Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Best Buy Auto Prestige Pty Ltd v Kaljund [2024] NSWCATAP 100 Hearing dates: 25 January 2024 Date of orders: 30 May 2024 Decision date: 30 May 2024 Jurisdiction: Appeal Panel Before: S Thode, Principal Member G Ellis SC, Senior Member Decision: (1) The application for an extension of time in which to lodge the appeal is refused. (2) The appeal is dismissed. (3) The appellant is to pay the respondent's costs of the appeal on the ordinary basis as agreed or assessed. (4) Should either party seek a different appeal costs' order, the following directions apply: (5) The appellant must file and serve written submissions on the issue of costs only (no more than 5 pages) within 14 days of the date of these orders. (6) The respondent must file and serve any written submissions in reply on the issue of costs only (no more than 5 pages) within a further 14 days of receipt of the appellant's submissions. (7) In any such submissions the parties are to address the matter of whether pursuant to the s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW), the Appeal Panel should dispense with a hearing on the issue of the costs of the appeal, so that the issue is decided on the papers and with appearances of the parties not required. Catchwords: APPEALS- CONSUMER LAW– no error on a question of law established - whether leave to appeal should be granted – whether the appellant has suffered a substantial miscarriage of justice Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 NSW Australian Consumer Law Cases Cited: Collins v Urban [2014] NSWCATAP 17 Jackamarra v Krakouer (1998) 195 CLR 516 Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Kelly v Szatow [2020] NSWSC 407 Tomko v Palasty (No 2) [2007] NSWCA 369 Texts Cited: Robinson and Lucy's "NCAT Practice and Procedure", Second Edition 2020 Spry, Equitable Remedies 9e - Equity - Common Law Category: Principal judgment Parties: Best Buy Autos Prestige Pty Ltd (Appellant) Raido Kaljund (Respondent) Representation: John Stonham & Co Lawyers (Appellant) Salerno Law (Respondent) File Number(s): AP 2023/00349497 Publication restriction: Nil Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 25 August 2023 Before: S Bliim, General Member File Number(s): MV 23/27603 reasons for decision Background 1. This appeal arises from a decision of the Consumer and Commercial Division made on 25 August 2023 in proceedings MV 23/27603. The original proceedings concerned a motor vehicle that the respondent purchased from the appellant on or about 13 January 2023 which the respondent submits was defective and not fit for purpose. 2. The vehicle was purchased for $43,545 and a portion of the purchase price was obtained by a third party finance company who is not a party to the proceedings. 3. The Tribunal heard and decided the application on 25 August 2023 and made the following orders: 1. Best Buy Autos Prestige Pty Ltd xxx Road Campbelltown NSW 2560 Australia is to pay the respondent xxx Parkwood Queensland 4214 the sum of $43,545 on or before 22 September 2023 2. Once payment has been received the applicant will make the vehicle available for collection by and at the cost of the respondent or its authorised representative at a time and place to be agreed between the parties. 1. Best Buy Autos Pty Ltd appealed the decision. The Tribunal proceedings and decision 1. The application was listed for conciliation and group list hearing and as the parties were unable to settle their dispute the Tribunal made directions on 6 July 2023. The directions for the exchange of evidence were published to the parties on 13 July 2023: 3. The applicant shall provide to the respondent and the Tribunal, either in person or by post, a copy of all documents (see note below), on which the applicant intends to rely at the hearing by 21-Jul-2023. 4. The respondent shall provide to the applicant and the Tribunal, either in person or by post, a copy of all documents (see note below), on which the respondent intends to rely at the hearing by 11-Aug-2023. IMPORTANT NOTE: For the purpose of these directions "document" means: - Witness statements / statutory declarations or affidavits - Expert reports - Photographs - Accounts or receipts - Quotations - Any other document to be relied upon … 8. The Applicant is to make the subject vehicle available at his home for inspection by the Respondent or its authorised representative on or before 31 July 2023 at a mutually convenient time. A separate written notice of the new hearing date will be sent to you in the near future. 1. It is relevant to note that the appellant did not inspect the vehicle before the hearing on 25 August 2023. 2. The Tribunal heard and determined the application on 25 August 2023 and the orders were published, stating the Tribunal delivered 'oral reasons' for decision. 3. The matter was listed for an appeal call-over on 15 November 2024 and the Principal Member made the following directions: The Appellant is to lodge with the Appeal Registry and give to the Respondent by 06 December 2023… (d) if oral reasons were given and /or what happened at the hearing at first instance is being relied on by the Appellant in the appeal, a typed transcript of the relevant part of the hearing , together with a sound recording of the entire hearing. 1. During the hearing of the appeal, it became apparent that the appellant had not requested written reasons for decision, nor had a transcript been provided to the Appeal Panel contrary to directions issued. The Appeal Panel ordered the appellant to provide a copy of the transcribed oral reasons for decision after the hearing. The appellant provided a copy on 14 February 2024 of what appears to be a partially transcribed audio recording. The document is incomprehensible and only transcribes the reasons partially. As best we can we have identified a partial extract of the reasons for decision: The condition of the vehicle is such that there should be a refund of the purchase price and there is a major defect. The Tribunal is satisfied for the purposes of the Australian Consumer Law that the applicant is a consumer and that he purchased the vehicle from the respondent as a seller of second-hand motor vehicles, therefore in trade and commerce. The Tribunal is satisfied for the purpose of section 54 that the vehicle was supplied in trade or commerce to a consumer and that there is a guarantee that the goods are of acceptable quality. It is my finding that given the four items which I have identified from the Mercedes-Benz report that the four defects together or individually constitute a major defect: The two oil leaks, the suspension and the engine mountings are all significant and in combination it is clear to me that there is a major defect in the vehicle. The applicant is entitled, having requested the refund at the first opportunity, at 8.30am the next morning, he requested the refund of his purchase price. If it would have happened at that stage it may well have been that the finance contract could have been pulled apart at that point in time and the respondent may not have incurred finance costs. I am satisfied that there was a major defect and I am satisfied that the appropriate order that I should make is that the purchase price of the vehicle will be refunded in full to the applicant and that the vehicle will be made available for collection of the cost of the respondent. Relevant Law: The nature and scope of internal appeals 1. Internal appeals may be made as of right on a question of law, and otherwise with permission (that is, the "leave") of the Appeal Panel: s 80(2) of the Civil and Administrative Tribunal Act 2013 ('NCAT Act'). 2. As has been noted in Robinson and Lucy's "NCAT Practice and Procedure", Second Edition 2020, [NCATA80.30] at page182, there is no satisfactory test of universal application to define the concept of an error of law. However, in John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 (Prendergast) the Appeal Panel set out at [13] a non-exclusive list of errors of law. 1. a failure to provide proper reasons; 2. identification of the wrong issue or asking the wrong question; 3. the application of a wrong principle of law; 4. a failure to afford procedural fairness; 5. a failure to take into account relevant (i.e., mandatory) considerations; 6. the taking to account of an irrelevant consideration; 7. the absence of evidence to support a finding of fact; and 8. the decision was so unreasonable that no reasonable decision-maker would have made it. Notice of Appeal and Submissions 1. The appeal was commenced on 1 November 2023 date and was, therefore, filed seven weeks out of time see Rule 25(4)(c) of the Civil and Administrative Tribunal Rules 2014 NSW (NCAT Rules). Grounds of Appeal 1. The notice of appeal sets out the grounds of appeal as follows : The decision of the hearing was not fair and nothing was given to us only on the hearing date of their evidence which now we can get an independent report on the vehicle if the customer gives us access as they have been difficult to deal with throughout the process 1. In the section entitled "decision of the Tribunal against the weight of evidence" the appellant wrote: If we can have access to the vehicle we can do an independent report as the customer did not allow us access to the vehicle. The vehicle is located in Queensland we are located in Sydney everything is going through independent as the vehicle is in another state. 1. In the section "what evidence should the Tribunal have given more weight to? Why?" the appellant wrote: Form 5 Vehicle comes with No Dealer Warranty, Pink Slip supplied with the vehicle and a letter from the finance broker stating he wants a Mitsubishi Pajero. Reply to Appeal 1. In its reply to appeal filed on 24 November 2024 the respondent supports in full the orders made on 25 August 2023. Extension of time 1. The general principles which apply in considering whether leave to extend time to appeal should be granted were considered in Kelly v Szatow [2020] NSWSC 407 at [31]-[32]. Relevant considerations include: the length of the delay and any associated reasons for such, the strength of the plaintiff's case and consideration of whether the defendants would be prejudiced by a granting of the application: see Jackamarra v Krakouer (1998) 195 CLR 516 at [3]-[5]; Tomko v Palasty (No 2) [2007] NSWCA 369 (Tomko) at [55]. 2. The relevant considerations for an extension of time application in the Appeal Panel were set out in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [22]: 22. The considerations that will generally be relevant to the Appeal Panel's consideration of whether to grant an extension of time in which to lodge a Notice of Appeal include: (1)The discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the appellant - Gallo v Dawson [1990] HCA 30, 93 ALR 479 at [2], Nanschild v Pratt [2011] NSWCA 85 at [38]; (2)The discretion is to be exercised in the light of the fact that the respondent (to the appeal) has already obtained a decision in its favour and, once the period for appeal has expired, can be thought of as having a "vested right" to retain the benefit of that decision - Jackamarra v Krakouer (1998) 195 CLR 516 at [4], Nanschild v Pratt [2011] NSWCA 85 at [39] and, in particular, where the right of appeal has gone (because of the expiration of the appeal period) the time for appealing should not be extended unless the proposed appeal has some prospects of success - Jackamarra at [7]; (3)Generally, in an application for an extension of time to appeal the Appeal Panel will be required to consider: (a)The length of the delay; (b)The reason for the delay; (c)The appellant's prospects of success, that is usually whether the applicant has a fairly arguable case; and (d)The extent of any prejudice suffered by the respondent (to the appeal), - Tomko v Palasty (No 2) (2007) 71 NSWLR 61at [55] (per Basten JA) but note also [14], Nanschild v Pratt [2011] NSWCA 85 at [39] to [42]; and (4)It may be appropriate to go further into the merits of an appeal if the explanation for the delay is less than satisfactory or if the opponent has a substantial case of prejudice and, in such a case, it may be relevant whether the appellant seeking an extension of time can show that his or her case has more substantial merit than merely being fairly arguable - Tomko v Palasty (No 2) (2007) 71 NSWLR 61 at [14] (per Hodgson JA, Ipp JA agreeing at [17]) and Molyneux v Chief Commissioner of State Revenue [2012] NSWADTAP 53 at [58] - [59]. 1. Additionally, for the following reasons, we do not consider that the appellant has a fairly arguable case in support of his application for leave to appeal. 2. In Collins v Urban [2014] NSWCATAP 17 (Collins) at [84], an Appeal Panel stated that there must be a "sound basis" for granting leave to appeal under s 80(2)(b) of the NCAT Act. The Appeal Panel said that an appellant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact. 3. Ordinarily, it will only be appropriate to grant leave to appeal in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact-finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed. (Citations omitted) 1. In our view, those principles apply and for the reasons that follow we are not minded to grant leave to appeal or to the extend time for the filing of the notice of appeal, having regard to the lack of merit of the grounds of appeal. 2. The delay in lodging the appeal was seven weeks and was therefore significant. 3. In the notice of appeal the appellant sought an extension of time, and stated: The other party has been very uncooperative & want us to pay the full amount without seeing the vehicle even if it exists & any problems with the car he purchased. 1. The appellant was represented by his director, Mr M Elskaf, who indicated at the appeal hearing that he was not aware of the need to file an appeal within 28 days although, as become clear during the hearing, he had sought legal advice at the relevant time. He had requested a copy of the sound recording on 24 November 2023 [after the time for filing the appeal had expired]. The appellant stated that he was under the impression that as long as he had not received a copy of the sound recording, he was not obliged to commence appeal proceedings. 2. We consider that no reasonable explanation has been provided for the delay and it is therefore necessary to examine whether the appeal has "more than substantial merit than merely being fairly arguable" (see Tomko above). Consideration Ground 1: The Tribunal denied procedural fairness to the appellant because the appellant had not been provided with the inspection reports before the hearing. 1. The Tribunal made a direction for the respondent to serve its documents on the appellant by 21 July 2023. When asked at the hearing how documents were served on the appellant it was submitted by the respondent that a copy of the exhibits, including the critical Mercedes Benz expert report, were provided to the appellant a day after the first conciliation and group list hearing on 7 July 2023. The respondent produced a covering email demonstrating he served the evidence on the appellant six weeks before the hearing and well in advance of the due date. 2. A copy of the tender documents were handed to the appellant's solicitor at the first instance hearing on 25 August 2023 and he was invited by the Tribunal to inspect the documents for about 20 minutes. The legal representative of the appellant, after perusing the evidence in question, re-entered the hearing room and did not object to the tender of the documents and did not apply for an adjournment. The hearing proceeded. 3. At the hearing of the appeal the appellant submitted that he "had no idea of the paperwork" and was not advised by the solicitor appearing for him at first instance that he was obliged to make arrangements to have the vehicle inspected. The appellant submits that he was disadvantaged because the hearing proceeded although he had not been served with evidence in advance. We consider that the submissions by the appellant that he was not served with the evidence prior to the hearing, could constitute a denial of procedural fairness and therefore an error on a question of law, and in respect of this ground, the appeal proceeds as of right see s80 (2)(b) of the NCAT Act. 4. For the following reasons we are not persuaded that an error on a question of law has been established. 5. The appellant submits that he was not provided with either the Mercedes-Benz report of 4 April 2023 or the ASAP Auto report dated 16 March 2023. The reports however were provided to the appellant on several occasions before the hearing. We have had regard to the evidence filed by the respondent in the original proceedings, in particular the affidavit of Raido Kaljund of 9 June 2023 and 24 August 2023. The ASAP Auto Report was emailed to the appellant on 17 March 2023 requesting a full refund. On 4 April 2023 a further pre-purchase report inspection was conducted by Mercedes-Benz Gold Coast which identified 29 defects and provided a quote for repairs in the amount of $42,207. The Mercedes-Benz report was served on the appellant by email a day after the to the first group list and conciliation hearing under covering email of 7 July 2023 at 10.13am. 6. The letter of service states as follows: "We refer to the first hearing of this matter at the NCAT Tribunal on 6 July 2023…. We confirm the following orders were made at the hearing: 1. That the applicant (our Client) file the relevant documentation concerning the motor vehicle reports to NCAT by 21 July 2023….. in accordance with order 1 above we attach the following: 1. Mercedes Benz Vehicle report Service Tax Invoice dated 4 April 2023; 2. Mercedes-Benz Gold Coast Services Recommendations Report dated 4 April 2023; and 3. ASAP Autocare Work completed Report dated 16 March 2023. In furtherance of this we confirm that with respect to Order 3 made above, the Vehicle will be made available for inspection on the Gold Coast. For the purpose of arranging a suitable time and date for this inspection to occur we request that you provided the following details: 1. The person(s) that will be attending the inspection on the agreed upon date; 2. The date and time in which you propose for the inspection to occur; and 3. Where you require the vehicle to be for the purposes of inspection , noting our client's wishes not to have the vehicle inspected at his place of residence, for obvious reasons. Once this information is provided we will obtain instructions from our client to arrange the Vehicle to be towed to a Neutral location as agreed upon by both parties , before the requisite date with respect to the Orders. For the purpose of ensuring compliance with the Orders, we ask that you provide us with the requested information as a matter of urgency, and in any event, no later than Monday 17 July 2023 so as to give both parties ample opportunity to make arrangements for the vehicle to be inspected prior to 31 July 2023. 1. Critically, the service of evidence was acknowledged by the appellant under return email of 7 July 2023 at 2.29pm , the email was signed by "Best Buy Autos" and was sent from the relevant email address sales@bestbuyautoprestige.com.au. The email not only acknowledges the receipt of the material but specifically references the reports of Mercedes-Benz and ASAP Autocare. In the return email, provided by a solicitor, Mr VL Macri, to the Appeal Panel, the appellant states "the Mercedes-Benz report are service recommendations and the items are wear and tear". 2. We consider that the evidence was served on the appellant under covering letter of 7 July 2023, albeit by email. The appellant's solicitor was handed a copy of the relevant documents by the Tribunal and was granted a 20-minute adjournment in order to peruse the documents and, if necessary, make any application. At the resumption of the hearing no further objection to the tender of the documents was made, and no adjournment was sought. In those circumstances, and as the appellant was legally represented, we are not persuaded that the appellant was denied procedural fairness, no error on a question of law has been established, and this ground of appeal would be dismissed. Ground 2: the appellant claims he was denied the opportunity to inspect the vehicle 1. We consider that this ground, expressed as it is, does not identify an error on a question of law and that therefore the leave of the Appeal Panel would be required. 2. It is clear from the extensive correspondence between the parties that the respondent took all necessary steps to comply with the orders for the Tribunal and offered on several occasion to make the vehicle available for inspection by the appellant, including the offer to tow the vehicle to a "neutral location". We refer to evidence filed before the Tribunal in the original proceedings, in particular the affidavit of Raido Kaljund of 9 June 2023. Exhibit RK2 is a letter dated 17 January 2023 sent by registered post (emphasis added) by the solicitor for the respondent to the registered address of the appellant. The respondent was in possession of the vehicle between 13 January 2023 and 28 February 2023 when the appellant delivered the unroadworthy vehicle to the appellant at the Gold Coast Stapylton Depot. The respondent had opportunity to inspect the vehicle during the six weeks the vehicle remained in the appellant's possession before delivering it to the respondent. 3. After the orders for inspection were made by the Tribunal, the appellant made no efforts to inspect the vehicle, although the respondent, in correspondence of 7 July 2023 outlined a comprehensive offer to deliver the vehicle to a neutral location of the appellant's choice so that the inspection could occur. No evidence was filed in support of the appeal, and the appellant provided no submission to support the contention that the respondent was "difficult throughout" and that an inspection of the vehicle had been denied. In these circumstances we cannot identify an error on a question of law, and insofar necessary we are not satisfied that leave to appeal should be granted. 4. In view of these matters, if we had been faced with an appeal from a decision on the merits as outlined by the Tribunal, we would have refused leave to appeal on the basis that the appeal raised no question of principle, such decision did not result in any injustice that was reasonably clear, such decision did not contain any plain error of central fact and none of the other discretionary matters concerning the grant of leave to appeal (as outlined above) were established. Leave to appeal 1. From what we have already said, it is apparent that, if we had granted the required extension of time, we would have refused leave to appeal. Costs 1. The respondent seeks his costs of the appeal. The appeal was in our view without merit and as the appellant has been unsuccessful in this appeal ordinarily costs 'follow the event'. By reason of r 38A of the NCAT Rules, the costs' rule that applied before the Tribunal is the relevant costs' rule for the appeal as it was an appeal from a decision where the "amount in dispute" between the parties was in the vicinity of $43,000 (i.e., considerably more than $30,000), it means that r 38 applies, and not s 60 of the NCAT Act and the respondent does not have to establish 'special circumstances' before an award for costs of the appeal may be made. 2. Our preliminary view is that in the exercise of the discretion as to costs, the respondent would be entitled to his costs of the appeal, subject to any application that may be made by the parties. We have made orders and directions accordingly. Orders 1. For the above reasons, we order that: 1. The application for an extension of time in which to lodge the appeal is refused. 2. The appeal is dismissed. 3. The appellant is to pay the respondent's costs of the appeal on the ordinary basis as agreed or assessed. 4. Should either party seek a different appeal costs' order, the following directions apply: 5. The appellant must file and serve written submissions on the issue of costs only (no more than 5 pages) within 14 days of the date of these orders. 6. The respondent must file and serve any written submissions in reply on the issue of costs only (no more than 5 pages) within a further 14 days of receipt of the appellant's submissions. 7. In any such submissions the parties are to address the matter of whether pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW), the Appeal Panel should dispense with a hearing on the issue of the costs of the appeal, so that the issue is decided on the papers and with appearances of the parties not required. ********** 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 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: 30 May 2024