Sale Papu v Sandeep Kaur t/as Nagra Autos [2014] NSWCATCD 19

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Sale Papu v Sandeep Kaur t/as Nagra Autos [2014] NSWCATCD 19 Hearing dates: 4 December 2013 Decision date: 17 January 2014 Jurisdiction: Consumer and Commercial Division Before: T Simon, General Member Decision: Sandeep Kaur t/as Magra Autos is to pay Sale Papu the sum of $4,500 immediately. The Tribunal orders that the respondent(s) Sandeep Kaur t/as Nagra Autos is to collect the vehicle from the applicants at a mutually agreed time on or before 16 December 2013. Legislation Cited: Consumer Trader and Tenancy Tribunal Act 2001 Consumer Claims Act 1998 (NSW) Category: Principal judgment Parties: Sale Papu (Applicant) Sandeep Kaur t/as Nagra Autos (Respondent) File Number(s): MV 13/35488

reasons for decision 1These are written reasons as requested by the respondent pursuant to section 49 of the Consumer, Trader and Tenancy Tribunal Act 2001. 2The applicant appeared in person. There was no appearance by the respondent. 3There appeared on the Tribunal file a copy of a notice of conciliation and hearing addressed to the respondent dated 7 November 2013 advising of the time and location of the hearing. 4The Tribunal was aware of the Registrar's standard practices in notifying parties of the time and place of hearing as set out in her statutory declaration of 29 February 2012. 5The Tribunal was satisfied that in accordance with the Registrar's usual practices the notice of hearing of the proceedings was posted to the respondent and that he had been given notice of the hearing and that the hearing notice was not returned. 6The respondent failed to attend without putting any explanation before the Tribunal. The respondent had also failed to appear at a previous hearing on 25 September 2013 without any explanation. The respondent had failed to comply with any directions of the Tribunal. The applicant was prepared and ready to proceed with the matter. Accordingly, the Tribunal was satisfied that the justice of the case required the matter to proceed in the absence of the respondent. 7From the oral and written evidence provided by the applicant, the Tribunal was satisfied that the parties contracted on 20 March 2013. The purchase contract provided by the applicant indicated that they purchased a Mitsubishi Pajero which was built in 1991 and had done 307,597 km for an amount of $4,500.00. A later tax invoice issued by the respondent shows a purchase price of $1,500.00. The Tribunal is satisfied that the applicant paid $4,500.00 in cash for the vehicle. 8The applicant gave evidence and the Tribunal was satisfied that on 20 March 2013 he inspected the vehicle. He told the respondent that he wanted a vehicle for his family. He gave evidence that the respondent explained that the vehicle was a reliable vehicle. The respondent was also given a 12 month warranty on the vehicle. 9The applicant gave evidence that the day after purchasing the vehicle he noticed it was shaking and had problems and immediately returned to the respondent who informed him there was nothing wrong the vehicle. He submitted that he returned on numerous occasion until by 25 June 2013 the vehicle had shut down completely and he was advised that by his mechanic and a tow truck driver that the motor needed replacing. He submitted that he was advised by his mechanic that this would cost about $5,000.00. The applicant also submitted that the respondent had offered to replace the motor for a cost between $2,000.00 to $3,000.00. In this regard the applicant provided with his application a "Order" from Premier Auto Centre Pty Ltd which towed the vehicle indicating that the motor needed replacing. He also provided a written statement from Trademark Mechanic repair that indicated the motor needed changing. 10The Tribunal was satisfied that the respondent told the applicant that the vehicle was in good condition and would be acceptable to use as a family vehicle. The Tribunal considered the age and the kilometres done by the vehicle. However, the Tribunal accepts that the vehicle clearly showed significant problems almost immediately, as the applicant returned the vehicle to the respondent the day after purchasing it. The Tribunal was satisfied that the vehicle sold to the applicant was not of acceptable quality or fit for the purpose for which it was sold, in breach of the Australian Consumer Guarantees and the Consumer Claims Act 1998(NSW). 11Accordingly, the Tribunal was satisfied that the applicant was entitled to a refund of the purchase price and a return of the vehicle. 12The orders were made accordingly.