Twining v Mazda Australia Pty Limited - [2022] NSWCATCD 39

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Twining v Mazda Australia Pty Limited [2022] NSWCATCD 39
Hearing dates: 10 January 2022; Written submissions completed by 11 March 2022
Date of orders: 16 March 2022
Decision date: 16 March 2022
Jurisdiction: Consumer and Commercial Division
Before: J Rose, General Member
Decision:
The applicant’s claim against the respondent is dismissed because, having considered the material placed before it, the Tribunal is not satisfied (at the civil standard of proof) that the grounds required to make the orders sought have been established.

Catchwords:
CONSUMER LAW — Jurisdiction — NSW Civil and Administrative Tribunal — Consumer and Commercial Division — Whether Tribunal has jurisdiction to determine a claim against an importer/manufacturer by a person who acquired used goods from a previous owner in a private sale
CONSUMER LAW — Consumer guarantees — Action against manufacturer — Supply of goods — Guarantee as to acceptable quality — Claim against an importer/manufacturer by a person who acquired used goods from a previous owner in a private sale — What constitutes a “consumer”— Whether failure of goods to comply with guarantee as to acceptable quality has been established

Legislation Cited:
Civil and Administrative Tribunal Act 2013 (NSW)
Competition and Consumer Act 1974 (Cth).
Fair Trading Act 1987 (NSW)
Motor Dealer and Repairers Act 2013 (NSW)

Cases Cited:
APS Satellite Pty Ltd (formerly known as Sky Mesh Pty Ltd) v Ipstar Australia Pty Ltd [2016] NSWSC 1898
Australian Competition and Consumer Commission v Jayco Corporation Pty Ltd [2020] FCA 1672
Contact Energy Ltd v Jones [2009] 2 NZLR 830
Davis Contractors Ltd v Fareham Urban District Council [1956] AC 696
Green Square Garage Pty Ltd v ATM Corporation Pty Ltd t/as What You Wreckin [2021] NSWCATCD 92
Healthcare at Home Ltd v The Common Services Agency [2014] UKSC 49; 4 All ER 210
Kennett v Financial Ombudsman Service Ltd [2017] NSWCATAP 59
Lam v Steve Jarvie Motors [2016] NSWCATAP 186
LSH Auto (Sydney) Pty Ltd v Sherman (No 2) [2021] NSWCATAP 272
Marks v GIO Australia Holdings Ltd (1998) 196 CLR 494
Medtel Pty Ltd v Courtney (2003) 130 FCR 182; 198 ALR 630; [2003] FCAFC 151
Merck Sharp & Dohme (Australia) Pty Ltd v Peterson (2011) 196 FCR 145; 284 ALR 1; [2011] FCAFC 128
Plath v Snowy Monaro Regional Council [2019] NSWCATAP 165
Prestige Auto Traders Australia Ltd v Bonneﬁn [2017] NSWSC 149
Skiba v Serendipity (WA) Pty Ltd t/as Advanced Personal Management [2019] NSWCATAP 224
Vautin v By Winddown (No 4) [2018] FCA 426; (2018) 362 ALR 702
Warner v Hung, in the matter of Bellpac Pty Limited (Receivers and Managers Appointed) (In Liquidation) (No 2) [2011] FCA 1123

Texts Cited:
Nil

Category: Principal judgment
Parties: Dane Twining (Applicant)
Mazda Australia Pty Limited (Respondent)
Representation: Applicant (Self-represented)
S Ironside (Company officer) (Respondent)

File Number(s): MV 21/41258
Publication restriction: Nil

REASONS FOR DECISION

INTRODUCTION

These proceedings arise out of the purchase by the applicant of a used…

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: [2022] NSWCATCD 39
Decision Date: 16 March 2022

CaseChat Overview and Summary

Twining v Mazda Australia Pty Limited was a case brought before the NSW Civil and Administrative Tribunal in its Consumer and Commercial Division. The applicant, Mr. Twining, sought a remedy from Mazda Australia, the respondent, for an alleged failure in the quality of a used Mazda vehicle he had purchased. The central dispute was whether the Tribunal had the jurisdiction to hear a claim against a manufacturer by a consumer who had acquired used goods in a private sale, and if so, whether the vehicle had failed to comply with the guarantee of acceptable quality under Australian consumer law.

The primary legal issue before the Tribunal was determining the applicability of consumer law protections to a transaction involving used goods acquired in a private sale. Specifically, it needed to be decided if Mr. Twining qualified as a "consumer" for the purposes of the Australian Consumer Law and whether he could enforce consumer guarantees against Mazda Australia, the manufacturer. Additionally, the Tribunal had to ascertain if the vehicle indeed failed to comply with the guarantee of acceptable quality.

The Tribunal deliberated on these issues and concluded that it did not have the jurisdiction to entertain Mr. Twining's claim against Mazda Australia. It found that the consumer law protections did not extend to transactions involving used goods purchased in private sales. Therefore, Mr. Twining's status as a consumer under the Australian Consumer Law was not established in this context. Consequently, the Tribunal dismissed Mr. Twining's claim against Mazda Australia. The decision was based on the Tribunal not being satisfied, on the civil standard of proof, that the necessary grounds for making the sought orders had been established.

Orders

Orders of the court

The applicant’s claim against the respondent is dismissed because, having considered the material placed before it, the Tribunal is not satisfied (at the civil standard of proof) that the grounds required to make the orders sought have been established.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Twining v Mazda Australia Pty Limited [2022] NSWCATCD 39
Hearing dates:	10 January 2022; Written submissions completed by 11 March 2022
Date of orders:	16 March 2022
Decision date:	16 March 2022
Jurisdiction:	Consumer and Commercial Division
Before:	J Rose, General Member
Decision:	The applicant’s claim against the respondent is dismissed because, having considered the material placed before it, the Tribunal is not satisfied (at the civil standard of proof) that the grounds required to make the orders sought have been established.
Catchwords:	CONSUMER LAW — Jurisdiction — NSW Civil and Administrative Tribunal — Consumer and Commercial Division — Whether Tribunal has jurisdiction to determine a claim against an importer/manufacturer by a person who acquired used goods from a previous owner in a private sale CONSUMER LAW — Consumer guarantees — Action against manufacturer — Supply of goods — Guarantee as to acceptable quality — Claim against an importer/manufacturer by a person who acquired used goods from a previous owner in a private sale — What constitutes a “consumer”— Whether failure of goods to comply with guarantee as to acceptable quality has been established
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW) Competition and Consumer Act 1974 (Cth). Fair Trading Act 1987 (NSW) Motor Dealer and Repairers Act 2013 (NSW)
Cases Cited:	APS Satellite Pty Ltd (formerly known as Sky Mesh Pty Ltd) v Ipstar Australia Pty Ltd [2016] NSWSC 1898 Australian Competition and Consumer Commission v Jayco Corporation Pty Ltd [2020] FCA 1672 Contact Energy Ltd v Jones [2009] 2 NZLR 830 Davis Contractors Ltd v Fareham Urban District Council [1956] AC 696 Green Square Garage Pty Ltd v ATM Corporation Pty Ltd t/as What You Wreckin [2021] NSWCATCD 92 Healthcare at Home Ltd v The Common Services Agency [2014] UKSC 49; 4 All ER 210 Kennett v Financial Ombudsman Service Ltd [2017] NSWCATAP 59 Lam v Steve Jarvie Motors [2016] NSWCATAP 186 LSH Auto (Sydney) Pty Ltd v Sherman (No 2) [2021] NSWCATAP 272 Marks v GIO Australia Holdings Ltd (1998) 196 CLR 494 Medtel Pty Ltd v Courtney (2003) 130 FCR 182; 198 ALR 630; [2003] FCAFC 151 Merck Sharp & Dohme (Australia) Pty Ltd v Peterson (2011) 196 FCR 145; 284 ALR 1; [2011] FCAFC 128 Plath v Snowy Monaro Regional Council [2019] NSWCATAP 165 Prestige Auto Traders Australia Ltd v Bonneﬁn [2017] NSWSC 149 Skiba v Serendipity (WA) Pty Ltd t/as Advanced Personal Management [2019] NSWCATAP 224 Vautin v By Winddown (No 4) [2018] FCA 426; (2018) 362 ALR 702 Warner v Hung, in the matter of Bellpac Pty Limited (Receivers and Managers Appointed) (In Liquidation) (No 2) [2011] FCA 1123
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Dane Twining (Applicant) Mazda Australia Pty Limited (Respondent)
Representation:	Applicant (Self-represented) S Ironside (Company officer) (Respondent)
File Number(s):	MV 21/41258
Publication restriction:	Nil