Poat v Consumer Trader and Tenancy Tribunal - [2004] NSWSC 947

CITATION: Poat v Consumer Trader & Tenancy Tribunal & Anor [2004] NSWSC 947 revised - 21/10/2004

HEARING DATE(S): 13 October 2004

JUDGMENT DATE:
19 October 2004

JURISDICTION:
Common Law Division
Administrative Law List

JUDGMENT OF: Master Malpass at 1

DECISION: The summons is dismissed; the plaintiff is to pay the costs of the summons.

CATCHWORDS: Jurisdiction exercised in the Motor Vehicles Division of the Tribunal - definition of "new motor vehicle" - "wheels" - a boat is not a motor vehicle.

LEGISLATION CITED: Consumer Claims Act 1998, s14(3)
Consumer Trader & Tenancy Tribunal Act 2001, Schedule 1 cl 1(d)
Motor Dealers Act 1974, s4
Motor Vehicles Taxation Act 1988, s3(1)
Road Transport (General) Act 1999, s3(1)

CASES CITED: Hasniyah Murad v Pacific Services Pty Ltd & Anor [2004] NSWCA 251

PARTIES :
Philip Poat (Plaintiff)
Consumer Trader & Tenancy Tribunal (First Defendant)
Pathfinder Boatland Pty Limited T/A Pathfinder Marine (Second Defendant)

FILE NUMBER(S): SC 30044 of 2004

COUNSEL: In person (Plaintiff)
Mr M Callanan (Solicitor) (Second Defendant)

SOLICITORS: N/A (Plaintiff)
Tillyard & Callanan (Second Defendant)

LOWER COURTJURISDICTION: Consumer Trader and Tenancy Tribunal of NSW

LOWER COURT FILE NUMBER(S): MV 04/15484

LOWER COURT
JUDICIAL OFFICER : Senior Member Durie

- 8 -

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

Master Malpass

19 October 2004

30044 of 2004 Philip Poat v Consumer Trader & Tenancy Tribunal & Anor

JUDGMENT

1 Master: The plaintiff purchased a boat from the party that is described as the second respondent in these proceedings. He brought an application in the Consumer Trader & Tenancy Tribunal (the Tribunal) to recover moneys paid in respect of the boat. The sum claimed was $383,000. The application appears to have been processed in the Motor Vehicles Division of the Tribunal.

2 The hearing of the application took place on 13 May 2004. Neither party had legal representation. No evidence was taken. The application was dismissed on a question of jurisdiction (which may have been raised by the Tribunal itself). The Tribunal took the view that it had no jurisdiction to determine the application because the claim exceeded the sum of $25,000.

3 The plaintiff applied for a written statement of reasons. This was provided by Senior Member Durie on 26 May 2004.

4 The Tribunal is comprised of a number of divisions (including the General Division and the Motor Vehicles Division).

5 The Tribunal exercises jurisdiction in respect of consumer claims under the Consumer Claims Act 1998 (including claims that relate to motor vehicles). Save for inter alia the consumer claims that relate to motor vehicles, this jurisdiction is to be exercised in the General Division (where there is a jurisdictional limit of $25,000). The Motor Vehicles Division has an unlimited jurisdiction.

6 In dealing with the application, the Tribunal made the assumption that the plaintiff could prove the purchase of a new boat from the second respondent. It then dealt with the question of whether or not such a claim could be…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2004] NSWSC 947
Decision Date: 19 October 2004

CaseChat Overview and Summary

In the case of Poat v Consumer Trader and Tenancy Tribunal, the applicant, Mr. Poat, sought relief from the Civil and Administrative Tribunal (CAT) regarding an incident involving a boat that he had purchased. The Tribunal's Motor Vehicles Division was called upon to determine whether the boat qualified as a "new motor vehicle" under the relevant legislation. The dispute centred on the interpretation of the term "wheels" within the context of the definition of a "new motor vehicle."

The legal issue before the court was whether the statutory definition of a "new motor vehicle," which includes the phrase "a vehicle with wheels," encompassed a boat. This interpretation was critical because the applicability of certain statutory protections and rights for consumers depended on the boat being classified as a new motor vehicle. The court had to consider whether the ordinary and grammatical meaning of "wheels" excluded boats from the definition.

The court examined the ordinary and grammatical meaning of "wheels" and concluded that it did not include boats. The court found that "wheels" implied a structure designed for movement on land, not on water. Consequently, the Tribunal's Motor Vehicles Division did not have jurisdiction to hear the matter as the boat was not a motor vehicle. The court dismissed Mr. Poat's application, affirming the Tribunal's decision that the boat did not fall within the statutory definition of a "new motor vehicle." As a result, Mr. Poat's application was without merit, and no further orders were made.

Orders