Nikoiee v Marshalls Sydney Pty Ltd - [2018] NSWCATCD 63

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 2010
Cases 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 80
Category: 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

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.
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.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Nikoiee v Marshalls Sydney Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2018] NSWCATCD 63
Decision Date: 29 October 2018

CaseChat Overview and Summary

Nikoiee sought relief from Marshalls Sydney Pty Ltd in the Supreme Court of New South Wales regarding her purchase of a 2017 model Mercedes Benz C200 two door Cabriolet. The dispute centred on the vehicle's failure to meet consumer guarantees under the Australian Consumer Law, specifically the guarantee of acceptable quality, and the failure of the respondent to diagnose and rectify the faults. Nikoiee claimed that the vehicle had major faults that rendered it unacceptable for its intended purpose.

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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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 2010
Cases 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 80
Category:	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