Australia, May 25 -- New South Wales Land and Environment Court issued text of the following judgement on April 24:

1. The appellant is a car mechanic. This appeal concerns work he contracted to do during the period from December 2020 to February 2021 to rebuild the engine in the respondent's 2009 Subaru Impreza WRX.

2. The appellant appeals from an order made by the Consumer and Commercial Division of the Tribunal on 13 November 2024 requiring the appellant to pay the respondent damages in the sum of $21,804.20. The damages were awarded in relation to the Tribunal's finding that the work carried out by the appellant did not comply with the guarantee of due, care and skill contained in s 60 of the Australian Consumer Law (NSW) (ACL). The amount awarded was the cost quoted by another repairer (Blacktown Service Centre) to repair the vehicle.

3. Competing expert evidence was presented by the parties in the primary proceedings. The Tribunal decided to prefer the expert evidence presented by the respondent to that presented by the appellant.

4. For the reasons set out below we have decided that leave to appeal should be refused and the appeal should be dismissed.

The Tribunal's decision

5. The Tribunal found that on or about 12 December 2020 the parties entered into a contract for the appellant to install a rebuilt engine. The work was the subject of an invoice from the appellant dated 9 February 2021.

6. The Tribunal focused upon the competing expert evidence, namely expert reports from Mr Alessi dated 5 October 2023 adduced by the appellant and a report from Mr Kannen dated 8 February 2024 adduced by the respondent. On appeal we were provided with complete copies of those reports.

7. Ultimately, the Tribunal expressed the following key conclusions:

24 This is a dispute where the evidence of the experts conflict. Despite this being one of the issues in dispute and hotly contested, the parties did not call the experts to give evidence and be cross-examined. The consequences are that the Tribunal has to determine which report to rely upon based on the written reports of both experts that have conflicting opinions.

25 Where the expert evidence conflicts to such an extent the Tribunal informing its view can prefer one expert over the other. In this regard I prefer the evidence of Mr Kannen. He has identified issues with the report of Mr Alessi that the vehicle was not modified and that he had not mentioned the vehicle being returned to the [appellant]. [The Tribunal then referred to Mr Alessi's evidence about the 3 inch exhaust system and the information from GCG Turbo Charges]. However, there is no supporting documentary evidence from GCG Turbo Charges that states the vehicle was modified and that 3 inches is not the factory exhaust. I do not accept that the failure is due to incorrect tuning and abusive driving as claimed by Mr Alessi. He claims that the engine failed due to excessive internal combustion temperatures due to higher boost and fuel mixtures determined by the non-factory ECU in the custom tune after the engine was reconditioned.

26 According to Mr Kannen, the damage to the vehicle was caused by catastrophic damage to the crankshaft, pistons, conrods and engine block. The original engine block was replaced with a second hand engine with a service history unknown. It was not one major component that failed and caused the engine to be damaged, but rather a general lack of due care and skill that caused the engine to fail. Mr Kannen reports that the engine was a second hand engine rather than a fully reconditioned engine and that the work completed by the respondent of an overhaul of the engine was not completed with due care and skill.

27 Mr Kannen also reports that Mr Alessi hypothesises that the driver could miss a gear which would be the same as an excessive boost but does not provide evidence to support this. Further Mr Alessi reports about the tuning of the engine and in response Mr Kaneen's states that had the vehicle been tuned with due care and skill then it would not have broken down on 10 occasions. Mr Alessi claims that the vehicle was taken to Rumble Shack and Ichiban to tune and that they incorrectly tuned the vehicle. I accept that the vehicle should have been checked for tuning when it was returned to the [appellant] on at least five occasions.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/19660c88d7d717c5627ebd8b)

Disclaimer: Curated by HT Syndication.