These are our reasons for decision made on 23 June 2020, including to allow the appeal and to remit the proceedings to the Tribunal at first instance for redetermination.
The appellant, which trades under the name of Private Fleet, appealed from orders made in its absence on 9 March 2020, including an order that it pay the respondent to this appeal (Frontline) the sum of $9745.00 immediately.
Frontline commenced proceedings in the Consumer and Commercial Division of the Tribunal against Private Fleet in February this year arising out of their dealings concerning Frontline's purchase of a new Subaru Outback. Frontline had contracted with Private Fleet, as broker, in September 2019 in respect of the purchase of a new car. Their arrangement led to the involvement of a car dealer, Sutton City, as supplier of the new vehicle.
For present purposes, is not necessary to try and analyse in any detail the arrangements between Frontline and Private Fleet and between Private Fleet and Sutton City in respect of the purchase of the new vehicle, other than to mention that Frontline paid a deposit to Private Fleet, a financier paid money to Sutton City, a trade-in of a vehicle owned by Frontline was involved (which came to be purchased by another party) and Frontline took delivery of a new Subaru Outback. Also, at the hearing of the appeal, Mr Burr, a director of Frontline, told us that, with Sutton City's agreement, the new Subaru Outback was returned to Sutton City because of problems with scratches on its bodywork and Frontline, in a direct dealing with Sutton City, ended up buying a different vehicle from that company under a new sale contract.
In its application commencing proceedings, lodged with the Tribunal on 22 February 2020, Frontline sought payment in the amount of $8080.00 from Private Fleet. The application set out the basis of the claim in general terms, namely allegations that Private Fleet had engaged in misleading and deceptive conduct, by operating a broker service that differed from the service advertised on their website, Private Fleet had deceived Frontline to gain a financial advantage of $5595.00 and that Private Fleet had made an unauthorised transaction on Frontline's credit card which was in breach of the terms and conditions of the client agreement. Frontline also provided a letter to the Tribunal dated 22 February 2020 setting out in some detail the grounds of its complaint. The letter raised various events as comprising misleading and deceptive conduct and other events as comprising breach of contract. The causal link between these various events and the asserted losses was far from clear.
The claim involved some complexity both as to liability and relief. It was not, for example, a claim, more straightforward in nature, for recovery of the price paid for a vehicle in a claim to reverse the sale because of misleading and deceptive conduct.
There was no appearance by Private Fleet at the first hearing on 9 March 2020. As it was entitled to do, having satisfied itself that notice of the hearing, including the application itself, had been duly served on Private Fleet by sending the relevant documents by post to Private Fleet's registered office, the Tribunal proceeded to hear and determine the matter in the absence of Private Fleet (see rule 35(2)(a) of the Civil and Administrative Tribunal Rules 2014).
The amount that the Tribunal ordered be paid was made up of three components. As we expand upon below, the problem with this decision was that there was an absence of reasons for the conclusion that these amounts were payable. In addition, the Tribunal gave Frontline leave to amend to increase its claim to include a claim in respect of the third component (an amount of $2150.00). However, no notice of such increased claim was given to the appellant.
On the appeal, which was not lodged until 17 April 2020, the appellant claimed that the first time it became aware of the proceedings was on 7 April 2020 when it received an email from Frontline about the orders. In an email that day, the appellant informed the Tribunal and Frontline that they were not aware of the proceedings, they had moved office and didn't receive documents and they would like to appeal the decision. According to Frontline's Reply to the appeal, an ASIC search reveals that there was a change of registered office of the appellant made on 27 March 2020.
Also, according to Frontline's Reply, an order was obtained from the Local Court on 17 April 2024 for payment of the amount ordered by the Tribunal on 9 March 2020.
The Tribunal's reasons concerning the money order were as follows:
• $2000.00-Refund of deposit paid by applicant to the respondent as broker on a contract for purchase of a new car which purchase did not proceed.
• $5595.00-Difference in value of the applicant's Nissan trade- in vehicle which the respondent agreed at $13,804 on its tax invoice and no 55222, but the respondent only paid $8209 to Sutton Motors leaving a loss of value to the applicant in the sum of $5595.
• $2150.00-Refund of unauthorised debit to the applicant's credit card account for repairs to allege scratches on the trade in vehicle, which were not present on that vehicle when the applicant delivered possession of the vehicle to the respondent.
On the appeal, Private Fleet put forward material in support of contentions that:
1. The deposit of $2,000 was sent by it to Sutton City as a payment toward a sale that, as far as it was concerned, did proceed.
2. In addition to the deposit, Private Fleet also paid Sutton City an amount of $10,209, not an amount of $8,209, which amount arose by taking account of a discount that Private Fleet obtained on the overall cost of the vehicle which benefited Frontline.
3. The debit to Frontline's credit card was authorised because it fell within the terms of the agreement between Private Fleet and Frontline which were concerned with circumstances where a trade- in needed repair work that had not previously been disclosed.
At the hearing of the appeal, Mr Burr indicated that if the various representations by Private Fleet that he pointed to, which he said were false, had not been made Frontline would not have used Private Fleet. He indicated that Frontline would have obtained a better deal on the purchase of a new vehicle in these circumstances. He also referred to an argument that Private Fleet was in breach of contract, by, for example, not obtaining for Frontline the best available deal.
We need not address the merits of Frontline's claim any further because we are satisfied that there are issues raised by Private Fleet that warrant a new hearing by the Tribunal at first instance in order to redetermine Frontline's claim, in circumstances where the decision suffered from a lack of reasons and there had been no notification of the increased claim to Private Fleet.
When an issue about adequacy of reasons arises on appeal our function is to determine not the optimal level of detail required in reasons for a decision but rather the minimum acceptable standard: see New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 per Bell P at [66]. In what appears to the Tribunal to be an uncontested matter (as this was) we also consider that greater economy of reasons will often be justified.
However, the essential basis for the decision must still be expressed, including material findings of fact, the evidence for such findings, and the link between such findings and the core ingredients of liability and relief.
As we have already said, Frontline's claim involved some complexity. Findings concerning the representations made (perhaps, including by silence) their falsity, causation and quantum of loss needed to be expressed.
An important matter concerning causation and loss that appears to arise on Frontline's claim based on misleading and deceptive conduct, to which we have already referred, requires findings concerning whether or not Frontline would have been better off had they not dealt with Private Fleet and the extent of any such loss. The amounts awarded to Frontline and their description do not suggest that such an analysis was carried out by the Tribunal.
The issue concerning a lack of reasons raises a question of law in respect of which Private Fleet can appeal as of right-no leave to appeal is required: s 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW). The point about adequacy of reasons was raised by the Appeal Panel at the hearing of the appeal. Before the hearing of the appeal, Private Fleet's contention was that, having not received notice of the hearing, it did not have the opportunity to present evidence that the amounts that the applicant was claiming were in fact not payable and formed part of a discounted price paid and or had been passed onto the dealer supplying the vehicle.
However, Private Fleet was an unrepresented litigant and the problem with the reasons plainly emerged from a consideration of the merits of the appeal, including whether Private Fleet should be granted an extension of time to commence the appeal according to the considerations set out by the Appeal Panel in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [22]. Having regard to those considerations, for the above reasons, we consider it to be in the interests of justice that Private Fleet have an extension of time in which to bring the appeal. This is so, even if it was at fault in failing to ensure that ASIC was, promptly, notified of its change of registered office.
[2]
Orders
For the above reasons, the following orders were made:
1. Time extended to lodge the appeal to 17 April 2020.
2. The appeal allowed.
3. Set aside the orders made by the Tribunal at first instance on 9 March 2020.
4. Remit the proceedings to a differently constituted Tribunal at first instance for re-determination.
[3]
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
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Decision last updated: 30 June 2020