On Road Transport Service Pty Ltd v Guvindar Singh T/as GB Penrith Truck Centre

[2015] NSWCATCD 132

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

On Road Transport Service Pty Ltd v Guvindar Singh T/as GB Penrith Truck Centre [2015] NSWCATCD 132

Hearing dates:

13 April 2015, 27 July 2015

Decision date:

04 November 2015

Jurisdiction:

Consumer and Commercial Division

Before:

D Goldstein Senior Member

Decision:

1  Guvindar Singh must pay On Road Transport Service Pty Ltd the sum of $27,025.87 within 14 days of the date of this decision.

2  Either party is at liberty to make a costs application in these proceedings.

3 Any costs application pursuant to section 60 of the Civil and Administrative Tribunal Act 2013 or Rule 38 of the Civil and Administrative Tribunal Rules 2014 must be lodged in the Tribunal and delivered to the costs respondent within 21 days of the date of this order either attaching or referring to the documents relied upon in support of the application.

4  The costs respondent will have 21 days after the date of receipt of the costs application referred to above, to lodge in the Tribunal and to deliver to the costs applicant the submissions, if any, in response to the costs application, such submissions either attaching or referring to the documents relied upon.

5  The cost applicant will have 14 days after the date of receipt of the cost respondent’s submissions to lodge in the Tribunal and deliver to the costs respondent the submissions, if any, in reply, such submissions either attaching or referring to the documents relied upon.

6  The Tribunal will determine any costs application on the basis of the papers lodged in the Tribunal

Catchwords:

Truck repairs, Section 60 Australian Consumer Law

Legislation Cited:

Civil and Administrative Tribunal Act 2013, Civil and Administrative Tribunal Rules, Consumer Claims Act 1998, Corporations Act 2001 (C/W), Fair Trading Act 1987, Interpretation Act 1987, Australian Consumer Law,

Category:

Principal judgment

Parties:

On Road Transport Service Pty Ltd (applicant)
Guvindar Singh T/AS GB Penrith Truck Centre (respondent)

Representation:

The parties were unrepresented

File Number(s):

MV 14/ 44852

Publication restriction:

Unrestricted

reasons for decision

1. These proceedings were set down for hearing on 13 April 2015.

2. Unfortunately the parties did not arrange to have their respective expert at the hearing on 13 April. Each party wanted to cross examine the other party’s expert. As that could not take place, the proceedings were adjourned part heard to allow the experts to attend on the resumed hearing date.

3. The applicant claims the sum of $30,929.92 which it alleges is the loss suffered as a result of the respondent’s repair of a Kenworth prime mover registration BR 78QW (the ‘truck’). In its final submissions the applicant states that the services provided by the respondent breached the Australian Consumer Law as the respondent ‘failed to provide acceptable care and skills, failed to take all necessary steps to avoid los and damage’. The applicant also alleges that as a result of the respondent’s services the Truck was not fit for the purpose of driving it.

4. The application is lodged under section 6 of the Consumer Claims Act 1998 (the ‘Act’). At the time the relevant facts and circumstances occurred and at the time the hearings took place the Act was still in force. The Act was repealed on 1 October 2015 and the transfer of the substance of the Act to the Fair Trading Act 1987 took place on 1 October 2015. I will deal with this application on the basis of the Act before its repeal.

5. I find that the applicant, which I assume is a small proprietary company, is a consumer for the purposes of the Act and the respondent is a supplier for the purposes of the Act.

6. The Corporations Act 2001 defines small proprietary company as:

‘Small proprietary company

(2) A proprietary company is a small proprietary company for a financial year if it satisfies at least 2 of the following paragraphs:

(a) the consolidated revenue for the financial year of the company and the entities it controls (if any) is less than $25 million, or any other amount prescribed by the regulations for the purposes of this paragraph;

(b) the value of the consolidated gross assets at the end of the financial year of the company and the entities it controls (if any) is less than $12.5 million, or any other amount prescribed by the regulations for the purposes of this paragraph;

(c) the company and the entities it controls (if any) have fewer than 50, or any other number prescribed by the regulations for the purposes of this paragraph, employees at the end of the financial year.’

7. Section 4 of the Act provides that ‘a person who claims to be a consumer is to be presumed to be one until the contrary is proved, and in any legal proceedings (including proceedings before the Tribunal), the onus of proving that a person who claims to be a consumer is not a consumer is on the party who seeks to establish that fact.’

8. The respondent has failed to prove that the applicant is not a consumer for the purposes of the Act, that is, it is not a small proprietary company.

9. Further, I find that this application is a ‘consumer claim’ as that phrase is defined in section 3A of the Act.

10. I also find that I have jurisdiction under section 7 (2)(a) of the Act.

11. The orders that the applicants seek from the Tribunal fall within section 8(1) (a) of the Act.

12. Pursuant to the Act I am required to comply with section 13(1) which provides:

‘When making an order or orders under this Part, the Tribunal must make such orders as, in its opinion, will be fair and equitable to all the parties to the claim.’

13. On 27 July 2015 the respondent challenged the Tribunal’s jurisdiction on the basis that the Tribunal did not have the jurisdiction to make decisions concerning the applicant under the Corporations Act 2001 and because it alleged that the applicant had used false documents in its claim. I rejected these submissions on the basis that the Tribunal possessed the jurisdiction to make an order in favour of the applicant as a consumer against the respondent as a supplier under section 8 the Act. The Tribunal’s jurisdiction does not arise under the Corporations Act. My decision will be made under the Act, not under the Corporations Act. In addition on 27 July the respondent did not suggest that the applicant was not a small proprietary company. If the respondent had established that, then the applicant would not have been a ‘consumer’ for the purposes of the Act and the Tribunal would not have had the jurisdiction to hear its claim.

14. As to the allegation of false documents, that does not deprive the Tribunal of jurisdiction. If the respondent alleges false documentation, it has the opportunity to make that matter good by evidence, in cross examination and in its submissions by reference to the evidence.

15. The applicant’s lay and expert evidence was tendered at the hearing on 13 April and 27 July 2015. Its evidence was as follows:

1. Exhibit A, statutory declaration Mr C. Rodriguez sworn 23 October 2014 and attached documents ;

2. Exhibit B, Clarifications to Documents submitted;

3. Exhibit C, Mal Hooley Truck Repairs invoice 13009 for $35,302.20;

4. Exhibit D, receipt dated 3 April 2014;

5. Exhibit E, Mal Hooley Truck Repairs invoice 13009 for $23,761.20;

6. Exhibit F, Cantamac invoice $1,649.13 ( 3 pages);

7. Exhibit G, R.P. Wallis invoice $247.47;

8. Exhibit H, Phillip J Scott 8 May 2014 expert report; and

9. Exhibit I, statutory declaration Mr C. Rodriguez sworn 7 May 2015.

16. The respondent’s evidence tendered at the hearing was:

1. Exhibit 1,statement of Mr G. Singh;

2. Exhibit 2 expert report of Bruce Elson 16 February 2015; and

3. Exhibit 3, statutory declaration of B Singh sworn29 April 2015.

17. The applicant’s witness and its representative at the hearing, Mr Rodriguez was cross examined on his statutory declaration and in particular on the Sequence of Events referred to in his statutory declaration and on the documents referred to in the applicant’s case.

18. The respondent’s evidence was the document constituted by paragraphs 1 – 12 dated 23 February 2015 filed by the respondent on 23 February 2015, exhibit 1.

19. Mr Gurvindar Singh was cross examined on these paragraphs by the applicant’s representative.

20. At the hearing on 13 April 2015, I made orders for further evidence. As a result of those orders a statutory declaration of Mr Balbir Singh dated 29 April 2015 was filed on behalf of the respondent.

21. Also in accordance with the orders made, a statutory declaration in reply from Mr Rodriguez of the applicant dated 7 May 2015 was filed and served.

22. In accordance with the directions of the Tribunal the parties lodged final written submissions.

The Australian Consumer Law

23. The Australian Consumer Law (ACL) was accepted as law in New South Wales by amendments made to the Fair Trading Act 1987 on 1 January 2011 and thereby applies to the facts relating to this application.

24. As a result of the amendments to the Fair Trading Act 1987, section 60 of the ACL applies in New South Wales. That section 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.’

25. Section 3 of the ACL defines a ‘consumer’ as follows:

‘Acquiring services as a consumer

(3) A person is taken to have acquired particular services as a consumer if, and only if:

(a) the amount paid or payable for the services, as worked out under subsections (4) to (9), did not exceed:

(i) $40,000; or

(ii) if a greater amount is prescribed for the purposes of subsection (1)(a)—that greater amount; or

(b) the services were of a kind ordinarily acquired for personal, domestic or household use or consumption’

26. Since the amount paid for the services provided by the respondent to the applicant was less than $40,000.00, the applicant is a consumer for the purposes of the ACL pursuant to section 3(3)(a)(i) thereof.

27. Section 2 of the ACL defines ‘services’ as follows:

‘services includes:

(a) any rights (including rights in relation to, and interests in, real or personal property), benefits, privileges or facilities that are, or are to be, provided, granted or conferred in trade or commerce; and

(b) without limiting paragraph (a), the rights, benefits, privileges or facilities that are, or are to be, provided, granted or conferred under:

(i) a contract for or in relation to the performance of work (including work of a professional nature), whether with or without the supply of goods; or

(ii) a contract for or in relation to the provision of, or the use or enjoyment of facilities for, amusement, entertainment, recreation or instruction; or

(iii) a contract for or in relation to the conferring of rights, benefits or privileges for which remuneration is payable in the form of a royalty, tribute, levy or similar exaction; or

(iv) a contract of insurance; or

(v) a contract between a banker and a customer of the banker entered into in the course of the carrying on by the banker of the business of banking; or

(vi) any contract for or in relation to the lending of money;

but does not include rights or benefits being the supply of goods or the performance of work under a contract of service.’

28. As stated above the applicant alleges that the respondent carried out mechanical repairs to the truck. I find that the respondent was in so doing providing services as defined in section 2 of the ACL as referred to above. In particular, the respondent was providing services as referred to in section 2 (b) (i) of the ACL.

29. The issue for determination is whether the services provided by the respondent in connection with the applicant’s truck were carried out in with due care and skill.

Facts

30. The facts are that on 20 January 2014 the Truck was left by the applicant at the respondent’s premises for repair. The applicant’s evidence is that the respondent was told that the truck was overheating. The applicant’s evidence was that the respondent diagnosed the problem with the truck and told Mr Rodriguez that piston liner 3 had a crack in it. Mr Rodriguez’s evidence is that he accepted this advice and that he told the respondent to go ahead with the repair.

31. On 28 January the applicant paid $2,250.42 off an invoiced amount of $4,250.42 leaving a balance of $2,000.00 outstanding.

32. The invoice issued by the respondent is in evidence. It is dated 29 January 2014 and relates to a diagnosis of engine coolant leaks. The invoice is consistent with the applicant’s evidence which was that the Truck was brought into the respondent because of cooling issues and that Mr Rodriguez was told that there was an issue with No. 3 cylinder. The invoice states that the respondent replaced No. 3 piston and liner assembly and refitted the cylinder head and associated components.

33. There is a conflict on the evidence in that the respondent alleges that from the outset the applicant was told that the engine was not serviceable and that the applicant would be throwing good money away to try and salvage it. Nonetheless in my view and I find, a warning such as alleged by the respondent’s witness Mr B Singh, does not excuse performing services in breach of section 60 of the ACL.

34. The applicant states that the repair to the truck as referred to in the invoice dated 29 January 2014 was completed as at that date and that the truck was collected from the respondent’s premises that day. He states that the truck was driven to Silverwater where it broke down due to overheating. There was an attempt to drive the truck back to the respondent’s workshop. However that was not possible and the truck was towed back to the workshop at a cost to the applicant of $385.00.

35. The applicant states that he was then told by the respondent that the truck needed an ‘in chassis rebuild’. An amount of $3,000.00 for labour was agreed upon. It was also agreed that this amount would cancel the amount of $2,000.00 outstanding from the previous repair. In addition there was a cost of $1,649.13 for a rebuild kit. The cylinder heads to be used in the ‘in chassis rebuild’ were to be supplied by the applicant and he had them tested for that purpose. The injectors were used from the existing engine.

36. The applicant’s evidence was that there were problems encountered with the rebuild, and that the original injectors did not fit the heads that he had supplied. As a result he had to get the original heads tested and had to re-order new head gaskets at a cost of $264.25.

37. The applicant stated that there was continuing delay with the repair. On 10 March 2014 the applicant alleges that he was informed that the truck was taken for a test drive but had overheated and had to be towed back to the respondent’s workshop.

38. Finally, according to the applicant on 14 March 2014, no further work had been carried out on the truck. The respondent stated that he would not carry out any further work on it and did not want to take responsibility for it. The applicant then took the keys of the truck and presumably had it towed to his premises.

39. The applicant states that after the events referred to above, the truck was handed back to him in a condition that was worse than when it was sent in to the respondent. As a result he purchased a second hand engine and had it fitted into the truck by Mal Hooley Truck Repairs. The original engine was left with Mal Hooley where it was stored in an uncovered place.

40. The respondent’s position was that;

1. the applicant was told from the beginning that the engine was not serviceable and that he would be throwing good money away to try and salvage it.

2. the applicant was told that a complete ‘out of chassis rebuild' would cost between $35,000.00 - $45,000.00 and that the truck was not worth $5,000.00.

3. he denied having carried out any repairs to the truck and that invoices provided by the applicant were false and misleading.

4. the statement made by the applicant’s expert Mr Scott was not true.

41. Despite stating that no repairs were carried out to the engine as claimed by the applicant, the respondent goes on to state that on the occasion of the first repair only the number three liner, piston and big end bearing were changed. On the occasion of the second repair the respondent, despite the fact that he denies that repairs were carried out to the engine, states that all six liners, pistons and the big end bearings were changed. Further, despite the fact that he denies that repairs were carried out to the engine, the respondent states that all of the parts were changed on the applicant’s instructions and the applicant knew that he was taking a chance for a complete ‘out of chassis rebuild’.

42. I do not accept the respondent’s evidence, exhibit 1. I find that it is not an effort to state what facts actually occurred. The respondent’s statement is more in the nature of a statement of defence or an argumentative response to the totality of the applicant’s claim.

43. The statutory declaration of Balbir Singh which is exhibit 3, provides more detailed and satisfactory evidence than that of the respondent which I have described above.

44. Mr Balbir Singh’s evidence was that after the truck was brought into the respondent’s workshop he advised the applicant that the coolant leaks were from the cylinder liners and that he told the applicant that the sump had to be removed to find the source of leakage. Thereafter, there was testing of the engine and leakage of coolant observed to no.3 cylinder. I accept this evidence.

45. The applicant has responded to Mr Balbir Singh’s evidence. He disagrees with substantial aspects of it.

Findings of fact

46. Based on the evidence referred to above I make the following factual findings.

47. I find that the applicant left the truck with the respondent on 20 January 2014 for repair and that the applicant told the respondent that the truck was overheating.

48. I find that as stated by the applicant the respondent told him that the piston liner 3 had a crack in it and that the applicant told the respondent to repair piston liner 3.

49. I accept the respondent’s invoice of 29 January 2014 as evidence of the matters stated in it, namely that the respondent replaced No. 3 piston and liner assembly and refitted the cylinder head and associated components.

50. I find that as stated by the applicant it collected the truck from the respondent’s premises on 29 January 2014. I also find that the truck was driven to Silverwater where it broke down due to overheating resulting in the truck being towed back to the respondent’s workshop.

51. I find that the respondent carried out a second repair to the truck. The repair was an ‘in chassis rebuild’ or an ‘out of chassis’ rebuild. Further I find that the ‘in chassis rebuild’ consisted of the replacement of all six cylinder liners and pistons and big end bearings. I also find that an ‘in chassis rebuild’ and an ‘out of chassis’ rebuild are the one and the same.

52. I also find that after the second repair to the truck which was the ‘in chassis rebuild’ the test of the repair had failed and the truck was brought back to the respondent’s workshop and the respondent stated that he would not carry out any further work on the truck. The applicant then had the truck removed from the respondent’s workshop.

53. I find that the applicant then had repairs to the trck carried out by Mal Hooley Truck Repairs. I find that the applicant did purchase a second hand engine which was fitted into the truck by Mal Hooley Truck Repairs.

54. For the reasons that are stated later in these reasons for decision, I have concluded that the respondent was at fault in not diagnosing the problems with the truck’s engine cooling system. This finding makes most of Mr Singh’s evidence relating to warnings and conversatiuons he alleges he had with the applicant of decreased importance, as the recommendations of the respondent regarding the engine repair simply did not address the main issue with the engine for which the applicant had sought the respondent’s services in the first place. In making this observation I will make it clear that I have had regard to all of Mr Balbir Singh’s evidence. I do not accept his criticism of the applicant’s expert in paragraphs 1.46 – 1.57 of his statement. Despite the fact that Mr Singh states that he has had 41 year relevant experience, I do not accept the evidence in the paragraphs referred to on the basis that Mr Singh is not independent and clearly as the father of the respondent, as a person who works in the respondent’s business and as a person who was personally involved in the work that the respondent carried out on the truck has a vested interest in the outcome of these proceedings.

Experts

55. Mr Phillip Scott prepared a report for the applicant dated 8 May 2014.

56. Mr Bruce Elson prepared a report dated 16 February 2015 for the respondent.

57. Mr Scott the expert for the applicant sets out his qualifications and experience in section 1 of his report. In section 5 of his report Mr Scott states that he has read the expert witness code of conduct contained in the Uniform Civil Procedure Rules and agrees to be bound by that code. Notwithstanding that Mr Scott does not refer to the Tribunal's code of conduct for expert witnesses, I accept his adherence to the expert witness code of conduct as contained in the Uniform Civil Procedure Rules 2005 as being adequate.

58. I accept that Mr Scott has adequate experience to enable him to give expert opinion in the Tribunal.

59. In section 4 of his report Mr Scott sets out his observations and opinions. He concludes by stating in section 4.14:

‘The original cause of the engine overheating condition was not correctly diagnosed by the repairer as being a faulty water pump. The repairs carried out by the repairer were incomplete and of a very poor standard. The cooling system was not cleaned and the correct flow of coolant through the cooling system was not checked by the repairer. When the repairer advised the owner the truck was repaired and able to return to service, damage to the engine then resulted due to the engine overheating again. This then caused a breakdown of the lubricating oil film between the bearing slippers and the crankshaft journals. The damage to the bearings of this engine is a direct result of the engine overheat problem that was not rectified by the repairer GB Penrith Truck Centre.’

60. Mr Elson prepared an expert report on behalf of the respondent. In section 1 his sets out his curriculum vitae. I am satisfied that Mr Elson possesses the necessary experience to provide expert evidence in the Tribunal regarding automotive engineering issues.

61. At section 6 of his report Mr Elson refers to the expert witness code of conduct contained in the Uniform Civil Procedures Rules and agrees to be bound by that code. Despite the fact that he has not referred to the Tribunal's expert witness code of conduct, I accept Mr Elson as having regard to a similar set of rules. His position is the same as Mr Scott in that respect.

62. In section 3 of his report Mr Elson sets out the background to repairs carried out by the respondent.

63. Mr Elson visited the premises of Mal Hooley Truck repairs on 9 February 2015 to inspect the engine which had previously been fitted to the truck. He states that when he inspected the engine there had been considerable rust and corrosion to the cylinder bores and pistons and that evidence of cylinder scoring had been destroyed due to rust and corrosion.

64. In section 5 of this report Mr Elson sets out his observations and conclusions.

65. With the greatest respect to Mr Elson, I did not find his observations and conclusions to be of great assistance. Relevantly he states that in his opinion the engine in the truck was past its use-by date, the engine had been overheating before the respondent commenced working on it, there was severe erosion on all of the 5 cylinder liners and the cause of the erosion was due to the water filter not being operative.

66. The difficulty that I have with Mr Elson’s report is that it does not directly address the issue of whether the work carried out on the engine by the respondent was carried out with due care and skill, and whether the repairs carried out adequately addressed the overheating problem with the engine when the applicant brought the truck to the respondent for repair.

67. After giving their evidence in the Tribunal the experts, at the invitation of the Tribunal, considered whether they were able to reach any agreements on the technical issues in the proceedings.

68. The experts after some discussion and consideration stated the following matters as agreed by them as at 28 July 2015:

1. ‘The subject vehicle had a problem of engine loss of coolant/engine overheating when the vehicle was first presented to GB Penrith truck Centre for repairs.

2. The service history of the subject vehicle is unknown

3. When GB Penrith truck Centre accepted the job and agreed to repair the vehicle any problems associated with that repair were also accepted

4. The engine cooling system water filter fitted to the subject vehicle was not connected/unserviceable at the time the vehicle was first presented to GBP Penrith Truck Centre. There is no evidence of the water filter cartridge having been replaced at any time.

5. When the first repairs to the subject vehicle were carried out by GBP Penrith Truck Centre the number three cylinder liner and piston were replaced. There is no record of any engine connecting rod bearings been repaired at that time.

6. The second attempt at repairing the engine cooling system problem involved the replacement of all six cylinder liners and pistons. The engine connecting rod bearing were also replaced at that time.

7. There was no evidence available of a complete engine cooling system diagnosis for coolant loss / engine overheating having been completed by GB Penrith Truck Centre (or) any other repairer.

8. GB Penrith Truck Centre found a water loss from the cylinder liner of cylinder three (3) at the first attempt to repair the coolant loss / engine overheating problem. When it was identified that the first repair was unsuccessful any further repairs to the subject vehicle should have been specifically authorising in writing by the vehicle owner prior to proceeding with any further attempts at repairs.’

69. I accept the joint findings of the experts. However They did not offer a joint opinion on whether the repairs carried out by the respondent were carried out with due care and skill, and whether the repairs carried out adequately addressed the problems with the engine when the applicant brought the truck to the respondent for repair.

70. The experts’ observation that ‘When it was identified that the first repair was unsuccessful any further repairs to the subject vehicle should have been specifically authorising in writing by the vehicle owner prior to proceeding with any further attempts at repairs’ is in my view made with the benefit of hindsight, and does not directly address the issue of whether the repairs were carried out with due care and skill.

71. The joint findings of the experts which I consider to be relevant are as follows:

1. That the truck had a problem of engine loss of coolant/engine overheating when it was first presented to the respondent for repairs.

2. The engine cooling system water filter fitted to the subject vehicle was not connected/unserviceable at the time the vehicle was first presented to GBP Penrith Truck Centre. There is no evidence of the water filter cartridge having been replaced at any time.

3. There was no evidence available of a complete engine cooling system diagnosis for coolant loss / engine overheating having been completed by the respondent.

4. The respondent found water loss from the cylinder liner of cylinder three (3) at the first attempt to repair the coolant loss / engine overheating problem.

72. I prefer the expert opinion of Mr Scott to that of Mr Elson. Mr Scott’s opinion, which I accept, is detailed and logical whereas Mr Elson’s opinion does not provide an obvious line of reasoning which allows the Tribunal to understand a conclusion that might be drawn from it in connection with the issues before the Tribunal.

73. Based on the following evidence, I have formed the conclusion that the respondent did not carry out the repairs to the engine of the truck in accordance with section 60 of the ACL:

1. That the truck had a problem of engine loss of coolant/engine overheating when it was first presented to the respondent for repairs (experts joint opinion);

2. The applicant brought the truck to the respondent for repair because it was overheating (the applicant’s evidence / Balbir Singh’s evidence)

3. the water filter in the engine of the truck was not operative (Mr Elson paragraph 5.3);

4. The engine cooling system water filter fitted to the subject vehicle was not connected/unserviceable at the time the vehicle was first presented to GBP Penrith Truck Centre. There is no evidence of the water filter cartridge having been replaced at any time (experts joint opinion);

5. The engine cooling system water filter was completely blocked with a dried and solid material and the coolant hose from the thermostat housing on the engine to the upper tank of the radiator was completely blocked solid with a dried sludge type material (Mr Scott paragraph 4.10)

6. The water pump was found to have the impellor wheel separated from the impeller shaft resulting in no coolant being circulated throughout the cooling system of the engine (Mr Scott paragraph 4.11)

7. There was no evidence available of a complete engine cooling system diagnosis for coolant loss / engine overheating having been completed by the respondent (experts joint opinion);

74. In my view the evidence referred to above supports Mr Scott’s conclusion which I have referred to earlier, namely that:

‘The original cause of the engine overheating condition was not correctly diagnosed by the repairer as being a faulty water pump. The repairs carried out by the repairer were incomplete and of a very poor standard. The cooling system was not cleaned and the correct flow of coolant through the cooling system was not checked by the repairer. When the repairer advised the owner the truck was repaired and able to return to service, damage to the engine then resulted due to the engine overheating again. This then caused a breakdown of the lubricating oil film between the bearing slippers and the crankshaft journals. The damage to the bearings of this engine is a direct result of the engine overheat problem that was not rectified by the repairer GB Penrith Truck Centre’ (Mr Scott paragraph 4.14).

75. I find from the foregoing that the respondent did not carry out the repairs to the applicant’s truck with due care and skill because he did not diagnose the problem of engine loss of coolant/engine overheating as arising from a faulty water pump. The joint expert findings establish that there is no evidence of the respondent diagnosing the engine cooling system for coolant loss. Moreover both experts stated that the water filter in the truck was not operative/completely blocked. I accept their evidence. Mr Scott stated that the water pump had the impellor wheel separated from the impellor shaft with the result that no coolant was circulated throughout the cooling system of the engine. I accept that evidence.

76. The evidence is clear that the respondent thought that it had correctly ascertained the source of coolant leakage when he or Mr Balbir Singh advised the applicant that the coolant leaks were from the cylinder liners and that the sump had to be removed to find the source of leakage. Thereafter, there was testing of the engine and leakage of coolant observed to no.3 cylinder.

77. This may have been a cause of coolant leakage but it was not in my view on the basis of the evidence that I have referred to, the predominant cause of coolant leakage. Neither expert refers to this factor as the cause of overheating or loss of coolant.

Damages

78. The total amount claimed by the applicant is the sum of $30,929.92 which is within the Tribunal’s jurisdiction which has an upper limit of $40,000.00.

79. A relevant item of evidence in connection with the applicant’s damages claim is Mr Scott’s evidence that:

‘When the repairer advised the owner the truck was repaired and able to return to service, damage to the engine then resulted due to the engine overheating again. This then caused a breakdown of the lubricating oil film between the bearing slippers and the crankshaft journals. The damage to the bearings of this engine is a direct result of the engine overheat problem that was not rectified by the repairer GB Penrith Truck Centre’ (Mr Scott paragraph 4.14).’

80. The make-up of the applicant’s claim is explained in exhibit B and in particular at page 20 of that exhibit.

81. Following the respondent’s refusal to take any further responsibility for the truck or to carry out any further work on it, the approach taken by the applicant was to purchase a second hand engine in the sum of $8,000.00 and to have that engine fitted to the truck for which he claims the sum of $16,865.02. These facts emerge from paragraph 2 of exhibit B.

82. While this evidence is not as detailed as it might have been, I accept that the applicant decided that this was the best course to take. I also find that this course of action was as a direct result of the damage to the engine as referred to by Mr Scott in the passage that I have quoted from paragraph 4.14 of his report. As the applicant states at paragraph 1.14 of the sequence of events to his Statutory Declaration of 23 October 2014, exhibit A, which evidence I accept and which is not in dispute, at the end of his dealings with the respondent, the truck was not driveable.

83. I am satisfied that the applicant paid the sum of $8,000.00 for the second hand engine. Exhibit D is a copy of the invoice for the purchase of the engine.

84. The sum of $16,865.02 for the fitting of the second hand engine is stated to be evidenced by an invoice from Mal Hooley Truck Repairs in the sum of $23,761.20 which is exhibit E. The applicant claims that only $16,865.02 of the amount invoiced relates to the removal of the original engine and the fitting of the second hand engine. How that amount is calculated in not completely clear.

85. Despite the fact that the applicant only claims the sum of $16,865.02 of the Mal Hooley Truck Repairs $23,761.20 invoice, I am satisfied that the applicant is indebted to Mal Hooley Truck Repairs for the work that has been performed in connection with the $23,761.20 invoice. The respondent has agreed that work was carried out on the truck by Mal Hooley Truck Repairs, Refer paragraph 2.5 of exhibit 3.

86. The applicant also claims the sums of $1,649.13 (engine kit, gasket, exhibit F) $264.25 (gasket cylinder head exhibit F) and $247.47 (PG platinum 20 ltr and water filter exhibit G) which are the cost of parts it supplied to the respondent in connection with the repair work that the respondent carried out. Given that the repair work carried out by the respondent failed, I find that the applicant is entitled to recover these amounts that he expended for the supply of parts and materials in the respondent’s failed repair.

87. These amounts total $27,025.87. I am satisfied that the applicant expended this money as a result of the respondent failing to carry out the repairs to the truck with due care and skill with the result that the truck sustained damage to its engine as stated by Mr Scott. I further find that it was reasonable for the applicant to have taken the course that he did after the repairs carried out by the respondent did not address the overheating /coolant problem.

88. The balance claimed $3,904.05 relates to Mr Scott’s fees.

89. On the basis of the foregoing reasons, I will make an order that the respondent must pay the applicant the sum of $27,025.87 within fourteen days of the date of this order.

Costs

90. The balance claimed by the applicant of $3,904.05 plus an additional amount of $1,862.25 foreshadowed by the applicant fall in the category of the applicant’s costs of the proceedings.

91. To allow the applicant to apply for his costs and to give the respondent an opportunity to be heard on costs, I will order that either party is at liberty to make a costs application in these proceedings.

92. Any costs application pursuant to section 60 of the Civil and AdministrativeTribunal Act 2013 or rule 38 of the Civil and AdministrativeTribunal Rules 2014 must be lodged in the Tribunal and served on the costs respondent within 21 days of the date of this order either attaching or referring to the documents relied upon in support of the application.

93. The costs respondent will have 21 days after the date of receipt of the costs application referred to above, to lodge in the Tribunal and serve on the costs applicant the submissions, if any, in response to the costs application, such submissions either attaching or referring to the documents relied upon.

94. The cost applicant will have 14 days after the date of receipt of the cost respondent’s submissions to lodge in the Tribunal and serve on the costs respondent the submissions, if any, in reply, such submissions either attaching or referring to the documents relied upon.

95. The Tribunal will determine any costs application on the basis of the papers lodged in the Tribunal

D Goldstein

Senior Member

Civil and Administrative Tribunal of New South Wales

4 November 2015

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: 07 January 2016