Kiehne v Graham Betts Motors Pty Ltd [2017] NSWCATCD 60

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Kiehne v Graham Betts Motors Pty Ltd [2017] NSWCATCD 60 Hearing dates: 24 May 2017 Decision date: 17 July 2017 Jurisdiction: Consumer and Commercial Division Before: P Harris, General Member Decision: 1 The respondent is to repay the applicant the full purchase price, the sum of $9,440.00, within 14 days of the date of these orders. 2 The respondent is to collect the motor vehicle from the applicant's property at a time convenient to both parties, arranged at no less than 48 hours advance notice. The respondent is to bear the cost of any expenses incurred in collecting the vehicle. 3 Both parties are required to negotiate the time at which the respondent will collect the vehicle, and the applicant is to provide access to the respondent to collect the vehicle at the arranged time. 4 At the time of collection the vehicle is to be in the condition in which it was purchased less fair wear and tear and mileage accumulated since the date of purchase. The vehicle is to be fully refuelled at the time of delivery at the applicant's cost. 5 Each party to pay their own costs. Catchwords: Motor vehicles-Consumer Claim-Verbal representation as to characteristics –allegation of false description of vehicle as "turbo"-misleading and deceptive conduct-false and misleading representation-causation and reliance-supply or goods by description-right to rescind contract-costs. Legislation Cited: Competition and Consumer Act 2010 (Cth) Australian Consumer Law (NSW) Fair Trading Act 1987(NSW) Civil and Administrative Tribunal Act 2013 (NSW); Cases Cited: Mishra v Prestige Auto Centre Pty Ltd & Khan Motorcar Co Pty Ltd [2015] NSWCATCD 106 at 35; Patterson v Russell (Civil Claims) VCAT 30; Paul Madsen v Agrison Pty Ltd [2014] NSWCATCD 79; Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd (1978) 140 CLR 216; Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191; Heartland Motors Pty Ltd v Piatow [2016] NSWCATAP 78 at 29; Annand & Thompson Pty Ltd v Trade Practices Commission (1979) 40 FLR 165 at 176; Kirkpatrick v Gresser (unreported, NSWSC, 13 May 1987 Calderbank v Calderbank (1975) 3 ALL ER 333. Category: Principal judgment Parties: Peter Kiehre (applicant) Graham Betts Motors Pty Ltd CAN 001 605 303 t/as Graham Betts Holden (respondent) Representation: Mr Morgan Quaife for applicant Mr Betts, director for the respondent File Number(s): MV 17/10975 Publication restriction: Nil