Abraham v Gogetta Equipment Funding Pty Ltd [2017] NSWCATCD 22

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Abraham v Gogetta Equipment Funding Pty Ltd [2017] NSWCATCD 22 Hearing dates: 17 November 2016 Decision date: 31 March 2017 Jurisdiction: Consumer and Commercial Division Before: B Shipp, Senior Member Decision: 1. The applicant's claim is dismissed.

2. The applicant is to pay the respondent the sum of $6,905.87 on or before 24 April 2017. Catchwords: Rental contract - Linked credit provider – unfair term provisions in the Australian Consumer Law – term void due to unfairness but not fair and equitable to make order in favour of the Applicant – failure to establish vehicle was not of acceptable quality when surrendered. Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), S 45 Fair Trading Act 1987 (NSW), Part 6A Australian Consumer Law (ACL) (NSW) 2010, Sections 23 to 28, 54, 278 and 279 Cases Cited: Director of Consumer Affairs Victoria v AAPT [2006] VCAT 1493 Jetstar Airways Pty Ltd v Free [2008] VSC 539 Director-General of Fair Trading v First National Bank plc [2002] 1 AC 481 Category: Principal judgment Parties: Julius Abraham (Applicant) Gogetta Equipment Funding Pty Ltd (Respondent) Representation: The applicant in person Mr Martin Walker for the respondent File Number(s): GEN 16/33837 Publication restriction: Nil

REASONS FOR DECISION

Background and Application 1. On 5 March 2015, the Applicant entered into a Rental Agreement with the Respondent Company which describes itself as a provider of commercial equipment rental. The agreement was for the Respondent to hire out to the Applicant a 2007 Holden Commodore ("the vehicle") in exchange for the Applicant paying a weekly rent of $163.59 for a minimum period of 12 months. 2. The Applicant noticed problems with the vehicle soon after he took possession of it. When these were not resolved in full, he sought to return the vehicle to the supplier – the dealer Pride and Joy Motors. The Respondent sought payment of the balance of payments due under the rental agreement. 3. In July 2016, the Applicant applied for orders to: 1. Refund him the amounts he has paid to the Respondent totalling $1981.14, and 2. Relieve him from payment of the $6905.87. His main reason for seeking these orders was that the vehicle was barely used and has been surrendered due its unroadworthy state.