Tallevine Pty Ltd t/as Pennant Hills Isuzu v Levoune [2018] NSWCATAP 53 | Case summary

NCAT Appeal Panel|2018-02-15

Introduction

On 31 October 2017 the Tribunal made an award of $1500.00 in favour of the respondent, being damages for defects in a new motor vehicle which the respondent had purchased from the appellant on 1 April 2017.
The respondent had filed application MV 17/25613 on 6 June 2017. That application had sought various compensation in excess of $14,000 in respect of various defects said to exist in the vehicle at the time of purchase.
The proceedings had been listed for hearing by the Tribunal on 31 October 2017. Prior to this time, the Tribunal had made directions for the parties to file and serve evidence in support of their respective positions.
The Tribunal provided written reasons which were attached to the orders made 31 October 2017. The Tribunal accepted evidence provided by the respondent that some of the defects, about which complaint was made, existed in the vehicle at the time of purchase. In doing so, the Tribunal was provided with and reviewed photographs taken by the respondent of the alleged defects. The Tribunal noted that the respondent had returned the motor vehicle to the appellant which had "re-detailed and polished the vehicle". Despite this work the Tribunal accepted that there was "minor damage to the non-genuine accessories and the finishes of the vehicle". Consequently, the Tribunal determined an award should be made in favour of the respondent which included "replacement tray assembly parts, nudge bar and ladder rack, grill and the cost of further detailing of exterior and repairs to the trim".
In making this award, the Tribunal noted that the relationship between the parties had broken down. Consequently, while declining to make a work order, the Tribunal only awarded the respondent the "wholesale costs" of the replacement parts.

Consideration

The appellant has a right of appeal on a question of law. Otherwise, the appellant requires leave to appeal: s 80(2)(b) of the Civil and Administrative Tribunal Act, 2013 (NCAT Act).
Leave may only be granted in the circumstances set out in Sch 4 cl 12 of the NCAT Act because this is an appeal from a decision of the Consumer and Commercial Division. The principles applicable to the grant of leave were set out by the Appeal Panel in Collins v Urban [2014] NSWCATAP 17. This requires the appellant to demonstrate it may have suffered a substantial miscarriage of justice because the decision was not fair and equitable, against the weight of evidence for there was significant new evidence which is now available that was not reasonably available at the time of the hearing.
In relation to new evidence, the decision of Al Daouk v Mr Pine t/a Furnco Bankstown [2015] NSWCATAP 111 explained what is meant by the expression "not reasonably available". At [23] the Appeal Panel said: … the test of whether evidence is reasonably available is not to be considered by reference to any subjective explanation from the party seeking leave but, rather, by applying an objective test and considering whether the evidence in question was unavailable because no person could have reasonably obtained the evidence.
In the present case, it is clear that all new evidence on which each of the parties now seeks to rely could reasonably have been obtained by them for the purpose of the original hearing. Further, it is clear that the directions made by the Tribunal prior to the hearing of the proceedings at first instance afforded the parties an opportunity to produce such evidence as they wished in support of their respective positions. In these circumstances, and having regard to the concessions of the parties made during the hearing of the appeal, the Appeal Panel is not satisfied the new evidence now sought to be relied upon was not reasonably available for the original hearing. Accordingly, all new evidence is rejected.
In relation to the ground of appeal that the Tribunal Member was biased and should have disqualified himself, this issue was not raised with the Tribunal at the original hearing. Even if it is accepted that Mr Creak asked the Tribunal Member whether he had heard earlier proceedings involving the appellant (a conversation denied by the respondent), no application was made to the Tribunal Member to disqualify himself. In these circumstances, and in the absence of any evidence to suggest any form of actual bias, this ground of appeal should be dismissed.
In relation to the procedural fairness ground, it is clear from the explanation which the Appeal Panel received at the hearing (including from respondent who said that the Tribunal Member at the original hearing spoke more to Mr Creak and explained various issues and sought submissions from Mr Creak on these issues), that there has been no denial of procedural fairness to the appellant. To the contrary, it is clear that the Tribunal considered the written evidence and submissions provided prior to the hearing and gave every opportunity to the appellant to respond to questions and concerns the Tribunal might have concerning what orders should be made. Accordingly, this ground of appeal fails.
The final ground raised in the appeal is whether the Tribunal was in error in its factual conclusions. This ground requires leave to appeal.
In relation to the submission concerning unsigned quotations and reports, we do not accept that the Tribunal could not take account of this material.
The Tribunal had before it statutory declarations and photographs from the respondent and his witnesses recording defects in the vehicle which were photographed on the day delivery of the new vehicle was made or shortly thereafter. Secondly, the Tribunal had before it evidence that there had been some attempted repairs by the appellant, a matter itself corroborating some defects existed at the time of sale. Thirdly, while unsigned at the time of the original hearing, the Tribunal had before it evidence from a repairer in the form of a report and quotation setting out that the vehicle had been inspected after repairs had been carried out in May 2017, that defects were observed and providing relevant evidence concerning the work required to rectify the defects and the costs of doing so. Lastly, the Tribunal had before it competing evidence from Mr Creak.
The Tribunal did not accept all of the claims made by the respondent, the award being for an amount of $1500.00 only.
While some of the documents were unsigned, in circumstances where the rules of evidence do not apply, the Tribunal was able to have regard to this material, the question being one of weight to be given to such evidence: see eg Khan v Kang [2014] NSWCATAP 48 at [30] and following.
The reasons of the Tribunal identify the relevant evidence and explain why the evidence of Mr Creak was not preferred to that contained in the report and quotation, the reason being that Mr Creak was not an independent witness.
These conclusions were reasonably available to the Tribunal. Further, it could not be said that a consideration of "the evidence in its totality preponderates so strongly against the conclusion found by the Tribunal at first instance": cf Collins at [77]. Certainly, the decision was not against the weight of evidence and the Appeal Panel is not otherwise satisfied that the appellant may have suffered a substantial miscarriage of justice.
It follows that this ground of appeal fails and leave to appeal should be refused.

Orders

The Appeal Panel makes the following orders: 1. Leave to appeal is refused and the appeal is otherwise dismissed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 February 2018

Tallevine Pty Ltd t/as Pennant Hills Isuzu v Levoune

At a glance

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Decision date

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Judgment (5 paragraphs)

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Cases Cited (3)