The reasons relate to a claim by the appellant for an order in its favour for repayment of monies previously paid to the respondent in connection with a claim by the respondent arising from the sale of a motor vehicle and the subsequent enforcement by the respondent of orders made in her favour.
The application came before the Appeal Panel for determination in consequence of orders made by the Appeal Panel on 12 May 2016 and directions made in respect of the present application on 19 August 2016.
[2]
History of proceedings
The respondent (Boyd) commenced proceedings in the Consumer and Commercial Division of the Tribunal seeking orders for the repayment of the purchase price of a Jeep Grand Cherokee motor vehicle which she purchased from the appellant and said was defective. These proceedings were application MV 15/47226 (Original Proceedings). In the Original Proceedings the respondent also sought compensation in respect of a loan which she had taken out to finance the purchase of the motor vehicle which she claimed was defective.
On 20 November 2015, the Tribunal made orders in favour of the respondent requiring the appellant to refund to the respondent the purchase price for the vehicle, namely $6,500.00 together with interest paid by the respondent on the loan to purchase the vehicle, an amount of $2,396.00. The Tribunal also made orders for the collection of the motor vehicle by the appellant.
The appellant appealed that decision by Notice of Appeal dated 25 November 2015. It is not necessary to set out the grounds of appeal. It is sufficient to record that the appeal was heard by the Appeal Panel and orders were made and reasons published on 12 May 2016. The reasons are contained in the decision Central West Autos Pty Ltd v Boyd [2016] NSWCATAP 102 (Appeal Panel Decision).
The orders made by the Appeal Panel were 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.
5. 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.
6. Note that the Appellant has paid the Respondent the sum of $3,800.72 on 9 February 2016.
7. 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.
In the present application, the appellant says that the total amounts which it has paid to the respondent exceed the amounts it was required to pay in consequence of the Appeal Panel Decision. Consequently, the appellant says it is entitled to an order in its favour for a refund of the excess amount which has been recovered by the respondent, above her entitlements in consequence of the Appeal Panel Decision.
The application was listed before the Appeal Panel for hearing on 24 August 2016. Pursuant to order 7 of the Appeal Panel Decision, this hearing occurred before a single Member of the Tribunal, which order enabled the Appeal Panel to "resolve any dispute concerning the amount payable pursuant to the varied orders".
To facilitate this hearing, the Appeal Panel made directions on 19 August 2016. These directions required the parties to provide to the Tribunal and each other statements setting out various information concerning what amounts had been paid by the appellant to the respondent pursuant to the orders made and what amounts were paid to the finance company who had financed the original purchase of the vehicle. The information required also included details of the interest paid to the finance company.
The parties had liberty to attend via telephone. After difficulties in communication were resolved a telephone hearing was conducted. The appellant appeared by its representative Mr Stapleton. The respondent, Ms Boyd, appeared for herself. Both parties attended by telephone.
Each of the parties had previously forwarded to the Tribunal various emails setting out their position concerning the payments that had been made. In addition, the Appeal Panel had the benefit of evidence from the parties given informally during the course of the hearing concerning what payments had been made.
In this regard the respondent gave the following evidence:
1. She had purchased the motor vehicle, the subject of the dispute for a total of $6,500.00;
2. The vehicle had been financed in part by a finance company (Money 3), the principal amount of the loan being $5,850.00; and
3. The finance company loan was discharged on 17 May 2016. Total payments to the finance company were $8,010.41, consisting of the principal debt of $5,850.00 and interest of $2,160.41. It is to be observed that the amount of interest paid to the finance company was in fact less than the amount of $2,396.03 awarded by the Tribunal on 20 November 2016 as confirmed by the Appeal Panel. The reason for this difference arose because the appellant was able to negotiate a discount payout for the finance company when the loan was discharged on 17 May 2016.
4. Of the total amount of $8,010.41 paid to the finance company, the payment made by the appellant to discharge the loan was $4,716.67. The balance of $3,293.79 had been previously paid by the respondent to the finance company as part of the regular repayment requirements of the loan.
5. In relation to the payments that had been made by the appellant to the respondent or on the respondent's behalf, the evidence from the respondent indicated the following payments had in fact been made:
1. $3,800.72 on 9 February 2016 (as found in the Appeal Panel Decision: see par 36);
2. $4,716.67 paid by the appellant to the finance company (Money 3) on 17 May 2016 to discharge the finance agreement; and
3. $4,770.42 which was paid to the respondent pursuant to a garnishee order on 15 June 2016.
The respondent has therefore received or has had paid on her behalf amounts totalling $13,294.81.
[3]
Submissions
The appellant says that the respondent wrongly garnisheed its bank account to obtain payment of $4,770.42 and that it was entitled to immediate repayment of this sum of money.
The respondent said that the amount was properly to be retained by her as part of the satisfaction of the orders made in the Appeal Panel Decision. Further, the respondent said that she was entitled to retain the sum of $3,800.72 because there was an earlier agreement between the parties that she would receive this amount as compensation pursuant to an agreement reached in about February 2016.
However, in relation to the amount of $3,800.72, it became apparent during the course of the hearing:
1. That to the extent the parties had tried to resolve their disputes in February 2016 that these attempts were unsuccessful and there was doubt that any agreement had been reached;
2. To the extent the respondent had a claim for consequential damage arising from the supply of the motor vehicle that issue had either not been dealt with or was not the subject of any award by the Tribunal in the Original Application; and
3. In any event, in par 36 of the Appeal Panel Decision had stated:
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.
Consequently, it follows from the orders made by the Appeal Panel, particularly order 6 and the Appeal Panel Decision at par 36 that the sum of $3,800.72 is to be taken into account in determine whether or not the appellant is entitled to an order in its favour for a refund of monies paid.
In passing, the Appeal Panel notes that there were discussions during the hearing of this application concerning whether or not the respondent was entitled to make further claims for consequential loss and damage. This is not a matter to be resolved in the present application and is a matter about which the Appeal Panel indicated the respondent should obtained independent legal advice.
[4]
Consideration
The Appeal Panel Decision granted leave to the parties to "resolve any dispute concerning the amount payable pursuant to the varied orders". In resolving this dispute the Appeal Panel has power to "make such orders as it considers appropriate": see s 81(1) of the Civil and Administrative Tribunal Act, 2013 (NCAT Act). It may also exercise all functions conferred on the Tribunal at first instance when varying or making a decision in substitution for the decision under appeal: see s 81(3) of the NCAT Act.
This includes in the present case a power to make an ancillary order necessary for the purpose of ensuring the orders made have full effect: see s 79R(2) of the Fair Trading Act, 1987.
In circumstances where one party has sought to enforce an order for the payment of money and has recovered an amount in excess of the entitlement, the powers granted allow the Appeal Panel to make an order for repayment, at least in circumstances where leave is granted as has occurred by order 7 made by the Appeal Panel on 12 May 2016.
The issue for determination is what amount, if any, should be repaid to the appellant in consequence of the events which have occurred.
The appellant had an order made against it in the sum of $8,896.00, which order takes effect on 20 November 2015 in consequence of the Appeal Panel Decision.
In addition, the appellant is liable to pay the respondent interest calculated in accordance with r 39 of the Civil and Administrative Tribunal Rules 2014 (the Rules). That rule provides that interest is payable on the outstanding balance for the time being of money adjudged by the Tribunal to be payable and which, being due remains unpaid: see r 39(2).
Having regard to the evidence of the respondent and the fact that a payment was made of $3,800.72 on 9 February 2016, $4,716.67 on 17 May 2016 and $4,770.42 on 15 June 2016, it is clear that the amount awarded remained unpaid for a period of time, although payments were progressively made on the dates to which the Appeal Panel has just referred.
During the relevant period, interest was payable at a rate of 8% per annum pursuant to r 39 of the Rules. The Appeal Panel has calculated that the total amount of interest between the 20 November 2015 and the date the principal debt was paid in full, namely 15 June 2016 was $265.79. The table below records the amount of interest and the reduction of the principal debt.
Schedule of Payments and Rule 39 Interest on Award
Date Item Principal Amount of Award outstanding after payment Accrued r 39 Interest on unpaid balance since last payment
22 November 2015 Award for $8,896.00 $8,896.00
9 February 2016 Payment by appellant - $3,800.72 $5,085.28 $154.03
17 May 2016 Payment by appellant - $4,716.67 $378.61 $109.44
15 June 2016 Amount received from garnishee order - $4,777.42 $0.00* $2.32
Total interest payable $265.79
Following garnishee order respondent had received funds in excess of Tribunal award as varied by Appeal Panel
[5]
It follows that the total amount payable pursuant to the orders of the Appeal Panel was $9,161.79 being the sum of $8896.00 plus interest of $265.79. This is subject to the adjustments required by the orders made 12 May 2016 to avoid double compensation.
As noted above, there is a discrepancy in the amount of interest awarded of $2,396.00 and the total interest finally paid to the finance company. This discrepancy arose by reason of the appellant negotiating a reduce payout with the finance company. While the interest finally payable totalled $2160.41 only, the appellant agreed during the hearing of this application that no adjustment should be made in connection with the difference. In any event, it is doubtful that the Appeal Panel in dealing with the present application is able to reduce the interest awarded by the Tribunal in the Original Application as confirmed by the Appeal Panel in its orders made 12 May 2016.
The final matter to deal with is that part of the orders that indicate there is to be no double compensation in respect of interest. In this regard order 5(3) provides:
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.
Without a complex calculation, and without further evidence in relation to when particular payments to the finance company were made after the Tribunal made orders in the Original Proceedings, a matter about which neither party adduced evidence, it is not possible to determine what payments have been made by the respondent for which she would be entitled to interest under r39 and which amounts she would not be entitled to interest because those sums were otherwise compensated having regard to the terms of the order made in the Appeal Panel Decision.
There is also the difficulty in assessing how any adjustments should be made in determining the amount the appellant was liable to pay in light of the discount received by the appellant in discharging the finance agreement. On the other hand, it is for the appellant to satisfy the Appeal Panel as to the amount of the overpayment and any reduction to the amount payable pursuant to order 1 by reason of the terms of order 5(3).
On balance, the Appeal Panel is satisfied that by calculating interest on the unpaid award in the manner set out in the table above as required by r 39 and deducting the amount of monies actually paid by the appellant to or on behalf of the respondent the amount repayable to the appellant can be reasonably ascertained. While not precise, and doing the best it can on the available evidence, the Appeal Panel is satisfied that if any adjustment is necessary in light of the provisions of order 5(3) it would be minor in nature although it would be slightly in favour of the appellant. Notwithstanding this lack of precision, it is appropriate for the Appeal Panel to finally resolve this matter urgently. This is because, without such adjustment (but including interest payable to r 39) the total sum payable by the appellant was $9,161.79 however the appellant has in fact paid $13,294.81. That is the appellant is entitled to be repaid the sum of $4,133.02.
Neither party sought to challenge this approach nor did they appellant seek an adjournment to adduce further evidence to address this issue, directions having been previously made on 19 August 2016 in this regard.
The obligation on the respondent to make this repayment arises from the fact that the respondent garnisheed the appellant's bank account and received the sum of $4,770.42 on 15 June 2016 despite the fact that, as at that date, an amount of only $378.61 was then payable as the outstanding principal together with accrued interest of $265.79.
In these circumstances, the Appeal Panel is satisfied an order should be made in favour of the appellant requiring the respondent to repay to the appellant the sum of $4,133.02.
In hearing the application, the Appeal Panel also sought to address the issue of whether or not an order should be made for immediate repayment.
The respondent gave evidence that she was on a pension, had children with various health issues and other issues and was unable to immediately pay the whole of the sum. Apparently the funds she had received had been used to purchase a new motor vehicle, which she said was not financed. The parties were unable to agree on any instalment plan for repayment of the amount of $4,133.02.
The appellant contended an order should be made for it to be paid immediately. The respondent said she should be given some time.
There was also discussion about the fact that the respondent may need to obtain finance on the vehicle recently purchased in order to repay the debt. Again, there was a dispute about how long it would take to arrange finance.
In all the circumstances, the Appeal Panel determined that it was appropriate to allow the respondent a period of fourteen days to repay the amount of $4,133.02.
Finally, having regard to the fact that:
1. the Appeal Panel Decision was made on 12 May 2016; and
2. that the respondent received funds by way of garnishee on 15 June 2016 which resulted in an overpayment and these monies were not immediately returned,
it is appropriate that the order for repayment take effect on the date the funds were garnishee and received by the respondent because it is since this time that the respondent has had the benefit of monies in excess of her then entitlement of $378.61 plus interest as set out above. This will mean interest will accrue under r 39 in favour of the appellant from 15 June 2016.
[6]
Orders
The Appeal Panel makes the following orders:
1. The respondent is to pay the appellant the sum of $4,133.02;
2. Order 1 takes effect on 15 June 2016. The intent of this order being that interest payable under rule 39 of the Civil and Administrative Tribunal Rules 2014 will accrue from this date; and
3. The respondent is to pay the amount in order 1 and any interest payable under order 2 on or before 7 September 2016.
[7]
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: 26 August 2016