Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: Nikoiee v Marshalls Sydney Pty Ltd [2018] NSWCATCD 63 Hearing dates: 10 August 2018 Date of orders: 29 October 2018 Decision date: 29 October 2018 Jurisdiction: Consumer and Commercial Division Before: J A Ringrose, General Member Decision: (1) The applicant is to return her 2017 model Mercedes Benz C200 two door Cabriolet registered number DMZ 34N to the respondent and transfer ownership over to it within 14 days of the date of these orders.
(2) Immediately upon return and transfer of the vehicle the respondent is to pay the applicant the sum of $70,000.00.
(3) The respondent is to pay the applicant’s costs on a party/party basis within 14 days after an agreement or assessment under Pt 4.3 Div 7 of the Legal Profession Uniform Application Act 2014.Catchwords: Australian Consumer Law – remedies for breach of consumer guarantees – whether a major failure has been established – failure to diagnose and rectify faults – award of costs – whether it is necessary to establish special circumstances where r. 38 applies. Legislation Cited: Australian Consumer Law 2010
Civil and Administrative Tribunal Act 2013
Competition and Consumer Act 2010Cases Cited: Australian Rong Hua Fu Pty Ltd v Ateco Automotive [2015] VCAT
Cary Boyd v Agrison Pty Ltd [2014] VMC 23 at 50
Goldiwood Pty Ltd v ADL (Aust. Pty Ltd) [2014] QCAT 38
Lataudis v Casey [1990] HCA 58
Oshlock v Richmond River Council [1998] 193 CLR 72
Safi v Heartland Motors Pty Ltd t/as Heartland Chrysler [2016] NSW CATAP 80Category: Principal judgment Parties: Noshin Nikoiee (Applicant)
Marshalls Sydney Pty Ltd (Respondent)Representation: Kazem Elkheir, solicitor of Birchgrove Legal appeared for the applicant
Ms Codd appeared for the respondent
File Number(s): MV 18/17088 Publication restriction: Nil
REASONS FOR DECISION
Application
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By an application filed on 13 April 2018 the applicant sought an order that the respondent should repair or replace her faulty motor vehicle to the value of $86,500.00. She claimed that she purchased the new vehicle from the respondent on or about 9 April 2017 and the vehicle had a number of defects which the respondent had failed to rectify pursuant to the warranty. She sought to have her vehicle replaced with a new vehicle or like make and model without any defects.
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The application was initially listed before the Tribunal on 24 May 2018 where the applicant was directed to provide all documents on which she wished to rely on by 22 June 2018 and the respondent was directed to supply all of its documents by 4 July 2018.
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The matter was listed for hearing on 20 July 2018 but was adjourned on the basis that the applicant was to be overseas on the Hearing date. The matter was then listed for hearing on 10 August 2018 and at the conclusion of the Hearing directions were made for both parties to provide submissions on costs if so advised. Final submissions were received on 7 September 2018.
Applicant’s…
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- Case
- [2018] NSWCATCD 63
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether a major failure had been established, which would entitle Nikoiee to a refund, and whether the court should award costs to Nikoiee under rule 38 of the Supreme Court Rules 2000. The court considered whether it was necessary to establish special circumstances for the award of costs under this rule. The respondent argued that the faults were minor and did not justify a refund or an award of costs.
The court held that the respondent had failed to meet the consumer guarantees and that the faults were significant enough to constitute a major failure. Consequently, the vehicle was deemed unacceptable, and Nikoiee was entitled to a refund. The court further found that the respondent had acted unreasonably in not diagnosing and rectifying the faults, which justified an award of costs under rule 38. The court did not find it necessary to establish special circumstances for the award of costs, as the respondent's unreasonable conduct warranted the award. The court ordered the return of the vehicle, a refund of $70,000.00, and the payment of costs on a party/party basis.
Orders
Orders of the court
(1) The applicant is to return her 2017 model Mercedes Benz C200 two door Cabriolet registered number DMZ 34N to the respondent and transfer ownership over to it within 14 days of the date of these orders.
(2) Immediately upon return and transfer of the vehicle the respondent is to pay the applicant the sum of $70,000.00.
(3) The respondent is to pay the applicant’s costs on a party/party basis within 14 days after an agreement or assessment under Pt 4.3 Div 7 of the Legal Profession Uniform Application Act 2014.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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