Appliance & Airconditioning Services Pty Ltd v ACM Liverpool Pty Ltd t/a Liverpool Nissan [2017] NSWCATCD 55

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Appliance & Airconditioning Services Pty Ltd v ACM Liverpool Pty Ltd t/a Liverpool Nissan [2017] NSWCATCD 55 Hearing dates: 17 July 2017 Decision date: 04 August 2017 Jurisdiction: Consumer and Commercial Division Before: P French, General Member Decision: 1. The application is dismissed on the basis that the Tribunal does not have jurisdiction to deal with it. Catchwords: MOTOR VEHICLES – application for an order requiring the Respondent to replace the Applicant's motor vehicle or permitting the Applicant to return it and obtain a refund of its purchase price – where the date of purchase of the motor vehicle was 23 February 2010

CONTRACT - where the Applicant has failed to establish a cause of action – where the action has not been commenced within the time period permitted by section 79L of the Fair Trading Act 1989 as it is now in force - where the contractual obligations between the parties have ended

FAILURE TO COMPLY WITH STATUTORY CONDITIONS - where the implied condition as to supply by description contained in section 40P and the implied undertaking as to quality and fitness contained in section 40Q of the Fair Trading Act 1989 as it is was in force on 23 February 2010 do apply in this case – where the Applicant has failed to commence an action within the time period permitted by section 40ZB of the Fair Trading Act 1989 as it was in force on 23 February 2010 - where the motor vehicle is not substantially used for private purposes – where the total relevant value of the claim exceeds the prescribed limit on the Tribunal's order making power imposed by section 79S of the Fair Trading Act 1989 as it is now in force – where GST was a component of the purchase price of the motor vehicle – where it is not relevant that the Applicant is a business entitled to claim a GST input tax credit Legislation Cited: A New Tax System (Goods and Services Tax) Act 1999 Australian Consumer Law (NSW) Consumer Claims Act 1998 Fair Trading Act 1989 Motor Vehicles Taxation Act 1988 Cases Cited: Bunnings Group Limited (formerly Bunnings Pty Ltd) v Laminex Group Limited [2006] FCA 682 Sacks v Hammoud [2016] NSWCATAP 225 Safi v Heartland Motors Pty Ltd t/as Heartland Chrysler [2016] NSWCATAP 80 Temple & Fisher v Mazda Australia Pty Ltd & AMR Motors Pty Ltd [2017] NSWCATCD 17 Upton v Martin & Stein Antiques Pty Ltd [2016] NSWCATAP 228 Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 Category: Principal judgment Parties: Appliance & Airconditioning Services Pty Ltd (Applicant) ACM Liverpool Pty Ltd t/a Liverpool Nissan (Respondent) Representation: Mr Praveen Chandra, Managing Director, for Applicant Mr Darrell Hough, Service Manager, for Respondent File Number(s): MV 17/00519 Publication restriction: Nil