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Symon v Volkswagen Group Australia Pty Ltd QCAT 154
Symon v Volkswagen Group Australia  QCAT 154
Volkswagen Group Australia Pty Ltd
Other minor civil dispute matters
3 April 2017
Dr Alan Collier, JP Presiding
Ms Roslyn Newlands JP (Qual)
15 May 2017
Minor civil dispute – motor vehicle purchase – features inconsistent with vendor literature Stop - start engine feature; air-conditioner not operating continuously - What constitutes ‘automatic’ operation of a motor vehicle feature .
Australian Consumer Law – Section 29 – false or misleading conduct – motor vehicle ‘automatic’ climate control – does not operate continuously – driver required manually to defeat the stop-start feature of vehicle.
Australian Consumer Law – Section 54 – acceptable quality – motor vehicle ‘automatic’ climate control – does not operate continuously – driver required manually to defeat the stop-start feature of vehicle engine.
APPEARANCES and REPRESENTATION:
Andrew Dowling, Customer Experience Compliance Specialist of the Respondent (by telephone)
This matter was heard and determined pursuant to s 10 and Part 4B of Chapter 4 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
Substance of the Dispute
- This is a re-hearing of this matter as directed by Senior Member Stilgoe OAM in her capacity as the Appeal Tribunal in her decision dated 11 October 2016. While this matter has a chequered history, this history is not relevant to this re-hearing.
- Mr Symon, the Applicant in this matter, resides in Hervey Bay which, as he noted during the hearing, and the Bureau of Meteorology confirms, is located in sub-tropical Queensland.
- On or about 29 January 2015 Mr Symon purchased a new Volkswagen Touareg 150 TDI Sports Utility Vehicle (SUV) (the “vehicle”) from Fraser Coast Motors Pty Ltd in Hervey Bay for $65,000.
- For a quite specific reason, described below, Mr Symon is unhappy with the vehicle and seeks a remedy from this Tribunal.
- In his original application the Applicant sought the following Orders from the Tribunal:
(1) That Volkswagen enable the vehicle’s automatic air-conditioning to operate automatically by disabling the ‘start stop’ functionality through the vehicle’s VAG-COM computer system. OR
(2) Re-engineer the ‘start-stop’ switch so that it disables the start-stop functionality permanently. OR
(3) Stop the motor switching off (and disabling the air-conditioning) by any other method, for example re-programming the temperature that is triggered to re-start the engine. AND
(4) Allow the customer to retain their vehicle warranty.
- Put in a more descriptive form, the Applicant’s concern with the vehicle was defined by him in the second paragraph of his statement dated 27 October 2016 in which he said (sic):
The issue is the technology in my 2015 Volkswagen Touareg called ‘Stop/start System’ whereby, when the car becomes stationary the vehicles engine will stop automatically. The difficulty however is that when the engine is stopped my VW Touareg’s air-conditioning stops cooling effectively. Whilst in European climates this may not be an issue but in Sub tropical Queensland it is insufficient to keep the cabin cool satisfactorily when the cars stop/start system continually keeps activating.
- As the Applicant stated succinctly in his testimony before this Tribunal:
… I would say that the vehicle does not provide what is advertised or claimed as having. That being, a functioning, dual zone, automatic, climate-controlled air conditioning.
Remedy sought by the Applicant
- The principal remedy sought by the Applicant is to require that the Respondent disable the stop/start system in the vehicle in so far as it limits the continuous operation of the air-conditioning system. The Applicant seeks to have this done without cost to him and without compromising the manufacturer’s warranty relevant to the vehicle.
- If the Applicant is not granted the remedy just described, he seeks to have the Tribunal order that the vehicle be returned to the Respondent and the Applicant be provided with a full refund of the purchase price he paid for the vehicle. This remedy was raised for the first time during the course of the hearing.
- The Applicant also seeks to recover $449, which appears to involve an invoice from Fraser Coast Motors Pty Ltd dated 29 July 2015, one portion of which dealt with ‘Checked air conditioning components’, plus the $61 filing fee for his application.
- The Applicant’s purchase of the vehicle is a consumer transaction within the meaning of par. 3.1(b) of the Australian Consumer Law (ACL), being goods of a kind ordinarily acquired for personal use (irrespective of cost), and which do not come within any of the exceptions provided within the ACL. This transaction therefore comes within the scope of the Australian Consumer Law.
The Evidence Tendered
- The Tribunal received viva voce evidence from the following persons:
- Mr Robert Symon, the Applicant, in person
- Mr Andrew Dowling, Customer Experience Compliance Specialist of the Respondent, by telephone.
- In addition, the Tribunal made reference to evidence provided earlier by the parties including, in particular:
- (a)The Witness Statement of Andrew Steele dated 24 February 2016 prepared by the Respondent.
- (b)Submission for ‘On-Papers Hearing’ dated 27 October 2016 by the Applicant including Appendices A to D and F to G (Appendix E, apparently two video recordings, has not been filed).
- (c)The Response to Claim/Points of Defence dated 17 November 2016 prepared by the Respondent.
- In relation to considering evidence generally, the Tribunal notes that it is entitled to consider such evidence, although not tendered by the parties specifically for the instant hearing, by virtue of the provisions of the Queensland Civil and Administrative Tribunal Act 2009, Sect. 28 which says, so far as relevant: In conducting a proceeding, the tribunal—
(b) is not bound by the rules of evidence, or any practices or procedures applying to courts of record, other than to the extent the tribunal adopts the rules, practices or procedures; and
(c) may inform itself in any way it considers appropriate; and
(e) must ensure, so far as is practicable, that all relevant material is disclosed to the tribunal to enable it to decide the proceeding with all the relevant facts.
What the Applicant has to Prove
- In seeking a remedy, the Applicant has placed reliance on the causes of action and relief available in the ACL.
- The Applicant, in his testimony and his submissions, referred numerous times to Sects. 29 and 54 of the ACL. He clearly seeks to invoke these provisions in pursuit of a remedy.
- Sect. 29 deals with false and misleading representations. In this case, the Applicant seeks to invoke par. 29(1)(a) which states:
- (1)A person must not, in trade or commerce, in connection with the supply or possible supply of goods or services or in connection with the promotion by any means of the supply or use of goods or services:
(a) make a false or misleading representation that goods are of a particular standard, quality, value, grade, composition, style or model or have had a particular history or particular previous use.
- In this case, in order to be entitled to a remedy, the Applicant has to demonstrate to the civil standard of proof that the Respondent has made a false or misleading representation that the vehicle is not of a particular standard, quality, value, grade, composition, style or model. The civil standard of proof is proof ‘on the balance of probabilities’.
- Section 54 of the ACL sets out a number of guarantees concerning goods supplied in a consumer transaction, being guarantees that may not be excluded by a supplier. Goods must be of acceptable quality. In this regard, to the extent relevant, Sect. 54 provides as follows:
- (2)Goods are of acceptable quality if they are as:
(a) fit for all the purposes for which goods of that kind are commonly supplied; and
(b) acceptable in appearance and finish; and
(c) free from defects; and
(d) safe; and
as a reasonable consumer fully acquainted with the state and condition of the goods (including any hidden defects of the goods), would regard as acceptable having regard to the matters in subsection (3).
- (3)The matters for the purposes of subsection (2) are:
(a) the nature of the goods; and
(b) the price of the goods (if relevant); and
(c) any statements made about the goods on any packaging or label on the goods; and
(d) any representation made about the goods by the supplier or manufacturer of the goods; and
(e) any other relevant circumstances relating to the supply of the goods.
- (7)Goods do not fail to be of acceptable quality if:
(a) the consumer acquiring the goods examines them before the consumer agrees to the supply of the goods; and
(b) the examination ought reasonably to have revealed that the goods were not of acceptable quality.
- Under this provision the Applicant has to demonstrate to the civil standard of proof that the Respondent has failed to supply goods that are of acceptable quality.
- During the hearing the Applicant also raised an issue of the supply of goods by description, invoking Sect. 56 of the ACL, by claiming that the vehicle supplied was inconsistent with the description of vehicle in the Respondent’s literature in relation to the air-conditioning feature. However, Sect. 56 of the ACL is intended to deal with a different category of supply than the one involved in this case so, for this reason, this claim is not considered further.
- Before purchasing the vehicle the Applicant took the vehicle, or one of the same type, for a test drive. There was no evidence to suggest that the vehicle used for the test drive did not function in the same manner as the vehicle purchased by the Applicant.
- During normal operation of the vehicle the air-conditioning system operates in sympathy with the engine stop/start feature. That is, when the vehicle is running the air-conditioner operates normally. When the vehicle is stationary the engine will switch-off until the driver presses the accelerator, at which time the engine re-activates; concurrently with the engine switching itself off, the air-conditioner will power-down after a period of time and re-activate only when the car cabin temperature exceeds a pre-determined variation from the selected temperature, or the engine re-starts at the driver’s initiation.
- It is possible to defeat the vehicle’s built-in stop/start feature by activating a particular button on each occasion when the vehicle is re-started from cold. In this way it is possible to ensure that the air-conditioning continues to operate notwithstanding the stop/start system.
- The Applicant stated in his testimony, and there was no evidence to the contrary, that, during his test-drive, the sales person with him pressed the button on more than one occasion to defeat the stop/start feature from disabling the air-conditioner.
- From this evidence the Applicant would have the Tribunal infer that this was done by the sales person in order to deflect, or had the effect of deflecting, his awareness of the fact that the air-conditioner would, eventually, shut-off when the engine stopped running.
- However, it is also reasonable to infer that the Applicant, having observed that a button had been pressed more than once by the sales person, would have been alerted to inquire of the sales person why this had been done. The Applicant did not give evidence indicating that he made such an inquiry. Had he made such an inquiry, the Applicant may have been alerted to the fact that this had the effect of, inter alia, ensuring that the air-conditioner would not switch-off during driving as a result of the stop/start system.
- It is clear from the evidence that, after purchasing the vehicle, the Applicant understood that it was possible to ensure that the air-conditioning continued to operate notwithstanding the engine stop/start feature providing he pressed the relevant button to defeat the stop/start feature. This button must be pressed each time the car has been started by the driver from cold (rather than by the stop-start system).
- However, the Applicant objects to having to press this button each time he re-starts his car which, he claims, can require him to press the button as many as six times each day when, for example, he delivers and collects his children at schools between home and work. The Applicant suggests that this imposes an unreasonable inconvenience upon him.
- The Applicant referred the Tribunal’s attention to two particular documents among the sales and support material published by the Respondent that he suggests imply certain operation of the stop/start system and the air-conditioner.
- The first document to which the Applicant referred contained the specifications for the vehicle prepared by the Respondent. This was tendered as Exhibit A1 at the hearing. Under the heading ‘Comfort and Convenience’ the specification states, in respect of the vehicle (Touareg model 150TDI), that the following features are standard:
Dual zone automatic climate control air conditioning
Air quality sensor with automatic air recirculation
Dust and pollen filter
Separate zone synchronisation
Residual heat mode (REST)
- The second document referred to by the Applicant (Exhibit A2 at the hearing) is similar to the first. It is a document headed ‘Features & Specifications’ relating to the vehicle and reiterates the principal features of the air-conditioning system mentioned above.
- The Applicant also asserted in his evidence that the air-conditioner does not operate within a reasonable range of temperatures or humidity when used in the stop/start mode. In support of this assertion the Applicant referred to the report of the tests performed on or about 20 October 2016 by Hervey Bay Auto Electrix. The Applicant’s concern is summarised in his comment that:
… when the engine is stopped, the Touareg’s air conditioning compressor stops also. And, as a result, the air conditioning stops cooling effectively.
- The Applicant tendered written evidence concerning the cost of modifying the air-conditioning operation of the vehicle so that the stop/start mode is permanently disabled. The cost of such a modification appears to be around $300. However, such a modification is not authorised by the Respondent. The Respondent indicated that an unauthorised modification may compromise the Respondent’s vehicle warranty to the extent of any problems arising from such a modification.
- Apart from his concern over the operation of the air-conditioner the Applicant stated that he is satisfied with the vehicle and conceded that it operates satisfactorily in all other relevant respects.
Has the Respondent Breached ACL Section 29?
- The Applicant asserted that by describing the air-conditioning system as Dual zone automatic climate control air conditioning the Respondent is engaged in false or misleading conduct because the vehicle does not offer automatic climate control because a driver is required manually to defeat the stop/start feature if the air-conditioning is not to switch-off after a pre-set period while the vehicle is stationary but operating.
- The proper interpretation of the term ‘false or misleading’ requires that something be ‘contrary to fact’. There is no requirement that trickery or moral turpitude be involved in the representation, nor any requirement that the person making the representation knew it to be untrue.
- The question becomes: was it false or misleading for the Respondent to describe the vehicle’s air-conditioning system as ‘automatic’ when, to have the air-conditioner operate continuously when the engine is operating in stop/start mode, it requires a person (usually the driver) to press a button to force the engine and air-conditioner to remain on, after each occasion when the vehicle has been re-started from cold?
- In his evidence the Applicant provided his interpretation of what constitutes an ‘automatic’ air-conditioner. The relevant interchange with the bench was:
COLLIER JP: What is an automatic air conditioner?
MR SYMON: One which, when you set it, it maintains the temperature of the vehicle. And in warm weather, this doesn’t happen. I have to disable the stop/start feature for the air conditioner to operate.
COLLIER JP: Okay. So that’s the only thing, is it? That’s the only difference between what a dual zone, automatic, climate-controlled air conditioning system would be, is that it should stay on?
MR SYMON: Well, yeah, in a $65,000 vehicle, I would expect your air conditioning to operate automatically, without me having to –
COLLIER JP: So an automatic one is one that you believe would stay on, even when the engine is off in this case?
MR SYMON: Correct.
COLLIER JP: Okay. That’s the nub of it, isn’t it? And we have to be satisfied that an automatic air conditioner is one that would stay on, in circumstances when a stop/start engine turns itself off?
MR SYMON: You would expect it to be so.
- The Applicant also made the point that the vehicle is not properly designed for sub-tropical conditions because the variation in temperature tolerated by the vehicle before the air-conditioner resumes operation after powering down when the engine stop/start mode is operating is too great, allowing an increase in temperature in the car cabin of up to 15C. This problem does not arise if the air-conditioner operates continuously.
- In response the Respondent asserted that, as the manufacturer, it is obliged to import the vehicle as it was designed (with the air-conditioner operating as it does) under Australian Design Rules; that the vehicle air-conditioner operates as it was designed and intended; the Respondent is not authorised to alter the vehicle before sale in Australia (although a purchaser could do so if he wished after sale, subject to some potential compromise to the manufacturer’s warranty); and that the change to the operation of the air-conditioner proposed by the Applicant in this case is a matter of personal preference.
- The Respondent provided guidance as to what it believes constitutes dual zone automatic climate controlled air-conditioning:
And then obviously, automatic climate control – that’s where your sensors are kicking, so it’s reading the ambient temperature within the cabin and then mixed in with – or in unison with the start/stop system, it is then re-igniting the engine [indistinct] the air conditioning system when the sensors are reading in – or to a particular parameter. So the automatic side means that if the owner – the driver of the vehicle doesn’t deem it necessary to manually override the vehicle, the air conditioning will automatically re-engage when deemed appropriate based off the sensors that are inside the cabin.
- The Respondent also drew attention to the fact that changing the operation of the stop-start mode has implications for vehicle operation beyond the air-conditioner including, at least in part, the brakes, the transmission, and the engine electrics – all fundamental components of the vehicle.
- Concerning the remedies sought by the Applicant the Respondent contended that:
… it’s unfortunate the matter’s continued on for quite some time, but unfortunately, the remedy that Mr Symon is seeking initially was – a modification to the vehicle, was not something that, realistically, us, as the importer and the manufacturer, could facilitate, and touching on the remedy that Mr Symon now seeks, as a result of the length of time that passed, of a full refund and rejecting the vehicle, we don’t believe that there are grounds to reject the vehicle. The vehicle’s still being used for an intended purpose.
- What is ‘automatic’ about the air-conditioner? Being ‘automatic’ could be said to arise when the air-conditioner maintains temperature and humidity within a given range. Or it could arise because the air-conditioner operates in sympathy with the engine – ceasing to operate after a period of time after the engine has stopped when in stop/start mode (unless this is defeated by the driver). The explanation by the Respondent in clause  concerning what constitutes automatic operation appears reasonable and consistent with what an ordinary person who has been adequately informed about the vehicle would expect. This conclusion becomes stronger when the buyer has, as in this case, driven or driven in the vehicle prior to purchase.
- Does the air-conditioner cease to be ‘automatic’ because, if the driver wishes to defeat the energy-saving functions built in to the vehicle, he has to do so intentionally and manually (by pressing a button) each time the vehicle re-starts? The words of the vehicle specifications do not reasonably allow this conclusion to be drawn.
- The vehicle is designed to save energy. That is the intent of the stop/start feature. An ordinary person would expect that the stop/start feature would have some implications on related energy-consuming systems such as the vehicle air-conditioner. Having to press a button to over-ride the stop/start feature each time the vehicle is re-started does not render the air-conditioner any less ‘automatic’.
- The Applicant presents as a person who possesses more than ordinary intelligence and could reasonably be expected to draw the inferences and conclusions expected of an ordinary person.
- The Tribunal concludes that the Respondent has not engaged in false or misleading conduct by describing the vehicle’s air conditioning system as being Dual zone automatic climate control air conditioning.
- Any issue about whether the air-conditioner operates outside reasonable parameters, such as temperature variations, has not been covered sufficiently in evidence for the Tribunal to make any decision in this regard. Nor was the issue pressed by the Applicant during the hearing as being one on which he sought the Tribunal to make a decision. For this reason the Tribunal makes no findings on the concerns raised by the Applicant during the hearing in this regard.
Has the Respondent Breached ACL Section 54?
- Secondly, the Applicant asserted that because the Dual zone automatic climate control air conditioning does not operate continuously, or otherwise that the vehicle does not offer automatic climate control, because a driver is required manually to defeat the stop/start feature if the air-conditioning is not to switch-off after a pre-set period, the vehicle is not of acceptable quality.
- The vehicle satisfies the expectation of the Applicant in all respects apart from the stop/start operation of the air-conditioning. The evidence disclosed that the air-conditioning system operates as it was intended by its design, and consistently with what an ordinary person, including a reasonable purchaser, would expect in an engine designed to operate in stop/start mode.
- The Tribunal is satisfied that the vehicle is fit for all the purposes for which goods of that kind are commonly supplied, and that it is acceptable in appearance and finish, free from defects, safe, and durable as a reasonable consumer fully acquainted with the state and condition of the goods (including any hidden defects of the goods), would regard as acceptable.
- The Applicant relied upon the representation by the Respondent that the vehicle offers a Dual zone automatic climate control air conditioning system to assert that the vehicle is not of acceptable quality. The Applicant suggested that, in some way, the air-conditioner is not ‘automatic’ because it requires that a button be pressed to force the air-conditioner to continue to operate when the engine is in stop/start mode.
- This assertion cannot be supported by the evidence. The operation of the air-conditioning system as it occurs in the vehicle is of acceptable quality and consistent with the type of vehicle and its intended operation, namely in stop/start mode.
- In the event that the operation of the air-conditioning system had had the effect of rendering the vehicle otherwise not of acceptable quality, the actual operation of the air-conditioning system ought to have been evident to the Applicant as a result of his test-drive prior to purchase. As a result, because the actual operation of the air-conditioner was evident to the Applicant during his test-drive, the vehicle is not of unacceptable quality as a result of ACL Sub-sect. 54(7).
- This conclusion remains the same whether or not the sales person demonstrating the vehicle to the Applicant prior to purchase over-rode the air-conditioner stop/start mode because such action by the sales person ought reasonably to have been evident to the Applicant who should have made inquiry concerning operation of this button at the time.
- The Respondent has not engaged in false or misleading conduct within the terms of the Australian Consumer Law or otherwise.
- At all relevant times the vehicle has been of acceptable quality.
- The Applicant has failed to demonstrate that the Respondent is liable for the $449 arising from the invoice from Fraser Coast Motors Pty Ltd.
- The Application is dismissed.
- Published Case Name:
Robert Symon v Volkswagen Group Australia Pty Ltd
- Shortened Case Name:
Symon v Volkswagen Group Australia Pty Ltd
 QCAT 154
Collier JP, Newlands JP
15 May 2017