Civil and Administrative Tribunal New South Wales Medium Neutral Citation: ATM Corporation Pty Ltd t/as What You Wreckin v Green Square Garage Pty Ltd [2022] NSWCATAP 17 Hearing dates: 17 January 2022 Date of orders: 24 January 2022 Decision date: 24 January 2022 Jurisdiction: Appeal Panel Before: K Rosser, Principal Member G Ellis SC, Senior Member Decision: 1. Leave to appeal refused. 2. Appeal dismissed. 3. Each party is to bear their own costs of the appeal. 4. In the event that an application for a different costs order is made, order 3 above ceases to have effect and the following orders apply: (a) Any application for a different costs order is to be filed and served, supported by evidence and submissions, within 14 days of the date of these orders. (b) Any evidence and submissions in response to the application for a different costs order are to be filed and served within 28 days of the date of these orders. (c) Any material in reply is to be filed and served within 35 days of the date of these orders. Catchwords: APPEAL - Challenge to two findings of fact - No error of law - No miscarriage of justice Legislation Cited: Australian Consumer Law Civil and Administrative Tribunal Act 2013 Civil and Administrative Tribunal Regulation 2013 Civil and Administrative Tribunal Rules 2014 Civil Procedure Act 2005 Fair Trading Act 1987 Cases Cited: Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Collins v Urban [2014] NSWCATAP 17 Prendergast v Western Murray Irrigation Ltd Taylor v Johnson [1983] HCA 5, (1983) 151 CLR 422 Thompson v Chapman [2016] NSWCATAP 6 Texts Cited: Nil Category: Principal judgment Parties: ATM Corporation Pty Ltd t/as What You Wreckin (Appellant) Green Square Garage Pty Ltd (Respondent) Representation: Mr A Marinho for the Appellant Mr S Rubner for the Respondent File Number(s): 2021/00298852 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 23 September 2021 Before: G A Kinsey, General Member File Number(s): MV 21/00404 reasons for decision Introduction 1. This is an internal appeal under s 80(2) of the Civil and Administrative Tribunal Act 2013 (the NCAT Act) against a decision made in the Consumer and Commercial Division of the Tribunal on 23 September 2021. 2. The application to the Tribunal was brought by the respondent against the appellant. 3. The issues in the appeal are: 1. Whether the Tribunal had jurisdiction because the motor the subject of the proceedings was owned by Mr Marinho and not the Appellant; and 2. Whether the motor fitted the description of it in an eBay advertisement. 1. For the reasons set out below, we have decided to refuse leave to appeal, dismiss the appeal and order that each party pay their own costs. Background 1. The respondent paid $4,200 for a motor which was advertised on eBay as being a BMW M62 engine with 4.4 litre capacity. The respondent commenced proceedings on the basis that the engine was an M60 engine with a 4.0 litre capacity. At the hearing, the primary areas of dispute were: 1. Whether the motor was sold by the appellant or by the appellant's director Mr Marinho; and 2. Whether the motor was an M62 or an M60 engine. 1. As a result of finding that the motor was an M60 engine and was sold by the appellant, the Tribunal held that there was a breach of contract and a breach of s 56 of the Australian Consumer Law (ACL), which is part of the law of NSW by reason of s 28 of the Fair Trading Act 1987 (FTA). That section provides a guarantee that when goods are sold by description they correspond with that description. 2. Two orders were made. The first order required the appellant to refund the $4,200 paid by the respondent and the second order required the return to the appellant of the motor, parts and accessories.. Tribunal proceedings and decision 1. The application to the Tribunal was lodged on 31 December 2020. The matter was first listed before the Tribunal for conciliation on 26 February 2021. 2. The final hearing was conducted on 27 May 2021 and 9 July 2021. The Tribunal's reasons for decision were published on 23 September 2021. 3. The Tribunal relevantly found that: * The appellant sold the motor the subject of the proceedings. * That motor was a 4 litre M60 BMW motor, not a 4.4L M62 motor. Scope and nature of internal appeals 1. Internal appeals may be made as of right on a question of law, and otherwise with leave (that is, the permission) of the Appeal Panel: s 80(2) NCAT Act. 2. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 (Prendergast) the Appeal Panel set out at [13] a non-exclusive list of questions of law: 1. Whether there has been a failure to provide proper reasons; 2. Whether the Tribunal identified the wrong issue or asked the wrong question; 3. Whether a wrong principle of law had been applied; 4. Whether there was a failure to afford procedural fairness; 5. Whether the Tribunal failed to take into account relevant (i.e., mandatory) considerations; 6. Whether the Tribunal took into account an irrelevant consideration; 7. Whether there was no evidence to support a finding of fact; and 8. Whether the decision is so unreasonable that no reasonable decision-maker would make it. 1. The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are limited to those set out in cl 12(1) of Schedule 4 of the NCAT Act. In such cases, the Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice on the basis that: 1. the decision of the Tribunal under appeal was not fair and equitable; or 2. the decision of the Tribunal under appeal was against the weight of evidence; or 3. significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with). 1. In Collins v Urban [2014] NSWCATAP 17 (Collins), the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) of Schedule 4 may have been suffered where: … there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance. 1. Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Schedule 4, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b). 2. In Collins, the Appeal Panel stated at [84] that ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed. Submissions and evidence 1. In deciding the appeal, we have had regard to the following: * The Notice of Appeal lodged on 21 October 2021. * The Reply to Appeal lodged on 8 November 2021. * The Appellant's submissions, received on 29 October 2021. * The Respondent's submissions, received on 23 December 2021. 1. On 13 January 2022, shortly prior to the hearing of the appeal on 17 January 2022, the respondent filed some 100 pages of documents. The first page of those documents, which sought leave to rely on the documents, suggested all the documents were presented at the first instance hearing. However, approximately 13 pages consist of more detailed written submissions than those provided by the respondent's former solicitor. 2. The respondent provided these documents because it was concerned that the solicitor who had originally acted for it on the appeal had not complied with the order made at call over to provide both written submissions and the evidence on which the respondent relied at the hearing. The documents were provided considerably outside the time frame set out in directions made at call over. 3. On receipt of the respondent's bundle of documents, the appellant contacted the Tribunal's Registry by email to advise that the documents would not be opened, as they had been provided late. The Registry sent two responses to the appellant's email. The first advised the appellant to raise any issues concerning the respondent's late provision of documents at the appeal hearing. The second email advised the appellant to open the documents, as subject to their content and relevance and taking into account any submissions the appellant might make, the Appeal Panel could consider the documents when making a decision. The second email was sent at our direction. 4. At the appeal hearing, Mr Marinho advised us that, notwithstanding the advice received from the Registry, the documents had not been looked at. This was apparently on the basis that the late provision of the documents caused prejudice to the appellant because it had insufficient time to respond. 5. In our view, there was no real prejudice to the appellant by the late provision of documents. If Mr Marinho had looked at the documents, it would have been clear that the appellant had already seen the evidence that was before the Tribunal at first instance. In addition, the appellant would have had a sufficient opportunity to prepare oral submissions in reply to the respondent's submissions. We consider that any prejudice to the appellant arising from the late provision of documents was caused by the appellant's decision, contrary to advice communicated by the Registry, to not open and look at the documents. Notwithstanding the delay in providing the documents, we do not consider that there is any compelling reason to refuse to consider the documents on the appeal. 6. That said, it was largely unnecessary for us to consider the respondent's documents, other than to the extent indicated below. Our decision turns on the written and oral submissions made on behalf of the appellant, the oral submissions made on behalf of the respondent, relevant material that was before the Tribunal below and the Tribunal's reasons for decision. Notice of Appeal 1. The Notice of Appeal was lodged on 21 October 2021, which is within the 28 day time period specified in cl 25(4)(c) of the Civil and Administrative Tribunal Rules 2014 (the Rules). Grounds of Appeal 1. The grounds of appeal specified in the Notice of Appeal are that the Tribunal erred in concluding that: i The Tribunal had jurisdiction to hear and determine the application because at all material times, the Appellant was not a party to the sale of the motor, the subject of the proceedings, and it was owned by Anthony Thomas Marinho ("Mr Marinho"). The seller of the motor, Mr Marinho, is an individual and not a motor dealer or repairer, therefore, the sale was a private sale and not sold by the Appellant. ii The motor sold by the Appellant to the Respondent did not fit the description of a 4.4L M62 engine in the eBay advertisement, and further erred in accepting that the Appellant breached the contract and resulted in the Respondent suffering loss and damage. Appellant's submissions 1. The appellant's written submissions suggest a failure to consider that the respondent had been in possession of the subject motor since about July 2020 and that was said to be more than a year. However, we note that the application was lodged in December 2020, about five months after the purchase of the motor. Second, it was suggested that if the motor is returned to the appellant in a damaged condition there would be a miscarriage of justice. That does not go to either of the findings upon which the decision at first instance depended but relates to a hypothetical scenario when the motor is returned. Those are two matters which could and should have been raised at first instance. Neither of them appears to provide a basis for overturning the decision that was made. 2. Matters raised on the issue of whether the appellant or Mr Marinho sold the motor are: 1. The Tribunal allegedly not placing weight on the vehicle being registered in Mr Marinho's name; 2. The Tribunal allegedly disregarding that the eBay advertisement referred to the motor being removed from Mr Marinho's personal car; 3. The receipt being provided in Mr Marinho's name; 4. Text messages which indicated there would be no GST; 5. That the vehicle was sold using a listing under the appellant's trading name; and 6. That the tax invoice concerning work done in 2016 from Redback Automotive (the 2016 invoice) was addressed to Mr Marinho and not the appellant. A review of the Tribunal's reasons reveals that each of those matters except the second was considered. As to that matter, the fact that the motor was removed from Mr Marinho's personal car does not necessarily mean that he was the seller. 1. On the question of whether the motor was an M60 or an M62 engine, the matters raised are: 1. The engine number (the VIN) not being conclusive; 2. What was shown by the BMW decoder website; 3. The purchase of parts for an M62 engine, not an M60 engine; 4. A 2016 purchase of coils for an M62 engine. 1. The Tribunal's reasons reveal that the VIN was not treated as being conclusive and that "documentation from different sources as to the history of the motor" was considered. Obviously, any matter that was not before the Tribunal at first instance was not considered and cannot now be considered as there has been no indication of any new evidence, being evidence that was not available at the time of the hearing. 2. At the appeal hearing, Mr Marinho indicated that he relied on the written submissions already lodged. His oral submissions during the appeal hearing covered: 1. The registration of the vehicle from which the motor was sourced; 2. Conversations between the parties; 3. The receipt; 4. An assertion that the motor was sold without any warranty; and 5. That the appellant would lose $4,200 if the appeal was not allowed. 1. Mr Marinho went on to say he felt that no-one listened to what he had to say at the Tribunal hearing and that "hard facts" had been overlooked. 2. In his submissions in reply, Mr Marinho referred to the use of eBay, the provision of the appellant's business card and matters relating to the fact that the subject motor came from his personal vehicle. Respondent's submissions 1. In the Reply to the Notice of Appeal, it was suggested that the matters raised in relation to the BMW decoder website and the 2016 invoice concerning the purchase of coils were an attempt to lead fresh evidence. The respondent's written submissions contended that no error of law had been shown and that the appellant appeared to be disputing findings of fact that were based on evidence that was before the Tribunal at first instance. 2. In the submissions lodged on 13 January 2022, the respondent argued that it should be compensated by way of interest and costs. It was also noted that the 2016 invoice produced by the appellant suggested the motor had been used for 258,638 km and not "150,000 genuine kilometres", as advertised. These two matters are considered below. 3. In oral submissions made during the appeal hearing, Mr Rubner relevantly submitted that the VIN provided support for the respondent's case. He referred us to aspects of the evidence which he suggested supported a finding that the motor was sold by the appellant, not by Mr Marinho. He contended that there was no error of law and that there was sufficient evidence to warrant the findings that were made. Consideration 1. As indicated above, the Tribunal's decision turned on two findings of fact. The first is that the seller was the appellant and not Mr Marinho. The second is that the motor sold to the respondent was an M60 engine with a 4.0 litre capacity and not an M62 engine with a 4.4 litre capacity. 2. While the first ground of appeal is framed as a claim that the Tribunal lacked jurisdiction, that claim is based on the allegation that the Tribunal erred in finding the seller was the appellant and not Mr Marinho. The second ground of appeal challenges the Tribunal's finding of fact that the motor supplied was an M60 motor and not an M62 motor, as advertised. 3. The outcome at first instance was the direct result of those two findings which were findings of fact. It is important to note that lodging an appeal does not entitle an appellant to a re-hearing of the proceedings. Rather, for an appeal to succeed an appellant must show that there has been an error of law or a miscarriage of justice. 4. The findings of fact that were made at first instance (at [12]) are quoted below: (i) On or about 16 June 2020 the following advertisement appeared on eBay: "OEM BMW V* M-SPORT 4.4L M^2 ENGINE/MOTOR-155,000 Klms-740II 540i E38 E39 #282633175561 PRICE: AU$4,400.00 (ii) On or about 16 June 2020 Ben Rubner contacted Marinho about the advertised engine. Text messages between them confirm Ben Rubner asked questions about the history of the motor and the price. (iii) Marinho sent Ben Rubner a business card for What You Wreckin on or about 18 June 2020. The card included the word "Anthony Marinho Owner", "Automotive Dismantling Specialising in Commodores". The telephone number on the business card was 0434 538 706. (iv) The sale price was agreed at $4200.00 on or about 28 June 2020; (v) Ben Rubner paid a deposit of $420.00 by direct deposit into the bank account nominated by Marinho; (vi) On 5 July 2020 Ben Rubner and Steve Rubner attended 11 Peachtree Road Penrith to collect the engine. Ben Rubner paid Marinho $3780.00 in cash (vii) Marinho handed Ben Rubner receipt no 41 dated 5/7/20. The receipt described the engine as "BMW M62 4.4L V8 engine/motor. Non Vano…..". The price was shown as $4200.00. The receipt was made to the Green Square Garage and was from Marinho. (viii) The engine was secured to a wooden plate which was loaded onto Ben Rubner's Ford utility. Ben Rubner was handed a box containing various accessories. (ix) The engine was delivered to the premises of Green Square Garage where it was unpacked. (x) Ben Rubner tried unsuccessfully to fit the engine to a vehicle. After investigation he discovered that the engine was an M60 and not an M62 as advertised on eBay. (xi) Ben Rubner tried unsuccessfully to contact Marinho by telephone. On 23 July 2020 he sent Marinho an email about returning the engine and obtaining a refund. (xii) Marinho denied any wrongdoing and refused to give him any refund. 1. The Tribunal also recorded the matters upon which the appellant relied (at [32]) and the matters upon which the respondent relied (at [33]) before proceeding to set out reasons for the decision (at [34] to [37]). The listing of the matters upon which the parties relied, albeit in summary form, serves to provide a clear indication that the Tribunal considered those matters in the process of reaching its decision. 2. On the question of whether the motor was sold by the appellant or by Mr Marinho personally, it is often the case that the evidence provided by the parties in support of and in defence of a claim differs and does not suggest the same outcome. It is therefore necessary to weigh up the matters upon which each party relies. 3. It is important to note that, when assessing who were the parties to a contract, it is not what either Mr Marinho or Mr Rubner thought which determines that issue. That is sometimes referred to as the subjective intention of the parties. In Taylor v Johnson [1983] HCA 5, (1983) 151 CLR 422 at 428–29, and in many subsequent cases, the High Court has made it clear that the correct approach is to consider what was the intention of the parties by reference to what a reasonable person would have understood from what was said and done and the documents that were exchanged. This is usually described as the objective theory of contract. 4. There is no utility in endeavouring to repeat, even in summary form, the aspect of the evidence to which both parties referred in their written submissions. It is clear the Tribunal at first instance weighed up the evidence provided by both parties and a reconsideration of the evidence that was before the Tribunal, having regard to the written and oral submissions made by the parties in the appeal, does not satisfy us that the decision that the appellant sold the motor was against the weight of the evidence. 5. There are some matters, notably matters which arose after agreement for the sale of the motor was reached, which may suggest Mr Marinho was selling the vehicle, but it should also be borne in mind that comments about the age, origin and use of the motor go to matters which a buyer would consider in any sale, and they thus cannot be said to necessarily suggest the seller of the motor was Mr Marinho. We conclude that it was open to the Tribunal to conclude on the evidence before it that, considered objectively, the appellant sold the motor to the respondent. That finding does not disclose an error of law. Nor is it against the weight of evidence. 6. Likewise, there was clear evidence that the serial number indicated the capacity of the motor to be 4.0 litres, not 4.4 litres. A close consideration of the reasons provided at first instance does not favour the view that the decision that the motor was not as advertised was against the weight of the evidence. Nor does it disclose an error of law. The fact that the vehicle from which the motor was obtained could accommodate either an M60 or M62 motor does not materially assist the appellant's case as it only suggests the motor could have been an M62 motor, not that it must have been an M62 motor. 7. A consideration of the reasons published on 23 September 2021, by reference to the matters said to constitute an error of law in Prendergast does not suggest that there has been a failure to provide proper reasons in relation to either of the two findings of fact upon which the decision depended. Second, it does not appear that the Tribunal identified the wrong issue or asked the wrong question. Third, it cannot be said that a wrong principle of law has been applied. Fourth, while the appellant claimed that "no one had listened to him", this was not a ground of appeal and no recording or transcript of the hearing has been provided. In such circumstances, we are not satisfied that there was any denial of procedural fairness. The Tribunal clearly considered the appellant's evidence and made findings concerning it. Fifth, the Tribunal does not appear to have failed to consider relevant matters. Sixth, it does not appear that the Tribunal considered irrelevant matters. Finally, it cannot be said there was no evidence to support the findings of fact that were made, nor can it be said that either of those findings was unreasonable. 8. The appellant's submissions do not disclose any error of law. As a result, it only remains for the Tribunal to consider whether any of the available grounds for leave to appeal are established and, if so, whether leave to appeal should be granted. 9. We have considered whether any of the grounds for leave to appeal have been established.. 10. In relation to whether the decision at first instance not fair and equitable, in general terms, this concerns process rather than about outcome. We are not satisfied that there was any unfairness in the Tribunal's procedure. In any event, the Tribunal specifically considered the fairness and equity of the decision in the context of s 79U of the FTA. Mr Marinho contended that it was not fair and equitable for the appellant to have to refund $4,200. However, that amount was paid by the respondent to Mr Marinho at his direction and he has had the benefit of that money since July 2020. There is no relevant unfairness or inequity in the appellant refunding that sum to the respondent. 11. Assertions about the possible current condition of the motor were also made. The appellant's concerns in this regard are speculative. In any event, the passage of time since the sale of the motor results from the respondent not agreeing to its return which led to the respondent's application and this appeal. Further, documents suggesting that there should be an inspection of the motor prior to its return appear to have been provided after the Tribunal hearing and thus do not go to an issue in this appeal. 12. As to Mr Marinho's suggestion that the motor was sold without any warranty, as the decision at first instance noted, at [40], the ACL imposes guarantees independent of the contract and s 64 of the ACL provides that such guarantees cannot be excluded. 13. In relation to whether the decision is against the weight of evidence, as noted above, we are not satisfied that either of the two crucial findings in the challenged decision were against the weight of the evidence. 14. Finally, there has been no suggestion in this appeal that any significant new evidence (being evidence not available at the time of the hearing) has arisen. It follows that the available bases for leave to appeal are not established. 15. Even if one or more of the bases for leave to appeal had been established, the appellant has not demonstrated a basis which would warrant a grant of leave to appeal because: 1. There is no issue of principle or question of public importance raised by this appeal: 2. No clear injustice has been demonstrated; 3. the factual findings were neither unreasonable nor mistaken; and 4. There was nothing unorthodox about the fact-finding process. Interest 1. In the documents filed on 13 January 2022, the respondent made a claim for interest. There is no power in the NCAT Act, the Civil and Administrative Tribunal Regulation 2013 or the Rules that provides the Tribunal with a power to award interest for the period up to the date of the decision, commonly referred to as pre-judgement interest. 2. While s 100 of the Civil Procedure Act 2005 does permit the awarding of interest for the period prior to the date of judgement, that section does not apply to proceedings in the Tribunal, as was noted in Thompson v Chapman [2016] NSWCATAP 6. As a result, any claim for pre-judgment interest can therefore only be allowed if there is a relevant provision for the payment of interest in the contract. 3. Rule 39 does permit the recovery of interest. However, as indicated in the heading of that rule, namely "Interest in judgment debt", that provision only applies to interest on a judgement debt; interest on an amount awarded by the Tribunal which is then registered as a judgment. Discrepancy between invoice and advertisement 1. In the documents filed on 13 January 2022, the respondent referred to a discrepancy between the kilometres recorded on the 2016 invoice the appellant provided in connection with the appeal and those recorded on the eBay advertisement. This issue is irrelevant to the issues raised on the appeal and we make no findings concerning it. Costs 1. No order for costs was made at first instance. The costs of this appeal are governed by s 60 of the NCAT Act, the effect of which is that the respondent must satisfy the Tribunal that there are special circumstances warranting an order for costs. Having regard to the non-exhaustive list of considerations set out in s 60(3), we are not satisfied there are any special considerations in this instance and, as a result, each party should bear their own costs of this appeal. 2. We have made directions in the event that either party seeks a different costs order. Orders 1. We make the following orders: 1. Leave to appeal refused. 2. Appeal dismissed. 3. Each party is to bear their own costs of the appeal. 4. In the event that an application for a different costs order is made, order 3 above ceases to have effect and the following orders apply: 1. Any application for a different costs order is to be filed and served, supported by evidence and submissions, within 14 days of the date of these orders. 2. Any evidence and submissions in response to the application for a different costs order are to be filed and served within 28 days of the date of these orders. 3. Any material in reply is to be filed and served within 35 days of the date of these orders. ********** 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: 24 January 2022