Scott Drake V Suttons Motors Waitara Pty Ltd, [2015] NSWCATAP 86

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Scott Drake V Suttons Motors Waitara Pty Ltd, [2015] NSWCATAP 86 Hearing dates: 13 April 2015 Date of orders: 08 May 2015 Decision date: 08 May 2015 Jurisdiction: Appeal Panel Before: Hon Acting DCJ G Mullane Presiding Member Ms T Simon Senior Member Decision: The appeal is dismissed Catchwords: Consumer Claim where causes of action arose more than 3 years before claim. Held NCAT had no jurisdiction. Legislation Cited: Consumer Claims Act 1998, Section 7 Cases Cited: Nil Texts Cited: Nil Category: Principal judgment Parties: Scott Drake ( Applellant) Suttons Motors Waitara Pty Ltd, Suttons Motors Pty Ltd, SMA Motors Pty Ltd, and Chrysler Australia Pty Ltd ( Respondents) Representation: Counsel: Nil

Solicitors: Nil File Number(s): AP 14/58567 Publication restriction: Nil Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal, Consumer and Commercial Division.Click here to enter text. Jurisdiction: Consumer Claim Citation: Unreported Date of Decision: 12 November 2014 Before: Mr P. Smith File Number(s): MV 14/21175

REASONS FOR DECISION

INTRODUCTION 1. This was a hearing of an appeal from a decision of a Tribunal Member on 19 November 2014 dismissing a consumer claim by Mr Drake. One of the reasons was that the tribunal had no jurisdiction to entertain the claim. 2. Mr Drake, who, in October 2007, purchased a Jeep. It was a new four-door Jeep Wrangler, four‑wheel drive vehicle, and he bought it from a subsidiary of Suttons Motors Pty Ltd. Chrysler Australia Pty Ltd was involved as a party to the proceedings because it is apparently the manufacturer or distributor in Australia of those vehicles. 3. Within a few months Mr Drake was not happy with the vehicle. There were serious problems with it. He made complaints to the dealer, Starting from about January 2008, there were numerous complaints and there were some quite serious problems. That continued until April last year, when Mr Drake then decided to take proceedings in the Civil and Administrative Tribunal. 4. He filed an application on 25 April 2014. It is an application that he signed on 15 April and he did it without legal advice or representation. The application is on the form for a motor vehicle application consumer claim and it contains the reasons for the orders sought. In that part of the form it says: "My vehicle has been returned for repairs over 70 times for warranty related faults. Starting approximately a month or so after purchase. Further warranty faults/issues reported three (plus) years ago are not being attended/repaired." 1. It then continued, stating that mediation had been unsuccessful and the required repairs and issues were not being attended to. He also said he was "Additional information and evidence relating to the issues/faults are included as per attached documents," and there were 127 pages of material attached. 2. There was a directions hearing on 21 July 2014 and the directions provided in Order 9: "The claim that the vehicle is not of merchantable quality is dismissed, no jurisdiction." Then "Reasons: "The application has not been filed within the prescribed time limit (Consumer Claims Act s 7)." 3. In Order 2 the applicant was given leave to amend the claim by 4 August by sending a copy of the amended claim to the Divisional Registrar and the other party, and including: * A list of each item claimed, specifying the monetary amount of each claim; and * Particulars of the item of claim. 1. Mr Drake did not file an amended application, and so the application so far as this Panel is aware today was the document that was filed on 25 April 2014. 2. Mr Drake did, however, file more than 200 pages of documents on 1 August 2014, and we have perused those but could find no amended application. The only claims raised by Mr Drake in that application were claims arising from the purchase of the vehicle or other claims he had already raised more than three years before he signed the application on 15 April 2014. 3. The relevant provision of the Consumer Claims Act, 1998 which I will quote, is subs 7(4). Section 7 is about jurisdiction that is given to this Tribunal in relation to consumer claims, and subs (4) is headed "Limitation periods". It provides: "The Tribunal does not have jurisdiction to hear and determine a consumer claim if any of the following apply:" And the first matter that is listed is: "(a) The cause of action giving rise to the claim first accrued more than three years before the date on which the claim is lodged." 1. The claims in these proceedings either arose at the time of purchase of the vehicle or within some time after that, but the claims arising after the purchase all arose more than 3 years before the application. 2. The application relates only to claims that were raised more than three years before the applicant signed the application. The causes of action did not arise less than 3 years before the application. Accordingly the Tribunal did not have jurisdiction to entertain the application. The application was dismissed and therefore the appeal against that decision must be dismissed. 3. The appeal is dismissed.