Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Barron v Ban [2017] NSWCATAP 103 Hearing dates: 13 March 2017 Date of orders: 09 May 2017 Decision date: 09 May 2017 Jurisdiction: Appeal Panel Before: R Seiden SC, Senior Member S Thode, Senior Member Decision: 1. Extend the time to file the appeal to 9 December 2016. 2. The appeal on questions of law disallowed. 3. Leave to extend the appeal to other grounds is refused. Catchwords: ADMINISTRATIVE LAW – NSW Civil and Administrative Tribunal – appeal – no error of law –leave to appeal – whether serious miscarriage of justice because decision not fair and equitable – no miscarriage of justice from the way case conducted or decided AUSTRALIAN CONSUMER LAW – consumer guarantees – acceptable quality Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Competition and Consumer Act 2010 (Cth) Fair Trading Act 1987 (NSW) Motor Dealers and Repairers Act 2013 (NSW) Cases Cited: Collins v Urban [2014] NSWCATAP 17 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Category: Principal judgment Parties: Brian Barron t/as Freedom Marine (Appellant) Michelle Annette Ban (Respondent) Representation: Appellant appeared in person Respondent appeared in person File Number(s): AP 16/53717 Decision under appeal Court or tribunal: NCAT Jurisdiction: Consumer & Commercial Division Citation: N/A Date of Decision: 08 November 2016 Before: D Moss, General Member File Number(s): GEN 16/28806 REASONS FOR DECISION Background 1. This is an internal appeal from a decision of the Tribunal in the Consumer and Commercial Division. The underlying dispute concerned an application by the respondent, a consumer, for an order that the appellant, the supplier of a boat with an in-board motor and trailer, pay her the sum of $14,672.21. 2. The Tribunal, at first instance, relevantly found that the trailer was not of acceptable quality at the time of its delivery (at [54]). Although it was sold for $2,000 it required repairs in excess of $5,000, including the repair of defective brakes (at [51] and [63]). The Tribunal therefore determined that it was not reasonable for the consumer to undertake the recommended repairs to make it fit for purpose. Accordingly, the Tribunal was satisfied that the supplier failed to comply with the consumer guarantees set out in the Competition and Consumer Act 2010 (Cth), made applicable by s 28(1)(a) of the Fair Trading Act 1987 (NSW), (Australian Consumer Law). This amounted to a "major failure". The Tribunal held that the respondent had made out her entitlement to a refund for the trailer. 3. With respect to the boat, the Tribunal relevantly found as follows: 1. That at the time of delivery the boat was not of acceptable quality, in breach of the consumer guarantees under the Australian Consumer Law: [106]. 2. That the respondent had given the appellant an opportunity to repair the boat, but that opportunity had not been availed of: [121]. 3. The repairs undertaken on behalf of the respondent were reasonable: [127]-[128]. 1. Accordingly, the Tribunal held that the respondent was entitled to be reimbursed for the cost of repairs. 2. The Tribunal ordered that the appellant pay to the respondent $2,000 as a refund of money paid for the trailer and $4,788.14, being the cost of repairing defects in the boat. Jurisdiction 1. The appeal is brought under s 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). An appeal may be made in relation to 'any question of law', and, with the leave of the Appeal Panel, may extend to 'other grounds'. The Appeal Panel may only grant leave to extend the appeal to other grounds (i.e. grounds that do not raise questions of law) in respect of appeals from the Consumer and Commercial Division (and this is such an appeal) if one or more of the criteria found in cl 12 of Sch 4 of the NCAT Act is satisfied. The Notice of Appeal 1. The notice of appeal discloses the following grounds of appeal: 1. That the decision of the Tribunal at first instance failed to consider the effect of the Motor Dealers and Repairers Act 2013 (NSW) (Motor Dealers Act) and in particular the following: 1. That s 68(4) of the Motor Dealers Act provides that where no limitation is set for the motor dealers' guarantee, the guarantee does not apply to the motor dealer; and as no limitation was set, the guarantee does not apply. Further, that as the boat and trailer were over 10 years old, the decision sets a precedent for all motor dealers to continue to provide a warranty for an undetermined period. 2. That s 68(6) of the Motor Dealers Act provides that where the defect becomes apparent after the limitation period and the consumer fails to report the defect within a reasonable period, the motor dealer is not required to comply with the motor dealers' guarantee. Further, the decision failed to consider that the trailer passed a "pink-slip" inspection in March 2016, 3 months after purchase and the supplier was not advised of any problem until May 2016. 1. That the guarantee of acceptable quality under s 54 the Australian Consumer Law does not apply where the consumer inspects the vehicle before buying and the examination should have revealed the defect and here the vehicle was inspected prior to sale. 2. The decision failed to give significant weight to sections 259 and 260 of the Australian Consumer Law that a supplier must be given a reasonable opportunity to meet any obligations under the consumer guarantee; and if you consider a fault can be repaired within a reasonable time you must give the supplier an opportunity to do so 3. The decision failed to give weight to s 261(2)(b) of the Australian Consumer Law that "a supplier may remedy a defect by repairing the goods". Questions of law 1. The above mentioned grounds arguably raise the following questions of law concerning the proper construction and application of the Australian Consumer Law: 1. Whether the consumer guarantees under the Australian Consumer Law are affected by the fact that a motor dealer is not liable under a motor dealers' guarantee? 2. Whether the Tribunal failed to apply s 54 of the Australia Consumer Law in that the goods were inspected prior to sale? 1. The remaining grounds of appeal concern the weight to be given to certain factors. Questions of weight do not generally raise questions of law, although they may feature as an aspect of unreasonableness: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, Mason J at 41. As the argument developed during the appeal, it was apparent that rather than unreasonableness, these grounds were directed to the application for leave to appeal. Leave to Appeal 1. The Notice of Appeal sought leave to appeal on the grounds that the appellant suffered a serious miscarriage of justice because the decision was not fair and equitable. 2. To the extent that the grounds of appeal do not contain questions of law, we have treated these as going to the application for leave. 3. The appellant contended that the decision was not fair and equitable for the reason that ultimately, he was ordered to pay significantly more to the respondent than the cost to him, had he repaired the boat and trailer. In circumstances where the provisions referred to above indicate that the supplier is to be given an opportunity to repair the defects, it was submitted that this occasioned an injustice. Further, so it was contended, the Tribunal itself acknowledged that "the consumer should have contacted the supplier again, after the third-party warranty claim was denied by National Warranty Company" at [118]. 4. In other words, the appellant contended that for the reason that the appellant did not perform the repairs, this resulted in significant additional cost to be borne by the appellant, which is unfair and inequitable. The real cost to the appellant would have been the cost of parts only. Instead, the respondent chose to take the boat to be repaired at a home workshop without council approval and by a person not registered for GST (but who charged GST) and who charged for 34.5 hours when other quotes ranged from 5 to 23 hours (suggesting he did not have the tools or facilities necessary to repair the boat). Orders sought on appeal 1. The appellant contended that the order that the Tribunal ought to have made was that the appellant pay the respondent $2,014.64 being the reasonable cost of parts required to perform the repair. Extension of time to appeal 1. The appeal was filed 9 December 2016. The underlying decision was 8 November 2016. An internal appeal must be lodged within 28 days from the day on which the appellant was notified of the decision to be appealed or given reasons for the decision (whichever is later): r 25(4)(c) of the Civil and Administrative Tribunal Rules 2014 (NSW) (NCAT Rules). 2. The appeal was therefore lodged 3 days late. 3. The Tribunal may grant an extension of time under s 41 of the NCAT Act. The appellant sought leave to extend time for the filing of the appeal. The reason given for the delay was that he had received notice of the decision late, as it had gone to a generic email address and he sought advice from the Department of Fair Trading before lodging the appeal. As the delay is explained and the appeal is only a few days late and there could be no prejudice to the respondent, the Appeal Panel granted the application to extend time to 9 December 2016. Conclusion on Questions of Law 1. The appellant was held liable for breach of the consumer guarantees under the Australian Consumer Law. The fact that he was not or may not be liable under the Motor Dealers Act does not bear on that question. The operation of the Motor Dealers Act does not affect the implementation of the consumer guarantees under the Australian Consumer Law unless a Motor Dealer's guarantee has been enforced and complied with: s 77 Motor Dealers Act. That was not the appellant's case. The appellant's case was, in effect, that for the reasons he was not liable under the Motor Dealers' guarantee he should not be liable under the consumer guarantees. However, that is not a reason to exclude the operation of the consumer guarantees under the Australian Consumer Law. There was no error of law by the Tribunal in not considering the consequences under the Motor Dealers Act. 2. So far as the appellant contends that the guarantees did not apply in circumstances where the goods were inspected prior to sale, the Tribunal expressly considered the appellant's contention. Insofar as the boat was concerned the Tribunal held (at [108]) that an examination would not have revealed that the boat was not of acceptable quality. Insofar as the trailer is concerned, the Tribunal noted at [19] that the trailer had been inspected prior to acquisition. Further, the Tribunal held at [51] and [54] that defective brakes rendered the trailer to be "not of acceptable quality". Such a defect could not be discernible from an inspection. Accordingly, no error of law is discernible. Conclusion on Leave to Appeal 1. In order to grant leave to appeal, the Appeal Panel must be satisfied that there has been a substantial miscarriage of justice due to one of the factors listed in cl 12 of Sch 4. Here the appellant relies on the decision being unfair or inequitable. 2. The meaning of "substantial miscarriage of justice" was summarised by the Appeal Panel in Collins v Urban [2014] NSWCATAP 17 at [71] and [79]: [71]. . . [I]t 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. … [79] In order to show that a party has been deprived of a "significant possibility" or a "chance which was fairly open" of achieving a different and more favourable result because of one of the circumstances referred to in cl 12(1)(a), (b) or (c), it will be generally be necessary for the party to explain what its case would have been and show that it was fairly arguable. If the party fails to do this, even if there has been a denial of procedural fairness, the Appeal Panel may conclude that it is not satisfied that any substantial miscarriage of justice may have occurred - ." 1. Insofar as the boat is concerned, the primary contention is that the appellant did not have a reasonable opportunity to repair the boat, and accordingly, the appellant suffered prejudice in having to pay more for the repairs than they would have cost, had the respondent given him a reasonable opportunity to repair the boat. The appellant points to the Tribunal's criticism of the respondent's communication with the appellant. The Tribunal said at [118]: With the benefit of hindsight, I am of the view that the consumer should have contacted the supplier again, after the third-party warranty claim was denied by National Warranty Company. In my opinion, the consumer should have requested, at that time, that the supplier remedy the failure to comply with the consumer guarantee as to acceptable quality, within a reasonable time. 1. As the extract from Collins v Urban at [71] demonstrates, the miscarriage of justice must arise from the way the case was conducted or decided. In order to succeed, the appellant must establish not only that he would have repaired the boat more cheaply, but that he has suffered this extra cost as a result of the way the Tribunal decided the matter. 2. The Appeal Panel is prepared to accept that the appellant has experienced staff working for him and that the real cost would have amounted to the cost of parts only. However, the Appeal Panel is not satisfied that the additional costs resulted from any unfairness or inequity in the way the Tribunal decided the case. The result (which the appellant considers inequitable) follows directly from the fact that the Tribunal held: first, that the appellant had, in fact, been given an opportunity to repair the boat, which he did not avail himself of (at [89], [121]-[122]); and secondly, from the fact that the Tribunal found, on the basis of independent evidence, that the actual cost of repair was not unreasonable (at [127]-[128]). 3. The Tribunal decided that the appellant had been given an opportunity to repair the boat and (through his employee) had directed the respondent to make a claim under her third-party warranty at [89]. The Tribunal accepted that the appellant was not given a second opportunity to repair the boat, but held that that was not necessary to render the first opportunity a reasonable opportunity at [121]-[122]. 4. Whilst the Tribunal accepted that, in hindsight, the respondent ought to have attempted to contact the respondent again, the Tribunal did not find that this was necessary to satisfy the statutory test of affording the supplier a reasonable opportunity to repair the boat. The Tribunal said at [119]-[120]: I am not satisfied, however, that the consumer's failure to contact the supplier again, after the rejection of the third-party warranty claim, means that her claim for damages for breach of the consumer guarantee cannot succeed. The consumer advised the supplier that the boat had mechanical defects. The supplier advised the consumer to make a claim on the third-party warranty. The claim was rejected. The consumer had the boat repaired. 1. In addition, the Tribunal considered the quantum of the repair costs and found them to be not unreasonable in light of independent evidence on the point (at [127]). 2. There is no discernible error in the Tribunal's fact finding process such that it could be said the decision was unfair or inequitable. There was nothing unorthodox or unfair in the way the Tribunal approached the issue. 3. With respect to the trailer, the appellant's primary contention is that the defect ought to have been brought to the appellant's attention earlier and this coupled to the fact that the trailer was in use for some time after delivery and was reregistered in March 2016, indicated that the Tribunal's finding that the trailer was unfit for its purpose was unwarranted. 4. It is notable that the Tribunal accepted that the consumer did not give the supplier an opportunity to repair the trailer (at [65]). However, the Tribunal said at [69]: Notwithstanding the consumer's poor communication with the supplier, I am of the view that the consumer has established an entitlement to reject the trailer, because the failure to comply with the guarantee as to acceptable quality is a major failure. 1. The Appeal Panel accepts that insofar as the defects in the trailer are concerned there was some conflicting evidence at first instance. For instance, the trailer continued to be used by the respondent for some time and was registered some months after purchase. The Tribunal too was alive to these inconsistencies but weighed up the evidence and said at [63]: Notwithstanding the credible submissions by the supplier, I am satisfied that the trailer was not of acceptable quality when it was supplied to the consumer. Although it is over 10 years old and was sold for $2,000.00, I am satisfied that it has defects requiring repairs in excess of $5,000.00. I am satisfied that it is not reasonable to undertake the recommended repairs on the trailer. 1. It is part of the Tribunal's function to weigh evidence and resolve inconsistencies. The Appeal Panel is not satisfied that there are grounds made out that there has been a substantial miscarriage of justice. Orders 1. For the above reasons, the order we make is: 1. Extend the time to file the appeal to 9 December 2016. 2. The appeal on questions of law disallowed. 3. Leave to extend the appeal to other grounds is refused. ********* I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Principal Registrar 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: 08 May 2017