Drivas v Burrows [2014] NSWCATAP 87

Drivas v Burrows [2014] NSWCATAP 87

The short delay in lodging the Notice of Appeal should be excused if an extension was necessary, but the appeal failed. The alleged loss of the Purchaser's right to reject raised no question of law and was a new point not raised below, for which evidence could have been given about the period in which the rust should reasonably have become apparent. Leave on the evidence, wrong-party and refund grounds was refused because the Sellers did not establish the statutory conditions for leave: the IVIC report provided a sufficient evidentiary basis for the first instance decision; the alleged new expert material and repair quotes were not shown to have been unavailable at first instance; there...

Jurisdiction
Australia
Judgment Date
18 November 2014
Procedural Posture
Consumer Claim Concerning Refund of Purchase Price for a Second Hand Toyota Hilux; Appeal / Appeal Panel Determination of Application for Extension of Time, Leave to Appeal and Appeal From Tribunal Decision Dated 9 July 2014
Outcome
Extension of time granted if necessary; leave to appeal on grounds 2, 3 and 4 refused; appeal otherwise dismissed.
Legal Topics
['australian Consumer Law Consumer Guarantees' 'rejection of Goods' 'major Failure' 'extension of Time to Appeal' 'leave to Appeal' 'new Points on Appeal' 'new Evidence on Appeal' 'correct Identification of Seller']
['consumer Law' 'civil Procedure' 'civil and Administrative Tribunal Appeals'] ['australian Consumer Law Consumer Guarantees' 'rejection of Goods' 'major Failure' 'extension of Time to Appeal' 'leave to Appeal' 'new Points on Appeal' 'new Evidence on Appeal' 'correct Identification of Seller']

Case Brief

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Procedural Posture

Consumer Claim Concerning Refund of Purchase Price for a Second Hand Toyota Hilux; Appeal / Appeal Panel Determination of Application for Extension of Time, Leave to Appeal and Appeal From Tribunal Decision Dated 9 July 2014

Legal Issues

  1. 1 ['Whether an extension of time should be granted for lodgement of the Notice of Appeal.' 'Whether the Purchaser had lost the right to reject the vehicle under s 262 of the Australian Consumer Law.' "Whether the Tribunal's decision was unjust, unfair and equitable, or against the weight of the evidence." 'Whether leave should be granted to raise the contention that the wrong party was sued and that Dridel Pty Ltd was the seller.' "Whether the Tribunal erred in ordering a full refund despite the Purchaser's use of the vehicle and alleged post-sale damage."]

Ratio Decidendi

The short delay in lodging the Notice of Appeal should be excused if an extension was necessary, but the appeal failed. The alleged loss of the Purchaser's right to reject raised no question of law and was a new point not raised below, for which evidence could have been given about the period in which the rust should reasonably have become apparent. Leave on the evidence, wrong-party and refund grounds was refused because the Sellers did not establish the statutory conditions for leave: the IVIC report provided a sufficient evidentiary basis for the first instance decision; the alleged new expert material and repair quotes were not shown to have been unavailable at first instance; there...

Court Disposition

Extension of time granted if necessary; leave to appeal on grounds 2, 3 and 4 refused; appeal otherwise dismissed.

Orders

  • ['An extension of time to 13 April 2014 be granted for the lodging of the Notice of Appeal, if such extension be necessary.' 'Leave to appeal on grounds 2, 3 and 4 of the Ground of Appeal be refused.' 'Otherwise, the appeal be dismissed.']