Barbour v Autosports Five Dock Pty Ltd [2020] NSWCATAP 141

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Barbour v Autosports Five Dock Pty Ltd [2020] NSWCATAP 141 Hearing dates: 12 May 2020 Date of orders: 16 July 2020 Decision date: 16 July 2020 Jurisdiction: Appeal Panel Before: M Harrowell, Deputy President Dr R Dubler SC, Senior Member Decision: (1) The appeal is allowed and the order of the Tribunal made 31 January 2020 in application MV 19/47867 is set aside. (2) The whole of the proceedings are remitted to the Tribunal, differently constituted, for reconsideration in accordance with these reasons and the law. (3) In respect of the remitted proceedings, the following directions are made: (a) Within 14 days from the date of these orders, the applicant (Barbour) is to file and serve points of claim setting out: (i) the facts relied upon; (ii) by reference to those facts, the cause or causes of action asserted; (iii) in respect of each cause of action, the order or orders sought. (b) Within 28 days from the date of these orders, the respondent (Autosports) is to file and serve points of defence. (c) The application is to be listed for directions within 35 days after the date of these orders for the purpose of making directions including for any further evidence and submissions and to fix a hearing date. (4) The appellant's costs of this appeal are to be the applicant's costs in the cause in the proceedings on remittal. (5) The Appeal Panel makes the following further directions: (a) If any party wishes to contend for a different costs order (Costs Applicant), they must do so within 14 days of these orders and file submissions as to the costs order she or it seeks, including submissions as to whether or not a hearing on the question of costs should be dispensed with pursuant to s 50(2) of the NCAT Act. (b) The respondent to such costs application is to file submissions in response within 14 days thereafter, including as to whether or not the hearing should be dispensed with pursuant to s 50(2) of the NCAT Act. (c) The Costs Applicant is to file submissions in reply within 7 days thereafter. (d) Upon making of any costs application pursuant to this direction, order 4 shall cease to have effect. Catchwords: CONSUMER CLAIM – defective motor vehicle – whether the Tribunal erred in determining whether the application was brought within the limitation period – meaning of when causes of action "first accrued" under the Fair Trading Act 1987 – claim for refund upon rejection of goods under the Australian Consumer Law (NSW) – entitlement to reject goods in "rejection period" – factors relevant to determining when rejection period ends Legislation Cited: Australian Consumer Law (NSW) Civil and Administrative Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Consumer Claims Act 1998 (NSW) (repealed) Consumer Guarantees Act 1993 (New Zealand) Fair Trading Act 1987 (NSW) Trade Practices Act, 1974 (Cwth) Cases Cited: Alameddine v Glenworth Valley Horse Riding Pty Ltd [2015] NSWCA 219 Battley v Faulkner [1820] 3B and Ald 228 Cairns v AHG Newcastle Pty Ltd [2020] NSWCATAP 103 Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234 Latoudis v Casey (1990) 170 CLR 534 McBride v Christie's Australia Pty Ltd [2014] NSWSC 1729 Nesbit v Porter [2000] NZCA 288; [2000] 2 NZLR 465; (2000) Roberts v Chan & Naylor Pty Ltd [2018] NSWCATAP 69 Sacks v Hammond [2016] NSWCATAP 225 The Owners – Strata Plan No 67698 v Leadership Pty Ltd t/as Five Dock Realty [2015] NSWCATAP 57 Thompson v Chapman [2016] NSWCATAP 6 Upton v Martin & Stein Antiques Pty Ltd [2016] NSWCATAP 228 Valve Corporation v Australian Competition and Consumer Commission [2017] FCAFC 224 Vautin v BY Winddown Inc. (formerly Bertram Yachts) (No 4) [2018] FCA 426 Vecchio v GM Holden Limited [2018] NSWCATCCD 70 Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 Texts Cited: Limitation of Actions, The Laws of Australia - Handford (4th ed.) Category: Principal judgment Parties: Dounia Barbour (Appellant) Autosports Five Dock Pty Ltd (Respondent) Representation: Mr Zraika, Solicitor (Appellant) Ms Raw (General Counsel) (Respondent)

Solicitors: Cogent Lawyers (Appellant) Not applicable (Respondents) File Number(s): AP 20/10221 Publication restriction: Nil Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 31 January 2020 Before: P Moran, Senior Member File Number(s): MV 19/47867

REASONS FOR DECISION

Introduction 1. The respondent ("Autosports") supplied an Audi Q7 ("the Audi" or "the vehicle") to the appellant ("the consumer") approximately two days after 5 June 2013, the date of registration. The Audi vehicle was purchased for $95,000. 2. The consumer contended the Audi was never fit for sale. The original application, which was lodged on 24 October 2019, stated: I believe the car was never fit for sale, under the Australian Consumer Law. I was extremely patient and complied with Audi Five Dock, to fix the issue, only for the result to be same or worse. I have lost count as to how many times the vehicle has visited their workshop. At times I wasn't even provided with a courtesy car, although this service was covered by the extended warranty, I purchased for the car. They would have my car in their possession for months, and I would have to chase them up to see the current status of the work conducted. The paint on the engine bay is permanently damaged and irreversible to fix. The engine continues to still make noise and leaks oil continuously. The oil leak started not long after I purchased the car. I tried to sell the car, but I had no one interested. The defects were very obvious and permanent. Due to the oil leak, my polished concrete floor in my underground parking had been destroyed. It has stained the concrete and it is not possible to clean the area without discolouring the concrete giving it a distinctive and unappealing look. 1. The consumer sought an order for a refund of the purchase price or to fix or replace the Audi vehicle for a new car as well as damages in respect of the repairs carried out at various times after the purchase of the vehicle and damages to the concrete floor. 2. The Tribunal found that the vehicle was not of acceptable quality at the time of supply. The Tribunal then held that the consumer's cause of action was under the Australian Consumer Law (NSW) (ACL) and the relevant guarantees first accrued at the time of the sale in June 2013. The Tribunal was of the view that whether or not the consumer was aware at the time of taking possession of the Audi of her entitlement to pursue a consumer claim against Autosports was not relevant to the determination of when her cause of action first accrued. 3. Accordingly, the Tribunal found that the consumer's claim, so far as it related to a remedy arising from the supply of the vehicle, first accrued more than three years before the date on which the application was lodged and therefore the Tribunal did not have jurisdiction to hear and determine such claim. In dismissing the claim, the Tribunal also rejected claims in respect of repair work carried out by Autosports. Consequently, the application was dismissed. 4. The consumer by this appeal seeks to appeal this decision.

Background 1. This is an internal appeal from the decision of the Tribunal dated 31 January 2020 (the "decision"). The original application was lodged on 24 October 2019. 2. The Notice of Appeal was filed on 26 February 2020. At the hearing at first instance, the Tribunal received the following material into evidence: 1. The consumer produced the following evidence: 1. Bundle of documents marked exhibit A1; 2. Expert report of David Marston dated 24 October 2019 – marked exhibit A2; 3. Supplementary Expert Report of David Marston dated 2 January 2020 - marked exhibit A3; 4. Document titled "applicant supplementary submissions" - marked exhibit A4; 1. Autosports tendered a bundle of documents titled "the respondent's documents" - marked exhibit R1. 1. This material and the transcript of the hearing before the Tribunal were placed before the Appeal Panel.

The Tribunal's reasoning 1. The Tribunal at [8] identified three issues as requiring determination in respect of whether or not the Tribunal had jurisdiction to hear and to determine the application as follows: 1. Is the applicant a "consumer" as defined in s 79D of the Fair Trading Act 1987 (NSW) (the FTA)? 2. Is the applicant's claim a "consumer claim" within the meaning of s 79E of the FTA? 3. Did the cause of action giving rise to the applicant's claim first accrue more than three years before the date on which the claim (being the Application herein) was lodged: s 79L(1)(a) of the FTA? 1. The Tribunal found as follows: 1. the consumer was a person to whom Autosports supplied the vehicle which was found to be "goods" as defined in s 79D of the FTA: at [21]; 2. the applicant was a consumer as defined in s 79D of the FTA: at [22]; 3. Autosports was a supplier as defined in s 79D of the FTA and relevantly supplied the vehicle within the meaning of s 79G of the FTA; 4. the claim by the consumer before the Tribunal is a "consumer claim" within the meaning of s 79E of the FTA; and 5. The consumer's claim is for an Australian Consumer Law remedy arising from the supply of the vehicle by Autosports. 1. The Tribunal noted that the consumer's submissions included the assertion that the vehicle always had an oil leak and referenced s 259(4) of the ACL: at [25]. The Tribunal stated that guarantees referred to in this section, and which are relevant, are the guarantee as to acceptable quality (s 54 ACL) and the guarantee as to fitness for disclosed purpose (s 55 ACL): at [26]. 2. The Tribunal stated that the application by the consumer was for a remedy under s 259 of the ACL, being a remedy arising out of the supply by Autosports of the vehicle, and entitling payment of a specified sum of money: [29]. 3. The Tribunal then considered whether or not the application was brought too late noting that pursuant to s 79L of the FTA the Tribunal has no jurisdiction to hear and determine a consumer claim if the cause of action giving rise to the claim first accrued more than three years before the date on which the claim is lodged. 4. The Tribunal accepted the evidence of the consumer's expert, Mr Marston, that the vehicle had demonstrated faults with major systems since the time of its purchase and was not of merchantable quality when first delivered. 5. The Tribunal accepted that Mr Marston concluded that the major defects existing with the vehicle impacting on its merchantable quality existed at the time of the June 2013 delivery: at [32]. From the various service tax invoices, the Tribunal formed the opinion that the first occasion where Autosports carried out major work in respect of a major oil leak issue, was on 25 June 2015, although there is reference to repair work relating to oil leak issues also in June and July 2015: at [32]. 6. The Tribunal then held that the causes of action under the ACL referred to by the Tribunal earlier, first accrued at the time of the transaction being completed in June 2013 when the consumer took possession of the vehicle. The Tribunal stated that whether or not the consumer was aware, at the time of taking possession of the vehicle in June 2013, of her entitlement to pursue a consumer claim against Autosports is not relevant to the determination of when her cause of action first accrued: at [33]. 7. The Tribunal cited in support the text Limitation of Actions, The Laws of Australia (4th Edition) and the decision of Battley v Faulkner [1820] 3 B and Ald 228 in support of the proposition that in cases of implied terms into contracts as to quality or fitness a cause of action accrues on delivery of goods. 8. The Tribunal found that at the time of completion of the transaction in June 2013 and delivery by Autosports, the vehicle was defective and Autosports at the time of such delivery breached the statutory guarantees: at [34]. 9. The Tribunal stated that this was the case even though it was unknown to the consumer at the time that the vehicle, in its defective state, was worth less than the price paid. The Tribunal took this view because, as it stated, loss was, at that point, capable of measurement and calculation as the difference of the price paid for the vehicle and what it was actually worth with its defect: at [34]. 10. Accordingly, the Tribunal found that the cause of action for a remedy arising from the supply of the vehicle first accrued in June 2013, more than three years before the date on which the application was lodged. Therefore, the Tribunal concluded it did not have jurisdiction to hear and determine the consumer's claim referable to this supply of the vehicle: at [37]. 11. The Tribunal then dealt with what it called the second limb of the consumer's claim, arising from services performed by Autosports following the sale. This was said to be in respect of the allegation that paint on the Autosports' engine bay was permanently damaged and irreversible to fix following attempt to remove oil and oil stains from the engine bay while fixing the oil leak problem: at [36]. 12. The Tribunal stated that the relevant guarantees are that services supplied in trade and commerce to a consumer will be rendered with due care and skill (s 60 of the ACL), and that services supplied to a consumer by a supplier will be reasonably fit for purpose (s 61 of the ACL): at [36]. 13. The Tribunal rejected this claim because it was unable to conclude on the balance of probabilities that the work performed by Autosports constituted services rendered by Autosports without due care and skill or constituted the performance of services not reasonably fit for purpose: at [39]. 14. The Tribunal noted that the cause of action accrued in March 2017 and therefore was less than three years prior to the lodgement of the application: at [40]. However, the Tribunal found there was no evidence produced by the consumer as to the costs of repair of the damage sustained in March 2017, nor as to what work would need to be undertaken by Autosports in order to rectify the damage if the Tribunal were considering making an order under s 79N(b) of the FTA. 15. Accordingly, the application was dismissed.

Consumer's Submissions 1. In view of the conclusion we have come to about the time bar issue concerning rejection of the goods and the consequences that flow from that conclusion to the outcome of this appeal, it is sufficient for us to make reference to what can be seen as the consumer's main ground of appeal. This is that arriving at its decision, the Tribunal at first instance erred in law in determining the time when the consumer's cause of action arising from rejection of the Audi first accrued. 2. The consumer contended that in light of the fact that she was unrepresented before the Tribunal which was considering dismissing the claim for being out of time, the Tribunal needed to identify and consider any relevant causes of action available to the consumer. She relied upon Upton v Martin & Stein Antiques Pty Ltd [2016] NSWCATAP 228 (Upton) at [34]. 3. The consumer submitted that the Tribunal should have considered various causes of actions or events and found the relevant dates such causes of action first accrued as set out in her summary document provided to the Appeal Panel as follows: Cause of action or Event Date cause of action accrued and ended where relevant Application filed 24 October 2019 79L FTA 3 years prior to date application is filed 23 October 2016 Damage to concrete floor Accrued between 2 June 2017 and 31 July 2017 Loss of use of vehicle Accrued on registration end date of 4 June 2019 or 16 October 2019 being the date the Expert determined the vehicle was not roadworthy. Failure of guarantee of acceptable quality and fitness for purpose s 54 and 55 ACL NSW Cannot be 3 May 2016 as first major failure issue was repaired. Second major failure on 17 March 2017 (timing chain tensioner) failure causing rattle. Third Major failure – 2 June 2017 related to both the first and second repairs. Position is these are continuing failures despite repeated attempts at repair and did not crystallise until apparent failure was not capable of remedy per s 259(3) ACL (NSW). Failure of guarantee of due care and skill and fitness for purpose for servicing ss 60-61 of ACL NSW First accrued 2 June 2017 as repair related directly to both first and second repairs Failure of guarantee of due care and skill and fitness for purpose for servicing ss 60-61 of ACL NSW First accrued 24 October 2017 Damages per s 236 ACL NSW for misleading or deceptive conduct, or false or misleading representations about goods First accrued at 17 March 2017 and continued for each repair to last repair of 31 May 2018 Action in tort for breach of Statutory duty of s 263(4) Of the first to fifth rejections provided by the Appellant the appellant says first accrued on 17 March 2017 Rejection Period Given continuing failure of ss 54-55 a reasonable time after nature and extent of the defect and costs of repair is known not yet ended as of today. Vehicle rejected. First oral rejection between 3 May 2016 and prior to 17 March 2017 No issue taken with this evidence during cross examination of Mr Nouredeen at hearing at first instance, nor is it raised in respondent's written submissions at first instance which were prepared with assistance of legal counsel. Second oral rejection about 17 March 2017 Third oral rejection about 2 June 2017 Fourth oral rejection about 4 June 2018 Fifth letter of rejection about 16 July 2018

1. The consumer contended that the Tribunal erred in finding that the consumer guarantees operate as implied terms in contract and that the cause of action accrues when the purchase is complete irrespective of the consumer's knowledge of any defect in the goods supplied. She cited in support Alameddine v Glenworth Valley Horse Riding Pty Ltd [2015] NSWCA 219 (Alameddine) at [77] and Valve Corporation v Australian Competition and Consumer Commission [2017] FCAFC 224 (Valve Corporation) at [106] for the proposition that the consumer guarantees do not operate as implied terms in contract. 2. The consumer submitted that each of the causes of action that were relevant to her claim first accrued when the consumer became aware or ought reasonably to have become aware of the relevant defect in the goods or services supplied. The consumer cited in support of when consumer claims first accrue for the purposes of s 79L of the FTA, Vecchio v GM Holden Limited [2018] NSWCATCCD 70 at [38]. In this regard, reference was made to s 54 where it refers in s 54(2) to ''a reasonable consumer fully acquainted with the state and condition of the goods (including any hidden defects of the goods), would regard as acceptable having regard to the matter in subsection (3)." 3. In respect of when a cause of action first accrues in a matter involving negligence including for the purpose of s 79L of the FTA, the consumer cited in support Roberts v Chan & Naylor Pty Ltd [2018] NSWCATAP 69 at [31] and [44]; McBride v Christie's Australia Pty Ltd [2014] NSWSC 1729 (McBride) at [227]-[228]. 4. The consumer submitted that when a cause of action pursuant to s 54 ACL first accrues requires an assessment of all the elements set out in s 54(2). The consumer submitted that s 263(4) of the ACL creates statutory duties imposed on suppliers as part of the regime to protect consumers. The consumer contended the first rejection of the vehicle and demand for a refund or replacement vehicle was between 3 May 2016 and prior to 17 March 2017. 5. The consumer submitted that the period for rejection does not expire until a reasonable time after the nature and extent of the defect and costs of repair is known. This would have to take into account whether it was reasonable for the consumer to be aware that the defect was a major failure not capable of repair. This would also have to take into account what the supplier was representing as to its ability to repair the vehicle. 6. The consumer claimed that the supplier here was making representations to suggest that the difficulties with the vehicle were not major failures and could be properly repaired. Accordingly, the oral rejection of the vehicle was within time and the cause of action for seeking a refund or replacement vehicle accrued on the date the supplier either by its silence or express representation refused to refund the price of the vehicle. This was said to be some time after the first oral rejection or later to take account of what the supplier was indicating to the consumer, and the consumer had 3 years after that date to issue a claim for return of the vehicle and a refund or new vehicle to be supplied. 7. For the above propositions the consumer relied on the decision of Vautin v BY Winddown Inc. (formerly Bertram Yachts) (No 4) [2018] FCA 426 (Vautin) at [256], [263] and [269].

Autosports' Submissions 1. Autosports essentially supported the decision at first instance for the reasons given by the Tribunal. Autosports submitted that the Tribunal identified the relevant causes of action in relation to the supply of the vehicle, being ss 54 and 55 of the ACL and cited in support the decision of Vecchio v GM Holden Ltd [2018] NSWCATCCD 70. Accordingly, the Tribunal was not required to consider causes of action in negligence or misleading and deceptive conduct. 2. Autosports also contended that the Tribunal identified the correct legal test for when the relevant claims under the ACL first accrued. It submitted that the consumer guarantees were implied terms of the contract and the causes of action accrues at the time of the sale which is when the goods are delivered, but not when the defect is discovered at a later date. 3. Autosports contended in the alternative that even if the legal test propounded by the consumer was correct, the consumer's evidence identified sufficient knowledge of the defects with the vehicle so as to mean the relevant causes of action accrued more than 3 years before the application was filed. In this regard, in particular, Autosports referred to the consumer's evidence that the first oil leak occurred in 2014 and that the consumer gave evidence that the engine had continual oil leaks which had not been repaired, including the fact that the engine had been removed and replaced on four occasions to rectify this, the first of these occasions being on 3 May 2016. 4. Autosports referred to the lengthy history of repairs being conducted to the vehicle more than 3 years prior to the date of lodgement of the application.

Consideration 1. This appeal raises a question of law, namely whether the Tribunal erred in identifying and applying the test as to when the consumer's causes of action first accrued, particularly in connection with the consumer purporting to reject the Audi and claim a refund. Accordingly, the consumer has a right of appeal on this ground and no leave to appeal is required: s 80(2)(b) Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). 2. Section 79L(1)(a) provides that the Tribunal does not have jurisdiction to hear and determine a consumer claim if, relevantly, the cause of action giving rise to the claim first accrued more than 3 years before the date on which the claim is lodged. This period may be different to the general limitation period applicable to the cause of action if pursued in proceedings in a court: see eg s 236(2) of the ACL. 3. Section 79L of the FTA was applicable because Part 6A of the FTA applies to consumer claims arising before and after the commencement of this Part: Sch 5 cl 26(1) FTA.

ACL consumer guarantees operate independently of contractual rights 1. The Tribunal found that the consumer guarantees operate as implied terms in contract. Therefore a cause of action accrues on breach, namely at the time the goods are supplied in a faulty state. In this regard the Tribunal accepted the evidence of the consumer's expert. 2. In Alameddine at [77] JC Campbell AJA said: Often, a parent or sibling will not have authority to act as the agent to a child in entering a contract that binds the child. Indeed, there are many occasions when services are supplied to a consumer under a contract to which that consumer is not a party, i.e. a third party beneficiary contract. In particular, it commonly happens that a person enters a contract for services to be supplied in trade or commerce to a friend or member of the family of the contracting party, and that the person to whom the services are provided is a "consumer" within the meaning of s 3 of the Australian Consumer Law. As well, services can sometimes be supplied to a consumer in trade or commerce when they are not supplied pursuant to any contract at all – for example, if a service provider gives a free trial of the services. Even in those circumstances, a "guarantee" can arise under s 60 or 61 Australian Consumer Law. If such "guarantee" arises, then, subject to some limitations, s 267 Australian Consumer Law can entitle the consumer to take action if the guarantee is not complied with. That shows that the "guarantee" is not a contractual obligation, but rather a statutorily imposed obligation, concerning which s 267 provides a statutory remedy. 1. In Valve Corporation, the Full Court of the Federal Court of Australia at [106] stated the following: It is apparent on the face of Div 1 of Pt 3.2 that it adopts the mechanism of providing that certain consumer guarantees apply to certain transactions, in contrast to the mechanism (adopted by the predecessor provisions) of implying terms into a contract. The consumer's guarantee provisions are therefore capable of application whether or not there is a contract. It is unnecessary to consider, for example, whether terms are too uncertain to constitute a contract into determining whether the guarantees apply. 1. It is clear from these decisions that the consumer guarantees impose obligations independent of any contract. Unlike the situation that applied under s 74 of the former Trade Practices Act, 1974 (Cth), which implied warranties into contracts for the supply of services, the consumer guarantees in question are independent statutory obligations which give rise to a statutory cause of action under s 259 of the ACL. 2. Accordingly, the Tribunal was wrong to regard the consumer guarantees it was considering under the ACL as implying terms into a contract for the purposes of ascertaining when the causes of action first accrued.

Tribunal's obligation to identify causes of action 1. The consumer's submission was that the causes of action put forward by her to the Appeal Panel ought to have been considered by the Tribunal at first instance and that the Tribunal was required to "identify any relevant causes of action available to [the consumer] at law". Reliance was placed on the decision of the Appeal Panel in Upton. There, the Appeal Panel stated at [34]: Bearing in mind that Ms Upton did not have legal representation, we consider that her application lodged on 23 October 2015 raised, as real issues, the causes of action set out below. In setting these out, we do not suggest that the Tribunal member needed to deal with each of them at any length. We recognise the burden placed upon a busy Tribunal member seeking to determine a case efficiently and quickly in the face of complexity of the law, despite the simplicity and size of the transaction in issue. However, given the prospect that Ms Upton's claim may fail for being commenced out of time, each of these causes of action and their associated time of accrual needed to be considered. 1. The Appeal Panel held at [35] that the Tribunal needed to consider the time the first accrual of the following causes of action for loss and damage, in respect of a claim for a specified sum pursuant to s 79E(1)(a) of the FTA: (1) In contract, for breach of the express guarantee contained in the invoice. (2) In contract, for breach of the terms implied by s 18 of the Sale of Goods Act (1897) (NSW) and s 40P of the FTA. (3) Under the now replaced sections of the FTA for damages under s 68 for contraventions of s 42 (misleading and deceptive conduct) and s 44(a) (false representation about quality or composition of goods) of the FTA. (4) In tort, for negligent misrepresentation. (5) In tort, for fraudulent misrepresentation. 1. This conclusion was reached in circumstances where the applicant in that case made alternative claims for damages "…for breach of contract, misrepresentation and deceit…": Upton at [27]. 2. In light of the conclusion we have reached that the whole matter should be remitted to the Tribunal for reconsideration, along with a direction as to the filing of points of claim by the consumer, it is not necessary for us to identify whether or not each of the causes of action put forward by the consumer to us needed to be considered by the Tribunal at first instance. 3. We do, however, make the observation that we very much doubt that the Tribunal needed to consider each and every one of the many causes of action put forward by the consumer to the Appeal Panel. In this regard, the Appeal Panel in Upton did not say that the Tribunal at first instance was required to identify all possible causes of action a party might have in connection with a consumer transaction. Rather, the Appeal Panel in that case (and the Tribunal at first instance) identified each of the causes of action about which claims were made for the purpose of considering when the particular cause of action accrued and the facts relevant to determining whether that claim was within time. The Appeal Panel then determined the Tribunal at first instance was incorrect in concluding the alleged defect was reasonably discoverable because the defect was latent and hence time had not commenced to run. The Appeal Panel referred to the decision of Bergin J in McBride. It did so by reference to the claims made by the appellant/applicant, not by a broader examination of possible claims that could be made. 4. It is for an applicant to identify the claims they wish to make and inform the other party and the Tribunal what these claims are. Having done so, it is for the respondent to raise any defence. Once each party has provided their evidence and any necessary hearing has been conducted in accordance with its obligations under relevant legislation, including ss 36 and 38 of the NCAT Act, it is the duty of the Tribunal to consider the evidence in the context of the claims made and adjudicate on those claims.

When does a cause of action accrue for breach of the consumer guarantees under the ACL and what jurisdiction does the Tribunal have to determine that claim? 1. The Tribunal's jurisdiction to hear a consumer claim is governed by s 79L of the FTA. Section 79L of the FTA provides: "79L Limitation periods (1) The Tribunal does not have jurisdiction to hear and determine a consumer claim if any of the following apply: (a) The cause of action giving rise to the claim first accrued more than 3 years before the date on which the claim is lodged; (b) The goods or services to which the claim relates were supplied (or if made in instalments, were last supplied) to the claimant more than 10 years before the date on which the claim is lodged. (2) Nothing in this section affects any period of limitation under the Limitation Act 1969." 1. In the present case the Tribunal dealt with alleged breaches of the guarantees in ss 54 (acceptable quality) and 55 (fitness for any disclosed purpose etc) of the ACL. In relation to goods being of acceptable quality, s54(2) provides: (2) Goods are of acceptable quality if they are as: (a) Fit for all the purposes for which goods of that kind are commonly supplied; and (b) Acceptable in appearance and finish; and (c) Free from defects; and (d) Safe; and (e) Durable; as a reasonable consumer fully acquainted with the state and condition of the goods (including any hidden defects of the goods), would regard as acceptable having regard to the matters in subsection (3). 1. In relation to goods being fit for a specific purpose, s 55(1) provides "there is a guarantee that the goods are reasonably fit for any disclosed purpose, and for any purpose for which the supplier represents that they are reasonably fit". 2. There are three potential causes of action under s 259 relevant to the facts of this appeal arising from breaches of these guarantees. 3. First, if the failure to comply with a guarantee can be remedied and is not a major failure, and the supplier fails or refuses to remedy the matter within a reasonable time the consumer may "by action against the supplier, recover all reasonable costs incurred by the consumer in having the failure so remedied": ACL s 259(2)(b)(i). 4. Second, if the failure to comply with the guarantee cannot be remedied or is a major failure, the consumer may "by action against the supplier, recover compensation for any reduction in the value of the goods below the price paid or payable by the consumer for the goods": ACL s 259(3)(b). 5. Third, if there is: 1. a failure which a supplier refuses to remedy or which is not remedied in a reasonable time; 2. a failure which is not a major failure which cannot be rectified; or 3. a failure is a major failure, subject to s 262 a consumer may "notify the supplier that the consumer rejects the goods and of the ground or grounds for the rejection": ACL subs s 259(2)(b)(ii) and s 259(3)(b). In this case, the consumer must return the goods subject to some exceptions (s263(2)) and "property in those goods reinvest in the supplier on the notification of the rejection" (s 263(6)). 1. In addition, at the election of the consumer, pursuant to s 263(4) the supplier must: 1. refund "any money paid by the consumer for the goods and an amount that is equal to the value of any other consideration provided by the consumer for the goods"; or 2. replace the rejected goods with goods of the same type and of similar value, if such goods are reasonably available to the supplier. 1. In relation to any loss or damage accruing by reason of the failure of a supplier to make good its obligations under s 263(4) of the ACL by refunding any money paid, s 259(4) would then permit a recovery action by the consumer against the supplier. This subsection provides: The consumer may, by action against the supplier, recover damages for any loss or damage suffered by the consumer because of the failure to comply with the guarantee if it was reasonably foreseeable that the consumer would suffer such loss or damage as a result of such a failure. 1. The terms "cause of action" and "accrues" are not defined in the FT Act. However, the meaning is the same as applicable to proceedings in court. In Sacks v Hammond [2016] NSWCATAP 225 (Sacks) at [32] to [73], when considering the construction to be given to an equivalent provision to s 79L contained in s 7 of the then Consumer Claims Act 1998 (NSW) (repealed), the Tribunal said that the term "cause of action" refers to the elements necessary to give rise to the right of action (at [32]). It cited the comments of Wilson J in Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234 at [245]: "[T]he concept of a 'cause of action' is seen to be clear. It is simply the fact or combination of facts that give rise to a right to sue. In an action for negligence it consists of the wrongful act or omission and the consequent damage … Knowledge of the legal implications of the known facts is not an additional fact which forms part of the cause of action." 1. The statutory cause of action for damages under subs 259(3)(b) and (4) are similar to a claim for damages in respect of misleading and deceptive conduct. In this regard in Wardley Australia Ltd v Western Australia [1992] HCA 55; (1992) 175 CLR 514 (Wardley), the plurality of the High Court (Mason CJ, Dawson, Gaudron and McHugh JJ) held that a cause of action does not accrue until loss and damage arising from the contravention is sustained. At 525 their Honours said (footnotes omitted): The statutory provisions By virtue of s.82(2) of the Act, the period of limitation begins to run at the time when the cause of action under s.82(1) accrues. As loss or damage is the gist of the statutory cause of action for which s.82(1) provides, the cause of action does not accrue until actual loss or damage is sustained. The statutory cause of action arises when the plaintiff suffers loss or damage "by" contravening conduct of another person. "By" is a curious word to use. One might have expected "by means of", "by reason of", "in consequence of" or "as a result of". But the word clearly expresses the notion of causation without defining or elucidating it. In this situation, s.82(1) should be understood as taking up the common law practical or common-sense concept of causation recently discussed by this Court in March v. Stramare (E and M. H.) Pty. Ltd., except in so far as that concept is modified or supplemented expressly or impliedly by the provisions of the Act. Had Parliament intended to say something else, it would have been natural and easy to have said so. In the context of the Act, the concept of loss or damage, like the concept of causation, must be applied in a wide variety of situations because the contraventions of Pts IV and V which give rise to causes of action under s.82(1) are diverse. 1. This view was accepted by the Appeal Panel in Sacks when considering an action under s 267 of the ACL. There, the Appeal Panel said at [56]: A cause of action under s 267(4) of the ACL NSW has two discrete elements: a failure to comply with a guarantee under Subdivs of Div 1 of Pt 3-2 of the ACL NSW (to which s 60 belongs) and suffering loss or damage as a result of such failure. It follows that the cause of action under s 267(4) does not accrue until loss or damage is sustained as a result of the alleged failure to comply: Wardley at 521; Arcadi v Colonial Mutual Life Assurance Society Ltd (1984) ATPR 40-473 at 45455 (Arcadia) and King v Yurisich [2006] FCAFC 136 at [55]-[61]. 1. Whilst the Appeal Panel was considering a breach of a consumer guarantee under s 60 of the ACL, the principles are equally applicable to an allegation of a breach of the statutory guarantees under ss 54 and 55 of the ACL and a claim made under s 259 of the ACL. 2. Further, in Wardley, the plurality said at 526: The measure of damages recoverable under s.82(1) can only be fully ascertained after a thorough analysis of those provisions in Pts IV and V of the Act for contravention of which the statutory cause of action may be maintained. 1. That is, the nature of the contravention and damages sought may also affect the time when the cause of action accrues. 2. When a cause of action arises requires relevant findings of fact. The Tribunal failed to make such findings because of its erroneous view of when the cause of action accrued. It also failed to have proper regard to the nature of the failure and whether the goods were rejected in the "rejection period" as prescribed by the ACL. Consequently, the failure of the Tribunal to consider the correct legal test in respect of whether or not the consumer's claim in question was brought within time constitutes an error of law. 3. In this regard, we note that at the heart of the consumer's claim before the Tribunal is a claim for a refund or the supply of a replacement new vehicle. As stated above, the right to reject goods and seek a refund is governed by ss 259, 260 and 262 of the ACL. Section 259 says: "259 Action against suppliers of goods (1) A consumer may take action under this section if: (a) a person (the supplier ) supplies, in trade or commerce, goods to the consumer; and (b) a guarantee that applies to the supply under Subdivision A of Division 1 of Part 3-2 (other than sections 58 and 59(1)) is not complied with. (2) If the failure to comply with the guarantee can be remedied and is not a major failure: (a) the consumer may require the supplier to remedy the failure within a reasonable time; or (b) if such a requirement is made of the supplier but the supplier refuses or fails to comply with the requirement, or fails to comply with the requirement within a reasonable time--the consumer may: (i) otherwise have the failure remedied and, by action against the supplier, recover all reasonable costs incurred by the consumer in having the failure so remedied; or (ii) subject to section 262, notify the supplier that the consumer rejects the goods and of the ground or grounds for the rejection. (3) If the failure to comply with the guarantee cannot be remedied or is a major failure, the consumer may: (a) subject to section 262, notify the supplier that the consumer rejects the goods and of the ground or grounds for the rejection; or (b) by action against the supplier, recover compensation for any reduction in the value of the goods below the price paid or payable by the consumer for the goods. (4) The consumer may, by action against the supplier, recover damages for any loss or damage suffered by the consumer because of the failure to comply with the guarantee if it was reasonably foreseeable that the consumer would suffer such loss or damage as a result of such a failure. (5) Subsection (4) does not apply if the failure to comply with the guarantee occurred only because of a cause independent of human control that occurred after the goods left the control of the supplier. (6) To avoid doubt, subsection (4) applies in addition to subsections (2) and (3). (7) The consumer may take action under this section whether or not the goods are in their original packaging. 1. Section 260 says: 260 When a failure to comply with a guarantee is a major failure A failure to comply with a guarantee referred to in section 259(1)(b) that applies to a supply of goods is a major failure if: (a) the goods would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of the failure; or (b) the goods depart in one or more significant respects: (i) if they were supplied by description--from that description; or (ii) if they were supplied by reference to a sample or demonstration model--from that sample or demonstration model; or (c) the goods are substantially unfit for a purpose for which goods of the same kind are commonly supplied and they cannot, easily and within a reasonable time, be remedied to make them fit for such a purpose; or (d) the goods are unfit for a disclosed purpose that was made known to: (i) the supplier of the goods; or (ii) a person by whom any prior negotiations or arrangements in relation to the acquisition of the goods were conducted or made; and they cannot, easily and within a reasonable time, be remedied to make them fit for such a purpose; or (e) the goods are not of acceptable quality because they are unsafe." 1. As can be seen from the above sections, the right to reject the goods and seek a refund arises where there is a failure to comply with the consumer guarantee which is a major failure within the meaning of s 260. 2. It is upon notice of rejection being served that the supplier must refund the money paid and any other amount "equal to the value of any other consideration … provided for the goods" or replace the rejected goods, depending on the election made by the consumer: s 263(4). Upon service of the notice, property in the goods reverts to the supplier: s 263(6). Thereafter an action under s 259(4) may be commenced as it is at this point in time when the loss is suffered. 3. This is different to an action to recover compensation for any reduction in value under s 259(3)(b) which does not require notice of rejection of the goods to be given to the supplier. An action under s 259(3)(b) arises upon a breach of the guarantee which constitutes a major failure and the suffering of relevant damage. 4. In Cairns v AHG Newcastle Pty Ltd [2020] NSWCATAP 103 the Appeal Panel considered the right of a consumer to reject a motor vehicle for failure to comply with the guarantee under section 54 of the ACL. It stated the matters required to be proven as follows (at [32]): This analysis indicates that the facts which Mr Cairns had to prove to succeed in his claim against AHG were that: 1. he was a consumer; 2. AHG supplied, in trade or commerce, the vehicle to him; 3. the guarantee of acceptable quality in relation to the vehicle under section 54 of the ACL was not complied with; 4. the failure to comply with the guarantee could not be remedied or was a "major failure" within the meaning of section 260 of the ACL; 5. a notification by Mr Cairns to AHG that he rejected the vehicle and of the ground or grounds of the rejection, subject to section 262 ACL which required, among other things, that the notification be within the rejection period. 1. The Appeal Panel dealt with the question of the time limitation under s 79L of the FTA as follows: 40. The gearbox noise led to Mr Cairns returning the vehicle to AHG in December 2015 for repairs. At that time Mr Cairns notified AHG that he rejected the vehicle but that rejection was not accepted by AHG, which proceeded to repair the vehicle. 41. The Tribunal did not make a finding as to whether the gearbox noise meant that the guarantee of acceptable quality under section 54 of the ACL had not been complied with, nor, if so, whether it was a major failure to comply with that guarantee. However, even assuming that it did amount to a major failure to comply with the guarantee of acceptable quality under section 54, Mr Cairns notified AHG that he rejected the vehicle on those grounds in December 2015, which was more than three years before he lodged his claim on the Tribunal. 42. Even assuming all the necessary facts in Mr Cairns' favour, all of the facts supporting Mr Cairns' claim to reject and return the vehicle on the basis of a breach of the guarantee of acceptable quality in section 54 of the ACL occurred more than three years before Mr Cairns lodged his claim in the Tribunal. Accordingly, the cause of action giving rise to Mr Cairns' claim to reject the motor vehicle arose more than three years before he lodged his claim. The Tribunal was therefore prevented from hearing and determining that claim under section 79L of the FTA. This is consistent with the Tribunal Member's conclusion on this issue. 1. Accordingly, the consumer needs to establish at least she has notified Autosports that she rejects the goods and of the ground or grounds for the rejection. In this regard the entitlement to give notice is only within the rejection period: s 262(2) of the ACL. 2. Then, in order to comply with the time limitation under s 79L of the FTA, the consumer's claim to reject the vehicle on the basis of a breach of a guarantee of acceptable quality under s 54 of the ACL must have not occurred more than three years before the consumer lodged her claim in the Tribunal. 3. Relevantly, s 262 provides: 262 When consumers are not entitled to reject goods (1) A consumer is not entitled, under section 259, to notify a supplier of goods that the consumer rejects the goods if: (a) the rejection period for the goods has ended; or (2) The rejection period for goods is the period from the time of the supply of the goods to the consumer within which it would be reasonable to expect the relevant failure to comply with a guarantee referred to in section 259(1)(b) to become apparent having regard to: (a) the type of goods; and (b) the use to which a consumer is likely to put them; and (c) the length of time for which it is reasonable for them to be used; and (d) the amount of use to which it is reasonable for them to be put before such a failure becomes apparent. 1. In respect of the above somewhat complicated provisions, the consumer relied upon the Federal Court decision of Vautin. In that decision, Derrington J said: "254. Section 262 provides limitations upon the entitlement of the consumer to reject goods. Relevantly for present purposes, a consumer is not entitled to reject the goods where the "rejection period" has ended or they have been attached to or incorporated in any real or personal property and they cannot be detached or isolated without damage. The "rejection period" is obscurely defined in s 262(2) as being "the period from the time of the supply of the goods within which it would be reasonable to expect the relevant failure to comply with the guarantee referred to in s 259(1)(b) to become apparent.'' … 256. It must be kept steadily in mind that the "relevant failure" referred to in the definition of "rejection period" is not solely the existence or manifestation of the defect in the goods. The failure is the failure of the goods to comply with the statutory guarantee. Whilst in many cases the existence of an apparent defect will have the consequence that it can be easily discerned that a guarantee has not been complied with, that will not always be the case. A good may contain some form of defect although it may not render it unfit for any disclosed purpose. Further, whilst the consequences of a defect in goods may become manifest, it may not be immediately apparent that the manifestation is of a defect as opposed to some other issue. It may take some time before a consumer might be able to ascertain that the cause of a problem with the goods is the failure of a supplier to comply with a statutory guarantee. … 263. It must also be remembered that, in relation to the non-compliance with the requirements of s 54, the issue of non-compliance concerns the state of the goods at the time of supply. It does not concern the state of the goods at some later time when the defect manifests itself. Therefore, where a latent defect results in the manifestation of a deficiency in the goods at some subsequent date, one element in it becoming apparent that the guarantee in s 54 was not complied with is knowledge that the defect, which was latent in the goods at the time of the supply, was causative of the manifested deficiency. That is particularly relevant in the circumstances of the present case. … 269. It might have been argued that the rejection period ends under s 262 once it is reasonable to expect that the relevant failure can be seen to be a "major failure" within s 260. On such a construction, at that time the consumer will be aware that the defect is serious and they would be entitled to return the goods. However, such a construction tends to confine the rights of consumers and it is not consistent with Nesbit v Porter. Even where a consumer has become aware of the existence of a major failure and the right of rejection, they are still entitled to ascertain the nature and extent of the defect and how much it will cost to repair, before being put to an election.…" 1. In Nesbit v Porter [2000] NZCA 288; [2000] 2 NZLR 465; (2000), when considering ss 18(3) and 20 of the Consumer Guarantees Act 1993 (New Zealand) (which is in similar terms to s 259(3) and s 262(2) of the ACL - the New Zealand Act using the word "defect" rather than "failure to comply" and "substantial" rather than "major failure") the New Zealand Court of Appeal said at [32] and following: [32] The next question is whether, upon the same assumptions made by the High Court about the existence of a breach of guarantee giving rise to a right of rejection, the Nesbits lost their right to reject the Navara because, in terms of s20, they did not exercise it within a "reasonable time", namely " a period from the date of supply of the goods in which it would be reasonable to expect the defect to become apparent" having regard to the matters listed in (a) to (d) of subs (2). [33] A "defect" is not defined generally for the purposes of the Act but s7(5) uses the term as meaning, for the purposes of that section "any failure of the goods to comply with the guarantee of acceptable quality" and that definition is appropriate to the use of the word in s20(2). … [35] Section 20(2) speaks of the defect, meaning the defect actually encountered by the consumer whose right of rejection is under consideration. The period must be reasonable in relation to the particular defect or combination of defects causing the buyer to reject the goods. Within what time would it be reasonable to expect such defect(s) to become apparent? The actual experience of the particular consumer is obviously relevant but the section requires that reasonableness is to be tested against certain objective criteria. Para (a) refers not to the particular article which was supplied but to the type of goods. Para (b) requires consideration of the use to which a consumer (not the actual buyer) is likely to put them, that is, that type of goods, and paras (c) and (d) require regard respectively to the length of time for which it is reasonable for that type of goods to be used and the amount of use to which it is reasonable for that type of goods to be put before the defect becomes apparent. So the Nesbit's actual use of the Navara has for this purpose to be considered against the use to be expected from a notional consumer of that type of vehicle. [36] In many, if not most, cases the period will be longer for new goods, which a buyer is entitled to expect to be defect free when first used, than it will be for second-hand goods of the same type. As a general rule, the older the goods, the shorter is likely to be the reasonable time. The period may also be longer if the goods are likely to be used infrequently or only at a particular time of year. For example, one would not expect any defect in skis purchased during summer to become apparent until the next winter. [37] Another factor which will influence the period to be allowed for exercise of the right of rejection is whether regular inspections of the goods for defects are customary or, as in the case of motor vehicles, required by law. But for defects which cannot be expected to be revealed by such inspections the reasonable time may be longer. ... [39] It is nonetheless to be noted that s21(a), in prescribing the test of whether a failure to comply with a guarantee is of a substantial character for the purposes of s18(3), says that the test is whether the goods "would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of the failure". A reasonable time under s20 must accordingly be one which suffices to enable the consumer to become fully acquainted with the nature of the defect, which, where the cause of a breakage or malfunction is not apparent the consumer can be expected to do by taking the goods to someone, usually and preferably the supplier, for inspection. In this context, therefore, a defect is not "apparent" until its cause has been identified and the buyer knows what has to be done to fix it, and what that will cost; in other words, until the buyer is in a position to determine whether the defect is substantial. [40] In some instances the defect will be of a kind where it may be obvious that something is wrong with the goods but the supplier or someone else to whom the consumer turns for help may be in doubt about the exact nature of the problem and thus about how serious it is. For example, the operation of a motor vehicle may be affected by the failure of a small and comparatively obscure part, say, a waver spring in an automatic transmission; until the transmission is dismantled a mechanic cannot be sure what the defect is. Or the cause of malfunction, particularly one which occurs intermittently, may be hard to detect even upon inspection. It may be necessary to carry out a series of tests or even to wait and see what, if anything, develops. Or the repairer may think the fault has been identified and that the correct repair or adjustment has been made but this view may prove to be wrong and the problem may manifest itself again. An example is to be found in the judgment of the District Court at Auckland in Cooper v Ashley & Johnson Motors Ltd [1997] DCR 170. In all such cases, a reasonable period will not elapse before the consumer has had the opportunity to become properly informed about the nature of the defect and has also had a little time then to consider an appropriate decision, whether or not to reject the goods. It almost goes without saying that the period will be correspondingly longer where the supplier has taken steps which effectively conceal a defect or has withheld relevant information. [41] In considering what is a reasonable period in a particular case it is necessary also to bear in mind the practical utility to a consumer of the right of rejection given by s18 of the Act. Ms Nield submitted persuasively that, although a right to damages survives the loss of the right to reject, in pursuing it the consumer may face substantial litigation costs where the claim is for a sum exceeding the jurisdiction of the Disputes Tribunal (now $7500, or $12,000 by agreement of both parties). Replacement (under s19(1)(b)) or repair by or at the cost of the supplier or rejection of the goods, where that is available in terms of s18, are more "user friendly" solutions to a consumer's problem with goods, although of course it may still prove to be necessary to litigate in order to recover all or part of the price. [42] Against this, however, the Court should not lose sight of the burden which may be imposed upon a supplier by a lengthy delay in rejecting the goods during a time when their value is likely to depreciate, particularly where depreciation is increased by further usage, as it is for motor vehicles.. 1. From these cases it can be seen the following matters are relevant considerations in determining the rejection period for a major failure and when it has ended: 1. The rejection period commences at the time of supply; 2. The rejection period ends when it would be reasonable for the defect to become reasonably apparent; 3. The period of time must be reasonable having regard to the defect or defects. The test is objective but the actual experience of the consumer is relevant; 4. In determining the time in which a failure to comply becomes reasonably apparent regard must be had to the factors in s 262(2)(a)-(d) of the ACL; 5. Matters affecting the length of the period and when a major failure may become reasonably apparent include: 1. Whether the good are old or new. In the case of new goods it will usually be longer period; 2. Whether the goods are regularly inspected, whether an inspection process is customary and, if so, whether such inspections would be expected to reveal the failure; 3. Whether a reasonable consumer fully acquainted with the state and condition of the goods, would know the cause of the defect, what needed to be done to fix it and the cost of doing so; 4. Whether the supplier or repairer had identified a fault and carried out a repair which the consumer understood would rectify the fault; 5. Whether any subsequent testing or period of use was necessary and/or elapsed following any repair to see if it was successful; 6. Whether a failure, or a series of failures in combination with each other, might render the goods unfit or otherwise lead a reasonable consumer to conclude they would not have acquired the goods; 7. Whether a reasonable time has elapsed following the consumer becoming fully acquainted with the failure to make a decision about whether to reject the goods. 1. It can readily be seen in the present case that the question of whether or not the Tribunal has jurisdiction involves complex issues of fact. It is alleged that the consumer purported to orally reject the goods between 3 May 2016 and prior to 17 March 2017. This period straddles the date which is three years before the filing of the application, namely 23 October 2016. A finding as to when this occurred may be relevant to the question of when the relevant cause of action for rejection first accrued and whether the rejection occurred within the "rejection period" as defined in s 262(2) of the ACL. In part, this is because of the nature of each defect, the fact there were different defects and the fact repairs were carried out over time in respect of each defect. 2. It was contended before us that there was no cross-examination of the consumer or her partner about various of these matters. As Autosports bears the onus of establishing whether or not a limitation period has expired or not, it could be argued that Autosports did not establish that the rejection occurred more than three years prior to the date of lodgement of the consumer's application with the Tribunal. 3. A consideration of these matters also affects the question of whether the rejection of the vehicle was made within the "rejection period". The consumer contended that her right of rejection had not expired at the point of the first oral rejection because account needs to be taken of the matters set out above. Under section 259(3), the right of a consumer to reject the goods is subject to s 262. As stated above, the consumer has no entitlement if the rejection period has ended. While unnecessary to decide in the present circumstances, having regard to the language of s 259(3), it seems to us that the consumer would need to prove both the fact that notice rejecting the good was given to the supplier and that this occurred in the rejection period. 4. The consumer submitted in this appeal that: 1. the vehicle was repaired on 3 May 2016 for an oil leak although apparently there had been oil leaks on earlier occasions; 2. the vehicle suffered a different failure, being the timing chain tensioner, in March 2017, which was also repaired; and 3. a third failure occurred in June 2017 when matters related to the first and second repairs required further repair. 1. While the Tribunal accepted the evidence of the consumer's expert (Mr Marston) that there was an "ongoing major defect" in 2019, the Tribunal did not determine when this would first have been reasonably apparent to the consumer. 2. Given the absence of any relevant findings of fact, the complexities involved in such fact finding and the absence of cross-examination on relevant issues, we are of the view that justice is best served by remitting the whole matter to the Tribunal for reconsideration along with directions for the filing of points of claim and points of defence. That way the parties, each with legal representation, may provide a succinct statement of the claims made by the consumer and the response of Autosports.

Costs 1. While the usual order in relation to costs in the Tribunal is that unless special circumstances are established the parties pay their own costs (s 60(1) of the NCAT Act), r 38 of the Civil and Administrative Tribunal Rules 2014 modifies the application of s 60 such that in proceedings before the Consumer and Commercial Division, the Tribunal may award costs in the absence of special circumstances if the amount claimed or in dispute in the proceedings is more than $30,000. Further, r 38A modifies the position in respect of appeals by directing that the Appeal Panel must apply the first instant costs provisions when deciding whether to award costs in relation to the internal appeal. 2. It is clear that the amount claimed or in dispute in the appeal proceedings is more than $30,000, and hence costs may be awarded in the absence of special circumstances being shown. We note that whilst we have a broad discretion in respect of the making of a costs order, the starting point in exercising such discretion is that the "usual order for costs" is that a successful party should be entitled to an order for costs in their favour: Thompson v Chapman [2016] NSWCATAP 6 at [69]; Latoudis v Casey (1990) 170 CLR 534 per Mason CJ at 554. 3. Our present view is that the consumer has been successful in the appeal in relation to the limited issue of when the cause of action accrues. However, having regard to our reasons above, we are not in a position to finally dispose of this appeal in a manner contended for by the consumer, namely by making an award of money in her favour. The disposition of the consumer's claim requires a determination of various factual matters which we are unable to do in the present circumstances. 4. If these matters are resolved against the appellant, ultimately her challenge to the dismissal of her application will fail. On the other hand, if, on the rehearing, she is successful in proving the various matters to which we have referred, she may be entitled to a monetary award in her favour. 5. Having regard to the above, our preliminary view is that the appellant should have an order for costs in her favour but that those costs should be her costs in the cause. By that we mean that, if the appellant is successful in the proceedings on remittal, she should also be entitled to recover her costs of this appeal. If she is unsuccessful on remittal, her costs of this appeal will not be recoverable from the respondent. Either way, the respondent will not be entitled to its cost of this appeal in any event. 6. Accordingly, we will make an order for the appellant's costs of this appeal to be her costs in the cause in the proceedings on remittal. 7. If any party wishes to make submissions that some other costs order should apply, we will make directions to provide for this.

ORDERS 1. The orders of the Tribunal will be as follows: 1. The appeal is allowed and the order of the Tribunal made 31 January 2020 in application MV 19/47867 is set aside. 2. The whole of the proceedings are remitted to the Tribunal, differently constituted, for reconsideration in accordance with these reasons and the law. 3. In respect of the remitted proceedings, the following directions are made: 1. Within 14 days from the date of these orders, the applicant (Barbour) is to file and serve points of claim setting out: 1. the facts relied upon; 2. by reference to those facts, the cause or causes of action asserted; 3. in respect of each cause of action, the order or orders sought. 1. Within 28 days from the date of these orders, the respondent (Autosports) is to file and serve points of defence. 2. The application is to be listed for directions within 35 days after the date of these orders for the purpose of making directions including for any further evidence and submissions and to fix a hearing date. 1. The appellant's costs of this appeal are to be the applicant's costs in the cause in the proceedings on remittal. 2. The Appeal Panel makes the following further directions: 1. If any party wishes to contend for a different costs order (Costs Applicant), they must do so within 14 days of these orders and file submissions as to the costs order she or it seeks, including submissions as to whether or not a hearing on the question of costs should be dispensed with pursuant to s 50(2) of the NCAT Act. 2. The respondent to such costs application is to file submissions in response within 14 days thereafter, including as to whether or not the hearing should be dispensed with pursuant to s 50(2) of the NCAT Act. 3. The Costs Applicant is to file submissions in reply within 7 days thereafter. 4. Upon making of any costs application pursuant to this direction, order 4 shall cease to have effect.

********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 July 2020