Civil and Administrative Tribunal New South Wales Medium Neutral Citation: SUV Sales Pty Ltd t/as 4B4 Warehouse v Walsh; Walsh v SUV Sales Pty Ltd t/as 4B4 Warehouse [2018] NSWCATAP 59 Hearing dates: 20 February 2018 Date of orders: 07 March 2018 Decision date: 07 March 2018 Jurisdiction: Appeal Panel Before: S Westgarth, Deputy President D Robertson, Senior Member Decision: AP 17/48693 1. The appeal is dismissed AP 18/00834 1. The application for an extension of time to file the appeal is refused. 2. The appeal is dismissed. Catchwords: Extension of time – evidence not reasonably available Legislation Cited: Civil and Administrative Tribunal Act 2013 Civil and Administrative Tribunal Rules 2014 Cases Cited: Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 Category: Principal judgment Parties: AP 17/48693 SUV Sales Pty Ltd t/as 4B4 Warehouse (Appellant) Anthony Walsh (Respondent) Lianne Walsh (Respondent) AP 18/00834 Anthony Walsh (Appellant) Lianne Walsh (Appellant) SUV Sales Pty Ltd t/as 4B4 Warehouse (Respondent) Representation: Mr B Wakim, Manager (Appellant in AP 17/48695, Respondent in AP 18/00834) Anthony & Lianne Walsh (In person Respondents in AP 17/48695, Appellants in AP 18/00834) File Number(s): AP 17/48693, AP 18/00834 Publication restriction: Unrestricted Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: Not applicable Date of Decision: 30 October 2017 Before: C Marzilli, Senior Member File Number(s): MV 17/18559 reasons for decision Background 1. This decision concerns two appeals which we will refer to as 'the 4B4 appeal' and 'the Walsh appeal'. Both are appeals from a decision published on 30 October 2017 ('the Decision') in the Consumer and Commercial Division of the Tribunal. 2. Both appeals have their origins in an application filed on 25 April 2017 in which the first respondent to the 4B4 appeal (Mr Walsh) sought compensation from the appellant (SUV Sales Pty Ltd t/as 4B4 Warehouse (4B4)). In that application, Mr Walsh sought an order for the payment of $10,099.00 or an order to fix or replace the "faulty motor vehicle". The application identified a number of items for which the compensation claim was made. The application states that the car was "falsely advertised as a 2009 GXL upgrade model" and that what "it actually is, is an early 2008 build GXL with no upgrades". 3. In the Decision, an order was made for 4B4 to pay to Mr Walsh the sum of $5,888.08. 4B4 appeals that order (the 4B4 appeal) and Mr Walsh also appeals the order (the Walsh appeal). 4. At a call over in each appeal, Mrs Walsh was joined as a further appellant to the Walsh appeal and as a further respondent to the 4B4 appeal. The reason that this occurred is not recorded in either case and it does not appear that Mrs Walsh was a party to the proceedings under appeal. However, the fact that she has been joined as a party to the appeals is of no consequence to this decision, or the orders we are making dismissing the appeals. 5. It is necessary to set out in summarised form the essential aspects of the Decision which we do as follows: 1. On 26 September 2016 Mr Walsh purchased from 4B4 the vehicle which is the subject of this dispute, namely a Toyota Land Cruiser wagon with an odometer reading of 234,960km. 4B4 issued an invoice which contained the words "sold as inspected, repair steering, intermittent oil leak". The vehicle had been advertised and Mr Walsh saw the advertisement prior to purchase. The advertisement contained a description of the vehicle. Mr Walsh inspected the vehicle prior to purchase; 2. The vehicle was manufactured during February 2008 and was not a 2009 vehicle as set out in the advertisement. The vehicle had travelled 234,953km at the time of sale and not 213,837 as set out in the advertisement; 3. At the time of sale the vehicle had a number of defects which are set out in paragraph 12 of the Decision; 4. The vehicle was represented by 4B4 to have upgraded suspension but the Tribunal was satisfied on Mr Walsh's evidence that the vehicle did not have such suspension; 5. The vehicle's windows were tinted in a colour too dark for the vehicle to be registered for public use in the ACT; 6. It was necessary for Mr Walsh to spend money to enable the vehicle to be registered and that cost should be the subject of compensation to Mr Walsh; and 7. The Decision then dealt with a number of specific claims. It will be necessary to refer to only some of them in the course of considering the merits of these appeals. Notice of Appeal – the 4B4 Appeal 1. A Notice of Appeal was filed by 4B4 on or about 15 November 2017. 2. The form of the Notice of Appeal requires information as to the orders challenged. This information may be summarised as follows: 1. 4B4 appeals the reasoning in paragraph [20] of the Decision. That paragraph concerned an award of compensation for old and damaged tyres; 2. There is an appeal with respect to paragraph [23] of the Decision. That paragraph concerned a finding that the vehicle was represented to have upgraded suspension but in fact it did not. An amount of $2,300.00 was awarded to Mr Walsh; and 3. There is an appeal with respect to paragraph [28] of the Decision. That paragraph concerned the calculations made by the Tribunal in coming to an aggregate amount based upon the individual findings set out in the Decision. 1. The grounds of appeal are described as follows: 1. The Decision was not fair and equitable as the interpretation of upgraded suspension was "taken by the Member as aftermarket suspension, in 2009 there were two types of factory suspension "Standard" and "Upgraded" which the 20 September email referred to (attachment A)"; 2. The applicant signed a contract agreement to accept tyres on the vehicle in lieu of additional work done to vehicle (attachment B); and 3. The advertisement for the vehicle did not state new tyres but "as new", which tyres were on the vehicle. Reply to the 4B4 Appeal 1. Mr Walsh has filed a Reply to Appeal, the terms of which may be summarised as follows: 1. Mr Walsh supports the original orders "insofar as they award me certain damages. However, I have new evidence relating to additional expenses I incurred to upgrade or repair the car which was not available at the time of the original decision"; 2. Mr Walsh stated that the first basis of appeal is unclear. He interprets 4B4 to claim that the amount of damages awarded was erroneous because the upgraded suspension was factory fitted and the quote obtained by Mr Walsh was for the fitting of aftermarket suspension. He states that unless 4B4 provides evidence to show what the quantum of any such difference is, this is a "baseless claim"; and 3. Mr Walsh denies that he agreed to accept tyres on the vehicle in lieu of additional work done to the vehicle. He also states that the advertisement upon which he relied described the tyres as "new tyres" and not as "as new". 4B4's Written Submissions 1. 4B4 has filed a letter received on 8 January 2018 which states the following: 1. The vehicle model was factory fitted as an upgraded suspension from the previous model; 2. The advertisement "was pointing to the later factory upgraded suspension 'Active Off Road' which is fitted to the vehicle as part of the manufacturers specifications". Mr Walsh's evidence showed that the vehicle did not have aftermarket modified suspension which "at no point did we claim or advertise". The letter states that the Member's decision was made on "aftermarket suspension not on factory upgrade 'Active Off Road Suspension'"; and 3. 4B4 provided evidence at the first instance hearing that there was an agreement between the parties to the effect that 4B4 will repair all listed items "except radiator and replace tyres". They state that they complied with the agreement. 4B4's Submissions at the Appeal Hearing 1. At the hearing of the appeal, Mr Wakim (who appeared for 4B4) withdrew the appeal insofar as it concerned the award of damages for the failure to supply an upgraded suspension. The Decision dealt with this issue in paragraph [12(d)] and found that 4B4 had represented that the vehicle had an upgraded suspension, that in fact it did not have such suspension and that the evidence to that effect was not contested by 4B4. Mr Wakim conceded that there was no evidence that the Member was in error in making those findings. Mr Wakim then stated he withdrew the appeal insofar as it concerned the award of damages in respect of the vehicle's suspension. 2. The substance of the 4B4 appeal was thus limited to the question of whether damages should have been awarded by reason of the alleged failure by 4B4 to supply the vehicle with new tyres. The submission of 4B4 was that the parties had reached an agreement to the effect that 4B4 would repair a number of agreed items and that Mr Walsh accepted that the items not agreed would not be pursued in return for 4B4's promise to fix the agreed items. The particular document relied upon by 4B4 was attached to the notice of appeal. We will refer to it as the "Signed Agreement". It lists a number of items besides which someone has placed a tick. At the foot of that document, these words have been written: As agreed with customer 4B4 Warehouse will repair all listed items, except radiator and replace tyres. Will fit s/h same size tyre to spare wheel and fit cooper tyre (spare) to factory rim. Submissions Received from Mr Walsh dated 6 February 2018 (received 9 February 2018) 1. In view of the withdrawal of that part of 4B4's appeal concerning the suspension, we will make not make any mention of Mr Walsh's submission concerning the suspension issue. 2. The substance of the submission made by Mr Walsh concerning the award in respect of the tyres is: 1. There was no agreement to accept one tyre in lieu of additional work. The document signed on 29 October 2016 (being the document we call the Signed Agreement) when the vehicle was returned to 4B4 for repairs, was for the purpose of 4B4 fixing the items ticked. The parties did not come to an agreement on the items that were not ticked; and 2. The advertisement attached to the Notice of Appeal has been altered by 4B4 to state "as new tyres". 1. At the hearing, Mrs Walsh, speaking for Mr Walsh, contended that the Signed Agreement does not record an agreement to the effect that Mr Walsh would make no claim in respect of tyres in return for the repair work being undertaken as identified by the various ticks on the Signed Agreement. Rather, she contended that the document merely recorded that 4B4 declined to undertake repairs with respect to the radiator or replace the tyres. Related Appeal AP 18/00834 – the Walsh Appeal 1. By Notice of Appeal received by the Tribunal on 5 January 2018, Mr Walsh has lodged an appeal against the Decision. The grounds of appeal are as follows: The Tribunal did not consider all relevant evidence. Invoice from Ipswich Motors for $2,775.63 dated 7 August 2017. Invoice from Ipswich Motors for $1,145.84 dated 21 August 2017. Comparative requirement of both NSW and ACT registration in relation to window tinting – paragraph 24. 1. In the section of the Notice of Appeal which requires the appellant to state the orders the Appeal Panel should make, Mr Walsh submits that the order in his favour should be for $10,184.55 as opposed to the sum of $5,888.08 awarded by the Tribunal. The amount added totals $4,296.47. This appears to be made up of $2,775.63 (above invoice dated 7 August 2017), $1,145.84 (above invoice dated 21 August 2017) and $375.00 (window tinting). 2. The Notice of Appeal states that significant new evidence is now available that was not available at the time of the hearing, namely the two invoices from Ipswich Motors, referred to above dated 7 and 21 August 2017. It is stated that that evidence was not available because the mechanic who performed the work was subject to numerous health issues that prevented him from issuing Mr Walsh with the invoices until December 2017. It is also submitted that the evidence relating to window tinting (dealt with in paragraph [24] of the Decision) was not available because Mr Walsh was unaware NSW Registration requirements would "not be known by the Tribunal". 3. To the Notice of Appeal is annexed a letter from Ipswich Motors Pty Ltd dated 29 December 2017. The letter refers to invoices dated 21 August 2017, 7 August 2017, 13 May 2017, 29 March 2017 and 29 September 2016. The letter states that the invoices of 7 August and 21 August 2017 were not supplied to Mr Walsh because of "my illness and hospitalisation". It is signed by Peter Carey, the proprietor of Ipswich Motors. Reply to Appeal – the Walsh Appeal 1. 4B4 has filed a reply, received by the Tribunal on 8 February 2018. 2. The reply may be summarised as follows: 1. The additional invoices are service invoices and therefore the responsibility of Mr Walsh. In any event, insofar as there is a claim for air-conditioning that has already been the subject of compensation awarded by the Tribunal. The new claim concerning the invoice dated 7 August 2017 is in respect of the radiator and was not included in the claim before the Tribunal at first instance; and 2. Invoice 14141 (dated 21 August 2017) is for general vehicle service and by that stage, the vehicle had been with Mr Walsh for 11 months and had travelled over 13,000km. The Walsh Appeal – Submissions made by parties at the appeal hearing 1. Mrs Walsh acknowledged that the appeal had been filed outside the period of 28 days required by r 25 of the Civil and Administrative Tribunal Rules 2014 (the Rules). That rule requires an appeal to be lodged with the Tribunal within 28 days of the receipt of the decision. Mrs Walsh stated that she and Mr Walsh did not realise that they had 28 days to file a Notice of Appeal. As the Notice of Appeal indicates, the Decision was received on 4 November 2017 and therefore the appeal should have been filed by approximately 4 December 2017. Mrs Walsh also stated that she had sought legal advice and that had contributed to the delay, together with the Christmas holiday period. Mr Wakim opposed the Appeal Panel extending the time for the lodgement of the Walsh appeal, but conceded that 4B4 had not suffered any prejudice by reason of the late filing of the Notice of Appeal (apart from the obvious prejudice of having to deal with the appeal if it is allowed to proceed). 2. Mrs Walsh submitted that the two invoices from Ipswich Motors which are now sought to be produced in support of a claim for additional compensation were not available at the time of the first instance hearing (which occurred on 11 September 2017). Mrs Walsh also stated that towards the end of the hearing before the Member on 11 September 2017, she mentioned to the Member that they wished to introduce further evidence and that the Member responded by saying that it was too late. Mrs Walsh did not produce any evidence (such as a transcript or a disc containing the sound recording) to substantiate her assertion that she had raised the possibility of the additional evidence with the Member at the conclusion of the hearing. 3. Mr Wakim submitted that if the invoices were allowed in, 4B4 would need time to consider them and have an opportunity to put forward further evidence in response. 4. Mrs Walsh submitted that the Tribunal was in error in rejecting the claim of $375.00 being the cost of re-tinting the vehicle's windows. This issue was dealt with in paragraph [24] of the Decision. In that paragraph, the Tribunal found that the vehicle had been registered in New South Wales and that Mr Walsh had not provided evidence to establish that the registration requirements in the Australian Capital Territory do not differ from those in New South Wales. Annexed to the Notice of Appeal was material which Mr Walsh sought to have considered by the Appeal Panel to establish that the registration requirements in the Australian Capital Territory and in New South Wales were the same. Decision 1. Appeals from decisions made in the Consumer and Commercial Division of the Tribunal are regulated by s 80 of the NCAT Act and by cl 12 of Sch 4 of the NCAT Act. In summary, this means that a party may appeal as of right on any question of law (see s 80(2)) and with the leave of the Appeal Panel where cl 12 of Sch 4 applies. Clause 12 provides: 12 Limitations on internal appeals against Division decisions (1) An Appeal Panel may grant leave under section 80 (2) (b) of this Act for an internal appeal against a Division decision only if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because: (a) the decision of the Tribunal under appeal was not fair and equitable, or (b) the decision of the Tribunal under appeal was against the weight of evidence, or (c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with). Note. Under section 80 of this Act, a party to proceedings in which a Division decision that is an internally appealable decision is made may appeal against the decision on a question of law as of right. The leave of the Appeal Panel is required for an internal appeal on any other grounds. (2) Despite section 80 (2) (b) of this Act, an internal appeal against a Division decision may only be made on a question of law (as of right) and not on any other grounds (even with leave) if: (a) the appellant is a corporation and the appeal relates to a dispute in respect of which the Tribunal at first instance had jurisdiction because of the operation of Schedule 3 to the Credit (Commonwealth Powers) Act 2010, or (b) the appeal is an appeal against an order of the Tribunal for the termination of a tenancy under the Residential Tenancies Act 2010 and a warrant of possession has been executed in relation to that order. 1. There is also a requirement to lodge an appeal within the time limits provided for in r 25(4). The time for lodging an appeal may be extended and we will refer to the principles governing the extension of time subsequently in these reasons. 4B4 Appeal 1. Mr Wakim argued that the Signed Agreement recorded the fact that Mr Walsh agreed not to pursue the claim for compensation by reason of failure to provide new tyres in consideration of 4B4 undertaking all of the work marked with ticks. Mrs Walsh argued that the Signed Agreement did not have that effect. 2. In our view, the Signed Agreement does not state that Mr Walsh has settled his dispute with respect to the new tyres in consideration for the ticked items being repaired by 4B4. We therefore reject Mr Wakim's submissions. 3. The case proceeded before the Tribunal at first instance upon the basis that Mr Walsh was able to pursue a claim for compensation for new tyres. The Decision does not record that 4B4 put forward the submission that Mr Wakim now puts forward. Whether such submission was put or not put, we are of the view that the Decision, in making a determination with respect to the claim concerning new tyres, was not inconsistent with, or contrary to, the meaning of the Signed Agreement. Accordingly, we do not consider that the Decision reveals an error of law, or that a miscarriage of justice has occurred in the sense identified in cl 12 of Sch 4 of the Civil and Administrative Tribunal Act 2013 (NCAT Act). 4. It follows from the above conclusions that the 4B4 appeal must be dismissed. The Walsh Appeal 1. The initial question is whether we should extend time for the filing of this appeal. The power to extend time is given under s 41 of the NCAT Act. The considerations relevant to considering whether an extension of time to appeal should be granted were considered in the Appeal Panel decision of Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22. The considerations involve the length of the delay (here, approximately one month), the reason for the delay (here, the lack of realisation that a period of 28 days was applicable) and the appellant's prospects of success. A further consideration is the extent of any prejudice suffered by the respondent. In this case, 4B4 has not suffered any prejudice. 2. Here, the length of the delay is not insubstantial but, on the other hand, that delay has not delayed the conduct of the 4B4 appeal. The reason for the delay is unpersuasive. Generally, a party is not entitled to seek protection on the basis of ignorance of a legal obligation. The 4B4 appeal was filed in mid-November 2017 and one would have thought that its receipt by Mr Walsh would have triggered the thought that it might be necessary to do likewise in respect of any action which Mr Walsh wished to make to increase the amount awarded to him. 3. Notwithstanding that there would be no prejudice to 4B4 in extending the time we do not propose to make an order extending the time for the lodgement of the Walsh appeal. There are two reasons for this. The first is that the reason for the delay is unpersuasive. Secondly, in our view, for the reasons which follow, the Walsh appeal would be dismissed even if an extension of time were granted. 4. Mr Walsh's application was filed on 24 April 2017. The hearing did not take place until 11 September 2017. Some invoices issued by Ipswich Motors were relied upon at the hearing. The two which Mr Walsh now seeks to rely upon are dated 7 and 21 August 2017. The evidence is that they were not available at the hearing. The only explanation is that provided by Mr Peter Carey who says that the invoices were not supplied due to his illness and hospitalisation. There is no supporting evidence concerning the period of hospitalisation, medical evidence explaining the extent to which Mr Carey was incapacitated and no information explaining why others at Ipswich Motors (assuming there were others running that business) could not provide the invoices. Given this lack of evidence, we are not satisfied that Mr Walsh has established that the two invoices should now be allowed in as fresh evidence that was not reasonably available at the hearing on 11 September 2017. Nor are we satisfied that there was no other evidence which could have been made available for the Tribunal's consideration on 11 September 2017 concerning the fact that Mr Walsh had incurred further expense with Ipswich Motors on 7 and 11 August 2017 (such as quotes or work sheets). 5. Mrs Walsh informed us that at the first instance hearing, she made mention of the fact that further work had been undertaken and the evidence was not available. She said the Member said it was too late to provide further evidence. There is no appeal concerning the Member's decision in that respect. We have not been supplied with a copy of the transcript or a disc of the sound recording and therefore cannot say whether what occurred at the hearing constituted an error or law or could have been relied upon to seek leave to appeal. 6. This Tribunal has obligations under the NCAT Act to resolve matters justly, quickly and cheaply (see s 36 of the NCAT Act) and a feature of that obligation is to ensure that cases are heard and finalised. Where an applicant seeks, after a decision has been made, to have aspects of the case reheard because of the late production of fresh evidence, the Tribunal must carefully consider whether it will allow such evidence because to do so would have the consequence that aspects of a case may have to be reheard. In this case, if we allowed Mr Walsh to prosecute his claims for additional compensation in respect of the amounts paid in the two invoices, we would also, in the interests of fairness, have to give to 4B4 an opportunity to respond. In short, that would mean that the case would have to be remitted for a further hearing. 7. Our conclusion is that there has been no error of law in the Decision, nor are we satisfied that there has been a miscarriage of justice warranting the granting of leave under cl 12 Sch 4 of the NCAT Act. 8. We would also reject Mr Walsh's claim for compensation with respect to the window tinting. It too involves the tender of fresh evidence concerning the registration requirements in NSW and ACT. The Member made a decision based upon the evidence then available. It is clear that the evidence concerning registration requirements could have been provided to the Member at first instance. This evidence is not evidence that was not reasonably available at the first hearing. 9. It is our conclusion in the Walsh appeal that there has been no error of law and there has been no injustice of the kind which would cause us to grant leave under cl 12 of Sch 4 of the NCAT Act. 10. The application for an extension of time to file this appeal will be refused. Orders 1. The Appeal Panel makes the following orders: AP 17/48693 1. The appeal is dismissed AP 18/00834 1. The application for an extension of time to file the appeal is refused; and 2. The appeal is dismissed. ********** 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: 07 March 2018