New South Wales Supreme Court CITATION : Holden Limited & Anor v Andrew Eagleston & Anor [2004] NSWSC 779 HEARING DATE(S) : 25 August 2004 JUDGMENT DATE : 3 September 2004 JURISDICTION: Common Law Administrative Law List JUDGMENT OF : Master Malpass at 1 DECISION : The summons is dismissed; the plaintiff is to pay the costs of the summons; the exhibits may be returned. CATCHWORDS : Decision with respect to a matter of law - jurisdiction - lack of reasons - statutory duties - denial of procedural fairness and error of law. LEGISLATION CITED : Consumer Claims Act 1998 Consumer Trader & Tenancy Tribunal Act 2001 Holden Limited (First Plaintiff) PARTIES : Heartland Motors Pty Limited t/as Heartland Holden Parramatta (Second Plaintiff) Andrew James Eagleston (First Defendant) Consumer, Trader & Tenancy Tribunal (Second Defendant) FILE NUMBER(S) : SC 30028/04 COUNSEL : Mr R Horsley (First and Second Plaintiffs) Mr S Balafoutis (First Defendant) Gillis Delaney Brown (First and Second Plaintiffs) SOLICITORS : Wight & Strickland (First defendant) Crown Solicitor (Second defendant) LOWER COURT Consumer Trader and Tenancy Tribunal of NSW JURISDICTION : LOWER COURT 03/5204 FILE NUMBER(S) : LOWER COURT Member J Farey JUDICIAL OFFICER : - 9 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADMINISTRATIVE LAW LIST Master Malpass Friday 3 September 2004 30028 of 2004 Holden Limited & Heartland Motors Pty Limited t/as Heartland Holden Parramatta v Andrew James Eagleston & Consumer, Trader & Tenancy Tribunal of New South Wales JUDGMENT 1 Master: In or about November 2001, the first defendant purchased an "ex-demonstrator" motor vehicle from the second plaintiff for the sum of $74,000. The first plaintiff was the manufacturer of that vehicle. 2 The vehicle was plagued with problems. This situation persisted over a couple of years. A number of attempts (at least seven) were made to rectify the problems. 3 The vehicle was inspected by the NRMA. It provided four inspection reports. The second last of the reports (prepared after inspection on 8 October 2003) contained inter alia the following:- We are of the opinion that the operational problems have rendered the vehicle unreliable and unsafe to drive. The last date of inspection was 9 January 2004. The report prepared after that inspection contained inter alia the following:- The vehicle in its present operational condition would be considered dangerous and unsafe to drive. 4 On 5 December 2003, the first defendant brought an application in the Motor Vehicles Division of the Consumer, Trader & Tenancy Tribunal (the Tribunal). It sought an order to pay the amount of $65,000. 5 The first defendant sought relief against both the second plaintiff and the first plaintiff. Both of them defended the application. It was heard on 4 March 2004. 6 None of the parties had legal representation. The first and second plaintiffs appeared separately. There was no sound recording and there is no transcript of the hearing. 7 After the hearing had been concluded, the Tribunal made the following orders:- 1. The applicant is to return the motor vehicle to the point of purchase, Heartland Holden at 66 Church Street, Parramatta, on or before 19 March 2004, with all repairs to the bodywork completed. 2. The respondents, HEARTLAND MOTORS PTY LTD T/AS HEARTLAND HOLDEN PARRAMATTA & HOLDEN LIMITED, are to pay the applicant, ANDREW JAMES EAGLESTON, 22 Waterfall Crescent, BELLA VISTA NSW 2153, the sum of $66,485.00 on or before 26/3/04. 8 Following a request from the first plaintiff, written reasons for the decision of the Tribunal were provided to the parties (a copy of the reasons may be found in Exhibit JCO 1). The reasons record that they had been prepared from notes and recollection. 9 On 29 March 2004, the plaintiffs filed a summons in this court, seeking inter alia the setting aside of the orders made by the Tribunal. The proceedings seek relief pursuant to ss65 and 67 of the Consumer Trader & Tenancy Tribunal Act 2001 (the Act). 10 The summons contains a statement of grounds of appeal. Subsequently, the plaintiffs sought to add to the grounds. Further, by letter dated 4 August 2004 (Exhibit A), the plaintiffs purported to set out in summary form the basis of the case that was intended to be run at the hearing of the summons. One aspect of the material contained in this letter was a further expansion of the grounds of appeal (to add a ground of failure to give adequate reasons). 11 The appeal came on for hearing on 25 August 2004. By consent, the court embarked on the hearing of the summons on the basis that Exhibit A set forth the case to be advanced by the plaintiffs. 12 Mr Horsley of counsel appeared for both plaintiffs. Mr Balafoutis of counsel appeared for the first defendant. 13 The plaintiffs relied on an affidavit sworn by Mr O'Riordan (which largely exhibited the documents comprising Exhibit JCO 1). The first defendant relied on an affidavit which had been sworn by himself. 14 Largely, the submissions put on behalf of the plaintiffs are to be found in a written outline of plaintiffs submissions prepared by Mr Horsley. This material was supplemented by oral argument. 15 Broadly speaking, the areas of challenge were lack of jurisdiction to entertain the first defendant's claim, lack of power to make the orders that were made, and failure to give natural justice or procedural fairness or error of law (by reason of failure to give adequate reasons). What were referred to as "no evidence" grounds were not pressed. 16 Section 65 enables this court to grant relief or remedy where the Tribunal had no jurisdiction to make the order, or where, in relation to the hearing or determination of the matter, a party had been denied procedural fairness. 17 Section 67 enables an appeal to be brought against a decision of the Tribunal where it decides a question with respect to a matter of law (subsection (8) provides that "matter of law" includes a reference to a matter relating to the jurisdiction of the Tribunal). 18 It is common ground that the Tribunal had jurisdiction to entertain a "consumer claim" within the meaning of the Consumer Claims Act 1998. A "consumer claim" means inter alia a claim by a consumer for the payment of a specified sum of money (s3). 19 The Tribunal made a finding that it had jurisdiction to hear and determine the claim. 20 The plaintiffs seek to look to the text of the reasons and the orders as demonstrating that rather than being a claim for the payment of a specified sum of money, the first defendant's claim was in fact a claim for rescission of a sale contract ab initio. I do not accept that submission. 21 In my view, it is misconceived. The application propounded a claim for a specified sum of money only and the Tribunal had jurisdiction to entertain such a claim. As I understand the ultimate position taken by the plaintiffs, the real thrust of their argument became whether or not the Tribunal had power to make order 1. 22 It seems to be common ground that in determining that claim, the Tribunal could (indeed, was required to) apply recognised principles of law and equity. In addition, the Act requires it to act according to equity, good conscience and the merits of the case without regard to technicalities or legal forms (s28(3)). It seemed to be accepted by the plaintiffs that at least this afforded flexibility to the Tribunal in determining the relief that should be granted. 23 Sections 8-10 of the Consumer Claims Act 1998 set forth the orders that may be made by the Tribunal. 24 It was said that the Tribunal had no power to order the first defendant to return the vehicle. I disagree. In my view, it falls within the power conferred by s8(2)(c). 25 I should digress to mention two matters. Firstly, it may be the case that the Tribunal made order 1 of its own motion (it being an order that benefited the plaintiffs). Secondly, it was open to the Tribunal to simply make an order for payment on terms that it was payable upon return of the vehicle. 26 I now return to the remaining areas of challenge. These are confronted by a couple of problems. There is the lack of transcript. There is the restrictive avenue of challenge under the Act. 27 The reasons and the affidavits give some indication as to what was before the Tribunal. It may be that all of the material that was before the Tribunal is not before this court. What there is, gives limited assistance as to the conduct of the proceedings before the Tribunal. 28 The material contained in the affidavit sworn by the first defendant (including the copy NRMA reports) demonstrates that the Tribunal had before it a powerful body of evidence concerning the problems had with the vehicle. 29 The scope of the avenue of appeal provided by s67 is yet to be determined. Often, it suffices for the Court to determine what does not fall within its ambit. It has been approached on the basis that it is narrower in ambit than what has been contemplated as constituting error of law. By way of example, it would seem that it does not contemplate an appeal where the complaint is an absence of evidence to support a finding or where there is said to be a denial of procedural fairness. 30 Apart from the submissions made on questions of jurisdiction, counsel for the plaintiff struggled to identify "a question with respect to a matter of law" which had been decided by the Tribunal and in my view failed to do so. 31 There was argument suggesting that a passage on page 4 of the reasons where the word "incumbent" appears met the requirements of the section because it constituted part of an erroneous and overstated finding as to a duty had by the plaintiffs. I shall return to that matter in due course. 32 The findings which are set forth on pp 4-5 of the reasons were the subject of extensive criticism. It may be that the findings could have been better expressed. It may be that there is irrelevant matter (certain of which may be affected by error). The task of the court is to look to the substance of what is set forth by the Tribunal. In this case, further latitude should be allowed because of the circumstances in which the reasons had to be prepared. In my view, when that approach is taken, I am not satisfied that the reasoning process was inadequately expressed. 33 In the findings, the Tribunal commenced by referring to the evidence that was before it. It found that the evidence of the first defendant was credible. There is a finding that the evidence strongly suggests that the vehicle had serious defects (under the heading "Application"). It was observed that the first defendant alleged that the vehicle was sold with knowledge of its defective motor and that this allegation was not disputed. It was accepted that the vehicle had a variety of problems and that the plaintiffs have had every opportunity to rectify them. 34 At this stage is it convenient to return to the passage in the reasons in which the word "incumbent" appears. 35 The usage of the word "incumbent" may be unfortunate. Perhaps, it introduces a shade of unnecessary flamboyance. Also, perhaps the paragraph in which it appears may be construed as overstatement. Be that as it may, it seems to me that the substance of what was being said was no more than that the plaintiff had an obligation to perform the repair work in a proper and workmanlike manner and that either this was not done or the vehicle was not capable of repair. 36 The material suggests that the plaintiffs accepted responsibility for the defects with the motor. It appears that no real defence was agitated by the plaintiffs. They appear to have taken the stance that they did not want the vehicle back but were prepared to do further work on the motor. It seems to me that this stance was clearly rejected (because either the plaintiffs had had every opportunity to do the necessary repairs and the repair work had not being done properly or the vehicle could not be fixed). 37 The reasons also express a finding that the vehicle never provided the use which a reasonable motorist would expect and is not ever likely to. The Tribunal then expressed the view that the problems with the vehicle could not be met by an order to repair it. 38 The reasoning process concludes with findings as to lack of merchantable quality and unfitness for purpose. The paragraph in which these findings appear does make irrelevant and erroneous reference to the Trade Practices Act. It seems to me that this is of no consequence as the first defendant had no need to rely on that legislation to recover against the second plaintiff. 39 Because of the findings made, the Tribunal came to the view that an order for repair or a money order to cover the costs of repair could not satisfy the claim. 40 It was in these circumstances that the Tribunal came to make the two orders. The sum of $66,485 comprised a sum of $66,000 (which was regarded as the proper amount to be refunded) together with the costs of obtaining the NRMA reports and reimbursement for car rental for the period when the vehicle was off the road. In my view these remedies granted by the Tribunal met the merits of the case. 41 Whilst what has been already said suffices to dispose of these proceedings, I should perhaps briefly mention one further matter. It concerns the question of whether or not inadequate disclosure of reasoning process falls within s67(1). 42 In my view, both the language of the section itself as well as other provisions to be found in the Act (including s49) suggest that it does not. This is consistent with a clear legislative intention to limit the avenue of challenge to decisions of the Tribunal. 43 Section 49 of the Act deals with questions of notice of decisions and reasons. Subsection (1) imposes a duty to give notice of its decision to parties (the notice is to be given within the prescribed time and is to comply with the other requirements of the subsection). Subsection (2) imposes a duty to provide a statement of reasons for its decision upon receiving request for the same within the prescribed time (within fourteen days of receiving the notice of decision). Subsection (3) provides what must be set out in the statement. 44 It seems to be the intention of parliament that the Tribunal is not required to give reasons unless a request is made for the same within the prescribed time. 45 Although it was not fully argued in this case, there would seem to be plausibility in the view, that a failure to give reasons or adequate reasons may not have been intended to form part of the challenge provided by s67(1). The remedy of non-compliance may lie in enforcement of the duties imposed by s49. 46 The plaintiffs bear the onus of satisfying the court that the decision should be set aside. In my view, the plaintiffs have failed to discharge that onus. 47 The summons is dismissed. The plaintiff is to pay the costs of the summons. The exhibits may be returned. 0o0 Last Modified: 09/03/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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