Frediani v Hall t/as Happy Camper Conversions [2024] NSWCATAP 134

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Frediani v Hall t/as Happy Camper Conversions [2024] NSWCATAP 134 Hearing dates: 11 April 2024 Date of orders: 10 July 2024 Decision date: 10 July 2024 Jurisdiction: Appeal Panel Before: Armstrong J, President G Sarginson, Senior Member Decision: (1) The appeal is allowed. (2) The orders of the Tribunal made on 8 January 2024 are set aside. (3) The proceedings are remitted to the Tribunal to be reconsidered according to law, other than the finding of the Tribunal that the respondent has breached the consumer guarantee under s 55 of the Australian Consumer Law (NSW) which remains undisturbed. (4) In the remitted proceedings, the appellant is granted leave to rely upon the report of NSW Fair Trading dated 4 December 2023; the affidavit of the appellant dated 14 March 2024; and the documents referred to as "Bundle 1" in the decision of the Tribunal made on 8 January 2024. (5) What further or other evidence can be relied upon by the parties in the remitted proceedings is to be considered by the Tribunal at an interlocutory directions hearing. (6) The costs of the appeal proceedings are to be determined as follows: (a) The appellant is to file with the Appeal Panel and serve on the respondent all costs submissions and documents (no more than 5 pages) by 14 days from the date of this decision. (b) The respondent is to file with the Appeal Panel and serve on the appellant all costs submissions and documents (no more than 5 pages) by 28 days from the date of this decision. (c) The appellant is to file with the Appeal Panel and serve on the respondent all costs submissions in reply (no more than 3 pages) by 35 days from the date of this decision. (d) The costs submissions of the parties are to include whether or not a hearing on the issue of costs can be dispensed with and if not, why not. (e) Subject to consideration of the costs submissions of the parties, the Appeal Panel may determine the issue of costs on the papers and without a hearing under s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW). (f) If a party seeks an extension of time to comply with directions regarding the disposition of the issue of costs, an application should be made in writing to the Appeal Panel by no later than the day prior to the date of the relevant timetable obligation. Catchwords: APPEALS – questions of law – leave to appeal – failure to engage with clearly articulated case – constructive failure to exercise jurisdiction – wrong legal principle applied CONSUMER LAW - Australian Consumer Law (NSW) - fitness for purpose - modification of vehicle -whether failure a major failure - rejection of goods -remedies - principles applicable Legislation Cited: Australian Consumer Law (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Fair Trading Act 1987(NSW) Fair Trading Regulation 2019 (NSW) Cases Cited: Alexandria Landfill Pty Ltd v Transport for NSW (2020) 103 NSWLR 479; [2020] NSWCA 165 Australian Competition and Consumer Commission v Jayco Corporation Pty Ltd [2020] FCA 1672 Australian Competition and Consumer Commission v Valve Corporation (No 3) (2016) 337 ALR 647; [2016] FCA 196 Bell Solar Pty Limited t/as Sunboost v Anderson [2021] NSWCATAP 278 Bimson, Roads & Maritime Services v Damorange Pty Ltd [2014] NSWSC 734 Capic v Ford Motor Company Pty Ltd [2021] FCA 715 Collins v Urban [2014] NSWCATAP 17 Commissioner of Police, NSW Police Force v DYD [2023] NSWCATAP 244 Commissioner of Police, NSW Police Force v Hogan [2024] NSWCATAP 77 Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389; [2003] HCA 26 Dwyer v Volkswagen Group Australia Pty Ltd [2023] NSWCA 211 Dwyer v Volkswagen Group Australia Pty Ltd t/as Volkswagen Australia [2021] NSWSC 715 Ferella & Anor v Chief Commissioner of State Revenue [2014] NSWCA 378 Ford Motor Company of Australia Pty Ltd v Capic [2023] FCAFC 179 Garofali v Moshkovich [2021] NSWCATAP 242 Liu v Director of Public Prosecutions (NSW) [2024] NSWSC 382 LSH Auto (Sydney) Pty Ltd v Sherman [2020] NSWCATAP 246 New South Wales Housing Corporation v Orr [2019] NSWCA 231 Nu-Stone Building Ltd v McInerney [2023] NSWSC 940 Orr v Cobar Management Pty Limited (2020) 103 NSWLR 36; [2020] NSWCCA 220 Rice Marketing Board for the State of New South Wales v Forbidden Foods Pty Limited; Forbidden Foods Pty Limited v Rice Marketing Board for the State of New South Wales [2020] NSWCATAP 182 Schwartz Family Co Pty Ltd v Capitol Carpets Pty Ltd [2017] NSWCA 223 Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597 Starr v Johnson [2023] NSWCATAP 190 Thomas and Naaz Pty Ltd v Chief Commissioner of State Revenue [2023] NSWCA 40 TNT Building Trades Pty Ltd v Baker [2023] NSWCATAP 178 Toyota Motor Corporation Australia Limited v Williams (2023) 296 FCR 514; [2023] FCAFC 50 Waverly Council v Whitehouse Properties Pty Limited [2020] NSWLEC 171 Williams v Toyota Motor Corporation Australia Limited [2022] FCA 344 Wilson v Winnicott [2021] NSWCATAP 211 Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 Texts Cited: Macquarie Dictionary Category: Principal judgment Parties: Julianne Frediani (Appellant) Matthew James Hall t/as Happy Camper Conversions (Respondent) Representation: Counsel: A Wilson (Appellant) P Wiggins (Respondent)