Betta Caravans Pty Limited v Baldock & Ors
[2007] NSWSC 564
•7 June 2007
CITATION: Betta Caravans Pty Limited v Baldock & Ors [2007] NSWSC 564 HEARING DATE(S): 01/06/2007
JUDGMENT DATE :
7 June 2007JUDGMENT OF: Associate Justice Malpass DECISION: I set aside the order for payment of the sum of $25,000 made on 30 June 2006 and the order for costs made on the same day. I remit this decision to the Tribunal. I order a re-hearing by the Tribunal of the claim of the question of remedy (if any) for breach of warranty and any other causes of action which the Tribunal may allow the defendants to ventilate against the plaintiff. The defendants are to pay the costs of the proceedings. If so entitled, they are to have a certificate under the Suitor’s Fund Act. CATCHWORDS: Sale of defective caravan - conversion of it - breach of warranty - remedy (if any) LEGISLATION CITED: Consumer, Trader and Tenancy Tribunal Act 2001 (NSW)
Motor Dealers Act 1974 (NSW)
Sale of Goods Act 1923 (NSW)
Trade Practices Act 1974 (Cth)PARTIES: Betta Caravans Pty Limited
Peter Baldock
Wendy Baldock
Consumer, Trader and Tenancy Tribunal
Nahi GazalFILE NUMBER(S): SC 30102/06 COUNSEL: Mr V. Ruta (Pl)
Mr J. Sleight (1st & 2nd Def)SOLICITORS: McBride Harle & Martin Solicitors (Pl)
Hicksons Solicitors (1st & 2nd Def)
Crown Sol (3rd Def) (Submitting appearance)LOWER COURT JURISDICTION: Consumer Trader and Tenancy Tribunal of NSW LOWER COURT FILE NUMBER(S): MV 05/50204 LOWER COURT JUDICIAL OFFICER : Mr D A Turley LOWER COURT DATE OF DECISION: 30 June 2006
IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ASSOCIATE JUSTICE MALPASS
7 JUNE 2007
JUDGMENT30102/06 Betta Caravans Pty Ltd v Peter Baldock & 3 Ors
1 HIS HONOUR: In or about November 2003, the plaintiff sold a Viscount caravan to the first and second defendants (the defendants). The sale price was in the order of $32,000. A warranty was given by the manufacturer. Sale documents presented the manufacturer as “Viscount Caravans A division of RV Manufacturing Pty Ltd”.
2 Subsequent to the taking of delivery of the caravan, the defendants experienced problems with it. Firstly, there were problems concerning fly screens. Secondly, there was a crack in the ceiling. The existence of these problems was not in dispute.
3 The defendants contacted Mr Davies of the plaintiff. He referred them to Viscount.
4 The caravan was taken to Viscount Caravans. Thereafter, the defendants came to deal with the fourth defendant. As a consequence of discussions had between the first defendant and the fourth defendant (Mr Gazal), the caravan came to be left with the latter. He was told by the latter that it was going to be expensive to fix. He was also told that if a good price could be obtained for it, the latter was prepared to give him a new caravan. There was dispute as to whether the first defendant had agreed to accept a new one. The first defendant later discovered that the caravan had disappeared. Thereafter, he received promises that the vehicle would be replaced by a new caravan.
5 The promises (inter alia, one appeared in a letter dated 15 November 2004, purportedly from Vehicle Assembly Australia Pty Ltd and signed by Mr Gazal as Chief Executive Officer) were not fulfilled and it seems that, in more recent times, Mr Gazal may have disappeared.
6 Also, it appears that a number of other persons have had similar experiences in dealing with Mr Gazal.
7 On 30 March 2005, the defendants made application to the Consumer, Trader and Tenancy Tribunal (the Tribunal). One respondent was “Vehicle Assembly Aust P/L (Nahi Gazal)”. Mr Gazal appears to be described as the second respondent. The other respondent was the plaintiff (first respondent).
8 Under the heading “What are your reasons for requesting this order or these orders?” was the following:-
- “We put our caravan in under warranty for a few repairs, manufacturer decided it was easier to replace than fix; He sold our van without permission and to date he has not replaced it. Waiting since 27.10.04 its now 30.3.05. Been to solicitor & police he told both he’d replace the van!”
9 The application came on for hearing before Tribunal Member Turley. The first defendant and Mr Gazal gave evidence. Evidence was given also of similar experiences had by others who had dealt with Mr Gazal. Evidence given by Mr Gazal “in relation to some issues or his stated intentions” (inter alia, it was found that he had no authority to dispose of the caravan and that he had no intention to replace it) was not accepted. In making those findings, reliance was placed on the evidence of similar experiences. The Tribunal Member came to the decision of ordering the plaintiff to pay the sum of $25,000 to the defendants.
10 The Tribunal Member gave written reasons for decision (the reasons). However, before making further mention of the contents of those reasons, I should mention certain other matters.
11 Viscount Caravans was registered on 19 January 2001 as a business name. The original proprietor was Viscount Caravans Australia Pty Limited. On 9 May 2003, N Gazal Holdings Pty Ltd became the proprietor (Nahi Gazal and Theresa Gazal were directors of that company). On 24 September 2004, the manufacturer (R V Manufacturing Pty Limited) was placed in liquidation. On 12 July 2005, Vehicle Assembly Australia Pty Limited was placed in liquidation.
12 In respect of Vehicle Assembly Australia Pty Limited, N Gazal Holdings Pty Limited and Mr Gazal the Tribunal Member said:-
- “I do not accept as correct the assertions of the second respondent in paragraph 5 of exhibit 1R that “I have always acted in my capacity as an employee, namely in my capacity as General Manager of the company known as Vehicle Assembly Australia Pty Ltd”. As indicated earlier I do not understand how this company is said to be involved in this dispute as no evidence was given before me to support that proposition.
- It is my opinion that throughout all these transactions Nahi Gazal acted as a Director of N Gazal Holdings Pty Ltd who was and still is the proprietor of Viscount Caravans. I do not believe that I have the power to make an order against a company that is not a party to these proceedings and accordingly I do not believe that I could make an order against a Director of that company. It is open to the parties to seek their own legal advice as to those conclusions”.
13 These observations were followed by the following:-
- “Accordingly, I made (sic) an order for the first respondent to pay $25,000.00 to the applicants and also to pay the applicants’ costs either as agreed or as assessed.”
14 He had earlier made the following observations:-
- “Accordingly, I have some difficulty with the first respondent’s attempts to distance itself from the actions of the second respondent who I believe conducted himself at all times as the proprietor of Viscount Caravans.
- In their final submissions, which were prepared by their Solicitors, the applicants and the first respondent engaged in an argument about various provisions of the Sale of GoodsAct 1923 as they applied to this sale. In my opinion the goods were not of merchantable quality at the point of sale due to the defects that were discovered in the caravan during the applicants’ first use of the caravan shortly after their purchase of it – refer to exhibits 1A & 2A for details of those defects. Accordingly, I find the first respondent is liable.”
15 The Tribunal member also made a finding of liability pursuant to the Motor Dealers Act 1974 (NSW).
16 The plaintiff has brought an appeal pursuant to s67 of Consumer, Traderand Tenancy Tribunal Act2001 (NSW) (the Act) against the decision of the Tribunal Member. Such an appeal lies where the Tribunal decides a question with respect to a matter of law. It presently relies on an Amended Summons filed on 4 October 2006. The defendants rely on a Notice of Contention.
17 The hearing took place on 1 June 2007. Both the plaintiff and the defendants were represented by Counsel. Counsel have relied on written submissions, which have been supplemented by oral argument. The submissions made on behalf of the plaintiff were brief and did not address all appeal grounds. Mr Gazal has not been served and did not appear.
18 During the course of submissions, it emerged that both the plaintiff and the defendants supported a setting aside of the order made by the Tribunal Member. The issue that remained between them was whether or not the proceedings should be remitted back to the Tribunal for further hearing.
19 Sadly, it has to be recorded that the reasons are riddled with error. For present purposes, it suffices to refer only to certain of the problems. A difficulty for both the parties and the Tribunal Member was imprecision as to causes of action being litigated. Whilst the defendants and Mr Gazal were legally represented, the plaintiff was not.
20 Because of deficiencies in the expression of reasoning process, further analysis of the reasons must, at least in part, involve speculation.
21 The order was to pay the sum of $25,000. How this sum was reached was left unexplained. Apart from the mention of the bare order, the subject of quantification was left untouched. It has been suggested that the intention of the Tribunal Member was to allow for the full loss of the vehicle. Although the purchase price of the vehicle was in the order of $32,000 it is surmised that the sum of $25,000 was reached because the Tribunal Member may have taken the view that there was a jurisdictional limit in that amount. The defendants contend that, if that be the case, he was erroneous in that view.
22 It may be that the Tribunal Member had in mind awarding damages on the basis of there having been a conversion of the caravan. However, this view can be no more than speculation. He appears to have had regard to the involvement of the plaintiff in other cases where the caravan had disappeared. This seems to have left him with difficulty concerning the plaintiff’s attempts to distance itself from Mr Gazal. Be that as it may, the findings on liability appear to have been made only in respect of the Sale of Goods Act 1923 (NSW) and the Motor Dealers Act. In respect of the former, impliedly there was a finding of breach of warranty. The extent of the breach was not addressed (inter alia it was not found that the defects were unrepairable). That being the case, he erred in assessing damages on the basis of loss of the vehicle.
23 This finding of breach, which has not been demonstrated to be erroneous, would normally merit only an award of damages in respect of, inter alia, rectification costs of the defects.
24 It seems that there may have been little evidence adduced in respect of loss. The plaintiff contends that there was no evidence before the Tribunal Member as to rectification costs. It further says that it is now impossible for any such evidence to be adduced. There may be force in those submissions, but it seems to me that the questions are better determined at a re-hearing. Prima facie, it may be thought that the defendants are entitled to some remedy by reason of the defects.
25 The Tribunal Member also purported to support his order on the basis of liability under provisions of the Motor Dealers Act 1974. It is common ground that this matter was not agitated by the parties and that this legislation is not applicable in the present case.
26 The defendants have exhorted this Court to determine the proceedings on the basis of, inter alia, an alleged agreement (described as “Accord and Satisfaction”) said to have arisen between the defendants and the plaintiff (as a result, inter alia, of the referral by Mr Davies of the first defendant to Viscount) and of provisions of the Trade Practices Act 1974 (Cth) (ss 71 and 75A). These submissions were clearly erroneous. These were not matters agitated before the Tribunal Member and, as a consequence, he did not make any findings which would have application to them. There is also a question of the jurisdiction had by the Tribunal in respect of Trade Practices matters.
27 I propose to set aside the order made by the Tribunal Member. Also, it seems to me that I should refer the matter back to the Tribunal and order a re-hearing.
28 I take the view that in a re-hearing the finding of breach of warranty has the potential to lead to a remedy (in respect of the defects) and a consideration may also be given to the ventilation of other matters. It seems to me that this approach best serves the dictates of justice.
29 I set aside the order for payment of the sum of $25,000 made on 30 June 2006 and the order for costs made on the same day. I remit this decision to the Tribunal. I order a re-hearing by the Tribunal of the question of remedy (if any) for breach of warranty and any other causes of action which the Tribunal may allow the defendants to ventilate against the plaintiff. The defendants are to pay the costs of the proceedings. If so entitled, they are to have a certificate under the Suitor’s Fund Act.
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