Ashley Emonson v Jason Wagga Pty Ltd trading as Jason Nissan [2014] NSWCATCD 258

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Ashley Emonson v Jason Wagga Pty Ltd trading as Jason Nissan [2014] NSWCATCD 258 Hearing dates: 17 September and 27 November 2014 Decision date: 18 December 2014 Jurisdiction: Consumer and Commercial Division Before: J Lynch, General Member Decision: The respondent Jason Wagga Pty Ltd is to pay the sum of $39,012.57 to Ashley Emonson on or before 19 December 2014. The applicant Ashley Emonson is to return motor vehicle being a Nissan Navara dual cab VIN xxxxxxxxxx1064 to Jason Wagga Pty Ltd on or before 19 December 2014. Catchwords: Acceptable quality, goods match description Legislation Cited: Competition and Consumer Act 2010 SCHEDULE 2 Australian Consumer Law, Consumer Claims Act 1998 Category: Principal judgment Parties: Ashley Emonson (applicant) Jason Wagga Pty Ltd (respondent) Representation: Applicant self represented Mr Glenn Johnson represented the respondent File Number(s): MV 14/12191 Publication restriction: Unrestricted

reasons for decision 1. The applicant Ashley Emonson ("the consumer") purchased a new Nissan Navara Dual Cab engine number xxxxxxx115T Vehicle identification number xxxxxxxxxxxx9330 form the respondent Jason Nissan Pty Ltd trading as Jason Nissan ("the trader") on 10 January 2012 for the sum of $41,300.00. 2. The applicant lodged a claim with the Civil and Administrative Tribunal (the Tribunal") on 27 February 2014 seeking a full refund and return of the vehicle on the basis that the vehicle has a bad lean to the right hand side which had not been rectified after several attempts. 3. The claim was amended to seek the sum of $40,650.00 being $41,300.00 purchase price of vehicle (including tonneau cover, window tint and towbar) plus tub liner $399.00, nudge bar $910.00, and electric brakes $800.00 making a total cost of vehicle including accessories of $43,709.00. This sum has been reduced by 7% on the basis that at the date of submission of documents the vehicle had travelled 27,220 kms about 7% of the expected life of 400,000kms making a sum claimed of $40,650.00. 4. The trader opposes the orders sought and states there is no document to say that the chassis of the vehicle was bent before September 2013. In particular there was no complaint at the time of purchase or the 10,000km service. The trader contends it is prepared to straighten the chassis rail a little further to realign the chassis but this has been declined by the consumer. 5. The consumer Mr Ashley Emonson was self represented at the hearing. The trader was represented by Mr Glenn Johnson. Mr Emonson gave oral evidence and called Mr Ross McDonald and Mr Craig Rorie. The trader called Mr Glenn Johnson. Each party submitted documentary evidence which is set out in the Appendix. The hearing commenced on 17 September and concluded on 27 November 2014.