Freestone Auto Sales Pty Ltd v Musulin - [2015] NSWCA 160

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Freestone Auto Sales Pty Ltd v Musulin [2015] NSWCA 160
Hearing dates: 16 February 2015
Decision date: 11 June 2015
Before: McColl JA at [1]; Ward JA at [2]; Simpson J at [3]
Decision:
(1)  The order of the District Court on 18 December 2013 is quashed;
(2)  The first respondent’s appeal from the Consumer, Trader and Tenancy Tribunal to the District Court is dismissed;
(3)  The first respondent is to pay the applicant’s costs of and incidental to the proceedings in the District Court;
(4)  The first respondent is to reimburse the applicant in the sum of $5132 paid in compliance with the orders of the District Court of 18 December 2013;
(5) The first respondent is to pay the applicant’s costs of and incidental to the proceedings in this Court and have a certificate under the Suitors’ Fund Act 1951 (NSW), if otherwise qualified.
Catchwords:
SUMMONS - Supreme Court Act 1970, s 69 - application to quash decision of District Court - appeal to District Court from Consumer, Trader and Tenancy Tribunal - appeal lies where Tribunal decides a question with respect to a matter of law - District Court erred in law - appeal never properly determined - whether appropriate to remit to District Court - assessment of realistic prospects of success if remitted

MOTOR VEHICLE - vehicle a “repairable write off” - Competition and Consumer Act 2010 (Cth), Sch 2, s 18 and s 54 - conduct of applicant not misleading or deceptive - statutory guarantee as to acceptable quality - remittal to the District Court unlikely to be successful - decision of the District Court quashed - first respondent’s appeal from the CTTT to District Court dismissed
COSTS - success in lower court founded on an erroneous basis - costs awarded to the applicant
Legislation Cited: Australian Consumer Law, s 18, s 54, s 259(3), s 260
Civil and Administrative Tribunal Act 2013 (NSW), s 67
Competition and Consumer Act 2010 (Cth), Sch 2
Consumer, Trader and Tenancy Tribunal Act 2001 (NSW), s 28(2), s 67(1)
Motor Dealers Act 1974 (NSW)
Personal Property Securities Act 2009 (Cth)
Registration of Interests in Goods Act 1986 (NSW)
Suitors’ Fund Act 1951 (NSW), s 6(1)
Supreme Court Act 1970 (NSW), s 48(2), s 69
Cases Cited: Allwood v Peter Vivian Benjafield t/as Benjafield & Associates Lawyers [2014] NSWCA 355
Wende v Horwath (NSW) Pty Ltd [2014] NSWCA 170; 86 NSWLR 674
Category: Principal judgment
Parties: Freestone Auto Sales Pty Ltd (Applicant)
Tenielle Neda Musulin (First Respondent)
District Court of NSW (Second Respondent)
Representation:
Counsel:
L Livingston (Applicant)
D Murr SC/L Ang (First Respondent)
Submitting appearance (Second Respondent)
Solicitors:
TressCox Lawyers (Applicant)
G I & Sanicki Lawyers (First Respondent)
Crown Solicitor’s Office (Second Respondent)

File Number(s): 2014/109268
Decision under appeal

Court or tribunal:

District Court; Consumer, Trader and Tenancy Tribunal

Date of Decision:

DC 18 December 2013
CTTT 29 July 2013

Before:

Curtis DCJ; P R Smith,…

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.

Continue reading Freestone Auto Sales Pty Ltd v Musulin

Details

AGLC: Freestone Auto Sales Pty Ltd v Musulin [2015] NSWCA 160
Case: [2015] NSWCA 160
Decision Date: 11 June 2015

CaseChat Overview and Summary

In *Freestone Auto Sales Pty Ltd v Musulin*, the New South Wales Court of Appeal considered an application to quash a decision of the District Court. The dispute arose from an appeal to the District Court from a decision of the Consumer, Trader and Tenancy Tribunal concerning a motor vehicle.

The primary legal issue before the Court of Appeal was whether the District Court had erred in law in its determination of the appeal from the Tribunal. Specifically, the Court had to consider whether an appeal lay to the District Court on the grounds that the Tribunal had decided a question of law incorrectly, and if so, whether the District Court had properly determined that appeal. The Court also considered the application of the Competition and Consumer Act 2010 (Cth), particularly sections 18 and 54, in relation to the conduct of Freestone Auto Sales Pty Ltd and the statutory guarantee of acceptable quality for the motor vehicle.

The Court of Appeal found that the District Court had erred in law by failing to properly determine the appeal from the Tribunal. It concluded that the conduct of Freestone Auto Sales was not misleading or deceptive under section 18 of the Competition and Consumer Act, and that the vehicle, being a "repairable write off," did not breach the statutory guarantee of acceptable quality under section 54. Given these findings, the Court determined that remitting the matter to the District Court was unlikely to be successful.

Consequently, the Court of Appeal quashed the order of the District Court dated 18 December 2013 and dismissed the first respondent's appeal from the Consumer, Trader and Tenancy Tribunal to the District Court. The first respondent was ordered to pay the applicant's costs of the proceedings in both the District Court and the Court of Appeal.

Orders

Orders of the court

(1) The order of the District Court on 18 December 2013 is quashed;

(2) The first respondent’s appeal from the Consumer, Trader and Tenancy Tribunal to the District Court is dismissed;

(3) The first respondent is to pay the applicant’s costs of and incidental to the proceedings in the District Court;

(4) The first respondent is to reimburse the applicant in the sum of $5132 paid in compliance with the orders of the District Court of 18 December 2013;

(5) The first respondent is to pay the applicant’s costs of and incidental to the proceedings in this Court and have a certificate under the Suitors’ Fund Act 1951 (NSW), if otherwise qualified.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Freestone Auto Sales Pty Ltd v Musulin [2015] NSWCA 160
Hearing dates:	16 February 2015
Decision date:	11 June 2015
Before:	McColl JA at [1]; Ward JA at [2]; Simpson J at [3]
Decision:	(1) The order of the District Court on 18 December 2013 is quashed; (2) The first respondent’s appeal from the Consumer, Trader and Tenancy Tribunal to the District Court is dismissed; (3) The first respondent is to pay the applicant’s costs of and incidental to the proceedings in the District Court; (4) The first respondent is to reimburse the applicant in the sum of $5132 paid in compliance with the orders of the District Court of 18 December 2013; (5) The first respondent is to pay the applicant’s costs of and incidental to the proceedings in this Court and have a certificate under the Suitors’ Fund Act 1951 (NSW), if otherwise qualified.
Catchwords:	SUMMONS - Supreme Court Act 1970, s 69 - application to quash decision of District Court - appeal to District Court from Consumer, Trader and Tenancy Tribunal - appeal lies where Tribunal decides a question with respect to a matter of law - District Court erred in law - appeal never properly determined - whether appropriate to remit to District Court - assessment of realistic prospects of success if remitted MOTOR VEHICLE - vehicle a “repairable write off” - Competition and Consumer Act 2010 (Cth), Sch 2, s 18 and s 54 - conduct of applicant not misleading or deceptive - statutory guarantee as to acceptable quality - remittal to the District Court unlikely to be successful - decision of the District Court quashed - first respondent’s appeal from the CTTT to District Court dismissed COSTS - success in lower court founded on an erroneous basis - costs awarded to the applicant
Legislation Cited:	Australian Consumer Law, s 18, s 54, s 259(3), s 260 Civil and Administrative Tribunal Act 2013 (NSW), s 67 Competition and Consumer Act 2010 (Cth), Sch 2 Consumer, Trader and Tenancy Tribunal Act 2001 (NSW), s 28(2), s 67(1) Motor Dealers Act 1974 (NSW) Personal Property Securities Act 2009 (Cth) Registration of Interests in Goods Act 1986 (NSW) Suitors’ Fund Act 1951 (NSW), s 6(1) Supreme Court Act 1970 (NSW), s 48(2), s 69
Cases Cited:	Allwood v Peter Vivian Benjafield t/as Benjafield & Associates Lawyers [2014] NSWCA 355 Wende v Horwath (NSW) Pty Ltd [2014] NSWCA 170; 86 NSWLR 674
Category:	Principal judgment
Parties:	Freestone Auto Sales Pty Ltd (Applicant) Tenielle Neda Musulin (First Respondent) District Court of NSW (Second Respondent)
Representation:	Counsel: L Livingston (Applicant) D Murr SC/L Ang (First Respondent) Submitting appearance (Second Respondent) Solicitors: TressCox Lawyers (Applicant) G I & Sanicki Lawyers (First Respondent) Crown Solicitor’s Office (Second Respondent)
File Number(s):	2014/109268
Decision under appeal	Court or tribunal: District Court; Consumer, Trader and Tenancy Tribunal Date of Decision: DC 18 December 2013 CTTT 29 July 2013 Before: Curtis DCJ; P R Smith,…