Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: Hanif v Car Mart Direct Pty Ltd [2023] NSWCATCD 187 Hearing dates: 29 August 2023 Date of orders: 29 November 2023 Decision date: 29 November 2023 Jurisdiction: Consumer and Commercial Division Before: J Searson, General Member Decision: (1) Car Mart Direct Pty Ltd must immediately accept Sabah Hanif’s return to it of the 2012 Mazda CX5 NSW Registration number DD70UW.
(2) Car Mart Direct Pty Ltd are to be responsible for any towing costs in relation to the return of the vehicle to them.
(3) Car Mart Direct Pty Ltd must pay Sabah Hanif the sum of $26,729.10 on or before 31 December 2023.
(4) Upon Car Mart Direct Pty Ltd’s performance of Orders 1, 2 and 3 above Sabah Hanif must do all things necessary to transfer unencumbered title in the 2012 Mazda CX5 NSW Registration number DD70UW to Car Mart Direct Pty Ltd within 7 days.
Catchwords: CONSUMER LAW — consumer guarantees – major failure – rejection of goods – rejection period – misleading and deceptive conduct — defective goods – costs.
Legislation Cited: Australian Consumer Law NSW
Civil and Administrative Tribunal Act 2013
Civil and Administrative Tribunal Rules 2014
Fair Trading Act 1987
Motor Dealers and Repairs Act 2013
Cases Cited: Alliance Motor Auctions Pty Ltd v Saman [2018] NSWCATAP 137
Australian Knitting Mills Ltd v Grant (1933) 50 CLR 387
Avci v Inchurch Automotive Pty Ltd t/a Parramatta Motor Group [2019] NSWCATCD 39
Barbour v Autosports Five Dock Pty Ltd [2020] NSWCATAP 141
Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304
Burton v Chad One Pty Ltd [2013] NSWDC 301
Cary Boyd v Agrison Pty Ltd [2014] VMC 23
Cehave NV v Bremer Handelsgesellschaft mbH
Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd (No 2) [2014] NSWCA 219
Hardwick Game Farm v Suffolk Agricultural Producers Association [1969] 2 AC 31
in Contact Energy Ltd v Jones [2009] 2 NZLR 830
Matumaini v Automobile Industries Pty Ltd [2017] NSWCATAP 93
Medtel Pty Ltd v Courtney [2003] FCAFC 51
Miller & Associates Insurance Broking v BMW Australia Finance (2010) 241 CLR 357.
Munday v Empire Auto Group Pty Ltd [2019] NSWCATAP 52
Oshlack v Richmond River Council (1998) 193 CLR 72
Perpetual Trustee Company Limited & Anor v Ishak [2012] NSWSC 697
Petropoulos v CPD Holdings Pty Ltd [2019] NSWCATAP 54
Rekrut and Scott v Champion Homes Sales Pty Ltd; Champion Homes Sales Pty Ltd v Rekrut and Scott [2018] NSWCATAP 97
Rigby v LDV Automotive Pty Ltd & Anor [2021] QCAT 316
Sacks v Hammoud [2016] NSWCATAP 225
Safi v Heartland Motors Pty Ltd t/as Heartland Chrysler [2016] NSWCATAP 80
Witton v Taupo Motor Company Limited 29 November 2010
Texts Cited: None cited
Category: Principal judgment Parties: Sabah Hanif (Applicant)
Car Mart Direct Pty Ltd (Respondent)Representation: Applicant (Self Represented)
Mr Brown (Respondent)
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- Case
- [2023] NSWCATCD 187
- Decision Date
CaseChat Overview and Summary
The court considered the statutory provisions governing consumer guarantees and the right to reject goods, as well as the circumstances in which misleading and deceptive conduct may be found. The key issues were whether the defects constituted a major failure warranting rejection, and whether Car Mart Direct Pty Ltd had misled Hanif about the condition of the vehicle. The court found that the defects in the Mazda CX5 amounted to a major failure, and that the respondent had engaged in misleading and deceptive conduct by selling the vehicle knowing it was defective.
In light of these findings, the court ordered that Car Mart Direct Pty Ltd must accept the return of the vehicle and bear any associated towing costs. Hanif was awarded damages for the cost of the vehicle, plus interest. The court also ordered that upon Car Mart Direct Pty Ltd’s compliance with these obligations, Hanif must transfer the vehicle’s title to the respondent. This decision reinforces the importance of consumer protection laws and the remedies available to consumers who are sold defective goods.
Orders
Orders of the court
(1) Car Mart Direct Pty Ltd must immediately accept Sabah Hanif’s return to it of the 2012 Mazda CX5 NSW Registration number DD70UW.
(2) Car Mart Direct Pty Ltd are to be responsible for any towing costs in relation to the return of the vehicle to them.
(3) Car Mart Direct Pty Ltd must pay Sabah Hanif the sum of $26,729.10 on or before 31 December 2023.
(4) Upon Car Mart Direct Pty Ltd’s performance of Orders 1, 2 and 3 above Sabah Hanif must do all things necessary to transfer unencumbered title in the 2012 Mazda CX5 NSW Registration number DD70UW to Car Mart Direct Pty Ltd within 7 days.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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