Nicol v Suzuki Australia Pty Ltd

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Nicol v Suzuki Australia Pty Ltd [2021] NSWCATCD 110

Hearing dates:

23 August 2021

Date of orders:

24 November 2021

Decision date:

24 November 2021

Jurisdiction:

Consumer and Commercial Division

Before:

S McDonald, Senior Member

Decision:

The Tribunal Orders that:

(1) The First Respondent pay to the Applicant the sum of $10,668.00 on or before 22 December 2021; and

(2) The Second Respondent pay to the Applicant the sum of $6,278.00 on or before 22 December 2021.

Catchwords:

CONSUMER LAW — Motor vehicle — Australian Consumer Law — Consumer guarantee — Fit for purpose — Acceptable quality — Transmission fault — Major failure – Remedies for breach - Damages

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW)

Fair Trading Act 1997 (NSW)

Australian Consumer Law

Cases Cited:

Safi v Heartland Motors Pty Ltd t/a Heartland Chrysler [2016] NSWCATAP 80

Boyd v Agrason Pty Limited [2014] VMC 23 at [50]

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Owen Nicol (Applicant)
Suzuki Australia Pty Ltd (First Respondent)
CKD Automotive Pty Ltd t/as Pennant Hills Suzuki (Second Respondent)

Representation:

Applicant (Self represented)
R Stefani (First Respondent)
B Defina (Second Respondent)

File Number(s):

MV 21/26623

Publication restriction:

Nil

Reasons for decision

Introduction

1. The Applicant, Mr Owen Nicol, purchased a new Suzuki Vitara RT‑XT Turbo Diesel 4WD Auto (vehicle) on 11 September 2017 from Scuderia Veloce Motors at Chatswood (SVM). SVM was at that time a licensed Suzuki dealer

2. The First Respondent, Suzuki Australia Pty Ltd, is the manufacturer and/or importer of the motor vehicle to Australia.

3. The Second Respondent, CKD Automotive Pty Ltd t/as Pennant Hills Suzuki, is the Suzuki dealer at Pennant Hills who serviced the vehicle at relevant times in or after 2019.

4. The Applicant claims that the vehicle, after multiple attempts to resolve a transmission shudder, was unable to be repaired by the Respondents.

5. The Applicant seeks damages both under the Manufacturer’s Warranty against the First Respondent, and against the Second Respondent for a refund for repairs that he claims failed to successfully repair the transmission fault.

Background

6. The evidence before the Tribunal was generally a reconstruction of sale and service records of the vehicle to the Applicant in and after September 2017.

7. On 11 September 2017 the Applicant purchased the vehicle registration number DQL‑57H from Scuderia Veloce Motors at Chatswood. This dealer shortly after ceased to be a Suzuki dealer but nothing seems to arise from that between the parties.

8. A copy of the Contract for Sale of the vehicle appears at Applicant’s bundle pp2‑4 (AB2-4).

9. In the Contract the vehicle was described as “RT‑X Turbo 4WD Diesel LY MY17 5V Wagon 1.6L Auto 4CYL 2017”. It was a white vehicle with black trim, had a build date of May 2017 and a compliance date of August 2017. The price of the vehicle was $35,990 but including allowances and dealer charges, the Applicant appeared to pay a nett sum of $34,700 to Scuderia Veloce Motors, Chatswood.

10. The SVM Dealer…