Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Heng v Tynan Motors Pty Ltd [2024] NSWCATAP 75 Hearing dates: 20 February 2024 Date of orders: 08 May 2024 Decision date: 08 May 2024 Jurisdiction: Appeal Panel Before: M Harrowell, Deputy President G Burton SC, Senior Member Decision: Leave to appeal is refused and the appeal is otherwise dismissed. Catchwords: APPEALS — leave to appeal — assessment of competing evidence concerning whether or not a logbook was to be supplied with the sale of a motor vehicle — Tribunal evaluated relevant evidence — whether decision not fair and equitable or against the weight of evidence — no substantial miscarriage of justice Legislation Cited: Australian Consumer Law (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Cases Cited: Collins v Urban [2014] NSWCATAP 17 Texts Cited: Nil Category: Principal judgment Parties: Adriel Heng (Appellant) Tynan Motors Pty Ltd (Respondent) Representation: Appellant (self-represented) L Tink (Group Service Manager) (Respondent) File Number(s): 2023/00364284 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal of New South Wales Jurisdiction: Consumer and Commercial Division Citation: Not applicable Date of Decision: 10 October 2023 Before: J Levingston, General Member File Number(s): MV23/39187 REASONS FOR DECISION Introduction 1. On 3 September 2022 the appellant bought a Mazda motor vehicle from the respondent which is a car dealer. There was a written agreement as required under the relevant motor dealer legislation, the purchase price being $23,888.00 (incl GST). 2. It was subsequently agreed that the appellant would pay the purchase price by instalments, having initially paid a deposit of $1,000. The motor vehicle remained in possession of the respondent pending final payment. 3. The final payment was to be made in October 2022. However, the appellant refused to make the final payment and accept delivery of the motor vehicle because the respondent was unable to provide with the motor vehicle the written logbook containing the service history of the motor vehicle. 4. In consequence of the appellant's failure to pay the final instalment, the respondent exercised rights under clause 5 of the agreement to retain 15% of the purchase price, namely $3,583 as liquidated damages for the appellant's breach. The balance of the instalments which had been paid by the appellant were repaid to him. 5. On 17 July 2023 the appellant commenced proceedings MV 23/39187 seeking recovery of the amount retained by the respondent. The appellant said in his application that "Mr George Ghali held out to [him] that the car would be sold with its service logbook, instruction manuals, keys and accessories plus the statutory warranty". 6. The appellant said that he would not have bought the motor vehicle without the logbook and that he had been told by Mr George Ghali (the respondent's sales representative), at the time of purchase, that the motor vehicle had a service logbook. 7. In short, the appellant said that the respondent had misrepresented to him that the service logbook was available and would be provided as part of the sale. 8. In making this claim, the appellant also sought costs associated with making the application to the Tribunal and an amount of $500 for "emotional stress". Tribunal Decision 1. The application was heard by the Tribunal on 10 October 2023. The application was dismissed. 2. The Tribunal provided written reasons for its decision (reasons). 3. As to the evidence concerning pre-contractual communications between the appellant and the respondent's sales representative Mr Ghali, the Tribunal recorded at [9] of the reasons: "On or about 3/9/22 the [appellant] had a conversation with the respondent's salesman about purchasing the Vehicle. He contends that he asked the salesman whether the Vehicle had a service log book. The salesman told him that the Vehicle had its service log book and on as (sic) that was important to him. Remarkably, the [appellant] did not ask to see the service log book while inspecting the Vehicle." 1. The Tribunal noted at [11] that the special conditions of the agreement provided the motor vehicle was sold "as is" and that there was no term in the agreement requiring the provision of the service logbook. 2. At [14] of the reasons the Tribunal noted there was an email dated 3 October 2022 which contained the statement "please ensure logbooks … are with the car …". This was after the agreement was signed. The Tribunal found: "This was the first time there was any written reference to logbooks, and is not a specific referral to "service logbooks" and as such was ambiguous, i.e. that it was a reference to the car manual. The respondent made no response". 1. The Tribunal then recorded at [15] that the appellant went to the respondent's car yard to make final payment on 8 October 2022. At that time he was advised that there was no service logbook. This, the appellant contended, constituted a breach of the agreement, following which he terminated the agreement and refused to pay the balance of the price or take delivery of the motor vehicle. He also demanded a refund of all the monies he had paid, at the same time indicating he might be interested in buying a different car. 2. At [19] the Tribunal said: "The respondent did not inform the [appellant] that the Vehicle had a full service history with Sutherland Mazda and a copy of the computer records were available. The [appellant] did not become aware of these facts until he read the respondent's evidence in early October 2023". 1. Having set out the evidence the Tribunal then dealt with the claim under s 18 of the Australian Consumer Law (NSW) (ACL). That section relates to misleading or deceptive conduct or conduct which is likely to mislead or deceive. 2. Having referred to various legal authorities concerning the interpretation of s 18, the Tribunal made the following findings: "29 I am not satisfied that having regard to the context of the evidence and all the facts and circumstances the [appellant] did ask and the respondent's salesman did represent that the Vehicle had a service log book available. The [appellant] did not ask to see it, and did not ask for the supply of the service log book to be a special condition of the Agreement. The later SMS of 3/10/22 is ambiguous and could be understood to be as reference to the Vehicle manual. … 31 The claim for the return of the balance of $3,583 retained as liquidated damages is to be determined on the above principles. I find that the [appellant] has failed to prove reliance on the alleged misleading or deceptive conduct under ACL s18. I find that if the availability of the service log book was important as the [appellant] now contends, he would have asked to see it at the time he was negotiating the Agreement, and would have required this to be a "Special condition" of the Agreement. The respondent was entitled to retain this amount as liquidated damages arising from the [appellant's] breach of the Agreement. This claim fails. 32 The claims for the NCAT filing fee, travel expenses and copying, and travel time are dismissed under CATA s 60 as the parties are to pay their own costs. There is no evidence to support a claim under s60(2). 33 The claim for interest on money is a claim for economic loss which in some circumstances is recoverable if reasonably foreseeable: Hadley v Baxendale (1854) 156 ER 145; Victoria Laundry v Newman [1949] 2KB 528; and Amann Aviation v Commonwealth (1990) 22 FCR 526. However, I find that the claim is not proved as the [appellant] has provided no evidence in support of the claim. 34 The claim for emotional stress of $500 can arise either from a breach of an agreement, or is personal injury and a non-economic loss which cannot be recovered unless there is evidence of a loss greater than 15% of the worst case: Civil Liability Act s16. On either basis, evidence is required. There is no evidence and this claim fails." 1. In doing so, Tribunal also noted, at [30], that it was "not necessary to consider the application of s29 of the ACL". That section relates to false or misleading representations in connection with the supply of goods and services. 2. Consequently, the Tribunal dismissed the application for a refund, and the claims in respect of costs and damages for emotional stress. Notice of Appeal and history of appeal proceedings 1. The appellant filed a Notice of Appeal on 16 November 2023. The appeal was filed out of time, with the time to lodge the appeal being 7 November 2023. That is the appeal was 9 days late. An extension of time was sought. 2. The grounds of appeal were as follows: "1. According to the Australian Consumer Law (ACL), the customer can require compensation for the time lost, emotional distress and emotional abuse (documents attached). 2. Tribunal Member Livingston replied that I am right to claim from Tynan Motors' misleading conduct per ACL s 236 which applies for alleged breaches of ACL ss 18 (misleading and deceptive conduct) and 29 (ACL)." 1. The appellant sought an order for a refund of $3,583.00 together with various costs and damages of $500 for distress, a total of $4,435.50. 2. Leave to appeal was also sought. Here the appellant said: "I request that the NCAT Appeal Panel should grant leave to reconsider my case against the decision of Tribunal Member Livingston. It proves that NCAT Appeal Panel already applied the ACL ss 236, 18 and 29 for my case. It will reduce my stress and help me to support my children's starting in the year of 2024." 1. As to leave to appeal, the appellant said the decision was not fair and equitable as he was not provided with the motor vehicle's service logbook. He said the respondent has to know it has breached s 29 of the ACL. The appellant also said that the decision was against the weight of evidence, referring to documents he had filed in support of his appeal. In circumstances where the logbook could not be provided, the appellant said the decision of the Tribunal was against the weight of evidence. 2. In connection with new evidence, the appellant sought to rely on photographs and a letter from his doctor "outlining stress" arising from his dealings with the respondent. This evidence is relevant to the extension of time application and cost incurred in respect of the appeal. 3. The respondent filed a Reply to Appeal. It objected to an extension of time to appeal. In short, the respondent said the decision of the Tribunal, based on the evidence before it, was correct. 4. The proceedings were listed for call over by the Appeal Panel on 6 December 2023. Directions were made for the provision of evidence, including the sound recording and a typed transcript of relevant parts. 5. The appeal was heard on 20 February 2024. The parties made oral submissions concerning their respective positions. In doing so, we granted Mr Luke Tink leave to appear for the respondent. As necessary, we will refer to these submissions below. 6. The transcript was not provided. However, we made orders to permit its provision to the Appeal Panel after the hearing of the appeal. While the respondent objected to this course, no prejudice was demonstrated. By contrast, the submissions we received from the appellant suggesting he gave oral evidence that a "black wallet" containing various manuals for the motor vehicle had been shown to the appellant at the time he initially inspected the motor vehicle meant that the provision of this evidence was necessary to consider this aspect of the appeal. 7. After the hearing of the appeal, the appellant provided 3 emails to the Tribunal – two dated 8 March 2024 and one dated 11 March 2024. In the two emails dated 8 March 2024 was a typed copy of the transcript and a copy of the sound recording. 8. Otherwise, the emails contained evidence and submissions concerning the appellant's appeal, including receipts of costs incurred and a spreadsheet detailing the appellant's claims. Leave was not granted to provide this material after the hearing of the appeal and an application to re-open the appellant's appeal has not been made. Accordingly, we have not considered this material for the purpose of determining the appeal and have had regard only to the transcript of the hearing at first instance. Consideration 1. The appellant has a right of appeal on a question of law: s 80(2)(b) Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). 2. Otherwise, leave to appeal is required. Leave may be granted only if the appellant can show he may have suffered a substantial miscarriage of justice because the decision under appeal was not fair and equitable, against the weight of evidence or there is significant new evidence that was not reasonably available at the time of the original hearing: Sch 4 cl 12(1) NCAT Act. Collins v Urban [2014] NSWCATAP 17 (Collins) sets out the applicable principles when determining whether leave should be granted. 3. The first matter to deal with is the application to extend time to appeal. 4. As noted above, the appeal was filed 9 days out of time. The appellant said that work commitments and personal circumstances arising from his domestic situation had made it difficult for him to lodge the appeal on time. The respondent opposed the grant of an extension of time but could not point to any relevant prejudice that would make an order under s 41 of the NCAT Act inappropriate. 5. In the absence of prejudice and having regard to the explanation of the appellant's personal circumstances, we are satisfied time should be extended until 16 November 2023, being the date when the appeal was filed. 6. As to the substantive appeal, the essence of the appellant's contentions is that the Tribunal was in error in its conclusion concerning the representations made about the provision of the service logbook for the motor vehicle and the respondent's obligations in connection therewith. The appellant reiterated that he had asked about the service logbook prior to purchasing the motor vehicle and had been shown the "black wallet" to which we have referred above. 7. The appellant submitted that the service logbook was necessary to ensure the motor vehicle was safe and also to permit him to safely operate and maintain the motor vehicle in the future. As to future maintenance, we indicated to the appellant that service requirements could have been obtained even if the logbook had not been provided. As to the past service history and the nature and the quality of the motor vehicle, it was not suggested the motor vehicle was unsafe or in any manner defective. 8. As is evident from these submissions, the issues raised on appeal are not questions of law. Rather, they are challenges to the factual findings of the Tribunal for which leave to appeal is required. Those findings are set out above. 9. In short, those findings are: 1. that the agreement, entered into on 3 September 2022, did not contain any requirement for the supply of the service logbook; 2. that the Tribunal was not satisfied the appellant did ask or that the respondent's salesman did represent that the motor vehicle had a service logbook available; and 3. that the appellant had failed to demonstrate any relevant reliance for the purpose of a claim of misleading and deceptive conduct under s 18 of the ACL. 1. Evidence was provided by the appellant in the form of the statement contained in his application, his oral evidence at the hearing at first instance, and various documents provided in support. This included: 1. The written agreement for sale dated 3 September 2022. 2. A text message dated 3 October 2022, after the agreement was signed and various instalments paid but before the motor vehicle was collected, indicating that the balance of the purchase price would be paid on pick up and stating: "Please ensure logbooks, keys & accessories (spare tire, jacks, etc) are with the car." 1. The transcript sets out Mr Heng's oral evidence which included the following: Member: Did you say anything else…? Mr Heng: Well, I don't want to go ahead with the purchase of the car, the log book is so important to me. Member: it is personal [long silence] …? Mr Heng: yes, the logbook is so important to me. Member: Yep Mr Heng: and I just said, "I would like to have my [money] returned." Member: what about the big thing …car… Is that what you said before...? Mr Heng: So, I did say to Mr. Gahli "Look, you know, I feel that log book is an important aspect of the car" and I did ask Mr Gahli "Did all your cars have log books?" and he said "Yes". Member: Yep. Mr Heng: and, but then, at that time, on that particular day, he said to me he is not willing to sell me another car to me. 1. This evidence clearly relates to conversations around the time the motor vehicle was being collected, reference being made to the possible sale of "another car". 2. The transcript then records the appellant gave the following evidence: Mr Heng: when I tested the car … Mr Heng: Before I tested the car… as mentioned, I did ask for the log book but to some extent I feel … to ask what is important about a car and you know, basically, my argument is that without the log book, I went down to hunting a car and I wanted to keep the car safe because I have children strapped in my car … Mr Heng: When I tested the car, … I was fairly confident in how the car handled but if based on the testing alone, … I may consider buying the car. 1. While unclear, it would appear this evidence related to the circumstances at the time the subject motor vehicle was being test driven, and what was said before the agreement was signed on 3 September 2022. As such it is some evidence the logbook was discussed. 2. There was a dispute concerning whether or not the provision of the logbooks was a matter discussed in September 2022 prior to the agreement being entered into. The appellant says it was discussed and he was told the logbooks were available. The respondent denied this claim. 3. Evidence against the appellant's claim was the following: 1. There was no evidence to which we have been referred to suggest that the motor vehicle was advertised as having logbooks. Certainly the copy of the advertisement did not contain any representation or statement to this effect. 2. The 3 September 2022 agreement was on terms that the motor vehicle was sold "as is": see Special Conditions of agreement. No reference was made to the logbook in the agreement. 3. There is no evidence that the appellant sought to inspect the logbook at any time prior to signing the agreement on 3 September 2022. 4. The only documents provided with the car were an operating manual and navigation system instruction booklet. While there was evidence that the motor vehicle had a service history recorded "online", no logbook was available. 5. The respondent denied that its sales representative Mr Ghali, who sold the motor vehicle to the appellant, made any statement concerning the existence of the logbook at the time of sale. 6. While the appellant sought provision of the logbook, this request was made on 3 October 2022 when the motor vehicle was due for collection. 1. In addition to the matters identified above, there are three other matters which, in our view, count against the appellant's claim. 2. First, it is likely that, if the logbook was important to the appellant, he would have asked to see it at the time that he inspected the motor vehicle. Certainly he did not give evidence to the effect that he did inspect the logbook or that he asked to inspect the logbook unless the assertion concerning the "black wallet" is made out (which is discussed below). 3. Secondly, in his evidence, the appellant says that, at around the time he came to collect the motor vehicle in October 2022, he was told by Mr Ghali (the salesman) that all vehicles sold by the respondent had logbooks. It is improbable this statement was made in circumstances where the motor vehicle, the subject of this dispute, did not in fact have a logbook. 4. Thirdly, there is an absence of any continuing complaint after 10 October 2022 concerning the fact the motor vehicle was not supplied with a logbook and that there was a breach by the respondent in this regard. Proceedings were not commenced until some 9 months after the agreement came to an end. 5. Finally, one of the submissions made by the appellant at the hearing of the appeal, which led us to permit the transcript being provided late, was an assertion that he gave evidence at the hearing that he was shown a "black wallet". However, upon review of the transcript, no such statement was made. 6. In Collins at [65] and following, the Appeal Panel set out the principles applicable to the grant of leave in the context of an appeal from the Consumer and Commercial Division and the operation of Sch 4, cl 12 which regulates the grant of leave. As to whether leave should be granted because the decision was not fair and equitable or against the weight of evidence the Tribunal said at [77]: "77 As to the particular grounds in cl 12(1)(a) and (b), without seeking to be exhaustive in any way, the authorities establish that: (1) If there has been a denial of procedural fairness the decision under appeal can be said to have been "not fair and equitable" - Hutchings v CTTT [2008] NSWSC 717 at [35], Atkinson v Crowley [2011] NSWCA 194 at [12]. (2) The decision under appeal can be said to be "against the weight of evidence" (which is an expression also used to describe a ground upon which a jury verdict can be set aside) where the evidence in its totality preponderates so strongly against the conclusion found by the tribunal at first instance that it can be said that the conclusion was not one that a reasonable tribunal member could reach - Calin v The Greater Union Organisation Pty Ltd (1991) 173 CLR 33 at 41-42, Mainteck Services Pty Limited v Stein Heurtey SA [2013] NSWSC 266 at [153]." 1. Applying these principles in the present case, it seems to us the appellant has not shown any unfairness or inequity in the decision made nor that it was against the weight of evidence. In this regard, an appeal is not, usually, an opportunity to have a new hearing. Rather, an appellant must show some relevant error or that the decision can properly be categorised as not fair or equitable. 2. The reasons show that the Tribunal evaluated the evidence before it and preferred the position of the respondent to that of the appellant. That is, no statement was made concerning the provisions of the logbook nor was it to be provided as part of the agreement for sale. As demonstrated by our analysis above, these findings were open to the Tribunal and we are not satisfied that the evidence, when considered as a whole, ought to have led the Tribunal to a different conclusion. For these reasons, we are not satisfied the Tribunal's findings are incorrect or that the appellant may have suffered a substantial miscarriage of justice because the decision was not fair and equitable or against the weight of evidence. 3. The reliance by the appellant on s 29 of the ACL does not affect this position. That section relevantly provides: 29 False or misleading representations about goods or services: (1) A person must not, in trade or commerce, in connection with the supply or possible supply of goods or services or in connection with the promotion by any means of the supply or use of goods or services: (a) make a false or misleading representation that goods are of a particular standard, quality, value, grade, composition, style or model or have had a particular history or particular previous use; or … (g) make a false or misleading representation that goods or services have sponsorship, approval, performance characteristics, accessories, uses or benefits; or … 1. As the Tribunal found no statement, representation or promise was made concerning the logbook, the misrepresentation claim under s 29 must fail. So also does the claim under s 18 of the ACL (misleading and deceptive conduct). 2. It follows that leave to appeal should be refused and the appeal otherwise dismissed. Orders 1. The Appeal Panel makes the following orders: 1. Leave to appeal is refused and the appeal is otherwise dismissed. ********** 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: 08 May 2024