Bledniak-Zander v Grays.Com Pty Ltd

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Bledniak-Zander v Grays.Com Pty Ltd [2021] NSWCATCD 128

Hearing dates:

18 August 2021

Date of orders:

10 November 2021

Decision date:

10 November 2021

Jurisdiction:

Consumer and Commercial Division

Before:

S Sutherland, Tribunal Member

Decision:

1. The second respondent, Home & Away Properties Pty Ltd is to pay the applicant, Robert Bledniak-Zander the amount of $2,138.02 on or before 23 November 2021.

2. All other claims are dismissed.

Catchwords:

CONSUMER CLAIM – Motor vehicle – Misleading and deceptive conduct - Agency - Damages

Legislation Cited:

Fair Trading Act 1987 (NSW)

Australian Consumer Law (NSW)

Cases Cited:

Stack v Coast Securities 9 Pty Ltd (1983) 46 ALR 451

Forbes v Wan [2020] NSWCATAP 129

Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304; [2009] HCA 25

Yorke v Lucas (1985) 158 CLR 661; [1985] HCA 65

Flight Centre Travel Group Limited T/A Aunt Betty v Goel [2021] NSWCATAP 44

Texts Cited:

Corones, SG, The Australian Consumer Law, 3rd Edition, Lawbook Co, 2016.

Category:

Principal judgment

Parties:

Robert Bledniak-Zander (Applicant)
Grays.Com Pty Ltd (First Respondent)
Home & Away Properties Pty Ltd (Second Respondent)

Representation:

Applicant (Self-represented)
M Lang (First Respondent)

File Number(s):

MV 21/11813

Publication restriction:

Nil

REASONS FOR DECISION

1. The applicant claims that there was misleading and deceptive conduct pursuant to Section 18 of the Australian Consumer Law (ACL). The instrument panel was blacked out over the warning lights. The applicant seeks the amount of $2,326.17.

2. The applicant’s documents are marked Exhibit A1 and the respondent’s documents are marked Exhibit R1.

Jurisdiction

3. This is a consumer claim brought pursuant to Part 6A of the Fair Trading Act, 1987. I am satisfied that the applicant is a consumer and this is a consumer claim where goods were supplied pursuant to the payment of a sum of money. I find that I have jurisdiction to hear the claim.

Evidence of the applicant

4. The applicant purchased the vehicle on 13 January 2021 after bidding at an on-line auction. The vehicle has serious safety issues; the rear doors were jammed closed, the warning lights were blanked off so they could not be seen, the instrument was modified and blacked out with “texta.” Exhibit A1 [13]. These were the critical instrument controls; SRS and EPS failures and engine warning lights and they had been all blocked out. The applicant was bidding on the vehicle unknown that all the warning lights were flashing on. The applicant could not get a fair gauge on the motor vehicle when bidding on it.

5. The applicant paid $7,509.00 for the vehicle and a buyers premium of $525.63. The total being $8,034.63. After purchasing the motor vehicle it was transported to Queensland and the applicant had it assessed by his mechanic. The applicant is seeking the costs of repairing the motor vehicle so that it functions and is fit for purpose. The applicant contacted the first respondent to reject the vehicle and seek a refund. He also contacted his…