Misura v Harvey

Misura v Harvey involved a dispute between the Applicant, who had purchased a second-hand motor vehicle from Mr Harvey, and Mr Harvey himself. The Applicant sought relief in relation to the condition of the vehicle, which was certified as safe by Thompson Family Racing Pty Ltd, a third party. The Applicant alleged that Mr Harvey had removed the radio and speakers from the vehicle before its collection, despite the safety certificate. The dispute was heard and determined by the Tribunal, which found that Mr Harvey was not a trader under the Australian Consumer Law. The Applicant appealed this decision, seeking relief against both Mr Harvey and Thompson Family Racing Pty Ltd.

The central legal issue before the court was whether the Tribunal had erred in its finding that Mr Harvey was not a trader. The Applicant argued that the Tribunal had failed to consider the full definition of "trader" under the Australian Consumer Law, which includes anyone who supplies goods or services in the course of business. The Applicant contended that Mr Harvey's sale of the motor vehicle constituted a transaction in the course of business, thereby making him a trader. The Applicant also sought to establish a justiciable claim against Thompson Family Racing Pty Ltd for the safety certificate, arguing that the certificate was misleading and that the company had a duty of care towards the Applicant.

In determining the appeal, the court examined the definition of "trader" and the evidence presented to the Tribunal. The court found that the Tribunal had considered the definition of trader but had concluded that Mr Harvey's sale of the motor vehicle did not constitute a transaction in the course of business. The court upheld this finding, noting that the evidence did not support the conclusion that Mr Harvey was engaged in regular sales of motor vehicles as part of a business. Regarding Thompson Family Racing Pty Ltd, the court held that there was no justiciable claim against the company, as it had not been party to the transaction between the Applicant and Mr Harvey and had no duty of care towards the Applicant. The court granted leave to appeal against Mr Harvey but refused leave to appeal against Thompson Family Racing Pty Ltd.

The court ordered that leave to appeal against Mr Harvey was granted, and the decision of the Tribunal was set aside. Mr Harvey was required to pay the Applicant the sum of $828.00 by 23 September 2022. The court refused leave to appeal against Thompson Family Racing Pty Ltd, leaving the Tribunal's decision in relation to the company undisturbed.