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Bevis v Mercedes Benz Australia/Pacific Pty Ltd[2020] QCAT 421

Bevis v Mercedes Benz Australia/Pacific Pty Ltd[2020] QCAT 421

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Bevis v Mercedes Benz Australia/Pacific Pty Ltd & Anor [2020] QCAT 421

PARTIES:

david allen bevis

(applicant)

v

mercedes-benz australia/pacific pty ltd

(first respondent)

gary crick auto group pty ltd

 

(second respondent)

APPLICATION NO/S:

MVL042-19

MATTER TYPE:

Motor vehicle matters

DELIVERED ON:

4 November 2020

HEARING DATE:

27 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

Competition and Consumer Act 2010 (Cth), Schedule 2 – Australian Consumer Law, s 54

Fair Trading Act 1989 (Qld), s 50A

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 24 October 2019, Mr Bevis (the applicant) filed an Application – Motor Vehicle Dispute with the Tribunal.  The respondents are Mercedes Benz Australia/Pacific Pty Ltd (the first respondent) and Gary Crick Auto Group Pty Ltd (the second respondent).
  2. [2]
    The applicant purchased a Mercedes-Benz Sprinter van from the second respondent for $57,713.90 on 8 September 2011.  This vehicle was replaced in or around June 2012, when the applicant was supplied with a 2012 Mercedes-Benz Sprinter van (the motor vehicle).
  3. [3]
    The applicant seeks relief under the Australian Consumer Law, which is Schedule 2 to the Competition and Consumer Act 2010 (Cth).  The relief sought by the applicant is a refund plus damages.
  4. [4]
    I note that s 264 of the Australian Consumer Law provides that the replacement of goods is taken to be a supply by the supplier, and the consumer guarantees apply to the replacement goods.
  5. [5]
    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. [6]
    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. [7]
    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. [8]
    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. (a)
      fit for all the purposes for which goods of that kind are commonly supplied; and
  2. (b)
      acceptable in appearance and finish; and
  3. (c)
      free from defects; and
  4. (d)
      safe; and
  5. (e)
     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. (a)
      the nature of the goods; and
  2. (b)
      the price of the goods (if relevant); and
  3. (c)
      any statements made about the goods on any packaging or label on the goods; and
  4. (d)
     any representation made about the goods by the supplier or manufacturer of the goods; and
  5. (e)
     any other relevant circumstances relating to the supply of the goods.
  1. [9]
    In relation to fitness for purpose, the Australian Consumer Law also deals with the suitability of goods for one or more specific disclosed purposes, made known by the consumer to the supplier in s 55:
  1. (1)
      If:
  1. (a)
     a person (the supplier) supplies, in trade or commerce, goods to a consumer; and
  2. (b)
     supply does not occur by way of sale by auction;

there is a guarantee that the goods are reasonably fit for any disclosed purpose, and for any purpose for which the supplier represents that they are reasonably fit.

  1. (2)
     A disclosed purpose is a particular purpose (whether or not that purpose is a purpose for which the goods are commonly supplied) for which the goods are being acquired by the consumer and that:
  1. (a)
     the consumer makes known, expressly or by implication, to:
  1. (i)
     the supplier; or
  2. (ii)
     a person by whom any prior negotiations or arrangements in relation to the acquisition of the goods were conducted or made; or
  1. (b)
     the consumer makes known to the manufacturer of the goods either directly or through the supplier or the person referred to in paragraph (a)(ii).

Evidence

  1. [10]
    The applicant provided voluminous material to the Tribunal.  The critical passage in the applicant’s statement is:

June 2012 I received my replacement Sprinter Van …

In 2015 at approx. 30,000 to 50,000 kms my van started to over-ride my driving and switch into limp mode approximately once a week.  This quickly increased to multiple times each day …

  1. [11]
    What follows in the applicant’s statement is a story of ongoing difficulties with the motor vehicle.  In summary:
    1. (a)
      The applicant purchased a Mercedes-Benz Sprinter van for his mobile welding business.  The salesperson for the second respondent assured him that the motor vehicle would be perfect for that activity, and had exceptional reliability.
    2. (b)
      The applicant returned the motor vehicle for repair many times to the second respondent.  Each time he collected the motor vehicle, it continued to perform the same way, going into limp mode.
    3. (c)
      On 15 July 2016, the applicant presented at the second respondent’s service department with the motor vehicle continuously going into limp mode.  “This had started occurring over a year ago, happening irregularly, approximately three times a month … and increased in occurrence, up to numerous times every day.”  The applicant was quoted a cost of $1,000 to replace the bolt in the turbo, a cover for the inlet manifold and to repair an oil leak.  The second respondent told the applicant that the motor vehicle was out of the warranty period.  Eventually, the first respondent approved the repair.
    4. (d)
      On 1 August 2016, the applicant returned the motor vehicle to the second respondent for repairs.  The repairs took four hours.  Ten minutes after leaving the second respondent, the motor vehicle went back into limp mode.  The applicant drove the motor vehicle straight back to the second respondent, but they refused to look at the motor vehicle.
    5. (e)
      In October 2016, the applicant took the motor vehicle to Coolum Motors.  Coolum Motors identified oil splatter air coming out of the inlet manifold.  They quoted $474 for repairs.
    6. (f)
      The motor vehicle broke down three times in July 2017.
    7. (g)
      On 4 August 2017, the applicant presented at Daimler Trucks to have the motor vehicle repaired.
    8. (h)
      On 9 August 2017, a day after it was returned, the motor vehicle would not start.  The applicant called the RACQ, and the motor vehicle was towed.
    9. (i)
      On 10 August 2017, the applicant arranged to have the motor vehicle delivered to Daimler Caboolture.  The alternator was replaced.
    10. (j)
      Subsequently, the ignition randomly disengaged and the motor vehicle would stop working.
    11. (k)
      On 15 August 2017, the motor vehicle would not start.  The applicant called the RACQ, who advised that the motor vehicle required a replacement battery.
    12. (l)
      The applicant claims that the motor vehicle has been altered so that limp mode cannot be activated.
    13. (m)
      Other owners of Mercedes-Benz Sprinter vans have also experienced problems, and provided statements.  The second respondent is the subject of negative reviews on social media websites.
  2. [12]
    During cross-examination, the applicant stated that he first reported the problems with the engine going into limp mode on 17 April 2014.  I asked the applicant why he put in his statement that the problem with limp mode started in 2015.  The applicant stated that this date comes from service records provided by the first respondent in its evidence, which he did not previously have access to.  I asked the applicant to show me where in the service records for 17 April 2014 it referred to the limp mode problem.  The applicant conceded they did not, but stated that he kept his own notes which contain such a reference.  This led me back to my original question as to why the applicant put in his statement that the problem with the limp mode started in 2015.
  3. [13]
    The first respondent also provided voluminous material to the Tribunal.  Relevantly:
    1. (a)
      In late July 2017, the first respondent undertook diagnostic tests and discovered that certain parts which required replacement (primarily, a broken inlet manifold) had arisen as part of normal wear and tear.
    2. (b)
      The issue with the alternator in August 2017 was due to the charging brushes having worn down, due to age.  A non-genuine battery had been installed.
    3. (c)
      The applicant was also advised in August 2017 that he was incorrectly completing the starting sequence, which was the cause of the motor vehicle not starting.
    4. (d)
      The reason why limp mode is no longer activating is because the motor vehicle has been repaired and is fully functional.
    5. (e)
      In testing undertaken on 17 March 2020 by the first respondent, there were no faults detected with the motor vehicle.
    6. (f)
      Service details were provided showing that the motor vehicle had travelled:
      1. 39,999 km as at 3 May 2013;
      2. 82,080 km as at 17 April 2014;
      3. 107,099 km as at 27 February 2015;
      4. 115,200 km as at 18 May 2015;
      5. 143,759 km as at 8 April 2016;
      6. 154,275 km as at 2 August 2016;
      7. 189,568 km as at 4 August 2017;
      8. 189,819 km as at 10 August 2017; and
      9. 234,616 km as at 17 March 2020.
  4. [14]
    I questioned the applicant in relation to his evidence that the motor vehicle had travelled 30,000 to 50,000 km in 2015, given the odometer readings recorded in the service records.  The applicant stated that the service records should not be accepted because he had not signed them.
  5. [15]
    The second respondent did not provide any evidence.

Consideration

  1. [16]
    I accept the applicant’s evidence that he disclosed the operation of a mobile welding business to the second respondent as the purpose for purchasing the motor vehicle.
  2. [17]
    I also accept the applicant’s evidence that he took possession of the motor vehicle in June 2012.
  3. [18]
    I find that the applicant began experience problems with the engine going into limp mode in approximately July 2015.  This is a year before 15 July 2016, at which time the applicant stated that he had been experiencing the problem for approximately a year.
  4. [19]
    I did not find the applicant’s claims given in oral evidence to have reported the problem with the limp mode on 17 April 2014 to be plausible.  The applicant initially stated that this date came from service records which he did not previously have access to, but those records did not refer to the limp mode problem.  The applicant then stated that he kept his own notes, which raised the question as to why he did not put that date in his statement to begin with.
  5. [20]
    Nor did I find plausible the applicant’s evidence that the motor vehicle had only travelled between 30,000 to 50,000 km in 2015.  It is clear from the service records provided by the first respondent that the motor vehicle had travelled well over 100,000 km by July 2015.  The applicant’s explanation that he did not sign the service records can only be explained by the respondents (either separately or together) having falsified the whole series of service records, and there is no evidence to support this beyond the applicant’s mere assertion that they have done so.
  6. [21]
    I accept that the applicant experienced problems with the motor vehicle from July 2015 until at least August 2017.  However, there is insufficient evidence to enable me to be satisfied that the motor vehicle was not of acceptable quality at the time of supply.  In particular, by the time the problems manifested themselves in July 2015:
    1. (a)
      the motor vehicle was by that stage over three years old; and
    2. (b)
      the motor vehicle had travelled in excess of 100,000 km.
  7. [22]
    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, for example, I was prepared to infer that the respective motor vehicles were not of acceptable quality at the date of supply where 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 defects did not manifest themselves until over three years after the date of supply and at a time when the motor vehicle had travelled over 100,000 km.  The more time that has elapsed, and the further a vehicle has been driven, the greater is the scope for any defects to have arisen from intervening events occurring after the time of supply.
  8. [23]
    I note that I made directions for the filing of witness statements on 12 February 2020.  In particular, those directions addressed the possibility of expert evidence at paragraphs 5 and 8:

5. No party will be allowed to present evidence from more than one (1) expert without justifying the need for additional expert evidence to the Tribunal.

…

8. In the event that both parties provide expert evidence, unless the Tribunal otherwise orders, the experts are to give their evidence concurrently.

  1. [24]
    The applicant chose not to file any expert evidence, which has limited the findings I am prepared to make.
  2. [25]
    For completeness, I also note that the statements from other Mercedes-Benz Sprinter van owners tell me nothing about the mechanical condition of the motor vehicle the subject of these proceedings.  Nor do negative reviews of the second respondent on social media websites cast any light on the mechanical condition of the motor vehicle. 
  3. [26]
    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. 
  4. [27]
    For the same reasons, I am not satisfied that the motor vehicle was not fit for the disclosed purpose as at the time of supply.

Orders

  1. [28]
    The application is dismissed.
Close

Editorial Notes

  • Published Case Name:

    Bevis v Mercedes Benz Australia/Pacific Pty Ltd & Anor

  • Shortened Case Name:

    Bevis v Mercedes Benz Australia/Pacific Pty Ltd

  • MNC:

    [2020] QCAT 421

  • Court:

    QCAT

  • Judge(s):

    Member Cranwell

  • Date:

    04 Nov 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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