Lesso v Rental Car Holdings Pty Ltd t/as East Coast Car Rentals [2017] NSWCATAP 233

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Lesso v Rental Car Holdings Pty Ltd t/as East Coast Car Rentals [2017] NSWCATAP 233 Hearing dates: 06 December 2017 Date of orders: 06 December 2017 Decision date: 06 December 2017 Jurisdiction: Appeal Panel Before: G K Burton SC, FCIArb, Senior Member S Thode, Senior Member Decision: (1) Appeal dismissed. Catchwords: Consumer claim – return of hire fee Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Fair Trading Act 1987 (NSW) Cases Cited: ACCC v CLA Trading PL t/as Europcar [2016] FCA 377 Texts Cited: Nil Category: Principal judgment Parties: Matthew Lesso (Appellant) Rental Car Holdings Pty Ltd t/as East Coast Car Rentals (Respondent) Representation: Self-represented (Appellant) Self-represented (Respondent) File Number(s): AP 17/42124 Publication restriction: Nil Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 08 September 2017 Before: C Paull, Senior Member File Number(s): GEN 17/26210

reasons for decision 1. On 8 September 2017 the primary member dismissed a claim by the appellant consumer for a refund of $5,500 excess charged to his credit card by the respondent car rental company (the lessor) for damage and for a refund of towage costs of $275, except for the return of $31.20 which was the difference between the excess and the actual invoiced repair costs to the rented car of $5,468.80. 2. On 19 March 2017, shortly after the consumer rented the car, it was damaged in an incident a short distance from where it was rented. The money in question related to that incident which is described further below. 3. The claim was clearly a consumer claim as defined in Part 6A s 79E of the Fair Trading Act 1987 (NSW) (FTA). Whether all aspects of the claim were justiciable by the Tribunal is discussed further below. 4. The consumer appealed on a question of law in a notice of appeal lodged on 25 September 2017 which was within time for this type of claim. The notice of appeal also sought leave to appeal against certain findings of fact or fact and law as against the weight of evidence: Civil and Administrative Tribunal Act 2013 (NSW) ss 17, 80, Sch 4 rule 12. 5. At the appeal hearing it was clarified by the lessor that it relied only upon para (b) of the Acceptance of Loss/Damage Liability provision on the first page of the rental agreement dated 19 March 2017. That provision read: "In the event of any loss or damage … (b) a liability of $5,500 for loss arising from a Single Vehicle Accident applies". The lessor, represented by its employed claims manager who was not a lawyer, said that the terms in (b) were not defined and that the capitalisation was simply to distinguish this type of accident from the type of liability described in para (a) (Multiple Vehicle Liability – MVL). 6. It was not disputed that this was a Single Vehicle Accident. As developed below, the cause of the loss by way of fixing the damage to the vehicle was in dispute. 7. The consumer said that, as a question of law, para (b) was unconscionable under the provisions of the Australian Consumer Law because it applied irrespective of fault. Accordingly, the lessor could not rely upon that provision to take money from the consumer's credit card. 8. The consumer called in aid ACCC v CLA Trading PL t/as Europcar [2016] FCA 377, which he had drawn to the primary member's attention. The Europcar decision does not assist the consumer. First, it was conducted on agreed facts, between different parties, that certain terms were unfair (at [58]), even if the primary judge expressed, in respect of certain of those terms, agreement with the parties' position (at [61]). Secondly, at [55(d)(iv) and (vi)] and [58] it is clear that the agreed unfair terms contained a critical difference from the present terms. 9. The substantive reason is that critical difference. Paragraph (b) operates only in respect of "loss arising from" a one-car accident. Accordingly, it is not a blanket allocation of liability, even if the damage was caused by, for instance, the lessor itself, including by mechanical failure or lack of maintenance. 10. We do not regard para (b) as unconscionable. It applies to a particular type of accident of which the renter is the person in the best position to provide information about the immediate circumstances (from the renter or witnesses). From those circumstances it can be determined whether or not the loss arose from the accident. For instance, a witness may be present who testifies that a wheel fell off a car causing it to slide into a barrier. The renter, and not the lessor, is on the scene and best positioned to know such circumstances. 11. It will be apparent from what has just been said that the words "loss arising from" contribute significantly to our view. There is no flat or strict liability in all circumstances placed on the renter. 12. We do not consider that the upfront requirement, once damage has occurred, of payment of the amount claimed ($5,500), with provision for a refund of an amount not required to repair the damage or if the loss does not arise from an accident, is unconscionable by itself. A car lessor's customers are often travellers from whom recovery at some point in the future could be problematic. It is a legitimate interest of the lessor to be able to recover loss arising from damage caused by an accident in which the car was the sole vehicle so long as there is a means of returning any refund to the renter. The renter will have a self-interest in providing a mechanism for that refund. 13. That conclusion makes it unnecessary to deal with the lessor's submission that the Tribunal does not have jurisdiction to make a declaration concerning para (b). This is submitted on the basis that s 250 of the Australian Consumer Law (ACL) dealing with declarations – indeed, the entire suite of remedies in Part 5-2 of the ACL that refer to a grant of relieving power to a "court" - defines "court" which excludes the Tribunal. 14. The ACL is made part of New South Wales law by FTA s 28. The ACL includes substantive provisions dealing with unconscionability and misleading conduct, among other matters, in a distinct part of the ACL (Ch 2) that does not refer to a court. As already said, FTA Part 6A confers jurisdiction on the Tribunal to deal with consumer claims, which includes claims for the types of relief associated with supply of goods and services that are provided under Ch 2 of the ACL, particularly Pts 2.1 and 2.2 of that Chapter. That is the context in which unconscionability is being considered in the present appeal. The types of relief include payments and types of performance, but not declarations. 15. Turning to the question of leave to challenge findings of fact or mixed fact and law as raised by the consumer, we record first, for completeness, that the consumer, fairly, confirmed at the outset that he was not saying that there was no evidence on which the primary member came to his conclusion, which would be an error of law. 16. Rather, the consumer said that the weight of evidence was against the primary member's findings that there was some cause for the loss other than the single vehicle accident. 17. In this respect, the consumer said that the primary member ought to have placed less, or no, weight upon the reports and assessments made within 2 days (in one instance) and within a month after the accident that were put forward in evidence by the lessor. Those reports attributed the loss from damage to the vehicle to impact rather than mechanical failure prior to and causative of the impact. The consumer said that the reports were unsigned and untested. The consumer also said that the later reports were too delayed and liable to be affected in quality by the invasive investigation by the first report. 18. We rejected an application by the lessor to put into evidence before us for the first time an affidavit by the author of one of the reports, attesting to it formally. 19. None of the reports was put forward by the lessor as expert opinion evidence. Two of them were descriptive of the work required to be done to fix the damage from which an inference of impact damage rather than prior mechanical failure could be drawn; on one of those reports impact damage was specified. The third (loss assessor) report really was a commentary on the two other reports. 20. The consumer did not seek to challenge the primary member's findings on the basis that he did not have an opportunity to cross-examine on this evidence or lead his own evidence on the topic. 21. Rather, the consumer relied upon his own feeling that immediately upon starting to drive the vehicle he "sensed it was not in the best condition" and that he "felt in his own mind" that the vehicle was not roadworthy. The primary member recorded those matters and that these feelings were not substantiated by any other evidence. The consumer confirmed to us that he was not qualified to give an opinion on mechanical matters. 22. The primary member also pointed out that, notwithstanding his doubts, the consumer did not return immediately to the lessor's premises, which were then nearby, but continued to drive the short distance to where the incident occurred. 23. The consumer also agreed that he did hit something with the car in his first handwritten report shortly after the incident: "Felt something and hit something, car went airborn. I believe I scrapped a construction barrier, but must not have hit it very hard. I was travelling at about 30-35 kph. The car must have veered to the right, since I was in the roadway and the barrier was off to the side". It was what made the car hit that unascertained something that was in issue – mechanical defect or driver error. 24. The consumer did not accept that he should bear the onus of proving that the cause was mechanical failure so as to disqualify the lessor from invoking para (b) quoted above. The consumer was the moving party for relief. 25. Even if, the consumer having raised the issue of an alternative explanation, the lessor bore an onus to justify invoking (b), it seems to us that the consumer needs to justify raising the issue with some objective evidence beyond unqualified feeling. 26. Even if the primary member could have come to a different conclusion (for instance, by excluding the lessor's unsigned reports), there would have been no evidence before the primary member apart from there being one car involved in an impact with an object, being driven at the time by the consumer. 27. In those circumstances, it seems to us that the primary member's conclusion on the cause of the accident, bringing with it the right of the lessor to invoke para (b), was well within the range of reasonable outcomes on the available evidence and certainly not against the weight of evidence or not fair and equitable. 28. Accordingly, we dismiss the appeal.