BACKGROUND FACTS & OVERVIEW OF THE PARTIES' RESPECTIVE CASES
The applicant, Salim Investments Pty Ltd, is a small proprietary company. Its director and principal shareholder is Ali Salim ("Mr Salim").
The first respondent, MCM Autos Pty Ltd (hereinafter referred to as the "dealer"), was and is, at all material times, a licensed motor dealer under the Motor Dealers and Repairers Act 2013.
The second respondent, Mazda Australia Pty Ltd (hereinafter referred to as "Mazda"), was and is, at all material times, the manufacturer of motor vehicles for sale in Australia including the Mazda CX9 motor vehicle (hereinafter referred to as the "vehicle" or the "subject vehicle") which is the subject of this application to the Tribunal.
On or about 4 October 2011, the applicant purchased the subject vehicle brand new from the dealer for a purchase price of $54,000.00.
Mr Salim took delivery of the vehicle on 14 October 2011.
Mazda (referred to as the Distributor in the warranty documents) provided a three year new car warranty on the subject vehicle. The warranty provides, among other matters, that: "the Distributor warrants each new Mazda passenger car purchased on or after 1st June 1997, to be free, under normal use and maintenance, from defects in materials and workmanship", further that: "an authorised Mazda Dealer or the Distributor shall, at its discretion, either repair or replace any genuine Mazda part that is defective in material or workmanship, within the warranty term, without charge to the owner(s)", and also that: "rights given or created in favor of the buying public by legislation cannot be excluded or limited, and this vehicle warranty is to be read and construed as additional to and not restrictive of such statutory rights or warranties."
Following its purchase in 2011, the subject vehicle was serviced regularly by the dealer.
One such service occurred on 29 May 2014. The vehicle had then travelled 36,091 kilometres. Mr Salim reported a 'clunk' sound after the vehicle was placed into the 'drive' position and also that the vehicle shakes on acceleration. The dealer's Service Report states:
"CHECK CLUNK WHEN PUT INTO DRIVE, VEHICLE SHAKES INTO DRIVE Checked and found there to be a slight clunk in drive Inspected auto oil level condition All ok Tested with another CX9 and found to be normal characteristic of the vehicle Inspected all engine mounts all ok Carried out PCM update tested all ok FST inspection submitted"
When the issue with the 'clunk' sound and shaking persisted, the vehicle was presented again to the dealer on 13 June 2014 for servicing. The Service Report states:
"CHECK VEHICLE SHUDDERS WHEN SHIFTING INTO DRIVE Checked and found vehicle to shudder when shifting into Drive Carried out tech bulletin NS016 14 TCM would not update Technical advised to replace the TCM with the provided part no. Removed and replaced the TCM, updated TCM software. Performed TCM learning procedure. Road tested vehicle. All ok Refer technical report MA27028 and PAR 216751".
As the issues had not been resolved to the applicant's satisfaction, the vehicle was serviced again on 7 July 2014. The Service Report states:
"CHECK VEHICLE SHUDDERS WHEN SHIFTING INTO DRIVE AND EXCESSIVE CLUNK AND NOISES HEARD CHECKED VEHICLE OPERATION AND SCANNED TCM AND PCM AND FOUND NO TROUBLE CODES WERE DETECTED ROADTESTED VEHICLE WITH MAZDA FMT AND FOUND VEHICLE TO BE OPERATING IN AND WITHIN NORMAL OPERATING SPECIFICATIONS. CHECKED GEARBOX OIL LEVEL ALL OK ROAD TESTED FURTHER WITH EXTENSIVE DRIVING AND FOUND TO STILL BE OPERATING PERFECTLY CUSTOMER TO MONITOR AND RELATE BACK TO DEALER IF CONCERN ARISES''.
The applicant's concerns with the vehicle persisted and the vehicle was returned to the dealer on or about 21 August 2014. On this occasion a new transmission unit was fitted on the vehicle. This work was done under the warranty and therefore without charge to the applicant. The Service Report provides this statement as to the dealer's diagnosis and repair of the vehicle:
"AUTO TRANSMISSION CHECK GEARBOX SLIPPING/CLUNKING INTO GEAR/FMT INSPECT checked and found harsh shifting to be occurring during gear selection from park to drive carried out pressure test and found lines pressure to be below specs causing gearbox to clunk into gear removed airbox battery coolant lines oil cooler exhaust system and all other components as per workshop manual instructions removed and replaced transmission with Brand New unit refitted all components refilled with new transmission oil rechecked levels carried out transmission initial learn procedure retested vehicle with Mazda FMT present all ok".
Not satisfied that the issues with the vehicle had been addressed by the dealer, the applicant made complaint by correspondence to Fair Trading NSW on 8 October 2014. The written complaint stated, among other matters, that the applicant was not satisfied that the vehicle was safe to drive and that Mr Salim's wife: "who is the main driver of this vehicle is not driving it as we believe the car has permanent manufacturing faults and is dangerous".
Following such complaint to Fair Trading NSW the vehicle was returned to the dealer for further servicing. The Service Report bearing date 11 December 2014 says:
"CHECK GEARBOX SHUDDER WHEN PARK TO DRIVE FMT INSPECT CHECKED AND FOUND GEARBOX TO HAVE EXCESSIVE SHUDDER WHEN ENGAGING DRIVE FROM REVERSE FMT TESTED AND FOUND EXCESSIVE PLAY WITHIN THE TRANSFER CASE ASSEMBLY DUE TO AN INTERNAL FAILURE REMOVED AND REPLACED THE TRANSFER CASE ASSEMBLY DUE TO AN INTERNAL FAULT, REFILLED WITH NEW OIL CHECKED LEVELS AND ROADTESTED VEHICLE WITH CUSTOMER SERVICE MANAGER, ALL OK"
On 28 January 2015 the applicant lodged an application with the Tribunal seeking orders against the respondents. In essence, the applicant's case is that the vehicle has an inherent manufacturing defect which cannot be repaired and that the respondents are in breach of contract (the case against the dealer) and in breach of the manufacturer's warranties (the case against Mazda). The primary remedy sought is a full refund of the purchase price paid for the vehicle (i.e. damages in the amount of $54,000.00); alternatively, the applicant seeks damages based on the market value (said to be $37,100.00) of the vehicle as at May 2014 being the time the applicant submits that the vehicle's inherent manufacturing defect became apparent. Further or alternatively to damages, the remedy sought by the applicant is in the nature of specific performance of the obligations in the warranty; that is, in circumstances where the cause of the vehicle's defect cannot be identified and the method of repair cannot be ascertained, it is incumbent on the respondents to replace the subject vehicle with a vehicle which is free from defects.
The respondents deny that there is any inherent manufacturing defect in the subject vehicle. They submit that any movement of the transmission whilst changing gears from reverse to drive is intermittent only and does not affect the driveability or safe operation of the vehicle in any way during its normal on road use. The respondents submit that a case for any relief whether a full refund, damages commensurate with the value of a replacement vehicle as at May 2014, or the supply of a replacement vehicle is not made out on the evidence.
[2]
PROCEDURAL HISTORY APPEARANCES EVIDENCE & SUBMISSIONS
On 20 February 2015, the Tribunal made procedural directions for an exchange of documents (including expert reports) at a Conciliation and Hearing (Group List). On 4 June 2015 further procedural directions were required because the applicant filed and served an expert report on 3 June 2015 and the other parties required time to consider the report and respond to it with their own reports.
Following compliance with the further directions made on 4 June 2015, this application came before me for formal hearing on 14 July 2015.
The applicant was represented at the hearing by its solicitor, with the Tribunal's leave. At the formal hearing, the applicant company gave evidence by its director, Mr Salim. Pursuant to the prior procedural directions, the Tribunal and the other parties were served with two Statements of Evidence of Mr Salim dated 4 May 2015 and 1 July 2015, respectively.
Mr Salim gave affirmed evidence at the formal hearing which was in accordance with his signed Statements of Evidence.
The applicant relied upon expert reports (Mechanical Examination Reports bearing dates 27 May 2015 and 10 June 2015) of Mr Renzo Alessi (the "Alessi reports"). The Alessi reports were made in accordance with the Tribunal's Practice Direction 3 in that Mr Alessi, a qualified automotive vehicle mechanic and examiner of 30 years' experience, acknowledged that he had read the Expert Witness Code of Conduct and agreed to be bound by the Code. Mr Alessi was not present to give oral evidence at the hearing.
Apart from the Alessi reports, Mr Salim's affirmed oral evidence and the oral submissions made by the applicant's solicitor during the formal hearing, the applicant also relied upon written submissions including submissions received by the Tribunal after the formal hearing (on 28 July 2015 and 25 August 2015, respectively). The submission of 28 July 2015 also attached valuation information from Redbook.com.au referred to as 'Valuation Certificates 1 & 2'. With the Tribunal's leave, these attachments are tendered as additional evidence in the applicant's case.
The dealer appeared by its Service Manager, Mr Kevin Groz. As well as affirmed oral evidence and submissions during the formal hearing, the dealer relied upon documents (the Service Reports which were also attached to Mr Salim's Statements) provided pursuant to the prior procedural directions of the Tribunal. Mr Groz also tendered a road test report of the subject vehicle dated 19 June 2015.
Mazda appeared via telephone by its National Customer Support Manager, Mr Steve Groves. Mr Groves made oral submissions at the formal hearing based on documents provided to the Tribunal and the other parties including a Chronology of Events, the dealer's Service Reports, four (4) Mazda Field Technical Specialist Reports of Mr Mike Silverman in respect of the vehicle, the road test report of Mr Groz dated 19 June 2015, an Australian Transmission Centre Invoice numbered 5149 and a report and CD file of Rockdale Mazda (Dominelli Group).
In addition, Mr Shane Bradford, Mazda's National Technical & Warranty Manager, gave evidence in support of the respondents' case. Further, the author of the Field Technical Specialist Reports, Mr Silverman, was present at the formal hearing and also gave evidence to the Tribunal.
Mazda further relied upon a written submission dated 13 August 2015 with attachments including valuation and photographs of the vehicle and a quotation from the dealer as regards the cost of replacement of the transmission. With the Tribunal's leave, these attachments are tendered as additional evidence in the respondents' case.
To do justice to the issues posed by the parties' respective cases I have given consideration to all of the evidence presented and the submissions made by the parties before, during and after the formal hearing.
[3]
JURISDICTION
I accept the evidence of Mr Salim that the vehicle (although registered in the name of Mr Salim's company) was, in fact, for personal use, and that Mr Salim's wife was the main driver of the vehicle at all material times. The Tribunal finds that the subject vehicle was used substantially for private purposes within the meaning of the Motor Vehicles Taxation Act 1988.
The Tribunal is satisfied that the applicant is a small proprietary company. It finds that the applicant was a 'consumer' within the meaning of s 3 of the Consumer Claims Act 1998 NSW (the "CCA"), the legislation then in force at the time this application was lodged on 28 January 2015: see the transitional provisions in Schedule 5 of the Fair Trading Legislation (Repeal and Amendment) Act 2015 which repeals the CCA with effect from 1 October 2015.
The Tribunal further finds that the other requirements to found jurisdiction under the CCA are made out on the evidence on this application. The dealer's principal place of business is in New South Wales and the contract for sale and purchase of the subject vehicle was formed in New South Wales.
The contract was for the supply of goods, in trade and commerce, the goods being a brand new motor vehicle. The Tribunal is satisfied that the subject matter of the application is a 'consumer claim' within the meaning of s 3A of the CCA.
The applicant's cause of action against the respondents occurred within the relevant three (3) year limitation period prior to the proceedings being filed with the Tribunal: see s 7 of the CCA. As I have already found that the subject vehicle was a new motor vehicle substantially used for private purposes, the fact that the purchase price of the vehicle exceeded $40,000.00 does not affect the Tribunal's jurisdiction under the CCA to hear and determine the matters in dispute between the parties: see subsection 14(3).
[4]
RELEVANT LAW
The provisions of the Australian Consumer Law 2010 (ACL), being Schedule 2 of the Competition and Consumer Act 2010 (Cwth), were adopted in New South Wales on 1 June 2011 pursuant to s 28 of the Fair Trading Act 1987 (NSW). The ACL applies in respect of goods and services of a kind ordinarily acquired for personal domestic or household use or consumption. Goods as defined in the ACL include motor vehicles. The finding that the subject vehicle was acquired for personal use by Mr Salim and his wife enables the provisions of the ACL to apply in the circumstances of this application. The applicant, for the purposes of the ACL, is deemed a "consumer": see s 3 of the ACL.
The ACL applies to proceedings in the Tribunal separate and distinct from the dealer's warranty: see Burton v Chad One Pty Limited Burton v Chad One Pty Limited [2013] NSWDC 301.
The ACL provides a corporation supplying goods and services in trade or commerce must not engage in misleading and deceptive conduct in respect of the sale of any goods and services (see sections 18 and 29 of the ACL). Further, there are consumer guarantees in respect of goods being of acceptable quality and fit for purpose (see sections 54 and 55 of the ACL).
Under s 18 of the ACL, a person "must not, in trade or commerce, engage in conduct that is misleading or deceptive, or likely to mislead or deceive". The conduct (by words, actions, or in certain circumstances, silence) must lead, or be likely to lead, persons to whom it is directed into error, and there is no requirement for an intention to mislead or deceive (Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44; (1982) 149 CLR 191 at 198). This imposes a statutory obligation of strict liability. As intention is not relevant, the question is to be determined objectively by the Tribunal.
By s 54(1) of the ACL, there is a guarantee that goods supplied in trade or commerce are of "acceptable quality". Subsections 54(2) & 54(3) of the ACL state:
"(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
(b) acceptable in appearance and finish; and
(c) free from defects; and
(d) safe; and
(e) durable;
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:
(a) the nature of the goods; and
(b) the price of the goods (if relevant); and
(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."
It is also relevant to note s 54(6) of the ACL which states circumstances where goods do not fail to be of acceptable quality; specifically, if the consumer to whom goods are supplied causes such goods to become of unacceptable quality, or fails to take reasonable steps to prevent them becoming of unacceptable quality, and the goods are damaged by abnormal use.
Mazda meets the definition of a "manufacturer" for the purposes of the ACL (s 7) in that it 'produced processed or assembled goods' (in this instance, the subject vehicle). Pursuant to s 271 of the ACL a consumer has direct rights against a manufacturer for non-compliance with the consumer guarantees regarding acceptable quality.
If the applicant proves breaches of the ACL, the Tribunal must determine an appropriate remedy. The remedies available are set out in s 8 of the CCA including an order that requires a respondent to pay to an applicant a specified sum of money, an order that requires a respondent to perform specified work in order to rectify a defect in goods to which the claim relates or an order which requires a respondent to replace goods to which the claim relates.
The ACL also states remedies for a consumer in respect of claims based on a contravention of ACL provisions such as sections 18, 29, 54 and 55. The ACL's remedies reiterate, and in certain instances, supplement, the range of relief available under s 8 of the CCA and under the general law for breach of contract and/or negligence. The ACL's remedies include an action for damages: see s 236 of the ACL. Also, in the case of a 'major failure' as defined (see sections 259(1)(b) and 260 of the ACL) which entitles the consumer to reject the goods supplied (see section 263 of the ACL) and requires the return of the goods to the supplier or the collection of the goods by the supplier at the supplier's expense (see subsections 263(2) & (3) of the ACL), then the ACL provides for either a full refund to the consumer for the goods or for the replacement of the rejected goods with goods of the same type, and of similar value, if such goods are reasonably available to the supplier: see s 263(4) of the ACL.
Under s 13(1) of the CCA, the Tribunal "must make such orders as, in its opinion, will be fair and equitable to all the parties to the claim".
[5]
ISSUES FOR THE TRIBUNAL'S DETERMINATION
The applicant contends that there are irregularities and faults in the subject vehicle (i.e. clunk sounds, shudder, excessive clunk, harsh shifting and excessive shudder); that such irregularities and faults existed in the vehicle at the time of its sale to the applicant but did not become apparent to the applicant until the vehicle had travelled approximately 36,091 kilometres; that such irregularities and faults are acknowledged in the dealer's Service Reports and despite repeated attempts to rectify such irregularities and faults the dealer has been unable to do so; that such irregularities and faults are a manufacturing defect which a reasonable consumer would not regard as acceptable and therefore constitute a 'major failure' for the purposes of the ACL and entitle the applicant to reject the vehicle (as it has done by way of letter of 8 October 2014 and its subsequent conduct); that the Alessi Reports support the applicant's position by attesting to the irregularities and faults in the subject vehicle; and that the applicant is entitled to relief under the ACL and the CCA because the dealer and Mazda have refused to replace the vehicle.
Accordingly, the issues of fact and law for the Tribunal's determination may be stated briefly (having regard to the applicant's contentions) as follows: whether there are irregularities or faults in the subject vehicle which constitute a manufacturing defect or are otherwise in breach of the consumer guarantees as to acceptable quality and fitness for purpose and if so, what is the appropriate remedy.
[6]
DECISION
The applicant bears the onus to the civil standard (i.e. the balance of probabilities) of establishing that there are irregularities or faults in the subject vehicle which constitute a manufacturing defect or that the vehicle was and is, at all material times, of unacceptable quality and unfit for purpose. The applicant's case relied substantially on the opinions expressed in the Alessi reports. While I do not doubt Mr Alessi's qualifications and experience generally over 30 years as an automotive vehicle mechanic and examiner, it was not apparent from his curriculum vitae that Mr Alessi had Mazda technical training experience and in particular expert knowledge and experience in testing, diagnosing and repairing transmissions on Mazda vehicles.
Mazda's National Technical Manager, Mr Shane Bradford, gave evidence to this effect: any abnormal behaviour of the transmission in the subject vehicle would result in diagnostic fault codes being stored on the vehicle and that any sudden downshifting of the transmission from fifth gear to first gear (see paragraph 44 of the Alessi report dated 27 May 2015) would cause major transmission damage. Mr Mike Silverman (Mazda's Field Technical Specialist) also produced documents from Mazda's workshop manual and owner's manual, indicating what warning lights would be displayed to the driver and the fault codes stored on the vehicle should such events occur. Mr Alessi's reports do not indicate that any warnings were present and provide no evidence that fault codes were stored. Mr Alessi was not present at the hearing to address the Tribunal on these matters.
Mr Alessi had the vehicle for testing over 10 days. At paragraph 53 of his report dated 27 May 2015, Mr Alessi says: "the reason for my inspection was to determine the cause of the shudder". Mr Alessi opines (at paragraph 56) that: "the vehicle drove well 80% of the time; however, sporadic occurrences of a clunking and shudder, combined with a neutralising and erratic transmission caused a level of anxiety and uncertainty while driving the vehicle". He also states a belief (at paragraph 58) that: "the vehicle has a number of intermittent faults that have proven too illusive for the manufacturer or their specialist representatives to diagnose and repair". In the second report dated 10 June 2015 (at paragraph 11), Mr Alessi then recommends, having regard to the opinion and belief he expressed in the first report, either replacement of all the driveline components or replacement of the whole vehicle. In my view, Mr Alessi's evidence does not elucidate a causal link between sporadic occurrences affecting erratic transmission of the subject vehicle about 20% of the time and a manufacturing fault.
It appears that Mr Alessi did not perform a standard transmission test on the vehicle. On the other hand, the respondents relied upon transmission tests on the subject vehicle by Australian Transmission Centre (see Invoice No 5149 dated 29 June 2015) and by Mr John Mansweto of Rockdale Mazda (Dominelli Group) which both identified an issue with the reverse gear line pressure on the vehicle's transmission and which requires the vehicle's transmission to be replaced.
As earlier referred to, the transmission of the subject vehicle was replaced in August 2014 at 38,738 kilometres. This was done under the manufacturer's warranty. In that instance, the Service Report of 21 August 2014 referred to diagnostic tests which had found a line pressure concern. I am not satisfied the evidence establishes that the transmission was replaced simply due to movement of the vehicle whilst changing from reverse gear to drive gear.
In December 2014, when the vehicle was last road tested with the applicant at the dealer's Kirrawee workshop, there were no transmission concerns apparent to the dealer's representatives. The Service Report dated 11 December 2014 refers to: 'excessive play within the transfer case assembly due to an internal failure' which necessitated the removal and replacement of the transfer case assembly, but says the vehicle was otherwise 'All OK'.
The applicant's case (see evidence of Mr Salim at paragraph 17 of his Statement dated 4 May 2015) is that Mr Salim continued to experience issues with the vehicle's transmission during the first week of January 2015. However, the respondents had no opportunity to further inspect the vehicle until June 2015, which was after the applicant had brought this application to the Tribunal and also after Mr Alessi had road tested the vehicle.
Moreover, in recommending a further transmission replacement for the vehicle, neither Australian Transmission Centre nor Rockdale Mazda found that there was a manufacturing fault or that the vehicle was of unacceptable quality or otherwise unfit for purpose. Australian Transmission Centre puts it this way: "DURING ROAD TEST WHEN VEHICLE WAS AT NORMAL OPERATING TEMPERATURE OR AT INITIAL START UP WHEN COLD, NO FAULTS WERE DETECTED IN TRANSMISSION OPERATION". Mr Mansweto of Rockdale Mazda also states, unequivocally: "After vigorous test and road testing we have found the transmission to have an intermittent concern when shifting from reverse to drive. The vehicle jolts and makes a metallic clunk when the concern happens. The concern is not affecting the drivability of the car in any way shape or form. The vehicle drives perfectly."
Apart from the reports of Australian Transmission Centre and Rockdale Mazda during June 2015, the subject vehicle was also inspected and road tested by Mazda's Mike Silverman (see Field Technical Specialist Report No 4, abbreviated to 'FTS 4') and by the dealer's Kevin Groz (see Report dated 19 June 2015). There is no doubt, as the applicant in fact submitted (see paragraph 38(d) of the applicant's submissions dated 28 July 2015), that the Tribunal should have regard to: "common suburban driving practices (which is a common purpose for the vehicle) where a simple u-turn or reverse park would require between 4 to 8 gear changes on each occasion respectively". In this regard, I accept the evidence in Mr Groz's report dated 19 June 2015, where Mr Groz of the dealer states:
"The vehicle … had travelled 48,213km.
During the road test we drove the vehicle in and around the Sutherland shire area and included trips from Como and Jannali where there is a number of steeper inclines and declines. During our road tests the vehicle drove well and performed all tasks flawlessly.
We then proceeded to carry out some parking tests on both level, incline and decline conditions. On all tests that were carried out the vehicle performed correctly and no unusual sounds or characteristics were heard or felt by myself, our technician (Drew Parks) or Mike Silverman.
We then proceeded back to the dealership where we concluded the test in the car park of the dealership, again the vehicle did not show any signs of abnormal characteristics …"
The applicant further submitted that the driving manner of the applicant's expert was no different to the driving manner of the respondents' representatives when road testing the subject vehicle. I find that the evidence does not support such submission. FTS 4 states that on 17 June 2015 Mr Silverman changed gears (i.e. from reverse to drive) when the vehicle was stationary, 11 times in less than 5 hours, and then on 19 June 2015, Mr Silverman similarly changed gears from reverse to drive when the vehicle was stationary, 24 times within 4 hours. Mr Silverman gave evidence, which the Tribunal accepts, that he was mindful not to overheat the transmission.
In his report dated 27 May 2015 Mr Alessi quantifies the time spent continuously changing gears from reverse to drive on the vehicle, but does not state (as Mr Silverman does in his report) the number of gear changes within such time. The Tribunal infers from such evidence that a very high number of reverse to drive gear changes were effected on the vehicle during Mr Alessi's road testing. For instance, on day 6 of testing, Mr Alessi spent a total of 50 minutes constantly performing reverse to drive gear changes on the vehicle, on day 8 he performed multiple parking manoeuvres between 7:00 am and 5:30 pm and on day 9 Mr Alessi spent another 30 minutes continuously performing reverse to drive gear changes. Indeed as stated at paragraph 47 of his report dated 27 May 2015, Mr Alessi observed abnormal transmission behaviour on day 9 when: "after 30 minutes of parking the transmission began to neutralise". The Tribunal notes, however, there is no evidence in Mr Alessi's reports that any fault codes were stored.
Mr Bradford gave evidence that the testing method of Mr Alessi was unorthodox. Mr Bradford said that the rigorous nature of continually changing gears from reverse to drive on many occasions is not normal test procedure and is apt to increase the heat within the transmission unit. The Tribunal accepts Mr Bradford's evidence.
Accordingly, the evidence before the Tribunal supports the following findings of fact and law:
1. There are no facts and matters establishing any misleading or deceptive conduct, or conduct likely to mislead or deceive, on the dealer's part at the time of sale of the subject vehicle;
2. At the time of sale (i.e. on 4 October 2011), the vehicle was fit for all purposes for which vehicles of that kind are commonly supplied, acceptable in appearance and finish, free from defects, safe and durable;
3. In the circumstances, there is no contravention of s 18 or s 29 of the ACL;
4. The transmission movement when changing gears from reverse to drive on the vehicle was first reported by the applicant on 29 May 2014 at a mileage of 36,091 kilometres;
5. The vehicle's transmission was replaced during August 2014 at 38,738 kilometres but this was done under the Mazda (manufacturer's) warranty because diagnostic tests had found a line pressure concern and not due to any complaint about movement of the vehicle whilst changing gears from reverse to drive;
6. The applicant's concerns experienced on the vehicle are limited to a very intermittent movement of the transmission while changing gears from reverse to drive;
7. The intermittent movement occurs when the vehicle is stationary;
8. When the intermittent movement does occur it does not prevent the vehicle from being driven in normal operation by the applicant;
9. Some movement whilst changing gears is characteristic and can intermittently occur but this does not affect the driveability or safe operation of the vehicle in any way during its normal road use;
10. Any abnormal transmission behaviour experienced by the applicant's expert whilst driving the vehicle in an on road situation was in consequence of Mr Alessi's unorthodox testing methods;
11. Any present damage to the vehicle (i.e. the damage which requires the transmission to be replaced due to a concern with reverse gear line pressure on the transmission, as reported by Australian Transmission Centre and Rockdale Mazda following diagnostic testing of the vehicle in June 2015), is not the result of any manufacturing concern but due to the testing performed by the applicant's expert;
12. As there are no manufacturing defects in the vehicle and the vehicle is otherwise of acceptable quality and fit for purpose, the manufacturer's warranty does not operate for the applicant's benefit;
13. In the circumstances, there is no other breach of contract and/or negligence on the part of either respondent, no contravention of the ACL's consumer guarantees (see, for example, sections 54 and 55), and no 'major failure' of the subject vehicle as would found any remedy whether by way of a full refund ($54,000.00), a replacement vehicle, or any other damages (either under statute or the general law) in a lesser amount (e.g. an amount that is commensurate with the value of the vehicle in May 2014 or at a later time).
[7]
CONCLUSION
For the foregoing reasons, the applicant has not made out a case for any orders of the Tribunal.
The Tribunal must consider all of the evidence, objectively, in order to make findings of fact and then apply the law. Ultimately the Tribunal concludes that in the absence of findings as to relevant causation, as to relevant breaches of contract, negligence or contravention of the ACL's consumer guarantees of fitness of purpose and acceptable quality, or as to any loss or damage suffered, it is not fair or equitable (see s 13 of the CCA) that either the dealer or Mazda be held liable for any damages or other relief now claimed by the applicant.
The application must be dismissed.
D G Charles
General Member
Civil and Administrative Tribunal of New South Wales
14 October 2015
[8]
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: 30 October 2015