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- Unreported Judgment
Hilton v Baartz QCAT 362
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Hilton v Baartz  QCAT 362
Motor vehicle matters
29 November 2019
On the papers
The Application – Motor Vehicle Dispute filed on 16 September 2019 is dismissed.
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  FCA 1259
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
- On 16 September 2019, Mr Hilton filed a Form 59: Application – Motor Vehicle Dispute with the Tribunal.
- 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.
- 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.
- 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—
- (a)under a provision of the Australian Consumer Law (Queensland) listed in the table to this section; and
- (b)relating to a motor vehicle; and
- (c)seeking an amount or value of other relief of not more than $100,000.
- The protections against misleading or deceptive conduct and unconscionable conduct 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, goods fit for the purpose, goods of corresponding description, supply by way of sample or demonstration model, repairs and spare parts, compliance with any express warranty, services rendered with due care and skill, services fit for purpose and services supplied within a reasonable time provided for in Chapter 3 are only imposed where the goods or services are supplied to a consumer ‘in trade or commerce’.
- In Walker v Sell, 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.
- 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).
- 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’.
- The application is therefore dismissed.
 Australian Consumer Law, s 18.
 Australian Consumer Law, ss 20, 21.
 Australian Consumer Law, s 54.
 Australian Consumer Law, s 55.
 Australian Consumer Law, s 56.
 Australian Consumer Law, s 57.
 Australian Consumer Law, s 58.
 Australian Consumer Law, s 59.
 Australian Consumer Law, s 60.
 Australian Consumer Law, s 61.
 Australian Consumer Law, s 62.
  FCA 1259, .
- Published Case Name:
Stephen Hilton v Lindsay Baartz
- Shortened Case Name:
Hilton v Baartz
 QCAT 362
29 Nov 2019