Rajesh Kumar v Motorserve Pty Limited t/as NRMA Motor Serve

[2014] NSWCATCD 155

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Rajesh Kumar v Motorserve Pty Limited t/as NRMA Motor Serve [2014] NSWCATCD 155
Hearing dates:	31 July 2014
Decision date:	21 August 2014
Before:	P.L. Boyce, Senior Member
Decision:	1The application is dismissed
Catchwords:	Renewal of proceedings
Legislation Cited:	Australian Consumer Law Civil and Administrative Tribunal Act 2013 Consumer Claims Act 1998 Competition and Consumer Act (Cwlth) 2010 Fair Trading Act 1987
Category:	Principal judgment
Parties:	Rajesh Kumar (applicant) Motorserve Pty Ltd (respondent)
File Number(s):	MV 14/25077, 14/14664, 13/21479
Publication restriction:	Nil

reasons for decision

Application

1. This is an application by a consumer applicant for a refund of the purchase price of a reconditioned engine for a Rav 4 motor vehicle from a supplier respondent.

1. The applicant alleges that the respondent has failed to comply with the warranty given by the respondent at the time of supply of the engine and that he has failed to comply with the consumer guarantee contained in the Australian Consumer Law ("ACL").

Jurisdiction

1. This application is brought in the Motor Vehicle List of the Consumer and Commercial Division of the Tribunal.

1. For the provisions of the Consumer Claims Act 1998 to apply then the Tribunal has to be satisfied that the application is a consumer claim for the purposes of the Act.

1. The applicant is presumed by s 4 of the Act to be a consumer within the meaning of s 3 of the Consumer Claims Act 1998.

1. The respondent is a supplier as defined in s 3 of the Act as it is in the course of carrying on, or purporting to carry on, a business, of a motor vehicle repairer.

1. The matter falls within the definition of "consumer claim" under s 3A of the Consumer Claims Act 1998.

1. The cause of action arose within the 3 years prior to the commencement of proceedings, and the value of the claim is less than $30,000.00.

1. The Tribunal is satisfied that it has jurisdiction under s 7 of the Consumer Claims Act 1998.

1. The Australian Consumer Law ("ACL") is contained in Schedule 2 of the Competition and Consumer Act (Cwlth) 2010.

1. The provisions of the ACL apply in NSW by virtue of the provisions of its adoption by s 28 of the Fair Trading Act (NSW) 1987.

Law

1. S 54 of the ACL provides that a supplier of goods must give a guarantee that the goods supplied to a consumer must be of acceptable quality.

1. Goods are of acceptable quality if they are:

(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 nature of the goods; the price of the goods (if relevant); any statements made about the goods on any packaging or label on the goods; any representation made about the goods by the supplier or manufacturer of the goods; and any other relevant circumstances relating to the supply of the goods.

1. If a consumer takes action against a supplier for the failure to comply with the guarantee in s 54 that the goods will be of an acceptable quality then the provisions of s 259 (1), (3) and (4) of the ACL apply in that:

(1) A consumer may take action under this section if:

(a) a person (the supplier) supplies, in trade or commerce, goods to the consumer; and,

(b) a guarantee that applies to the supply under Subdivision A of Division 1 of Part 3-2 (other than sections 58 and 59 (1) is not complied with.

(2) .....

(3) If the failure to comply with the guarantee cannot be remedied or is a major failure, the consumer may:

(a) Subject to section 262, notify the supplier that the consumer rejects the goods and of the ground or grounds of rejection; or,

(b) by action against the supplier, recover compensation for any reduction in value of the goods below the price paid or payable by the consumer for the goods.

(4) The consumer may, by action against the supplier, recover damages for any loss suffered by the consumer because of failure to comply with the guarantee if it is reasonably foreseeable that the consumer would suffer such loss or damage as a result of such failure.

1. If a consumer requires a supplier of goods to remedy a failure to comply with a guarantee referred to in s 259(1)(b), the supplier may comply by the actions set out in s 261(b) to (d) of the ACL as follows:

(b) if the failure does not relate to title-by repairing the goods; or,

(c) by replacing the goods with goods of an identical type: or,

(d) by refunding:

(i) any money paid by the customer for the goods; and,

(ii) an amount that is equal to the value of any other consideration provided by the consumer of goods

Facts and Evidence

1. On or about 21 January 2012 the respondent supplied and fitted the applicant's Rav 4 motor vehicle with a reconditioned engine for a price of $4,500.00. The respondent provided an 18 month or 20,000kms warranty for the reconditioned engine.

1. On or about 23 January 2012 the applicant complained to the respondent that engine was not performing to his expectations in particular that:

• The vehicle shakes a lot;
• The new engine is noisier than the previous engine;

The "pick up" is much slower on acceleration than the previous engine;

1. On 20 February 2012 the applicant returned the vehicle to the respondent for servicing following that service the applicant complained about the fuel efficiency of the vehicle.

1. The applicant filed an application (13/21479) against the respondent in the Consumer Trader and Tenancy Tribunal ("CTTT") on 22 April 2013 in relation to the claim by the applicant that respondent fix or replace the engine in his motor vehicle ("first application").

1. On 2 July 2013 the CTTT dismissed the applicant's application on the grounds that the applicant had not satisfied the civil standard of proof that the grounds required to make the order sought had been established.

1. On 16 March 2014 the applicant filed a further application (14/14664) for orders that the respondent fix or replace the faulty parts to the approximated value of $5000.00 ("second application"). The applicant sought an order that the Tarago engine in his vehicle installed by the respondent be replaced with a RAV 4 engine. The applicant claimed that the further application was because the respondent's did not disclose to the CTTT that the engine replaced was a Tarago engine and should have been a Rav 4 engine.

1. On 9 April 2014 consent orders were made by the Tribunal in full and final settlement of the applicants claim that the respondent would carry out certain work set out in a diagnostic report to improve fuel efficiency from Phil Gilbert Toyota dated 26 February 2013 on or before 17 April 2014.

1. On 15 May 2014 the applicant filed a further application (14/25077) to renew proceedings which is now before the Tribunal for determination. The applicant seeks an order for payment to him of $4,354.00 being $4,036.00 plus $198.00 for an inspection of the vehicle plus $120.00 for the cost of an invoice to set out repairs.

1. The applicant relies on documents and material submitted by him in relation to his first and second applications.

1. It is noted that the applicants first application was dismissed as the applicant did not satisfy the civil standard of proof.

1. In the second application the applicant did not file any new documents or adduce any other evidence. The matter was settled and consent orders made.

1. The applicant now seeks to renew his second application as he alleges the respondent has failed to comply with the consent orders.

1. The applicant refuses to leave his vehicle with the respondent to carry out the works as agreed in the consent orders as the respondent will not give a warranty or guarantee on the work to be carried out.

1. The respondent says that it will give a guarantee on the work it does in accordance with the Diagnostic Report of Phil Gilbert dated 26 February 2013.

1. The applicant wants the guarantee to extend to beyond the works carried out and extend to the performance of the engine.

1. The applicant relies on evidence of the first and second applications.

1. Pursuant to s 8 of Schedule 4 of the Civil and Administrative Tribunal Act 2013 the Tribunal may give leave to a person in whose favour an order has been made that has not been complied with to renew proceedings.

1. If proceedings are renewed then the Tribunal:

(a)   may make any other order appropriate under the Act or enabling legislation as it could have made when the matter was originally determined, or

(b)   may refuse to make such an order.

1. The consent order made by the Tribunal in the second application has not been complied with by the respondent by the due date for compliance.

Findings

1. The Tribunal grants leave for the applicant to renew the proceedings.

1. The respondent submits that the consent orders made on 9 April 2014 were frustrated by the applicant and were not capable of being carried out by the respondent by 17 April 2014. The respondent says that it was ready and willing to comply with the order, however, the applicant would not deliver the vehicle to it so that the work could be carried out as the applicant raised an issue of warranty that work. The applicant seeks a warranty greater than the work recommended in the Diagnostic Report by Phil Gilbert. The warranty the applicant seeks is to improve fuel efficiency of the vehicle. In effect he is seeking a guarantee from the respondent that the work recommended by Phil Gilbert will solve the problems that the applicant perceives to be wrong with the vehicle.

1. The Tribunal notes that no reference was made to the terms of any warranty in the consent orders signed by the parties or as made by the Tribunal.

1. The respondent submits that the consent orders of 9 April 2014 are self-executing once the date for carrying out the work has passed.

1. The applicant submits that he would have delivered the vehicle to the respondent for the work to be carried out had the respondent further agreed to the warranty that the respondent sought.

1. By failing to deliver the vehicle to the respondent the applicant has exacerbated his loss. It was within his control to mitigate that loss and he has failed to do so.

1. The Tribunal finds that by the applicant failing or refusing to deliver the vehicle to the respondent to allow the work to be carried out the applicant caused the consent orders to be frustrated and they lapsed on 17 April 2014. The respondent had or has no further obligation to carry out the work as directed in the consent orders. The applicant in attempting to change the terms of the agreement reflected in the consent orders effectively repudiated the orders and he cannot now seek to have the benefit of them.

1. That leaves the Tribunal to consider what is or are the appropriate orders arising out of the renewal proceedings. The applicant has the onus of proof in the conduct of his claim. In the first application he was unable to do so to the satisfaction of the Tribunal. The second application was resolved by the making of consent orders. Those orders are now redundant.

1. The applicant offers no new evidence.

1. The Tribunal noted in its Directions in relation to this matter on 26 May 2014 that "the applicant does not seek to rely on any further documents other than filed with the renewal of claim".

1. In the absence of any further sufficient evidence to support his claim the applicants claim fails as he has again not satisfied the civil standard of proof of the grounds needed to make the order he seeks.

1. Accordingly, the application is dismissed.

(Signed)

P. L. Boyce

Senior Member

Civil and Administrative Tribunal of New South Wales

21 August 2014

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: 14 October 2014