Robinson-Murray v Bargshoon

Judgment

HER HONOUR: This is an appeal against a decision of the Appeal Panel of the Civil and Administrative Tribunal of New South Wales. An appeal from such a decision may be brought to this Court with the leave of the Court on a question of law: see s 83(1) of the Civil and Administrative Tribunal Act 2013 (NSW).
The appeal was first listed for hearing before Garling J on 11 June 2015. On that occasion the defendant, Mr Bargshoon, did not appear. The plaintiffs appeared, each representing herself. For reasons explained below, after hearing from the plaintiffs, his Honour determined to stand the proceedings out of the list. Although evidence had been adduced, the matter was not marked part-heard before his Honour.
The appeal subsequently came before me for hearing on 17 August 2015. Mr Bargshoon was present when that hearing date was allocated but, for a second time, did not appear at the hearing. On 28 August 2015, after I had reserved my decision, a medical certificate was emailed to the Court stating that Mr Bargshoon was "unfit for work" on 17 August 2015 due to "viral illness". The certificate indicated, however, that Mr Bargshoon was fit to resume work the following day. The certificate did not provide sufficient information to enable me to be satisfied that Mr Bargshoon was incapable of attending the hearing. Accordingly, I considered it appropriate to proceed to determine the appeal.
I should record that the amended summons filed 5 May 2015 names the Tribunal as second defendant and "SSS Best Cars" (evidently a reference to the company, SSS Best Cars Pty Ltd) as third defendant. The joinder of the Tribunal is prohibited by s 84(3) of the Civil and Administrative Tribunal Act. The joinder of the company is inappropriate as the appeal against it was dismissed by the Appeal Panel on 7 October 2014 on the application of the plaintiffs after the company was deregistered. Accordingly, the only proper defendant to the appeal is Mr Bargshoon.
For the following reasons, I have decided that leave to appeal should be granted, that the appeal should be allowed and that an order should be made pursuant to s 83(2)(b) of the Act remitting the case against Mr Bargshoon to be heard and decided again by the Tribunal.

Circumstances in which the appeal is brought

The case has a complex and unfortunate history. The present appeal concerns only the decision of the Appeal Panel made 9 January 2015. However, for reasons which will become apparent, it is important to set out some of the earlier history of the plaintiffs' claim.
The case arises out of the purchase of a second-hand car. The car was purchased in the name of the second plaintiff, Ms Sarah Robinson, for use by her daughter, Ms Jessica Robinson-Murray (the first plaintiff).
The car was purchased on 1 September 2012. There is evidently a factual issue as to the identity of the dealer. However, it has not ultimately been necessary for me to resolve that issue. When the appeal came on for hearing before Garling J, the plaintiffs tendered a sale notice headed "form 8" under the Motor Dealers Act 1974 (NSW) (repealed in December 2014). The sale notice (marked as exhibit A before Garling J) identified the dealer as "SSS Best Cars", citing dealer licence number MD041940. The plaintiffs contended that Mr Bargshoon had told them that was a licence which he held in his name (see transcript before Garling J at T27). His Honour took the view that it was a central feature of the plaintiffs' case to ascertain whether that was so. It appears the principal reason the matter was stood out of his Honour's list was to allow those inquiries to be made.
In their subsequent inquiries through the Department of Fair Trading, the plaintiffs have been unable to ascertain whether that licence number existed or the name of any entity or person who held it.
At the time of sale, in addition to "form 8", the plaintiffs were also given a business card bearing the names "SSS Best Cars Pty Ltd" and "Sam Bargshoon" and identifying a different dealer licence number, MD032854. The plaintiffs have now obtained two certificates under s 161(a) of the Motor Dealers and Repairers Act 2013 (NSW) from which it appears that, as at the date of sale (1 September 2012), Mr Bargshoon may not have held any motor dealer licence. One certificate states that the licence noted on the business card (motor dealer licence number MD032854) was issued to Samir Bargshoon on 20 September 2010 but surrendered on 8 August 2012, just under a month before the sale of the car to the plaintiffs. A second certificate states that Mr Bargshoon held a different licence from 19 June 2013 (almost a year after the sale) until 18 June 2015.
It is unclear from that material whether the dealer on the sale to the plaintiffs was SSS Best Cars Pty Ltd or Mr Bargshoon trading as SSS Best Cars (or some other entity). What is clear, however, is that it was Mr Bargshoon who had all of the relevant conversations with the plaintiffs and who made all of the relevant representations to them concerning the condition of the car.
The plaintiffs first brought a claim in respect of the car in October 2012, shortly after it had been purchased. The claim was determined by the Consumer, Trading and Tenancy Tribunal in February 2013. The Tribunal (Member Turley) found that the car was not roadworthy. However, the plaintiffs were only partly successful in the relief claimed by them in those proceedings. For reasons of health, Ms Robinson-Murray could not attend the hearing in person. The plaintiffs accordingly appeared by telephone. The Tribunal Member recorded in his reasons for decision that, after the hearing had proceeded for about 35 minutes the second plaintiff, Ms Robinson, became emotional and abusive to all concerned, including her daughter, who then terminated the conversation stating that she would have to get her mother to hospital. The Tribunal Member declined to adjourn the hearing, giving his reasons orally. Those reasons were sound-recorded but have not been transcribed.
The Tribunal Member accordingly proceeded to determine the claim in the plaintiffs' absence. As already noted, he was satisfied that the car was not roadworthy. The plaintiffs had made allegations of misrepresentation against Mr Bargshoon individually. Those allegations were denied under oath by Mr Bargshoon. In his reasons for decision, the Tribunal Member said "unfortunately the applicant had to terminate the phone call and so these issues were not tested under cross-examination".
As best I can ascertain from the material before me, the plaintiffs' claim at that stage was for $5,118 made up of the following amounts: $4,250 for the purchase price paid on 1 September 2012; $77 for the removal of an immobiliser which did not work and which later stopped them from starting the car; $542 paid in repairs in order to get the car registered six weeks after purchase; $249 for the NRMA vehicle inspection on the strength of which it was held that the car was not roadworthy.
The Tribunal Member allowed $3,250 of the claim. He ordered "the respondent" (evidently the company, SSS Best Cars Pty Ltd) to pay that amount to the plaintiffs. The Member further ordered that, upon receipt of that sum, the plaintiffs were to return the car to the respondent.
The plaintiffs' principal complaint in respect of that decision was that the Tribunal member deducted $1,500 from the purchase price on the basis that Mr Bargshoon had asserted he had paid that amount to Ms Robinson in cash for the trade-in of her existing car. She was not heard in respect of that issue (having terminated her participation in the hearing peremptorily). She strongly disputes Mr Bargshoon's evidence on that issue and asserts that the statements he attributes to her (to explain her alleged desire to receive payment in cash) are a complete fabrication on the part of Mr Bargshoon.
Separately, of the sum of $868 claimed for the cost of removing the immobiliser ($77), the cost of repairs to get the car registered ($542) and the cost of the NRMA vehicle inspection ($249), the Member allowed "a contribution" of $500 (effectively deducting $368 from the claim). Accordingly, as best I can discern, the amount allowed was $1,868 less than the amount initially claimed (the plaintiffs later added claims for $1,524 for driving lessons which it was alleged could have been given to the first plaintiff by the second plaintiff had the car been roadworthy and $15,447 for a car loan later taken out to buy a different car).
For future reference, it is appropriate to set out that portion of the Tribunal member's reasons in full: "The facts briefly are that the applicant with the assistance of her mother purchased a vehicle from the respondent on 1/9/2012 for $4250.00. The applicant alleges that the vehicle was not roadworthy and that the respondent made a number of misrepresentations about the vehicle at the time of sale. The respondent arranged for the vehicle to be blue slip tested at an RTA authorised station on 27 August 2012. No defects at all were recorded on that blue slip test result which was tendered by the respondent in its bundle of papers. The applicant's mother alleged that the hearing was unfair in that she wished to subpoena the person who did the test but the respondent would not reveal the tester's name. The respondent denied ever receiving that request from the applicant but then went on to correctly point out that the applicant could still have subpoenaed the tester whose examiner's number is recorded on the blue slip even though the signature is illegible. The applicant submitted an NRMA report dated 17/1/13 which is four and a half months after the sale. A large number of problems are recorded therein but only a few of those issues go to road worthiness which included rear tyres worn - in the applicant's mechanic's report of 8/11/12 stated that the rear tyres would require replacing at the next 5000 KM service so this is not an issue of roadworthiness at the point of sale. Also recorded in the NRMA report in relation to roadworthiness is seat belt failure. Again this is not evidence as to the condition of the seat belts at the point of sale and they may have failed in the intervening 4 and 1/2 months. The major issue in the NRMA report is item 53 about accident damage which is starting to rust and also that the rear under floor panel is peeling away from the chassis and starting to rust. In my opinion these are major defects and they could not possibly have happened in just the 4 and 1/2 months between the sale and the NRMA report. Based on this aspect it is my opinion that the vehicle was not in a roadworthy condition at the point of sale. The NRMA inspector concluded "Vehicle appears to be in a poor condition and in present state not roadworthy". All the applicant's allegations of misrepresentation were denied under oath by the respondent. Unfortunately the applicant had to terminate the phone call and so these issues were not tested under cross examination. A curious issue arose about the trade in vehicle. The applicant's mother claims that she was only paid $250 for the trade and it would probably have been sold for $6000.00 which she claims is due to her even though she is not a party to this dispute. In my opinion the trade in is an issue of some difficulty as to who owned that vehicle and whether in effect I can rewrite that contract. There is the possibility of damages for false or misleading conduct if proven but it was at this point of time Mrs Robinson informed me "it is the law". When I asked her what law Mrs Robinson spoke at some length and then the phone conversation was terminated. The curious incident was that the respondent gave evidence that Mrs Robinson wanted to be paid in cash for the trade in so that the father of the applicant would not find out the amount she was paid for the trade in. The respondent asserted that he paid Mrs Robinson $1500.00 in cash for the trade in and in support of this submission he tendered a copy of the RTA registration form. That form shows a sale price of $1500.00 and bears what I am told is Sarah Robinson's signature. Strange as these submissions may appear there was no evidence before to dispute them and the RTA transfer form gave credence to these submissions. Evidence was also given of the subsequent sale of the trade-in vehicle for $2500.00 on 7/9/2012 and the identity of that purchaser. Accordingly I made an order which took into consideration the purchase of $4250.00 from which I deducted the $1500.00 which was paid in cash for the trade in. This left a balance of $2750.00 to which I added $500.00 as a contribution to the cost of the NRMA report which was necessary to prove the applicant's claim and the cost of the immobilisers. I dismissed the claim for the mechanical repairs which were completed by "Ryans" as these were mostly maintenance issues. The front tyres were replaced during that service but there is no evidence before me that these were in need of replacement at the point of sale. Accordingly, I made the two orders first for the payment of $3250 to the applicant and then the second for the surrender of the vehicle to the respondent once the $3250.00 has been paid."
As already noted, Ms Robinson asserts that the evidence Mr Bargshoon gave to the effect that she "wanted to be paid in cash for the trade in so that the father of the applicant would not find out the amount she was paid for the trade-in" was false. She says that Ms Robinson-Murray's father was "out of her life when she was 6 years old, he's not even in our lives".
That decision of the CTTT was given on 14 February 2013. On 20 December 2013, Harrison AsJ found that Ms Robinson-Murray had been denied procedural fairness when she was denied an adjournment and the hearing continued in her absence. Her Honour set aside the orders of the Tribunal member given 14 February 2013 and remitted the case to the Tribunal: Robinson Murray v Consumer Trader and Tenancy Tribunal [2013] NSWSC 1914.
On 12 March 2014, the plaintiffs obtained an order joining Mr Bargshoon as a defendant to the claim. It was their position that he had always been a defendant but in any event the position was put beyond doubt on that date.
On 24 April 2014 a letter was sent by the plaintiffs to the Tribunal attaching "the new application requested by Tribunal member after the Supreme Court judge ordered it to be re-heard" (Exhibit A at the hearing before me).
The new application was determined on 11 July 2014 by a differently constituted tribunal (Member Paull). Member Paull was not persuaded that the car was not roadworthy. She dismissed the claim other than allowing the award of $77 in respect of the immobiliser.
The orders of the Tribunal made on that occasion required Mr Bargshoon and SSS Best Cars Pty Ltd to return the car at their own expense to Ms Robinson-Murray on or before 25 July 2014. Ms Robinson Murray was ordered, within seven days of receipt of the car and no later than 1 August 2014, to pay to "the respondent" the sum of $3,173 (that is, to return the original award of $3250 after deducting $77 for the immobiliser). Those orders could not ultimately be complied with, since the car had later been re-sold.
For completeness, I should record that Ms Robinson-Murray brought proceedings in this Court seeking a stay of those orders (the basis for the stay was that the plaintiffs apprehended that, according to the terms of the orders, their liability to pay the money sum may arise before the car was returned). My reason for mentioning that fact is that the present appeal was brought by way of amendment to that earlier summons. Strictly speaking, a fresh summons ought to have been filed. For expedience, I dispense with that requirement.
Ms Robinson-Murray brought an appeal to the Appeal Panel of the Tribunal against the decision of Member Paull. However, between the time of the decision of Member Paull and the hearing before the Appeal Panel, SSS Best Cards Pty Ltd was deregistered. The appeal as against it was accordingly dismissed at the hearing before the Appeal Panel on 7 October 2014. The Appeal Panel recorded that order as having been made on the application of the plaintiffs.
Owing to the de-registration of the corporate respondent, the Appeal Panel's decision was concerned only with the appeal in respect of the claim against Mr Bargshoon. The plaintiffs' claim against him included a claim based on representations made by him as to the merchantable quality or fitness for purpose of the car.
Part of the material before the Appeal Panel (which became Exhibit A in those proceedings) was the audio recording of the hearing before the Tribunal (Member Paull) on 11 July 2014. The Appeal Panel recorded that, according to the audio recording, the amount then claimed by the plaintiffs was $23,000 (including the amounts claimed for driving lessons and the cost of a loan for another car).
The Appeal Panel determined the appeal on 9 January 2015. As already noted, that is the decision under appeal in these proceedings. The Appeal Panel held that the orders made by the Tribunal against Mr Bargshoon should be set aside and that the claim against him should be dismissed: Robinson Murray v Bargshoon [2015] NSWCATAP 19.
The Appeal Panel recorded that, in the reasons for decision of the Tribunal Member, the Tribunal accepted that Mr Bargshoon had made a representation as to the merchantable quality or fitness for purpose of the car. The Appeal Panel did not find otherwise.
However, the Appeal Panel held that it had no authority to determine such a claim against Mr Bargshoon, since he was not the supplier of the goods. The Appeal Panel interpreted s 74(3) of the Fair Trading Act 1987 (NSW) to confer authority to determine a claim in respect of a contravention of chapter 2 or 3 of the Australian Consumer Law (NSW) only in a case where the person against whom the claim is made was the supplier of the goods or services in question.
After I reserved my decision, a concern as to the correctness of that view prompted me to research that question. I discovered that a differently constituted Appeal Panel (Wright J, President; J Redfern PSM, Principal Member and P Durack SC, Senior Member) has since held that the decision of the Appeal Panel in the present case was wrong: Jenkinson v Chaw [2015] NSWCATAP 127. In particular, the Appeal Panel in that case held that the Tribunal does have authority, pursuant to s 74(3) of the Fair Trading Act, to determine claims for loss or damage for misleading or deceptive conduct in contravention of the Australian Consumer Law (NSW). It should be observed that, unlike the present case, the Appeal Panel in Jenkinson v Chaw had the benefit of legal representation for the appellants and legal submissions put by an amicus curiae on behalf of respondent.
The reasons for decision of the Appeal Panel in Jenkinson v Chaw accord with the view I had reached independently (if tentatively) before I discovered that decision. The fact that the decision under appeal has been overruled in another case is a strong reason for allowing the present appeal. My only residual concern in determining the appeal on that basis was to consider whether the grounds of appeal raised by the plaintiffs squarely raise the legal correctness of the Appeal Panel's decision on that issue.
The grounds appear to have been drafted by the plaintiffs without the benefit of legal assistance and are in some respects difficult to understand or else misconceived. I am nonetheless satisfied that, making due allowance for the plaintiffs' lack of legal training, at the heart of their claim is the contention that Mr Bargshoon was behind the sale and that he ought to be held accountable for his alleged misrepresentations concerning the roadworthiness of the car. The course of events explained above has meant that, notwithstanding the lengthy and complex history of these proceedings, the plaintiffs' "consumer claim" against Mr Bargshoon for loss or damage for misleading or deceptive conduct in connection with the sale of the car has never been determined on the merits. Accordingly, I am satisfied that the appropriate course is to allow the appeal and to remit the case against Mr Bargshoon to the Tribunal to be determined according to law.
For those reasons, I make the following orders: 1. That the appeal be allowed. 2. That the orders of the Appeal Panel made 9 January 2015 be set aside. 3. That the case against the defendant, Mr Bargshoon, be remitted to the Civil and Administrative Tribunal of New South Wales to be heard and decided again by the Tribunal. 4. That Mr Bargshoon pay the plaintiffs' court fees and disbursements of these proceedings.

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