Nikoiee v Marshalls Sydney Pty Ltd [2018] NSWCATCD 63

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Nikoiee v Marshalls Sydney Pty Ltd [2018] NSWCATCD 63 Hearing dates: 10 August 2018 Date of orders: 29 October 2018 Decision date: 29 October 2018 Jurisdiction: Consumer and Commercial Division Before: J A Ringrose, General Member Decision: (1) The applicant is to return her 2017 model Mercedes Benz C200 two door Cabriolet registered number DMZ 34N to the respondent and transfer ownership over to it within 14 days of the date of these orders.

(2) Immediately upon return and transfer of the vehicle the respondent is to pay the applicant the sum of $70,000.00.

(3) The respondent is to pay the applicant's costs on a party/party basis within 14 days after an agreement or assessment under Pt 4.3 Div 7 of the Legal Profession Uniform Application Act 2014. Catchwords: Australian Consumer Law – remedies for breach of consumer guarantees – whether a major failure has been established – failure to diagnose and rectify faults – award of costs – whether it is necessary to establish special circumstances where r. 38 applies. Legislation Cited: Australian Consumer Law 2010 Civil and Administrative Tribunal Act 2013 Competition and Consumer Act 2010 Cases Cited: Australian Rong Hua Fu Pty Ltd v Ateco Automotive [2015] VCAT Cary Boyd v Agrison Pty Ltd [2014] VMC 23 at 50 Goldiwood Pty Ltd v ADL (Aust. Pty Ltd) [2014] QCAT 38 Lataudis v Casey [1990] HCA 58 Oshlock v Richmond River Council [1998] 193 CLR 72 Safi v Heartland Motors Pty Ltd t/as Heartland Chrysler [2016] NSW CATAP 80 Category: Principal judgment Parties: Noshin Nikoiee (Applicant) Marshalls Sydney Pty Ltd (Respondent) Representation: Kazem Elkheir, solicitor of Birchgrove Legal appeared for the applicant