Civil and Administrative Tribunal New South Wales Medium Neutral Citation: van Heythuysen v Ashfield Vehicles Pty Ltd t/as Cars by the Park [2016] NSWCATAP 162 Hearing dates: 30 June 2016 Date of orders: 25 July 2016 Decision date: 25 July 2016 Jurisdiction: Appeal Panel Before: M Harrowell, Principal Member S Thode, Senior Member Decision: (1) Leave to appeal is refused; and (2) The appeal is otherwise dismissed. Catchwords: Leave to appeal- inferences available on evidence, Legislation Cited: Civil and Administrative Tribunal Act 2013 Cases Cited: Collins v Urban [2014] NSWCATAP 17 Texts Cited: Nil Category: Principal judgment Parties: Rex Van Heythuysen (Appellant) Ashfield Vehicles Pty Ltd t/as Cars (Respondent) Representation: Appellant: B Simon (Counsel) Respondent: W Russell (Director) File Number(s): AP 16/19471 Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Citation: Not applicable Date of Decision: 1 February 2016 Before: C Paull, Senior Member File Number(s): MV 15/61276 reasons for decision Introduction 1. This is an appeal in respect of a decision of the Consumer and Commercial Division of the Tribunal in respect of motor vehicle list matter MV 15/61276 (Original Application). 2. The applicant in the Original Application had purchased a 2000 model VW Passat from the respondent on 12 February 2015. The purchase price for the vehicle was $5,400.00. 3. The application was heard on 1 February 2016. At that time the appellant sought an award in his favour in the sum of $7,197.99. This amount comprised a refund for the purchase price of the vehicle namely $5,400.00 and damages of $551.00, the balance of the claim being for his costs of prosecuting the claim. 4. On 1 February 2016 the Tribunal published reasons for decision (Decision). The Tribunal made the following orders: 1. The respondent is to pay the applicant $113.98 by 15 February 2016. 2. The application is otherwise dismissed 1. The award made by the Tribunal for $113.98 was the amount claimed by the appellant for a defective window screen wash pump, an item in the vehicle which failed on the date of purchase. The Tribunal noted that the respondent conceded the sum and otherwise disputed the appellant's claims. Notice of Appeal and Reply to Appeal 1. The appellant appealed the Decision and filed a Notice of Appeal dated 26 February 2016. The Appeal Panel's copy of the Notice of Appeal shows that it was received at the Tamworth Registry of the Civil and Administrative Tribunal on 7 March 2016. However, as explained by the appellant (and as accepted by the respondent) the Notice of Appeal had in fact been filed in Tweed Heads on 26 February 2016. Consequently, because the Decision was made on 1 February 2016 the appeal was lodged in time. 2. It is unnecessary to set out the whole of the terms of the Notice of Appeal. It is sufficient to record that the respondent raised questions of law and questions for which leave to appeal was required. The Notice of Appeal was in a form where the respondent set out in section B why he should be given leave, in particular why he asserted the Decision was not fair and equitable, against the weight of evidence and why there was new evidence now available that was not reasonably available at the time of the hearing. In addition, the appellant detailed his challenges to the Decision by narrating the reasons for decision. 3. The grounds raised by the Notice of Appeal can be summarised as follows: 1. The appellant was not given a reasonable opportunity to present his case at the hearing having regard to the manner in which the hearing was conducted; 2. The Tribunal failed to evaluate the appellant's claim under the Australian Consumer Law, in particular that the motor vehicle, the subject of the dispute: 1. Was not of acceptable quality; 2. Was not fit for any purpose the appellant made known to the respondent; and 3. The goods did not match the description. 1. The Tribunal incorrectly evaluated or gave inappropriate weight to the evidence provided by the appellant in support of his claim. These errors included: 1. Inappropriate weight being given to the usage of the car since it had been purchased; 2. A failure to analyse the evidence provided in a logical and chronological manner; 3. The Tribunal failed to have regard to the evidence of Mr Nugent from Southport Smash Repair who provided evidence concerning the state of the vehicle and various defects identified; and 1. The appellant was entitled to a refund of the purchase price of the car, The defects in the vehicle included front suspension, steering components, bearings, oil leaks and defective engine mounting. These defects would have cost more than the price paid for the motor vehicle to repair, an amount which the appellant did not have due to his being a pensioner. 1. The respondent filed a Reply to Appeal dated 29 March 2016. In short, the respondent said that the decision of the Tribunal was correct, that the issues raised by the appellant did not raise questions of law and the conclusions reached by the Tribunal were appropriate. Attached to that Notice of Appeal were various documents which had been provided at the original hearing. These documents included the sales contract and a vehicle inspection report issued by Otter Motor Engineering Co dated 17 January 2015 certifying that the vehicle complied "with the inspection standards of the Rules for Authorised Inspection Stations". The Decision 1. The Tribunal evaluated the appellant's claim under two headings. These were: A. Refund of Purchase price and return of vehicle; and B. Damages Incurred $551.54 1. The Decision outlined the history of the proceedings in the following terms: 1. The appellant had purchased a motor vehicle being a 2000 model VW Passat from the respondent for a total of $5,400.00 in February 2015: Decision page 2. At that time the vehicle had travelled 196,649 kilometres approximately: Decision page 3; 2. The applicant gave evidence that the respondent needed a car that would last for several years and travel long distances but after he bought the vehicle he experienced "problems from the day he drove it out" and when he sought to reregister the vehicle in September 2015 he could not do so because it would cost him over $8,000.00 to make the vehicle road worthy: Decision page 2; 3. The parties had tendered various documents. In the case of the applicant this included a report from RACQ and in the case of the respondent the vehicle inspection certificate (to which we have referred to above): Decision page 2; 4. While there were apparently log books provided with the vehicle when it was sold, the Tribunal noted that these log books were not in evidence: Decision page 2; 5. In respect of the RACQ report the Tribunal noted that this was prepared on 16 December 2015 at a time when the vehicle had travelled 204,867kms. The RACQ report also recorded that the vehicle was in "fair" condition: Decision page 2. 1. In connection with the claim for refund, the Tribunal made the following findings: 1. The fact that the appellant did not provide a copy of the log books, which the respondent gave evidence about as recording "a very good service history" for the vehicle, led the Tribunal to conclude that the failure to provide the log books in evidence should be given some weight in determining the outcome of the proceedings; 2. The appellant had been involved in a car accident shortly after the purchase of the vehicle in February 2015: Decision page 3; 3. The Tribunal accepted the submissions of the respondent that: 1. The repairs effected following the accident in February 2015 would have necessitated a realignment of the front wheels and suspension system which could not have been carried out if the items in the RACQ report where in existence at the time of repair. Rather, these defects must have arisen after that date; 2. The vehicle was of high "mileage" and there was no evidence of regular vehicle maintenance in the six month period after purchase; 3. Many of the applicant's claims now raised were "oil related matters" but the RACQ report did not raise any problem with the steering rack which contains oil; 4. Many of the items identified as being "necessary in order to have the car registered" do not require rectification for this purpose; 5. In the case of the tyres, the vehicle had travelled in excess of 8,000kms since purchase; and 6. Having regard to the facts that: 1. the vehicle was 15 years old, having originally done 190,700kms; 2. the vehicle was bought for a cost of $5,000.00; 3. the vehicle had suffered impact damage and subsequent repair following a collision after the date of purchase; and 4. the RACQ report recorded the vehicle in fair condition. the Tribunal was not satisfied the appellant had established his case or that he was entitled to a full refund of the purchase price of the vehicle. 1. In relation to the claim for damages, the Tribunal awarded an amount of $113.98 for the window screen wash pump, a matter conceded by the respondent: Decision page 3. However, the Tribunal rejected all other defects claims being: Power Steering fluid; Disconnect Water Heater; Engine Coolant; Power Steering fluid; and The cost of various inspections and reports for the purpose of the appellant prosecuting his claim. Hearing of the appeal and submissions 1. The appeal was heard on 30 June 2016. 2. Having previously been granted leave for representation, the appellant was represented by Mr Simons of counsel. Mr Russell, a director of the respondent, appeared on behalf of the respondent with leave of the Tribunal. 3. At the hearing of the appeal the Tribunal identified the documents which the parties were relying upon. The Appeal Panel had previously made directions for the filing and service of all evidence including the sound recording of the proceedings at first instance. 4. The following documents, tendered by the appellant, became Exhibits in the proceedings by consent: 1. Exhibit A1, A2 and A3 respectively being: 1. tax invoice from Nerang Auto Parts and Service dated 15 September 2015; 2. estimate from Nerang Euro Parts and Service for costs to carry out various repair work; and 3. "list of parts and service costs – 2000 model VW Passat" being a spread sheet dated 15 September 2015; 1. Exhibit B – affidavit of Geoffrey Nugent sworn 6 June 2016; and 2. Exhibit C – spread sheet setting out a summary of reports and vehicle inspection records in respect of the motor vehicle prepared between 27 May 2015 and 16 December 2015. 1. The Appeal Panel also had access to the sound recording. 2. The appellant, by his counsel, handed up a document headed "Submissions for the Appellant" (appellant's submissions). 3. In providing this document, and upon questioning from the Appeal Panel, counsel for the appellant confirmed that the appellant did not wish to press any grounds of appeal on the basis of the failure of the Tribunal to afford procedural fairness. Rather, the substance of the challenge was that the Decision was either: 1. Not fair and equitable; or 2. Against the weight of evidence, and therefore resulted in a serious miscarriage of justice: appellant's written submissions par 1. 1. In the written submissions, the appellant set out a chronology of what occurred. In short the appellant's submissions said in pars 4 – 19: 1. The appellant negotiated to purchase the subject vehicle for approximately $5,000.00, having negotiated a reduction in the purchase price of $1,000.00; 2. The appellant met the respondent's representative, test drove the vehicle and agreed to purchase the vehicle on 12 February 2015; 3. The appellant immediately drove the vehicle back to Queensland; 4. Approximately one week after purchasing the vehicle the appellant was "involved in a minor motor accident in the vehicle", namely in late February 2015; 5. The vehicle was taken to Southport Smash to effect repairs to the motor vehicle on 23 February 2015. However, due to a significant backlog repairs to the vehicle were not completed until 31 March 2015; 6. The vehicle was returned to Southport Smash on around 27 May 2015 because of oil and water leaks; 7. Mr Nugent, the representative from Southport Smash prepared a report dated 16 December 2015 which recorded defects in the motor vehicle; 8. During the period 27 May 2015 until September 2015 the vehicle continued to be driven by the appellant however he was unable to reregister the vehicle when renewal was due in September 2015 because the vehicle was "not in a road worthy condition". At this time the vehicle was inspected by Mr Love of Nerang Euro Parts and Service who prepared an "report" recording matters which required repair; 9. In relation to the RACQ report, the appellant submitted: It is absurd that the RACQ report described the vehicle as being in an "fair" condition when the vehicle has failed a registration test in September 2015 because it was not road worthy. The RACQ report notes many "defective" items that are in need of repair. 1. The appellant also said that the inspection certificate dated 17 January 2016 was of little weight, particularly having regard to the qualification in the certificate that it was not a "comprehensive report of the mechanical condition of the vehicle". 1. At paragraph 20 of the appellant's submissions, the appellant asserted that the claim was based on representations that constituted misleading and deceptive conduct. Consequently, the appellant claimed damages: Appellant's submissions par 21 – 26. 2. When asked about this ground of challenge and the previous claims by the appellant under the ACL to which we have referred above, counsel appeared to accept that these claims were essentially the same, namely that the essence of the complaints made by the appellant in the appeal were that, at the time of supply, the motor vehicle was defective with those defects being as detailed in the evidence provided in the RACQ report, Exhibits A1 – A3 inclusive and the evidence of Mr Nugent (Exhibit B), particularly the report from Southport Smash dated 16 December 2015 which was annexed to Mr Nugent's statement and the Nerang Auto "report", being the tax invoice Exhibit A1. 3. The appellant's submissions were centred on the contention that the Tribunal's evaluation of the evidence was incorrect and that leave to appeal should be granted. 4. At par 29 and 32 of the appellant's submissions the appellant said the Decision was not fair and equitable or was against the weight of evidence because: (i) The Tribunal at first instance did not properly consider the most cogent evidence of the Appellant being the 'noted fault' report of Mr Love of Nerang Euro Parts & Service. This was barely discussed, if at all, in the Tribunal at first instance. This report is not referred to anywhere in the decision of the Tribunal at first instance; (ii) The Appellant tried to relay the concerns of Mr Love and Mr Nugent to the Tribunal at first instance. This was the Appellant's most cogent evidence. The evidence was not mentioned in the decision of the Tribunal at first instance and it is not clear that the Tribunal considered this evidence at all, let alone the weight it attached to this evidence; (iii) the Tribunal at first instance seems swayed by the RACQ that was done on the vehicle on 16 December 2015 that described the vehicle as being in a "fair condition". This report also detailed numerous defects in the vehicle. The Tribunal at first instance appeared to consider this compelling evidence that the vehicle was in a satisfactory condition. This is absurd given that the vehicle was not roadworthy at this time; (iv) The Tribunal at first instance appears to have concluded that the defects in the vehicle were a result of the minor accident that the Appellant had in the vehicle in late February 2015. This finding is contrary to the evidence of Mr Nugent and Mr Love. Both Mr Nugent and Mr Love consider that many of the serious defects in the vehicle existed at the time of purchase of the vehicle. The Appellant tried to relay their evidence to the Tribunal at first instance. An inspection report dated 16 December 2015 of Mr Nugent and the "noted faults" reports of Mr Love were both before the Tribunal at first instance. None of this evidence was referred to in the decision of the Tribunal and there is no reason to consider that it was given proper consideration. 1. The oral submissions made by the appellant were to the same effect. Essentially, the submissions was that the Tribunal was incorrect in the inferences which it drew and it should have drawn an inference that the defects were in existence at the time the motor vehicle was purchased. The appellant pointed to the fact that the vehicle was damaged and off the road for several weeks after he returned to Queensland until Southport Smash could carry out repairs to the vehicle, and that and evaluation of the various reports should lead the Appeal Panel to conclude that the defects were in existence at the time the vehicle was purchased. 2. In relation to the RACQ report, the appellant submitted that too much weight was given to this report and that the report prepared by Southport Smash supported the conclusion that the subject vehicle had the identified defects present at the time it was sold in February 2015. 3. The respondent's oral submissions were brief. Mr Russell said that none of the evidence demonstrated that the defects about which complaint was made by the appellant existed at the time the vehicle was purchased. The respondent said, by reference to the Humphrey's Tyre invoice (an annexure to the statement of Mr Nugent- Exhibit B) that a wheel alignment could not have been done if the identified defects to the "front end" of the motor vehicle had existed at the time the repairs were effected in March 2015. 4. The respondent also drew the Appeal Panel's attention to the fact that the Humphrey's Tyre invoice recorded that the mechanic had carried out an inspection to brake pads, brake lines, vacuum lines, brake fluid level and brake callipers and that the invoice did not record any defects following that inspection. 5. The respondent also submitted that the vehicle had twelve months registration which was originally effected in September 2014 and expired in September 2015. The respondent submitted that the vehicle had been re-registered in September 2014, four months before the vehicle was the subject of the certificate of inspection by Otter Motor Engineering Co. Consequently, there had been two road safety inspections only a few months apart to assess the road worthiness of the vehicle prior to sale. The respondent said this was a matter from which the Tribunal correctly inferred that the vehicle, at the time of sale, did not have the defects about which the complaint was made. 6. In summary, the respondent says that the Decision and the conclusions reached by the Tribunal were correct and that the evidence supported the conclusion reached. Consideration 1. The appellant has a right to appeal on a question of law from the Decision and otherwise requires leave to appeal: see s 80(2) of the Civil and Administrative Act 2014 (NCAT Act). 2. Because the appeal was from a decision of the Consumer and Commercial Division, leave can only be granted if the appellant may have suffered a substantial miscarriage of justice: see cl 12 Schedule 4 of the NCAT Act. The principal applicable to the grant of leave to appeal were set out by the Appeal Panel in Collins v Urban [2014] NSWCATAP 17. 3. As indicated above, the issues raised by the appellant that might constitute errors of law, namely the failure to afford procedural fairness were not pressed by the appellant in the appeal. Rather, the substance of the challenges, as articulated by counsel for the appellant, was that the decision was not fair and equitable or was against the weight of evidence. Consequently, it is necessary to determine whether or not leave should be granted. 4. As made clear by cl 12, for leave to be granted the appellant must demonstrate he may have suffered a substantial miscarriage of justice. Of this provision, the Appeal Panel in Collins v Urban said at [67] – [71]: 67 This clause appears to be based on the provisions of s 68(2) in the Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) which permitted that tribunal to grant a rehearing if the applicant may have suffered a substantial injustice because of one or more the bases listed in that subsection were made out. Those bases were in substance the same as the 3 bases identified in cl 12. The significant difference between cl 12 and s 68 is that cl 12(1) requires that the appellant may have suffered "a substantial miscarriage of justice" rather than "a substantial injustice" as appeared in s 68(2). 68 Clause 12 does not require that the Appeal Panel must be satisfied that the appellant has actually suffered a substantial miscarriage of justice. All that is required is that the appellant "may" have suffered such a miscarriage. 69 The use of the expression "substantial miscarriage of justice" recalls the wording of the proviso to s (6)(1) of the Criminal Appeal Act 1912 (NSW) which is in the following terms: provided that the court may, notwithstanding that it is of opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred. 70 What constitutes a "substantial miscarriage of justice" in the context of s 6(1) was explained by the High Court in Mraz v The Queen (1955) 93 CLR 493 at 514: It [the proviso] ought to be read, and it has in fact always been read, in the light of the long tradition of the English criminal law that every accused person is entitled to a trial in which the relevant law is correctly explained to the jury and the rules of procedure and evidence are strictly followed. If there is any failure in any of these respects, and the appellant may thereby have lost a chance which was fairly open to him of being acquitted, there is, in the eye of the law, a miscarriage of justice. Justice has miscarried in such cases, because the appellant has not had what the law says that he shall have, and justice is justice according to law. It is for the Crown to make it clear that there is no real possibility that justice has miscarried. 71 From this passage, it can be seen that the concept of a substantial miscarriage of justice refers to a failure in the way a matter was conducted or decided which deprived the appellant of a chance that was fairly open of achieving a better outcome than occurred. 1. Further, the Appeal Panel said in Collins v Urban that even where it is demonstrated that an appellant may have suffered a substantial miscarriage of justice there is a general discretion to be exercised by the Appeal Panel in determining whether leave should be granted. The principle applicable to exercising such discretion were set out in Collins v Urban at [84] as follows: 84 The general principles derived from these cases can be summarised as follows: (1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (2) Ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed, BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [20] and the authorities cited there, SAB v SEM [2013] NSWSC 253 at [8] and [9] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (3) In relation to an application for leave to appeal relating to a question of practice and procedure, the application is to be approached with the restraint applied by an appellate court when reviewing such decisions, especially if the application is made during the course of a hearing: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [21] and the authorities cited there. 1. The requirements for the grant of leave in the present case require the Appeal Panel to evaluate the evidence to which the appellant has referred, be satisfied that there was a significant possibility or a chance which was fairly open that a different result in the proceedings might have occurred. As a matter of general discretion the Appeal Panel must also be satisfied that there was a factual error, a reasonably clear injustice or an unorthodox manner or approach adopted by the Tribunal such to lead the Appeal Panel to the conclusion that leave should be granted. 2. A determination of these matters requires consideration of the evidence the parties adduced at the original hearing as provided to the Appeal Panel in this appeal. 3. In relation to the evidence of defects. The following appears to be the position: 1. It is agreed that the motor vehicle had a defective window screen wash pump. The appellant was awarded $113.98 for this amount: see orders made and Decision page 3; 2. The vehicle was in an accident approximately two weeks after it was purchased. The accident occurred in Queensland. The vehicle was in the workshop and repaired by Southport Smash Repairs between late February 2015 and 31 March 2015. It should be noted that there is no evidence as to the repair work actually undertaken or the extent of damage. However, there is a description of the accident suggesting the damage was to the front end of the motor vehicle but, perhaps, not major damage; and 3. As a result of repairs being effected or, at about the time repairs were completed, namely 31 March 2015, the vehicle had a wheel alignment carried out by Humphrey's Tyres. This appears to be necessary work in consequence of the accident as detailed in the Southport Smash report dated 16 December 2015. The work undertaken is recorded in the invoice dated 31 March 2015. This work consisted of: 3D wheel alignment; Air-con gas; Mechanical repairs; Inspect brake pads, inspect all brake lines, inspect vacuum lines, check brake fluid, inspect brake calibres 1. There are no reports or evidence provided to the Appeal Panel to suggest that the defects, the subject of the appellant's claim, were recorded in any relevant report in connection with the vehicle February/ March 2015. Certainly, the appellant's spread sheet (Exhibit C) does not suggest such defects were recorded in a report at this time. 2. The next occasion on which the vehicle was apparently provided to a repairer was on 27 May 2015. The reason for the vehicle being returned to Southport Smash Repairs and the problems identified in the vehicle at this time are set out in a report from Southport Smash Repairs dated 15 December 2015, being a report from Mr Nugent attached the Exhibit B in the appeal. The report of 16 December 2015 is in the following terms: 16/12/2015 To whom it may concern, Southport Smash completed repairs to Volkswagen Passat on the 31/03/2015 after an accident. The vehicle was delivered to the insured on 31/03/2015 but brought back for wheel balance and the correct grille etc in April 2015. On 27/05/2015 the insured brought the vehicle back in with a water leak, the vehicle was taken to Autogex mechanical repairs up the street for inspection, when placed on the hoist it was discovered that there was a bad oil leak that had been there for an excessive amount of time as the under body of the vehicle was soaked in old oil. Also the engine mounts were rotten as the oil had eaten them away: we also performed a pressure test on the radiator only to find that all the hoses at the back of the motor & under dash were perished and leaking badly. Regards, Jeff Nugent 1. The Appeal Panel notes that the December report from Mr Nugent does not suggest any of the problems he earlier identified on 27 May 2015, namely that there was a bad oil leak, or that the "engine mounts were rotten as the oil had eaten them away" or that there was a failure with the radiator water system due to perished hoses or a leaking system, were defects that existed on 31 March 2015. This is despite that fact that the repairs and work undertaken in aligning the steering of the motor vehicle in or about March 2015 would have necessarily involved this repairer examining the front and underside of the vehicle. 2. From this evidence an inference is reasonably available that the defects observed on 27 May 2015 were not in existence and certainly not observed at an earlier point in time by Southport Smash Repairs or Humphrey's Tyres. 3. The next evidence to be considered is found in Exhibit C in the appeal. Under the 5th column of the spread sheet which is Exhibit C being headed "checked by Nerang Euro" there is a list of defects recorded. This was approximately eight days after the inspection carried out by Southport Smash Repairs. At this time Nerang Euro apparently identified the following defects: Heater failed; LH suspension joints failed RH suspension joints failed Gear box mounts failed – due to Power Steering Oil leakage over a long period RF wheel bearing failed Engine mounts – failed – due to power Steering Oil leakage over a long period. 1. It is to be noted that no report from Nerang Euro as to any inspections carried out at this time was provided in evidence other than the narrative in the spread sheet. However, significantly, any necessary repairs were "not quoted on at this time". Rather, as shown in column 4 of Exhibit C two days later on 10 June 2015 the appellant apparently had the vehicle further inspected by "Zac – 15 years' service at VW Audi and Czechoslovakia". The spread sheet records that a quotation was apparently provided for $5,775.00 to rectify the identified defects which were the same as set out in column 5 (Nerang Euro) of the spread sheet. Again however no report was provided to the Appeal Panel from "Zac" nor was the quotation for the matters identified as defects provided at that time. 2. The Appeal Panel was referred to the "report" of Nerang Euro Parts and Service. This "report" appears to be the information provided in the tax invoice dated 15 September 2015, Exhibit A1. Under the heading "1.00 Noted Faults" the following matters are recorded: 4 Tyres worn on inside edges R Oil leaks at diff pinion seals: Diff mounts U/S R RH Axle seal leaks R RF Wheel bearing noisy R Engine Mounts & transmission mounts oil soaked & failing apart. R Hoses under throttle body swollen. Coolant leak at water pump. Brake booster intermittent failure no assistance. R Sever oil leas at motor & transmission. Needs wash down & recheck to pinpoint. Rocker cover a start R Undertrays & splash guards missing. Hole in sump repaired with a screw. Not satisfactory. RH Tie rod end badly worn. R Upper front control arm joint worn R Heater bypasses suspect leaking core. R Centre LCD dash displays faulty R LF & LR Windows faulty R Oil levels sender faulty NOTE: Vehicle not Roadworthy or safe to drive on the roads NOTE: Items showing "R" at the end are roadworthiness failed items 1. Exhibit A1 also records the vehicle had travelled 203512 kms by 15 September, that is it had travelled a total of 6973 kms (203,512- 196,649) in the period 12 February 2015 to 15 September 2015 although it was apparently off the road being repaired in March 2015. Exhibit A2 and A3 are quotations to effect the repairs noted in respect of the defects. This list of faults is recorded following an inspection on or about 15 September 2015. 2. The faults noted included worn tyres, oil leaks, coolant leaks and steering component faults. 3. The "report" from Nerang Auto does not detail when the identified faults may have first occurred or the cause of those faults. However, the Appeal Panel notes that the front worn tyres, tie rods and upper control arm joints and bushes all form part of the suspension and steering components for the vehicle. It is also to be noted that the various oil and water leaks are matters that appear to have been readily observable. Indeed some of these matters had been observed four months earlier in May 2015 although no repairs had been effected in the intervening time. 4. However, nothing in these reports would lead the Appeal Panel to conclude that the particular defects existed in the vehicle at the time of sale. Further, in respect of the tyres and steering components, these are matter which, if defective, would have been identified by Humphrey's Tyres when they carried out the wheel alignment and inspection as recorded in their invoice dated 31 March 2015. Similarly, any extensive oil or water leaks and missing underbody components would have been observable to Southport Smash Repairs when it repaired the vehicle in March 2015. 5. In the absence of any evidence that such defects existed on 31 March 2015, the only reasonable conclusion that would have been available to the Tribunal (and to the Appeal Panel) is that these defects arose sometime after 31 March 2015. 6. During the hearing of the appeal, when these matters were pointed out to counsel for the appellant, he agreed that the evidence provided to the Tribunal did not make clear that the defects existed at 31 March 2015, let alone at the time the vehicle was sold on 12 February 2015. 7. Further, as indicated in the Tribunal's reasons, the vehicle since purchased had travelled more than 8,000km, that is more than 1,000km per month: Decision par 2. 8. Finally, we note the Tribunal relied on the RACQ report referred to in Exhibit C which stated that the vehicle when inspected in December 2015 was in "fair condition" at that time. Despite having tendered the report for RACQ, the appellant in the appeal sought to eschew any reliance upon that report. Rather he preferred to focus his submissions to the Appeal Panel upon the other reports of Southport Smash Repairs and Nerang Euro to which we have referred above. 9. When considering the Decision, particularly the reasons of the Tribunal at page 3, it seems clear that the Tribunal accepted the respondent's submissions that the defects identified "must have arisen after the car was repaired and hence were not present at the time of purchase". Consequently, the Tribunal rejected the appellant's claim that he was entitled to a refund of the purchase price because the vehicle was not of appropriate quality or standard when sold. 10. As we indicated above, the appellant, in his appeal documents and submissions made by counsel appeared to alter the basis upon which he claimed he was entitled to a refund of the purchase price of the vehicle and that he was entitled to return the vehicle. However, whether or not the claim made is characterised as misleading and deceptive conduct or as a breach of the consumer guarantees found in the ACL, the appellant accepted in the appeal that the ultimate question was one of fact to determine whether or not the motor vehicle met the requirements as to quality. Section 54(2) of the ACL provides that goods are of an acceptable quality if they are: Fit for the purposes for which the goods of that kind are commonly supplied; and Acceptable in appearance and finish; and Free from defects; and Safe; and Durable, as a reasonable consumer fully acquainted with the state and condition of the goods (including any hidden defects of the goods), would regard as acceptable having regard to the matters in subsection (3). 1. The matters specified in subsection 3 are: 1. The nature of the goods; and 2. The price of the goods (if relevant); and 3. Any statement made about the goods on any packaging or label on the goods; and 4. Any representation made about the goods by the supplier or manufacture of the goods; and 5. Any other relevant circumstance relating to the supply of the goods. 1. Section 54(6) provides that goods do not fail to be of acceptable quality if: 1. A consumer to who the goods are supplied causes them to become of unacceptable quality or fails to take reasonable steps to prevent them of becoming of unacceptable qualities; and 2. They are damaged by abnormal use. 1. On the other hand, in so far as the claim arose from alleged misleading and deceptive conduct, the appellant did not contend that the respondent represented the second hand vehicle that was 15 years old and had travelled more than 196,000kms when sold would be defect free or that parts in the vehicle would not wear out. At best the representation was for a reliable car that "would last a number of years and be able to travel long distances." 2. While the Tribunal did not expressly deal with the provisions applicable to claims for misleading and deceptive conduct or claims for breach of the ACL, it seems to us that the evidence does not establish that the goods were not of acceptable quality or that the respondent had otherwise breached its obligations to the appellant in respect of the sale of the car by reason of the vehicle being defective. 3. Rather, the conclusions which the Tribunal reached were available to it on the evidence provided and, as we have set out above, the submission that the goods had the defects in question at the time of supply is not made out. 4. The vehicle in question had, at the time of purchase, travelled more than 196,000kms. It is unclear how far the vehicle had been driven by May 2015. However, by September 2015 it had travelled nearly 7000kms and by December 2015 it had travelled approximately 8,000kms since purchase. Further, it would seem on the evidence from the appellant that during this time the vehicle had not been serviced nor had necessary repairs been carried out, despite defects having been identified. 5. The vehicle was purchased for a price of $5,400.00 in February 2015, driven from Sydney to Brisbane and was then involved in a motor accident and damaged. Some of the matters about which complaint is made may not arise from the damage caused by the accident but rather by fair wear and tear of the vehicle. However, having regard to the age of the vehicle and the evidence of the state of the vehicle at particular points in time from September 2014 until December 2015, there is no basis for the Appeal Panel to conclude that the Tribunal was in error in finding that the appellant had failed to prove that the goods supplied were, in any relevant way, defective at the time of sale or of a quality that would constitute a breach of the ACL so as to entitle the appellant to return to vehicle and receive a refund of the purchase price. 6. The only defect established (and accepted by the respondent) was in respect of the window screen wash pump for which an award was made in the sum of $113.98. 7. Accordingly, the Appeal Panel is not satisfied that the appellant may have suffered a substantial miscarriage of justice and accordingly leave to appeal should be refused and the appeal otherwise dismissed. Orders 1. The Appeal Panel makes the following orders: 1. Leave to appeal is refused; and 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: 25 July 2016