Levy v Mercedes-Benz Australia/Pacific Pty Ltd [2024] NSWCATAP 110

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Levy v Mercedes-Benz Australia/Pacific Pty Ltd [2024] NSWCATAP 110 Hearing dates: 2 May 2024 Date of orders: 18 June 2024 Decision date: 18 June 2024 Jurisdiction: Appeal Panel Before: M Harrowell, Deputy President P H Molony, Senior Member Decision: (1) The appellant has leave to appeal and the appeal is allowed. (2) The order of the Tribunal made 4 January 2024 in application 2023/00383392 is set aside and in lieu thereof the following order is made: "The respondent (Mercedes-Benz Australia/Pacific Pty Ltd is to repair or replace the steering wheel on the appellant's motor vehicle, the subject of this application, such work to be completed on or before 31 July 2024." (3) Subject to order 4, each party is to pay their own costs of the appeal. (4) If either party contends for a different order to that of order 3, the following directions apply: (a) Within 14 days from the publication of these reasons, any applicant for costs (costs applicant) is to file and serve any application for costs (costs application) which is to include any evidence and submissions, submissions to be not more than 5 pages. In this event, order 3 will cease and have no effect. (b) Within 28 days from the publication of these reasons, the respondent to the costs application is to file and serve any evidence and submissions in reply, submissions to be not more than 5 pages. (c) Within 35 days from the publication of these reasons, the costs applicant is to file and serve any submissions in reply (not more than 2 pages). Catchwords: CONTRACT LAW – collateral contract – meaning of manufacturer's warranty – meaning of defect – whether defect includes a defect in relation to goods being of acceptable quality under the Australian Consumer Law – onus of proof to enforce the warranty CONSUMER LAW – Australian Consumer Law – liability of manufacturer under s 54 – Guarantee as to acceptable quality – s 59 – manufacturers liability – powers of the Tribunal to order a manufacturer to repair or replace goods. Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Fair Trading Act 1987 (NSW) Cases Cited: Al Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 Collins v Urban [2014] NSWCATAP 17 Effem Foods Ltd v Nicholls [2004] NSWCA 332; (2004) ATPR 42-034 McLennan v Insurance Australia Ltd [2014] NSWCA 300 Volkswagen Group Australia Pty Ltd v Saad [2022] NSWCATAP 133 Wells (Merstham) Ltd v Buckland Sand and Silica Ltd [1965] 2 QB 170 Texts Cited: 2023 Miller's Australian Competition and Consumer Law Annotated, Russell V Miller, 45th Ed Cheshire & Fifoot, Law of Contract, LexisNexis Australia, 10th Australian Ed Oxford English Dictionary, online ed, May 2024 Category: Principal judgment Parties: Appellant: Craig Levy Respondent: Mercedes-Benz Australia/Pacific Pty Ltd Representation: Appellant: Self-represented Respondent: S Sidley, Corporate Counsel File Number(s): 2024/00036664 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: 04 January 2024 Before: P French, Senior Member File Number(s): 2023/00383392