A & M Righetti t/as Engine Master Australia v Celovic [2026] NSWCATAP 173

Catchwords: APPEALS – question of law – no question of principle – leave to appeal – no question of principle Civil and Administrative Tribunal New South Wales Medium Neutral Citation: A & M Righetti t/as Engine Master Australia v Celovic [2026] NSWCATAP 173 Hearing dates: 19 February 2026 Date of orders: 3 June 2026 Decision date: 03 June 2026 Jurisdiction: Appeal Panel Before: N Kennedy, Senior Member R C Titterton OAM, Senior Member Decision: (1) To the extent that the appeal raises a question of law, the appeal is dismissed. (2) To the extent that the appeal raises any other error, leave to appeal is refused and the appeal is otherwise dismissed. Catchwords: APPEALS – question of law – no question of principle – leave to appeal – no question of principle Legislation Cited: Civil and Administrative Tribunal Act 2010 (NSW), ss 41, 80; cl 12 of Sch 4 Civil and Administrative Tribunal Rules 2014 (NSW), r 25 Cases Cited: Carbery v Warringah Rugby Club Ltd [2021] NSWCATAP 153 Chapman v McLaughin [2016] NSWCATAP 212 Collins v Urban [2014] NSWCATAP 17 Efremov v NSW Health Administration Corporation [2026] NSWCATAP 34 Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 Nguyen v Nguyen [2025] NSWCATAP 238 NSW Land and Housing Corporation v Orr [2019] NSWCA 231 Ottaviano v Leculier [2026] NSWCATAP XX at [93]. Pholi v Wearne [2014] NSWCATAP 78 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Ramos Miguel Pty Ltd v Tinoco [2026] NSWCATAP 28 Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 Smith v NSW Land and Housing Corporation [2023] NSWCATAP 12 Tanwar Institute of Professional Studies Pty Ltd v Ruggeri [2025] NSWCATAP 326 Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 Texts Cited: Nil Category: Principal judgment Parties: A & M Righetti t/as Engine Master Australia (Appellant) George Celovic (Respondent) Representation: Solicitors: A Righetti (Appellants) Respondent (self-represented) File Number(s): 2025/00072898 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 17 January 2025 Before: J Alder General Member File Number(s): 2023/00445228 REASONS FOR DECISION Introduction This is an appeal from a decision made on 17 January 2025 of the Consumer and Commercial Division of the NSW Civil and Administrative Tribunal ( Tribunal ) in proceedings in matter 2023/00445228 ( Primary Decision ). On 17 January 2025, the Tribunal ordered the appellants to pay the respondent $5,000. The appellants believe that the Primary Decision was not fair or reasonable, and that any payment would be misconstrued as an admission of liability. For the reasons appearing below: to the extent that the appeal raises a question of law, the appeal is dismissed; to the extent that the appeal raises any other error, leave to appeal is refused and the appeal is otherwise dismissed. Background In matter 2023/00445228, by application filed 4 December 2023, the respondent sought an order that the appellants pay him $22,372.00. This sum represented the amount he had paid for a “ brand new 350 Chev blown motor ” ( engine ) he purchased from the appellants on 11 November 2017. In his application to the Tribunal, the respondent relevantly stated that: Due to work commitments my vehicle was parked up for 5 and a half years and has only been driven 1500kms since the new motor was put in. At the beginning of 2023, I opened up my own Motor Mechanic Workshop, trading as Lil Niks Mechanical Repairs, Batemans Bay, NSW. I started the 350 Chev Motor and it backfired. After inspecting the engine, I noticed it had a very bad leak at the inlet manifold. I then started stripping down and found that 4 inlet manifold gaskets had been used and the holes exhibit a noticeable disproportion in size. After further inspection the blower on the head, had no brand name on it, there are scratch marks on the blower blades, which should not be there if it was brand new fitted. I have photos of what I thought I had purchased and they do not match. After cleaning the manifold I placed it back on the heads and found that there was quite a large gap between the heads and inlet manifold. I have purchased another set of gaskets and I managed to try and make it reseal temporary. I have also looked into other inlet manifolds and tried a standard one (non blower) and it sealed perfectly. Therefore I believe that I haven't received what I had paid for. A hearing was held on 23 September 2024, and the Primary Decision published on 17 January 2025. The landlord’s materials Notice of Appeal The Notice of Appeal sets out the appellants ’ grounds of appeal as follows: 1. The engine was covered by a 12-month warranty which ended in November 2018. 2. The issues in question only became apparent after Mr. Celovic made his own performance modifications in October 2023, as evidenced by part invoices from our business and publicly available videos of him working on the engine. There is also clear evidence of the vehicle in regular usage, and in July 2023, Mr. Celovic contacted us stating the engine was running great before proceeding to order performance-enhancing parts. The issues only arose after he completed these modifications. 3. During the mediation meeting in March 2023, the tribunal member specifically advised Mr. Celovic not to touch or alter the engine whilst the case was pending. Despite instruction, Mr. Celovic proceeded to pull the engine apart and rebuild it prior to our NCAT case, effectively destroying any alleged evidence. 4. Mr. Marston's report was based solely on information provided by Mr. Celovic, and he never inspected the engine personally. When we challenged inaccuracies in Mr. Marston's report, he had to revise the documents to align with the correct details. Furthermore, Mr. Marston left during the NCAT trial and remained uncontactable, depriving us of the opportunity to ask questions or clarify any concerns. 5. There is no verified record of the true kilometres driven, as we had proven thousands more km's than Mr. Celovic claimed, nor of how the engine was serviced and maintained. This issue was raised during the proceedings. 6. We submitted extensive documentation proving multiple inaccuracies in Mr.Celovic's claims, backed by emails, photos, and videos demonstrating the vehicle's regular use. By contrast, much of Mr. Celovic's evidence was based on hearsay and informal handwritten invoices from 'friends'. 7. Despite the issues arising from Mr. Celovic's own modifications, we initially extended goodwill assistance, offering discounted parts to support him - which he denied. 8. We submitted statements from manufacturers and two Australian suppliers/importers confirming the authenticity and quality of the parts used. However, we were denied the opportunity to obtain an expert report on the engine, as Mr. Celovic retained possession. 9. During the hearings, Mr. Celovic repeatedly interrupted our team, significantly impacting our ability to present our case effectively. Despite multiple requests from the Tribunal Member to cease interruptions, his behaviour disrupted the flow of information and our ability to provide full responses. 10. As car enthusiasts, we understand the time and dedication required to properly maintain a classic vehicle. During the proceedings, Mr. Celovic claimed to change the oil every three months, which, given his stated lack of time to drive the vehicle, is unlikely to have been of any real benefit. The maintenance issues in question-including stale fuel, flat batteries, and loose bolts-are consistent with lack of use and improper upkeep. 11. While the original claim exceeded $20,000, we acknowledge that the Tribunal Member has considered our position and reduced the awarded amount to $5,000. However, given: • The significant period that has elapsed since the warranty expired, • The unauthorized DIY modifications made by Mr. Celovic, • The substantial time and costs we have incurred in correspondence and hearings, we do not believe this decision is fair or reasonable. 12. Furthermore, any payment would be misconstrued as an admission of liability. We stand by the fact that the issues only arose after Mr. Celovic made modifications to the engine. As such, we cannot be held responsible for defects resulting from DIY alterations. 13 [1] It is important to note that Engine Master Australia are a team of Engine Reconditioners, and have been operating since 1988 with many years of experience prior to this. We specialise in engine rebuilding, diagnosis & performance modifications every single day. 14 [2] The reports provided by Mr Celovic have been prepared by mechanics who do not specialise in engine building or reconditioning. The stated grounds of appeal are in fact a combination of submissions and grounds of appeal. Attached to the Notice of Appeal is a copy of the Primary Decision and correspondence between the parties. Submissions The appellants filed submissions in support of an application for a stay of the Primary Decision on 28 February 2025. Those submissions address the following topics: the respondent ’ s “ inconsistent and unreliable evidence ” ; the destruction of evidence by the respondent contrary to Tribunal instructions; issues stemming from the unauthorised modification of the engine by the respondent; the outcome (that is the Primary Decision) being unfair due to warranty expiry and unauthorised work; liability falling on the respondent “ due to his own decisions ” ; evidence of “ self-performed work ” by the respondent and “ warranty voiding ” . The appellants filed a 37 page bundle of materials on 10 June 2025. This bundle comprises: submissions (7 pages); “ supporting evidence and documentation ” , being 10 annexures of 30 pages in length. Of the 10 annexures, all were in evidence before the Tribunal. The respondent’s materials Reply to appeal The respondent filed a Reply to Appeal on 28 February 2025. Put simply, the respondent says that the appellants have raised no questions of law, and that the Primary Decision was fair and reasonable for the reasons given by the Tribunal, and supported by the weight of the evidence. In Annexure A attached to the Reply to Appeal, the respondent responds to the appellants ’ grounds of appeal set out above. Submissions The respondent filed five pages of submissions on 30 June 2025, further responding to the appellants ’ grounds of appeal. Attached to the submissions are five pages of negative social reviews of the quality of the appellants ’ services published on social media. This material was available at the time of the Tribunal hearing, but the respondent told us at the appeal hearing that he chose not to use it. In his words, “ I ’ m not going to dig up dirt ” . As this material appears to have been available at the time of the Tribunal hearing, but was not provided to the Tribunal for the purposes of that hearing, we have had no regard to that material. As the Appeal Panel stated in Ramos Miguel Pty Ltd v Tinoco [2026] NSWCATAP 28: 28 The usual authority in these applications is Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 ( Al-Daouk ), where the Appeal Panel stated: 23 … the test of whether evidence is reasonably available is not to be considered by reference to any subjective explanation from the party seeking leave but, rather, by applying an objective test and considering whether the evidence in question was unavailable because no person could have reasonably obtained the evidence. For example, in Owners SP 76269 v Draybi Bros [2014] NSWCATAP 20 at [114] the Appeal Panel refused leave because, although the appellant may not have been aware of the evidence (being an email), it could have obtained the evidence by summons. … 25 Further, to grant leave simply on the basis of whether a party had been unsuccessful in their attempt to obtain evidence would allow any party who has a personal excuse for not providing evidence otherwise reasonably available an opportunity to seek leave to appeal any decision of the Tribunal. Such an outcome would not promote finalisation of the real issues in dispute in a just, quick and cheap manner, as an opposing party would be liable to face a successful appeal and a rehearing merely because of the personal circumstances of the person who failed to procure necessary evidence. 26 In our opinion the intent of cl 12 of Sch 4 of the NCAT Act is to impose additional limitations on a party’s entitlement to seek leave to appeal under s 80(2) of the NCAT Act from a decision of the Consumer and Commercial Division. And, as the Appeal Panel stated in Chapman v McLaughin [2016] NSWCATAP 212 at [37]: … The point of limiting fresh evidence to that which was not reasonably available at the first hearing is to ensure finality of proceedings. This means that it is in the interests of justice for parties to put forward all of their evidence as best they can at the hearing, as otherwise, if they were free to add fresh evidence after a case was decided, the proceedings would run the risk of not being finalised until after many hearings. This principle is of particular importance in the Tribunal because of the provisions of s 36 of the Act. That section requires the Tribunal to proceed to decide cases justly, quickly and cheaply. (emphasis added) In the circumstances, we will not allow the respondent to rely on the social media “ posts ” in this appeal. Preliminary issue The Appeal Panel file for this appeal contains the Notice of Appeal and an Application for stay of Original Decision Pending Appeal ( Application for Stay ). Both documents are dated by the appellants as 31 January 2025. The Application for Stay bears a Tribunal date stamp of 21 February 2025. The Notice of Appeal bears no such date stamp, but our experience is that often both these documents are filed at the same time, and Ms Righetti confirmed that this was the case. A Notice of Appeal in a matter such as the present appeal must be filed within 28 days from the day on which the appellant was notified of the decision to be appealed or given reasons for the decision (whichever is the later): Civil and Administrative Tribunal Rules 2014 (NSW), r 25(4)(c). Therefore, if the Notice of Appeal was filed on 21 February 2025, this was more than 28 days after the appellants received the Primary Decision (and here we note that in the Notice of Appeal the appellants indicated that they had received the Primary Decision on 17 January 2025), and the Notice of Appeal was filed out of time. That means that that the appellants need an extension of time in which to file the Notice of Appeal pursuant to s 41 of the Civil and Administrative Tribunal Act 2010 (NSW) ( NCAT Act ). As we explained at the hearing, in granting an extension of time, the relevant factors for the Tribunal to consider are the length of the delay, the reason for delay, whether the applicant has a fairly arguable case; and the extent of any prejudice suffered by the respondent: see Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [22(3)]. We asked the parties to address these matters. Suffice it to say, the respondent opposed an extension of time being granted to the appellants. The appellants, who were represented at the hearing by their daughter Ms Ashley Righetti, explained that the appellants had lodged the Notice of Appeal on 31 January 2025, at their local Service NSW office (there being no Tribunal Registry in Albury). As we understand it, while lodged on that date, the Notice of Appeal was not formally accepted as the lodgement fee the appellants paid was the incorrect amount. Rule 25(2)(d) of the NCAT Rules provides that a notice of appeal must be accompanied by the applicable fee. On the evidence before us, it appears that while the appellants lodged the Notice of Appeal on 31 January 2025 and filed a filing fee, they paid an incorrect filing fee on the advice of Service NSW. We think that it is appropriate in those circumstances to treat the Notice of Appeal as being properly lodged on 31 January 2025 with the result that an extension of time is not necessary. In case we are incorrect in that conclusion, and an extension of time was required, we would have granted that extension. That is because the length of delay was relatively short, and the reason for the delay (being the acts of an officer of Service NSW) favour the granting of the extension of time. In addition, we see little real prejudice to the respondent. While the merits of the appeal do not favour an extension of time, balancing all these factors, and given that the appellants were self-represented, we would have extended the time for filing the Notice of Appeal. Nature of an appeal Section 80 of the NCAT Act sets out the basis upon which appeals from decisions of the Tribunal may be brought. That section states that an appeal may be made as of right on any question of law or with leave of the Appeal Panel on any other grounds (s 80(2)(b)). Question of law In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [13], the Appeal Panel set out a non-exhaustive list of possible questions of law giving rise to an appeal as of right: whether there has been a failure to provide proper reasons; whether the Tribunal identified the wrong issue or asked the wrong question; whether a wrong principle of law had been applied; whether there was a failure to afford procedural fairness; whether the Tribunal failed to take into account relevant (that is, mandatory) considerations; whether the Tribunal took into account an irrelevant consideration; whether there was no evidence to support a finding of fact; whether the decision was so unreasonable that no reasonable decision-maker would make it. These matters were clarified and expanded by the Appeal Panel in Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 ( Unique ). Relevantly, the Appeal Panel stated: 35 It has become commonplace for parties, and their lawyers, to simply copy from various items listed in Prendergast as questions of law and present them in a Notice of Appeal, without modification of clarification to meet the circumstances of the relevant appeal. 36 Commonly, that will be wrong. 37 What constitutes a question of law is vexed and context dependent in the sense that the distinction between matters of fact and of law may turn on the circumstances in which the question arises: Targeted Property Investments Pty Ltd v Look Up Technologies Pty Ltd (No 2) [2023] NSWSC 416 at [33(4)], citing Thomas and Naaz [2023] NSWCA 40 at [52] and Da Costa v The Queen (1968) 118 CLR 186 at 194; [1968] HCA 51. 38 For instance, a ground of appeal that raises the question whether there were adequate reasons may constitute an attack on the merits which would not raise a pure question of law. On the other hand, it may be a contention that the decision is unreasonable in the requisite sense or that the Tribunal failed to exercise the jurisdiction, which would likely raise a question of law: see the exposition of this issue in Wollondilly at [28]–[32]. Care must in any event be taken. As has been clarified by amendment to the NCAT Act since Prendergast was decided, the Tribunal is not required to give reasons for all decisions it makes: NCAT Act, s 62(2A; see too: New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 at [53]–[54], [109]–[114]. 39 Therefore, discernment and care must be taken to ensure the grounds relied upon by the appellant, properly understood, raise questions of law and arise in the proceedings; or whether leave is required. 40 In light of the above authorities, a question of law should be articulated with sufficient precision to allow an Appeal Panel to identify it as a pure question of law. (emphasis added) Have the appellants raised a question of law? In circumstances where an appellant is not legally represented, it is appropriate for the Appeal Panel to approach the issue by looking at the grounds of appeal generally, and to determine for itself whether a question of law has in fact been raised, subject to any procedural fairness considerations that might arise to the respondent to the appeal: Prendergast at [12]. Also see the various authorities on this issue referred to in Unique at [28]. Denial of procedural fairness We have examined the appellant ’ s materials and discussed this issue at the hearing. Paragraphs [8] and [9] of the appellants ’ grounds of appeal may raise questions of law, namely that the appellants were denied procedural fairness in the conduct of the hearing. As to par [8], namely that the appellants were denied the opportunity to obtain an expert report, we do not know whether or not this issue was raised before the Tribunal, either at the final hearing or in any directions hearing. Indeed, at the appeal hearing, we were told by Ms Righetti that the appellants considered that there was no need to obtain an independent expert report. Ms Righetti told us that there was “ no reason for us to get an expert report ” . In those circumstances, we see no error by the Tribunal on this question of law. As to par [9], namely the allegedly disruptive conduct of the respondent throughout the Tribunal hearing, we have not been provided with a copy of the sound recording of the hearing or a transcript of relevant parts of the hearing, despite directions to do so, which would have allowed us to determine whether or not the appellants ’ submission was made good. In the circumstances, we see no error by the Tribunal on this question of law. In this respect we note that, in earlier directions, the Appeal Panel made its usual order that if what happened at the Tribunal hearing was to be relied on by either party at the appeal, the party was to provide a sound recording of the Tribunal hearing together with a transcript of any relevant parts of the hearing for the purposes of the appeal. The appellants did not file the sound recording or a transcript as directed. In the circumstances, we see no error by the Tribunal on this question of law. At the appeal hearing, the appellants also submitted that they were not able to cross-examine the respondent ’ s expert Mr Marston as he left the Tribunal hearing and did not return. The respondent told us that there had been a power failure at the location from which Mr Marston was giving his evidence, and that was the reason why he “ dropped out ” of the hearing. Again, without the benefit of any transcript or sound recording, we see no substance in this ground of appeal. Inadequate reasons Finally, during the course of the hearing, the appellants submitted that the reasons of the Tribunal in the Primary Decision were inadequate. In particular, they submitted that they did not understand why $5,000.00 had been awarded, and what were the faults for which they were responsible. The test for whether or not reasons are inadequate was set out in the decision of the Court of Appeal of NSW in NSW Land and Housing Corporation v Orr [2019] NSWCA 231. Orr has been followed, as it must be, in many subsequent decisions of the Appeal Panel such as Carbery v Warringah Rugby Club Ltd [2021] NSWCATAP 153, Smith v NSW Land and Housing Corporation [2023] NSWCATAP 12 and more recently in Efremov v NSW Health Administration Corporation [2026] NSWCATAP 34. In Orr, Bell P (as the Chief Justice then was), with whom Ward JA (as the President of the Court of Appeal then was) agreed, identified the applicable principles as follows: 66. In the context of appellate review of the adequacy of reasons, the function of an appellate court is to determine not the optimal level of detail required in reasons for a decision but rather the minimum acceptable standard: Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at [48] (Resource Pacific). The standard is not one of perfection: Bisley Investment Corporation v Australian Broadcasting Tribunal (1982) 40 ALR 233 at 255 (Bisley). … 71. even in the less formal setting of a tribunal which has significant powers the exercise of which is capable of affecting the lives of citizens in profound ways, there are certain minimum characteristics that a Tribunal’s reasons must possess. These are really supplied, in relation to the Tribunal, by s 62(3) of the CAT Act which, as noted at [52] above, requires there to be set out in reasons (when requested by a party): (a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based, (b) the Tribunal's understanding of the applicable law, and (c) the reasoning processes that lead the Tribunal to the conclusions it made. 75. To like effect, in Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury [2014] NSWCA 112 at [46], Basten JA said: “Generally, the concept of ‘reasons’ requires an explanation connecting any findings of fact with the ultimate decision. Where the legal test to be applied involves an evaluative judgment, it may well not be practicable to provide a detailed articulation as to how specified (and conflicting) factors have been weighed in the balance; the scope of the obligation must recognise that constraint. (A different question arises if mandatory considerations have not been identified.)” (emphasis added) 76. What constitutes adequate reasoning on the part of a tribunal is also informed, in my opinion, by statements from well-known administrative law decisions relating to the limits of judicial review and the need for practical as well as principled restraint in that context: Pozzolanic at 287. 77. These principles include the following: (i) Decision-makers commonly express their reasons sequentially; but that does not mean that they decide each factual issue in isolation from the others. Ordinarily they review the whole of the evidence, and consider all issues of fact, before they write anything. Expression of conclusions in a certain sequence does not indicate a failure to consider the evidence as a whole”: Re Minister for Immigration and Multicultural Affairs, Re; Ex parte Applicant S20/2002 ; Appellant S106/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 30; 7 ALJR 1165 per Gleeson CJ at [14] (Ex parte Applicant); (ii) the court should not read passages from the reasons for decision in isolation from others to which they may be related: Re Maria Politis v Commissioner of Taxation [1988] FCA 739 at [14]; 20 ATR 108 at 111; (iii) the reasons must be read fairly and as a whole: Ex parte Applicant at [147] per Kirby J; Wu Shan Liang at 291; Bisley at 251; (iv) the reasons recorded ought not to be inspected with a fine tooth-comb attuned to identifying error: Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287; [1993] FCA 456 (Pozzolanic) at 287 ; Wu Shan Liang at 272, 291 ; (v) there should be a degree of tolerance for looseness in the language of the tribunal, unhappy phrasing of the tribunal's thoughts or verbal slips: Pozzolanic at 287, Wu Shu Liang at 272 and 291. The Primary Decision was 59 pages in length, numbering 337 paragraphs. It is clearly a thoughtful and considered document and structured, as set out in Annexure A to these reasons. We consider that the Tribunal conformed with the expectation to provide reasons that satisfied the minimum acceptable standard. Indeed, the reasons surpassed that standard. The structure of the Primary Decision was entirely orthodox, with the Tribunal summarising at length the parties ’ evidence, the relevant legal principles to be applied and applying those principles to make relevant findings of fact. We see no substance in the appellants ’ argument that the reasons for decision were inadequate. Accordingly, we see no error on this question of law. Conclusion We see no other question of law being raised by the appellants in their grounds of appeal. It follows that the appellants require leave to pursue their appeal. Leave to appeal on any other grounds Clause 12 of Sch 4 of the NCAT Act provides that, in an appeal from a decision of the Consumer and Commercial Division of the Tribunal, an Appeal Panel may grant leave to appeal only if satisfied that the appellant may have suffered a substantial miscarriage of justice because: the decision of the Tribunal under appeal was not fair and equitable; or the decision of the Tribunal under appeal was against the weight of evidence; or significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with). The principles to be applied by an Appeal Panel in determining whether or not leave to appeal should be granted are well settled. In Collins v Urban [2014] NSWCATAP 17, the Appeal Panel conducted a review of the relevant cases at [65]-[79] and concluded at [84](2) that: Ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed. Even if an appellant establishes that they may have suffered a substantial miscarriage of justice in the sense explained above, the Appeal Panel retains a discretion whether to grant leave under s 80(2) of the NCAT Act. An appellant must demonstrate something more than that the Tribunal was arguably wrong: Pholi v Wearne [2014] NSWCATAP 78 at [32]. As the Appeal Panel stated in Unique: 41 Where the ground of appeal does not raise a pure question of law, the appellant may seek leave to appeal. 42 The principles governing an application for leave to appeal under the NCAT Act are well ‑ established and are repeated in many decisions of the Appeal Panel, often quoting Collins v Urban [2014] NSWCATAP 17. They are the same principles applied by the courts. It is enough, as a summary, to refer to Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 at [28], where Gleeson JA (on behalf of the bench) said: Only if the decision is attended with sufficient doubt to warrant its reconsideration on appeal will leave be granted. Ordinarily, it is only appropriate to grant leave where there is an issue of principle, a question of general public importance, or an injustice which is reasonably clear, in the sense of going beyond what is merely arguable. It is well established that it is not sufficient merely to show that the trial judge was arguably wrong. (Citations omitted) 43 Further, as Basten JA said (White JA agreeing) in Hungry Jack's Pty Ltd v Fourtounas [2020] NSWCA 325 ( Hungry Jack’s ) at [9]: ... more is required than identification of error on the part of the trial judge, even if it can be said that the error is reasonably clear. Generally, the court will also need to be satisfied that there is a matter of some public importance engaged and that the costs of further litigation are not disproportionate to the amount in issue. Further, it should be established that, to leave any putative error uncorrected, would give rise to a substantial miscarriage of justice.” (Citation omitted) (1) Hungry Jack’s was cited approvingly in Amirbeaggi v Matrix Group Co Pty Ltd [2021] NSWCA 21 at [9]. We turn now to the landlord ’ s grounds of appeal which require leave. Consideration The gravamen of the appellants ’ concerns appear in par [11] of their grounds of appeal, where the appellants submit that the Primary Decision was not fair or reasonable. They submit there are three reasons for this submission. The first reason is because of the significant period that had elapsed since the warranty expired. This submission was expanded in oral submissions by Ms Righetti who emphasised, repeatedly, that the appellants only provided a one year warranty, yet the respondent was awarded damages in 2025 for a claim filed in 2023, in respect of an engine purchased in 2017. This issue was exhaustively considered by the Tribunal in the Primary Decision: in relation to s 79 of the FT Act, under the headings “ When does a cause of action first accrue? ” (par [234]), “ What are the elements of the cause of action under s 259(4)? ” (pars [235]-[236]), “ When does a cause of action first accrue under s 259(4)? ” (pars [237]-[252]), “ Findings – limitations ” (pars [254]-[265]), concluding at [265] that it was satisfied that the proceedings were commenced within three years from when "the cause of action giving rise to the claim first accrued" as that expression is used in s 79L(1)(a) of the FT Act. Consequently, the Tribunal found it had jurisdiction to determine this dispute; in relation to s 236 of the FT Act, under the headings “ What are the elements of the cause of action under s 236 (pars [268]-[269]), “ When did the [respondent ’ s] cause of action first accrue under s 226? ” (par [270]), “ Findings – limitations ” (pars [254]-[265]), concluding at [270] that, for the same reasons given for s 259(4), the cause of action under s 236 for misleading and deceptive conduct did not accrue until the respondent discovered the faulty gaskets in July 2023. The second reason for the submission that the Primary Decision was not fair and reasonable was because of the “ unauthorised DIY modifications ” undertaken by the respondent. In the absence of a sound recording or transcript, we are not persuaded that this matter was raised before the Tribunal. Or, if it was, how the issue was raised, what evidence was relied on and what submissions made. And we note that there is little in the Primary Decision which sheds any light on this matter. While this submission was made on a number of occasions by Ms Righetti in her oral submissions, it was not supported by any corroborative material. The third reason for the submission that the Primary Decision was not fair and reasonable was because of the “ substantial time and costs ” incurred by the appellants. We see nothing of substance in this submission. All litigation consumes a party ’ s time and causes costs, including the opportunity cost of a party not being able to pursue their usual work. We see nothing of substance in any of these submissions. Conclusion As the Appeal Panel noted recently in Tanwar Institute of Professional Studies Pty Ltd v Ruggeri [2025] NSWCATAP 326, and in words which we adopt in this appeal, it is difficult to escape the conclusion that the appellant is simply seeking to reagitate factual findings of the Tribunal that were available to it. As the Appeal Panel has stated on many occasions, an appeal does not simply provide a losing party in the Tribunal with the opportunity to run their case again: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10]; Nguyen v Nguyen [2025] NSWCATAP 238 at [40]; Ramos Miguel at [83]; Ottaviano v Leculier [2026] NSWCATAP 49 at [92]. And, as the Tribunal Guideline, Internal Appeals (November 2023) states at [4], generally, an appeal is not an opportunity to have a “ second go ” at a hearing. The application for leave to appeal is refused with the consequence that the appeal is otherwise dismissed. Accordingly: to the extent that the appeal raises a question of law, the appeal is dismissed. to the extent that the appeal raises any other error, leave to appeal is refused and the appeal is otherwise dismissed. Orders The Appeal Panel orders: To the extent that the appeal raises a question of law, the appeal is dismissed. To the extent that the appeal raises any other error, leave to appeal is refused and the appeal is otherwise dismissed. ********** Attachment A Structure of the Primary Decision Introduction (par [1]). Background and claim (pars [2]-[15]). Hearing procedural history and documents relied on (pars [16]-[26]) Facts ([27]-[72]). Evidence of quantum of loss (par [73]). [Respondent ’ s] evidence and submissions (pars [74]-[117], pars [110]-[117] summarising the evidence of the respondent ’ s expert, Mr David Marston. [Appellant ’ s] evidence (pars [118]-[156]); Jurisdiction under the Fair Trading Act and the Australian Consumer Law (preliminary comments) (pars [157]-[160]); Was the contract for the supply of goods or the provision of services or both (pars [161]-[168]). Are the [appellants] suppliers or manufacturers or both? (pars [169]-[181]). Guarantee as to acceptable quality – s 54 ACL (pars [182]-[184]). Guarantee as to fitness for purpose – s 55 ACT (par [185]). Cause of action against suppliers of goods – ss 259-263 ACL (pars [186]-[1978]). What is he [respondent ’ s] specific cause of action under s 259 – s 259(2) or s 259(3) or s 259(4)? (pars [198]-[212]). Misleading and deceptive conduct (pars [213]-[218]). Jurisdiction under the Fair Trading Act NSW and ACL (pars [219]-[230]. Limitation Issues - section 79L FTA (pars [231]-[233]). When does a cause of action first accrue? (par [234]). What are the elements of a cause of action under s 259(4)? (pars [235]-[236]). When does a cause of action first accrue under s 259(4)? (par [237-[265]). Action for misleading and deceptive conduct (pars [266]-[267]). What are the elements of the cause of action under s 236? (pars [268]-269]). When did the [respondent ’ s] cause of action first accrue under s 236? (par [270]). Section 54 – legal principles (pars [271]-[272]). Defences to supplier (pars [273]). Section 18 – legal principles (pars [274]-[277]). Was there a breach of s 54? (pars [278]-[301], including at [290]-[301] “ Defences to s 54. The super charger issue (pars [302]-306]. Were the damages reasonably foreseeable? (pars [307]-[312]). Assessment of damages/mitigation – claim for 29 engine parts - $20,577.28 (pars [313]-[330]). Costs of expert witness - $3,245 (pars [331]-[333]). Section 18 ACL (pars [334]-[336]. Endnotes 1. Paragraph numbering added by the Appeal Panel. 2. Paragraph numbering added by the Appeal Panel. 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 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 June 2026