Pepper v E J and W a Booth Pty Ltd trading as Booths Motor Group Tuggerah - [2024] NSWCATCD 57

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Pepper v E J and W A Booth Pty Ltd trading as Booths Motor Group Tuggerah [2024] NSWCATCD 57
Hearing dates: 18 July 2024
Date of orders: 11 October 2024
Decision date: 11 October 2024
Jurisdiction: Consumer and Commercial Division
Before: J. Alder, General Member
Decision:
(1) Melissa Pepper is removed as an applicant to these proceedings.
(2) The name of the third respondent is amended to Senjj Automotive Pty Limited trading as Tuggerah Auto Group.
(3) Pursuant to s 263(4)(a)(i) of the Australian Consumer Law (ACL), the first respondent, E J and W A Booth Pty Ltd trading as Booths Motor Group Tuggerah (Seller) is to pay the applicant, Jango Pepper, the sum of $25,161.46 (Refund) being the purchase price of a 2020 Mitsubishi ASX wagon, registration number EKM 67H (Vehicle) within 14 days of the date of this decision.
(4) The vehicle is deemed to have been returned to E J and W A Booth Pty Ltd t/as Booths Motor Group Tuggerah by reason of it being in the possession of Senjj Automotive Pty Limited.
(5) Senjj Automotive Pty Limited is to make the vehicle reasonably available for collection by E J and W A Booth Pty Ltd t/as Booths Motor Group Tuggerah.
(6) Order 3 is to be satisfied within 14 days by:
(a) the Seller paying Secure Funding Pty Limited (Lender) the balance payable to the Lender to discharge loan no. 3432242 (Loan); and
(b) the Seller paying the applicant the balance of the Refund after the Loan is discharged.
(7) In order to give effect to order 6(1), the applicant is to obtain from the Lender and give to the Seller within 7 days:
(a) the payout figure in relation to the Loan and bank account details for the Lender to permit the Seller to make payment to the Lender to discharge the Loan; and
(b) written confirmation that upon receipt of payment of the balance of the Loan, the Lender will release any security and take all necessary steps to ensure the Vehicle is unencumbered.
(8) The proceedings are otherwise dismissed.

Catchwords:
CONSUMER CLAIM – defective motor vehicle - failure to comply with the guarantee as to acceptable quality - major failure – rejection of motor vehicle – whether rejection period had ended - time in which to bring claim against supplier and manufacturer - when cause of action accrues in relation to supplies of goods – what amount is included in the purchase price of motor vehicle when calculating refund - whether manufacturer is liable to indemnify supplier- appropriate orders where goods subject to third party financing

Legislation Cited:
Fair Trading Act 1987 (NSW) 1987, ss 4, 28, 79D, 79E, 79J, 79K, 79L, 79N, 79P, 79S, 79U, 79V
Australian Consumer Law (NSW), ss 2, 3, 7, 54, 55, 59, 60, 61, 62, 259, 260, 261, 262, 263, 267, 271, 272, 273, 274, 276, 278, 281
Civil Procedure Act 2005, s 95

Cases Cited:
Australian Competition and Consumer Commission v Jayco Corporation Pty Ltd [2020] FCA 1672
Avci v Inchurch Automotive Pty Ltd t/a Parramatta Motor Group [2019] NSWCATCD 39
Barbour v Autosports Five Dock Pty Ltd [2020] NSWCATAP 141
Campbell v Caravan & RV Central Pty Ltd t/as Avan New South Wales & FCA Australia Pty Ltd [2016] NSWCATCD 90
Capic v Ford Motor Company of Australia Pty Ltd [2021] FCA 715
Crooks v Hyundai Motor Company Australia Pty Ltd [2023] NSWCATCD 29
Frediani v Hall t/as Happy Camper Conversions [2024] NSWCATAP 134
Hutchinson v Central Coast Automotive Pty Ltd [2022] NSWCATCD 123
298
Lam v Steve Jarvin Motors Pty Ltd [2016] NSWCATAP 186
Morphy v Beaufort Townsville Pty Ltd (Civil Claims) [2018] VCAT 1520 (2 October 2018)
My Pool Safety Inspector Pty Ltd v MCM Sutherland Pty Ltd [2024] NSWCATAP 58
Nesbit v Porter[2000] NZCA 288; 2 NZLR 465
Parkinson v Hutchin [2023] NSWCATCD 17
Sacks v Hammoud [2016] NSWCATAP 225
Safi v Heartland Motors Pty Ltd t/as Heartland Chrysler [2016] NSWCATAP 80
Schmidt v JRS Trading Pty Ltd [2023] NSWCATAP 116
SMA Motors Pty Ltd t/as Autos Auctions v Smith [2022] NSWCATAP 282
Strogylos (t/as Auto Clinic St Andrews) v Vella [2020] NSWCATAP 156
Vautin v BY Winddown Inc. (formerly Bertram Yachts) (No 4) [2018] FCA 426
Volkswagen Group Australia Pty Ltd v Saad [2022] NSWCATAP 133

Texts Cited:
Nil

Category: Principal judgment
Parties:
Jango Pepper – Applicant
E J and W A Booth Pty Ltd trading as Booths Motor Group Tuggerah - First Respondent
Mitsubishi Motors Australia Limited – Second Respondent
Senjj Automotive Pty Limited trading as Tuggerah Auto Group – Third Respondent
Secure Funding Pty Limited trading as Liberty Financial – Fourth Respondent
Representation: Applicant: self represented
First Respondent: Mr David Booth
Second Respondent: Mr Shane Cosgrove
Third Respondent: Mr David Petrone
Fourth Respondent: Mr David Templeton and Ms Doyle

File Number(s): 2024/00141711
Publication restriction: None

REASONS FOR DECISION

Introduction and claim

This case concerns a 2020 Mitsubishi ASX wagon (vehicle) purchased brand new on 10 July 2020 by the second applicant, Jango Pepper (Mr Pepper) from the first respondent (Seller). The Seller is a licensed motor dealer which traded as Booth’s Motor Group Tuggerah.
Mr Pepper submits the vehicle has had ongoing problems since purchase, including a misfiring engine and loss of power, a knocking noise in the engine, a faulty touch screen and a faulty brake sensor, all of which have been difficult to fix and which constitute non-compliance with the consumer guarantees concerning goods in the Australian Consumer Law (ACL).
In July 2023 the Seller sold its business to another licensed motor dealer, the third respondent, which trades as Tuggerah Auto Group (Tuggerah Auto).
The second respondent, Mitsubishi Motors Australia Limited is the deemed manufacturer of the vehicle (Manufacturer).
The vehicle is subject to finance pursuant to a loan no. 3432242 (Loan) obtained by the applicant from the fourth respondent, Secure Funding Pty Ltd trading as Liberty Financial (Lender).
On 16 April 2024, the applicant filed a claim against the Seller, Manufacturer and Tuggerah Auto (Respondents) seeking to return the vehicle and obtain a refund of the purchase price he paid of $26,697.50 (with inclusions), or a replacement vehicle.
The Respondents have declined to refund or replace the vehicle with a new and like for like replacement, but have made various offers in an attempt to resolve the matter that have been rejected by the applicant. The Respondents say the vehicle has been repaired and the applicant refuses to collect it.

Appearances

At the final hearing before me on 18 July 2024:

Mr David Booth appeared on behalf of the Seller.

Mr David Petrone, dealer principal appeared on behalf of Tuggerah Auto.

Mr Shane Cosgrove, Technical Services Manager appeared for the Manufacturer with Mr Islam, Manager Legal Risk making submissions at the hearing’s conclusion.

Ms Doyle, Group Manager Assured Credit Management and Mr David Templeton, in-house counsel, appeared on behalf of the Lender.

Documents

The applicant relied on documents filed 3 June 2024 including:

submissions

service reports and repair orders from the Seller and Tuggerah Auto

the Seller’s “History Listing” reports from October 2020 to September 2022

report from Rite Price Tyres dated 28 May 2024

email correspondence with the Manufacturer’s customer relations department.

The applicant said he had obtained a report from a second licenced mechanic, Lakedge Motors, however there was no such report in the applicant’s bundle.
The Lender relied on documents filed 25 June (35 pages), including a statutory declaration of Carly Doyle, Team Leader dated 24 June 2024 and the contract for the Loan.
Tuggerah Auto relied on documents filed 27 June 2024 (17 pages), including a chronology and two pages of submissions.
The Manufacturer relied on two pages of submissions filed 1 July 2024.
The Seller did not file any documents but relied on the documents filed by Tuggerah Auto. Mr Booth said he no longer has access to any of the Seller’s documents.

Findings of fact

The vehicle was new at the time of purchase.
The “Contract to Purchase A New Motor Vehicle” indicates the vehicle was purchased by Jango Pepper only. Accordingly, I have removed Melissa Pepper as a co-applicant.
The total purchase amount was $26,697.50 (incl GST) which included the vehicle price of $21,809.09 plus accessories ($672.73), warranty ($672.73), registration fee ($372), CTP insurance ($285.12), number plates ($110), dealer delivery fee ($1,813.64) and stamp duty ($756).
The applicant did not take delivery of the vehicle until on or about 7 October 2020.
The vehicle was supplied with a “2 + 2 service + warranty”. I took this to mean that in addition to the three year’s manufacturing warranty (Warranty), there was an additional two year’s warranty (Extended Warranty) and two years of free servicing by the Seller. This correlates to the service reports which indicates the Extended Warranty expires after 5 years from delivery, on 6 October 2025.
I do not have a copy of any Warranty documents, so it is not clear whether the Extended Warranty has been given by the Manufacturer, Seller or a third party. The Extended Warranty commenced in October 2023. The repairs and services from that time appear to have been carried out by Tuggerah Auto either of its own accord, or at the direction of the Manufacturer and the free loan cars have most recently been supplied and funded by both the Manufacturer and Tuggerah Auto.
The applicant obtained his own finance for $21,485.31.
The applicant granted a charge to the Lender to secure the Loan and on 6 October 2020 the Lender registered its security interest on the Personal Property Security Register.
Mr Booth informed the Tribunal the Seller is still registered and carries on a business. The Seller does not, however, operate from the same dealership site with that site now being operated by Tuggerah Auto. Neither Tuggerah Auto or the Seller provided any documentary evidence regarding the terms of the sale of the Seller’s business activities to Tuggerah Auto (to the extent necessary to consider whether any liabilities for sale of the vehicle passed to Tuggerah Auto).
Since purchase, the vehicle has been solely serviced and repaired by the Seller and upon taking over the Seller’s business, by Tuggerah Auto, under the terms of the Warranty.

Repairs carried out by Seller

The Seller conducted repairs and services on the vehicle between 30 October 2020 and 9 March 2023 as follows:

On 30 October 2020 the applicant reported the forward collision mitigation system was not working. The applicant reported that the vehicle was not “picking up the car in front”. The vehicle had travelled 1,661kms. The service report states the vehicle was connected to the scan tool but that a fault could not be found.

On 22 March 2021 the applicant reported the car did not start at the first attempt. The applicant did not show up at the pre-booked appointment.

On 17 May 2021 the vehicle was serviced. The vehicle had travelled 14,957kms. Page 4 of the 5-page “History Listing” report is missing so it is unclear if the applicant raised any concerns at this service. The service tax invoice does not specify any major issues. The service tax invoice indicates the Seller “checked all electronic control system diagnosis output using manufacturer specified special tools”, carried out a “battery health inspection” and replaced engine oil and oil filter.

On 23 June 2021 the applicant reported the engine light was on and the vehicle was running rough and cutting out. The applicant did not show for the pre-booked appointment.

On 1 September 2021 the vehicle was towed to the Seller by the NRMA. The vehicle had travelled 20,385 kms. The vehicle was inspected for the engine running rough and the engine light being on. The service report indicates the vehicle was scanned and found fault code P0301. A diagnostic test was carried out and the No. 2 cylinder was found to be misfiring and causing the vehicle to run rough. The no. 2 ignition coil was replaced and the vehicle was road tested.

On 20 December 2021 the vehicle was towed in to the Seller by NRMA. The applicant reported the vehicle was running rough and misfiring. There is no service record. The “History Listing” states the Seller scanned the vehicle for fault codes but no faults were logged on system and road tested the vehicle numerous times but was unable to find a misfire fault. The spark plugs and coils were checked and found to be working. The vehicle did not present with any issues.

On 13 January 2022 the vehicle was booked in to inspect for engine misfire and engine light on. The vehicle had travelled 26,433 kms. The “History Listing” indicates Fault Code P0302 was found to be the cause. Four new ignition coils and one spark plug were fitted to rectify the engine misfire. A loan car was supplied.

On 9 March 2022 a service was carried out. The vehicle had travelled 30,473 kilometres. The “History Listing” states the applicant reported a crunching type noise emitting from the brakes. The Seller could not find a fault.

On 30 August 2022 the applicant reported the engine light was on. Found fault code P0301, carried out diagnostic test and replaced no. 3 spark plug. The History Listing states: “ongoing issue we have replaced coils and the cause was stated as open circuited”.

On 13 September 2022 the vehicle was booked in for a service and reported misfire. The applicant did not show up.

On 2 February 2023 the vehicle had a 45,000 kms service. The applicant reported engine misfire when slowing from 110km and a knocking noise from the engine. The misfire was unable to be replicated. An “operational” noise from the purge valve was determined to be normal.

On 28 February 2023 the applicant reported a blank radio touch screen, the FCM (forward collision mitigation) warning light was on the dash and the vehicle was braking automatically. An internal fault was found in the audio unit. The radio was replaced to rectify the blank screen.

On 9 March 2023 (50,907 kms) the vehicle was checked for engine misfire and the engine light coming on intermittently. The engine wiring harness and electrical control unit were replaced. Carried out a compression test as advised by Mitsubishi and tested fuel pump and tappets and replaced injectors. The misfiring was resolved.

On 7 March 2023 the applicant issued a demand to the Seller requesting “a new car or a car to the equivalent value when purchased..” (Demand).
On 7 March 2023, the applicant also lodged a complaint with Fair Trading.
On 1 July 2023, the Seller’s dealership was taken over by Tuggerah Auto. When I asked Mr Petrone whether Tuggerah Auto had assumed the liabilities of the Seller, Mr Petrone informed the Tribunal the Seller’s assets had been sold but he did not believe liability had been transferred to Tuggerah Auto.

Repairs carried out by Tuggerah Auto

Tuggerah Auto conducted repairs on the vehicle between 18 August 2023 and May 2024 as follows:

On 18-30 August 2023 the operation of the Forward Collision Mitigation system was checked. The vehicle had travelled 56,787 kms. It was noted the G sensor was slightly out. The system was recalibrated and tested ok. The applicant reported the touch screen on the radio was not working intermittently. A new radio was fitted. The vehicle was checked for a knocking noise in the engine at idle. It was confirmed the noise was from the purge valve/cannister. The mounting was checked and found to be operating within specifications. A loan vehicle was suppled.

On 22 December 2023 the audio and touch screen were reported to be inoperative. The audio (head) unit was replaced.

On 9 January 2024 the Forward Collision Mitigation light on the dash and knocking noise (same issues from August 2023) were checked.

On 9 February 2024 the vehicle was checked for warning lights on the dash and the vehicle braking at random times. The vehicle had travelled 66,495kms. A scan tool test was carried out and the engine fault codes presented were C121C, UC401 and C1777. The vehicle did not present with faults and the cause of the brake issue was unable to be determined.

On 22 February 2024 the warning light on the dash was checked. Fault codes C121C, UC401 and C1777 were found, which relate to the active stability control (ASC) Unit, a safety feature governing the brakes (page 1 of 3 only of Repair Order).

On 28 February 2024 the vehicle had its 60,000km service. The vehicle was checked for previous fault codes and found all systems to be clear of fault codes. The service report stated “road tested after service and rechecked no fault found at time of service. No further inspection required”.

On 15 April to 16 May 2024 the vehicle was checked for braking and warning lights appearing. The vehicle was sent to Manufacturer. The Manufacturer found a fault relating to the ABS ECU (Anti Lock Brake Controller Electronic control unit). The electronic control unit, hydraulic unit and brake module were replaced, the ABS wiring and CAN lines were tested. There is no service report for these repairs.

On 16 April 2024 the application was filed and on 13 May 2024 when the matter came before the Tribunal for conciliation, the Lender was joined as a fourth respondent.
As at 26 June 2024, the estimated payout figure of the Loan was $9,879.62. At the hearing on 18 July 2024, the Tribunal was informed the payout was $6,973.63.
The vehicle is currently at the premises of Tuggerah Auto ready to be collected, which the applicant refuses to do. The applicant is driving a loan car provided by Tuggerah Auto.

Offers to resolve dispute

The evidence of the parties contained open offers to resolve the dispute.
The Manufacturer has offered a 10 year extended warranty, and/or $1,500.
The Seller has offered a monetary sum of $1,000.
Tuggerah Auto has offered a trade in price of $14,000 for the Vehicle based on an appraisal by independent wholesaler, Scott Jeffery of Carsellerz and to sell one of three Mitsubishi vehicles for either $33,000, $32,989 or $41,980. The effect of this is that, when taking into account the monetary offers from the other respondents totalling $2,500, the applicant suffers a loss between $16,989 and $25,980. The applicant rejected the offers as he says he does not want more debt and he is struggling to pay the current loan and he has lost faith in the Mitsubishi brand.
Mr Petrone of Tuggerah Auto suggested the applicant bring a Tribunal application to resolve the impasse.

Causes of action

In his application the applicant does not refer to any specific legislation or cause(s) of action.
The applicant said his main complaint is against the Seller with the Manufacturer as a secondary wrong doer. He said he was unsure who to sue, particularly since Tuggerah Auto had taken over the Seller’s business, so he included all parties in his application.
The Demand to the Seller dated 7 March 2023 made a request for a new car or a replacement vehicle to the value of the purchase price, without referencing any consumer law.
The orders made at the conciliation hearing on 13 May 2024 confirmed the applicant claimed a full refund or replacement of the vehicle.
The applicant’s submissions refer to the consumer guarantees concerning goods under the ACL.
It is apparent from the above that the issues in dispute raises the question as to whether the vehicle was of acceptable quality within the meaning of s 54 of the ACL and fit for any disclosed purpose within the meaning of s 55 of the ACL.
For completeness, I have also considered other potentially relevant sections of the ACL: ss 60-62 and s 59.

Section 54

In relation to goods being of acceptable quality, s54(2) provides:

(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).

In relation to goods being fit for a specific purpose, s 55(1) provides “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”.
As the deemed manufacturer, the Manufacturer may be liable if the vehicle was not fit for purpose or was not of acceptable quality at the time of sale. Section 271 of the ACL permits the applicant to recover damages from the Manufacturer where the guarantee in s 54 is not complied with.

Service guarantees

The applicant submitted he had no complaint as to the quality and workmanship of any repairs carried out, only that the defects were unable to be identified within a reasonable time by the Seller and Tuggerah Auto. This raises an issue as to whether the services and repairs have been carried out skilfully by the Seller and Tuggerah Auto and/or within a reasonable time.
The consumer guarantee under s 60 of the ACL provides:

If a person supplies, in trade or commerce, services to a consumer, there is a guarantee that the services will be rendered with due care and skill.

The consumer guarantee in s 61(1) provides:

If:

(a) a person (the supplier) supplies, in trade or commerce, services to a consumer; and
(b) the consumer, expressly or by implication, makes known to the supplier any particular purpose for which the services are being acquired by the consumer;
there is a guarantee that the services, and any product resulting from the services, will be reasonably fit for that purpose.

The consumer guarantee under s 62(1) provides if:

(a)  a person (the supplier) supplies, in trade or commerce, services to a consumer; and
(b)  the time within which the services are to be supplied:
(i)  is not fixed by the contract for the supply of the services; or
(ii)  is not to be determined in a manner agreed to by the consumer and supplier;
there is a guarantee that the services will be supplied within a reasonable time.

The Seller may have a liability for the provision of its services, in addition to its potential liability for the supply of goods, subject to the whether the agreement to service the vehicle is properly characterised as a supply of goods (Frediani v Hall t/as Happy Camper Conversions [2024] NSWCATAP 134 at [15]). If so, the applicant would have a remedy in damages under s 267 ACL for breach of ss 60 - 62.
However even if a breach of both s 54 and the service guarantees are found against the Seller, the service guarantees do not assist the applicant any further, as he would already have achieved his remedy in relation to the supply of goods (refund or replacement) and have no further loss and damage. He is not entitled to be doubly compensated. He may be able to obtain the cost of the services if he had been out of pocket, but these have all been carried out at no charge to the applicant.
The same goes for any liability Tuggerah Auto may have under ss 60-62.

Section 59

There is no suggestion that the Manufacturer has refused or failed to carry out any repairs under the five year warranty, such that it has breached the consumer guarantee in s 59, which requires a manufacturer to comply with any express warranty given or made by the manufacturer in relation to the goods.
As a consequence of the above, I have only considered the s 54 guarantee in these Reasons. This is the only guarantee the Respondents have addressed in their submissions.

Respondents’ defences/submissions in reply to claim for breach of s 54 ACL

The Manufacturer:

admits there was an intermittent fault with the engine misfiring which presented at 14,900 kms in late 2021, which took some time to be identified and the applicant continued to drive the vehicle for some 35,000kms until the issue was resolved in June 2023 at around 50,000kms; (the service reports in fact indicate misfiring presented in September 2021 at 20,305 kms and was resolved 18 months later in March 2023 at 50,907 kms);

says the concerns relating to the head unit, which was replaced, were intermittent;

admits a fault with active stability control unit (ASC Unit) relating to the brake sensors but says it was intermittent and presented around 22 February 2024 (not February 2023 as the applicant contends) and was resolved around 22 April 2024 by replacing the hydraulic unit brake module;

submits all faults have been remedied and given their intermittent nature, were remedied within a reasonable time and the vehicle has been ready to be collected since 8 May 2024;

submits any non-compliance with the ACL is minor;

says the applicant contributed to the problem by making bookings for repairs and not showing up, on at least three occasions;

submits the applicant did not reject the vehicle within the rejection period;

says the applicant refuses to return the loan vehicle and will not accept delivery of the repaired vehicle;

says it did not supply the vehicle and is not a supplier for the purposes of the ACL; and

submits that since purchasing the vehicle, the applicant has driven in excess of 69,000kms.

Tuggerah Auto submits:

the delay in diagnosis was due to the intermittent nature of the faults;

the defects were all minor defects that have all been repaired under warranty;

the vehicle has been extensively tested and the applicant is refusing to collect the vehicle.

Jurisdiction under the Fair Trading Act

Section 79J of the Fair Trading Act NSW 1987 (FTA) provides that the Tribunal has jurisdiction to hear and determine “consumer claims” within the meaning of s 79E of the FTA brought by a “consumer” in relation to matters arising under Part 6A of the FTA.
The applicant is a “consumer” within the meaning of s 79D(a) FTA as he is an individual and the Seller is a “supplier” within the meaning of s 4 FTA as it has sold goods in the course of carrying on a business. The applicant’s claim against the Seller is a “consumer claim” as defined by s 79E(1)(a) and (d), as the applicant seeks a specified sum of money and the return or replacement of specified goods.
By operation of s 79E(2), the applicant’s claim against the Manufacturer is a consumer claim even though the Manufacturer was not the direct supplier of the vehicle to the applicant because the applicant’s claim arises from or in connection with the supply of the vehicle to him by the Seller.
The applicant’s claim against Tuggerah Auto is also a “consumer claim” as defined by s 79E(1)(b) with Tuggerah Auto having provided repair services to the applicant.
The monetary limit in 79S is not applicable to new cars and the goods and services have all been supplied in New South Wales: s 79K.
Section 28 of the FTA specifically states the Australian Consumer Law 2010 (ACL), which is contained in Schedule 2 to the Competition and Consumer Act2010 (Cth), applies in New South Wales.
Given the vehicle acquired by the applicant was of a kind ordinarily acquired for personal, domestic or household use or consumption, I find the applicant is a “consumer” within the meaning of s 3 of the ACL and the Seller is a “supplier” within the meaning of s 2 ACL.
Under s 7(1)(e) of the ACL, a manufacturer includes an importer, so the Manufacturer is the deemed manufacturer of the vehicle.
Subject to the limitation issues I have raised below, I find these claims are consumer claims with the Respondents potentially liable to the applicant under the ACL.

TIME LIMITS

The Tribunal’s jurisdiction to hear a consumer claim is governed by s 79L of the FTA which provides that:

(1) The Tribunal does not have jurisdiction to hear and determine a consumer claim if any of the following apply—
(a) the cause of action giving rise to the claim first accrued more than 3 years before the date on which the claim is lodged
…

A cause of action “first accrues” when facts which constitute the elements of the relevant cause of action crystallise or combine so that all the elements necessary to entitle a person to make a consumer claim are present: Sacks v Hammoud [2016] NSWCATAP 225 at [34].

What are the elements of the cause of action against the Seller?

Where a finding has been made that a supplier has breached s 54, a consumer may bring an action against that supplier under s 259 of the ACL, for a refund and return, replacement or compensation and/or damages, depending on the type of breach.
Under ss 259-263, a supplier is liable to a consumer to remedy a failure to comply with a guarantee of acceptable quality or fitness for purpose within a reasonable time (s 259(2)(a)), or for compensation where the supplier refuses or fails to comply with the requirement to remedy the failure (s 259(2)b)(i)). If the failure is not remedied within a reasonable time, the consumer may reject the goods under s 259(2)(b)(ii). If the failure to comply with the guarantee cannot be remedied, or is a major failure, the consumer may reject the goods (s 259(3)(b)). If the consumer rejects the goods, the supplier must, in accordance with an election made by the consumer, refund any money paid by the consumer for the goods (s 263(4)(a)), or replace the rejected goods with goods of the same type and of similar value if such goods are reasonably available to the supplier (s 263(4)(b)): see Australian Competition and Consumer Commission v Jayco Corporation Pty Ltd [2020] FCA 1672 at [35]).
In addition, there is a stand-alone right to damages under 259(4), however it must be reasonably foreseeable to the Seller that the applicant/consumer would incur such loss or damage as a result of the failure.

What are the elements of the cause of action against the Manufacturer?

Sections 271 to 272 provide that, if the guarantee of acceptable quality in s 54 is not complied with, “an affected person” in relation to the goods may, by action against the manufacturer of the goods, recover damages: s 271(1) if it was reasonably foreseeable that the affected person would suffer loss or damage as a result of such a failure: s 272(1)(b).
Section 3 of the ACL defines an ‘affected person’ as: (a) consumer who acquires goods.
A manufacturer has no direct liability under the ACL itself to repair or replace goods that do not comply with the statutory guarantee of acceptable quality.
There is no action available against a manufacturer for a breach of s 55, with the terms of s 271 not referring to the consumer guarantee under s 55.

When does the loss arise as against the Seller?

There is no time frame specified in the ACL within which to bring a claim for breach of s 54. However, the time limits under s 79L of the FTA apply to bringing proceedings in the Tribunal, as discussed previously.
Sections 259-262 ACL provide that where there is a major failure and a consumer has provided notice to a supplier rejecting goods within the rejection period, a cause of action will accrue upon service of the rejection notice because it is at that point that property in the goods reverts to the supplier under s 263(6) and the relevant loss is suffered: See Barbourv Autosports Five Dock Pty Ltd [2020] NSWCATAP 141 at [74] and Volkswagen Group Australia Pty Ltd v Saad [2022] NSWCATAP 133 at [128].
For reasons given below, I find that the applicant rejected the vehicle on 7 March 2023 when he sent the Demand to the Seller requesting a replacement vehicle and that the rejection period had not expired when the rejection occurred.
As the claim against the Seller has been brought within three years of the rejection date of 7 March 2023, it is within time and is therefore a “consumer claim”, giving the Tribunal the necessary jurisdiction under s 79L.

When does the loss arise as against the manufacturer?

The rejection period is not relevant to any of the remedies available against manufacturer.
Section 273 sets out time limits for bringing actions under s 271(1) against manufacturers, which is within three years after the day on which the affected person first became aware, or ought reasonably to have become aware, that the guarantee to which the action relates has not been complied with.
So, a cause of action may be brought from (and runs from) the date when the applicant first became aware (or reasonably should have known) of the breach of s 54.
The evidence indicates that there were three main defects which presented and persisted during the period September 2021 to May 2024:

The misfiring engine was first presented on 1 September 2021, although the applicant had booked in for this issue in March and June 2021, but did not show up. This was rectified by replacing the engine wiring harness and electronic control unit 18 month later, in March 2023.

A computer/electrical malfunction occurred when the touch screen was reported as faulty in February 2023. Attempts were made to rectify this issue twice by replacing the audio unit/radio in February 2023 and August 2023. The head unit was replaced again in December 2023.

The faulty brake mitigation sensor where the vehicle braked automatically, was first raised on 28 February 2023, although the Respondents maintain this issue did not present until February 2024. The hydraulic unit and brake module were replaced during April to May 2024. These repairs have not been verified by the applicant.

The applicant filed his application on 16 April 2024. To be within the time limits for a cause of action under s 271(1), he must have first become aware (or ought reasonably to have become aware) not earlier than 16 April 2021 that the guarantee had not been complied with, which is six months from when he took delivery in October 2020. As discussed previously, there is no allegation the manufacturer failed to honour its warranty obligations under s 59 of the ACL; and the only asserted liability of the manufacturer is on the basis that it is also liable for the supplier’s failure to comply with the consumer guarantee under s 54 of the ACL.
For reasons given below, I find that the diagnosis associated with first major defect, being the loss of power and misfiring, did not occur until after 16 April 2021. Whilst there were signs prior to 16 April 2021 that may be said to put a reasonable consumer on notice that the vehicle was not of acceptable quality, there was no definitive information prior to 16 April 2021 and it took 18 months from when it first presented in September 2021 to resolve the misfiring issue, after first replacing unnecessary parts. The issue was finally resolved in March 2023 when it became apparent the car needed a new electronic control unit, which had not been registering accurate faults. I find the applicant did not become aware of the other major defects, being the faulty braking sensor system and the faulty touch screen, until February 2023.
I find that the applicant has commenced his action against the Manufacturer within three years after the day on which he first became aware, or ought reasonably to have become aware, that the guarantee under s 54 has not been complied with, which I have found to be 9 March 2023. This is the point in time when the first major defect (misfiring) was diagnosed and the faulty electronic control unit identified as being the “culprit” for failing to log the correct fault code for the misfiring. The faulty electronic control unit was replaced and the misfiring correctly identified as being caused by a faulty engine wiring harness, which was also replaced. The three years limitation period stipulated in s 273 of the ACL has been complied with, with the action having commenced against the Manufacturer within three years of 9 March 2023.
This means that the cause of action against the Manufacturer under s 271 of the ACL is available to the applicant.
I also find that the Tribunal has jurisdiction under s 79L of the FTA to hear this consumer claim as against the manufacturer.

Order making powers in FTA where there is a “consumer claim”

Section 79N of the FTA empowers the Tribunal to make one or more of the following orders it considers appropriate when determining a consumer claim wholly or partly in favour of a claimant:

(a) an order that requires a respondent to pay to the claimant a specified amount of money,
…
(f) an order that requires a respondent to return to the claimant specified goods which are in the possession or under the control of that respondent, whether the property in the goods has passed or not,
(g) an order that requires a respondent to replace goods to which the claim relates,
(h) an order that requires a respondent to refund all or part of the purchase price of specified goods that are in the possession (or under the control) of the claimant and the claimant to return all or part of those goods to the respondent (whether the property in the goods has passed or not).

Section 79P provides that, in determining a consumer claim where there is more than one respondent, the Tribunal may make any one or more of the following orders that it considers appropriate:

(a)   an order that requires a respondent to pay to another respondent a specified amount of money
…
(c)  an order that requires a respondent to deliver to another respondent goods of a specified description,
(d)  an order that requires a respondent to return to another respondent specified goods that are in the possession or under the control of the first respondent, whether the property in the goods has passed or not.

Section 79P may be relevant if a finding is made that more than one respondent is liable.
Pursuant to s 79V of the FTA, s 95 of the Civil Procedure Act 2005 (CPA) applies in circumstances where there is joint liability between respondents. Section 95 provides that the Tribunal may award judgment against one or more respondents. If it makes an order against one respondent, the other respondent(s) continue to be jointly liable for satisfaction of the judgment as between the respondents.
Finally, s 79U of the FTA stipulates that the Tribunal must be satisfied that all orders it makes are fair and equitable to all parties to the claim

What is a ‘major failure’ of compliance?

Section 260 sets out the circumstances of when a breach will be a “major failure”.

A failure to comply with consumer guarantee(s) may be a ‘major failure’ for at least five different reasons contained in s 260 of the ACL:

(a) the goods would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of the failure; or
(b) the goods depart in one or more significant respects:
(i) if they were supplied by description--from that description; or
(ii) if they were supplied by reference to a sample or demonstration model--from that sample or demonstration model; or

(c) the goods are substantially unfit for a purpose for which goods of the same kind are commonly supplied and they cannot, easily and within a reasonable time, be remedied to make them fit for such a purpose; or
(d) the goods are unfit for a disclosed purpose that was made known to:
(i) the supplier of the goods; or
(ii) a person by whom any prior negotiations or arrangements in relation to the acquisition of the goods were conducted or made;
and they cannot, easily and within a reasonable time, be remedied to make them fit for such a purpose; or

(e) the goods are not of acceptable quality because they are unsafe.

Whilst the applicant need only establish one of the above, not every fault or combination of faults which represents a breach of the guarantee of acceptable quality constitutes a major failure under s 260 of the ACL.
As to what is a “major failure”, guidance is provided by the Appeal Panel in Safi v Heartland Motors Pty Ltd t/as Heartland Chrysler [2016] NSWCATAP 80 at [101]:

101 Having regard to these cases and the commentary, where there is non-compliance with the guarantee of acceptable quality, as alleged in this case, we find that the following matters will be relevant to the question of whether this amounts to a “major failure” under s 260(1)(a):

(1) A major failure may be constituted by one defect or a series of specific or individual defects which, when taken as a whole, constitute a major failure;
(2) The test of whether the goods “would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of the failure” is an objective one;
(3) A “reasonable consumer” would expect teething problems, even in a new vehicle;
(4) The question to ask is whether the reasonable consumer, given the option of acquiring that particular good or alternatively purchasing either nothing or a different model, would not have acquired the good;
(5) Defects which result in goods failing to comply with the guarantee of acceptable quality will not invariably be a major failure and it will depend on the nature and extent of the failure; and
(6) The cost of repair, in proportion to the purchase price, and the question of whether the defects can be remedied easily in a timely manner are relevant considerations.
102 In our view, the purchase price for the goods and the nature of the defect are also relevant considerations for a “reasonable consumer”.

In Schmidt v JRS Trading Pty Ltd [2023] NSWCATAP 116, the Appeal Panel at [23] in interpreting ss 259 and 260, said that a finding of whether a failure to comply with a guarantee amounts to a ’major failure’ is not subject to the supplier being given an opportunity to repair the goods in question.

How to determine the rejection period?

As seen, a consumer may reject the goods within the rejection period if there is a failure to comply with a guarantee that cannot be remedied, or a major failure to comply with a guarantee.
The rejection period is defined in s 262(2) as:

The rejection period for goods is the period from the time of the supply of the goods to the consumer within which it would be reasonable to expect the relevant failure to comply with a guarantee referred to in section 259(1)(b) to become apparent having regard to:
(a)    the type of goods; and
(b)    the use to which a consumer is likely to put them; and
(c)    the length of time for which it is reasonable for them to be used; and
(d)    the amount of use to which it is reasonable for them to be put before such a failure becomes apparent.

In Barbour, the Appeal Panel set out at [83] the test for determining whether the rejection period has ended:

“From these cases it can be seen the following matters are relevant considerations in determining the rejection period for a major failure and when it has ended:
(1) The rejection period commences at the time of supply;
(2) The rejection period ends when it would be reasonable for the defect to become reasonably apparent;
(3) The period of time must be reasonable having regard to the defect or defects. The test is objective but the actual experience of the consumer is relevant;
(4)   In determining the time in which a failure to comply becomes reasonably apparent regard must be had to the factors in s 262(2)(a)-(d) of the ACL;
(5)   Matters affecting the length of the period and when a major failure may become reasonably apparent include:
(a)   Whether the good are old or new. In the case of new goods it will usually be longer period;
(b)    Whether the goods are regularly inspected, whether an inspection process is customary and, if so, whether such inspections would be expected to reveal the failure;
(c)   Whether a reasonable consumer fully acquainted with the state and condition of the goods, would know the cause of the defect, what needed to be done to fix it and the cost of doing so;
(d)   Whether the supplier or repairer had identified a fault and carried out a repair which the consumer understood would rectify the fault;
(e)   Whether any subsequent testing or period of use was necessary and/or elapsed following any repair to see if it was successful;
(f)   Whether a failure, or a series of failures in combination with each other, might render the goods unfit or otherwise lead a reasonable consumer to conclude they would not have acquired the goods;
(g)   Whether a reasonable time has elapsed following the consumer becoming fully acquainted with the failure to make a decision about whether to reject the goods.”

A high degree of certainty as to knowledge of the failure is required – see Jayco at [49] where Wheelahan J agrees with Derrington J in Vautin v BY Winddown Inc. (formerly Bertram Yachts) (No 4) [2018] FCA 426:

If the level of knowledge required is as identified above, it follows that if there exists doubt about the consequences of a defect in an item and, therefore, the cost of repairing it, the failure of the statutory guarantee has not become apparent.

Applicant’s evidence and submissions

The applicant submitted as follows.
Within two weeks of taking delivery, the vehicle started breaking down, losing power and misfiring. It was unsafe to drive. It happened intermittently. Booths was unable to work out the problem as it did not replicate upon testing.
Booths had it in for repairs and servicing about 10 times. All they did was change a spark plug and the coil pack.
It broke down twice in 2021 and was towed to Booths by the NRMA.
On 23 February 2023, the applicant wrote to the Manufacturer about the long-term misfire issue: “back and forth from the dealership 6-7 times” and the service department telling them: “it’s really worrying that the computer isn’t picking up the faults” and the newer issues of jamming of brakes and the touch screen. The applicant said: “we have spoken to Fair Trading… and we are requesting a new car and for our car to be taken back as it is not up to standard and we are having so many issues.”
On 5 March 2023 the applicant again wrote to the Manufacturer: “car has gone into limp mode engine light on shuttering bad with no power. I want a new car and I will be taking this one back to Mitsubishi…”
On 7 March 2023 the applicant issued the Demand. The Demand stated:

“Since having the car it has had the same fault time and time again. It has been back and forth from the dealership.. We have had numerous leads and plugs replaced individually and then.. all leads, plugs and coil packs replaced. The computer is not picking up faults which is an issue within itself. The car has a knocking noise within the engine bay which the dealership… say they can’t hear it and some cars just have noises which we do not believe is a sufficient resolution.. the touch screen is faulty.. we have also had the car back for the mitigation sensor.. the car would dangerously just lock the brakes up.. We are now worried to drive the vehicle as we don’t know if it’s going to lock up again due to the sensor or lose power due to the misfire engine fault”.

It took three attempts to rectify the touch screen. The computer was faulty and was not registering the faults. Computer repairs were attempted in March 2023 and June 2023 with a second hand computer put in. A new computer was finally installed in December 2023.
On 30 June 2023 the applicant wrote to the Manufacturer they’d had the car back for 2 days and so far it is ok.
On 10 July 2023 the applicant wrote to the manufacturer: “I was driving along a road no car in front… and the mitigation system sensor slammed on the brakes and locked the car up! Also the touch screen that was replaced works sometimes and then sometimes it doesn’t work.”
On 26 July 2023 the applicant wrote to the Manufacturer about the braking mitigation system: “I have been told by Allan [at the Seller] that it could be anything setting it off from a shadow on the road, to a plastic bag or driving close to the gutter…I have since spoken to another Mitsubishi in Sydney to et a second opinion and he has said that it’s absolutely not the case and it’s fault within the car…”
On 29 August 2023 the applicant wrote to the Manufacturer: “I am still having the issue with the mitigation system jamming on the [brakes] as I drive along. It did it this morning… I want to make it clear I can near slam up the back of someone and it doesn’t go off yet I can be driving along and it just jams on the [brakes]. I am taking this to NCAT and wanting a new car. No car should be doing this. Not to mention the knocking noise that’s apparently the purge valve.”
On 14 April 2024 the vehicle broke down.
On 16 April 2024 the applicant wrote to the Manufacturer: “As this is a major fault.. and we have given ample opportunity to fix the fault within a time frame. I would like to have you… take the car back.. or be put in a car to the value of purchase price!... has a major fault that cannot be fixed! This has been going on since October 2020. The car was with Booths [Seller] for… 4 months and it’s still not fixed. The car has had a new computer, engine harness, leads, plugs..I am demanding a buy back or a new car as 3 years of constant issues is [too] long.”
On 24 May 2024 Mr Petrone from Tuggerah Auto provided three quotes for replacement vehicles, which the applicant rejected.
On 28 May 2024, the applicant obtained a report from Rite Price Tyres which said:

“Upon expecting the report that Mitsubishi provided the customer with a definite problem PCM Power Control Module. Also it is showing all the signs of having a wring [wiring] issue which makes it unsafe to drive.”

The applicant says the vehicle still shudders even after the new electronic control unit and wiring harness were installed.
He has received no paperwork to be able to verify what works have been done on the brakes in April and May 2024.
He’s had a loan car for some 13 months and did not buy a brand new car only to use a loan vehicle.
He does not want the car back as he does not trust the same issues will not arise.
The car is unsafe for his wife and 3 children.
On a few occasions he did not show because Booths were doing nothing to fix the misfiring and he had to keep taking days off work to take the car into repairs, which he could not afford. He has had to take time off work for the car repairs which have been assessed about 17 times.

Tuggerah Auto’s evidence and submissions

Mr Petrone submitted as follows:
He commenced working at Tuggerah Auto in March 2024.
Tuggerah Auto did not sell the vehicle. It is not obligated to reimburse or replace, but is willing to assist.
The car was taken to the Seller 10 times, but on 3 occasions it presented with no faults.
It was slow to diagnose as the electronic control unit which registered faults was faulty.
Since the wiring harness and electronic control unit were replaced, the issue of the misfiring has resolved.
Mr Petrone concedes the electronic control unit is not expected to fail in the first couple of years and said this was a frustrating case. In response to the Tribunal’s question as to whether the faults, in particular the defective electronic control unit, were manufacturing faults, Mr Petrone said: “it was hard to say.”
The brakes were recently resolved in May 2024 when the internal fault in the ABS unit was fixed. This was fixed in about 4 months, which was a reasonable time frame. The brakes have been tested extensively and the car is ready to collect.
The applicant’s expert has not inspected the vehicle but only read the service reports.
It has provided a loan car.

Manufacturer’s evidence and submissions

Mr Cosgrove submitted as follows:
The applicant booked the vehicle in for various assessments and did not show up.
A misfire can be caused by many components - valves, pistons, spark plugs, coils or contaminated fuel.
Booths, by a process of elimination, replaced spark plugs and coils.
The misfire issue was difficult to diagnose as the fault could not be produced at the dealership, it might not occur for 6 months.
The Manufacturer is not obligated to reimburse/replace.
The fault is minor and has been fixed.

Lender’s submissions

Mr Islam submitted that if any of the Respondents are ordered to pay compensation to the applicant, the Tribunal should, in the first instance, order the Respondents pay the Lender the balance payable to discharge the Loan.
The applicant’s Loan was in arrears as at the time of Ms Doyle’s statutory declaration on 24 June 2024. The Loan balance was $8,441.57 and the payout figure (including deferred interest and fees) as that date was $9,879.62.

Issues for determination

The issues for determination are:

Are the claims against both the Seller and Manufacturer “consumer claims” within the meaning of Part 6A of the FTA?

Have they been brought within the three year time limits as required under s 79L of the FTA?

Did the Seller fail to comply with the guarantee as to acceptable quality when it supplied the vehicle to the applicant?

If so, was the failure remedied?

Was the failure to comply a major failure?

If so, did the applicant reject the vehicle within the rejection period?

Are any of the defences available to the Seller made out?

If the applicant rejected the vehicle, what remedy is the applicant entitled to against the Seller?

Should the Seller or its successor, Tuggerah Auto be liable for the remedy?

Were any of the defects manufacturing faults?

Are any of the defences available to the Manufacturer made out?

Should a remedy be made against the Manufacturer?

Does the manufacturer’s indemnity in s 274 ACL apply?

Onus of proof

The onus is on the applicant to prove his claims on the balance of probabilities.

FINDINGS

Was there a breach of s 54?

The applicant relied on the six-line quotation document from Mark Whitehead of Rite Price Tyres dated 28 May 2024, who has not inspected the vehicle and said the vehicle had problems with the power control module and wiring. The report is not in the proper form required for expert evidence and is very brief. The applicant said the expert was a licensed mechanic, but there is no licence number on the report. There is no additional report in the applicant’s documents from Lakedge Motors.
The rules of evidence for expert evidence do not apply for this matter and it is a question of how much weight the Tribunal attributes to the document. The absence of such a report does not mean, of itself, that a consumer cannot establish that goods are not of acceptable quality (or have a major failure): Crooks v Hyundai Motor Company Australia Pty Ltd [2023] NSWCATCD 29 at [63].
The applicant also relies on his statement and the service records of the Seller and Tuggerah Auto and the “History Listing” of the Seller. I find these records prepared contemporaneously carry significant evidentiary weight.
The applicant’s main contention is that the vehicle was not free from defects (s 54(2)(c)). He must establish that there was an actual or latent defect in the vehicle at the time of supply which rendered it of unacceptable quality. He also maintains the vehicle was not fit for all the purposes for which vehicles of that kind are commonly supplied (s 54(2)(a)) and it was not safe due to the faulty brake system (s 54(2)(d)).
The goods must meet all of the criteria in (a) to (e).
The test for these qualities is an objective one. It is what a “reasonable consumer” fully acquainted with the state and condition of the goods (including any hidden defects) would regard of acceptable quality, having regard to the matters in s 54(3).
Section 54(3) states the factors which must be taken into account when assessing whether goods are of acceptable quality. These include (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.
The guarantee applies at the time of supply of the goods: Capic v Ford Motor Company of Australia Pty Ltd [2021] FCA 715 at [606].
Since the guarantee extends to latent defects, information available after the time of supply may be taken into account in deciding whether the goods were of acceptable quality at the time of supply.
Here it took some time for the cause of the each of the three defects to be identified. This is not prohibitive. In Capic at [53] Perram J said:

In an ordinary claim that goods are not of acceptable quality the question of why they are such is irrelevant. For example, if I buy a kettle and it does not work, it does not matter why it does not work. It is not of acceptable quality simply because it does not work. The applicant in such a case has no need to prove its design or componentry deficient, just that it does not work.

Whilst the applicant’s personal dissatisfaction with the vehicle is not sufficient to prove a breach of s 54, having regard to the relatively high price paid for the vehicle ($23,000), the fact it was brand new, the close proximity of the first misfiring defect to the date of supply (being first reported in March 2021 and presenting in September 2021, some 11 months after delivery), and the multiple times the vehicle was bought in for the misfiring issue (some 6 or 7 times) before it was diagnosed, I find that a reasonable consumer would not find the vehicle to be of an acceptable quality at the time of purchase by the applicant.
When I consider:

the vehicle was taken in for assessment within two weeks of delivery for an issue with the forward collision system but no fault was found (on 30 October 2020);

the vehicle was assessed for “misfiring” some 6 or 7 times in an 18 month period between September 2021 and March 2023 before the issue was remedied by replacing the engine wiring harness and electronic control unit;

the vehicle was assessed for a faulty braking system some 4 times in a 15 month period between February 2023 to May 2024 before the issue was said to be fixed (although these repairs have not been verified as the car is still with Tuggerah Auto);

the vehicle was assessed for a faulty touch screen some 3 times in a 10 month period between February 2023 and December 2023 before the issue was resolved by replacing the computer/head unit with a new unit in December 2023.

the vehicle was towed to the Seller twice within the first 12 months (September 2021 and December 2021);

in the space of two years and four months from October 2020 to February 2023, the vehicle has had significant components fail, being the electric control unit, the computer system (twice), the active stability control unit and the engine control harness;

the vehicle has been in for repairs in total approximately 17 times in three and a half years - to the Seller’s dealership some 10 times and to Tuggerah Auto some 7 times;

on balance, I find the vehicle was not free from defects as at the date of supply and it was not fit for all purposes for which goods of that kind are commonly supplied.

Whilst a reasonable consumer would expect some teething problems, they would not expect the amount and extent of the mechanical and electrical problems that have been experienced by the applicant in relation to this brand new vehicle in the first three years.
The fact that the faults may have been intermittent and difficult to diagnose does not mean that the vehicle was not inherently faulty at the time of supply.
Taking into account all of the circumstances of the case, I find that in breach of s 54, the vehicle supplied by the Seller to the applicant was not of acceptable quality, because it was not free from defects, on the date it was supplied, as a reasonable consumer, fully acquainted with the state and condition of the vehicle, (including any hidden defects), would regard as acceptable.

Defence to s 54 available to Seller

I do not consider the defences as set out in s 54(6) and 54(7) have been made out. I see no evidence the vehicle has been damaged by abnormal use, or that any inspection of the vehicle prior to sale ought to have revealed its condition.
I do not accept the Manufacturer’s submission that the applicant has contributed to the damage by cancelling three bookings, such that it can be said he caused the vehicle to become of unacceptable quality, or failed to take reasonable steps to prevent it from becoming of unacceptable quality.

The relevant test of causation is whether, as a matter of common sense, the relevant act or omission was a cause of the damage, and not necessarily the sole cause: see Strogylos (t/as Auto Clinic St Andrews) v Vella [2020] NSWCATAP 156 at [43].

Liability of manufacturer – was there a manufacturing defect?

Claims against a manufacturer made under s 54 in relation to motor vehicles will usually involve an allegation that there was something inherent in the condition of the vehicle at the time of supply that made the vehicle not of acceptable quality, including the risk of future mechanical failure. See Capic at [612].
It is clear significant components of the vehicle were faulty, the electronic control unit which registered fault codes for the vehicle, the active stability control unit which controlled the brake sensors and the head unit which controlled the electrics, including the touch screen.
Mr Petrone conceded the electronic control unit should not have failed on a new car within two years of supply, but he was not certain it was a manufacturing fault.
The applicant’s short report does not assist, with Mr Whitehead from Rite Price Tyres not having inspected the vehicle.

Defences available to manufacturer

Section 271(2) sets out the circumstances where an “affected person” is not entitled to recover damages against a manufacturer where there has been a failure to comply with s 54.
Section 271(2) requires me to consider whether the guarantee was not complied with only because of:

(a) an act, default or omission of, or any representation made by, any person other than the manufacturer or an employee or agent of the manufacturer; or
(b) a cause independent of human control that occurred after the goods left the control of the manufacturer

The other person’s failure/misrepresentation must be the sole cause of the failure to comply with the guarantee.
I have already determined when considering the defence available to the Seller under s 54(6) that any conduct or negligence of the applicant was not a cause, let alone the sole cause. There is no complaint that any mechanics employed by the Seller or Tuggerah Auto have caused the vehicle not to be of acceptable quality, nor is there any evidence that any representations as to the acceptable quality of the vehicle were made to the applicant by a representative of the Seller, such that the application against the Manufacturer should be dismissed as it is exempted from liability under s 271(2)(a).
There is no evidence the defects were solely caused by matters not dependent of human control after the vehicle left the control of the manufacturer under s 271(2)(b).
Whilst it is not strictly necessary for me to make a finding that the manufacturer is liable given the original supplier is a party to the proceedings, on the balance of probabilities I find that each of the three defects: (a) the electronic control unit which failed to register fault codes for the vehicle, (b) the active stability control unit which failed to control the brake sensors and (c) the faulty head unit which caused the touch screen, radio and electronics not to work, were inherent manufacturing faults.

Was the failure to comply with s 54 a major failure of compliance?

The respondents submit if non-compliance is found, the failure is minor.
I do not accept that submission.
I find the applicant’s everyday enjoyment of the vehicle has been compromised by having to take the vehicle to the Seller and Tuggerah Auto for assessment and repair 17 times to the Seller and Tuggerah Auto in three and a half years.
I find the three faults with the vehicle, both individually and cumulatively, constitute a major failure of compliance with the s 54 guarantee, within the meaning of s 260(1)(a), entitling the applicant to reject the vehicle under s 259(3)(a). I find that a reasonable consumer with knowledge of the nature and extent of the mechanical, electrical and braking issues, would not have bought this vehicle knowing that there would be problems with the engine constantly misfiring and cutting out and continuing for the next two years, compounded by an unsafe brake senor system and a faulty computer radio. I find these faults are indicative of serious mechanical and electrical issues with the vehicle.
I also accept the applicant’s expert opinion that the failure rendered the car “unsafe to drive” owing to it having a wiring issue.

Failure to comply with the requirement, or failure to comply with the requirement within a reasonable time?

Even if the failure was not a major failure, there was a significant delay and compliance of repairs.
I find the faulty ECU was not remedied by the Seller within a reasonable time, having taken from September 2021 to March 2023 to diagnose. I also find the braking system similarly took too long to repair, being 15 months from February 2023 to May 2024 (with the applicant not yet been given a service report to be able to verify the brake repairs) and the first replacement computer system was faulty and took six months to resolve. Even if I am wrong in concluding that the failure constitutes a major failure, the applicant would still have a right to reject the vehicle under s 259(2)(b)(ii).

Did the applicant reject the vehicle?

The applicant first gave notice to the Seller of his rejection of the vehicle by his Demand issued on 7 March 2023 requesting a replacement car. He had earlier sent an email on 28 February 2024 to the Manufacturer with the same request. Following the Demand, he continued to insist on his right to a replacement car.
I find the words amounted to a notification to the Seller that he wanted to return the vehicle and obtain a replacement /refund.
That rejection was not accepted by the Seller, which proceeded to carry out further testing and repairs to the vehicle under warranty, with the apparent consent of the applicant.
As noted in Avci at [77]:

“By operation of s 263 of the ACL the applicant is therefore entitled to return the motor vehicle to the first respondent and the first respondent must accept its return”.

The fact that the Seller did not accept the return of the vehicle does not disentitle the applicant to the remedy that he is now seeking: Hutchinson v Central Coast Automotive Pty Ltd [2022] NSWCATCD 123 at [45-48]. As the Appeal Panel said in My Pool Safety Inspector Pty Ltd v MCM Sutherland Pty Ltd [2024] NSWCATAP 58 at [59].

“Neither the wording of the ACL, nor its objects, support the proposition that a supplier can choose the remedy that is most suitable to it other than as specified in s 261, which gives the supplier the right to comply with the consumer guarantee by repairing the goods. However, this only applies where the failure to comply with a consumer guarantee is not a major failure.”

The fact that the applicant acquiesced to further repairs does not render the rejection void. He continued to insist on a replacement vehicle after March 2023. A consumer is entitled to make enquiries. In Vautin, Justice Derrington at [269] said:

“… Even where a consumer has become aware of the existence of a major failure and the right of rejection, they are still entitled to ascertain the nature and extent of the defect and how much it will cost to repair, before being put to an election.…”

In this regard, it can be said the applicant acted reasonably in allowing the Seller an opportunity to repair.
The critical issue is rejection of the goods. A consumer is not obliged to immediately physically return the goods to the seller to be able to avail itself of the remedy under s 259(3)(a) of the ACL (Barbour v Autosports Five Dock Pty Ltd [2020] NSWCATAP 141).
I also find the applicant’s refusal to accept delivery of the vehicle in April/May 2024 after the repairs, amounts to a further rejection of the vehicle under s 259(3)(a).

Was the vehicle rejected within the rejection period?

As set out above, in s 262(2), the rejection period is the period from the time of the supply of the goods to the consumer within which it would be reasonable to expect the relevant failure to become apparent.
This is a reference to the failure to comply with the statutory guarantee becoming apparent, rather than any underlying defect becoming apparent, which may occur at an earlier point in time.
In Nesbit v Porter [2000] NZCA 288; 2 NZLR 465 at [40], the New Zealand Court of Appeal explained in relation to the corresponding New Zealand provision:

In some instances the defect will be of a kind where it may be obvious that something is wrong with the goods but the supplier or someone else to whom the consumer turns for help may be in doubt about the exact nature of the problem and thus about how serious it is. For example, the operation of a motor vehicle may be affected by the failure of a small and comparatively obscure part, say, a waver spring in an automatic transmission; until the transmission is dismantled a mechanic cannot be sure what the defect is. Or the cause of malfunction, particularly one which occurs intermittently, may be hard to detect even upon inspection. It may be necessary to carry out a series of tests or even to wait and see what, if anything, develops. Or the repairer may think the fault has been identified and that the correct repair or adjustment has been made but this view may prove to be wrong and the problem may manifest itself again. … In all such cases, a reasonable period will not elapse before the consumer has had the opportunity to become properly informed about the nature of the defect and has also had a little time then to consider an appropriate decision, whether or not to reject the goods. It almost goes without saying that the period will be correspondingly longer where the supplier has taken steps which effectively conceal a defect or has withheld relevant information.

Whilst the rejection on 7 March 2023 occurred some two years and four months from the delivery date, I am satisfied that the rejection period had not ended when the applicant rejected the vehicle.
This is because I find the failure to comply with s 54 did not become fully apparent to the applicant until the diagnosis of the first defect, which was the misfiring. The diagnosis of the faulty electronic control unit took 18 months and did not occur until 9 March 2023. Until that time and in reliance on the incorrect fault codes being recorded by the defective ECU (or quite often no codes at all), the Seller attempted to fix the misfiring by incorrect or unnecessary methods, including by replacing the no. 2 ignition coil and no. 3 spark plug. The Manufacturer says these repairs were carried out in the process of elimination, but each time the applicant was led to believe the problem was solved, only for the misfiring to return. It was only after the ECU was finally diagnosed as faulty and replaced on 9 March 2023, that the correct cause of the misfiring was identified, being the faulty engine wiring harness, which was then also replaced.
The service reports indicate that the two other significant defects presented on 28 February 2023, the anti-locking braking system and the touch screen. These also took a long time to diagnose. The braking system took 15 months to fix as I find, based on the service records, the faulty brake sensors were reported in February 2023 (not February 2024 as the Respondents assert). The hydraulic unit brake module was replaced during April to May 2024. The applicant has not received a report to verify the brake repairs. The touch screen took 10 months to fix with a new control unit in December 2023, after the first control unit was faulty.
Whilst there were signs prior to rejection on 7 March 2023 that may be said to put a reasonable consumer on notice that the vehicle was not of acceptable quality, I find there was no definitive information prior to 7 March 2023 and certainly no “high degree of certainty” that there had been a failure to comply with the guarantee.
I find the rejection occurred within an appropriate time frame and the application was made within three years of 7 March 2023, affording the Tribunal jurisdiction under the FTA.

Consequences of rejecting goods – What is the appropriate remedy as against the Seller - refund and return of vehicle or replacement vehicle?

I accept the applicant’s evidence that he has lost faith and trust in Mitsubishi.
It is appropriate that I make an order for a refund rather than a replacement Mitsubishi vehicle. This is a fair and equitable outcome when taking into account s 79U.

Should the refund and return order be made against the Seller or its successor, Tuggerah Auto?

E J and W A Booth Pty Ltd sold the vehicle and was paid the purchase price. It is the “supplier” within s 2 of the ACL. It was paid the purchase price by the consumer for the sale of the vehicle. It continues to be a legal entity, and there is no evidence that Tuggerah Auto assumed its liabilities when the dealership was sold to Tuggerah Auto.
Although the vehicle has been delivered back to Tuggerah Auto, that does not mean the obligation on the supplier to refund rests on Tuggerah Auto. Rather, it reflects that the dealership site is now operated by Tuggerah Auto.
It is appropriate to make the refund order against the Seller, E J and W A Booth Pty Ltd. If there is some other dispute between E J and W A Booth Pty Ltd and Tuggerah Auto as to whether Tuggerah Auto is liable to reimburse E J and W A Booth Pty Ltd by reasons of the terms of the sale of the business, that is outside the parameters of this decision.
In respect of the order to return the vehicle to the supplier, the return can occur at the dealership site of Tuggerah Auto, and E J and W A Booth Pty Ltd can collect the vehicle from that site in accordance with the orders of the Tribunal that facilitate the return of the vehicle to the Seller; and the refund of the purchase price.

What is the amount of the refund to be awarded?

The Respondents submit the applicant has driven the vehicle in excess of 69,000 kilometres since purchase.
The submission is the refund sum should be discounted by reason of the fact that the applicant obtained use and enjoyment from the vehicle despite the faults.
It is not necessary for me to consider the applicant’s use of the vehicle. The applicant is entitled to a refund without deduction: SMA Motors Pty Ltd t/as Autos Auctions v Smith [2022] NSWCATAP 282 at [74-75].
I will however deduct the price of the warranty, registration and compulsory third party insurance as I do not consider them to be part of the purchase price. The applicant has received a benefit from these items for the first 12 months since purchase and as such, I have excluded them from the refund amount.
I will allow the vehicle price of $21,809.09 plus other amounts which I conder to be part of the purchase price: accessories ($672.73), number plates ($110), dealer delivery fee ($1,813.64) and stamp duty ($756), which totals: $25,161.46.

Should orders be made requiring the Seller alone or both of the Seller and the Manufacturer to provide the refund?

It is the supplier which has the primary liability where the guarantee of acceptable quality is not complied with under the ACL.
In Capic at [703] Perram J summarised the position as follows:

The point for present purposes is that it is the supplier who stands in the firing line first and must under Division 1 repair or replace the goods unless the failure to comply with the s 54 guarantee cannot be remedied or is a major failure. No such direct statutory obligation rests on the manufacturer unless it has given an express warranty that it will repair or replace the goods. This it may do but is not required to do. But if it decides to do so the express warranty so proffered is given statutory force by s 59(1) and by s 271(5) the consumer may sue the manufacturer for failing to comply with its own express warranty. Although the remedial provisions with respect to suppliers are complex, by contrast there is no corresponding machinery in the case of manufacturers and the repair/replacement process happens under the auspices of whatever the express warranty provides for (backed up by s 59(1) and s 271(5)).

Similar comments were made in ACCC v Jayco Corporation Pty Ltd [2020] FCA 1672 at [47]-[56].
The applicant is not entitled to recover twice, or recover more than his actual loss.
However, each of the Seller, Tuggerah Auto and the Manufacturer, have acted together in refusing to provide the applicant with the remedy he has sought. Whilst Tuggerah Auto has attempted to facilitate a resolution (in effect offering reduction in value damages), the Seller and Manufacturer have refused to replace or to refund the price paid for the vehicle, offering token sums to resolve the dispute.
The question is whether the Tribunal should make an order requiring only the Seller to refund the purchase price, or order both Seller and the Manufacturer to refund the purchase price for the vehicle.
A refund is not one of the available remedies against the Manufacturer in s 272.
The applicant has not brought a claim against the Manufacturer for any of the available types of damage in s 272.
The Tribunal has no power to apportion liability between the Seller and Manufacturer.
However, the manufacturer’s liability to indemnify a supplier of goods under s 274(1) for damages, may provide a basis for ordering the Manufacturer to pay the refund, jointly and severally with the Seller. The indemnity, however, is only in respect of damages and not in respect of the refund of the purchase price, which is a specific remedy under s 259(3)(a) and s 263; as distinct from damages for loss or damage under s 259(4).

Does the Indemnity under s 274 ACL apply?

If a supplier is liable to a consumer for damages under s 259(4) in circumstances where the manufacturer would also be liable to pay the same damage to a consumer under s 271(1) for failure to comply with s 54, the supplier will be entitled to an indemnity against the manufacturer under s 274.
Under s 79P(a) FTA, the Tribunal has power to make an order that would require the Manufacturer to pay a specified amount of money direct to the Seller, founded upon the liability to indemnify in s 274(1). See Parkinson v Hutchin [2023] NSWCATCD 17 at [56].
As to whether the indemnity applies in the circumstances of this case, s 274 provides:

274   Indemnification of suppliers by manufacturers
(1)  A manufacturer of goods is liable to indemnify a person (the supplier ) who supplies the goods to a consumer if:
(a)  the supplier is liable to pay damages under section   259(4) to the consumer for loss or damage suffered by the consumer; and
(b)  the manufacturer is or would be liable under section   271 to pay damages to the consumer for the same loss or damage.

(2)  Without limiting subsection   (1), a manufacturer of goods is liable to indemnify a person (the supplier ) who supplies the goods to a consumer if:
(a)  the supplier incurs costs because the supplier is liable under this Part for a failure to comply with a guarantee that applies to the supply under Subdivision A of Division   1 of Part   3 - 2; and
(b)  the failure is:
(i) a failure to comply with the guarantee under section 54; or
…

(3) The supplier may, with respect to the manufacturer’s liability to indemnify the supplier, commence an action against the manufacturer in a court of competent jurisdiction for such legal or equitable relief as the supplier could have obtained if that liability had arisen under a contract of indemnity made between them.

The order making power in s 274(3) is not limited to a “court” and is broad enough to include the Tribunal: Royal Flair Caravans Pty Ltd v Kylie Ryan Productions Pty Ltd [2022] NSWCATAP at [76].
Section 276 stipulates that the liability of a supplier or a manufacturer in respect of non-compliance with the statutory guarantees, may not be excluded, restricted, or modified by contract.

However, the liability under s 274 is a liability to indemnify the Seller for damages payable, or costs incurred by them to the applicant under s 259(4), and is not in terms a liability to reimburse the retail price - see Jayco at [717] and [860].
The applicant has not sought any consequential loss under s 259(4), such as interest on the Loan and Lender’s fees, for which the Manufacturer would validly be jointly and severally liable, if such loss was proven to be foreseeable. Strictly the registration and third party insurance charges are consequential losses, however they were claimed for the first 12 months only as part of the purchase price and I have disallowed them on that basis and also on the basis the applicant has obtained a benefit. The applicant has not claimed any subsequent registration and insurance charges as foreseeable loss and damage.
In Morphy v Beaufort Townsville Pty Ltd (Civil Claims) [2018] VCAT 1520 (2 October 2018), the Victorian Civil and Administrative Tribunal made an order pursuant to s 274 ACL to require a deemed manufacturer to indemnify a supplier. However, this was a case where a refund order was made against the supplier at [108] plus consequential losses awarded under s 259(4). The importer was found jointly and severally liable with the supplier for the consequential losses only at [127]. However, the indemnity that the Tribunal ordered was seemingly not limited to consequential losses, but included the refund as well, as an order was made requiring the importer to “indemnify the Supplier to the full extent of the Supplier’s liability to the Applicant” at [133]. This was in circumstances where a cross claim for indemnity had been filed by the supplier and Morphy’s case is distinguished due to the different factual circumstances to the applicant’s claim.
Further, for the indemnity to apply, the section requires that the damages payable by the Manufacturer to the applicant under s 272(1)(b) must be the same damage as that payable by the Seller to the applicant under s 259(4). The damage might be different if, for instance, the Seller refunded the purchase price to the applicant and repaired the vehicle and re-sold it. The Manufacturer may not liable to the Seller for the purchase price, but may be liable for the costs incurred in repairing the vehicle, and for any loss on re-sale.
As mentioned earlier, if a joint liability is established, the Manufacturer may also have a liability under s 95 of the Civil Procedure Act NSW 2005. Section 79V FTA provides s 95 CPA is applicable to an order of the Tribunal. Section 79V states:

79V Joint liability
Section 95 of the Civil Procedure Act 2005 applies to and in respect of an order of the Tribunal under this Division as if such an order were a judgment of the Supreme Court.

Section 95 CPA states:

95   Joint liability
(1) If two or more persons have a joint liability and, in any proceedings, judgment on the liability is given against one or more but not all of them—
(a)  the liability of the other or others of them is not discharged by the judgment or by any step taken for the enforcement of the judgment, and
(b)  after the judgment takes effect, those of them against whom the judgment is given and the other or others of them become liable, as between those of them against whom the judgment is given on the one hand and the other or the others of them on the other hand, severally but not jointly, and
(c)  if there are two or more such persons against whom the judgment is not given, they remain, after the judgment takes effect, jointly liable amongst themselves, and
(d)  if the judgment is satisfied wholly or in part by payment or by recovery under execution, the liability of the persons against whom the judgment is not given is taken also to have been satisfied in the amount of the payment or recovery.

(2) This section does not affect a person’s right to contribution or indemnity in respect of the person’s satisfaction, wholly or in part, of a liability that the person has (whether jointly or severally or jointly and severally) with any other person.
(3) This section does not apply to a judgment to which section 5 (1) (a) of the Law Reform (Miscellaneous Provisions) Act 1946 applies.
(4) In this section, liability includes liability in contract, liability in tort and liability under a statute.

If the Tribunal makes an order against a respondent (Seller), the other respondent (Manufacturer) continues to be jointly liable for satisfaction of the judgement as between the respondents: Campbell v Caravan & RV Central Pty Ltd t/as Avan New South Wales & FCA Australia Pty Ltd [2016] NSWCATCD 90 at [84-86].
However, this is a remedy ancillary to the ACL and is based on a finding of joint liability of a manufacturer to pay a refund for which there is no such remedy available against a manufacturer under the ACL. The ancillary remedies under the FTA are available to a consumer only to the extent they supplement the remedies under the ACL, as opposed to broadening or contradicting the remedies under the ACL. See Saad at [100-105] referencing Lam v Steve Jarvin Motors Pty Ltd [2016] NSWCATAP 186 at [165]. There can be no order as to joint liability unless there is a legal basis for imposing liability on a party in the first place. For the reasons set out in Jayco at [715]-[720] and [860], the only basis for the indemnity by the manufacturer would be under s 274 (which applies to damages, not the remedy of a refund) and the only basis for direct liability of the manufacturer to the applicant would be for damages under ss 271 and 272. Neither of those circumstances arise, so there is no basis for making the manufacturer jointly and severally liable.

Summary of orders

Ultimately, I am of the view that the Seller, E J and W A Booth Pty Ltd, as the supplier of the vehicle, and not the manufacturer, should be required to provide the applicant with the refund as it is the Seller which has the primary liability.
Tuggerah Auto played no part in the supply of the vehicle.
I have not had to determine if there was any breach by Tuggerah Auto (or the Seller) in relation to the services and repairs they provided.
Neither the Seller nor Tuggerah Auto have not sought an indemnity from the Manufacturer whether informally or by way of cross claim under s 274(3). I have dismissed the claim against the Manufacturer. The Manufacturer may retain a liability to the Seller under the indemnity provisions of the ACL. However, these will be matters for the Seller and Tuggerah Auto and the Manufacturer to resolve between themselves. In this regard, I will adopt the position of Wheelahan J in Jayco at [860]:

The legislation then had the effect of establishing a commercial setting in which the supplier and the manufacturer might then work out between themselves how the consequential burden of that liability to the consumer would ultimately be borne. Good conscience did not require that Jayco Corp accept additional direct liabilities to consumers which were otherwise not supported by the legislative scheme.

Orders concerning Lender

There is no evidence that the Lender is a dealer “linked credit provider” within the meaning of s 2 of the ACL or that the Loan is a “linked credit contract” within the meaning of s 278(2) of the ACL, such that the Lender is jointly liable for the loss found to be suffered by the applicant pursuant to ss 278 to 281 of the ACL.
Consequently, I have only made orders affecting the Lender that take into account its security interest.
The Lender submits the appropriate order is that any monies ordered to be paid to the applicant by any of the Respondents, be paid to the Lender in the first instance, in order to discharge the Loan.
I agree this is an appropriate course as Ms Doyle attested that the Loan was in arrears as at 24 June 2024, when the Loan balance was $9,879.62.
Oral evidence given at the hearing was that $6,793.63 was due on the Loan as at the date of the hearing (18 July 2024). I do not have an updated loan balance.
I have made orders accordingly, including that the applicant obtains and gives to the Seller, a payout figure for the Loan.
I am satisfied that these orders are fair and equitable to the parties pursuant to s 79U(1) of the FTA.

**********

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: 08 April 2025

Medium Neutral Citation:	Pepper v E J and W A Booth Pty Ltd trading as Booths Motor Group Tuggerah [2024] NSWCATCD 57
Hearing dates:	18 July 2024
Date of orders:	11 October 2024
Decision date:	11 October 2024
Jurisdiction:	Consumer and Commercial Division
Before:	J. Alder, General Member
Decision:	(1) Melissa Pepper is removed as an applicant to these proceedings. (2) The name of the third respondent is amended to Senjj Automotive Pty Limited trading as Tuggerah Auto Group. (3) Pursuant to s 263(4)(a)(i) of the Australian Consumer Law (ACL), the first respondent, E J and W A Booth Pty Ltd trading as Booths Motor Group Tuggerah (Seller) is to pay the applicant, Jango Pepper, the sum of $25,161.46 (Refund) being the purchase price of a 2020 Mitsubishi ASX wagon, registration number EKM 67H (Vehicle) within 14 days of the date of this decision. (4) The vehicle is deemed to have been returned to E J and W A Booth Pty Ltd t/as Booths Motor Group Tuggerah by reason of it being in the possession of Senjj Automotive Pty Limited. (5) Senjj Automotive Pty Limited is to make the vehicle reasonably available for collection by E J and W A Booth Pty Ltd t/as Booths Motor Group Tuggerah. (6) Order 3 is to be satisfied within 14 days by: (a) the Seller paying Secure Funding Pty Limited (Lender) the balance payable to the Lender to discharge loan no. 3432242 (Loan); and (b) the Seller paying the applicant the balance of the Refund after the Loan is discharged. (7) In order to give effect to order 6(1), the applicant is to obtain from the Lender and give to the Seller within 7 days: (a) the payout figure in relation to the Loan and bank account details for the Lender to permit the Seller to make payment to the Lender to discharge the Loan; and (b) written confirmation that upon receipt of payment of the balance of the Loan, the Lender will release any security and take all necessary steps to ensure the Vehicle is unencumbered. (8) The proceedings are otherwise dismissed.
Catchwords:	CONSUMER CLAIM – defective motor vehicle - failure to comply with the guarantee as to acceptable quality - major failure – rejection of motor vehicle – whether rejection period had ended - time in which to bring claim against supplier and manufacturer - when cause of action accrues in relation to supplies of goods – what amount is included in the purchase price of motor vehicle when calculating refund - whether manufacturer is liable to indemnify supplier- appropriate orders where goods subject to third party financing
Legislation Cited:	Fair Trading Act 1987 (NSW) 1987, ss 4, 28, 79D, 79E, 79J, 79K, 79L, 79N, 79P, 79S, 79U, 79V Australian Consumer Law (NSW), ss 2, 3, 7, 54, 55, 59, 60, 61, 62, 259, 260, 261, 262, 263, 267, 271, 272, 273, 274, 276, 278, 281 Civil Procedure Act 2005, s 95
Cases Cited:	Australian Competition and Consumer Commission v Jayco Corporation Pty Ltd [2020] FCA 1672 Avci v Inchurch Automotive Pty Ltd t/a Parramatta Motor Group [2019] NSWCATCD 39 Barbour v Autosports Five Dock Pty Ltd [2020] NSWCATAP 141 Campbell v Caravan & RV Central Pty Ltd t/as Avan New South Wales & FCA Australia Pty Ltd [2016] NSWCATCD 90 Capic v Ford Motor Company of Australia Pty Ltd [2021] FCA 715 Crooks v Hyundai Motor Company Australia Pty Ltd [2023] NSWCATCD 29 Frediani v Hall t/as Happy Camper Conversions [2024] NSWCATAP 134 Hutchinson v Central Coast Automotive Pty Ltd [2022] NSWCATCD 123 298 Lam v Steve Jarvin Motors Pty Ltd [2016] NSWCATAP 186 Morphy v Beaufort Townsville Pty Ltd (Civil Claims) [2018] VCAT 1520 (2 October 2018) My Pool Safety Inspector Pty Ltd v MCM Sutherland Pty Ltd [2024] NSWCATAP 58 Nesbit v Porter[2000] NZCA 288; 2 NZLR 465 Parkinson v Hutchin [2023] NSWCATCD 17 Sacks v Hammoud [2016] NSWCATAP 225 Safi v Heartland Motors Pty Ltd t/as Heartland Chrysler [2016] NSWCATAP 80 Schmidt v JRS Trading Pty Ltd [2023] NSWCATAP 116 SMA Motors Pty Ltd t/as Autos Auctions v Smith [2022] NSWCATAP 282 Strogylos (t/as Auto Clinic St Andrews) v Vella [2020] NSWCATAP 156 Vautin v BY Winddown Inc. (formerly Bertram Yachts) (No 4) [2018] FCA 426 Volkswagen Group Australia Pty Ltd v Saad [2022] NSWCATAP 133
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Jango Pepper – Applicant E J and W A Booth Pty Ltd trading as Booths Motor Group Tuggerah - First Respondent Mitsubishi Motors Australia Limited – Second Respondent Senjj Automotive Pty Limited trading as Tuggerah Auto Group – Third Respondent Secure Funding Pty Limited trading as Liberty Financial – Fourth Respondent
Representation:	Applicant: self represented First Respondent: Mr David Booth Second Respondent: Mr Shane Cosgrove Third Respondent: Mr David Petrone Fourth Respondent: Mr David Templeton and Ms Doyle
File Number(s):	2024/00141711
Publication restriction:	None