Christopher Harrison v Scott Devlin [2017] NSWCATCD 104

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Christopher Harrison v Scott Devlin [2017] NSWCATCD 104 Hearing dates: 30 October 2017 Date of orders: 13 November 2017 Decision date: 13 November 2017 Jurisdiction: Consumer and Commercial Division Before: B Shipp, Senior Member Decision: (1) The Respondent is to pay the Applicant the sum of $4,200. This amount is due and payable 2 weeks after the date of these orders. (2) The Applicant shall deliver possession of the vehicle to the Respondent on or before 2 weeks after the date of these Orders. (3) For the purpose of these orders, the Respondent is to arrange and pay for the collection of the vehicle. Catchwords: Acceptable Quality Legislation Cited: Fair Trading Act 1987 (NSW) Australian Consumer Law Motor Dealers and Repairers Act 2016 Category: Principal judgment Parties: Mr Christopher Harris (Applicant) Mr Scott Devlin (Respondent) Representation: The Applicant by phone The Respondent in person File Number(s): MV 17/32082 Publication restriction: Nil

REASONS FOR DECISION

Background and Jurisdiction 1. The Applicant purchased a 1996 Mitsubishi Pajero ("the vehicle") from the Respondent on 13 May 2017. The Applicant alleges that he became aware of problems with the vehicle on the same day on the drive back to his then residence near Hay, NSW. He believes the vehicle was unroadworthy at the time of sale, and he seeks to return the vehicle and obtain a full refund. 2. The Respondent denies that the vehicle was unroadworthy, suggests that there was a problem with the water pump only, and that he had agreed to purchase a replacement part as a matter of goodwill. He does not agree to accept a return of the vehicle or to pay any amount of money to the Applicant. 3. The Tribunal's Consumer and Commercial division has jurisdiction in relation to matters arising under various legislation including the Fair Trading Act 1998 (NSW)(CCA) which in turn may raise issues rights under the Australian Consumer Law (ACL). The ACL was incorporated into the law of New South Wales by section 28(1) of the Fair Trading Act 1987 (NSW) ('FTA'). The ACL (NSW) consists of Schedule 2 of the Competition and Consumer Act 2010 (Cwth), and the regulations under section 139G of that Act (FTA section 27). 4. The ACL applies to create rights at law in consumers that fall within the terms of the ACL including the consumer guarantee provisions in sections 54-60 of Part 3-2 ACL. Whilst the ACL creates a cause of action at law and a range of remedies for parties, it does not of itself confer any jurisdiction on this Tribunal to hear those actions and provide those remedies. 5. Section 79J FTA gives the Tribunal jurisdiction to hear claims falling under the FTA. Section 79D of the FTA defines a 'consumer' to include a natural person to whom a supplier has supplied or agreed to supply goods or services, whether under a contract or not. The Applicant meets this description. 6. The claim arises from the supply of goods to the consumer (under a contract or not), and constitutes a claim by the consumer for the payment of a specified sum of money (FTA section 79E). The goods to which the claim relates were supplied in NSW (FTA section 79K). The claim was made within the period of time allowed in Section 79L FTA. I also note that the Applicant is now a resident of New Zealand, but that both he and the Respondent were residents of NSW at the time of sale of the vehicle, and that the Applicant remained a resident of NSW when he made his application. 7. The claim is therefore one maintainable under the FTA but as such is subject to the Tribunal's monetary jurisdiction which is limited by section 79S FTA to making orders for the payment of no more than the prescribed amount. The Applicant's claim is within the monetary limits prescribed.