Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Jamie Coyte v Ozcorp Group Pty Ltd [2015] NSWCATCD 20 Hearing dates: 3 December 2014 Decision date: 28 January 2015 Jurisdiction: Consumer and Commercial Division Before: J A Ringrose – General Member Decision: The respondent is to pay the applicant the sum of $38,000.00 within one month of the date of the amended orders. Catchwords: Consumer Protection – false or misleading representations – guarantee as to title Legislation Cited: Competition and Consumer Act 2010 s 2 ; Australian Consumer Law ss. 29A, 51 and 237 Cases Cited: Given v C V Holand (Holdings) Pty Ltd (1977)29 FLR 212 Category: Principal judgment Parties: Jamie Coyte (applicant) Ozcorp Group Pty Ltd (respondent) Representation: Parties: The applicant appeared in person There was no appearance by or on behalf of the respondent File Number(s): MV 14/49434 Publication restriction: Nil JUDGMENT APPLICATION 1. By an application dated 18 September 2014 the applicant claimed a sum of $44,990.00 being the purchase price for a Toyota Land cruiser Troop Carrier bearing registration number JC3927 which was purchased from the respondent in February 2013. 2. The applicant contended that in May 2014 the Roads and Maritime Service conducted an inspection of the vehicle and discovered that the VIN Number had been tampered with, and the compliance sticker inside the passenger door had been forged. and the engine number on the engine block had been restamped. The vehicle was then seized by police and has never been returned. 3. The matter was initially listed before the Tribunal on 23 October 2014 when representatives of the respondent attended, along with the applicant in person. On that date the applicant was directed to provide the respondent and the Tribunal with a copy of all documents on which the applicant intended to rely by 27 October 2014 and the respondent was directed to provide the applicant and the Tribunal the copy of documents on which the respondent intended to rely by 28 November 2014. Both parties provided documents in accordance with the directions and the matter was listed for formal hearing on 3 December 2014. There was no attendance by or on behalf of the respondent on that date and the Tribunal was not provided with any explanation for the failure of any representative of Ozcorp to attend. The material was provided by Mr Anthony Baissari but in the absence of any communication from him as to reasons for his non-attendance the matter proceeded in his absence although the submissions provided by him were duly considered. 4. Sometime after the conclusion of the formal Hearing Mr Baissari contacted the Tribunal indicating that he had forgotten to attend and requesting that the matter be adjourned to another date so that he could attend in person and provide submissions. 5. The application made after the hearing had concluded, for an adjournment of the matter was refused on the basis that the hearing had been concluded and that it was appropriate to take into account all of the written material provided by the respondent in response to the directions. On that basis the respondent's evidence and submissions had been fully considered. APPLICANT'S EVIDENCE AND SUBMISSIONS 1. Mr Jamie Coyte gave evidence that throughout January 2013 he was searching for a Toyota Land cruiser Troop carrier. Whilst searching on carsales.com.au he came across an advertisement from the respondent company and he contacted that company with a view to inspecting the vehicle. He stated that he felt comfortable purchasing the vehicle from the respondent as it claimed to have an MTA affiliation and the REVs check which he had undertaken on the vehicle was clear. 2. On 23 February 2013 he traded in his vehicle for an allowance of $9,000.00 and provided a bank cheque for the balance of the purchase price which was $44,990.00. The Form 8 which was provided with the vehicle showed it to have been manufactured in October 2005 and to have travelled 116,903kms at the date of the sale. 3. The registration number of the vehicle was shown on the form as BS67MV and the engine number and VIN number were identified on the form 8 sale notice as the numbers later found by the Roads and Maritime Service and the Police to have been stamped or affixed to the vehicle. 4. On 7 May 2014 Mr Coyte had advertised the vehicle for sale as he and his wife were expecting a child. On 7 May 2014 Roads and Maritime Service conducted an inspection of the vehicle and discovered that the VIN number and the engine block number, along with the compliance sticker had all been tampered with. The police subsequently seized the vehicle and on the following day Mr Coyte contacted Mr Baissari of the respondent company to request a refund of the purchase price. 5. On 9 May 2014 Mr Coyte again attended at the premises of Ozcorp Motors with his father when he claims that he was advised that the vehicle had been purchased from a gentleman named Mohammed and the contact details of that gentleman were offered to him. 6. Since that time the respondent has declined to take any steps to refund monies. 7. The applicant has attached a police report dated 23 May 2014 in relation to the investigation. The report notes in part that Mr Coyte purchased the subject vehicle from Ozcorp Motors at 154-172 Parramatta Road Homebush and that prior to the purchase of the vehicle, he undertook revs checks which were all returned with no adverse information. 8. In May 2014 Roads and Maritime Services Vehicle Identification Inspection Unit conducted an inspection of the vehicle after being alerted to an inconsistency in the vehicle's engine number. The police noted that during the inspection it was discovered that the VIN number had been tampered with and the compliance sticker located inside the passenger side door frame appeared to be forged. The engine number stamped on the block appeared to have been restamped and the vehicle was thereafter seized by the police. 9. A subsequent facsimile message from the police dated 17 July 2014 contained the following information:- "I am currently investigating two vehicles being Toyota Land cruisers which have had their VIN numbers changed. Below I have listed the owner's details and vehicles which are involved. It has been confirmed that both vehicles have their VIN numbers replaced with current VIN numbers being welded in." At this stage all these details have been forwarded on to Roads and Maritime Services Vehicle Identification and Inspection Unit. It appears that this investigation will be taken over by the State Crime Command Property Squad. As these vehicles have been rebirthed it is very unlikely that the vehicles will be returned to the owners any time soon. The vehicles will have to be held until the entire investigation has been completed and possible offenders have been identified, charged and convicted. Both these vehicles were purchased from Motor Dealers with their current VIN numbers on the vehicle. It appears at no fault of the current owners they are victims of this incident and have lost large sums of money purchasing these vehicles." Mr Coyte gave evidence indicating that he had been informally told by the police that his vehicle would be likely to be returned to its original owner rather than to him in the event that a return ever took place. 1. In response to the evidence provided by Mr Baissari on behalf of the respondent, Mr Coyte claimed that when he first inspected the vehicle accompanied by his wife in February 2013 he requested a log book and was told that the vehicle had been purchased at an ex-government auction and that Mr Baissari had put the accessories, including the bullbar, side rails and steps, rear bumper bar and tow bar, Dobinson's suspension kit and roof rack with awnings all on himself after the vehicle was purchased at auction. He stated that he had installed a proper roof console after the vehicle had been purchased and fitted more comfortable driver and passenger front seats. He also changed the steering wheel. The vehicle was regularly serviced and brake pads were changed. 2. Mr Coyte raised issues with the evidence put on by Mr Baissari that the vehicle was only valued at $20,000.00. In this regard he noted that the price paid to Mr Mohammed Eter was allegedly $37,000.00 and that there had been some $10,000.00 of accessories put on to the vehicle before it was sold at $44,900.00. 3. Mr Coyte also pointed out that when he had confronted Mr Baissari concerning the repossession of the vehicle on 9 May 2014 it is claimed that Mr Baissari looked at his computer records and said "not Mohammed Eter, I have dealt with him before. I should not have bought the car". 4. The car history which has been attached suggests that the vehicle was first purchased through a "large fleet" buyer. RESPONDENT'S SUBMISSIONS 1. Although there was no attendance by the respondent, some documents were filed by Mr Baissari on 27 November 2014 in compliance with the directions. 2. In a statement of Mr Baissari dated 14 November 2014 he noted that he was the sole director in shareholder of Ozcorp Group Pty Ltd which carried on business as Ozcorp Motors at 154 Parramatta Road Homebush. 3. He claimed that on 8 January 2013 a man by the name of Mohammed Eter of Antwerp Street Bankstown, who had been previously known to him, had offered to sell a second-hand 2005 Toyota Land cruiser Troop Carrier and after some negotiations a payment of $37,000.00 was made for the vehicle subject to enquiries proving satisfactory. 4. A copy of Mr Eter's driver's license was attached to the submissions, along with a copy of the car history dealer report and a PPSR search. 5. Mr Baissari attached copies of the cheque butts (two consecutive cheques) dated 8 January 2013 totalling $37,000.00. He also included a declaration which was apparently signed by Mr Eter claiming that he was the registered owner or authorised representative of the owner and authorising transfer of the registration into the name of Ozcorp Group Pty Ltd. 6. Mr Baissari also annexed a copy of a valuation guide for a 2005 model Troop carrier which suggested a private price guide up to $27,500.00 and a trade-in price of up to $22,300.00. It is noted that the average kilometre range for a vehicle referred to in the guide was 180 to 270,000 kms being substantially more than the kilometres on this vehicle. It is also difficult to reconcile the private purchase price guide and the trade-in price guide with a sum of $37,000.00 allegedly paid by Mr Baissari to purchase the vehicle for resale purposes. 7. In substance Mr Baissari, on behalf of the respondent relied on the car history report attached to his paper work which was based upon the VIN number noted on the vehicle. That VIN number had been, according to the police, altered by removing the original number and welding a new number in its place. The engine number was also identical with that nominated on the vehicle and again the police suggest that the engine number had been altered. 8. It would appear that the vehicle was first sold to a large fleet buyer on 7 February 2006 in Queensland. The report noted that the vehicle had not been recorded as having been stolen or written off. 9. The personal property securities register also identified the vehicle by the same VIN number and engine numbers which were noted on the sale form. That register report contained a number of disclaimers. DECISION 1. The applicant claims that he did not receive good title to the vehicle and accordingly he seeks a refund of the purchase price on the basis that proper title has not been passed. Mr Baissari, on behalf of the respondent has submitted that good title was passed and that the application must therefore fail. He has submitted further that, in the event that compensation is awarded it would be substantially less than what was paid, in order to reflect the true value of the vehicle. 2. Provisions which were previously contained in the New South Wales Consumer Claims Act 1998, the Fair Trading Act 1987 and the Trade Practices have now been incorporated in the uniform Australian Consumer Law which is contained in Schedule 2 of the Competition and Consumer Act 2010. 3. s 29A prohibits false or misleading representations that goods are of a particular standard, quality, value, grade, composition style or model or have a particular history or particular previous history. 4. The second explanatory memorandum noted that representations concerning previous history of goods included the origin and age of goods or previous ownership of goods. 5. In Given v C V Holand (Holdings) Pty Ltd (1977) 29FLR 212 Franki J said (at 217):- "the next matter to consider is whether the words falsely represent in s 53are satisfied if the representation is not correct or whether it must be known to be false by the person making the representation…I am satisfied that, if a representation is in fact not correct it comes within the words of the section, even if it is not false to the knowledge of the person making the representation." It is to be noted that the provisions of s 29A of the Australian Consumer Law mirrors the provisions of s 53 of the Trade Practices Act and accordingly the principles ennunciated by His Honour apply equally in the present circumstances. 1. s 51 of the Australian Consumer Law provides:- 51(1) if a person (the supplier) supplies goods to a consumer, there is a guarantee that the supplier will have a right to dispose of the property in the goods when that property is to pass to the consumer. (2)…(3)… 1. Notwithstanding the assertions made by Mr Baissari on behalf of the respondent it is clear that the relevant title checks only produced a clear result because the VIN number and engine number had been taken from other vehicles. Even if the representations made by the respondent to the applicant concerning the title of the vehicle were innocent there have clearly been breeches of s 29(a) and 51 of the Australian Consumer Laws. 2. s 236 of the Australian Consumer Law provides:- (1) if (a) a person (the claimant) suffers loss or damage because of the conduct of another person, and (b) the conduct contravened a provision of chapter 2 or chapter 3 the claimant may recover the amount of the loss or damage by an action against that person or against any person involved in the contravention. (2) An action under sub-section (1) may be commenced at any time within 6 years after the day on which the cause of action that relates to the conduct accrued. The damages provisions and the Australian Consumer Law replace the provisions of s 82 of the Trade Practices Act. 1. s 236 does not prescribe the measure of damages recoverable by a plaintiff for contravention of chapters 2 and 3 of Australian Consumer Law. Accordingly it is for the courts to determine what is the appropriate measure. In Gates v City Mutual Life Assurance Society Limited (1986) 160CLR 1 at 12 Mason, Wilson and Dawson JJ held:- In contract, damages are awarded with the object of placing the plaintiff in the position in which he would have been had the contract been performed – he is entitled to damages for loss of bargain (expectation loss) and damage suffered including expenditure incurred in the reliance on the contract (reliance loss). In the present case it is noted that the applicant expended a sum of $44,990.00 and that he spent further monies in improving the vehicle. It is clear that at the time when the police seized the vehicle it had travelled at least a further 5,000kms and it is accordingly necessary to determine on the available evidence what compensation should be awarded. 1. In the present case the vehicle was brought to the attention of the authorities because it had been advertised for sale. Mr Coyte gave evidence that the advertised sale price was $42,000.00 but that he expected to sell the vehicle for something slightly less than that. 2. When one considers the price which the respondent was prepared to pay in order to obtain the vehicle only 15 months before it was seized and when that price is compared with the red book recommendations produced by the dealer it would seem that the real loss is closer to the sum paid by the applicant when the vehicle was purchased. Allowing a reduction of approximately 10% of the asking price to the expected sale price it is appropriate in the present circumstances to assess compensation in a sum of $38,000.00. I do not accept the price guide produced by the respondent as reliable on the basis that the subject vehicle had considerably less kilometres and the money paid by the respondent to the apparent previous owner of the vehicle was significantly higher than any of the prices suggested in the evidence produced by Mr Baissari. 3. The monies are payable within one month of the date of the amended orders. J. A. Ringrose General Member Civil and Administrative Tribunal of New South Wales 28 January 2015 Orders amended 20 February 2015 I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 April 2015