SMA Motors Pty Ltd t/as Autos Auctions v Smith [2022] NSWCATAP 282

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: SMA Motors Pty Ltd t/as Autos Auctions v Smith [2022] NSWCATAP 282 Hearing dates: 26 April 2022 Date of orders: 31 August 2022 Decision date: 31 August 2022 Jurisdiction: Appeal Panel Before: G Blake AM SC, Senior Member P H Molony, Senior Member Decision: (1) By consent the appeal is allowed only to the extent that amount the Tribunal ordered the appellant to pay the respondent in order 1 made 20 January 2022 is varied from $35,496 to $34,846. (2) Otherwise the appeal is dismissed. (3) Leave to appeal is refused. (4) The stay order made 16 February 2022 is discharged. (5) Order 2 of the orders made by the Tribunal on 20 January 2022, as varied on 16 February 2022, is further varied to read: "Simultaneously with order 1, the respondent, S.M.A Motors Pty Ltd trading as Auto Auctions, is to collect the Jeep from the applicant, at no charge to the applicant, and to do all things necessary to revest the title of the Jeep in the respondent, pursuant to the ACL." (6) Subject to the outcome of any costs application pursuant to order (7) below, the appellant is to pay the costs of the appeal of the respondent as agreed or assessed. (7) Any application for costs, together with submissions and evidence in support, are to be lodged with the Appeal Registry and given to the respondent within 14 days. (8) Any evidence and submissions in reply are to be given to the Appeal Registry and the appellant within 14 days thereafter. (9) Submissions on costs are not to exceed 2,000 words in length, be double spaced, and are to address whether the Appeal Panel can determine the issue of costs without a hearing on the basis of the materials provided by the parties. Catchwords: APPEAL – whether further evidence should be admitted on appeal – evidence relating to whether expert report relied on by the Tribunal had been served on the respondent in the original proceedings – evidence admitted on appeal CONSUMER LAW — Enforcement and remedies — Remedies relating to statutory guarantees — Action against supplier of goods – refund – whether a refund may be diminished or discounted for benefits the consumer may have gained while in possession of the goods Legislation Cited: Australian Consumer Law NSW, ss 54, 259, 260, 263 Civil and Administrative Tribunal Act 2013 (NSW), ss 60, 80, 81, Sch 4 cl 12 Civil and Administrative Tribunal Rules 2014 (NSW), rr 4, 13, 38, 38A Motor Dealers and Repairers Act 2013 (NSW) Cases Cited: Allen v TriCare (Hastings) Ltd [2017] NSWCATAP 25 Bartel v Ryan [2018] NSWCATAP 231 Bui v DB Homes Australia Pty Ltd [2017] NSWATAP 218 Collins v Urban [2014] NSWCATAP 17 Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 Juwayed & Anor v Marten [2022] SASC 6 Palm Homes Pty Ltd v Kay's Constructions Pty Ltd [2015] NSWCATAP 113 Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 Ros v Commissioner of Police [2020] NSWCATAP 70 Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121; [2000] HCA 18 Whitehaven Coal Mining Limited v Pain [2018] NSWCA 229 Yuen v Thom [2016] NSWCATAP 243 Texts Cited: Lexis Online, Cross on Evidence NCAT Procedural Direction 3 – Expert Evidence Category: Principal judgment Parties: SMA Motors Pty Ltd t/as Autos Auctions (Appellant) Lawrence Allan Smith (Respondent) Representation: Solicitors: DCE Lawyers (Appellant) Heffernan Legal (Respondent) File Number(s): 2022/00032941 Publication restriction: None Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 20 January 2022 Before: M McCue, General Member File Number(s): MV 21/10191