Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Campbell & Campbell v Manning Valley Automotive Pty Ltd [2022] NSWCATCD 211 Hearing dates: 2 December 2022 Date of orders: 21 December 2022 Decision date: 21 December 2022 Jurisdiction: Consumer and Commercial Division Before: J Drennan, General Member Decision: The application is dismissed. Catchwords: CONSUMER LAW — Consumer guarantees — Supply of goods — Guarantee relating to supply by description Legislation Cited: Motor Dealers and Repairers Act 2013 (NSW) Fair Trading Act 1987 (NSW) The Australian Consumer Law Category: Principal judgment Parties: Graham & Robert Campbell (Applicants) Manning Valley Automotive Pty Ltd (Respondents) Representation: The applicants were represented by Mr Graham Campbell. The respondent was represented by Mr Brooks & Mr Miedecke File Number(s): MV 22/31560 Publication restriction: Unrestricted REASONS FOR DECISION Background 1. The applicant Robert Campbell bought a second-hand vehicle from the respondent earlier this year (the purchase financed by his son Mr Graham Campbell). Mr Graham Campbell says that the salesman misled him into believing that the car only had two marks on it that would be able to be buffed out. Graham Campbell says that the car has numerous scratches and dents and the clear coat on the roof needs repair. He said that he and his father did not reject the vehicle at any time and they do not want a refund. Mr Robert Campbell is seeking the cost to repair the body work. 2. The respondent's, Manning Valley Automotive Pty Limited deny that they told the applicants that the vehicle had only two buffable marks. They say that when the dispute arose, they offered a full refund on three separate occasions to avoid litigation. The refund offer was not accepted by the applicants. Further, the respondents say that they told Graham Campbell prior to the sale, that - as his father (Robert) and his brother (Ian) were at the yard looking at the vehicle that they would be better placed to judge its condition (the salesperson was working away from the yard). Agreed Facts 1. The following facts are agreed by both parties:- 1. The vehicle in question was purchased on 14 February 2022. 2. It is a used red Toyota Corolla ZRE152R, registration number BPU36J. It is a and was sold with 118655 Kilometres on the odometer. 3. The purchase price was $11,500.00 (inclusive of GST). 4. Mr Robert Campbell (father) and his other son (Ian) inspected the vehicle on the Sunday before the purchase, at the motor dealers yard. 5. Mr Graham Campbell 'wet sanded' the vehicle and forwarded his invoice for these works to the Respondent. This wet sanding occurred on or before 1 March 2022. This invoice has not been paid. 6. Mr Campbells expert report (as opposed to the invoices for work) was obtained on 30 August 2022. The Evidence 1. The applicant provides:- 1. Photographs that are undated. 2. Statements by Graham Campbell and Tammy Lee Campbell. There are no statements of Mr Robert or Mr Ian Campbell. 3. Chronology. 4. The contract and Motor Dealers Notice. 5. Quotes for repair from Forster Smash repairs dated 8 July 2022 and from Urunga Smash repairs dated 11 August 2022. 6. Inspection report of Great Lakes Panel & Paint 30 August 2022. 7. Submission dated 18 October 2022. 8. Section 68 of the Motor Dealers and Repairers Act 2013. 9. A copy of Jordon Townsends Statement. 10. A DVD that I am unable to view. 1. The respondents provided the documents that are noted in their folder in the index on page 2. Consideration and Findings Jurisdiction 1. I have jurisdiction to hear this claim brought by Mr Robert Campbell which is brought pursuant to the Australian Consumer Law 2010 (NSW). Part 6A of the Fair Trading Act 1987 (NSW) gives the Tribunal jurisdiction to hear and determine "consumer claims", as defined in s 79E of the Act. The jurisdiction of the Tribunal was not in dispute. I allowed Mr Graham Campbell to remain as an applicant even though he did not purchase the vehicle, here merely funded the purchase. I allowed Mr Graham Campbell to present his father's case. Consideration 1. Much of the factual scenario in this matter is not in dispute. Mr Graham Campbell did fund the purchase of this vehicle for his father. He provides evidence that he personally was told that the vehicle had only two marks that were able to be buffed out. He also says that the internet photos of the vehicle (that he saw prior to purchase) are misleading as the photos are taken under a dark awning roof. He asserts that the Vehicle purchased needs panel work defects to be repaired in the sum of $9050.91. 2. There is a statement from Jordan Townsend - the salesman who had the telephone conversation with Mr Graham Campbell. 3. I consider it is possible that the salesperson told Mr Graham Campbell that there are two or 'a couple' of marks on the vehicle that they will buff out. The representations relating to the sale of the vehicle however are contained in more than the one telephone conversation. I accept the statements of Mr Graham Campbell and his wife. I consider that Mr Townsend would have these conversations with prospective purchasers every day as he is a car salesman. I do not expect that he would remember every facet of every conversation. 4. I find that on the balance he would have indicated that the person looking directly at the vehicle would be best placed to make an assessment of the vehicle. Section 68 Dealer guarantee for defective vehicles (1) Dealer guarantee A motor dealer must, at the motor dealer's own expense, repair or make good a motor vehicle sold by the motor dealer, if it is a defective vehicle, so as to place the motor vehicle in a reasonable condition having regard to its age. Note— Any repairs must be carried out by the holder of a tradesperson's certificate (see section 16). (2) The following persons have the benefit of the dealer guarantee— (a) the purchaser of the motor vehicle from the motor dealer, (b) any subsequent owner of the motor vehicle, but only if the motor vehicle was not a second-hand motor vehicle when sold by the motor dealer liable for the dealer guarantee. 1. I find that Mr Graham Campbell and Mrs Campbell were not present on the day of the purchase or at the time when the vehicle was inspected and ultimately collected. I find that Mr Robert Campbell is the purchaser of the motor vehicle and as such he has the benefit of the motor dealer and consumer guarantees. 2. Mr Robert Graham has chosen not to provide me with any evidence of his negotiations and transactions, nor has he provided any evidence as to the condition of the vehicle on the day it was purchased. 3. I cannot therefore make a finding that the applicant Mr Robert Graham has been misled. There is in any event no corroborating evidence that the vehicle had more than two or a couple of marks upon it, when it was purchased. 4. There are a numerous reasons why I cannot find in favour of the applicants and I make the following findings to support this decision:- 1. Mr Campbell Senior and his son Ian Campbell inspected the vehicle at the yard. This inspection would on the balance, in my view have enabled them to see any of the damages that Mr Graham Campbell complains about- see comments regarding this below under the heading 'ACL'. 2. Mr Jordon Townsend in his statement remembers that Mr Graham Campbell called his father when negotiating the sale to ascertain if his father was happy with the car and said that Mr graham Campbell told him that his father was happy with the vehicle. I accept this evidence. 3. Mr Graham Campbell funded the purchase but is not the purchaser of the vehicle. Robert Campbell is the purchaser – see the contract for sale. Despite this important fact, Mr Robert Campbell gives no evidence to this Tribunal about what he saw when he picked up the vehicle, nor does he provide any evidence that the vehicle was misrepresented to him. 4. Mr Graham Campbell has not provided a statement from his father or a statement from his brother. Absent this evidence I am unable to determine what they saw, nor do I have any evidence as to their negotiations or conversations with the seller. I do not understand why this evidence was not provided. 5. Mr Robert Campbell signed the checklist for the vehicle on 14 February 2022. It is signed by Mr Robert Campbell and states that he examined the vehicle with the salesperson and that the finish of the exterior was checked. Mr Robert Campbell has not provided a statement or any evidence in this matter to contradict this fact. 6. I do not accept the hear-say evidence of Mr Graham Campbell that his father had documents placed in front of him which he did not read and felt pressured to sign. Mr Robert Campbell's other son was present also and I do not have any evidence from him about this alleged behaviour of the respondent. I am not provided with any corroborating evidence that this occurred. 7. I have no knowledge of any power of attorney given by Mr Robert Campbell to Mr Graham Campbell, that exists or existed at the time of the purchase. 8. Mr Graham Campbell, upon seeing the vehicle a few days after the purchase told me that he spent two days 'wet sanding' the vehicle on or before 1 March 2022 to see if he could buff out the issues. I accept that Mr Graham Campbell may have significant experience in these matters however his evidence about the need for the wet sanding and the effect of the wet sanding that he has performed on the entirety of the paintwork is not independent evidence and as such carries little if no weight. 9. There are no photographs provided to me which demonstrate that the vehicle was sold with anything other than the types of marks that are attributable to a second hand vehicle that has spent some 12 years on the road. 10. The photographs numbered 1 to 11 appear to have been taken in the motor dealer's yard. They do not show any damage of the type that Mr Graham Campbell complains. There is in my view ample light- Photo 11 of the roof is very illuminated -so much so- that it shows the reflection of the tree above. 11. The various invoices and reports - confirm at the earliest - that the experts did not inspect the vehicle at least up until 8 July 2022 (Forster Smash repairers). This is some 5 months after the purchase. I have no evidence as to what happened in that 5 month period except that Mr Graham Campbell wet sanded the vehicle. 12. I accept the expert evidence from the smash repairers however this does not assist me to assess the condition of the vehicle at the time of the sale that would enable me to make a finding that the purchaser was misled. None of the repairers say that they saw the condition of the vehicle at the time of the purchase or soon after and certainly not before Mr Graham Campbell performed his sanding works. 13. Mr Graham Campbell states in his evidence in a statement made on 7 September 2022 that "post purchase the vehicle showed several areas of the paintwork to be in need of repair". He does not mention the clear coat or the rear bumper bar. 14. Mr Perrim from Great lakes says that (as at 30 August 2022, 7 months after the purchase) 'there are scratches or chips on all of the panels, the Corolla's roofs clear coat has started to break down as seen in the photos, the rear bumper bar has damage around it, stress cracks on the top edge'. Mr Perrim does not say that these would have been evident at the time of the purchase, nor does he say why the clear coat may have broken down. 15. On Mr Graham Campbells invoice, dated 1 March 2022 Mr Graham Campbell mentions the paintworks with no mention of a rear bumper issue. 16. The photographs that are provided numbered 12 to 30 appear to be taken elsewhere. It is not clear to me whether these photographs are taken at Mr Graham Campbells home or at the yard when bought. I do not consider that they demonstrate marks of the type that Mr Graham Campbell complains of other than what would be expected wear for a second hand vehicle of this age. 17. The second lot of photographs are numbered 1-9 – indicated to be by 'Urunga Smash' – they are not attached to any expert report. The next group of photos in this bundle are 1-15 indicated to be by 'Great lakes'– they are not attached to any expert report. These photographs appear to have been compiled by a person/s unknown. In any event they are not attached to the experts reports and no commentary is given by either expert. Notwithstanding this I have already found that the experts looked at the vehicle many months after the purchase and certainly after Mr Graham Campbell performed his 'wet sanding' works to the vehicle. They are of no probative value. 18. In an email to Evan Brawn (employee of the respondent) dated 11 March 2022 Mr Graham Campbell stated that "I told you I don't play games all you had to do was pay my account and all this would have been over". With this statement I do not understand why the claim was not for the wet sanding that he performed and not for the current claim which is $9050.91 for a total re-spray of every panel. 19. I do not know if Mr Graham Campbell told the three repairers about his efforts in wet sanding the vehicle. There is no comment by any repairer that can verify the condition of the vehicle when it was sold. I find that they have been asked to assess its condition after it was worked on by Mr Campbell – the chronology supports this fact. 20. There is simply no expert evidence that the vehicle had the defects asserted by Mr Graham Campbell at the time of the sale. 21. Mr Graham Campbells invoice rendered on 1 March 2022 is for '2 days of wet sanding the whole car Another 3rd day of re buffing of paint work'. 22. This invoice confirms that Mr Graham Campbell did these works. 23. The detail of this vehicle is includes that it is a ZR Model. The applicant does not explain to me the difference between the ZR and other Conquests. 24. The comparison picture provided is for a '4cl, 1.8ltr, regular unleaded Pe' [the rest is cut off the photo] model. The two other valuations are similar and have the same lack of detail. I do not know how the ZR component would affect the price, however I do know from my own experience that various models can attract varying prices. I am not given the odometer information for any of the three vehicles. I find that they are of no probative value. 25. There is no independent valuation of the vehicle and its sale price that assist me with when looking at comparisons. 26. The vehicle was sold with a Form 5 notice that the dealer guarantee under the Motor Dealers and Repairers Act does not apply. The Form 5 declaration is signed by Mr Robert Campbell. This does not however mean that the ACL does not apply. This is noted in the Form 5. The ACL 1. Section 54 is as follows:- 54 Guarantee as to acceptable quality (1) If: (a) a person 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 of acceptable quality. (2) Goods are of acceptable quality if they are as: (a) fit for all the purposes for which goods of that kind are commonly supplied; and (b) acceptable in appearance and finish; and (c) free from defects; and (d) safe; and (e) durable; as a reasonable consumer fully acquainted with the state and condition of the goods (including any hidden defects of the goods), would regard as acceptable having regard to the matters in subsection (3). (3) The matters for the purposes of subsection (2) are: (a) the nature of the goods; and (b) the price of the goods (if relevant); and (c) any statements made about the goods on any packaging or label on the goods; and (d) any representation made about the goods by the supplier or manufacturer of the goods; and (e) any other relevant circumstances relating to the supply of the goods. (4) If: (a) goods supplied to a consumer are not of acceptable quality; and (b) the only reason or reasons why they are not of acceptable quality were specifically drawn to the consumer's attention before the consumer agreed to the supply; the goods are taken to be of acceptable quality. (5) If: (a) goods are displayed for sale or hire; and (b) the goods would not be of acceptable quality if they were supplied to a consumer; the reason or reasons why they are not of acceptable quality are taken, for the purposes of subsection (4), to have been specifically drawn to a consumer's attention if those reasons were disclosed on a written notice that was displayed with the goods and that was transparent. (6) Goods do not fail to be of acceptable quality if: (a) the consumer to whom they are supplied causes them to become of unacceptable quality, or fails to take reasonable steps to prevent them from becoming of unacceptable quality; and (b) they are damaged by abnormal use. (7) Goods do not fail to be of acceptable quality if: (a) the consumer acquiring the goods examines them before the consumer agrees to the supply of the goods; and (b) the examination ought reasonably to have revealed that the goods were not of acceptable quality. 1. There is no evidence that demonstrates to me that the vehicle was not of acceptable quality for a car of this age when it was sold to Robert Graham, Mr Robert Graham has the evidential Burden and has chosen not to provide any evidence. I find in this instance, even if Mr Jordan Townsend had said that there were only two marks that could be buffed out – Mr Ian Graham (Son) and Mr Robert Graham the purchaser, who have each declined to give evidence, looked at the vehicle together in the yard and their examination ought reasonably to have revealed that the goods were not of acceptable quality. See 54(7)(b) above. 2. I find on the balance of probabilities and for all of the reasons above that the purchaser was not misled. 3. If I am incorrect about who the purchaser is, the claim fails in any event because I cannot ascertain on the evidence before me and certainly absent any evidence at all from the owner of the vehicle, Mr Robert Campbell that the condition is other than that presented in the very clear photographs. 4. Accordingly and for all of the above reasons the applicants claim is dismissed. Orders 1. The application is dismissed because on the evidence before me I am not satisfied on the balance of probabilities that the applicant has made out his claim. ********** 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 30 August 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: 30 August 2023