Little v Khoury T/As GAS-250 Restorations [2018] NSWCATCD 47

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Little v Khoury T/As GAS-250 Restorations [2018] NSWCATCD 47 Hearing dates: 2 July 2018 Date of orders: 10 August 2018 Decision date: 10 August 2018 Jurisdiction: Consumer and Commercial Division Before: B Shipp, Senior Member Decision: (1) The application is dismissed for want of jurisdiction. Catchwords: Consumer Claim – Jurisdiction – when does the cause of action arise. Legislation Cited: Fair Trading Act 1987 NSW Australian Consumer Law Consumer Claims Act 1998. Cases Cited: Sacks v Hammoud [2016] NSWCATAP 225 Do Carmo v Ford Excavations Pty Ltd (1984) CLR 234 Category: Principal judgment Parties: Kamilla Little (Applicant) Andrew Khoury T/As Gas-250 Restorations (Respondent) File Number(s): MV 17/50067 Publication restriction: Nil

REasons For Decision

Background and Jurisdiction 1. The Applicant is the owner of a 1967 Triumph Spitfire Mk 111 classic car ("the vehicle"). In 2011 she took the vehicle to the Respondent to complete some restoration works. There is dispute about the work agreed to be done. 2. The Applicant claims she has paid a total of $16,000 for the restoration works (approximately double the amount agreed to) and a further $9,388 on parts and accessories which remain in the Respondent's possession. The Applicant claims that, despite the elapse of time, the agreed work has not been completed and its value has been significantly reduced. She alleges that the Respondent has breached several consumer guarantees including a failure to complete the work with due diligence and a failure to complete the work with due care and skill. She also alleges unfair contract terms, misleading and deceptive conduct and false and misleading representations. 3. In November 2017, the Applicant applied for orders that the Respondent do work or provide services to the value of $40,000 including bodywork, paintwork, reassembly, rewiring, trimming and safety requirements due to delay. 4. The matter first came before the Tribunal on 19 December 2017 when it was adjourned for hearing with directions that the parties submit and exchange any documents upon which they sought to rely within a certain timeframe. 5. The matter was listed for hearing on 23 April 2018. The matter was further adjourned on that day as the Member formed the view that the Applicant was seeking potentially different orders to those originally sought. The Member noted that the vehicle was still in the possession of the Respondent, and the Applicant had not been given the opportunity to inspect the vehicle and obtain expert evidence about the value of the work undertaken by the Respondent or the estimate cost to complete the work. The Tribunal made directions for the Respondent to deliver the vehicle and all its parts and accessories to Cumminscars within 2 weeks. The Applicant was given leave to amend the claim and was requested to identify whether she was seeking: 1. A refund in respect of the total amount she has paid less the value of the actual works undertaken by the Respondent or his subcontractors 2. A refund in respect of parts and accessories in the Respondent's possession not delivered to Cumminscars, or 3. The estimated cost to complete all works for which the Applicant had paid. 1. The parties were directed to submit any further documents in support or response to the claim within a further time frame. Further documents were submitted with an extended timeframe requested by both parties and approved by the Tribunal. 2. The amended order sought by the Applicant is for a money order totalling $29,488 and comprising: 1. $10,000 for work not completed 2. $3,369 for [parts and accessories purchased by the Applicant but not delivered by the Respondent] 3. $420 for replacement tyres, as those purchased in 2010 are beyond their warranty period 4. $1,700 for the cost of repairs for damages to the vehicle while it was in the custody of the Respondent 5. $1,900 for incomplete work 6. $12,099 for the cost of assembling parts and accessories to the vehicle. 1. The Tribunal's Consumer and Commercial division has jurisdiction in relation to matters arising under various legislation including Part 6A of the Fair Trading Act (NSW)(FTA) which in turn may raise issues rights under the Australian Consumer Law (ACL). 2. 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). 3. 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 54-57 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. 4. 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. 5. The claim arises from the supply of services 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 services to which the claim relates were supplied in NSW (FTA section 79K). I consider first whether the claim has been made within the period allowed in Section 79L FTA. 6. The claim is otherwise 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.