1,500 if the work is done. In short, there was no evidence Mr Copley would have got at least around another $10,000, but for the defects.
For the purpose of his application to this Tribunal for compensation, Mr Copley was ordered to provide any expert report on which he intended to rely for the purpose of his claim. Mr Copley said he was unable to provide such evidence because he had sold the car, but that was a difficulty of his own making. Mr Copley knew about the defects from the moment he collected the car and travelled with it to the Gold Coast. He filed his application in February 2023 when still in possession of the car.
Mr Copley had every opportunity, while still in possession of the car, to obtain evidence from (for example) a reputable spray painter about the cost to make good the defects; evidence from (for example) a reputable dealer in cars of this kind regarding the market value of the car in the condition Mr Gosch returned it to him; evidence as to whether the defects had any material bearing on the market value; and, if so, evidence as to what the market value would have been if the defects were made good. Mr Copley did not provide any evidence of this kind.
Then there is a question about the sale of the car. There was no evidence as to who bought it or whether the price paid involved any allowance for Mr Gosch’s work. Mr Copley claimed the purchaser did not care about Mr Gosch’s respray because the purchaser intended to respray the car a different colour. However, without evidence of the market value of the car or what it would have been without the defects, it is impossible to know whether Mr Copley sold the car for less than he might have done, but for the defects.
For these reasons, we are satisfied the original tribunal erred in awarding $10,000 compensation in circumstances where there was no evidence to quantify that award, save for the amount paid for the defective chrome work and the estimated cost of respraying the bonnet and boot lid. Accordingly, we will allow the appeal to that extent by setting aside the original tribunal’s order and substituting an order that Mr Gosch pay Mr Copley $3,500.
………………………………..

Presidential Member G McCarthy
For and on behalf of the Appeal Tribunal

Date of hearing:	29 January 2024
Appellant:	In person by video link
Respondent:	In person by video link