Sowter v Heartland Penrith Pty Ltd and General Motors Holden NSC Pty Ltd [2021] NSWCATCD 55

Sowter v Heartland Penrith Pty Ltd and General Motors Holden NSC Pty Ltd [2021] NSWCATCD 55

The application was dismissed because the applicant did not discharge the onus of proving, on the balance of probabilities, that the vehicle had unacceptable marks or ripples at purchase, that its brakes were faulty or unsafe, that it was incapable of towing within specifications, or that any failure existed or amounted to a major failure. The Tribunal was not satisfied that a particular towing purpose was disclosed at purchase, and the evidence showed reported concerns could not be reproduced, precautionary repairs were performed under warranty, and the Fair Trading inspection did not attribute defects to the respondents.

Jurisdiction
Australia
Judgment Date
06 January 2021
Procedural Posture
Consumer Claim Concerning Supply of a Motor Vehicle and Alleged Breach of Australian Consumer Law Consumer Guarantees / Principal Judgment After Hearing
Outcome
Application dismissed.
Legal Topics
['australian Consumer Law (nsw)' 'action Against Manufacturer' 'action Against Supplier' 'supply of Goods' 'guarantee as to Acceptable Quality' 'fitness for Disclosed Purpose' 'major Failure']
['consumer Law' 'motor Vehicles'] ['australian Consumer Law (nsw)' 'action Against Manufacturer' 'action Against Supplier' 'supply of Goods' 'guarantee as to Acceptable Quality' 'fitness for Disclosed Purpose' 'major Failure']

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Procedural Posture

Consumer Claim Concerning Supply of a Motor Vehicle and Alleged Breach of Australian Consumer Law Consumer Guarantees / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether the Holden Colorado supplied to the applicant failed to comply with the guarantee of acceptable quality under section 54 of the Australian Consumer Law.' 'Whether the applicant disclosed a particular purpose of towing a 26-foot caravan and whether the vehicle failed to comply with the guarantee of fitness for that purpose under section 55 of the Australian Consumer Law.' 'Whether any defect or failure amounted to a major failure entitling the applicant to reject the vehicle and obtain a refund or replacement.' 'Whether the applicant discharged the onus of proving alleged defects, including brake faults and unacceptable body rippling.']

Ratio Decidendi

The application was dismissed because the applicant did not discharge the onus of proving, on the balance of probabilities, that the vehicle had unacceptable marks or ripples at purchase, that its brakes were faulty or unsafe, that it was incapable of towing within specifications, or that any failure existed or amounted to a major failure. The Tribunal was not satisfied that a particular towing purpose was disclosed at purchase, and the evidence showed reported concerns could not be reproduced, precautionary repairs were performed under warranty, and the Fair Trading inspection did not attribute defects to the respondents.

Court Disposition

Application dismissed.

Orders

  • ['The application is dismissed.']