Mishra v Prestige Auto Centre Pty Ltd & Khan Motorcar Co Pty Ltd [2015] NSWCATCD 106

Mishra v Prestige Auto Centre Pty Ltd & Khan Motorcar Co Pty Ltd [2015] NSWCATCD 106

The Tribunal found on the balance of probabilities that the odometer reading of 33,258 kilometres was inaccurate and that the best evidence was that the vehicle had travelled 101,600 kilometres. It also found that the dealer's conduct in providing inaccurate kilometres information in trade or commerce was misleading. However, the applicant failed to establish that he relied on that representation when buying the vehicle, because the Tribunal accepted that he had made up his mind to purchase the vehicle for $30,000.00 regardless of whether it had travelled 33,258 or more kilometres, declined an independent inspection, and understood he was getting a fair deal. The Tribunal further found...

Jurisdiction
Australia
Judgment Date
03 September 2015
Procedural Posture
Consumer Claim Concerning Purchase of a Used Motor Vehicle / Formal Hearing on Remit From the Tribunal's Appeal Panel
Outcome
Subject to the question of costs, the application is dismissed.
Legal Topics
['misleading or Deceptive Conduct' 'odometer Tampering' 'causation and Reliance' 'consumer Guarantees' 'acceptable Quality' 'fitness for Purpose' 'measure of Damages']
['consumer Law' 'motor Vehicles' 'contract Law'] ['misleading or Deceptive Conduct' 'odometer Tampering' 'causation and Reliance' 'consumer Guarantees' 'acceptable Quality' 'fitness for Purpose' 'measure of Damages']

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Procedural Posture

Consumer Claim Concerning Purchase of a Used Motor Vehicle / Formal Hearing on Remit From the Tribunal's Appeal Panel

Legal Issues

  1. 1 ["Whether the vehicle's odometer reading of 33,258 kilometres was accurate at the time of sale on 10 July 2013." 'If the odometer reading was inaccurate, whether the dealer engaged in misleading or deceptive conduct, or conduct likely to mislead or deceive, within sections 18 and 29 of the Australian Consumer Law.' 'Whether the applicant relied on the representations in the sale contract and warranty documents as to the number of kilometres travelled by the vehicle when deciding to purchase it.' 'Whether the applicant suffered loss or damage by reason of any contravention of sections 18 and 29 of the Australian Consumer Law and, if so, the amount of loss or damage.' 'Whether the vehicle was unsafe, not roadworthy, not of acceptable quality or unfit for purpose within sections 54 and 55 of the Australian Consumer Law or under general law breach of contract, and if so the amount of damages.']

Ratio Decidendi

The Tribunal found on the balance of probabilities that the odometer reading of 33,258 kilometres was inaccurate and that the best evidence was that the vehicle had travelled 101,600 kilometres. It also found that the dealer's conduct in providing inaccurate kilometres information in trade or commerce was misleading. However, the applicant failed to establish that he relied on that representation when buying the vehicle, because the Tribunal accepted that he had made up his mind to purchase the vehicle for $30,000.00 regardless of whether it had travelled 33,258 or more kilometres, declined an independent inspection, and understood he was getting a fair deal. The Tribunal further found...

Court Disposition

Subject to the question of costs, the application is dismissed.

Orders

  • ['If the dealer wishes to press the matter of costs, it is to inform the Deputy Divisional Registrar within 10 days from publication of the Reasons and file any further written submissions within 10 days.' 'If a claim for costs is pressed, the applicant is to file written submissions in reply within 20 days from...