Aloe v LSH Auto (Sydney) Pty Ltd & Anor [2023] NSWCATCD 174

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Aloe v LSH Auto (Sydney) Pty Ltd & Anor [2023] NSWCATCD 174 Hearing dates: 02 August 2023 Date of orders: 20 October 2023 Decision date: 20 October 2023 Jurisdiction: Consumer and Commercial Division Before: B Koch, General Member Decision: The application is dismissed. Catchwords: CONSUMER LAW-Consumer guarantees-Supply of goods-Guarantee relating to supply by sample or demonstration model Legislation Cited: Australian Consumer Law (NSW) Fair Trading Act 1987 (NSW) Cases Cited: Blatch v Archer (1774) 1 Cowp 63 Bui v Australia Investing Pty Ltd [2018] VCAT 95 Nguyen v Cosmopolitan Homes [2008] NSWCA 246 Texts Cited: Nil Category: Principal judgment Parties: Maria Aloe (Applicant) LSH Auto (Sydney) Pty Ltd (First Respondent) Mercedes-Benz Australia/Pacific Pty Ltd (Second Respondent) Representation: Mr and Ms Aloe (Applicant) Ms Butler (First Respondent) Mr Appleton (Second Respondent) File Number(s): MV 23/17899 Publication restriction: Nil

REASONS FOR DECISION 1. These proceedings concern a Mercedes-Benz motor vehicle the applicant (Mrs Aloe) purchased from the second respondent (Mercedes-Benz) at a dealership operated by the first respondent (LSH) in March 2022. 2. The crux of the dispute is that when the vehicle was delivered to Mrs Aloe in May 2022, the vehicle was not fitted with electrical adjustable seats with memory function. Relevantly, the demonstration model that Mrs Aloe test drove before entering into a contract to purchase the vehicle from Mercedes-Benz did have electrically adjustable seats with memory function. There is no allegation that, other than the absence of electrically adjustable seats with memory function, the vehicle was not of acceptable quality or otherwise defective. 3. Mrs Aloe framed her case by reference to the guarantee relating to the supply of good by sample or demonstration model in s 57 of the Australian Consumer Law (NSW) (ACL). Indeed, her evidence included a copy of a website published by NSW Fair Trading with the substance of the guarantee in s 57 highlighted. Mrs Aloe seeks an order that the respondents either instal electric seats in the vehicle provided or supply an equivalent vehicle with electric seats. 4. At the hearing on 2 August 2023, Mrs Aloe represented herself together with her husband (Mr Aloe). Each gave evidence and Mrs Aloe relied upon a folder of documents filed and served on 29 May 2023. LSH was represented by Ms Butler who gave evidence and relied upon a statement of a Mr William Lee filed and served on 16 June 2023. Mercedes-Benz was represented by Mr Appleton who gave evidence and relied upon a folder of documents filed on 13 June 2023. 5. No issue was raised as to the jurisdiction of the Tribunal to hear and determine the claim. The Tribunal finds that the claim is a "consumer claim" as defined in s 79E of the Fair Trading Act 1987 (NSW) (FTA). Mrs Aloe was a consumer an the respondents were suppliers and the claim arises from the supply of goods to a consumer under a contract made in New South Wales. The application was made within time (see s 79L(1)(a) of the FTA).