VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
CIVIL DIVISION
civil Claims LIST	
vcat reference No. C2574/2019	
CATCHWORDS	
Purchase of Mercedes Benz van; Applicant paid purchase price in full before taking delivery of vehicle; Additional condition in Contract between parties provided that purchase price was fully refundable if applicant not happy with vehicle on delivery; Vehicle delivered with major defects; Applicant requested refund of purchase price; Respondent refused; Respondent ordered to refund purchase price in full.	

APPLICANT	Glen Kimm	
RESPONDENT	Michael Hedley t/as Commercial King Vehicle Sales 	
WHERE HELD	Moe	
BEFORE	B Thomas, Member	
HEARING TYPE	Hearing	
DATE OF HEARING	1 July 2019	
DATE OF ORDER	12 July 2019	
CITATION	Kimm v Hedley (Civil Claims) [2019] VCAT 1044	

OrderS
1.	The Respondent must pay the Applicant the sum of $8,000.00 by 29 July 2019.
2.	Upon Respondent complying with paragraph 1 of this Order, the vehicle the subject of the proceeding, being 2002 Mercedes Benz Vito Van Registered Number 1OZ 8ZR (VIN: WDF638094 23 450100) shall become the property of the Respondent.
3.	Upon the Respondent complying with paragraph 1 of this Order, the Respondent, at his own expense, may collect the vehicle from the Applicant at a mutually agreed time and place.
4.	Should the Respondent fail to collect the vehicle from the Applicant, the Applicant may dispose of the vehicle as he sees fit.
5.	The proceeding is otherwise struck out with a right of reinstatement.

BW Thomas
Member			
APPEARANCES:		
For Applicant	Miceal Ambrose, solicitor	
For Respondent	Brandon Padjasek, General Manager	

REASONS
BACKGROUND
1.	On 28 December 2018, Mr Kimm paid a deposit of $500.00 to the respondent for a 2002 Mercedes Vito van, leaving a balance of $7,500.00 to be paid when the van had been serviced, detailed and a Roadworthy Certificate issued.
2.	On 2 February 2019, Mr Kimm attended the respondent’s premises in Lilydale to pick up the van. However, it was not ready, but Mr Kimm signed a “Contract for the Sale of a Used Motor Vehicle” prepared by the respondent (the Contract) and paid the balance of the purchase price. The Contract stated that the van was to be delivered to Mr Kimm on 8 February 2019. 
3.	Additional Conditions in the Contract were that –
•	Payment of car is fully refundable if customer is unhappy upon delivery vehicle;
•	Customer is happy with cosmetics, would just like to see and hear car running on delivery.
4.	On 22 February 2019, the van was delivered to Mr Kimm by Noor Mineur, an employee of the respondent. The van had not been detailed. Mr Geoffrey Clingis, a friend of Mr Kimm, took the van for a short drive, and said the gearbox was shuddering and the air-conditioner would not operate. Mr Kimm told Ms Mineur that he would not accept the van in its present condition, and she took the van away.
5.	Brandon Padjasek, the respondent’s General Manager, subsequently advised Mr Kimm that the gearbox needed to be replaced and incorrect gas had been placed in the air conditioning unit. Mr Kimm replied that there were too many ongoing issues with the van, and requested a refund of the purchase price.
6.	On 20 March 2019, Mr Kimm sent Mr Padjasek a text stating –
Hi Brandon could you please call me back thanks This is starting to be a bad joke and I would like my money back thanks
Later the same day Mr Kimm sent a further text to Mr Padjasek stating –
	Hi Brandon/Nor, It’s Glen Kimm here, your manager and yourselves have not returned my calls about my refund. If I don’t receive a call within 24 hrs I will be seeking legal advice …
7.	At 4:20pm on 22 March 2019, without any notification from the respondent, Mr Kimm and his partner Diane Clark returned home from his solicitor’s office to find the van parked in the driveway the keys in the letterbox. The van was unlocked, in a dirty condition and leaking oil and water onto the driveway. Inspection of the van revealed that the two front doors did not lock, the cover was missing from the side blinker and oil and accumulated on the underneath of the body.
8.	Mr Kimm sent Mr Padjasek a text stating –
Brandon; please ring me urgently I notified Nor and yourself that the vehicle was not wanted due to all the issues experienced. As you have continually ignored my phone calls and txts (sic) I have contacted a solicitor. Furthermore I was not notified that it was being delivered even after speaking to Nor at 0945 this morning about not wanting the vehicle. Nor stated she would get you to ring me which never happened. Therefor (sic) I suggest you pick the van up immediately and refund the money as per the contract. Glen Kimm.
9.	Mr Padjasek replied –
Hey Glenn we have held up or (sic) agreement to get the car running correctly and put all the time effort and money into it to make sure (sic) it’s up to the standard required to be safe (sic) reliable vehicle. Contract stated if weren’t (sic) satisfied with the repairs to transmission we would rectify them or refund money paid. We weren’t given the opportunity to present vehicle repaired (sic) we haven’t breached contract mate car is done up to most level (sic) we could provide within timeframe physically possible (sic) due to issues we encountered. We have delivered the vehicle is agreed and would love you to stick to the agreement. It has been delivered to your address and keys are in letterbox. Thank you for your understanding.
10.	Mr Kimm replied –
Brandon, please come and pick the vehicle up as I have requested   a refund a number of times. You have not contacted me back Glenn
11.	On 27 March 2019, Mr Kim’s solicitors wrote to the respondent demanding a refund of $8,000.00 to Mr Kimm. No reply was received.
THE EVIDENCE
Mr Kimm
12.	Mr Kimm produced on a document headed ‘Timeline with conversations and texts to King Commercials regarding Vito Mercedes Van 2002 and Glen Kimm” (Exhibit A). With the exception of the conversation between Mr Kimm and Ms Mineur on 22 February 2019, Mr Padjasek did not take issue with accuracy of this document.
13.	Mr Kimm said that after Mr Clark had driven the van and reported the shuddering gearbox and the non-functional air-conditioner, he told Ms Mineur he was not happy with the vehicle. Ms Mineur replied that if he was not happy, he would be refunded the purchase price in full.
Mr Clingin
14.	Mr Clingin said he drove the van for approximately five minutes but only some 800 metres. Attempting to accelerate the vehicle, it appeared to lose power and then the automatic transmission began to shudder. Concerned that the something was seriously wrong with the vehicle, he immediately returned to Mr Kimm’s residence. In doing so he noticed that the air-conditioner on the windscreen wipers were not working. He relayed these observations to Mr Kimm who, in his presence told Ms Mineur that he was not happy with the vehicle. She replied that if Mr Kimm was not totally happy with the vehicle, he would be given his money back.
15.	In answer to Mr Padjasek, Mr Clingin denied that Ms Mineur said that if Mr Kimm was unhappy with the repairs that the respondent would carry out to the van, he would receive a full refund.
Ms Clark
16.	Ms Clark said she was present when Mr Kimm and Padjasek signed the Contract of Sale on 2 February 2019. Mr Kimm could not take delivery of the vehicle because the key could not be found, a roadworthy certificate could not be provided, there was no radio in the vehicle, it was in a filthy condition and had not been detailed. Mr Padjasek said that if Mr Kimm paid the balance of the purchase price, he would receive a full refund if he was not happy with the vehicle on delivery. Ms Clark was also present at the discussion between Mr Kimm and Ms Mineur after Mr Clark had driven the vehicle on 22 February 2019 and confirmed with Ms Minuer that if Mr Kimm was unhappy with the vehicle, he would receive a full refund. Ms Clark was not questioned by Mr Padjasek.
17.	In answer to Mr Ambrose, Ms Clark said that Mr Kimm signed the Contract of Sale on the basis that if he was unhappy with the vehicle, he would be refunded the purchase price in full.
18.	Mr Pasjasek did not call any witnesses. Instead he produced an invoice from Prestige Automotive Yarra Valley Pty Ltd dated 18 March 2019 for $1,017.40 including GST for the removal and replacement of the transmission, which were supplied by the respondent. This invoice had not been provided to Mr Kimm.
SUBMISSIONS OF THE PARTIES
19.	Mr Ambrose submitted that as the Contract of Sale was drawn by the respondent, the test for its acceptance by Mr Kimm is subjective. It is a specific term of the Contract that if Mr Kimm was unhappy with the vehicle on delivery, the purchase price would be refunded in full. It was on this basis that Mr Kimm signed the Contract and paid the balance of the purchase price. Once Mr Clark had driven the vehicle and reported his concerns to Mr Kimm, Mr Kimm told Ms Minuer he was not happy with the vehicle and requested a refund of the full purchase price.
20.	Mr Pasjasek submitted Mr Kimm did not say he was unhappy with the vehicle on 22 February 2019. The Prestige Automotive Yarra Valley invoice was evidence that the discussion between Mr Kimm and Ms Mineur on 22 February 2019 was to the effect that if Mr Kimm was unhappy with the repairs to the transmission and the air-conditioner that would be undertaken by the respondent, he would be entitled to a full refund. He said that transmission supplied by the respondent to Prestige Automotive Yarra Valley, had been purchased second hand at a cost of $2,000.00. He did not provide any documentary evidence of this fact. He said that the respondent would not have incurred this cost if there was not the agreement as claimed by Ms Mineur.
21.	Mr Pasjasek also said that on 22 February and 16 March 2019, Mr Kimm advised him that he had found another vehicle that was more suitable for his needs, and this was the reason he sought to terminate the contract with the respondent. Mr Kimm denied this allegation.
DISCUSSION and FINDINGS
22.	I accept Ms Clarks’s evidence that Mr Klimm was only prepared to sign the Contract of Sale and pay the balance of the purchase price on Mr Pasjasek’s undertaking that if he was unhappy with the vehicle in any respect, he would be entitled to a full refund of the purchase price.
23.	I find that the first Additional Condition in the Contract of Sale gives Mr Kimm as the customer, the exclusive right to decide if he is unhappy with the condition of the vehicle as delivered. Therefore, the Respondent as the Trader, is not entitled to disagree with Mr Kimm’s decision that he was unhappy with the condition of the vehicle as delivered, or without Mr Kimm’s consent, seek to impose a variation of that condition on Mr Kimm.
24.	Therefore, in light of the evidence of Mr Klimm, Mr Clingin and Ms Clark, I do not accept Ms Meneur’s claim, as told to Mr Pasjasek, that the agreement she reached with Mr Kimm on 22 February 2019 was that he would be entitled to a refund of the purchase price only if he was not happy with the repairs that would be undertaken to the transmission and the air conditioning system.
25.	Mr Kimm, Mr Clingin and Ms Clark all deny that any such agreement was reached. Ms Meneur was not called as a witness and therefore could not be questioned as to her version of the discussions with Mr Kimm on that day. Therefore, I accept the version put forward by Mr Kimm, Mr Clingin and Ms Clark.
26.	I find that under the first Additional Conditions, Mr Kimm had legitimate grounds to be unhappy with the condition of the vehicle, and therefore he was entitled to demand reimbursement of the purchase price. 
27.	I will order that the Respondent pay Mr Kimm the sum of $8,000.00.

BW Thomas
Member