Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Hutchinson v Central Coast Automotive Pty Ltd [2022] NSWCATCD 123 Hearing dates: 6 May 2022 Date of orders: 1 August 2022 Decision date: 01 August 2022 Jurisdiction: Consumer and Commercial Division Before: J Searson, General Member Decision: (1) Central Coast Automotive Pty Limited t/as Central Coast LDV must immediately accept Todd Hutchinson's return to it of LDV G10 9 Seat people Mover 2020 NSW Registration number EJF 93D. (2) Central Coast Automotive Pty Limited t/as Central Coast LDV must pay Todd Hutchinson the sum of $36,100.01 on or before 29 August 2022. (3) Ateco Automotive Pty Limited t/as LDV Automotive Australia must pay Central Coast Automotive Pty Limited t/as Central Coast LDV the sum of on or before 29 August 2022. (4) Upon Central Coast Automotive Pty Limited t/as Central Coast LDV's performance of Orders 1 and 2 above Todd Hutchinson must do all things necessary to transfer unencumbered title in LDV G10 9 Seat people Mover 2020 NSW Registration number EJF 93D to Central Coast Automotive Pty Limited t/as Central Coast LDV within 7 days. (5) Melissa Hutchinson is removed as an applicant. Catchwords: CONSUMER LAW — consumer guarantees – major failure – rejection of goods – rejection period – liability of manufacturers — defective goods Legislation Cited: Australian Consumer Law NSW Fair Trading Act 1987 Cases Cited: Alliance Motor Auctions Pty Ltd v Saman [2018] NSWCATAP 137 Australian Knitting Mills Ltd v Grant (1933) 50 CLR 387 Avci v Inchurch Automotive Pty Ltd t/a Parramatta Motor Group [2019] NSWCATCD 39 Burton v Chad One Pty Ltd [2013] NSWDC 301 Cary Boyd v Agrison Pty Ltd [2014] VMC 23 Contact Energy Ltd v Jones [2009] 2 NZLR 830 Farm v Suffolk Agricultural Producers Association [1969] 2 AC 31 Matumaini v Automobile Industries Pty Ltd [2017] NSWCATAP 93 Medtel Pty Ltd v Courtney (2003) 130 FCR 182 Medtel Pty Ltd v Courtney [2003] FCAFC 51 Munday v Empire Auto Group Pty Ltd [2019] NSWCATAP 52 Rigby v LDV Automotive Pty Ltd & Anor [2021] QCAT 316 Safi v Heartland Motors Pty Ltd t/as Heartland Chrysler [2016] NSWCATAP 80 Volkswagen Group Australia Pty Ltd v Saad [2022] NSWCATAP 133 Category: Principal judgment Parties: Melissa Hutchinson (First Applicant) Todd Hutchinson (Second Applicant) Central Coast Automotive Pty Limited t/as Central Coast LDV (First Respondent) Ateco Automotive Pty Limited t/as LDV Automotive Australia (Second Respondent) Representation: First Applicant (self-represented) Second Applicant (self-represented) Clinch Long Woodbridge Lawyers (First Respondent) P Naziry (Second Respondent) File Number(s): MV 22/02148 Publication restriction: Nil REASONS FOR DECISION Background 1. In this matter the applicants are seeking orders for a repair, replacement or refund in relation to the purchase of a motor vehicle which the applicants claim to be not of acceptable quality and or unfit for purpose. 2. The first and second applicants opposed the application and the orders as sought by the applicants. Evidence 1. The applicants filed documentary evidence in support of their claim. These documents were entered into evidence and marked as "exhibit 1". The applicants relied upon a number of invoices and service dockets. Principally a service invoice of Central Coast Holden dated 5 July 2021 and Tax invoice of Express Lube dated 7 July 2021. The applicants also relied upon a report of Aaron McNab of MTA Pre Purchase Inspections dated 22 March 2022 ("McNab report"). 2. The first respondent did not file and serve any documents in accordance with the directions made by the Tribunal. However, the first respondent provided written submissions after the conclusion of the hearing. 3. The second respondent relied upon a bundle of documents which were entered into evidence and marked as "exhibit 2". The second respondent relied upon a number of service invoices and also the McNab report. The second respondent did not provide any further independent expert evidence in the form of their own expert report. 4. Both the applicants and the respondents attended the hearing on 6 May 2022 by telephone. Mr and Mrs Hutchinson gave affirmed evidence on behalf of the applicants. Mr Muller gave affirmed evidence on behalf of the first respondent. Ms Naziry gave affirmed evidence on behalf of the second respondent. 5. The parties were given the opportunity to cross examine each other. 6. All parties provided written submissions after the conclusion of the hearing. 7. The Tribunal has read and considered all of the documentary evidence and submissions of the parties. Jurisdiction 1. The Tribunal has jurisdiction to hear and determine this matter under Part 6A of the Fair Trading Act 1987 (NSW)("FT Act") FT Act (sections 79I and 79J) as an order is sought that requires the respondent to pay a specified sum of money subsection 79E(1)(a). 2. The applicant is a consumer pursuant to section 79D. The first respondent is a supplier of goods on the basis that it supplied the goods (being the vehicle) the subject of the dispute in the course of carrying on a business: sections 79D and 79G. The second respondent is not the direct supplier of the motor vehicle but it is an indirect supplier of the motor vehicle and is potentially liable to the applicant by virtue of subsection 79E(2). 3. The vehicle was supplied in NSW: section 79K(1)(a). The application has been made to the Tribunal within the three-year time limit required by section 79L. The claim falls within the monetary limit on the Tribunal's jurisdiction: subsection 79S. THE FACTS 1. The Tribunal makes the following findings of fact: 1. The applicant Todd Hutchinson purchased a new 2020 model LDV G10 9 seat people mover, NSW Registration number EJF 93D (the "vehicle") from the first respondent on or about 1 August 2020. 2. The applicant paid a total price of $36,100.01 for the vehicle paid by way of a trade in totalling $28,000 with the balance of $8100.01 paid by cash / bank cheque. 3. The applicants took delivery of the vehicle on or about 7 August 2020. 4. The first respondent is an authorised LDV dealer appointed by the second respondent pursuant to a franchise agreement. 5. The second respondent is the importer of LDV vehicles in Australia. 6. The vehicle was supplied with a manufacturer's warranty for 3 years and or 100,000 kilometres, whichever comes first. 7. The applicant began to experience issues with the vehicle starting on 7 August 2020. Those issues included at that time 1 key not operating and the electronic entertainment system had stopped working (including the reverse camera, screen and airplay). 8. On or about 30 October 2020 the vehicle experienced a seatbelt malfunction, with a warning light activated and beeping continuously. 9. On or about 9 November 2020 the applicant returned the vehicle to the first respondent for the above three issues to be repaired. Upon return of the vehicle the applicant noticed that the upholstery of the rear seats was starting to fall apart. 10. On or about 4 July 2021 that applicant noticed that the vehicle had a broken dipstick spraying oil over engine and causing smoke from under the bonnet. The applicant returned the vehicle to the respondent for repair on or about 5 July 2021. 11. On or about 7 July 2021 the applicant took the vehicle to another mechanic for a service. 12. On or about 7 October 2020 the applicant wrote to the first respondent seeking a replacement vehicle due to the issues that had been experienced with the vehicle. 13. The applicant experienced further issues with the vehicle on or about 6 November 2021 including a further oil leak and the sagging of roof lining which was obstructing vision when driving. 14. Further issues were experienced by the applicant at this time including: 1. Key previously malfunctioning was not working again 2. Faulty clock spring causing steering wheel to squeak when turned. 1. The applicant returned the vehicle to the first respondent for repair of the above issues on or about 9 November 2021. Parts were required to be ordered in to fix the issues and the vehicle was retuned so that these parts could be fitted on or about 2 December 2021. 2. The applicant filed this application before the Tribunal on 19 January 2022. 3. On or about 18 March 2022 the applicant returned the vehicle to the first respondent due to further issues including a repair of the rubber seal around the front passenger window and a tyre pressure indicator system fault. Additionally, the vehicle was now idling and shaking on start-up and driving. the law 1. The Australian Consumer Law NSW ("ACL") is part of the law of NSW, and may be used in deciding a consumer claim under Part 6A of the FT Act by virtue of section 28 of the FT Act. It contains, in Chapter 3, a number of guarantees by suppliers of goods and services that are implied into consumer transactions. These include in relation to the supply of goods, a guarantee as to acceptable quality and fitness for purpose. 2. The Tribunal's jurisdiction under the ACL is not entirely equivalent to its jurisdiction under Part 6A of the FT Act. However, there is no real difference in the jurisdiction for the purposes of these proceedings. 3. 16 The applicant appears to allege that there has been a "major failure" in relation to the consumer guarantees under the ACL as per section 260. It appears that the applicant is relying on section 54 in relation to the guarantee as to "acceptable quality". 4. 17 In section 54 of the ACL it states that if a person supplies goods in trade and commerce (and not by auction) there is a guarantee as to acceptable quality: sub-section 54(1). Goods are of acceptable quality if they are fit for all the purposes for which goods of that kind are commonly supplied, they are acceptable in appearance and finish, and are free from defects, safe and durable: subsection 54(2)(a) to (e). 5. 18 The test in relation to "acceptable quality" is an objective test. It is what a "reasonable consumer" fully acquainted with the state and condition of the goods (including any hidden defects of the goods) would see as acceptable having regard to the nature of the goods, the price paid for them, any statements made about the goods in advertising materials, any representations made about the goods by the supplier or manufacturer of the goods, and any other relevant circumstances relating to the supply of the goods: subsection 54(3). 6. Subsections 54(4) to (7) of the ACL set out the exceptions where a supplier will not be liable for the supply of goods that are not of acceptable quality. None of these exceptions are relevant in the current matter. 7. As noted in the matter of Avci v Inchurch Automotive Pty Ltd t/a Parramatta Motor Group [2019] NSWCATCD 39 at 44: "The temporal focus of section 54 is the time the goods are supplied, informed by what is known of their subsequent condition and by what it was reasonable to expect from the type of goods in issue: see generally, Medtel Pty Ltd v Courtney [2003] FCAFC 51 per Moore J at [40], Branson J at [70], and Jacobson J agreeing with Branson J at [81]. In this respect, it falls to the applicant to prove on the balance of probabilities that the motor vehicle was not of acceptable quality at the time of supply having regard to what it was reasonable to expect in terms of its future function at that time". 1. Section 55 of the ACL sets out the guarantees as to fitness for purpose and relevantly provides as follows: Guarantee as to fitness for any disclosed purpose etc. (1) If: (a) a person (the supplier ) supplies, in trade or commerce, goods to a consumer; and (b) the supply does not occur by way of sale by auction; there is a guarantee that the goods are reasonably fit for any disclosed purpose, and for any purpose for which the supplier represents that they are reasonably fit. (2) A disclosed purpose is a particular purpose (whether or not that purpose is a purpose for which the goods are commonly supplied) for which the goods are being acquired by the consumer and that: (a) the consumer makes known, expressly or by implication, to: (i) the supplier; or (ii) a person by whom any prior negotiations or arrangements in relation to the acquisition of the goods were conducted or made; or (b) the consumer makes known to the manufacturer of the goods either directly or through the supplier or the person referred to in paragraph (a)(ii). 1. In section 259 of the ACL the remedies that are available to a consumer where a supplier of goods has failed to comply with the guarantee as to acceptable quality and fitness for purpose are set out. 2. If the failure to comply is a "major failure", the consumer may, subject to section 262 of the ACL, notify the supplier that the consumer rejects the goods and of the ground or grounds for the rejection: subsection 259(3)(a). The consumer may also, by action against the supplier, recover damages for any loss or damage suffered by the consumer because of the failure to comply with the guarantee if it was reasonably foreseeable that the consumer would suffer such loss or damage as a result of such failure: subsection 54(4). 3. Section 260 of the ACL sets out the circumstances where a failure to comply with the guarantee as to acceptable quality will be a "major failure" Relevantly, there will be a major failure if the goods would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of the failure (subsection 260(a)) or the goods are substantially unfit for a purpose for which goods of the same kind are commonly supplied and they cannot, easily and within a reasonable time, be remedied to make them fit for such a purpose (subsection 260(d)) or the goods are not of acceptable quality because they are unsafe (subsection 260(e)). 4. In Safi v Heartland Motors Pty Ltd t/as Heartland Chrysler [2016] NSWCATAP 80 ("Safi") the Appeal Panel of NCAT set out a helpful summary of the approach and principles to be applied in the construction of section 260: 85 Section 260 of the ACL (NSW) sets out five measures against which non-compliance is to be assessed for the purposes of determining whether there is a "major failure". As observed by the Magistrates' Court of Victoria in Cary Boyd v Agrison Pty Ltd [2014] VMC 23 at [50], for there to be a major failure it was not necessary for the claimant to establish each of the matters set out in s 260, establishing one is sufficient. This is clear from the drafting of the section. 86 The first measure, under s 260(a), is whether "the goods would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of the failure". 87 Subsection 260(a) applies to a generic "reasonable consumer" who acquires goods. It has the broadest and most general application. In contrast, s 260(d), where goods are unfit for a disclosed purpose, only applies when there have been specific negotiations about purpose between a consumer and a supplier. Similarly, s 260(b) only applies where goods have been acquired by description, sample or as a demonstration model. 88 Subsections 260(c) and 260(e), namely where goods are "substantially unfit" or where they are "unsafe", direct specific attention to the nature and extent of the failure. Whereas s 260(a) directs attention to the mind of the reasonable consumer, although the nature and extent of the failure is relevant in a contextual sense. There is an overlap between ss 260(a), 260(c), and 260(e). For instance, if it is established that goods are unfit for the purpose for which goods of the same kind are commonly supplied and that they cannot be remedied easily or in a reasonable time, it follows that a reasonable consumer, fully acquainted with this fact, would not have acquired the goods. The same can be said of goods that are found to be unsafe. However, the reverse is not true. Subsections (c) and (e) require proof of specific factual matters in relation to the nature of the failure in the goods, subsection (a) does not. 89 Subsections (a), (c) and (e) of s 260 are closely linked to the consumer guarantee of "acceptable quality" under s 54. Relevantly, s 54 requires that, among other things, goods be "fit for all purposes which goods of that kind are commonly used" and "safe" which is to be adjudged by the "reasonable consumer fully acquainted with the state and condition of the goods". As such, the inquiry as to whether goods comply with the guarantee of acceptable quality and any findings about this matter will be relevant to the inquiry about whether such failure is a major failure for the purposes of s 260. 1. The Appeal Panel in the same matter at [101] and [102] set out the following principles to be used in determining whether there is a major failure to comply with the guarantee as to acceptable quality: 101 1. A major failure may be constituted by one defect or a series of specific or individual defects which, when taken as a whole, constitute a major failure; 2. The test of whether goods "would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of the failure" is an objective one. 3. A "reasonable consumer" would expect teething problems, even in a new vehicle. 4. The question to ask is whether the reasonable consumer, given the option of acquiring particular good or alternatively purchasing either nothing or a different model, would not have acquired the good. 5. Defects which result in goods failing to comply with the guarantee of acceptable quality will not invariably be a major failure and it will depend on the nature and extent of the failure; and 6. The cost of repair, in proportion to the purchase price, and the question of whether the defects can be remedied easily and in a timely manner are relevant considerations. 102 In our view, the purchase price for the goods and the nature of the defect are also relevant considerations for a "reasonable consumer". 1. Section 261 of the ACL sets out how suppliers may remedy a failure to comply with a consumer guarantee. If, under section 259(2)(a), a consumer requires a supplier of goods to remedy a failure to comply with a guarantee referred to in section 259(1)(b), the supplier may comply with the requirement, by repairing the goods, or by replacing the goods with goods of an identical type, or by refunding any money paid by the consumer for the goods and an amount that is equal to the value of any other consideration provided by the consumer for the goods. 2. However, section 262 of the ACL limits the circumstances in which a consumer is entitled to reject goods. A consumer is not entitled to notify a supplier of goods that the consumer rejects goods if, relevantly, the goods were damaged after being delivered to the consumer for reasons not related to their state or condition at the time of supply: section 262(1)(c). CONSIDERATION 1. In order to determine this matter, and having regard to the application, the facts and the law, the Tribunal must answer the following: 1. Did the first respondent fail to comply with the guarantee as to acceptable quality in the supply of the vehicle to the applicant? 2. If so, was this a major failure? 3. If so, was the applicant entitled to reject the vehicle? 4. What remedy is the applicant entitled to? 5. What orders are necessary to do justice between the parties? 6. What action does the applicant have against the second respondent? GUARANTEE AS TO ACCEPTABLE QUALITY 1. The first consideration is whether there has been a breach of the guarantee as to acceptable quality in the supply of goods as per s 54 of the ACL. The applicant contends that the respondent(s) have breached their obligations in this regard due to the multiple issues with the vehicle over a relatively should period of time. The applicant notes that they had up to 12 warranty repairs in the space of 18 months when the vehicle had travelled approximately 15,000 kilometres. 2. As noted in the matter of Rigby v LDV Automotive Pty Ltd & Anor [2021] QCAT 316 at 7: The time at which goods are to be of acceptable quality is the time at which the goods are supplied to the consumer: Medtel Pty Ltd v Courtney (2003) 130 FCR 182 at [64] and [70]. However, information available after the time of supply may be taken into account in deciding whether the goods were of acceptable quality at the time of supply. 1. In the matter of Burton v Chad One Pty Ltd [2013] NSWDC 301 at [38] to [42] a summary of the approach and the principles to be applied in the construction of section 54 were set out as follows: 38 The decision of the Auckland Motor Vehicle Disputes Tribunal in Witton v Taupo Motor Company Limited 29 November 2010 contains a helpful analysis of the equivalent New Zealand provision of s.54: "The guarantee of acceptable quality contained in s.54 is in three parts. A set of quality elements contained in s.54(2)(a) to (e), a reasonable consumer test which applies a consumer's objective evaluation of those quality elements, and a set of factors in s.54(3)(a) to (e) which are to be taken into account by the reasonable [consumer]." 39 The New Zealand High Court in Contact Energy Ltd v Jones [2009] 2 NZLR 830 at [86] and following, said: "The quality standard is set by reference to the expectations of a reasonable consumer "fully acquainted with the state and condition of the goods, including any hidden defects." The phrase derives from s 16(b) of the Sale of Goods Act 1908, which established an exception to the warranty of merchantable quality of goods bought by description from sellers dealing in goods of that description. The warranty does not apply where the buyer had examined the goods, as regards defects which such examination ought to have revealed." 40 The court referred to Australian Knitting Mills Ltd v Grant (1933) 50 CLR 387 and continued at [88]: "...s 7(1)(a) of the Consumer Guarantees Act [the equivalent of s.54 of the ACL] requires that quality be assessed by reference not only to defects and price but also fitness for purpose. Fitness for purpose is assessed by reference to all purposes for which the goods are commonly supplied, so it does not suffice if the goods are suitable for any one or more of their common purposes (compare Hardwick Game Farm v Suffolk Agricultural Producers Association [1969] 2 AC 31). But it is not an absolute requirement, in that the Act does not positively require that the goods be fit for all common purposes." 41 At [94] the court said: "The hypothetical reasonable consumer is taken to be fully acquainted with the "state and condition" of the goods, including any hidden defects. Less obviously, he or she must also be taken to know the nature of the goods, all relevant circumstances of supply and any representations made about the goods by the manufacturer or supplier, so far as relevant. That is so because it is the hypothetical consumer who determines by reference to those considerations whether the goods are acceptable. The test is objective, but it is applied to the particular goods and circumstances. Acceptable quality is a composite and context-specific attribute. I adopt the observations of Ormrod LJ, speaking of merchantable quality, in Cehave NV v Bremer Handelsgesellschaft mbH at page 80: 'It is a composite quality comprising elements of description, purpose, condition and price. The relative significance of each of these elements will vary from case to case according to the nature of the goods in question and the characteristics of the market which exists for them. This may explain why the formulations of the test of merchantable quality vary so much from case to case.'" 42 Applying that to the present situation, it is apparent that such authority as there is on the NZ equivalent provision of s.54(3) makes it clear that all of the matters in that sub-section are to be considered when determining whether or not the goods were of acceptable quality. The use of the conjunctive "and" within the section supports this interpretation. 1. Equally applicable to the present matter is the following passage from Member French's decision in Avci v Inchurch Automotive Pty Ltd t/a Parramatta Motor Group [2019] NSWCATCD 39 at 44: "The temporal focus of section 54 is the time the goods are supplied, informed by what is known of their subsequent condition and by what it was reasonable to expect from the type of goods in issue: see generally, Medtel Pty Ltd v Courtney [2003] FCAFC 51 per Moore J at [40], Branson J at [70], and Jacobson J agreeing with Branson J at [81]. In this respect, it falls to the applicant to prove on the balance of probabilities that the motor vehicle was not of acceptable quality at the time of supply having regard to what it was reasonable to expect in terms of its future function at that time. To the extent that the applicant contends that this was because the motor vehicle was not free from defects (subsection 54(2)(c)) she must establish that there was an actual or latent defect in the motor vehicle at the time of supply which rendered it of unacceptable quality: Alliance Motor Auctions Pty Ltd v Saman [2018] NSWCATAP 137 at [14] to [23]. However, it is not necessary for the applicant to prove the precise nature of the defect: Matumaini v Automobile Industries Pty Ltd [2017] NSWCATAP 93 at [73]; Alliance Motor Auctions Pty Ltd v Saman [2018] NSWCATAP 137 at [23]; Munday v Empire Auto Group Pty Ltd [2019] NSWCATAP 52 at [9]". 1. In the present matter the Tribunal is satisfied of a breach of sections 54(2)(a), 54(2)(c) and 54(2)(e) of the ACL. The evidence of the applicants was that they had purchased the vehicle new for $36,100.01. The issues experienced by the applicants with the vehicle started on the date of supply of the vehicle on 7 August 2020, initially problems with a key and the infotainment unit. Further issues with the vehicle included issues with seatbelts, poor quality upholstery on the seats, roof lining sagging, oil leaks and more recently emerging engine problems. The vehicle has had 14 warranty repairs in the space of 18 months when the vehicle had travelled approximately 15,000kms. Any reasonable consumer would expect some teething problems with a new vehicle however, they would not expect the number and extent of the problems that have been experienced by the applicants in relation to the vehicle. It does not appear that the vehicle is free from defects, nor durable based on the evidence. 2. Having made a finding that the vehicle has failed to comply with the guarantee as to acceptable quality at the time of supply the Tribunal then needs to consider whether the failure to comply was a "major failure". 3. The first respondent submitted that the vehicle could not be considered to be off unacceptable quality because "All issues raised with the vehicle have now been rectified". The Tribunal does not agree with this submission. It appears that there are still outstanding issues in relation to the engine which have not yet been resolved. MAJOR FAILURE? 1. Having regard to the evidence before it the Tribunal is satisfied that the failure to comply with the guarantee as to acceptable quality is a major failure. 2. Having regard to the principles in Safi it appears that there have been a number of defects in the vehicle since the day it was delivered. The vehicle has been returned for 14 warranty repairs in the space of 18 months. Any reasonable consumer if given the option of buying this vehicle, or alternatively purchasing either nothing or a different model, would not have acquired the vehicle. This is due to the nature and extent of the issues experienced by the applicants. As noted above in Safi one defect or a series of specific or individual defects which, when taken as a whole may constitute a major failure. 3. As noted in the matter of Matumaini v Automobile Industries Pty Ltd [2017] NSWCATAP 93 at [73]: "The question which the Tribunal had to consider and answer was whether, at the time of the sale, the vehicle was of acceptable quality as that phrase is defined in s 54 (2) of the ACL NSW. In other words it was not necessary for the Appellant to prove that at the time of the sale, there was a particular identified defect which caused the vehicle not to be of an acceptable standard". 1. In the present matter it appears that there are now problems emerging with the engine, these problems are not yet fully diagnosed however the applicant does not need to prove the precise nature of the defect in order for the vehicle to be considered to be of an unacceptable standard. 2. Additionally, the respondents have been given a number of opportunities to make good the defects with the vehicle over the space of the past 18 months with the vehicle having had 14 warranty repairs over that time as well as being taken to other mechanics. Despite this, issues have remained unresolved and now further problems are being experienced with the vehicle. It therefore appears that the problems cannot be easily and quickly remedied. REJECTION OF THE VEHICLE 1. The applicant sent an email to the respondent on or about 7 October 2020 purporting to reject the vehicle and seeking a replacement vehicle. The applicant's email ended with the following: "We would like a replacement of our vehicle with a brand New LDV G10 People Mover. We have been patient long enough and will go further with fair trading if this is not resolved by the 16/10/20. Our current car is not fit for its intended purposes and we have given you more than a reasonable time frame to have the issue rectified. Starting the process again by conducting another TR on the car is not acceptable". 1. It appears therefore that the applicants had notified the first respondent that they rejected the vehicle and stating the grounds of which they rejected it. Further, this was done within the rejection period. 2. The rejection prior had not ended because the applicants had rejected the vehicle just over two months after taking delivery of it. At that point in time the vehicle had limited usage. The applicants were entitled to expert several years of trouble-free operation of the vehicle, given that it was purchased new for a price of over $36,000.00 and had been subjected to limited use due to the various COVID lockdowns. 3. The second respondent submitted that the applicants were not entitled to rely upon their rejection of the vehicle as set out in their email of 7 October 2020 stating: "However, the Applicant thereafter continued to use the vehicle for another 18 months after this time. Therefore, the notice dated 7 October 2020 cannot serve as the notice of rejection". 1. The Tribunal does not accept this submission. As noted in the matter of Avci at [77]: "By operation of s 263 of the ACL the applicant is therefore entitled to return the motor vehicle to the first respondent and the first respondent must accept its return". 1. The fact that the first respondent did not accept the return of the vehicle does not disentitle the applicants to the remedy that they are now seeking. 2. The Tribunal also does not agree with the second respondent's submission that the applicant had no ground to reject the vehicle. APPROPRIATE REMEDY 1. The first and second respondents submission that the applicants were not entitled to a refund due to the vehicle being repaired and or further repaired are misconceived. As noted in Avci at [78]: "The terms of section 259(3)(a) and 263 of the ACL are very clear. If there has been a major failure to comply with the guarantee of acceptable quality, the consumer may, at the consumer's election, reject the goods. If a consumer elects to reject the goods, they must be returned to the supplier (subject to exceptions which do not apply in this case), the supplier must accept the return of the goods, and (in the circumstances of this case) the supplier must refund to the consumer the purchase price they paid for the goods. The right of a supplier to repair goods, as an alternative to accepting their return and refunding the purchase price only arises under sections 259(2) and 261 of the ACL where the failure to comply with the guarantee as to acceptable quality is not a major failure". 1. In the present matter the applicant has established on the evidence that the first and second respondent have failed to comply with the guarantee as to acceptable quality when the vehicle was supplied. Further, that this failure was a major failure. They have also established on their evidence that they notified the first respondent that they rejected the vehicle, and that they did this within the rejection period. 2. The Tribunal considers that by virtue of s 263 of the ACL therefore that the applicant is entitled to return the vehicle to the first respondent and the first respondent must accept its return. The first respondent must also refund to the applicant the purchase price that was paid for the motor vehicle of $36,100.01. 3. The second respondent sought for the application against it to be dismissed as it considered that the applicant had not established any breach of the consumer guarantees by the second respondent. Further that the applicant had not provided any evidence to satisfy the requirements of s 272 of the ACL. 4. As noted in the matter of Volkswagen Group Australia Pty Ltd v Saad [2022] NSWCATAP 133 at [133 (3)-(4)]: "The remedies set out in Division 1 of Part 5-4 of the ACL apply to suppliers of goods but not manufacturers. …… Division 2 of Part 5-4 of the ACL sets out the remedial regime available against manufacturers where there has been a breach of the consumer guarantees relating to goods". 1. In the present matter the Tribunal agrees with the submission of the second respondent that the applicant has failed to provide any evidence of a claim pursuant to sections 271 and 272 of the ACL for "damages". 2. However, the Tribunal finds that the second respondent is also liable for a breach of s 54 of the ACL and although the second respondent did not directly supply the vehicle to the applicant, they are liable to indemnify the first applicant by virtue of s 274 of the ACL. 3. It appears that the first respondent's contravention of s 54 was because of manufacturing defects, (such as that which was noted on the service tax invoice dated 5 July 2021 as "poor manufacturing causing abnormal fracture") for which the second respondent is ultimately liable, rather than conduct for which the first respondent was directly responsible. 4. It appears that both the first and second respondent have acted together in refusing to provide the applicant with the remedy that was sought. Both had refused to replace or to refund the vehicle. The Tribunal is therefore satisfied that it is appropriate for order that the second respondent is to pay to the first respondent the vehicle's purchase price so as to indemnify it against the amount it must pay the applicant. 5. Finally, the Tribunal notes that the contract for the sale of the motor vehicle is in the name of Todd Christopher Hutchinson only and does not include Melissa Hutchinson. Therefore, the Tribunal will amend the name of the applicant to remove Melissa Hutchinson as an applicant in this matter. CONCLUSION 1. For the reasons outlined above the Tribunal makes the following orders: 1. Central Coast Automotive Pty Limited t/as Central Coast LDV must immediately accept Todd Hutchinson's return to it of LDV G10 9 Seat people Mover 2020 NSW Registration number EJF 93D. 2. Central Coast Automotive Pty Limited t/as Central Coast LDV must pay Todd Hutchinson the sum of $36, 100.01 on or before 29 August 2022. 3. Ateco Automotive Pty Limited t/as LDV Automotive Australia must pay Central Coast Automotive Pty Limited t/as Central Coast LDV the sum of on or before 29 August 2022. 4. Upon Central Coast Automotive Pty Limited t/as Central Coast LDV's performance of Orders 1 and 2 above Todd Hutchinson must do all things necessary to transfer unencumbered title in LDV G10 9 Seat people Mover 2020 NSW Registration number EJF 93D to Central Coast Automotive Pty Limited t/as Central Coast LDV within 7 days. 5. Melissa Hutchinson is removed as an applicant. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar 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 Amendments 04 October 2023 - Formatting amendments. 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: 04 October 2023