Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Rappaport v iSelect Autos NSW Pty Ltd [2025] NSWCATAP 38 Hearing dates: 11 February 2025 Date of orders: 20 February 2025 Decision date: 20 February 2025 Jurisdiction: Appeal Panel Before: S Westgarth, Deputy President A Boxall, Senior Member Decision: (1) Leave to appeal refused. (2) Appeal dismissed. (3) The order made on 10 September 2024 in proceedings no 2024/00199001 requiring the Respondent to pay the sum of $715 to the Appellant immediately is affirmed. Catchwords: APPEAL - consumer claim - major defect - insufficient evidence - late evidence - no error of law - no ground warranting granting leave to appeal Legislation Cited: Australian Consumer Law Civil and Administrative Tribunal Act 2013 (NSW) Fair Trading Act 1987 (NSW) Motor Dealers and Repairers Act 2013 (NSW) Texts Cited: Not applicable Category: Principal judgment Parties: Luis Paul Rappaport (Appellant) iSelect Autos Pty Ltd (Respondent) Representation: Appellant (self-represented) R Frangie (Director) (Respondent) File Number(s): 2024/00362245 Publication restriction: Nil Decision under appeal Court or tribunal: New South Wales Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 10 September 2024 Before: GD Bassett, General Member File Number(s): 2024/00199001 REASONS FOR DECISION Background 1. On 17 February 2024 the Appellant purchased a second-hand motor vehicle from the Respondent for $3,699 and, in addition, agreed to trade in his existing vehicle for the sum of $300. The vehicle purchased by the Appellant was manufactured in 2004 and by the time of the sale (17 February 2024) the odometer disclosed that the vehicle had travelled 223,815 km. 2. On 29 May 2024 the Appellant lodged a motor vehicle consumer claim application with the Tribunal seeking orders under part 6A of the Fair-Trading Act 1987 (NSW) (the FT Act) or the Motor Dealers and Repairers Act 2013 (NSW) (the MDR Act). In the application, the Appellant stated that he wanted the vehicle to be returned and for the monies he had spent to be refunded. In the application, the Appellant alleged that the vehicle had defects which were briefly described. 3. The application was heard on 10 September 2024 when the Tribunal made orders that the Respondent pay to the Appellant the sum of $715. That order is the subject of this appeal. The Notice of Appeal was lodged on 1 October 2024. 4. The orders published on 10 September 2024 are accompanied by written reasons. In the following paragraphs we briefly summarise those reasons. Reasons accompanying orders made on 10 September 2024 1. At [2] the Tribunal stated that shortly after purchasing the vehicle, the Appellant took it for an inspection with his own mechanic who found an oil leak. The oil leak and the lack of a spare wheel were matters which the Respondent did not contest. In addition, the Respondent admitted that the seat belts in the vehicle did not operate. 2. At [5] the Tribunal recorded that the Appellant contended that the vehicle was not of acceptable quality because it was "not durable as it could no longer be driven as it was not capable of being registered". The Appellant contended that the vehicle was the subject of a "major failure" and that he sought a refund of the money spent. 3. At [6] the Tribunal found that the Appellant had not discharged the onus of proving that there was a major failure with respect to the vehicle. The Tribunal found that there was evidence (in the form of the Respondent's worksheet dated 11 April 2024) that the Respondent had fixed the oil leak. The Tribunal found that it was not satisfied that the vehicle was unregistrable and that the Appellant had not provided written evidence supporting his oral evidence that he had taken the vehicle to two separate garages for a registration inspection and that both inspection facilities had refused to register the vehicle. 4. At [7] the Tribunal recorded the concession made by the Respondent that the Appellant ought to be reimbursed for the costs of buying seat belts in the sum of $115, having them installed at a cost of $500 and for a further sum of $100 for the purchase of spare tyre. 5. At [8] the Tribunal dismissed the Appellant's application for a declaration that there was a major failure with respect to the vehicle but ordered the Respondent to pay to the Appellant the sum of $715 in respect of the items mentioned above. 6. We interpose here to make the comment that the Tribunal's reference to "a major failure" appears to be a reference to s 260 of the Australian Consumer Law (ACL). That section provides: A failure to comply with a guarantee referred to in section 259(1)(b) that applies to a supply of goods is a major failure if: (a) the goods would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of the failure; or (b) the goods depart in one or more significant respects: (i) if they were supplied by description—from that description; or (ii) if they were supplied by reference to a sample or demonstration model—from that sample or demonstration model; or (c) the goods are substantially unfit for a purpose for which goods of the same kind are commonly supplied and they cannot, easily and within a reasonable time, be remedied to make them fit for such a purpose; or (d) the goods are unfit for a disclosed purpose that was made known to: (i) the supplier of the goods; or (ii) a person by whom any prior negotiations or arrangements in relation to the acquisition of the goods were conducted or made; and they cannot, easily and within a reasonable time, be remedied to make them fit for such a purpose; or (e) the goods are not of acceptable quality because they are unsafe.' 1. Section 260 sets out different circumstances by which there may be a major failure. In this case, neither the Appellant nor the Tribunal attempted to identify which part of s 260 was relied upon. In our view, there was no evidence suggesting reliance upon s 260(a), (b) or (d). It appears to us that the Appellant may have been seeking to rely upon s 260(c) and/or (e). The Notice of Appeal 1. The grounds of appeal as recorded in the notice lodged on 1 October 2024 state that the Appellant seeks the following orders: 1. That the Respondent pay the Appellant the sum of $4,773.09 comprising $715 for the items mentioned in the decision under appeal, $3,699 for the cost of the vehicle and $359.09 for the cost of an expense incurred with EZY Service Centre. 2. An order requiring the Respondent to remove the vehicle. 1. The grounds of appeal state that the Respondent breached the timetable by failing to lodge documents they relied upon within the time directed and providing documents to the Tribunal at the hearing on 10 September 2024, thus denying the Appellant the opportunity to review the evidence or to challenge the legitimacy of the Respondent's evidence. 2. In addition, the Notice of Appeal sought leave to appeal upon the same basis that is to say, the Appellant sought leave because of the denial afforded to the Appellant to review the Respondent's evidence by reason of that evidence not being lodged until the day of the hearing. Further, the Appellant challenged the legitimacy of the Respondent's evidence and stated that the Tribunal member noted at the hearing that the Respondent's documents "may not be legitimate". 3. The Notice of Appeal stated that the Appellant contended that the decision under appeal was not fair and equitable because of the Tribunal's decision that the Appellant had not satisfied the onus of proof of establishing that the vehicle was not registrable. The Appellant contended that the Respondent had produced at the last-minute evidence from "two entities" that alleged that the vehicle was in fact registrable. 4. A further ground of appeal was that the Tribunal should have given more weight to the Appellant's evidence from a car service centre, noting that the car's airbag lights were on and that there was a leak. The Appellant contended that the Tribunal should have given no weight to the Respondent's evidence in the form of an invoice from Autotune recording that the vehicle had been fixed on 8 April 2024. 5. In addition, the Appellant sought to rely upon new evidence not tendered at the first hearing, namely a document from K&T Auto Mechanic. That document stated that the vehicle had been inspected on 26 June 2024 and stated "We had a look the Air Bag light was on and the oil was dripping. We asked the owner to get it fixed for the pink slip". 6. The Tribunal made directions for the parties to file their evidence and submissions in support of and in opposition to the appeal. It appears that the directions were not complied with because the Tribunal conducted a directions hearing on 5 February 2025 in which the Tribunal noted that the documents the Appellant seeks to rely on in the appeal are those attached to the Notice of Appeal and that the documents the Respondent seeks to rely on in the appeal, are the documents filed on 4 February 2025. Neither party filed or served written submissions. 7. The documents lodged by the Respondent on 4 February included an invoice from Autotune addressed to the Respondent dated 11 April 2024, which appeared to confirm that the oil leak had been addressed and the oil sump resealed. The Respondent's documents also included a record from the Personal Property Securities Register stating that the vehicle's registration expired on 29 June 2024. The Hearing of the Appeal 1. At the hearing of the appeal, the Appellant made submissions which are summarised in the following paragraphs. 2. The Appellant sought to introduce and rely upon the document from K&T Auto Mechanic referred to above recording their inspection of the vehicle on 26 June 2024. The Appellant stated that he had not provided that evidence at the hearing on 10 September 2024 because he did not understand that it would be necessary to prove that the vehicle was not registrable. We interpose here to comment that the Appellant did not appear to understand that it was his obligation or onus to prove by evidence that there was a major failure with respect to the vehicle and accordingly that he should have provided evidence establishing that the vehicle was not registrable. The fact that the Respondent did not provide evidence until the morning of the hearing did not, in our view, excuse the Appellant from ignoring his obligation to support his case by the production of supporting evidence. At the hearing we explained to the Appellant that, generally speaking, fresh evidence is not permitted to be relied upon in an appeal unless it was not reasonably available at the first hearing, and that we would not be inclined to consider the K&T Auto Mechanic document. 3. In any event, it is our view that that document does not support the contention that the vehicle was not registrable. As stated above, it records that K&T Auto asked the Appellant to "get it fixed for the pink slip". In our view, that means that K&T were of the opinion that the vehicle was capable of being registered after both the airbag light had been addressed and fixed, and after the oil leak had been remedied. 4. The Appellant also submitted that the evidence from EZY dated 6 March 2024 demonstrated that the vehicle was subject to oil leaks. However, the Respondent's evidence that the vehicle had been fixed on 11 April 2024 by Autotune would suggest that the Respondent had then fixed the leak. 5. The Appellant submitted that the document relied upon by the Respondent dated 6 February 2024 indicating that the vehicle had passed a New South Wales safety check was a "fake". However, there was no evidence to support the Appellant's contention in this respect. 6. The Respondent's representative made submissions to the effect that they had addressed the defects of which they had been made aware and submitted that the appeal should be dismissed. Consideration 1. This is an appeal from a decision made in the Consumer and Commercial Division of the Tribunal. The Appellant has a right of appeal on a question of law but requires leave (or permission) on grounds not involving a question of law: see the s 80 of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act) and cl 4 sch 12 of the NCAT Act. 2. In our view the appeal lacks merit, and it is not necessary to consider whether the Appellant's grounds raise questions of law or require leave. Our reasons for coming to this view are explained in the following paragraphs. 3. The Appellant's main point is that the vehicle could not be registered when the then current registration expired on 29 June 2024 and that the barrier to registration arose because of the airbag light being on and oil continuing to drip. The evidence in support of these two defects is the K&T document. In our view, there are two problems with the K&T document. First, it is late evidence lodged only in support of the appeal and not in support of the Appellant's case before the member in the Consumer and Commercial Division. During the hearing of the appeal we explained to the parties the principle of finality and the general requirement for parties to produce all of their evidence at the first instance hearing. In our view, the Appellant failed to provide a persuasive reason for not producing the document at the first hearing. The fact that the Respondent produced documents late did not obviate from the Appellant's obligation to prove his case by production of evidence. 4. The second problem with the K&T document is that it does not state that the vehicle is not registrable. Indeed, it appears to us to say that the vehicle could be registered once the two items mentioned were fixed. 5. The Appellant's first ground of appeal was that he had been put to a disadvantage by the late lodgment of documents by the Respondent. We have not been provided with any evidence as to how the Appellant raised that issue before the Tribunal member. We note that the decision records at [6] that the Appellant gave evidence that he had not seen the Autotune worksheet of 11th April before the hearing but does not record that the Appellant was put to a disadvantage. 6. The directions made with respect to the appeal required the Appellant to provide a transcript and sound recording of the hearing if "what happened at the hearing at first instance is being relied on by the Appellant in the appeal". We do not know whether the issue of late lodgment of documents by the Respondent was raised with the member or how the member, if the issue was raised, dealt with the issue (apart from what is recorded at [6]). If the Appellant did not raise the issue with the member in the sense of explaining why he was put to a disadvantage, we do not think it should be raised on the appeal. 7. In any event, the document relied upon by the Respondent does no more than indicate that the Respondent had the issue of oil leaks addressed by Autotune on 11 April 2024. The Appellant's application acknowledged that the vehicle had been returned to the Respondent for three days. The Appellant's case appears to be that the oil leaks were not fixed effectively or that fresh oil leaks appeared subsequently. We were not taken to evidence that showed that the Appellant sought to have those oil leaks fixed later. 8. In short, the Appellant has not satisfied us that the late lodgment of documents by the Respondent impacted upon the Appellant's right to have a fair hearing. 9. The next ground of appeal is to the effect that the Tribunal erred in finding that there was no evidence that the vehicle was not registrable. In our view, there was no error made by the member in this respect. The member dealt with evidence establishing that the Appellant incurred costs in rectifying certain defects and made an order for monetary compensation in favour of the Appellant. 10. The further ground of appeal was that the Tribunal failed to give sufficient weight to certain documents lodged by the Appellant. The Notice of Appeal states that these are an invoice dated 6th March 2024 and photos taken in mid March. As already discussed, there was evidence that the Respondent had fixed the leak in April. The Appellant disputed the accuracy of the Respondent's evidence. Faced with conflicting evidence it appears that the Tribunal correctly decided that the Appellant had not discharged the onus of proof. 11. In short, there was no error in the member's finding that there was insufficient evidence to make a declaration that the vehicle suffered a major defect entitling the Appellant to a refund. To the extent that the vehicle had a defect in the form of the airbag light being on and a continuing oil leak, there was no evidence as to what it would cost to fix those items, and therefore the Tribunal had no basis for making a monetary award. 12. Accordingly, the appeal must be dismissed, and we therefore make the following orders: 1. Leave to appeal refused. 2. Appeal dismissed. 3. The order made on 10 September 2024 in proceedings no 2024/00199001 requiring the Respondent to pay the sum of $715 to the Appellant immediately is affirmed. ************ 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: 20 February 2025