Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Sydney RV Group Pty Limited v Johnson [2018] NSWCATAP 102 Hearing dates: 14 September 2017 Date of orders: 01 May 2018 Decision date: 01 May 2018 Jurisdiction: Appeal Panel Before: M Craig QC ADCJ, Principal Member J McAteer, Senior Member Decision: (1) Grant leave to appeal. (2) Appeal upheld. (3) Set aside the decision of the Tribunal made on 26 June 2017. (4) Remit the proceedings to the Consumer and Commercial Division of the Tribunal for determination according to law. Catchwords: ADMINISTRATIVE LAW – Civil and Administrative Tribunal – appeal – decision against the weight of evidence – whether substantial miscarriage of justice – significant chance of more favourable outcome Legislation Cited: Australian Consumer Law (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Fair Trading Act 1987 (NSW) Cases Cited: Collins v Urban [2014] NSWCATAP 17 Prendergast v Western Murray Irrigation Limited [2014] NSWCATAP 69 Category: Principal judgment Parties: Sydney RV Group Pty Limited (Appellant) Alexander Johnson (Respondent) Representation: D Carberry, Employee (Appellant) S Bowen, Agent (Respondent) File Number(s): AP 17/30543 Publication restriction: Nil Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 26 June 2017 Before: G Burton, Senior Member File Number(s): MV 16/52555 reasons for decision 1. On 9 April 2016, Alexander Johnson, the respondent, agreed to purchase a Holden Rodeo vehicle from Sydney RV Group Pty Limited, the Appellant. The vehicle comprising a two-seater cabin and chassis had been fitted with a Winnebago "motor home" addition, otherwise being described as a campervan. 2. Following completion of the purchase of the campervan, Mr Johnson and his partner, Alison Morgan, complained that components of the campervan either did not operate or required repair. Their concerns for the state of the campervan culminated in what they described as a brake failure that occurred as they were descending a steep section of road. That brake failure occurred on 26 May 2016. Following that occurrence, the campervan has not been used by them. 3. On 1 December 2016, Mr Johnson commenced proceedings in the Consumer and Commercial Division of the Tribunal, seeking a refund of the purchase price paid for the campervan or alternatively, seeking payment of the sum of $13,000 for its repair. That claim was determined on 26 June 2017 when a Tribunal Member ordered that the Appellant refund the purchase price once the vehicle was returned to it. The Member also ordered that the Appellant pay $1,088.40 to Mr Johnson, being reimbursement to him of sums that he paid to have the campervan repaired. 4. The Appellant has appealed against those orders pursuant to s 80(1) of the Civil and Administrative Tribunal Act 2013 (the Tribunal Act). That section was properly engaged as the decision of the Member was a "general decision" within the meaning of s 29 of the Tribunal Act and was therefore an "internally appealable decision" within the meaning of s 32(4). 5. For reasons that follow, we have determined that the appeal should be upheld. As our reasons disclose, it is necessary that the proceedings be remitted for further hearing in the Consumer and Commercial Division of the Tribunal. Further facts 1. These further facts are taken from the documents before the Member at first instance and provided by the parties for the purpose of conducting this appeal. They also reflect the oral evidence given at the hearing before the Member. 2. The motor vehicle component of the campervan was a 1993 model Holden Rodeo with a build date of 1 April 1993 and a compliance plate of that same date. It is not known when the Winnebago element was attached but is likely to have been at the time at which the vehicle was first registered. Relevantly, at the time of sale to Mr Johnson, the odometer reading on the vehicle was 273,379km. 3. The sales transaction between the parties was completed on 15 April 2016 when the purchase price of $25,700 was paid in full and delivery of the campervan taken by Mr Johnson. A deposit of $1000 had been paid on 9 April, after which the Appellant arranged for the registration of the campervan to be renewed. The registration renewal was for a period of three months from 12 April 2016 and was effected on that date in the name of Mr Johnson. The campervan was also serviced prior to its delivery to Mr Johnson. 4. Because of the age of the campervan, an inspection was required before registration could take place. The Certificate of Registration issued by Roads and Maritime Services (RMS) on 12 April is in evidence. Also in evidence is a copy of the inspection report, dated 12 April and on the RMS prescribed form, showing that the vehicle had passed the test for registration. That certificate was prepared by an authorised vehicle examiner who was not in the employ of the Appellant. 5. At the time of sale, the vehicle was sold with a "dealer's warranty". That warranty was stated to be for "3 months or 5,000km, whichever first occurs". 6. Mr Johnson and Ms Morgan are musicians who travel extensively through the eastern states of Australia in order to perform. The vehicle was purchased to provide a "mobile home" for them, a fact said to have been made known to the employee of the Appellant who negotiated the sale. Within weeks of purchasing the campervan they had travelled to Queensland as well as into Victoria. 7. Soon after they commenced travelling, Mr Johnson and Ms Morgan noticed what they regarded as a number of defects in the campervan. Initially, those defects were identified as a defective solar power unit, a grill and oven that did not operate, some windows that did not close and flyscreens inadequately attached to windows as well as some lights that did not operate, all within the Winnebago component of the vehicle. They also observed that the "grey water tank" was leaking and that there was a leak from the exhaust of the vehicle. All of those defects were reported to the Appellant by an email sent by Ms Morgan on 4 May 2016 and subsequently repaired by it. 8. On 18 May 2016, Mr Johnson and Ms Morgan were travelling in Victoria. They took the campervan to a firm trading as Gadgets Caravan Services at Carrum Downs. That firm removed and replaced the accelerator cable as well as addressing the oven function and inspecting the campervan for gas leaks. The total charge for that work was $372. On the date the invoice for that work was provided to Ms Morgan, an employee of the Appellant notified Ms Morgan by email that upon receiving the invoice, she or Mr Johnson would be reimbursed for the amount they had paid. In an email from Ms Morgan dated 19 May 2016, thanking the relevant employee of the Appellant for agreeing to the reimbursement, she also said: "And thank you for last week the solar and fridge are working beautifully now. We still need to see someone about the air con and the exhaust leak there is also some problems with the speaker in the car we are doing that this week so I will forward on the quotes once received. Thanks for all your help and being so flexible we really appreciate it." No other defects are identified in that email. 1. On 24 May 2016, the campervan was taken by Mr Johnson to another service or repair firm trading as PTJ's Mechanical Service in Mornington, Victoria. The detail on the invoice provided by that firm records that the campervan was subjected to a general service. Not only is the first item in the invoice identified as "Completed Full Service" but it includes a number of items that were said to have been checked. Items checked included "belts, hoses and lights & brakes". 2. The invoice for that work was for a total sum of $345. That invoice records the odometer reading of the vehicle to be 278,546km. It is apparent that in a little more than one month after the campervan was delivered to Mr Johnson, it had travelled some 5,167km. In that period Mr Johnson and Ms Morgan had travelled to Queensland and, as is apparent, into Victoria for the purpose of undertaking their musical pursuits. 3. Two days later, on 26 May, they had returned to New South Wales. On that day they were travelling down a section of the Illawarra Highway known as Macquarie Pass when Ms Morgan, who was driving, claimed that "the brakes failed". Ultimately, she was able to bring the campervan under control and eventually to a stop. The following day it was taken to another repairer trading as "Leisure Coast Automotive" at Warilla, south of Port Kembla on the New South Wales south coast. An employee of that firm apparently inspected the vehicle, initially provided a tentative quote and ultimately provided a final quote on 23 June 2016 for repairs to the braking system totalling $1,521.85. The quote records the odometer reading on the campervan to be 279,511km. At the time of hearing, the brake repairs for which that quote was obtained had not been carried out. 4. Nonetheless, on 14 September 2016 the vehicle was taken by Mr Johnson or by someone on his behalf to NRMA Motorserve at Oak Flats, south of Wollongong, to be assessed for renewal of the vehicle's registration. Once again, the vehicle was subjected to a safety check for the purpose of registration and passed by an RMS examiner to permit the registration to be renewed. Attached to the RMS Inspection Report before the Tribunal were print-outs of a brake test conducted at the time. That Report records the odometer reading of the campervan to be 279,521km. 5. Apart from the RMS inspection, an "NRMA Safety Service" was also carried out. The report prepared as a consequence of that service was identified as a "pre-purchase" report. For the exterior of the vehicle, the report records as being "satisfactory" any rust, body repairs, body panels and exterior trim. Apart from recording internal scuffing, a stained passenger seat and a tear in the driver's seat, internal components were also reported as being "satisfactory". Under the heading "Tyres, Wheels and Brakes", eleven different brake components were identified. All such components were described as "satisfactory", with both front and rear brake "pads/shoes" identified as being at 50%. No road test was carried out because registration of the vehicle had by then expired, notwithstanding that the requisite inspection certificate had that day been obtained to permit registration renewal. 6. The campervan was further inspected by NRMA Motorserve on 30 January 2017 at the request of Mr Johnson. The report prepared consequent upon that inspection was described as a "40 Point Safety Check". It recorded an odometer reading of 279,619km. Front and rear brakes were reported as "50-75% approximately remaining". A number of items are reported as requiring either adjustment or replacement, many of which appear to be the consequence of ordinary wear and tear. The decision under appeal 1. In his Reasons, the Member recorded the purchase of the campervan in the circumstances we have earlier described. He identified the jurisdiction of the Tribunal to determine the claim as arising under Pt 6A of the Fair Trading Act 1987 (NSW) and the adoption by that Act of the Australian Consumer Law (ACL (NSW)). He identified the basis of claim made by Mr Johnson as being founded upon the statutory warranties expressed in ss 54 and 55 of the ACL (NSW). No issue is taken with the jurisdiction of the Tribunal to determine the claim made by Mr Johnson on the basis identified by the Member. 2. He recorded the initial complaint by Mr Johnson or Ms Morgan of defects in the campervan, noting that the Appellant had paid for some of the work to correct those defects. The email from Ms Morgan of 4 May 2016 was identified as notifying those defects, being some of those that received attention by PTJ's Mechanical Service, as reflected in the invoice of 24 May 2016 to which we have earlier referred. 3. Apart from the defects identified in the email of 4 May 2016, and those that were subsequently corrected at the cost of the Appellant, the Member identified the "main other complaints" as being "for alleged rust in several areas of the vehicle (some in structure and not visible without professional inspection) and alleged defects in the braking system allegedly caused by the vehicle being above the recommended weight". Further complaints described in an email of 9 August 2016 from Mr Johnson were "broken air conditioning (said to have occurred within 24 hours of taking possession of the vehicle), speakers which were already worn and had blown by the time of the email, a leak behind the gearbox and an unsafe towbar mounting". Neither brake defect nor matters referred to in the email of 9 August were identified in the email of 4 May. However, the Member noted that in her email to the Appellant of 19 May, Ms Morgan stated that she needed "to see someone about" some of those matters. We have earlier referred to the content of the latter email. 4. It was submitted on behalf of Mr Johnson that the defects were major and therefore entitled him to a refund of the purchase price paid for the campervan once the vehicle is returned to the Appellant. In addition, the Member noted that Mr Johnson sought compensation for "investigating and partly repairing the alleged defects" to the extent to which he had not already been reimbursed. The remedies sought were said to be available to Mr Johnson under s 79N of the Fair Trading Act. Further, the provisions of ss 259-263 of the ACL (NSW) were identified as stating the available relief, depending upon whether there is a major or a minor failure to comply with the consumer guarantees. 5. Neither party was legally represented at the hearing before the Member. Mr Johnson did not attend the hearing as he is recorded as being overseas at the time. At [12] the Member states that "on balance" he accepted the evidence given by Ms Morgan in support of Mr Johnson's claim. Further, the Member records at [13] that a written statement from Mr Johnson was tendered which "corroborated in specific terms that the purpose of buying the vehicle was communicated, that there were braking issues prior to the escarpment brake fade and that the braking and other issues were raised prior to 13 May 2016 while the Applicant and his partner were on the tour northwards after purchasing the vehicle". At [16] the Member said: "[16] The number of defects notified within a short time of purchase was combined with the structural nature or major systemic nature of some of them, particularly some of the rust, the air conditioning and solar. In terms of both number and major character, I consider that the defects were sufficient to constitute a major failure with the specified consumer guarantees in ACL ss 54-55." He concluded at [17] that Mr Johnson was entitled to a refund "together with compensation for costs incurred in servicing the vehicle and obtaining inspections and costs of repairs and quotations for repairs, to the extent not already reimbursed by the Respondent". 1. At [19] the Member returned to the topic of brake failure that had been the subject of discussion earlier in his Reasons. He stated that he had reached the conclusion as to a major failure notwithstanding that he accepted "the force" of the Appellant's assessment "that the braking system suffered from the effects of fading during a steep descent, that was not an unusual outcome on such a descent, and that there was still adequate coverage of the brake discs, pads and lining and fresh brake fluid". Notwithstanding that observation, he then stated that there was "a notified problem with the brakes prior to the descent which remained on the evidence unexplained". The Appeal 1. The Notice of Appeal is signed by Mr Carberry, the Appellant's service manager. The grounds of appeal are expressed in narrative form rather than expressing succinctly the asserted ground or grounds on which it seeks to sustain its appeal. Distilled from that narrative appears to be a contention that the decision was against the weight of evidence. The correctness of that distillation was confirmed by the argument presented to us on the hearing of the appeal. 2. Unsurprisingly, Mr Johnson took issue with each of the narrative points raised by the Appellant in its Notice of Appeal. He sought to respond by identifying the evidence upon which he relied and the findings made in his favour by the Member. That was the thrust of his submission on the hearing before us. Principles applicable to the determination of the appeal 1. The Appellant did not identify any question of law upon which it sought to found its appeal. Having considered its grounds of appeal, we did not discern any such question (see Prendergast v Western Murray Irrigation Limited [2014] NSWCATAP 69 at [12]). The absence of an identified question of law has implications for the manner in which we are able to determine the appeal. 2. We have earlier identified s 80(1) of the Tribunal Act as founding the entitlement to appeal from a decision of the present kind. Subsection (2)(b) of s 80 circumscribes that entitlement by providing that an appeal "may be brought as of right on any question of law"; any other ground requires leave of the Appeal Panel. In the present appeal, that leave was sought in the Appellant's Notice of Appeal. 3. Our power to determine an appeal where leave to appeal is required because factual errors are asserted is further constrained by cl 12 of Sch 4 to the Tribunal Act. Schedule 4 contains those provisions of the Act that pertain to proceedings in the Consumer and Commercial Division of the Tribunal. Clause 12 relevantly provides: "12 Limitations on internal appeals against Division decision (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: … (b) the decision of the Tribunal under appeal is against the weight of evidence, … ." 1. It will be apparent from that provision, applied to the Appellants' grounds of appeal, that we must be satisfied of a substantial miscarriage of justice because the decision under appeal was against the weight of evidence. A principled approach to such a determination has been articulated in the decision of an Appeal Panel in Collins v Urban [2014] NSWCATAP 17. At [76] the Appeal Panel stated that a substantial miscarriage of justice may be suffered "where there was a 'significant possibility' or a 'chance which was fairly open' that a different and more favourable result would have been achieved for the Appellant" had the decision under review not been made against the weight of evidence. 2. Further, in that case the Appeal Panel sought to encapsulate the manner in which courts, including the High Court, had approached the application of a ground of appeal asserting that the decision under review was against the weight of evidence. At [77](2) the Panel said (omitting case citation): "The decision under appeal can be said to be 'against the weight of evidence'…where the evidence in its totality preponderates so strongly against the conclusion found by the tribunal at first instance that it can be said that the conclusion was not one that a reasonable tribunal member could reach." 1. As the Panel in that case also observed, even where the requirements we have last identified are found to be satisfied, it remained necessary to consider whether leave to appeal under s 80(2)(b) should be granted. So much follows from the opening words of cl 12(1) of Sch 4 by which an Appeal Panel "may grant leave" (added emphasis) if the requirements of the clause are otherwise satisfied. The Panel then proceeded to identify the circumstance in which it would be appropriate to grant leave when applying the statutory provisions. The circumstances identified at [84] included: "…an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; … ." Challenge to fact finding: error is disclosed 1. It is clear from the reasons that the Member made his finding, in the context of ss 259 and 260 of the ACL (NSW), that there was a "major failure" to comply with the statutory warranties in ss 54 and 55 of the ACL (NSW), having regard to the totality of defects that he identified. He did not, in terms, weigh the significance of the itemised defects relative to a campervan that was 23 years old at the time of purchase from the Appellant and which had an odometer reading of 273,379km. Those factors do not seem to have been addressed when considering the "acceptable quality" of the campervan in the context of s 54 of the ACL (NSW). 2. While the Reasons do not weigh the significance of the individual defects that are claimed, a consideration of those Reasons leaves little doubt that a primary item of concern was the condition of the brakes of the campervan. It is the manner in which that issue is addressed that founds a significant component of the Appellant's submissions to us. 3. At [6], the Member accepted that a brake defect is not identified in the email of 4 May from Ms Morgan to the Appellant. We have earlier identified the content of that email. The Member accepted the oral evidence of Ms Morgan that she did not raise the topic at that time because she had intended to raise it when she returned to Sydney to engage directly with the Appellant's employees. The Member also records at [6] that in her written statement, Ms Morgan did identify defects raised with the Appellant upon her return to Sydney but did not there identify any concern about brakes. Nonetheless, she maintained in her oral evidence that brake defects were raised by her on that occasion. Her evidence did not suggest that any attention was then given by the Appellant to the brakes. The Appellant denies that any brake defect was raised when Ms Morgan attended the Appellant's premises with the campervan on 13 May 2016. 4. The fact that the Member accepted the oral evidence of Ms Morgan in this regard is obviously important. As we have earlier recorded, at [12] the Member stated that "on balance" the state of the brakes was raised with the Appellant by Ms Morgan when she attended the Appellant's premises on 13 May. 5. When ultimately accepting at [19] that the 26 May "brake failure" may not have occurred by reason of any identified defect, the Member nevertheless referred to the "problem with the brakes" having been notified prior to the brake failure occurring (at [19]). While the oral evidence of Ms Morgan as to that prior notification was accepted, in so doing the Member was required to address the accuracy of that evidence when evidence tendered by the Appellant strongly tended to contradict the probability of either the defect existing at all when the campervan was purchased or any such defect having been reported to the Appellant on 13 May. At least, some reasoning was required to explain why that evidence did not displace the Member's preference for the oral evidence given by Ms Morgan, recalling the identification of that defect when it was not recorded in any prior electronic communication with the Appellant and not recorded in the written statement she prepared for the hearing. Particularly is the absence of any such reasoning significant, given the centrality of the defective brake issue as one of the primary issues directed to the existence of defects, justifying an order that the purchase price of the campervan be refunded. That contradictory evidence took a number of forms. 6. First, the vehicle inspection report and safety check obtained for the purpose of registering the campervan on 12 April 2016 shows that the vehicle was passed for registration at that time, that is, three days before the sale of the campervan to Mr Johnson was completed. In the absence of contrary evidence (and there was none), it should properly be assumed that such a critical element of a vehicle's safety would be tested by an RMS examiner for the purpose of passing it as suitable to be registered for public road use. That assumption does not appear to have been considered in the Reasons. 7. Second, the vehicle was taken to Gadgets Caravan Service on 19 May for correction of "faults" then identified. The invoice provided for that work does not identify any work or even an inspection of the brakes. Had a concern been held about brake function at that time, it would be reasonable to assume that the concern would have been raised with that repairer. There is no evidence that any such concern was raised. Moreover, as the repairer was able to remove and replace an accelerator cable, we assume that the firm was capable of at least inspecting brakes if requested to do so. 8. The significance of that visit to Gadgets Caravan Services on 19 May 2016, in the context of concern said to have been held about the brake function of the campervan, sufficient to warrant the claimed reporting of it to the Appellant only six days earlier, is not addressed in the Reasons. 9. Third, the service conducted by PTJ's Mechanical Service on 24 May 2016 is particularly significant. As reflected in the invoice issued for work on that date, part of the service was a check of the campervan's brakes. Apart from that check, none of the other items listed on the invoice identify any component or part then supplied to address brake function. Again, in the absence of contrary evidence (and there was none), the proper inference to be drawn from the invoice is that the brake check revealed the brakes to be functioning satisfactorily. 10. At [14] of the Reasons, the Member acknowledges that the Appellant had relied upon that service and brake check as indicating that there was no brake defect at the time the vehicle was sold. However, to discount its significance, the Member relied upon the oral evidence of Ms Morgan that the service "was not a major one", observing that the narrative in the invoice supported her opinion that "it was not an extended examination of the vehicle's brakes". 11. There are, with respect, problems with that reasoning. If a concern was held by Ms Morgan that the brakes were, at that time, defective, it would be expected that she would raise her concern with the organisation servicing her vehicle. There is no evidence that she did so. Moreover, the basis upon which the Member accepted the conclusion of Ms Morgan that the service did not involve an extended examination of the vehicle's brakes and the logical consequence of that conclusion for an existing unspecified defect in the vehicle's braking system is not disclosed in the Reasons. 12. If, on the contrary, it is suggested that brake defect was raised with PTJ's Mechanical Service, the return of the vehicle following its service would rationally lead to the assumption that any defect discovered had been remedied. There is no evidence that the repairer advised Ms Morgan of any concern in that regard. By that time, the campervan had been driven in excess of 5,100km since being sold by the Appellant. 13. Two days after the brake check by PTJ's Mechanical Service, Ms Morgan experienced brake failure or brake fade while driving down Macquarie Pass. In the context of the objective evidence available, it is not readily apparent why the assumption should be made that this was the consequence of, or at least a manifestation of, a defect in the braking system at the time at which the campervan was purchased from the Appellant. Yet, that seems to have been the assumption made. 14. Fourth, the campervan was again inspected for the purpose of registration by an authorised RMS examiner on 14 September 2016. That was the occasion upon which the campervan was taken to NRMA Motorserve by or on behalf of Mr Johnson. By that time, no work had been undertaken on the brakes since the brake failure on 26 May 2016. The RMS inspection and safety check report passed the vehicle for registration. Significantly, the RMS report had attached to it a print out of brake tests undertaken at the time. No evidence was led to indicate that those tests demonstrated poor brake function. 15. The position reflected in the RMS report is confirmed in the contemporaneous "pre-purchase" report by NRMA Motorserve after carrying out inspection of the campervan. We have earlier referred to that report and recorded the satisfactory finding in respect of all brake components. On its face, that report is inconsistent with a finding that there was an unspecified brake defect in the campervan at the time of sale and which, if the evidence of Ms Morgan is to be accepted, logically would still be evident at the time of the September inspection. 16. We add that the September report is also inconsistent with a finding of some of the other defects claimed by Mr Johnson and said by the Member to breach the statutory warranties. Rust was addressed, in the format adopted by the report, as being "satisfactory" both in the exterior examination of the campervan and by examination of the "underbody" which included "frames and members". The general comment upon the campervan, appearing on the first page of that report, states: "This vehicle is in reasonable condition and fair mechanical condition considering its age with repairs required." That report is not identified by the Member in his Reasons. 1. Fifth, there is the further report of NRMA Motorserve of 30 January 2017, reflecting the "40 Point Safety Check" of the campervan. We have earlier recorded the findings in that report, indicating that front and rear brakes to have "50-75% approximately remaining" capacity. While the presence of rust is identified in that report, it is to be remembered that the vehicle had been parked in the open, in a coastal location, and virtually unused since the brake-failure incident on 26 May 2016. 2. Sixth, although less significant than the matters already discussed, Ms Morgan acknowledged in her written statement to the Tribunal that she was an inexperienced driver who had only gained a provisional driver's licence in November 2015 and that she had not previously driven a vehicle carrying the weight of the campervan (see paras 49-50 of that statement). According to her evidence, she was the driver of the campervan during April and May 2016 because Mr Johnson was, at that time, lawfully unable to drive. Her inexperience may not only explain her description of a brake defect but also explain overuse of the brake during the Macquarie Pass descent on 26 May leading to her description of a brake failure. It will be recalled that the Member appeared to acknowledge at [19] the possibility of overuse of the foot brake on that occasion as explaining the brake failure at that time. 3. The objective evidence that we have identified, all of which was available to the Tribunal, significantly challenges the substance of Mr Johnson's claim, whatever the subjective belief that he or Ms Morgan may have held as to the condition of the campervan, particularly its braking system. It is documentary evidence that, in the main, appears not to have been addressed or critically assessed by the Member when reaching the conclusion that he did. That observation is particularly pertinent in the context of the finding at [16] that the defects, of which the alleged brake defect was a significant component, constituted a major failure to meet the statutory guarantees provided in ss 54 and 55 of the ACL (NSW), thereby founding the order made for full refund of the purchase price paid for the campervan. 4. It is understandable that the significance of the evidence to which we have referred may not have been appreciated in circumstances where the Member was required to address a considerable volume of documentary evidence, oral evidence and submissions of litigants in person, all in the space of a day on which he also delivered his reasons for decision. Nevertheless, we are bound to determine the appeal conformably with the Tribunal Act and the principles applicable to its application that we have earlier discussed. 5. Applying those principles, it seems to us that the evidence we have discussed, considered in its totality, does preponderate so strongly against the conclusion found that it is not one that could reasonably be reached. In circumstances where the finding of a major failure to comply with the statutory guarantees has been made against the weight of the evidence led before the Tribunal, we conclude that had that not been so, there was a "significant chance which was fairly open" that the Appellant would have achieved a different or more favourable result at the conclusion of the hearing then an order requiring the payment of a full refund of the purchase price to Mr Johnson as well as the compensatory order that was made. The failure to address the evidence that we have identified, weighing heavily against the ultimate finding and orders made, seems to us to result in an injustice that is readily apparent, given that the findings as to a defect in the brakes of the campervan and some of the other defects were central to the Tribunal's decision. 6. For these reasons, we propose to grant the Appellant leave to appeal under s 80(2)(b) of the Tribunal Act and to uphold the appeal. Disposal of the appeal 1. Section 81(1) of the Tribunal Act affords us with a broad discretion as to the manner in which we may dispose of the appeal. That discretion includes deciding the matter for ourselves. Regrettably, that is not the course that, in the circumstances of this case, we are prepared to take. 2. The determination of Mr Johnson's claim requires a reassessment of the evidence. That cannot reasonably be undertaken when there is both documentary and oral evidence to be considered, particularly where the weighting of that evidence is important. We do not have the benefit of seeing witnesses or considering the submissions of the parties in the context of the matters we have identified that, in large measure, were not given measured consideration before the Member. 3. In the circumstances, it is necessary that we remit the matter for rehearing. Without intending to pre-empt the decision that might be made on hearing the remitted proceedings, we do observe that the Appellant was prepared to accept responsibility for any items properly requiring replacement or repair that were either notified or reasonably required during the dealer warranty period. It is therefore to be hoped that the parties might reach a sensible resolution of the claim so as to avoid the expense and delay of a further hearing before the Tribunal. Orders 1. For the reasons stated we make the following orders: 1. Grant leave to appeal; 2. Appeal upheld; 3. Set aside the decision of the Tribunal made on 26 June 2017; 4. Remit the proceedings to the Consumer and Commercial Division of the Tribunal for determination according to law. ********** ​ 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: 01 May 2018