Salloum v Charles Golding t/as Golden Motors [2016] NSWCATCD 72

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Salloum v Charles Golding t/as Golden Motors [2016] NSWCATCD 72 Hearing dates: 15 August 2016 Date of orders: 07 September 2016 Decision date: 07 September 2016 Jurisdiction: Consumer and Commercial Division Before: B Shipp, Senior Member Decision: 1. The Respondents is liable to pay the sum of $14,000 to the Applicant. This amount is due and payable on or before 14 September 2016 2. The Applicant shall deliver possession of the vehicle to the Respondent on or before 14 September 2016. 3. For the purpose of these orders, the Respondent is to arrange and pay for the collection of the vehicle. Catchwords: Motor Vehicle Dealer's Guarantee, Acceptable Quality Legislation Cited: Fair Trading Act 1987 (NSW) Australian Consumer Law Motor Dealers and Repairers Act 2013 Category: Principal judgment Parties: Mr Georges Salloum (applicant) Mr Charles Golding trading as Golden Motors (respondent) Representation: Both parties in person File Number(s): MV 16/18874 Publication restriction: Nil

REASONS FOR DECISION

Background and Jurisdiction 1. The Applicant purchased a 2011 Great Wall vehicle ("the vehicle") from the Respondent on 4 December 2015. The Applicant alleges that he became aware of problems with the vehicle approximately 3 weeks after he purchased it, and that he subsequently became aware that the vehicle was unroadworthy at the time of sale. He seeks to return the vehicle and obtain a full refund. 2. The Respondent denies that the vehicle was unroadworthy, but in any event claims that he has now undertaken repairs at his own expense which have fixed any problems. He does not agree to accept a return of the vehicle or to pay any amount of money to the Applicant. 3. The Tribunal's Consumer and Commercial division has jurisdiction in relation to matters arising under various legislation including the Consumer Claims Act 1998 (NSW)(CCA) which in turn may raise issues rights under the Australian Consumer Law (ACL). This jurisdiction and the legislative provisions have now been transferred to Part 6A of the Fair Trading Act 1987, and that it is the applicable legislation as this application has been lodged after these changes took effect. 4. The ACL was incorporated into the law of New South Wales by section 28(1) of the Fair Trading Act 1987 (NSW) ('FTA'). The ACL (NSW) consists of Schedule 2 of the Competition and Consumer Act 2010 (Cwth), and the regulations under section 139G of that Act (FTA section 27). 5. The ACL applies to create rights at law in consumers that fall within the terms of the ACL including the consumer guarantee provisions in sections 54-57 of Part 3-2 ACL. Whilst the ACL creates a cause of action at law and a range of remedies for parties, it does not of itself confer any jurisdiction on this Tribunal to hear those actions and provide those remedies. 6. Section 79J FTA gives the Tribunal jurisdiction to hear claims falling under the FTA. Section 79D of the FTA defines a 'consumer' to include a natural person to whom a supplier has supplied or agreed to supply goods or services, whether under a contract or not. The Applicant meets this description. 7. The claim arises from the supply of goods to the consumer (under a contract or not), and constitutes a claim by the consumer for the payment of a specified sum of money (FTA section 79E). The goods to which the claim relates were supplied in NSW (FTA section 79K). The claim was made within the period of time allowed in Section 79L FTA. 8. The claim is therefore one maintainable under the FTA but as such is subject to the Tribunal's monetary jurisdiction which is limited by section 79S FTA to making orders for the payment of no more than the prescribed amount. The Applicant's claim is within the monetary limits prescribed.