Nuset Group Pty Ltd v Whitehead

Alexandria Landfill Pty Ltd v Transport for NSW (2020) 103 NSWLR 479; [2020] NSWCA 165

Aon Risk Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175

Barefoot Timber Pty Ltd v Wright [2024] NSWCATAP 252

Bimson, Roads & Maritime Services v Damorange Pty Ltd [2014] NSWSC 734

Collins v Urban [2014] NSWCATAP 17

Donohoe v Albulario [2025] NSWSC 9

Dranichnikov v Minister for Immigration and Migration Affairs [2003] HCA 26

FVA v Commissioner for Police, NSW Police Force [2024] NSWCATAP 127

Hannaford v Commonwealth Bank of Australia [2014] NSWCA 297

House v The King [1936] HCA 40; (1936) 55 CLR 499

Hungry Jack's Pty Ltd v Fourtounas [2020] NSWCA 325

John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69

Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 23

Kudrynski v Orange City Council [2024] NSWCA 33

Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534

Nguyen v Perpetual Trustee Co Ltd; Perpetual Trustee Co Ltd v Nguyen [2015] NSWCATAP 264

NSW Police Force v White [2025] NSWCATAP 30

Raslan v Pan [2015] NSWCATAP 12

Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1 at 13 [37]; [2003] HCA 6

Rehman v F & F Smart Homes Pty Ltd [2024] NSWCATAP 9

Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206

Stead v State Government Insurance Commission (2008) 161 CLR 141

Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204

Wollondilly Shire Council v Styles [2024] NSWCATAP 104

1. This is an internal appeal under s 80(2) of the Civil and Administrative Tribunal Act 2013 NSW (the NCAT Act) against a decision made in the Consumer and Commercial Division of the Tribunal on 14 October 2024.
2. The decision relates to proceedings commenced by the first respondent, Leslie Whitehead, against Ian Creak and Pennant Hills Auto Traders, subsequently amended to Nuset Group Pty Ltd (Nuset Group), seeking an order that he be paid $37,106.33 in respect of what he claimed was the sale of a faulty Mercedes Benz Sprinter Van.
3. The Tribunal dismissed the application against Mr Creak, who is a director of Nuset Group, and made an order that Nuset Group pay Mr Whitehead $33,299.43, representing damages and a refund for the purchase price paid for the Mercedes Benz Sprinter Van. The Tribunal ordered Nuset Group to collect and remove the Sprinter Van by a specified date and also ordered Nuset Group to pay Mr Whitehead's costs of the proceedings. In summary, the Tribunal found that Nuset Group had breached the Australian Consumer Law (NSW) because the Mercedes Benz Sprinter Van did not comply with the relevant consumer guarantees. Mr Whitehead was therefore entitled to reject the Sprinter Van, obtain a refund and recover damages.
4. Nuset Group lodged an appeal against the decision on 14 November 2024. The decision was received by Nuset Group on 16 October 2024 and there is no dispute that the appeal was lodged within the prescribed period for the purposes of r 25(4)(c) of the Civil and Administrative Tribunal Rules 2014 (NSW) (the NCAT Rules).
5. Nuset Group applied for a stay of the orders at the time it lodged its appeal. The Appeal Panel dismissed the application for a stay, gave leave to Mr Whitehead to be legally represented and made directions about the conduct of the appeal.

1. Mr Whitehead is a sole trader who is based in Wagga Wagga and supplies dairy products to customers throughout the Riverina. Nuset Group trades as "Sydney Auction Online" and is a vendor of motor vehicles. It is based in Sydney. Mr Creak, who was not named in the application for the appeal, is a director of Nuset Group. As already noted, he represented Nuset Group at the hearing of the appeal.
2. The dispute before the Tribunal first instance arose out of the sale of a Mercedes Benz Sprinter Van to Mr Whitehead on 18 August 2023. The Mercedes Benz Sprinter Van (the Sprinter Van) is a second-hand long wheel-base refrigerated chiller van. Mr Whitehead travelled to Sydney to finalise the sale and to collect the Sprinter Van, which he intended to drive back to Wagga Wagga. After about 90 minutes driving, the Sprinter Van broke down. After ringing the dealership, Mr Whitehead organised for the vehicle to be towed to Wagga Wagga.
3. Mr Whitehead commenced proceedings in the Tribunal on 6 November 2023. The proceedings were commenced against Mr Creak, as first respondent, and "Pennant Hills Auto Traders" as second respondent. By order of the Tribunal dated 27 November 2023, the name of the second respondent was amended to Nuset Group. There is no dispute that Nuset Group was the proper party to the application.
4. The proceedings were initially set down for hearing on 14 March 2024. On that occasion, there was no appearance for the respondents and orders were made in favour of Mr Whitehead. Mr Creak and Nuset Group successfully applied to the Tribunal for those orders to be set aside and for the matter to be re-listed for hearing. The matter was relisted before the Tribunal, differently constituted, on 17 May 2024. The proceedings were not finalised on that day and were adjourned, part-heard until 18 July 2024. The Tribunal, Senior Member Tyson, reserved his decision which was published on 14 October 2024. It is this decision that is the subject of the Appeal.

1. Rule 29(b) of the NCAT Rules states that the parties to an internal appeal are the appellant and "any person or body (other than the appellant) who was a party to the proceedings before the Tribunal at first instance". Mr Creak was a party to the proceedings at first instance. The application against him was dismissed and no orders were made against him or in his favour. Mr Creak did not appeal but is nonetheless automatically a party to the appeal, by reason of r 29(b) of the NCAT Rules. He is not an appellant, and it therefore follows that he is a respondent to the appeal, even though no orders are sought against him, he does not seek any orders, and he has not taken an active part on the appeal, other than as representative of Nuset Group.
2. This was not an issue raised in the interlocutory proceedings or at the hearing of the appeal. It is unnecessary for Mr Creak to be joined to the proceeding because he is already a party, however, for clarity, he is named as a second respondent to the appeal. He does not seek relief, and no relief is sought against him. He is excused from participating as a party in the appeal, although it is accepted that Mr Creak appears on behalf of Nuset Group. Because this was not previously raised with Mr Creak or the parties, they were notified of this by notice dated 27 May 2025 and were directed to provide any written submissions objecting within seven days. Mr Whitehead advised that he did not object.
3. Mr Creak advised that he objected on the grounds that the matter proceeded at all times against Nuset Group and not against him personally, the application at first instance was dismissed, no orders were made against him and there were no findings of personal liability or misconduct. His involvement in the appeal was restricted to his role as a corporate representative of Nuset Group and naming him as personally as a party misrepresented the nature and scope of his involvement, created unnecessary procedural complexity and risked implying personal liability where none exists. It was submitted by Mr Creak that it was therefore unnecessary to name him as a second respondent.
4. Both parties agreed that this aspect could be resolved without a hearing.
5. While I accept a number of Mr Creak's submissions, there is no discretion in this. Rule 29(b) is clear in its terms and Mr Creak has not pointed to any other provision that would permit the Appeal Panel to depart from its operation. I accept that Mr Whitehead principally proceeded against Nuset Group although Mr Creek was joined as a party to the proceedings at first instance. All claims against him were withdrawn on the second day of the hearing and were ultimately dismissed. I accept the submission made by Mr Creak that there were no findings of personal liability or misconduct and that his involvement in the appeal has been restricted to his role as the corporate representative of Nuset Group. However, I do not except that merely naming Mr Creak as a second respondent, as required by r 29(b), misrepresents the nature and scope of his involvement in either the proceedings at first instance or in the appeal. It is clear from this decision and the proposed orders that no orders are being made against Mr Creak, the claim made against him at first instance was dismissed and his only involvement in the appeal is as the corporate representative.

The proceedings before the Tribunal at first instance and the decision

1. The dispute between the parties related to whether Nuset Group had breached the Australian Consumer Law (NSW) and, if so, the consequences of any such breach.
2. The decision sets out a brief outline if the procedural history and the evidence before the Tribunal. The decision records that the matter was first listed for hearing on 17 March 2024, which is clearly a typographical error, and should read 17 May 2024. It is noted that the matter was listed for a three-hour hearing. The matter did not finish on that day, and was adjourned to 18 July 2024 for a further three-hour hearing. It is noted that leave was granted by the Tribunal, at an early stage of the proceedings, for the parties in the proceedings to be legally represented. Ms Lam of Counsel appeared for Mr Whitehead at the hearings and Mr Creak represented himself and Nuset Group.
3. It is recorded in the decision, at [6] to [12], that Mr Whitehead relied on his affidavit sworn 21 December 2023, together with the documents exhibited, the affidavit of his wife, Mrs Anna Whitehead, also sworn 21 December 2023, and the affidavit of Phillip Wilson affirmed on 19 December 2023. Mr Wilson is a mechanic. He inspected the Sprinter Van after it was towed to Wagga Wagga. Mr Whitehead, Mrs Whitehead and Mr Wilson gave oral evidence and were cross examined by Mr Creak. Mr Wilson gave evidence by telephone. In addition to this evidence, Mr Whitehead tendered a bank receipt, showing a payment of $404.73 from Mr Whitehead to Nuset Group on 17 August 2023 at 11:25am.
4. The respondents to the application relied on the affidavit of Mr Ian Creak sworn or affirmed on 22 January 2024, including a number of documents which were exhibited and relied on in the proceedings. Mr Creak was cross examined by Mr Whitehead's counsel. Mr Creak and Nuset Group sought leave to tender an affidavit from Mr Gregory Charles McKinley sworn or affirmed on 10 May 2024. Mr McKinley is described in his affidavit as "an automotive consultant who specialises in certain motor vehicles, including Mercedes Benz". There is no dispute that this affidavit was served outside the original Tribunal timetable. The Tribunal rejected the tender and gave oral reasons for the ruling on the first day of the hearing.
5. Before outlining the Tribunal findings and, given the importance of these provisions to the matters raised in the appeal, it is convenient to first summarise the relevant law.

1. The legislative provisions at the heart of this dispute are contained in the Fair Trading Act 1987 (NSW) (FTA) and the Australian Consumer Law (NSW) (the ACL), which is in Schedule 2 to the Competition and Consumer Act 2010 (Cth) (CCA).
2. Section 32 FTA provides that the ACL applies to persons carrying on business within the jurisdiction, bodies corporate incorporated or registered under the law of the jurisdiction, persons ordinarily resident in the jurisdiction or persons otherwise connected with the jurisdiction. Section 27 of the FTA provides that the ACL text consists of Schedule 2 to the CCA and the regulations under s 139G of the CCA. Part 6A of the FTA, being ss 79B to 79X, contains the provisions relating to the jurisdiction of the Tribunal in relation to consumer claims.
3. The "Tribunal" is defined as the Civil and Administrative Tribunal (s 4 FTA). Section 79D sets out the definition for a "consumer", which includes a natural person to whom or to which a supplier has supplied or agreed to supply goods or services. Section 79E defines a "consumer claim" as a claim by a consumer for one or more of the remedies set out in the section that arises from a supply of goods or services by a supplier to a consumer. The remedies are the payment of a specified sum of money, the supply of specified services, relief from payment of a specified sum of money or the delivery and the return or replacement of specified goods or goods of a specified description. Section 79K relevantly provides that the Tribunal has jurisdiction to hear and determine a consumer claim if the goods and services to which the claim relates was supplied in NSW. Section 79L contains the limitation period for consumer claims.

(a) a person supplies, in trade or commerce, goods to a consumer; and

(b) the supply does not occur by way of sale by auction;

there is a guarantee that the goods are of acceptable quality.

(2) Goods are of acceptable quality if they are as:

(a) fit for all the purposes for which goods of that kind are commonly supplied; and

as a reasonable consumer fully acquainted with the state and condition of the goods (including any hidden defects of the goods), would regard as acceptable having regard to the matters in subsection (3).

(3) The matters for the purposes of subsection (2) are:

(c) any statements made about the goods on any packaging or label on the goods; and

(d) any representation made about the goods by the supplier or manufacturer of the goods; and

(e) any other relevant circumstances relating to the supply of the goods.

(a) goods supplied to a consumer are not of acceptable quality; and

(b) the only reason or reasons why they are not of acceptable quality were specifically drawn to the consumer's attention before the consumer agreed to the supply;

1. Section 55 provides for a guarantee as to 'fitness for a disclosed purpose' as follows:

(a) a person (the supplier) supplies, in trade or commerce, goods to a consumer; and

(b) the supply does not occur by way of sale by auction;

there is a guarantee that the goods are reasonably fit for any disclosed purpose, and for any purpose for which the supplier represents that they are reasonably fit.

(2) A disclosed purpose is a particular purpose (whether or not that purpose is a purpose for which the goods are commonly supplied) for which the goods are being acquired by the consumer and that:

(a) the consumer makes known, expressly or by implication, to:

(ii) a person by whom any prior negotiations or arrangements in relation to the acquisition of the goods were conducted or made; or

(b) the consumer makes known to the manufacturer of the goods either directly or through the supplier or the person referred to in paragraph (a)(ii).

(3) This section does not apply if the circumstances show that the consumer did not rely on, or that it was unreasonable for the consumer to rely on, the skill or judgment of the supplier, the person referred to in subsection (2)(a)(ii) or the manufacturer, as the case may be.

1. Section 56 provides for guarantees in relation to the 'supply of goods by description'. In brief, if the supply does not occur by way of sale by auction, there is a guarantee that the goods correspond with the description.
2. Part 5-4, Division 1 sets out the remedies for failure to comply with consumer guarantees. Section 259 of the ACL provides that the consumer may take action against the supplier of the goods as follows:

(2) If the failure to comply with the guarantee can be remedied and is not a major failure:

(a) the consumer may require the supplier to remedy the failure within a reasonable time; or

(b) if such a requirement is made of the supplier but the supplier refuses or fails to comply with the requirement, or fails to comply with the requirement within a reasonable time - the consumer may:

(i) otherwise have the failure remedied and, by action against the supplier, recover all reasonable costs incurred by the consumer in having the failure so remedied; or

(ii) subject to section 262, notify the supplier that the consumer rejects the goods and of the ground or grounds for the rejection.

(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.

(5) Subsection (4) does not apply if the failure to comply with the guarantee occurred only because of a cause independent of human control that occurred after the goods left the control of the supplier.

(6) To avoid doubt, subsection (4) applies in addition to subsections (2) and (3).

1. Section 260 sets out when a failure to comply with a guarantee is a 'major failure':

(1) A failure to comply with a guarantee referred to in section 259(1)(b) that applies to a supply of goods is a major failure if:

(a) the goods would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of the failure; or

(b) the goods depart in one or more significant respects:

(i) if they were supplied by description - from that description; or

(ii) if they were supplied by reference to a sample or demonstration model - from that sample or demonstration model; or

(c) the goods are substantially unfit for a purpose for which goods of the same kind are commonly supplied and they cannot, easily and within a reasonable time, be remedied to make them fit for such a purpose; or

(d) the goods are unfit for a disclosed purpose that was made known to:

(ii) a person by whom any prior negotiations or arrangements in relation to the acquisition of the goods were conducted or made;

and they cannot, easily and within a reasonable time, be remedied to make them fit for such a purpose; or

(e) the goods are not of acceptable quality because they are unsafe.

(2) A failure to comply with a guarantee referred to in section 259(1)(b) that applies to a supply of goods is also a major failure if:

(a) the failure is one of 2 or more failures to comply with a guarantee referred to in section 259(1)(b) that apply to the supply; and

(b) the goods would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of those failures, taken as a whole.

Note: The multiple failures do not need to relate to the same guarantee.

(3) Subsection (2) applies regardless of whether the consumer has taken action under section 259 in relation to any of the failures.

1. Mr Whitehead also relied on s 18(1) of the ACL, which provides that a person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.

1. The Tribunal set out the background facts at [13] to [49] and the submissions of the parties at [50]-[67]. It is useful to summarise the submissions to put the findings in context.
2. Mr Whitehead submitted that there was no sale by auction and any form completed by him on 18 August 2023, which was headed 'Form 11 Auction Notice', is irrelevant and did not form part of the contract of sale. It was not part of the terms and conditions of the contract and full payment for the purchase price was made on 17 August 2023. The title to the Sprinter Van passed on paying the purchase price. As this was not a sale by auction, the consumer guarantees provided by the ACL applied to the sale of the Sprinter Van. The Sprinter Van was not of acceptable quality, it was not fit for a disclosed particular purpose and did not correspond to the description given. The defects in the Sprinter Van resulted in Nuset Group failing to comply with the consumer guarantees pursuant to ss 54, 55 and 56 of the ACL. This failure was a major failure and Mr Whitehead claimed that he was therefore entitled to a full refund of the price he had paid.
3. In the alternative, Mr Whitehead submitted that the respondents engaged in conduct which was misleading and deceptive or likely to mislead or deceive, as prohibited by s 18(1) of the ACL. He further submitted that the respondents failed to make it clear to him that this was a sale by auction.
4. Mr Whitehead claimed a refund of $32,285.43 and $2,104 for the costs of towing the vehicle, which had broken down on route to Wagga Wagga, and $1,014 for vehicle hire. It was also submitted that special circumstances warranted an order for costs under s 60 of the NCAT Act.
5. Mr Creak and Nuset Group submitted that there was no basis for a claim against Mr Creak and this application should be dismissed. In relation to the claim against Nuset Group, it was submitted that a business known as "Sydney Auction Online" sold the Sprinter Van to Mr Whitehead. The sales contract between Nuset Group and Mr Whitehead was in writing and was executed on 18 August 2023. There was a general agency appointment agreement between Nuset Group as auctioneer and Fleetserv Pty Ltd as the vendor. There was a sale by auction of the Sprinter Van pursuant to this general agency appointment agreement and the applicant was the only bidder. As such, the consumer guarantees did not apply.

(1) Section 2(1) of the ACL provides that a 'sale by auction' means "a sale by auction that is conducted by an agent of the person whether the agent acts in person or by electronic means". There is no further statutory definition of this phrase in the ACL. The ordinary English language meaning of the word auction is "a public sale at which goods or property are sold to the highest bidder". The Tribunal noted that there was nothing in the language and purposes of the provisions of the ACL to attribute the phrase 'sale by auction' to a meaning other than the ordinary English language meaning.

(2) The Sprinter Van was advertised on the website trucksales.com and was listed for sale in Sydney at a business based in Pennant Hills. There was no evidence from the respondents to suggest that the trucksales website was an auction site. The terms of the advertisement itself, which were viewed by Mr Whitehead and his wife, gave no indication that the Sprinter Van was available by auction sale. It was offered for sale at a price which was discounted.

(3) The offer for sale of property at a fixed price is inconsistent with an auction as the auction process involves, when the auction opens and the auctioneer requests bids, an invitation to treat. In addition, the advertisement explicitly pointed to the ability to acquire the Sprinter Van through alternative auction sale sites This was in contrast to the contention that the trucksales advertisement was a sale by auction.

(4) The Tribunal did not accept the submission that Mr Whitehead was the only bidder for the Sprinter Van or that he was a bidder. The meaning of 'bid' is well established. A bid made in an auction is an offer and the bid is accepted by the auctioneer assenting to the offer, usually being shown by the fall of a hammer or other means as indicated in the conditions of the auction sale. There was no evidence of any conditions of auction by which an auctioneer could indicate assent to a bid. The two-page written contract dated 18 August 2023, which Mr Whitehead signed on that day, shows that "the customer" purchased the Sprinter Van from "the dealer" (Nuset Group) at the price set out on the first page of the two-page contract.

(5) The fact that the words 'Sydney Auction Online' appear on the documents created on 16 and 18 Aug 2023, being the contract for sale of a used motor vehicle, the tax invoice and the Form 11 Auction Notice, has no bearing on the characterisation of the transaction between Mr Whitehead and Nuset Group. The transaction must be evaluated as a matter of substance. This name did not appear in the trucksales advertisement viewed by Mr Whitehead and his wife. In any event, this is a business name only and it is not a corporate entity capable of entering into contracts. The tax invoice signed by Mr Whitehead does not contain or purport to contain any terms of any contract. The Form 11 Auction Notice does not contain terms of any contract between Mr Whitehead and Nuset Group. The Form 11 Auction Notice was not signed by or on behalf of Nuset Group and could not therefore, according to the terms of the agreement that had already been concluded, operate as an additional variation to the terms and conditions between the parties

1. The Tribunal accepted Mr Whitehead's evidence that after picking up the Sprinter Van, he drove about 90 minutes from Sydney when the engine warning light came on a second time (it had previously come on just after leaving the dealership but was subsequently cleared) and the engine started making noises and then there was a large bang. Mr Whitehead pulled off the road, turned off the engine and, after trying to restart the engine, the Sprinter Van did not restart. The Tribunal found Mr Whitehead to be an impressive, honest and accurate witness and the Tribunal had no cause to doubt his recollection of the events after he took delivery of the Sprinter Van (at [117]-[118])
2. The Tribunal also accepted the evidence of Mr Wilson, a motor mechanic from Wagga Wagga who inspected the Sprinter Van on 21 August 2023 and gave evidence on behalf of Mr Whitehead. Mr Wilson has been a mechanic for 42 years. He gave evidence that the engine of the Sprinter Van had suffered a catastrophic failure, that internal parts had punched a hole in the cylinder block and the engine was not repairable. While the Tribunal noted that Mr Wilson had a commercial relationship with Mr Whitehead, the Tribunal did not consider that Mr Wilson's evidence was inaccurate or influenced by this relationship. The Tribunal found that there was "no reason to doubt the integrity of Mr Wilson's evidence". The Tribunal accepted that Mr Wilson did not have expertise in understanding the three error codes that were generated by the Sprinter Vans electronic control module but found that this lack of expertise was not decisive of any issue in the case. His evidence that there was a catastrophic engine failure to the engine based on his observation of the physical damage to the engine was not undermined by his lack of expertise in relation to the codes: [119]-[121]
3. There was no evidence to suggest anything about the way Mr Whitehead drove the Sprinter Van had caused or contributed to the catastrophic engine failure [122]. The Tribunal accepted the evidence given by Mr. Wilson in cross examination that it was unlikely any debris or external items would have brought about the hole in the cylinder block because, amongst other things, the sump, sitting closer to the road service surface than the engine, was undamaged. The Tribunal accepted the evidence of Mr Wilson that there was no hole in the oil filter or cooling lines or any other indicia or cause of engine failure, apart from a mechanical issue or defect that had emerged from within the internal components of the Sprinter Van and that exploded outwards.

1. Section 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) provides that a party to an internal appeal in respect of a final decision may appeal as of right "on any question of law". If there is no question of law, the party may seek leave to appeal on "any other grounds". It therefore falls to the Appeal Panel to determine whether the appeal grounds raise a question of law and, if not and if the party is seeking leave to appeal, whether the party should be permitted to appeal on other grounds.

1. In John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 (Prendergast) the Appeal Panel considered what constitutes a question of law and formulated a non-exhaustive list of those matters.
2. The issue of what constitutes a question of law was revisited by the Appeal Panel in the light of recent Court authorities in Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 (Unique) and applied in Commissioner of Police, NSW Police Force v White [2025] NSWCATAP 30 (White) where the Appeal Panel said at [22]:

"(1) Absent leave to appeal, the question of law is the subject matter of the appeal: Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378 at [22], Medical Council of New South Wales v Mooney [2024] NSWCA 180 (Mooney) at [97].

(2) The question of law should be articulated with precision: Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378 at [22], Kudrynski v Orange City Council [2024] NSWCA 33 at [48], Mooney at [97], Wollondilly Shire Council v Styles [2024] NSWCATAP 104 at [28].

(3) A question of law means a pure question of law: Wilson v Chan & Naylor Parramatta Ltd atf Chan & Naylor Paramatta Trust [2020] NSWCA 62 at [4] and [11].

(4) A "pure question of law" does not depend on facts not found: Orr v Cobar Management Pty Ltd [2020] NSWCCA 2020 at [48] and [109].

(5) A mixed question of fact and law is not a question of law: Bimson, Roads & Maritime Services v Damorange Pty Ltd [2014] NSWCA 734 at [39].

(6) An appeal is "on" any question of law: s 80(2) of the NCAT Act. The question of law must not be hypothetical or arid_: Liu v Director of Public Prosecutions (NSW)_ [2024] NSWSC 382 at [90]; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 353-354; [1990] HCA 33.

(7) An appeal is against orders and not reasons: AZC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 26 at [34], Property Investors Alliance Pty Ltd v C88 Project Pty Ltd (in liq) [2023] NSWCA 291 at [217], Kramer v Stone [2023] NSWCA 270 at [259]. Therefore, the question of law must be capable of affecting the orders the subject of the appeal."

1. In Unique the Appeal Panel found that Prendergast, which identified some sources of questions of law, was "overly reductive" [31]. Relevantly, the Appeal Panel identified further questions of law [32] including: whether the Tribunal drew inferences that were not available from the facts found; whether the construction of a statute or contract arrived at by the Tribunal at first instance was wrong in some identified way; whether the decision was vitiated by bias, or a reasonable apprehension of bias, whether the Tribunal failed to respond to substantial, clearly articulated arguments based on established facts which may constitute a failure to accord natural justice (or, alternatively, a constructive failure to exercise jurisdiction) and whether the facts found necessarily satisfied the statute.
2. The Appeal Panel noted that what constitutes a question of law "is vexed and context dependent in the sense that the distinction between matters of fact and of law may turn on the circumstances in which the question arises" (Unique at [37]). It was also noted that, when dealing with self-represented parties, the Appeal Panel may consider for itself whether a question of law is raised. As such, if the material and submissions raise a question of law in substance, a more generous approach is warranted as an aspect of ensuring procedural fairness, even though the ground has not been raised expressly or with precision: Unique at [27]-[28] citing Wollondilly and Kudrynski.
3. Examples of questions of law include:

(1) Denial of procedural fairness (Prendergast at [13](4)); FVA v Commissioner for Police, NSW Police Force [2024] NSWCATAP 127 at [83]- [84]).

(2) A failure to exercise jurisdiction, which includes the failure to consider and address a material issue raised by a party in the proceedings that is within the jurisdiction of the Tribunal to determine (Dranichnikov v Minister for Immigration and Migration Affairs [2003] HCA 26; Alexandria Landfill Pty Ltd v Transport for NSW (2020) 103 NSWLR 479; [2020] NSWCA 165 at [8]- [12] and [413]). This category of error may also constitute a failure to accord procedural fairness.

(3) Applying the wrong legal principle which materially affected the outcome (Bimson, Roads & Maritime Services v Damorange Pty Ltd [2014] NSWSC 734 at [38]- [53]).

(4) No evidence to support a factual finding (Kostas v HIA Insurance Services Pty Ltd ; at ).

1. Recently in Donohoe v Albulario [2025] NSWSC 9, Basten AJ identified that when a question of law arises as to whether proceedings were procedurally fair it may be appropriate and necessary, on appeal, to make findings about what occurred at the hearing. His Honour noted at [33] (footnotes omitted):

To the extent that there is a fact/law dichotomy, the facts which are not to be reviewed by the appeal court dealing with a question of law are the facts relevant to the matter in dispute. There is a categorical distinction between the Facts in Dispute (what part of the building was completed?) and facts relating to the composition or conduct of the Tribunal."

1. Where the ground of appeal does not raise a question of law, the appellant may seek leave to appeal.

1. The principles governing an application for leave to appeal under the NCAT Act are well‑established and are repeated in many decisions of the Appeal Panel, often quoting Collins v Urban [2014] NSWCATAP 17 at [84]. They are the same principles applied by the courts in exercising the discretion to grant leave to appeal. As observed by Gleeson JA (on behalf of the bench) in Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 at [28]:

Only if the decision is attended with sufficient doubt to warrant its reconsideration on appeal will leave be granted. Ordinarily, it is only appropriate to grant leave where there is an issue of principle, a question of general public importance, or an injustice which is reasonably clear, in the sense of going beyond what is merely arguable. It is well established that it is not sufficient merely to show that the trial judge was arguably wrong." (Citations omitted)

1. Further, as Basten JA said (White JA agreeing) in Hungry Jack's Pty Ltd v Fourtounas [2020] NSWCA 325 at [9]:

"... more is required than identification of error on the part of the trial judge, even if it can be said that the error is reasonably clear. Generally, the court will also need to be satisfied that there is a matter of some public importance engaged and that the costs of further litigation are not disproportionate to the amount in issue. Further, it should be established that, to leave any putative error uncorrected, would give rise to a substantial miscarriage of justice."

1. As a gateway to the exercise of discretion, where there is an appeal from a decision of the Consumer and Commercial Division, the circumstances in which Appeal Panel may grant leave to appeal are limited to those set out in cl 12(1) of Sch 4 to the NCAT Act. In such cases, the Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice on the basis that:

(a) the decision of the Tribunal under appeal was not fair and equitable; or

(b) the decision of the Tribunal under appeal was against the weight of evidence; or

(c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).

1. In Collins v Urban, the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) of Schedule 4 may have been suffered where:

... there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the owners corporation had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance.

1. Accordingly, in an appeal of a decision of the Consumer and Commercial Division, the appellant must satisfy the requirements of cl 12(1) of Sch 4 and, if so, the Appeal Panel must also then consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b).

1. The material before the Appeal Panel comprised:

(1) Evidence before the at Tribunal first instance lodged by Mr Whitehead and the transcript of the hearing (the respondent's bundle);

(2) Evidence lodged by Mr Creak and Nuset Group before the Tribunal at first instance, being the affidavits of Mr Creak and Mr Gregory Charles McKinley (both with annexures) and a transcript of the hearing (the appellant's bundle);

(3) Evidence and submissions in relation to the stay application, directed to the stay but not relied on in the appeal (other than on the question of costs); and

(4) Multiple written submissions from the parties.

1. In deciding the appeal, I have had regard to:
   • The Notice of Appeal lodged on 14 November 2024
   • The Reply to Appeal lodged on 11 December 2024
   • The documents and submissions referred to above and the oral submissions at the appeal hearing.

1. In the Notice of Appeal, Nuset Group requested leave to appeal on the grounds that the decision was not fair and equitable, against the weight of evidence and failed to consider significant new evidence which, although available at the time of hearing, was unfairly excluded. The Notice of Appeal requested additional time to complete the full appeal submission and grounds. Further grounds were set out in an affidavit of Mr Creak affirmed 2 December 2024 (filed on 9 December 2024) with multiple submissions in reply and grounds of appeal filed prior to and handed up on the day of the appeal hearing.
2. The draft appeal grounds attached to the Notice of Appeal includes five grounds namely: bias and predetermination by the Senior Member; error in making a costs order in favour of Mr Whitehead; the decision was unjust and unbalanced; the decision was unfair because of the exclusion of the expert testimony of Mr McKinley and the Tribunal erred because of the failure to fully appreciate the sales process.
3. The appeal grounds attached to Mr Creak's affidavit raised 20 grounds or issues, a number of which were similar, duplicated or unclear. A further ground raised by Nuset Group, as particularised in this affidavit, was that the Tribunal repeated the findings of the previous March 2024 decision that was set aside and that, having read that decision, did not approach the case with an open mind and was biased.
4. The grounds for appeal were further refined in a document submitted prior to the hearing which identified five grounds of appeal. Those grounds were: first, that the Tribunal made errors of fact at [26], [83], [88], [109] and [111]; secondly, that the Tribunal erred in concluding that the Sprinter Van was not sold by auction and therefore erred in concluding that Nuset Group failed to comply with the ACL, including s 54; thirdly, the Tribunal erred in concluding that the engine defect resulting in the implosion existed at the time of the sale, there was no direct evidence about this; fourthly, the Tribunal erred in its conclusion at [144] that a replacement engine could not rectify the vehicle and therefore was a major failure, the Tribunal improperly exercised its discretion under s 38 of the NCAT Act in relation to the excluded evidence; and fifthly, that the decision was not fair and equitable - there was no evidence that the defect existed at the time of purchase and the Tribunal did not take into account the available evidence that the failed engine could be replaced.

(1) Ground 1: The finding by the Tribunal that the contract was not a sale by auction was against the weight of evidence. In particular the findings made by the Tribunal at [74] to [112] were in error. Related to this ground, is the claim made Nuset Group that the Tribunal incorrectly interpreted the terms of the contract.

(2) Ground 2: The finding made by the Tribunal that the Sprinter Van was defective at the time of sale was in error. The Tribunal could not be satisfied the engine implosion was a result of an existing defect at the time of the sale. The Nuset Group contends that the finding made by the Tribunal at [130] was in error and that there was no evidence, or insufficient evidence, to support this finding.

(3) Ground 3: The Nuset Group contends that the findings at [138] to [147] that the defect was a major failure was in error. This was contrary to and against the weight of the evidence, which included a roadworthy certificate attached to the affidavit of Mr Creak.

(4) Ground 4: The decision at first instance was procedurally unfair for two reasons. First, the Tribunal refused to allow Nuset Group to rely on the evidence of its expert, Mr McKinley. It was accepted that the evidence was served late but it was not unduly late. Nuset Group contends this was unfair because the McKinley evidence was material and related to the critical question of whether there was a defect at the time of sale and whether the engine could have been replaced. The second ground is the contention that the Tribunal was not impartial because the Tribunal member read the decision of the previous Member of March 2024 and made many of the same findings. As such, the Tribunal did not bring an open mind to the proceedings.

(5) Ground 5: Nuset Group submits that there was no need for Mr Whitehead to be legally represented. The proceedings were not complicated, and no costs orders should be made in the circumstances of this case. This goes against the ethos of the Tribunal to be informal and low cost. The Nuset Group relies on s 60 of the NCAT Act and submits that the order for costs was unfair and disproportionate.

Do the grounds of appeal raise questions of law?

1. Ground 4 raises procedural fairness issues and, in addition, a claim that the Tribunal failed to exercise the jurisdiction by failing to give independent consideration to the relevant issues by copying the decision of the previous Tribunal. Ground 4 raises a question of law.
2. Ground 5 raises concerns about the exercise of the discretion to order costs. It is also submitted, wrongly for the reasons outlined later in these reasons, that an order should not be made under s 60 of the NCAT Act because there were no special circumstances warranting an order for costs in this case. While the ground was not expressed precisely in these terms, it can be inferred that Nuset Group also contends that the exercise of the discretion was legally unreasonable in line with the authorities in House v King. This is a question of law.
3. Grounds 4 and 5 raise questions of law and therefore do not require leave.
4. Grounds 1, 2 and 3 raise questions of fact or, at best, mixed questions of fact and law. Questions of fact or mixed questions of fact and law are not questions of law (Bimson, Roads & Maritime Services). A question of law means a pure question of law and does not depend on facts not found (Orr v Coba).
5. Nuset Group contends (Ground 1) that the findings made by the Tribunal that the sale to Mr Whitehead was not a sale by auction was in error. While Nuset Group raises concerns in respect of the Tribunal's findings on how the contract was constituted, the findings made were based on the Tribunal's assessment of the evidence and the Tribunal's interpretation of the meaning of a 'sale by auction'. The Nuset Group does not contend there was legal error in the definition but rather that the Tribunal erred in finding the sale was not a sale by auction. Nuset Group challenges the findings made at [74] to [112] of the decision. Leave is required for this ground. Nuset Group seeks leave to appeal on this ground and contends this finding was against the weight of the evidence.
6. Ground 2 raises the concern that there was no evidence, or insufficient evidence, that the Sprinter Van had a defect at the time of the sale that resulted in the implosion. Insofar as Nuset Group contends there was no evidence, this is a question of law but insofar as Nuset Group contends there was insufficient evidence or the Tribunal could not have been satisfied on the evidence that the defect was existing at the time of the sale, this is a question of fact based on the evidence before the Tribunal. This latter characterisation is not a question of law, and Nuset Group requires leave to appeal on this ground. The Nuset Group seeks leave and submits that this finding was against the weight of evidence. It is also contended that the finding was not fair and equitable because the Tribunal wrongly excluded the evidence of Mr McKinley. This is relevant to Ground 4. For instance, if the Appeal Panel finds that the evidence of Mr McKinley was wrongly excluded and this would have impacted the finding made by the Tribunal about the defect in the engine of the Sprinter Van at the time of sale, the finding about the defect at [130] would also be impugned.

1. Having regard to the issues set out above, it is convenient to first deal with Ground 4 as my finding on this ground may have an impact on Grounds 2 and 3. Further, the contention that the Tribunal member at first instance did not bring an open mind to the determination of the proceedings potentially undermines the decision, both on the grounds of procedural fairness and on the grounds that the Tribunal failed to exercise its statutory jurisdiction by failing to give independent consideration of the issues.

Failure to admit and have regard to the evidence of Mr McKinley

1. The first aspect of this ground is the contention that the Tribunal wrongly and unfairly failed to admit and take into account the evidence of Mr McKinley. This is also said to be in breach of s 38(2) of the NCAT Act, which provides that the Tribunal is subject to the rules of natural justice.
2. The Nuset Group submits that the exclusion of this evidence critically undermined its case and was a severe procedural error. It is submitted that this not only deprived Nuset Group of a fair hearing but contributed to the skewed and unbalanced decision in favour of Mr Whitehead. It is submitted that this refusal exacerbated the claim of bias and set the stage for an unfair outcome.
3. Mr Whitehead submits that the Tribunal excluded the affidavit for the reasons set out in the transcript at pp 157-159 of the hearing on 17 May 2024. This affidavit was only served a few days before the hearing. Mr Whitehead submits the exclusion of the evidence was not procedurally unfair and, any event, the evidence was not relevant for the reasons outlined by the member on the day of the hearing.
4. As noted, the Tribunal rejected the tender of the affidavit of Mr McKinley and gave oral reasons for the ruling on the first day of the hearing. The reasons were not included in the decision, but the oral reasons are recorded in the transcript for 17 May 2024, which was produced by both parties.
5. The oral reasons commence on page 157. It is noted that a timetable was made on 27 November 2023 requiring the parties to file and serve their evidence by particular dates. It is further noted that the matter came before the Tribunal for hearing on 14 March 2024 and, as there was no appearance on behalf of the respondents, orders were made against the respondents ex parte. The respondents made a successful application for the orders to be set aside and, following from that, the matter was again listed for hearing. The previous Tribunal made it clear that the matter was to proceed on the basis of the documentary evidence that had been previously filed and served unless leave was otherwise granted.
6. At the hearing on 17 May 2024, Nuset Group and Mr Creak sought leave to rely on the affidavit of Mr McKinley, which was served on 13 May 2024, four days before the hearing. Mr Whitehead's counsel opposed leave. After making introductory comments about how the matter came before him, the Tribunal made the following ruling:

Having heard the parties on Mr McKinley's affidavit dated either 10 May 2024 or 1 May 2024, in my view, it would not be appropriate to grant leave to the respondents for this material to be relied upon. The late service of the material is of concern to me, given the clear orders that were made back in April by the Tribunal when agreeing to the set aside application and the previous material should be relied upon without leave. There's no suggestion that any warning was given to the applicants that this material was going to be relied on relied upon. I am also, frankly, dubious as to the relevance of this material before me. Mr McKinley has qualifications as an automatic automotive electrician, as well as some other qualifications about bodybuilding and automotive design and construction that are referred to in para 1 of the proposed affidavit. The difficulty with that is that I've got other evidence before me, in the form of an affidavit from Mr. Wilson, that actually talks about a hole being punched in the cylinder block in the relevant engine. It's not clear, therefore, as to the particular relevance of the automotive electrical issues and the CAN-bus data system that are referred to and set out in Mr McKinley's affidavit. Nor is there any suggestion that he is inspected the engine or the vehicle that is the subject of the proceedings. I'm told, and it's not disputed, that the engine remains in possession of the applicant today. It does not appear that any request was made to allow Mr McKinley to inspect the vehicle or anything of that nature.

But primarily so, I am concerned about justice between the parties and whether or not it would be fair for the applicant for this material to be relied upon. I'm told by counsel for the applicant that it would not be fair. It seems to me, on the basis of the issues raised in the case, that it would not be fair. For these reasons, I am against granting leave.

1. The question for consideration is whether this was procedurally unfair and, if so, whether the exclusion of this evidence was material and prejudicial to the claim made by Nuset Group and Mr Creak.
2. The Tribunal at first instance found that the late service of this document was unfair. In exercising the discretion not to give leave, the Tribunal had regard to the previous directions, the late service, the prejudice to Mr Whitehead and, in particular, his concerns that the relevance and weight of the evidence was questionable.
3. The Nuset Group relies on the decision of the High Court in Aon Risk Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 (Aon) in support of the proposition that "justice must take precedence over procedural technicalities". However, this was not the finding of the plurality (per Gummow, Hayne, Crennan, Kiefel and Bell JJ). In this case, the ANU sought to amend its statement of claim some 10 months after the application was made. Leave to amend was allowed and the procedural order was appealed. The decision was upheld on appeal and was subsequently appealed to the High Court.
4. The High Court considered the approach that should be taken in the exercise of discretion to allow amendments to pleadings at a late stage of the proceedings, noting that the starting point should be the rules governing such applications in the relevant jurisdiction.
5. In their joint judgement, the plurality observed that case management "is now an accepted aspect of the system of civil justice administered by courts in Australia" and that it was "recognised some time ago that a different approach was required to tackle the problems of delay and cost in the litigation process" (Aon, at [92]). The court found that, in exercising the discretion, relevant matters included the extent of the delay and the associated costs, the point at which the litigation had reached, the prejudice to the other party if leave was granted, the efficient use of resources, the explanation for delay, the nature and importance of the amendment and the need to maintain public confidence in the judicial system (at [102] to [114]).

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. Attorney-General (Hong Kong) v Ng Yuen Shiu was such a case. So, according to the majority, was Haoucher v Minister for Immigration and Ethnic Affairs. A particular example of such detriment is a case where the statement of intention has been relied upon and, acting on the faith of it, a person has refrained from putting material before a decision-maker. In a case of that particular kind, it is the existence of a subjective expectation, and reliance, that results in unfairness. Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.

1. It is relevant to consider whether the alleged breach of procedural fairness would have made any difference to the outcome of the case: Stead v State Government Insurance Commission (2008) 161 CLR 141 at 145; [1986] HCA 54 (Stead). Materiality is relevant and for the question of law to arise "on" the appeal, any error on that question of law must be capable of affecting the outcome of the appeal (Barefoot Timber Pty Ltd v Wright [2024] NSWCATAP 252 at [30]- [31])
2. For the reasons outline above, I am not satisfied that the refusal to give the respondents leave to rely on this evidence had any impact on the outcome.
3. As such, I am not satisfied that there has been a denial of procedural fairness.
4. Accordingly, this part of Ground 4 is not made out.

Bias and failure to bring an independent mind to the decision

1. The Nuset Group contends that Senior Member Tyson acknowledged reading the March 2024 judgement, which had been finalised as an uncontested matter in the absence of the respondents. It is submitted that this acknowledgement, of itself, undermines any notion of fairness. It is submitted that Senior Member Tyson would have been predisposed to affirm the previous March 2024 decision rather than approach the case with an open mind. It is also submitted that the October 2024 decision closely mirrors the March 2024 decision and both judgements "summarily" dismissed the contention that the sale of the vehicle was a sale by auction. It is further submitted that both decisions dismiss the repairability of the Sprinter Van.
2. It is submitted by Mr Whitehead that it is not clear from the grounds of appeal which findings are being impugned and how it is alleged that the decision was biased. Mr Whitehead submits that the hearing was lengthy, with extensive evidence and submissions over a number of days. The reasons were also lengthy. There is no reasonable basis for the allegations of predetermination, bias or lack of impartiality.
3. At the hearing of the appeal, Mr Creak was questioned about the alleged similarities between the previous decision of March 2024 and the decision made by the Tribunal in October 2024. He was also asked to point to the evidence that revealed the Senior Member had read the previous decision and that the decisions repeated the findings. Mr Creak said that he had no evidence that the Senior Member had actually read the decision but had inferred that this was the case. He did not provide a copy of the previous decision and orders to demonstrate, as seemed to be alleged, that the decision or parts of the decision were copied. When Mr Creak was pressed about this at the appeal hearing, it was apparent that Nuset Group relies on the fact that similar orders were ultimately made by both Tribunals. This could be explained by the fact that both Tribunals, differently constituted, came to the same conclusions based on the same material. This does not evidence bias, a lack of impartiality or even a suggestion that the Tribunal read or had regard to the previous findings made by the Tribunal in March 2024.
4. Even if the Tribunal had read the reasons or orders of the previous Tribunal, this does not lead to an inference that the Senior Member Tyson did not bring an independent mind to the decision-making process. In this regard, I accept the submissions made by counsel for Mr Whitehead. It is self-evident the previous proceedings were lengthy and thorough, as were the written reasons for the decision which were published by the Tribunal to the parties on 14 October 2024. The written reasons were 160 paragraphs, 35 pages and gave detailed consideration to the submissions made by the parties and the evidence relied on. This is also apparent from the summary of those reasons set out above.

Ground 1: Finding that the sale was not a sale by auction

1. Nuset Group contends that the Tribunal erred by not acknowledging the full text contained in the contract, namely the reference to the fact that Nuset Group was trading as 'Sydney Auction Online', which was repeated in its invoice. It is also submitted that the Tribunal erred in its findings at [83] that Mr Whitehead was the only bidder for the Sprinter Van and in finding at [88] that Sydney Auction Online is a business name only. The Tribunal erred at [108] and [109] in failing to find that Fleetserv Pty Limited was the owner of the Sprinter Van. Nuset Group relies on documents said to evidence the contractual agreement with Sydney Auction Online and relies on the signed Form 11 Auction Notice as evidence that the sale was a sale affected by auction. Nuset Group submits that the reference at [83] to the "fall of the hammer" reflected an antiquated view of modern auction practices. Nuset Group also submits that these findings were against the weight of evidence.
2. Mr Whitehead submits that the conclusion the Sprinter Van was sold by private treaty, and not by auction, was reached based on consideration of the evidence set out in [74] to [91] and [105] to [117] of the decision. There was no critical evidence disregarded or excluded and the question of whether the Spritzer Van was sold by auction was painstakingly examined. Mr Whitehead submits that Nuset Group has not suffered a substantial miscarriage of justice, and the decision was fair, equitable and did not go against the weight of evidence. The Nuset Group has failed to demonstrate something more than that the Tribunal was arguably wrong. There was a bona fide challenge to an issue of fact and the findings made by the Tribunal were open on the evidence.
3. I agree with this submission. The Tribunal examined the evidence of both parties in considerable detail. The evidence and submissions of Nuset Group were considered and balanced against the evidence and submissions provided by Mr Whitehead. The Tribunal's detailed findings are set out in [74] to [112]. The evidence and submissions of the parties in relation to this issue was considered at [13] to [35] and [52] to [54] of the decision. The question of whether this was a sale by auction occupied much of the hearing and comprised more than half of the written reasons. Based on the analysis of the evidence, the Tribunal was satisfied that the sale was by private treaty and not by auction. As noted by the Tribunal, and this is plainly correct, the name of a trading entity and the reference to "Form 11 Auction Notice" has no bearing on the characterisation of the transaction, which should be evaluated as a matter of substance by reference to the dealings of the parties. I am not satisfied that the finding made by the Tribunal that the sale was not sale by auction was against the weight of evidence.

Ground 2: Finding the Sprinter Van had a defect at the time of sale

1. Nuset Group submits that there was no direct evidence of a pre-existing defect, and the conclusion arises from the proximity of the event with subjective regard to the operation of the vehicle by Mr Whitehead. It is submitted that there was a lack of "conclusive evidence" to explain why the engine failed or how the vehicle was driven at the time of the incident. In contrast, there was evidence that the Sprinter Van was roadworthy prior to purchased and that there was a blue slip inspection undertaken on 16 August 2023 confirming this. The evidence of Mr Wilson did not support the finding that the defect was pre-existing, and it was relevant to note that Mr. Wilson agreed in cross examination that he did not know what caused the engine failure (transcript P 73, line 10).
2. Mr Whitehead submits that the Tribunal carefully considered the evidence of Mr Whitehead and Mr Wilson and was satisfied, based on this evidence, that there was a defect at the time of the sale which resulted in the implosion of the engine within 90 minutes of its departure from Sydney. This ground does not raise a question of law and Nuset Group requires leave to appeal on this ground. The finding made by the Tribunal was not against the weight of evidence and the decision was fair and equitable. There was no significant new evidence that had arisen to challenge this finding, noting that the evidence of Mr McKinley sought to be relied on was available at the hearing but was nonetheless rejected because it was late and was of little relevance in any event.
3. The Tribunal considered this issue at [37] to [45] and [117] to [122] of the decision and found that the cause of the engine failure arose from a mechanical issue or defect that had emerged from within the internal components of the Sprinter Van and caused it to explode outwards. While it is correct that there was no evidence from either party about the precise nature of the catastrophic engine failure, the Tribunal was satisfied that the defect was pre-existing. The Tribunal accepted the evidence of Mr. Wilson and the evidence of Mr Whitehead about the circumstances leading to the catastrophic engine failure. The fact that the Sprinter Van may have had a roadworthy certificate, or a blue slip is not, by itself, compelling evidence to counter the evidence of Mr. Wilson and the inference that was drawn by the Tribunal from the subsequent events. There was no evidence about the work undertaken leading to the roadworthy certificate or that this certificate was based on a detailed investigation of the engine. It appears to be common ground that there was no detailed investigation of the engine, other than review of the fault lights, either before or after the sale.

Ground 3: Finding that the defect was a major failure

1. Nuset Group contends that the Tribunal erred in its conclusion at [144] that a replacement engine would not rectify the vehicle. The Nuset Group relies on the roadworthy certificate and the "new" evidence of Mr McKinley. Mr McKinley attached to his affidavit a quote for a second-hand replacement engine for the Sprinter Van for $6,050. He further stated, "it is my opinion that it reflected appropriate remedy to rectify the vehicle into a similar condition to when the vehicle was purchased". The Nuset Group submits that the evidence of Mr McKinley would, if admitted, provide evidence of the cost of the replacement engine. It is submitted that the investigation process referred to at [144] was about the cause of the engine failure, not the process for replacement of an engine or the rectification of the damaged engine. Nuset Group further contends that replacement of the engine with a second-hand engine would make the vehicle fit for purpose. However, this evidence was wrongfully disregarded by the Tribunal. It is submitted that the decision was therefore not fair and equitable, because the Tribunal did not take into account this evidence, and the finding was against the weight of evidence.
2. Mr Whitehead submits that this ground does not raise a question of law and leave to appeal is therefore required. Leave should be refused because Nuset Group has failed to demonstrate that it has, or may have, suffered a substantial miscarriage of justice.
3. It is submitted that the Tribunal considered the issue of a replacement engine at [144] and rejected this submission. The McKinley affidavit was rejected because it was served late, was not relevant to the issues in dispute given the evidence of Mr Wilson and it would have otherwise been unfair to Mr Whitehead to allow the late tender of this document. The finding made by the Tribunal was open on the evidence and the conclusion drawn by the Tribunal was arrived at on the basis of a bona fide challenge to an issue of fact.
4. I accept this submission. It is clear from the reasons at [144] that the Tribunal took into account the competing evidence between the parties. Relevantly, the Tribunal found, and there appears to be no dispute about this, that the underlying cause of the engine failure has not been identified. The Tribunal had regard to the evidence, as agreed by Mr Creak, that the forensic investigation of the cause would require at least four hours investigation. The Tribunal found that the cost of undertaking this investigation to identify the failure, sourcing a replacement engine and transporting, fitting and connecting the engine were matters that led to the conclusion that the defect could not be remedied.

1. The Tribunal made an order for costs on 14 October 2024, noting that if the parties wished to make an application for a different order, any such application needed to be lodged on or before 21 October 2024. There is no material before the Appeal Panel to suggest that any such application was made. As such, the order which is the subject of this ground is the order that Nuset Group pay Mr. Whitehead's costs of the proceedings. The usual process, when an order for costs is made, is for the quantum of the costs to be agreed by the parties or if not agreed, as assessed.
2. Nuset Group submits that the Tribunal is a no cost jurisdiction and that the order made for costs was unfair and was contrary to s 60(1) of the NCAT, which states that each party is to pay their costs unless there are 'special circumstances' warranting an award of costs. There are no such special circumstances. Nuset Group also claims that the legal costs claimed by Mr Whitehead are excessive.
3. Mr Whitehead submits that the Tribunal may make costs orders pursuant to r 38 of the Rules and special circumstances are not required. Mr Whitehead was entitled to a costs order in his favour given his success in the proceedings. It is submitted that this ground does not raise a question of law, the decision was fair and equitable, and leave should be refused.
4. I accept the submission that rule 38 is the relevant provision which governs costs orders in the Consumer and Commercial Division. Rule 38 provides:

Costs in Consumer and Commercial Division of the Tribunal

(1) This rule applies to proceedings for the exercise of functions of the Tribunal that are allocated to the Consumer and Commercial Division of the Tribunal.

(2) Despite section 60 of the Act, the Tribunal may award costs in proceedings to which this rule applies even in the absence of special circumstances warranting such an award if -

(a) the amount claimed or in dispute in the proceedings is more than $10,000 but not more than $30,000 and the Tribunal has made an order under clause 10(2) of Schedule 4 to the Act in relation to the proceedings, or

(b) the amount claimed or in dispute in the proceedings is more than $30,000.

1. The amount in dispute was more than $30,000. As such, r 39(2)(b) applies which provides that the Tribunal may award costs in the absence of finding "special circumstances". Accordingly, the finding made by the Tribunal at [154]. was correct. There is no error.
2. The Tribunal then went on to exercise the discretion at [155] to [157], making a costs order in Mr Whitehead's favour.
3. While Nuset Group did not expressly raise this issue in its grounds, I have taken the ground to encompass a challenge to the exercise of discretion by the Tribunal under r 38(2) to award costs in favour of Mr Whitehead. As already noted, the challenge of the exercise of discretion may raise a question of law.
4. The relevant principles have been discussed by the Appeal Panel in BZE v NSW Public Guardian [2015] NSWCATAP 64 at [15], citing House v King and Hannaford v Commonwealth Bank of Australia. The Appeal Panel found that any attack on a discretionary decision must fail unless it can be demonstrated the decision-maker made an error of legal principle or a material error of fact, took into account an irrelevant matter, failed to take into account or gave insufficient weight to, some relevant matter or arrived at a result so unreasonable or "plainly unjust" so as to suggest other errors occurred.
5. In this case, the grounds for the Tribunal exercising the discretion in favour of Mr Whitehead are set out in [156]-[157]. The Tribunal observed that the starting point is that the usual order for costs is that a successful party should be entitled to an order for costs in their favour (Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534 at 554).
6. The legal principles in the exercise of the discretion were considered in Nguyen v Perpetual Trustee Co Ltd; Perpetual Trustee Co Ltd v Nguyen (also cited in , where the Appeal Panel stated at [94]-[95]:

94. Rule 38 gives the Tribunal (or the Appeal Panel when making a decision in substitution for the decision under appeal), a discretion to award costs. While unfettered that discretion must be exercised judicially.

95. While the discretion to award costs under rule 38 is unfettered, in our view costs should generally "follow the event", recognising however that factors may exist that militate against the successful party recovering all of its costs: Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 at [134]. Fairness dictates that the unsuccessful party typically bears the liability for costs unless it is demonstrated that some other order is appropriate: Currabubula and Paola v State Bank NSW. Currabubula v State Bank NSW [2000] NSWSC 232. We find no reason to depart from the "usual rule" in this case.

1. I am not satisfied that the Tribunal made an error of legal principle or a material error of fact when exercising the discretion. Nor is there material to suggest that the Tribunal member took into account an irrelevant matter or failed to take into account a relevant consideration when making the order for costs. Nor am I satisfied that the order for costs was so unreasonable or plainly unjust so as to suggest other errors occurred. The proceedings were contentious, raised complicated legal and factual matters and involved a significant sum of money. The Tribunal found, and I accept, that Mr Whitehead was entitled to be legally represented. Mr Whitehead succeeded on all of his claims, save for the claim against Mr Creak, which was withdrawn on the second day of the hearing. The Tribunal noted this but also found that any costs in relation to this claim would have been minimal. This finding was open to the Tribunal.
2. I am not satisfied that there was an error in the exercise of the discretion and therefore reject this ground of appeal.

1. At the time of lodging the appeal, Nuset Group lodged an application for a stay of the decision pending the appeal. Directions were made by the Appeal Panel on 15 November 2024 for the parties to file and serve any evidence and submissions relating to the stay application. Both parties lodged submissions. The application was considered by the Appeal Panel on 27 November 2024. The application was dismissed and the Appeal Panel ordered that the costs of the stay application be reserved to the Appeal Panel determining the appeal.
2. At the hearing of the appeal, Mr Whitehead submitted that he should be awarded the costs of the stay application and, if successful on the appeal, that costs should be awarded in his favour. In support of the application, Mr Whitehead filed and served an affidavit affirmed 5 February 2025 setting out the costs that he had incurred in the in relation to the stay application and the costs incurred and anticipated costs of the appeal. The cost in opposing the stay application, including Counsel's fees, was $6,127. The costs for the appeal, included the anticipated costs of the hearing, was in excess of $17,000. It was submitted that the Appeal Panel should make an order that the lump sum of $23,254 be paid rather than requiring Mr Whitehead to have the costs assessed.
3. The Nuset Group submitted that a costs order should not be made in relation to the stay application or in relation to the appeal. It was submitted that there was a reasonable basis for the stay request as the cost of transporting the vehicle from Wagga Wagga to Sydney would have been significant and therefore it was reasonable for this order to be stayed pending the appeal. It was also submitted that the costs claimed were already disproportionate and it would be unfair for the Appeal Panel to award costs on the stay application or the appeal, given the Sprinter Van was purchased for $32,285.
4. Rule 38A of the Rules provides:

(1) This rule applies to an internal appeal lodged on or after 1 January 2016 if the provisions that applied to the determination of costs in the proceedings of the Tribunal at first instance (the first instance costs provisions) differed from those set out in section 60 of the Act because of the operation of -

(b) the Division Schedule for the Division of the Tribunal concerned, or

(2) Despite section 60 of the Act, the Appeal Panel for an internal appeal to which this rule applies must apply the first instance costs provisions when deciding whether to award costs in relation to the internal appeal.

1. As outlined above, given the application of r 38 to proceedings in the Consumer and Commercial Division, the rules that apply in relation to the determination of costs in the proceedings at first instance differed from the provisions applying under s 60 of the NCAT Act.
2. This being the case, it is open to the Appeal Panel to make an order for costs in the absence of special circumstances.
3. While Mr Whitehead provided detailed submissions in relation to the costs of the stay and the costs of the appeal in the event that he was successful on the appeal, I decided to defer consideration of costs pending the outcome of the decision on the appeal. This gives both parties the opportunity to make submissions having regard to the outcome on the appeal.
4. In addition, Nuset provided brief written submissions prior to the hearing but should also be given further opportunity to provide submissions on costs in response to the detailed with submissions provided by Mr Whitehead prior to the appeal.

(1) To the extent leave to appeal is required, leave is refused.

(2) The appeal is dismissed.

(3) Mr Creak is to be named as the second respondent because he was a party to the proceedings before the Tribunal at first instance but is excused from taking any part in the appeal other than in his role as representing the appellant.

(4) If a party to the appeal wishes to make an application for costs, the following directions apply:

(a) the party applying for costs (the costs applicant) must, within 14 days after the publication of this decision, give the other party (the costs respondent) and the Registry any submissions and documents the costs applicant intends to rely on in relation to the application, including on the question as to whether costs should be fixed or assessed;

(b) the costs respondent must, within 14 days after receiving the submissions and documents of the costs applicant, give the costs applicant and the Registry any submissions and documents the costs respondent intends to rely on in response to the application for costs;

(c) the costs applicant must, within 7 days after receiving the submissions and documents of the costs respondent, give the costs respondent and the Registry any additional submissions and documents the costs applicant intends to rely on in response to the costs respondent's submissions and documents;

(d) the parties are to include, in their written submissions concerning the application for costs, their submissions about whether they consider that a hearing in relation to the application can be dispensed with pursuant to s 50 of the Civil and Administrative Tribunal Act 2013 (NSW).

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.