Douglas Robinson v Friendlee Autos Pty Ltd [2014] NSWCATCD 13

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Douglas Robinson v Friendlee Autos Pty Ltd [2014] NSWCATCD 13 Hearing dates: 17 December 2013 Decision date: 16 January 2014 Jurisdiction: Consumer and Commercial Division Before: A McMurran, General Member Decision: The respondent is to pay the applicant the total sum of $3,636.69 immediately. The application is otherwise dismissed. Catchwords: Renewal - whether previous orders made by the Tribunal had been complied with and appropriate orders Legislation Cited: Consumer Trader and Tenancy Tribunal Act 2001 Category: Principal judgment Parties: Douglas Robinson (Applicant) Friendlee Autos Pty Ltd (Respondent) File Number(s): MV 13/39572

reasons for decision

Background 1In related proceedings MV 13/1194 ("the proceedings") the applicant sought to recover an amount of $20,000.00, being the purchase price for a Ford Explorer 2004 motor vehicle which he had purchased from the respondent on 19 January 2013 ("the vehicle"). 2At the time of sale, the vehicle was shown to have an odometer reading of 137212 kms. 3The vehicle was sold subject to a Form 4 warranty for 3 months or 5,000kms. The vehicle was immediately subject to mechanical problems, first reported by the applicant to the respondent on or about 23 January 2013. 4The respondent carried out some repairs to the vehicle subject to warranty in or about late January 2013 and following the intervention of the Department of Fair Trading, a written agreement was reached between the parties and dated 27 February 2013 for further repairs to be carried out. 5The respondent's evidence in the proceedings was that the vehicle "has never been brough (sic) in for us to repair our agreements."The respondent asserted that the applicant denied the respondent the opportunity to effect any agreed repairs. From this evidence the Tribunal understands that the agreement reached between the parties with the assistance of the Department of Fair Trading was never completed. 6The applicant filed the proceedings on 3 March 2013. The proceedings were heard by the Tribunal on 6 June 2013 at Gosford, and after hearing argument, the Tribunal made orders which included the following: "1. On or before 30 June 2013 the respondent, at its own expense, is to carry out the following work with respect to the applicant's Ford Territory 2008 (sic) motor vehicle (the "vehicle") in a proper and workmanlike manner, to cause a master technician (and in the case of the LPG system, a licensed LPG installer) to conduct an assessment of the whole of the vehicle in order to deal with the following matters:- To ensure that the front end of the vehicle is serviceable and the wheels are aligned; To repair any oil leak in the transfer case; To adjust the handbrake; To repair the blinkers and number plate light; To ensure that the LPG system does not leak and is safe for use. 2. The time within which the warranty on the vehicle operates is extended until 30 June 2013." 7These orders were in almost identical terms to the agreement reached previously between the parties and referred to at paragraph 4 above in these reasons. A significant difference was the order extending the warranty period, which had otherwise expired. 8In its reasons for decision, the Tribunal indicated that it was not satisfied there was a "major failure" of the vehicle within the meaning of Section 260 of the Australian Consumer Law and as such the Tribunal would not be justified in ordering a full refund of the purchase price of the vehicle. In lieu thereof, the Tribunal made the work order as set out at paragraph 6 above. 9The respondent sought to complete the work on the vehicle as ordered by 30 June 13, and after a short delay, returned the vehicle to the applicant around mid-July. The vehicle was not repaired to the satisfaction of the applicant. 10The applicant filed a rehearing application on 21 October 2013 under Section 68 of the Act. 11On 24 October 2013, the Tribunal refused the rehearing application on the basis that the applicant had already applied to renew the proceedings and that it was preferable for the renewal proceedings to be disposed of first before any consideration of a fresh hearing. 12These proceedings constitute the renewal application and were heard at Gosford on Tuesday 17 December 2013.