Coastal Nursing Care Pty Ltd v Tynan Motors Pty Ltd t/as Tynan Motors Pty Ltd [2025] NSWCATCD 123;

1. By consent, the name of the applicant Michelle Gatt, is amended to Coastal Nursing Care Pty Ltd.

2. By consent, the application is withdrawn.

3. The Tribunal notes the agreement of the parties that:

a. The applicant shall return the Mitsubishi Outlander Aspire 2.5 LCVT 2WD 75 MY22 vehicle to the first respondent (Original Vehicle).

b. On or before 16 August 2024, the Respondents will provide the Applicant with a replacement vehicle that has the following specifications (Replacement Vehicle):

i. Mitsubishi MY22 Outlander Aspire motor vehicle;

ii. Model No: ZM4P46;

iii. VIN: JMFXTGM4WNZ000130;

iv. Colour: White diamond;

v. Trim: Black suede with leatherette;

vi. approximately 20,000 kms;

vii. up-to-date service history at an authorised Mitsubishi dealership;

viii. overall good condition both interior and exterior, with no pre-existing damage.

b. The First and Second respondents agree that the Replacement Vehicle will be provided to the Applicant with:

i. A Mitsubishi 10 year 200,000 kilometre warranty; and

ii. Mitsubishi 10 year 150,000 kilometre capped price servicing;

to the same effect as that provided to the Applicant with the Original vehicle, save that the 10 year period referred to in sub paragraphs (a) and (b) shall expire on 7 October 2032.

c. Prior to the Replacement Vehicle being delivered to the Applicant, the First and Second Respondents shall remove from the Original Vehicle the "non-genuine dealer fitted accessories" listed in the purchase order dated 10 November 2022 (Accessories) and instal them on the Replacement Vehicle at their own cost. If in removing any of the Accessories from the Original Vehicle, any of them become damaged in any way, the First and Second Respondents shall instal new and undamaged accessories of the same card on the Replacement Vehicle at their cost.

d. Prior to the Replacement Vehicle being delivered to the Applicant, the First Respondent will remove the wheels from the Original Vehicle and install them on the Replacement Vehicle, at its own costs.

e. Prior to the Replacement Vehicle being delivered to the Applicant, the Respondents shall arrange for the Replacement Vehicle to be registered in New South Wales for a minimum period of 6 months from the date on which the Replacement Vehicle is to be transferred to the Applicant.

f. All costs associated with registering the Replacement Vehicle and transferring its ownership to the applicant (including, but not limited to registration fees, compulsory third party insurance, stamp duty etc) shall be met by the Respondents with the intention that there be no cost to the Applicant.

g. The Respondents agree to:

i. co-operate in the transfer of the number plates from the Original Vehicle to the Replacement Vehicle; and

ii. reimburse the Applicant for the cost incurred by the Applicant in transferring the number plates from the Original Vehicle to the Replacement Vehicle (if any) within seven days of the presentation of an invoice/receipt to them by the Applicant.

h. The parties agree that all steps necessary to provide the Applicant with the Replacement Vehicle in accordance with this Settlement Agreement are to be completed by 16 August 2024.

4. The Tribunal further notes the agreement of the parties that:

i. On the Applicant returning the Original Vehicle to the first Respondent and entering into a Loan Vehicle Agreement with the Second Respondent, the Second Respondent shall provide the Applicant with a loan replacement vehicle of the same or larger size to the Original Vehicle until such time as the Replacement Vehicle is transferred to the Applicant;

ii. The provision of the loan replacement vehicle shall be at the Second Respondent's cost, with the intention that there be no cost to the Applicant for the use of the loan replacement vehicle;

iii. The second respondent shall not require the applicant to incur any burden to pay an excess, or to pay any such excess, in relation to the loan replacement vehicle for the period in which it is in the Applicant's possession;

iv. To the extent that there is any inconsistency between the terms of the Loan Vehicle Agreement and the settlement agreement set out in these orders, the terms of the settlement agreement set out in these orders shall prevail.

v. The loan replacement vehicle shall be ready for the Applicant's collection from the First Respondent's premises from 12:00 noon on 9 July 2024.

5. The Tribunal further notes the agreement of the parties set out in these orders represents a full and final settlement of all claims arising from the matters which are the subject of the Application.

1. The effect of the 8 July 2024 orders and / or notations (the July 2024 Order) includes that the Tribunal:

(1) notes, by consent, that the Original Application is withdrawn

(2) Notes and provides a written record of the terms of an agreement made between the applicant and the respondents on or about 8 July 2024 to settle the Original Application (the Settlement Agreement); and

(3) notes that the Settlement Agreement is in full and final settlement of all claims arising from matters which are the subject of the [Original Application].

1. The present application was filed on 9 December 2024.
2. It:

Full refund of original vehicle cost [48,500.00]. Fair Trading Act [NSW] Section 60: Guarantee as to acceptable quality, Section 62: Guarantee as to supply by description, Section 64: Remedies for breach of Guarantee. Motor dealers Act Section 54: Dealers obligation to ensure vehicles are roadworthy, Section 58: Duty to comply with tribunal orders.

(2) identified the following reasons for the orders sought;

In July 2024, a consent order was made by NCAT, Mandating the replacement of my defective car, with a replacement car. The replacement car must comply with the orders, and Tynan and Mitsubishi Motors were to adhere to these orders. Despite these, both companies have failed to fulfil their obligations. Incorrect vehicle delivered, Replacement car agreed upon must be a 2022 model, a 2021 model was delivered. Failure to meet the delivery time and date, the agreed delivery details were not honoured. Accessory issues, accessories that were supposed to be installed onto the replacement car were either faulty, partially installed or required additional work and/or replacement. Defective wheels and brakes, immediate safety concerns of replacement vehicle, withheld and incomplete documentation, the condition of the vehicle on delivery, delays and poor communication. I would ask that we can please forgo the conciliation process, as I have already attempted to do this properly and to no avail. Both companies have had many chances to rectify the issues, however, chose to be non-compliant, and obstructive.

1. In summary, the present dispute arises because the applicant contends that following the return of the Original Vehicle, the Replacement Vehicle the respondents provided to the applicant did not accord with the requirements of the Settlement Agreement.

1. Ms Michelle Gatt, the director of the applicant appeared for the applicant.
2. Mr Tink, a group service manager employed by Tynans, appeared for Tynans.
3. Mr Islam, a senior manager for legal and risk employed by the Mitsubishi Motors, appeared for Mitsubishi Motors.
4. The applicant relied on a 185 page bundle of documents filed with the Tribunal on 4 March 2025 which was marked Exhibit A. It included:

(1) A chronology;

(2) An 8 page document with headings identifying 6 Points of Claim and a summary of the dispute (Points of Claim);

(3) A copy of the July 2024 Order;

(4) Insurance records identifying an agreed value for the Replacement vehicle from 29 August 2024 to 20 August 2025 of $46,816.00 and the Original Vehicle from 20 November 2023 to 20 November 2024 of $55,200.00 (Insurance Records).

(5) Various records, emails and photos in relation to the Original Vehicle and the Replacement Vehicle;

(6) A vehicle inspection report prepared by John Stakos of "State Roads" / "ww.stateroads.com.au" dated 21 February 2025 (the Vehicle Inspection Report);

(7) Documents that had been filed in the 2023 Application proceedings.

1. Tynans relied on a bundle of documents filed with the Tribunal on to April 2025 which was marked Exhibit B. It included a 9 page summary responding to the applicants claims including copies of emails, records, a repair order, photos of the Replacement vehicle and a statement of its workshop controller, Trent Robertson.
2. Tynans also relied on the submissions and documents filed by the second respondent.
3. Mitsubishi relied on an indexed bundle of documents filed with the Tribunal on 3 April 2025 which was marked Exhibit C. It included:

(1) Points of Defence;

(2) Various price range records for various MY22 Outlander vehicles, manufactured in 2021 or 2022;

(3) Price Guides for a 2021 manufactured MY22 Outlander Aspire AWD and a 2022 manufactured MY22 Outlander Aspire 2WD,

(4) An email dated 21 August 2022 described as "Handover Summary" (Handover Summary);

(5) Lost logbooks and service records or the Replacement vehicle;

(1) the applicant provided the Original Vehicle to the respondents; and

(2) subject to considering whether it was provided in accordance with the Specifications and the terms of Settlement Agreement, the Replacement Vehicle was provided to the applicant, all be it about 4 days late.

1. The main compliant raised by the applicant is that:

(1) mindful that the Original Vehicle was manufactured in 2022, the Specifications in the Settlement Agreement, by requiring the delivery of an MY22 vehicle, required the vehicle to be an MY22 vehicle manufactured in 2022, whereas

(2) what was delivered by the respondents was a MY22 vehicle that had been manufactured in 2021; and

(3) that the difference in value between an MY22 vehicle manufactured in 2021 and an MY22 vehicle manufactured in 2022 is between about $9000.00 and $10,000.00.

1. The Applicant raised several other matters, including tat:

(1) The Replacement Vehicle was delivered late;

(2) There had been a failure to transfer accessories including wheels and tyres from the Original Vehicle to the Replacement Vehicle in accordance with the Settlement Agreement;

(3) The number plates were not transferred;

(4) Log books and service records were not provided with the Replacement Vehicle, although they were provided later; and that

(5) The condition of the Replacement Vehicle did not accord with the Specification which required it to be in good condition, inside and out.

1. The respondents agree that the Replacement Vehicle was manufactured in 2021 but contend that it doesn't matter because the Settlement Agreement specified an MY 22 vehicle, which the Replacement vehicle is, and that in any event, even if the Replacement Vehicle was to be an MY22 vehicle manufactured in 2022, there is no difference in the value between the vehicle supplied and that required to be supplied.
2. The respondents otherwise:

(1) contend that although the Replacement Vehicle was delivered late, it was only about 4 days late, and that wit as not their fault, because the transfer of finance was pending;

(2) agree that there was an issue with transferring the wheels and tyres and other items to the Replacement Vehicle, but that it was generally remedied at no cost to the Applicant, but that some wheels/ tyres were left on the Replacement Vehicle because they were in better quality than the wheels on the Original vehicle;

(3) agree that the service records and log books were not provided until October 2024;

(4) deny that the condition of the Replacement Vehicle did not accord with the Specifications; and

(5) deny the applicant's claim.

1. Tynans also contend that the obligation to supply the Replacement Vehicle was with Mitsubishi Motors, and that Tynans was only required to swap the accessories from the Original Vehicle to the Replacement Vehicle which was to be supplied by Mitsubishi Motors.
2. The applicant agreed that although several issues were raised as to why the terms of the Settlement Agreement had not been complied with, the outstanding issues were with respect to the year of manufacture and the general condition of the Replacement Vehicle, and by the time of the hearing, although the applicant relied on all matters as relevant to the conduct of the respondents in complying with the Settlement Agreement, the primary or real issues with respect of the Replacement Vehicle were:

(1) whether it was required to be manufactured in 2022, rather than 2021 and,

(2) having regard to the Inspection Report whether it was in "over all good condition both interior and exterior, with no pre-existing damage".

(1) Whether the Replacement Vehicle was required to be manufactured in 2021;

(2) Whether the Replacement Vehicle was in accordance with the condition required by the Settlement Agreement that it, be in "overall good condition both interior and exterior, with no pre-existing damage"

(3) Subject to (1) and (2) whether one or other or both respondents breached the Settlement Agreement with respect to the supply of the Replacement Vehicle;

(4) Subject to (3), the relief, if any that ought to be ordered; and

(5) To the extent any relief if is ordered, whether the orders should be made against one or other or both respondents.

1. When looked at in that light, and having regard to the evidence:

(1) the applicant is a consumer with respect to the supply of the Replacement Vehicle pursuant to the Settlement Agreement; and

(2) in so far as the application seeks the refund of the cost of the Original Vehicle, the claim is misconceived because any claim in respect of the supply of the Original Vehicle has been resolved by the parties entering the Settlement Agreement and it is in respect of that Settlement Agreement that a claim can now be made;

(3) notwithstanding what was stated in the Application for the orders sought, the claim does not concern a failure to comply with guarantees implied by the Australian Consumer Law (ACL) including that Replacement Vehicle was not of acceptable quality (s 54 Australian Consumer Law (ACL)), as that term is defined in the ACL, or not reasonably fit for a disclosed purpose (s55 ACL); and

(4) as noted below, in my view, the claim can be considered a consumer claim in under the FTA in respect of the supply of the Replacement Vehicle under the Settlement Agreement.

(1) mindful that neither respondent contended that the applicant was not a consumer, that the applicant is a consumer for the purposes of S79D Fair Trading Act 1987 (NSW) (FTA);

(2) the Replacement Vehicle was provided in and the Settlement Agreement made in New South Wales;

(3) mindful that the Replacement Vehicle was supplied in 2024, the claim was lodged within three years of the cause of action occurring (S70L FTA);

(4) the claim is a consumer claim within the meaning of S79E FTA because it involves a claim for the payment of a specified sum of money arising out of the supply of goods (being the Replacement Vehicle) or the intended supply of goods in New South Wales, and

(5) the Tribunal has jurisdiction to hear and determine the dispute and to make orders pursuant to S79N or 79O of the FTA.

1. Mindful that the FTA however does not create a cause of action, Jurisdiction is conferred on the Tribunal by reference to the general type of claim made by the consumer (Lam v Steve Jarvin Motors Pty Ltd [2016] NSWCATAP 186), and a cause of action is predicated upon the existence of causes of action that arise independently from Part 6A (Flight Centre Travel Group Limited T/A Aunt Betty v Goel [2021] NSWCATAP 44 [18] to [19]; Matumaini v Automobile Industries Pty Ltd [2017] NSWCATAP 93 [97]), here, the cause of action concerns a breach of the Settlement Agreement with respect to the supply of the Replacement Vehicle.
2. I note, that because the matter is being considered as a consumer claim under the FTA, in the making of any order, I am required pursuant to s 79U of the FTA to be satisfied that the orders will be fair and equitable to all parties.

1. The July 2024 Order noted that the Replacement Vehicle was to be a Mitsubishi MY 22 Outlander Aspire motor vehicle, but d id not state whether it was required to be manufactured in 2022
2. Relevant to the dispute as to whether the Settlement Agreement required the Replacement Vehicle to be a 2022 manufactured MY22 vehicle or whether it could be a 2021 manufactured MY22 vehicle, the applicant's evidence included extracts of what was said at the hearing before the Tribunal when the July 2024 Order was made, including the following statements by one or other of the respondents in respect of the Replacement Vehicle to be provided:

"same model, slightly fewer kilometres,"

"the same model and year"

"the VIN number is in essence the same ..."

"the only difference is a two-wheel drive versus a four-wheel drive".

(1) the July 2024 Order noting that the Replacement Vehicle was to be an MY 22 Vehicle;

(2) the objective background fact as to what was stated at the hearing when the Settlement Agreement was made;

(3) the Respondents not stating to the effect that the Replacement Vehicle was or could be manufactured in 2021; and

(4) the fact that the Original Vehicle that was to be replaced by the Replacement Vehicle, was manufactured in 2022;

(a) it is to be inferred, on a proper construction of the Settlement Agreement, that the Replacement Vehicle was to be a 2022 manufactured MY22 vehicle; or

(b) it was an implied term of the Settlement Agreement as necessary to give business efficacy to it, that the Replacement Vehicle was to be manufactured in 2021.

1. I am therefore satisfied that, in breach of the Settlement Agreement, a 2021 manufactured MY22 Mitsubishi Outlander, rather than a 2022 manufactured MY 22 Mitsubishi Outlander, was supplied to the applicant.
2. As to whether the Replacement Vehicle was in "overall good condition both interior and exterior, with no pre-existing damage" the applicant relies on the Vehicle Inspection Report.
3. The Vehicle Inspection Report was prepared following an inspection on 21 February 2025, about 6 months after the Replacement vehicle was supplied, and noted (underlining added):

Build date: 8 - 21

Odometer: 35,434

Battery efficiency low, requires charge / test. Electronic diagnostic scan showed several faults recorded and will need further workshop assessment and fault clearing/repairs. Engine has plastic covers/shields fitted which limit view of components. No coolant or co2 leakage was detected...No Engine bay oil leakage found... (Ex A p 84).

"...

Some wear visible at suspension and bushes etc but consistent for age in kilometres".

No major damage visible at body shell however has minor dents / scratches / marks - cosmetic, attention may be needed to improve overall appearance. Vehicle has had panel and paint repairs to various panels - no evidence of any chassis or ....

Interior showing wear and tear - consistent with age or kilometres.

(6) At the Inspection Report Summary - applying the Orange colour coding used for fair / average, compared to Red for poor and Green for good, that the Body and Interior rating were:

Fair / Average - comparing this to similar vehicles we have inspected, it is showing greater wear and tear than others - needing various items serviced or repaired / replaced as noted in the report.

1. The respondents relied on the Handover Summary. It is an internal email, contemporaneous with the handover of the Replacement Vehicle which identifies, amongst other matters, issues raised by the applicant and the response of the Mitsubishi Motors at the handover representative.
2. The matters, items or issues identified on the Handover Summary, include:
   • That the Replacement Vehicle was not a 2022 manufactured vehicle.
   • That the applicant's insurance company will value the vehicle for less that if it was manufactured in 2021.
   • That Mitsubishi Motors representative informed the applicant that the Replacement vehicle was an AWD not a 2WD.
   • Whether the wheels from the original vehicle had been swapped over.
   • Whether a full size spare was missing and ought to have been provided.
   • A missing carpet mat.
   • The accessories that were to be swapped from the Original Vehicle.
   • The audio unit, apple car play and wireless charging.
   • When the next service would be.
3. It does not appear to me that it records any discussion as to any panel damage or whether the Replacement Vehicle was in a good condition inside and out.
4. There was however no evidence of an inspection being performed of the Replacement Vehicle by one or other of the respondents before or at the time of handover.
5. Although mindful that the Replacement Vehicle had been driven for over 10,000.00 km from supply to the date of the Inspection report, in the absence of any evidence from which it could be inferred that the condition of the Replacement Vehicle had deteriorated from good to fair had occurred between hand over in August 2024 to February 2025, I am satisfied that when the Replacement Vehicle was supplied to the applicant in late August 2026, it was generally in the condition identified in the Vehicle Inspection Report.
6. Because of what is stated in the Vehicle Inspection report, I am therefore satisfied, that in breach of the Settlement Agreement, the Replacement Vehicle was in fair to average, rather than good condition inside and out.
7. Because the Vehicle Inspection Report states that it had "panel and paint repairs to various panels", I am also satisfied that it had had previously had some damage, but that the damage had been repaired and that at the time of the inspection, there "there was no major damage visible"
8. Having found that the Replacement Vehicle was not in accordance with the Settlement Agreement because it was manufactured in 2021 rather than 2022 and was in fair / average rather than good condition inside and out, the applicant is entitled to is damages to reflect the difference in value between what was supplied, being a 2021 manufactured vehicle in fair condition, and what was required to be supplied, being a 2022 manufactured vehicle in good condition. inside and out.
9. In my view the proper measure of the damages to be awarded is the difference in market value between the 2021 vehicle supplied and the 2022 vehicle that was required to be supplied.
10. A complicating feature however is that the Replacement Vehicle was all-wheel drive (AWD) whereas the original vehicle was a two-wheel drive vehicle.
11. My understanding is that an AWD vehicle was supplied because that was what the Mitsubishi Motors had available and not because that's what was required.
12. The applicant relies on her insurance records which show that the Replacement Vehicle was insured for the period August 2024 to August 2025 for an agreed value of $46,816.00 whereas the Original Vehicle was insured for the period November 23 to November 24 i.e. about 12 months earlier, for an agreed value of $55,200.00.
13. I also note that the Insurance Records for the Original Vehicle show that "Last year's agreed value (being 2022 to 2023)" was $48,500.00.
14. The difficulties I have with the Insurance Records are:

(1) They identify an agreed, rather than a market value;

(2) One is for the 2023/ 2024 whereas the other is for 2024 / 2025;

(3) It is not clear to me why the agreed value went from $48,500.00 for 2022 to 2023 to $55,200.00 for 2023 to 2024.

1. I therefore place little weight on the Insurance Records to assist me in determining the difference in value and therefore the damage to be ordered.
2. The respondents rely on the results of on line searches for the price range of Mitsubishi Outlander vehicles manufactured in 2021 and 2022.
3. In my view, because that the Replacement Vehicle was to replace the Original Vehicle, being an MY 2022 Mitsubishi ZM Outlander Aspire 2WD manufactured in 2022, I should ignore the fact that an AWD vehicle was in fact delivered, and calculate the damage on the basis of the difference in value between:
   • A MY22 Mitsubishi Outlander Aspire ZM auto 2WD drive vehicle manufactured in 2022 in good condition; and
   • A MY22 Mitsubishi Outlander Aspire ZM auto 2WD drive vehicle manufactured in 2021 in fair to average condition.
4. In that light, the most relevant sales records are for:

(1) the second vehicle at page 9 of Exhibit C, showing the price range for a 2021 manufactured Mitsubishi Outlander Aspire ZM auto two wheel drive MY22, of $26,650.00 to $33,800.00; and

(2) the vehicle at page 17 of Exhibit C, showing the price range for a 2022 manufactured Mitsubishi Outlander Aspire ZM auto two wheel drive MY22, of $27,700.00 and $35,000.00.

(1) The value of a 2022 manufactured Mitsubishi Outlander Aspire ZM auto MY22 in good condition would be at the upper end of the $27,700.00 to $35,000.00 range, and mindful that the range is for a vehicle with 45,000 to 75,000km, whereas the Original Vehicle had and the Replacement Vehicle was to have and had in the order of $20,000.00 to 22000 km, say $35,000.00.

(2) The value of a 2021 manufactured Mitsubishi Outlander Aspire ZM auto MY22 in fair to average condition would be towards the middle the $26,650.00 to $33,800.00 range, say $30,225.00.

(3) The difference in value and the damage to which the applicant is entitled is therefore $4,775.00

1. The first respondent says that it should not be responsible in respect of any relief that is granted because it was only required to exchange some parts over. The difficulty I have with that is the July 2024 Order notes that the Settlement Agreement required that the respondents provide the Replacement Vehicle.
2. Any order should therefore be against both respondents and not just the second respondent.
3. Mindful of s 74U of the FTA, I am satisfied that an order that the respondents pay the applicant $4,475.00 would be fair and equitable to all parties.
4. I therefore order that the first and second respondents are to pay the applicant the sum of $4,475.00 within 28 days.
5. In respect of costs:

(1) If any party wishes to seek an order in respect of costs other than each party is to pay its own costs, it is to file and serve submissions and any evidence in support of its application for costs within 14 days.

(2) Any submissions or evidence in response are to be filed and served within a further 14 days.

(3) Any submissions in respect of costs are to state whether the party consents to the question of costs being determined on the papers, and if not why.

(4) If there is no application for costs, then there will be no order as to costs, which the intent that each party pay its own costs.

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.