Sukkar v Rima trading as Elite Pro Tuning

[2019] NSWCATCD 95

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Sukkar v Rima trading as Elite Pro Tuning [2019] NSWCATCD 95

Hearing dates:

3 July 2019

Date of orders:

16 July 2019

Decision date:

16 July 2019

Jurisdiction:

Consumer and Commercial Division

Before:

B Shipp, Senior Member

Decision:

The application is dismissed.

Catchwords:

CONSUMER LAW — Breach of “due care and skill” guarantee under Australian Consumer Law

Legislation Cited:

Australian Consumer Law

Fair Trading Act (NSW)

Civil and Administrative Tribunal Act (NSW)

Cases Cited:

Read v Nerey Nominees Pty Ltd [1979] VR 47

Mayne Nickless Ltd v Crawford (1992) 59 SASR 490

Texts Cited:

S.G. Corones, The Australian Consumer Law (2011) Lawbook Co pp 361-362

Category:

Principal judgment

Parties:

Mansour Sukkar (Applicant)
Mahmoud Rima, trading as Elite Pro Tuning (Respondent)

Representation:

Applicant (Self-represented)

Solicitors:
Francom Legal (Respondent)

File Number(s):

MV 19/12236

Publication restriction:

NIL

REASONS FOR DECISION

Background and Application

1. The Applicant is the owner of a Mitsubishi Lancer Evolution 8 vehicle, which he purchased in May 2018 from a party unrelated to these proceedings. The vehicle had an odometer reading of approximately 130,000 at the time of sale.

2. He claims that he took his vehicle to the Respondent for repairs, because he noticed it was not engaging Gear 6. He had certain discussions with the Respondent, which are further detailed below. He paid the Respondent $5,650 for the work performed but alleges further significant problems with the gearbox and clutch about 3 weeks after collecting the vehicle.

3. He contacted the Respondent who initially agreed to further inspect the vehicle, but later declined to do so. As a result of this, the Applicant took the vehicle to another repairer (Newton Automotives – “Newton”) who diagnosed the problems and completed the necessary repairs.

4. He was also required to purchase a new clutch from Western Clutch Service – “WCS”), and to have further work done by an engineer – “Pipelex”.

5. In January 2019, the Applicant applied for an order (MV 19/01169) that the Respondent pay the costs he incurred to have the vehicle repaired, as a result of the failure of the Respondent to exercise due care and skill. This matter was listed for hearing on 12 March 2019. The matter was dismissed because there was no appearance of the Applicant. On the same day, the Applicant lodged a further application seeking the same orders (MV 19/12336).

Jurisdiction

6. The Tribunal's Consumer and Commercial division has jurisdiction in relation to matters arising under various legislation including Part 6A of the Fair Trading Act (NSW)(FTA) which in turn may raise issues rights under the Australian Consumer Law (ACL).

7. The ACL was incorporated into the law of New South Wales by section 28(1) of the Fair Trading Act 1987 (NSW) ('FTA'). The ACL (NSW) consists of Schedule 2 of the Competition and Consumer Act 2010 (Cwth), and the regulations under section 139G of that Act (FTA section 27).

8. The ACL applies to create rights at law in consumers that fall within the terms of the ACL including the consumer guarantee provisions in Part 3-2 ACL. Whilst the ACL creates a cause of action at law and a range of remedies for parties, it does not of itself confer any jurisdiction on this Tribunal to hear those actions and provide those remedies.

9. In order for a party to rely upon rights created by the ACL in this Tribunal, the party must show how the Tribunal obtains the jurisdiction to entertain that action. This involves a two-step process:

1. Whether the subject matter of the claim falls within the ACL; and if so

2. Whether the Tribunal is vested with the jurisdiction to hear that claim.

10. In relation to the first issue, the ACL provides statutory rights and protection to consumers who have acquired 'goods' or services valued at $40,000.00 or less (section 2; Schedule 2 section 3).

11. Under section 32 of the FTA, the ACL (NSW) applies to and in relation to:

1. Persons carrying on business within this jurisdiction, or

2. Bodies corporate incorporated or registered under the law of this jurisdiction, or

3. Persons ordinarily resident in this jurisdiction, or

4. Persons otherwise connected with this jurisdiction.

12. In the present case the Applicant is ordinarily resident in NSW and the Respondent supplies services provided within NSW. The Applicant is therefore a consumer who may enjoy and enforce rights under the ACL.

13. The only means by which the Tribunal can obtain the jurisdiction over ACL matters is via the Fair Trading Act 1987 (NSW)(CCA). Section 79J FTA gives the Tribunal jurisdiction to hear claims falling under the FTA. I am satisfied that the Applicant meets the description of a consumer set out in Section 79D of the FTA .

14. The claim arises from the supply of services to the consumer (under a contract or not), and constitutes a claim for payment of a sum of money (FTA section 79E). The services to which the claim relates were supplied in NSW (FTA section 79K). The claim was made within the period of time allowed in Section 79L FTA.

15. The claim is therefore one maintainable under the FTA and is within the monetary limitation.

16. There was another jurisdictional issue raised by the Respondent which can be dealt with quite briefly. The Respondent submits that the Tribunal should not entertain this second application, as the Applicant failed to attend the initial hearing and did not seek to reinstate the application within the 7 day time limit, as indicated in the orders of 12 March 2019. The Applicant has also failed to provide any explanation for his absence. The Respondent suggests it is procedurally unfair and not in the interests of justice, and contrary to the intent of Section 36 of the Civil and Administrative Tribunal Act to allow the Applicant to now reapply for these orders.

17. I am not satisfied there is any legal barrier to considering this second application. It is true that the first application was dismissed, but it was never considered on its merits. The Applicant took immediate steps to lodge the second application, when he became aware that he had missed the first hearing. He told me he had been working on 12 March 2019 and had confused the dates, believing that the hearing was on the following day. While this may not be a reasonable explanation for his absence, it does not affect his right to bring a second application, as he was still within the timeframes set out for consumer claims in the FTA. Nor do I believe it is procedurally unfair to consider this second application. The second application has proceeded through the usual path of an initial conciliation hearing, followed by Directions for preparation of the mater for a final hearing. Each party has complied with the directions for filing evidence, and has served a copy of the documents on the other party. The Respondent has had a full opportunity to be heard and to have his submissions considered (Section 38(5) of the Civil and Administrative Tribunal Act).

Proceedings

18. The 2^nd application came before the Tribunal on 9 April 2019 at which time directions were made for both parties to submit any documents they would rely on within a certain timeframe. Both parties submitted documents in accordance with the Directions. Both parties were also given leave to be legally represented in these proceedings.

19. The matter was listed before me for final hearing on 3 July 2019. The Applicant appeared in person and gave evidence on oath. The Respondent and his wife Ms Gaby Agapi Maniakis Rima appeared in person and gave evidence on oath. The Respondent was represented by Mr M Hafizi and Ms A Catania, Solicitors of Francom Legal.

20. The Applicant is now seeking payment of $4,900 comprising:

1. $1,498 for refund of repairs and parts supplied by the Respondent which had to be redone

2. $1,400 for the Newton repairs

3. $1,040 for Pipelex repairs

4. $770 for the clutch kit from WCS

5. $200 for administrative fees.

Issues

21. The Issues in this matter are:

1. Has the Respondent breached its obligation under the Australian Consumer Law to provide services to the Applicant with due care and skill?

2. If so, what is a just and equitable determination of the Applicant's loss?

Relevant Evidence and Submissions

22. The Applicant relied on the following documents:

• 4-page submission/timeline

• Respondent Tax Invoice dated 22 November 2018

• Newton tax invoice dated 11 January 2019

• WCS tax invoice dated 11 January 2019

• Report of Mr Chris Succar, director of Pipelex, dated 11 January 2019

• A series of photographs of the relevant parts of the vehicle

• A series of Facebook Messenger messages between the parties.

23. The Applicant provided the following material evidence:

1. He took his vehicle to the Respondent on 26 October 2018. They discussed either repairing the gearbox or replacing it. He decided to replace the gearbox. The Respondent indicated it may take some time to find a replacement gearbox. The Applicant agreed to wait and requested the Respondent also carry out a major service, inspection and re-tune.

2. On 16 November 2018, the Respondent called him advising that he had sourced a new gearbox, that his intercooler piping was worn and should be upgraded. He agreed to this. The Respondent also agreed to order a replacement coil and install it. The Applicant requested he also inspect the faulty air conditioning. He paid a $2,000 deposit to the Respondent.

3. On 22 November 2018,he went to the Respondent’s workshop to collect his vehicle. On arrival, he noticed that the weathershield was missing. An employee Jason indicated the wind had broken the shield. The Applicant then spoke to the Respondent. They finalised the Invoice and the Respondent returned the keys to him. The car was hard to start. He heard a ticking noise from the engine bay. The Respondent said this was “nothing” and would not affect the vehicle. He said it was probably just something loose or worn out. The Applicant heard another noise when he pressed the clutch. The Respondent said this was from the new gearbox, and was not a fault.

4. On 15 December 2018, he took the vehicle for the air conditioning to be re-gassed. He had only driven another 100 to 200 kilometres since collecting the vehicle from the Respondent. On the way back home, his clutch failed when he was stopped at a traffic light. He went to re-engage the gear and it would not re-engage. In the next few days he tried contacting the Respondent to discuss this issue, but they could not come to an agreement. The Respondent said he was too busy. They finally agreed that the Respondent would send a tow truck to collect his vehicle from his home on 2 January 2019. On 1 January 2019, the Respondent indicated that he would not be paying for a tow truck to collect the vehicle. He asked the Applicant to bring the vehicle in and he would pay for any damage, if it was his fault. In cross-examination the Respondent suggested that he had never promised to pay for the tow truck, but the Applicant referred the Tribunal to the messages between them.

5. The Applicant then submitted a complaint to the Office of Fair Trading (OFT). He was later informed by OFT that the complaint could go no further because the Respondent had refused to allow him entry into his workshop, and that he should make the application to the Tribunal.

6. On 10 January 2019, he sent the vehicle to Newton Automotive by tow truck. Newton works on specialty vehicles like his. The following day, Mr Newton informed him that there was extensive damage to his vehicle. This includes:

1. A broken flange on the transfer case. Mr Newton explained that this is how he found the part prior to removal. He also suggested the damage is inconsistent with driving as it is protected from a knock on the bottom by other components. If damage is caused by inexperienced drivers, it is normally to the gears inside, not to the flange. The more likely reason is that the transfer case has been dropped

2. An exploded clutch because the transfer case had not been bolted on.

3. The transfer case seal was leaking and covered in silicone

4. The transfer O-ring seal had not been changed and was extremely worn.

7. Mr Newton suggested that the damage to the clutch plates was consistent with driving the vehicle like this for a year, and should have been replaced when the gearbox was changed. He also suggested that the ball joint bolts had to be hammered in as the thread had been stripped. There were also other issues including missing and damaged bolts and leaking seals. He instructed Mr Newton to complete the necessary repairs.

8. He also sent the transfer case to Pipelex which is a metal specialist. He wanted to find out if it could be repaired. He suggested the damage to the transfer case was the reason the clutch failed. Pipelex did certain work and prepared a report for these proceedings. He also purchased a new clutch from WCS.

9. He collected the vehicle from Nelson Automotive and paid their account on 18 January 2019.

10. The vehicle is a purpose-built rally car. It is not his main vehicle which he uses for work. He only uses this vehicle on weekends, and has not used it for racing. It has not been registered in any race tracks, so he assumes it had just been used for road use.

11. He has driven the vehicle a total of 4000 to 5000 kilometres since purchase. He drives this vehicle more carefully than his main vehicle. He has never driven the Lancer recklessly.

24. The Respondent’s Invoice of 22 November 2018 includes the following items

• Supply and Install 6-speed gearbox

• Major service and timing belt service and water pump

• Retune including compression test and boost leak test

• Supply and install Full Piping Kit

• Rear main seal

• Transfer case seal

• Crank sensor plate

• Balance shaft gear

• Replace coil

25. The Invoice also contains the following “foundings” (sic):

Inspect Clutch – GOOD

Inspect air conditioner – SORTED NEEDS RE-GAS

Replace coil from cop kit - SORTED

26. The Newton Invoice of 11 January 2019 states that the author has been in the motor trade for over 40 years, and that this also serves as a report as to the necessary repairs. It continues:

Check vehicle not going in to gear, remove gearbox, found clutch to be faulty collapsed thrust bearing, clutch plate damaged and spring dislodged, also when removing transfer box found casing to be cracked and broken. Lower ball joints thread stripped, gear selector securing pin missing, gearbox drain plug found to be finger tight, rear main oil seal leaking. Possible damage to clutch caused by driver abuse. Flywheel bolt heads rounded off. Bolt missing from steering rack.

27. The Applicant suggests that the reference to “driver abuse” is incorrect. He does not drive the vehicle recklessly.

28. The Newton invoice notes that the following work was performed: Replace clutch kit supplied by customer, machining flywheel, replace rear main oil seal, replace transfer box inner seal, replace transfer box O-ring seal, replace fly wheel bolts, gearbox oil, transfer box oil, workshop consumables.

29. The Pipelex report dated 11 January 2019 was written by Mr Chris Succar, Director. Due to the similarity of the name with that of the Applicant, I asked him whether he was any relation. The Applicant confirmed that Mr Succar is a relative who he “did not know personally” but had “met a couple of times”. Mr Succar writes that he has 13 years’ experience in the metal industry with qualifications in boiler making and welding supervision. He also has 10 years’ experience in the oil, mining, powerplant and refining industries. This experience has provided him with extensive knowledge in metallurgy and non-destructive testing. He is writing the report to provide his opinion on the broken transfer case which the Applicant delivered to his workshop on 10 January 2019. He writes:

At first glance we could immediately identify that the transfer case has been broken for quite a while due to the deeply imbedded greases and oils, and damages to the breaks surface itself. Firstly, the damage to the granular surface of the brakes surface, we concluded that the 2 parts have been physically forced against each other, therefore causing an equal indentation into both surface breaks … these indentations are not wearing marks as two objects rubbing against each other, but a mechanical mark such as a hammer striking into an object. As for the greases and oils imbedded into the granular structure of the material, this can only be achieved by exposer (sic) to such contaminations over long periods of time with excessive amounts of manual handling. … the damage would have been approximately 2 months old from the day we received it based on our assessment.

30. The Applicant suggests he paid Pipelex $1,040 for its work, but he did not supply this Invoice as part of his evidence.

31. In summary, the Applicant suggests that the damage found in the Newton report is most likely to have occurred at the time of the repair and service work by the Respondent. It is likely that the Respondent put the silicone around the input shaft which has potentially contaminated the oil. He also never received the compression and boost leak test results. The Respondent charged him for this, but he believes they were never done. The claim by the Respondent that the clutch was “good” must also be regarded as doubtful, because it failed so soon after that. He acknowledges that the Respondent did complete some of the work for which he was charged – including the major service, the timing belt, the supply of the piping kit and the installation of the 6-speed gearbox.

32. The Respondent relied on its written submissions, his Affidavit of 26 April 2019, copy of a page from the Applicant’s Facebook site, copies of text messages between the parties (many of them the same as provided by the Applicant), documents from the Far Trading NSW file relating to the dispute between the parties, and Affidavit of Gaby Agapi Maniakis Rima dated 26 April 2019.

33. The Respondent provides the following material evidence:

1. The Applicant arrived at his workshop without a booking on 26 October 2018 to leave his vehicle for major repairs. In the course of discussions, the Applicant stated that his vehicle was not engaging Gear 6 and “I want to fix it but I don’t want to spend too much”. The Respondent stated there was little difference between the cost of replacing and the cost of repairing the gearbox. The Applicant asked the Respondent to locate a second-hand gearbox “so I can save some money”. The Respondent agreed to this, and to do a major service at the Applicant’s request.

2. The technician who inspected the vehicle told the Respondent it needed a lot of work to get it back to normal – “It looks like Mansour’s car has had a very rough past, as the condition of the vehicle is below average.” The Respondent understands the technician told the Applicant about the condition of his vehicle.

3. The Respondent’s own inspection of the vehicle indicated that the coil and intercooler piping needed to be replaced, as they were unsafe, old and worn out. He rang the Applicant on or about 16 November 2018 and told him that the vehicle “needs a lot of work to get it back to normal. I know you don’t want to spend a lot of money … but your car is below average condition. I know you only wanted a gearbox replacement but I recommend that the coil and intercooler piping needed to be replaced … The Applicant stated “I know I drive a little aggressively. I’m happy for you to replace the coil and upgrade the intercooler piping. I bought a COP kit for my evo but one of the coils burnt” He also asked the Respondent to look at the air-conditioning. The Respondent agreed to do this work, and reminded the Applicant that they do not offer any exchange or refund or credit for any damaged or used parts. The Applicant paid a deposit of $2000 as requested.

4. The Applicant asked in cross-examination why the Respondent had rated this vehicle as being “in poor condition”. The Respondent replied that he can tell the difference between a “tortured vehicle” and one that had been looked after, and the Applicant’s vehicle was in the first category.

1. The Applicant also asked the Respondent why he had returned the intercooler piping to him if it was in so bad a condition. The Respondent replied he had done so, so that the Applicant could see for himself that it was faulty.

2. The Respondent searched the Applicant’s Facebook page which shows a photo of Rocky Balboa (from the movie “Rocky”) with a smashed face and the words: “My transmission after I do 8 launches in a row”. He believes this confirms the aggressive manner in which the Applicant drives.

3. The Respondent completed the work on the vehicle indicated in his Invoice between 20 November and 21 November. When he removed the gearbox, he inspected the clutch. He found it was “currently in good condition but would need to be replaced in the future if it had been worn out”. He spoke to the Applicant about this stating:

“… I just had a look at your clutch and it’s good, but, it’s better to replace the clutch now as if you wear it out in the future you will need to pay the labour again to remove the gearbox in order to replace the clutch. I recommend you replace it now. If you were to replace the clutch today it would be labour free basically”.

The Applicant replied that he did not want it replace if it “still has some life in it”. The Respondent commented in oral evidence that there is a lot of strain on the clutch in these high performance vehicles. The clutch often has to be replaced numerous times on rally cars.

8. Based on the condition of the clutch at the time he inspected it, the Respondent believes the clutch should have lasted about another 6 months “with ordinary driving”. The Applicant suggested he had only driven a further 100 to 200 kilometres before the clutch failed. This would have been more than enough to cause the clutch to fail, if the vehicle had been driven hard. The Respondent referred to the vehicle being factory fitted with launch control. This is a device which allows the vehicle to “take off aggressively” but holds it at 5000rpm. Regular use of the launch control will cause the clutch to wear much faster. The Applicant’s statement that the clutch failed when he was at a set of traffic lights supports the theory that it occurred when he was “launching” the vehicle. This is supported in suggestion in the Pipelex report of damage cause by “driver abuse”

9. On 22 November 2018, the Respondent called the Applicant to collect his vehicle. On the same day, the windshield was blown off by heavy winds. He offered to replace it immediately, but the Applicant told him not to worry about it. The Applicant finalised the invoice paying the balance of $3,650.70 and drove off. In answer to the Applicant’s suggestion there was “ticking noise” from the gearbox, the Respondent states that there cannot be any noises originating in the gearbox if the vehicle is stationary, as there are no moving parts.

10. From 15 December 2018 onwards, there were Facebook Messenger messages from the Applicant about problems with his clutch. In these messages and later phone calls, the Applicant was threatening and abusive towards him. The Applicant also “abused and defamed him” over social media. Despite this aggressive approach, the Respondent still offered to inspect the vehicle and pay for any damage caused by his business. However, the Applicant did not take up this suggestion. He was always ready to inspect the vehicle, but never offered to pay for the tow truck. He offered to send a tow truck, but not pay for it. He had limited time as it was during the Christmas period, and his wife was in the latter stages of labour

11. On 2 January 2019, NSW Fair Trading contacted him indicating it had received a complaint from the Applicant. On 9 January 209, the Fair Trading officer contacted him to indicate they were not proceeding with the matter “as we do not believe there is any valid complaint against you.” They indicated the Applicant had been aggressive with one of their officers and also suggested the Respondent consider taking out an Apprehended Violence Order against the Applicant. He did later apply for an AVO against the Applicant

34. The Respondent also commented on the Newton and Pipelex reports. In relation to the cracked transfer case, he states that this could have happened at any time, and could also have been caused by the mechanic dropping it. He denies having caused this damage through his own work, and suggests that he would have fixed it if he had found this damage. He states that this was not the condition of the transfer case at the time it left his workshop. If that had been the condition, it would not have been driveable.

35. Mrs Gaby Rima states she works as secretary for her husband’s business. In her Affidavit, she confirms that the Applicant asked her to book in his vehicle for a gearbox replacement, that he paid the deposit of $2,000, that she prepared the Invoice which is in evidence, and that the Applicant subsequently paid the balance owing. She also notes she was with her husband on 1 January 2019 and overheard a conversation between him and the Applicant in which the Applicant made certain threats of physical injury to her husband. On 9 January 2019, her husband told her that the Applicant had made a claim to Fair Trading, but Fair Trading did not believe he had a case .

36. In oral evidence, Mrs Rima stated that the Applicant had initially asked her to get a price for the piping – the clutch and gearbox were not mentioned. He subsequently asked for a major service, and then, at the request of her husband, she obtained a price for a replacement gearbox.

37. In reply, the Applicant provided the following evidence:

1. His car is not fitted with the launch control

2. He gave the Respondent more than ample opportunity to inspect and fix his vehicle after he reported the failed clutch

3. The ticking noise he heard on 22 November 2018 may well have been related to the broken transfer case

4. There is no good evidence of his vehicle being in a poor or “tortured” condition

5. He never stated he did not want to spend a lot of money. This is inconsistent with his decision to purchase a new clutch.

6. The discussion with the Respondent about replacing the clutch did not occur. The Respondent never offered to replace the clutch “free of charge”

7. He never stated he did not want the weathershield replaced.

8. The broken transfer case would not have prevented him from driving the vehicle out of the Respondent’s workshop.

Submissions

38. The Respondent submits that his work was done with due care and skill. He refers to the following factors in support of this statement:

1. The Newton report suggests that the failure of the clutch may have been caused by driver abuse. This is significant because it is contained in a report prepared on behalf of the Applicant.

2. The suggestion that the clutch failed due to the Applicant’s manner of driving is also consistent with his own words on his Facebook page as indicated in paragraph 31f above.

3. He did not work on the clutch in a way that could have caused the damage the Applicant alleged him to cause

4. Together this evidence makes it more likely that the failure of the clutch and the broken transfer case was more likely caused by the Applicant’s manner of driving, rather than anything that occurred while the vehicle was being worked on by the Respondent

39. The Respondent also submits that he was not given the opportunity to further inspect the vehicle and rectify any faults due to the Applicant’s aggressive approach towards him, as indicated in the messages. He refers to the Fair Trading NSW file which indicates that the Applicant became aggressive to their officer as well. The NSWFT file also confirms the Respondent’s offer to inspect the vehicle and fix any items that were caused by their fault.

40. The Respondent also notes there is no evidence of any payment made to Pipelex for any work performed for the Applicant by that entity

41. The Applicant submits that his vehicle was 16 year old and looked in good condition when he purchased it. When the clutch failed, he had only driven 200km since the vehicle was returned to him by the Respondent, and it was very unlikely that the condition in the Newton report was caused by his manner of driving since then. He had been polite to the Respondent until he realised that the Respondent was refusing to take responsibility for any of the problems with his vehicle.

Consideration - Has the Respondent breached its obligation under the Australian Consumer Law to provide services to the Applicant with due care and skill?

42. Section 60 of the ACL provides as follows:

60 Guarantee as to due care and skill

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.

43. The consumer guarantee that services be provided with “due care and skill” that is implied into consumer contracts is a guarantee that the services will be performed in a “careful, skilful, and workmanlike” manner. However, the test is an objective test (Mayne Nickless Ltd v Crawford (1992) 59 SASR 490; Read v Nerey Nominees Pty Ltd [1979] VR 47 at 49; S.G. Corones The Australian Consumer Law (2011) Lawbook Co pp 361-362), and all of the facts and circumstances must be considered in the context of the application of an objective standard of due care and skill.

44. In summary, the Applicant is seeking a money order for the following reasons:

1. Because he paid the Respondent for repairs and parts that had to be redone or replaced. He claims $1,498

2. Because he had to pay for Newton and Pipelex to do work to rectify the work done by the Respondent without due care and skill. He claims $1,400 paid to Newton and $1,040 paid to Pipelex, and $770 for the clutch kit.

He also seeks $200 in “administrative fees”

45. The Applicant did not specify how the figure of $1,498 was exactly calculated. He acknowledges that certain work was completed by the Respondent, including the supply and installation of the gearbox, the major service, timing belt service and water pump, and the supply of the piping kit. It appears that he is not disputing his liability to pay for these items. However, he doubts that the compression and boost leak test was done (as he never received copies of these reports), and suggests that the other parts installed had to be re-done due to the Respondent’s poor workmanship (including the rear main seal. Transfer case seal, crank sensor plate, balance shaft gear and replace coil).

46. The Applicant suggests that the amounts he was required to pay for the clutch kit, and the further work completed by Newton and Pipelex were directly due to the failure of the Respondent to undertake his work with due care and skill.

47. The principal part of the Applicant’s claim relies on a finding therefore that the Respondent was in breach of his obligation to complete work with due care and skill. In making this claim, the Applicant appears to rely on the following matters:

1. The circumstances in which his clutch failed on 15 December 2018

2. The Newton report of damage to the vehicle, and

3. The Pipelex report.

48. Taking these matters together, the Applicant asks the Tribunal to find that:

1. The negligence of the Respondent led directly to the failure of the clutch, which the Respondent claimed was “good” only 3 weeks before.

2. The poor workmanship of the Respondent caused the collapsed thrust bearing, damaged clutch plate, dislodged spring, cracked transfer box, stripped thread on the ball joints, missing gear selector secure pin, loose gearbox drain plug, leaking rear main oil seal, missing steering rack bolt, and rounded off flywheel bolt heads.

The Applicant relies on the Pipelex report which reported specifically and only on the broken transfer case. The author’s report concludes that:

• The transfer case had been broken “for quite a while” (due to the deeply imbedded greases and oils, and the way the “breaks surface” had been damaged.

• The greases and oils can only be imbedded in this way by exposures to such contaminants “over long periods of time with excessive amounts of manual handling”.

• The damage to the surface suggests 2 parts having been physically forced against each other, with the indentations caused not by wear from rubbing, but from something like a hammer strike.

• The damage was approximately 2 months old.

49. At 23f and 23g above, the Applicant also gives evidence of other matters he alleges Mr Newton said to him. This includes matters relating to the appearance of the transfer case and the O-ring and the clutch plates, and the likely cause of the damage to the transfer case and the clutch. I give this evidence very little weight as it does not appear in the written material of Mr Newton himself, and is therefore not part of the evidence the Applicant presents as expert evidence. While this Tribunal is not bound by the rules of evidence, it is still required to weigh up the strength of any evidence. The Tribunal is entitled to give the direct words of the alleged expert significantly more weight then those ascribed to him on a hearsay basis. If the evidence of Mr Newton is significant at all, it can only be based on the actual words in his report/Invoice. Those words include: “Possible damage to clutch caused by driver abuse”. It is significant that this is the only rationale offered by Mr Newton, albeit as a possibility only.

50. The Pipelex report is based on observations of the transfer case only. The Applicant confirmed that the author of this report did not inspect the vehicle, and has no experience in the motor vehicle industry. His experience is in metallurgy and he claims to provide a metallurgical opinion. The date on which the damage to the clutch occurred is of some importance in these proceedings. The Respondent states that the clutch was still “good” when he returned the vehicle to the Applicant on 22 November 2018, but suggests that it could well have failed in the next 200 kilometres if the vehicle was “launched” on several occasions. The Pipelex report author suggests that the transfer case had been broken “for quite a while” which he later identifies as “approximately 2 months”. However, he also suggests that the imbedded greases and oils on the transfer case could only be achieved by “:exposer(sic) to such contaminants over long periods of time with excessive amounts of manual handling”. There are internal contradictions in this evidence which I could not resolve, as the Pipelex author did not attend to give evidence.

51. The Respondent did not provide any contradictory independent expert evidence. He relies on his own expertise and the following factors:

1. The instructions from the Applicant that he did not wish to spend too much money

2. The specific instructions from the Applicant that he did not want the clutch replaced

3. The Applicant’s acknowledgement that “he drives a little aggressively” consistent with the comments on his Facebook page.

4. The real possibility that even a “good” clutch in a high performance vehicle can fail within 200 kilometres if this vehicle is driven aggressively.

52. The Applicant must establish the facts which together establish, on the balance of probabilities, that the Respondent failed to supply his services in a “careful, skilful and workmanlike manner”. Having considered all the evidence, I cannot be comfortably satisfied that I can make this finding. While I accept that the Applicant was genuinely surprised when his clutch failed only 3 weeks after the vehicle was returned by the Respondent, I cannot find that the only or more likely explanation was the poor or negligent workmanship of the Respondent. Mr Newton has found a number of missing or damaged parts, but only offers “driver abuse” as a possible cause to the clutch damage. His report/invoice does not indicate whether all the missing or damaged items may have occurred at the time of the clutch failure, or were unrelated. The Pipelex report also appears to be internally inconsistent in terms of the damage to the transfer case. It is presumably beyond the expertise of this author to comment on the relationship between the damage to the transfer case and the failure of the clutch.

53. Due to these deficiencies in the evidence relied upon by the Applicant, I find it to be equally possible that the Respondent’s explanation of the clutch failure is correct. In making this finding, I do not place excessive weight on the contents of the Applicant’s Facebook page, as such pages may well be the product of excessive bragging, rather than an indication of the truth. Nevertheless, I find it just as likely that the major cause of the damage found by Newton and Pipelex was the manner of the Applicant’s driving.

54. I am therefore unable to find that the Respondent was in breach of his obligation under Section 60 of the ACL to provide services with due care and skill. Nor do I find on the balance of probabilities that the Respondent failed to provide any of the services for which the Applicant paid.

55. There being no other cause of action available to the Applicant, I must dismiss his claim.

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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: 29 March 2022