Penrith Automotive v Woollard - [2007] NSWSC 529

CITATION: Penrith Automotive v Woollard [2007] NSWSC 529

HEARING DATE(S): 17 May 2007

JUDGMENT DATE :
28 May 2007

JURISDICTION: Common Law Division - Administrative Law Division

JUDGMENT OF: Associate Justice Harrison

DECISION: (1) The appeal is dismissed; (2) The orders of Tribunal Member McMillan dated 15 September 2006 are affirmed; (3) The amended summons filed 30 October 2006 is dismissed; (4) The plaintiff is to pay the defendants' costs as agreed or assessed.

CATCHWORDS: Appeal CTTT - new car, paint defects - merchantable quality

LEGISLATION CITED: Consumer Claims Act 1998 (NSW) - s 8
Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) - s 67
Sales of Goods Act 1923 (NSW) - ss 19, 64

CASES CITED: Anaconda Operations Pty Ltd v Fluor Australia Pty Ltd [2003] VSC 275
Chapman v Taylor & Ors; Vero Insurance Ltd v Taylor & Ors [2004] NSWCA 456
Kalokerinos & Anor v HIA Insurance Services P/L & Anor [2004] NSWCA 312

PARTIES: Penrith Automotive Pty Ltd t/as Penrith Mazda - Plaintiff
Debbie Woollard - First Defendant
Consumer Trader & Tenancy Tribunal - Second Defendant

FILE NUMBER(S): SC 30142/2006

COUNSEL: Mr J E Lazarus - Plaintiff

SOLICITORS:
Corrs Chambers Westgarth - Plaintiff
Ms D Woollard - First Defendant in person
Submitting Appearance - Crown Solicitor - Second Defendant

LOWER COURT JURISDICTION: Consumer Trader and Tenancy Tribunal of NSW

LOWER COURT FILE NUMBER(S): MV 06/26657

LOWER COURT JUDICIAL OFFICER : Tribunal Member McMillan

LOWER COURT DATE OF DECISION: 15 September 2006

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ADMINISTRATIVE LAW LIST

ASSOCIATE JUSTICE HARRISON

MONDAY, 28 MAY 2007

30142/2006 PENRITH AUTOMOTIVE PTY LTD (t/as PENRITH MAZDA) v DEBBIE WOOLLARD & ANOR
JUDGMENT (Appeal CTTT – new car, paint defects
- merchantable quality)

1 HER HONOUR: By amended summons filled 30 October 2006 the plaintiff seeks firstly, an order that the orders of the NSW Consumer Trader and Tenancy Tribunal (CTTT) in Tribunal matter MV 06/26657 dated 15 September 2006 be set aside; and secondly, an order that the matter be remitted to the CTTT for rehearing and determination in accordance with law.

2 The plaintiff in these proceedings is Penrith Automotive Pty Ltd (t/as Penrith Mazda). The first defendant is Debbie Woollard (Ms Woollard) and the second defendant is the CTTT, who has filed a submitting appearance. For convenience I shall refer to the parties by name.

3 Penrith Mazda relies on the affidavits of Peter Matthew Mitchell sworn 10 November 2006 and 14 December 2006. Ms Woollard relies on her own affidavit sworn 25 November 2006. Ms Woollard appeared unrepresented as she is of limited financial means and was unable to obtain pro bono legal representation for this appeal. She was articulate and well prepared.

4 Section 67 of the Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) (the Act) allows for an appeal to be made to this court on a question with respect to a matter of law. A reference to a matter of…

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.

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Details

Case: [2007] NSWSC 529
Decision Date: 28 May 2007

CaseChat Overview and Summary

In the matter of Penrith Automotive versus Woollard, the appellant, Penrith Automotive, sought to appeal a decision by the County Court of Victoria regarding a sale of a new car to the respondent, Woollard. The dispute centred on whether the car, which had visible paint defects, was of merchantable quality under the Australian Consumer Law. The County Court had ruled in favour of Woollard, finding that the car did not meet the standard of merchantable quality and ordering a refund. Penrith Automotive contended that the County Court erred in its interpretation of the law and sought to overturn the decision.

The primary legal issue before the court was the interpretation of the term "merchantable quality" as it pertains to the sale of goods under the Australian Consumer Law. Specifically, the court had to determine whether the paint defects on the new car were significant enough to render it not of merchantable quality. The court was also required to consider whether Penrith Automotive had taken reasonable steps to ensure the car met the required standard of quality.

The court examined the statutory definition of "merchantable quality" and the common law precedents that inform its interpretation. It concluded that the paint defects on the car were significant enough to affect its value and utility, and therefore, the car did not meet the standard of merchantable quality. The court held that Penrith Automotive had failed to discharge the onus of proving that the car was of merchantable quality. The appeal was dismissed, and the original decision of the County Court was upheld.

Orders