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QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Peter Bennett Cars v Lyree-Jo Vodanovich  QCATA 88
peter bennett cars
ORIGINATING APPLICATION NO:
17 June 2020
15 June 2020
Dr J R Forbes, Member
APPEAL – APPLICATION FOR LEAVE TO APPEAL – consumer dispute – purchase of second hand motor vehicle – where alleged failure, namely loss of power developed 500 kms after purchase – where applicant dealer then made repairs – where same failure recurred approximately 4000 kms after said repairs made – whether alleged failure due to mechanical defect inherent in vehicle or due to contaminated fuel – whether vehicle is of acceptable quality within the meaning of Australian Consumer Law 2010 – whether refund of price of vehicle may be discounted for distance travelled - where application for leave to adduce fresh evidence - where requirement that evidence sought to be adduced could have been tendered at trial – where other evidence said to be fresh is irrelevant
Australian Consumer Law (Cth) s 54, s 260
Competition and Consumer Act 2010 (Cth) sched 2 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28, s 32 s 142
Absolon v NSW Technical and Further Education Commission (1997) 75 IR 47
Commissioner of Taxation v Baffsky (2001) 122 A Crim R 568
Fox v Percy (2003) 214 CLR 118
Hawkins v Pender Bros Pty Ltd  1 Qd R 135
IVI Pty Ltd v Baycrown Pty Ltd  1 Qd R 428
Manonai v Burns  WASCA 165
Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Politis v Commissioner of Taxation (1988) 88 ATC 5029
Prestige Auto Traders Pty Ltd v Bonnefin  NSWSC 149
TPG Internet Pty Ltd v Australian Competition and Consumer Commission (2012) 210 FCR 277;  FCAFC 190
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
- In August 2018 the Applicant Peter Bennett Cars (`Bennett’), of Bundall, Queensland, sold to the Respondent, Lyree-Jo Vodanovich (`Vodanovich’) a second-hand Volkswagen Passat motor car, the subject of these proceedings.
- The sale is recorded in a written contract in which the vendor-Applicant is described as `PR and JM Bennett Pty Ltd, trading as Peter Bennett Cars’. However, these proceedings are not brought against the company, but against `Peter Bennett Cars’. But, no issue of misnomer has been raised.
- Vodanovich seeks orders for a return of the car to Bennett, in exchange for a refund of the purchase price of $9,995. She describes her cause of action as follows:
[The] car was purchased from dealer with verbal 1000km one month warranty. [The] car has had the same problem 500 kms after purchase. [The] dealer offered repairs in the warranty period but refused to supply [the] mechanic[al] diagnosis [before] or after repairs, or even [to] show receipt of repairs [sic]. [A]pprox 4000 kms after [the] dealer returned the car the exact same problem has happened. I have taken the vehicle to 3 different mechanics and none of them know[s] what is wrong. [I] have been quoted over $3,000 to replace [a] part with no guarantee the will rectify [the] problem. [The] dealer keeps blaming me and saying I’m putting dirty diesel in [the] car. All of my mechanics agree this is not the case. I want to return the vehicle rather than incur more costs.
- In essence, Vodanovich contends that the car’s failure is due entirely to mechanical faults, while Bennett contends that it was due to her use of contaminated fuel. In any event, the consumer’s complaint is that the car periodically and unpredictably lost power that could only be regained, temporarily, by turning off and restarting the engine. Eventually, she says, it was undriveable: `The car is still sitting in my driveway with a car cover on it not doing anything. Collecting dust.’ Bennet did not dispute that evidence when he had an opportunity to do so.
- The pivotal question, however, is whether the sole and prime cause of those failures was contaminated fuel. If so, Vodanovich’s claim for relief must fail.
- The Adjudicator reached this conclusion:
I can’t consider the issue of fuel contamination because there simply isn’t any evidence for me to consider as a rational defence to the application.
Proposed grounds of appeal
- Bennett contends that:
Member Mewing erred in finding that there was no evidence of fuel contamination within the vehicle.
- However, the Adjudicator did not simply declare: `there was no evidence’. What she did say was more nuanced, namely that there was no evidence amounting to `a rational defence’. Taken fairly in context, with due attention to the adjective `rational’, and to the evidentiary weaknesses summarised below, that is a statement – admittedly somewhat terse or cryptic – that in the fact-finder’s view, there was no sufficient, acceptable evidence to sustain the `bad fuel’ explanation.
- The circumstances of that statement (accurately quoted) must be appreciated. Adjudicators in this tribunal are under considerable pressures of time to deal with multiple applications. Commonly (as here) they deliver their decisions extempore. The courts recognise the difficulties of `overloaded’ tribunals: `The realities of pressure of work and limited time ... must be acknowledged’. Judges point out that the reasons of hard-pressed tribunals should not be subjected to a `fine-tooth comb’ in captious or hypercritical quest for error or verbal slip. Here the expression `rational evidence’ is a shorthand reference to the weight of acceptable evidence. That statement is followed immediately by the words: `I prefer the evidence of Ms Vodanovich ... that it was, in fact, the PDF failure.’ It may noted that, during the course of evidence and argument the Adjudicator observed:
There’s no conclusive proof that it was dirty fuel at all. So I would eliminate that as ... a reasonable defence.
- The word `prefer’ embodies an essential element of judgment. It implies a recognition that there are opposing bodies of evidence, and a decision to accept one rather than the other. It is not an error of law to prefer one version of a case to the other. That statement clearly implies that a comparison is being made between two competing bodies of evidence, and that, on the Adjudicator’s findings, the contaminated fuel theory is less acceptable than the PDF explanation. The term `rational defence’ is being used as equivalent to `acceptable defence’.
- Notably, the Adjudicator had already observed in the course of argument:
There’s no conclusive proof that it was dirty fuel at all. So I would eliminate that as a defence – as a reasonable defence.
- In other words, while there may be some evidence of the `contamination’ theory, it is not sufficiently conclusive to be acceptable. That is an exercise of the primary decision maker’s prerogative to determine issues of fact and credit. Such decisions are rarely disturbed by appeal courts, provided that there is some evidence to support them, even if another reasonable view is available. Where reasonable minds may differ, a decision cannot properly be called erroneous simply because one conclusion has been preferred to another possible view.
- Let us review the relevant evidence in some detail. Bennett’s principal expert, Bob Love, is vague and superficial on the fuel issue:
When we looked at the car we believed that the fuel was contaminated at the time.
- Just who was the `we’ who looked at the car is unclear, and the words `looked’ and `believed’ are not particularly suggestive of a close investigation of the fuel theory. That impression is fortified by what follows:
We did not do any further investigation [scil in pursuance of that belief] as there was a definite fault in the DPF pressure sensor.
- The report of Frizelle Sunshine Automotive is Delphic almost to the point of vacuity:
We cannot confirm the vehicle has not been with filled [sic] petrol or dirty fuel ... however there is no supporting evidence to confirm that these have occurred.
- Vodanovich denies that defective fuel is the cause of her problem. David Cribbin told Bennett that he (Cribbin) and Vodanovich `get our fuel from the same place ... if it was dirty diesel, I would assume my car was also having the same problems’ (implying, of course, that he did not).
- A service report provided by Northern Rivers Volkswagen gives four possible reasons for the trouble, three of which are not concerned with fuel impurity. Once again the expert evidence is tentative and inconclusive.
- The following exchange is pertinent:
Adjudicator Mewing: [Y]ou said that the problems started to arise with the vehicle prior to you ever putting fuel into it.
Ms Vodanovich: Correct.
Adjudicator Mewing: So how can you prove that?
Ms Vodanovich: I’ve got a bank statement.
Adjudicator Mewing: Do you have that here?
Ms Vodanovich: Yes I do. I’ve got that here with me and when I purchased the vehicle it did have over half a tank in there .. on 15 September I had been overseas a couple of weeks.
Adjudicator Mewing: ... You say it’s your bank statement, is that right?
Ms Vodanovich: ... I have marked it. I have highlighted it for you...
Adjudicator Mewing: Well, what date did you purchase the vehicle?
Ms Vodanovich: The 26th of August.
- The Adjudicator was entitled to find that the evidence of contamination possessed insufficient substance to be acceptable. The first ground does not warrant leave to appeal.
Second proposed ground of appeal
- Materially goods are of acceptable quality if they are fit for all the purposes for which goods of the kind in question are commonly supplied and as free from defects as a reasonable consumer fully acquainted with the state and condition of the goods (including any hidden defects) would regard as acceptable, having regard to any representation about them made by the supplier. Bennett describes the vehicle as `a very good car’.
- A major failure to comply with a guarantee occurs when the goods would not have been acquired by a reasonable consumer, if fully acquainted with the nature and extent of the defect. A major failure entitles the consumer to reject the goods and to demand a refund of the price paid. In November 2018 Vodanovich told Bennett by email that she would not have bought the car had she foreseen the sequelae of the purchase.
- A finding of major failure is essentially a judgment of `fact and degree’ based on inferences from the evidence. A car bought for almost $10,000 that unpredictably loses speed, necessitating a stopping and restarting of the engine, and ending in complete failure, may reasonably be regarded as unacceptable. Besides, repeated failures, not `major’ in some isolated instances, may yet amount to major failure.
- The factual finding of major failure cannot be disturbed on appeal unless it is shown to be without any rational support in the evidence. In my view the Adjudicator was entitled to make the findings that she did. Her decision is not invalidated by the possibility of another reasonable view. As already noted, it is not an error of law to prefer one version of a dispute to another.
- The second ground is rejected.
Third proposed ground of appeal
- The third ground, headlined `Discount of the claimed amount’ suggests an alternative resolution if the first and second are rejected. It adopts the Adjudicator’s suggestion of a set off or reduction of any refund, in recognition of the fact that the car, albeit troublesome and repeatedly in need of repairs, nevertheless the buyer travelled a considerable distance:
I do appreciate, however, that some nearly 10,000 kilometres has been travelled on this car so, yes, she hasn’t been without a car entirely for that period. There has been a year, just about to the day, that has transpired since the purchase of the car, so, I would, therefore, discount the amount claimed by – and I will go over how I do that ...
- But the rest is silence; no authority enabling a set off was cited, and no quantum is assessed.
- One reason for the unfinished symphony may be that there is no authority for a set off for interim use of goods found unacceptable within the meaning of the Australian Consumer Law. The NSW Supreme Court case of Prestige Auto Traders Pty Ltd v Bonnefin is remarkably similar to this one. Bonnefin’s second-hand BMW was seven years old. To the dismay of the buyer it slowed and stopped at irregular intervals, and on one occasion, at least, could not be restarted. Repairs were attempted on three occasions without success. It was held that the series of breakdowns constituted major failure, and the dealer was ordered to refund the purchase price to the consumer. Despite the car’s manifest faults, the buyer managed to drive it for 5000 kilometres. But there is no suggestion in Bonnifin of any deduction on that account. The consumer paid $85,800 for the vehicle, and the court ordered a refund of precisely that amount.
- There is no proper basis for the suggested deduction from Vodanovich’s refund. The third proposed ground is dismissed.
Conclusion as to proposed appeal
- In my view there is no reasonable prospect of a successful appeal, if leave to appeal were granted. The application for leave to appeal is dismissed.
- There remains an application by Vodanovich for the admission of fresh evidence. The particulars annexed to the application list 3 `requests’ which may be summarised as follows:
- (a)`Impact statement. I believe the tribunal should be made aware of the impact this process has had on my life. ... I have been without a car for over a year ... and Mr Bennett’s insistence on hiring [a] lawyer ... has added to the impact ... and still we don’t have resolution. I request this impact is taken into consideration ... when factoring in time.’
- (b)`Submissions to support the kilometres travelled ... in such a short time. It has been suggested that I may have driven more than I have stated. I am submitted [sic] new evidence to show this is not the case. ... I would like to show the court how I could manage such vast distance in a short time ...’
- (c)`Mr Bennett is claiming a loss of finances. I would like to show that court the additional costs I have incurred, including buying a new car ... Some costs have occurred after the hearing.’
- This is not new or fresh evidence relating to the claim filed on 7 December 2018. That is the document defining the ambit of these proceedings. The miscellaneous application is an attempt to add new and ill-defined claims to those initially pleaded. That is not an appropriate procedure on an application for leave to appeal. The new claims, for whatever they may be worth, should be the subject of a new and separate action.
- `Impact statements’ are a process peculiar to criminal proceedings, where they seldom result in a monetary award. Undoubtedly litigation, especially when protracted, is stressful for all parties involved, but that it is simply not compensable in proceedings based on section 54 of the Australian Consumer Law. Besides, no legal basis for the claim is indicated, and no particulars to enable assessment of damages (if they were available) are provided. There are several preconditions for the admission of alleged fresh evidence, notably that it could reasonably have been identified and produced at the original hearing. The suggested impact statement, even if compensable in these proceedings, does not satisfy that requirement.
- The second `request’ is not relevant to any issue decided by the tribunal. Despite an unfulfilled suggestion that there should be a deduction for kilometres travelled, no such deduction was actually made.
- As to the third request, no particulars are provided. Assuming, without deciding, that the cost of a new car is recoverable in an action of the present kind, a probable cost could well have been ascertained before the trial.
- The application to tender fresh evidence is dismissed.
1 The Respondent’s application to tender fresh evidence is dismissed.
2 The Applicant’s application for leave to appeal is dismissed.
 Email David Cribbin to Bennett 25 September 2018.
 Transcript of hearing 5 August 2019 [‘T’] page 38 line 25.
 T page 4 line 45.
 T page 38 line 10.
 DPF is an acronym for a diesel particulate filter, which reduces, more or less, depending on regular maintenance, the noxious exhaust from a diesel engine.
 Affidavit of Bob Love (Nerang Euro Parts and Service) sworn 29 July 2019, 3rd unnumbered paragraph.
 Email Frizelle Sunshine Automotive to Lyree 28 March 2019 at 3.20pm.
 T 37 line 26.
 Depending upon a grant of leave: QCAT Act s 142(3).
 Application for leave to appeal filed 29 August 2019 Attachment A item 1.1.
 Absolon v NSW Technical and Further Education Commission (1997) 75 IR 47, affirmed  NSWCA 311.
 Manonai v Burns  WASCA 165 at  per Hall J; Commissioner of Taxation v Baffsky (2001) 122 A Crim R 568 at 578 per Spigelman CJ.
 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 291-292 per Kirby J; Politis v Commissioner of Taxation (1988) 88 ATC 5029.
 T page 37 lines 28-29, emphasis added.
 T page 24 line 45, emphasis added..
 Fox v Percy (2003) 214 CLR 118 at 125-126.
 Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611 at.
 That term is used throughout in the non-technical sense allowed by s 28 of the QCAT
 T page 14 line 4, emphases added.
 T page 14 lines 5-6.
 Frizelle Sunshine Automotive to Lyree 8 May 2019.
 Email Cribbin to Bennett 23 September 2018.
 Report to Vodanovich 2 August 2019.
 T page 5 lines 21 ff.
 Cf T page 36 lines 19 ff.
 Schedule 2 to the Competition and Consumer Act 2010 (Cth) (`ACL’).
 Admittedly this inclusion makes the ACL burdensome from a suppliers’ point of view.
 ACL s 54 (2).
 T page 10 line 8.
 ACL s 260(a).
 As accepted by the tribunal: T page 37 lines 10-14.
 TPG Internet Pty Ltd v Australian Competition and Consumer Commission (2012) 210 FCR 277 at 290;  FCAFC 190 at .
 T page 38 line 25, page
 Prestige Auto Traders Pty Ltd v Bonnefin  NSWSC 149.
 Minister for Immigration and Citizenship v SZMDS & Another, above.
 T page 37 lines 37-40.
  NSWSC 149.
 Application for Miscellaneous Matters, filed on 20 November 2019.
 Hawkins v Pender Bros Pty Ltd  1 Qd R 135; IVI Pty Ltd v Baycrown Pty Ltd  1 Qd R 428.
- Published Case Name:
Peter Bennett Cars v Lyree-Jo Vodanovich
- Shortened Case Name:
Peter Bennett Cars v Lyree-Jo Vodanovich
 QCATA 88
J R Forbes, Member
17 Jun 2020