Veltri v Jacay Pty Ltd - [2017] NSWCATCD 27

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 2013
Cases 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 445
Category: Principal judgment
Parties: Maria Caterina Veltri, Applicant
Jacay Pty Ltd trading as NSW Automotive Wholesale, Respondent
Representation: Applicant in person
Mr Stephen Castelino, Director, for the Respodent

File Number(s): MV 16/55495
Publication restriction: Nil

reasons for decision

Introduction

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).
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…

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.

Continue reading Veltri v Jacay Pty Ltd

Details

AGLC: Veltri v Jacay Pty Ltd [2017] NSWCATCD 27
Case: [2017] NSWCATCD 27
Decision Date: 12 April 2017

CaseChat Overview and Summary

Maria Caterina Veltri brought an action against Jacay Pty Ltd trading as NSW Automotive Wholesale in the Consumer, Trader and Tenancy Tribunal of New South Wales, seeking a refund of a holding deposit paid for a motor vehicle which was not delivered to her. The central issue before the Tribunal was whether the oral agreement made between the parties regarding the holding deposit could be enforced and if so, under what terms. The dispute arose because the terms upon which the holding deposit was paid were unclear, and the parties could not agree on these terms based on the surrounding circumstances. The Tribunal was tasked with determining if the oral agreement could be enforced and, if so, under what terms, in the absence of a written contract.

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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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 2013
Cases 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 445
Category:	Principal judgment
Parties:	Maria Caterina Veltri, Applicant Jacay Pty Ltd trading as NSW Automotive Wholesale, Respondent
Representation:	Applicant in person Mr Stephen Castelino, Director, for the Respodent
File Number(s):	MV 16/55495
Publication restriction:	Nil