Rajesh Kumar v Motorserve Pty Limited t/as NRMA Motor Serve [2014] NSWCATCD 155

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Rajesh Kumar v Motorserve Pty Limited t/as NRMA Motor Serve [2014] NSWCATCD 155 Hearing dates: 31 July 2014 Decision date: 21 August 2014 Before: P.L. Boyce, Senior Member Decision: 1The application is dismissed Catchwords: Renewal of proceedings Legislation Cited: Australian Consumer Law Civil and Administrative Tribunal Act 2013 Consumer Claims Act 1998 Competition and Consumer Act (Cwlth) 2010 Fair Trading Act 1987 Category: Principal judgment Parties: Rajesh Kumar (applicant) Motorserve Pty Ltd (respondent) File Number(s): MV 14/25077, 14/14664, 13/21479 Publication restriction: Nil

reasons for decision

Application 1This is an application by a consumer applicant for a refund of the purchase price of a reconditioned engine for a Rav 4 motor vehicle from a supplier respondent. 2The applicant alleges that the respondent has failed to comply with the warranty given by the respondent at the time of supply of the engine and that he has failed to comply with the consumer guarantee contained in the Australian Consumer Law ("ACL").

Jurisdiction 3This application is brought in the Motor Vehicle List of the Consumer and Commercial Division of the Tribunal. 4For the provisions of the Consumer Claims Act 1998 to apply then the Tribunal has to be satisfied that the application is a consumer claim for the purposes of the Act. 5The applicant is presumed by s 4 of the Act to be a consumer within the meaning of s 3 of the Consumer Claims Act 1998. 6The respondent is a supplier as defined in s 3 of the Act as it is in the course of carrying on, or purporting to carry on, a business, of a motor vehicle repairer. 7The matter falls within the definition of "consumer claim" under s 3A of the Consumer Claims Act 1998. 8The cause of action arose within the 3 years prior to the commencement of proceedings, and the value of the claim is less than $30,000.00. 9The Tribunal is satisfied that it has jurisdiction under s 7 of the Consumer Claims Act 1998. 10The Australian Consumer Law ("ACL") is contained in Schedule 2 of the Competition and Consumer Act (Cwlth) 2010. 11The provisions of the ACL apply in NSW by virtue of the provisions of its adoption by s 28 of the Fair Trading Act (NSW) 1987.