VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
civil DIVISION
civil claims LIST	
vcat reference No. C7020/2020	

APPLICANT	Parminder Singh Jandu (ABN: 32 950 350 430) aft Jandu Family Trust	
RESPONDENT	Patterson Cheney Pty Ltd (ACN: 005 805 247) t/as Westar Truck Centre 	
WHERE HELD	Melbourne	
BEFORE	Senior Member S. Moraitis	
HEARING TYPE	Videoconference Hearing	
DATE OF HEARING	25 November 2021	
DATE OF order	23 December 2021	
DATE OF WRITTEN REASONS	
19 January 2022	
citation	Parminder Singh Jandu v Patterson Cheney Pty Ltd (Civil Claims) [2022] VCAT 70	
Orders

1.	The application is dismissed.

S. Moraitis
Senior Member			

APPEARANCES:		
For Applicant:	Mr P Jandu, by Zoom 	
For Respondent:	Mr. S. Sell, Service Manager, by Zoom
Mr. J. Spizzeri, Managing Director, by Zoom	

Reasons
BACKGROUND
1	The hearing of this claim proceeded before me on 25 November 2021. At the conclusion of the hearing, I reserved my decision and advised the parties that I would deliver my decision with reasons in writing, which I now provide.
THE CLAIM
2	On 17 December 2020, the applicant filed the VCAT application seeking a refund from the respondent (Westar) for repairs to his Isuzu truck. Specifically, he sought a refund of $9,922.00 for a transmission rebuild performed in 2019, a refund of $2,052.00 for the cost of repairing the gear selector and wiring harness in June 2020 and reimbursement of $3,026.00 for the cost of truck hire for the days the truck was in for repairs and could not be used in the applicant’s business.
3	At the hearing on 25 November 2021, the applicant abandoned the claim for the cost of truck hire and stated that he claimed a refund of $11,974.00 for repairs only ($9,922.00 for the 2019 rebuild and $2,052.00 for the 2020 repairs).
4	The applicant maintained that he is entitled to a refund because the rebuild and the repairs were not performed in a careful, skilful and workmanlike manner since Westar did not properly diagnose underlying issues or address fault codes when they repaired the truck. He maintained that, had the underlying issues been properly diagnosed, the rebuild and repairs he paid for would not have been necessary.
5	He further claimed that the history of the truck and the number of repairs done under warranty and out of warranty after the 2015 and the 2019 rebuilds suggests that rebuilds and the repairs were not performed with due skill and care.
THE FACTS NOT IN DISPUTE
The following facts were not in dispute at the hearing:
6	The Isuzu truck was sold new to a previous owner in 2010.
7	In May 2015, Westar rebuilt the transmission for the previous owner (the 2015 rebuild). The rebuild came with a 3-year warranty on parts and labour. At the time of the 2015 rebuild, the truck had an odometer reading of 330,591 km.
8	Some two weeks after the 2015 rebuild, Westar repaired the transmission under warranty. The service records show that the clutch and the pump were replaced. The odometer reading at this repair was 330,959 km, having travelled 368 kilometres since the 2015 rebuild.
9	A routine 60,000 km transmission service was due in May 2015. Neither the applicant not the respondent was able to produce any evidence that the previous owner performed this service.
10	In September 2016, Westar again repaired the transmission under warranty. The odometer reading at this repair was 450,397 km, having travelled 119,806 kilometres since the previous repair in May 2015.
11	In March 2017, Westar again repaired the transmission under warranty. The odometer reading at this repair was 487,048 km, having travelled 36,651 kilometres since the previous repair. The service records show that the clutch and the pump were replaced again.
12	A routine 60,000 km transmission service was due in March 2017. Neither party was able to produce any evidence that the previous owner performed this service.
13	In November 2017, the applicant purchased the truck from the previous owner. The odometer reading on the date the applicant purchased the truck was approximately 560,000 to 570,000 km.
14	During the purchase negotiations, the previous owner advised the applicant that Westar had rebuilt the transmission in May 2015 and explained that the rebuild came with a 3-year warranty. The applicant understood and accepted that the transmission had been rebuilt before he purchased the truck.
15	The truck had travelled over 241,000 kilometres from the date of the 2015 rebuild in May 2015 to the date the applicant purchased the truck in November 2017.
16	In April 2018, the applicant took the truck to Westar to repair the transmission under warranty. The service records show that the clutch failed. Westar performed these repairs under warranty. The odometer reading at this repair was 605,835 km, having travelled 118,787 kilometres since the repairs performed in March 2017 for the previous owner.
17	A routine 60,000 km transmission service was due in May 2018. The applicant provided no evidence to establish that he serviced the transmission at this time.
18	In May 2018, the 3-year warranty on the 2015 rebuild expired.
19	A routine 60,000 km transmission service was due in December 2018. The applicant admitted to not having performed this service due to the heavy reliance on the truck for his food delivery business during the busy Christmas season. The applicant stated that he needed the truck for deliveries 7 days a week and could not take it off the road.
20	On 29 January 2019, the applicant took the truck to Westar complaining about its performance. Westar identified defects with the engine and the transmission and brought them to the applicant’s attention. The applicant did not authorise any repairs at this stage. At the time, the odometer reading was 679,376 km.
21	On 16 February 2019, the applicant instructed Westar to rebuild the transmission (the 2019 rebuild). The 2019 rebuild cost the applicant $9,922.00 and came with a 3-year warranty on parts and labour. The odometer reading at this time was 679,442.
22	On 24 April 2019, the applicant took the truck to Westar complaining about the gears not changing properly. Westar’s diagnostic check identified an engine issue. The applicant did not authorise any engine repairs. The odometer reading was 696,587 km, some 17,145 kilometres since the 2019 rebuild two months earlier.
23	A routine 60,000 km service was due in or about October 2019. On 6 October 2019, the applicant serviced the engine and the transmission at Sidhu Automobile Services, his own preferred mechanic. The Sidhu invoice dated 6 October 2019 records “Engine Service parts and labour $410.00. Diff Service $150.00. Transmission both sides service $270.00. Total $830.00 plus $83.00 GST”. The odometer reading recorded on the invoice was 737,588 km, some 41,001 kilometres after the engine defects were identified by Westar on 24 April 2019.
24	A routine 60,000 km service was due in or about April 2020. On 4 April 2020, the applicant serviced the engine and the transmission at Sidhu Automobile Services. The Sidhu invoice dated 4 April 2020 records that an engine service was performed, and the transmission was serviced “including oil + labour + relearn the trans”. A call out fee for a breakdown is also recorded. The repairer further observed that “Sump plug has issues. Rocker cover is leak. Front tyres from edges worn out”. The odometer reading recorded on the invoice was 795,703 kms.
25	On 17 June 2020, Westar performed repairs on the truck that were due to an electrical fault. A pump was also replaced. These repairs were done under the 2019 rebuild warranty. A faulty gear selector and wiring harness was also diagnosed and repaired. These repairs were not performed under the 2019 rebuild warranty and cost the applicant $2,052.00. The odometer reading at this time was 813,214 km, some 133,772 kilometres after the 2019 rebuild.
26	On 17 December 2020, the applicant filed the VCAT application.
27	Since the truck was purchased by the applicant in November 2017, it has travelled over 400,000 km (over 100,000 km per year). By the date of the hearing (25 November 2021) the odometer reading on the truck exceeded 958,000 km.
THE FACTS IN DISPUTE
28	The applicant gave evidence that, when he received the respondent’s discoverable documents in this proceeding, he noted fault codes recorded in Westar’s service records. The applicant maintained that the respondent did not action these fault codes when they appeared during the various repairs performed by Westar. The applicant claimed that, as a consequence, Westar failed to address underlying issues. He maintained that had Westar actioned the fault codes when they appeared, the repairs would not have been necessary.
29	The applicant further maintained that the repeated issues with the transmission and the number of repairs performed to the transmission both under warranty and out of warranty suggests that the respondent failed to diagnose problems that made the 2019 rebuild and the 2020 repairs necessary.
30	The applicant did not provide any expert evidence to support his assertion that the rebuild and the repeated repairs under warranty and out of warranty were due to the failure to properly diagnose underlying issues or properly perform repairs.
31	The respondent vigorously disputed the applicant’s allegations. The respondent called Rowan Carter, Consultant Mechanical Engineer, as an expert witness. Mr Carter tendered his report dated 11 November 2021 and gave evidence before me.
32	Under oath, Mr Carter adopted the contents of his report and gave evidence summarising it. Having examined the respondent’s detailed service records, Mr Carter concluded that the works performed by Westar were completed with all due skill and care.
33	Mr Carter relied on the invoices provided to him by the respondent. Upon reviewing the invoices, he found them to be detailed and professional. They outlined the process followed, the findings and recommendations, and they indicated that the technician was experienced and used the appropriate tools and methods to diagnose and repair the transmission.
34	Mr Carter extrapolated on each of the repairs done by the respondent for the applicant as follows:
(a)	In relation to repair number 1 (performed under the 2015 warranty in April 2018), the invoice records that the transmission failure was identified as a failed converter lock-up solenoid. Mr Carter concluded that this was likely caused by the failure to properly service the transmission rather than poor workmanship.
(b)	In relation to repair number 2 (the investigation on 29 January 2019), the invoice records that the oil level was slightly low, metal was found in the oil and sludge in the transmission filter. The invoice records defects and recommendations as follows: “Engine sump leaking oil. Oil cooler leaking coolant. Transmission has oil contamination. Metal in oil. Transmission requires repair.” The invoice also records that the “Customer did not approve repairs”, therefore no repairs were done at that time.
(c)	In relation to repair number 3 (the rebuild in February 2019), Mr Carter reports that the truck travelled 348,851 kilometres since the 2015 rebuild done by the respondent for the previous owner. This distance, he observed, exceeded the distance the truck had travelled before the 2015 rebuild. The invoice records that the technician identified oil and sludge in the transmission filter, which is usually due to lack of regular servicing and/or use of incorrect grade of oil and/or operating the truck whilst being defective. The invoice also records that, at the time, Westar identified other defects with the engine, however the recommended repairs to the engine were not authorised by the applicant.
(d)	In relation to repair number 4 (performed in June 2020) the invoice recorded that the repair was the result of an electrical problem with the gear selector and the associated wiring loom and “therefore not related to repair # 3 when the transmission was rebuilt”. As a result, Mr Carter concluded, the repairs in June 2020 would not have been covered by the 2019 transmission rebuild warranty. Mr Carter further concluded that the truck would not have travelled over 134,000 kms after repair number 3 if those repairs were not carried out in a professional and workmanlike manner.
35	In conclusion, Mr Carter commented as follows:
(a)	Regular servicing of the truck by an authorised Isuzu dealer would have mitigated the extent of repairs required to the transmission.
(b)	The repeated transmission-related repairs necessary to the truck were most likely caused by a failure to properly maintain and service the transmission and the type of stop-start usage common in trucks used for deliveries, as it was in this case.
(c)	The reason for the reduced service life of the clutch is likely to be external to the transmission and related to a lack of proper maintenance and/or severe operating conditions.
(d)	Westar has honoured the transmission warranty when the terms of the warranty may have been breached by the applicant not performing the required 60,000 km transmission services and operating the truck whilst defective.
(e)	The average lifespan of a transmission reconditioning is approximately 150,000 kilometres. A transmission rebuild which exceeds that range must necessarily have been performed with due skill and care.
(f)	The truck is now eleven years old and has travelled over 950,000 kilometres, which is a high mileage.
(g)	The lack of evidence relating to servicing and repairs suggests that the truck was not properly maintained between the repairs performed by Westar.
FINDINGS
Did Westar fail to perform the 2015 rebuild with due skill and care? Is the applicant entitled to a refund of the 2019 rebuild?
36	The applicant seeks a refund of the cost of the 2019 rebuild ($9,922.00) on the grounds that Westar failed to diagnose underlying issues when they did repairs under the 2015 warranty. As a result, he maintained, he incurred this cost unnecessarily.
37	The 2019 rebuild was done 348,851 kilometres after the 2015 rebuild. The applicant failed to adduce any evidence as to the service history of the truck from the date of the rebuild in May 2015 to the date he purchased the truck in November 2017. Instead, he merely asserted that the repairs performed under warranty for the previous owner were, in themselves, evidence of the fact that the repairs were not performed with due skill and care. He did not specify how the respondent failed to properly repair the truck, other than to state that they failed to diagnose underlying issues.
38	The applicant failed to address the issue of the previous owner’s usage of the truck or its pre-2017 service history. It is clear from the odometer readings that, from the date the truck was bought new in 2010 to the date the truck was sold to the applicant in 2017, the previous owner travelled between 560,000 to 570,000 kilometres in the vehicle.
39	The truck requires transmission servicing every 60,000 kilometres. For the truck to have been properly serviced and maintained, the previous owner must have performed nine transmission services during the period of his ownership. The applicant, however, produced no record of any services performed by the previous owner. He did not call the previous owner to give evidence nor did the applicant provide evidence in the form of a service handbook or invoices.
40	Interestingly, the applicant was able to provide records of the repairs done by Westar for the previous owner under the 2015 warranty. He chose to focus on those repairs in a vacuum, completely ignoring the fact that no evidence was adduced of any scheduled 60,000 km transmission services.
41	I am not satisfied that the applicant has established on balance that the previous owner properly maintained and serviced the transmission. I consider it more probable than not that, had the service history been available or recorded, it would have been adduced in evidence. I consider it more probable than not that service records could not be produced because the previous owner failed to properly maintain and service the transmission, which contributed to the need for the three repairs for the previous owner under the 2015 warranty. I find that the applicant selectively presented evidence which suited his narrative and avoided addressing the overall service and maintenance regime of the previous owner.
42	In regard to the applicant’s own maintenance and servicing regime, he failed to adduce any evidence that the routine 60,000 km transmission service due in May 2018 was performed. Furthermore, the applicant admitted to not servicing the transmission when it was due in December 2018. It is not in dispute that the applicant did not authorise repairs in January 2019 when they were recommended but instead authorised the transmission rebuild in February 2019.
43	I am comfortably satisfied that the applicant did not perform the scheduled transmission services in May 2018 and December 2018. The applicant admitted to not servicing the truck in December 2018 because he was busy. The applicant provided no evidence of any services until October 2019, almost 2 years from the date he purchased the truck. The only records he produced for the period November 2017 to February 2019 were those of the repairs performed by Westar under the 2015 warranty, the diagnosis by Westar of issues in January 2019 and the record of the February 2019 rebuild. There is no evidence of any transmission services between those dates.
44	Furthermore, the applicant presented no expert evidence to examine the service records, interpret the fault codes noted on them or establish that the respondent failed to address any fault codes when they did appear. I find that the applicant did not establish on balance that the respondent failed to action any fault codes or address any underlying issues.
45	In presenting his evidence, the applicant appeared to ignore the significance of the fact that the truck travelled 348,851 kilometres from the 2015 rebuild to the date of the 2019 rebuild. On this point, I find the expert evidence of Mr Carter compelling. According to Mr Carter, the average lifespan of a transmission reconditioning is approximately 150,000 kilometres. In Mr Carter’s opinion, a transmission rebuild which exceeds that range must have been performed with due skill and care. In this case, the truck travelled 330,591 km from the time it was brand new until Westar rebuilt the transmission in 2015. It then travelled a further 348,851 km until the 2019 rebuild. Both rebuilds lasted twice the lifespan of the average transmission rebuild. Indeed, the transmission rebuilt by Westar in 2015 travelled more kilometres than the original brand-new transmission. I am comfortably satisfied that the truck could not have travelled 348,851 km if Westar had not performed the 2015 rebuild with due skill and care.
46	Similarly, I am satisfied that all repairs done under the 2015 warranty were performed with due skill and care. With one exception, the truck travelled a very high number of kilometres between each warranty repair. That exception is the 2015 repair which was performed for the previous owner under warranty two weeks after the 2015 rebuild, when the truck had only travelled 368 kms. The relevant invoice records that the clutch and the pump were replaced, however, no other evidence was adduced by either party regarding the circumstances surrounding this repair. Therefore, I am not satisfied that the applicant has established that this repair was caused by any failure of the respondent.
47	After that repair, the truck travelled 119,806 kilometres until the second warranty repair in September 2016 and a further 36,651 kilometres until the third warranty repair in March 2017. By the time the warranty repair was performed for the applicant in March 2018, the truck had travelled another 118,787 kilometres from the previous warranty repair.
48	Mr Carter gave evidence that the truck could not have travelled such distances between repairs had the repairs not been performed with due skill and care. He further concluded that it is more likely that these types of failures were the result of not having the transmission serviced properly. I find these conclusions compelling and consider them the best evidence before me of the cause of these recurring warranty repairs.
49	I am satisfied on the balance of probabilities that the applicant’s failure to properly maintain and service the transmission substantially contributed to the need for the 2019 transmission rebuild.
50	Furthermore, I find that the applicant did not establish on the balance of probabilities that Westar failed to perform the 2015 rebuild with due skill and care or failed to properly repair the truck under the 2015 warranty. I am therefore not satisfied that the 2019 rebuild was necessitated by any failure of the respondent.
51	Accordingly, the applicant is not entitled to a refund of $9,922.00 for the 2019 rebuild.
Were the June 2020 repairs caused by the respondent’s failure to diagnose underlying problems during the 2019 rebuild?
52	The invoice for the works performed in June 2020 records that the repair was the result of an electrical problem with the gear selector and the associated wiring loom. Mr Carter concluded that these repairs were “therefore not related to repair # 3 when the transmission was rebuilt” and, as a result, these repairs would not have been covered by the 2019 transmission rebuild warranty.
53	This is the best evidence before me regarding the cause of these defects. The applicant provided no evidence to establish that the repairs were cause by any failure of a previous Westar repair or any failure by Westar to properly diagnose the issue.
54	I am satisfied that the repairs undertaken in June 2020 were not caused by any failure of the respondent to properly diagnose or repair and were not related to the 2019 rebuild. I am satisfied that the truck would not have travelled over 134,000kms after repair number 3 if those repairs were not carried out in a professional and workmanlike manner. Accordingly, I find that the applicant was not entitled to those repairs to be done for free under warranty and is not entitled to a refund of $2,052.00.
55	I therefore dismiss the application.

S. Moraitis
Senior Member