Next Level Skin Pty Ltd v Volvo Car Australia Pty Ltd

[2025] NSWCATCD 119

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Next Level Skin Pty Ltd v Volvo Car Australia Pty Ltd [2025] NSWCATCD 119

Hearing dates:

9 April 2025 and 25 June 2025

Date of orders:

15 August 2025 (Amended 15 August 2025)

Decision date:

15 August 2025

Jurisdiction:

Consumer and Commercial Division

Before:

G A Kinsey General Member

Decision:

The Tribunal makes the following amended orders under section 63 of the Civil Administrative Tribunal Act 2013:

(1)   The Application is dismissed.

(2)   In the event that a party (“the costs applicant”) makes an application for costs, such application must be lodged in the Tribunal and served on or given to the other party (“the costs respondent”) within 14 days of the date of the orders in these proceedings either by attaching or referring to the documents relied upon in support of the application.

(3)   The costs respondent will have 14 days after the date it receives the application to lodge in the Tribunal and serve on or give to the costs applicant its submissions, if any, in response to the costs application, attaching or referring to any documents relied upon in support of its submissions.

(4)   The parties must state in their submissions if they consent to the costs application being determined based on the parties written submissions and attached documents, if any, without the need for a hearing.

(5)   Subject to the parties’ submissions, the Tribunal will determine any costs application made based on the submissions and papers filed in the Tribunal.

Catchwords:

CONSUMER LAW-Consumer guarantees under Australian Consumer Law-whether motor vehicle of acceptable quality-test of acceptable quality in section 54 of Australian Consumer Law- consideration of consumer guarantee in section 55 of Australian Consumer Law-whether motor vehicle fit for purpose - whether repair to motor vehicle took unreasonable time-whether breach of consumer guarantees established- remedies for breach of consumer guarantees against suppliers and manufacturers

Legislation Cited:

Australian Consumer Law 2010(NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Fair Trading Act 1987 (NSW)

Cases Cited:

Australian Competition and Consumer Commission v Jayco Corporation Pty Ltd [2020] FCA 1672

Dwyer v Volkswagen Group Australia Pty Ltd [2021] NSWSC 715

Frediani v Hall t/as Happy Camper Conversions [2024] NSWCATAP 134

LSH Auto (Sydney) Pty Ltd v Sherman (No 2) [2021] NSWCATAP 272

Matumaini v Automobile Industries [2017] NSWCATAP 93

Volkswagen Group Australia Pty Ltd v Saad [2022] NSWCATAP 133

Williams v Toyota Motor Corporation Australia Limited; Toyota Motor Corporation Australia Limited v Williams [2024] HCA 38

Williams v Toyota Motor Corporation Australia Limited [2023]FCAFC50

Texts Cited:

Nil

None

Category:

Principal judgment

Parties:

Next Level Skin Pty Ltd (Applicant)
Volvo Car Australia Pty Ltd (First Respondent)
Peter Warren Automotive Pty Ltd trading as Volvo Cars Liverpool (Second Respondent)

Representation:

Solicitor for Applicant: Genevieve Hehir of Baybridge
Solicitors for First Respondent: Callum McInnes and Sonny Scott of CIE Legal (First Respondent)
Adam Augustynowicz (Dealer Principal) for the Second Respondent

File Number(s):

2024/00387005

Publication restriction:

Unrestricted

REASONS FOR DECISION

Parties

1. The Applicant (hereinafter referred to as “NLS”) was the purchaser of a Volvo C40 Electric Demonstrator motor vehicle registration **** (“the Motor Vehicle”) from Volvo Cars Liverpool on or about 3 June 2023.

2. The First Respondent is the manufacturer of the vehicle. For the sake of convenience, the First Respondent shall hereinafter be referred to as “the Manufacturer”.

3. The Second Respondent carried on business as a licensed motor dealer and traded as Volvo Cars Liverpool. For the sake of convenience, the Second Respondent shall hereinafter be referred to as “the Dealer”.

Application

4. In an application filed in the Tribunal on 18 October 2024, NLS requested an order that the Manufacturer and the Dealer provide it with a full refund of the purchase price of the Motor Vehicle.

5. In its application NLS alleged the vehicle was not of acceptable quality in breach of section 54 of Australian Consumer Law (“the ACL”). The application listed various defects and repairs to the Motor Vehicle, delays in having work done and ongoing problems with the vehicle’s performance.

6. Ms Palvasha Naziry (“Naziry”), a director of NLS, stated in the application:

I am requesting a full refund for the vehicle, as I no longer have confidence that these issues can be permanently resolved.

7. The application was amended on 7 November 2025 to seek a refund of $80,000.00 and foreseeable losses of $15,000.00.

Procedural Directions

8. The Tribunal made directions on 7 November 2024 and 2 December 2024 for the parties to file and serve documents on which they intended to rely at the hearing. Bundles of documents were received from NLS and the Manufacturer. The Dealer did not file and serve any evidence but relied on the documents filed by the Manufacturer.

9. The documents received from NLS and the Manufacturer were tendered as evidence in the proceedings.

Evidence of NLS

10. The documents tendered by NLS included the following:

1. Points of Claim;

2. Vehicle Purchase Agreement for the Motor Vehicle dated 3 June 2023;

3. Statement of Account from Power Torque Finance;

4. Payout Quote from Power Torque Finance dated 13 January 2025;

5. Service and Repair Invoices issued by the Dealer;

6. EV Charger invoice and receipt for payment;

7. Vehicle registration certificate and CTP Insurance documents

8. Email correspondence between NLS and the Dealer.

9. Expert Report of Joseph Gabko dated 12 January 2025 (“the Gabko Report”).

11. At the hearing, NLS tendered 2 technical reports AU 365000 and AU 376692, and an updated payout figure from Power Torque Finance dated 8 April 2025.

12. The documentary material was supplemented by oral testimony from Palvasha Naziry, and expert oral testimony from Joseph Gabko and Graham Judge.

13. Subsequent to the hearing, the Tribunal received from NLS revised payout figures provided by Power Torque Finance in accordance with leave given by the Tribunal.

Evidence of the Manufacturer

14. The documents tendered by Volvo Cars included the following:

1. Points of Defence;

2. Expert Report of Dr Andrew George dated 6 March 2025 (“the George Report”);

3. Five Service Invoices from the Dealer.

15. The documentary material was supplemented by expert oral testimony from Dr Andrew George.

Evidence from the Dealer

16. The Dealer did not file any evidence in the proceedings. It sought to rely on evidence given on behalf of the Manufacturer.

CONSIDERATION

Factual Findings

17. The Tribunal makes the following findings of fact:

1. NLS is a “consumer” as defined in section 3 of the ACL;

2. The Dealer is a licensed motor dealer which conducted business as Volvo Cars Liverpool from premises at Todman Road Warwick Farm;

3. The Manufacturer is a vehicle manufacturer of Volvo motor vehicles including the Motor Vehicle.

4. On 3 June 2023 NLS contracted to purchase the Motor Vehicle being a Demonstrator Volvo C 40 Recharge Pure Electric Single Speed Auto Wagon for a price of $79,500.00 from the Dealer.

5. he Sales Contract recorded the odometer reading at the time of purchase as 1024 kilometres.

6. The purchase of the Motor Vehicle was financed through Power Torque Finance.

7. The amount financed was $79,880.00.

8. The Motor Vehicle was delivered to NLS on 17 June 2023.

9. At the time of purchase, Naziry and NLS were made aware of 2 bubbles in the glass roof which the Dealer agreed to repair under warranty.

10. The Motor Vehicle was booked in for service in July 2023 but the appointment was cancelled by NLS.

11. The Motor Vehicle was booked in for service with the Dealer on 4 June 2024 for replacement of the sunroof glass.

12. The Dealer’s Service Invoice VOCVS111952 recorded the work undertaken as:

GLASS IMPERFECTION IN SUNROOF

Inspected internal fault on the sunroof glass

Sent TR#365000 found sunroof glass to have imperfection distorted glass and requires replacement

Carried out removal of the roof lining and windscreen removed sunroof glass and refitted in reverse order

Tested all okay

13. In addition, the Dealer inspected the wireless charger for faults and found it was working within specifications.

14. Whist the Motor Vehicle was in for service, the Dealer supplied a loan car to Ms Naziry.

15. NLS reported that after the repair of the sunroof, it rattled when driving on rough surfaces.

16. The Motor Vehicle was booked in with the Dealer on 17 July 2024 for a 30,000 kilometres service, and for repair of the faulty driver side sunvisor, replacement of the glovebox lid and front wipers, and to identify the cause of the rattling.

17. The Dealer’s Service Invoice VOCVS 114195 detailed the work which was performed on the Motor Vehicle. In respect of the roof, the Technician recommended obtaining a quote from a smash repairer.

18. The Dealer’s Service Invoice recorded the odometer reading as 29641 kilometres as at 17 July 2024.

19. The Dealer supplied NLS with a loan car whilst the vehicle was in for service and repairs.

20. NLS was dissatisfied with the repairs. Naziry complained the sunroof still rattled and she had issues with the cruise control, light in the centre console and wireless charger.

21. The Motor Vehicle was returned to the Dealer for repairs on 1 October 2024.

22. On 4 October 2024 NLS sent an email to the Manufacturer which relevantly stated:

I am writing to formally reject the vehicle and ask for a buyback of my Volvo C 40 rego ****, under the Australian Consumer Law, as the vehicle I purchased has been considered unfit for purpose. I have returned the vehicle for repairs on multiple occasions due to the same issues, yet these problems persist, and I have now lost faith in its reliability and quality.

23. In her email, Naziry listed 6 defects which impacted the vehicle’s safety and reliability.

24. On 18 October 2025, NLS filed an application to NCAT

25. On 24 October 2024, Naziry went for a test drive with a representative of the Dealer.

26. Following the test drive, NLS sent an email to the Dealer on 31 October 2024 requesting a full refund of the purchase price. NLS alleged the Motor Vehicle had persistent faults which compromised the vehicle’s safety, the Manufacturer had engaged in misleading conduct and alleged breaches of the ACL.

27. In an email from Adam Augustynowicz to Naziry on 5 November 2025, the Dealer rejected the claims made by NLS and asserted:

“The vehicle meets all Manufacturer’s specifications including Australian Consumer Law guarantees.”

28. The Dealer’s Service Invoice VOCVS115608 dated 8 November 2024 records the odometer reading as 34189 kilometres.

NLS Causes of Action

18. The Points of Claim filed by NLS pleaded the following causes of action:

1. Breach of the consumer guarantee of acceptable quality in section 54 of the ACL;

2. Breach of the consumer guarantee in section 55 of the ACL in that the Motor Vehicle was not fit for purpose;

3. Breach of the consumer guarantee in section 58 of the ACL in that the repairs to the Motor Vehicle were not completed within a reasonable time frame.

19. As a result of the alleged breaches, NLS submitted there had been a major failure which entitled it to a full refund of the purchase price of $79,500 and consequential losses.

Is the claim a Consumer Claim?

20. I find that the claim is a “consumer claim” as defined in section 79E of the Fair Trading Act 1987 (“the FTA”).

21. I find that NLS is a consumer, the Manufacturer and the Dealer are suppliers and the application is a claim by a consumer that arises from a supply of goods and services by a supplier to a consumer under a contract made in New South Wales.

22. I find that the application was made within the 3 years period from the date on which the causes of action arose (Section 79L(1)(a) of the FTA). The Tribunal has jurisdiction to make the orders sought by NLS. I find the Tribunal has jurisdiction to hear and determine the application.

General Principles- An Overview of Section 54 of the ACL

23. NLS submitted the vehicle was not of acceptable quality in that it was not free from defects, safe, durable, and not fit for purpose in breach of the consumer guarantee in section 54 of the ACL.

24. Section 54 of the ACL is in the following terms:

Guarantee as to acceptable quality

(1) If:

(a) a person supplies, in trade or commerce, goods to a consumer; and

(b) the supply does not occur by way of sale by auction;

there is a guarantee that the goods are of acceptable quality.

(2) Goods are of acceptable quality if they are as:

(a) fit for all the purposes for which goods of that kind are commonly supplied; and

(b) acceptable in appearance and finish; and

(c) free from defects; and

(d) safe; and

(e) durable;

as a reasonable consumer fully acquainted with the state and condition of the goods (including any hidden defects of the goods), would regard as acceptable having regard to the matters in subsection (3).

(3) The matters for the purposes of subsection (2) are:

(a) the nature of the goods; and

(b) the price of the goods (if relevant); and

(c) any statements made about the goods on any packaging or label on the goods; and

(d) any representation made about the goods by the supplier or manufacturer of the goods; and

(e) any other relevant circumstances relating to the supply of the goods.

(4) If:

(a) goods supplied to a consumer are not of acceptable quality; and

(b) the only reason or reasons why they are not of acceptable quality were specifically drawn to the consumer’s attention before the consumer agreed to the supply;

the goods are taken to be of acceptable quality.

(5) If:

(a) goods are displayed for sale or hire; and

(b) the goods would not be of acceptable quality if they were supplied to a consumer;

the reason or reasons why they are not of acceptable quality are taken, for the purposes of subsection (4), to have been specifically drawn to a consumer’s attention if those reasons were disclosed on a written notice that was displayed with the goods and that was transparent.

(6) Goods do not fail to be of acceptable quality if:

(a) the consumer to whom they are supplied causes them to become of unacceptable quality, or fails to take reasonable steps to prevent them from becoming of unacceptable quality; and

(b) they are damaged by abnormal use.

(7) Goods do not fail to be of acceptable quality if:

(a) the consumer acquiring the goods examines them before the consumer agrees to the supply of the goods; and

(b) the examination ought reasonably to have revealed that the goods were not of acceptable quality

25. In Matumaini v Automobile Industries [2017] NSWCATAP 93 the Appeal Panel stated at [73]:

“The question which the Tribunal had to consider and answer was whether, at the time of the sale, the vehicle was of acceptable quality as that phrase is defined in s 54 (2) of the ACL NSW. In other words, it was not necessary for the Appellant to prove that at the time of the sale, there was a particular identified defect which caused the vehicle not to be of an acceptable standard.”

26. Section 54 of the ACL and the remedies available to consumers against suppliers for non- compliance have been the subject of judicial consideration in recent years.

27. In LSH Auto (Sydney) Pty Ltd v Sherman (No 2) [2021] NSWCATAP 272 the Appeal Panel set out the legal principles applicable in a case involving a claim under section 54 of the ACL at [35]-[36]:

35 The relevant principles to apply in a case such as the present were summarised by Derrington J in Vautin v By Winddown (No 4) [2018] FCA 426; (2018) 362 ALR 702 as follows:

“[142] Mr Vautin asserts that the existence of the construction defects in the sandwich core panels of Revive means that the vessel is not of an “acceptable quality” within the meaning of the guarantee imposed by s 54 of the ACL. In determining whether the guarantee in that section is contravened the following matters are relevant:

(a) The test as to whether goods are of an “acceptable quality” is an objective one; being taken from the perspective of a “reasonable consumer” (APS Satellite Pty Ltd (formerly known as Sky Mesh Pty Ltd) v Ipstar Australia Pty Ltd [2016] NSWSC 1898 (APS Satellite Pty Ltd) at [57]; Merck Sharp & Dohme (Australia) Pty Ltd v Peterson (2011) 196 FCR 145; 284 ALR 1; [2011] FCAFC 128).

(b) The question for the “reasonable consumer” is whether the goods in question the identified qualities have enumerated in 54(2) to an “acceptable standard”. This requirement is derived from the words “as a reasonable consumer ... would regard as acceptable”.

(c) The “acceptable standard” is used as the yardstick against which the qualities of the goods are to be measured. It is ascertained by a consideration of the matters referred to in s 54(3); the nature of the goods, their price, any statement made about the goods on packaging or labels, any representations made about the goods by the supplier or manufacturer, and any other circumstance relating to their supply.

(d) It is necessary the goods have all of the qualities identified in s 54(2) to the ascertained acceptable standard. Those qualities are that the goods are fit for all the purposes for which goods of that kind are commonly supplied, acceptable in appearance and finish, free from defects, safe and durable.

(e) In the assessment of whether the goods meet that relevant standard, the reasonable consumer is taken to be fully acquainted with the state and condition of the goods (including any hidden defects of the goods).

(f) If the goods supplied do not have all of the identified qualities to the acceptable standard, they will not be of an “acceptable quality”.

[143] In compendious terms, the issue is whether, objectively, the goods supplied (when taking into account their actual quality including any latent defects) are, to an acceptable standard, fit for all the purposes for which goods of that kind are commonly supplied, acceptable in appearance and finish, free from defects, safe and durable when measured by a standard which reflects the nature of the goods, their price, statements about the good as per their packaging, representations made about the goods and any other relevant circumstance. In Prestige Auto Traders Australia Ltd v Bonnefin [2017] NSWSC 149 at [132] N Adams J identified the manner in which s 54 should be applied in the following way:

“The relevant test in s 54(2) of the ACL (NSW) of whether or not goods are of “acceptable quality” is an objective one based on whether a reasonable consumer who was aware of the “defects” in the goods at the time of the supply would have considered them to be of acceptable quality. There was no issue taken that the determination of what is objectively reasonable for a consumer to expect is to be made taking into account the relevant information known as at the time of the trial, including “after-acquired knowledge”: Medtel Pty Ltd v Courtney (2003) 130 FCR 182; 198 ALR 630; [2003] FCAFC 151 at [66] and [70].”

36 In Australian Competition and Consumer Commission v Jayco Corporation Pty Ltd [2020] FCA 1672 Wheelahan J said:

“[25] ... The standards under s 54(2) include that goods will be fit for all purposes for which goods of that kind are commonly supplied. This general standard of fitness for purpose is not dependent upon the consumer communicating any intended purpose to the supplier or relying upon the supplier’s skill or judgment. And, in relation to the general standard, it does not suffice that the goods will be fit for only some of those purposes.

[26] The standard of acceptable quality in s 54(2) has as its reference point a construct, namely the objective standard of a reasonable consumer fully acquainted with the state and condition of the goods, including any hidden defects of the goods. The reasonable consumer sits with an array of other hypothetical persons who have been recruited by the law and by reference to whom objective standards are evaluated: see, Healthcare at Home Ltd v The Common Services Agency [2014] UKSC 49; 4 All ER 210 at [1]- [4] (Lord Reed JSC). Such a person has been described as an anthropomorphic conception of justice that is and must be the court itself: see Davis Contractors Ltd v Fareham Urban District Council [1956] UKHL 3; [1956] AC 696 at 728 (Lord Radcliffe).

[27] The hypothetical question whether the reasonable consumer would have regarded the quality of the goods as acceptable is to be determined at the time of supply. However, the reference in s 54(2) to hidden defects has the consequence that for the purposes of determining that question, the reasonable consumer may be acquainted with information known at the time of trial: cf, Medtel Pty Ltd v Courtney [2003] FCAFC 151; 130 FCR 182 at [70] (Branson J, Jacobson J agreeing). The standard of acceptable quality prescribed by s 54(2) is not absolute, or a standard of perfection. It is tempered by what a reasonable consumer would regard as acceptable having regard to the several matters in s 54(3). These matters render the standard of acceptable quality elastic, and context specific: Contact Energy Ltd v Jones [2009] NZHC 2631; [2009] 2 NZLR 830 at [95] (Miller J). The significance of the components of the guarantee of acceptable quality will therefore vary with the circumstances of each case.”

The standard of acceptable quality is the objective standard of a reasonable consumer fully acquainted with the state and condition of the goods including any hidden defects. The standard of acceptable quality is not absolute or a standard of perfection. It is elastic and depends on the circumstances of each case.

28. In Frediani v Hall t/as Happy Camper Conversions [2024] NSWCATAP 134 the Appeal Panel summarised the legal principles applicable to a consideration of sections 54(2) and 54(3) of the ACL. The Appeal Panel stated at [18]-[19]:

18. The matters in s 54(3) are “mandatory considerations” to establish whether or not goods are not of acceptable quality under s 54(2)(a)-(e) such that a reasonable consumer, fully acquainted with the state and condition of the goods, would regard the goods as being of acceptable quality, determined at the date of the supply of the goods (Ford Motor Company of Australia Pty Ltd v Capic [2023] FCAFC 179 (Capic-Appeal) at [43] and [56]).

19. The principles applicable to s 54(2) of the ACL can be summarised as follows:

(1) The “reasonable consumer” in s 54(2) is assessed objectively, and idiosyncratic subjective views by the consumer about the state or condition of the goods or what is, or is not, acceptable, is irrelevant (Toyota Motor Corporation Australia Limited v Williams (2023) 296 FCR 514; [2023] FCAFC 50 (Williams-Appeal) at [42]-[43]).

(2) Section 54 of the ACL requires consideration of at least some knowledge acquired after supply, or else it would not be possible to hold that goods were not of acceptable quality by reason of a latent or hidden defect (Capic-Appeal at [57]).

(3) The statutory language of s 54(2) does not confine “acceptable quality” to “not potentially fatal” or “unusable” (Capic-Appeal) at [53].

(4) The existence of a manufacturer’s warranty should generally have no bearing on the question of whether the goods comply with the statutory guarantees of acceptable quality (Capic-Appeal at [63], applying Jayco at [43]; and Toyota Motor Corporation Australia Limited v Williams (2023) 296 FCR 514; [2023] FCAFC 50 at [45]).

(5) The consumer guarantee in s 54 should not be “read down” because it could otherwise lead to a “disproportionate outcome” (Capic-Appeal at [75]).

(6) A reasonable consumer in the hypothetical circumstances in s 54 would be aware that motor vehicles are complicated pieces of machinery that may develop future problems that may require rectification by the vehicle’s manufacturer during its lifetime, and a merely speculative theoretical possibility of a future problem may not be regarded as unacceptable by a reasonable consumer (Dwyer v Volkswagen Group Australia Pty Ltd t/as Volkswagen Australia [2021] NSWSC 715 at [158]; Dwyer v Volkswagen Group Australia Pty Ltd [2023] NSWCA 211 at [154]- [156]).

(7) A reasonable consumer being aware that motor vehicles are complicated pieces of machinery that may develop problems is different to a reasonable consumer accepting that a vehicle, because of a defect already present at the time of supply, cannot be used in a reasonable and normal way without malfunctioning and consequently exposing the vehicle one or more non-trivial adverse consequences (Williams v Toyota Motor Corporation Australia Limited [2022] FCA 344 at [198]; Capic v Ford Motor Company Pty Ltd [2021] FCA 715 at [636]).

29. In Williams v Toyota Motor Corporation Australia Limited; Toyota Motor Corporation Australia Limited v Williams [2024] HCA 38 (“Williams”) the High Court stated at [33]-[34]:

33. Section 54(2) posits a hypothetical inquiry as to what a reasonable consumer at the time of supply would regard as acceptable if the reasonable consumer was “fully acquainted with the state and condition of the goods”, including any “hidden defects”. At least in a case involving a hidden defect, an inquiry into whether the guarantee has been complied with requires attributing to a reasonable consumer, at the time of supply, later acquired knowledge of the defect that renders the goods below an acceptable quality. The attributed knowledge of the defect must be knowledge that would render a reasonable consumer “fully acquainted” with the true state and condition of the goods; it follows that this must include full knowledge of or acquaintance with the defect, including later acquired knowledge of the propensity of the defect to occasion adverse consequences and the nature of those consequences, even if understandings of those matters vary over the period of time leading up to the trial.

34. If such knowledge is attributed to a reasonable consumer at the time of supply, there is no reason why later acquired knowledge of the capacity to repair the defect or ameliorate its consequences, including when, how and at what cost those repairs or ameliorative steps could be undertaken, should not also be attributed. Those matters are characteristics of the nature and seriousness of the defect and, in turn, the state and condition of the goods. Knowledge of those matters cannot be divorced from what constitutes the relevant “defect”, even though they may not necessarily preclude the defect from rendering the goods in breach of the guarantee in s 54.

30. The authorities make it clear that assessment of whether goods are of acceptable quality under section 54(2) of the ACL is conducted objectively, not subjectively.

31. The test as to whether goods are of an “acceptable quality” is an objective one being taken from the perspective of a “reasonable consumer” fully acquainted with the state and condition of the goods (including any hidden defects of the goods).

32. The inquiry is made by reference to a hypothetical reasonable consumer, not by reference to the individual consumer to whom the goods are supplied in any particular case: Williams v Toyota Motor Corporation Australia Limited [2023] FCAFC 50 at [42].

33. The remedies available to a consumer for breach of the consumer guarantees in the ACL are different depending on whether the claim is against the supplier or manufacturer.

34. Part 5-4 Division 1 of the ACL (sections 259-270) deals with actions against suppliers of goods. The remedies include repair, replacement and refund depending on matters including whether the failure to comply is a “major failure”, and whether the goods have been rejected within the rejection period.

35. In these proceedings, the Dealer is the supplier of the Motor Vehicle.

36. Part 5-4 Division 2 of the ACL (Sections 271-272 of the ACL) set out the damages which are available against manufacturers of goods. The damages available are for the reduction in the value of the goods resulting from the failure to comply with the consumer guarantee and the recovery of any loss or damage which was reasonably foreseeable because of the failure to comply with the consumer guarantee.

37. In these proceedings, the Manufacturer is the manufacturer of the Motor Vehicle.

Expert Evidence for NLS

38. NLS relied on the Gabko Report and oral evidence from Graham Judge to establish the Motor Vehicle was not of acceptable quality under section 54 (2)(a)-(e) such that a reasonable consumer, fully acquainted with the state and condition of the Motor Vehicle, would regard the Motor Vehicle as being of acceptable quality, determined at the date of the supply of the Motor Vehicle.

39. In its Points of Claim, NLS submitted the Dealer and the Manufacturer “failed to meet their obligations under the ACL by supplying a vehicle that is not of acceptable quality, does not match its marketed description as a premium, safe and quiet vehicle, and required unreasonable repair times, causing significant inconvenience.”

40. The Tribunal is satisfied Joseph Gabko (“Gabko”) has sufficient knowledge, skill and experience to express the opinions and conclusions in the Gabko Report. He is the holder of trade qualifications as an auto electrician and motor mechanic with 40 years’ experience in the automotive industry. The Gabko Report was prepared in a manner compliant with the NCAT Practice Direction 3 concerning expert evidence and which includes the Expert’s Code of Conduct.

41. He was instructed by Naziry “to examine and test the vehicles ADAS (Advanced Driver Assist Systems- referred to by Volvo as Pilot and Co-Pilot) and prepare a report on my findings relating to the operational status of the vehicle’s driver assist functions.”

42. Naziry informed Gabko that when she purchased the Motor Vehicle, “the cruise control was functioning correctly” and “the problems have started since the glass roof was replaced.”

43. Gabko noted NLS’s complaints as:

1. Adaptive Cruise Control - The adaptive cruise control failed to decelerate when approaching a stationary vehicle in front, requiring manual intervention and creating a significant safety hazard.

2. Glass Roof Imperfections – The glass roof was replaced due to the glass being distorted.

3. Sun Visor Malfunction – The sun visor failed to remain in the adjusted position and the sun visor courtesy lights malfunctioned.

4. Wireless Charger- The wireless charger intermittently and inconsistently in its operation.

5. Roof Rattling- This issue first occurred after the replacement of the glass roof and was not resolved at the date of inspection ie 16 November 2024.

6. Interior Roof Lighting – The interior roof lighting fails intermittently resulting in the non-illumination of the interior cabin of the vehicle.

7. Bluetooth Connectivity – The Bluetooth connectivity between the vehicle and mobile devices was inconsistent, unreliable and problematic.

44. Gabko examined the service history of the Motor Vehicle and set out a chronology in his report.

45. At point 6.11 of the Gabko Report (Understanding ADAS Advanced Driver Assist Schemes), Gabko provides a brief history of the development of ADAS.

46. At 6.11.3 Gabko makes the following observation:

It is crucial to acknowledge that Advanced Driver Assistance Systems (ADAS), Driver Support, Driver Assist Pilot and Co-Pilot systems do not constitute autonomous driving systems. These technologies along with their varying functionalities between vehicle manufacturers, are solely intended to assist drivers and improve safety for vehicle occupants and other road users, thereby mitigating the risk of collisions.

47. Gabko sought information from the Manufacturer’s website and vehicle manual about the operation of the driver assist functions in the Motor Vehicle. He included in his report information about the operation of the Pilot Assist function and collision avoidance system.

48. Relevantly, Gabko included pages from the website Volvocars.com/au which provided detailed information on the functionality of each system fitted to the Motor Vehicle.

49. On the page headed “Detection of obstacles with assistance at risk of collision”, the Manufacturer included the following warning about the limitations of the function:

Warnings and brake interventions could be late or not occur at all. The driver is always responsible that the vehicle is driven correctly and with a safety distance adapted to the speed.

50. On the page headed “Pilot Assist”, there is a further warning:

Driver Responsibility

As a driver, you are responsible for doing everything possible to ensure your own safety as well as that of your passengers and others.

51. As part of his evaluation of the Motor Vehicle, Gabko took it for a test drive and noted the vehicle’s performance under varying conditions. Ms Naziry and Graham Judge were in the vehicle within him during the test drive.

52. Graham Judge recorded Gabko’s test drive on video and the Motor Vehicle’s performance in different scenarios. Various images from the video are included in his report to highlight the problems with the ADAS.

53. During the test drive, Gabko observed that the vehicle did not warn Naziry whilst she was driving of any frontal or rearward collision warnings (Point 7.4 of the Gabko Report).

54. When Gabko drove the vehicle, the obstacle detection system activated a warning on only one occasion. (Point 7.5 of the Gabko Report).

55. Gabko carried out further testing on stationary objects. He determined the Driver Assist functions failed to warn the driver of impending objects or the risk of collision.

56. At point 7.10 Gabko concluded:

Following extensive road testing, extensive testing of the vehicles equipped ADAS system, the vehicles Driver assist functions did not function as intended or described on Volvo’s web page start="57">

Gabko was critical of the repair procedure used by the Dealer for the repair of the glass roof. From his research, the procedure for replacement or repair of the glass roof did not mention removal of the vehicle’s windscreen.

He noted the vehicle’s front cameras are mounted to the windscreen and “it is standard industry practice that when a windscreen is removed or replaced that the vehicle’s ADAS systems are recalibrated including the windscreen mounted camera.”

Gabko found no evidence that the Motor Vehicle’s ADAS system or front cameras were calibrated following the windscreen removal and refitment.

Gabko set out his conclusions in Section 8 of the report. In summary, he concluded:

1. The driver warning systems and the functionality of the Advanced Driver Assist Systems were compromised (Point 8.1);

2. The major issue was related to the Adaptive Cruise control and frontal driver warning systems (Point 8.1.1)

3. There were no apparent faults with the glass roof which was functioning as intended (Point 8.2)

4. The failure of the driver assist functionality jeopardises the safety of the vehicle’s passengers, other road user and pedestrians.

5. The evidence supports the notion there were no roof rattles, no interior roof lighting issues, no sun visor issues or safety concerns relating to the ADAS systems prior to the glass roof being replaced by the Dealer (Point 8.4.1);

6. There is no evidence the ADAS systems were recalibrated following the repairs and removal of the windscreen;

7. The replacement of the glass roof and windscreen may not have been executed in a workman like manner with due care and skill.

8. Faults were introduced into the vehicle as a direct result of the glass roof replacement indicating the Dealer has not done the repair with due care and skill.

9. The current failure of the driver assist functions means the Motor Vehicle cannot be confidently and safely driven.

61. Graham Judge (“Judge”) gave evidence on affirmation. He is a director of Collision Safety Consultants NSW. He is a panelbeater by trade. I am satisfied he has sufficient expertise and experience to express the opinions he gave in his evidence.

62. Judge accompanied Gabko during the test drive on 16 November 2024 and sat in the back seat with a video camera.

63. He took a video of test drive which was provided to Gabko. He did not hear any warning sounds as the Motor Vehicle approached other vehicles.

64. In Judge’s opinion, the Motor Vehicle was not operating safely. He had safety concerns if the sunroof was not repaired properly as it is a structural part of the vehicle.

Expert Evidence for the Manufacturer

65. Dr Andrew George (“Dr George”) gave evidence on affirmation. He was the author of the George Report.

66. Dr George is an engineer with 35 years experience in automotive and industrial engineering. He has a PhD in engineering and is a Registered Professional engineer. He is a casual lecturer in mechanical engineering at Swinburne University. I am satisfied Dr George has sufficient knowledge, experience and qualifications to express the opinions in the George Report.

67. The George Report was prepared in a manner compliant with the NCAT Practice Direction 3 concerning expert evidence and included the Expert’s Code of Conduct.

68. On 20 February 2025 Dr George inspected the Motor Vehicle at Liverpool.

69. The inspection involved a diagnostic system download, a detailed inspection of the vehicle and a comparator with similar systems, and a final diagnostic download.

70. Dr George took the Motor Vehicle for a test drive in a low-speed suburban environment and on high-speed freeway. During the inspection and test drive, he was accompanied by representatives of the Dealer and the Manufacturer.

71. At 4.1 of his report, Dr George listed the complaints about the Motor Vehicle made by NLS. The issues included problems with the phone charger, Bluetooth connectivity and the cruise control.

72. Dr George was supplied with a copy of the Gabko Report. He provided a detailed list of the documents he was supplied with by the Manufacturer.

73. At section 6 of his report, Dr George set out his observations. From his investigations, he observed:

1. The vehicle was well maintained and in good condition;

2. A diagnostic fault code check revealed some codes which did not require action and were not associated with issues under review;

3. He conducted a detailed review of Ms Naziry’s complaints and sought information from both Respondents on the operation and configuration of the systems in the Motor Vehicle.

4. He took the Motor Vehicle for a test drive for about 60 minutes. As the testing of ADAS is not regulated in Australia, no Australian Design Rules exist to control the performance and configuration of these systems.

5. At point 6.6, Dr George provided details of the test drive which included low speed (30-60 km/h) suburban driving, higher speed (70-100km/h) freeway and highway driving and driving the Motor Vehicle towards a planted hedge.

6. From his testing, Dr George stated at point 6.7:

(a)   The electronic safety and driving systems such as adaptive cruise control and lane keeping assist operated effectively;

(b)   The Motor Vehicle’s safety systems were calibrated correctly;

(d) Driving the Motor Vehicle towards the hedge activated the front parking sensors with sufficient notice to apply the brakes and stop the vehicle.

7. The drive testing identified the vehicle did not perform unwanted intervention in certain situations and the sensors operated as expected when driving towards the hedge.

8. Dr George test drove a comparator vehicle with the same electronic systems as those in the Motor Vehicle.

9. He concluded the “drive test was able to confirm the collision avoidance systems were working appropriately through use of the comparative method (point 6.11)”

74. At point 6.14 Dr George set out his observations in respect of the other complaints made by NLS about the Motor Vehicle.

75. He noted there were no rattles in the glass roof during the test drive, the sunvisor worked properly, the sunvisor light and automatic door lights on the roof worked correctly, the wireless phone charger and Bluetooth system were working as expected.

76. At point 6.14 (n), Dr George stated:

The active cruise control system was operating effectively and consistently.

77. At point 6.14 (p), he stated:

The collision detection system was not observed as malfunctioning during my testing with reference to a comparator vehicle.

78. Dr George performed a second diagnostic check and found no fault codes were logged during the test drive of the Motor Vehicle.

78. At point 7 of his report, Dr George commented on the methodology used by Gabko and the conclusions in the Gabko Report.

79. He disputed Gabko’s reliance on the diagnostic codes as an indication the vehicle’s systems are not working effectively. At point 7.7 Dr George asserted “it is my opinion that the diagnostic code download performed by Mr Gabko does not accurately identify the true state of the vehicle’s electronic systems.”

80. For the reasons appearing in Point 7 of his report, Dr George is critical of the testing method adopted by Gabko and set out his reasons. He submitted Gabko’s self-developed testing procedures were flawed as they lacked an understanding of the vehicle’s systems.

81. Dr George concluded at 7.22:

“….the subject vehicle’s collision avoidance and active control systems have not provided with evidence of a defect.”

83. Dr George concluded that the inspection and test drive did not identify defects with the vehicle except for possibly the phone charger.

Was the Motor Vehicle of Acceptable Quality?

84. Has there been a failure by the Manufacturer and the Dealer to comply with the consumer guarantee of acceptable quality set out in section 54 of the ACL?

85. NLS submitted “The persistent rattling noise, the cruise control issues and repeated failures, all within the first year of ownership, mean the vehicle is not of acceptable quality.”

86. The Dealer and the Manufacturer asserted the Motor Vehicle was of acceptable quality. They argued the Motor Vehicle was fit for purpose, free from defects, safe, durable and of acceptable quality within the meaning of section 54 of the ACL.

87. In this case, the question which the Tribunal must consider and answer is whether at the time of sale, the Motor Vehicle was of acceptable quality as that phrase is defined in section 54(2) of the ACL.

88. In deciding this issue, the Tribunal has applied principles in the authorities referred to above to the facts of this case.

89. The Applicant bears the onus of proof. NLS must produce evidence which satisfies the Tribunal on the balance of probabilities that it is sufficient to make the orders sought in the application.

90. Whether there was a breach of the consumer guarantees as to acceptable quality in section 54 of the ACL and the guarantee as to fitness for purpose in section 55 of the ACL apply at the time of supply of the goods.

91. The Motor Vehicle was purchased on 3 June 2023. At the date of purchase, NLS was made aware of the bubbles in the sunroof. The Dealer agreed to replace the sunroof under warranty.

92. I find on the evidence that at the date of supply, the Motor Vehicle was fit for all the purposes for which goods of that kind are commonly supplied, acceptable in appearance and finish, safe and durable.

93. I find the Motor Vehicle was not free of defects at the date of supply in that the sunroof had glass imperfections.

94. Section 54(4) of the ACL provides that if goods supplied to a consumer are not of acceptable quality and the only reason why they are not of acceptable quality was specifically drawn to the consumer’s attention before the consumer agreed to the supply, the goods are taken to be of acceptable quality.

95. In this case, the Dealer specifically drew the attention of Naziry and NLS to the defect in the sunroof/glass roof prior to the sale of the Motor Vehicle. NLS proceeded with the full knowledge of the defect.

96. I find that by operation of section 54(4), the Motor Vehicle was taken to be of acceptable quality notwithstanding the defect in the sunroof.

97. NLS and Naziry’s general dissatisfaction with the Motor Vehicle is not sufficient to prove a breach of the consumer guarantee provisions of the ACL and their subjective views about the state or condition of the goods or what is, or is not acceptable, is irrelevant.

98. At 6.3 of his report, Gabko listed NLS and Naziry’s primary concerns with the Motor Vehicle. He noted that “faults were introduced into the vehicle as a direct result of the glass roof replacement thus indicating that due care and skill has not been applied to the repair of the applicant vehicle.” (section 8.7.5 of the Gabko Report).

99. Gabko did not state that the faults were present at the date of supply of the Motor Vehicle or could be considered “hidden defects”.

100. At 8.2 of the Gabko Report, Gabko confirmed that at the date of his inspection, there were no apparent faults with the glass roof /sunroof, sunvisor, or interior roof lighting and the rattling had been fixed. Dr George made similar findings at Point 6.14 of his report.

101. NLS and Naziry are dissatisfied with the operation of the Advanced Driver Assist System (“ADAS”) after the repair of the glass roof. That repair took place on or about 5 June 2024, almost 12 months after the Motor Vehicle was purchased.

102. There is no evidence before me of any malfunction of the ADAS between the date of delivery and 15 July 2024. The Motor Vehicle had travelled approximately 30,000 kilometres by 15 July 2024 since being purchased.

103. At 7.2.1 of the Gabko Report, Gabko recites the following conversation with Naziry on 16 November 2024:

Q5: Have you had any repairs warranty or accident related carried out on the vehicle and was the cruise control giving you problems before the repairs?

A: When I first bought the vehicle the cruise control was functioning correctly come to think of it the problems have started since the glass roof was replaced. There has been no accidents.

104. The evidence of Naziry is the Motor Vehicle was booked in with the Dealer to have the sunroof repaired in July 2023. She cancelled the booking because of concerns about damage to the Motor Vehicle.

105. The Dealer’s service history shows that the only major repair to the Motor Vehicle during the ownership of NLS was the sunroof/glass roof. The other repairs undertaken appear to be relatively minor in nature and looked at objectively, would have no impact on a reasonable consumer’s decision to purchase the motor vehicle.

106. The Service records show the Dealer replaced the Volvo Badge on the alloy wheel on 3 January 2024.This was a minor repair.

107. The next service invoice dated 4 June 2024 records the Motor Vehicle was booked to replace “the glass imperfection in the sunroof”. The odometer reading entered on the service invoice was 26924 kilometres. Naziry was supplied with a loan vehicle.

108. The next service invoice dated 17 July 2024 records the Motor Vehicle was booked in for 30,00 kilometres service. The Dealer noted Naziry complained about the sun visor getting stuck, and the moon roof rattled when driving on rough surfaces. The Dealer supplied her with a loan vehicle. The service invoice noted the odometer reading as 29641 kilometres.

109. The Motor Vehicle was returned to the Dealer on 8 November 2024. The Service Invoice records Naziry complained about the sunvisor, problems “when activating cruise control vehicle is speeding up when car is in front and stopped vehicle will not slow down will speed up” and continuing rattle in the sunroof.

110. The service invoice recorded the odometer reading as 34189 kilometres. The Dealer provided Naziry with a loan car.

111. As stated in Williams, the standard of acceptable quality in section 54(2) is “what a reasonable consumer at the time of supply would regard as acceptable if the reasonable consumer was fully acquainted with the state and condition of the goods”, including any “hidden defects”.

112. The courts recognise that the reasonable consumer is taken to be fully acquainted with the state and condition of the goods (including any hidden defects of the goods).

113. A reasonable consumer under section 54(2) of the ACL “would also be acquainted with the fact that motor vehicles are complicated pieces of machinery that may develop problems, even problems going to the safety of the vehicle, that may require rectification by the manufacturer during the vehicle’s lifetime”: Dwyer v Volkswagen Group Australia Pty Ltd [2021] NSWSC 715 at [158]

114. It is not in dispute the Motor Vehicle developed problems which were repaired under warranty by the Dealer. I am satisfied when viewed objectively, a reasonable consumer would consider faults as relatively minor and the Motor Vehicle was of “acceptable quality”.

115. As stated in Dwyer, the reasonable consumer would expect motor vehicles to have problems which are rectified under the manufacturer’s warranty. No reasonable consumer fully acquainted with potential faults, would understand that the purchase of a motor vehicle is not entirely risk free with any problems to be addressed under warranty.

116. The Tribunal accepts the submission of the Manufacturer that the existence of minor faults, which were either repaired or did not affect the functionality, do not render the vehicle of unacceptable quality.

117. The Tribunal turns to a consideration of the alleged defect with ADAS. NLS says the problem with the system did not manifest itself until after the repair to the glass roof. This persuades me there was no defect with the ADAS at the date of supply of the Motor Vehicle.

118. The evidence establishes at the date of repair, the Motor Vehicle had travelled approximately 26924 kilometres in about 12 months.The Dealer fixed the problem under the manufacturer’s warranty.

119. Gabko and Dr George had differing opinions about the operation of the ADAS.

120. Gabko opined “the vehicles Driver assist functions did not function as intended or described on Volvo’s web page

121. Dr George concluded from his testing: The active cruise control system was operating effectively and consistently.

122. I am satisfied that if there was a problem with ADAS as identified by Gabko, then by the date of Dr George’s inspection and assessment, any defect had been rectified.

123. Dr George’s assessment was the ADAS operated as it was designed. He found no fault with the system from his testing (Point 6.11 of the George Report).

124. The Tribunal notes Gabko’s comments about the manufacturer’s warning about the limitations of the ADAS:

Warnings and brake interventions could be late or not occur at all. The driver is always responsible that the vehicle is driven correctly and with a safety distance adapted to the speed.

125. From the evidence, Naziry and NLS did not fully appreciate the limitations of the cruise control as published by the Manufacturer. As explained by Gabko, ADAS is not an autonomous driving system but a driver assistance system.

126. The Tribunal is not satisfied that at the date of supply, there was a defect which would render the Motor Vehicle not to be of acceptable quality after considering the matters in section 54(2) and 54(3) of the ACL.

127. The Tribunal has considered the matters in section 54(3) of the ACL, and whether or not the Motor Vehicle was of acceptable quality under s 54(2)(a)-(e) such that a reasonable consumer, fully acquainted with the state and condition of the goods, would regard the goods as being of acceptable quality, determined at the date of the supply of the goods.

128. When the “reasonable consumer” is assessed objectively, the Tribunal finds that at the date of supply, a reasonable consumer, fully acquainted with the state and condition of the Motor Vehicle, would regard the Motor Vehicle as being of acceptable quality.

129. Even if the Tribunal was satisfied the Motor Vehicle was not of acceptable quality, I would find the failure was not a “major failure” as defined in section 259 and 260 of the ACL.

130. A further difficulty for NLS is whether the rejection period had ended. Whether the “rejection period” had ended is to be determined by reference to section 262 of the ACL.

131. The Motor Vehicle was supplied in June 2023, and NLS notified the Manufacturer of the rejection in October 2024.

132. The Tribunal dismisses the claim by NLS that the Dealer and Volvo Cars did not comply with the consumer guarantee in section 54 of the ACL.

General Principles- Section 55 of the ACL- An Overview and Consideration

133. Section 55 of the ACL provides:

55   Guarantee as to fitness for any disclosed purpose etc.

(1)  If:

(a)  a person (the supplier) supplies, in trade or commerce, goods to a consumer; and

(b)  the supply does not occur by way of sale by auction;

there is a guarantee that the goods are reasonably fit for any disclosed purpose, and for any purpose for which the supplier represents that they are reasonably fit.

(2)  A disclosed purpose is a particular purpose (whether or not that purpose is a purpose for which the goods are commonly supplied) for which the goods are being acquired by the consumer and that:

(a)  the consumer makes known, expressly or by implication, to:

(i)  the supplier; or

(ii)  a person by whom any prior negotiations or arrangements in relation to the acquisition of the goods were conducted or made; or

(b)  the consumer makes known to the manufacturer of the goods either directly or through the supplier or the person referred to in paragraph   (a)(ii).

134. In Australian Competition and Consumer Commission v Jayco Corporation Pty Ltd [2020] FCA 1672, Wheelahan J said at [28]-[29]:

Fitness for purpose

28 Section 55 of the ACL provides for a guarantee that the goods are reasonably fit for any disclosed purpose, or for any purpose for which the supplier represents that they are reasonably fit. The meaning of “disclosed purpose” is the subject of s 55(2) –

(2) A disclosed purpose is a particular purpose (whether or not that purpose is a purpose for which the goods are commonly supplied) for which the goods are being acquired by the consumer and that:

(a) the consumer makes known, expressly or by implication, to:

(i) the supplier;

(ii) a person by whom any prior negotiations or arrangements in relation to the acquisition of the goods were conducted or made; or

(b) the consumer makes known to the manufacturer of the goods either directly or through the supplier or the person referred to in paragraph (a)(ii).

29 There is some conceptual overlap between the statutory guarantees in s 54(1) and s 55(1) to the extent that any disclosed purposes or represented purposes that engage s 55(1) may also amount to common purposes for the objective standard of acceptable quality under s 54(2)(a): see, Jewson Ltd v Boyhan [2003] EWCA Civ 1030; [2004] 1 Lloyd’s Rep 505 at [68], [71] (Clarke LJ), and at [77] (Sedley LJ).

135. The purpose for which the goods are to be used is relevant to determining a contravention of s 55. The fact the goods are not acceptable quality does not, necessarily, mean the goods are not fit for purpose.

136. NLS asserted the Motor Vehicle did not meet its intended purpose as a quiet and premium electric vehicle as marketed. It submitted the rattling noise compromised a key feature of the Motor Vehicle and the cruise control did not work as intended.

137. In its Points of Defence, the Manufacturer asserted that “the vehicle performs in accordance with its intended purpose as a premium electric vehicle”. It submitted the Motor Vehicle was fit for purpose.

138. In this case, the intended purpose of the Motor Vehicle was for use as an electric motor vehicle. There is no evidence that NLS or Naziry disclosed to the Dealer any particular purpose for which they intended using the Motor Vehicle.

139. I am satisfied on the evidence, the Motor Vehicle was, at the date of supply, fit for use as a premium electric motor vehicle.

140. I reject the claim made by NLS that the Dealer and the Manufacturer did not comply with the consumer guarantee in section 55 of the ACL.

141. The claim for breach of section 55 of the ACL is dismissed.

Section 58 of the ACL- An Overview and Consideration

142. NLS complained the Dealer and the Manufacturer did not comply with the consumer guarantee in section 58 of the ACL.

143. Section 58 of the ACL provides:

Guarantee as to repairs and spare parts

(1)  If:

(a)  a person supplies, in trade or commerce, goods to a consumer; and

(b)  the supply does not occur by way of sale by auction;

there is a guarantee that the manufacturer of the goods will take reasonable action to ensure that facilities for the repair of the goods, and parts for the goods, are reasonably available for a reasonable period after the goods are supplied.

(2)  This section does not apply if the manufacturer took reasonable action to ensure that the consumer would be given written notice, at or before the time when the consumer agrees to the supply of the goods, that:

(a)  facilities for the repair of the goods would not be available or would not be available after a specified period; or

(b)  parts for the goods would not be available or would not be available after a specified period.

144. NLS submitted the repair of the sunroof/glass roof and other repairs took several months which was an unreasonable timeframe under the ACL for a vehicle of its nature and price.

145. NLS contended that the time taken for the repairs was excessive and unreasonable. In its Points of Claim, NLS claimed the Respondent took from 5 June 2024 to 24 October 2024, a period of 141 days to resolve the rattling issue with the glass roof.

146. At Point 2 of the Points of Defence, the Manufacturer denied the repairs undertaken by the Dealer were not done within an unreasonable time frame. It argued that NLS and Naziry continued to use the Motor Vehicle. There is no dispute the Dealer supplied them with a loan vehicle during the period of repairs as recorded on the Service Invoices. There was minimal inconvenience to NLS and Naziry.

147. What is a reasonable time is to be determined on the facts and circumstances. There is no evidence from the parties what is a reasonable time frame for the repairs or that the time taken was excessive.

148. I concur with the submission made by the Manufacturer that the claim for breach of the consumer guarantee in section 58 of the ACL is misconceived.

149. The consumer guarantee in section 58 of the ACL mandates that manufacturers must take reasonable action to ensure that facilities for the repair of goods and spare parts for goods are reasonably available for a reasonable period after the goods are supplied.

150. As submitted by the Manufacturer, the section “does not provide a guarantee that repairs will be carried out within a reasonable time but rather that repair facilities and spare parts are reasonably available for a reasonable period.”

151. If I am wrong in my interpretation of section 58, the evidence does not persuade me the time taken for the repairs was excessive or unreasonable. There is insufficient evidence from which I can reach any conclusion on that issue.

152. The Tribunal dismisses the claim by NLS for a breach of the consumer guarantee in section 58 of the ACL.

Conclusion

153. As NLS has failed to establish breaches the consumer guarantees in sections 54,55 and 58 of the ACL, it follows that NLS is not entitled to the remedies set out in sections 259-263 and 271-272 of the ACL; or any alternative remedy under s 79N of the FTA.

154. Further, NLS did not identify or argue any alleged breach of section 60 of the ACL by the Dealer even though a possible breach of the consumer guarantee was referred to in the Gabko Report. It was not pleaded in the Points of Claim.

155. NLS made no claim in the Points of Claim that the Dealer was in breach of section 60 of the ACL and accordingly, that issue does not fall for consideration in these proceedings.

156. Under section 79U (1) of the Fair Trading Act 1987, the Tribunal must make orders which are fair and equitable between the parties.

157. The Tribunal is satisfied that the order is fair and equitable between the parties.

158. NLS has not proved its claim on the balance of probabilities. 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: 27 October 2025