Vecchio v GM Holden Limited [2018] NSWCATCD 70

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Vecchio v GM Holden Limited [2018] NSWCATCD 70 Hearing dates: 29 October 2018 Date of orders: 13 November 2018 Decision date: 13 November 2018 Jurisdiction: Consumer and Commercial Division Before: B Shipp, Senior Member Decision: The application is dismissed. Catchwords: Consumer Claim – Motor vehicle – Claim against manufacturer – 3 year time limitation - Jurisdiction – when does the cause of action arise Legislation Cited: Australian Consumer Law Fair Trading Act 1987 (NSW) Cases Cited: Do Carmo v Ford Excavations Pty Ltd (1984) CLR 234 Sacks v Hammoud [2016] NSWCATAP 225 Category: Principal judgment Parties: Marisa Vecchio (Applicant) GM Holden Limited (Respondent) Representation: Applicant (self-represented) David Crook (Respondent) File Number(s): MV 18/29072 Publication restriction: Nil

REASONS FOR DECISION

Background and Proceedings 1. The Applicant purchased a new automatic 2012 Holden Barina from the dealer Paul Wakeling Motor Group ("Paul Wakeling") in July 2012 for $21,900. She claims to have had constant problems with the vehicle since the date of purchase, which have not been effectively remedied despite being returned to the original dealer and another authorised Holden dealer since that time. The Respondent is the manufacturer of the vehicle. 2. By application in June 2018, the Applicant seeks orders to return the vehicle and obtain a full refund of the purchase price. 3. I heard the matter on 29 October 2018. The Applicant appeared in person. Evidence was also given on her behalf by Ms Matilda Lymberis and Mr Robert Crawshaw. Mr David Crook appeared on behalf of the Respondent. All parties and witnesses gave their evidence on oath. 4. 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. 5. The Australian Consumer Law (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). The relevant provisions of the ACL commenced on 1 January 2011, and were therefore in force at the time the Applicant purchased the vehicle. 6. 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. 7. The Tribunal is required to identify whether a cause of action is potentially available to the Applicant at law, and then determine whether the Tribunal has jurisdiction to consider this as a consumer claim under the FTA.