Moldovan v Aria Motors Pty Ltd
[2021] QCAT 173
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- Unreported Judgment
- Moldovan v Aria Motors Pty Ltd[2021] QCAT 173
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Moldovan v Aria Motors Pty Ltd[2021] QCAT 173
Moldovan v Aria Motors Pty Ltd[2021] QCAT 173
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Moldovan v Aria Motors Pty Ltd [2021] QCAT 173 |
PARTIES: | andreia moldovan |
(applicant) | |
v | |
aria motors pty ltd | |
(respondent) | |
APPLICATION NO/S: | MVL160-20 |
MATTER TYPE: | Motor vehicle matters |
DELIVERED ON: | 11 May 2021 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Member Cranwell |
ORDERS: |
|
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 – whether failure to comply with consumer guarantees a major failure – whether goods rejected during the rejection period – whether consumer entitled to refund – whether consumer entitled to damages Competition and Consumer Act 2010 (Cth), Schedule 2 – Australian Consumer Law s 54, s 259, s 260, s 262, s 263 Fair Trading Act 1989 (Qld), s 50A Haisman v Drive (Aust) Pty Ltd [2020] QCAT 44 Medtel Pty Ltd v Courtney (2003) 130 FCR 182 |
APPEARANCES & REPRESENTATION: | |
Applicant: | Self-represented |
Respondent: | Self-represented |
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]On 14 July 2020, Ms Moldovan (‘the applicant’) filed an Application – Motor Vehicle Dispute with the Tribunal. The respondent is Aria Motors Pty Ltd (‘the respondent’).
- [2]The applicant is the owner of a 2010 BMW X5 wagon (‘the motor vehicle’).
- [3]The applicant purchased the motor vehicle from the respondent on 13 June 2020 for $23,500.
- [4]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.
- [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
- [6]Section 54(1) of the Australian Consumer Law provides that, where a person supplies goods in trade or commerce (other than by way of auction), the goods are guaranteed to be of ‘acceptable quality’.
- [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.
- [8]Sections 54(2) and (3) of the Australian Consumer Law define acceptable quality 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
- (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).
- (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.
Evidence
- [9]The applicant provided evidence that the engine check light on the motor vehicle came on the day after purchase, namely 14 June 2020. The applicant sought to return the motor vehicle and obtain a refund. The respondent refused to accept return of the motor vehicle, and requested that the applicant take the motor vehicle to Linz Motors for repairs.
- [10]The applicant provided evidence that, on 16 June 2020, Linz Motors changed the sensor that caused the engine check light to come on. However, this did not rectify the problem and the engine check light came on again.
- [11]Several days later, on 25 June 2020, the applicant arranged for an inspection of the motor vehicle to be carried out by Gold Coast BMW. The report from Gold Coast BMW stated:
On inspection found back pressure sensors had failed and leaking. This will need replacing first and then retesting - $730 fitted
Micro filter housing broken up and allowing exhaust fume into vehicle. These will need replacing - $1,398
Oil leaks found on vehicle. Oil filter housing gasket need replacing - $494 fitted
Inlet manifold leaking - $540
Sump gasket leaking oil - $2,073
Timing chain tension seal leaking - $662
Sump gasket leaking oil - $1,445
Transmission sump leaking oil - $2,052 inc new oil
Slight play in front and rear anti roll bar lionks (sic)
Rear diff pinion leaking oil - $889 fitted
- [12]The quote for the required repairs totalled $10,283.
- [13]The respondent filed no evidence.
- [14]In these circumstances, I accept the applicant’s evidence. Given the short period of time between purchase and inspection by Gold Coast BMW, I am prepared to infer that the defects listed in the Gold Coast BMW report above were present at the time of purchase.
- [15]I find that a reasonable consumer fully acquainted with the state of the motor vehicle at the time of purchase, particularly having regard to:
- (a)the presence of multiple faults requiring repairs totalling $10,283; and
- (b)the purchase price of $23,500,
- (a)
would not regard the motor vehicle as free from defects. Accordingly, I find that the respondent failed to comply with the guarantee of acceptable quality.
Remedies
- [16]The remedy available to the consumer against the supplier depends in the first instance on whether the failure is a ‘major failure’. That term is defined in s 260 of the Australian Consumer Law to relevantly mean:
- (a)the goods would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of the failure; or
- (b)the goods depart in one or more significant respects:
- (i)if they were supplied by description—from that description; or
- (ii)if they were supplied by reference to a sample or demonstration model—from that sample or demonstration model; or
- (c)the goods are substantially unfit for a purpose for which goods of the same kind are commonly supplied and they cannot, easily and within a reasonable time, be remedied to make them fit for such a purpose; or
- (d)the goods are unfit for a disclosed purpose that was made known to:
- (i)the supplier of the goods; or
- (ii)a person by whom any prior negotiations or arrangements in relation to the acquisition of the goods were conducted or made;
and they cannot, easily and within a reasonable time, be remedied to make them fit for such a purpose; or
- (e)the goods are not of acceptable quality because they are unsafe.
- [17]I find that the cost of rectifying the faults, being almost half the purchase price, is such that a reasonable consumer fully acquainted with the nature and extent of the failure, would not have acquired the motor vehicle.
- [18]In order to obtain a refund, the consumer is required to reject within the ‘rejection period’. That term is defined in s 262(2) of the Australian Consumer Law to mean:
- (2)The rejection period for goods is the period from the time of the supply of the goods to the consumer within which it would be reasonable to expect the relevant failure to comply with a guarantee referred to in section 259(1)(b) to become apparent having regard to:
- (a)the type of goods; and
- (b)the use to which a consumer is likely to put them; and
- (c)the length of time for which it is reasonable for them to be used; and
- (d)the amount of use to which it is reasonable for them to be put before such a failure becomes apparent.
- [19]The applicant sought a refund by email on 14 June 2020. This was the day after purchase. In these circumstances, I am satisfied that the applicant rejected the motor vehicle within the rejection period.
- [20]In Haisman v Drive (Aust) Pty Ltd [2020] QCAT 44 at [24], I found that the Tribunal has jurisdiction to make an order requiring the supplier to pay to the consumer a stated amount of money, namely the amount payable under s 263(4)(a). That paragraph is expressed in mandatory terms, and requires the supplier to:
- (a)refund:
- (i)any money paid by the consumer for the goods; and
- (ii)an amount that is equal to the value of any other consideration provided by the consumer for the goods …
- [21]In this case, the applicant traded in a Holden Astra as partial satisfaction of the purchase price. The money paid by the applicant and the value of the Holden Astra necessarily total the full purchase price of $23,500.
- [22]The applicant has notified the respondent that the goods have been rejected in accordance with s 263(1) of the Australian Consumer Law. I will give effect to the requirement in s 263(2) that the goods be returned by so ordering. Upon the return of the motor vehicle, the applicant will be entitled to a refund pursuant to s 263(4)(a).
- [23]For completeness, I note that s 263(4)(a) does not permit the Tribunal to order the return of the Holden Astra as sought by the applicant.
Damages
- [24]The Tribunal is vested with jurisdiction in respect of actions under s 259(4) of the Australian Consumer Law, which provides:
The consumer may, by action against the supplier, recover damages for any loss or damage suffered by the consumer because of the failure to comply with the guarantee, if it was reasonably foreseeable that the consumer would suffer such loss or damage as a result of such a failure.
- [25]The applicant has claimed the amount of $286.05, being the costs of the inspection by Gold Coast BMW. I consider that this expense was reasonably foreseeable, and is recoverable, given that the respondent’s chosen repairer failed to rectify the defects.
- [26]The applicant has also claimed $300 in petrol. There is no evidence to support this claim.
- [27]The applicant has also sought the difference between the trade in value of her Holden Astra and what she described as the market value of the Holden Astra. It is common knowledge that the trade in value of a vehicle is usually less than could be obtained on a private sale. When the applicant purchased the motor vehicle, she would have had the choice of trading in her Holden Astra or selling the Holden Astra privately. She chose to trade in her Holden Astra. It is not the role of the Tribunal to revisit the applicant’s choice. She is receiving a full refund on the motor vehicle, which includes the trade in value of the Holden Astra in accordance with s 263(4)(a)(ii), and I am unable to identify any additional loss or damage in this regard.
Orders
- [28]The orders of the Tribunal are:
- The applicant is required to return the motor vehicle the subject of these proceedings to the respondent within 7 days of the date of these orders.
- The respondent is required to pay to the applicant the amount of $23,786.05 within 28 days of the date of these orders.