Pittman v Central West Autos Pty Ltd [2018] NSWCATCD 10

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Pittman v Central West Autos Pty Ltd [2018] NSWCATCD 10 Hearing dates: 2 March 2018 Date of orders: 23 April 2018 Decision date: 23 April 2018 Jurisdiction: Consumer and Commercial Division Before: A Suthers, Senior Member Decision: The Application is dismissed. Catchwords: CONSUMER LAW – application for refund of purchase price - alleged failure to comply with consumer guarantee under Australian Consumer Law (NSW) – acceptable quality – fitness for purpose - whether major failure – alleged misrepresentation – alleged breach of contract Legislation Cited: Fair Trading Act 1997 (NSW) Australian Consumer Law (NSW) Civil and Administrative Tribunal Act 2013 Category: Principal judgment Parties: Joanne Pittman ("the Applicant") Central West Autos Pty Ltd ("the Respondent") Representation: The Applicant, in person, assisted by her husband Mr Robert Pittman

Ms Stapleton, authorised employee for the Respondent File Number(s): MV 18/00252

Reasons for decision

Application 1. The Applicant, Ms Joanne Pittman, has applied to the Tribunal for an order that the Respondent, Central West Autos Pty Ltd, be ordered to repair or replace a motor vehicle she says is faulty, to the value of $5,000.00. 2. The Applicant bought a 2005 Holden Astra from the Respondent on 23 February 2017. The vehicle, due to its age, did not qualify for a statutory warranty under the Motor Dealers and Repairers Act 2013. 3. The Applicant alleges that a subsequent contractual warranty was agreed between the parties. The Respondent denies this. 4. The vehicle passed a New South Wales safety inspection on the 21st of February 2017. 5. The inspection report was in evidence before me. 6. The Applicant bought the vehicle sight unseen. She relied, she says, on photographs and verbal descriptions given to her of the vehicle by the Respondent's employees. Much of the negotiation was conducted for the Applicant by her Husband, Mr Robert Pittman, who also conducted her applications before the Tribunal on her behalf. 7. There is a dispute between the Applicant and Respondent as to the nature of the disclosure which was made to the Applicant about paint and panel damage to the vehicle. 8. Upon the Applicant travelling some distance to collect the vehicle from the Respondent, she and her husband were able, for the first time, to observe the full extent of the panel damage in person. 9. That damage, which on any version had at some time included a full depth hole through the rear, left hand side quarter panel (near the wheel arch) was unacceptable to them. The evidence for the Applicant, which I accept, is that Mr Pittman told the Respondent that, notwithstanding any contractual agreements made before that time, the Applicant would not accept the vehicle in the condition in which it was initially delivered. 10. The Respondent then agreed to repair the damage to the rear, left hand quarter panel at its expense. The Applicant says that the Respondent at that time also offered a three-month contractual warranty on the vehicle, although this is denied by the Respondent. 11. By the time the Applicant returned the vehicle to the Respondent's nominated panel repairer, she had also noticed a rattle in the front of the vehicle, near the wheel area. The Respondent agreed to have that issue investigated once the panel work been completed. 12. The panel repairs to the left-hand rear quarter panel were completed by a panel repairer, external to the Respondent, at the Respondent's cost. 13. On the same day, the vehicle was taken to the same business who had prepared the initial safety certificate for the Respondent on the vehicle. It was discovered that the 'link rods' had some movement. 14. The evidence establishes that the vehicle had by then travelled 3746 kilometres since purchase. 15. Whilst there is no evidence before me that the link rods required replacement for roadworthiness or safety, in subsequent negotiations between the Applicant and Respondent, the Respondent agreed to replace the link rods for the Applicant at its cost. It did so. 16. Over two weeks later, some six weeks after the purchase and by which time the vehicle had travelled over 4,400km since purchase, the 'check engine light' illuminated on the vehicle. 17. The transmission went into 'limp mode.' The applicant took the vehicle to their own preferred repairer, who prepared a quote for the repair of the vehicle. 18. The Respondent offered to provide the parts necessary to repair the transmission at no cost to the Applicant, with the Applicant to bear the cost of labour for that repair. It did so. The transmission was not repaired 19. At some point later, the Applicant's evidence indicates that water entered the transmission, damaging it, and that the vehicle cannot now be driven. 20. The Applicant bought her application, which was determined by another Member on 30 August 2017. The learned Member ordered that the Applicant be refunded the entire purchase price and that the vehicle be made available for collection by the Respondent. 21. The Respondent appealed, and, by consent, the matter was remitted before me for determination today, with directions as to the filing of evidence. 22. The reasons of the Appeal Panel note that the "parties have agreed to remit the proceedings for rehearing to allow the provision of expert evidence as necessary due to the fact that the reasons do not adequately explain how the decision was reached".