Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Alhashemi v Presleys Pty Ltd [2021] NSWCATAP 346 Hearing dates: 1 November, 2021 Date of orders: 05 November 2021 Decision date: 05 November 2021 Jurisdiction: Appeal Panel Before: The Hon F Marks, Principal Member R C Titterton OAM, Senior Member Decision: (1) Leave to appeal is refused. (2) The appeal is dismissed. Catchwords: APPEAL – consumer appeal relating to purchase of motor vehicle – appellant had failed to provide evidence to substantiate allegations that vehicle was defective – appeal dismissed CONSUMER LAW – motor vehicle purchased at auction on eBay platform – held constituted auction for purpose of Australian Consumer Law and guarantees under ss 54 and 55 did not apply. Legislation Cited: Australian Consumer Law ss 2, 54, 55 Civil and Administrative Tribunal Act 2013 (NSW), s 80, Sch 4 Pt 6, cl 12 Competition and Consumer Act 2010 (Cth), Sch 2, s Motor Dealers and Repairers Act 2013 (NSW) Cases Cited: Nil Category: Principal judgment Parties: Waseem Alhashemi (Appellant) Presleys Pty Ltd (Respondent) Representation: Appellant, in person Respondent, G Naris File Number(s): 2021/00227623 Publication restriction: Nil Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 12 July, 2021 Before: J Ringrose, General Member File Number(s): MV 21/11718 Reasons for decision Background 1. The appellant Waseem Alhashemi purchased a motor vehicle on 7 February 2021 from the respondent Presleys Pty Ltd which had been listed for sale by the respondent on an EBay electronic platform. On 14 March 2021 the appellant brought an application in the Consumer and Commercial Division of this Tribunal against the respondent seeking an order for the refund of the purchase price of $9,055 and a further $500 paid for transportation of the vehicle to him. The basis of the application was that the vehicle had mechanical and structural faults which had not been disclosed when it was advertised on the EBay platform. 2. On 12 July 2021 a Member of the Tribunal issued an order dismissing the appellant's application. The Notice of Order issued by the Tribunal is in the following form: 1 The application for (sic) to return the vehicle purchased on eBay auction and receive a refund is dismissed because the applicant purchased a 1939 model Morris 8/40 Tourer in an eBay auction where it was a condition that the goods could not be returned for a refund. Prospective purchasers were urged to inspect the vehicle in person or by video link but the applicant did not avail himself of that facility. He claimed that the vehicle did not live up to his expectations and that there was a major failure of the warranty under section 260 of the Australian Consumer Law. Applying an objective test in the light of the information made available to the applicant the Tribunal is not satisfied that the applicant was entitled to reject the goods and claim a refund. 2 Reasons for decision: Detailed oral reasons were provided to the parties at the hearing 1. The appellant seeks leave to appeal and to appeal from this decision. In the Notice of Appeal, the appellant alleges that the Member failed to apply the relevant Consumer Law, failed to assess his allegations of misrepresentation by the respondent, that the decision was against the weight of the evidence and that "the proceedings were procedurally unfair in that service of the application and response had not been effected by the date of the hearing." 2. On 1 September 2021, a Principal Member of the Tribunal issued orders and directions to the parties for the purpose of the preparation of the hearing of the appeal. Significantly, the appellant was required to lodge with the Tribunal and give to the respondent: The sound recording or transcript of the hearing at first instance, if oral reasons were given and/or what happens at the hearing is being relied on and a typed copy of the relevant parts. 1. The appellant provided a USB stick to the Registry in a plain envelope containing no description of its contents and which was attached by a sliding paperclip to papers which he had filed in support of his appeal. The appellant informed us that the USB stick contained the recording of the proceedings. When we questioned him concerning the provision of a typed copy of those parts of the proceedings upon which he relied for the purpose of the appeal, the respondent said that he had typed up parts of the proceedings, but these had been embedded within the USB stick as a "soft copy." Accordingly, when the proceedings came on for hearing before us, we did not have any hard copy of the transcript of those parts of the proceedings below that the appellant wished to rely upon, and those portions of the reasoning of the Member which he wished to question in aid of his appeal. 2. The appellant is in breach of the directions issued by this Tribunal with respect to the preparation of the appeal for hearing before us. Notwithstanding the difficulties which this breach created, we have been able to deal with the appeal on its substantial merits by reference to the evidence which was before the Member. The factual background 1. The narration which follows is based in part on written submissions made by the appellant and accompanying documentation, predominantly an extract from an eBay site. 2. In a statement the appellant alleged that he purchased the vehicle "through an eBay auction". The material provided from the eBay site indicates that a 1939 Morris 8 Series E Tourer was purchased through an auction process which ended on 7 February 2021, that there were 20 bids, the winning bid was $9,055, and the seller was identified as the respondent. 3. The eBay documentation provided by the appellant is not complete but appears to refer to the motor vehicle under the heading "no reserve auction" in the following manner: * Rare Morris 8 Tourer pre-World War II classic * This is a rare find and a car that stands out from the rest * original matching numbers 918cc Side Valve Straight 4 Cylinder Engine * Floor Shift Manual * 99% RUST FREE Body (we have actually no rust anywhere) * this would make a great fun fine weather car or can easily get a soft top an basic frame made up … from ebay.com) * interior is in great condition scan can be seen in Photos * the patina on the old girl is absolutely stunning * this is a rare opportunity so I advise all interested parties to book a time and come inspect * inspections and test drive is recommended prior to buying ONLY as immediate deposit is required * • can assist with affordable freight Australia wide * • 10% immediate deposit at end of auction, balance and collection * • Standard auction rules apply, all sales are final, non-refundable and a no return policy applies * • please note, car is sold unregistered, as is, and the novelty number-plates shown ARE NOT being … * All cars advertised have been stored and may require a service, going over, and a few bits and …scratch * as with all our cars, they are over 40 years old and a few imperfections are to be expected For interstate buyers video conference calls are available to view the car live Was recently on non-transferable historic registration and used regularly 1. The respondent issued a tax invoice on 9 February 2021 for $9,555 including freight of $500, which was presumably paid by the appellant. That document includes the following notation: Vehicle is sold in "as is" condition, no cooling off, no insurances, no warranties, no dealer warranty, registration nor plates, no freight warranty and no guarantees, All monies received are non-refundable. The Appellant's complaints concerning the vehicle 1. The appellant alleged that the condition of the vehicle was misrepresented by the respondent in that there was extensive rust throughout the vehicle, the base of the seats was hollow and completely worn down, the paint was "clearly showing signs of wearing", the engine did not start, the tyres were cracked on the sides, the brakes were non-functional and the claim that the vehicle had been used regularly was "implausible." 2. The only evidence furnished in support of these allegations consisted of a number of photographs showing what appears to be extensive rust areas. 3. In written submissions the appellant offered to obtain "expert evidence" to substantiate his allegations that the condition of the vehicle had been misrepresented by the respondent. He also offered to obtain expert evidence from a valuer to provide a valuation of the vehicle in support of his contention that his purchase monies should be refunded. The appellant sought an adjournment of the appeal proceedings to enable this material to be obtained. 4. The difficulty with these submissions is that they highlight deficiencies in the appellant's claim as they were prosecuted before the Member in the original proceedings. In circumstances where this evidence should have been available for the purpose of the original hearing before the Member, and was still not available at the time of the appeal hearing, we refused the application for an adjournment. The statutory basis for the appeal 1. The entitlement to initiate an appeal from the decision of the Member is governed by the provisions of s 80 of the Civil and Administrative Tribunal Act 2013 (NSW) which is modified by the provisions of Sch 4 which governs appeals from the Consumer and Commercial Division, this being the Division under which the application of the respondent was determined. 80 Making of internal appeals (1) An appeal against an internally appealable decision may be made to an Appeal Panel by a party to the proceedings in which the decision is made. Note— Internal appeals are required to be heard by the Tribunal constituted as an Appeal Panel. See section 27(1). (2) Any internal appeal may be made— (a) in the case of an interlocutory decision of the Tribunal at first instance—with the leave of the Appeal Panel, and (b) in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance—as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds. (3) The Appeal Panel may— (a) decide to deal with the internal appeal by way of a new hearing if it considers that the grounds for the appeal warrant a new hearing, and (b) permit such fresh evidence, or evidence in addition to or in substitution for the evidence received by the Tribunal at first instance, to be given in the new hearing as it considers appropriate in the circumstances. 1. Part 6 of Sch 4 provides as follows Part 6 Appeals 12 Limitations on internal appeals against Division decisions (1) An Appeal Panel may grant leave under section 80(2)(b) of this Act for an internal appeal against a Division decision only if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because— (a) the decision of the Tribunal under appeal was not fair and equitable, or (b) the decision of the Tribunal under appeal was against the weight of evidence, or (c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with). Note— Under section 80 of this Act, a party to proceedings in which a Division decision that is an internally appealable decision is made may appeal against the decision on a question of law as of right. The leave of the Appeal Panel is required for an internal appeal on any other grounds. 1. Accordingly, the appellant is entitled to bring these appeal proceedings as of right if it can be established that the Member committed an error of law in dealing with the proceedings or in the manner in which he determined to make the order which is under appeal. If an error of law is not relied upon then the appellant must demonstrate that the decision was not fair and equitable or was against the weight of the evidence or that there is significant new evidence which was not reasonably available at the time of the hearing before the Member. The appellant's submissions and disposition of the appeal proceedings. 1. A general description of the submissions made by the appellant is set out above. In the absence of any information concerning the detailed reasons for decision given by the Member it is impossible to understand whether and to what extent the Member erred in any manner in dismissing the appellant's application. 2. In the same way, the absence of any material of any kind which refers to the manner in which the proceedings were conducted makes it impossible to determine whether the proceedings were not conducted in a procedurally unfair manner. 3. Prima facie, the appellant's failure to provide this basic information, as required in directions issued by the Tribunal in anticipation of the hearing of the appeal, renders it impossible to deal with the appeal and it must fail. 4. Significantly, also, the appellant had failed to provide any tangible appropriate evidence in the proceedings before the Member and in these appeal proceedings concerning the nature and extent of the rust, and the nature and extent of any mechanical or other defects in the vehicle. 5. In his submissions the appellant relied on alleged breaches by the respondent of provisions of the Australian Consumer Law, found in Sch 2 of the Competition and Consumer Act 2010 (Cth) (ACL), and in particular ss 54 (guarantee as to acceptable quality) and 55 (guarantee as to goods sold by description). 6. However, neither of these provisions apply in the case of a sale by auction, which is defined in s 2 of the ACL in the following terms sale by auction, in relation to the supply of goods by a person, means a sale by auction that is conducted by an agent of the person (whether the agent acts in person or by electronic means). 1. The appellant has sought to argue before us that the respondent was dealing directly with him when the vehicle was sold, and therefore the process did not constitute an auction. This submission is clearly misconceived. The material provided by the appellant demonstrates that there was a process by which bids were made through the eBay site in the nature of an auction. In these circumstances eBay must be taken to be acting by electronic means as agent for the respondent in order to facilitate the sale of the vehicle through this auction process. Accordingly, the guarantees contained in this legislation do not apply. 2. The appellant also argued that there was non-compliance by the respondent with provisions of the Motor Dealers and Repairers Act 2013 (NSW), but even if there was a breach, this does not assist in creating a cause of action for the appellant. 3. We have set these matters out in some detail so that the appellant might understand why it is that in these circumstances his appeal must fail. As we explained to the appellant during the course of the hearing an appeal does not of itself constitute a rehearing of the original proceedings. In order for him to succeed he must persuade us that the Member was in error in making the Order, by reference to the matters which we have summarised at [17] above. 4. During the course of the proceedings we had occasion to discuss with the appellant the circumstances which applied to his purchase of the vehicle. He had not inspected it prior to purchase, he had not viewed the video of the vehicle which the respondent had made available or arranged for anyone to carry out an inspection on his behalf in circumstances where the advertising material contained some extensive restrictions on the right of a purchaser to make complaint about the general condition of the vehicle. 5. In response the appellant said that he thought that in Australia vendors of used motor vehicles would always act graciously in dealing with purchasers, even those who had chosen not to inspect the vehicle before purchase. Furthermore, the appellant repeated his assertion that the vehicle contains extensive rust inconsistent with the manner in which it had been described in the advertisement. 6. In answer to this, the respondent said that the rust was superficial and not structural. In circumstances where the appellant has not provided any proof concerning the nature and extent of the rust and of the condition of the vehicle generally, it is impossible to determine whether the Member was in error in any manner in dismissing the application. In the absence of any supporting evidentiary material of any kind the appellant's application was doomed to fail, and it follows that this appeal must fail. 7. To the extent that leave to appeal is necessary it should be refused, and the appeal should be dismissed. Orders 1. Consequential upon the reasons which we have set out above we make the following orders 1. Leave to appeal is refused. 2. The appeal is 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: 05 November 2021