Napier v Lone Star US Imports Pty Ltd [2019] NSWCATCD 31

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Napier v Lone Star US Imports Pty Ltd [2019] NSWCATCD 31 Hearing dates: 6 December 2018 Date of orders: 03 April 2019 Decision date: 03 April 2019 Jurisdiction: Consumer and Commercial Division Before: A J Halstead, General Member Decision: 1. The proceedings are transferred from the Motor Vehicle List to the General Consumer List.

2. The respondent, Lone Star US Imports Pty Ltd is to pay the applicant, Lynda Napier and Robert Napier $19,839.47 on or before 30 April 2019. Catchwords: Importation of motor vehicle, verbal contract, bailment, agency, place of contract Legislation Cited: Civil and Administrative Tribunal Act 2013 Fair Trading Act 1987 Motor Dealer and Repairers Act 2013 Cases Cited: EMI (New Zealand) Ltd v William Holyman and Sons Pty Ltd [1976] 2 NZLR 566 Soames v London & SW Rly Co (1919) 88 LJ KB 524 Category: Principal judgment Parties: Lynda Napier & Robert Napier (Applicant) Lone Star US Imports Pty Ltd (Respondent) Representation: Solicitor: G Adelstein (Applicant) L Babister (Respondent) File Number(s): MV 18/39862 Publication restriction: Not applicable

reasons for decision

Procedural history 1. The proceedings were commenced by an application made on 13 September 2018 and relate to a claim for damage to a motor vehicle. The matter first came before the Tribunal for conciliation and hearing on 16 October 2018 at Liverpool. The parties both attended that listing in person. In accordance with the Tribunal's usual practice where both parties are present in person, prior to the case being called, the parties were provided with an opportunity to attempt to resolve the dispute cooperatively; this was not successful. The application was then adjourned for hearing on a date to be fixed by the Registrar. Directions were made for the parties to exchange and file documentary evidence they intended to rely upon at the hearing. Leave was also granted for the parties to be legally represented. 2. On 18 October 2018 the Registrar listed the matter for hearing on 6 December 2018 and sent related notices to the parties. 3. On 25 October 2018 the applicant requested an extension of time to comply with the orders made on 16 October 2018. On 30 October 2018 the respondent stated there was no objection to the extension of time request and also applied to the Tribunal for an interlocutory hearing on the issue of jurisdiction. 4. On 2 November 2018 the Tribunal made ex-parte orders extending the timetable for the exchange of evidence and written submissions. The application for an interlocutory hearing on jurisdiction was refused and it was noted the issue could be dealt with at hearing. 5. On 20 November 2018 the applicant requested the proceedings be transferred from the Motor Vehicles List to the General Consumer List. The Registrar replied on 21 November 2018 that the issue would be dealt with by the Tribunal at hearing. 6. A hearing of the application occurred on 6 December 2018 at Liverpool when both parties attended and were represented by legal practitioners. The Tribunal reserved its decision at the conclusion of the hearing.