Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Pratt v Mazda Australia Limited [2016] NSWCATAP 274 Hearing dates: 25 August 2016 Date of orders: 25 August 2016 Decision date: 25 August 2016 Jurisdiction: Appeal Panel Before: J Harris SC, Senior Member T Simon, Senior Member Decision: Appeal dismissed Catchwords: Consumer Claim, motor vehicle, against the weight of evidence Category: Principal judgment Parties: Wayne and Kay Pratt (Applicants) Mazda Australia Limited (Respondent) Representation: Mr Pratt (Applicants) Ms Han (Respondent) File Number(s): AP 16/21905 Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 19 April 2016 Before: D Goldstein, Senior Member File Number(s): MV 15/53949 Reasons for Decsion 1. Oral reasons were given at hearing and these reasons have been provided following a request for written reasons by the applicant. Application 1. On 21 March 2016, the Tribunal below heard evidence and argument in this application. The Senior Member delivered some oral reasons and a decision on that date. A request was filed for written decisions and a written decision was produced and published on 19 April 2016. 2. A notice of appeal has been filed and the notice of appeal itself bears the date 3 March 2016 but as the Tribunal's records show it was in fact filed on 18 May 2016. Jurisdiction 1. At the outset of the hearing of this appeal we gave consideration to whether the appeal was filed within time and we concluded that it had been filed in time. We concluded that the date from which the time period should be calculated was the day on which the reasons were published, that is 19 April. The prescribed period contained within the rules is 28 days from that date in our view and the appeal was therefore within time when filed on 18 May 2016. 2. In our view therefore an issue of time does not arise and the appeal has been regularly filed. Grounds of Appeal 1. The notice of appeal lists four grounds of appeal. They are all said to be errors of law. In other words, this is not an appeal in which leave is sought and the notice of appeal makes that clear. 2. It seems to us that what is effectively being said at least by grounds 1, 2 and 3, using slightly different language in each case, is that the Tribunal member erred in regarding clauses 4-114 and 4-115 of the manual published by the respondent in respect of this particular vehicle as part of the contract for sale and that those particular clauses constituted binding conditions between the parties. That was the essence, of the grounds of appeal specified in the notice. 3. Paragraph 4 of the grounds of appeal makes a similar point but expresses it in a slightly different way in that the appellant says that the Tribunal member misdirected himself in law in ignoring the agreed facts between the parties that the owners' manual did not form any part of the contract of sale. It goes to a similar point. 4. The parties have each filed detailed written submissions. We have had regard to them and we have had regard to the oral submissions presented by the appellants. Background 1. In the original application before the Tribunal, the orders sought were for the payment of $39,252 representing a full refund of the purchase price of a Mazda vehicle. The appellants had purchased a new Mazda vehicle. They had specified when they purchased the new Mazda vehicle that they wanted one with cruise control. 2. The reasons for requesting the orders for the repayment of money are expressed in the application to be: As Mazda are unable to rectify the problems with the vehicle and as it fails to perform as advertised we wish to return the faulty vehicle for a full refund of the purchase price and the application fee. 1. The essence therefore of the claim was that the vehicle failed to perform as advertised. 2. There was an attachment to the application which particularises helpfully the way in which it was said that the vehicle failed to perform as advertised and the complaint relates to the cruise control mechanism of the vehicle. It is set out in some detail in the attachment. In summary the appellants allege that except on a flat roadway, i.e., whenever the vehicle is travelling up or down hill, the cruise control increases the speed of the vehicle by what the appellant's say are unacceptable and dangerous margins and they state: Mazda has declared that there is nothing to fix and the vehicle is operating normally and they are relying on a disclaimer hidden in the owners' manual at s 4-114 on page 421 to abrogate their responsibilities. 1. They quote from the manual: Cruise control is advertised as a feature of the CX-5 and no mention is made of this disclaimer during the sales process. Consideration 1. We have had regard to the written reasons for decision published by the Senior Member who heard the matter. The appellants have taken us through those reasons carefully in an attempt to convince us that the grounds of appeal are made out and that the Member treated the clauses in the manual that we have referred to as part of a contract for sale and that he should not have done so. 2. We have followed the argument as best we could. We are not satisfied that the grounds of appeal are made out. 3. Mr Pratt very properly and fairly conceded that the reasons for decision do not actually say in so many words that the provisions within the manual are incorporated into the terms of the contract. Furthermore, we are also unable to discern any basis for concluding that the Member's decision impliedly concluded that the provisions of the manual were incorporated into the terms of the purchase contract between the parties. 4. In short, we can see no basis for concluding that the Member found the manual formed part of the contract for the purchase of the vehicle at all. 5. As we perceive it, the case that the applicants brought was that the vehicle did not perform as advertised. It was advertised as being a vehicle with a cruise control capacity. 6. However, the appellants say that the particular characteristics of this vehicle's cruise control are so outside the norm that it is in fact misleading to call it cruise control at all. They say that the respondent should have said something about the particular characteristics of this vehicle's cruise control because the characteristics of this vehicle are so outside the norm and, in failing to do so, the appellants were effectively misled about the nature of the vehicle that they were purchasing and, of course, had they been properly put on notice they most probably would not have bought the vehicle at all. 7. There was a good deal of evidence before the Senior Member as to the testing of the vehicle. There was evidence from the appellants given about it and there is a good deal of documentary evidence from the respondent about it. In addition the respondent called some evidence of a technical specialist and at para 14 of his reasons the Senior Member records the following. Mr Stewart of the respondent, a technical specialist who was in the Tribunal, saw those six tests. He wasn't surprised by any of them. 1. The six tests that are being referred to are the tests of the vehicle's performance and comparison to other vehicles which the appellants had produced which were videoed and which were then considered by Mr Stewart. 2. We have summarised the evidence fairly briefly but it seems to us to be sufficient to demonstrate that there was a proper basis for the Senior Member's finding that the cruise control of this particular vehicle was not faulty in the sense that it performed as the expert evidence called by the respondent expected it to. It may be that it did not perform as the appellants expected it when compared to the performance of many other vehicles that they had driven with cruise control over many years but the evidence appears to at least be capable of supporting the conclusion that it performed as experts would expect this particular vehicle to perform or at least that the cruise control in this particular vehicle would perform. In that sense the Senior Member found on the evidence that the cruise control in the vehicle was not faulty. 3. During the hearing of the application at first instance, it was not only the applicants who referred to the pages in the manual. The respondent raised as a defence to the proposition that it should have said something about the particular characteristics of the cruise control of this vehicle that the manual disclosed the particular characteristics of this vehicle, and that it did so in particular at paras 4-114 and 4-115. They are the very provisions which the appellants argue that the member incorporated into the terms of the contract. Whilst we reject the proposition that he did so it is nonetheless clear that a consideration of those particular paragraphs of the manual played a significant role in his reasoning. He refers to them and he notes that the owner's manual makes it clear that the cruise control should not be used on a steep grade and that the vehicle may momentarily slow down while ascending or speed up while descending. The owner's manual makes it plain that the use of the cruise control is in fact dangerous in some circumstances and could result in loss of vehicle control, in particular in hilly terrain, steep inclines, heavy or unsteady traffic or slippery and winding roads or similar conditions which require inconsistent speeds. 4. The respondent's argument was that the manual discloses all of those things. To the extent that the appellants, or the applicants as they were at first instance, complained that there was a failure to disclose these matters and that these matters are so outside the norm as to require them to be drawn to particular attention, the respondent's argument is that they are drawn to particular attention in the manual. 5. We therefore conclude that it was quite proper and logical and correct that the Senior Member should refer to the contents of the manual in the way that he did. He did so to deal with the essence of the appellants' case at first instance. He found at paras 25 and 26, as we have mentioned earlier, that the vehicle was not faulty in the sense that we have described. He refers to the tests and then he refers to the owner's manual. He concludes in these terms: As I said before, there is no evidence before me that the cruise control in this vehicle does not operate properly in the circumstances which are not referred to in p 4-114. 1. And at para 26: In that regard p 4-114 of the owner's manual makes it plain that the use of the cruise control in the following conditions is dangerous and could result in a loss of vehicle control, that is hilly terrain, steep inclines, heavy or unsteady traffic or slippery and winding roads or similar conditions which require inconsistent speeds. In that regard all of the technical evidence that has been brought in this case and all of the cross examination that has been made simply reinforces the fact that as I have found the video evidence demonstrates that the car will slow down going up and incline and accelerate going down a decline and the vehicle's user or owner's manual states that cruise control should not be used in those circumstances." 1. For the reasons that we have expressed we can see no error of law in the reasoning of the Senior Member and we dismiss the appeal. ********** 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: 11 January 2017