Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Ali v Revesby Metals Pty Ltd [2019] NSWCATAP 261 Hearing dates: On the papers Date of orders: 17 October 2019 Decision date: 17 October 2019 Jurisdiction: Appeal Panel Before: A P Coleman SC, Senior Member K Ransome, Senior Member Decision: (1) Leave to appeal refused. (2) Appeal dismissed. Catchwords: APPEAL – consumer guarantees - no substantial miscarriage of justice – no point of principle Legislation Cited: Australian Consumer Law Civil and Administrative Tribunal Act 2013 Cases Cited: Collins v Urban [2014] NSWCATAP 17 Texts Cited: None cited Category: Principal judgment Parties: Intaz Ali (Appellant) Revesby Metal Pty Ltd (Respondent) Representation: Solicitors: Appellant (Self Represented) I Kalouche, (Authorised Representative)(Respondent) File Number(s): AP 19/27512 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 20 February 2019 Before: D Ash, Member File Number(s): MV 19/10107 REASONS FOR DECISION 1. The appellant seeks leave to appeal from a decision of the Tribunal's Consumer and Commercial Division made in favour of the respondent rejecting the appellant's claim for the return of a deposit paid for a second hand motor vehicle. 2. In the case of an application for leave to appeal from a decision of the Consumer and Commercial Division of the Tribunal, under clause 12 (1) of Schedule 4 of the Civil and Administrative Tribunal Act 2013 the Appeal Panel only has a discretion to grant leave to appeal if it is satisfied that the appellant may have suffered a substantial miscarriage of justice because: 1. the decision of the Tribunal under appeal was not fair and equitable, or 2. the decision of the Tribunal under appeal was against the weight of evidence, or 3. significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with). 1. In Collins v Urban [2014] NSWCATAP 17 at [76] it was said that a substantial miscarriage of justice may have been suffered where: … there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance. 1. In his Notice of Appeal the appellant identified that he sought leave to appeal on the basis that the decision was not fair and equitable and was against the weight of the evidence. 2. Shortly before the hearing of the appeal, the appellant sought an adjournment of the hearing, or if an adjournment was not granted, for the matter to be determined on the papers, having regard to his written submissions. The respondent did not agree to the adjournment, but agreed the matter could be determined on the basis of the written material filed. In light of the consent of the respondent and being satisfied pursuant to s 50(2) of the CAT Act that the issues for determination in the appeal can be adequately determined in the absence of the parties by considering the material provided by them, we determined that a hearing can be dispensed with and the matter dealt with on the papers. 3. We have therefore had before us the appellant's Notice of Appeal and documents annexed to it filed on 13 June 2019 and the respondent's Reply to Appeal and annexed documents filed on 2 July 2019. No further documents were filed by either party in accordance with directions made by the Appeal Panel on 2 July 2019. 4. For the reasons which follow, we decided to dismiss the appeal. Background 1. The appellant is a refrigeration mechanic. He responded to an advertisement which had been placed on Gumtree by the respondent for a vehicle described as: 1998 Toyota DYNA 300. Near new tyres. Fridge (needs servicing). Registered until 01/07/2019. Drives excellent. Car licence only to drive. 1. The advertisement included a photograph of the vehicle. It is not in dispute that the appellant and another person inspected the vehicle and took it for a test drive. It is also not in dispute that the "fridge" was not working. It appears that the agreed sale price for the vehicle was $6,000 and on 31 October 2018 the appellant paid a deposit of $1,000 to a bank account nominated by the respondent. 2. The evidence given at the hearing before the Consumer and Commercial Division was that on 1 November 2018 the respondent emailed the appellant a receipt for the deposit and requested the balance be paid into its bank account. The appellant requested an invoice for the purchase price and said his clerk would transfer the money. The invoice was sent on 1 November 2018. On the same day, the appellant notified the respondent that a check had indicated that the vehicle was registered in another entity's name. On 5 November 2018 the appellant sent an email to the respondent in which he said that he would obtain an NRMA inspection once the correct registration papers had been provided and "then we will proceed with the sale". 3. The respondent agreed to transfer the registration into its name and this was done on 6 November 2018. In the original and transferred registration papers the shape of the vehicle was stated to be "PAN" and under "Conditions and Information" it was stated "Drop sides fitted". 4. There then followed a series of text messages between the appellant and the respondent in which the respondent asked for payment of the balance and stated that, if payment was not received, the appellant would lose the deposit. After receiving notification of the transfer of the registration to the respondent, the appellant then asked for a three month warranty on the vehicle. He was advised by the respondent that the second hand vehicle was sold without any warranty and in an "as is" condition. The appellant asked for his deposit back and this was refused by the respondent. 5. In his application to the Consumer and Commercial Division made on 28 February 2019 the appellant named as respondent Mr Issa Kalouche, the representative of the respondent company with whom he had been dealing. He stated that the named respondent did not have authority to sell the vehicle as it was not registered in his name and the vehicle was registered as a flat bed truck and not as a refrigerated truck as advertised. He sought a refund of the deposit he had paid. 6. It is apparent from the material before us that at some point after the application was lodged with the Tribunal an order was made naming Revesby Metals Pty Ltd as the respondent rather than Mr Kalouche. 7. The parties appeared before a member of the Consumer and Commercial Division at the hearing on 20 May 2019. The member referred to the "Vehicle Shapes Code Guide" which both parties relied upon taken from the website of the Roads and Maritime Services concerning vehicle shapes. Relevantly, the Guide has the following descriptions: VAN – A Van type body. This vehicle has a separate box body on the back not connected to the cabin. RV – refrigerated vehicle. This vehicle has a separate or combined body that is insulated and has a refrigerated unit. PAN – Pantechnicon. This vehicle has a body separate from the cabin however has loading space above the cabin roof. 1. The Guide warns that an incorrect shape code can have implications for registration costs, insurance claims and defect and safety issues. The evidence of the appellant before the Tribunal was that, in order to be used as a refrigerated vehicle, the van must be registered as one. 2. The member found that the sale of the vehicle was not conditional upon any inspection and that both parties regarded the issue of registration as a formal matter to be corrected in a reasonable time, with the substance of the transaction otherwise remaining on foot. He also found that there had been no misrepresentation or breach of the guarantee of acceptable quality in relation to the vehicle's refrigeration. He found there was no representation that the refrigeration unit worked and that both parties understood that the sale was for a truck with a broken refrigeration unit but with valid registration until 1 July 2019. He found there was no evidence before him that the truck was wrongly registered or the registration was not valid. The Notice of Appeal 1. In his Notice of Appeal, the Appellant states that: 1. The Tribunal incorrectly named the respondent as Revesby Metals Pty Ltd as the truck was advertised by Mr Kalouche and, although the deposit was paid to the account of Revesby Metals Pty Ltd, further payments were requested to be made to an account in the name of Nova Transport. 2. Mr Kalouche guaranteed to the appellant that the truck would be registered in his name. 3. Mr Kalouche declined a request for an NRMA inspection of the vehicle. 4. The truck was advertised as a refrigerated truck with a faulty refrigerated unit but was incorrectly registered and was not registered as a refrigeration truck. The Reply to the Appeal 1. The respondent states that the truck was not advertised as a refrigerated truck but as a truck with a refrigerator that was not working. The truck has never been registered as a refrigerated truck and was sold in an "as is" condition. The appellant is a refrigeration mechanic and he and another person inspected the vehicle before paying a deposit. The respondent stated that the appellant does not understand that a receipt for the deposit on company letterhead, signed and dated is guarantee of title. The appellant only raised the issue of an NRMA inspection after repeatedly being asked to pay the balance of the purchase of price. 2. The respondent submits the decision should stand. Consideration 1. We understand from the appellant's grounds of appeal that he believes there to be some difficulty with the guarantee given by Mr Kalouche that title to the vehicle would be passed to him upon sale. The issue arose as it appears that at the time the truck was inspected by the appellant and the deposit paid it was registered in the name of a third party. The Tribunal member dealt with this issue in his reasons and found, based on email communications between the parties, that both parties regarded the issue of registration to be a formal matter to be corrected in a reasonable of time, with the substance of the sale remaining on foot. The member concluded that the respondent acknowledged that, in accordance with the guarantee of title in s 51 of the Australian Consumer Law (ACL), it would be required to have a right a right to dispose of the property in the truck at the time that property was to pass to the appellant. 2. The member, correctly in our view, held that there was no breach of the guarantee of title as there could only be such a breach if, after a reasonable time, the issue of title could not be corrected. In any event, we note that registration of the vehicle was duly transferred to the respondent prior to any conclusion of the sale. The appellant has not advanced any cogent arguments as to why he believes the respondent has been incorrectly named. We can see no error in the member's decision on this ground. 3. The appellant's concerns about Mr Kalouche declining to permit the NRMA to inspect the truck on the appellant's behalf appear to amount to a claim that the vehicle was to be sold subject to an inspection. This issue was also dealt with by the member in his reasons and he found that the sale was not conditional on an inspection. 4. We agree with the member's conclusion and find no error. The appellant inspected the truck and took it for a test drive. He settled on a price of $6,000 for the vehicle and paid a deposit of $1,000. He was given an invoice for the sale of the vehicle and required to pay the balance of the purchase price. He agreed to proceed with the purchase stating he would get his clerk to transfer the money. It is clear from the events which occurred on 31 October and 1 November 2018 and the written communications between the parties that the appellant entered into a contract with the respondent for the sale of the truck when he paid the deposit. We note that no contention is advanced by the appellant that the if the sale did not complete the deposit would be returned to him. The sale was not conditional on any further inspection of the truck and that was an issue raised by the appellant some time later. 5. The appellant's primary ground of appeal is that the member erred in finding that the respondent did not misrepresent the vehicle in the sale advertisement. The appellant claims that the vehicle was advertised as being registered until 1 July 2019 as a refrigerated truck but instead it was registered as a pantechnicon. 6. Putting the appellant's contention in the terms of the ACL, he argues the respondent represented that the truck was validly registered as a refrigerated truck within the meaning of that term as set out above by Roads and Maritime Services and that was a misrepresentation. The member found that there was no such misrepresentation. We agree. The truck was merely advertised as a 1998 Toyota DYNA 300 registered until July 2019 that had a "fridge" which needed servicing. 7. The member characterised the alleged breach by the respondent as a breach of the guarantee of acceptable quality as contained in s 54 of the ACL. The member stated that the respondent had never given any guarantee that the truck had a working refrigeration unit. He noted that, while the appellant had been told by Roads and Maritime Services that a refrigerated truck needs to be registered in a different way to which the truck was in fact registered, the appellant had provided no evidence that the truck, in the condition that it was, had been wrongly or invalidly registered. The member was therefore not satisfied that there had been a breach of the guarantee of acceptable quality. 8. The appellant has failed to demonstrate that the member's decision was not fair and equitable or was against the weight of the evidence. The applicant entered into a contract for the sale of a truck with a broken refrigeration unit but with valid registration until 1 July 2019. He provided no evidence to the Tribunal that the truck was not validly registered and has not sought to put any new evidence about that before the Appeal Panel. 9. In all the circumstances we are unable to find that the appellant has suffered a substantial miscarriage of justice. There was no real possibility or fair chance of a different result on the state of the evidence before the Tribunal. Leave to appeal is refused. Orders 1. Leave to appeal refused. 2. Appeal 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: 17 October 2019