Christopher Harrison v Scott Devlin [2017] NSWCATCD 104

Christopher Harrison v Scott Devlin [2017] NSWCATCD 104

The Tribunal accepted the mechanic's evidence that the water pump had totally failed and had likely been deteriorating before sale, causing coolant leakage and making the vehicle unsafe to drive. In light of the vehicle's price, age, kilometres and the Respondent's representations that it was in great and excellent condition, a reasonable consumer would not expect a failure within the first 24 hours sufficient to make it unsafe. The vehicle was therefore not of acceptable quality under s 54 of the Australian Consumer Law. Although the Tribunal was not satisfied the defect was a major failure, the Respondent constructively refused to remedy it within a reasonable time by failing to pay the...

Jurisdiction
Australia
Judgment Date
13 November 2017
Procedural Posture
Consumer Claim Concerning Sale of a Used Motor Vehicle / Final Hearing; Principal Judgment
Outcome
Application allowed in part; Applicant awarded refund and limited damages on return of the vehicle.
Legal Topics
['acceptable Quality' 'australian Consumer Law Consumer Guarantees' 'used Vehicle Defects' 'rejection of Goods' 'refund and Damages']
['consumer Law' 'motor Vehicle Sales'] ['acceptable Quality' 'australian Consumer Law Consumer Guarantees' 'used Vehicle Defects' 'rejection of Goods' 'refund and Damages']

Case Brief

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Procedural Posture

Consumer Claim Concerning Sale of a Used Motor Vehicle / Final Hearing; Principal Judgment

Legal Issues

  1. 1 ['Whether the 1996 Mitsubishi Pajero supplied by the Respondent was of acceptable quality under s 54 of the Australian Consumer Law.' 'Whether any non-compliance with a consumer guarantee amounted to a major failure.' 'Whether the Applicant was entitled to reject the vehicle and recover the purchase price and additional damages.' 'Whether the Respondent was required to arrange and pay for collection of the vehicle.']

Ratio Decidendi

The Tribunal accepted the mechanic's evidence that the water pump had totally failed and had likely been deteriorating before sale, causing coolant leakage and making the vehicle unsafe to drive. In light of the vehicle's price, age, kilometres and the Respondent's representations that it was in great and excellent condition, a reasonable consumer would not expect a failure within the first 24 hours sufficient to make it unsafe. The vehicle was therefore not of acceptable quality under s 54 of the Australian Consumer Law. Although the Tribunal was not satisfied the defect was a major failure, the Respondent constructively refused to remedy it within a reasonable time by failing to pay the...

Court Disposition

Application allowed in part; Applicant awarded refund and limited damages on return of the vehicle.

Orders

  • ['The Respondent is to pay the Applicant the sum of $4,200. This amount is due and payable 2 weeks after the date of these orders.' 'The Applicant shall deliver possession of the vehicle to the Respondent on or before 2 weeks after the date of these Orders.' 'For the purpose of these orders, the Respondent is to...