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". Jurisdiction 1. In accordance with the Civil and Administrative Tribunal Act 2013 and the Fair Trading Act 1987, the Tribunal has jurisdiction to hear and determine an application by a consumer for determination of a consumer claim. 2. A "consumer claim" means a claim by a consumer for a remedy, including the payment of a specified sum of money, that arises from a supply of goods or services, by a supplier in the course of a business, to the consumer. 3. The contract to which the claim relates was made in New South Wales and the goods were supplied in New South Wales. 4. The amount of the claim is within the monetary jurisdictional limit of the Tribunal. 5. The application was made within three years of the supply of the goods, as required by the Fair Trading Act 1987. 6. The Tribunal has jurisdiction to hear and determine the application. Evidence 1. The Tribunal received a bundle of documents from each party, as directed. 2. The only further evidence, of an expert nature, which has been provided since the appeal was concluded, consists of a statement filed by the Applicant from Leven Smash Repairs in a document headed 'Vehicle Report,' at item 8 of the Applicant's filed material. That document, signed by Mr Ian Nobbs, describes the concerns held by the Applicant about the vehicle, other than in relation to its transmission. Those issues, using Mr Nobbs' words and with my attempt to nominate where it is identified by photographs tendered in evidence in brackets are: 1. Damage main front bumper bar reinforcement. (This issue is able to be clearly seen in photograph one on page 29 of the Respondent's filed material and is in effect, clear damage by way of bending and warping of a metal plate linking an area of the vehicle in front of the radiator, observable in that photograph because the plastic bumper bar, indicated at photograph three on page 30 of the Respondent's material, has been removed); 2. Bent L/H (left-hand) front skirt, likely pushed back from impact to the front bumper bar, has left a kink in skirt & could possibly be affecting the front geometry of the vehicle. (Whilst evidence was taken about this issue during the hearing there are no photographs before the Tribunal which evidence this apparent damage); 3. Damaged L/H/R (left-hand rear) door. 4. Poor quality repair to L/H/R (left-hand rear) Qtr (quarter) panel, rounded bodyline not matching the other side and inconsistent through the line; and 5. Faded paint work down the R/H/S (right-hand side) & turret. (in relation to this issue it is conceded by the Applicant that she knew of this aspect of damage to the vehicle before she purchased it. She did not file material in relation to it because it was not thought by her to be of consequence on that basis. Whilst the Applicant suggested that it should have been repaired as a "gesture of goodwill," she did not pursue a claim in relation to this issue or provide evidence which would substantiate that part of such a claim). The Decision Was a contractual warranty supplied with the vehicle, or subsequently negotiated? 1. I am not satisfied that there was any contractual warranty agreed upon between the parties. 2. As described above, the Applicant suggests that Ms Sophie Stapleton, an employee of the Respondent who appeared for it today, offered a contractual warranty for three months, when the Applicant otherwise refused to take delivery of the vehicle, having discovered concerns about the paint and bodywork when she inspected it upon attending the Respondent's premises to take delivery. 3. The reasons that I do not accept that there was any contractual warranty are as follows: 1. It is denied by Ms Stapleton and the Respondent; 2. It is not evidenced in any way through documents provided to me, either contemporaneous or otherwise; and 3. It is in my view inherently unlikely that the Respondent would offer a three-month warranty on unspecified terms, and apparently unlimited as to kilometres, after the agreement between the parties was struck. 1. The Applicant suggests that I may infer the existence of an agreed contractual warranty from an email sent by the Respondent to her, regarding the transmission problem with the vehicle, in the following terms: As a gesture of goodwill, Central West Autos is prepared to cover the part cost for the repairs on your Holden Astra at your chosen mechanic, Price's Service Centre Pty Ltd. This is due to the kilometres driven, 4847, since time of sale. 1. The Applicant says that this is evidence of the Respondent trying to "limit their liability" in relation to the agreed contractual warranty and that I can infer this from reading the email. I cannot. There is no reasonable inference for me to draw from the wording of the email, as contended by the Applicant. 2. Further, if that is how the Applicant construed the document, I am satisfied that she would have responded, pointing out to the Respondent the contractual warranty they had agreed to and querying why it was not being met. In the absence of the Applicant seeking any written confirmation of a contractual warranty, and where the alleged contractual warranty was, unusually, apparently unlimited as to kilometres travelled, I am unable to find that it was agreed, where that is denied by the Respondent. 3. For that reason, and where the damage occurred well after the sale of the vehicle the Applicant's claim for any issues regarding damage to the transmission of the vehicle, it's radiator, or the effect of any leak from the radiator into the mechanical parts of the vehicle must fail. Consequently, I must, if relevant, later deal with the fact that the vehicle is now unusable, at no fault of the Respondent. 4. This leaves the Applicant with the protections afforded to her by the Australian Consumer Law. The law to be applied 1. The learned Member deciding the matter on 30 August 2017 last year, provided to the parties a summary of the law which applies to claims of this nature, at paragraphs 7, 11, 12, 13, 14 and 15 of his reasons. 2. Both parties agree, and I find, that the member correctly identified the relevant law which applies to this claim, in those paragraphs. 3. In summary, Section 54 of the Australian Consumer Law (NSW), "ACL (NSW)", is in the following terms: Guarantee as to acceptable quality (1) If: (a) a person supplies, in trade or commerce, goods to a consumer; and (b) the supply does not occur by way of sale by auction; there is a guarantee that the goods are of acceptable quality. (2) Goods are of acceptable quality if they are as: (a) fit for all the purposes for which goods of that kind are commonly supplied; and (b) acceptable in appearance and finish; and (c) free from defects; and (d) safe; and (e) durable; as a reasonable consumer fully acquainted with the state and condition of the goods (including any hidden defects of the goods), would regard as acceptable having regard to the matters in subsection (3). (3) The matters for the purposes of subsection (2) are: (a) the nature of the goods; and (b) the price of the goods (if relevant); and (c) any statements made about the goods on any packaging or label on the goods; and (d) any representation made about the goods by the supplier or manufacturer of the goods; and (e) any other relevant circumstances relating to the supply of the goods. (4) If: (a) goods supplied to a consumer are not of acceptable quality; and (b) the only reason or reasons why they are not of acceptable quality were specifically drawn to the consumer's attention before the consumer agreed to the supply; the goods are taken to be of acceptable quality. (5) If: (a) goods are displayed for sale or hire; and (b) the goods would not be of acceptable quality if they were supplied to a consumer; the reason or reasons why they are not of acceptable quality are taken, for the purposes of subsection (4), to have been specifically drawn to a consumer's attention if those reasons were disclosed on a written notice that was displayed with the goods and that was transparent. (6) Goods do not fail to be of acceptable quality if: (a) the consumer to whom they are supplied causes them to become of unacceptable quality, or fails to take reasonable steps to prevent them from becoming of unacceptable quality; and (b) they are damaged by abnormal use. (7) Goods do not fail to be of acceptable quality if: (a) the consumer acquiring the goods examines them before the consumer agrees to the supply of the goods; and (b) the examination ought reasonably to have revealed that the goods were not of acceptable quality. 1. It is not in contest, and I find that: 1. the vehicle was supplied by the Respondent to the Applicant in trade and commerce. 2. The Applicant is a consumer, within the meaning of the ACL (NSW), as the goods were of a kind ordinarily acquired for personal, domestic, or household use or consumption. 3. The supply did not occur by way of sale by auction. 4. The guarantee that the vehicle was of acceptable quality, in accordance with Section 54 of the ACL (NSW), applies. Was the vehicle of 'acceptable quality' when it was supplied to the Applicant and subsequent repairs, as agreed, were undertaken? 1. The issues of concern to the Applicant left for consideration are: 1. the state of the paint and panel work on the rear left hand side of the vehicle, after it was repaired at the expense of the Respondent; 2. the damage to the front reinforcing bar behind the bumper; and 3. the damage to the left-hand 'skirt.' 1. I must determine whether these issues, taken either individually or as a whole, constitute a breach of the guarantee provided by s54 ACL (NSW) that the vehicle was of acceptable quality. The state of the paint and panel work on the rear left hand side of the vehicle, after it was repaired at the expense of the Respondent 1. It is uncontroverted that the Applicant or her husband told the Respondent, before buying the vehicle, that she wished to have it "vinyl wrapped". It was for this reason that they accepted the fading of the paintwork on the right-hand side of the vehicle and the other minor damage to the right-hand side panel work, which was apparent to them from the photographs provided prior to the sale of the vehicle being agreed upon. 2. Whilst I have no expert evidence, I suggested to the parties, and they did not disagree, that vinyl wrapping involves tightly stretching a thin sheet of vinyl material over the vehicle, such that it would stick to it and provide a uniform surface which covered the original paint and panel work. 3. Without expert evidence I could not be satisfied that the repairs as they are to be observed in exhibit 1, a colour photograph the Applicant says represents the state of the rear left hand side of the vehicle after it was repaired at the Respondent's behest, was so defective as to render the not of acceptable quality. 4. The Applicant has provided a letter sent by email by "Adrian" of Mountain Signs, apparently a business in Mudgee who conducts vinyl wrapping. It is dated 17/11/2017. 5. That email, addressed to Mr Pitman, says: On inspection of the photos sent, [We] are unable to install 3M wrap film over the damaged area of this vehicle, [The] film to be used for wrapping vehicles will not adhere to broken paint or paint filled areas. Nor would we be able to give a warranty for the completed installation on such poor quality panel repair. 1. The difficulty I have in relation to this aspect of the evidence has many facets, in that: 1. The author of the document is not appropriately identified; 2. The photographs which he observed to make his assessment are not identified and I am unable to say whether, for example, it relates to an assessment of the paint and panel damage fixed by the Respondent's nominated repairer or some other aspect of the vehicle; 3. If it is some other aspect of the vehicle, I do not know whether it relates to an aspect of damage or deterioration of the vehicle which has occurred since it was purchased; 4. The author has, in any event, not seen the vehicle and was not made available to give evidence. 1. I find that: 1. The Applicant told the Respondent they wanted the vehicle to be vinyl wrapped; 2. Had she accepted the vehicle sight unseen and using only the descriptions and photographs supplied by the Respondent, then it would have been a failure of the statutory guarantee for the vehicle to have been presented to her in the condition evidenced by its initial state, including a full depth hole in the left hand rear quarter panel, as this would clearly constitute an unacceptable defect; 3. In remedying its obligations under the guarantee, though, the Respondent arranged a repair to the left-hand rear quarter panel which was undertaken by an independent qualified panel beater; 4. The only reliable evidence I have about the result of that repair consists of a photograph from which I can discern little or no ongoing reason for concern (exhibit 1) and Mr Nobbs description of the repair as being "poor quality". 1. In those circumstances, and where there are the deficiencies identified above in the evidence contained in the email from Mountain Signs, I cannot be satisfied that the state of the paint and panel work after it was repaired by the Respondent was a defect which rendered the vehicle not of acceptable quality under the Australian Consumer Law, either taken on its own or with the other concerns of the Applicant which will be dealt with later in these reasons. 2. I cannot be satisfied as to that aspect of the Applicant's claim. 3. I should go on to note, for completeness, that even if I was so satisfied there was no evidence that the issue could not be remedied or as to the cost of such further repairs, so that damages might be assessed. The damage to the front reinforcing bar behind the bumper and the damage to the left-hand 'skirt.' 1. At the hearing, I raised with the Applicant my preliminary view that the letter from Leven Smash Repairs did not go so far as to meet the evidentiary burden she faced as Applicant to satisfy me of the matters of complaint on these issues. 2. Despite this being a re-hearing of the matter and earlier directions having been made by the Appeal Panel as to the filing of material, I gave her the option to seek leave to introduce oral evidence from the author of that document if he was available by telephone at the hearing. She did so. 3. I explained to the Respondent's representative that she may object to the evidence being received. There was no objection from the Respondent. 4. On that basis, the Tribunal took oral evidence from Mr Ian Nobbs by telephone at the hearing, in relation to his letter. 5. From the letter written by Mr Nobbs and his oral evidence, which was effectively unchallenged by the Respondent, I am satisfied that: 1. Mr Nobbs is a qualified panel beater, with many years' experience in the industry. 2. The damage to the reinforcing plate behind the bumper bar, which is obvious from examinations of the photographs, such as photograph one on page 29 of the Respondent's material, must be the result of a reasonably significant impact on the front end of the vehicle; 3. The plastic bumper which was on the vehicle at the point of sale (evidenced at photograph three on page 30 of the Respondent's material) would not be the bumper which existed on the vehicle when the impact occurred, because it would have been badly damaged in the collision; 4. That the vehicle has therefore had repair work undertaken since the impact occurred; 5. That the repair has not been completed to industry standard, in that the bar described was left in an obviously warped and buckled state; 6. That there is also damage to another part of the vehicle, described by Mr Nobbs as the left-hand front skirt, which is not able to be observed in any of the photographs tendered before the Tribunal but which, in all likelihood, occurred in the same incident; and 7. That whilst Mr Nobbs acknowledged that he could have, he did not investigate whether the damage actually affected the geometry of the vehicle. 1. Mr Nobbs, knowing what he knows as a qualified panel repair assessor, told the Tribunal that he would not "give that car to my wife or daughter to drive." 2. Against that evidence, it is also the case that the vehicle passed an authorised safety report prior to sale. Mr Nobbs accepted that he was unqualified to comment on the roadworthiness of the vehicle. 3. The Respondent had filed a statutory declaration by Mr Graeme Sharp, who prepared the safety report, and stated that when it was conducted the vehicle was "within the RMS requirements." 4. Upon subsequently viewing the photographs of the front end of the vehicle, disassembled, and showing the lower front support bent, Mr Sharp's view was that it "would not affect the car's driving or safety or handeling (sic)." 5. Taking the evidence of Mr Nobbs and Mr Sharp as a whole, I am satisfied that the vehicle has front end damage which has been repaired, but not to industry standard. 6. I have no evidence that it renders the vehicle unroadworthy, dangerous or otherwise unfit for the purpose for which it was purchased. It is, though, undoubtedly a defect. 7. As Mr Pittman, for the Applicant, asked me to take particular note of, he told the Respondent (at page 16 of his filed material) that he could get "a quote to fix the car properly. Then I'm going to have a proper road (sic) roadworthy done on it." Unfortunately, this has not occurred. 8. With some evidence that the damage rendered the vehicle in any way unroadworthy, unsafe, or even less amenable to drive than a similar vehicle without such a defect, I might readily be satisfied that it failed to meet the statutory guarantee that it be of acceptable quality. However, the only evidence available to me is that the vehicle, even with that damage, is safe and roadworthy. 9. Whilst I accept that Mr Nobbs' evidence indicates that he, who might be considered a reasonable consumer, fully acquainted with the state and condition of the vehicle including the hidden defects, might not regard the vehicle as acceptable, there was no evidence that he had regard to the matters in subsection (3) of s 54 ACL (NSW). 10. This is a second-hand vehicle which was over 11 years old. The price of the vehicle is relevant, as it was modest. There was no evidence before me that the cost of the vehicle was comparable to others of a similar make, model and age, which might be inferred to be free of hidden defects. I must also consider the other circumstances relating to the sale, including the other accommodations made by the Respondent to the Applicant after the initial contract was concluded, which included providing parts for the repair of the transmission and replacing the 'link rods." 11. It is my view that a reasonable consumer, with knowledge of the hidden defects and weighing the nature and cost of the vehicle, could and would only make a decision that the vehicle was unacceptable if they had some cogent evidence that the damage created a manifest difficulty with the fitness of the vehicle for its intended purpose or indicated that it did not represent value for the amount to be paid. There is no such evidence before me. I was not satisfied that I should make a finding that the vehicle was not of acceptable quality. 12. The parties, even where they are unrepresented, still have some onus to take care for the presentation of their own case. There is nothing which disentitles any party in proceedings before the Tribunal from obtaining legal advice about the preparation of their claim, even though they may be unrepresented at the hearing. The Applicant was on clear notice from the Appeal Panel that further expert evidence was required. 13. In those circumstances, I was not satisfied that the Applicant should be offered an opportunity to adjourn the matter, to seek to adduce further evidence. 14. I am obliged to deal with the matter in a way which is not only just, but also quick and cheap. This matter has already been before the Tribunal on two other occasions. The parties have had an opportunity to gain an understanding of the relevant issues for determination and how they might be proved. Additionally, the vehicle has had subsequent catastrophic mechanical failure, which cannot be sheeted home to the Respondent. 15. In those circumstances, then, I am satisfied that I should dismiss the application. A Suthers Senior Member Civil and Administrative Tribunal of New South Wales 23 April 2018 ********** 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: 02 July 2018