Pellatt v Ford Motor Company of Australia Pty Ltd

1. The appellant instituted proceedings against the respondent in September 2024 in the Consumer and Commercial Division of the Tribunal seeking an order for the supply of a replacement vehicle because of an alleged breach of the respondent's express 5 year manufacturer's warranty in respect of a Ford Ranger motor vehicle acquired by the appellant in 2020.
2. In the proceedings at first instance the appellant relied on ss 54, 59 and 259(2) of the Australian Consumer Law.
3. The hearing of the application occurred on 11 March 2025. The proceedings were adjourned part heard to 3 June 2025 and finalised by a written decision with reasons on 12 June 2025. The Tribunal Member dismissed the application on the basis that the Tribunal had no jurisdiction.
4. The appellant has appealed that decision. His appeal has been lodged within the 28 day period allowed for filing appeals from a decision in the Consumer and Commercial Division of the Tribunal.
5. The appellant's Grounds of Appeal are:

(1) The Tribunal erred in law by failing to consider that he was a "consumer" under section 3 of the Australian Consumer Law (ACL) which defines "consumer" more broadly than the Fair Trading Act 1987 (NSW) Part 6A. ('FTA');

(2) The Tribunal incorrectly relied solely on the FTA (ss 79D-79G) to assess jurisdiction despite acknowledging ACL applies via s 28A of the FTA. The appellant states that his claim arose under ACL s 59 (express warranties) and s 271 (actions against manufacturers), not solely under Part 6A of the FTA;

(3) The Tribunal misapplied Leach v Toyota [2022] NSWCATCD 92 which involved a gifted vehicle and lacked an express warranty claim. The appellant states that in his case Ford issued and publicly promoted a 5-year express warranty, which applied at the time the defect was reported. The Tribunal failed to give proper weight to the fact that Ford, as manufacturer, supplied the goods in trade or commerce, and had acknowledged the warranty through multiple inspections - satisfying ACL requirements for a valid express warranty claim.

1. Section 80 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) sets out the basis upon which appeals from decisions of the Tribunal may be brought. That section states that an appeal may be made as of right on any question of law, or with the leave of the Appeal Panel on any other grounds (s 80(2)(b)).
2. The appellant's Notice of Appeal also seeks Leave to Appeal on the grounds that:

(a) the decision of the Tribunal:

(i) was not fair and equitable, and

(ii) was against the weight of evidence; and

(b) significant new evidence was now available that was not reasonably available at the time of the hearing.

1. The appellant conceded at the hearing that there was no significant new evidence.

1. The factual background is uncomplicated and was described in the Tribunal decision as being that in 2020 the appellant purchased a Ford Ranger vehicle, first registered in May 2018, from a doctor in Nowra by private sale. There was no dispute that at all relevant times a Ford manufacturer's warranty applied to the vehicle. Before commencing proceedings, the appellant notified the respondent of an internal leak into a passenger footwell. The respondent was unable to locate the source of the leak and on that basis it has not provided a repair or remedy under its manufacturer's warranty.

1. After reciting the facts, the Tribunal Member stated the respondent's position as being:

'The respondent Ford Company of Australia claims that as the purchase of the vehicle was a private sale that the Tribunal does not have jurisdiction in accordance (sic) the principles in Leach v Toyota Motor Corporation Australia Limited [2022] NSWCATCD 92.'

1. The Tribunal found that it had jurisdiction for consumer claims pursuant to section 79J of the FTA. In addition, the Tribunal found that it had the jurisdiction to hear Australia Consumer Law matters pursuant to s 28 of the FTA. The Tribunal found that, in order to enliven its jurisdiction, the applicant was required to be a consumer and his claim was required to be a consumer claim within the meaning of Part 6A of the FTA.
2. The Tribunal Member referred to and set out the definitions of a 'consumer claim', a 'consumer', a 'supplier' and 'supply' as contained in ss 79E, 79D and 79G of the FTA respectively.
3. The Tribunal Member then referred to [11] and [12] of Leach v Toyota which state:

'11 As can be seen from the definitions set out above, an essential part of being a "consumer" and there being a "consumer claim" is that there has been a supply by a "supplier" to the putative consumer. There will not be a relevant supply unless the entity supplying the goods to the putative consumer does so "in the course of carrying on (or purporting to carry on) a business".

12 Here, the supply to the applicant was by her father in law and it was not in the course of carrying on a business.'

1. At [12] of the decision, the Tribunal Member concluded by stating:

'The supply of the vehicle was through a private sale between two individuals. The 'supplier' was not a business and the 'supply' was not in the course of caring on a business in accordance with the Section 79D of the Fair Trading Act, 1987 and Leach v Toyota. Motor Corporation Australia Limited [2022] NSWCATCD 92. Therefore the applicant is not a consumer and the claim is not a consumer claim. For these reasons, the Tribunal does not have jurisdiction to hear the claim and the application is dismissed.'

1. In written submissions and at the hearing the appellant submitted that the definition of consumer in s 3 of the Australian Consumer Law overrides the definition of consumer in the FTA_._
2. The appellant also relied on s 79E(2) of the FTA in order to submit that the section allowed claims against a manufacturer who was not a direct supplier. That sub-section provides:

'For the avoidance of doubt, a reference in this Part to a consumer claim includes a reference to a claim by a consumer against a supplier (for example, a manufacturer or wholesaler) who is not the direct supplier of goods or services to the consumer if the claim arises from or in connection with the supply of those goods or services by the direct supplier to the consumer.'

1. This submission was not developed by the appellant. Presumably the submission is that s 79E(2) allows his claim against the respondent as a manufacturer, albeit without analysis of who was or would be a direct supplier for the purposes of the section.
2. The appellant also referred to the fact that after he purchased the Ford Ranger the respondent carried out work on it under the manufacturer's warranty, which confirms that his claim in connection with water ingress to the passenger footwell was a valid consumer claim under Part 6A of the FTA.
3. The Appellant sought to distinguish Leach v Toyota on the basis that the facts of that decision related to a vehicle that had been gifted to the applicant, not purchased and there was no manufacturer's warranty. He submitted that the case appeared irrelevant.

(1) the appellant had not raised a question of law;

(2) the appellant's argument was misconceived because the FTA was the 'jurisdictional gateway' to empower the Tribunal to hear and determine consumer claims, including claims under the Australian Consumer Law;

(3) the appellant's application for leave repeated his arguments relating to errors of law; and

(4) the appellant received a fair hearing.

1. In conclusion the respondent sought orders that the appeal be dismissed.

Determination of the appeal on a question of law

1. This appeal involves a consideration of whether the Tribunal correctly interpreted the FTA and the Australian Consumer Law in order to determine whether it possessed the jurisdiction to hear the appellant's claim as a consumer under the FTA and the ACL. The appeal raises questions whether the construction of a statute arrived at by the Tribunal at first instance was wrong in some identified way and therefore raises a question of law: Unique Commercial Group Pty Ltd v Cusamano [2024] NSWCATAP 204 at [32(2)].
2. Under s79I of the FTA:

'Any consumer may apply to the Tribunal for determination of a consumer claim.'

1. In order for the appellant to bring a 'consumer claim' in the Tribunal, which may include a claim under the ACL, it was necessary for him to establish that he was a 'consumer' as that term is defined in s79D of the FTA. This is required by s79I.
2. Critically, a consumer is defined to be one of the individuals or bodies referred to in s 79D(a)-(h) of the FTA to whom a supplier has supplied, or agreed to supply, goods or services.
3. This requires consideration of the definition of the word 'supplier' in s79D of the FTA which is:

'a person who, in the course of carrying on (or purporting to carry on) a business, supplies goods or services.'

1. We agree with the Tribunal Member at first instance that the supply of the Ford Ranger to the applicant through a private sale lacked the necessary ingredient of being a supply by person who, in the course of carrying on (or purporting to carry on) a business, supplies goods, which would include a motor vehicle. We also agree that, because that element was not present in these proceedings, the appellant was not a consumer as defined in the FTA and therefore the Tribunal did not have the jurisdiction to determine his claim against the respondent under the ACL. It follows from those conclusions that we reject the appellant's submission that the decision in Leach v Toyota has no relevance_._ Whether the applicant obtained the vehicle by a gift from a relative or by purchase from a private seller, the supply did not have the necessary element of being a supply by a person who, in the course of carrying on or purporting to carry on a business, supplies goods.
2. It follows from the above conclusion that we reject the appellant's submission that s 3 of the ACL overrides the provisions of the FTA so far as the definition of a consumer is concerned. The definition of 'consumer' in the ACL has a function in relation to the operation of the ACL, it does not have any relevance to the determination of the question whether a person is a 'consumer' for the purposes of the FTA.
3. The appellant also submitted that s 79E(2) of the FTA applied to permit his claims against the respondent as the manufacturer of the vehicle that he purchased. We reject this submission. We agree that s 79E(2) expands the definition of a consumer claim to include a claim by a consumer against a manufacturer. However the section does not affect the definition of 'consumer' or 'supplier' as referred to above. The section does not operate so that a 'direct supplier' includes a person who does not supply goods or services in the course of carrying on a business. In our view the words 'direct supplier' in means the supplier (as defined in the FTA) who, as opposed to the manufacturer, directly supplies the goods to the consumer. The result is that. provided there is a direct supply by a 'supplier' to a 'consumer', as those words are defined in the FTA, the definition of 'consumer claim' in the FTA will include a claim by a consumer against the manufacturer without the direct supplier being a party to the proceedings.

1. Clause 12(1) of Sch 4 to the NCAT Act governs the grant of leave to appeal against decisions of the Consumer and Commercial Division of the Tribunal. It states:

'12 Limitations on internal appeals against Division decisions

(1) An Appeal Panel may grant leave under section 80 (2) (b) of this Act for an internal appeal against a Division decision only if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because:

(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 [2014] NSWCATAP 17 the Appeal Panel stated, at [76]-]78]:

'76 ... [I]t should be accepted that a substantial miscarriage of justice may have been suffered because of any of the circumstances referred to in cl 12(1)(a), (b) or (c) 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.

77 As to the particular grounds in cl 12(1)(a) and (b), without seeking to be exhaustive in any way, the authorities establish that:

(1) If there has been a denial of procedural fairness the decision under appeal can be said to have been "not fair and equitable" - Hutchings v CTTT [2008] NSWSC 717 at [35], Atkinson v Crowley [2011] NSWCA 194 at [12].

(2) The decision under appeal can be said to be "against the weight of evidence" (which is an expression also used to describe a ground upon which a jury verdict can be set aside) where the evidence in its totality preponderates so strongly against the conclusion found by the tribunal at first instance that it can be said that the conclusion was not one that a reasonable tribunal member could reach - Calin v The Greater Union Organisation Pty Ltd [1991] HCA 23; (1991) 173 CLR 33 at 41-42, Mainteck Services Pty Limited v Stein Heurtey SA [2013] NSWSC 266 at [153].

78 If in either of those circumstances the appellant may have been deprived of a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved, then the Appeal Panel may be satisfied that the appellant may have suffered a substantial miscarriage of justice because the decision was not fair and equitable or because the decision was against the weight of the evidence.'

1. Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Sch 4, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b).
2. In Collins v Urban, the Appeal Panel stated at [84] 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."

1. In that section of the Notice of Appeal dealing with his Application for Leave to Appeal, the appellant stated:

'I respectfully request leave to appeal on the basis that the Tribunal made an error of law by failing to apply the Australian Consumer Law which was the primary legal framework under which my original claim was brought. The Tribunal relied solely on part 6A of the NSW Fair Trading Act 1987 to determine whether I was a "consumer" ignoring the broader and overriding definition in section 3 of the ACL which applies to private purchases.'

1. The appellant also made other comments which concerned the nature of his claim in the first instance proceedings and the Tribunal decision appealed against. The appellant also stated that his appeal raised:

'a significant question of law affecting the rights of second-hand purchasers across NSW'

'important legal issues that affect many second-hand vehicle owners across NSW and Australia'

1. In section 6B of the Notice of Appeal where the appellant was required to describe in detail why the decision was not fair and equitable, he stated as follows:

'The Tribunal failed to assess the actual claim under ACL provisions and restricted its analysis to NSW definitions, excluding the broader statutory rights available to consumers under a federal law. This denied me access to a fair hearing of my warranty rights as a second - hand buyer.'

1. We agree with the respondent's position that the appellant's application for leave repeated his arguments relating to errors of law.
2. We decline leave to appeal based on the appellant's statement of why the decision was not fair and equitable. The Tribunal Member correctly applied the provisions of the FTA to reach a decision which we have found was correct. The fact that the effect of that decision was that the appellant was unable to proceed with his case under the Ford warranty in the Tribunal, because the Tribunal did not have the necessary jurisdiction, does not in our view mean that the appellant was deprived of a fair hearing.

Decision of the Tribunal against the weight of evidence

1. The appellant referred to the evidence which he filed, which he stated showed that the respondent inspected the vehicle five times and confirmed a defect (water ingress) yet refused to repair it. The appellant also stated under this heading:

'The Tribunal should have given more weight to the evidence that Ford Australia acknowledged and acted upon the express warranty by inspecting the vehicle five times in response to my warranty claim. These inspections confirm that Ford accepted the warranty was valid and applicable to me as the current owner.'

1. When the Tribunal at first instance lacked the jurisdiction to hear the appellant's claim because he was not a consumer as defined in s 79D of the FTA, the Tribunal Member did not, and could not, consider whether the evidence filed by the parties was sufficient to establish the appellant's claim. In those circumstances leave should not be granted on the ground that the decision of the Tribunal was against the weight of the evidence. The decision of the Tribunal was that the Tribunal had no jurisdiction to hear the appellant's claim. That decision was founded upon the fact, which the appellant does not contest, that the appellant acquired the vehicle by private sale. The Tribunal's decision that it had no jurisdiction to determine the appellant's claim meant that the Tribunal did not consider whether the appellant's claim was established on the evidence filed by the parties.
2. The appellant has stated that the respondent in effect acknowledged its warranty because it had carried out multiple inspections of the vehicle and confirmed the existence of the defect the subject of his application. Even if that were correct, and it was not denied by the respondent, that conduct is not sufficient to give the Tribunal jurisdiction where none existed.
3. The appellant may have been entitled to enforce the express warranty against the respondent manufacturer in another jurisdiction. The fact that the respondent may have acknowledged the existence of the warranty does not confer jurisdiction upon the Tribunal to enforce the warranty.
4. We refuse leave to appeal.

(1) Leave to appeal is refused.

(2) The appeal is 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.