Bob Abbott v Charlton Lakeside Marine v Charlton [2014] NSWCATAP 116

Bob Abbott v Charlton Lakeside Marine v Charlton [2014] NSWCATAP 116

The Tribunal committed errors of law by finding a breach of section 54 of the Australian Consumer Law despite its findings that no manufacturing defect or particular manufacturing fault had been proved, and by effectively reversing the onus of proof by requiring the appellants to demonstrate the stated cause of the crack. On the evidence, the respondent had not established a manufacturing defect, while the appellants had demonstrated on the balance of probabilities that the crack in the block was not a manufacturing defect. The original application was therefore dismissed rather than remitted.

Jurisdiction
Australia
Judgment Date
23 December 2014
Procedural Posture
Appeal From an Internally Appealable Decision of the Consumer and Commercial Division of the Civil and Administrative Tribunal of New South Wales / Appeal Panel Decision After Leave to Appeal Out of Time Was Granted
Outcome
Appeals allowed; original Tribunal order set aside; original application dismissed.
Legal Topics
['australian Consumer Law Guarantee of Acceptable Quality' 'error of Law' 'onus of Proof' 'appeal Out of Time' 'dismissal of Proceedings Under S 55(1)(b)']
['consumer Law' 'administrative Law' 'civil Procedure'] ['australian Consumer Law Guarantee of Acceptable Quality' 'error of Law' 'onus of Proof' 'appeal Out of Time' 'dismissal of Proceedings Under S 55(1)(b)']

Case Brief

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Procedural Posture

Appeal From an Internally Appealable Decision of the Consumer and Commercial Division of the Civil and Administrative Tribunal of New South Wales / Appeal Panel Decision After Leave to Appeal Out of Time Was Granted

Legal Issues

  1. 1 ['Whether the Tribunal erred in finding a breach of the guarantee in section 54 of the Australian Consumer Law after finding that no manufacturing defect had been proved.' 'Whether the Tribunal reversed the onus of proof by requiring the appellants to demonstrate the cause of the crack in the outboard motor.' 'Whether the appeals remained competent despite non-compliance with the payment condition in the orders made on 1 September 2014.' 'Whether the original application should be remitted for rehearing or dismissed.']

Ratio Decidendi

The Tribunal committed errors of law by finding a breach of section 54 of the Australian Consumer Law despite its findings that no manufacturing defect or particular manufacturing fault had been proved, and by effectively reversing the onus of proof by requiring the appellants to demonstrate the stated cause of the crack. On the evidence, the respondent had not established a manufacturing defect, while the appellants had demonstrated on the balance of probabilities that the crack in the block was not a manufacturing defect. The original application was therefore dismissed rather than remitted.

Court Disposition

Appeals allowed; original Tribunal order set aside; original application dismissed.

Orders

  • ['Appeal allowed.' 'The order made by the Tribunal in application GEN 13/52217 on 1 May 2014 is set aside.' 'Application GEN 13/52217 is dismissed.']