G K Burton SC, Senior MemberM Tyson, Senior Member
Catchwords
CONSUMER LAW – consumer guarantees – supply of goods –
alleged non-fitting tyre rims not fit for specified purpose
and not matching
description – alleged proxy purchasing service – alleged compliance
Source
Original judgment source is linked above.
Catchwords
CONSUMER LAW – consumer guarantees – supply of goods –alleged non-fitting tyre rims not fit for specified purposeand not matchingdescription – alleged proxy purchasing service – alleged compliancein sourcing tyre rims with consumerinstructions – service not supply ofgoods – service alleged to have been performed in accordance with
Wilson v Chan & Naylor Parramatta Pty Ltd atf Chan & Naylor Paramatta Trust [2020] NSWCA 62
[31]
Airparts Australia Pty Ltd t/as Airparts Auto Trading Concept (Appellant)
[32]
We have decided, for the reasons below, to refuse leave to appeal (to the extent that leave is required) and to dismiss the appeal.
No leave for legal representation on the appeal appears to have been sought and the parties represented themselves at the appeal hearing. We have made no costs orders.
[33]
Background, issues, procedure, primary decision
[34]
In their application filed 27 September 2024 the respondents to the appeal (who were then the applicants, Mr Zhu and Frontline) (the consumers) sought from the appellant (Airparts) a refund of $7,000 paid for tyre rims (interchangeably called wheels in the parties' documents) to retrofit to a Porsche 981 Boxster, on the bases that the rims supplied did not match the description on the invoice and "The seller misrepresented that the supplier's goods (the rims) would fit the car. However, the wheel's measurements were so far out that it would not fit on the vehicle".
The claim was based on alleged breach of the consumer guarantees in the Australian Consumer Law (Sch 2 to the Competition and Consumer Act2010 (Cth)) that were made part of NSW law by s 28 of the Fair Trading Act 1987 (NSW) (FTA) under the name Australian Consumer Law (NSW) (ACLNSW). The guarantees invoked were those in respect of supply of goods, being that the goods supplied did not match the description given on the invoice and by the supplier's representative and were not fit for the disclosed purpose: ACLNSW ss 55, 56.
In the primary decision made on 24 February 2025 the primary member ordered Airparts, in order 1, to pay $7,000 to Frontline on or before 3 March 2025 and in order 2 ordered Mr Zhu, on payment of the $7,000, to return the used rims to Airparts.
Under order 1 and with a heading of "Details of the money order" appeared:
[35]
"1. Refund for incorrect used rims Porsche 981 Carrera S OEM Rims being provided. Not in accordance with contract and not in compliance with s 54 of [ACLNSW] $7,000."
[36]
"3. The Tribunal is satisfied the parties have been notified of today's hearing and had an opportunity to be heard".
[37]
"4. [Airparts] did not appear and the Tribunal considers it appropriate to deal with the matter in the absence of [Airparts]".
[38]
Airparts apparently made an unsuccessful application to set aside the primary decision under para 9(1)(b) of the Civil and Administrative Tribunal Regulation 2022 (NSW) (NCAT Regulation), which provides as follows:
[39]
"In addition to a power that is expressly conferred on the Tribunal by the Act or enabling legislation to set aside or vary its decisions, the Tribunal may order that a decision it has made that determines proceedings be set aside or varied if - ... (b) the decision was made in the absence of a party and the Tribunal is satisfied that the party's absence has resulted in the party's case not being adequately put to the Tribunal."
[40]
The evidence revealed, even if there was no express finding in the materials made available to us, that the Tribunal had jurisdiction over what was a consumer claim in respect of supply of goods (or a service) in NSW (all parties had NSW addresses) to a person who acquired the good or service, under monetary limit: FTA Pt 6A.
The appeal was filed within time on 21 March 2025. The grounds are dealt with below.
On 25 March 2025 an interim ex parte stay of the money order pending appeal was refused since it was only a short time till a contested hearing on the stay; preparation directions for that stay hearing were made.
On 16 April 2025 the stay application was dismissed with oral reasons and preparation directions were made for documents to be filed and served for the appeal hearing. Those directions, as usual, required a party seeking to rely on what occurred at the primary hearing to file and serve a recording obtained from the Tribunal together with extracts of transcript from the recording that were sought to be relied upon, or a full transcript. The directions also required a party to file and serve whatever documents it wished to rely on at the appeal. There is no transfer of the primary proceedings file and documents to the Appeal Panel. There was an extension of time on 16 June 2025 for compliance with those directions.
Neither party filed or served the sound recording or any transcript, nor any part of the primary proceedings file that dealt with the set-aside application by Airparts. Accordingly, the reasons for refusing that application are formally not before us, nor are the oral reasons beyond those under primary order 1 if they were recorded.
Neither party had applied under s 62 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) for a written version of the oral reasons given as part of the primary decision.
However, during the appeal hearing the parties agreed in substance to the following as relevant to the set-aside decision: Airparts supplied only the receipt for emergency treatment at Sydney Adventist Hospital at 9.09am on day of final hearing of the father-in-law of Airparts' sole director Mr Lee; no medical report was supplied; the hearing was deferred until 10am but no word from Airparts was received. The consumers submitted that Mr Lee had time to ring the Tribunal and arrange a substitute; Mr Lee said he was the only one at home when his father-in-law became ill and that the father-in-law was a priority.
[41]
(1) The Airparts invoice dated 30 May 2024 addressed to the corporate respondent (Frontline) with a narrative and pricing referring only to the rims and to tyres (the latter being supplied and fitted within NSW since the old tyres had been removed before the rims were shipped from Hong Kong). The rear tyres were specified as 295/30/20 sized wheels and the rims as 991 Carrera OEM rims 20x8.5 +51. There was no mention of service fees or of rear wheel spacers or any requirement for the service of fitting rear wheel spacers.
(2) Communication from Mr Zhu to Mr Lee on 25 May 2024 1.05pm "But fitting for 981" in response to photographs of rims, followed by "If you can source it for us let me know".
(3) Mr Lee's response "Yeah possible. The 991 Carrera S OEM rims are 20" and cast though, while it looks good, they're much heavier and you'll sacrifice quite a lot of comfort over 19""."After dialogue that Mr Lee didn't have the same style in 19" and OEM, Mr Zhu said "I'll take the 20".
(4) On 9 June 2024 Mr Zhu asked "Hey Eddie u mentioned these are 991 wheels but should fit 981?" and Mr Lee responded "Yes they're from 991 Carrera and will fit 981".
(5) On 19 June 2024 Mr Lee responded to a query from Mr Zhu that Mr Lee owed Mr Zhu photos.
(6) On 30 June 2024, in an email announcing the arrival of the shipment, Airparts referred to the rims as +51 and +52.
(7) On 18 July 2024, after the rims landed, the consumers said this was the first time that, in a call from Mr Zhu to Mr Lee, Mr Lee advised that, for the rims to fit the 981, wheel spacers were required, which had not been part of the order. In a text exchange Mr Zhu asked "Hi Eddie, I specifically checked if those fit the 981 so I don't think there is an issue right" and Mr Lee responded "100% guarantee there is no issue to fit on 981 Boxster Ray we guarantee".
[42]
Principles governing appeals from the Consumer and Commercial Division
(a) in the case of an interlocutory decision of the Tribunal at first instance - with the leave of the Appeal Panel, and
[45]
(b) in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance - as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds".
[46]
Paragraph 12 of Schedule 4 to the NCAT Act states:
[47]
An Appeal Panel may grant leave under section 80 (2) (b) of this Act for an internal appeal against a Division decision only if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because:
[48]
(a) the decision of the Tribunal under appeal was not fair and equitable, or
[49]
(b) the decision of the Tribunal under appeal was against the weight of evidence, or
[50]
(c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
[51]
A Division decision is a primary decision of the Consumer and Commercial Division. The primary decision here is such a decision.
In summary, internal appeals may generally be made as of right on a question of law, and otherwise with leave (that is, the permission) of the Appeal Panel.
However, certain decisions require leave for any ground of appeal whether or not it involves a question of law. Section 4(1) of the NCAT Act contains the following relevant definitions to the nature of the decision from which an appeal is brought:
[52]
"ancillary decision of the Tribunal means a decision made by the Tribunal under legislation (other than an interlocutory decision of the Tribunal) that is preliminary to, or consequential on, a decision determining proceedings, including -
[53]
(a) a decision concerning whether the Tribunal has jurisdiction to deal with a matter, and
[54]
(b) a decision concerning the awarding of costs in proceedings."
[55]
"'interlocutory decision' of the Tribunal means a decision made by the Tribunal under legislation concerning any of the following -
[56]
(b) the prohibition or restriction of the disclosure, broadcast or publication of matters,
[57]
(d) the extension of time for any matter (including for the lodgment of an application or appeal),
[58]
(g) the joinder or misjoinder of a party to proceedings,
[59]
(h1) the granting of leave for a person to represent a party to proceedings,
[60]
(i) any other interlocutory issue before the Tribunal."
[61]
In Ericon Buildings PL v Owners SP 96597[2020] NSWCATAP 265 at [26] the Appeal Panel, in the course of refusing leave to appeal against a procedural order, focused at [9]-[10] on the required connection of an ancillary decision with a decision determining proceedings, not a decision which the party alleged should have been made, but was not made, to determine the proceedings. In that case, the orders under appeal noted a consent to judgment that had not been accepted by the applicant and set a timetable for a foreshadowed transfer application on which the transfer could be contested on the basis there was a tender of the maximum amount of the Tribunal's jurisdiction. Those orders were found to be interlocutory in character and therefore to require leave to appeal under s 80(2)(a) of the NCAT Act. Leave to appeal was refused at [13]-[18] because no decision that was said to be in error had actually been made; "for completeness", among other matters the Panel expressed the view at [19]-[27] that the Tribunal would be entitled to take into account the possibility that the Tribunal's jurisdiction on a work order was not limited to a value of $500,000 and at [28]-[36] that there was no tender of the Tribunal's maximum jurisdiction of $500,000 by actual payment.
The Ericon characterisation is consistent with the orthodox test, implicit in the statutory definitions cited above, that an interlocutory decision does not finally determine the rights of the parties in respect of the relief claimed in the proceedings: see, eg, Sanofi v Parke Davis PL [No 1](1982) 149 CLR 147 at 152.
In Prendergast v Western Murray Irrigation Ltd[2014] NSWCATAP 69, more recently revisited in Unique Commercial Group Pty Ltd v Cusumano[2024] NSWCATAP 204 at - esp at [30]-[32], the Appeal Panel set out at [13] a non-exclusive list of errors of law that can amount to questions of law on the basis of existing appellate authority:
[62]
(1) Whether there has been a failure to provide proper reasons where they are required;
(2) Whether the Tribunal identified the wrong issue or asked the wrong question;
(3) Whether a wrong principle of law had been applied;
(4) Whether there was a failure to afford procedural fairness;
(5) Whether the Tribunal failed to take into account relevant (that is, mandatory) considerations;
(6) Whether the Tribunal took into account an irrelevant consideration;
(7) Whether there was no evidence to support a finding of fact; and
(8) Whether the decision is so unreasonable that no reasonable decision-maker would make it.
[63]
A failure to take into account a "clearly articulated and substantial argument" is a constructive failure to exercise jurisdiction as well as an error of law and so constitutes a question of law: Alexandria Landfill PL v Transport for NSW [2020] NSWCA 165 at [8]- [11]; Prakash v Health Care Complaints Commission[2006] NSWCA 153 at [87]- [89]; Health Care Complaints Commission v Robinson[2022] NSWCA 164 at [91].
Taking into account an irrelevant consideration or not taking into account a relevant consideration includes not making a finding on an ingredient or central issue required to make out a claimed entitlement to relief: see CEO of Customs v AMI Toyota Ltd[2000] FCA 1343; (2000) 102 FCR 578 (Full Fed Ct), [2000] FCA 1343 at [45], applying the statement of principle in Craig v South Australia ; at 179.
[64]
"It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred."
[65]
In Strang v Steiner[2019] NSWCA 143 at [77]- [79], [101], [137]-[145], [193], the NSW Court of Appeal explained that inadequacy of reasons either constituted a further distinct error which vitiated the exercise of discretion or was within the vitiating errors of the kinds identified - wrong principle acted on, extraneous or irrelevant matters, mistaking the facts and failing to take into account a material consideration. If these were present, it was not necessary to show also a manifest error in result where it does not appear how the result was arrived at, but that was a separate basis for vitiating the exercise of discretion.
The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are limited by para 12(1) of Sch 4 to the NCAT Act. In such cases, as set out above, the Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice on the basis that:
[66]
(a) the decision of the Tribunal under appeal was not fair and equitable; or
(b) the decision of the Tribunal under appeal was against the weight of evidence; or
(c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
[67]
In Collins v Urban[2014] NSWCATAP 17, the Appeal Panel stated at [76] and [79] that a substantial miscarriage of justice for the purposes of cl 12(1) in Sch 4 to the NCAT Act may have been suffered where:
[68]
"[76] ...there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance. ...
[69]
[79] In order to show that a party has been deprived of a "significant possibility" or a "chance which was fairly open" of achieving a different and more favourable result because of one of the circumstances referred to in cl 12(1)(a), (b) or (c), it will be generally be necessary for the party to explain what its case would have been and show that it was fairly arguable. If the party fails to do this then, even if there has been a denial of procedural fairness, the Appeal Panel may conclude that it is not satisfied that any substantial miscarriage of justice may have occurred - see the general discussion in Kyriakou v Long[2013] NSWSC 1890 at [32] and following concerning the corresponding provisions of the [statutory predecessor to CATA (s 68 of the Consumer Trader and Tenancy Tribunal Act)] and especially at [46] and [55]."
[70]
Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of para 12(1) of Sch 4 to the NCAT Act, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b): Pholi v Wearne[2014] NSWCATAP 78 at [32]. In Collins v Urban, the Appeal Panel stated at [84] that ordinarily it is appropriate to grant leave to appeal only in matters that involve:
[71]
(b) questions of public importance or matters of administration or policy which might have general application; or
[72]
(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;
[73]
(d) a factual error that was unreasonably arrived at and clearly mistaken; or
[74]
(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."
[75]
Turning to the specific grounds in cl 12(1)(a) and (b) of Sch 4 to the NCAT Act, in Collins the Appeal Panel said:
[76]
"[77] As to the particular grounds in cl 12(1)(a) and (b), without seeking to be exhaustive in any way, the authorities establish that:
[77]
1 If there has been a denial of procedural fairness the decision under appeal can be said to have been "not fair and equitable" - Hutchings v CTTT[2008] NSWSC 717 at [35], Atkinson v Crowley[2011] NSWCA 194 at [12].
[78]
2 The decision under appeal can be said to be "against the weight of evidence" (which is an expression also used to describe a ground upon which a jury verdict can be set aside) where the evidence in its totality preponderates so strongly against the conclusion found by the tribunal at first instance that it can be said that the conclusion was not one that a reasonable tribunal member could reach - Calin v The Greater Union Organisation Pty Ltd [1991] HCA 23; (1991) 173 CLR 33 at 41-42, Mainteck Services Pty Limited v Stein Heurtey SA[2013] NSWSC 266 at [153]."
[79]
The question of what constitutes significant new evidence not reasonably available at the time the proceedings under appeal were being dealt with under the ground in para 12(1)(c) of Sch 4 to the NCAT Act was considered by an Appeal Panel in Owen v Kim[2017] NSWCATAP 26. There the Appeal Panel stated at [37]-[39]:
'In order to fall within this paragraph the appellant must be able to point to evidence which:
[82]
(2) has arisen and is new in the sense that it was not reasonably available at the time the proceedings below were being heard.'
[83]
38 In Leisure Brothers Pty Ltd v Smith[2017] NSWCATAP 11 the Appeal Panel stated at [40 ]:
[84]
'The meaning of this clause was considered by the Appeal Panel in Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown[2015] NSWCATAP 111. At [23] - [24] the Appeal Panel said:
[85]
'23 Unlike the WIM Act, the expression "reasonably available" is not qualified by the words "to the party". This difference suggests that 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. In Prestige Auto Centre Pty Ltd v Apurva Mishra[2014] NSWCATAP 81 at [17] the Appeal Panel granted leave because the respondent to the appeal had fraudulently altered evidence. The party seeking leave under cl 12(1)(c) could not reasonably have had available to them the evidence that the report in question had been fraudulently altered at the time the proceedings were being dealt with by the Tribunal. That fact was not known to the appellant at the time of the hearing and could not reasonably be known due to fraud.
[86]
24 Each of these cases illustrates that something more than a party's incapacity to procure evidence is necessary to satisfy the requirements of cl 12(1)(c).'
[87]
39 As stated at [27] in Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown:
[88]
"the issue is whether, objectively, the evidence has arisen since the hearing and was "not reasonably available" at the time of the hearing".
[89]
In Ryan v BKB Motor Vehicle Repairs Pty Ltd[2017] NSWCATAP 39 an Appeal Panel stated at [10]:
[90]
"An appeal does not provide a losing party with the opportunity to run their case again except in the narrow circumstances which we have described. Mr Ryan has not satisfied us that those circumstances apply to his case and we refuse permission for him to appeal."
"It may be difficult for self-represented appellants to clearly express their grounds of appeal. In such circumstances and having regard to the guiding principle, it is appropriate for the Appeal Panel to review an appellant's stated grounds of appeal, the material provided, and the decision of the Tribunal at first instance to examine whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal. The Appeal Panel has taken such an approach in a number of cases, for instance, Khan v Kang[2014] NSWCATAP 48 and Prendergast v Western Murray Irrigation Ltd[2014] NSWCATAP 69. However, this must be balanced against the obligation to act fairly and impartially (Bauskis v Liew[2013] NSWCA 297 at [68] citing Hamod v State of New South Wales[2011] NSWCA 367 at [309]- [316]). Relevantly, s 38(2) provides that that Tribunal 'may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice'."
[93]
The appeal grounds must be reasonably discernible from the material before an Appeal Panel rather than the result of an artificial construct imposed on the material by the Panel: Damico at [45].
From the notice of appeal we discern the following alleged errors on questions of law:
[94]
(1) The primary member used the wrong legal principle. The real character of the transaction was a service known as a proxy purchasing service, not a supply of goods. The correct consumer guarantee was accordingly ACLNSW s 60.
(2) The primary member did not take into account a relevant consideration, being that what was supplied was not the rims but, rather, the service of sourcing overseas the rims that the consumers instructed that they wanted.
[95]
From the notice of appeal we discern the following alleged errors on questions of fact, requiring leave to appeal if made out:
[96]
(1) The major failure finding was based on an incorrect application of the test to the facts. The product was not unsafe, defective or significantly departing from what was instructed to be ordered. The fitting issue on the rear wheels was easily resolved in the manner that Airparts offered to do, at its cost purely to resolve the dispute. That offer was made even though the need for spacers was well-recognised and appropriate.
(2) The refund remedy was also disproportionate - any remedy, if granted, should be limited to a minor partial modification being the addition of rear wheel spacers.
(3) The primary decision was against the weight of evidence because it didn't take into account, owing to Airparts' absence, the evidence on which it relied.
(4) Airparts sought to rely on new evidence, not prepared at the time of the primary hearing, of the financial impact of having to refund for what it said were rims that could not readily be resold and having incurred wasted import and transport costs
[97]
By analogy with the refusal of an application to set aside a default judgment, the refusal of Airparts' application to set aside the primary decision is not a final determination of the legal rights the subject of the proceedings because it can be sought again (with an extension of time to file it likely to be required).
Accordingly, the refusal is an interlocutory decision requiring leave to appeal: cp Carr v Finance Corporation of Australia Ltd [No 1][1981] HCA 20; (1981) 147 CLR 246 at 248, 256. This is the case even though the ground of appeal is alleged to be procedural unfairness in refusing the set-aside application.
[98]
The errors on questions of law alleged by Airparts centred on the same matters in substance, which the appellant expressed in its notice of appeal as follows:
[99]
"The Tribunal applied s 54 of the ACL, which concerns the sale of goods, instead of s 60, which applies to services. The transaction was a proxy purchasing service, not a retail sale. The appellant operates as an importer and facilitator, not a seller of Porsche wheels. The appellant fulfilled its duty by sourcing and delivering exactly what the respondent requested. The decision failed to recognise that the appellant does not stock or sell Porsche wheels as part of its business and has never sold another set of these wheels since incorporation in August 2022."
[100]
The consumers in their reply correctly pointed out that the primary decision in fact focused on lack of fitness for disclosed purpose and lack of correspondence with description (ACLNSW ss 55 and 56), not acceptable quality (s 54) and that the latter reference was a slip. The slip did not matter because the substance of the consumers' argument was dealt with. In the sparse written reasons, we take this to be inferred from the reference to "incorrect" used rims being provided "[n]ot in accordance with contract" and "not in compliance with" the wrongly-named ACLNSW provision.
The consumers contended that, even if Airparts' argument was accepted about the nature of the service, the same outcome would occur under ACLNSW s 60 on a substantially similar basis to the contraventions in ss 55 and 56. The service and the product resulting from the supply of the service were not fit for specified purpose and the service was not supplied with due care and skill. The specified purpose was confirming that the OEM product supplied - which was for a different model (a Porsche Carrera 991 S) - could be retro-fitted to a Porsche Boxster 981 D without requiring rear wheel spacers (the legality of which in NSW was questioned). A partial refund was not proportionate because the supply was of an entire set of rims.
As said earlier, we do not have a clear indication of the degree to which the primary member looked at Airpart's documents despite the party's absence from the hearing. Without provision of complete reasons (by separate record and/or in a transcript) we do not know the complete basis for the relief granted. There appears to be an incorrect reference (981) to the rims actually provided in the incomplete reasons accompanying the refund order (order 1), but the balance of the summary is in effect an acceptance of the consumers' case (with the correction to the consumer guarantees relied on that has already been pointed out) that what was supplied by way of goods was not what was contracted for and not fit for purpose as described above.
Airparts had the responsibility, by obtaining the transcript or other reproduction of the primary members' reasons and the transcript of hearing, to establish if it could from those sources the errors it alleged. Its failure to do so is of itself sufficient to find that the appeal fails on the grounds that rely on those sources (which include the alleged errors on questions of law) in order to be made out.
[101]
(1) Communications between the parties that were said to show that the consumers requested a specific set of 20" Porsche 991 Carrera S OEM rims in a particular spoke pattern and, being a smash repair workshop, were more familiar with the specifications of the requested product than Airparts.
(2) Proof of the proxy purchasing service as Airparts' business model, showing that Airparts did not stock or sell Porsche wheels as part of its regular business and had not sold another set of Porsche wheels since incorporation in August 2022.
(3) Proof that the wheels were "custom-ordered" for the consumers.
(4) A typographical error on the invoice regarding the offset of the rear wheels, on which the consumers relied, did not affect the fact that the correct wheels were supplied.
(5) An offer to supply and install spacers so as to ensure that the rear wheels fitted properly (there was no fitting issue with the front wheels) demonstrated a willingness to resolve without a refund and that was a proportionate resolution if a breach of consumer guarantees was established.
[102]
The new evidence (described in summary at [44(4)] in these reasons) was said not to be reasonably available at time of hearing because it was compiled after the set-aside application was refused.
Dealing first with the new evidence, we agree with the consumers' submission that the new evidence was irrelevant to the substantive issues, although it was relevant to the unsuccessful stay application. Its nature indicated that much of it would have been reasonably available at the time of the primary hearing. We reject the application to rely upon it on appeal.
In respect of its other evidence, Airparts said it established that the consumers specifically requested OEM rims for a Porsche 991 Carrera S which was confirmed by photographs and communications before the order was placed. Porsche produced for that model only one OEM rim rear wheel specification, being a +70 offset, not a +52 offset. The reference on the invoice to supply of rear rims with a +52 offset was a typographical error later discovered and corrected. Rims with a +70 offset could be retro-fitted to a 981 model with spacers, which Airparts offered as a resolution and which was a recognised resolution in the Porsche enthusiast community; even a +52 offset would require spacers (of a lesser dimension).
Again, it is not possible fully to assess the strength of this ground of appeal without the primary members' complete reasons and a transcript, which it was in Airparts' responsibility to provide in the proof of alleged errors.
However, in our view the facts that emerged from the consumers' documents put before the primary member, which we have summarised earlier, clearly supported a finding that the consumers were not told, before the arrival of the shipped rims, anything other than that the 991 Carrera rims would fit the 981 Boxster with no reference to any need for spacers to be fitted.
Further, on the face of the Airparts invoice in the consumers' evidence, what was supplied was not an OEM rim as requested because the manufacturer did not make an OEM +52 for the 991 model and, even if one accepted the +52 reference was an error, the rims supplied did not fit the rear wheels of a 981 Boxster without spacers. Spacers were not part of the requested order.
We have no indication, from the absence of transcript and record of primary reasons to be supplied by Airparts as part of its appeal documents, that the primary member looked at the Airparts evidence and submissions that sought to explain and support its contentions and explanations to the contrary, let alone what weight he gave to it compared with the consumers' evidence.
[103]
"The appellant missed the hearing due to an unforeseeable medical emergency, where the appellant's father-in-law required urgent hospital attention. Multiple follow-ups were made with NCAT via phone calls and in-person visits, where the appellant was informed no additional documentation was required. The Tribunal rejected the set-aside application without giving the appellant an opportunity to provide additional evidence of the medical emergency. The refusal to consider the appellant's explanation for missing the hearing denied procedural fairness."
[104]
Airparts' director said that he "was the only person available to provide immediate assistance, making it impossible to attend the hearing".
We have in the materials on this topic before us (including the agreed narrative set out earlier) only a receipted invoice from the hospital, no record of Airparts' attempting to contact the Tribunal on the day of hearing, nor of what was said if such contact was made, nor of proof of the medical circumstances, nor proof of Mr Lee's claim that he was the only person available to help with the medical emergency and to continue to stay, nor of any attempt once his father-in-law was within the hospital's care to seek to arrange alternative attendance or other action. There was also no proof of what Mr Lee was allegedly told by the Registry, when what was alleged to have been said would be inconsistent with Registry processes.
We also have no record before us of the materials put before the member who rejected the set-aside application to show the case that Airparts said that it was denied in making. Even assuming that those materials were Airparts' entire evidence that had been filed for the final hearing, we have no firm basis in the materials before us of the reasons that the set-aside application was refused, although one can infer that it was along the lines of an absence of justifiable explanation for absence and an acceptance that the Airparts' evidence was not sufficiently strong for reasons we have already canvassed.
The decision on a set-aside application is discretionary in the sense described earlier in these reasons. Even if we disagreed with it, and we have no clear basis in the material before us for that conclusion, we do not have the material to determine that irrelevant considerations were taken into account, relevant considerations not taken into account, or that a wrong principle was acted upon or that the facts were mistaken. On the evidence that was available from the consumers to justify the primary decision, there is clearly no basis for saying that the refusal was unreasonable or plainly unjust.
Accordingly, no basis for a grant of leave to appeal against the set-aside decision has been made out.
Airparts has not established relevant errors in the primary decision. It has not put before us, in the mass of material filed, the real matters that might, or might not, have assisted in establishing the alleged errors. Leave to appeal (to the extent that leave is required) is refused and the appeal must be dismissed.
[105]
(1) Leave to appeal (to the extent that leave is required) refused.
[106]
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.
Parties
Applicant/Plaintiff:
Airparts Australia Pty Ltd t/as Airparts Auto Trading Concept
At the outset of the appeal hearing we spent some time identifying with the parties which documents, in the mass of often-repetitive material, were in the consumers' documents before the primary member, which documents were in Airparts' documents at the time of the primary hearing and which documents were developed or added after the primary hearing.
Owing to the absence of transcript, there was no clear indication the degree to which the primary member looked at Airparts' documents despite the party's absence.
However, there was significant duplication of important documents between the parties. In the consumers' documents which were also substantially in Airparts' documents appeared the following which were of central significance:
A question of mixed fact and law, such as an alleged error in applying legal principle to the facts, is not a question of law unless the relevant facts are jurisdictional in nature or do not require the appellate tribunal to resolve disputed facts relevant to the matter in dispute, or the question of law does not depend on facts not found: FTB v Children's Guardian[2024] NSWCATAP 174 at [8]; O'Keefe v Integral Corporate Property PL[2020] NSWCATAP 76 at [16]; Wilson v Chan & Naylor Parramatta Pty Ltd atf Chan & Naylor Paramatta Trust[2020] NSWCA 62 at [4] and [11]; Orr v Cobar Management PL[2020] NSWCCA 202 at [48], [109]; Commissioner of Police, NSW Police Force v White[2025] NSWCATAP 30 at [21]- [23]; Damico v Secretary, Department of Customer Service[2025] NSWCATAP 109 at [43]; and authority cited in those decisions. However, as noted by Basten AJ in Donohoe v Albulario[2025] NSWSC 9 at [33], this general requirement for purity does not stand in the way of an Appeal Panel making necessary findings of fact about the composition of the primary tribunal or conduct of the primary hearing when the question of law concerns a denial of procedural fairness.
Adequacy of reasons will vary according to the nature of the determination and of the determining body: New South Wales Land and Housing Corporation v Orr[2019] NSWCA 231, 100 NSWLR 578 at [65]- [77] esp at [77]. In relation to adequacy of reasons, it is essential to expose the reasons for resolving a point critical to the contest between the parties: Soulemezis v Dudley (Holdings) PL(1987) 10 NSWLR 247 (CA) at 259, 270-272, 280-281; Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Palme[2003] HCA 56; (2003) 216 CLR 212 at [40]; Wainohu v NSW(2011) 243 CLR 181 at [58]; NCAT Act s 62(3).
In appellate review of the exercise of a discretion, a reviewing court or tribunal must be cognisant that reasonable minds may differ on the correct exercise of discretion from alternatives all of which are within the range of reason: Minister for Immigration and Border Protection v SZVFW(2018) 264 CLR 541, [2018] HCA 30 at [18], [20], [26], [30]-[32], [43]-[45], [48]-[49], [55]-[56], [85]-[87], [127]-[128], [153]-[155]. That the reviewing court or tribunal may have exercised the discretion with a different outcome is not sufficient to upset the exercise of discretion: Minister for Immigration and Citizenship v Li(2013) 249 CLR 332, [2013] HCA 18 at 367 [76].
In House v The King(1936) 55 CLR 499, [1936] HCA 40 at 505 there were identified errors of law in exercise of the discretion that raise a question of law in respect of the exercise:
However and in any event, as already said the invoice for supply was in the consumers' evidence. There was no reference to the original overseas supplier and no reference to a service fee, only to the price of the supplied goods. GST was charged on the goods invoiced, not on a service fee for sourcing a product to be supplied direct by an overseas supplier.
The foregoing provided a strong basis for the primary member's grant of relief in respect of a contravention of a consumer guarantee relating to a supply of goods. We discern, on the material before us, no error of law in the primary member's finding that the correct consumer guarantees to be applied were those which the primary member chose, being in respect of supply of goods.
Turning to alleged errors on questions of fact, the evidence on which Airparts relied but was not present to put before the Tribunal, summarised from what was stated about it in the notice of appeal, was as follows:
In that situation, we reach the conclusion readily that the weight of the evidence before the primary member favoured the conclusion on breach of the consumer guarantees to which he clearly came, and that such was a fair and equitable outcome. This is the case even if the primary member did seek to assess Airpart's evidence.
We also consider that the primary member was justified in ordering a refund for what must have been his reasons had they been provided by Airparts, namely, that the rims did not fit on the 981 Boxster without further and potentially controversial spacers was a major failure entitling the consumers to reject the goods within the specified period and obtain a refund.
This was the clear factual conclusion open on the documents provided to us that applied the relevant law.
A major failure occurs under ACLNSW s 260 if: the goods would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of the failure; or the goods depart in one or more significant respects from the supply description, sample or demonstration model; or 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 purpose; or the goods are unfit for a particular purpose made known to the supplier or person negotiating or arranging the supply and the goods cannot easily and within a reasonable time be remedied to make them fit for such purpose; or the goods are not of acceptable quality because they are unsafe.
In Safi v Heartland Motors PL t/as Heartland Chrysler[2016] NSWCATAP 80 at [85]- [107] the Appeal Panel analysed the case law on what constituted a major failure in respect of a supply of goods, summarising its conclusions at [99]-[102]. Under ACLNSW s 260(a), the test is objective and can be applied by analogy to services. Overall, the test is whether, faced with advance knowledge of the problems and what was needed in terms of time, costs and degree of difficulty to remedy them, a reasonable consumer would have acquired the goods or acquired nothing or something else. Thus, for a major failure constituted by chronic or repetitive defective supply taken as a whole, such a period is likely to be longer than for a single catastrophic defect.
If there is a major failure, the consumer's entitlement to a refund is not dependent on proof of loss: Ferraro v DBN Holdings Aust PL t/as Sports Auto Group[2015] FCA 1127.
Under ACLNSW s 262 a consumer is not entitled to notify rejection under s 259 if the "rejection period for the goods" has ended, the goods have been lost, destroyed or disposed of by the consumer, the goods were damaged after supply for unrelated reasons, or the goods cannot be detached from other property without damage to them. The "rejection period" for goods is from the time of supply to when it would be reasonable to expect the relevant failure to comply with a guarantee to become apparent having regard to the type, likely use, reasonably-expected life, and reasonably-expected usage before a failure becomes apparent. Given the short time frame on the documents before us, rejection occurred clearly within the rejection period.
In those circumstances, the significant failure not to supply what was contractually described without further and intrusive fitting devices made an entire refund appropriate where the rims were supplied in set.
Turning to the procedural unfairness alleged by Airparts in respect of the set-aside application, this was stated as follows in the notice of appeal:.