Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: Veltri v Jacay Pty Ltd [2017] NSWCATCD 27 Hearing dates: 29 March 2017 Date of orders: 11 April 2017 Decision date: 12 April 2017 Jurisdiction: Consumer and Commercial Division Before: P French, General Member Decision: 1. Pursuant to sub-section 79N(a) of the Fair Trading Act 1987 the Respondent, Jacay Pty Ltd trading as NSW Automotive Wholesale, (...) is to pay Maria Caterina Veltri, (...), the sum of $500.00 by 19 April 2017.
Catchwords: MOTOR VEHICLES –– claim for refund of holding deposit – where no written contract for sale of the motor vehicle had been entered into by the parties – where there was an oral agreement to purchase the motor vehicle and pay the holding deposit – where the terms upon which the motor vehicle was held and the holding deposit paid under that oral agreement are disputed between the parties – where the Tribunal must do its best to give effect to the parties oral agreement – where certainty as to the terms on which the holding deposit was paid cannot be ascertained from all the surrounding circumstances - where this term cannot be enforced in these circumstances Legislation Cited: Fair Trading Act 1989
Civil and Administrative Tribunal Act 2013Cases Cited: Hillas and Co Ltd v Arcos (1932) 147 LT 503
Safi v Heartland Motors Pty Ltd trading as Heartland Crysler [2016] NSWAP 80
Whitlock v Brew (1968) 118 CLR 445Category: Principal judgment Parties: Maria Caterina Veltri, Applicant
Jacay Pty Ltd trading as NSW Automotive Wholesale, RespondentRepresentation: Applicant in person
Mr Stephen Castelino, Director, for the Respodent
File Number(s): MV 16/55495 Publication restriction: Nil
reasons for decision
Introduction
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This is an application by Maria Caterina Veltri (the Applicant) for an order from the Tribunal pursuant to sub-section 79N(a) of the Fair Trading Act 1979 (FT Act) that would require Jacay Pty Ltd trading as NSW Automotive Wholesale (the Respondent) to pay her the sum of $500.00, being the refund of a holding deposit she paid the Respondent is respect of the prospective purchase of 2004 Audi A6 Sedan (the motor vehicle). This application was made to the Tribunal on 10 December 2016 (the Application).
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The Tribunal has concluded that the Respondent has not established to the requisite standard of proof that it has any contractual or other basis upon which it is entitled to retain the holding deposit. This is because there was no written contract for the sale of the motor vehicle concluded between the parties. The agreement for the purchase and the terms upon which the Applicant paid the holding deposit were oral only. There is a dispute between the parties as to the terms upon which the holding deposit was paid, and no objective evidence that is capable of establishing the certainty of these terms. In these circumstances the oral agreement cannot be enforced. The Tribunal has therefore ordered the Respondent to…
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- AGLC
- Veltri v Jacay Pty Ltd [2017] NSWCATCD 27
- Case
- [2017] NSWCATCD 27
- Decision Date
CaseChat Overview and Summary
The Tribunal held that the parties had an oral agreement regarding the purchase of the motor vehicle and the payment of the holding deposit. However, it was unable to ascertain the terms on which the deposit was held due to the lack of certainty arising from the surrounding circumstances. The Tribunal found that, in the absence of a written contract, it could not enforce the oral agreement in these circumstances. Therefore, the Tribunal ordered that Jacay Pty Ltd was to refund the holding deposit to Ms Veltri, amounting to $500.00, by a specified date.
Orders
Orders of the court
1. Pursuant to sub-section 79N(a) of the Fair Trading Act 1987 the Respondent, Jacay Pty Ltd trading as NSW Automotive Wholesale, (...) is to pay Maria Caterina Veltri, (...), the sum of $500.00 by 19 April 2017.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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