Ozzy's Cheapest Cars Pty Ltd t/a Ozzy Car Sales v Soifua

NCAT Appeal Panel|2022-03-10

Introduction

The respondent to this appeal (Mr Soifua) commenced proceedings in the Tribunal seeking remedies under the Australian Consumer Law in respect of a second hand motor vehicle purchased from the appellant (the dealer) on 21 November 2019.
Mr Soifua asserted that the vehicle suffered a major defect and that he had rejected the vehicle.
The hearing of Mr Soifua's application took place on 19 October 2021. Mr Soifua led evidence from himself, two daughters, his son and a daughter-in-law. Mr Soifua also relied upon invoices, service reports and quotations from a number of mechanics.
The dealer did not file any statement or other evidence. However, Ms Hirst, the office manager of the dealer, gave oral evidence at the hearing. As the Tribunal noted in its decision, the dealer had not sought access to inspect the vehicle prior to the hearing.
The dealer informed the Appeal Panel that it had sought to obtain the recording of the hearing to prepare a transcript but had been informed that, owing to a technical issue, no recording was available.
The Tribunal delivered its decision on 15 December 2021. The Tribunal ordered the dealer to pay Mr Soifua the sum of $20,928.90 and directed Mr Soifua to do all things necessary to effectively transfer the vehicle into the name of the dealer.
The Appeal Panel was informed that the dealer had paid the judgment and that Mr Soifua had secured the release of a security interest held by his bank over the vehicle and returned the vehicle to the dealer.

The scope and nature of internal appeals

By virtue of s 80(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), internal appeals from decisions of the Tribunal may be made as of right on a question of law, and otherwise with leave of the Appeal Panel.
In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 the Appeal Panel set out at [13] a non-exclusive list of questions of law: 1. Whether there has been a failure to provide proper reasons; 2. Whether the Tribunal identified the wrong issue or asked the wrong question. 3. Whether a wrong principle of law had been applied; 4. Whether there was a failure to afford procedural fairness; 5. Whether the Tribunal failed to take into account relevant (i.e., mandatory) considerations; 6. Whether the Tribunal took into account an irrelevant consideration; 7. Whether there was no evidence to support a finding of fact; and 8. Whether the decision is so unreasonable that no reasonable decision-maker would make it.
The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are limited to those set out in cl 12(1) of Schedule 4 of the NCAT Act. In such cases, the Appeal Panel must be satisfied that the dealer may have suffered a substantial miscarriage of justice because: 1. The decision of the Tribunal under appeal was not fair and equitable; or 2. The decision of the Tribunal under appeal was against the weight of evidence; or 3. Significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
In Collins v Urban [2014] NSWCATAP 17, 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 appellant 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.
Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Schedule 4, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b).
In Collins v Urban, the Appeal Panel stated at [84(2)] that ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed.
Ms Hirst, who appeared for the dealer, acknowledged that the dealer did not rely upon any questions of law but rather sought leave to appeal on the grounds that the decision was not fair and equitable and was against the weight of evidence.

Consideration

The dealer's submissions asserted: "Much of the verbal evidence given during the hearing was not taken into consideration or addressed in the decision made by [the Tribunal] … Furthermore, evidence given both written and verbal were also contrary to the decisions made by [the Tribunal]."
As an Appeal Panel stated in Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10]: "An appeal does not provide a losing party with the opportunity to run their case again". It is not enough, to obtain leave to appeal, for the dealer to establish only that others might have come to a different conclusion on the evidence before the Tribunal.
The dealer's written submissions relied upon what the dealer asserted were erroneous statements of the evidence in the Tribunal's decision, in particular: 1. The dealer submitted that item 9 in the report from Keep Rolling Mobile Mechanics was inaccurately reproduced in paragraph [12] of the decision. Item 9 in the report was "Clutch bleeder is moist indicating it may have a minor fluid weep". Item 9 in paragraph [12] was "Clutch bleeder moist - indicating minor fluid weep". The dealer submitted that the finding in paragraph [14] of the decision that item 9 "is a sign of impending clutch/gearbox failure that eventually occurred" did not take into account the fact that the Keep Rolling report used the terms "may" and "minor". 2. The dealer submitted that a statement by the Tribunal in paragraph [38] of the decision that the dealer "did not make specific submissions on 12 February 2021 gearbox/transmission failure requiring repairs totalling $4,145.90 some 14 months after purchase" was not correct, as the dealer had submitted that the repair of the transmission was a "fair wear and tear event".
On our reading of the decision, we do not understand these matters to constitute errors in the Tribunal's assessment of the evidence. Putting the position at its highest, from the dealer's perspective, they reflect insubstantial infelicities of language.
However, in circumstances where the dealer is not legally represented, it is appropriate that the Appeal Panel consider the substance, and not merely the form, of the dealer's submissions.
As we understand the dealer's written submissions, and the oral submissions of Ms Hirst, the dealer asserts that four conclusions reached by the Tribunal were against the weight of evidence:
Those conclusions were: 1. The Tribunal's conclusion that the moistness of the clutch bleeder was an indication of impending clutch/gearbox failure. 2. The Tribunal's conclusion that the gearbox/transmission repairs by Sinclair Ford, the subject of the invoice of 12 February 2021, were not fair wear and tear even though the vehicle had travelled more than 20,000 km since its purchase from the dealer. 3. The Tribunal's conclusion that the underlying causes of the engine failure were "latent in the vehicle at the time of purchase". The dealer submitted that none of the items listed in the evidence, invoices or verbal submissions showed impending engine failure. 4. The Tribunal's conclusion that the time for rejection had not expired "having regard to the opportunity which was given to the [dealer] on many occasions to rectify the many arising faults." The dealer submitted that the vehicle had come back to the dealer "twice only", in December 2019 and January 2020 and that "the next time [the dealer] was contacted about any problems with the vehicle were not until the clutch failure in December of 2020" when the dealer refused to repair the clutch on the basis that it "was a maintenance item".
Ms Hirst's oral submissions in relation to the first and second conclusions focused on the proposition that clutch repairs were part of the scheduled maintenance of a manual vehicle. Ms Hirst could not point to any evidence which had been before the Tribunal to suggest that the clutch repairs, the subject of the invoice for $4,145.90 dated 12 February 2021, were part of scheduled maintenance of a manual vehicle
The dealer's written submissions suggested that the Tribunal had itself made a statement to the effect that "clutch repairs are a part of the scheduled maintenance of any manual vehicle". However, we do not consider that that statement is inconsistent with the proposition that the indication of the possibility of a "minor fluid weep" noted at the 16 December 2019 inspection "heralded" the subsequent substantial damage to the clutch assembly which occurred in December 2020.
The failure of the clutch assembly in December 2020 was attested to by Mr Soifua in paragraphs 23 to 24 of his affidavit and by his daughter Sele Falaniko in paragraphs 48 to 52 of her affidavit and is also evidenced by the invoice from Sinclair Ford dated 12 February 2021.
We do not accept that the Tribunal's conclusions regarding the clutch repairs were against the weight of evidence or not fair and equitable.
In relation to the Tribunal's conclusion regarding the engine failure, the dealer submitted that "the quote from Sinclair Ford dated 14/4/2021 being around 16 months and at least 24,864 kms after purchase did not diagnose the cause of the engine failure."
As we have noted above, the Tribunal concluded (at [61]) that the vehicle's engine had failed and required replacement.
The evidence that the engine had failed was not limited to the quote from Sinclair Ford. It also included a report from Keep Rolling Auto Mechanics which recorded that the engine was running loud and rattling, even after an oil change, and evidence from Sally Moala, Mr Soifua's other daughter, of conversations she had had with the mechanic from Keep Rolling, who told her that "the engine needed to be stripped apart to get to the root cause of it all", and with Chris, from Sinclair Ford, who had said "there are way too many issues with the vehicle that to replace them individually would cost more than the worth of the car itself, it would be cheaper to purchase a second hand engine to put in the vehicle". Although that evidence was hearsay, the rules of evidence did not apply. The evidence was before the Tribunal and the Tribunal was entitled to accord weight to the evidence.
The Tribunal also accepted the evidence tendered on behalf of Mr Soifua that the vehicle had been serviced regularly.
In these circumstances, in the absence of evidence from the dealer to suggest any alternative cause of engine failure, it cannot be said that the conclusion of the Tribunal that the engine failed for causes which were latent in the vehicle at the time of purchase was against the weight of evidence or not fair and equitable.
In relation to the Tribunal's conclusion that time for return of the goods had not expired having regard to the opportunity given to the dealer to rectify the faults, we note that the evidence of Mr Soifua and witnesses called by Mr Soifua, which was accepted by the Tribunal, was that Mr Soifua and his family had contacted the dealer on numerous occasions leading up to January 2020 and had not received a satisfactory response. We also note that it was the dealer's own case that, when Mr Soifua experienced the problem with the clutch in December 2020, the dealer had declined to accept responsibility on the basis that the necessary repairs were "fair wear and tear".
In light of that evidence, we are not persuaded that the Tribunal's conclusion that the time for rejection of the goods had not expired was not fair and equitable or was against the weight of the evidence.
Accordingly, leave to appeal must be refused.

Orders

The orders that we make are as follows: 1. Leave to appeal refused. 2. Appeal dismissed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 March 2022

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