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 REASONS FOR DECISION 1. By notice of appeal filed on 15 January 2019 the appellant (Mr Azad) appeals against a decision of the Tribunal which he received on 18 December 2018. That decision involved a refusal to set aside a decision made in the absence of Mr Azad on 7 December 2018. 2. The claim of the respondent (Ms Schaaf, the applicant at first instance) was a motor vehicle consumer claim. Ms Schaaf had purchased a second-hand motor vehicle from Mr Azad on about 16 October 2017. Ms Schaaf found that the vehicle had defects, and was not as represented by Mr Azad in respect of certain features of the car and also as to its year of manufacture. 3. On 7 December 2018 the Tribunal ordered Mr Azad to pay Ms Schaaf the amount of $9384 within seven days. Further, Mr Azad was ordered to accept Ms Schaaf's return of the vehicle. The Tribunal found: that Mr Azad had breached section 54 of the Australian Consumer Law, as the vehicle was not of acceptable quality; that Mr Azad had refused and failed to repair the vehicle, entitling the applicant (respondent) to reject the vehicle; and that Ms Schaaf was entitled to be paid a refund of the money paid for the vehicle. 4. Mr Azad filed an application to set aside the decision of 7 December 2018 on 12 December 2018. That application was refused on 17 December 2018, for reasons published on that date. Grounds of appeal 1. The grounds of appeal are stated to be as follows: – (1) Due to medical reason, the applicant [sic] did not appear at the concerned hearing. (2) Due to medical reason, the applicant [sic] did not have an opportunity to present his case at the said hearing. (3) The decision had been made by the Tribunal in the absence of the pertinent party. (4) This has obviously resulted in the party's case not being adequately put to the Tribunal. 1. Mr Azad acknowledges that a grant of leave to appeal is required to maintain his challenge to the substantive decision to award damages and the refusal of the application to set aside. Mr Azad asserts that the decisions were not fair and equitable; were against the weight of evidence; and that significant new evidence is now available that was not reasonably available at the time of the hearing. 2. Mr Azad states that he does not require an extension of time in which to bring the appeal. 3. That is strictly correct in respect of the decision published on 17 December 2018 to refuse Mr Azad's application to set aside the decision of 7 December 2018. However, to the extent Mr Azad challenges the decision of 7 December 2018, he was at least 6 days out of time as, assuming in his favour that he received notice of that decision on 12 December 2018 (which was the day he applied to set it aside), he was required to file a notice of appeal against that decision by 9 January 2019. As, for reasons outlined below, we have concluded that there is an error of law in the decision of 7 December 2018, we must consider whether to extend time for Mr Azad to file an appeal against that decision. The notice of appeal was filed on 15 January 2019. The delay is short, and explicable by the fact that Mr Azad had lodged an application to set the decision aside. Therefore, pursuant to s 41 of the Civil and Administrative Tribunal Act 2013 (NSW) (the Act), we extend time for filing an appeal against the decision of 7 December 2018 to 15 January 2019. Reply to appeal 1. A reply has been filed by Ms Schaaf. The reply opposes the grant of leave to appeal for the reasons set out. History of the proceedings 1. Mr Azad did not attend the hearing of Ms Schaaf's claim on 7 December 2018. 2. The reasons delivered on 7 December 2018 record that a notice of hearing was sent in accordance with the usual procedure of the Registry and was not returned undelivered. Further, Mr Azad (then respondent) had not complied with directions made on 24 October 2018 that he file and serve his evidence by 14 November 2018. Accordingly there was no evidence before the Tribunal to support any defence to the claim. 3. Following the making of orders on 7 December 2018, Mr Azad filed an application on 12 December 2018 to set aside the orders (MV 18/52947). That application was supported by a medical certificate of a medical practitioner dated 6 December 2018 which stated: "This is to certify that [Mr Azad] is receiving medical treatment and for the period Thursday, 6 December 2018 to Thursday, 13 December 2018 inclusive he will be unfit to continue his usual occupation." 1. Mr Azad, who was overseas and did not attend hearing of the appeal, asserted in his submissions in support of the appeal that he had spoken to the registry of the Tribunal at about midday on 6 December 2018, the day before the hearing, had been told that he needed to provide a medical certificate, and had provided a medical certificate on 7 December 2018. Mr Azad did not support his submissions with sworn evidence of those matters. Nor does the proposition that Mr Azad telephoned the Tribunal Registry appear in the set-aside application filed by Mr Azad on 12 December 2018. The Appeal Panel has obtained the Tribunal files for both the original application (MV 18/42194) and the set-aside application (MV 18/52947). There is no record on the Tribunal's file of any telephone conversation on 6 December 2018. It is possible that Mr Azad did telephone the Tribunal and made enquiries about seeking an adjournment without identifying the particular matter the subject of his query. We do not consider that, even if Mr Azad had established that he had made such a call, that could have affected our consideration of the merits of the appeal. 2. In the course of the hearing of the appeal, Mr Butt, an employee of Mr Azad, who appeared by leave for Mr Azad, informed the Appeal Panel that the medical certificate had been forwarded to the Tribunal at 4.17 pm on 7 December and that Mr Azad had received acknowledgment of its receipt. 3. In accordance with directions made by the Appeal Panel, Mr Butt subsequently provided a copy of the email sent to the Tribunal, the acknowledgement received from the Tribunal, and a screenshot of a "sent items" listing from the email account. The copy of the email did not identify the time or date on which the email had been sent, the "sent items" listing records an email being sent to "ccdsydney" on 7 December but does not disclose the content of the email or the time the email was sent. 4. The acknowledgment from the Tribunal provided by Mr Butt is the standard automatic reply which the Tribunal's email system will send upon receipt of an email at the registry address "ccdsydney@ncat.nsw.gov.au". The email from the Registry records that it was sent at 4.18 pm on 7 December 2018, which tends to confirm that the email attaching the medical certificate was sent at 4.17 pm. 5. Mr Butt confirmed to the Appeal Panel that the medical certificate forwarded on 7 December was the certificate dated 6 December 2018 which was attached to the set-aside application, the content of which is set out above. 6. If Mr Azad provided a medical certificate by email to the Tribunal at 4.17 pm on 7 December 2018, that would clearly, given the Tribunal's usual sitting hours, have been after the award had been made in favour of Ms Schaaf. 7. It follows that the decision maker was unaware of the existence of such a certificate or of Mr Azad's application for an adjournment. Appropriate evidence warranting an adjournment ought to have been placed before the Tribunal to found a basis for an adjournment. Should a grant of leave be made? 1. Mr Azad included with his documentation filed in support of his appeal a more detailed medical certificate, dated 22 December 2018, which stated: This certificate is issued in clarification of a previous certificate that was issued by me on 06/12/2018. Mr Sardar Zulfiqar Azad has been suffering from degenerative disc disease in his lower back with herniated discs disease proven on CT scan of the lumbar spine done on 02/11/2017. His back pain had recently flared up as a result it was advised by me that he should rest from 06/12/2018 to 13/12/2018. It was also advised by me that he should not travel during these days as that could flare up his pain. 1. Mr Azad did not seek to establish that a certificate on those terms could not have been obtained prior to the hearing on 7 December 2018. In any event, even a certificate in those terms may not have been sufficient to warrant an adjournment. In AHB v NSW Trustee and Guardian [2014] NSWCA 40 at [4] and [5], the Court of Appeal said: "4. The Court will not ordinarily act on… a formulaic document [being a medical certificate] and will require an explanation on oath from the medical practitioner of the illness and the reasons for the applicant's inability to attend Court. 5. To obtain an adjournment a party is ordinarily required to attend Court and explain precisely why that adjournment is warranted." 1. That principle has been adopted in this Tribunal: see Hagh v Kong [2014] NSWCATAP 47 at [12]. 2. This appeal is one which is brought pursuant to section 80 (2) of the Act. Where a grant of leave is required, the requirements of Part 6 of Schedule 4 to the Act must be satisfied. That is, pursuant to clause 12 (1) the following applies: 12 Limitations on internal appeals against Division decisions (1) An Appeal Panel may grant leave under section 80 (2) (b) of this Act for an internal appeal against a Division decision only if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because: (a) the decision of the Tribunal under appeal was not fair and equitable, or (b) the decision of the Tribunal under appeal was against the weight of evidence, or (c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with). 1. The principles relating to whether a grant of leave should be made are those set out in the decision of Collins v Urban [2014] NSWCATAP 17. The question which arises in the present application for leave is whether a substantial injustice would result if leave were not granted to Mr Azad. 2. Orders were made by the Tribunal on 24 October 2018 requiring Mr Azad to file evidence. Mr Azad claims he did not receive notice of that order. Again there is no sworn evidence of that fact. Moreover Ms Schaaf informed the Appeal Panel that she had served her evidence, together with a copy of the orders made on 24 October 2018, on Mr Azad in person at his motor dealership on or about 31 October 2018. 3. Mr Azad did not comply with the direction to provide evidence to the Tribunal prior to the hearing date. Even if his claim not to have received notification from the Tribunal were accepted, that would not explain why he did not identify his obligations from the material provided by Ms Schaaf or make enquiries of the Tribunal when he received that material. Mr Azad was aware of the hearing date on 7 December 2018 but failed to provide any material notwithstanding that he must have known he was expected to be prepared for the hearing. 4. In these circumstances, the Appeal Panel concludes that Mr Azad had the opportunity to appear and defend the claim. Mr Azad elected not to do so. Accordingly he should not now be afforded an opportunity to challenge the findings of the Tribunal. 5. As an Appeal Panel of the Tribunal stated in Waters v Waghorn [2016] NSWCATAP 247 at [38]: in the ordinary course, the mere fact that a proceeding is determined in the absence of a party does not constitute a breach of procedural fairness. Further, it is incumbent on a party with notice of a hearing, to make any necessary adjournment applications promptly and with the support of logically probative evidence. In the usual case, a doctor's certificate that merely specifies that the person is "unfit", may not suffice. 1. See also Dobell v Blue Haven Pools And Spas Pty Ltd [2009] NSWCA 77. 2. To the extent Mr Azad seeks to appeal against the order for payment of compensation and the refusal to set aside the original decision, leave to appeal is refused and the appeal must be dismissed. 3. However there is one matter raised by Mr Azad in his submissions in support of his appeal, although not expressed as a ground of appeal, that in our view does constitute an error of law. 4. The evidence before the Member at the hearing established that the vehicle was subject to a finance arrangement with a third party financier (Fin One Pty Ltd). 5. In circumstances where Ms Schaaf's title to the vehicle was subject to a security interest in favour of a third party, it was not appropriate, and, in our view, wrong in law, for the Tribunal to order payment of the assessed amount of $9,384 to Ms Schaaf and return of the vehicle to the dealer, without taking into consideration the interest of the financier and the fact that the dealer could not obtain clear title to the vehicle without ensuring the debt to the financier was repaid. 6. Ms Schaaf indicated to the Appeal Panel that she would not oppose the orders made at the initial hearing being varied to require the assessed amount to be paid to Fin One Pty Ltd directly by Mr Azad and that she understood that she would remain liable for the excess over that amount necessary to ensure release of the security interest in the vehicle. Ms Schaaf also indicated that she was prepared to make payment of such excess, although she was not entirely satisfied with that outcome. 7. We note that in Central West Autos Pty Ltd v Boyd [2016] NSWCATAP 102 where orders had been made requiring repayment of the purchase price to the purchaser of a motor vehicle, an appeal based upon the fact that the vehicle was subject to a security interest was dismissed because no evidence of the security interest had been put before the Member at first instance. Nevertheless, with the agreement of the parties (see [39]), the Appeal Panel varied the orders made at first instance so as to permit the appellant dealer to pay the judgment sum to the finance company, in satisfaction of its obligation to the respondent purchaser. 8. In this case, there was evidence before the Tribunal of the existence of the security interest of Fin One Pty Ltd in the form of the Loan Agreement which provided "the lender will require a Security Interest to be registered over the Secured Asset". 9. It is therefore, appropriate to allow the appeal to the extent of varying the order for payment to permit Mr Azad to pay the judgment sum to Fin One Pty Ltd on account of Ms Schaaf's liability under the loan. The balance of the payout figure will need to be paid by Ms Schaaf. 10. We note that Ms Schaaf did not appeal against the decision to award only $9,384 rather than the full loan amount of $11,854, and that she probably would not have been successful had she brought such an appeal, as she had not put before the Tribunal evidence of the necessary payout figure. 11. We recognise that the orders we will make may not have the result that Mr Azad will obtain clear title to the motor vehicle. Although Ms Schaaf has indicated her intention to make the necessary payments to clear her debt to Fin One Pty Ltd and obtain the release of the vehicle from the security interest of Fin One Pty Ltd, it is not open to the Appeal Panel to make orders requiring her to do so when Fin One Pty Ltd is not a respondent to the proceedings. 12. This is an unfortunate consequence of the way the application and appeal have proceeded. 13. We note that Fin One Pty Ltd had been joined as a party to earlier proceedings brought by Ms Schaaf (as applicant) which had been dismissed in June 2018 by reason of Ms Schaaf's failure to attend a hearing. 14. Had a similar procedure, that is the joinder of Fin One Pty Ltd as a respondent, been followed in these proceedings, the Tribunal might have been able to make appropriate orders to ensure all issues were satisfactorily resolved, for example by making an order pursuant to s 79O(b) of the Fair Trading Act 1987 (NSW) requiring Ms Schaaf to pay the balance owing to Fin One Pty Ltd after Mr Azad has paid the amount he has been ordered to pay. 15. In Buses & 4WD Hire Pty Limited v Richardson [2016] NSWCATAP 24 at [96] an Appeal Panel held that s 8(2)(b) of the Consumer Claims Act 1998 (NSW), which was in similar terms to s 79O(b) of the Fair Trading Act, was not confined to the determination of a consumer claim itself and authorised an order to satisfy a claim, arising from a consumer claim, that may properly be characterised as a claim made by the supplier. The Appeal Panel stated: (1) Section 8(2)(b) does not confine the orders that may be made by the Tribunal in determining the dispute between the parties which is the subject of a "consumer claim". The provisions are broad in their scope and are expressed to cover orders that may be made in favour of the respondent, typically a supplier, for the payment of a specified amount by the claimant consumer. It is difficult to envisage how such orders could be made other than in respect of a consumer dispute where the supplier is owed or is alleged to be owed money. (2) The principles of statutory construction are well settled. The task of statutory interpretation must begin with a consideration of the text itself. The starting point is to consider the ordinary and grammatical sense of the statutory words to be interpreted having regard to their context and legislative purpose: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27, Hayne, Heydon, Crennan, Kiefel JJ, [47]. (3) The text used in s 8 of the CCA should be given its ordinary meaning and there is no justification to read down the provision. The objects of the former CCA were to "provide remedies to consumers concerning the supply of goods and services" and to "simplify and improve dispute resolution for parties involved in consumer disputes" (s 2A). If a supplier did not have reciprocal remedies available when a consumer commenced proceedings in relation to a consumer dispute, this would complicate rather than simplify dispute resolution in such disputes. (4) This is consistent with the legislative scheme set out in Part 5, Schedule 4 of the CAT Act which provides that an issue in dispute which is the subject of a claim is to be determined in one forum, either the court or the Tribunal, depending on which claim is first commenced. The determination made is therefore binding and precludes further litigation on the same issue in another forum. This is to avoid duplication in litigation and conflicting decisions. (5) If s 8(2)(b) was not intended to cover claims by suppliers arising out of a consumer claim, a consumer could bring proceedings in the Tribunal seeking orders under s 8(1)(d), fail in those proceedings and the supplier would have no remedy for recovery because of the terms of cl 5(3). Moreover, any prior claim commenced by a consumer in the Tribunal would be susceptible to transfer to a court based on the argument that this is the only way for the supplier to have its claim properly and fairly determined. This would defeat the objects of the former CCA which the legislature must have had regard to when it enacted Part 5 of Schedule 4. 1. In the circumstances of this appeal, however, all we are able to do is note the statement made to the Appeal Panel by Ms Schaaf that she will make the necessary payments and give Mr Azad liberty to apply to the Consumer and Commercial Division in the event Ms Schaaf does not make the necessary payments to ensure Mr Azad can obtain good title to the vehicle. 2. In the event Ms Schaaf does not make the necessary payments, Mr Azad will be able to obtain clear title to the vehicle by paying the balance himself. In those circumstances it appears to us likely that the Tribunal would have jurisdiction pursuant to s 79O(b) to order Ms Schaaf to reimburse Mr Azad for the moneys effectively paid on her behalf. We do not consider it appropriate to make such an order ourselves, as the possibility that that might be a resolution of the difficulties raised by the Member's decision was not canvassed at the hearing of the appeal, and the parties have not had the opportunity to address the question whether s 79O(b) would authorise such an order. We also note that the evidence available to the Appeal Panel does not identify the necessary payout figure, whereas, after Mr Azad has paid the balance of the amount owing, the Tribunal will be able to make a monetary order in a specific amount. 3. Our orders are: 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. 1. 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). 1. 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. 2. 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. 3. Leave to appeal on a ground other than a question of law is refused. 4. The appeal is otherwise dismissed. ********** 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: 23 April 2019