Fischlin v MC Investments (N’cle) Pty Ltd [2023] NSWCATCD 75

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Fischlin v MC Investments (N'cle) Pty Ltd [2023] NSWCATCD 75 Hearing dates: 11 May 2023 Date of orders: 03 July 2023 Decision date: 03 July 2023 Jurisdiction: Consumer and Commercial Division Before: S Hanstein, General Member Decision: 1 Within 14 days of the date of this decision, and on a date agreed between the parties, the applicant is to return the vehicle to the respondent and to do all things necessary to revest the title of the vehicle in the respondent. 2 On the day the vehicle is returned, the respondent is to pay to the applicant the sum of $17,300. Catchwords: CONSUMER LAW — Consumer guarantees — Supply of goods — Guarantee as to acceptable quality — Motor vehicle — Whether vehicle of acceptable quality — Whether major failure — Rust Legislation Cited: Australian Consumer Law (NSW) Civil and Administrative Tribunal Act 2013 Motor Dealers and Repairers Act 2013 Cases Cited: Safi v Heartland Motors Pty Ltd t/as Heartland Chrysler [2016] NSWCATAP 80 Texts Cited: Nil Category: Principal judgment Parties: Thomas Fischlin (Applicant) MC Investments (N'cle) Pty Ltd ATF MC Investments Trust T/A New Lambton Auto Centre (Respondent) Representation: Applicant in person Mark Chalhoub (Respondent) File Number(s): MV 22/44474 Publication restriction: Nil

REASONS FOR DECISION 1. This case concerns a 2003 Ford Falcon BA XR8 vehicle, purchased by the applicant from the respondent on 10 September 2022 at a price of $17,300. 2. The applicant claims that the vehicle is not of acceptable quality within the meaning of the Australian Consumer Law (NSW) ("ACL (NSW)") and seeks a refund. He also seeks compensation for expenses incurred. 3. Both parties attended the hearing and gave oral evidence and submissions. They both also relied on documentary evidence. Neither party sought to cross-examine any of the authors of reports or statements relied upon by the other. 4. The applicant has raised a number of concerns with the vehicle and provided reports or other documents from a number of different businesses. For the reasons set out below, I am satisfied that the applicant's claim should succeed because of the rust concerns, and therefore these reasons are focused on that issue.