Motor Magic Auto Parts Pty Ltd v Burns [2016] NSWCATAP 82

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Motor Magic Auto Parts Pty Ltd v Burns [2016] NSWCATAP 82 Hearing dates: 8 December 2015 Date of orders: 12 April 2016 Decision date: 12 April 2016 Jurisdiction: Appeal Panel Before: S Westgarth, Deputy President K Rosser, Senior Member Decision: (1) The application for leave to appeal is refused; and

(2) The appeal is dismissed Catchwords: APPEAL – Leave grounds – evidence not reasonably available – clause 12 Schedule 4 Legislation Cited: Australian Consumer Law Civil and Administrative Tribunal Act 2013 Cases Cited: Collins v Urban [2014] NSWCATAP 17 Texts Cited: Nil Category: Principal judgment Parties: Motor Magic Auto Parts Pty Ltd (Appellant) Phillip Burns (Respondent) Representation: S Parker (Appellant) Peter Burns (Respondent) File Number(s): AP 15/49500 Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Citation: Not applicable Date of Decision: 27 July 2015 and 24 September 2015 Before: A Morris, General Member File Number(s): GEN 15/16985

reasons for decision

Background 1. This is an appeal from a decision made in the Consumer and Commercial Division of the Tribunal. Initially the decision was in short form and published on 27 July 2015. That decision contained an order that the appellant pay to the respondent (who was the applicant at first instance) the sum of $2000.00 as "Refund of cost of defective ford diesel injectors". Subsequently, on 24 September 2015, more detailed reasons were published. The notice of appeal was filed with the Tribunal on 27 August 2015 but the submissions made by the appellant and the respondent are responsive to the detailed reasons published on 24 September 2015 (which we will refer to in these reasons as the "Decision"). 2. In the decision of 27 July 2015 the reasons for decision contained the following: Accordingly, the injectors are to be returned to the providers (which I note has occurred in the Hearing, and financial recompense made. 1. In the Decision, in addition to the order requiring the appellant to pay to the respondent the sum of $2000.00, an order is made that the respondent is to return "the injectors to the respondents [i.e. the appellant] (it is noted that this was done in the hearing room)". 2. It is helpful in understanding the grounds of appeal to firstly set out the relevant background which is recorded in the Decision. This background is set out in the following paragraphs. 3. On 22 July 2014 the respondent to the appeal purchased four fuel injectors for his Mazda BT 50 vehicle from the appellant. The price of the injectors was $2000.00. The Decision records that the injectors were fitted to the respondent's Mazda by a business known as Eden Mazda on 24 July 2014. However, at the appeal hearing the respondent's son (who appeared for and spoke for the respondent) stated that he had himself fitted the injectors. The Appeal Panel does not think anything turns on whether the injectors were fitted by the son or by Eden Mazda. 4. The Decision records that in September 2014 the respondent found that the injectors were blowing excessive smoke and that he had Eden Mazda inspect the injectors. The Decision records that the opinion of Eden Mazda was that the number three injector was faulty and that the fuel system was free of contaminants. The Decision also states that: It was concluded that the injector failed prematurely. 1. During the appeal hearing the Appeal Panel was shown the report of Eden Mazda referred to in the above paragraph. It is brief and states the following: Number three injector not functioning. Blowing excessive black smoke and excessive black flow at top of injector number 3 and inspected fuel quality, in excellent condition (fuel filter perfectly clean, no contaminants). 1. The Decision records that the appellant's representative gave evidence that the injectors were sourced from a company called "AZNEW Fuel Injectors Pty Ltd". 2. The Decision records that in November 2014 the respondent took the injectors to the appellant because they had failed and had requested a replacement. The appellant sent the injectors to AZNEW for testing. AZNEW returned the injectors on 20 January 2015 with a report which the Decision records stated that the "injectors failed the tests, indicating that they had "high back – leakage, causing delivery variation"". The Decision records that the AZNEW letter suggests that the "Most likely cause would be from contamination". 3. The Decision rejected a number of the contentions of the appellant and found that the injectors did not fit the requirements of s 54 of the Australian Consumer Law (ACL) which requires goods to be of an acceptable quality. The Decision records that there was no evidence to the effect that the respondent failed to take reasonable steps to prevent the injectors from becoming of unacceptable quality or otherwise causing damage by abnormal use. In particular, the Decision records that there was nothing in s 54(6) which would have the effect of enabling a conclusion to be drawn under that subsection. That subsection provides that goods do not fail to be of acceptable quality if the consumer has, in effect, been the cause of the failure of the goods. Finally, the Decision recorded that the injectors were being used "as intended in a standard engine and failing, whether due to contaminants that would reasonably be expected to be in that engine or for any other reason, were not fit for the purpose for which they were supplied, and that the seller is accordingly obliged to refund the buyer, as he cannot repair or otherwise render these injectors suitable for their intended purpose".