Leach v Toyota Motor Corporation Australia Limited

[2022] NSWCATCD 92

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Leach v Toyota Motor Corporation Australia Limited [2022] NSWCATCD 92
Hearing dates:	27 April 2022
Date of orders:	06 June 2022
Decision date:	06 June 2022
Jurisdiction:	Consumer and Commercial Division
Before:	S Hanstein, General Member
Decision:	The application is dismissed.
Catchwords:	CONSUMER LAW — Jurisdiction — NSW Civil and Administrative Tribunal Consumer and Commercial Division — Jurisdiction and powers — Consumer claim —Claim against manufacturer of goods —Where gift to applicant of goods owned by private individual —Whether a supply by a “supplier” — Whether a “consumer claim”
Legislation Cited:	Fair Trading Act 1987 (NSW)
Cases Cited:	Nil
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Lynette Leach (Applicant) Toyota Motor Corporation Australia Limited (Respondent)
Representation:	Graham Judge (Applicant) John Ferris (Respondent)
File Number(s):	MV22/06604
Publication restriction:	Nil

REASONS FOR DECISION

1. The applicant seeks compensation from the respondent, who is the manufacturer, for the cost of repairing paint delamination on her vehicle. The vehicle was gifted to the applicant by her father in law who could no longer drive after suffering serious illness.

2. An issue arises as to whether the Tribunal has jurisdiction to hear and determine this matter.

Relevant law

3. The Tribunal has jurisdiction to hear and determine “consumer claims” (section 79J of the Fair Trading Act 1987 (“Act”)).

4. A “consumer claim” is defined in section 79E of the Act as:

79E Meaning of “consumer claim” (cf CC Act 1998, s 3A)

(1) For the purposes of this Part, a consumer claim means a claim by a consumer, for one or more of the following remedies, that arises from a supply of goods or services by a supplier to the consumer (whether or not under a contract) or that arises under a contract that is collateral to a contract for the supply of goods or services—

(a) the payment of a specified sum of money,

(b) the supply of specified services,

(c) relief from payment of a specified sum of money,

(d) the delivery, return or replacement of specified goods or goods of a specified description.

(2) For the avoidance of doubt, a reference in this Part to a consumer claim includes a reference to a claim by a consumer against a supplier (for example, a manufacturer or wholesaler) who is not the direct supplier of goods or services to the consumer if the claim arises from or in connection with the supply of those goods or services by the direct supplier to the consumer.

5. A “consumer” is defined in section 79D, relevantly, as follows:

consumer means any of the following persons or bodies to whom or to which a supplier has supplied, or agreed to supply, goods or services (whether or not under a contract), or with whom or with which a supplier has entered into a contract that is collateral to a contract for the supply of goods or services—

(a) a natural person,

(b) ...

6. A “supplier” is defined in Section 79D as follows:

supplier means a person who, in the course of carrying on (or purporting to carry on) a business, supplies goods or services.

7. The term “supply” is defined in section 79G, relevantly, as follows:

79G Meaning of “supply” (cf CC Act 1998, s 3 (1) (definition of “supply”) and s 3 (2))

(1) For the purposes of this Part, a reference to the supply of goods includes a reference to any of the following—

(a) supplying goods by way of sale, exchange, lease, hire or hire-purchase,

(b) resupplying goods,

(c) agreeing to supply goods,

(d) supplying goods together with services.

…

Applicant’s case

8. In her application, the applicant stated that she purchased the vehicle, a 2012 Toyota Corolla, in 2019 “privately”. This was clarified in evidence to the effect that: the vehicle was purchased by the applicant’s father in law from a dealership in May 2019 for his use; some time after that, the father in law suffered serious illness and was no longer able to drive; the father in law “gifted” the vehicle to the applicant and it is now registered in her name.

Respondent’s case

9. The respondent contends that the Tribunal has no jurisdiction to hear and determine the application because the applicant is not a “consumer” and the application is out of time.

Consideration

10. I am satisfied that this is not a consumer claim and it follows that the Tribunal does not have jurisdiction to hear and determine it. My reasons are as follows.

11. As can be seen from the definitions set out above, an essential part of being a “consumer” and there being a “consumer claim” is that there has been a supply by a “supplier” to the putative consumer. There will not be a relevant supply unless the entity supplying the goods to the putative consumer does so “in the course of carrying on (or purporting to carry on) a business”.

12. Here, the supply to the applicant was by her father in law and it was not in the course of carrying on a business.

13. The circumstances of this case can be contrasted with the situation where a person (“Person A”) purchases goods as a gift for another person (“Person B”). In that case, where the goods are given directly to person B without any use of them by person A, there might be a supply from the business to person B. However that is not what has happened here. In this case, the applicant’s father in law acquired the vehicle from the dealership for his own use and the dealership supplied the vehicle to the father in law. Only at some time later time was the vehicle gifted to the applicant. In my view that was clearly not a supply by the dealership to the applicant.

14. In light of this conclusion, it is not necessary to determine whether the application was made within time.

Order

15. It follows that the application is dismissed.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 26 August 2022