Azad t/as GT Western Autos v Schaaf [2019] NSWCATAP 99

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Azad t/as GT Western Autos v Schaaf [2019] NSWCATAP 99 Hearing dates: 9 April 2019 Date of orders: 23 April 2019 Decision date: 23 April 2019 Jurisdiction: Appeal Panel Before: D Cowdroy QC ADCJ, Deputy President D A C Robertson, Senior Member Decision: (1) Pursuant to s 41 of the Civil and Administrative Tribunal Act, the time for filing an appeal against the decision of the Tribunal given on 7 December 2018 is extended to 15 January 2019. (2) Appeal allowed in part. (3) The orders of the Tribunal made on 7 December 2018 are varied by the addition of order 1A. 1A The money order made in 1 above, namely that Sardar Azad is to pay $9,384 to Sepiuta Schaaf, may be satisfied by payment by Sardar Azad to Fin One Pty Ltd, on account of Loan No 140966 to Sepiuta Ngaluhaamea Schaaf, within 7 days of publication of the decision of the Appeal Panel. (4) Order 2 made on 7 December 2018 is set aside and the following order is made in its place: 2 Upon payment of the amount the subject of order 1, the applicant (Sepiuta Ngaluhaamea Schaaf) is to make the vehicle available for collection by the respondent (Sardar Zulfiqar Hussain Azad). (5) The Appeal Panel notes that the respondent (Ms Schaaf) has stated that she will make the payment necessary to fully repay the balance of the loan from Fin One Pty Ltd following payment by Mr Azad to Fin One Pty Ltd of $9,384. (6) The Appeal Panel grants the appellant (Mr Azad) liberty to apply to the Consumer and Commercial Division of the Tribunal in the event Ms Schaaf does not make the payment referred to in Order 5 above or in the event that Mr Azad is unable to obtain removal of the registered security interest over the vehicle: PPSR Registration number 201710160094305. (7) Leave to appeal on a ground other than a question of law is refused. (8) The appeal is otherwise dismissed. Catchwords: CONSUMER LAW – consumer guarantees – major defect – rejection of goods – appropriate orders where goods subject to third party financing Legislation Cited: Australian Consumer Law Civil and Administrative Tribunal Act 2013 (NSW) Consumer Claims Act 1998 (NSW) Fair Trading Act 1987 (NSW) Cases Cited: AHB v NSW Trustee and Guardian [2014] NSWCA 40 Buses & 4WD Hire Pty Limited v Richardson [2016] NSWCATAP 24 Central West Autos Pty Ltd v Boyd [2016] NSWCATAP 102 Collins v Urban [2014] NSWCATAP 17 Dobell v Blue Haven Pools And Spas Pty Ltd [2009] NSWCA 77 Hagh v Kong [2014] NSWCATAP 47 Waters v Waghorn [2016] NSWCATAP 247 Category: Principal judgment Parties: Sardar Zulfiqar Hussain Azad t/as GT Western Autos (Appellant) Sepiuta Ngaluhaamea Schaaf (Respondent) Representation: B Butt, employee, (Appellant) Respondent in person File Number(s): AP 19/02224 Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Date of Decision: 07 December 2018 Before: J Alder, General Member; J Levingston, General Member File Number(s): MV 18/42194; MV 18/52947