Hartley v Transmission World Liverpool Pty Ltd t/as Gearbox Solutions

[2025] NSWCATCD 46

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Hartley v Transmission World Liverpool Pty Ltd t/as Gearbox Solutions [2025] NSWCATCD 46

Hearing dates:

28 May 2025

Date of orders:

11 June 2025

Decision date:

11 June 2025

Jurisdiction:

Consumer and Commercial Division

Before:

K Cheng, General Member

Decision:

1.   Bryan Hartley is removed as a party to the proceeding.

2.   The Tribunal makes the following orders:

(a) The respondent is to make the applicant’s 2016 Mitsubishi Outlander (registration number: XXX) available to the applicant for collection within 7 days of this decision.

(b) The Tribunal declares that the sum of $10530.00 the subject of the respondent’s invoice dated 14 November 2024 is not owing by the applicant to the respondent.

(c) The application is otherwise dismissed.

Catchwords:

CONSUMER LAW — Consumer guarantees — Supply of services — Guarantee as to due care and skill — Guarantee as to reasonable time for supply

Legislation Cited:

Fair Trading Act 1987 (NSW)

Fair Trading Regulation 2019 (NSW)

Australian Consumer Law

Cases Cited:

Nil

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Applicant – Semukele Hartley

Respondent – Transmission World Liverpool Pty Ltd t/as Gearbox Solutions

Representation:

Applicant – B Hartley & S Hartley

Respondent – A Theodoridis & B Marriott

File Number(s):

2025/00084298

Publication restriction:

Nil

REASONS FOR DECISION

1. This is an application by Semukele Hartley (the applicant) for an order by the Tribunal pursuant to ss 79N(a) and 79N(d) of the Fair Trading Act 1987(NSW) (FT Act) that would require Transmission World Liverpool Pty Ltd trading as Gearbox Solutions (the respondent) pay the applicant compensation due to their failure to adequately repair the applicant’s vehicle within a reasonable period of time. The applicant also claims that the repairs undertaken by the respondent were not undertaken with due care and skill, and were not fit for purpose.

2. The applicant is seeking the following orders from the Tribunal:

1. a full refund of the repair costs: $6750.00

2. for the respondent to pay the applicant the estimated value of the vehicle of $15500.00, and for the respondent to keep the applicant’s vehicle

3. for the respondent to compensate the applicant for costs associated with transportation and vehicle rentals from the time the respondent claims that the applicant’s vehicle was ready to be picked up: $5752.00

4. for the respondent to pay the applicant the registration and insurance costs associated with the applicant’s second vehicle (the Volvo): $ 1515.32

5. for an order declaring that the applicant is not liable to pay for the holding/storage fees imposed by the respondent.

3. The respondent opposed the application and the orders sought by the applicant.

Background

4. In mid-November 2023, the applicant identified that their vehicle, a 2016 Mitsubishi Outlander (registration number XXX) (the vehicle), had a faulty transmission that resulted in the jolting of the vehicle.

5. The applicant engaged the respondent to undertake repairs on the transmission, which commenced on 22 November 2023.

6. On 12 December 2023, the repairs were completed and the vehicle was returned to the applicant.

7. On 13 December 2023, the vehicle breaks down and showed the following diagnostic code: ‘P0776 - Pressure Control Solenoid “B” Performance/Stuck Off’.

8. On 20 December 2023, the vehicle was taken back to the respondent for further repairs.

9. On 13 February 2024, the additional repairs were completed and the vehicle was returned to the applicant.

10. On 14 February 2024, the vehicle experienced a further breakdown and was taken back to the respondent for further repairs. The respondent also provided the applicant with a courtesy vehicle, a Fiat Freemont (the Fiat), for use while the repairs were being undertaken. No documentation was signed between the parties with respect to the Fiat.

11. On 11 May 2024, the Fiat was stolen from the applicant’s property, and a police report was lodged.

12. On 13 May 2024, the Fiat was subsequently found. However, the Fiat had to be taken into police custody and returned to the respondent as it was not registered under the applicant’s name. The police subsequently notified the respondent and arranged for the Fiat to be returned to the respondent. The respondent found that the side view mirror on the Fiat was damaged and required replacement.

13. On the same day, the applicant contacted the respondent by telephone to follow up on the status of the repairs on their vehicle. The parties’ evidence differs with respect to this event.

14. The applicant claims that the respondent had advised the applicant that the repairs had not been completed due to delays in receiving the parts, while the respondent claims that they had advised the applicant that the repairs would be completed by 17 May 2024 and the vehicle would be ready to be collected then.

15. On 19 May 2024, the applicant made a complaint to Fair Trading in relation to the respondent’s delay in completing the repairs, and sought a full refund of all monies paid to the respondent for the repairs.

16. On 27 June 2024, Fair Trading advised the applicant that they were unable to assist as the respondent was not prepared to provide the redress sought.

17. On 13 October 2024, the applicant wrote to the respondent and asked for confirmation as to the mechanical issues that had been rectified in the vehicle.

18. On 17 October 2024, the respondent advised the applicant that the transmission issue has been rectified and that the applicant’s husband, Bryan Hartley, had been notified of this on 17 May 2024.

19. On 18 October 2024, the respondent requested the applicant pay for the repairs to the Fiat and the storage fees for the applicant’s vehicle that had accrued from 17 May 2024.

20. On 4 March 2025, the applicant lodged their application to the Tribunal.

The hearing and evidence

21. The Tribunal heard the application on 28 May 2025. The applicant appeared in person and was also supported by Mr Hartley, while the respondent was represented by Addison Theodoridis and Brayden Marriott.

22. During the hearing, the applicant confirmed that the vehicle is registered under Ms Hartley’s name. Accordingly, it is appropriate to remove Mr Hartley as an applicant to the proceedings, as he does not hold a legal interest in the vehicle.

23. At the hearing, the applicant relied on a bundle of documents filed on 10 April 2025 comprising 152 pages, which I have marked Exhibit A1. Exhibit A1 included the following:

1. the applicant’s written submissions

2. the applicant’s chronology of events

3. documents pertaining to the applicant’s complaint to Fair Trading

4. the application to the Tribunal

5. screenshots of text messages sent between the applicant and the respondent

6. email correspondence between the applicant and the respondent

7. tax invoices pertaining to the repair of the applicant’s Volvo

8. tax invoices pertaining to costs incurred by the applicant for vehicle rentals

9. a table showing highlighted the dates of telephone calls that the applicant had made to the respondent.

24. At the hearing, the respondent relied on a bundle of documents filed on 1 May 2025 comprising 14 pages, which I have marked Exhibit R1. Exhibit R1 included the following:

1. the Tribunal’s orders of 20 March 2025

2. the respondent’s written submissions

3. tax invoice issued by the respondent on 12 December 2023 for $6750.00

4. tax invoice issued by the respondent on 14 November 2024 for $10530.00

5. a table showing highlighted the dates of telephone calls that the respondent had made to the applicant

6. email correspondence between the respondent and the applicant.

25. Both the applicant and respondent were provided an opportunity to make submissions and give oral evidence during the final hearing.

26. In making this decision, I have had regard to all of the material and evidence provided by the parties to the Tribunal during these proceedings.

Jurisdiction

27. The dispute involves a claim by a consumer (the applicant) arising from a contract for a supplier (the respondent) to provide services. The applicant is a consumer on the basis that they are a natural person (s 79D of the FT Act). The respondent is a supplier of services on the basis that it supplied the service (being work to repair the applicant’s vehicle) in the course of carrying on a business (ss 79D and 79G of the FT Act).

28. The claim is for an amount which is within the jurisdictional limit of $100,000.00 (s 79S(7) of the FT Act and cl 13A of the Fair Trading Regulation 2019 (NSW)). The service was supplied in NSW (s 79K(1)(a) of the FT Act). The application to the Tribunal was filed within 3 years of the date of the cause of action (s 79L of the FT Act).

29. Accordingly, I am satisfied that the Tribunal has jurisdiction to hear and determine this application.

The applicable law

30. By operation of ss 28 and 32 of the RT Act, the ACL is made part of the law of New South Wales and may be applied in the determination of a consumer claim. Relevantly, Part 3-2, Division 1, Subdivision A of the ACL sets out the consumer guarantees that apply with respect to the supply of goods.

31. As I have explained above, the applicant contends that the service provided by the respondent was not undertaken with due care and skill. Accordingly, the relevant consumer guarantee is found in s 60 of the ACL, which provides:

‘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.’

32. The applicant also contends that the service provided by the respondent was not fit for purpose, which is in breach of s 61 of the ACL. Section 61 of the ACL relevantly provides:

‘(1) If:

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

(b) the consumer, expressly or by implication, makes known to the supplier any particular purpose for which the services are being acquired by the consumer;

there is a guarantee that the services, and any product resulting from the services, will be reasonably fit for that purpose.

(2) If:

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

(b) the consumer makes known, expressly or by implication, to:

(i) the supplier; or

(ii) a person by whom any prior negotiations or arrangements in relation to the acquisition of the services were conducted or made;

the result that the consumer wishes the services to achieve;

there is a guarantee that the services, and any product resulting from the services, will be of such a nature, and quality, state or condition, that they might reasonably be expected to achieve that result.

(3) This section does not apply if the circumstances show that the consumer did not rely on, or that it was unreasonable for the consumer to rely on, the skill or judgment of the supplier.

(4) This section does not apply to a supply of services of a professional nature by a qualified architect or engineer.’

33. The applicant further contends that the respondent failed to undertake the repairs within a reasonable time, and that this was in breach of the guarantee in s 62 of the ACL. Section 62 of the ACL provides:

‘If:

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

(b) the time within which the services are to be supplied:

(i) is not fixed by the contract for the supply of the services; or

(ii) is not to be determined in a manner agreed to by the consumer and supplier;

there is a guarantee that the services will be supplied within a reasonable time.’

34. Part 5-4, Division 1, Subdivision B of the ACL sets out the remedies that are available to consumers against a supplier of services in relation to a failure to comply with a consumer guarantee.

35. Relevantly, s 267 of the ACL provides:

‘(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

(c) unless the guarantee is the guarantee under section 60-the failure to comply with the guarantee did not occur only because of:

(i) 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; or

(ii) a cause independent of human control that occurred after the services were supplied.

(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

(ii) terminate the contract for the supply of the services.

(3) If the failure to comply with the guarantee cannot be remedied or is a major failure, the consumer may:

(a) terminate the contract for the supply of the services; or

(b) by action against the supplier, recover compensation for any reduction in the value of the services below the price paid or payable by the consumer for the services.

(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.

(5) To avoid doubt, subsection (4) applies in addition to subsections (2) and (3).’

Issues

36. The issues for consideration are:

1. whether the respondent failed to comply with the consumer guarantee as to due skill and care as set out in s 60 of the ACL

2. whether the respondent failed to comply with the consumer guarantee as to fitness for a particular purpose as set out in s 61 of the ACL

3. whether the respondent failed to comply with the consumer guarantee as to reasonable time for supply as set out in s 62 of the ACL, and

4. whether the applicant is entitled to a remedy.

Consideration

Whether the service was rendered with due care and skill

37. The applicant contends that the repairs undertaken by the respondent were not undertaken with due care and skill. In support of their contention, the applicant referred to the repairs that were completed by the respondent on 12 December 2023 and 13 February 2024, where the vehicle broke down shortly after each repair.

38. However, following the second break down of the vehicle on 14 February 2024, the respondent had undertaken further repairs on the vehicle, which it claims to have completed on 17 May 2024. In my view, it is these repairs that are the subject of the application for consideration.

39. The fact that the vehicle broke down following the initial two repairs does not demonstrate that the latest repairs completed by the respondent on 17 May 2024 have not been rendered with due care and skill. Relevantly, the vehicle is still currently in the respondent’s possession and there is no evidence before the Tribunal which would establish that the vehicle has broken down or will break down following those repairs.

40. Accordingly, on the evidence before me, I am not satisfied that the respondent had failed to comply with the guarantee as to due care and skill with respect to the repairs that it purported to have completed on 17 May 2024.

Whether the service supplied was fit for purpose

41. With respect to the consumer guarantee in s 61 of the ACL, the applicant relies on the same reasons that it raised with respect to their contention that the respondent failed to comply with the consumer guarantee in s 60 of the ACL. That is, the fact that the vehicle broke down shortly after the initial two repairs by the respondent on 12 December 2023 and 13 February 2024 shows that the repairs undertaken by the respondent were not fit for purpose.

42. Consistent with my reasoning above, I am not persuaded that the repairs undertaken by the respondent were not fit for purpose. Although the repairs that were completed on 12 December 2023 and 13 February 2024 resulted in the vehicle breaking down shortly after the vehicle was collected on those occasions, it is apparent that the respondent undertook further repairs on the vehicle which it claims to have completed on 17 May 2024. There is no evidence before the Tribunal to suggest that those repairs are not fit for purpose.

43. On this basis, I am not satisfied that the respondent had failed to comply with the guarantee as to fitness for purpose with respect to the repairs that it purported to have completed on 17 May 2024.

Whether the service was supplied within a reasonable time

44. The applicant contends that the respondent failed to complete repairs to their vehicle within a reasonable time. Further, the applicant submits that the respondent had failed to notify them once the repairs were completed, and that they had only become aware that the vehicle was ready to be collected approximately five months after the vehicle had purportedly been repaired. The applicant submits that this resulted in the respondent charging them holding/storage fees which accrued at a rate of $45 per day, as well as costs associated with rental vehicles. The applicant also contends that they were required to undertake repairs on their second vehicle (the Volvo) and pay for registration and insurance costs, as they needed a vehicle to get around while the Mitsubishi was being repaired.

45. In response to the applicant’s claim, the respondent explained that all parts of the transmission needed to be replaced, as the valve body had become contaminated. The respondent further explained that they also needed to contact Mitsubishi to order in the relevant part, and due to supply issues, the valve body was on back order which resulted in delays to the repair. The respondent further explained that the make and model of the applicant’s vehicle frequently experienced transmission issues, which is why there is such a high demand for the relevant parts required to repair the transmission. The respondent further explained that although they had previously undertaken repairs on the vehicle on 12 December 2023 and 13 February 2024, it was later found that the parts provided by Mitsubishi were faulty. The respondent states that they subsequently received reimbursement from Mitsubishi for the faulty parts. However, in order to complete the repairs on the applicant’s vehicle, the respondent still needed to order a new valve body.

46. Having regard to the respondent’s explanation, I am satisfied that the respondent had adequately explained the reasons for the delay. Having regard to this explanation, I do not consider that the time taken by the respondent to undertake the repairs to the applicant’s vehicle to be unreasonable.

47. However, the evidence before the Tribunal suggests that despite purportedly completing the repairs to the vehicle on 17 May 2024, the respondent had failed to appropriately notify the applicant that the repairs had been completed and that the vehicle was ready to be picked up until 17 October 2024 once they were contacted by the applicant directly. In undertaking repairs to the vehicle, there is, in my view, a reasonable expectation that the repairer would, as part of the service being supplied, promptly notify the owner of the vehicle that repairs had been completed and to arrange a time for the vehicle to be returned to its owner. This did not occur until approximately five months after the repairs had purportedly been completed.

48. Accordingly, I find that the respondent had failed to comply with the consumer guarantee in s 62 of the ACL as to reasonable time for supply.

Whether the applicant is entitled to a remedy

49. Having found that the respondent failed to comply with the consumer guarantee as to reasonable time for supply, s 79U(1) of the FT Act requires that the Tribunal be satisfied that any orders made will be fair and equitable to all parties to the claim.

49. Although I have found that the respondent had failed to comply with the guarantee in s 62 of the ACL, based on the evidence before the Tribunal, it is apparent that the applicant had also failed to take appropriate steps to ascertain the status of the repairs. In particular, the applicant did not contact the respondent in relation to their vehicle until 13 October 2024. It is apparent that the applicant waited a significant period of time before following up with the respondent as to whether the repairs have been completed. It is unclear from the applicant’s evidence as to why they did not follow up with the respondent more promptly. In my view, had the applicant taken active steps to follow up with the respondent, it is likely that any losses claimed by the applicant with respect to the cost of rental vehicles and repairing their Volvo would have been limited or reduced.

50. Accordingly, I am not satisfied that an order should be made for the respondent to reimburse the applicant these costs. I also find that there is no basis upon which an order should be made for the respondent to refund the cost of the repairs already paid, nor am I satisfied that an order should be made for the respondent to keep the applicant’s vehicle in exchange for its market value.

Costs of repairs to the Fiat

52. During the hearing, the respondent explained that they had allowed the applicant to use the Fiat while their vehicle was being repaired, which subsequently resulted in the Fiat being stolen and damaged. The respondent contends that the applicant ought to pay for the repairs to the Fiat before the release of their own vehicle. It is on this basis that they refused to allow the applicant to retrieve their vehicle following the completion of the repairs.

53. In support of their contention, the respondent referred to a tax invoice that it had issued to the applicant on 14 November 2024, which stipulates a charge of $540.00 for the supply of a second hand revision mirror, the programming of a new aftermarket key to the vehicle and detailing of the vehicle. Although it is apparent that the Fiat was damaged while in the applicant’s care, other than the tax invoice issued by the respondent on 14 November 2024, no further evidence has been adduced to establish the extent of the damage to the Fiat (such as photographs, or other reports as to the damage) or the actual costs of repairing the damage (such as the cost of parts, breakdown of the labour, etc).

54. Further, as I have noted above, the parties did not sign a contract or any other documentation that sets out any agreed terms regarding liability in circumstances where the Fiat was damaged.

55. For these reasons, I do not consider that the applicant is liable to pay the respondent the costs of repairing the Fiat.

The holding/storage fees

56. As I have discussed above, the respondent contends that repairs to the applicant’s vehicle were completed on 17 May 2024, and that they had advised the applicant on 13 May 2024 that the repairs would be completed on this date. However, other than an assertion that they had notified the applicant, the respondent has not provided any evidence which would establish that they had in fact notified the applicant. In my view, this could have easily been addressed by the respondent sending an email to the applicant to confirm the date and time as to when the vehicle may be collected.

57. Having regard to the evidence before the Tribunal, it does not appear that the respondent made any further contact (whether by telephone, text message or email) with the applicant between 13 May 2024 and 17 October 2024. On this basis, I cannot be satisfied that the respondent had notified the applicant that the repairs had been completed and that the vehicle was ready to be collected on 17 May 2024.

58. It also follows that, where the applicant is unaware that the vehicle is ready for collection, the applicant would also be unaware that holding/storage fees were accruing on a daily basis. Accordingly, I am not satisfied that the applicant is liable for the holding/storage fees imposed by the respondent with respect to the vehicle.

Summary of orders

59. For the reasons set out above, the Tribunal makes the following orders:

1. The respondent is to make the 2016 Mitsubishi Outlander (registration number: XXX) available to the applicant for collection within 7 days of this decision.

2. The Tribunal declares that the sum of $10530.00 the subject of the respondent’s invoice dated 14 November 2024 is not owing by the applicant to the respondent.

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

Decision last updated: 13 August 2025