Ashley Emonson v Jason Wagga Pty Ltd trading as Jason Nissan

[2014] NSWCATCD 258

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Ashley Emonson v Jason Wagga Pty Ltd trading as Jason Nissan [2014] NSWCATCD 258
Hearing dates:	17 September and 27 November 2014
Decision date:	18 December 2014
Jurisdiction:	Consumer and Commercial Division
Before:	J Lynch, General Member
Decision:	The respondent Jason Wagga Pty Ltd is to pay the sum of $39,012.57 to Ashley Emonson on or before 19 December 2014. The applicant Ashley Emonson is to return motor vehicle being a Nissan Navara dual cab VIN xxxxxxxxxx1064 to Jason Wagga Pty Ltd on or before 19 December 2014.
Catchwords:	Acceptable quality, goods match description
Legislation Cited:	Competition and Consumer Act 2010 SCHEDULE 2 Australian Consumer Law, Consumer Claims Act 1998
Category:	Principal judgment
Parties:	Ashley Emonson (applicant) Jason Wagga Pty Ltd (respondent)
Representation:	Applicant self represented Mr Glenn Johnson represented the respondent
File Number(s):	MV 14/12191
Publication restriction:	Unrestricted

reasons for decision

1. The applicant Ashley Emonson (“the consumer”) purchased a new Nissan Navara Dual Cab engine number xxxxxxx115T Vehicle identification number xxxxxxxxxxxx9330 form the respondent Jason Nissan Pty Ltd trading as Jason Nissan (“the trader”) on 10 January 2012 for the sum of $41,300.00.

2. The applicant lodged a claim with the Civil and Administrative Tribunal (the Tribunal”) on 27 February 2014 seeking a full refund and return of the vehicle on the basis that the vehicle has a bad lean to the right hand side which had not been rectified after several attempts.

3. The claim was amended to seek the sum of $40,650.00 being $41,300.00 purchase price of vehicle (including tonneau cover, window tint and towbar) plus tub liner $399.00, nudge bar $910.00, and electric brakes $800.00 making a total cost of vehicle including accessories of $43,709.00. This sum has been reduced by 7% on the basis that at the date of submission of documents the vehicle had travelled 27,220 kms about 7% of the expected life of 400,000kms making a sum claimed of $40,650.00.

4. The trader opposes the orders sought and states there is no document to say that the chassis of the vehicle was bent before September 2013. In particular there was no complaint at the time of purchase or the 10,000km service. The trader contends it is prepared to straighten the chassis rail a little further to realign the chassis but this has been declined by the consumer.

5. The consumer Mr Ashley Emonson was self represented at the hearing. The trader was represented by Mr Glenn Johnson. Mr Emonson gave oral evidence and called Mr Ross McDonald and Mr Craig Rorie. The trader called Mr Glenn Johnson. Each party submitted documentary evidence which is set out in the Appendix. The hearing commenced on 17 September and concluded on 27 November 2014.

Jurisdiction

6. Jurisdiction to determine this claim is conferred on the Tribunal by Section 7 Consumer Claims Act 1998 (NSW) (“CCA”) as the goods were supplied in NSW and the contract to which the claim arises was made at Wagga Wagga in NSW. Section 3A defines a ‘consumer’ claim to include claims arising from the supply of goods including (a) a claim by a consumer for the payment of a specified sum of money, or (d) a claim by a consumer for the return of specified goods or (e) a combination of two or more of the remedies in paragraphs (a) to (d). Section 3 of the CCA defines a ‘consumer’ to include a natural person and applies to Mr Emonson and ‘supply’ as including supply of goods by way of contract for sale. The claim is within jurisdiction for the Tribunal to determine under the CCA as a new motor vehicle purchase.

Issues

7. The issues arising to be determined are:-

1. Was the chassis bent at the time of sale?

2. Is there a breach of the consumer guarantee of acceptable quality under Australian Consumer Law?

3. Does the bent chassis represent a major failure?

4. Is there a breach of the consumer guarantee that goods match their description?

5. If a breach is established what is the remedy and quantum

(1) Was the chassis bent at the time of sale?

8. The first time the applicant noticed the vehicle leaning down on the driver’s side was in August 2013. Both parties agree the consumer raised this at the 20,000km service in September 2013 when the vehicle had travelled 16,673kms. The repair order states “Check right hand side rear of the vehicle it has dropped down”. Both parties agree that photos were taken by the trader at that time and sent to the manufacturer. These were not produced by the trader at the hearing,

9. Mr Emonson gave evidence and was asked in cross examination in the context of the time since delivery “Have you ever had an accident? Mr Emonson replied “no.” There was no evidence whatsoever submitted from the trader that the consumer had caused the chassis to be bent or that the vehicle was involved in any accident. Mr Johnson for the trader was asked whether there was anything in their inspections to indicate damage occasioned to the vehicle and he replied there was nothing in inspections consistent with damage from an accident.

10. It was the trader’s submission that there was no record of the chassis bent at sale or 10,000km service therefore it is only speculation that it was the case at the point of sale. Mr Johnson the service manager for the trader was asked by Mr Emonson “You sent it to the Panel Beaters and know it is defective?” Mr Johnson replied:-“I’m not saying (it is) not defective now- what made it defective is speculation.”

11. Mr Ross McDonald inspected the vehicle on 15 April 2014 after certain attempts had been made to rectify the issue. Mr McDonald is an A Grade Automotive Engineer qualified in 1976. He has worked in the automotive industry all his life first as a senior motor mechanic then an A grade automotive engineer and as a trade teacher for 30 years at Tafe in Melbourne. Whist teaching he was involved in various vehicle repairs. Mr McDonald stated “This vehicle was bent when it was new.” When he was asked the evidence upon which he formed his opinion he stated “The vehicle exhibits and appears no impacts. Apart from a few light items in the back tray it has carried no loads in its life. There is no evidence looking at the vehicle of stone chips, marks or hits or anything. There is no evidence of rough ground, gutters, pot holes causing any damage to the vehicle. The only thing which would bend the chassis is great undue weight. This is impossible. If so the tub would be damaged internally because of the weight. That points to the fact that none of this happened. None since it was in Mr Emonson’s possession. It was new when he bought it (which) very strongly indicates that the dealer bent it or the manufacturer made it that way”.

12. Mr Craig Rorie gave evidence on this issue. Mr Rorie is an automotive inspector with Fair Trading and an investigator there for the last 10 ½ years. He is a qualified auto inspector and qualified mechanical engineer for approximately 30 years. Mr Rorie gave his opinion that “It was bent from Day 1 and never identified.” He further stated that he inspected the vehicle on 18th February 2014. “The vehicle had very low km 22,287kms and was meticulously clean. I looked in the back to check whether it was used for work purposes and whether it was knocked around and there was no evidence of that. The towbar and hitch assembly had minimal wear on this car to suggest other than private use. The paintwork and bodywork was clean and inside spotless.” Mr Rorie concluded “There was no evidence it was ever in a car accident and to bend in such a way (it was a ) bent assembly fault not due to a car accident.”

13. He was asked why? And Mr Rorie replied:

“Normally if a rework (you) can see where pulled or straightened. Most (are) spring chassis and if (you) pull structurally weaker. (There are) always witness marks where try to straighten (and there was) no evidence on Mr Emonson’s vehicle of impact on the vehicle.”

14. Mr Rorie stated this was further validated by the fact that the manufacturer Nissan repaired the vehicle under warranty.

15. The trader produced a check sheet for the pre delivery service performed by Jason Scribber with all boxes ticked. Mr Scribber was not called to give evidence. The check was performed on the vehicle which the consumer received VIN xxxxxxxxxxxxx1064. There was no evidence of the manufacturer’s quality control measures or what was done for this particular vehicle.

16. Mr Johnson for the trader submitted that the opinions of the two expert witnesses were “a lot of speculation” and there was no document to say it was bent before September 2013. The Tribunal is satisfied that the two expert witnesses are to be believed. The witnesses called by the consumer are independent, qualified, there was no contrary expert independent evidence presented by the trader and both had the opportunity to inspect the vehicle and gave detailed accounts of their observations and findings both orally under cross examination and in their written reports submitted in evidence. [Docs AF and AG]. They both conclude that the chassis of this vehicle was bent prior to the sale to the consumer. They have considered the physical evidence. Mr Johnson further submitted that what made the vehicle defective was speculation. It is not necessary for the Tribunal to determine what caused the chassis to bend but simply the fact that it was in that state at the time the vehicle was sold. The Tribunal is satisfied on the balance of probabilities that the chassis was bent at the time of the sale to the consumer.

(2) Is there a breach of the consumer guarantee of acceptable quality under Australian Consumer Law

17. The Australian Consumer Law (ACL) establishes general protections for consumers. Section 54 provides goods are guaranteed to be of acceptable quality. Section 54 (2) provides that they are as

(a) fit for all the purposes for which goods of that kind are commonly supplied; and

(b) acceptable in appearance and finish; and

(c) free from defects; and

(d) safe; and

(e) durable;

as a reasonable consumer fully acquainted with the state and condition of the goods (including any hidden defects of the goods), would regard as acceptable having regard to the matters in subsection (3).

18. Relevant matters include the nature and price of the goods, and any other relevant circumstances. The price paid was $41,300.00 for a brand new vehicle.

19. On 16 September 2013 at the time of service at 16635km the trader’s technician noted:-

“Check rear suspension sagged RHR measured wheel arch height RHR side 885mm dropped 20mm according to ESM specifications contacted techline waiting reply” [Doc 5 ]

20. On 19 September 2013 at 18627km the trader’s Technician diagnosed the cause of the sag

“Cause R/H/F spring is sagging”.

The measurements taken according to Mr Johnson indicate that prior to the spring replacement chassis to ground shows three measurements taken by two different technicians:- 552mm to 540mm (-12), 558mm-541mm (-17) and 556mm-532mm (-23) and after the R/H/F spring was changed measured at 555mm to 542mm (-13). And the trader’s technician then noted:-

“But found still sagging in R/H/R recommend chassis alignment.” [Doc 6]

21. Chassis realignment was carried out by Auto Panel Repairs on 1 December 2013. The reports from the alignment show that the height prior to alignment was -13 and this improved after alignment to -3. [Docs 8 and 9]

22. Mr McDonald inspected the vehicle on 15th April 2014 and found :-

“The RHS of the rear chassis remains at least 10mm difference to the LHS despite being allegedly corrected after being placed on a chassis jig which is designed to measure and make it correct.”

23. Mr Rorie inspected the vehicle at 22287km after attempts at repair by the trader by swapping the rear springs from side to side in October 2013, replacing front hand spring in November 2013 and chassis realignment in December 2013. Mr Rorie reported

“A visual inspection of the vehicle clearly identified that the vehicle had a body lean to the right hand side.

He explained the process he undertook to measure and found a “lean of 15mm down on the OSR’ and on the front of the vehicle ‘a 14mm lean down on the OSF of the vehicle’ and concluded

“It is the opinion of the Inspector that repairs to straighten the vehicle chassis are considered as a major defect and should have been identified prior to the sale during the manufacturer’s quality control and or the dealer’s pre-delivery process.”

24. The consumer states there were 2 grey utes in the caryard on the day he took delivery of the car and Martin Fisher took him for a test drive. There was one near the fence and another near the door. Later Mr Fisher collected the consumer and took him in to the dealership and the consumer took the ute in the showroom home. He is not able to identify the vehicle he inspected earlier that day and took on a test drive as the same vehicle that he was given possession of on 13 January 2012.

When Mr Johnson for the trader was asked whether the vehicle the consumer test drove was the same vehicle he was provided he stated the gentleman who handled that is no longer here.” I don’t know.” He agreed the chassis number on the sales contract is different from the vehicle supplied to the consumer. It is not possible on the evidence to determine whether the consumer inspected the vehicle prior to obtaining possession of the vehicle.

25. In addition Mr McDonald gave evidence that on his inspection of the vehicle he immediately noticed the body at the front of the vehicle was offset. He confirmed his visual observations by measuring. And found the centre of the cabin was not aligned with the centre of the chassis. He concluded there “was some fault in manufacture to cause that offset.”

26. His report provided: “The face of LHS front wheel is outside the mudguard, where the RHS wheel face is inside the mudguard. This was measured with a straight edge on both LHS and RHS to determine the off set amount. LH wheel face 5mm outside guard, RHS wheel face (leaning in) but had a 15mm gap, to tyre, when straight edge placed in similar position to LHS test. This offset was also confirmed by measuring from identical hole on each side chassis bracket on both sides, to the outer edge of the guard. LHS 10mm less than the RHS.”

27. He was asked what impact this has on the vehicle and he replied that it would “…tend to steer the vehicle to the left making it unsafe – run off the road to the left.” There was no evidence from the trader to counter the evidence of Mr McDonald on this and the Tribunal finds that the body was side shifted on the chassis.

28. The Tribunal finds on the evidence that the visible lean renders the vehicle unacceptable in appearance.in breach of section 54 (2) (b). The Tribunal finds on the evidence the bent chassis which was also offset represents a defect in breach of section 54 (2) (c) particularly in this case where the vehicle was purchased new and the defect was present at the time of sale. Goods are guaranteed to be of acceptable quality free from defects. A reasonable consumer acquainted with the state and condition of the goods would not have regarded the motor vehicle as acceptable having regard to the appearance and defective chassis.

(3) Does the bent chassis represent a major failure

29. Section 262 ACL defines a major failure

260   When a failure to comply with a guarantee is a major failure

A failure to comply with a guarantee referred to in section 259(1)(b) that applies to a supply of goods is a major failure if:

(a)  the goods would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of the failure; or

(b)  the goods depart in one or more significant respects:

(i)  if they were supplied by description--from that description; or

(ii)  if they were supplied by reference to a sample or demonstration model--from that sample or demonstration model; or

(c)  the goods are substantially unfit for a purpose for which goods of the same kind are commonly supplied and they cannot, easily and within a reasonable time, be remedied to make them fit for such a purpose; or

(d)  the goods are unfit for a disclosed purpose that was made known to:

(i)  the supplier of the goods; or

(ii)  a person by whom any prior negotiations or arrangements in relation to the acquisition of the goods were conducted or made;

and they cannot, easily and within a reasonable time, be remedied to make them fit for such a purpose; or

(e)  the goods are not of acceptable quality because they are unsafe.

30. It is the opinion of Mr Rorie that a bent chassis is a major defect.

See para 22 above.

31. Certainly it constitutes damage that requires repair or replacement of a structural member. According to Mr Rorie the only correct method for repair is to replace the complete chassis. He undertook a parts enquiry and there are none available in Australia. The Motor Dealers Regulation 2010 requires this type of damage to be notified to a purchaser with a Notice as the dealer would on a reasonable inspection of the vehicle have been aware of the damage and the damage is not superficial and is occasioned to the frame of the motor vehicle. In this case no such notice was given to the consumer.

32. Mr Johnson for the trader stated that the trader was more than willing to repair the vehicle by undertaking additional work and the consumer had declined the offer. He said the “extra work (would be) to straighten the chassis rail a little further a few millimetres to right inside the tolerance rather than right on the edge.” No evidence was provided to the Tribunal of the manufacturer’s specifications. These were stated to be confidential between the trader and the manufacturer.

33. In this case realignment has been attempted without rectifying the problem. This is evident in the evidence of the two experts for the consumer who inspected the vehicle after the realignment. Mr McDonald gave evidence that he had in addition to the qualifications mentioned above in para 10 completed a graduate diploma in applied science involving metallurgy. It was his opinion that he “couldn’t verify the continued integrity of the chassis not to develop a crack and fail.”

34. In answer to a question from Mr Emonson Mr Johnson for the dealer agreed that a bent chassis is a major failure. He was asked:-“In Jason Nissan is a bent chassis considered a major failure? “Mr Johnson replied “I would classify a major failure yes.”

35. The bent chassis is essentially the skeleton of the motor vehicle and the Tribunal finds that damage of the kind noted and measured by the technicians and experts and in accord with the evidence on this vehicle constitutes a major defect.

(4) Is there a breach of implied term of goods matching their description

36. The motor vehicle supplied on 13 January 2012 and the copy vehicle warranty and owner identification [Doc E] shows a chassis /Vin number ending in 21064 -see Compliance plate [Doc 23]. Whereas the VIN Number provided in the contract between the parties dated 13 January 2012 {doc AG] and the Goods Mortgage [Doc 9] which show a VIN ending in number 19330.

37. Section 56 Australian Consumer Law provides that the goods supplied must match the description

56   Guarantee relating to the supply of goods by description

(1)  If:

(a)  a person supplies, in trade or commerce, goods by description to a consumer; and

(b)  the supply does not occur by way of sale by auction;

there is a guarantee that the goods correspond with the description.

(2)  A supply of goods is not prevented from being a supply by description only because, having been exposed for sale or hire, they are selected by the consumer.

(3)  If goods are supplied by description as well as by reference to a sample or demonstration model, the guarantees in this section and in section 57 both apply.

38. The motor vehicle supplied clearly did not meet the description as it was a different vehicle evidenced by the fact that the VIN numbers did not correspond.

(5) If a breach is established what is the remedy and quantum

The Tribunal has the powers provided under the CCA and the statutory remedies in the ACL. Section 259 and section 260 enable the Tribunal to award a refund to the consumer. Under section 259 the consumer may bring a claim

(b)  by action against the supplier, recover compensation for any reduction in the value of the goods below the price paid or payable by the consumer for the goods.

(4)  The consumer may, by action against the supplier, recover damages for any loss or damage suffered by the consumer because of the failure to comply with the guarantee if it was reasonably foreseeable that the consumer would suffer such loss or damage as a result of such a failure.

39. Neither party produced any evidence of the reduction in value of the goods. Mr Johnson is in service rather than sales and submitted the value would be 50% without any supporting evidence. There was no assessment of the diminished value of the defective vehicle. The consumer seeks compensation for the loss of the price paid for the goods and expences incurred in accessories fitted for the vehicle less an allowance for the usage. The consumer has provided a receipt for the tub liner cost of $399.00 [Doc AB] and installation of the electric brakes is agreed to cost $250 but there is no supporting evidence for the cost of nudge bar and electric brakes so no compensation is awarded for the latter two items. The trader is required to pay the sum of $39,012.57 being $41949 less an allowance for usage.

ORDERS

1. The respondent Jason Wagga Pty Ltd is to pay the sum of $39,012.57 to Ashley Emonson on or before 19 December 2014.

2. The applicant Ashley Emonson is to return motor vehicle being a NissanNavara dual cab VIN xxxxxxxxxx9330 to Jason Wagga Pty Ltd on or before 19 December 2014.

J Lynch

General Member

Civil and Administrative Tribunal of New South Wales

18 December 2014

APPENDIX

Consumer’s documents

1. Consumer’s letter consumer to Jason Nissan 22 December 2013

2. Email consumer to jasonwagga 22 December 2013

3. Email Glenn Johnson to consumer

4. Copy motor vehicle Sale Contract 10 January 2012

5. Original motor vehicle Sale Contract 10 January 2012

6. Copy vehicle warranty and owner identification from logbook

7. Copy PPS Register Search 18/2/14 VIN MNxxxxxxxxxx21064

8. Copy PPS Register Search 18 February 2014 VIN MNxxxxxxxxxx19330

9. Copy Registration Notice 2014 VIN MNxxxxxxxxxx21064

10. Copy Goods mortgage VIN ending 19330 dated 13 January 2012

11. Note regarding paperwork re loan

12. Copy Loan Contract

13. Invoice 153002 17 September 2012

14. 3 Pages colour photos

15. Copy File note re Nissan Technical Visit 18 December 2013

16. Copy Auto Panels Repairs Invoice S-23191

17. Car-O-Liner Vision X3 Report 3 December 2013 (4 pages)

18. 2 pages colour photos measurements

19. Invoice 1539180 25 September 2013

20. Mac’s Trailers & Towbars 3823 measurement 16 September 2013

21. Invoice 1538902 16 September 2013

22. Nissan Maintenance Schedule

23. W. Wagga Prestige Battery test

24. 2 colour photos

25. Statement Denise Emonson 13 April 2014

26. Copy Advertisement 2010 ute

27. () Documents re silver Holden ute

(ab)    Copy invoice for tub liner 15008871 16 September 2013

(ac)    Copy photo compliance plate

(ad)    Copy front page Goods mortgage

(ae)    colour photo 4 December 2013

(af)    Copy Automotive Inspector’s File Notes dated 25 April 2014 (10 pages)

(ag)    Condition report dated 15 April 2014 Ross McDonald (2 pages)

Trader’s documents

1. PPSR Search 16 April 2014 VIN ending 1064

2. Repair Order 18 December 2013

3. Tech’s notes re measurements 18 December 2013

4. Invoice 1541055

5. Repair Order 202875 19 November 2013

6. Tech Summary 19 November 2013 (before and after spring)

7. Car-O-Liner Report 1 December 2013

8. second Car-O-Liner Report 1 December 2013

9. Invoice 1539180 25 September 2013

10. Repair order 201330 16 September 2013

11. Tech Summary 16 September 2013

12. Invoice 16 September 2013

13. Repair Order 201329 16 September 2013

14. Tech Summary 16 September 2013

15. Invoice 1530021 17 September 2013

16. Invoice 192034 17 September 2012

17. Tech Summary 17 September 2012

18. Invoice 1524533 Pre-delivery service 6 January 2012

19. Repair Order 6 January 2012

20. Tech Summary 6 January 2012

21. Pre-delivery check list (2 pages)

22. Order wheel alignment 6 January 2012

23. colour photo compliance plate

24. Invoice 173664 17 January 2012

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

Decision last updated: 31 March 2015