LSH Auto (Sydney) Pty Ltd v Sherman (No 2) [2021] NSWCATAP 272

LSH Auto (Sydney) Pty Ltd v Sherman (No 2) [2021] NSWCATAP 272

Mr Sherman did not prove, on the balance of probabilities, that the perceived failures in the proximity sensor and speed advisory systems were beyond those arising from inherent design limitations, or that any remediable fault existed. The objective evidence (including expert and diagnostic reports) demonstrated the systems performed within their inherent limits; therefore, the vehicle was of acceptable quality for the purposes of s 54(2) of the ACL (NSW), and LSH did not fail to comply with the consumer guarantee.

Parties
Appellant: LSH Auto (Sydney) Pty Ltd; Respondent: Warwick Gregory Sherman
Jurisdiction
Australia
Judgment Date
13 September 2021
Procedural Posture
Civil Appeal / Appeal Panel New Hearing Following Remittal
Outcome
Application dismissed
Legal Topics
Consumer Guarantees, Acceptable Quality, Supply of Goods, Major Failure, Rejection of Goods, Remedies, Evidence, Vehicle Defect
Consumer Law Consumer Guarantees Acceptable Quality Supply of Goods Major Failure Rejection of Goods Remedies Evidence +1 more

Case Brief

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Parties

LSH Auto (Sydney) Pty Ltd

Appellant

Warwick Gregory Sherman

Respondent

Procedural Posture

Civil Appeal / Appeal Panel New Hearing Following Remittal

Legal Issues

  1. 1 Whether the vehicle supplied to Mr Sherman by LSH Auto (Sydney) Pty Ltd was of acceptable quality as required by s 54 of the ACL (NSW)
  2. 2 Whether deficiencies in the proximity sensor system and speed advisory system amounted to failure to meet consumer guarantee
  3. 3 Whether Mr Sherman was entitled to reject the vehicle under ss 259 and 260 ACL (NSW) and whether section 262 defence applied

Ratio Decidendi

Mr Sherman did not prove, on the balance of probabilities, that the perceived failures in the proximity sensor and speed advisory systems were beyond those arising from inherent design limitations, or that any remediable fault existed. The objective evidence (including expert and diagnostic reports) demonstrated the systems performed within their inherent limits; therefore, the vehicle was of acceptable quality for the purposes of s 54(2) of the ACL (NSW), and LSH did not fail to comply with the consumer guarantee.

Court Disposition

Application dismissed

Orders

  • The application is dismissed.
  • If any party desires to make an application for costs of the appeal: that party is to inform the other party within 14 days of these reasons; the applicant for costs is to lodge written submissions (max 5 pages) and serve on the respondent within 14 days; the respondent to any costs application is to lodge and serve...