Barbour v Autosports Five Dock Pty Ltd [2020] NSWCATAP 141

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Barbour v Autosports Five Dock Pty Ltd [2020] NSWCATAP 141 Hearing dates: 12 May 2020 Date of orders: 16 July 2020 Decision date: 16 July 2020 Jurisdiction: Appeal Panel Before: M Harrowell, Deputy President Dr R Dubler SC, Senior Member Decision: (1) The appeal is allowed and the order of the Tribunal made 31 January 2020 in application MV 19/47867 is set aside. (2) The whole of the proceedings are remitted to the Tribunal, differently constituted, for reconsideration in accordance with these reasons and the law. (3) In respect of the remitted proceedings, the following directions are made: (a) Within 14 days from the date of these orders, the applicant (Barbour) is to file and serve points of claim setting out: (i) the facts relied upon; (ii) by reference to those facts, the cause or causes of action asserted; (iii) in respect of each cause of action, the order or orders sought. (b) Within 28 days from the date of these orders, the respondent (Autosports) is to file and serve points of defence. (c) The application is to be listed for directions within 35 days after the date of these orders for the purpose of making directions including for any further evidence and submissions and to fix a hearing date. (4) The appellant's costs of this appeal are to be the applicant's costs in the cause in the proceedings on remittal. (5) The Appeal Panel makes the following further directions: (a) If any party wishes to contend for a different costs order (Costs Applicant), they must do so within 14 days of these orders and file submissions as to the costs order she or it seeks, including submissions as to whether or not a hearing on the question of costs should be dispensed with pursuant to s 50(2) of the NCAT Act. (b) The respondent to such costs application is to file submissions in response within 14 days thereafter, including as to whether or not the hearing should be dispensed with pursuant to s 50(2) of the NCAT Act. (c) The Costs Applicant is to file submissions in reply within 7 days thereafter. (d) Upon making of any costs application pursuant to this direction, order 4 shall cease to have effect. Catchwords: CONSUMER CLAIM – defective motor vehicle – whether the Tribunal erred in determining whether the application was brought within the limitation period – meaning of when causes of action "first accrued" under the Fair Trading Act 1987 – claim for refund upon rejection of goods under the Australian Consumer Law (NSW) – entitlement to reject goods in "rejection period" – factors relevant to determining when rejection period ends Legislation Cited: Australian Consumer Law (NSW) Civil and Administrative Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Consumer Claims Act 1998 (NSW) (repealed) Consumer Guarantees Act 1993 (New Zealand) Fair Trading Act 1987 (NSW) Trade Practices Act, 1974 (Cwth) Cases Cited: Alameddine v Glenworth Valley Horse Riding Pty Ltd [2015] NSWCA 219 Battley v Faulkner [1820] 3B and Ald 228 Cairns v AHG Newcastle Pty Ltd [2020] NSWCATAP 103 Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234 Latoudis v Casey (1990) 170 CLR 534 McBride v Christie's Australia Pty Ltd [2014] NSWSC 1729 Nesbit v Porter [2000] NZCA 288; [2000] 2 NZLR 465; (2000) Roberts v Chan & Naylor Pty Ltd [2018] NSWCATAP 69 Sacks v Hammond [2016] NSWCATAP 225 The Owners – Strata Plan No 67698 v Leadership Pty Ltd t/as Five Dock Realty [2015] NSWCATAP 57 Thompson v Chapman [2016] NSWCATAP 6 Upton v Martin & Stein Antiques Pty Ltd [2016] NSWCATAP 228 Valve Corporation v Australian Competition and Consumer Commission [2017] FCAFC 224 Vautin v BY Winddown Inc. (formerly Bertram Yachts) (No 4) [2018] FCA 426 Vecchio v GM Holden Limited [2018] NSWCATCCD 70 Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 Texts Cited: Limitation of Actions, The Laws of Australia - Handford (4th ed.) Category: Principal judgment Parties: Dounia Barbour (Appellant) Autosports Five Dock Pty Ltd (Respondent) Representation: Mr Zraika, Solicitor (Appellant) Ms Raw (General Counsel) (Respondent)