Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Campbelltown City Motors Pty Ltd & The Van Man Sales Pty Ltd v Sim [2021] NSWCATAP 149 Hearing dates: 11 May 2021 Date of orders: 11 May 2021 Decision date: 24 May 2021 Jurisdiction: Appeal Panel Before: The Hon F Marks Principal Member J S Currie Senior Member Decision: 1. The appeal instituted by Campbelltown City Motors Pty Ltd is upheld. 2. Orders made by this Tribunal on 18 February 2021 in MV 20/47745 are quashed. 3. The appeal instituted by The Van Man Sales Pty Ltd is dismissed. 4. Orders made by this Tribunal on 9 February 2021in MV 20/47745 are confirmed save that The Van Man Sales Pty Ltd is to collect the subject motor vehicle from Terrence Sim on or before 16 May 2021 at its expense. 5. There is no order as to costs. Catchwords: APPEALS – Tribunal made orders for refund of purchase price of motor vehicle by vendor or respondent and return of motor vehicle to vendor – Tribunal later substituted the name of a different entity as respondent – held no basis for substitution – later orders quashed – earlier orders confirmed with substituted date for return of vehicle PRACTICE AND PROCEDURE – held section 63 of Civil and Administrative Tribunal Act cannot be used to alter the name of a party to proceedings after the conclusion of a hearing. Legislation Cited: Civil and Administrative Tribunal Act ss 60,63 Cases Cited: Place v Department of Finances, Services and Innovation (No 2) [2017] NSWCATAD 21 Collins v Urban [2014] NSWCATAP 17 Texts Cited: Nil Category: Principal judgment Parties: Campbelltown City Motors Pty Ltd (First Appellant) The Van Man Sales Pty Ltd (Second Appellant) Terrence Sim (Respondent) Representation: M Kork (Director) (First Appellant) M Kork (Second Appellant) R Marland (Agent)(Respondent) File Number(s): 2021/00067000 Publication restriction: Nil Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 9 and 18 February, 2021 Before: C Pirina General Member File Number(s): MV 20/47745 reasons for decision Background 1. At the conclusion of the hearing of these appeals, the nature of which we shall later describe, we informed the parties how we intended to deal with each appeal and we made orders to dispose of them. What follows are our reasons for having upheld one appeal and dismissed the other. 2. Before describing what these appeal proceedings are about, we need to describe what happened when Terrence Raymond Sim purchased a Nissan Navara motor vehicle. The narration which follows is based on information and evidence provided in the original hearing and given to us during the hearing of the appeal. 3. In a statement provided for the appeal hearing Mr Sims said that on 21 October 2020 he went to a business at premises at 23 Queen Street Campbelltown which had a sign saying "the Van Man Sales." 4. While he was there Mr Sim purchased a Nissan Navaro dual cab utility from the registered owner, The Van Man Sales Pty Ltd of 23 Queen Street Campbelltown for a purchase price of $23,590. Mr Sim was given a "blue slip" issued by a motor mechanic which said that the vehicle was roadworthy. The vehicle had approximately 225,000 km shown on the odometer and a 2012 compliance plate. 5. On 23 October 2020 Mr Sim sent an email to the vendor saying that the vehicle was faulty. An engine light was coming on and there was a lot of oil leaking from it. He asked for a full refund within 48 hours. Mr Michael Kork, a director of the vendor offered to have the problems fixed, but Mr Sim insisted on a refund because he did not believe that the vehicle was roadworthy. The dispute was referred to Fair Trading but remained unresolved. 6. On 5 November 2020 Danny's Mobile Automotive prepared a report for Mr Sim in which it assessed the state of repair of the vehicle. That report said that the intercooler, power steering pump and transmission cooler were all leaking oil and needed replacing. In addition, there was an oil leak from the sump gasket, and other problems which appear to be of a lesser concern. Danny's Mobile Automotive provided a quotation of $7237 to rectify all of these problems. 7. Mr Sims filed an application in the Consumer and Commercial Division of this Tribunal on 14 November 2020 against The Van Man Sales Pty Ltd. He alleged that the vehicle was not roadworthy and claimed a refund of the purchase price. 8. The Van Man Sales Pty Ltd sent the report of Danny's Mobile Automotive to AJE Mechanical Pty Ltd for an assessment. In a report dated 8 February 2021 AJE assessed the cost to repair the defective items which had been identified in the vehicle as being $2000. The first decision against The Van Man Sales Pty Ltd 1. The Application filed by Mr Sims came on for hearing conducted by telephone before a Member of this Tribunal on 9 February 2021. The Member had access to the two automotive reports, and both Mr Sim and Mr Kork provided information and made submissions. 2. At the end of the hearing that day the Member ordered that The Van Man Sales Pty Ltd pay Mr Sim $23,590 on or before 16 February 2021 being the full refund of the cost of the motor vehicle. The reason given was that there was a "major failure, in breach of ACL guarantees for goods," and the rejection of those goods on this basis by Mr Sim. 3. The Member made consequential orders that The Van Man Sales Pty Ltd was to collect the vehicle from Mr Sim on or before 16 February 2021 at its expense and at the same time deliver to him a cheque for $23,590. In making those orders the Member said that she had given oral reasons. Events following the first decision 1. According to Mr Sim no attempt was made to give him a cheque or pick up the vehicle. Mr Kork did not dispute this. 2. Mr Sim then went to make enquiries from The Van Man Sales Pty Ltd at its Queen Street Campbelltown address. He found out that that company was no longer trading from those premises, and that Campbelltown City Motors Pty Ltd was now operating a business there, and that Mr Kork was also a director of that company. Mr Sim made further enquiries and found out that The Van Man Sales Pty Ltd had surrendered its motor traders license on 19 October, 2020, and was therefore unlicensed on the date that it sold the vehicle to him. He also found out that Campbelltown City Motors Pty Ltd held a current motor traders license operating from the same address. 3. Mr Sim then forwarded an email to this Tribunal stating that "I have told you so many times that The Van Man Sales Pty Ltd literally changed its name to Campbelltown City Motors Pty Ltd on the day we put a deposit on the car purchased 21 October 2020." The second decision 1. As a result of receipt of that email on 18 February 2021 the Member amended the name of the respondent to the proceedings which she had determined so that it became Campbelltown City Motors Pty Ltd. The Member purported to make this amendment pursuant to the provisions of section 63 of the Civil and Administrative Tribunal Act ("the CAT Act"). In all other respects, the orders remained the same. 2. The Sheriff issued a writ on 18 February 2021 to levy the sum of $23,776 against the assets of Campbelltown City Motors Pty Ltd. The appeals 1. This prompted both Campbelltown City Motors Pty Ltd and The Van Man Sales Pty Ltd to file a Notice of Appeal in this Tribunal on 8 March 2021 asking that orders made against both companies be set aside. We shall deal with each appeal in turn. The Campbelltown City Motors Pty Ltd appeal 1. The appellant complained that no order should have been made against it because it was a separate and distinct company from The Van Man Sales Pty Ltd, it did not own the vehicle, it did not sell the vehicle, it had no contractual relationship with Mr Sim and no order should have been made against it. 2. All of these submissions have substance. In circumstances where it is quite clear that the two companies are separate legal entities, Campbelltown City Motors Pty Ltd had no contractual or other relationship of any kind with Mr Sim. There is no suggestion that this company purchased the business of the other, acquired the liabilities of the other or had any dealings of any kind with Mr Sim. 3. The agreed information provided to us by the parties during the appeal hearing, was that the Member was informed only that the trader's license of The Van Man Sales Pty Ltd had expired, to which the Member had correctly responded that that was irrelevant. 4. In the circumstances there was no basis to alter the name of the respondent to the original application brought by Mr Sim, especially after the hearing had concluded and a decision had been issued. Arguably, the Member was then functus officio. 5. Furthermore, the purported exercise of discretion under section 63 of the CAT Act was in error. Section 63 is in the following terms 63 Power to correct errors in decisions of Tribunal (1) If, after the making of a decision by the Tribunal, the President or the member who presided at the proceedings is satisfied that there is an obvious error in the text of a notice of the decision or a written statement of reasons for the decision, he or she may direct a registrar to alter the text of the notice or statement in accordance with the directions of the President or the member. (2) If the text of a notice or statement is so altered, the altered text is taken to be the notice of the Tribunal's decision or the statement of its reasons, as the case may be, and notice of the alteration is to be given to the parties in the proceedings in such manner as the President or member may direct. (3) Examples of obvious errors in the text of a notice of a decision or a statement of reasons for a decision are where— (a) there is an obvious clerical or typographical error in the text of the notice or statement, or (b) there is an error arising from an accidental slip or omission, or (c) there is a defect of form, or (d) there is an inconsistency between the stated decision and the stated reasons. 1. The manner in which section 63 operates has been comprehensively described by Professor G Walker Senior Member in this Tribunal in Place v Department of Finances, Services and Innovation (No 2) [2017] NSWCATAD 21. At [9] and following the Senior Member said Section 63 is a statutory version of the common law "slip rule", the purpose of which is to avoid injustice by permitting the rectification of errors or omissions in the orders or reasons of a court or tribunal: Batagol & McGill v Monk [2000] VSC 48, [17]. The test for applying it has been held to be whether, if the matter had been drawn to the tribunal's attention, a mistake or omission would have been corrected at once: Riga v Peninsula Home Improvements [2000] VCAT 56. The following passage from R v Cripps; ex parte Muldoon [1984] QB 686, 695 has often been referred to: [The slip rule] is surprisingly wide in scope. Its primary purpose is akin to rectification, namely to allow the court to amend a formal order which by accident or error does not reflect the actual decision of the judge. But it also authorises the court to make an order which it failed to make as a result of the accidental omission of counsel to ask for it. It even authorises the court to vary an order which accurately reflects the oral decision of the court, if it is clear that the court inadvertently failed to express the decision which it intended. In its primary connotation, the slip rule applies when the error, mistake, omission or slip is a matter as to which no real difference of opinion exists. It can even apply if there are different possible "corrections", provided that the choice between them is not a matter of controversy or substance or require the exercise of an independent judgment: Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 61 FCR 385, 390 – 392. There is no time limit on the making of such a correction, but it has been held that it "should be made without delay": Constantinidis v MMMMM Pty Ltd [2010] VCAT 1811, [26]. In the present case the application was lodged promptly and without delay. It was instituted because Dr Place took the view that the quotation of the paragraph from the email in para 173 of the published reasons for decision entitled him to disregard Order 5. Section 63(3) sets out four examples of matters requiring correction in the text of a notice of decision or a statement of reasons for decision, including an "omission" or "an inconsistency between the stated decision and the stated reasons"……………….. 1. We gratefully adopt and apply the exposition of the Senior Member concerning the manner in which section 63 operates. 2. We should state that despite orders made concerning the preparation of these appeal proceedings for hearing, no party has provided a transcript of the evidence of what transpired. Mr Kork applied for a CD of the proceedings, and there is evidence that he informed this Tribunal that he was unable to play that CD on any equipment which he possessed. There is further evidence that "kiteworks" provided a recording of the transcript proceedings by way of MP3 file format attached to an email forwarded to Mr Kork. Mr Kork informed us that he was unable to open this attachment. Mr Sim did not provide any transcript. Accordingly, our knowledge of what transpired in the course of the hearing before the Member, is based on what has been told to us by the representatives of the parties who appeared before us . 3. There is no information available to us which would indicate that in some way the purported substitution of a different respondent to the Application on 18 February 2021 could be justified under section 63. There is no suggestion in the original hearing that the Member could have intended that Campbelltown City Motors Pty Ltd should be substituted as the real respondent. There is no suggestion that any notice was given to that company of any intention to join it in any way as a party to the proceedings. And as we have earlier observed there is no suggestion that that company had any liability at law to Mr Sim of any kind arising out of his purchase of the motor vehicle. 4. We conclude that there was no basis at law for the substitution of the name of Campbelltown City Motors Pty Ltd as a respondent to the proceedings. The purported decision by which this occurred must be quashed, together with any orders consequent upon that decision. 5. This appeal is upheld. The Van Man Sales Pty Ltd appeal 1. The basis for this appeal is that the Member erred in making orders in favour of Mr Sim against this company. It was alleged in the Notice of Appeal that there was no factual basis for the making of these orders, and the orders were against the evidence and the weight of the evidence. 2. The inability of Mr Kork to provide us with a transcript of what occurred in the hearing before the Member creates a substantial impediment to any consideration of the evidence and the weight of the evidence. However, we were told by the parties that in the hearing before the Member they were both content to rely on the respective opinions of both automotive mechanics. Mr Kork explained to us that the substantial difference in the two quotations was because Danny's Mobile Automotive had priced the cost of parts on new genuine Nisan parts, and AJE had estimated the cost of parts on the cost of second-hand replacements, not necessarily Nisan parts which had a 3 months warranty. 3. In the absence of any evidence of any kind from either "expert" about the detail of these matters and the appropriateness of new as opposed to second-hand parts, it is impossible to make any determination of the relative merits of either quotation, and the Member would have encountered the same difficulty. 4. On the basis that we were informed that the Member was asked to consider the competing quotations for herself, it would seem to us that the Member was entitled to rely on the quotation of Danny's Mobile Automotive. It follows that the Member was entitled to come to the view that she did that there was a breach of relevant guarantees under the Australian Consumer Law and that Mr Sim was entitled to reject the vehicle. 5. The appellant bears the onus of demonstrating that the Member was in error, either by reason of there being no available factual material to sustain her decision, or that it was against the evidence and the weight of the evidence. The Member delivered oral reasons, but we do not know what they were. Given the paucity of the material put before us we conclude that the appellant has failed to discharge this burden. 6. Arguably some of the matters raised by the appellant may involve matters of law and leave to appeal is not necessary. We could ascertain no error by the Tribunal in relation to this appeal which would amount to an error of law. 7. As to the other grounds of the appellant, we have applied the general principles as to the granting of leave outlined in Collins v Urban [2014] NSWCATAP 17 at [84]. We have not been persuaded by the appellant that the Tribunal made an error which would justify the grant of leave. 8. As we have determined, overall, that the appeal must be dismissed on its merits, we shall do so. 9. This will result in the orders originally made by the Member against The Van Man Sales Pty Ltd being confirmed. Those orders required that company to collect the motor vehicle from Mr Sim and to provide him with a cheque for $23,590 by 16 February 2021. The orders made by us substituted 16 May 2021 for this date. Mr Kork informed us that the company was solvent and would be able to make payment in that amount. Costs 1. Both parties sought an order for costs in their favour. Overall, both have partially succeeded, and both have partially failed. There are no special circumstances which would justify the making of a costs order as provided for in section 60 of the CAT Act. These applications are dismissed. Orders 1. We confirm having made the following orders at the conclusion of the hearing of the appeals 1. The appeal instituted by Campbelltown City Motors Pty Ltd is upheld. 2. Orders made by this Tribunal on 18 February 2021 in MV 20/47745 are quashed. 3. The appeal instituted by The Van Man Sales Pty Ltd is dismissed. 4. Orders made by this Tribunal on 9 February 2021 in MV 20/47745 are confirmed save that The Van Man Sales Pty Ltd is to collect the subject motor vehicle from Terrence Sim on or before 16 May 2021 at its expense. 5. There is no order as to costs. ********** 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. 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