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. Proceedings 1. The matter came before the Tribunal on 18 May 2015 and 8 July 2016. Both parties appeared at the first hearing at which time there were discussions between them which did not resolve the matter. The Tribunal adjourned the matter for hearing, and made directions were made for both parties to submit any documents they would rely on within a certain timeframe. As a result of a request for an extension of time, the matter was adjourned for a Directions Hearing. The Applicant was represented by his daughter Ms Maryanne Yammine at the 2nd hearing. There was no appearance of the Respondent. The time for lodging documents was extended. 2. At the final hearing, the Applicant appeared in person with his daughter Ms Yammine. The Respondent Mr Golding also attended. All three gave evidence on oath. Applicant's evidence 1. The Applicant relied on: 1. its chronology of events, 2. his Affidavit of 27 May 2016 which relevantly attaches: * Registration details of the new vehicle and his trade-in Saab, * A Tax Invoice from the Respondent for the purchase of the vehicle , * A Quote dated 9 February 2016 from Diamond Wheels P/L trading as Lansvale Motor Group ("Diamond Wheels") , * A Tax Invoice dated 9 February 2016 from Diamond Wheels , * Correspondence from and to NSW Fair Trading. 1. Affidavit of Stephen Roberts (mechanic with Diamond Wheels) dated 27 May 2016, attaching : * Same tax invoice and quotation noted above , * A series of photographs of the vehicle of different parts of the underside of the vehicle and what is claimed to be rusty water from the fuel tank. 1. Photographs of the Saab used as a trade-in. 1. In summary, the Applicant claims as follows: 1. When he first went to the Respondent's dealership, he inspected the vehicle and there was no price attached to it. There was also no Dealer's Notice attached to the vehicle. 2. He had his 2004 Saab to use as a trade-in. 3. One of the Respondent's salesmen told him the Great Wall was for sale "for $14,000 to $15,000". After examining the Saab, and following some negotiations, he told the Applicant: "You pay me $5,000". From this, the Applicant concluded he was being offered $9,000 to $10,000 for the trade-in vehicle. He paid $5,000 cash and took the vehicle. He received a Tax Invoice evidencing the payment and a roadworthy certificate, but no other documents. In particular, he received no sales contract indicating the full value of the vehicle. 4. He took the roadworthy certificate to RMS and registered the vehicle in his name. 5. He drove the vehicle from the date of purchase in early December 2015 for 3 weeks without apparent incident. [The Tribunal notes there is some confusion in the Applicant's evidence about whether he first noticed problems with the vehicle on about Christmas Day 2015 or on 18 January 2016 when the vehicle stopped while he was driving in Blacktown and could not be restarted.] 6. The Applicant agrees he had driven just under 5000 kilometres in this period, making a number of trips to see a friend in Cessnock. He denied that he had driven the vehicle off road in this period. The vehicle has also not been involved in any collision or accident since the date of purchase. 7. After the vehicle stopped he had it towed to a mechanic at Diamond Wheels. These are authorised mechanics for this model of vehicle. Diamond Wheels advised that the vehicle had major accident damage to the front end, and the fuel system was faulty. Diamond Wheels quoted over $10,000 to replace the fuel system alone. Diamond Wheels charged $99 to inspect the vehicle. He decided not to proceed with these repairs, as it was uneconomical, and in view of the extent of the damage. 8. He has not driven the vehicle at all since this time. 9. He attempted to contact the Respondent but had difficulty locating him as he had moved his business from the place where the vehicle was purchased. He lodged a complaint with the Department of Fair Trading (DFT) but DFT indicated that the Respondent did not answer the complaint letter. The Applicant then lodged his claim with the Tribunal. 1. At the first hearing before the Tribunal on 18 May 2016, the Member records that the parties had agreed that the Applicant would allow the Respondent access to the vehicle to enable an independent panel beater to assess the vehicle to enable the Respondent to provide its response. 2. The Applicant notes that the Respondent claims to have arranged for repair work to be done on the vehicle while it was in his possession. The Respondent claims that this further work has brought the vehicle into a roadworthy condition. The Applicant does not believe that the repair work has been done with sufficient care to make it roadworthy. 3. The Applicant relies on the Affidavit of Stephen Roberts, who describes himself as a light vehicle mechanic in the trade for 12 years, currently employed with Diamond Wheels. Mr Roberts provides the following relevant evidence: 1. Diamond Wheels is a Great Wall dealer and specialises in Great Wall vehicles. 2. He is aware that his statement is for use in tribunal proceedings. 3. He has inspected many vehicles for the purpose of assessing their safety, the nature and extent of damage caused, and the actions and cost to repair the vehicle. 4. The vehicle was towed into their premises on or about 20 January 2016. He inspected the vehicle and took photos of the under carriage and fuel system which "was significantly damaged and rusted." 5. He removed the fuel system and "due to the extent of the damage" it was not economical to return the parts to the vehicle. The owner then had the vehicle towed out of the premises. 6. His inspection revealed both structural and mechanical damage to the vehicle, and was indicative that the vehicle had major accident/impact damage to the front end. 7. The fuel system has been badly water damaged. He produces a photo showing rust coming out of the fuel filter. This indicates that water had been present in the system for some time. Another photo shows water separated from the diesel, and the rust. "This kind of damage and extent of rust is not found under normal operation." 8. The photo of the chassis shows accident/impact damage that has not been repaired. Another photos shows the left lower control arm which is clearly bent and shows accident/impact damage. There is a large piece of wood or timber lodged inside the control arm. 9. Another photo shows an attempt to repair accident/impact damage to the underneath front radiator support panel. The repair work is "amateur" and "not up to industry standard". The front bar has been filled with bog and there is poor paint repair. 1. On the basis of the above, Mr Roberts concludes that: * the car is not roadworthy and requires major structural and engine repairs * the amount of rust deterioration is not common under normal operating conditions * the vehicle has been involved in a front end collision with a tree or stump as the amount of timber/wood found lodged in certain parts of the vehicle are lodged in paces which would require extreme force. 1. The Diamond Wheels tax invoice summarises the findings as follows: * … major accident damage to front end * Engine sump damaged * Centre chassis crossbar section has impact damage and is bent * Near side suspension control arms have impact damage and are bent * Large piece of wood speared through rack end. * Large pieces of wood jammed in various part of front end – suspect impact with tree/stump etc. * Extremely poor paintwork at front end * Near side front wheel has excessive camber due to bent suspension components. 1. The Applicant notes that Mr Roberts only quoted on the repairs to the fuel system. There would be extra expense associated with any structural repairs. Respondents' Evidence 1. The Respondent relied on the following documents: * Estimate from D and M Spray painting (panel beaters) ("D and M") dated 11 July 2016 * Inspection Report from Chester Hill Automotive ("Chester Hill") dated 9 June 2016. * Photos taken by Chester Hill showing undercarriage before and after its repairs. 1. The Respondent provided the following relevant evidence: 1. The vehicle was in a roadworthy condition at the time of sale. He ran a PPSR search which did not indicate any prior collision damage. 2. There is no warranty on the vehicle because it is classed as a commercial vehicle. Nevertheless, he believes there was a price on the vehicle, and a Dealer's Notice attached to the inside of the vehicle. He states this would be "on his computer". 3. He recalls the vehicle was advertised for sale at $9,900, not $14,000 to $15,000 as the Applicant suggests. This was the price marked on the vehicle at time of sale. 4. The Applicant told him he wanted the Great Wall vehicle to go off road with a friend. It is possible that the damage which Diamond Wheels reported on was caused when it was in the Applicant's possession after it was sold to him. 5. He relies on the report from D and M which states: "We have inspected (the vehicle) for evidence of chassis damage or bent and cracks. And found no damages been done to chassis rail underbody carriage or any past history of damages on chassis rail before. Looks like in still factory condition for the age of the vehicle". 1. He also relies on the report from Chester Hill which states: ".. I was asked by (the Respondent) to check the whole ute before we start any work because … if the chassis damaged or been repaired his not going to do any repair. … the fuel tank was out … we push it on to the hoist for inspection. I check the chassis for any damage or been repaired nothing was find beside the cross bar and the left hand lower control arm they were bent. … I did call (the Respondent) and told him what was wrong … (The Respondent) said repair it. The repair was completed 5 July 2016. The ute is now in 100% roadworthy condition". 1. The Chester Hill report also details the repairs completed including supply and fit cross bar and lower control arm, re-install fuel tank and supply and fit new fuel filters, fuel pump start and stop solenoids replaced, and wheel alignment. 2. The Respondent challenges the conclusions of Mr Roberts about the fuel system. He suggests that if the fuel system had been fouled by water for the length of time described, this would have become apparent within 1 hour or 1 week of driving (the Applicant had driven the vehicle for 3 weeks). He believes it is more likely that the Applicant had filled the car with contaminated fuel from a fuel station. He also believes the car may have been driven without a fuel cap, and that allowed water to foul the fuel system. 3. The starting problem was due to a faulty solenoid. Chester Hill replaced this. 4. The Diamond Wheels quotation is too high. Chester Hill fixed the bent sections and replaced the fuel tank and solenoid for just over $1,100. He agreed to pay for these repairs, not because he agrees that the vehicle was unroadworthy at time of sale, but because he felt sorry for the Applicant receiving bad advice from other mechanics. 5. He also arranged for Diamond Wheels to replace the fuel filter neck. This was done for no cost. It was a recall item due to a manufacturing fault. The plastic neck was replaced by a steel part. The Applicant in response 1. The Applicant: 1. Denies he drove off-road at any time, or had any accident in this vehicle. 2. Reminds the Tribunal of Mr Roberts's evidence that the amount of rust found in the fuel indicated the presence of water in the system for some time, contrary to the Respondent's suggestion that it resulted from a recent filling with contaminated fuel. 3. Suggests the Tribunal should prefer the expert evidence found in the sworn affidavit of Mr Roberts to the unsworn unsigned statements from D and M, or Chester Hill. The Applicant indicates that there is no information about the experience of the authors of these reports, or whether they were even aware of the use to which their reports would be put. 4. Notes the Respondent's evidence that the vehicle is now roadworthy, when the extent of rust highlighted in the Diamond Wheels report suggests that the fuel system as a whole would need to be replaced. 5. Suggests that the Respondent's photos indicate the bent parts have been hammered out rather than properly replaced. [This was denied by the Respondent indicating the photos which show the old and new parts] The Law and its application 1. To succeed in his application, the applicant must establish on the civil standard of proof that his evidence supports the claim that the respondent has failed to comply with any applicable standards for a provider of goods required under the law. In this matter, that includes the ACL consumer guarantees and the repair guarantee under Section 68 of the Motor Dealers and Repairers Act (MD and R Act). 2. Section 68 of the MD and R Act applies as this sale occurred after the commencement of this Act in 1 December 2014. It provides as follows: 68 Dealer guarantee for defective vehicles (1) Dealer guarantee A motor dealer must, at the motor dealer's own expense, repair or make good a motor vehicle sold by the motor dealer, if it is a defective vehicle, so as to place the motor vehicle in a reasonable condition having regard to its age. Note: Any repairs must be carried out by the holder of a tradesperson's certificate (see section 16). (2) The following persons have the benefit of the dealer guarantee: (a) the purchaser of the motor vehicle from the motor dealer, (b) any subsequent owner of the motor vehicle, but only if the motor vehicle was not a second-hand motor vehicle when sold by the motor dealer liable for the dealer guarantee. (3) A motor dealer ceases to be liable for the dealer guarantee for a motor vehicle if the motor vehicle is at any time acquired by the motor dealer or another motor dealer. (4) The dealer guarantee does not apply to a motor vehicle if no limitation period is specified for the motor vehicle under this Division. (5) Vehicle must be defective before end of limitation period The dealer guarantee applies only to a motor vehicle that is or becomes a defective vehicle before the end of the limitation period for the motor vehicle (whether or not it is known before the end of the limitation period that the motor vehicle is a defective vehicle). (6) Defects that become apparent after limitation period A motor dealer is not required to comply with the dealer guarantee if the condition or defect that causes a motor vehicle to be a defective vehicle becomes apparent after the limitation period and the owner of the motor vehicle fails to report the condition or defect to the motor dealer within a reasonable period of becoming aware of the condition or defect. Defective vehicle is defined as follows: "defective vehicle" means a motor vehicle that is in such a condition, or has such a defect, that the supply of the motor vehicle would constitute a breach of a guarantee (a "consumer guarantee") that applies under sections 54-57 of Part 3-2 of the Australian Consumer Law (NSW). 1. Other provisions of the MD and R Act: * - set out the limitation periods (3 months for vehicles less than 10 years old and driven less than 160000 kilometres * - Indicate which vehicles for which there is no dealer guarantee, and the damage to which the dealer guarantee does not apply, and * - Indicate that where the dealer guarantee is fully complied with, the vehicle owner is not entitled to enforce any remedies against the dealer under the ACL 1. The combined effect of these sections is to require the dealer to repair or make good the vehicle it has sold, in order to "place it in a reasonable condition having regard to its age". The repair guarantee does not apply to all vehicles. It does not apply: * to a motor vehicle sold at an auction if there is an attached dealer's notice specifying that the dealer guarantee does not apply. * to a substantially demolished or partially dismantled motor vehicle that is purchased by the holder of a motor vehicle recycler's licence. * to a motor vehicle sold by a motor dealer that is unregistered and, at the time of sale, requires substantial repair. * if the damage was incidental or accidental and occurred after the sale when not in possession of the dealer. * if the damage occurred due to the misuse or negligence of the driver. * if the damage is superficial damage to the paintwork or upholstery and would have been evident on a reasonable inspection by the purchaser at time of sale. * if the damage or defects are specified in a defect notice and an inspection report attached to the vehicle at the time of sale and signed by both parties. 1. In this matter, the Respondent suggested that the repair guarantee does not apply to the vehicle because it is a commercial vehicle. I note there is nothing in the documentation provided to the Tribunal that indicates that this vehicle is a commercial vehicle. The Certificate of Registration notes the vehicle is for general private use. In any case, the legislation does not provide for any specific exemption for commercial vehicles. The only vehicles exempted from the dealer guarantee are those set out in Regulation 4 of the Motor Dealers and Repairs Regulation 2014, and Sections 9 and 60 of the Motor Dealers and Repairers Act 2013. In these circumstances, I am satisfied that the dealer guarantee does apply to the vehicle in question in these proceedings, and that the Respondent was not exempted from the requirement to attach the relevant Dealer's Notice. The Respondent assumes he did attach the relevant Notice but cannot produce a copy of it. The Applicant suggests there was no such notice. As the Respondent is unable to produce a copy of the Notice, I am satisfied that it is more likely than not that it was not attached to the vehicle. This may or may not have been due to the Respondent's mistaken belief that the dealer's warranty did not apply. 2. The guarantee only applies if it is a defective vehicle. The definition directs consideration to whether the condition of the vehicle or defects amounts to a breach of the ACL guarantees. In this sense, Parliament has indicated that the repair guarantee under the MD and R Act is not a stand-alone provision but is part of the broader consumer protection provisions applicable to all transactions covered by the ACL. 3. The most relevant ACL guarantee in this matter is that contained in s54 of the ACL which provides: Guarantee as to acceptable quality (1) If: (a) a person supplies, in trade or commerce, goods to a consumer; and (b) the supply does not occur by way of sale by auction; there is a guarantee that the goods are of acceptable quality. (2) Goods are of acceptable quality if they are as: (a) fit for all the purposes for which goods of that kind are commonly supplied; and (b) acceptable in appearance and finish; and (c) free from defects; and (d) safe; and (e) 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). (3) The matters for the purposes of subsection (2) are: (a) the nature of the goods; and (b) the price of the goods (if relevant); and (c) any statements made about the goods on any packaging or label on the goods; and (d) any representation made about the goods by the supplier or manufacturer of the goods; and (e) any other relevant circumstances relating to the supply of the goods. 1. This is an objective test which calls upon the Tribunal to put itself in the position of a reasonable consumer with knowledge of the state and condition of the goods, including any defect in the goods that may not have been apparent at the time of sale. Is the vehicle "a defective vehicle?" 1. The Tribunal was presented with some conflicting evidence. On the one hand, the inspection of the vehicle by Mr Roberts (Diamond Wheels) in late January 2016 suggests both significant fouling of the fuel system and significant damage to the chassis. The reports of D and M, and Chester Hill from mid-2016 refer mainly to the chassis. They are somewhat contradictory of each other. The D and M report notes no damage to the chassis rail. The Chester Hill report acknowledges a bent cross bar and left lower control arm. It is not clear whether the D and M inspection preceded or post-dated the repair work completed by Chester Hill. I prefer the evidence of Mr Roberts for the following reasons: 1. It was based on a report of the condition of the vehicle only 1 to 2 months after it was purchased by the Applicant 2. It is contained in a sworn statement, and sets out the author's expertise and basis for making the findings. 3. It is clearly supported by photos annotated to demonstrate the matters raised in the Affidavit. 4. It was written in contemplation and with a knowledge of these proceedings. 1. The Chester Hill and D and M reports are unsigned, brief and contradict each other. There is only a brief reference to the fuel system. 2. The suggestion that the condition of the vehicle at the time of the Diamond Wheels report was due to the manner of driving by the Applicant is speculative at best, and strongly denied by the Applicant. The Applicant gave his evidence in a fluent and consistent manner. I am not satisfied that on the balance of probabilities that the defects in the vehicle occurred after the sale, or are due to the misuse or negligence of the driver. Nor am I satisfied to the requisite standard that the fouling of the fuel is due to any of the potential causes stated by the Respondent – filling with contaminated fuel, leaving off the fuel cap or a manufacturing fault with the filter neck. None of these possibilities are mentioned in the mechanic reports he has provided, and these explanations are inconsistent with the finding by Mr Roberts that the amount of rust indicated the presence of water for some time. 3. I take into account the purchase price paid by the Applicant (about which more below), the odometer reading at the time of sale (about 96,000 km) and the age of the vehicle. These indicate that the vehicle was approximately 5 years old at the time of sale, and had average usage. The price was about $10,000 as the Respondent suggests, or $14,000 to $15,000 according to the Applicant. All of these factors when considered together would suggest to a reasonable consumer that it was of reasonable quality for a second hand vehicle. I have found that the vehicle had a fouled fuel system and major structural damage. I am not satisfied that a reasonable consumer would regard this as acceptable in the circumstances. I find therefore that the vehicle was not of acceptable quality at the time of sale, in breach of the consumer guarantee in Section 54 of the ACL. 4. This also means that the vehicle is a "defective vehicle" for the purpose of Section 68 of the MD and R Act. Has the Dealer complied with his obligation under section 68 of the MD and R Act? 1. I am satisfied that the vehicle became defective before the end of the limitation period, as defined in Section 69 of the MD and R Act. The dealer is required to make good the defective vehicle so as to place the motor vehicle in a reasonable condition having regard to its age. 2. The Respondent claims that he has paid for repairs which have made the vehicle roadworthy. The Applicant denies this. I note that the repairs completed relate only to the replacement of some parts of the structural damage reported by Diamond Wheels. There is no reference to the replacement of the rusted fuel tank, and there is no evidence that the reinstallation of the existing fuel tank with new filters provides an adequate remedy to the identified defects. 3. In these circumstances I cannot be satisfied that the Respondent has complied with his obligation under Section 68 of the MD and R Act. To What Remedy is the Applicant entitled? 1. Part 5-4 of the ACL deals with the remedies for non-compliance with a consumer guarantee. In order to determine what remedy is available to the Applicant, I have to determine if non-compliance by the Respondent amounts to a "major failure". 2. This is defined in Section 260 of the ACL as follows: A failure to comply with a guarantee referred to in section 259(1)(b) that applies to a supply of goods is a major failure if: (a) the goods would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of the failure; or (b) the goods depart in one or more significant respects: (i) if they were supplied by description--from that description; or (ii) if they were supplied by reference to a sample or demonstration model--from that sample or demonstration model; or (c) the goods are substantially unfit for a purpose for which goods of the same kind are commonly supplied and they cannot, easily and within a reasonable time, be remedied to make them fit for such a purpose; or (d) the goods are unfit for a disclosed purpose that was made known to: (i) the supplier of the goods; or (ii) a person by whom any prior negotiations or arrangements in relation to the acquisition of the goods were conducted or made; and they cannot, easily and within a reasonable time, be remedied to make them fit for such a purpose; or (e) the goods are not of acceptable quality because they are unsafe. 1. I am satisfied that the defects identified in the report of Mr Roberts which have affected this vehicle are more likely than not to have been present at the date of sale. Had a reasonable consumer been aware of these defects, I am satisfied the goods would not have been acquired. 2. Section 259 relevantly provides: (2) If the failure to comply with the guarantee can be remedied and is not a major failure: (a) the consumer may require the supplier to remedy the failure within a reasonable time; or (b) if such a requirement is made of the supplier but the supplier refuses or fails to comply with the requirement, or fails to comply with the requirement within a reasonable time--the consumer may: (i) otherwise have the failure remedied and, by action against the supplier, recover all reasonable costs incurred by the consumer in having the failure so remedied; or (ii) subject to section 262, notify the supplier that the consumer rejects the goods and of the ground or grounds for the rejection. (3) If the failure to comply with the guarantee cannot be remedied or is a major failure, the consumer may: (a) subject to section 262, notify the supplier that the consumer rejects the goods and of the ground or grounds for the rejection; or (b) by action against the supplier, recover compensation for any reduction in the value of the goods below the price paid or payable by the consumer for the goods. (4) The consumer may, by action against the supplier, recover damages for any loss or damage suffered by the consumer because of the failure to comply with the guarantee if it was reasonably foreseeable that the consumer would suffer such loss or damage as a result of such a failure. (5) Subsection (4) does not apply if the failure to comply with the guarantee occurred only because of a cause independent of human control that occurred after the goods left the control of the supplier. (6) To avoid doubt, subsection (4) applies in addition to subsections (2) and (3). (7) The consumer may take action under this section whether or not the goods are in their original packaging. 1. The vehicle has been returned to the Respondent to have the faults remedied, but I am not satisfied for the reasons indicated above that this has occurred, and the Respondent has now clearly indicated he will do no further repairs. The Applicant now seeks to reject the goods and receive a full refund. 2. Section 262 of the ACL provides: 262 When consumers are not entitled to reject goods (1) A consumer is not entitled, under section 259, to notify a supplier of goods that the consumer rejects the goods if: (a) the rejection period for the goods has ended; or (b) the goods have been lost, destroyed or disposed of by the consumer; or (c) the goods were damaged after being delivered to the consumer for reasons not related to their state or condition at the time of supply; or (d) the goods have been attached to, or incorporated in, any real or personal property and they cannot be detached or isolated without damaging them. (2) The rejection period for goods is the period from the time of the supply of the goods to the consumer within which it would be reasonable to expect the relevant failure to comply with a guarantee referred to in section 259(1)(b) to become apparent having regard to: (a) the type of goods; and (b) the use to which a consumer is likely to put them; and (c) the length of time for which it is reasonable for them to be used; and (d) the amount of use to which it is reasonable for them to be put before such a failure becomes apparent. 1. I am satisfied that the rejection period has not ended. The Applicant has driven the vehicle for only approximately 5000 kilometres in 8 months. He acted quite promptly to have the faults inspected, and the matter resolved. Having rejected the goods, he is also entitled in my view to a full refund for the purchase price of the vehicle. Given the length of time the vehicle has been off the road, he has gained no benefit from the use of the vehicle. 2. The one remaining question is the amount of the refund. The actual purchase price is quite unclear. The Applicant paid $5,000 cash, but this was after the trade-in of his Saab. There is no documentation indicating the value ascribed for the Saab, or the total purchase price of the vehicle. The Applicant sought to lead evidence as to the value of second hand Saabs of a similar age to his own. The Respondent sought to lead evidence of the poor condition of the Applicant's Saab, and the price he received when onselling it. I did not allow this evidence as it was not provided in accordance with the Tribunal's directions, and it would have been procedurally unfair to rely on such information without allowing the other party to time to consider it. I was not prepared to further adjourn the proceedings for this purpose given the Tribunal's overall obligation obligation to facilitate the just quick and cheap resolution of the proceedings (Section 36 Civil and Administrative Tribunal Act). 3. I was left therefore with the Applicant's evidence regarding conversations he had with the Respondent's salesperson, and the Respondent's evidence of his recollection of the advertised purchase price of the vehicle. The photos of the Saab produced by the Applicant do not assist me much, as they were from 2011, and in any case there is no indication of the condition of this vehicle at the time the Great Wall was purchased. 4. I have found on the balance of probabilities that the Respondent has failed to comply with his statutory obligations to attach the Dealer's Notice to the vehicle. This is a consumer protection provision to make the consumer aware of any defects in the vehicle and their rights under the contract. Similarly, I find that the respondent has failed to provide a written sales contract evidencing the actual full value of the transaction. 5. In the case of any conflict in the evidence, I generally prefer the evidence of the Applicant to that of the Respondent. Unlike the evidence provided by the Respondent, the Applicant's oral and written evidence was consistent and fluent. The independent evidence generally supported his own claims, and was more reliable in itself. The provision of a sales contract protects both the dealer and the buyer by setting out the full details of the transaction. It is the responsibility of the dealer to provide these details, and he should not benefit from failing to do so. In all of these circumstances, I prefer the evidence of the Applicant to that of the Respondent in relation to the actual purchase price of the vehicle. The Applicant relates a value of $14,000 to $15,000. In the absence of any stronger more persuasive evidence of the actual figure, I find on the balance of probabilities that the Great Wall vehicle was sold to the Applicant for a total price of $14,000, which resulted in a cash payment by him of $5,000 after the trade-in of his Saab. 6. The Applicant is therefore entitled to be reimbursed $14,000, on the basis that he returns the vehicle to the Respondent. 7. I note that the Applicant also mentioned some towing costs, but there was no documentary evidence of these costs produced in evidence, and I do not allow it. 8. I order therefore as follows: 1. The Respondents is liable to pay the sum of $14,000 to the Applicant. This amount is due and payable 2 weeks after the date of these orders. 2. The Applicant shall deliver possession of the vehicle to the Respondent on or before 2 weeks after the date of these Orders. 3. For the purpose of these orders, the Respondent is to arrange and pay for the collection of the vehicle. B Shipp Senior Member Civil and Administrative Tribunal of New South Wales 7 September 2016 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 October 2016