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  4. Georgeson v Ford Motor Company Australia Ltd - [2020] QCAT 388

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Georgeson v Ford Motor Company Australia Ltd[2020] QCAT 388

Georgeson v Ford Motor Company Australia Ltd[2020] QCAT 388

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Georgeson v Ford Motor Company Australia Ltd & Anor [2020] QCAT 388

PARTIES:

andrew georgeson

(applicant)

 

v

 

ford motor company australia ltd

(first respondent)

 

ap ford pty ltd

(second respondent)

APPLICATION NO/S:

MVL066-19

MATTER TYPE:

Motor vehicle matters

DELIVERED ON:

13 October 2020

HEARING DATE:

13 October 2020

HEARD AT:

Brisbane

DECISION OF:

Member Cranwell

ORDERS:

The application 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 – whether motor vehicle of acceptable quality

Australian Consumer Law, s 54

Competition and Consumer Act 2010 (Cth), Schedule 2

Fair Trading Act 1989 (Qld), s 50A

Queensland Civil and Administrative Tribunal and Other Legislation Amendment Act 2019 (Qld), s 286

ACH Computing Pty Ltd v Austral Pty Ltd trading as Brisbane City Jaguar Land Rover [2020] QCAT 176

Haisman v Drive (Aust) Pty Ltd [2020] QCAT 44

Medtel Pty Ltd v Courtney (2003) 130 FCR 182

APPEARANCES &

REPRESENTATION:

 

Applicant:

Self-represented

First Respondent:

Self-represented

Second Respondent:

Self-represented

REASONS FOR DECISION

  1. [1]
    On 19 November 2019, Mr Georgeson (the applicant) filed an Application – Motor Vehicle Dispute with the Tribunal. 
  2. [2]
    The respondents are Ford Motor Company Australia Ltd (the first respondent) and AP Ford Pty Ltd (the second respondent).
  3. [3]
    The applicant is the owner of a 2013 Ford Ranger (the motor vehicle). 
  4. [4]
    The applicants purchased the motor vehicle from the second respondent on 30 June 2013 for $63,241.91.
  5. [5]
    The applicants seek relief under the Australian Consumer Law, which is Schedule 2 to the Competition and Consumer Act 2010 (Cth).  The relief sought by the applicants is a refund plus damages.
  6. [6]
    Section 50A of the Fair Trading Act 1989 (Qld) vests the Tribunal with jurisdiction in relation to motor vehicles in respect of certain actions under the Australian Consumer Law.

Guarantee of acceptable quality

  1. [7]
    Section 54(1) of the Australian Consumer Law provides that, where a person supplies goods in trade or commerce, the goods are guaranteed to be of ‘acceptable quality’.
  2. [8]
    The time at which goods are to be of acceptable quality is the time at which the goods are supplied to the consumer: Medtel Pty Ltd v Courtney (2003) 130 FCR 182 at [64] and [70].  However, information available after the time of supply may be taken into account in deciding whether the goods were of acceptable quality at the time of supply.
  3. [9]
    Sections 54(2) and (3) of the Australian Consumer Law define acceptable quality as follows:
  1. (2)
    Goods are of acceptable quality if they are as:
  1. fit for all the purposes for which goods of that kind are commonly supplied; and
  2. acceptable in appearance and finish; and
  3. free from defects; and
  4. safe; and
  5. 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 having regard to the matters in subsection (3).

  1. (3)
    The matters for the purposes of subsection (2) are:
  1. the nature of the goods; and
  2. the price of the goods (if relevant); and
  3. any statements made about the goods on any packaging or label on the goods; and
  4. any representation made about the goods by the supplier or manufacturer of the goods; and
  5. any other relevant circumstances relating to the supply of the goods.

Evidence

  1. [10]
    The applicant provided a written statement, in which he stated:
    1. (a)
      The applicant purchased the motor vehicle in late June 2013.  He purchased a three year extended warranty, bringing the total warranty to six years.
    2. (b)
      During the applicant’s first three years of ownership, and with an odometer reading of less than 100,000 km, the motor vehicle developed a vibration and noise in the drive train.
    3. (c)
      In November 2016, the applicant reported the vibration to Sutton Ford in Waikerie, South Australia, and a test drive was carried out.
    4. (d)
      In March 2018, the applicant advised Huston Ford in Kingaroy of the vibration.  They performed a software upgrade on the motor vehicle, which did not resolve the issue.
    5. (e)
      Since March 2018, the motor vehicle has been with Armstrong Ford for 45 days.  The gearbox, drive shaft and differential were replaced, with no success in fixing the vibration.
    6. (f)
      The applicant stated that the first respondent advised him that they would not investigate the vibration issue any further unless he removed an aftermarket suspension upgrade from the motor vehicle.  He did this in November 2018.
    7. (g)
      In May 2019, the applicant sought to obtain a replacement vehicle or a full refund under a buy back scheme for problem vehicles.  This was rejected by the first respondent.
    8. (h)
      In July 2019, the applicant contacted Metro Ford, and a mechanic took the motor vehicle for a test drive in August 2019.
    9. (i)
      In January 2020, the replacement gearbox started to operate unusually, and was taken to Armstrong Ford to be inspected.  It was found to be overly full of oil.  The gearbox is still not operating correctly.
    10. (j)
      The driver’s side valance has broken more than 10 times.
    11. (k)
      The air conditioning recirculation valve was not replaced under warranty.
  2. [11]
    In his evidence in reply, the applicant refers to the driver’s seat valance being replaced December 2016, and again on 21 June 2019, 30 January 2019, 11 September 2019 and 13 September 2019.
  3. [12]
    Under cross-examination, the applicant stated that he installed the aftermarket suspension in January 2015, nearly two years before he first reported the vibration and noise issue.
  4. [13]
    The applicant did not file any expert evidence.  The only supporting evidence he filed was an invoice from Huston Ford dated 27 March 2018, showing that the software was updated and the transmission problem was rectified.
  5. [14]
    Justin Newbound provided a written statement on behalf of the first respondent, in which he stated:
    1. (a)
      The first respondent has no record of the vibration issue being reported to a Ford dealership in November 2016.
    2. (b)
      The first recorded complaint was on 27 May 2018 with an odometer reading of 134,613 km.  The motor vehicle was inspected by Huston Ford, and the transmission was reprogrammed with the latest software.  Huston Ford determined that the fault was rectified.
    3. (c)
      The motor vehicle was presented to Armstrong Ford on 30 April 2018 with an odometer reading of 138,692 km.  At this time, a collapsed centre bearing rubber was found and replaced.
    4. (d)
      The motor vehicle was again presented to Armstrong Ford on 17 July 2018.  Armstrong Ford noted that the differential and driveline angles were outside Ford specified values.  The applicant was advised that he would need to remove the modified vehicle suspension before further assessment of the vehicle could take place.
    5. (e)
      The motor vehicle was again presented to Armstrong Ford in January 2019 with an odometer reading of 156,304 km.  The transmission was replaced under warranty.
    6. (f)
      In June 2019 at an odometer reading of 164,409 km, the applicant sought a refund.
    7. (g)
      The motor vehicle was again presented to Armstrong Ford in January 2020.  No concerns were able to be replicated during a test drive.
    8. (h)
      Metro Ford has no record of the motor vehicle being presented to them.
  6. [15]
    The first respondent also filed copies of repair orders from Armstrong Ford.
  7. [16]
    The first respondent also relied on an undated report of Frank Bastin, workshop supervisor at Metro Ford.  The report was based on an inspection of the motor vehicle on behalf of the first respondent carried out in July 2020.  Mr Bastin stated:

I … asked the Applicant at this time about when this noise/vibration allegedly started and was told that it was probably 2 to 3 years ago but possibly after initially modifying and raising the Vehicle’s suspension.

…

Based on the above findings while we were able to replicate the customer’s concerns while driving it is my opinion that the aftermarket tyres are having a considerable effect on the [noise, vibration and harshness] characteristics of the vehicle and it is also likely that replacement of the worn engine mounts would also have a positive influence on that concern.

Nonetheless, the fact that in order to induce the specific concern considerable manipulation of the throttle must be undertaken I would not consider this to be normal driving practice and also in terms of the level of vibration and noise that was induced I would consider this to be very minor and would not have any adverse effects on the operation or durability of the vehicle.

  1. [17]
    No evidence was filed by the second respondent.

Consideration

  1. [18]
    On the applicant’s version of events, he first reported the vibration and noise issue in November 2016.  This was over three years after the motor vehicle was purchased.
  2. [19]
    The first respondent’s earliest record of the issue having been raised was in May 2018, which was nearly four years after the motor vehicle was purchased.  By that time, the vehicle had travelled 134,613 km.
  3. [20]
    Even accepting the applicant’s version of events, there is insufficient evidence to enable me to be satisfied that there was a defect in existence at the time of supply, or that the motor vehicle was otherwise not of acceptable quality at that time.  In particular:
    1. (a)
      despite me directing the filing of witness statements, “including any expert”, no expert evidence was filed by the applicant; and
    2. (b)
      despite the first respondent noting in its response that “[n]o evidence has been submitted by applicant outlining root cause of concern and establishing that this is a manufacturing defect at this age/kms”, no such evidence was filed by the applicant.
  4. [21]
    In Haisman v Drive (Aust) Pty Ltd [2020] QCAT 44 and ACH Computing Pty Ltd v Austral Pty Ltd trading as Brisbane City Jaguar Land Rover [2020] QCAT 176, I was prepared to infer that defects were present at the date of supply where the defects manifested themselves within a short period after supply.  However, in the absence of expert evidence, I am not prepared to make a similar inference in the circumstances of this case where the defect did not manifest itself until approximately three years after the date of supply, by which time the motor vehicle had travelled in the vicinity of 100,000 km.  As noted above, no such expert evidence was provided by the applicant.  To the contrary, the expert evidence from Mr Bastin suggests that the vibration and noise issue arose after the applicant made aftermarket modifications to the vehicle.
  5. [22]
    Similarly, I do not have any evidence as to the nature or cause of the issues with the driver’s seat valance, the air conditioning recirculation valve or the gearbox.  I am unable to be satisfied that there were defects in existence at the time of supply, or that the motor vehicle was otherwise not of acceptable quality at that time.
  6. [23]
    On the basis of the evidence before me, I am therefore not satisfied that a reasonable consumer fully acquainted with the state of the motor vehicle at the time of purchase would not regard the motor vehicle as being of acceptable quality as at the time of supply.

Orders

  1. [24]
    The application is dismissed.
Close

Editorial Notes

  • Published Case Name:

    Georgeson v Ford Motor Company Australia Ltd & Anor

  • Shortened Case Name:

    Georgeson v Ford Motor Company Australia Ltd

  • MNC:

    [2020] QCAT 388

  • Court:

    QCAT

  • Judge(s):

    Member Cranwell

  • Date:

    13 Oct 2020

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
ACH Computing Pty Ltd v Austral Pty Ltd [2020] QCAT 176
2 citations
Jump To
Cite 1 - [2020] QCAT 176
Cite 2 - [2020] QCAT 176
Haisman v Drive (Aust) Pty Ltd [2020] QCAT 44
2 citations
Jump To
Cite 1 - [2020] QCAT 44
Cite 2 - [2020] QCAT 44
Medtel Pty Ltd v Courtney (2003) 130 FCR 182
2 citations
Jump To
Cite 1 - (2003) 130 FCR 182
Cite 2 - (2003) 130 FCR 182

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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