LSH Auto (Sydney) Pty Ltd v Sherman [2020] NSWCATAP 246

LSH Auto (Sydney) Pty Ltd v Sherman [2020] NSWCATAP 246

The Tribunal erred by not making a specific finding that the vehicle was 'unsafe' as required for a major failure under s 260(e) of the Australian Consumer Law. The reasons recorded only 'issues of safety', which is insufficient. On this error of law, the appeal will be dealt with by way of a new hearing where possible alternate avenues of rejection will be considered.

Jurisdiction
Australia
Judgment Date
23 November 2020
Procedural Posture
Consumer Claim Appeal / Orders Following Appeal – New Hearing Directed
Outcome
Appeal to be dealt with by way of a new hearing
Legal Topics
['australian Consumer Law' 'consumer Guarantees' 'acceptable Quality' 'statutory Interpretation' 'major Failure' 'right to Reject Goods' 'joinder of Parties' 'tribunal Procedure']
['consumer Law'] ['australian Consumer Law' 'consumer Guarantees' 'acceptable Quality' 'statutory Interpretation' 'major Failure' 'right to Reject Goods' 'joinder of Parties' 'tribunal Procedure']

Case Brief

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Procedural Posture

Consumer Claim Appeal / Orders Following Appeal – New Hearing Directed

Legal Issues

  1. 1 ['Whether Tribunal erred in not allowing joinder of the Distributor in renewal proceedings' "Whether faults in vehicle constituted 'major failure' under the Australian Consumer Law" "Whether vehicle was 'unsafe' within meaning of s 260(e) ACL" 'Whether respondent precluded from rejecting vehicle under s 262 ACL due to subsequent damage']

Ratio Decidendi

The Tribunal erred by not making a specific finding that the vehicle was 'unsafe' as required for a major failure under s 260(e) of the Australian Consumer Law. The reasons recorded only 'issues of safety', which is insufficient. On this error of law, the appeal will be dealt with by way of a new hearing where possible alternate avenues of rejection will be considered.

Court Disposition

Appeal to be dealt with by way of a new hearing

Orders

  • ['The appeal is to be dealt with by way of a new hearing.' 'The respondent has leave to lodge and serve submissions and any new evidence by statutory declaration by 11 December 2020.' 'The appellant has leave to lodge and serve submissions and any new evidence by statutory declaration by 13 January 2021.' 'The new...