Courtatos t/as Surf City Motors v Willis

NCAT Appeal Panel|2016-07-27

Solicitors Carl Edwards Solicitor (Appellant) File Number(s): AP 16/19750 Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: Not applicable Date of Decision: 01 April 2016 Before: W Priestley, General Member File Number(s): MV 15/66226

reasons for decision

This is an appeal in respect of a decision made in application MV 15/66266 on 1 April 2016. In those proceedings, the respondent was the applicant who sought orders against the appellant for a refund of money and other costs incurred in relation to the sale of a Toyota Corolla. The appellant was the seller of the motor vehicle who trades as Surf City Motors.
The proceedings were heard on 1 April 2016 and the Tribunal made orders to the following effect: 1. That the appellant was to pay the respondent the sum of $6,876.00 immediately; and 2. The respondent was to collect the motor vehicle from the repairer to whom the vehicle had been towed when it broke down.
The Tribunal provided oral reasons for decision. For the purpose of this appeal, a typed copy of the reasons and a transcript of the hearing have been provided.

Notice of Appeal

The appellant has appealed against the orders made by the Tribunal.
In his Notice of Appeal, under the heading Grounds of Appeal, the appellant says the Tribunal did not observe procedural fairness in that it allowed the respondent to rely on documents served in support of her application after the date provided in the Tribunal's directions in consequence of which the appellant "barely had seven days to respond because of the applicants default".
Consequently, the appellant says the decision of the Tribunal should be set aside and he should be allowed to "put its defence according to principles of procedural fairness and natural justice". In seeking leave to appeal, the appellant says that he was meant to have twenty one days to respond to the applicant's material and that he requested an adjournment to allow him to properly prepare his defence, which request for adjournment was refused.
In support of the appeal the appellant provided written statements from the appellant, Ms Osborne (also referred to as Courtney Couratos, wife of the appellant) and Mr Parker-Clark, a bundle of documents including the appellant's written submissions in support of the appeal and a transcript of what occurred at the hearing and the reasons for decision of 1 April 2016. The appellant also provided a copy of the sound recording.
The respondent filed a Reply to Appeal, in that document the respondent said that the appellant has not sought leave to appeal and no reasons had been provided as to why leave should be given.

History of the appeal

The Notice of Appeal was filed on 27 April 2016. The proceedings were listed for call over before the Appeal Panel on 26 May 2016. At that time the Appeal Panel directed the appellant to provide evidence and the sound recording of the proceedings at first instance and his written submission, which documents were to be provided by 30 June 2016. Those orders also directed the appellant provide any new evidence. The respondent was to lodge evidence and submissions in reply by 14 July 2016. The proceedings were otherwise fixed for hearing on 27 July 2016.
When the matter came on for hearing on 27 July 2016 it was clear that all necessary documents required for the purpose of the appeal had not been filed. On 27 July 2016 each of the parties was represented by lawyers, the appellant's lawyer saying that he had been only partially retained for the purpose of presenting the appeal and that the appellant had sought to otherwise prepare the matter for hearing.
On 27 July 2016, the Appeal Panel adjourned the appeal for hearing on 29 September 2016 and made directions to the following effect: 1. The appellant was to lodge all evidence provided to the Tribunal below together with a typed copy of the sound recording and reasons for decision, any new evidence and written submission in support of the appeal by 18 August 2016; 2. The respondent was to provide any submissions in reply by 1 September 2016; 3. The appellant was to lodge any submissions in reply to the respondent's submissions by 8 September 2016; and 4. The question of costs of the adjournment was reserved.
Subsequently to these directions the Tribunal received an indexed bundle of documents from the appellant containing his submissions in support of the appeal, statutory declarations from Ms Osborne and Mr Parker-Clark and a transcript of the hearing before the Tribunal on 1 April 2016. The Appeal Panel also received submissions in opposition to the appeal from the respondent together with submissions in support of an application for costs.
At the hearing of the appeal on 29 September 2016 the parties were again represented by lawyers. In the case of the appellant, Mr Edwards, a solicitor appeared by telephone for the appellant. Mr Strain of Counsel appeared for the respondent.

Submissions

The parties made submissions concerning the appellant's application for costs thrown away by reason of the adjournment on 27 July 2016 and in relation to the substantive issues raised on appeal.

Submissions on costs

In relation to costs, the respondent submitted that there were special circumstances warranting an award of costs. The respondent relied upon s 60(3) of the Civil and Administrative Tribunal Act 2013 (NCAT Act) and said that she had been unnecessarily disadvantaged by the other party to the proceedings by reason of the appellant's failure to comply with the timetable for the filing and service of evidence as required by the Appeal Panel and that the appellant had failed to provide material in support of the appeal as directed by the Appeal Panel.
Further, the respondent submitted this occurred in circumstances where the appellant had been granted an extension of time to comply with the original directions.
The respondent also submitted that the appellant had been responsible for prolonging unreasonably the time taken to complete the proceedings, a relevant matter for consideration in determining whether there are special circumstances as set out in s 60(3)(b) of the NCAT Act. The respondent relied on the facts set out above and also raised the following matters: 1. The appellant had failed to serve evidence upon the respondent despite having the email address for the respondent's legal counsel; 2. The appellant failed to include all grounds of appeal in the Notice of Appeal; and 3. In light of these matters the proceedings were adjourned and therefore unreasonably prolonged.
Lastly, the respondent relied on s 60(3)(f) of the NCAT Act and said that these facts also supported a conclusion that there were special circumstances because the appellant had failed to comply with the duty imposed upon it pursuant to s 36(3) of the NCAT Act, namely a duty to cooperate with the Tribunal to give effect to the guiding principle which requires the Tribunal to facilitate the just, quick and cheap resolution of the real issues in dispute.
The appellant submitted that the present case was not a situation of special circumstances. The appellant's solicitor said that he was acting on a pro bono basis and that he had come into the proceedings late. The appellant submitted that adjournments could be accepted in these types of cases, that the claim was not large and that an award for costs was not warranted in the present circumstances.
The appellant submitted that he had been attempting to conduct his own case and that what had occurred was by reason of a combination of factors commencing with the fact that he had not been granted an adjournment at the original hearing at first instance.
In reply, the respondent reiterated her position and said costs should be allowed. The respondent submitted the appellant had been legally represented for some time, leave having been granted for the parties to be represented by lawyers. In fact the appellant may have been represented by a lawyer acting on a pro bono basis was not a reason to reject the application for costs and it was self-evident that there were a "raft of documents critical to the appeal which had not been filed". Therefore, the respondent submitted that the appeal in its original form could never have proceeded on 27 July 2016.
When asked by the Appeal Panel to identify what costs the respondent was claiming, counsel for the respondent indicated the respondent was seeking his fees being five hours at $500.00 per hour (plus GST) which included working preparing for the original hearing and submissions on costs.

Submissions on substantive appeal

In his written submissions, the appellant said: 1. The Tribunal admitted evidence from the respondent which the appellant had no notice and subsequently no reasonable time in which to read and respond; 2. The respondent was therefore able to benefit from her default in complying with the timetable for the provision of evidence; 3. The proceedings should have been adjourned so that the respondent could properly respond to the material provided; 4. The respondent had, in any event, tried to arrange for a return of the vehicle to his premises so that he could assess any damage and/or determine what was necessary for the vehicle to be repaired and in "a worst case scenario" to refund the purchase price to the respondent; and 5. The respondent failed to return the vehicle to the appellant's premises so that any faults could be inspected and/or rectified if necessary and the conduct in all of the circumstances particularly in leaving the vehicle at another repairer's premises was conduct which disentitled her to now claim a refund of the monies paid for the vehicle.
In oral submissions at the hearing on 29 September 2016 the appellant identified two grounds of appeal. Firstly, the appellant said the proceedings should have been adjourned because of the late service of the respondent evidence shortly before the original hearing date of the proceedings at first instance. This was a matter identified in the grounds of appeal.
Secondly, the appellant said there were two issues going to the substance of the respondent's claim and the decision made by the Tribunal. Firstly, the Tribunal, in preferring the evidence of the respondent, provided no analysis in its decision of the evidence and why the respondent's evidence should be accepted. Secondly, and in any event, the appellant said that he had not been provided with access to inspect the vehicle or remedy any defects, the vehicle having been delivered to a third party, ANTZ Automotive Services.
In relation to the procedural fairness issue and the late service of evidence, the appellant identified this evidence as the statement of the respondent. The appellant says this statement was served only a few days before the hearing, contrary to the Tribunal's directions, and was in a form different to a statement previously served by the respondent. In this regard the appellant identified the evidence as a statement from Ms Willis that had been served on Monday before the hearing on 1 April 2016 which was Thursday of the same week. The appellant also said that the issue concerning payment of storage costs had been raised prior to the hearing, but only a few days beforehand.
In relation to the evidence from the respondent which was accepted by the Tribunal concerning damage to the car, particularly a quotation from ANTZ Automotive Services (ANTZ quotation) attached to the statement of Ms Willis, the appellant said this was inconclusive as to the cause of the defect.
It should be noted that when this issue arose during the course of the hearing of the appeal, it became apparent to the Appeal Panel that the appellant had not filed the statement of Ms Willis. However, by consent, this statement became Exhibit A in the appeal.
In relation to this evidence, the appellant again submitted that, upon the vehicle breaking down, it should have been towed or returned to him for the purpose of inspection and/or repair. The appellant also submitted that when the car was first being purchased, and before it had been driven from the appellant's premises, that a dispute had arisen with the respondent in consequence of which the appellant offered to cancel the contract and refund the purchase price. In making this submission the appellant relied upon statements from his witnesses which we have identified above including details of an apparent altercation which took place and the subsequent involvement of the police.
The appellant submitted that this demonstrated a mindset of the respondent which should have been taken into account by the Tribunal and lead the Tribunal to dismiss her claim.
In reply, the respondent submitted that the appellant had had an opportunity to inspect the respondent's motor vehicle and did not approach ANTZ Automotive Services to arrange an inspection at any time prior to the hearing. The respondent said that the appellant was also afforded an opportunity to provide whatever evidence it wanted in support of its defence and it had failed to do so.
The respondent also said that since the proceedings had been commenced, and even by the time of the hearing of this appeal, no application had been made by the appellant to adduce new evidence nor had any attempts been made to obtain the evidence in connection with the defective vehicle. This was despite the fact an order had been made for the collection of the vehicle and that storage fees, now totalling more than $6,600.00 remained payable. In this regard the respondent tendered an invoice from ANTZ Automotive Services for storage costs of the vehicle from November 2015 until September 2016, which became exhibit B in the appeal.
In reply, the appellant submitted that it had not been afforded an opportunity to present his case and he wished to do so.
There was also discussion with the appellant about what should happen concerning payment of the storage fees which ANTZ Automotive Services had claimed as set out in Exhibit B and whether any orders made by the Appeal Panel in setting aside the original decision should be made on the condition that the storage fees be paid and the vehicle collected by the appellant.

Consideration

It is convenient to deal with the substantive appeal first and the issue of costs second.
The decision of the Tribunal was made on 1 April 2016, the Notice of Appeal having been lodged on 27 April 2016. The appeal was lodged in time, namely 28 days after the date of the decision.
The appellant has a right of appeal on a question of law and otherwise with leave of the Appeal Panel: see s 80(2)(b) of the NCAT Act. Because the proceedings are from a decision of the Consumer and Commercial Division in the exercise of a Division function, leave may only be granted where the appellant may have suffered a substantial miscarriage of justice because the decision was not fair and equitable, was against the weight of evidence or there was significant new evidence that has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with): see cl 12 Sch 4 of the NCAT Act.
The principles applicable to the grant of leave were set out by the Appeal Panel in Collins v Urban [2014] NSWCATAP 17.
There are two grounds of appeal that were finally advanced at the hearing. The first ground of appeal, namely that the appellant was denied procedural fairness raises a question of law for which leave is not required. The second ground relates to submissions made concerning the Tribunal's evaluation of evidence and the conclusions reached are matters of a mixed in nature that is they raise questions of law and questions for which leave is required.
It is appropriate to deal with each of these grounds in turn.

Denial of procedural fairness

The substance of this complaint is that the Tribunal incorrectly refused the appellant's adjournment application of the hearing on 1 April 2016.
The circumstances which give rise to the appellant's submissions that the proceedings should have been adjourned arose from an exchange between the appellant, his representative Ms Courtney Osborne and the Tribunal recorded at page 4 and following of the transcript. It is appropriate to set out what was said: Ms Osborne: We haven't even had a chance to look at the vehicle yet so. Appellant: We haven't seen the vehicle since the day she took off Ms Osborne: If I can quickly ask a question in regards to her new evidence we have only just received this on Monday Member: What new evidence is this Ms Osborne: Umm a statement from her and her son and friend, we have only just received this on Monday and we haven't had time to respond Member: Well what is it about this statement, I've read the statement it's pretty straight forward. What is there about the statement that you can't respond to today? Appellant: She's altered her statements from what the original statements were she's changed that it's now a different version of events Member: Well how's it different? Appellant: Umm untruths Member: What, sorry how's it different, what is different from the second version to the first version and what... sorry? Appellant: Her story about how she came to the car yard, the version of events, how she called the police, how she drove off, it's all changed Member: Well that's something you can mention in your submissions right as to why your version of events should be believed but there doesn't seem to be any prejudice. You are not disadvantaged in addressing the basic elements of this case which is the car any good and should there be a refund or should it be ordered to be fixed or should any orders be made at all. So I'm going to allow that material. But my question now is has there been any attempt to try and resolve between the parties, Ms Willis has made it quite clear some time ago that she wants her money back for the car
It should be noted that at this point in time the Tribunal did not refuse to adjourn the proceedings.
Thereafter, there was an attempt to resolve this dispute and then an issue arose about whether or not evidence would be allowed from Ms Osborne concerning the matters in dispute. At page 7 of the transcript the following exchange occurred in relation to whether or not the appellant would represent himself and the provision of further evidence from Ms Osborne: Member: Well why can't you give your represent (sic) yourself? Appellant: well I'm fine with it but I wasn't there. I can't tell you what Courtney saw... Member: oh okay well so you want Courtney to give some evidence as well? Ms Osborne: yes please but... Member; Alright well I'll allow that, I want to get all the issues out and the whole thing resolved today and I'm not too concerned whether Courtney has put in a statement before or not. I want to get this resolved today. It's not going to be adjourned. It's going to be decided and finalized today ok, Miss Willis will you take me through your evidence please
It was in the context that the question of adjournment arose.
As is apparent from the exchange between the parties and the Tribunal, the issue of new evidence related to evidence Ms Willis was providing about what had occurred at the time the vehicle was sold, not what was the cause of the failure of the motor vehicle. In this regard, Ms Osborne was afforded a chance to provide evidence in reply and the respondent was cross examined on what she had said.
While the appellant asserts he did not have a chance to inspect the vehicle, he does not provide evidence about why this did not occur. This is despite knowing the location of the vehicle. Further, he does not provide evidence he was prevented from inspecting the vehicle.
In any event, as is evident from the parties' submissions prior to the hearing, each had been afforded an opportunity to provide any evidence they wished, including as to the cause of the failure of the motor vehicle. This opportunity was not limited to responding to what the respondent or any expert or repairer for the respondent might say was the cause. Rather, the appellant was required to take steps to inspect the vehicle himself or arrange for his own expert to carry out such inspection if he wished to suggest the vehicle had failed for a particular reason.
Further, having been served with the ANTZ quotation, it was open to the appellant to seek to require the ANTZ representative to attend for cross examination. As is evident from the transcript, the appellant did not seek to do so and did not otherwise suggest that the failure of the vehicle was not as stated in the ANTZ quotation, namely the engine was "running on three cylinders due to conrod sticking outside of the block" which "requires engine replacement as the engine is unrepairable".
The legal question for resolution in the present case is best articulated by what Einstein J said in Italiano v Carbone & Ors [2005] NSWCA 177 at [175]: 175 The question which arises is as to whether an adjournment of the hearing ought to have been ordered in the particular circumstances which obtained, it being clear that "a refusal to grant an adjournment can constitute a failure to give a party…the opportunity of adequately presenting his case", Sullivan v Department of Transport (1978) 20 ALR 323 per Deane J; cf Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [40] cited by Basten JA.
To this should be added the statement of Basten JA at [88] where he said: 88 An opportunity foregone, but reasonably available, does not demonstrate breach of procedural fairness. To demonstrate procedural fairness it is usually necessary to show that a claimant "lost an opportunity to put any information or argument to the decision-maker, or otherwise suffered any detriment", as explained by Gleeson CJ in Re Minister for Immigration, Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at [36]. As the Chief Justice continued at [37]: "A common form of detriment suffered where a decision-maker has failed to take a procedural step is loss of an opportunity to make representations." : at [37].
In the present case, the appellant was asserting that the damage to the vehicle was as a result of the manner in which the respondent drove the vehicle from the appellant's car yard. The appellant and his witnesses gave evidence about this matter. The Tribunal said the effect of the evidence from Ms Osborne was that she said the respondent "drove off like a maniac": However, this version of events was contradicted by the respondent whose evidence the Tribunal accepted: see reasons for decision- transcript pages T36.2 and T36.7. The Tribunal also rejected the assertion that the short drive to ANTZ for the purpose of obtaining a "blue slip" established that there was otherwise nothing wrong with the vehicle at the point of sale: pages T36.9 -T37.1.
Be that as it may, what is clear from the evidence at the hearing and the fact the parties were directed to serve their evidence prior to the hearing is that both before the hearing, and at the hearing, the appellant was afforded an opportunity to present his case and make representations as to the cause of the vehicle failure. However, other than the evidence concerning how the respondent was observed to drive the vehicle from the car yard, the appellant did not provide any evidence of a technical or expert nature to explain the failure of the vehicle or the cause thereof. Nor did the appellant seek to cross examine the author of the ANTZ quotation.
In these circumstances, the fact the proceedings were not adjourned did not give rise to a denial of procedural fairness.

Failure to analyse evidence and failure to allow access to inspect the damaged vehicle

The nature and extent of the obligation in giving reasons has been explained in a number of cases in the courts and by the Appeal Panel. As was said by the Appeal Panel in Collins v Urban [2014] NSWCATAP 17 at [55]-[56]: 55. … there is generally on a duty on Members sitting in the Consumer and Commercial Division to give oral or written reasons for their decisions or, at least in uncontested proceedings, "to make... a note of everything necessary to enable the case to be laid properly and sufficiently before the [Appeal Panel] if there should be an appeal", to quote the words of Sir Frederick Jordan in Carlson v King (1947) 64 WN (NSW) 6. 56. A number of propositions can be derived from the authorities concerning the nature and extent of the duty to give of reasons as follows: 1. notwithstanding that there have been many cases (some of which are collected in De Iacovo v Lacanale (1957) VR 553, at pp 558-559) in which it has been held that it is the duty of a judge, magistrate or other relevant decision maker to state reasons, that does not mean that a decision maker must give his or her reasons in every case. There is no "inflexible rule of universal application" that reasons should be given for judicial decisions. Whilst it is no doubt right to describe the requirement to give reasons as "an incident of the judicial process", it is subject to the qualification that it is a normal but not a universal incident - Public Service Board of New South Wales v Osmond (1986) 159 CLR 656 at 667 per Gibbs CJ; 2. the content and detail of the reasons for decisions to be provided will vary according to the nature of the jurisdiction which the body in question is exercising and the particular matter the subject of the decision - Wainohu v New South Wales (2011) 243 CLR 181 at [56] per French CJ and Kiefel J; 3. the administration of justice in this regard requires a pragmatic and functional approach to the obligations imposed upon decision makers at first instance - Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at [46] per Basten JA; 4. not only is the obligation not universal in nature, but it is variable in its content and whilst transparency in decision-making is an important value, it is not cost free, and may involve separate parameters of quantity and quality - Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at [48] per Basten JA.
Further, the reasons are "not to be construed minutely and finely with an eye keenly attuned to the perception of error". see Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287, approved by the High Court in Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272.
The Tribunal's reasons for decision are found in the transcript at page T35 and following. Those findings can be summarised as follows: 1. The respondent agreed to purchase the motor vehicle on 10 September: page T36; 2. The appellant's representative (Mr Parker-Clark) had, sometime before the vehicle was delivered to the respondent, driven the vehicle approximately 3 kms to ANTZ Automotive Services, who had inspected the vehicle and provided a "blue slip. He had also driven it around the car yard on another occasion": page T36; 3. On 25 September 2016, in the late afternoon or evening, the vehicle was delivered to the respondent who drove it away from the appellant's car yard: page T36; 4. The Tribunal was not satisfied that the respondent drove the vehicle away from the appellant's car yard other than in a normal manner: page T36; 5. After some distance, about 20 minutes driving, the car became undriveable. The applicant then stopped the vehicle and arranged for NRMA to attend. The vehicle was towed to ANTZ where the vehicle was left; page T37; 6. The vehicle was inspected by ANTZ who determined that there was a hole in the block of the engine caused by a broken conrod and the vehicle was therefore only running on 3 cylinders: page T37; 7. The defect identified by ANTZ was a major defect within the meaning of the relevant Fair Trading legislation because the respondent would not have acquired the goods if she had known of the nature and extent of the failure: page T37; 8. The respondent phoned the appellant the following day to ask for her money back and thereby rejected the goods: page T37; 9. The respondent left the keys with the vehicle and told the appellant where the keys were: page T37; 10. In light of the major failure and the provisions of the consumer law it was appropriate to order a refund of the purchase price: page T37; 11. In addition, the appellant should collect the car immediately and be responsible for any storage fees in the future as well as paying for any past storage fees which the Tribunal fixed in the amount of $2,376.00. In this regards the storage fees "were reasonably foreseeable as it was reasonable foreseeable that the car would need to be stored somewhere if it broke down": page T37.
Accordingly the Tribunal made the following orders: 1. George Couratos t/as Surf City Motors … is to pay Sally Anne Willis … the sum of $6876.00 immediately. Default in the payment of any instalment will cause the whole of the balance then outstanding to become immediately due and payable Reasons: • $6876.00 Breach of section 54 of the Australian Consumer Law in that the Toyota Corolla supplied to the applicant was not of an acceptable quality and contained a major failure. NOTE: If the other party does not comply with the order to pay money, a certified copy of the above money order may be obtained from the Tribunal for the purpose of enforcement action through the Local Court. 2. Pursuant to section 263 (2) and (3) of the Australian Consumer Law the respondent is to collect the Toyota Corolla from ANTZ Motors … today.
It is clear from the reasons that the Tribunal dealt with the respondent's claim as a breach of the Consumer Guarantees found in the Australian Consumer Law (NSW) (ACL (NSW)), in particular s54- guarantee as to acceptable quality and concluded the vehicle suffered a mojor failiure.
In the case of a major defect, subs 259(3) and (4) apply and allow a consumer to reject the good and recover loss and damage. These subsections provide: (3) If the failure to comply with the guarantee cannot be remedied or is a major failure, the consumer may: (a) subject to section 262, notify the supplier that the consumer rejects the goods and of the ground or grounds for the rejection; or (b) by action against the supplier, recover compensation for any reduction in the value of the goods below the price paid or payable by the consumer for the goods. (4) The consumer may, by action against the 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.
A "major failure" is defined in s260(a) to be if: (a) the goods would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of the failure;
Where goods are rejected, s 263 applies. This section provides: 263 Consequences of rejecting goods (1) This section applies if, under section 259, a consumer notifies a supplier of goods that the consumer rejects the goods. (2) The consumer must return the goods to the supplier unless: (a) the goods have already been returned to, or retrieved by, the supplier; or (b) the goods cannot be returned, removed or transported without significant cost to the consumer because of: (i) the nature of the failure to comply with the guarantee to which the rejection relates; or (ii) the size or height, or method of attachment, of the goods. (3) If subsection (2)(b) applies, the supplier must, within a reasonable time, collect the goods at the supplier's expense. (4) The supplier must, in accordance with an election made by the consumer: (a) refund: (i) any money paid by the consumer for the goods; and (ii) an amount that is equal to the value of any other consideration provided by the consumer for the goods; or (b) replace the rejected goods with goods of the same type, and of similar value, if such goods are reasonably available to the supplier. (5) The supplier cannot satisfy subsection (4)(a) by permitting the consumer to acquire goods from the supplier. (6) If the property in the rejected goods had passed to the consumer before the rejection was notified, the property in those goods revests in the supplier on the notification of the rejection.
The appellant says the Tribunal, in preferring the evidence of the respondent, provided no analysis in its decision of the evidence and why the respondent's evidence should be accepted. We disagree.
In so far as the lay evidence is concerned and the circumstances surrounding the collection of the car, the Tribunal explained that it did not accept some of the evidence of the appellant and Ms Osborne because they "appeared to be giving each other evidence or answers or things to say as the hearing progressed". The Tribunal also found the appellant gave answers "to advance his own case". Otherwise the Tribunal accepted the respondent's evidence and did not accept that the respondent drove inappropriately "except perhaps momentarily when she left the car yard".
The mere fact the appellant may have offered to "cancel" the contract prior to delivery, which offer was refused, is irrelevant and as to whether the appellant is liable for any subsequent failure after the sale was completed and delivery occurred.
Having accepted the respondent's evidence that she did not drive the vehicle in an inappropriate manner, there was no finding of fact by the Tribunal to sustain a conclusion that such conduct caused the engine to fail in the manner asserted by the appellant. Rather, the Tribunal was left to determine liability in circumstances where the vehicle suffered a major engine failure less than 20 minutes after the respondent drove the vehicle from the car yard.
The appellant failed to serve any expert evidence to support his defence that this type of driving was the cause of the failure of the vehicle. This failure to serve evidence had nothing to do with the conduct of the respondent or the late service of the respondent's evidence.
The only evidence before the Tribunal as to the nature and extent of the mechanical failure from a person who had inspected the vehicle following the failure and qualified to report on the vehicle was the author of the ANTZ quotation. Having stated that the conrod of one cylinder had broken and punctured the engine block, the ANTZ quotation went on to say: The cause of the engine breaking down is difficult to tell. It could be related to a lack of oil or was related to a pre-existing engine problem. It would be very unusual for the driver to have caused the damage to the engine, particularly given the small numbers of kms the car was driven…".
The Appeal Panel notes that while the form of this evidence was not in compliance with Procedural Direction 3- Expert Witnesses, nonetheless it was admissible in the proceedings before the Tribunal and the Tribunal was entitled to give it some weight: see eg Khan v Kang [2014] NSWCATAP 48.
In our opinion, that evidence from ANTZ, in the absence of other evidence and when read as a whole was sufficient to prove there was a failure of the conrod causing damage to the engine block, that the cause was either low oil or a pre-existing engine problem and that it was unlikely the damage was caused by the manner the vehicle was driven by the respondent- a matter the Tribunal found did not in any event occur. To the extent the oil was low and may have caused the problem, this was not a matter reasonably attributable to the respondent who had only driven the vehicle for approximately 20 minutes since delivery. To the extent failure arose from a pre-existing engine problem, again responsibility could not be attributed to the respondent.
It should be noted that the evidence to which the Tribunal and we have referred was from the same company that had provided the "blue slip" in August 2016. The "blue slip" was a matter on which the appellant relied to demonstrate the vehicle was not defective in August 2016, or at the point of sale. It should also be noted at this point that ANTZ said that the process in issuing a "blue slip" does not involve a "check for engine related mechanical faults": see ANTZ quotation.
The Tribunal, by reference to the ANTZ quotation, identified this failure as a major failure and concluded it was a matter that would have caused a reasonable consumer fully acquainted with the nature and extent of the failure not to acquire the goods. Having regard to the nature of the failure and the damage to the engine block, this was an available conclusion on the facts. The Tribunal also accepted that the appellant should pay all storage costs, necessarily accepting that the vehicle could not be returned to the appellant without significant cost. This was an available conclusion based on the fact the vehicle had to be towed by NRMA from where it broke down to the ANTZ premises: page T37.3.
In so far as the appellant now seeks to challenge any factual conclusion on the issue of storage costs, we note that no issue was raised at the hearing and no evidence adduced by the appellant to suggest that the vehicle could reasonably have been returned to the appellant without significant cost to the respondent or that the respondent therefore failed to comply with her obligation under s263(2) of the ACL (NSW). The appellant knew what had happened to the vehicle and where it could be collected from, having been told what had happened by the respondent shortly after the engine failed and the vehicle had been towed to the premises of ANTZ: page T37.7. The appellant knew the respondent was claiming the storage costs. No challenge was made as to the reasonableness of the storage costs. In these circumstances this issue cannot now be raised on appeal, the matter raising a question of fact as well as law: see Coulton v Holcombe (1986) 162 CLR 1 per Deane J para 11.
The final issue to deal with is the appellant's contention he had not been provided with access to inspect the vehicle or remedy any defects, the vehicle having been delivered to a third party, ANTZ Automotive Services. There is no evidence before the Appeal Panel that the respondent sought access to the vehicle prior to the hearing, or more particularly, that he was denied access to the vehicle since it was towed to ANTZ. There is no evidence to suggest that the appellant applied for an access order from the Tribunal for the purpose of preparing its evidence prior to the hearing at first instance. Finally, it is clear the appellant has not complied with the Tribunal's orders to collect the vehicle and therefore failed to avail himself of the opportunity to then inspect the vehicle and thereafter seek leave to provide fresh evidence in this appeal. Rather, he has simply maintained a position that he is not liable to the respondent. Consequently, the responsibility for any failure to inspect the vehicle and obtain any relevant expert report lies at the feet of the appellant.
As to not being afforded an opportunity to repair the vehicle, the respondent was not required to do so as she was entitled to and did reject the goods due to there being a major defect in accordance with the provision in s 259(3) of the ACL (NSW).
It follows from what we have said that the appeal should be dismissed.

Costs of the adjournment

The respondent claims legal costs "thrown away" by reason of the adjournment on 27 July 2016.
The power to award costs in the present case is regulated by s60 of the NCAT Act. This requires the respondent (costs applicant) to demonstrate special circumstances. The respondent claims $2500 plus GST for legal costs.
The expression "special circumstances" means out of the ordinary but not necessarily extraordinary or exceptional: Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 and cases following. Relevant factors to be considered are set out in s60(3) of the NCAT Act.
In our view the following facts support the conclusion that the circumstances of this case were out of the ordinary and would warrant an order for costs: 1. Directions were made for the filing and service of each party's evidence and submissions. The appellant did not comply, having been already granted an extension of time by the Appeal Panel; 2. The appellant was represented by a lawyer and no attempts were made to avoid the problems that arose on the day of the hearing, for example by the lawyer recognising the shortcomings in compliance and the appellant seeking and adjournment by consent to avoid unnecessary costs and wasted hearing time; 3. The appellant sought to change his grounds of appeal, and challenge findings of fact but had failed to provide all necessary documents;
Collectively, these facts show the appellant caused the proceedings to be unreasonably prolonged and that the appellant had failed to comply with his duty under s36(3) of the NCAT Act, in particular had failed to comply with the Tribunal's directions.
On the other hand the following matters count against an award of costs: 1. Each party is usually to present their own case: s45(1)(a) of NCAT Act; 2. No order granting leave for legal representation was originally made as part of the orders made at the call over on 26 May 2016; 3. The amount of the claim is relatively small and the amount claimed for costs is disproportionate to the amount in issue. 4. The claim could not otherwise be regarded as unusually complex.
Having found special circumstances and having regard to the principles applicable to the exercise of our discretion as set out in Brodyn Pty Ltd v Owners Corporation - Strata Plan 73019 (No 2) [2016] NSWCATAP 224, in our view an order for costs should be made in respect of costs thrown away by reason of the adjournment of the hearing on 27 July 2016.
The costs should be fixed by us rather than requiring an assessment process which will result in further time and cost to the parties.
In our view the amount claimed is excessive, both as to time and the rate claimed. This is a small claim and the issues addressed in the costs submissions were uncomplicated. We would allow three hours in total at a rate of $250.00 per hour plus GST. Accordingly we will make an order for $750.00 plus GST, a total of $825.00.

Costs of the Appeal

No order for costs should otherwise be made in respect of the appeal. Aside from the adjournment, there is nothing out of the ordinary in respect of this matter.

Orders

The Appeal Panel makes the following orders: 1. The appeal is dismissed and leave to appeal is refused. 2. The appellant is to pay the respondent the sum of $825.00 being the costs thrown away in respect of the adjourned hearing on 27 July 2016, such amount to be paid immediately.

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

Amendments 18 November 2016 - Corrected typographical error on cover sheet 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: 18 November 2016

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