Ryan James Poolman v Ibuytrader Pty Ltd

[2014] NSWCATCD 246

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Ryan James Poolman v Ibuytrader Pty Ltd [2014] NSWCATCD 246
Hearing dates:	15 October 2014
Decision date:	23 December 2014
Jurisdiction:	Consumer and Commercial Division
Before:	G J Sarginson, General Member
Decision:	The respondent, Ibuytrader Pty Ltd is to pay the applicant Ryan James Poolman the sum of $12,032.77 immediately
Catchwords:	Motor Vehicles Consumer Claims Misleading or Deceptive Conduct Acceptable quality Damages
Legislation Cited:	Motor Dealers Act 1974 Fair Trading Act 1987 Consumer Claims Act 1998 Civil and Administrative Tribunal Act 2013 Australian Consumer Law 2010
Cases Cited:	Burton v Chad One Pty Limited [2013] NSWDC 301 Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64 Aerial Advertising Co v Batchelors Peas Ltd (Manchester) [1938] 2 All ER 788 TCN Channel Nine Pty Ltd v Hayden Enterprises Pty Ltd (1989) 16 NSWLR 130 Prestige Auto Centre Pty Ltd v Apurva Mishra [2014] NSWCATAP 81
Category:	Principal judgment
Parties:	Ryan James Poolman (applicant) Ibuytrader Pty Ltd (respondent)
Representation:	Mr Daniel Poolman for the applicant Mr Buddy Wakim for the respondent
File Number(s):	MV 14/37047
Publication restriction:	Unrestricted

reasons for decision

1. The matter was listed for hearing at the Tribunal in Liverpool on 15 October 2014. Mr Daniel Poolman, the father of the applicant, appeared for the applicant. Mr Wakim, director of the respondent, appeared for the respondent. Mr Poolman and Mr Wakim gave sworn evidence. Mr Poolman gave his evidence and made submissions by telephone, as he resides in Western Australia.

2. Prior to the hearing, the applicant had sought leave for his father to represent him, as the applicant works in the maritime industry in Western Australia, and is at sea during weekdays. At the hearing, Mr Wakim did not oppose Mr Daniel Poolman representing his son. Leave was accordingly granted. In any event, much of the interaction between the parties regarding the purchase of the motor vehicle which is the centre of the dispute involved Mr Daniel Poolman and Mr Wakim.

3. Prior to the hearing, orders had been made that the parties file and serve documentary evidence upon which they relied upon. The parties had filed and served their respective documents, and no legal objection was taken by either party to the Tribunal considering such documents. One document had not been filed and served by the respondent, being a copy of a consignment contract between itself and the owner of vehicle which the respondent sold to the applicant. Tender of that document was opposed. The Tribunal ruled that the document not be considered as part of the evidence, on the basis it had not been filed and served previously; Mr Poolman could not see the document (which would create prejudice); and if the document had any relevance, such relevance was exceedingly marginal.

4. Immediately prior to the hearing, the Tribunal further encouraged the parties to resolve the dispute. Attempts were made by the parties to resolve the dispute, which were unsuccessful. The matter proceeded to hearing.

BACKGROUND

5. The dispute involves a 2008 Toyota Landcruiser Ute which was purchased by the applicant from the respondent on 5 February 2014 for $40,000.00 plus $1,300.00 for transport. The applicant resides in Western Australia. The respondent is located in Lansvale NSW and is a registered motor dealer. The vehicle was advertised over the internet. At all relevant times prior to the purchase, Mr Daniel Poolman was negotiating on behalf of the applicant, and it was Mr Daniel Poolman who spoke with the salesman of the respondent, Mr Khoury, about the vehicle over the telephone. No inspection of the vehicle was performed prior to purchase. The vehicle was sold on consignment by the respondent, but that issue is immaterial to the dispute, because there is a written contract between the applicant and respondent as purchaser and vendor; and any relevant representations about the vehicle were made by an employee of the respondent on behalf of the respondent as vendor.

6. The vehicle was advertised on the internet by the respondent as a “2008 Toyota Landcruiser VDJ97R GX (4x4) Grey 5 Speed Manual Cab Chassis”.

7. In essence, the applicant asserts that when the vehicle was delivered, it was found to be a Toyota Landcruiser ‘Workmate model’, rather than a Toyota Landcruiser ‘GX’ model. According to Mr Daniel Poolman, the vehicle had been resprayed from white to grey, and had accessories added to make it look like a ‘GX’ model. This was discovered after the applicant took the vehicle to Kingsway Mechanical and Tyres on 10 March 2014 to have repairs done on the vehicle.

8. After the vehicle was purchased, Mr Daniel Poolman contacted Mr Wakim of the respondent. All the subsequent discussions regarding the vehicle occurred between Mr Daniel Poolman and Mr Wakim. A central concern the applicant and his father had about the vehicle was the condition of the motor and its ancillaries, due to what the applicant asserts is significant corrosion. Mr Daniel Poolman had the motor removed and purchased a wrecked equivalent model Toyota Landcruiser with a motor. Mr Daniel Poolman asserted to the Tribunal that he did not know whether or not he could “salvage” the existing motor of the vehicle by combining its parts with the parts from the motor he had purchased. However, it was clear from Mr Daniel Poolman’s evidence that the motor that the vehicle had been sold with could not be put back in the vehicle, due to pipes being cut to remove the motor the vehicle was sold with.

9. Prior to litigation being commenced in the Tribunal, and negotiations occurred between Mr Daniel Poolman and Mr Wakim to settle the matter, and a Deed of Release drawn up by the respondent, but it was never signed.

THE CLAIM

10. The applicant sought orders that the vehicle be returned to the respondent and a full refund given, up to the jurisdictional limit of the Tribunal. However, in the documents filed by the applicant with the Tribunal, the claim was amended to seek an order that damages be paid to the applicant, with the applicant to retail the vehicle.

APPLICANT’S EVIDENCE

11. In addition to the oral evidence of Mr Daniel Poolman, the applicant relied upon the following documents:

1. Statutory Declaration of Daniel Poolman dated 12 September 2014;

2. Copy of the internet advertisement of the vehicle;

3. Copy of the contract;

4. Tax Invoice of Kingsway Mechanical and Tyres dated 10 March 2014;

5. Email from Mr Waldram, Regional Service Manager Toyota Western Australia dated 26 March 2014 setting out the date of production, model, and colour of the vehicle when it was manufactured;

6. Report of Emerald Assessing Services Pty Ltd dated 1 May 2014;

7. Photographs of the vehicle taken by Mr Michael O’Callaghan, vehicle assessor of Emerald Assessing Services Pty Ltd, including photographs of the motor, front axle and gearbox area;

8. Email of Gerry Matthews, of Fleet Partners dated 2 May 2014 stating that a vehicle with the same Vehicle Identification Number had been used as a work vehicle at Bulga open cut coal mine “for a period of time from July 2008”;

9. Tax invoice of Osborne Park Service Centre dated 27 August 2014 for a 100 point safety check of the vehicle, and quotation;

10. Bank details confirming the applicant had paid the purchase price of the vehicle;

11. Quotation of Kingsway Mechanical and Tyres for replacement of engine, front differential housing and various ancillary items in the total sum of $30,384.19.

12. Various invoices for payment for repairs; expert reports; and temporary registration of the vehicle;

13. Supplementary affidavit of Daniel Poolman dated 10 October 2014;

14. Affidavit of Ryan Poolman dated 11 October 2014;

15. Affidavit of Elaine Poolman dated 10 October 2014;

16. Statutory declaration of David Durrant, mechanic, of Kingsway Mechanical & Tyres, dated 12 September 2014;

17. Statutory declaration of Michael O’Callaghan, motor vehicle assessor, Emerald Assessing Services Pty Ltd dated 12 September 2014.

18. Valuation (1 page) of the vehicle by R.W. Morley and Associates dated 22 August 2014.

12. Mr Daniel Poolman’s evidence was that he was engaged in all relevant negotiations regarding the vehicle, as his son works in the commercial fishing industry and is often at sea. He stated that he saw an internet advertisement for the vehicle. Relevantly, it was advertised as a ‘GX’ model. Mr Daniel Poolman telephoned the respondent, and spoke to a salesman, Mr Khoury. Mr Daniel Poolman stated that Mr Khoury described the vehicle as being privately owned, with low kilometres, and in “excellent condition”. Two days after this conversation, Mr Daniel Poolman rang the respondent and agreed to purchase the vehicle on behalf of his son. Being located in Western Australia, neither Mr Daniel Poolman nor his son inspected the vehicle before deciding to purchase it.

13. The vehicle was sold with a ‘Form 8’ under the Motor Dealers Act 1974 (NSW), so there was no dealer warranty under Section 24 of that Act.

14. The vehicle was delivered to the applicant at Mindarie in Western Australia on 5 February 2014. On 28 February 2014, the applicant rang Mr Daniel Poolman and stated that there was a “noise” coming from the front of the vehicle, which in his affidavit he described as a “loud squealing noise” coming from the engine. The vehicle was taken to Kingsway Mechanical & Tyres, were repairs were performed. At this stage, Mr Daniel Poolman was overseas.

15. The vehicle remained at Kingsway Mechanical and Tyres until 10 March 2014 when Mr Daniel Poolman returned from overseas. Mr Daniel Poolman then inspected the vehicle. He states that he noticed significant corrosion/rust on the front axle; engine ancillaries; injector pipes; seals; and pullies. He states there were other problems with the vehicle, including a damaged intercooler and leaking fuel tank.

16. On 16 March 2014, Mr Daniel Poolman contacted Mr Wakim about the vehicle, and subsequently complained to NSW Fair Trading. Mr Poolman informed Mr Wakim that he believed the engine of the vehicle needed to be removed to assess the “damage”.

17. On 28 April 2014, Mr Michael O’Callaghan, of Emerald Assessing inspected the vehicle. Mr Daniel Poolman became concerned that the vehicle was not a ‘GX’ model (which were usually for private use) but a ‘Workmate’ model (which were usually for business use). In April and May 2014, Mr Daniel Poolman made enquires, which revealed the vehicle had been a ‘Workmate’ model, and had been used for a period at a coalmine. Mr Daniel Poolman asserted that the vehicle had been repainted and made to look like a GX.

18. As discussed above, in oral evidence Mr Daniel Poolman stated that he had purchased a ‘wrecked’ Toyota Landcruiser, and was in the process of determining whether he could transfer parts from the engine of the vehicle the subject of these proceedings to the engine of the wrecked vehicle, with the engine of the wrecked vehicle to be installed in the vehicle.

19. Mr Daniel Poolman stated that the vehicle has not been driven since it was returned from Kingsway Mechanical and Tyres and is not currently registered. However, Mr Daniel Poolman stated his son “likes” the vehicle and seeks compensation to repair it, rather than wanting to return the vehicle and obtain a refund from the respondent.

Applicant’s Expert Evidence

20. The tax invoice of Kingsway Mechanical and Tyres dated 10 March 2014 is for the sum of $2,025.77. The work performed included a “minor service” on the vehicle; removing and replacing the clutch (including spigot bearing and machining the flywheel); and changing gearbox oil.

21. In an email attachment to his Statutory Declaration dated 12 September 2014, Mr David Durrant of Kingsway Mechanical and Tyres sets out the repairs he performed on the vehicle during the period between 1 March 2014 and 13 March 2014. Mr Durrant states that the fly wheel of the gearbox was machined and a new clutch fitted. Mr Durrant states that there was significant corrosion around the gearbox area of the vehicle, and he told Mr Daniel Poolman and the applicant when they picked up the vehicle that he believed it had been in a flood or was an ex farming vehicle.

22. The report of Mr Michael O’Callaghan of Emerald Assessing Services Pty Ltd (1 May 2014) is brief (just over 1 page). Mr O’Callaghan inspected the vehicle. Mr O’Callaghan states that it is clear the vehicle has been resprayed and ‘GX’ model parts used to make the vehicle appear to be a ‘GX’ model. He states that the gearbox; engine block; and engine ancillaries were significantly corroded (including an engine coolant pipe that was rusted through). Mr O’Callaghan asserts, in a brief conclusion that “the engine and all ancillary components require replacing, however, it would still be apparent to any 4 wheel drive person that the vehicle had a dubious history”. Mr O’Callaghan asserts that he “recommends” the vehicle be returned to the seller with a full refund because it is “not of merchantable quality”.

23. Mr O’Callaghan’s report does not contain a copy of his curriculum vitae, nor does the report contain any detailed analysis as to why the whole engine and all ancillary components “require replacing”.

24. Mr O’Callaghan’s statutory declaration dated 12 September 2014 states he inspected the vehicle on 28 April 2014 (but not how long he spent inspecting the vehicle); took photographs of the vehicle; is “an Associate Member of the Society of Automotive Engineers Australia” and “a qualified motor vehicle mechanic by trade of many years standing”.

25. The document of Kingsway Mechanical and Tyres dated 1 September 2014 is a 1.5 page unsigned “total estimate” of replacing the engine and various other items of $30,384.19. Of this amount, the component cost of the engine is $15,500.00.

26. The documents of Mr Marshall of Fleet Partners, and Toyota Western Australia, state that the vehicle was originally a ‘Workmate’ model, and was used as a fleet vehicle at a coal mine.

27. The document of Mr R.W. Morley, of R.W. Morley and Associates Vehicle Consultants and Valuers, Buyers Agent, dated 27 August 2014 is a one page document which comments “the above vehicle is in need of a complete mechanical rebuild” and states “Retail: $19,000.00”. There was no statutory declaration or affidavit by Mr Morley.

RESPONDENT’S EVIDENCE

28. Mr Wakim gave sworn evidence, and the respondent had filed and served a folder of documentary evidence. The documents relied upon by the respondent included:

1. A ‘Form 8’ notice attached to the vehicle when it was sold;

2. The contract of sale;

3. Receipts from the Western Australian Department of Transport to the applicant’s mother regarding registration of the vehicle;

4. A ‘Car History’ dealer search and PPSR search on the vehicle;

5. Various emails between the parties regarding negotiations;

6. Advertisements of 2008 model Toyota Landcruiser Workmates;

7. A brief extract of a ‘Glass’s Guide’ valuation guide to the value of a 2008 model Toyota Landcruiser ‘Workmate’ and a Toyota Landcruiser ‘GX’;

8. Various extracts from the ACCC website regarding the provisions of the Australian Consumer Law 2010;

9. A seminar paper authored by a Barrister (Mr Wood) and a Solicitor (Ms Bartlett) regarding fiduciary duties;

10. An unsigned and undated statement of Mr Wakim.

Mr Wakim was not involved in the negotiations with Mr Daniel Poolman regarding the applicant’s purchase of the vehicle. His involvement came after the vehicle was sold, and he gave evidence of being contacted by Mr Durrant regarding the clutch bearing of the vehicle, and the subsequent negotiations he had with Mr Daniel Poolman regarding the vehicle. There was no evidence from Mr Khoury who was involved in the negotiations with Mr Daniel Poolman to sell the vehicle to the applicant.

29. The respondent’s legal submissions can be summarised as follows:

1. The vehicle was sold on consignment, and the respondent did not know it had been modified to look like a GX model;

2. The vehicle was of acceptable quality when sold;

3. A term of the contract was that the purchaser should not rely on any representation of fact by the respondent and should make its own enquires;

4. Mr Daniel Poolman was acting as agent for his son, and any issues regarding the quality of the vehicle were actionable by the applicant against his father for breach of fiduciary duty;

5. The respondent had offered to replace the corroded parts of the vehicle if Mr Daniel Poolman arranged for the vehicle to be sent to the respondent in Sydney. That offer had been rejected, and the respondent was not given the opportunity to repair the vehicle;

6. The applicant’s claim that it would cost in excess of $33,000.00 to repair the vehicle was exaggerated.

JURISDICTION

30. The respondent is in NSW, and the contract was formed in NSW. The contract was for the supply of goods, in trade and commerce. The goods in question are a used motor vehicle. The applicant’s cause of action occurred within the relevant 3 year limitation period prior to the proceedings being filed with the Tribunal. Accordingly, pursuant to Sections 3, 3A and 7 of the Consumer Claims Act 1998 (NSW) (‘the CCA’), the Tribunal has jurisdiction. The application was filed on 23 July 2014, and pursuant to the Consumer Claims Regulation 2014 and Section 14 of the CCA, the jurisdictional limit of the Tribunal is $40,000.00.

RELEVANT LEGAL PRINCIPLES

31. The vehicle was sold with a ‘Form 8’ under Section 24 of the Motor Dealers Act 1974, and by reason of Section 27 of the Motor Dealers Act 1974, there was no statutory obligation under that Act for the dealer to repair the vehicle. However, the provisions of the Australian Consumer Law 2010 (‘the ACL’ which was adopted in NSW pursuant to Section 28 of the Fair Trading Act 1987 (NSW)) apply to the proceedings separate and distinct from the existence of any dealer warranty under the Motor Dealers Act 1974 (Burton v Chad One Pty Limited [2013] NSWDC 301).

32. Under Section 18 of the ACL, a person “must not, in trade or commerce, engage in conduct that is misleading or deceptive, or likely to mislead or deceive”. The conduct (by words, actions, or in certain circumstances, silence) must lead, or be likely to lead, persons to whom it is directed into error, and there is no requirement for an intention to mislead or deceive (Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 at 198).

33. Under Section 54(1) of the ACL, there is a guarantee that goods supplied in trade or commerce are of “acceptable quality”. Section 54(2) and (3) of the ACL states:

“(2) Goods are of acceptable quality if they are:

1. fit for all the purposes for which the goods of that kind are commonly supplied; and

2. acceptable in appearance and finish; and

3. free from defects;

4. safe; and

5. durable

as a reasonable consumer fully acquainted with the state and condition of the goods (including any hidden defects) would regard as acceptable, having regard to the matters in subsection (3).

(3) The matters for the purposes of subsection (2) are:

(a) the nature of the goods; and

(b) the price of the goods (if relevant); and

(c) any statements made about the goods on any packaging or label on the goods;

(d) any representations made about the goods by the supplier or manufacturer of the goods; and

(e) any other relevant circumstances relating to the supply of the goods.”

34. Pursuant to Section 54(7) of the ACL, goods do not fail to be of acceptable quality if the consumer acquiring the goods examines them before purchase, and the examination ought reasonably to have revealed the goods were not of acceptable quality. Neither the applicant nor Mr Daniel Poolman inspected the vehicle before purchase, nor arranged for it to be inspected by a mechanic. In any event, an examination of the vehicle would not have reasonably revealed it was a ‘Workmate’ model rather than a ‘GX’ model as advertised, as the vehicle had been resprayed and detailed to look like a ‘GX’ model.

34. If the applicant proves breach under Sections 18 and/or 54 of the ACL, the Tribunal must determine an appropriate remedy. The remedies available are set out in Section 8 of the CCA. Under Section 13(1) of the CCA, the Tribunal “must make such orders as, in its opinion, will be fair and equitable to all the parties of the claim”.

APPLICATION OF LEGAL PRINCIPLES TO FACTS

36. The Tribunal is satisfied the applicant has proved to the requisite standard that the respondent breached Section 18 of the ACL. The vehicle was advertised as a ‘GX’ model, when it was a ‘Workmate’ model. The Tribunal accepts the evidence and submission of Mr Daniel Poolman that a ‘Workmate’ model is more likely to have been involved in heavy use compared to a ‘GX’ model, and that the applicant would not have purchased the vehicle had he known it was a ‘Workmate’ model that had been resprayed and modified to look like a ‘GX’ model. The salesman Mr Khoury made oral representations to the effect that the vehicle was in excellent condition for its age and kilometres. The fact that respondent was unaware the vehicle had been modified is irrelevant, as Section 18 of the ACL does not require an intention to mislead or deceive.

37. The submission of the respondent that the contractual provision of the sale that “the purchaser relies on its own enquiries” and the respondent is “not bound by any representations” defeat the applicant’s claim is rejected. Section 64 of the ACL prevents the consumer guarantee provisions of the ACL being excluded or limited by contract.

38. The submission of the respondent that Mr Daniel Poolman was the agent of the applicant, and that consequently a fiduciary relationship existed which meant that any rights of the applicant regarding the condition of the vehicle were against his father for breach of fiduciary duties, is rejected. The applicant was the purchaser of the vehicle under the contract, and the fact that the applicant’s father conducted negotiations (both before and after the purchase of the vehicle) on behalf of the applicant does not affect the obligations of the respondent under the ACL, nor the rights the applicant has in respect of any breaches of the ACL.

39. The Tribunal is satisfied the applicant has proved to the requisite standard that there were some components of the vehicle’s engine, gearbox, and clutch that were significantly corroded. Not all of such corrosion would have been visible without mechanical repairs being performed, and neither the applicant (nor his father) became aware of such problems until the vehicle was repaired in March 2014 by Kingsway Mechanical and Tyres. The clutch bearing of the vehicle failed soon after it was delivered. Although the vehicle was sold with a ‘Form 8’, it was a relatively expensive vehicle (with a price of $40,000.00) and was represented by the respondent as being in good condition for its age and kilometres. Accordingly, the Tribunal is satisfied the applicant has proved the respondent breached Section 54 of the ACL.

REMEDIES

40. It is not fair and equitable to both parties to order that the vehicle be returned and a refund given by the respondent. The motor of the vehicle has been removed, and parts have been damages. The vehicle cannot be returned in the condition it was sold. The applicant does not seek such an order in any event. Nor is it fair and equitable to both parties to order that the vehicle be returned with repairs to be performed by the respondent. The vehicle is in Western Australia, and the motor has been removed from the vehicle. It is likely to be a relatively time consuming and complex process to return the vehicle for repairs.

41. In any event, the parties are diametrically opposed as to what repairs are reasonable, and any order for repairs in the circumstances of this matter is likely to lead to further dispute between the parties and potential application to renew the proceedings under Schedule 4 Clause 8 of the Civil and Administrative Tribunal Act 2013 (NSW).

42. When awarding damages and compensation under Section 8 of the CCA, contractual principles apply. The Tribunal must award damages which put the applicant in the same position he would have been had the contract not been breached, and not in a superior position (Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64). The fact that damages are difficult to assess does not prevent an applicant from obtaining damages. However, if the difficulty in assessing damages arises from the applicant producing evidence which, while establishing some loss, does not permit the Tribunal from making as reliable an assessment as should have been possible, the applicant cannot complain if any award is not as high as it would have been had reliable information been provided. (Aerial Advertising Co v Batchelors Peas Ltd (Manchester) [1938] 2 All ER 788).

43. The Tribunal is satisfied the applicant has proved an entitlement to damages in respect of the cost of repairing the vehicle paid to Kingsway Mechanical and Tyres pursuant to the invoice of 10 March 2014 in the sum of $2,052.77. The Tribunal is further satisfied that the applicant has proved that there is a difference in value between a ‘GX’ Landcruiser model, and a ‘Workmate’ Landcruiser model. The evidence in this regard is the extract from ‘Glass’s Guide’ valuations in the respondent’s documents. The document from Mr Morley of R.W. Morley and Associates is only a very brief document, and does not make it clear how he values the vehicle as “Retail: $19,000.00” nor that the vehicle “is in need of complete mechanical rebuild”. The Tribunal awards the applicant $1,980.00 as compensation for the loss of value of the vehicle, adopting the figure in the ‘Glass’s Guide’ valuation for the general difference in value between a 2008 Toyota Landcruiser ‘GX’ and a 2008 Toyota Landcruiser ‘Workmate’.

44. The major issue of contention is the amount of damages to be awarded in respect the motor and its ancillaries. The Tribunal accepts that there is evidence of corrosion. However, there is a paucity of evidence to support the applicant’s contention that the whole motor is defective and requires complete replacement. The report of Mr O’Callaghan of Emerald Assessing Services Pty Ltd asserts that “the engine and all ancillary components require replacing” but does not set out in any detail how he reaches this conclusion. The photographs provided do not show some corrosion of the engine block but there is insufficient evidence to support the submission of the applicant that the “whole of the engine block is so corroded” that the engine requires complete replacement. There is no evidence that the internal components of the engine, such as pistons, crankshaft and camshaft are damaged.

45. The vehicle was capable of being driven when it was delivered to the applicant, and the applicant’s original complaint about the vehicle was the noise which was attributable to the gearbox/clutch. There is no evidence the engine was emitting smoke, or had lost power. The quotation of Kingsway Mechanical and Tyres in the sum of $30,384.19 does not set out whether the cost of replacement parts are new or used, nor is there any evidence from Mr Durrant that the engine is so significantly damaged it requires total replacement. The quotation of Osborne Park Service dated 27 August 2014 that the cost of repairing the vehicle is $22,829.00 for parts and $3,380.00 for labour plus GST is also brief, and contains no details to support the assertion that the engine is so damaged it requires complete replacement.

46. Most importantly, the applicant (through his father) has purchased a wrecked vehicle for the sum of $1,600.00, and may suffer only a small loss if the components of both engines can be combined. Accordingly, there is a degree of speculation as to what loss the applicant will actually suffer.

47. In respect of the cost of repairs to the motor and ancillaries of the vehicle, being fair and equitable to both parties, the Tribunal awards the applicant damages of $8,000.00, doing the best it can on the evidence not to overcompensate or under compensate the applicant.

48. The applicant’s further claims for damages and compensation are dismissed. The items claimed are either expenses that the applicant would have incurred in any event (such as registration of the vehicle) or legal costs in preparation of the claim (such as the cost of obtaining quotes and reports).

49. The Tribunal is not satisfied the respondent has proved that the applicant failed to take all reasonable measures to mitigate his loss by reason of not returning the vehicle to be repaired. The onus of proof in respect of failure to mitigate is on the respondent (TCN Channel Nine Pty Ltd v Hayden Enterprises Pty Ltd (1989) 16 NSWLR 130 at 158 and 162). As discussed above, the vehicle is in Western Australia and the respondent did not offer to pay for the cost of transportation back to NSW, or offer to have the vehicle repaired in Western Australia. The cost of returning the vehicle to the respondent for repairs is likely to have been significant, and any repairs would have taken more time than if both parties were located in Sydney.

50. The award of compensation to the applicant encompasses both the loss of value of the vehicle and the cost of repairing the motor of the vehicle. However, such losses are separate losses arising from separate causes of action, and the amount awarded is not ‘double compensation’. (Prestige Auto Centre Pty Ltd v Apurva Mishra [2014] NSWCATAP 81 at [40]-[46])

CONCLUSION

51. By reason of the respondent’s breach of Sections 18 and 54 of the ACL, the Tribunal awards the applicant the following amounts:

Initial repairs of the vehicle by Kingsway Mechanical $2,052.77

Difference in value between a ‘GX’ model and ‘Workmate’ model $1,980.00

Cost of repairs to engine and ancillaries of motor $8,000.00

Total $12,032.77

G J Sarginson

General Member

Civil and Administrative Tribunal of New South Wales

23 December 2014

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: 12 February 2015