Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Daley v Budget Auto Group Pty Ltd [2024] NSWCATAP 149 Hearing dates: 27 June 2024 Date of orders: 1 August 2024 Decision date: 01 August 2024 Jurisdiction: Appeal Panel Before: M Harrowell, Deputy President D Goldstein, Senior Member Decision: 1. Leave to appeal is granted, the appeal is allowed and the orders made14 March 2024 in application 2024/00076640 are set aside. 2. The proceedings are remitted for hearing by a differently constituted Tribunal. 3. The remitted proceedings should be first listed for directions, the Tribunal on remittal to make such directions for the future conduct of the proceedings as it thinks fit. Catchwords: PRACTICE AND PROCEDURE – Tribunal Member acting as a conciliator and as the Member constituted to hear the dispute – obligations of Tribunal when performing dual role – power to set aside consent orders – duty of Tribunal to ensure parties understand nature of proceedings - incorrect and incomplete statements as to the law during conciliation – reliance by party consenting to orders on incorrect or incomplete statements made by Tribunal Legislation Cited: Australian Consumer Law (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Motor Dealers and Repairers Act 2013 (NSW) Cases Cited: Aboriginal Housing Office v Harrison [2021] NSWCATAP 97 Keybridge Capital Limited v Molopo Energy Limited [2024] NSWSC 779 McDonald v McDonald [2016] NSWCATAP 244 Richards v Lindley [2024] NSWCATAP 9 Yuen v Thom [2016] NSWCATAP 243 Texts Cited: Nil Category: Principal judgment Parties: Marie Daley (Appellant) Budget Auto Group Pty Ltd (Respondent) Representation: Counsel: Mr S Fox (Appellant) Solicitors: Appellant: Legal Aid NSW M Sultan (Director) (Respondent) File Number(s): 2024/00136250 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: 14 March 2024 Before: K Ruschen, General Member File Number(s): 2024/00076640 REASONS FOR DECISION 1. This appeal concerns the purchase by the appellant of a used Nissen Navarra motor vehicle (vehicle) from the respondent on 23 October 2023 for an amount of $7,500. 2. At the time of purchase, the vehicle had travelled 396,497 km. 3. In an application filed in the Tribunal on 27 February 2024, the appellant says the vehicle "broke down the day after purchase" and that she paid $3,595 in towing costs and repairs. The appellant said the respondent "refused to supply any remedy" and that she had "rejected the vehicle in compliance with ACL provisions". The appellant was seeking a refund and compensation, the amount claimed in the application being $11,095. 4. The application was listed for conciliation and hearing on 14 March 2024. At that time, consent orders were made by the Tribunal to resolve the dispute. The orders were in the following terms: 1. Marie Waley is amended to Marie Daley. 2. The respondent Budget Auto Group Pty Ltd, [address], is to pay the applicant Marie Daley, [address], the sum of $1000.00 by on or before 28 March 2024. Details of the money order: agreed settlement sum $1,000. Note: Failure to pay the money owed, can result in this certified money order, being registered by the person owed the money, in the Local or District Court to enforce the debt. This may result in additional costs and interest being added to the amount payable. These orders are made BY CONSENT of the parties in full and final settlement of the Application. 1. The appellant appeals this order. Notice of Appeal 1. A notice of appeal was filed on 11 April 2024. The appeal was filed in time. 2. The orders sought on appeal were as follows: 1. The original settlement orders are set aside. 2. The motor vehicle was correctly rejected in compliance with the ACL and the contract rescinded. 3. Title of the vehicle passed to the dealer upon receipt of the rejection letter. 4. The respondent to refund of the contract price to the appellant ($7500). 5. The respondent pay damages to the appellant ($3602). 1. The grounds of appeal were in the following terms: Despite the consent orders, the applicant is seeking leave to lodge this appeal on the following grounds. (a) the decision of the Tribunal to make consent orders was not fair and equitable; i. The Tribunal erred in law by failing to consider or apply section Australian Consumer Law. The member's comments and directions have misled parties that any further action would likely fail. ii. The Tribunal has not considered the evidence before it provided by the applicant which was not fair and equitable in the circumstances. iii. Undue influence and unjust conduct contributed to the making of the agreement. 1. Following a call over on 1 May 2024 and directions being made by the Appeal Panel, the appellant filed submissions and evidence in support of her position. As necessary, we will refer to these documents below. 2. The respondent did not comply with the directions of the Appeal Panel. No Reply to Appeal was filed nor were any written submissions and other documents provided. 3. The appeal was heard on 27 June 2024. At that time, the appellant was represented by Mr Fox, a solicitor from Legal Aid NSW in Dubbo. Mr Sultan, director, appeared for the respondent. 4. Notwithstanding the respondent's failure to comply with the Appeal Panel's directions, the parties were content for the matter to proceed on the basis the respondent's representative would be entitled to make oral submissions. No adjournment was otherwise sought. Consideration 1. This appeal concerns the manner in which conciliation was conducted by the Tribunal Member presiding at what is referred to in the Consumer and Commercial Division (CCD) as a "Group List" hearing and whether consent orders made in consequence of what occurred may be set aside. 2. There is a right of appeal on a question of law. Otherwise, leave to appeal is required: s 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). As these proceedings are an appeal from a decision of the CCD, leave may only be granted if the appellant may have suffered a substantial miscarriage of justice: Sch 4 cl 12(1) NCAT Act 3. In order to understand the issues raised by this appeal, it is useful to briefly set out what may occur at a Group List, how consent orders are made by the Tribunal and how consent orders might be challenged on appeal. Group Lists and conciliation 1. Group Lists are the listing procedures adopted by CCD for various lists which include residential tenancy disputes, consumer claims, and motor vehicle claims (of which the present proceedings are one). 2. Where proceedings are listed in a Group List, the Registrar issues to the parties a notice entitled "Notice of conciliation and hearing (group list)". The notice specifies the location of the hearing, its date and time. That notice includes a heading "Important information". Under this heading the parties are referred to the Tribunal's website and a document entitled "Hearing preparation checklist". In turn, this document refers to a fact sheet entitled "Conciliation", which explains the process and who may facilitate the conciliation process on behalf of the Tribunal. In this regard, a registrar conciliator, Tribunal Member or other person appointed by the Tribunal may perform this role. 3. When parties appear on the first listing date, the Tribunal will usually identify the issues which arise in the proceedings and require the parties to undertake a process of conciliation to investigate whether the dispute can be resolved by consent without the need for a contested hearing. 4. As noted in the Conciliation fact sheet, the conciliation may be carried out by a person appointed as conciliator or by the Tribunal Member before whom the proceedings are listed for hearing (Presiding Member). Where proceedings have been the subject of conciliation by a conciliator which has not resolve the dispute, the Presiding Member may also speak to the parties concerning the possible settlement of their dispute. This is both permissible under s 37 of the NCAT Act and in consistent with the objects of the NCAT Act found in s 3 and the guiding principle found in s 36 of the NCAT Act. Power to make consent orders 1. Where proceedings settle, the Tribunal may make orders by consent. As noted in Aboriginal Housing Office v Harrison [2021] NSWCATAP 97 (Harrison) at [80] and following: 1. consent orders can be made to give effect to a written agreement as permitted by s 59 of the NCAT Act. If consent orders are made under this section, any agreement must be in writing and signed by or on behalf of the parties and lodged with the Tribunal. The Tribunal must be satisfied it would have the power to make a decision in the terms of the agreed settlement or in terms consistent with the terms of the agreed settlement: see s 59(1); or 2. consent orders can be made by the Tribunal at a hearing in the absence of a written document complying with s 59(1)(a). Of course, the parties must appropriately indicate their consent to the Tribunal for this purpose. 1. In either case, where appropriate, the Tribunal must have regard to r 37 of the Civil and Administrative Tribunal Rules 2014 (NSW) (Rules) which requires the Tribunal "to take into account the interests of any vulnerable person (whether or not a party to proceedings)" if the particular person is a party to or the subject of the proceedings concern and it is appropriate to do so. The definition of a vulnerable person is found in r 37(3). Principles applicable to setting aside a consent order 1. As is evident by their nature, consent orders are made in consequence of an agreement between the parties. Such orders can only be made if they are within the power of the Tribunal to make by reason of the NCAT Act or the relevant enabling legislation. Parties cannot agree to extend the Tribunal's jurisdiction so as to permit the making of orders which the Tribunal otherwise has no power to make. 2. Once made, consent orders are binding on the parties, unless set aside. In this regard, they may give rise to res judicata or an issue estoppel and/or operate in a manner to prevent parties from subsequently litigating the same subject matter: see eg Keybridge Capital Limited v Molopo Energy Limited [2024] NSWSC 779 at [77]-[84]. 3. Because a consent order is made pursuant to an agreement between the parties, it may be set aside at common law on the same basis as an agreement might be set aside. As to what circumstances are necessary to justify such a course, the Appeal Panel said in Yuen v Thom [2016] NSWCATAP 243 (Yuen) at [36]-[40]: 36 At common law, a consent order may be set aside on the same basis that the underlying agreement may be set aside. This was considered by the Appeal Panel in Loch v New South Wales Land and Housing Corporation [2014] NSWCATAP 110. The Appeal Panel said at [27]: At common law, the grounds for setting aside a consent order are the same as those for setting aside the agreement on which it is based: Bernard Cairns, Australian Civil Procedure (8th ed, 2009 Law Book Co) at 418. In Harvey v Phillips (1956) 95 CLR 235, the High Court said, at 243-4, that: The question whether the compromise is to be set aside depends upon the existence of a ground which would suffice to render a simple contract void or voidable or to entitle the party to equitable relief against it, grounds for example such as illegality, misrepresentation, non-disclosure of a material fact where disclosure is required, duress, mistake, undue influence, abuse of confidence or the like. 37 To set aside a consent order on one of the above bases, it must be possible to point to some contumelious conduct on behalf of the respondent. For instance, in the case of duress it must be shown that illegitimate pressure was placed on the appellant such that there was no reasonable alternative for her but to submit: Crescendo Management Pty Ltd v Westpac Banking Corporation (1988) 19 NSWLR 40, 46A. There is no suggestion that illegitimate pressure was brought to bear, the complaint here is that the appellant did not fully understand the process. 38 With respect to undue influence one must point not only to a source of power to deprive another person of free voluntary consent, but also the result of the actual influence: Johnson v Buttress (1936) 56 CLR 113, 134. This is not a case where one of the presumed relationships of undue influence arises such as for a parent and child or solicitor and client: White v Wills [2014] NSWSC 1160, [64], [75]. Here, no actual influence was pointed to. 39 In relation to mistake, the misapprehension must arise in relation to a fact, law or circumstances that affects the substance of an obligation or the mistaken party's motives for entering into the contract: Clasic International Pty Ltd v Lagos (2002) 60 NSWLR 241, [39], [42]-[43]. Assuming for the purposes of argument, that the appellant was mistaken as to whether or not she could refuse the respondent's offer, the question is whether that mistake was of a type that vitiates her consent. A common mistake arises when the mistaken belief is held by both parties: Clasic International Pty Ltd v Lagos (2002) 60 NSWLR 241, [41], applying Solle v Butcher [1950] 1 KB 671, 693. That does not arise here. A unilateral mistake is where one party is mistaken but the other party should have been aware of the mistake: Taylor v Johnson (1983) 151 CLR 422, 432. The appellant does not contend that the respondent ought to have known of any mistake upon which she was operating. A mutual mistake arises where both parties are mistaken, but their mistakes are different such that there is no meeting of minds: Charitou v The Owners of Strata Plan 10394 [2015] NSWSC 1059, [22]. Here, the parties both understood the bargain that was made; there is no misapprehension about the terms of the purported agreement. The issue is, was there an agreement reached even though the appellant did not understand the bargaining process. The Appeal Panel is of the view that the answer is yes because a reasonable observer would have concluded that an agreement was reached: see N Seddon, R Bigwood and M Ellinghaus, Cheshire & Fifoot Law of Contract (LexisNexis, 10th Aus ed, 2012) at [3.9]. 40 Other factors might arise such as non est factum (not my deed). The defence of non est factum is available to a limited class of persons who through no fault of their own, such as by blindness or illiteracy, are unable to have any understanding of the meaning of a particular document and sign the document in the belief that it was radically different from what was in fact signed: Petelin v Cullen (1975) 132 CLR 355, 359-60. However, the appellant is not suggesting she did not understand the document she was signing. 1. These matters go to the question of whether there was in fact an agreement between the parties, not whether the conduct of the Tribunal provides a basis to impugn consent orders. 2. Whether the conduct of the Tribunal gives rise to circumstances that could vitiate any consent or permit the orders to be set aside on appeal is a different question. This is because considerations relevant to whether an agreement has been formed between the parties are different to those relevant to evaluating the conduct of the Member or Members constituting the Tribunal. 3. As explained in Harrison at [38], the issue is one of irregularity in the conduct of the Member, the consideration being similar to the enquiry undertaken when reviewing the conduct of an arbitrator in a commercial arbitration. At [41]-[51] the Tribunal continued: 41 Adapting these principles to the Tribunal, a Member's conduct is to be considered in the context of the obligations imposed upon the Tribunal under the NCAT Act and the manner in which those obligations are performed. They must also be considered in the context of the role or roles the Member is to perform. 42 As stated above, in proceedings before the Tribunal, a Member may be required to act as both conciliator/facilitator and subsequently as decision-maker, s 37 of the NCAT Act empowering the Tribunal to use "any one or more resolution processes" … "to resolve or narrow issues". The making of a consent order following settlement is the exercise of power as a decision maker. 43 The performance of both roles in the same proceedings is not prohibited. However, the obligations imposed upon the Tribunal may limit the ability of a particular Member to exercise the Tribunal's order making powers if that Member has acted as a conciliator/facilitator and what occurred during the alternative dispute resolution process makes it inappropriate to do so. 44 In performing these roles, consistent with the objects in s 3 of the NCAT Act, the Tribunal must ensure it: (1) "is accessible and responsive to the needs of all its users"; (2) "resolve[s] the real issues in dispute in proceedings justly, quickly, cheaply and with as little formality as possible"; (3) makes decisions that "are timely, fair, consistent and of high quality"; and (4) "is accountable and has processes that are open and transparent". 45 The principles of case management, the limitation on Tribunal resources and issues of proportionality, the Tribunal's caseload, and the powers granted and obligations imposed on it under ss 36, 37 and 38 of the NCAT Act require the Tribunal to engage with the parties using various forms of dispute resolution which are available and appropriate in the circumstances of the particular case. 46 Where alternative dispute resolution processes are adopted and consent orders are consequentially made or the Tribunal proceeds to determine a dispute at a contested hearing where alternative dispute resolution processes have been engaged, the Tribunal is nonetheless required to comply with its statutory and other obligations imposed at law. Procedural obligations include: (1) affording the parties natural justice: s 38(2) NCAT Act; (2) acting with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms: s 38(4) NCAT Act; (3) ensuring the parties to the proceedings understand the nature of the proceedings: s 38(3)(a) NCAT Act; (4) if requested, explaining any aspects of the procedure of the Tribunal or any decision or ruling made by the Tribunal that relates to the proceedings: s 38(3)(b) NCAT Act; (5) ensuring the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings: s 38(3)(c) NCAT Act. 47 Failure to comply with these obligations is to be treated as an irregularity, the Tribunal being permitted to wholly or partly set aside a decision in proceedings when dealing with such irregularity: see s 53(3) and (4) of the NCAT Act and Atkinson v Crowley [2011] NSWCA 194 per Basten JA at [12]-[13]. Such failures may also constitute an error of law: see eg Italiano v Carbone & Ors [2005] NSWCA 177. 48 Where an order is made by consent by the same Member who has assisted the parties in reaching a settlement agreement, this fact alone is not sufficient to give rise to an irregularity that might render such an order liable to be set aside. Rather, there must be some breach of the obligations above which would give rise to a substantial injustice that should be corrected. 49 Such injustice might arise by the Tribunal imposing undue pressure on the parties to reach a settlement. At an extreme position, bullying or intentionally preventing a party from presenting its case would also give rise to circumstances justifying the setting aside of any consent order made. 50 Relevant considerations would also include whether the party affected is a vulnerable person within the meaning of r 37 of the Rules. 51 On the other hand, statements made during the course of a conciliation process, where no decisions are made and where a party is not otherwise prevented from pursuing its lawful claims would not, without more, be conduct that would give rise to an irregularity sufficient to justify the setting aside of an order made by consent. 1. The approach in Harrison was recently affirmed in the decision of Richards v Lindley [2024] NSWCATAP 9 (Richards) at [31]. In that case, which concerned a consumer claim about a battery from an e-bike that had exploded and damaged the e-bike and surrounding property, the Appeal Panel set aside the consent order. At [33] the Appeal Panel said: In order to set aside an order made by consent, there must be some conduct which is in breach of these obligations and which would give rise to a substantial injustice that should be corrected. An example might be where the Tribunal Member engaged in bullying behaviour or placed undue pressure on the parties to reach a settlement. As is relevant to this matter, as it was in Harrison, a statement made by a Member during the course of a settlement process, where no final decision is made on the evidence and where a party is not otherwise prevented from pursuing its claims would not, without more, be conduct that would give rise to an irregularity sufficient to justify the setting aside of an order made by consent: Harrison at [51]. 1. The Appeal Panel there found the conduct of the Member did give rise to circumstances justifying setting aside the consent orders for the following reasons: 1. The Member made erroneous and misleading statements as to the Tribunal's jurisdiction and the remedies available to Mr Richards; 2. The transcript showed Mr Richards was significantly influenced by the Member's statements in reaching an agreement with Mr Lindley; 3. Mr Richards had a disability. While the Member was unaware of the disability, "she made no attempt to check that Mr Richards either understood or agreed to the final form of the orders made, including the notation, which is what would be expected". 1. The Appeal Panel concluded at [41]: 41 We are of the view that the Member's misunderstanding of the law and her insistence to Mr Richards that he could not make the claim he had against Mr Lindley, in combination with Mr Richards' disability, prevented him from pursuing his claim for the full amount of his claimed his (sic) loss. The Member was in breach of her obligations to ensure that the parties understood the nature of the proceedings (by mischaracterising those proceedings) and to ensure that Mr Richards understood the agreement he was entering into. We are satisfied that these matters give rise to a substantial injustice such that the appeal should be allowed. 1. From these decisions, the following considerations emerge when evaluating the conduct of a Member constituted as the Tribunal to determine proceedings who also acts as a conciliator and deciding whether there has been some irregularity or misconduct which should lead to a consent order being set aside: 1. Were any statements made during the conciliation by the Member concerning the law and its operation incorrect? 2. Were the incorrect statements in fact relied upon by the party seeking to set aside the consent order? 3. Were any incorrect statements made by the Member, which might give rise to any misunderstanding of the law in the minds of a party, ameliorated by any other statements made by the Member, such as reliance should not be placed on what is said during discussions and/or parties should obtain and rely on their own independent legal advice? 4. Was the party seeking to challenge the consent order legally represented and/or able to obtain independent legal advice concerning any statements made by the Tribunal prior to the consent orders being made? 5. Was the party seeking to challenge the consent order under a disability? 6. Were the requirements of r 37 of the Rules met? 7. To the extent incorrect statements are made, were they material to the settlement that has been reached? 8. Was consent actually obtained by the Tribunal prior to making the order being challenged? 9. Do the above matters lead to the conclusion that the consent orders should be set aside because there has been a substantial injustice? 1. Of course, the preferable (but not mandatory) position in conciliation is that the Tribunal Member does not make any statement that might be considered by the parties to be a concluded view of the Tribunal of any matter of fact or law which is in dispute. Also, the Tribunal should not make statements in the nature of legal advice. 2. An exception might be where there can be no reasonable dispute about a particular issue and any statement made by the Tribunal is correct. In this case, the Tribunal is acting in accordance with the guiding principle found in s 36(1) which "is to facilitate the just, quick and cheap resolution of the real issues in the proceedings". 3. In this way, the facilitation process is properly seen as that adopting a "neutral" position of the Tribunal Member. Consistent with this approach, the Tribunal Member may identify possible issues and outcomes but not make incorrect statements which might be seen as a decision by which the parties would inevitably be bound. 4. We should note in passing, that the position might be different concerning statements made during the course of a hearing. As frequently occurs, a tribunal or court hearing proceedings might express views during the course of the hearing as to possible or final conclusions. Subject to issues of procedural fairness and bias (actual or apprehended), such conduct will not, of itself, give rise to circumstances justifying the setting aside of any consent order that might be made because a settlement is reached part way through a hearing. Disposition of this appeal 1. The appellant contends in her written submissions that the consent orders should be set aside on the basis of unilateral mistake, mistake of fact and undue influence and unconscionable conduct. 2. As to unilateral mistake of law, the appellant says the Tribunal "erred in law by failing to consider or apply section 54 of the Australian Consumer Law". 3. The appellant then makes reference to the Tribunal "repeatedly [making] comments that led the parties to believe that any action would fail, the vehicle [having] 'no warranty' and "no dealer guarantee'." In this regard, the appellant said the Tribunal failed to mention "a vehicle still had to meet the guarantees under the ACL". 4. As to mistake of fact, having referred to the appellant having contacted the dealer the day after purchase to advise of the issues and the dealer only offering a remedy of a $500 cash payment, the appellant said at [28] of her submissions: The evidence lodged with the application was not considered by NCAT. The members assumption that the [appellant] failed to give the respondent the opportunity to fix the vehicle is false. The respondent also told NCAT the [appellant] rang him the day after purchase to advise of the problems and offered them $500 only". 1. As to undue influence and unconscionable conduct, having referred to Harrison at [58], the respondent said at [37]-[39]: 37 The [appellant] and her husband reside in a small community of Brewarrina, NSW. 38 They had to travel to Sydney to attend the conciliation and if the matter had been set down for a hearing would likely assume they had to travel back to Sydney. 39 This travel would likely be a significant time and cost to the [appellant] and likely have influenced her decision to agree to the settlement. 1. As to unilateral mistake of law and mistake of fact, these matters go to the issue of whether the agreement can be set aside by reason of the fact there was no agreement between the parties, as opposed to any irregularity in the conduct of the proceedings by the Tribunal. As explained in McDonald v McDonald [2016] NSWCATAP 244 at [59(4)]: (4) With respect to mistake: (i) the misapprehension must arise in relation to a fact, law or circumstances that affects the substance of an obligation or the mistaken party's motives for entering into the contract; … (iii) a unilateral mistake is where one party is mistaken but where there are no other vitiating circumstances, such as misleading or deceptive conduct, fraud or misrepresentation, a unilateral mistake will not generally constitute a basis for setting aside an agreement unless the mistake is a serious mistake in relation to a fundamental term of the agreement and the other party knew of, or contributed to, the mistake. 1. There are a number of reasons why these submissions should be rejected. 2. First, despite the language used in the submissions, the Tribunal was not considering or making any determination concerning its application to the matters in dispute. The Tribunal was acting as a facilitator. 3. Secondly, there is no conduct of the respondent to which we have been referred that would lead us to conclude there was a unilateral mistake made by the appellant of which the respondent was aware that would justify the setting aside of the consent order on these bases: cg Yuen at [39]. 4. Thirdly, as to the matters said to constitute undue influence and unconscionable conduct, it will be evident that the facts referred to in the submissions identify commercial reasons why a party might wish to settle proceedings to avoid incurring any expense in pursuing their claims. They are not matters which would, of themselves, cause any settlement agreement to be set aside, let alone matters which might be said to be conduct of the respondent which might vitiate any settlement agreement. 5. Consequently, the challenge on these bases fails. 6. However, as will be evident from the written submissions and what was said in oral submissions at the hearing of the appeal, the appellant also says she was misled because of comments made by the Tribunal Member during the course of settlement discussions. The appellant relied on the transcript of the hearing at first instance at which the consent orders were made and identified particular extracts of what the Member said. The transcript (tcpt) is contained in the appellants bundle (AB), filed in this appeal. 7. As we noted above, the discussions with the presiding Member occurred in the hearing room. The Member was not then hearing the dispute, but rather continuing to explore the possibility of settlement. Before that time there had, apparently, been settlement discussions outside the hearing room, where offers had been made but no agreement reached. 8. In short, the appellant says the communications from the Member only concerned the absence of any warranty under the Motor Dealers and Repairers Act 2013 (NSW) (MDR Act). The Member failed to make mention the vehicle still had to meet the guarantees under the ACL, the appellant having paid $7,500 for the vehicle. Consequently, the appellant said she was misled regarding her rights under the law. 9. This challenge needs to be considered in the context of the application that was made to the Tribunal and what was said by the Member, the appellant and her husband during the settlement discussions. 10. First, the original "Motor vehicle consumer claim application" dated 27 February 2024, which was filed in Dubbo, contained the following information in section 4. Under the heading 4A "What orders do you want?" the appellant says: Rescission of the contract. a) full refund of contract price $7500. b) Compensation for economic loss $3595. c) compensation for noneconomic loss – stress and anxiety. 1. Under the heading 4B "Why are you applying to NCAT?" the appellant said: Car broke down the day after purchase. I have paid $3595 in tow costs & repairs. I have rejected the vehicle in compliance with ACL provisions. I am seeking a refund & compensation. 1. The appellant had attached to her application a letter purporting to reject the vehicle dated 12 February 2024 (Rejection Letter). The letter was in the following terms (formal parts omitted): I refer to the above vehicle purchased from your dealership on 23 October 2023. The vehicle has broken down multiple times and I have incurred significant expense trying to have the car repaired and made roadworthy. On the 24 October 2024 the vehicle was taken to Repco in Tuggerah as there was smoke coming from the motor and oil was leaking from the car. The Repco mechanic carried out repairs to the car as detailed in the attached invoice/We paid a total of $2125.00 and work was completed on 10 November2023. On 25 December 2023 the car broke down again arid was towed to Jax Tyres & Auto at ### which cost $132. Jax Auto had to carry out further repairs which costs $458 The vehicle was driven to Goonellabah and then to Coraki. On the way back home to Brewarrina, the vehicle broke down again and was towed to Paul ray mechanical in Inverell which cost $887. The car has now been diagnosed as needing a new engine. A second-hand motor will cost between $5000-$7500 and a new motor $15000 excluding labour. The vehicle is not roadworthy and not able to be driven. This car is not for (sic) for purposes, free of defects, durable, acceptable or safe. It likely has latent defects and I feel as I have been misled about the roadworthiness of the car. Rejection notice As required by the Australian Consumer Law (ACL), this letter serves to reject the vehicle and request a full refund of the vehicle plus costs that I have incurred trying to make the car roadworthy. The total cost I am seeking is $11,102 The car is currently located at ### is not driveable so it can not be returned to your dealership at my expense. Please contact me on 0491 927 780 to arrange collection of the vehicle. If I have not heard from you by Friday 23 February 2024 I will commence action in NCAT seeking rescission of the contract under the ACL and damages 1. We note in passing the invoice from Topline Automotive Services Pty Ltd trading as Repco Services (Repco) dated 24 October 2023, in the amount of $65.00, records a number of items which require repair. At the end of that invoice it states: Vehicle in its current state is unroadworthy and would fail Registration safety inspection. 1. It would seem from a subsequent invoice from Repco dated 10 November 2024 that the works listed in the invoice dated 24 October 2023 were carried out. There is no suggestion, at this stage, that the vehicle was "unroadworthy". 2. Quite clearly, the appellant was asserting a claim under the Australian Consumer Law (NSW) (ACL) and purported to reject the goods under that legislation and had some understanding of the relevant legislation. 3. However, the appellant says the conduct of the Member misled her as to her rights in consequence of which she agreed to settle the proceedings. 4. Below are some of the passages of the transcript upon which the appellant relies to support this proposition, together with the responses from the appellant, her husband (Eddy) and the respondent's representative. We have also added other extracts of the transcript which we consider relevant to determining this appeal. In doing so, we have listened to the sound recording and corrected some errors in the transcription. We have added emphasis to some statements, which are relevant to the factual conclusions we reach below. 5. At AB 27-28 the following discussions occurred: Member: "You've got a bit of difficulty here because you've deprived the see, the Tribunal has to consider what the appropriate remedy is and … in the first instance, we consider whether a work order is appropriate rather than money. OK, now umm. You have deprived the respondent and opportunity to fix It at their own cost. The reason we give them that opportunity is because it will be cheaper for them because they'll do it, They're in house cost price rather than pay another service provider, retail, or commercial rates. Alright, basically what you've paid somebody OK? Umm, so if you've deprived them of that opportunity quite often, there's no remedy left for you. What are you seeking now? Are you seeking a refund still or what? What are you? What are you seeking? Eddy: We are seeking financial stress, right? Appellant: Yeah. Member: No, no, Appellant: We rang up the next day to ask and we have our money back. Member: But what are you seeking today? That the reimbursement of repair costs? Appellant: Yeah Member: or refund of the vehicle? Appellant: If both possible Member: Well, you can't get both … (unintelligible) Eddy: Isn't it an Australian law no car yard in Australia sells a vehicle over $1000 for a couple $1,000 or 5000 without warranty. Member: No, that's not rights sir. Eddy: That's what we've been told. Member: No. Well, there is the. Umm, the second-hand vehicles. There is a piece of legislation called the Motor Dealers and Repairers Act, okay? And under that legislation, vehicles that are either over 10 years old or have done over 164,000 kms … (unintelligible) Respondent: 160,000 kms. Yeah. Eddy: Shouldn't have been sold from a car yard. Member: Over 160,000 kilometres are exempt from the dealers guarantee. 160,000 kilometres are exempt from the dealers guarantee, so when it is sold, there is no guarantee on a vehicle that either more than 10 years old or was done over 160,000 kilometres. So you bought a vehicle? How? How many kilometres? Respondent: 360,000 kilometres. Member: So almost so, more than double that. Eddy: We brought a dummy. We brought a dummy. Member: Yeah. What I'm saying is Consumer, the idea is a Consumer should. I mean put it this way. Personally, I would probably never buy a vehicle and has done 400,000 kilometres if I wanted a reliable vehicle to use for my daily use. I wouldn't buy it. Alright. Umm, because me idea is that a Consumer must accept when you're buying a vehicle that's either more than 10 years old or over$160,000, its reliability is now becoming seriously compromised because it's at the end of its reliable lifespan. And once it passes that lifespan, who knows what whether it could break down every single day." 1. The conversation then continued about the amount spent on repairs by the appellant, those repairs being done between 24 October 2023 and 3 January 2024: see invoices attached to the original application form. 2. At AB 31-2 the following exchange occurred in response to the respondent and the Member discussing the provision of warranties: Member: So you wouldn't be allowed to give your warranty for a vehicle that's 17 years old with almost 400,000 kilometres. Of course things are going to go wrong. Nobody's going to give you a warranty for that. Eddy: So…. Member: not even for three months. Eddy: … why let them? Why are they allowed to sell? Member: Because the legislation says they can and the legislation says it comes with no guarantee and the consumer has to decide, do I want to buy the vehicle that's more than 10 years old or more than 160,000 kilometres and take my chances. Or do I want to by a vehicle that is only 8 years old and comes with a warranty. Eddy: We had three different Australian mechanics, right? Put it on paper saying that shouldn't be on the road in the first place. Respondent: That's after you had an .. .(Unintelligible) and the car broke down on you. Eddy: That's why I went and got it. Fine. I've done it. You will get nowhere to today by the sound of it, not taking $1000 dollars. OK, . . (Unintelligible) swore in front of the judge. Member: Oh. So. OK, So what do you want to do? You want to take your chances and go to a hearing: Have the tribunal decide, or do you want to reconsider? Maybe make a counter offer like what? What? What? What would it take for you to resolve this, bare in mind all the risks that you've got with this claim? Aye, so you've got a vehicle. That's very old. Done a lot of kilometres Eddy: And we're broke and we can't fix it. Member: A lot of wear and tear and it's life and … you didn't get back to him on his $500.00 dollar offer. So he was left not knowing, you know that there's anything major wrong when he could have taken the vehicle back in and had a look at it, got it diagnosed and got it. Well, its own cost and I think that the tribunal needs to consider, umm, you've gotta guaranteed $1000 at the moment. We could maybe make a counter, I mean, is there anything left in the Kitty? You push it up a bit to make it a bit more attractive, Respondent: The boss said $1000 bucks is all his willing to offer. Member: If you get close to that, he might be prepared to go back to his boss and see if he can push it up a little bit. When they've got a business to run, there might be motivated by the fact that if they can settle it, they don't have to have to have people out of the office out down here. Eddy: We have a life to live too. Member: Sorry. What was that, Sir? Eddy: We gotta life to live to. And we're in the middle of nowhere, we got no access like the city got right. We're in the middle of nowhere. We travelled down here on our last little bit of money. We gotta bludge money to get back home now. Alright. me and my missus. My got nothing, absolutely nothing. Everything went on the vehicle. The vehicle's that bad I had to buy a pair tyre for it. Lucky I had a couple of spare jacks and wheel spanners at home. Member: Are you using the vehicle now? Eddy: No. Appellant: It won't go. Eddy: It won't go, it's at a mechanic at Inverell. It made it as far as the Grafton ranges. Coming back from Lismore on the Mid North Coast. Member: OK. Yeah. Do you want me to timetable it for a hearing, or do you want to consider resolving it for around $1000 or something else that you might want to offer to see if they are interested? Eddy What do you reckon? Appellant: I have no idea. I have no idea Eddy: I think we will seek legal advice from our lawyer in Dubbo. Member: So can that offer remain open for a period of time., Respondent: Yes Member How long? Respondent: As long as you seek. Member: So I think it's a good idea to get some advice. OK, because as soon as you come in that door with a vehicle that's over 10 years old and over $160,000, … 160,000 kilometres. Umm, you've got an uphill battle, right? Because of the legislation, your hill is even steeper to get up because it's 'not just over 10 years old, it's significantly over it. It's 17 years old or something, 16 years old, and it's significantly over the 160,000 kilometres. It's more than double that. It's about 2 1/2 times that 400,000 nearly. So you've got an uphill battle, right? And then you've got the issues. The arguments about did you deprive them of the opportunity to repair it by not ever coming back to him and just going away and paying the cost to someone else and then coming and commencing these proceedings. So you have to bear in mind that if you run this matter and lose, for example, you won't be able to turn around and say, hey, can we have that $1000 because they'll have a decision of the tribunal to say they're not liable, right. And that's the end of it. That's why there's a benefit in settling it. Because you get a guarantee. Eddy: Well, can he come up at least three or three and a half, Member: But what I'm asking Eddy: … put toward that car to get it fixed. That's what I'm saying. We haven't got a dime left in our pocket. 1. After further discussions an offer was then made by the respondent to provide a second car, at no cost to the appellant. It was identified as a 2006 model Ford Falcon, which the respondent said was registered. In addition respondent said the appellant would be entitled to keep the Nissan. 2. This offer was rejected, the appellant deciding to accept the $1000 cash offer previously made. This was on the basis she would "try and get the truck fixed" (AB 42 tscp para 231). 3. In connection with the offer, the following exchange occurred. (AB 37): Appellant: We still keep the truck aye? We take the thousand and still keep the truck? Member: You just wanna do that? Appellant: If that's the only way … it's gonna happen, we'll have to, because we have to. Because that is a good car minus what's going on, but you know, we paid too much money to get rid of that truck. We wanted help, Member Right. Appellant: But now. Member: Right. Well, that is an unknown, even though, you know, you could... Appellant: Seems we're not gonna win anyway. Member … get a second vehicle that you could maybe sell for $10,000. You know, it could be a dud worth only $500. I don't know. Appellant: No, I got Fords My son's got Ford.. It's only a rubbish tip then. Eddy: I got a car yard full of bombs back home. Member Are you absolutely certain. Do you want to have a quick chat outside together and make sure this is what you wanna do. You wanna resolve this application for $1000? 1. Discussions then continued before the Member about other possibilities for settlement. However, the appellant's final position was that she would accept $1000. 2. Prior to making the orders the Member said (AB 38): Member: So there will be a money order. So just listen carefully, because I am there is not my decision. I wanna make sure it's by consent, so there will be a money order that the respondent pay the [appellant] the sum of $1000 in full and final settlement of this application and that will be paid within 14 days. Agreed. 1. Each party then acknowledge their agreement. 2. Finally, the Tribunal said in concluding remarks (AB 38): Member: I think it sensible. You know, because. Least you've got certainty you're getting that and don't risk an adverse outcome where it's, you know, nothing basically. … 1. In our view, the passages from the transcript which we have set out above demonstrate a number of problems about the manner in which the conciliation process was undertaken. 2. The Tribunal Member, who was also in the position of a decisionmaker, made statements concerning the applicable law that were incomplete and/or incorrect. 3. While we would infer from the application form and the fact that a rejection notice had been issued that the appellant had received advice about or otherwise understood that she may have a claim under the ACL, the statements made by the Tribunal and the responses from the appellant during the conciliation process lead us to conclude that the decision to settle was as a result of the Tribunal incorrectly stating there was no warranty applicable to the supply and therefore the claim was unlikely to succeed. 4. While there is no evidence to suggest the appellant was a vulnerable person within the meaning of r 37 of the Rules, nonetheless the actions of the Tribunal in this case gave rise to an irregularity and caused the appellant to misunderstand the nature of the proceedings, contrary to the Tribunal's obligations under s 38(5)(a) of the NCAT Act. 5. In this regard, it is clear from the facts we have set out above that the real issues in dispute were (and are): 1. Were there any terms, express or implied in the contract concerning the vehicle and its qualities: eg that the vehicle was registrable and/or roadworthy? 2. Was the vehicle of acceptable quality within the meaning of s 54 of the ACL? 3. Was there a breach of any of these obligations? 4. If there was a contravention of s 54 of the ACL, was there a major failure? 5. If there was a major failure, was the appellant entitled to reject the goods? 6. If yes to the preceding question, what was the rejection period and were the goods rejected in the rejection period? In this regard, the appellant was advised the vehicle was not roadworthy on 24 October 2023 when the vehicle was put in for repairs with Repco. However the Rejection Notice was not issued until 12 February 2024. 7. What, if any, loss and damage is the appellant entitled to recover. On this aspect, the appellant may be entitled to damages even if the rejection period has passed. Also there may be an issue about whether the appellant, by her conduct in continuing to use the vehicle, is disentitled to an award (either in whole or in part). 1. In the circumstances, in agreeing to settle her dispute and consent to the orders made, the appellant thereby suffered a substantial injustice. 2. In saying so, we note the Tribunal was correct that the "dealer guarantee" in section 68 of the MDR Act did not apply due to the age and kilometres of the vehicle at the time of sale: see s 69 re definition of limitation periods and the circumstances in which the dealer guarantee applies. However, this does not ameliorate the effect of what the Tribunal said and the consequential affect on the appellant's decision to consent. Conclusion and orders 1. We are satisfied that, to the extent necessary, the appellant should be granted leave to appeal and the consent order should be set aside and the proceedings remitted for rehearing. 2. As the above issues raise technical matters concerning the vehicle about which expert evidence or evidence from qualified mechanics may be needed, the parties should get appropriate legal advice about what evidence they propose to adduce. The proceedings will be listed for directions in the CCD so the parties can advise the Tribunal what evidence they propose to provide and to fix a timetable for rehearing by a different Member. 3. The appellant had sought the proceedings be listed for hearing in Brewarrina or in a location nearby. As the supply was in Sydney and the proceedings commenced there, we do not propose to make an order to change the venue at this time. 4. Finally despite the events that have occurred, the parties are still able to settle their dispute if they consider such a course is appropriate and should be adopted. If a settlement is subsequently reached, the Tribunal should be advised. 5. In the meantime we make the following orders: 1. Leave to appeal is granted, the appeal is allowed and the orders made14 March 2024 in application 2024/00076640 are set aside 2. The proceedings are remitted for hearing by a differently constituted Tribunal. 3. The remitted proceedings should be first listed for directions, the Tribunal on remittal to make such directions for the future conduct of the proceedings as it thinks fit. ********** 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 Amendments 11 September 2024 - Legal Representative for Applicant amended. 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: 11 September 2024