Ralena Pty Ltd v VCAT
[2006] VSC 451
•29 November 2006
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
PRACTICE COURT
No. 9115 of 2006
| RALENA PTY LTD (TRADING AS NICK THEODOSSI PRESTIGE CARS AND NICK THEODOSSI PRESTIGE CAR AUCTIONS) | Applicant |
| v | |
| VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL | First Respondent |
| - and - | |
| XTSEA PTY LTD | Second Respondent |
| - and - | |
| MOTOR CAR TRADERS GUARANTEE FUND CLAIMS COMMITTEE | Third Respondent |
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JUDGE: | Kaye J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17, 24 November 2006 (Further written submissions 21 and 23 November 2006) | |
DATE OF JUDGMENT: | 29 November 2006 | |
CASE MAY BE CITED AS: | Ralena Pty Ltd v VCAT and ors | |
MEDIUM NEUTRAL CITATION: | [2006] VSC 451 | |
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JUDICIAL REVIEW – Certiorari – Decision by VCAT – Whether s.4(4) of Administrative Law Act1978 applicable – Claim by customer under s.76(1)(c) of Motor Car Traders Act 1986 for compensation for loss by reason of motor car trader’s repudiation of contract to acquire two motor vehicles subject to lease/hire purchase agreements – Whether vehicles “sold” by hirer under s.76(1)(c) – Quantum of loss.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr R. Kendall QC with Mr S. Palmer | Lewenberg & Lewenberg |
| For the First Respondent | No appearance | |
| For the Second Respondent | Mr J. Slonim | Kliger Partners |
| For the Third Respondent | Ms J. Lardner | Victorian Government Solicitor |
HIS HONOUR:
These proceedings have been commenced by Ralena Pty Ltd (“Ralena”) under the Administrative Law Act 1978 (Victoria) to review a decision of the Victorian Civil and Administrative Appeals Tribunal (“the Tribunal”) of 11 September 2006. That decision was made in the matter of XTSEA v Motor Car Traders Guarantee Fund Appeals Committee. The respondents to the present proceedings are the Tribunal, XTSEA Pty Ltd (“XTSEA”), and the Motor Car Traders Guarantee Fund Claims Committee (“the Committee”). On 18 October 2006 Master Daly, on the ex parte application of the applicant, ordered that the respondents show cause why the determination of the Tribunal should not be reviewed, and why an order should not be made quashing that determination.
The facts which are relevant to the application are not particularly clear from the reasons for decision of the Tribunal. However, it would appear that the salient background circumstances to the dispute may be summarised as follows:
(1)Ralena conducts a business as a motor car trader under the name “Nick Theodossi Prestige Cars” and “Nick Theodossi Prestige Car Auctions”. XTSEA is a company which provides water sport facilities to the Marriott Hotel on the Gold Coast in Queensland.
(2)In early 2005 XTSEA had in its possession three Mercedes‑Benz motor vehicles, namely a Mercedes-Benz CLK 230 (“the CLK 230”), a Mercedes-Benz S420 (“the S420”) and a Mercedes‑Benz SLK 230 (“the SLK 230”). According to the reasons of the Tribunal[1], those vehicles were the subject of either lease or hire purchase arrangements between XTSEA and a finance company or finance companies.
[1]Reasons [2].
(3)XTSEA wished to acquire a Mercedes-Benz Convertible. The plan of its director, Mr Avery, was to “trade in” the three vehicles which XTSEA then had for a price which would pay out the hire purchase or lease liabilities on them, so that the money saved on those lease or hire purchase arrangements would enable XTSEA to meet finance payments in respect of the new vehicle.
(4)In about April 2005 XTSEA entered into negotiations with Ralena with the view to “trading in” two of the Mercedes‑Benz vehicles XTSEA then had, and, in exchange, acquiring a new Mercedes-Benz convertible. Ultimately an agreement was reached between XTSEA and Ralena. Ralena agreed to pay $35,000 for the S420, and $63,000 for the CLK 230, which constituted the then pay out figures on the lease or hire purchase arrangements to which those vehicles were then subject. In exchange XTSEA was to acquire, on finance, a Mercedes‑Benz CLK 320 Elegance.[2] Accordingly XTSEA paid Ralena a $2,000 deposit for the new vehicle, and finance for that vehicle was arranged with Capital Finance.[3] Ralena arranged the collection of the two “trade in” vehicles from XTSEA on the Gold Coast.[4]
[2]Reasons [3], [4].
[3]Reasons [9], [10].
[4]Reasons [7].
(5)On 12 May 2005 Ralena returned those vehicles to XTSEA.[5] Before the Tribunal, Mr Theodossi claimed that he was shocked at their condition. He also maintained that he had been told by XTSEA that the CLK model “traded” in was to be a CLK 320, and not a CLK 230.
[5]Reasons [11].
(6)Subsequently XTSEA and Ralena entered into further negotiations. Ralena proposed that XTSEA “trade in” the CLK 230 and the SLK230, and, in exchange, XTSEA would purchase a new Mercedes-Benz 350. However by that stage XTSEA had decided not to purchase a new vehicle, and it rejected any proposal for the acquisition of vehicles by the applicant from XTSEA which was conditional upon XTSEA acquiring a new vehicle from Ralena.[6]
(7)Ultimately, on 1 June 2005, Ralena sent XTSEA a letter offering to “purchase” the SLK 230 for $39,696.18 and the CLK 230 for $60,316.18, those sums equating to the then pay out figures on the lease or hire purchase arrangements to which the two vehicles were subject. The applicant sent facsimiles of pay- out cheques for those sums, the cheque for the SLK 230 being made payable to GE Finance Australasia.[7]
(8)The SLK 230 and the CLK 230 were then collected by carriers engaged by the applicant. Ultimately the SLK 230 was paid out. However the CLK was not paid out. It appears that it was made clear to Mr Avery that the CLK would not be paid out until XTSEA purchased a new SLK, which was something which by
then it had decided not to do. Accordingly Mr Avery made arrangements for the CLK 230 to be collected and returned to Queensland.[8]
(9)Subsequently Mr Avery arranged for the sale of the CLK 230 for $39,588.95. He also gave evidence that he had to raise some $3,000 to “pay out” General Motors Acceptance Corporation and finalise the account.[9]
[6]Reasons [16], [17] and [18].
[7]Reasons [18].
[8]Reasons [18].
[9]Reasons [19].
The Claim
On 16 September 2006 XTSEA made a claim against the Motor Car Traders Guarantee Fund (“the Fund”) for losses allegedly suffered by it as a result of the applicant’s failure to perform its obligations under the “trade in” arrangements. That claim was made pursuant to s.76(1)(c) of the Motor Car Traders Act, which provides:
“76.Determination of Claims
(1)Any person (not being a motor car trader or a special trader) may make a claim against the Fund by applying to the Secretary to the Committee in a form approved by the Committee and specifying as a ground that
…
(c)loss has been incurred from a failure of a motor car trader to comply with an agreement to pay the purchase price to a person who sold a motor car to the motor car trader or to remit the whole or any part of the purchase price to another person.”[10]
[10]Emphasis added.
That claim was rejected by the Motor Car Traders Guarantee Funds Claim Committee on 18 April 2006. XTSEA appealed to the Motor Car Traders Guarantee Fund Appeals Committee, which also rejected the claim. XTSEA then sought review of the Committee’s decision in the Tribunal. Ralena was not joined as a party to the proceeding before the Tribunal. That appeal was heard in August 2006.
The Tribunal’s decision
On 11 September 2006 the Deputy President of Tribunal delivered reasons for decision, and made the following order:
“The respondent’s determination made April 2006 is set aside and there is substituted therefor a determination that the applicant (XTSEA) is entitled to an award of $33,000 representing the loss which it has incurred by reason of a failure by a motor car trader Ralena Pty Ltd trading as Nick Theodossi Prestige Cars to pay the purchase price of two motor vehicles sold to it by the applicant.”
In his reasons for the decision, the Deputy President of the Tribunal expressly accepted the evidence of Mr Avery, of XTSEA, in preference to the representatives of Ralena called as witnesses on behalf of the Committee. He found that there was a binding agreement concluded between the XTSEA and Ralena in April 2005 in relation to the CLK 230 and the S420 “traded in” by XTSEA. The Tribunal stated:
“I accept Mr Avery’s evidence that he would not have undertaken the transaction to acquire the new CLK without assurance that the old CLK and S420 were traded in for the payout figures. The lease outlays for a new car would be of the same order as the lease liabilities which the company would be relieved of by the trade in of the two older vehicles. Again, the evidence of the Averys that their company did not have the money to meet the difference between the trade price of the two older vehicles and their finance pay-out was not challenged. Hence, it would be implausible for XTSEA to commit to the acquisition of the new CLK without a promise that the older vehicles would be traded in. The acquisition went forward. Insofar as the Committee found and now contends that there was no concluded agreement for trade-in, I reject that.”[11]
[11]Reasons para [26].
In reaching that conclusion, the Tribunal stated that it did not accept that Mr Avery has misdescribed the CLK 230 as a CLK 320, nor did it accept that the two vehicles were in such poor condition that they did not conform with the description given by XTSEA, “ … or that they were the subject of a misdescription which would entitle the dealer company to be relieved of its obligations under the trade in arrangements”.[12] The Tribunal then proceeded to find that Ralena, by returning the vehicles to XTSEA, repudiated the agreement which the Tribunal had found had been concluded between XTSEA and Ralena. The Tribunal found that XTSEA, on receiving redelivery of the vehicles and disposing of one and attempting to dispose of the other, had accepted the repudiation in discharge of the contract. The Tribunal awarded to XTSEA an amount of $33,000 which it found was the loss sustained by XTSEA as a result of the repudiation of the contract by Ralena.[13]
[12]Reasons para [27].
[13]Reasons para [38].
The Order to Review
The order for review made by Master Daly stated four grounds on which the applicant sought review of the decision of the Tribunal, namely:
(1)The Tribunal erred in law in finding that XTSEA had incurred loss from a failure of a motor car trader to comply with an agreement to pay the purchase price to a person who had sold a motor car to the trader or to remit that price to another person, in circumstances in which the vehicles the subject of the claim were not owned by XTSEA but were owned by financiers who had leased the vehicles to XTSEA.
(2)The Tribunal did not have jurisdiction to order that XTSEA be paid compensation pursuant to s.76(3) of the Motor Car Traders Act, as XTSEA was not a person who had incurred loss from a failure of a motor car trader to comply with an agreement to pay the purchase price to a person who had sold the motor car to the motor car trader or to remit the whole or any part of the purchase price to another person.
(3)The Tribunal made a decision which no reasonable decision‑making acting according to law could have made.
(4)The Tribunal erred in determining that the amount of loss sustained by XTSEA was $33,000.
Mr Slonim, who appeared on behalf of XTSEA, submitted that none of the errors alleged in those grounds for review have been established. He further submitted that, if any of those grounds were made out, none of them constituted a jurisdictional error by the Tribunal. Accordingly, he submitted, pursuant to s.4(4) of the Administrative Law Act, they may not be the subject of review. Mr Kendall QC, who appeared with Mr S. Palmer for the applicant Ralena, submitted that s.4(4) of the Administrative Law Act does not apply to the current proceeding. Further, he submitted that, in any event, the first, second and fourth grounds of review do allege jurisdictional error.
The Administrative Law Act
The applicant was not a party to the proceeding before the Tribunal and did not seek to be joined as a party under s.60 of the Victorian Civil and Administrative Tribunal Act 1998. Accordingly the applicant is unable to appeal to this Court by leave under s.148(1). Therefore it is confined to its administrative law remedies. No issue has been raised as to the standing of the applicant to bring this application.
Section 11 of the Administrative Law Act provides that any person “affected” by the decision of a tribunal or inferior court shall have sufficient standing to maintain proceedings under the Act. Section 29(1) of the Motor Car Traders Act provides for the automatic suspension of a motor car trader if a claim is admitted against the fund in relation to a licensed trader. Section 80(1) of the Act subrogates the Committee, upon payment of any claim, to the rights and remedies of the claimant against the person in relation to whom the claim arose. Accordingly, unless the decision by VCAT is reviewed and set aside, the applicant will be obliged to pay the sum of $33,000 to the Fund, or will face automatic suspension of its licence to trade as a motor car trader. In those circumstances, I am satisfied that the applicant is a person affected by the decision of the Tribunal, and accordingly that it has standing to bring these proceedings.
As I have stated, the applicant is confined to its administrative law remedies. The applicant seeks relief in the nature of certiorari. The proceedings are governed by Order 56 of the Rules of the Supreme Court and the Administrative Law Act. Order 56 is essentially procedural, retaining the jurisdiction to make orders in the nature of certiorari, while abolishing the ancient form of writ by which that relief was granted. The authorities have emphasised that the jurisdiction to grant such relief is limited in its scope. In particular it is not an appellate jurisdiction but, essentially, is a jurisdiction concerned with the legality of the proceeding which is under review. Thus in Craig v the State of South Australia,[14] the High Court stated:
“Where available, certiorari is a process by which a superior court, in the exercise of original jurisdiction, supervises the acts of an inferior court or other tribunal. It is not an appellate procedure enabling either a general review of the order or decision of the inferior court or tribunal or a substitution of the order or decision which the superior court thinks should have been made. Where the writ runs, it merely enables the quashing of the impugned order or decision upon one or more of a number of distinct established grounds, most importantly, jurisdictional error, failure to observe some applicable requirement of procedural fairness, fraud and ‘error on the face of the record’.”
[14](1995) 184 CLR 163 at 175.
Mr Slonim’s submission is that, in an application to review a decision of the Tribunal, s.4(4) of the Administrative Law Act operates to confine relief, in the nature of certiorari, to a case where an applicant is able to establish jurisdictional error by the tribunal. That section provides as follows:
“(4)If an application for review relates to a proceeding in the Victorian Civil and Administrative Tribunal or under a determination or order of that Tribunal under the Residential Tenancies Act 1997, the Court must refuse the application unless it is satisfied that the applicant has made out a prima facie case for relief under s.7 on the ground that –
(a)the Tribunal had or has no jurisdiction in relation to the matter; or
(b)there has been a denial of natural justice to the applicant or to a party in the proceeding before the Tribunal.”
Mr Slonim submitted that s.4(4) should be construed to apply to two types of matters, namely, first, a “proceeding” in the Tribunal, and, secondly, a “determination or order” of the Tribunal under the Residential Tenancies Act 1997. He submitted that the present application falls within the first category just mentioned, and thus is governed by s.4(4). Mr Slonim submitted that that construction is supported by a comparison of s.4(4) with s.4(3) of the Act. He submitted that the apparent purpose of s.4(4) is to provide a limited right of review of proceedings before the Tribunal to persons who were not a party to those proceedings, with that
right of review being restricted to a review based on jurisdictional error or a denial of natural justice.
On the other hand Mr Kendall submitted that the whole of the first part of s.4(4) of the Act, concluding with the phrase “under the Residential Tenancies Act 1997”, is governed by that phrase. Thus he submitted that s.4(4) only relates to a proceeding in the Tribunal under the Residential Tenancies Act, or to a determination or order of the Tribunal under that Act. Mr Kendall submitted that that construction is to be derived from the plain meaning of s.4(4), from a comparison of that sub-section with sub‑s.(3), and from the history of s.4(4).
In my view, the construction contended for by Mr Kendall is correct. I consider that, on its correct construction, s.4(4) only applies to a proceeding in the Tribunal under the Residential Tenancies Act, or to a determination or order of the Tribunal under that Act. If the construction contended for by Mr Slonim were correct, then the phrase “or order of that Tribunal under the Residential Tenancies Act 1997” in s.4(4) would be otiose. Furthermore, the sub‑section would create a curious dichotomy between, on the one hand, a “proceeding” in the Tribunal, and, on the other hand, a “determination or order” of the Tribunal under the Residential Tenancies Act 1997. Does this mean that the sub‑section does not apply to a proceeding under the Residential Tenancies Act, but only to a determination or order of the Tribunal under the Act? Conversely, and equally, does it mean that s.4(4) does not apply to a determination or order of the Tribunal (apart from a determination or order under the Residential Tenancies Act), but only to a proceeding?
Furthermore, an examination of s.4 as a whole supports the construction of s.4(4) contended for by Mr Kendall. Section 4(1) and (2) provide for the making of an application for review of a decision of a tribunal. Section 4(3) is in a similar form to s.4(4). It provides that, if an application for review relates to a proceeding in the Tribunal under para 7 of the Fair Trading Act 1999 in relation to a small claim, or under a credit enactment under Clause 3 Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998, the Court must refuse the application, unless the Court is satisfied that the applicant has made out a prima facie case of jurisdictional error or a denial of natural justice. When s.4 is considered as a whole, the effect of subsections (3) and (4) becomes clear. Those provisions are designed to provide rights of review, in the case of sub-s.(3), to the category of claims there specified, and, in the case of sub-s.(4), to proceedings, determinations or orders under the Residential Tenancies Act, in each case limited to grounds based on jurisdictional error or a denial of natural justice.
The legislative history of s.4(4) also supports that construction. The Administrative Law Act was originally enacted in 1978, without the equivalent of s.4(4). In 1980 the Residential Tenancies Act was enacted. It established the Residential Tenancies Tribunal. Section 159 of that Act provided for the insertion of a new s.4(4) in the Administrative Law Act 1978, in similar terms to the present s.4(4) of that Act. It provided:
“(4)Where an application for review relates to an application to, proceedings before or a determination of, the Residential Tenancies Tribunal, the Court or judge shall refuse the application unless it or he is satisfied that the applicant has made out a prima facie case for relief under s.7 on the ground that the Tribunal had or has no jurisdiction under the Residential Tenancies Act 1980 in relation to the matter or that there has been a denial of natural justice to the applicant or to a party to the proceedings before the Tribunal.”
The Victorian Civil and Administrative Tribunal Act was enacted in 1998. Essentially that Act brought together, under the umbrella of the Tribunal, the functions of a number of disparate tribunals, including the Residential Tenancies Tribunal. Accordingly the Tribunals and Licensing Authorities (Miscellaneous Amendments) Act 1998 was enacted to cater for that change. Inter alia, it substituted the present s.4(3) and (4) for the similar sections which were then in the Administrative Law Act.
That history makes it plain, in my view, that the present s.4(4) in the Administrative Law Act is intended to do the same work as that performed by its original predecessor, enacted in 1980. Accordingly, for the above reasons, I have concluded that s.4(4) of the Administrative Law Act only applies to proceedings under the Residential Tenancies Act 1997 or to a determination or order of the Tribunal under that Act.
It follows that, in the present proceeding, the applicant is not confined to establishing jurisdictional error. It is sufficient if the applicant establishes error on the face of the record. At common law the record was confined to the order or decision of the relevant body under review, and to the pleadings.[15] However, s.10 of the Administrative Law Act provides that any statement by a tribunal or inferior court of its reasons for decision shall be taken to form part of the decision and accordingly to be incorporated in the record. Thus the reasons for decision of the Tribunal form part of the record. It is necessary for the applicant to establish an error on the face of that record in order for it to be entitled to the relief sought in this proceeding.
[15]R v Northumberland Compensation Appeal Tribunal; Ex parte Shaw [1952] 1 KB 338 at 352 (per Denning LJ).
Before proceeding to examine the grounds of review relied upon by the applicant, I should, however, briefly state my view, if in fact the construction of s.4(4) of the Administrative Law Act, contended for by Mr Slonim, is correct. In essence the applicant relies on two main grounds of review. First, it submits that the Tribunal erred in finding that there was a “sale” of the Mercedes-Benz motor vehicles by XTSEA to the applicant. Secondly, it submits that the Tribunal, in any event, erred in law in determining the amount of loss sustained by XTSEA as a consequence of that sale. In my view, if the construction of s.4(4) of the Administrative Law Act argued by Mr Slonim is correct, then neither of those grounds of review would constitute jurisdictional error.
In submitting that the grounds do allege jurisdictional error, Mr Kendall relied on the well-known passage in Craig:
“If, for example, it is an essential condition of the existence of jurisdiction with respect to a particular matter that a certain event or requirement has in fact occurred or been satisfied, as distinct from the inferior court’s own conclusion that it has, there will be jurisdictional error if the Court or Tribunal purports to act in circumstances where that event has not in fact occurred or that requirement has not in fact been satisfied even though the matter is the kind of matter which the Court has jurisdiction to entertain.”[16]
However, the High Court in Craig’s case expressly retained the distinction between errors made by administrative bodies which are under review, and errors made by inferior courts which are under review.[17] As Phillips JA pointed out in The Returned and Services League of Australia (Victoria Branch) Inc v Liquor Licensing Commission and anor,[18] the essential enquiry must be to determine the task which is confided to the body whose decisions are under review. It is only if the body strays from that task that there is an excess of jurisdiction. In the case of a body entrusted with the making of decisions of law as well as decisions of fact, generally, such a body has jurisdiction to decide questions of law, albeit wrongly.[19]
[16]At 177.
[17]At 179.
[18][1999] 2 VR 203, especially at 210-215; see also Potter v Tural [2000] 2 VR 612 at [45] (per Batt JA).
[19]Compare R v Governor of Brixton Prison; ex parte Armah [1968] AC 192 at 234 (per Lord Reid).
Section 107 of the Victorian Civil and Administrative Tribunal Act provides that a question of law arising in a proceeding must be decided by a judicial member or a member who is a legal practitioner. The Tribunal in the present case was constituted by a deputy president, who, by s.12, must be a person who has been admitted to legal practice in Victoria for not less than five years. Accordingly, such a body is entrusted by Parliament with the power to decide questions of law, albeit wrongly. If the Tribunal erred in determining that there was a sale, or in applying the wrong principles in determining the loss to XTSEA, in my view such an error would not be a jurisdictional error, but would be an error on the face of the record, to be derived from the reasons for decision of the Tribunal.
Motor Car Traders Act s.76(1)(c) – whether vehicles “sold” to applicant
I turn then to the four grounds of review stated in the Master’s order. The first three grounds focus on the question whether there has been a sale of the two Mercedes-Benz vehicles to the applicant within s.76(1)(c) of the Motor Car Traders Act. As set out above, that section entitles any person to make a claim for a loss incurred from a failure of a motor car trader to comply with an agreement to pay the purchase price “… to a person who sold a motor car to the motor car trader or to remit the whole or any part of the purchase price to another person.”[20]
[20]Emphasis added.
The Tribunal found that there was a sale of the two vehicles by XTSEA to Ralena. In the order, which I have quoted above, the Tribunal awarded $33,000 to XTSEA as representing the loss which it incurred by reason of a failure of Ralena “ … to pay the purchase price of two motor vehicles sold to it by the applicant (XTSEA).” That characterisation of the transaction was specifically expressed in paragraph 43 of the Tribunal’s reasons, which state:
“Finally, I should note that upon the findings I have made it is proper to describe XTSEA as having ‘sold’ the trade-in vehicles to the dealer. The contract was made and the vehicles were collected by a carrier engaged by the buyer. There was no reservation of title clause hence, at least as between XTSEA and the dealer, XTSEA’s title to the car had passed. The dealer’s repudiation of the contract necessarily entailed a revesting of title (subject of course to the paramount title of the financiers) in XTSEA.”
Mr Kendall submitted that no sale had taken place by XTSEA to Ralena because, at the time of the transaction, XTSEA did own the cars which the Tribunal found were agreed to be “traded in” to Ralena. At that time the cars were subject to a hire purchase or lease arrangement with a financier who, in the words of the Tribunal, had the “paramount title” to the vehicles. In other words they were owned by the finance company. Mr Kendall submitted that, in its ordinary meaning, a contract of sale comprises a transaction involving the delivery of title by a vendor to a purchaser in exchange for payment by the purchaser of the purchase price.[21] Accordingly, the transaction between XTSEA and Ralena did not constitute a sale of the vehicles by XTSEA to Ralena. Mr Kendall submitted that XTSEA had nothing to sell to Ralena. He argued that the arrangement between the parties constituted no more than an oral assignment by XTSEA to Ralena of its obligations under the lease or hire purchase contracts to which the two vehicles were subject. He submitted that, even if the arrangement between XTSEA and Ralena was that Ralena was obliged to pay out the hire purchase or lease contracts, and in exchange was entitled to obtain title of the two vehicles, that did not constitute a sale by XTSEA to Ralena of the vehicles. Nor did it constitute a sale of the vehicles by the finance company to Ralena. The finance company was not a party to the transaction between Ralena and XTSEA and there was no contract of sale between it and Ralena. Mr Kendall further submitted that the construction of s.76(1)(c) for which he contended did not offend against the purposes of the Motor Car Traders Act as expressed in s.1. That section states that the purpose of the Act is (inter alia) to ensure that “the rights of those who purchase motor cars are adequately protected”. Mr Kendall submitted that the prime purpose of the Act is to protect persons who purchase vehicles from motor car traders rather than those who sell or assign vehicles to motor car traders.
[21]See for example Goods Act s.6; Kirkness v John Hudson and Co Ltd [1955] AC 696 at 737 (per Lord Tucker).
Mr Kendall further submitted that the claim by XTSEA for compensation was not covered by the second alternative limb of s.76(1)(c), which provides that a person may make a claim for loss incurred from a failure of a motor car trader to remit the whole or any part of the purchase price to another person. He submitted that no sale of the cars had taken place, and thus there was no “purchase price” to pay to another person. Accordingly there was no failure of Ralena to remit the whole or any part of the purchase price for the vehicles to another person.
In response Mr Slonim submitted that there had been a sale of the two Mercedes‑Benz vehicles by XTSEA to Ralena for the purpose of s.76(1)(c). First, he relied on the effect of s.4(1), which provides:
“(1)For the purposes of this Act, if a motor car is made the subject of a hire purchase agreement or finance lease it is deemed to be sold to the hirer.”
Mr Slonim submitted that the effect of that section was that, for the purposes of the Motor Car Traders Act, the two Mercedes-Benz vehicles, held by XTSEA under either a hire purchase or lease arrangement, were deemed to be owned by XTSEA. Accordingly, for the purposes of s.76(1)(c) XTSEA was in the position of a person who could, and did, sell those vehicles to Ralena.
In support of that submission, and also by way of alternative, Mr Slonim referred to a number of provisions of the Motor Car Traders Act, which specifically recognise what Mr Slonim described as the commercial reality of motor vehicle ownership, namely that a number of vehicles which are sold are in fact the subject of lease or hire purchase arrangements. Thus, s.3 of the Act defines “owner” to include a person (inter alia) who has the possession and use of a vehicle under or subject to a hire purchase agreement or like instrument. Similarly s.3 defines a “security interest” as an interest in or a power over a motor car which secures payment of a debt, and which includes any interest in or power over goods of a lessor. Mr Slonim also referred to s.50 of the Act which provides that if a motor car trader “acquires” a vehicle on the understanding that the trader will procure the cancellation of a security interest affecting the vehicle, but sells or disposes of the vehicle without first procuring the cancellation of that security interest, then the motor car trader shall be deemed to have received the proceeds of sale or disposal on trust for the person from whom the trader acquired the vehicle. Mr Slonim submitted that those provisions reflect a legislative recognition of the manner in which vehicles are held and disposed of in the motor car industry. Thus, he submitted, the Act contemplates an arrangement of the nature which occurred in this case, namely a sale by a person who has possession of a vehicle under a hire purchase or lease arrangement, in circumstances in which, pursuant to the terms of that sale, the purchaser is to pay out the relevant security interest over the vehicle, and thus acquire title to it.
In its simplest form, Mr Kendall’s principal submission was based on two fundamental propositions. First, he submitted that, at the time of the agreement which the Tribunal found had been concluded between XTSEA and Ralena, XTSEA did not own, or have property in, the two Mercedes Benz vehicles which were the subject of that transaction. Second, he submitted that, in order that a transaction be characterised as a “sale”, the vendor must have property in the goods which are the subject of a transaction. Thus, he submitted that the transaction which the Tribunal found constituted an agreement between the parties could not be correctly characterised as a “sale” of the two vehicles by XTSEA to Ralena.
The first question, then, is what interest, if any, did XTSEA have in the two vehicles which were the subject of the transaction (I shall refer to those vehicles as the “trade ins”). In its reasons, the Tribunal described the vehicles as being subject to “hire purchase or lease” arrangements, but the Tribunal did not differentiate between those two types of transaction. Nor did the reasons of the Tribunal contain any description of the terms of the hire purchase or lease agreements pursuant to which XTSEA held the vehicles. It is trite that under a lease of chattels, at common law, the lessor retains ownership of the goods leased, and resumes possession of the goods at the conclusion of the lease. Ordinarily, at common law, a hire purchase agreement is not a contract of sale. Such an agreement is a contract of hire, together with an option entitling the hirer to purchase the vehicle[22] At law a hirer under a hire purchase agreement is entitled to assign his rights under a hire purchase agreement, subject of course to any term in the hire purchase agreement to the contrary.[23] However property in the goods the subject of the hire purchase agreement remains in the finance company, unless and until the hirer exercises the option to purchase the goods.
[22]Australian Guarantee Corporation Limited & Anor v Ross [1983] 2 VR 319 at 332-3 (Marks J); Warman v Southern Counties Car Finance Corporation [1949] 2 KB 577 at 582 (per Finnemore J).
[23]Whiteley Limited v Hilt [1918] 2 KB 808 at 818.
In the course of oral submissions, Mr Slonim did not argue that, under the hire purchase or lease agreements to which the two vehicles were subject, XTSEA had obtained property in those vehicles. Indeed, in the course of argument, he accepted that the transaction between XTSEA and Ralena was not a sale of the vehicles, as that concept is used in the Goods Act, because XTSEA did not have any ownership in the vehicle.[24] At the conclusion of oral submissions I gave Mr Kendall leave to reply by filing written submissions. On receipt of those written submissions, Mr Slonim filed a response. In that response Mr Slonim submitted that the Deputy President did not make any finding that XTSEA did not “title” to the vehicles, nor did he make any finding that any other person had “title” to the vehicles. Mr Slonim, in that response, submitted that in the absence of any finding by the Tribunal that XTSEA did not have “title” to the vehicles, the Court should uphold the Tribunal’s finding that XTSEA sold the vehicles to Ralena.
[24]Transcript p.109.
That further submission on behalf of XTSEA is, I consider, without substance. The Deputy President of the Tribunal specifically stated that the vehicles in questions were the subject of either hire purchase or lease arrangements. Those terms are well understood in the law. Indeed, they are expressly used in the Motor Car Traders Act, for example, in s.3(1) (definition of “owner”) and s.4(1), to which I shall refer below. It is clear that the Tribunal used those terms in their proper and well understood meaning. The Tribunal found that it was an important part of the agreement between XTSEA and Ralena that XTSEA be relieved of the “lease or hire purchase payments” which it was obliged to make on the vehicles.[25] The reference by the Tribunal to the concept of the “paramount title of the financiers” in paragraph 43 of its reasons puts beyond doubt, in my view, that the Tribunal was using the terms of hire purchase and lease in their ordinary meaning. Although the concept of “paramount title” and some (undefined) subsidiary “title” is plainly misconceived, nonetheless, the use of that phrase makes it clear, as I have stated, that the Tribunal was using the terms “hire purchase or lease” in their ordinary meaning.
[25]Reasons para [2]; para [26].
The Consumer Credit Code s.10 provides that hire purchase agreements to which the Code applies are deemed to be contracts for the sale of goods on credit, and thus the property in the goods the subject of a hire purchase agreement is deemed to pass to the hirer upon entry into the hire purchase agreement. However s.6(1)(b) of the Code provides that s.10 only applies where the hire purchase agreement is one which is entered into wholly or predominantly for personal, domestic or household purposes. The Tribunal[26] observed that XTSEA operated the trade-ins as part of its business. Thus it would seem that s.10 of the Code did not apply in relation to either the vehicles in question. Certainly no argument was put to the contrary before me.
[26]Reasons para [2].
Accordingly the first premise of Mr Kendall’s argument is correct namely, that at the time of the conclusion of the agreement between XTSEA and Ralena, as found by the Tribunal, XTSEA did not have property in either the two trade in vehicles which the Tribunal found XTSEA sold to Ralena. The question is whether, nonetheless, the transaction might be characterised as a “sale” for the purpose of s.76(1)(c) of the Motor Car Traders Act.
In its simplest form, the transaction consisted of two component parts. XTSEA was to give possession of the two trade in vehicles to Ralena. In consideration, Ralena was to “pay out” the hire purchase or lease obligations of XTSEA, to which the two vehicles were subject. Pausing there, and without more, if those two components constituted the entire agreement between the two parties, then on its proper characterisation, the transaction amounted to no more than an assignment in equity by XTSEA to Ralena of its rights and obligations under the lease or hire purchase agreements to which the vehicles were subject.
However, there is one further element which seems to have been involved in the transaction between the parties. It is implicit in the reasons of the Tribunal that, upon Ralena paying out the lease or hire purchase obligations of the hirer in respect of the two trade ins, Ralena would thereby derive property in those vehicles. Indeed during oral argument counsel for both sides recognised that that is how hire purchase or lease agreements of vehicles do operate in practice. It was this aspect of the transaction which was crucial to the submissions then made by XTSEA. Mr Slonim submitted that what occurred, in essence, was a sale (through either a lease or other finance arrangement) of a new Mercedes Benz vehicle by Ralena to XTSEA and, in exchange, “the trade in” by XTSEA to Ralena of the CLK 230 and the S420. As the Tribunal expressly found, the “value” of the two trade ins was not equivalent to their market value; their value was equivalent to the amount required to pay out the relevant hire purchase or lease agreements to which they were subject. Thus Mr Slonim contended that what occurred was an agreement by Ralena to
purchase the two vehicles for an amount which cleared the debts of XTSEA in relation to them.
Accordingly there were three component parts of the transaction between the parties, namely:
(a)XTSEA was to give possession of the CLK 230 and the S420 to Ralena.
(b)Ralena was to pay out, in one lump sum, the lease or hire purchase contracts to which the vehicles were subject.
(c)Ralena was to thereby obtain property in the two vehicles, not from XTSEA, but from the finance company.
The critical question is whether that transaction constituted a “sale”, at least for the purpose of s.76(1)(c) of the Motor Car Traders Act.
Apart from any special meaning attributed to the concept of “sale” in the Motor Car Traders Act, in my view it is clear that, otherwise, the transaction which the Tribunal found had been concluded between XTSEA and Ralena did not, according to ordinary legal concepts, involve a sale of the trade ins by XTSEA to Ralena. It is an integral and, I consider, indispensable element of a sale of goods, as understood at law, that there be a transfer of property in the goods by the seller to the purchaser.
Section 6(1) of the Goods Act 1958 expressly provides that a contract of sale of goods “… is a contract whereby the seller transfers or agrees to transfer the property and goods to the buyer for a money consideration called the price”. That definition has remained, unaltered, in the relevant legislation since the Sale of Goods Act was first enacted in the United Kingdom in 1893.[27] The Victorian legislation, first enacted in 1896[28], and indeed the legislation enacted of each state and territory, is substantially identical with the English Sale of Goods Act 1893. In turn, that legislation reflected, and was substantially a codification of, the then existing common law. Thus Blackstone defined a sale as “a transmutation of property from one man to another in consideration of some price”.[29] Likewise, the learned author of the eighth edition of Benjamin on Sale stated[30]:
“Hence it follows that, to constitute a valid sale, there must be a concurrence of the following elements, viz … -
(1)Parties competent to contract; (2) mutual assent; (3) a thing, the absolute or general property in which is transferred from the seller to the buyer; and (4) a price in money paid or promised.”
That definition was expressly adopted and approved by Lord Tucker in Kirkness v John Hudson & Co Limited[31].
[27]56 and 57 Vict c 71.
[28]Sale of Goods Act 1896 (Vic) (Act No. 1422).
[29]Blackstone’s Commentaries, 19th ed (1836), Vol 2, p 466.
[30]8th Edition (1950) p 2.
[31] [1955] AC 696 at 737.
In Rowland v Divall[32], the plaintiff purchased a vehicle from the defendant and used it for several months. It then transpired that the defendant had no title to the vehicle, and the plaintiff was required to surrender it to its true owner. The plaintiff sued the defendant to recover the purchase money he had paid as on a total failure of consideration. The defendant, in response, relied (inter alia) on s.11(1)(c) of the Sale of Goods Act which provides that where a contract of sale is not severable and the buyer has accepted the goods, the breach of any condition to be fulfilled by the seller can only be treated as a breach of warranty and not as a ground for rejecting the goods. The Court of Appeal rejected that submission. Atkin LJ stated:
“… I think that the answer is that there can be no sale at all of goods which the seller has no right to sell. The whole object of a sale is to transfer property from one person to another. And I think that in every contract of sale of goods there is an implied term to the effect that a breach of the condition that the seller has a right to sell the goods may be treated as a ground for rejecting the goods and repudiating the contract notwithstanding the acceptance … .”[33]
[32][1923] 2 KB 500.
[33]Pages 506-7.
Apart from the definition itself, other aspects of the law, both at common law and statute, make it clear that, ordinarily, the concept of the passing of ownership from the seller to the buyer is an integral and indispensable ingredient of a contract of sale of goods. Thus, the original English Sale of Goods Act 1893 (ss.16-19) contained a number of principles for determining when, in a contract of sale, property actually passes from the seller to the purchaser. Those provisions have remained in the legislation, and are contained in s.23 of the Goods Act 1958 (Vic). Those principles are a codification, with some modifications, of the common law. Section 20 of the 1893 English legislation (s.25 of the Victorian Act) provides that, unless otherwise agreed, the goods remain at the seller’s risk until the property therein is transferred to the buyer. That section is a reflection of the common law before the enactment of the legislation.[34] At common law it was unsettled as to whether there was an implied condition on the part of a seller that he has the right to sell the goods.[35] Section 12 of the 1893 legislation (now s.17(a) of the Victorian Act) implied such a condition on the part of the seller in each contract of sale unless the circumstances of the contract are such as to disclose a different intention of the parties.
[34]See Martineau v Kitching (1872) LR 7 QB 453 at 454 (Blackburn J).
[35]Compare Eicholz v Bannister (1864) 17 CB (NS) 708; 142 RR 594.
Thus, as I have stated, the ordinary legal meaning of a sale of goods involves, of necessity, the passing of the ownership in the goods from the vendor to the purchaser. That meaning has been entrenched in the law of the sale of goods for a considerable time. It is I consider the well established and commonly understood meaning of “sale” in the context of a sale of goods.
It is clear that the agreement between XTSEA and Ralena, as found by the Tribunal, did not involve the passing of property in the two trade in vehicles from XTSEA to Ralena. At the time of the contract, XTSEA did not have property in them. The whole design of the arrangement was that Ralena would, and indeed did, take possession of the vehicles, and that Ralena would pay the amount required to pay out the hire purchase or lease agreements to which the vehicles were subject. Although, as I say, the consequence of such a pay out was not expressed in the Tribunal’s reasoning, it is implicit, that, on Ralena paying that amount, Ralena would thereby derive property in the two vehicles. However, on that analysis, the property would not pass from XTSEA to Ralena. The property in the vehicles would pass from the finance company. It follows that the transaction between XTSEA and Ralena could not be described as a “sale” of the vehicles by XTSEA to Ralena according to ordinary legal concepts.
The fact that, at the time of the agreement, the property in the vehicles remained in the finance company, is emphasised by the passage of the reasons of the Tribunal at paragraph 43, where the Deputy President referred to the financier retaining the “paramount title” to the vehicles. The Deputy President characterised XTSEA’s right to sell the vehicle as an inferior “title” which was subject to the “paramount title” of the financier. However, as I have already pointed out, XTSEA did not have any “title” to (or property in) of the vehicles.
The question which then arises is whether the Motor Car Traders Act uses the term “sale” (and its derivatives) in a meaning other than that in which is ordinarily used in the law.
Mr Slonim’s first argument was based on the proposition that, for the purposes of the Motor Car Traders Act, s.4(1) deemed XTSEA to be the owner of the two vehicles, which it thereby could “sell” to Ralena. In my view that proposition is based on a misconception of s.4(1). That sub-section is concerned with the characterisation, as a sale, of a transaction by which a vehicle “is made” the subject of a hire purchase or lease agreement. The use of the phrase “is made” makes it clear that s.4(1) is concerned to broaden the ordinary denotation of “sale” to include a transaction pursuant to which a vehicle “is made” the subject of a hire purchase or lease agreement. Thus, where the Act refers, in other provisions, to a sale of a vehicle, such a provision applies to transactions in which a vehicle “is made” the subject of a hire purchase or lease agreement. Section 4(1) does not, by its terms, create a fictional result for the purposes of the Act that, wherever a person holds a vehicle under a lease or hire purchase agreement, that person is deemed to be the owner of the vehicle. If that were the intent of the Legislature, then s.4(1) could have been drafted to provide expressly to that effect, namely, that wherever a person “holds” a vehicle under a lease or hire purchase agreement, such person is deemed to be the owner of the vehicle. Rather, and by contrast, the Act, in s.3, defines the word “owner”, wherever it appears in the Act, as including a person who holds the vehicle under a hire purchase or lease agreement; but it does not otherwise deem such a person to be the “owner” of the vehicle. In other words the definition in s.3 simply provides a broader meaning to the word “owner” where that word appears in the Act; but it does not otherwise deem, for the purposes of the Act, a person who has possession of a vehicle under a lease or hire purchase agreement to be the owner of the vehicle.
Thus it follows that s.4(1), standing alone, does not deem XTSEA to have been the owner of, and have property in, the two vehicles which were the subject of the arrangement which XTSEA entered into with Ralena. The question, then, is whether there was a “sale” of the two Mercedes‑Benz vehicles to Ralena for the purposes of s.76(1)(c), notwithstanding that XTSEA was not the owner of the vehicles, for the purposes of the Act, or at all. In essence, that question is one of statutory construction, namely whether the term “sale” (and its derivative “sold”) is to be construed to bear a broader meaning in the Motor Car Traders Act than it possesses according to ordinary legal concepts.
Mr Slonim is correct in pointing out that in a number of provisions the Act specifically recognises the reality that, in the motor car industry, a number of vehicles, which are traded, are the subject of hire purchase or lease arrangements. It is for that reason that s.4(1), to which I have referred, deems a contract of hire purchase or a finance lease to be a “sale” under the Act. Similarly s.3 defines “owner” to include a person holding a vehicle under a hire purchase or lease arrangement, notwithstanding that, obviously, such an “owner” did not have the property in the vehicle. The Act also contains other provisions, such as ss.50 and 76(4), which recognise the existence of a “security interest”. The definition of “security interest” in s.3 includes “any interest in or power over goods of a lessor owner or other supplier of goods”. Those provisions thus treat the status of a lessor under a lease or hire purchase agreement as that of a security holder.
On the other hand, however, apart from those provisions, the Act does not expressly contain a definition of the term “sale” so as to expand it beyond its ordinary common law meaning. Nor does it use that term, or its derivatives, in any other provision, in such a way as to lead to the conclusion that the Act envisages that “sale” bears a wider meaning than it ordinarily does. By contrast, the Act does use other expressions to refer to transactions by which a motor car trader might obtain possession or ownership of a vehicle from a person other than by a sale. In particular, the Act regularly uses the word “exchange” as an alternative to, and thus in contradistinction to, “buy” or “sell” in a number of provisions, including in ss.3, 7A, 35(2), 36, 37 and 38. For example, s.35(5) provides that if a used motor car is “bought or taken in exchange” by a licence motor car trader acting on behalf of another trader, and the former complies with the section, then the trader on whose behalf “the purchase or exchange” was made is deemed to have complied with the section. Quite clearly the Act thus distinguishes between, on the one hand, a “sale” or “purchase”, and, on the other hand, an “exchange” of a vehicle.
The Act also uses other expressions than “sale” or “purchase” to indicate circumstances in which a motor car trader may have possession or ownership of a vehicle. For example it uses the expression “acquire” in ss.3(1) (in the definition of “financier”), 50, 52(2)(c), and 76(2). It also uses the expression “receive possession of” in s.37, and “took possession” in s. 76(2)(c).
The various provisions, to which I have just referred, reinforce the conclusion that, save where it indicates expressly, the Motor Car Traders Act uses the term “sale” in its ordinary legal meaning. Indeed, it is significant that, for example, the extension to the concept of “sale” in s.4(1) is confined to a transaction where a motor car “is made” the subject of a hire purchase or finance lease agreement. The fact that the Act expressly extends the concept of “sale” for that purpose only, and not for any broader purpose, militates in favour of the view that the term “sale” (and “sold”) is otherwise intended to bear its ordinary legal meaning.
I return, then, to s.76(1)(c). That section permits a person to make a claim for a loss in one of two alternative circumstances. First, a person may make a claim for loss incurred from a failure of a motor car trader to comply “with an agreement to pay the purchase price to a person who sold a motor car to the motor car trader”. As there was no sale of the trade-ins by XTSEA to Ralena, that part of s.76(1)(c) does not apply. The subsection then, as a second alternative, provides for a person to make a claim for loss arising from a failure of a motor car trader “to remit the whole or any part of the purchase price to another person”. Clearly, there must be a sale of a motor car, in order that there be an obligation to pay or remit a “purchase price” in respect of it. Again, as there was no sale of the trade-ins, that part of s.76(1)(c) does not apply. It follows that XTSEA was not entitled to an award of compensation under that section.
For the purposes of completeness, I should also note that the Tribunal did not find, nor was it contended before me, that there was a transaction which could be characterised as a “sale” of the trade-in vehicles by the finance companies to Ralena. The recitation of the facts in the reasons of the Tribunal do not disclose that there was any relevant relationship between Ralena and the finance companies. At most, as I have stated, it seems to be implicit that, if Ralena were to “payout” the lease or hire purchase contracts to which the vehicles were subject, it would whereby obtain ownership of the vehicles.
Thus for the reasons which I have set out above, I find that the Tribunal erred in concluding that the applicant XTSEA was entitled to an award under s.76(1)(c)representing the loss incurred by the failure of XTSEA to pay the purchase price of the vehicles which had been sold to it by XTSEA. That error was constituted by the incorrect construction of the word “sold” in s.76(1)(c), and the incorrect characterisation of the transaction between XTSEA and Ralena as a sale for the purposes of that provision. That error, being manifest in the decision of the Tribunal, constitutes an error of law on the face of the record entitling the applicant to relief in the nature of certiorari.
Assessment of loss
The second basis upon which the applicant has contended that there was an error of law on the face of the record arises out of the method by which the Tribunal assessed the loss which it found had been sustained by XTSEA. In view of the conclusion I have reached above, I do not need to decide this basis. However, as it was argued, I shall state my views shortly.
In paragraph 38 of his reasons the Deputy President stated that the claim by XTSEA was “a claim for the difference between the value of the two trade-in vehicles and the price which the dealer company agreed to pay for them”. In other words the claim for loss by XTSEA, and upheld by the Tribunal, was a claim for what was described in the reasons as “loss of bargain” damages. The Deputy President held that XTSEA, on repudiation of the agreement by Ralena, was entitled to take possession of the vehicles, to sell them, and to claim as its loss the difference between either the resale value, or their trade value (in the case of the CLK which is still in XTSEA’s possession), and the “contract price” agreed to be paid by Ralena.
Mr Kendall submitted that the Tribunal erred in allowing XTSEA’s loss to be assessed in the manner thus described. Mr Kendall submitted that all that XTSEA had bargained for was that it would be freed from its liabilities to the financier of the two vehicles. The “contract price”, agreed to be paid by Ralena, was not to be paid to XTSEA, but, rather, was the sum necessary to discharge the hire purchase or lease arrangements to which the two vehicles were subject, and by which XTSEA was bound. Thus, as I understood him, Mr Kendall submitted that if XTSEA was entitled to any compensation under the Act, that loss was confined to the amount required to pay out the lease or hire purchase obligations to which the vehicles were subject.
In my view, that submission should be rejected. As Mr Slonim correctly contended, under the agreement between Ralena and XTSEA as found by the Tribunal, Ralena was obliged to pay out the outstanding lease or hire purchase payments required to be paid in respect of the relevant vehicles. Ralena failed to do that in relation to the CLK 230. As a consequence XTSEA has been left with that vehicle. If XTSEA sells the vehicle at market value, it would result in a shortfall of funds required to pay out the lease or hire purchase agreement to which the vehicle is subject. Thus the loss sustained by XTSEA consists of the difference between, on the one hand, the current market value of the vehicle, and, on the other hand, the payment agreed to be made by Ralena which was required to discharge of the lease or hire purchase agreement to which it was agreed. It is that difference which is the loss which has been occasioned to XTSEA as a consequence of the failure of Ralena to pay the relevant pay out figure to the finance company necessary to discharge the hire purchase or lease agreement to which the CLK 230 vehicle is subject.
Discretion
In his written submissions in response, Mr Slonim also submitted that if the Court finds that the Tribunal fell into error which is otherwise reviewable, it should exercise its discretion to refuse Ralena’s application, the two reasons.[36] First, he submitted that Ralena’s application does not raise any question of law of substantial importance. Secondly, he submitted that refusal of that application would not impose any substantial injustice on Ralena, because Ralena can avoid or terminate any suspension imposed on it by paying out the amount of the Tribunal’s determination to the Fund.
[36]No such submission was advanced in oral argument.
In my view neither of those reasons constitute an appropriate ground upon which, as a matter of discretion, to refuse the relief sought by the applicant. The question whether the application raises a question of law of substantial importance is irrelevant. In any event, the application does raise a question of law of some importance, namely, the meaning of “sold” in s.76(1)(c) of the Motor Car Traders Act. Furthermore, the fact that Ralena can, apparently, avoid termination or suspension of its licence by paying the amount of the Tribunal’s determination to the Fund, is not an appropriate discretionary basis to refuse the relief. Ralena has been placed in that position as a result of a decision of the Tribunal which, I have found, contains error on the face of the record. Thus there is no legal basis why Ralena should be placed in such 1a dilemma. In those circumstances I do not consider there is any appropriate discretionary basis to refuse the relief sought by Ralena.
Conclusion
Thus, the applicant has made out the first two grounds of its order for review, and the second respondent XTSEA has not shown cause why the decision of the Tribunal should not be reviewed. It follows that the applicant is entitled to be granted relief in the nature of certiorari quashing the decision of the Tribunal.
Subject to submissions from counsel I propose to make the following orders:
1.Order in the nature of certiorari quashing the decision of the Victorian Civil and Administrative Appeals Tribunal made 11 September 2006 by which the Tribunal, in the matter of XTSEA Pty Ltd v Motor Car Traders Guarantee Fund Claims Committee, set aside the determination of the Committee made 18 April 2006 and substituted therefor a determination that the applicant is entitled to an award of $33,000 representing the loss which it has incurred by reason of a failure of a motor car trader Ralena Pty Ltd to pay the purchase price of two motor vehicles sold to it by the applicant.
2.Order that the secondnamed respondent pay the costs of the applicant.
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