Appliance and Airconditioning Services Pty Ltd v ACM Liverpool Pty Ltd t/a Liverpool Nissan - [2017] NSWCATCD 55

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Appliance & Airconditioning Services Pty Ltd v ACM Liverpool Pty Ltd t/a Liverpool Nissan [2017] NSWCATCD 55
Hearing dates: 17 July 2017
Decision date: 04 August 2017
Jurisdiction: Consumer and Commercial Division
Before: P French, General Member
Decision:
1. The application is dismissed on the basis that the Tribunal does not have jurisdiction to deal with it.

Catchwords:
MOTOR VEHICLES – application for an order requiring the Respondent to replace the Applicant’s motor vehicle or permitting the Applicant to return it and obtain a refund of its purchase price – where the date of purchase of the motor vehicle was 23 February 2010

CONTRACT - where the Applicant has failed to establish a cause of action – where the action has not been commenced within the time period permitted by section 79L of the Fair Trading Act 1989 as it is now in force - where the contractual obligations between the parties have ended
FAILURE TO COMPLY WITH STATUTORY CONDITIONS - where the implied condition as to supply by description contained in section 40P and the implied undertaking as to quality and fitness contained in section 40Q of the Fair Trading Act 1989 as it is was in force on 23 February 2010 do apply in this case – where the Applicant has failed to commence an action within the time period permitted by section 40ZB of the Fair Trading Act 1989 as it was in force on 23 February 2010 - where the motor vehicle is not substantially used for private purposes – where the total relevant value of the claim exceeds the prescribed limit on the Tribunal’s order making power imposed by section 79S of the Fair Trading Act 1989 as it is now in force – where GST was a component of the purchase price of the motor vehicle – where it is not relevant that the Applicant is a business entitled to claim a GST input tax credit
Legislation Cited: A New Tax System (Goods and Services Tax) Act 1999
Australian Consumer Law (NSW)
Consumer Claims Act 1998
Fair Trading Act 1989
Motor Vehicles Taxation Act 1988
Cases Cited: Bunnings Group Limited (formerly Bunnings Pty Ltd) v Laminex Group Limited [2006] FCA 682
Sacks v Hammoud [2016] NSWCATAP 225
Safi v Heartland Motors Pty Ltd t/as Heartland Chrysler [2016] NSWCATAP 80
Temple & Fisher v Mazda Australia Pty Ltd & AMR Motors Pty Ltd [2017] NSWCATCD 17
Upton v Martin & Stein Antiques Pty Ltd [2016] NSWCATAP 228
Wardley Australia Ltd v Western Australia (1992) 175 CLR 514
Category: Principal judgment
Parties: Appliance & Airconditioning Services Pty Ltd (Applicant)
ACM Liverpool Pty Ltd t/a Liverpool Nissan (Respondent)
Representation: Mr Praveen Chandra, Managing Director, for Applicant
Mr Darrell Hough, Service Manager, for Respondent

File Number(s): MV 17/00519
Publication restriction: Nil

reasons for decision

This is an application by Appliance & Airconditioning Services Pty Ltd (the Applicant) for an order from the Tribunal under subsection 79N(g)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Appliance and Airconditioning Services Pty Ltd v ACM Liverpool Pty Ltd t/a Liverpool Nissan [2017] NSWCATCD 55
Case: [2017] NSWCATCD 55
Decision Date: 04 August 2017

CaseChat Overview and Summary

Appliance and Airconditioning Services Pty Ltd, the applicant, sought an order requiring the respondent, ACM Liverpool Pty Ltd t/a Liverpool Nissan, to replace their motor vehicle or to allow the applicant to return it and obtain a refund of its purchase price. The vehicle in question was purchased on 23 February 2010. The primary issue before the court was whether the Tribunal had jurisdiction to entertain the application, given the statutory limitations and the nature of the contractual relationship between the parties.

The court had to determine whether the applicant had established a cause of action under the Fair Trading Act 1989 and whether the statutory time limits for bringing such an action had been adhered to. Additionally, the court needed to assess whether the implied conditions as to supply by description and quality and fitness applied to the case, and if the applicant had failed to comply with the statutory requirement to commence an action within the specified timeframe. The court also considered whether the motor vehicle was substantially used for private purposes, the total value of the claim, and the impact of GST on the purchase price.

The court found that the applicant had not established a cause of action, as the contractual obligations between the parties had ended, and the statutory time limits for bringing an action under the Fair Trading Act 1989 had not been met. The court further held that the implied conditions as to supply by description and quality and fitness applied to the case, but the applicant had failed to commence an action within the permitted time period. The court also noted that the motor vehicle was not substantially used for private purposes, the total relevant value of the claim exceeded the prescribed limit on the Tribunal’s order-making power, and that it was not relevant that the applicant was a business entitled to claim a GST input tax credit.

Consequently, the court dismissed the application on the basis that the Tribunal did not have jurisdiction to deal with it. The decision highlights the importance of understanding and complying with statutory conditions and time limits when bringing claims under the Fair Trading Act 1989.

Orders

Orders of the court

1. The application is dismissed on the basis that the Tribunal does not have jurisdiction to deal with it.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Appliance & Airconditioning Services Pty Ltd v ACM Liverpool Pty Ltd t/a Liverpool Nissan [2017] NSWCATCD 55
Hearing dates:	17 July 2017
Decision date:	04 August 2017
Jurisdiction:	Consumer and Commercial Division
Before:	P French, General Member
Decision:	1. The application is dismissed on the basis that the Tribunal does not have jurisdiction to deal with it.
Catchwords:	MOTOR VEHICLES – application for an order requiring the Respondent to replace the Applicant’s motor vehicle or permitting the Applicant to return it and obtain a refund of its purchase price – where the date of purchase of the motor vehicle was 23 February 2010 CONTRACT - where the Applicant has failed to establish a cause of action – where the action has not been commenced within the time period permitted by section 79L of the Fair Trading Act 1989 as it is now in force - where the contractual obligations between the parties have ended FAILURE TO COMPLY WITH STATUTORY CONDITIONS - where the implied condition as to supply by description contained in section 40P and the implied undertaking as to quality and fitness contained in section 40Q of the Fair Trading Act 1989 as it is was in force on 23 February 2010 do apply in this case – where the Applicant has failed to commence an action within the time period permitted by section 40ZB of the Fair Trading Act 1989 as it was in force on 23 February 2010 - where the motor vehicle is not substantially used for private purposes – where the total relevant value of the claim exceeds the prescribed limit on the Tribunal’s order making power imposed by section 79S of the Fair Trading Act 1989 as it is now in force – where GST was a component of the purchase price of the motor vehicle – where it is not relevant that the Applicant is a business entitled to claim a GST input tax credit
Legislation Cited:	A New Tax System (Goods and Services Tax) Act 1999 Australian Consumer Law (NSW) Consumer Claims Act 1998 Fair Trading Act 1989 Motor Vehicles Taxation Act 1988
Cases Cited:	Bunnings Group Limited (formerly Bunnings Pty Ltd) v Laminex Group Limited [2006] FCA 682 Sacks v Hammoud [2016] NSWCATAP 225 Safi v Heartland Motors Pty Ltd t/as Heartland Chrysler [2016] NSWCATAP 80 Temple & Fisher v Mazda Australia Pty Ltd & AMR Motors Pty Ltd [2017] NSWCATCD 17 Upton v Martin & Stein Antiques Pty Ltd [2016] NSWCATAP 228 Wardley Australia Ltd v Western Australia (1992) 175 CLR 514
Category:	Principal judgment
Parties:	Appliance & Airconditioning Services Pty Ltd (Applicant) ACM Liverpool Pty Ltd t/a Liverpool Nissan (Respondent)
Representation:	Mr Praveen Chandra, Managing Director, for Applicant Mr Darrell Hough, Service Manager, for Respondent
File Number(s):	MV 17/00519
Publication restriction:	Nil