ACT CIVIL & ADMINISTRATIVE TRIBUNAL

MITCHELL & ANOR v MASTERS HOME IMPROVEMENT PTY LTD (Civil Dispute) [2016] ACAT 138

XD 118/2016

Catchwords: CIVIL DISPUTE - supply of goods - action against supplier of goods – consumer guarantee goods of acceptable quality – supplier did not attend the hearing - failure to comply with guarantee – major failure – damages - remedy – retailer liable

Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 18Competition and Consumer Act 2010 Schedule 2 Australian Consumer Law ss 54, 236, 259, 260

Tribunal: Presidential Member E Symons

Date of Orders: 19 August 2016Date of Reasons for Decision: 5 December 2016

AUSTRALIAN CAPITAL TERRITORY )CIVIL & ADMINISTRATIVE TRIBUNAL ) XD 118/2016

BETWEEN:

STUART MITCHELLFirst Applicant

MICHELLE MITCHELLSecond Applicant

AND:

MASTERS HOME IMPROVEMENTAUSTRALIA PTY LTD

Respondent

TRIBUNAL: Presidential Member E Symons

DATE: 19 August 2016

ORDER

The Tribunal orders that:

1. Damages assessed at $15,133.76 but reduced to $10,000 being the Tribunal’s

jurisdiction in section 18 of the ACT Civil and Administrative Tribunal Act

2008.

2. Judgment for the Applicant in the sum of $12,062.50, being $10,000 damages

plus filing fee of $140.00 and search fee of $9.00 plus interest calculated in

accordance with the Court Procedures Rules 2006 from 13 August 2013 to date,

namely $1,913.50.

3. The Respondent pay the total monies in Order 2 to the Applicant by close of

business 15 September 2016.

The Tribunal notes that:

1. the $15,133.76 in Order 1 is calculated as follows:

(a) Loss of resale value of the 2010 Toyota Kluger motor vehicle - $5,000.00,

(b) Cost of registering and insuring the motor vehicle for 318 days when it

was unfit for use - $1,193.86,

(c) Loss of Mr Mitchell’s income when transporting the motor vehicle for

repairs and analysis - $1,780.70,

(d) General damages - $6,000.00, and

(e) Vehicle operation costs associated with repairs and analysis - $1,159.20.

……………signed………..Presidential Member E Symons

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REASONS FOR DECISION

1. On 13 August 2013 the applicant, Michelle Mitchell, purchased a three litre

bottle of White King outdoor cleaning bleach (the bottle) from the respondent’s

Canberra Airport store located in Majura Park in the Australian Capital

Territory.

2. The applicant placed the bottle in the luggage compartment area of the Toyota

Kluger motor vehicle (the vehicle) she was driving and proceeded to drive to

Queanbeyan. The applicant heard a ‘pop’ noise and smelled bleach. The

applicant discovered that most of the contents of the bottle had discharged into

the motor vehicle’s luggage compartment area.

3. The applicant contacted the respondent’s store and was advised to return to the

store. The applicant returned to the store and was met by the store manager and

an assistant who helped to clean the vehicle. The manager took the bottle and

arranged for the vehicle to be cleaned by VIP Fyshwick.

4. At the request of the manager the applicants had the vehicle assessed by a

suitable repairer.

5. The parties have been involved in negotiations which have broken down.

The Proceedings

6. On 16 May 2016 the applicants filed a civil dispute application

(the application) at the ACT Civil and Administrative Tribunal (the Tribunal)

seeking damages of $10,000 plus costs and disbursements for the sale by the

respondent to her of a defective bottle of bleach.

7. On 15 June 2016 the respondent filed a response and a letter dated 15 June 2016

which the Tribunal sets out in full:

We acknowledge receipt of the “Notice to Respondent of Dispute” dated 19 May 2016.

We enclose a full copy of our file in relation to this incident, and are happy to have the Australian Capital Territory Civil and Administrative Tribunal (“ACAT”) make a decision based on the evidence provided and in Woolworths Limited’s (“Woolworths”) absence.

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We are not intending to make any offer of compensation of any amount to Mr & Mrs Mitchell in relation to this incident.

The salient points as far as Woolworths is concerned are: The Applicant purchased a 3 litre bottle of White King “Outdoor

Bleach Spray” from our Masters Home Improvement store (“Masters”) at Canberra Airport on 12 August 2013.

The Applicant advised that the bottle “erupted” in the back seat of their 2010 Toyota Kluger causing property damage to the vehicle. The Applicant advised us that bottle was “faulty”.

The Applicant returned to Masters store, and the store manager Michael Kuchel inspected the damage and advised that the bleach lid was “still tight although still wet found around top of lid” and “there was no visible damage to the container”. The bottle of bleach itself was unsecured in the rear of the car (on the floor).

The Applicant then lodged a claim with their motor vehicle insurers, who sent Woolworths a letter of demand dated 22 August 2013. We are unaware of what transpired between the Applicant’s motor insurer and themselves in relation to the repair of the vehicle.

In the interim the store manager at Masters has disposed of the bleach bottle.

Woolworths put the manufacturer of the product Pental Limited (“Pental”) on notice that a product of theirs had caused property damage to a customer’s vehicle, and subsequently offered as a gesture of goodwill in the amount of $650.00 to contribute to the Applicants towards payment of their insurance excess.

On 11 November 2013 we received a letter of demand from the Applicant’s solicitors, and we responded by advising that we thought that the manufacturer Pental was the appropriate respondent to this customers claim.

QBE Insurance (Australia) Limited, acting for Pental, advised us that they could not accept liability because they were unable to test the integrity of the bottle as it had been disposed.

We received confirmation on 24 February 2015 that the Applicant was no longer legally represented and we formally responded to the Applicants claim in an email dated 27 February 2015.

Our position is that an allegedly defective product manufactured by Pental has caused damage to this customer’s vehicle. At no stage has anyone suggested or alleged (or is there any evidence to suggest) that Woolworths in its position as retail seller (through Masters) of this product has caused a defect to this product which is causative of the Applicant’s motor vehicle damage.

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Putting aside any reservations, we may have on the validity of the quantum of the Applicants claim for $11,909.75 (given that we understand that the vehicle had already been repaired and the repairs paid for and guaranteed by their motor insurer), Woolworths is unsure whether the disposal of an allegedly faulty bottle of bleach by our store manager makes us legally responsible.

We are happy for the Tribunal to make a call on this issue based on the documents we have provided here and will await formal notification of your decision in due course.

Yours faithfullyDarren QuekSolicitor – Customer Claims TeamLegal Services Group

8. A conference was scheduled for 13 July 2016. The respondent notified the

Tribunal by email on 5 July 2016 “we are happy to have the Tribunal make

orders in our absence based on the documentation provided.” The applicants

attended the conference. The respondent did not attend the conference in person

or by telephone. The matter was set down for hearing on 19 August 2016 and

directions were made in relation to the filing of further material.

9. The applicants attended the hearing on 19 August 2016. Mr Mitchell gave his

evidence under affirmation and Ms Mitchell gave evidence on oath. The

respondent did not attend the hearing. At the conclusion of the hearing the

Tribunal made the following orders and notation:

1. Damages assessed at $15,133.76 but reduced to $10,000 being the Tribunal’s jurisdiction in section 18 of the ACT Civil and Administrative Tribunal Act 2008.

2. Judgment for the Applicant in the sum of $12,062.50, being $10,000 damages plus filing fee of $140.00 and search fee of $9.00 plus interest calculated in accordance with the Court Procedures Rules 2006 from 13 August 2013 to date, namely $1,913.50.

3. The Respondent pay the total monies in Order 2 to the Applicant by close of business 15 September 2016.

NOTATION

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The Tribunal notes that the $15,133.76 in Order 1 is calculated as follows:(a) Loss of resale value of the 2010 Toyota Kluger motor vehicle -

$5,000.00,(b) Cost of registering and insuring the motor vehicle for 318 days

when it was unfit for use - $1,193.86,(c) Loss of Mr Mitchell’s income when transporting the motor

vehicle for repairs and analysis - $1,780.70,(d) General damages - $6,000.00, and(e) Vehicle operation costs associated with repairs and analysis -

$1,159.20.

10. On 1 September 2016 the respondent requested written reasons. The Tribunal’s

reasons are set out below.

Issues

11. The applicants claim damages from the respondent pursuant to the Australian

Consumer Law as the supplier of the faulty product.

12. The respondent disputes liability for the damages claimed and contends:

(a) they are not the manufacturer of the White King Outdoor Bleach; and

(b) they are a retailer of the White King products and in this capacity provide

shelf space for the manufacturer. At point of sale the respondent does not

own White King products and do not have anything to do with design,

manufacture or composition of the packaging of these products.

13. What is in dispute is whether the respondent is liable for the damage as the

supplier or retailer of the faulty product.

The evidence

14. The Tribunal accepted Ms Mitchell’s evidence that she had bought the bottle

from the respondent on 13 August 2013; she was not provided with a plastic bag

for the bottle; she had safely placed it upright in the corner of the rear

compartment of the car she was driving; she had placed a big bag of washing

powder next to it so it was in a sensible upright position and shortly after she

drove from the respondent’s store to Queanbeyan she heard a pop and smelled

bleach. She looked in the rear compartment of the car and saw that the bottle

was still in the same upright position and picked it up. The bottom of the bottle

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was wet and the carpet in the rear compartment was wet and had a shiny look.

Ms Mitchell telephoned the respondent and was asked to return to the store.

15. Ms Mitchell returned to the respondent’s store. She said the store manager,

Michael Kuchel, and an assistant helped to clean the bleach in the car with a wet

vacuum. The store manager took the bottle and arranged to have VIP Fyshwick

clean the car. He requested the applicant have the car assessed by the Toyota

dealer in Cooma, where she lived. The applicant said the store manager was

very apologetic, that he would write an incident report and if there were any

consequences arising from the incident Masters’ insurance would cover them.

16. When Ms Mitchell returned to Cooma she said she and Mr Mitchell were able

to smell the bleach in their car from inside their house. They had the car

assessed by a crash repair agent in Cooma who advised that the car not be

driven because of the contamination and that new parts were needed to replace

the contaminated parts, the cost of which would likely cause the vehicle to be

written off. This agent contacted the respondent’s store manager after

conducting the assessment with his concerns. When the applicants then

contacted the store manager he advised them to contact Peter Hunt at

Woolworths’ public relations team, who advised them to pursue the claim

through their insurer, and that the respondent would pay for the applicants’

excess and no claim bonus. The applicants pursued their claim through the

NRMA.

17. The vehicle repairs were completed over a period of approximately twelve

months during which time the applicants were unable to use the car for its

intended use due to the damage caused by the bleach. They claim general

damages of $6,000 for the loss of use of the car, for borrowing motor vehicles,

for missing opportunities for their three children to attend activities, for

Mr Mitchell withdrawing from his university subject, and missing out on

opportunities to perform additional hours at work, for the stress occasioned by

borrowing money for the repairs, for the time spent in correspondence with the

respondent and for the stress in dealing with the respondent and the repairs.

During this time it was necessary for the applicants to have the vehicle tested

and assessed by Robson Environmental Pty Ltd for alkaline dust to determine

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whether there was any evidence of bleach remaining in the car before the repairs

were finalised. Residual alkalinity was detected in the carpet underlay and

further repairs were carried out by the NRMA.

18. The applicants incurred insurance and registration costs for 318 days when they

were unable to use the vehicle; Mr Mitchell lost 5.52 days of income in

transporting the vehicle for repair and analysis and they incurred vehicle

operation costs associated with the repairs and analysis, which were expenses

their insurer did not pay.

19. While their insurer, the NRMA, paid for the car repairs, the applicants said their

claim in the Tribunal does not include any head of damage already covered by

the NRMA. In addition to the losses set out in the above paragraphs the

applicants claim a loss of $5,000 in the resale value of the vehicle as assessed

by High Country Motors of Cooma on 1 August 2014. The applicants incurred

legal fees when they engaged solicitors to assist them in their claim for product

liability which they also seek to recover from the respondent.

Legislation

20. The Australian Consumer Law (ACL) is the national law for fair trading and

consumer protection. The ACL commenced on 1 January 2011.

21. Schedule 2 of the Competition and Consumer Act 2010 contains The Australian

Consumer Law. Guarantees relating to the supply of goods are set out in

Chapter 3, Part 3-2, Subdivision A of Division 1-- Consumer guarantees.

Section 54   Guarantee as to acceptable quality              (1)  If:                      (a)  a person supplies, in trade or commerce, goods to a consumer; and                      (b)  the supply does not occur by way of sale by auction;

there is a guarantee that the goods are of acceptable quality.              (2)  Goods are of acceptable quality if they are as:

(a)  fit for all the purposes for which goods of that kind are commonly supplied; and

                     (b)  acceptable in appearance and finish; and                      (c)  free from defects; and                      (d)  safe; and                      (e)  durable;

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as a reasonable consumer fully acquainted with the state and condition of the goods (including any hidden defects of the goods), 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; and                      (d)  any representation 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.              (4)  If:                      (a)  goods supplied to a consumer are not of acceptable quality;

and                      (b)  the only reason or reasons why they are not of acceptable

quality were specifically drawn to the consumer's attention before the consumer agreed to the supply;

the goods are taken to be of acceptable quality.              (5)  If:                      (a)  goods are displayed for sale or hire; and

(b)  the goods would not be of acceptable quality if they were supplied to a consumer;

the reason or reasons why they are not of acceptable quality are taken, for the purposes of subsection (4), to have been specifically drawn to a consumer's attention if those reasons were disclosed on a written notice that was displayed with the goods and that was transparent.

             (6)  Goods do not fail to be of acceptable quality if:                      (a)  the consumer to whom they are supplied causes them to

become of unacceptable quality, or fails to take reasonable steps to prevent them from becoming of unacceptable quality; and

                     (b)  they are damaged by abnormal use.              (7)  Goods do not fail to be of acceptable quality if:                      (a)  the consumer acquiring the goods examines them before the

consumer agrees to the supply of the goods; and                      (b)  the examination ought reasonably to have revealed that the

goods were not of acceptable quality.

22. Section 236 in Chapter 5, Part 5.2, Division 3 relates to actions for damages and

states:

236. Actions for damages              (1)  If:                      (a)  a person (the claimant ) suffers loss or damage because of

the conduct of another person; and                      (b)  the conduct contravened a provision of Chapter 2 or 3;

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the claimant may recover the amount of the loss or damage by action against that other person, or against any person involved in the contravention.

             (2)  An action under subsection (1) may be commenced at any time within 6 years after the day on which the cause of action that relates to the conduct accrued.

23. Remedies relating to consumer guarantees are set out in Chapter 5, Part 5.4 of

the ACL. The remedies include action against the supplier of goods.

Subdivision A, subsections 259(1) and (2) provide:

(1)  A consumer may take action under this section if:                      (a)  a person (the supplier ) supplies, in trade or commerce,

goods to the consumer; and                      (b)  a guarantee that applies to the supply under Subdivision A

of Division 1 of Part 3-2 (other than sections 58 and 59(1)) is not complied with.

 (2)  If the failure to comply with the guarantee can be remedied and is not a major failure:

(a)  the consumer may require the supplier to remedy the failure within a reasonable time; or

(b)  if such a requirement is made of the supplier but the supplier refuses or fails to comply with the requirement, or fails to comply with the requirement within a reasonable time--the consumer may:

                              (i)  otherwise have the failure remedied and, by action against the supplier, recover all reasonable costs incurred by the consumer in having the failure so remedied; or

                             (ii)  subject to section 262, notify the supplier that the consumer rejects the goods and of the ground or grounds for the rejection.

24. If the supplier is unable to remedy the failure or the failure is a major failure

then subsections 259(3), (4), (5), (6) and (7)) provide:

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

                     (a)  subject to section 262, notify the supplier that the consumer rejects the goods and of the ground or grounds for the rejection; or

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

             (4)  The consumer may, by action against the supplier, recover damages for any loss or damage suffered by the consumer because of the failure to comply with the guarantee if it was reasonably foreseeable that the consumer would suffer such loss or damage as a result of such a failure.

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             (5)  Subsection (4) does not apply if the failure to comply with the guarantee occurred only because of a cause independent of human control that occurred after the goods left the control of the supplier.

             (6)  To avoid doubt, subsection (4) applies in addition to subsections (2) and (3).              (7)  The consumer may take action under this section whether or not the

goods are in their original packaging.

25. When a failure to comply with a guarantee is a major failure section 260

provides:

A failure to comply with a guarantee referred to in section 259(1)(b) that applies to a supply of goods is a major failure if:

                     (a)  the goods would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of the failure; or

                     (b)  the goods depart in one or more significant respects:

                              (i)  if they were supplied by description--from that description; or

                             (ii)  if they were supplied by reference to a sample or demonstration model--from that sample or demonstration model; or

                     (c)  the goods are substantially unfit for a purpose for which goods of the same kind are commonly supplied and they cannot, easily and within a reasonable time, be remedied to make them fit for such a purpose; or

                     (d)  the goods are unfit for a disclosed purpose that was made known to:

                              (i)  the supplier of the goods; or

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

                            and they cannot, easily and within a reasonable time, be remedied to make them fit for such a purpose; or

                     (e)  the goods are not of acceptable quality because they are unsafe.

Consideration

26. After reading the respondent’s file and hearing from the applicants and reading

the documents they had lodged in these proceedings it appeared to the Tribunal

that the factual circumstances giving rise to the application are not seriously in

dispute. The Tribunal found the applicants to be credible witnesses. The

Tribunal finds that:

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(a) the applicants purchased the bottle of bleach from the respondent on

13 August 2013;

(b) the respondent, in trade and commerce, supplied the bottle of bleach to the

applicants;

(c) approximately half of the contents of the bottle of bleach spilled into the

luggage compartment of the applicants’ car on 13 August 2013;

(d) The bottom of the bottle of bleach was wet and the neck of the bottle was

also wet;

(e) the bottle of bleach was retained by the respondent’s store manager on

13 August 2013 and subsequently discarded without being tested for fault

and without the applicants’ knowledge or consent;

(f) the store manager assured each of the applicants that Woolworths would

take liability for what had occurred to their car;

(g) the applicants’ car was unable to be used by them for its intended use for

318 days following the incident on 13 August 2013; and

(h) the applicants suffered damages as a result of the incident on 13 August

2013.

27. While the respondent had filed a statement dated 17 August 2013 by Michael

Kuchel, the store manager, and a copy of the incident report also dated

17 August 2013, the applicants were unable to cross examine Mr Kuchel as he

did not attend the hearing. The Tribunal noted that the incident report identified

the incident as “Bleach spilt in rear of car” and “Customer claim they heard a

pop and later found container of outdoor bleach which was unsecured in rear of

vehicle” and the corrective or immediate action taken as “dried up spilt

bleach.” The sign off comments stated “damage needs to be investigated

professionally and quotes gathered for further repair if approved. Public

liability involved.”

28. The Tribunal has taken into consideration that this is the respondent’s document

and that it was unable to be tested at the hearing as the store manager did not

give evidence and the respondent did not participate at the hearing. Where it

differs to the applicants’ evidence in any of the detail the Tribunal accepts the

applicants’ evidence. Ms Mitchell’s evidence was that she had safely stored the

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bottle of bleach in an upright position in the rear corner of her car and that she

had wedged in the bottle by placing a large container of washing detergent next

to it. The Tribunal notes from the receipt annexed to the applicant’s application

that the bottle of washing detergent was a six litre bottle. Ms Mitchell’s

evidence was that after she heard the ‘pop’ and smelled the bleach she looked in

the rear of the car and saw that the bottle of bleach was still in the upright

position where she had placed it. There was no evidence to support the

respondent’s assumption that the bottle must have fallen over. The Tribunal had

no hesitation in accepting Ms Mitchell’s evidence in relation to her positioning

and securing the bottle of bleach in the rear of her car.

29. The respondent contended that it was not the manufacturer of the bottle so it

was not liable under the ACL. The Tribunal does not accept the respondent’s

submission that the liability only lies with the manufacturer. The consumer

guarantees on products in the ACL are set out above and apply to suppliers.

Suppliers include traders and retailers.

30. The respondent contended that they did not own the product at the point of sale

and their role as a retailer in relation to this product was to provide shelf space

for the manufacturer. The Tribunal asked Ms Mitchell - Do you recollect any

sign anywhere in Masters that said we are not liable for the products on our

shelf space. We don’t own the products on our shelf space? Ms Mitchell replied

– No.1 The receipt issued by the respondent did not include any statement to

the effect that the respondent was not the supplier of the products on its shelves.

The Tribunal is not satisfied from the evidence that the respondent had alerted

the applicant before the sale that it had limited or no title to the product she was

purchasing.

31. Given the unhelpful position adopted by the respondent in that it only provided

its file with its response and otherwise chose not to participate in the hearing by

telephone or in person the Tribunal was unable to ask any questions of the

respondent in relation to its contentions. It was apparent from the respondent’s

documents that it had been in contact with the manufacturer of White King

Bleach, Pental Limited, about this incident however it, apparently, had not

1 Transcript of Proceedings page 21, lines 35-37

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sought any evidence from Pental Limited to corroborate its claims in [30]

above. In the absence of any credible evidence of such an arrangement between

the respondent and the product manufacturer which absolves the respondent of

liability under the ACL as a supplier of goods to the consumer, the respondent’s

contention fails.

32. The Tribunal is satisfied that the respondent is a supplier under the ACL which

engages in trade or commerce and sells goods customers. Businesses that sell

goods automatically provide the guarantee under ACL that the goods are of

acceptable quality.

33. The Tribunal is satisfied, from considering all of the material before it, that the

respondent supplied the goods, namely the bottle of bleach, to the applicants in

the course of trade and commerce. Pursuant to clause 54 of the ACL there is a

guarantee that the goods are of acceptable quality.

34. It was clear from the respondent’s file that the respondent’s store manager had

taken the bottle from the applicant on 13 August 2013 and retained possession

of it until it was discarded by the respondent without the applicants’ knowledge

or consent. When Pental’s insurer, QBE, became aware that the bottle had been

disposed of QBE stated in its letter to the respondent dated 28 November 2014

“as the bottle has been disposed making it impossible for further examination

the apparent leak has not and cannot now be explained”. Unsurprisingly, QBE

denied liability.

35. The Tribunal has no hesitation in finding that the goods were not free from

defects or safe or durable. The Tribunal accepted Ms Mitchell’s evidence that

approximately half of the contents of the bottle of bleach had leaked out of the

bottle and the bottle was wet around the neck and at the bottom. The Tribunal is

not satisfied that the applicants, in any way, used the product abnormally or

caused or contributed to the bottle popping and leaking in their car. The

Tribunal finds that the goods, the bottle of bleach, were not of acceptable

quality.

36. The Tribunal is satisfied from the evidence that the respondent supplied the

bottle to the applicants, the bottle was not of acceptable quality as it was not

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safe, lasting and without fault and therefore the bottle did not meet the

consumer guarantees under the ACL. The applicants properly have sought

compensation from the retailer who sold them the product.

37. Under the ACL the applicants are able to bring an action for damages pursuant

to sections 259 and 260 against the respondent, the supplier of the goods in this

matter, for its failure to comply with the guarantees. The Tribunal is satisfied

and finds from the evidence that the goods would not have been acquired by the

applicants, who are reasonable consumers, if they had been fully acquainted

with the nature and extent of the failure and that the goods are not safe. The

failure to comply with the guarantee is a major failure.

38. In considering the damages claimed the applicants the Tribunal considered

whether the loss and damages claimed were reasonably foreseeable. The

damages can include consequential losses to the consumer in time and money

because something has gone wrong with the goods.

39. The applicants are not seeking the cost of the repairs to their car as this was

covered by NRMA Insurance. However, they claim the loss in the value of the

car caused by the damage of $5,000. They rely on a letter from High Country

Automotive Group dated 15 August 2016 which valued the car prior to the

incident at $27,500 and after the incident at $22,500. This evidence was not

challenged. The Tribunal accepted it.

40. The applicants claimed that their car was unable to be used for its intended

purpose for 318 days. They provided copies of the invoices for the following

expenses and claim reimbursement of the insurance, registration, Compulsory

Third Party (‘CTP’) and NRMA road side expenses they had paid for that

period which they have calculated as follows:

Youi insurance, $384.49 per annum, for 318 days $344.98

Registration, $471.00 per annum, for 318 days $410.35

CTP, $401.45, for 318 days $349.76

NRMA roadside assist, $102.00 per annum, for 318 days $88.78

$1538.85

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41. The applicants claimed the loss of Mr Mitchell’s income in transporting the car

to Canberra for repairs and analysis and vehicle operation costs. He provided a

copy of the annual leave he had taken for this purpose. He told the Tribunal that

he could not restore this annual leave by repaying the amount to his employer.

He claimed 5.52 days at $322.59 per day, $1,780.70. He claimed 2,070

kilometres at $0.56 per kilometre, $1,159.20.

42. The applicants told the Tribunal that they had incurred legal costs of $2,096.60

in relation to this claim and they seek recovery from the respondent. They

provided the statement of account from Blaxland Mawson & Rose. They are not

seeking the legal fees incurred in relation to the NRMA repairs.

43. The final head of damages claimed was for general damages, as detailed in [17]

above, of $6,000 for loss of amenity arising from the loss of use of the car.

44. The total amount claimed by the applicants for damages was $17,230.37. The

Tribunal accepted all of the applicants’ evidence of their damages. The

respondent offered no evidence to contradict any of the applicants’ claims.

However, the Tribunal assessed the damages claimed by applicants at

$15,133.77. The legal costs claimed by the applicants was excluded.

45. The limit on civil dispute applications in the tribunal is $10,000.2 The applicants

sought damages in the sum of $10,000. The Tribunal accordingly entered

judgment for the applicants against the respondent in the sum of $10,000 plus

the filing fee of $130.00 and the search fee of $9.003 plus interest calculated in

accordance with the Court Procedures Rules 2006 from 13 August 2013 to date.

………………………………..Presidential Member E Symons

2 Section 18 of the ACT Civil and Administrative Tribunal Act 20083 Section 48 (2)(a)(i) and (ii) of the ACT Civil and Administrative

Tribunal Act 2008

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HEARING DETAILS

FILE NUMBER: XD 118/2016

PARTIES, APPLICANT: Stuart and Michelle Mitchell

PARTIES, RESPONDENT: Masters Home Improvement Australia Pty Ltd

COUNSEL APPEARING, APPLICANT N/A

COUNSEL APPEARING, RESPONDENT N/A

SOLICITORS FOR APPLICANT N/A

SOLICITORS FOR RESPONDENT No Appearance

TRIBUNAL MEMBERS: Presidential Member E Symons

DATES OF HEARING: 16 August 2016

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