Jones Welding Pty Ltd v Jaguar Land Rover Australia Pty Ltd [2021] NSWCATCD 75

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Jones Welding Pty Ltd v Jaguar Land Rover Australia Pty Ltd [2021] NSWCATCD 75 Hearing dates: 19 May 2021 Date of orders: 16 June 2021 Decision date: 16 June 2021 Jurisdiction: Consumer and Commercial Division Before: G Sarginson, Senior Member Decision: 1. The application is dismissed. Catchwords: CONSUMER LAW — New motor vehicle — Jurisdiction of Tribunal — Section 79(6)(a) Fair Trading Act 1987 (NSW) — Whether vehicle used substantially for private or business purposes Legislation Cited: Australian Consumer Law 2010 (NSW) Fair Trading Act 1987 (NSW) Motor Vehicle Taxation Act 1988 (NSW) Cases Cited: Barbour v Autosports Five Dock Pty Ltd [2020] NSWCATAP 141 LSH Auto (Sydney) Pty Ltd v Sherman [2020] NSWCATAP 246 Safi v Heartland Motors Pty Ltd t/as Heartland Chrysler [2016] NSWCATAP 80 Texts Cited: Nil Category: Principal judgment Parties: Jones Welding Pty Ltd (Applicant) Jaguar Land Rover Australia Pty Ltd (First Respondent) Autosports Castle Hill Pty Ltd (Second Respondent) File Number(s): MV 21/02124 Publication restriction: Nil

REASONS FOR DECISION 1. This is a dispute as to whether a Land Rover Discovery vehicle manufactured by the first respondent ('the manufacturer') and sold and serviced by the second respondent ('the dealer') is of acceptable quality and/or has a 'major failure' in breach of the relevant consumer guarantee provisions in the Australian Consumer Law 2010 (NSW) ('the ACL'). 2. The vehicle was sold on 21 April 2016 by the dealer to the applicant. It remains owned by the applicant. As of January 2021, it had travelled approximately 45,000 klms. The sale price of the vehicle was $72,199. The vehicle remains owned by the applicant. 3. Proceedings were commenced in the Tribunal on 17 January 2021. The applicant seeks a return of the vehicle and refund of the purchase price or in the alternative the replacement of the vehicle. 4. The matter was listed before the Tribunal on 16 February 2021 for conciliation and directions hearing. It was set down for a special fixture hearing, with directions regarding the filing and serving of documentary evidence. 5. The hearing was listed on 19 May 2021. 90 minutes had been allocated by the Tribunal for the hearing. The hearing was conducted by telephone. 6. Ms Jones, the business manager of the applicant and wife of the sole director of the applicant, appeared for the applicant. Ms Rehman, Team Leader Customer Relations, appeared for the manufacturer. Mr Casey, Service Manager, appeared for the dealer. 7. At the outset of the hearing, all parties indicated they were ready to proceed and did not seek an adjournment for any reason. The parties were informed that if they sought an adjournment for any reason during the course of the hearing, they should raise that issue and it would be dealt with. 8. At the commencement of the hearing, the applicant stated that the respondents had not complied with directions because they had not had the vehicle inspected by an expert witness. 9. The Tribunal pointed out that the relevant direction was that the respondents could have the vehicle inspected if they wished to, and if so the applicant would need to make the vehicle reasonably available for inspection. There was no direction compelling the respondents to have the vehicle inspected by an expert witness; and it was the decision of the respondents whether or not they wished to do so. 10. The manufacturer stated at the commencement of the hearing that there was a jurisdiction issue by reason of the vehicle being purchased by a business, and whether it was being used substantially for private purposes. This issue will be dealt with later in the decision. 11. Neither party had the vehicle inspected by an independent expert witness. The documentary evidence relied upon by all parties was the service history of the vehicle and emails between the parties regarding the vehicle and its reliability issues. 12. Ms Jones gave oral evidence at the hearing and the respondents were given the opportunity to question her. There was no cross examination of Ms Jones. Neither of the respondents gave evidence, but relied upon the service history of the vehicle and the emails between the parties that comprised the documentary evidence of the parties.