P Durack SC, Senior MemberN Kennedy, Senior Member
Catchwords
APPEALS- agreement on appeal that small additional amount should be paid to
the appellant-appeal dismissed in respect of orders sought
on appeal for more
significant amounts.
Source
Original judgment source is linked above.
Catchwords
APPEALS- agreement on appeal that small additional amount should be paid tothe appellant-appeal dismissed in respect of orders soughton appeal for moresignificant amounts.
Judgment (10 paragraphs)
[1]
In October 2023, the appellant purchased a second-hand 2015 Jeep Grand Cherokee from the respondent. The purchase price was $30,000. She returned the vehicle to the respondent in April 2024 after she noticed that the engine oil temperature warning light had come on. The respondent's mechanic suspected that there was an internal leak, concluded that the engine needed to be replaced and it needed to be removed and stripped down to determine the cause of failure. In August 2024, the appellant then arranged for various further investigations to be carried out.
Following those investigations, the appellant commenced proceedings in the Tribunal in which she sought a refund of the purchase price and consequential losses. Her total claim was for an amount of $30,086.53. Her claim was founded upon an alleged breach of the statutory guarantee of acceptable quality in s 54 of the Australian Consumer Law (NSW) (ACL).
The Tribunal agreed that there had been a breach of this statutory guarantee. However, instead of the relief sought by the appellant, it made orders for the respondent to carry out work to remedy the defects, including to locate and repair an internal leak in the vehicle's cooling system and, if necessary, replace the vehicle's engine with a second-hand engine of similar mileage.
These orders were made on 19 February 2025.
The appellant lodged her appeal on 10 March 2025 but did not seek a stay of the work orders. At the hearing of the appeal, the appellant told us that this was a deliberate decision and that she had decided to accept that the work order should be carried out and confine her appeal to seeking various additional costs and losses.
It was uncontroversial that the respondent carried out the work orders. It collected the vehicle from the appellant, carried out the work orders and the vehicle was collected by the appellant in late March 2025. Since that collection, some additional repairs have been carried out by the respondent at no cost to the appellant and the appellant has made complaints about additional issues that have arisen in respect of the vehicle since the work orders were carried out.
In the appellant's written submissions on the appeal the orders she sought were stated as follows:
[2]
Reimbursement of Taree Mechanical services invoice $60
[3]
Reimbursement Medecke motors group invoice $439. 03
[4]
At the hearing of the appeal, the appellant confirmed that these were the orders she sought on appeal.
Mr Hankins, from the respondent, accepted that the appellant should have been awarded the costs identified in items 1, 2 and 6, although the amount in item 6 should only be $28 because costs for a pink slip of $50 would have been incurred in any event. The appellant accepted this position concerning the blue slip.
Accordingly, there was agreement between the parties that the appellant should be awarded on appeal an amount of $286.50 in respect of these 3 items. The respondent, however, disputed that the appellant was entitled to any other amounts.
At the appeal hearing the appellant confirmed that items 7, 8 and 9 arose from or related to new and different issues concerning the vehicle that were not the subject of the proceedings the subject of this appeal. As we explained to the appellant at the hearing of the appeal, such matters, if they are to be pursued, must be made the subject of a new claim, rather than dealt with on appeal from the original proceedings. Accordingly, the appeal must be dismissed insofar as it concerns these items.
The appellant pressed her claims on appeal for items 3, 4 and 5.
The appellant sought to recover the amounts in items 3 and 5 as damages suffered because of the failure to comply with the statutory guarantee pursuant to s 259 (4) of the ACL. That section provides:
[5]
The consumer may by action against a supplier, recover damages for any loss or damage suffered by the consumer because of the failure to comply with the guarantee if it was reasonably foreseeable that the consumer would suffer such loss or damage as a result of such a failure.
[6]
The Tribunal awarded damages under this section but only in the amount of $330 in respect of towing costs. Relevantly, as to other amounts sought as damages, the Tribunal stated:
[7]
44 As for the balance of alleged losses claim for money spent by the applicant on the vehicle, I'm not satisfied these items represent losses to the applicant in the circumstances, for example, the applicant will continue to have the benefit of the new tires once the vehicle is repaired. The insurance costs have not been satisfactorily established, only a quote dated back in October 2023 has been provided in the applicant's evidence.
[8]
In the last sentence of this paragraph, the Tribunal was dealing with the insurance cost the subject of item 3. On appeal, the appellant contended that in addition to the quote, she had presented to the Tribunal a copy of a credit card statement for a Latitude Go MasterCard showing payment in the sum of $1470. 01 in respect of this cost. She annexed a copy of that credit card statement to her Notice of Appeal. It showed a payment to the respondent of this amount on 5 October 2023. She explained that this was cost of insurance of the vehicle that the respondent had persuaded her to purchase when she bought the car.
The appellant's contention was that 8 months of this insurance was wasted expenditure because she was not able to use the vehicle during this period.
The respondent did not accept that the credit card payment had been presented to the Tribunal, although it did not dispute that insurance had been purchased with Toyota Finance at the time when the car was purchased. Mr Hankins contended that insurance was not a necessary part of the purchase and that, in any event, normally, it would be reimbursed if not required.
We are unable to conclude that the Tribunal did err in finding that the only evidence in respect of this loss was a quote because the appellant did not show us, by reference to the record, just what evidence she did present in respect of this item. Nor did she show us how the case in respect of this item had been presented to the Tribunal.
In any event, we are not satisfied that such a loss was reasonably foreseeable in respect of a breach of the statutory guarantee of the kind in issue. Whilst, we accept that purchase of insurance was reasonably foreseeable, we do not accept that wastage of a cost of such a scale would be reasonably foreseeable.
As to item 5 (the largest amount sought by the appellant), the appellant informed us that before the Tribunal this amount of $6000 had been calculated as 20% of the purchase price. The appellant informed us that she had presented this amount as a fair amount of compensation for the disruption and financial difficulty she had found herself in because the vehicle was not available. This included that she had to take out a mortgage to purchase a new vehicle in order to carry on her employment.
On appeal the appellant supported this claim in a different way. It was said that this cost represented the loss incurred on the sale of the new vehicle they had purchased when the original vehicle was, ultimately, repaired and returned to them.
However this sum is derived and calculated, we fail to see how it falls within the requirement of reasonable foreseeability resulting from a breach of the statutory guarantee, even if it be accepted that there was appealable error by the Tribunal in respect of this item by, for example, failing to address the claim. In saying this, we do not conclude that there was such appealable error because there was insufficient material put to us to show that this was a sufficiently substantially supported claim that the Tribunal should have addressed it in its reasons.
Accordingly, we do not allow the claims for items 3 and 5.
It remains for us to deal with the claim for the cost of filing the appeal. The amount in issue on the appeal was below the figure of $30,000 and, accordingly, special circumstances needed to be established to warrant an order for costs of the appeal: see s 60 of the Civil and Administrative Tribunal Act 2013 (NSW) and Rulers 38 and 38A of the Civil and Administrative Tribunal Rules 2014 (NSW). It is impossible to see how special circumstances exist and, accordingly, we reject the claim for this item.
[9]
(1) The appeal be allowed in part.
(2) The respondent pay the appellant the amount of $286.50 within 14 days of the publication of this decision.
(3) Otherwise, the appeal is dismissed.
[10]
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.