Respondent: in person
File Number(s): AP 15/63459
Decision under appeal Court or tribunal: Civil and Administrative Tribunal of NSW
Jurisdiction: Consumer and Commercial Division
Date of Decision: 20 November 2015
Before: K. Rickards, General Member
File Number(s): MV15/47226
[2]
Reasons for Decision
The Appellant in this appeal was the Respondent to proceedings in the Consumer and Commercial Division of the Tribunal by which the Respondent to the Appeal sought payment of compensation in respect of the acquisition of a motor vehicle from the Appellant on 19 March 2015.
Central West Autos Pty Ltd v Boyd [2016] NSWCATAP 102 | Case summary | Zoe
The motor vehicle had not been sold subject to an express dealer guarantee pursuant to the Motor Dealers and Repairers Act 2013 (NSW). However, the Tribunal found that the motor vehicle had engine leakage problems and failed to pass registration checks which rendered the vehicle not of acceptable quality contrary to the guarantee imposed in respect of the sale of goods in trade or commerce to a consumer by s 54(1) of the Australian Consumer Law, and which constituted a major failure as defined in the Australian Consumer Law which "rendered the vehicle totally unfit for the purpose for which it was purchased and represented a total failure of consideration for the purchase price paid".
The Tribunal made orders as follows:
1. Central West Autos 180-182 Peisley Street Orange NSW 2800 Australia is to pay Clarissa Boyd ***, Cowra, NSW 2794 Australia the sum of $8,896.00 immediately.
Particulars:
Refund of purchase price paid - $6500
Interest paid by applicant to date on loan obtained for purchase - $2396.
1. Clarissa Boyd is to keep the subject vehicle secure and without further damage and is to make the vehicle and all keys and other operating devices available for collection by Central West Autos immediately upon receipt of payment from Central West Autos pursuant to Order 1 above.
The Appellant (Respondent below) appeals against that decision.
The Appellant's rights of appeal are limited by s80(2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) which provides that an appeal against a decision other than an interlocutory decision of the Tribunal may be made:
"As of right on any question of law, or with the leave of the Appeal Panel, on any other ground".
As this appeal is brought from a decision of the Consumer and Commercial Division of the Tribunal, by virtue of clause 12(1) of Schedule 4 of the Act, leave to appeal may only be granted under s80(2)(b):
"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)."
In Collins v Urban [2014] NSWCATAP 17 the meaning of "substantial miscarriage of justice" was summarized at par [71] and par [79] as follows:
[71]. . . [I]t can be seen that the concept of a substantial miscarriage of justice refers to a failure in the way a matter was conducted or decided which deprived the appellant of a chance that was fairly open of achieving a better outcome than occurred. . . .
[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 . . . 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, 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."
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 an Appeal Panel of the Tribunal conducted a review of the relevant cases at pars [65]-[79] and concluded at par [84]:
"The general principles derived from these cases can be summarised as follows:
1. In order to be granted leave to appeal, the applicant 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: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45];
2. Ordinarily it is appropriate to grant leave to appeal only in matters that involve:
1. issues of principle;
2. questions of public importance or matters of administration or policy which might have general application; or
3. 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;
4. a factual error that was unreasonably arrived at and clearly mistaken; or
5. 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."
The Notice of Appeal does not identify any alleged error of law and, in the section of the standard form Notice of Appeal which deals with applications for leave to appeal from a decision of the Consumer and Commercial Division, has crossed the response 'No' to the question "Are you asking for leave". Clearly the Appellant is asking for leave and we proceed on that basis.
Under the heading "Decision not fair and equitable" the Appellant's Notice of Appeal states:
(1) The matter was not heard fairly, Central West Autos Pty Ltd were not given the chance to explain the matter in full. This includes not being able to simply pay Clarissa Boyd $8,896.00 and take the vehicle back as it is encumbered by Money3 Corporation. Clarissa Boyd does not have legal title over the vehicle.
(2) As per 5b of this document Point 2. The vehicle was sold as per Motor Dealer Laws and all consumer laws. It passed the E-safety Check Number: AO3190807.
(3) Due to the circumstances of this vehicle being under finance, Central West Autos Pty Ltd cannot remove the encumbrance from the vehicle. This would have also been explained if a fair hearing had taken place.
Under the heading "Decision of the Tribunal against the weight of evidence" the Notice of Appeal states:
"Documents had been lodged to the Tribunal supporting what was needed to be discussed with the member of your tribunal and a chance to explain not only the circumstances of the vehicle being 'Road Worthy' and that the vehicle complied with all Laws associated with it, that the vehicle is encumbered and under finance with Money3 Corporation and we cannot simply pay Clarissa Boyd $8,896.00 and take the vehicle back. This is just"
[3]
Background
The factual findings which emerge from the appealed decision are: that the vehicle was purchased by the Respondent on 19 March 2015 (paragraph 1), that at the time of purchase it suffered engine leakage problems which could not reasonably have been revealed by an inspection (paragraph 4), and that it failed to pass inspection for renewal of registration, such failure amounting to a "major failure" under the Australian Consumer Law (paragraph 8).
Documentary material filed with the Reply to Appeal (using the Respondent's pagination at the top of the pages) suggests that the vehicle failed to pass a registration inspection on 13 May 2015 (page 16), again on 11 June 2015 (page 20) and then finally on 22 September 2015 (page 25).
The application to the Tribunal was lodged on 11 August 2015 and the hearing took place on 20 November 2015.
The notice of appeal and the application for a stay filed concurrently with the appeal are dated 20 November 2015.
The interlocutory management of the appeal has been convoluted:
1. A stay was granted on 27 November 2015 until 7 December 2015 when the matter was listed for call over and a hearing concerning any continuation of the stay;
2. On 7 December 2015, the Appellant was represented, perhaps by telephone, by Mr Kenneth Armitt. The stay was continued, until further order of the Tribunal conditionally upon the Appellant, by 11 December 2015, collecting the vehicle from the Respondent and providing her with a replacement comparable vehicle, and repairing the vehicle to certified roadworthiness by 15 January 2016. The Appellant was directed to provide all its material (evidence, submissions and sound recording or transcript) by 15 January 2016 and the Respondent was directed to provide her material by 5 February 2016. The Appellant was directed also to lodge with the Tribunal any written submissions in reply by 12 February 2016. The appeal was set down for a half day hearing by telephone on 11 March 2016.
3. On 2 February 2016 directions were made that the matter be listed for a short hearing on 9 February 2016 to deal with an application by the Respondent to lift the stay and the Appellant was directed to provide to the Tribunal and the Respondent submissions in response to the Respondent's correspondence/application within 5 days thereafter.
4. On 9 February 2016, the application to lift the stay was withdrawn and dismissed and the Tribunal noted the Respondent had informed the Tribunal that a deal had been reached with the Appellant which the Appellant was to put in writing and that no orders were sought that day. The hearing on 11 March 2016 was to remain "in case the deal collapses".
Some background to enable an understanding of the interlocutory history appears from an email dated 7 March 2016 forwarded by the Respondent to the Appeals Registry (a copy of which was passed on by the Appeals Registry to the Appellant):
1. On 15 January 2016 the Appellant took the vehicle for a registration renewal and it failed;
2. On 19 January 2016 the vehicle was passed for renewal of registration;
3. On 20 January 2016 the Appellant delivered the vehicle back to the Respondent who said that the vehicle was still leaking fluid. She videoed the leaks and communicated with the Appellant.
4. On 1 February 2016 the Appellant booked the vehicle into a repairer at Cowra but the repairer declined to undertake the work until he was paid in advance.
5. The Respondent made the application for lifting of the stay on 5 February 2016 whereupon the Appellant communicated (evidently through Ms Stapleton) to negotiate a settlement of the matter on terms set out in an email.
6. Payment to the Cowra repairer was arranged by the Appellant on 8 and 9 February 2016.
7. On 18 February 2016 the car was still not fixed, with the Cowra repairer evidently having trouble getting parts, and the car was then booked into a Jeep dealership at Orange. Apparently on the way to Orange from Cowra the vehicle broke down and eventually the Appellant arranged for the vehicle to be towed back to the Cowra repairer. Thereafter, nothing has been done on the car, evidently because communications from the Respondent and the Cowra repairer to the Appellant were not returned.
At the hearing on 11 March 2016, the Appellant appeared by telephone through Ms Sophie Stapleton (for about 15 minutes, there was participation also by Mr Armitt). The Respondent participated by telephone. The position maintained throughout by the Appellant was that it had not filed any material in support of the appeal because it took the view that the matter had been settled with the Respondent and that the current fault with the vehicle was associated with the radiator and was a new fault and not a matter with which they should be concerned. The Appellant did not take issue with the outline of events following the decision on 20 November set out in the Respondent's email of 7 March 2016. It is clear that the matter has not been settled. As the record of the hearing on 9 February 2016 makes clear, the resolution reached between the parties was not final at that date as it was subject to documentation. It is apparent from the Respondent's email of 7 March that the settlement has collapsed and the parties appeared at the appeal hearing and presented submissions concerning the appeal. The Appellant did not submit that the appeal should not proceed because the dispute between the parties had been settled.
The only explanation which the Appellant gave to support the allegation of failure to give it a fair hearing was a comment by Mr Armitt that the Member had kept talking over Ms Stapleton.
[4]
Determination
The matters raised under the heading "Decision of the Tribunal against the weight of evidence" effectively reproduce the matters identified under the heading "Decision not fair and equitable". It is convenient to deal with each ground under both headings rather than addressing the headings separately.
Although not identified in the Notice of Appeal as an alleged error of law, the suggestion that the matter was not heard fairly and that the Appellant was not given the chance to explain the matter in full would, if established, constitute an error of law as a denial of procedural fairness (see Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at 13).
However, as noted above, the Appellant did not put before the Appeal Panel any material to suggest that it had not been given a fair hearing or an opportunity to explain the matter in full. No transcript was tendered, no affidavit or statutory declaration or even any written statement by any person present at the hearing was filed by the Appellant. As noted above the Appellant was required to file material it relied upon in advance of the hearing. Having failed to do so, it has failed to establish that it was in any respect denied procedural fairness.
The first ground of appeal must fail.
There is some ambiguity in the second ground of appeal. Section 5b of the standard form Notice of Appeal is headed "Grounds of Appeal" and the instructions provided on the form state "List below a short summary of each reason why you consider the Tribunal was wrong when it decided to make the orders appealed from".
The Appellant left Section 5b blank. It is therefore not clear what the Appellant intended by the reference to "5b of this document Point 2". The Appellant attached to the Notice of Appeal an "e-Safety Check Report" (that is a pre-registration check report) numbered AO3190807 dated 16 March 2015 which recorded that the vehicle had passed inspection for "Registration Renewal".
It was not made clear to us whether this document had been before the Tribunal at first instance. The grounds of appeal set out under the heading "Decision of the Tribunal against the weight of evidence" suggest the Appellant did put the document before the Tribunal. From the statement in paragraph 4 of the decision "I am satisfied after consideration of the evidence (including the various inspection reports created before and after purchase) [that the engine leakage problems] did exist at the time of purchase", we infer that the Report was before the Tribunal and was taken into account by the Tribunal in reaching the conclusion that the engine leakage problems existed at the time of purchase. We also infer that other reports, including reports relating to the failed inspections on 13 May 2015, 11 June 2015 and 22 September 2015 were before the Tribunal.
In those circumstances we are not persuaded that the decision was not fair and equitable or was against the weight of the evidence. Nor can we conclude that the conclusion that the engine problems existed at the time of purchase was unreasonably arrived at and clearly mistaken.
If, on the other hand, the e-safety check Report of 16 March 2015 was not before the Tribunal at first instance, it cannot be said that that report was evidence now available that was not reasonably available at the time of the hearing.
The second ground of appeal must fail and,to the extent that the Appellant requires leave to appeal on that ground, we refuse such leave.
The remaining ground relied upon by the Appellant is that the orders made by the Tribunal do not take account of the fact that the motor vehicle was subject to finance and encumbered in some unidentified way to a financier identified as Money3 Corporation.
The Respondent did not dispute that the vehicle is subject to a finance arrangement with Money3 Loans Pty Ltd. In fact, she enclosed with her reply documents a letter from Money3 Loans Pty Ltd dated 30 November 2015 providing a payout figure for the loan at an anticipated discharge date of 11 December 2015.
The Appellant attached to the Notice of Appeal a PPSR certificate generated on 20 November 2015 in respect of the vehicle which recorded that it was subject to a security interest in favour of Money3 Loans Pty Ltd. The Appellants do not suggest that this document was tendered at the hearing of the Application below. Although the Respondent's initiating application referred to the fact that she had taken out a loan of $6,500 to purchase the car, there is nothing before the Appeal Panel to suggest that there was before the Tribunal at first instance any evidence of the existence of an encumbrance which might render the orders made by the Tribunal below inappropriate.
In those circumstances we cannot find that there is any basis to conclude that the Tribunal erred in making the orders it did on the basis of the evidence before it. It cannot be said that evidence of the existence of an encumbrance was evidence that could not have been reasonably available at the hearing. It cannot be said that the decision of the Tribunal was not just and equitable or that the Appellant was deprived of any significant possibility or a chance which was fairly open of achieving a different and more favourable result. We cannot conclude that there was any substantial miscarriage of justice and therefore cannot grant leave to appeal.
The third ground of appeal must fail and, to the extent that the Appellant requires leave to appeal on that ground, we refuse such leave.
It follows that leave to appeal will be refused and the appeal must be dismissed. Nevertheless, it is necessary to take account of circumstances that have occurred since the orders were made in these proceedings.
Firstly, the Respondent has received from the Appellant a payment in the amount of $3,800.72. The orders should be adjusted to take account of that payment.
By reason of the stay of the orders made on 20 November 2015, further interest on the loan from Money3 Loans Pty Ltd will have accrued. We note that pursuant to Rule 39 of the Civil and Administrative Tribunal Rules 2014 interest at the rate prescribed for the time being for the purposes of s101 of the Civil Procedure Act, has been accruing on the amount ordered by the Tribunal since 20 November 2015. That rate is, and has been since 20 November 2015, 8% per annum. This is clearly less than the interest payable on the Money3 loan. We were informed that the payments on the loan were $149.72 fortnightly.
The order of the Tribunal below should be varied to require the Appellant to reimburse the Respondent the further payments she has made since 20 November 2015 against which credit should be given in respect of any interest that has accrued on the original award (insofar as it has remained unpaid from time to time) pursuant to Rule 39.
It was common ground between the parties at the appeal hearing that it was appropriate to vary the orders to provide for moneys to be paid directly to Money3 Loans Pty Ltd to the extent that the loan to the Respondent remains unpaid.
Order 2 which provides for the Respondent to return the vehicle should be varied to provide that the Appellant make its own arrangements to collect the vehicle from its present whereabouts (which as at the date of the hearing appeared to be the repairer's premises in Cowra). Any claim by the repairer in Cowra for storage fees or otherwise is a matter for the Appellant to deal with.
The parties will have leave to relist the matter before the Tribunal constituted by a single Member to resolve any dispute concerning the amount payable pursuant to the varied orders.
The orders we make will be as follows:
1. Leave to Appeal refused.
2. Appeal dismissed.
3. The stay of the orders made by the Tribunal on 20 November 2015 granted on 7 December 2015 is lifted.
4. Orders 1 and 2 made on 20 November in Proceedings MV15/47226 are varied to be as follows:
1. Central West Autos Pty Ltd 180-182 Peisley Street Orange NSW 2800 Australia is to pay Clarissa Boyd ***, Cowra, NSW 2794 Australia the sum of $8,896.00 immediately.
Particulars:
- Refund of purchase price paid - $6500
- Interest paid by applicant to date on loan obtained for purchase - $2396.
2. Central West Autos Pty Ltd may make such arrangements as it may see fit with respect to the collection of the subject vehicle being Jeep Grand Cherokee registration BFV63L from its present location. Any claim by any third party in respect of storage fees or otherwise relating to the vehicle is a matter for Central West Autos Pty Ltd to deal with.
1. The orders made on 20 November in Proceedings MV15/47226 are further varied by the addition of the following additional orders:
3. Central West Autos Pty Ltd shall pay to Clarissa Boyd the interest component of all payments made by Clarissa Boyd to Money3 Loans Pty Ltd after 20 November 2015 in respect of the loan by which the purchase of the vehicle was financed, less such amounts as have accrued pursuant to Rule 39 of the Civil and Administrative Tribunal Rules on the sum payable pursuant to Order 1. For the avoidance of doubt it is noted that interest accrued pursuant to Rule 39 will remain payable, the intent of this order being to avoid Central West Autos being obliged to pay interest twice in respect of the same obligation).
4. (a) Central West Autos Pty Ltd may make payments to Money3 Loans Pty Ltd in satisfaction of Order 1 above.
(b) The amount so paid shall not exceed the amount required to discharge the loan from Money3 Loans Pty Ltd to Clarissa Boyd by which the purchase of the vehicle was financed.
1. Note that the Appellant has paid the Respondent the sum of $3,800.72 on 9 February 2016.
2. The parties have leave to relist the matter before the Tribunal constituted by a single member to resolve any dispute concerning the amount payable pursuant to the varied orders.
[5]
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: 12 May 2016