Ace Action Motors Pty Ltd v Hoblos

Notice of Appeal

1. Ace Motors' grounds of appeal are set out in its Notice of Appeal. The Notice states: "No evidence that payment of $6,900 was made, nor provided by the Respondent. No invoices, receipt, electronic transfer of document was provided.
2. The Notice of Appeal states that the decision of the Tribunal was not fair and equitable because the decision was: 1. made without any valid evidence provided by either party, and 2. against the weight of the evidence.
3. By virtue of these grounds it is apparent that the appellant seeks leave of the Appeal Panel to bring this appeal.
4. Attached to the Notice of Appeal is a statutory declaration of Mr Ali Alskaf sworn 18 June 2015. Mr Alskaf, who is the owner of Ace Motors. He appeared before the Tribunal. He swears that he: sold the vehicle for $2,000 invoice to proof that as well a tax invoice for the motor of $700. Total received was $2700 for the Toyota RAV4 Rego: YRQ 129 not $6,900."
5. Ms Hoblos filed a Reply to Appeal on 22 July 2015. She summarised the evidence that was presented to the Tribunal, notes that Ace Motors was represented at that hearing, and submits that Ace Motors has failed to meet any of the leave requirements set out in clause 12 of Schedule 4 of the Civil and Administrative Tribunal Act.

Evidence and submissions

1. Ace Motors filed its notice of appeal on 18 June 2015. At a directions hearing on 10 July 2015 various directions were made, including relevantly that Ace Motors file and serve an outline of written arguments and material to be relied on by 21 July 2015. The appellant did not file any evidence, (other than a road map), and chose to rely on the documents filed by the respondent, which was the evidence she relied at the Tribunal hearing.
2. Each party filed written submissions and provided oral submissions at the hearing.
3. The appellant submitted that the respondent and her husband had travelled to Melbourne immediately after the purchase of the vehicle, and that whilst the respondent's brother-in-law identified noises in the vehicle of the engine, he did not give evidence in support. Secondly, the appellant submitted that the respondent claimed the vehicle had been inspected in Melbourne, but no inspection report was provided from any mechanic in Melbourne. However, a RTA inspection reported dated 15 January 2015 showed that the vehicle had "passed" inspection on 2 January 2015. Thirdly, the appellant submitted that the various reports relied on by the respondent were dated three weeks after the RTA inspection report.
4. The appellant also maintained that there was no documentary evidence to support the respondent's claim that she paid $6,900 for the vehicle, in that the documents only substantiated a payment of $5,700.
5. The appellant maintained that the sale price of the vehicle was $2,000, and that no warranty was provided with the vehicle.
6. In answer to these claims, the respondent, through her interpreter, said that no report was obtained from Melbourne, concerning the condition of the vehicle, because she arrived at the garage late in the day. The mechanic informed her however that something was wrong with the vehicle, and that she then rang the appellant repeatedly. Her telephone records show that between 6 January and 16 January 2015 she rang the appellant on 17 occasions.
7. As to absence of a statement of her brother-in-law, the respondent stated that he resided in Melbourne, and that it was too costly to being her to the hearing in Sydney.
8. As to the mechanics' reports being provided after the RTA inspection, the respondent points out that the RTA inspection was carried out at a cost of $27.40, and that the Tribunal could readily infer that the inspection was not a thorough inspection.
9. Finally, the respondent relied on Burton v Chad One Pty Ltd [2015] NSWDC 301, "in support of her submissions". Mr Attia submitted that the decision was authority for the proposition that a vehicle could be found to be not of merchantable quality even if it was found to be so some months after its purchase. We doubt that authority is needed for that proposition. In any event, we doubt that Burton provides that authority. Burton was an appeal from the then Consumer, Trader and Tenancy Tribunal. The Tribunal had dismissed an application brought by a consumer involving the purchase of a vehicle with a Form 8 "no warranty". The District Court found that the Tribunal erred in its construction of s 54(3) of the ACL. (We note that the matter was remitted to the Tribunal. Again the Tribunal dismissed the applicant's claim. Again, he appealed. This time the Appeal Panel allowed the appeal: Burton v Chad One Pty Ltd [2015] NSWCATAP 88. It held that the Tribunal had erred in rejecting an expert report.)

Consideration

1. This is an appeal. Section 80 of the Civil and Administrative Act 2013 (the Act) sets out the bases upon which appeals from decisions of the Consumer and Commercial Division may arise. 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.
2. Clause 4 of Schedule 12 of the Act states that an Appeal Panel may grant leave only if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because: 1. the decision of the Tribunal under appeal was not fair and equitable, or 2. the decision of the Tribunal under appeal was against the weight of evidence, or 3. significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
3. This Tribunal is not bound by the rules of evidence: see s 38 of the Act. The Tribunal member had before him the oral evidence of respondent and of the appellant. It is implicit in the findings that the Tribunal member found the appellant knew that the respondent wished to purchase the vehicle to be suitable, at least for a trip to Melbourne; that there were discussions concerning the condition of the vehicle, and that to allay the concern of the respondent relating to the extensive use of the vehicle of over 300,000 kilometres, the appellant agreed to provide a replacement motor.
4. As to the cost of the vehicle, the respondent stated that she paid a total of $6,900 to the appellant for the vehicle, the replacement motor and a roof rack. The appellant maintained that the appellant paid $2,000 for the vehicle.
5. The Tribunal member preferred the evidence of the respondent, which in the main, was supported by bank records. The appellant did not produce any bank records showing the deposit of monies for the purchase of the vehicle.
6. The appellant relied on a document, namely the Notice of Sale, apparently provided to the respondent by the appellant. It records a cash price for the vehicle of $2,499 in Part 1, but $2,000 in Part 3. The Tribunal member accepted the evidence of the respondent that she was told by the appellant to nominate a price of $2,000 in order to save stamp duty. The Tribunal member must have concluded that the sale price in the Notice of Sale was incorrect and did not, therefore, reflect the actual price paid for the vehicle.
7. It was these findings that the Tribunal member made that led him to the conclusion that the respondent paid $6,900 for the vehicle, which included a replacement engine at a cost of $700, and the roof rack.

Warranties

1. As to warranties, whilst the appellant clams that the vehicle was sold on the basis of "no warranty", its understanding is incorrect. Since the enactment of the Australian Consumer Law (ACL) warranties which were previously applicable under State legislation, here relevantly the Motor Dealers Act 1974 (NSW), no longer apply. As The Australian Consumer Law - A guide to provisions, a publication of the Commonwealth Government, states (see http://www.consumerlaw.gov.au/content/the_acl/downloads/A_guide_to_provisions_Nov_2010.pdf): The ACL introduces a new national law guaranteeing consumer rights when consumers acquire goods and services. The ACL replaces the existing national, State and Territory laws on implied conditions and warranties with a single national system of statutory consumer guarantees. . . . Guarantees relating to the supply of goods The ACL creates a basic set of protections for consumers who acquire goods from Australian suppliers, importers or manufacturers. These guarantees apply if goods are supplied in trade or commerce. They do not apply to private sales by individuals to other individuals or businesses. They also do not apply to sales made by way of a traditional auction where an auctioneer acts as an agent for a person to sell goods. They would, however, apply to sales made by businesses on the internet by way of online 'auction' websites when the website operator does not act as an agent for the seller. Second-hand goods are also covered by consumer guarantees.
2. The ACL now relevantly imports statutory warranties, including the warranty in s 54 of the ACL that goods must be of 'acceptable quality', and the warranty in s 55 that goods must be reasonably fit for a purpose that a consumer, expressly or by implication, makes known to the supplier or manufacturer.
3. As to s 54, acceptable quality is defined in s 54(2) of the ACL, such that goods are of acceptable quality if they are fit for all the purposes for which goods of that kind are commonly supplied; acceptable in appearance and finish; free from defects; safe; and durable.
4. This definition is subject to a 'reasonable consumer' test, such that goods are considered to meet those standards if a reasonable consumer, who is fully acquainted with the state and condition of the goods, would regard them as acceptable. In determining whether goods are of "acceptable quality", a number of issues need to be considered: the nature of the goods, the price of the goods (if relevant), any statement made about the goods on any packaging or label on the goods, any representation made about the goods by the supplier or manufacturer of the goods and any other relevant circumstances relating to supply of the goods.
5. On the evidence before the Tribunal, the sale was one to which the ACL applied as it was one made in trade or commerce. Further, as contained in the several mechanics' reports, the subject vehicle was neither free from defects, nor was it of acceptable quality. The material established that the replacement engine has a bottom end knocking noise, vibration, shaft wear, oil leaks and needs replacing. Also, there was evidence of excessive play and movement in the suspension requiring new shock absorbers and new sway bar links. There was a rear deferential bush apparently broken which is described as a safety issue, and an inoperative passenger door lock.
6. On the appeal, no new evidence was adduced by the appellant which might have cast doubt on the Tribunal's findings concerning the quantum of the purchase price, nor upon the condition of the vehicle. Accordingly, the factual challenge to the contract price must fail.
7. As to the no warranty claim, this also fails for the reasons set out above.

Costs

1. The respondent applied for costs on the basis that the appeal was devoid of merit. We concur with that submission and will award the costs of the appeal pursuant to s 60(3)(e) of the Act as the appeal lacked substance.

Conclusion

1. In the circumstances, we are not satisfied that the appellant may have suffered a miscarriage of justice. In our view, the decision was clearly available to the member, who made careful and detailed findings, based on the evidence before him. He clearly accepted the sworn oral evidence of Ms Hoblos and her husband in relation to the payment of $6,900, in preference to the evidence of Mr Alskaf. The amount of $2,000 referred to in the Notice of Sale and in the receipt issued by the appellant was obviously not accepted by the Tribunal Member as reflecting the true sale price.
2. For leave to appeal to be granted, an appellant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact. Ordinarily it is appropriate to grant leave to appeal only in matters that involve issues of principle, questions of public importance or matters of administration or policy which might have general application, an injustice which is reasonably clear, a factual error that was unreasonably arrived at and clearly mistaken; or that the Tribunal went about its fact finding process in such an unorthodox manner that it produced an unfair result.
3. To encompass all the submissions of the parties, we will grant leave, but find that appeal has no merit. The appeal must therefore be dismissed. The appeal is lacking in substance, and has no tenable basis.
4. The stay of the order of the Tribunal is lifted.

Orders

1. The Appeal Panel orders that: 1. Leave to appeal is granted. 2. The appeal is dismissed. 3. The stay of the order of the Tribunal of 1 June 2015 is lifted. 4. The appellant is to pay the respondent's costs of appeal. I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Principal Registrar 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

Amendments 06 October 2015 - Pursuant to Section 63 of the Civil and Administrative Act 2013 orders published on 21 September 2015 are amended to read as follows:

(3) The stay of the order of the Tribunal of 1 June 2015 is lifted.

(4) The appellant is to pay the respondent's costs of appeal. 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: 06 October 2015