Heartland Motors Pty Ltd v Piatow [2016] NSWCATAP 78

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Heartland Motors Pty Ltd v Piatow [2016] NSWCATAP 78 Hearing dates: 18 February 2016 Date of orders: 11 April 2016 Decision date: 11 April 2016 Jurisdiction: Appeal Panel Before: J Redfern, Principal Member S Thode, Senior Member Decision: 1. Appeal allowed in part

2. Orders 1 to 4 made on 16 October 2015 set aside

3. Matter to be remitted to the Tribunal as previously constituted for reconsideration of the orders to be made Catchwords: APPEAL – Civil and Administrative Tribunal (NSW) – consumer claim – Australian Consumer Law – whether vehicle with production and compliance plate date over 18 months old 'new' – misleading or deceptive conduct – whether representation that vehicle new – whether silence was misleading – obligation to disclose – reasonable expectation of disclosure – reference to new vehicle contract but date of model disclosed– failure to draw age of vehicle to attention of consumer at time of purchase – conduct likely to mislead or deceive consumer in the circumstances – not satisfied vehicle supplied by description – remedy and orders uncertain – appeal allowed in part − orders set aside and remitted to Tribunal as previously constituted for rehearing of remedy Legislation Cited: Competition and Consumer Act 2010 (Cth) Trade Practices Act 1974 (Cth) Trade Practices Amendment (Australian Consumer Law) Act (No 2) 2010 (Cth) Civil and Administrative Tribunal Act 2013 (NSW) Consumer Claims Act 1998 (NSW) Fair Trading Act 1987 (NSW) Cases Cited: Annand & Thompson Pty Ltd v Trade Practices Commission (1979) 40 FLR 165 Collins v Urban [2014] NSWCATAP 17 Demagogue Pty Ltd v Ramesky (1992) FCR 31; 110 ALR 608 Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd (1978) 140 CLR 216 Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390 Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd [2010] HCA 31; (2010) 241 FCR 357; 84 ALJR 644; 270 ALR 204 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Winterton Constructions Pty Ltd v Hambros Australia (1992) 39 FCR 97; 111 ALR 64 Wyman on behalf of the Bidjara People v State of Queensland [2012] FCA 397 Texts Cited: Russel Miller, Miller's 2015 Australian and Competition and Consumer Law Annotated (37th ed, Thomson Reuters (Lawbook Co)) Category: Principal judgment Parties: Heartland Motors Pty Ltd (Appellant) Mr Serge Piatow (Respondent) Representation: Self-representation File Number(s): AP 15/61737 Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: NA Date of Decision: 16 October 2015 Before: J Levingston, Member File Number(s): MV 15/48847