Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Voicu v Inchcape Automative Retail Pty Ltd [2015] NSWCATAP 246 Hearing dates: 22 October 2015 Date of orders: 19 November 2015 Decision date: 19 November 2015 Jurisdiction: Appeal Panel Before: M Harrowell, Principal Member The Hon D Cowdroy OAM, QC Principal Member Decision: (1) Leave to appeal is refused; (2) The appeal is otherwise dismissed. Catchwords: Leave to appeal – substantial miscarriage of justice – findings of Tribunal available on the evidence Legislation Cited: Australian Consumer Law (NSW) Consumer Claims Act, 1998 Motor Dealers and Repairers Act 2013 Cases Cited: Collins v Urban [2014] NSWCATAP 17 Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 Re Refugee Tribunal; Ex parte H (2001) 79 ALR 425 Texts Cited: Nil Category: Principal judgment Parties: Ilie Gheorghe Voicu (Appellant) Inchcape Automative Retail Pty Ltd t/as North Shore Volkswagen Representation: Counsel: Not applicable In Person (Appellant) Mr Barry (employee) (Respondent) Solicitors: Not applicable File Number(s): AP 15/44825 Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: Not applicable Date of Decision: 2 July 2015 Before: P Boyce, Senior Member File Number(s): MV 15/30481 REASONS FOR DECISION 1. By Notice of Appeal signed on 27 July 2015 the appellant appeals the decision of the Tribunal delivered on 2 July 2015. Original Application 1. By his original application the appellant sought an order that the respondent pay damages to him in the amount of $40,000.00. Such damages claim arose from his purchase of two vehicles from the respondent. Facts 1. On 29 August 2014 the appellant purchased a 2008 Nissan Tiida registered number B - - - - J from the respondent for a price of $12,500.00 (the Nissan). 2. The appellant was not satisfied with the Nissan, and claimed that it had numerous faults. On 27 November 2014 he returned the Nissan to the respondent for repair. The records of the respondent show that, subject to a noise in the steering column, no defects could be detected. 3. On or about 12 December 2015, the respondent provided the appellant with a near new diesel powered VW vehicle, namely 2014 MY 13 diesel VW registered C - - - - X (the VW) as a loan car whilst repairs were being carried out by the respondent to the Nissan. The odometer reading on the VW was then 242 kilometres. 4. On 7 January 2015 the respondent offered a full refund to the appellant that the Nissan, but such offer was declined. Thereafter further negotiations took place. As a result the appellant agreed to purchase the VW from the respondent. The VW was purchased on the basis that the Nissan would be accepted as part payment, and that the appellant would pay an additional $7,500.00. 5. As a result of the negotiations, on 14 January 2015 the respondent repurchased the Nissan. The VW by this time was recorded as having travelled 5,120 kms. 6. Subsequently, the appellant claimed that the trade in amount for the Nissan was inadequate and that he should have been compensated in the amount of $2,000.00. This sum represented the difference between the amount he paid for the Nissan compared to the trade-in amount he received. 7. The appellant also claimed balance of a non-refunded part of the registration of the Nissan vehicle in the amount of $31.00. 8. Further, the appellant claimed compensation for being sold a vehicle by the respondent that represented "high risk for my life and my family" in the amount of $37,969.00. 9. The appellant also subsequently asserted that he had always intended to purchase a petrol powered VW; not a diesel VW. The appellant claimed that he was interested in purchasing either the loan VW car which by January 2015 or a MY 14 petrol VW Polo with an odometer reading of 300 kms. 10. Proceedings were commenced in the Tribunal by the filing of an application by the appellant on 30 April 2015. Respondent's Evidence 1. Mr Berry, the representative of the respondent stated that in January 2015 he provided an option to the appellant, namely to refund $12,500.00 to the appellant for the Nissan; or alternatively to trade in the Nissan on the VW, which he valued at $20,990.00. This was accepted and a deposit paid. 2. A written contract was subsequently signed reflecting the purchase of the VW on 14 January 2015. It recorded the sale price of the VW at $18,000.00, and the trade in price of the Nissan at $10,500.00. It also recorded an additional consideration of $7,500.00. The appellant signed such contract. Tribunal Findings 1. The Tribunal found against the appellant and published reasons dated 2 July 2015 (Reasons). The Tribunal found that the amount of $12,500.00 was paid by the appellant for the purchase of the Nissan on 29 August 2014; that the appellant complained to the respondent that the vehicle was unsatisfactory and that from early December 2014 the respondent was provided, on loan to the appellant, a diesel VW motor car (the VW). 2. The Tribunal also found that negotiations took place between the parties thereafter. The Tribunal accepted the version of events provided by the respondent through its senior executive, Mr Barry, namely that the respondent offered the appellant the option of purchasing either one of two VW sedans and that the appellant agreed to purchase the 2014 diesel VW registered CTV 85X (the VW). 3. The Tribunal found that the respondent agreed to trade in the Nissan, on the basis that $7,500.00 would be paid to the respondent to acquire the VW. 4. Contract documents signed on 14 January 2015 showed the sale price of the VW was $18,000.00 and the trade-in value of the Nissan was $10,500.00. The documents adjusted the sale price of the VW by $2,000.00 and made a corresponding reduction in the value of the Nissan which was recorded as $10,500.00 in order to facilitate the transaction. 5. The Tribunal found that in fact the appellant received the value of the Nissan of $12,500.00 in his purchase of the VW. Although the paperwork suggested that the trade-in was $10,500.00, the Tribunal accepted the respondent's explanation that the value of the VW was $20,990.00 and that the agreement was for a changeover price requiring a cash payment of $7,500.00. Further, the Tribunal further found that the appellant agreed to such transaction and signed the contract. 6. Consequently, the Tribunal found that the appellant agreed and expected to pay and receive the VW and that it was satisfied that he received the $12,500.00 for the Nissan when the whole transaction was considered. 7. The applicant claimed that he did not wish to purchase a diesel powered VW but rather a petrol powered VW. The Tribunal rejected such contention and was satisfied on the evidence before it that the appellant had been driving a diesel VW since early December 2014 on loan and knew that such vehicle was diesel powered. Accordingly no claim for the alleged vehicle was justified. 8. The Tribunal rejected the claim of $31.00 registration on the basis that there was insufficient evidence to support the claim. 9. The Tribunal rejected the claim for compensation of $37,969.00. 10. The Tribunal further found that the respondent had complied with the statutory guarantees contained in the Australian Consumer Law and also its obligations under the Motor Dealers and Repairers Act 2013 offering to refund the purchase price of the Nissan in full the appellant under s261(d)(ii) of the Australian Consumer Law (ACL). Appeal 1. The grounds of appeal in effect challenge the findings of the Tribunal in relation to the claim of $2,000.00 said to represent the shortfall in the repayment amount for the Nissan, the claim for $31.00 and the claim for compensation of $37,969.00. The last-mentioned claim is made to compensate the appellant as "dealer forced me and my family" to purchase the Nissan with defects. 2. Effectively the notice of appeal seeks orders that the findings of the Tribunal be reversed on the basis that the decision was not fair and equitable or was against the weight of evidence. Submissions of the Appellant 1. The appellant has provided voluminous written submissions. Such submissions effectively contain much detail which was provided before the Tribunal. However no error of law is identified. 2. The submissions of the appellant can be summarised as follows: 1. The Nissan was defective and unsafe to drive; 2. the Nissan was not repaired as required by the ACL; 3. the appellant to not agree and was forced to accept the Golf but did not wish to purchase a Golf let alone a diesel; and 4. When the vehicle was returned, the respondent failed to provide a full refund as required by the ACL. 1. A submission was also made that the Member who heard the case was biased. This bias was said to be exhibited when the Member left the hearing room to locate the respondent and was seen talking to the respondent when returning to the hearing room. 2. Before the Appeal Panel, the appellant again reiterated his claims for the amounts which he believed that he is entitled. Consideration 1. Section 80(1) of the Civil and Administrative Tribunal Act, 2013 (NCAT Act) provides that an appeal against an internally appealable decision may be made to the Appeal Panel. An internally appealable decision is defined in s32 of the NCAT Act to include a general decision made by the Tribunal. 2. A general decision is defined in s29 of the NCAT Act as a decision made in the exercise of the Tribunal's general jurisdiction which is, in turn, ascertained by reference to legislation other than the Act. In this case the Tribunal's jurisdiction was enlivened by s7 of the Consumer Claims Act, 1998. Accordingly the Tribunal has general jurisdiction to entertain the appeal. An appeal from an internally appealable decision lies as of right on any question of law or, the leave of the Appeal Panel, on any other ground: see s80(2) of the NCAT Act. The question of leave is restricted in the case of an appeal from the Consumer and Commercial Division by clause 12 of Schedule 4 of the NCAT Act on the following grounds: (a) the decision of the Tribunal under appeal was not fair and equitable, or (b) the decision of the Tribunal under appeal was against the weight of evidence, or (c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with). 1. The submissions provided by the appellant in writing allege that the respondent's representative gave false evidence. The appellant raises numerous assertions concerning the price of the Nissan which he originally purchased from the respondent. The appellant further claimed that the respondent's representative did not have the authority as the negotiator. 2. The submissions also challenge the conduct of the Senior Member who made the decision stating that the Senior Member "gave the impression that he had a kind of communication with the respondent before and after closed the Court …". 3. The Notice of Appeal filed by the appellant seeks leave on the basis that the decision was not fair and equitable or against the weight of evidence. The particulars relied upon are those set out in the documents attached to the notice of appeal. Bias 1. In relation to the allegation of bias, it would appear from the appellant's submission that he alleges the Member went outside the hearing room to locate the respondent or to call the matter and returned a short time thereafter with the respondent. He asserts there was some familiar or improper communication between the Member and the respondent. 2. This is a serious allegation. Such an allegation would have to be distinctly made and clearly proved. Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [69]; see also Re Refugee Tribunal; Ex parte H (2001) 79 ALR 425 at [28]. 3. A review of the audio recording does not record that this matter was raised on at the original hearing, despite the fact it is alleged part of the conduct about which complaint is made occurred at the commencement of the hearing. 4. Further, the assertions on appeal are insufficient to establish the allegations made. 5. In our opinion there is no evidence from the hearing that would indicate actual or apprehended bias nor do the reasons for decision reveal bias of any sort. Rather, this allegation is unsupported by evidence and should be rejected. The fact that the Member may have left the room to ascertain the whereabouts of the respondent's representative was no more than the Member discharging his function in calling the matter outside the hearing room and checking if a party not in the hearing room was otherwise in the vicinity of the hearing room awaiting their claim to be heard. Leave 1. In relation to those grounds of appeal requiring leave, the applicable principles for granting leave are set out in Collins v Urban [2014] NSWCATAP 17. 2. The appellant raises various matters set out in such documents filed. However having considered the detail of them, the Appeal Panel is not satisfied there may have been a substantial miscarriage of justice and has determined that leave to appeal should be refused. Findings 1. The appellant bought a Nissan motor vehicle on 21 August 2014. When purchased the car was seven years old and had travelled 48,762 kms. The vehicle had some defects and was put in for repairs by the appellant. 2. The claim for damages pursued in the Tribunal arises from this transaction. It consists of an allegation that the respondent failed to repair the Nissan and/or failed to properly compensate the appellant including a failure to refund to the appellant the full purchase price of the Nissan which was $12,500.00. It also includes a claim that the appellant was "forced … to drive the … Nissan with defects": Ground of appeal Item 11 point C. 3. The Tribunal found that the respondent offered to either refund the full purchase price of the vehicle or sell to the appellant a replacement vehicle, a VW diesel, for an amount of $20,000.00 consisting of a trade-in allowance of $12,500.00 and a cash payment of $7,500.00 and that the appellant accepted the offer to purchase the VW. 4. At paragraph 36 of the Reasons the Tribunal concluded that the terms of the agreement were: 1. the appellant would purchase the diesel VW that had been on loan and driven by the appellant since the appellant had left his Nissan with the appellant for repairs; 2. the appellant would trade-in his Nissan as consideration for the VW at a value of $12,500.00; and 3. that an additional cash payment of $7,500.00 would be paid by the appellant for the VW. 1. Payment of the $7,500.00 was made by electronic funds transfer on 7 January 2015 (see written contract in appellant's bundle page 25). 2. No error is shown to have been made in this decision and the conclusion reached by the Tribunal was reasonably available on the evidence before it. Further, no reason is shown why the Tribunal was incorrect to prefer the evidence of the respondent on the critical question of what each party said. 3. The Reasons record that a written contract was subsequently signed. The Tribunal concluded that the details recorded in the agreement reflected the essence of the transaction as set out in paragraph 36 of the Reasons, that that the appellant was required to pay a net cash amount of $7,500.00 to purchase the VW Golf. 4. Again, the Tribunal preferred the evidence of the respondent's witness to the evidence of the applicant. 5. The appellant submits on appeal that: 1. he did not have a signed copy of the agreement, the document he was provided being at appellant's documents page 25 and following; 2. he did not agree to purchase the VW or was coerced into doing so; and 3. in any event terms recorded in the signed agreement did not provide a full refund for the Nissan of $12,500.00, the trade-in allowance being recorded as $10,500.00 only. 1. The following facts are relevant to determining these matters: 1. the appellant did sign that part of the sales documents being the form 4 warranty: appellant's document page 27 and 17 ; 2. this document recorded the same price details as on the contract at page 27 of the appellant's documents; 3. at the time of the sale in January 2015: 1. the Nissan had travelled 7,532 kms whilst owned by the appellant; 2. the VW had been driven 5120 kilometres: see document 25 of the appellant's documents, the VW having originally been provided as a loan car to the appellant on 12 December 2014 at which time the odometer reading was 242 kilometres: appellant's documents page 24; 1. the vehicle registration for the VW was transferred to the appellant; appellant's documents page 28; 2. the appellant had possession of the VW and did not return it; 3. the appellant drove the VW for many months and by 23 April 2015 it has been driven a total of 9103 kilometres: appellant's documents page 29; 4. the appellant presented the VW for servicing on 23 April 2015; and 5. the original proceedings were commenced after this date by the appellant filing an application in the Tribunal dated 30 April 2015: appellant's documents page 1 and 2. 1. The fact that the written agreement recorded a lower trade-in value does not result in a conclusion that the Tribunal's conclusion was in error. In this regard the Tribunal accepted the evidence of the respondent's witness that both the trade-in allowance and the purchase price had been reduced by the same amount of $2,000.00 in the written contract but the amount of cash payable was the same, namely $7,500.00. 2. Further, the evidence clearly shows that the appellant had: 1. driven the Nissan 7,532 kms and first complained three months after the purchase; 2. signed that part of the written document being the Form 4 warranty and had thereby accepted the sale for a net cash payment of $7,500.00; 3. used the VW and drove it for many kilometres; and 4. only commenced his original proceedings more than 3 months after the sale of the VW had been concluded having driven nearly 4,000 kilometres in this time. 1. Against this background the assertion that the appellant was in some way coerced into agreeing to purchase the VW or otherwise did not agree to purchase the vehicle and resolve his difference concerning the purchase of the Nissan is without merit. 2. In relation to the claim for $31.00, again this conclusion is not shown to be wrong. The amount claimed, at least as explained by the appellant in oral submissions, is said to represent either: 1. the difference received in respect of the refund of stamp duty when the vehicle was returned; or 2. the difference between the amount charged for registration. 1. Alternatively, the amount claimed may be the transfer fee of $31.00 paid upon transfer of the registration of the Nissan to the applicant: see appellant's documents page 21. 2. It would appear from the appellant's submissions and documents filed in the appeal that he did receive a full refund of the stamp duty totalling $375.00 following a letter being written by the respondent to Roads and Maritime to support such refund. That letter advised the car had been "exchanged": appellant's documents pages 12, 21 (registration certificate showing stamp duty paid) and 22 (showing refund of $375.00). To this extent the challenge to the Tribunal's decision must fail. 3. In so far as there was any other difference, what this amount is for is unclear. However what is clear is that: 1. the appellant had use of the Nissan and drove it extensively (7,532 kms): see service invoice dated 16 December 2014 attached to the notice of appeal and appellant's documents page 14; and 2. the appellant entered an agreement that resolved the dispute concerning the Nissan on the terms set out above. 1. Accordingly, to the extent the "full" registration fee was not "refunded", no error is shown because the appellant had the use of the Nissan vehicle and was required to pay the registration charges in this period for his use of that vehicle. 2. Further, even if the amount of $31.00 was the transfer fee or could have been claimed on some other basis: 1. the parties resolved the claim in entering into the sale agreement for the VW; and 2. in any event, we are not satisfied there was any substantial miscarriage of justice, and therefore this aspect of the appeal fails. 1. Finally, there was no basis for the Tribunal to award to the appellant the sum of $37,969.00 by reason of the Nissan being defective. In fact, other than for the order of a steering column because its operation was "noisy", no defects have been proved to exist in the Nissan. None of the other alleged defects complained of could, according to the service records of the respondent, be detected. 2. As recorded in the Reasons, the respondent provided a loan car to the appellant when the vehicle was off the road being repaired. The respondent met its obligations under the ACL and resolved the dispute concerning the Nissan by the agreement for the sale of the VW, as part of which agreement the Nissan was returned and a full refund provided. 3. Otherwise, there was no evidence to suggest that the appellant suffered any relevant loss and damage in the amount claimed. 4. For these reasons the appellant has failed to demonstrate he may have suffered a substantial miscarriage of justice and there is no basis for the Appeal Panel to grant leave. 5. Finally, we are satisfied that the Tribunal Member made no error of law in determining the matter by making the orders which are now sought to be appealed from. 6. At its highest, this appeal constitutes no more than disagreement by the appellant with the Tribunal's decision. However, that does not render the decision erroneous. Orders 1. For the above reasons the Tribunal orders that: 1. Leave to appeal is refused; 2. The appeal is otherwise dismissed. ********** 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: 19 November 2015