Vince Taskovski v Otomobile Shoppe Pty Ltd - [2015] NSWCATCD 24

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Vince Taskovski & Anor v Otomobile Shoppe Pty Ltd [2015] NSWCATCD 24
Hearing dates: 23 January 2015
Decision date: 03 March 2015
Jurisdiction: Consumer and Commercial Division
Before: J Levingston, General Member
Decision:
The applicant is granted leave to renew the application pursuant to the Civil and Administrative Tribunal Act 2013 Schedule 4 clauses 3 and 8.
The respondent is to pay the applicant the sum of $40,000.00 within 28 days of the date of this Order.
The applicant is to make the motor vehicle available for collection at his address by the respondent in Melbourne, at the cost of the respondent.
If the respondent does not collect the motor vehicle from the applicant within 28 days of the date of this Order, the applicant may dispose of the motor vehicle by sale and account to the respondent for the proceeds of the sale after deduction of the reasonable costs of selling.

Catchwords: Sale of second hand Audi motor vehicle – defects – applicant immediately returns vehicle to dealer - dealer agrees to rectify defects including replace engine of vehicle – defects not rectified – misleading and deceptive conduct - Audi engine replaced with Volkswagen engine – breach of agreement to rectify – breach of orders made by consent – vehicle not roadworthy - breach of statutory guarantees in Australian Consumer Law - renewal of proceedings application - further rectification order not an adequate remedy – compensation
Legislation Cited: Australian Consumer Law (NSW) 2013 ss18, 54, 56 and 236
Civil and Administrative Tribunal Act (NSW) 2013, ss28, 29 and Schedule 4 clauses 3 and 8
Fair Trading Act (NSW) 1987 ss27, 28, 30 and 32
Motor Dealers Act (NSW) 1974 s27
Cases Cited: Fleetman Pty Ltd v Cairns Pty Ltd [2005] FCAFC 80
Treloar v Ivory (1991) ASC 56-076; ATPR 41-123
Category: Principal judgment
Parties: Vince and Suzanna Taskovski (applicants)
Otomobile Shoppe Pty Ltd (respondent)
Representation: Parties appeared in person

File Number(s): MV 14/55303
Publication restriction: Nil

REASONS FOR DECISION

Application

This is an application filed 10 November 2014 for a renewal of an application and an order that the respondent pay $52,044.00 as compensation for the purchase price and breach of an agreement by the dealer to rectify faults in an Audi motor vehicle purchased from the respondent, and other expenses incurred.

Appearances

Both parties appeared and the application was contested.

Jurisdiction

The Tribunal has jurisdiction pursuant to the Civil and Administrative Tribunal Act 2013 (NSW) (“CATA”) ss28 (Jurisdiction of Tribunal generally), 29 (General jurisdiction) and Schedule 4 clause 3 (Functions allocated to Division) to determine this application and power to make orders pursuant to the Australian Consumer Law (NSW) (ACL), Consumer Claims Act (CCA) and Motor Dealers Act (MDA).

The Facts

The material facts are:

The respondent is a motor dealer carrying on the business of selling motor vehicles in trade and commerce;

The respondent advertised a used Audi Q7 Quattro Wagon motor vehicle built 2006…

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.

Keep reading for free

Create a free CaseChat account to read Vince Taskovski v Otomobile Shoppe Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2015] NSWCATCD 24
Decision Date: 03 March 2015

CaseChat Overview and Summary

The applicant, Vince Taskovski, commenced proceedings against Otomobile Shoppe Pty Ltd, alleging that the company had sold him a second-hand Audi motor vehicle with undisclosed defects. The case was heard in the Civil and Administrative Tribunal (CAT). The respondent admitted selling the vehicle but denied the defects and any misleading or deceptive conduct. Taskovski claimed that after discovering the defects, he returned the vehicle to the dealer, which agreed to rectify the issues, including replacing the engine. However, the respondent did not fulfil this obligation and instead replaced the Audi engine with a Volkswagen engine, leading to further issues. Taskovski sought compensation and further rectification orders.

The primary legal issues before the tribunal were whether the respondent breached its agreement to rectify the vehicle's defects and whether this constituted misleading or deceptive conduct. Additionally, the court had to determine if the statutory guarantees under the Australian Consumer Law were breached and if compensation was an appropriate remedy. The tribunal also considered if renewing the proceedings was justified, given the respondent's failure to comply with previous orders.

The tribunal found that the respondent did not fulfil its agreement to rectify the vehicle's defects, replacing the Audi engine with a Volkswagen engine instead. This constituted misleading or deceptive conduct under the Australian Consumer Law. The tribunal also found that the statutory guarantees under the Australian Consumer Law were breached, as the vehicle was not roadworthy. Given the respondent's failure to comply with previous orders, the tribunal granted leave to renew the proceedings and ordered the respondent to pay the applicant $40,000.00 within 28 days. The respondent was also required to collect the vehicle from the applicant, with the option for the applicant to sell the vehicle if the respondent failed to do so within the specified timeframe.

The final orders of the tribunal included granting the applicant leave to renew the application, ordering the respondent to pay $40,000.00 within 28 days, and directing the respondent to collect the vehicle from the applicant. If the respondent did not collect the vehicle within the stipulated period, the applicant was authorised to sell the vehicle and account to the respondent for the proceeds after deducting reasonable selling costs.

Orders

Orders of the court

The applicant is granted leave to renew the application pursuant to the Civil and Administrative Tribunal Act 2013 Schedule 4 clauses 3 and 8.

The respondent is to pay the applicant the sum of $40,000.00 within 28 days of the date of this Order.

The applicant is to make the motor vehicle available for collection at his address by the respondent in Melbourne, at the cost of the respondent.

If the respondent does not collect the motor vehicle from the applicant within 28 days of the date of this Order, the applicant may dispose of the motor vehicle by sale and account to the respondent for the proceeds of the sale after deduction of the reasonable costs of selling.

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:	Vince Taskovski & Anor v Otomobile Shoppe Pty Ltd [2015] NSWCATCD 24
Hearing dates:	23 January 2015
Decision date:	03 March 2015
Jurisdiction:	Consumer and Commercial Division
Before:	J Levingston, General Member
Decision:	The applicant is granted leave to renew the application pursuant to the Civil and Administrative Tribunal Act 2013 Schedule 4 clauses 3 and 8. The respondent is to pay the applicant the sum of $40,000.00 within 28 days of the date of this Order. The applicant is to make the motor vehicle available for collection at his address by the respondent in Melbourne, at the cost of the respondent. If the respondent does not collect the motor vehicle from the applicant within 28 days of the date of this Order, the applicant may dispose of the motor vehicle by sale and account to the respondent for the proceeds of the sale after deduction of the reasonable costs of selling.
Catchwords:	Sale of second hand Audi motor vehicle – defects – applicant immediately returns vehicle to dealer - dealer agrees to rectify defects including replace engine of vehicle – defects not rectified – misleading and deceptive conduct - Audi engine replaced with Volkswagen engine – breach of agreement to rectify – breach of orders made by consent – vehicle not roadworthy - breach of statutory guarantees in Australian Consumer Law - renewal of proceedings application - further rectification order not an adequate remedy – compensation
Legislation Cited:	Australian Consumer Law (NSW) 2013 ss18, 54, 56 and 236 Civil and Administrative Tribunal Act (NSW) 2013, ss28, 29 and Schedule 4 clauses 3 and 8 Fair Trading Act (NSW) 1987 ss27, 28, 30 and 32 Motor Dealers Act (NSW) 1974 s27
Cases Cited:	Fleetman Pty Ltd v Cairns Pty Ltd [2005] FCAFC 80 Treloar v Ivory (1991) ASC 56-076; ATPR 41-123
Category:	Principal judgment
Parties:	Vince and Suzanna Taskovski (applicants) Otomobile Shoppe Pty Ltd (respondent)
Representation:	Parties appeared in person
File Number(s):	MV 14/55303
Publication restriction:	Nil