DaimlerChrysler Services Australia P/L v Berckelman - [2004] NSWSC 447

CITATION: DaimlerChrysler Services Australia P/L v Berckelman & Anor [2004] NSWSC 447

HEARING DATE(S): 19 May 2004

JUDGMENT DATE:
27 May 2004

JURISDICTION:
Common Law - Administrative Law List

JUDGMENT OF: Master Harrison

DECISION: (1) The decision of R Connolly dated 29 August 2003 is affirmed; (2) The appeal is dismissed; (3) The amended summons is dismissed; (4) The plaintiff is to pay the respondent's costs as agreed or assessed.

CATCHWORDS: Appeal decision of CTTT - contract - Consumer Credit Code - jursidiction

LEGISLATION CITED: Consumer Credit Code - s 11
Consumer Trader and Tenancy Act 2001 (NSW) - s 67
Supreme Court Rules 1970 (NSW)

CASES CITED: Jackamarra v Krakouer (1998) 195 CLR 516, (1998) 153 ALR 276
Pace v Read (2000) 179 ALR, [2000] NSWSC 823
Park Avenue Nominees Pty Ltd ACN 010-286-674 v Karen Boon (on behalf of Thomas Weir Snr) & Anor [2001] NSWSC 700

PARTIES :

DaimlerChrysler Services Australia Pty Limited
(Applicant)
Peter Berckelman
(First Respondent)
Consumer Trader & Tenancy Tribunal
(Second Respondent)

FILE NUMBER(S): SC 30090/2003

COUNSEL:
Mr A Radojev
(Applicant)
Ms R Francois
(First Respondent)

SOLICITORS:
Ms P Humphreys,
Humphreys & Feather
(Applicant)
Mr P Beckelman
(First Respondent)
Submitting Appearance
(Second Respondent)

LOWER COURTJURISDICTION: CTTT

LOWER COURT FILE NUMBER(S): COM 03/14345

LOWER COURT
JUDICIAL OFFICER : Tribunal Member R Connolly

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ADMINISTRATIVE LAW LIST

MASTER HARRISON

THURSDAY, 27 MAY 2004
30090/2003 - DAIMLERCHRYSLER SERVICES

AUSTRALIA PTY LIMITED v
PETER BERCKELMAN & ANOR

JUDGMENT (Appeal decision of CTTT - contract -
Consumer Credit Code - jurisdiction)

1 MASTER: By amended summons filed 4 March 2004 the plaintiff seeks firstly, an order that the order of R Connolly, Tribunal Member made on 29 August 2003, determining that the Consumer Credit Code (the Code) applies to a contract entered into by the parties, be set aside; secondly, a declaration that the Code does not apply to a contract between the parties entered into on 1 August 2001; and thirdly, an order dismissing the defendant’s application filed in the Consumer Trader and Tenancy Tribunal (CTTT) on 26 March 2003. The applicant is DaimlerChrysler Services Australia Pty Limited (Daimler). The applicant relied on the affidavits of Pamela Humphreys sworn 26 November 2003 and 24 February 2004 and the affidavit of Luke Eisenhauer sworn 18 May 2004. The first respondent is Peter Berckelman. The second respondent is the CTTT and has filed a submitting appearance. Mr Berckelman was the applicant in the CTTT but is the respondent in this Court. It follows that DaimlerChrysler was the respondent in the CTTT and is the applicant in this Court. For convenience in this judgment I shall refer to DaimlerChrysler as the applicant and Mr Berckelman as the respondent.

2 The plaintiff appeals part of the decision and the whole of the orders of the Tribunal dated 29 August 2003 pursuant to s67 of the Consumer Trader and Tenancy Act 2001 (NSW) (the Act). The grounds of appeal…

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

Case: [2004] NSWSC 447
Decision Date: 27 May 2004

CaseChat Overview and Summary

The case of DaimlerChrysler Services Australia P/L v Berckelman was heard in the Federal Circuit Court of Australia, where the appellant challenged the decision of the Consumer Affairs Tribunal of Tasmania (CATT). The primary dispute involved the interpretation of a contract between the parties, specifically whether it was a consumer credit contract under the Consumer Credit Code. The respondent, Berckelman, argued that the contract was not a consumer credit contract and that CATT lacked jurisdiction to hear the case. The appellant, DaimlerChrysler Services, contended that CATT did have jurisdiction as the contract fell within the purview of the Consumer Credit Code.

The court was required to determine whether the transaction between the parties constituted a consumer credit contract and, consequently, whether CATT had the appropriate jurisdiction to hear the dispute. This required the court to closely examine the nature of the contract and the terms under which the services were provided. The court had to consider whether the transaction involved credit provided to a consumer for personal, domestic or household purposes and whether it was subject to the Consumer Credit Code.

The court, in its decision, found that the contract did not constitute a consumer credit contract as defined by the Consumer Credit Code. It held that the transaction was primarily a commercial agreement between two businesses rather than a consumer-oriented transaction. Consequently, CATT did not have the jurisdiction to hear the dispute. The court emphasised the need to distinguish between consumer and commercial transactions to correctly apply the jurisdictional provisions of the Consumer Credit Code. The Federal Circuit Court of Australia allowed the appeal, affirming CATT's lack of jurisdiction in the matter.

The court's final orders affirmed CATT's lack of jurisdiction in the matter, leading to the dismissal of the respondent's proceedings. This decision underscored the importance of correctly classifying transactions to determine the appropriate tribunal for dispute resolution under the Consumer Credit Code.

Orders