Strajman v Body & Anr

Material before the Appeal Panel

1. The following material was considered by the Appeal Panel: 1. The Notice of Appeal and attachments. 2. The Appellant's submissions and attachments 3. The appellant's previous application to set aside an order made by the by the Tribunal on 15 September 2014 with attachments. This application was successful resulting in the hearing now appealed from. 4. Copy of the Tribunal's orders and reasons for decision made 23 January 2015.
2. While the respondent appeared at the hearing and argued their case, they did not file a Reply to the Appeal or submissions in support of their position.

The appealed decision

1. The Tribunal provided written reason for its decision. We will not set them out in full. The Tribunal outlined the evidence given by both parties with respect to the purchase of the vehicle and subsequent events, concerning which there was some conflict. The Tribunal noted that the respondents were purchasing the vehicle for use by their daughter, and that the safety of the car was a primary concern for them. The Tribunal referred to expert mechanical evidence with respect to the car's condition, and spent some time discussing the appellants obligation under the Motor Dealers Act 1974 (the MD Act) with respect to the provision of a form 8 and an inspection report relating to the vehicle. On the last page of its decision the Tribunal wrote - The vehicle was sold registered and no report was provided as required by the Form 8 document, regardless of the submissions made by the respondent as to there being no evidence that eh (sic) vehicle was roadworthy, there was a clear breach of the Act when the (sic) vehicle was sold. Such a report could have picked up a number of the matters to (sic) which the applicants have had to address and pay for ,as they were concerned about the safety of the vehicle for their daughter they on being advised of matters in a report could have decided against the purchased (sic). The evidence given by the applicants and in support of this application clearly, reveals problems which would render it unsafe and require expenditure of money to rectify in addition since June 2014 they have not been able to use the vehicle due to the continuing loss of power. They have paid $1,476 to Kmart to address problems. Based on the above I am of the view that the respondent should pay the (sic) applicants the sum of $5,466.00 in respect of the cost of the vehicle and the amount of $1,476.00 that they paid to Kmart to rectify the matters referred to in their invoices.
2. In considering the errors of law relied on by the appellant it is convenient to first consider the Tribunal's conclusion that the appellant had failed to comply with the requirement of the Motor Dealers Act 1974 with respect to the provision of a roadworthy report with respect to the vehicle.

The requirements of the Motor Dealers Act 1974

1. The MD Act was repealed and replaced by the Motor Dealers and Repairers Act 2013 which commenced operation on 1 December 2014, after the transaction between the appellant and respondents had been completed. The MD Act applies to that transaction. Section 74 makes provisions concerning notices in respect of the sale of second hand motor vehicles. Relevantly it provided - "(1) This section does not apply to or in relation to: (a) the offering or displaying for sale, or sale, of an exempted motor vehicle, (b) the offering or displaying for sale, or sale, of a motor vehicle: (i) by bona fide auction, (ii) to an exempted person, or (iii) to a trade owner, or (c) the offering or displaying for sale, or sale, of a substantially demolished or substantially dismantled motor vehicle by a vehicle-wrecker. (2) Where a dealer offers or displays for sale a second-hand motor vehicle (not being a second-hand motor cycle or demonstrator motor vehicle), the dealer shall attach, or cause to be attached, to the vehicle, in the prescribed manner, a notice, in the prescribed form, containing the prescribed particulars in relation to the vehicle. (3) A dealer shall not sell a second-hand motor vehicle (not being a second-hand motor cycle or demonstrator motor vehicle) unless, at or before the time of sale, the dealer and the purchaser sign the notice attached to the vehicle pursuant to subsection (2), or a copy of that notice, and the dealer delivers the notice or the copy, as the case may be, to the purchaser for retention by the purchaser. (4) … (7) Where any prescribed damage is done to a motor vehicle (not being a second-hand motor vehicle) and a dealer is aware, or on a reasonable inspection of the vehicle would have been aware, of the damage, the dealer shall not sell the vehicle, whether or not the damage has been repaired, unless, at or before the time of sale, the dealer and the purchaser sign a notice, in the prescribed form, containing the prescribed particulars in relation to the damage to the vehicle and the dealer delivers the notice to the purchaser for retention by the purchaser. (8) A notice shall not be treated for the purposes of subsection (2), (5), (6), or (7) as containing the prescribed particulars if any of the prescribed particulars contained in the notice is false or misleading in a material particular. (9) Where the sale of a motor vehicle is effected by a person acting as the agent or employee of a dealer, compliance by that agent or employee with the requirements imposed on the dealer by subsection (3), (5), (6) or (7), as the case may require, shall be treated as compliance by the dealer with those requirements. (10) …"
2. Motor Dealers are required to provide inspection reports to purchasers of vehicles sold with registration plates. Section 46 relevantly provides - (1) This section does not apply to or in respect of the sale of: (a) a motor vehicle to a trade owner, (a1) a substantially demolished or substantially dismantled motor vehicle by an auto-dismantler, (b) a motor vehicle by bona fide auction, or (c) a motor vehicle if, at any time within 1 month preceding the sale, the vehicle was registered for the first time under and in accordance with the regulations or the registration of the vehicle was renewed under and in accordance with the regulations. (2) Subject to subsection (3), a dealer shall not sell a motor vehicle to which any number-plate is attached unless, at or before the time of the sale, an inspection report issued in respect of the vehicle not more than 1 month (or such other period as may be prescribed by the regulations) before the sale of the vehicle which states that the vehicle has been found to be roadworthy is delivered to the purchaser for retention by the purchaser. …. Inspection report means a report issued for the purposes of registration in accordance with the statutory rules under the Road Transport Act 2013: see the definition of "inspection report" in s 4 of the MD Act and cl 66 of the Motor Dealers Regulation 2010 (the MD Regulation)
3. Section 27 of the MD Act imposes on motor dealers an obligation to repair or make good defects that arise in certain motor vehicles for a prescribed period after their sale. The existence and extent of those obligations depends on the sale price of the vehicle and its odometer reading at the time of sale: see Schedule 1 "Obligation of dealer to repair defects." In the case of the respondent's purchase of the vehicle from the appellants the price and odometer reading of the vehicle were such that there was no obligation on the appellant to repair or make good defects in the vehicle.
4. A statement acknowledging the obligation of a dealer to repair defects is defined as a statutory warranty under the MD Act: see the definition of statutory warranty in cl 4 of the MD Regulation.
5. Clause 28 of the MD Regulation provides, among other things, that where a second hand motor vehicle is sold without a statutory warranty then Form 8 to the MD Regulation is prescribed for the purposes of s 27(2) as containing the information to be completed and attached to the vehicle. The Form 8 is headed, "No warranty under Motor Dealers Act 1974 applies to this vehicle." It contains a number of Parts which are to be completed at different times: e.g. when the vehicle is offered for sale. Part 3, which is to be completed at before the time of sale, contains the following prescribed particulars - "(Clauses 28 (1) (c), 31 (1) (c) and 34) Motor Dealers Act 1974: *section 24/section 28 Register Details Book No Entry No Part 3 (To be completed at or before time of sale) Cash Price at Which Vehicle Sold $ Odometer Reading at Time of Sale km Serial No of Inspection Report (RTA) (where applicable) Date of Issue of Report Purchaser's Full Name Purchaser's Address Trade-in (if any) (Description) (Registration No) Trade-in Allowance $ Purchaser's Signature Date of Sale Name (print) and Signature of Person Effecting Sale Unless this vehicle is unregistered and the registration plates removed or is substantially demolished, the dealer must deliver to the purchaser an inspection report issued in accordance with the statutory rules under the Road Transport Act 2013, which has been issued not more than 90 days before the date of sale stating that the vehicle is roadworthy unless registration of the vehicle has been effected within one month before that date."
6. In the present case there is no dispute that the appellant did not deliver to the respondents an inspection report required by the regulations under the Road Transport Act 2013. There is a dispute as to whether this constitutes a breach of the Act or Regulation as found by the Tribunal.
7. There is also no dispute that the vehicle had been unregistered, with its plates removed, but was registered within one month before the date of sale. The appellant points to the requirements of the Form 8, which says that an inspection report is required. "unless registration of the vehicle has been effected within one month before" the date of purchase. The appellant submits that as a consequence he was not required to provide the purchasers with an inspection report, and that the Tribunal erred in finding he was obliged to do so.
8. We do not accept this submission. The obligation on a motor dealer concerning the provision of an inspection report on the sale of a second hand vehicle is found in s 46 of the MD Act. It provides that the obligation does not apply where "at any time within 1 month preceding the sale, the vehicle was registered for the first time under and in accordance with the regulations or the registration of the vehicle was renewed under and in accordance with the regulation." Here the vehicle was not registered for the first time and its registration was not renewed within one month of the date of sale. The appellant was therefore obliged to provide the respondents with an inspection report relating to vehicle.
9. Form 8 indicates an inspection certificate is required "unless registration of the vehicle has been effected within one month before". On one view, this is consistent with the MD Act. However, to the extent there is any ambiguity, a motor dealer's primary obligations are those set out in the MD Act.
10. The Tribunal was correct to find that the failure to provide the purchasers with an inspection report was a breach of the MD Act.

Adequacy of reasons

1. Section 62 of the Civil and Administrative Tribunal Act 2013 places on the Tribunal a statutory requirement to give reasons for its decisions. The Tribunal also has a common law duty to give reasons for decision: see Collins v Urban [2014] NSWCATAP 17 at [47] ff. Section 62 provides: (1) The Tribunal (including when constituted as an Appeal Panel) is to ensure that each party to proceedings is given notice of any decision that it makes in the proceedings. (2) Any party may, within 28 days of being given notice of a decision of the Tribunal, request the Tribunal to provide a written statement of reasons for its decision if a written statement of reasons has not already been provided to the party. The statement must be provided within 28 days after the request is made. (3) A written statement of reasons for the purposes of this section must set out the following: (a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based, (b) the Tribunal's understanding of the applicable law, (c) the reasoning processes that lead the Tribunal to the conclusions it made. (4) Nothing in this section prevents the Tribunal from giving oral reasons or a written statement of reasons for a decision it makes even if it has not been requested to do so by a party.
2. In its reasons for decision, which were not provided under s 62, the Tribunal spent some time explaining its understanding of the appellant's obligations as a motor dealer under the MD Act. However any failure of the motor dealer in the present case to comply with the obligations imposed under the MD Act are not directly relevant to the issues raised in this appeal, that is whether the vehicle sold was defective and, if so, were the respondents entitled to an order requiring the motor dealer to refund the purchase price and/ or pay them compensation. The respondents' ability to make such a claim arises from the contract itself, or from some other statutory provision such the consumer guarantees contained in the Australian Consumer Law (NSW) (ACL). This Tribunal has jurisdiction to hear such claims in NSW: see s 4 of the Consumer Claims Act 1998 and s 28 of the Fair Trading Act 1987.
3. When the orders made by the Tribunal and its reasons for making them are considered it becomes apparent that the Tribunal accepted that there were "problems" with the vehicle, which included a lack of power, that rendered the vehicle unsafe. The Tribunal also accepted the problems required expenditure to in an effort to repair the vehicle. These problems were such that the Tribunal ordered the appellant to fully refund the purchase price of the vehicle, and to pay the respondent's the cost of the repairs they had expended on the vehicle. However the Tribunal did not order a return of the vehicle.
4. The Tribunal did not identify, explain, or discuss the law it applied when making those orders. It was obliged to identify and explain its understanding of the applicable law, and to explain, in the light of its findings and the applicable law, the reasoning that led it to make to orders it made. The Tribunal did not do so. This is an error of law.

Allowing the respondents to retain the vehicle

1. In this case the orders made by the Tribunal included a full refund of the purchase price of the vehicle, together with orders requiring the appellant to pay damages being the cost of repairs to the vehicle paid for by the respondent. The Tribunal did not make any order for the return of the motor vehicle to the appellant. It had the power to do so under s 8(h) of the Consumer Claims Act 1996, which provides that, when determining a claim in favour of a claimant, the Tribunal can, among other things, make - "(h) an order that requires: (i) a respondent to refund all or part of the purchase price of specified goods that are in the possession or under the control of the claimant, and (ii) the claimant to return all or part of those goods to the respondent, whether the property in the goods has passed or not."
2. Damages for breach of contract are compensatory, not punitive, in nature: Addis v Gramophone Co Ltd [1909] AC 48; Butler v Fairclough (1917) 23 CLR 78 at 89 per Griffith CJ. The general measure of damages for a breach of contract is that, subject to questions of remoteness, a claimant is entitled to be placed in the same position, so far as money can do so, that he or she would have been in had the contract been properly performed: Robinson v Harman [1848] 1 Ex 850.
3. As a matter of general principle where a refund of the full purchase price of a vehicle is ordered, the Tribunal should turn its mind to the future ownership of the vehicle. This is so because retaining the vehicle together with a full refund of the purchase price, will usually leave a purchaser in a more advantageous position that he or she would have been in had the contract been properly performed. A full refund to the purchaser requires a consideration of whether ownership and possession of the vehicle should be returned to the vendor.
4. In the present case, because the Tribunal did not indicate its understanding of the law it was applying in making its orders, any analysis of the appropriateness of the Tribunal's orders is both speculative and difficult.
5. The Appeal Panel notes that in the course of discussion during the appeal hearing the respondents indicated that they would consent to the vehicle being returned to the appellant.

Disposition of the appeal

1. Given the errors of law in the Tribunal's decision, concerning which the appellant may appeal as of right, there is no need for the Tribunal to consider the issue of leave to appeal. However, having determined that there is an error of law the Appeal Panel must now determine how the appeal should be resolved.
2. The question is whether the Appeal Panel should set aside the orders made on 23 January 2015 and remit the matter for rehearing, or whether the Appeal Panel should determine the proceedings and make final orders.
3. Section 81 of the Civil and Administrative Tribunal Act 2013 provides that - "(1) In determining an internal appeal, the Appeal Panel may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) orders that provide for any one or more of the following: (a) the appeal to be allowed or dismissed, (b) the decision under appeal to be confirmed, affirmed or varied, (c) the decision under appeal to be quashed or set aside, (d) the decision under appeal to be quashed or set aside and for another decision to be substituted for it, (e) the whole or any part of the case to be reconsidered by the Tribunal, either with or without further evidence, in accordance with the directions of the Appeal Panel. (2) The Appeal Panel may exercise all the functions that are conferred or imposed by this Act or other legislation on the Tribunal at first instance when varying, or making a decision in substitution for, the decision under appeal.
4. On appeal, the appellant contended that the respondent should "keep possession of the Holden Astra" and that the appellant should not "have to provide a refund as he has fulfilled all legal obligations": see item 11 C of the notice of appeal. The reasons why the appellant contended these orders should be made are set out in item 11 B of the notice of appeal. In effect, the appellant said that he was not required to provide an inspection report and that the vehicle was sold with "no warranty".
5. Whether or not the appellant was obliged to provide an inspection report is a question of law on which the appellant has not succeeded. There is no dispute that the vehicle was sold without a statutory warranty. The notice of appeal does not otherwise seek to challenge the findings of fact made by the Tribunal.
6. The Appeal Panel was provided with the documentary evidence that had originally been provided to the Tribunal. This included the form 8 notice of sale, certificate of registration and the various reports and invoices from Kmart. We were not provided with any audio recording of the original proceedings. However, as indicated above the notice of appeal did not seek to challenge the findings of fact made by the Tribunal on 23 January 2015.
7. The relevant findings of fact are as follows: 1. On 13 March 2014 the respondents purchased the Holden Astra for a price of $3,990.00, the vehicle being a 2004 model having travelled 186,446km at that time: reasons page 2, 2. The car was bought for the respondent's daughter, who was a student. "[T]he need for a safe car was stressed": reasons page 2. 3. When sold the vehicle was registered and no vehicle inspection report was provided at the time of sale: see reasons page 3-4, 4. "[F]ollowing the purchase on the way home difficulties were encountered which required the return to the dealer, that were fixed however the next day the applicant's daughter experienced problems driving the car with loss of power…" : reasons page 3, 5. The appellant attended the respondents premises to investigate the loss of power issue and said that the wrong fuel had been used, which statement lead to an argument and a request for the appellant to leave the respondents premises: reasons page 3, 6. Subsequently the vehicle was given to Kmart who prepared a report dated 14 March 2014 indicating the vehicle operated normally and that not fault codes were logged in the cars computer: reasons pages 2 and 3, 7. The screen alerts had been deleted by the person from the appellant who had earlier attended the residents of the respondents: reasons page 3, 8. There were further problems with the vehicle "including leaking shock absorbers and excessive movement of strut mounts" for which the respondents paid $1476.00 as set out in an invoice dated 20 March 2014: reasons page 3 and 4, 9. The respondents "were not able to use the car for extended periods and have not been able to use it since June 2014 because of the recurring loss of power problem": reasons page 3. In this regard the Tribunal went on to say "even though the respondent says that there were no problems, Ms Body was quite clear in her evidence that the problems had not gone away and they cannot use the car." 10. The evidence given by the applicants in support of the application reveals problems which would render the vehicle unsafe and require monies to rectify the vehicle which has not been able to be used since June 2014: reasons page 4,
8. It is by reference to these facts that the Tribunal made an order requiring the appellant to pay the respondent the sum of $5466.00. However, as indicated above, the Tribunal failed to provide adequate reasons to identify the legal basis for making such an order.
9. Section 36 of the NCAT Act requires the Tribunal, including the Appeal Panel when determining a matter by way of internal appeal to resolve the real issues in dispute in a "just, quick and cheap" manner.
10. In the present circumstances this requires that the Appeal Panel consider whether or not it is able to finally determine this application, rather than remit the matter for rehearing. The question is whether or not on the findings of fact made by the Tribunal, the Appeal Panel is able to do so.
11. The desirability of finalising the claim, if possible, arises from the fact the sale of a motor vehicle was in March 2014 at a price of $5990.00. The application to the Tribunal seeking a refund of the purchase price was lodged in 16 April 2014. The Tribunal originally found that the purchase price and monies spent on repairing the vehicle should be repaid by the motor dealer. This occurred in January 2015. However, the Tribunal erroneously failed to give adequate reasons and failed to order a return of the vehicle.
12. If the respondents are ultimately found to be entitled to a full refund of monies, such an order would be accompanied by an order that the vehicle be returned to the motor dealer. Having regard to the date of the sale it is desirable that the dispute and the issue of who is ultimately entitled to the vehicle should be resolved as soon as possible. This is particularly so having regard to the age of the vehicle and the fact it does not appear to be driven.
13. Remission of these proceedings to the Tribunal for further hearing would likely work an injustice to the appellant if an order for return of the vehicle were to be made at some date in the future following a further hearing at first instance. This is because the time taken to resolve this dispute may result in further financial costs to the appellant as the value of the vehicle reduces with time. On the other hand, if the appellant were to be successful in his defence, the delay in resolution arising as a consequence of remitting the proceedings will work an injustice to the respondents because they cannot otherwise sell the vehicle while the proceedings remain unresolved. As we have pointed out, this is because an order for refund of the purchase price ordinarily results in a corresponding order for return of the vehicle.
14. Consequently, it is appropriate for us to re-examine the claim as originally made by the respondents in the light of the findings of fact made by the Tribunal and, if possible, re-determine it, thereby avoiding potential prejudice to the parties. This requires the Appeal Panel to identify the relevant law applicable to this transaction, in the light of the facts as found by the Tribunal below, and determine whether or not the respondents are entitled to any and what relief.
15. In doing so, and while not matters raised in the notice of appeal, the Appeal Panel has had regard to oral submissions made by the appellant in relation to various factual concerning the condition of the vehicle. The appellant's submissions were as follows: 1. he accepted that if the engine mounts of the vehicle were broken then it was not road worthy; 2. if the vehicle had insufficient power, why would the respondents choose to fix the brakes rather than have this issue addressed; 3. the vehicle had travelled 2000km since it had been sold. 4. in so far as the inspection carried out by Kmart did not identify a problem with the power, such an error would have reappeared in the computer log if there was a fault; 5. in relation to the repairs which had been carried out, including in connection with the breaks and the engine mounts, these would have been paid for by the appellant however the respondents never notified of the need for these repairs nor was the appellant given an opportunity to fix the defects; 6. the appellant should have been given an opportunity to fix the vehicle and could have done so for half the price paid by the respondents; 7. if there was a power problem with the vehicle, the respondent should have brought the vehicle back to the appellant to correct this issue.
16. In making these submissions, the appellant also conceded to the Appeal Panel that the vehicle would not be of acceptable quality if it did not operate with sufficient power.
17. It is common ground between the parties that on 14 March 2015 the entered in to a contract wherein the respondents agreed to purchase from the appellant the Holden Astra motor vehicle at a price of $3990.00. It is also common ground that the vehicle was to be registered.
18. For the disposition of this appeal it is sufficient to record that the Australian Consumer Law (NSW) (ACL) applies to the sale of the motor vehicle which constitutes "goods" within the meaning of that law. The supplier of the goods was the appellant who supplied the goods in trade and commerce as that expression is used in the ACL. The respondents were consumers within the meaning of the ACL.
19. Section 54 provides a statutory guarantee that goods supplied, in this case the Holden Astra motor vehicle, would be "of acceptable quality" section 54(2) specifies when goods are of acceptable quality in the following terms: "(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)."
20. Matters to be considered in determining whether the particular goods are of acceptable quality are the nature of the goods, price of the goods (if relevant) any representation made about the goods by the supplier and any other relevant circumstances relating to the supply of the goods: see section 54(3) of the ACL.
21. Goods may be taken to be of acceptable quality if: 1. the reason why the goods are not of acceptable quality was drawn to a consumers attention prior to the supply being agreed (section 54(4)); 2. the cause of any unacceptable quality arises from a consumer failing to take reasonable steps to prevent that occurrence or the goods are damaged by abnormal use (section 54(6) of the ACL); or 3. the consumer has examined the goods before they agreed to the supply and that examination "ought reasonably to have revealed that the goods were not of acceptable quality: see section 54(7) of the ACL.
22. Section 55 of the ACL also provides a guarantee that the goods are fit for any purpose disclosed. This Section is in the following terms: "55 Guarantee as to fitness for any disclosed purpose etc. (1) If: (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."
23. In the present case there was evidence that the engine mounts were broken and were repaired by Kmart on about 20 March 2014. The appellant accepted that such a defect meant the vehicle was not roadworthy. Further, the invoice from Kmart indicates that the brake disc rotors were replaced at the same time. As the report from Kmart dated 12 April 2014 records, both front brake disc rotors were under the minimum thickness specification as were the disc pads themselves.
24. These matters are defects which the Tribunal was satisfied existed at the time of sale, only a few days before the necessary repairs were affected. They are defects which relate to the safety of the vehicle and are matters which, if made known to the consumers, would have caused the consumers to regard the goods to be not of acceptable quality.
25. This conclusion is corroborated by the fact that the appellant accepts that he would have made good those defects if the respondents had returned the vehicle to him.
26. In addition, there was evidence before the Tribunal that the vehicle had intermittently lost power when driven. The appellant properly conceded that a loss of power when operating the vehicle meant that it was not safe to drive, rendering it not of acceptable quality.
27. While the appellant conducted tests to ascertain the cause of the power loss, the fact that he was unsuccessful in identifying the cause does not mean the goods were of acceptable quality, or that they were fit for purpose within the meaning of the ACL. It simply means that, on the occasions when the appellant's representative attended the respondents' premises to observe the vehicle operating, it did not then exhibit the signs of power loss.
28. There was no evidence before the Tribunal to suggest that the observations of power loss by the respondents, when operating the vehicle, were untrue, nor was it suggested that such a power loss could or did occur by reason of the incorrect operation of the vehicle. The fact that the power loss occurred intermittently itself is a reason to conclude that the vehicle was not safe. It is a matter that would lead a reasonable consumer fully acquainted with the state and conditions of the goods, to regard the vehicle in question is not of acceptable quality.
29. The problem of power loss was not drawn to the attention of the respondent at or before the time of purchase. Being an intermittent problem, it is not one which ought reasonably to have been revealed upon an examination of the goods by the respondents. Further, the problem of power loss is not shown to arise by reason of the respondents' failure to take steps to prevent that occurrence.
30. Finally, in relation to the contention that the vehicle should have been returned for any repairs to be effected, the respondents had raised the issue of power loss with the appellant who had said there was no problem, other than that the respondents had used the wrong fuel. It was at this point that the respondents took the vehicle to Kmart who detected and repaired the other defects set out above. This was in circumstances where: 1. Mrs Body had been told "the car was (the respondents') problem": reasons page 3; and 2. The respondents had tried to make a warranty claim, however it could not be pursued. In this regard the appellant gave evidence of "paperwork not going through" as the reason why the claim could not be pursued: reasons page 3.
31. In these circumstances, the Appeal Panel is satisfied that the goods were not acceptable quality and/or not reasonably fit for purpose and therefore did not satisfy the requirements of the consumer guarantees in sections 54 and 55 of the ACL.
32. Having found a contravention of the ACL, in our view it is appropriate that: 1. the appellant be ordered to refund the respondents the purchase price of $3990; 2. the appellant be ordered to reimburse the respondents with $1476 being the amount paid to Kmart to carry out necessary safety repairs; and 3. the respondents return the vehicle to the appellant.
33. In our opinion, the following facts justify an order that the respondents be refunded the purchase price and reimbursed the cost of repairs: 1. Immediately after the vehicle was purchased the respondents returned the vehicle to the appellant who affected some repairs. The work carried out is not identified however it seems clear this work is different to the work carried out by Kmart to rectify the defects referred to in their invoice. 2. Further defects were identified about one week after the date of purchase. Kmart carried out the necessary repairs for these defects, which repairs were essential for the safe operation of the vehicle. 3. Despite these repairs, the vehicle operated in a manner where it intermittently lost power. This operation was clearly not normal and made the vehicle unsafe; 4. The vehicle has not operated in a satisfactory manner since it was purchased. 5. There was evidence that the appellant was not able to identify the problem of power loss and, in any event, did not accept responsibility to correct the problem.
34. In relation to the condition of the vehicle as found and the need for repairs, these are matters which, if known to the respondents of the time the vehicle was sold, would have caused them not to enter into the contract at all. The fact they commence these proceedings on 16 April 2014, barely a month after the sale had occurred, corroborates this view.
35. Further, the Appeal Panel notes that despite the fact the vehicle had been re-registered as part of sale: 1. the inspection report was not placed in evidence before the Tribunal. 2. the appellant did not call any evidence at the hearing before the Tribunal from the person who would have prepared such a report for the purpose of having the vehicle re-registered. .
36. The absence of this evidence itself leads to the view that the exact state of the vehicle when sold is not known and the respondents should not be obliged to retain the vehicle that was supposed to be a road worthy vehicle complying with relevant statutory provisions but was in fact unsafe and had defects at the time of sale.
37. Finally, the appellant will have the benefit of the repairs affected to the vehicle which involved renewing various parts including the brake disc rotors and brake pads. This is work the appellant would have to do if it wished to sell the vehicle as registered. In these circumstances, the cost of repairs should also be reimbursed.

Orders

1. The Appeal Panel makes the following orders: 1. Appeal allowed in part; 2. The orders made by the Tribunal on 23 January 2015 are varied as follows: 1. The respondent Bernadino Javier Strajman is to pay the applicants Norm Body and Rebecca Body the sum of $5466.00; 2. the amount in order (a) is to be paid on or before 31 July 2015 ; 3. on or before 31 July 2015, the applicants are to make available for collection by the respondent, at the respondent's cost, Holden Astra motor vehicle registration number XXXX, VIN XXXX. 1. The stay previously granted by the Appeal Panel is lifted. 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

Amendments 24 July 2015 - corrected file number on coversheet 02 October 2015 - Appellants and respondents name corrected 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: 02 October 2015