Ismail v Nissan Motor Co (Australia) Pty Limited

In the Federal Circuit Court of Australia, Ismail brought proceedings against Nissan Motor Co (Australia) Pty Limited over the alleged failure of the respondent to supply a vehicle in acceptable quality under the Australian Consumer Law. The applicant claimed compensation for the diminution of value of the vehicle, the cost for work not performed, and the cost to rectify defective work. The central issue for the court was whether the respondent had supplied a vehicle that met acceptable quality standards, and if so, what remedies were available to the applicant. The court had to consider the nature and extent of the defects, the cost of rectifying the defects, and the diminution in value of the vehicle as a result of the defects.

The court considered the evidence provided by both parties and the expert report on the defects in the vehicle. It found that the respondent had not supplied a vehicle in acceptable quality as there were defects in the transmission oil pump and the transmission mountings. The court held that the applicant was entitled to compensation for the diminution of value of the vehicle, but not for the cost of work not performed or the cost to rectify defective work. The court reasoned that the applicant had not provided sufficient evidence to establish the amount of the costs for work not performed or to rectify defective work. The court also found that the applicant had not taken reasonable steps to mitigate the loss by failing to have the defects rectified by an independent mechanic.

The court ordered that the respondent replace the transmission oil pump and the transmission mountings in the applicant's vehicle in a proper and workmanlike manner before the expiration of four weeks from the date of the orders at no cost to the applicant. The balance of the application was dismissed. The court did not order any compensation for the diminution of value of the vehicle as the applicant had not provided sufficient evidence to establish the amount of the loss. The court also held that the applicant was not entitled to compensation for the cost of work not performed or to rectify defective work as there was insufficient evidence to establish the amount of the costs.