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Hilton v Baartz[2019] QCAT 362

 

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

 

CITATION:

Hilton v Baartz [2019] QCAT 362

PARTIES:

stephen hilton

 

(applicant)

 

v

 

lindsay baartz

 

(respondent)

APPLICATION NO/S:

MVL014-19

MATTER TYPE:

Motor vehicle matters

DELIVERED ON:

29 November 2019

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Cranwell

ORDERS:

The Application – Motor Vehicle Dispute filed on 16 September 2019 is dismissed.

CATCHWORDS:

TRADE AND COMMERCE – COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION – CONSUMER PROTECTION – GUARANTEES, CONDITIONS AND WARRANTIES IN CONSUMER TRANSACTIONS – GUARANTEES, CONDITIONS AND WARRANTIES – where motor vehicle sold by private sale – whether ‘in trade or commerce’

Competition and Consumer Act 2010 (Cth), Schedule 2 – Australian Consumer Law, s 18, s 20, s 21, s 54, s 55, s 56, s 57, s 58, s 59, s 60, s 61, s 62

Fair Trading Act 1989 (Qld), s 50A

Motor Dealers and Chattel Auctioneers Act 2014 (Qld), Schedule 1 – s 14

Queensland Civil and Administrative Tribunal Act 2009 (Qld), Schedule 3

Walker v Sell [2016] FCA 1259

REPRESENTATION:

 

Applicant:

Self-represented

Respondent:

Self-represented

APPEARANCES:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

  1. [1]
    On 16 September 2019, Mr Hilton filed a Form 59: Application – Motor Vehicle Dispute with the Tribunal. 
  2. [2]
    According to the Form 59, Mr Hilton bought a second hand Ford Ranger from Mr Baartz after the motor vehicle was advertised on Gumtree. Mr Hilton alleges that the vehicle was advertised as a four wheel drive, but is in fact a two wheel drive.
  3. [3]
    On 14 October 2019, I directed that the parties file submissions as to whether the Tribunal has jurisdiction in relation the private sale of a motor vehicle. No submissions were filed.
  4. [4]
    Section 50A(1) of the Fair Trading Act 1984 (Qld) provides:

A person may apply, as provided under the QCAT Act, to the tribunal for an order mentioned in subsection (2) for an action—

  1. (a)
    under a provision of the Australian Consumer Law (Queensland) listed in the table to this section; and
  1. (b)
    relating to a motor vehicle; and
  1. (c)
    seeking an amount or value of other relief of not more than $100,000.
  1. [5]
    The protections against misleading or deceptive conduct[1] and unconscionable conduct[2] provided for in Chapter 2 of the Australian Consumer Law only apply if the conduct occurs ‘in trade or commerce’. Similarly, the consumer guarantees as to goods of acceptable quality,[3] goods fit for the purpose,[4] goods of corresponding description,[5] supply by way of sample or demonstration model,[6] repairs and spare parts,[7] compliance with any express warranty,[8] services rendered with due care and skill,[9] services fit for purpose[10] and services supplied within a reasonable time[11] provided for in Chapter 3 are only imposed where the goods or services are supplied to a consumer ‘in trade or commerce’.
  2. [6]
    In Walker v Sell,[12] Bromwich J held that the private sale of a motor vehicle through a classified advertisement on Gumtree was not in trade or commerce because it was not done in the course of a business activity or arising in a business context.
  3. [7]
    It follows that the Tribunal does not have jurisdiction to hear the application under s 50A of the Fair Trading Act, nor for that matter under s 14 of Schedule 1 to the Motor Dealers and Chattel Auctioneers Act 2014 (Qld).
  4. [8]
    For completeness, although the matter was commenced as a motor vehicle dispute, I note that the claim would not fall within paragraph 1(b) of the definition of ‘minor civil dispute’ in Schedule 3 to the Queensland Civil and Administrative Tribunal Act 2009 (Qld).  Mr Baartz was not a ‘trader’ as defined in Schedule 3, which also requires that certain activities be done by the person ‘in trade or commerce’.
  5. [9]
    The application is therefore dismissed.

Footnotes

[1]  Australian Consumer Law, s 18.

[2]  Australian Consumer Law, ss 20, 21.

[3]  Australian Consumer Law, s 54.

[4]  Australian Consumer Law, s 55.

[5]  Australian Consumer Law, s 56.

[6]  Australian Consumer Law, s 57.

[7]  Australian Consumer Law, s 58.

[8]  Australian Consumer Law, s 59.

[9]  Australian Consumer Law, s 60.

[10]  Australian Consumer Law, s 61.

[11]  Australian Consumer Law, s 62.

[12]  [2016] FCA 1259, [76].

Close

Editorial Notes

  • Published Case Name:

    Stephen Hilton v Lindsay Baartz

  • Shortened Case Name:

    Hilton v Baartz

  • MNC:

    [2019] QCAT 362

  • Court:

    QCAT

  • Judge(s):

    Member Cranwell

  • Date:

    29 Nov 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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