Queensland Judgments
Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Lawless v Austral Pty Ltd trading as Brisbane City Land Rover[2021] QCAT 297

Lawless v Austral Pty Ltd trading as Brisbane City Land Rover[2021] QCAT 297

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Lawless v Austral Pty Ltd trading as Brisbane City Land Rover [2021] QCAT 297

PARTIES:

gregory lawless

(applicant)

V

austral pty ltd trading as brisbane city land rover

(respondent)

APPLICATION NO/S:

MVL233-20

MATTER TYPE:

Motor vehicle matters

DELIVERED ON:

20 August 2021

HEARING DATE:

20 August 2021

HEARD AT:

Brisbane

DECISION OF:

Member Cranwell

ORDERS:

  1. Gregory Lawless is required to return the motor vehicle the subject of these proceedings to Austral Pty Ltd trading as Brisbane City Land Rover within 14 days of the date of these orders.
  2. Austral Pty Ltd trading as Brisbane City Land Rover is required to pay to Gregory Lawless the amount of $62,000 within 28 days of the date of these 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 guarantee a major failure – whether goods rejected during the rejection period – whether consumer entitled to refund

Australian Consumer Law, s 54, s 259, s 260, s 262, s 263, s 274

Competition and Consumer Act 2010 (Cth), Schedule 2

Fair Trading Act 1989 (Qld), s 50A

Treasury Laws Amendment (2020 Measures No. 6) Act 2020 (Cth)

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

Crawford v Sunco Motors Pty Ltd [2021] QCAT 183

Foley v Westco Cairns Pty Ltd [2020] QCAT 345

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

Kablar Financial Services Pty Ltd v LSH Auto (Brisbane) Pty Ltd trading as Mercedes-Benz Brisbane [2020] QCAT 346

Laceur v Townsville Auto Group Pty Ltd & Anor [2021] QCAT 247

Medtel Pty Ltd v Courtney (2003) 130 FCR 182

Morphy v Beaufort Townsville Pty Ltd [2018] VCAT 1520

Sullivan & Anor v James Frizelle’s Automotive Group Pty Ltd [2021] QCAT 49

APPEARANCES &

REPRESENTATION:

 

Applicant:

Self-represented

Respondent:

Self-represented

REASONS FOR DECISION

  1. [1]
    On 5 November 2020, Gregory Lawless (‘the applicant’) filed an Application – Motor Vehicle Dispute with the Tribunal.  The respondent is Austral Pty Ltd trading as Brisbane City Land Rover (‘the respondent’).
  2. [2]
    The applicant is the owner of a 2017 Land Rover Evoque (‘the motor vehicle’). 
  3. [3]
    The applicant purchased the motor vehicle from the respondent on 15 December 2017 for $62,000.  The motor vehicle came with a five year warranty, expiring on 15 December 2022.
  4. [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.
  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.

Australian Consumer Law provisions

  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
  1. (b)
    acceptable in appearance and finish; and
  1. (c)
    free from defects; and
  1. (d)
    safe; and
  1. (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
  1. (b)
    the price of the goods (if relevant); and
  1. (c)
    any statements made about the goods on any packaging or label on the goods; and
  1. (d)
    any representation made about the goods by the supplier or manufacturer of the goods; and
  1. (e)
    any other relevant circumstances relating to the supply of the goods.
  1. [9]
    The Macquarie Dictionary defines the word ‘defect’ to mean ‘a fault’ or ‘imperfection’. 
  2. [10]
    The Macquarie Dictionary defines ‘durable’ as ‘having the quality of lasting or enduring of or relating to goods which will be good for some time, as opposed to those intended to be used or consumed immediately’.

Evidence

  1. [11]
    The applicant gave the following evidence:
    1. (a)
      On 19 December 2017, the applicant took delivery of the motor vehicle.
    2. (b)
      On 10 July 2018, the motor vehicle displayed an early service warning light.  The applicant presented the motor vehicle to a dealer in Brisbane.  The dealer found fault codes and the oil dilution to be 7.5%.  The dealer undertook recall action work for oil dilution reset.
    3. (c)
      In August 2018, a warning relating to the diesel particulate filter appeared on the instrument panel.  It stated words to the effect of ‘drive the vehicle for a 20 minute period at a speed of over 60 km/h’.  The applicant did this, and the warning cleared.
    4. (d)
      In September 2018, the same warning appeared, and the applicant cleared the warning by driving as instructed.
    5. (e)
      On 17 October 2018, the red diesel particulate filter light appeared on the instrument panel.  The applicant arranged for the motor vehicle to be transported to a dealer in Townsville.  The dealer carried out a high pressure test but found no leak.  The dealer cleared the codes.  The motor vehicle was off the road for approximately one week.
    6. (f)
      In April/May 2019, the red diesel particulate filter light appeared on the instrument panel again.  The applicant arranged for the motor vehicle to be transported to a dealer in Mackay.  The dealer advised that the motor vehicle required a particulate filter regeneration, and replacement of another part which needed to be sourced offshore.  The motor vehicle was off the road for approximately one month.
    7. (g)
      On 2 May 2020, the red diesel particulate filter light appeared on the instrument panel again.  The applicant arranged for Bill Wood of B&M Diesel Repairs to inspect the motor vehicle.  Mr Woods found a diesel particular filter pressure sensor fault.  He was able to mobilise the motor vehicle.
    8. (h)
      On 30 June 2020, the applicant presented the motor vehicle to a dealer in Brisbane with squeaking brakes.  The dealer tested the diesel particulate filter.  Codes were found for NOX sensor fault, which was replaced.  The dealer also found that the front and rear brake pads were above the service limit and required ‘brake clean and shampher’.  The motor vehicle was off the road for approximately one week.
    9. (i)
      On 2 August 2020, the red diesel particulate filter light appeared on the instrument panel again.  The applicant arranged for the motor vehicle to be transported to a dealer in Mackay.  The dealer advised the applicant that ‘there was nothing wrong with it’.
    10. (j)
      On 1 September 2020, the red diesel particulate filter light appeared on the instrument panel again.  The applicant arranged for the motor vehicle to be transported to a dealer in Townsville.  The dealer found codes for vehicle condition incorrect for particulate filter regeneration and restriction soot accumulation.  The motor vehicle was off the road for approximately three weeks.
    11. (k)
      On 12 October 2020, the red diesel particulate filter light appeared on the instrument panel again.  The applicant arranged for the motor vehicle to be transported to a dealer in Townsville.  The dealer found codes for diesel particulate filter restriction - soot accumulation.    The motor vehicle was off the road for approximately three weeks.
    12. (l)
      On 30 January 2021, the red diesel particulate filter light appeared on the instrument panel again.  The applicant called the RACQ, who advised that the applicant should drive the motor vehicle to them.  The mechanic advised that he would not touch the motor vehicle due to the amount of regenerations that had already been done, which he explained compromised the diesel particulate filter system.  The motor vehicle was off the road for approximately six days.
  2. [12]
    The applicant provided service invoices relating to the occasions when the motor vehicle was returned to a dealer.
  3. [13]
    The applicant also provided a report from Bill Woods of B&M Diesel Repairs dated 15 February 2021.  Relevantly, Mr woods stated:

In my experience with DPF [diesel particulate filter] systems and the fault code found on the vehicle, I believe there may be a fault with the pressure differential sensor or an error within the programmable parameters of the DPF system.  This is due to the fact that the car is not presenting with an amber warning light on the dash display, thus notifying the driver that the vehicle is required to be driven for a period of time to carry out an active regeneration.  The vehicle is instead presenting right away with the red engine light and derating the engine.  This has continually resulted in the driver/owner having to park the car and await towing to the nearest Land Rover dealer.

  1. [14]
    The respondent did not file any evidence.  As the hearing, Richard Moye, who appeared on behalf of the respondent, adopted what I would describe as a very helpful approach.  He noted that the respondent was a franchise dealer, and the motor vehicle had been repaired in accordance with the manufacturer’s specifications.  Mr Moye stated that the motor vehicle was not designed for driving short distances.  He also stated that the respondent had not investigated the issue of the amber warning light not coming on.
  2. [15]
    I accept the applicant’s evidence in its entirety.  In the absence of any evidence to the contrary, I also accept Mr Woods’ evidence as to the likely cause of the problems with the diesel particulate filter system.  Accordingly, I find that any fault with the pressure differential sensor would either have been present at the time of supply or, alternatively, that the sensor was lacking in durability at the time of supply.
  3. [16]
    I find that a reasonable consumer fully acquainted with the state of the motor vehicle at the time of purchase, particularly having regard to:
    1. (a)
      the presence of defects with the diesel particulate filter system which resulted in the motor vehicle being towed on five occasions and being off the road for a total of four and a half months;
    2. (b)
      the purchase price of $62,000; and
    3. (c)
      the motor vehicle being new,

would not regard the motor vehicle as free from defects and durable.

Remedies

  1. [17]
    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:
  1. (1)
    A failure to comply with a guarantee referred to in section 259(1)(b) that applies to a supply of goods is a major failure if:
  1. (a)
    the goods would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of the failure; or
  1. (b)
    the goods depart in one or more significant respects:
  1. (i)
    if they were supplied by description—from that description; or
  1. (ii)
    if they were supplied by reference to a sample or demonstration model—from that sample or demonstration model; or
  1. (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
  1. (d)
    the goods are unfit for a disclosed purpose that was made known to:
  1. (i)
    the supplier of the goods; or
  1. (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

  1. (e)
    the goods are not of acceptable quality because they are unsafe.
  1. [18]
    The test of whether there is a major failure for the purposes of s 260 and the test for whether goods are of acceptable quality for the purposes of s 54 both adopt a ‘reasonable consumer’ benchmark. For the reasons already given, I find that the defects relating to the diesel particulate filter system are such that a reasonable consumer fully acquainted with the nature and extent of the failure, would not have acquired the motor vehicle.
  2. [19]
    I note that this conclusion is consistent with that reached by the Tribunal in many other cases, including Haisman v Drive (Aust) Pty Ltd [2020] QCAT 44, ACH Computing Pty Ltd v Austral Pty Ltd trading as Brisbane City Jaguar Land Rover [2020] QCAT 176, Foley v Westco Cairns Pty Ltd [2020] QCAT 345, Kablar Financial Services Pty Ltd v LSH Auto (Brisbane) Pty Ltd trading as Mercedes-Benz Brisbane [2020] QCAT 346, Sullivan & Anor v James Frizelle’s Automotive Group Pty Ltd [2021] QCAT 49, Crawford v Sunco Motors Pty Ltd [2021] QCAT 183 and Laceur v Townsville Auto Group Pty Ltd & Anor [2021] QCAT 247.
  3. [20]
    Alternatively, s 259(2) of the Australian Consumer Law provides:
  1. (2)
    If the failure to comply with the guarantee can be remedied and is not a major failure:
  1. (a)
    the consumer may require the supplier to remedy the failure within a reasonable time; or
  1. (b)
    if such a requirement is made of the supplier but the supplier refuses or fails to comply with the requirement, or fails to comply with the requirement within a reasonable time—the consumer may:
  1. (i)
    otherwise have the failure remedied and, by action against the supplier, recover all reasonable costs incurred by the consumer in having the failure so remedied; or
  1. (ii)
    subject to section 262, notify the supplier that the consumer rejects the goods and of the ground or grounds for the rejection.
  1. [21]
    I find that the defects relating to the diesel particulate filter system, which were still present after three years, were not remedied within a reasonable time.  Even if I am wrong in concluding that the failures taken as a whole constitute a major failure, the applicant would still have a right to reject the motor vehicle under s 259(2)(b)(ii).
  2. [22]
    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:
  1. (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:
  1. (a)
    the type of goods; and
  1. (b)
    the use to which a consumer is likely to put them; and
  1. (c)
    the length of time for which it is reasonable for them to be used; and
  1. (d)
    the amount of use to which it is reasonable for them to be put before such a failure becomes apparent.
  1. [23]
    In Morphy v Beaufort Townsville Pty Ltd [2018] VCAT 1520 at [86], the Victorian Civil and Administrative Tribunal held that, while the rejection period did not necessarily correlate with the manufacturer’s warranty period, the warranty period was relevant in considering whether the rejection period had expired:

[A]t the time of the rejection, the motor car remained under a three year/100,000 kilometre manufacturer’s warranty. In determining if the rejection period has ended, the Tribunal is not bound by the warranty period given by an express manufacturer’s warranty. Nevertheless, the express warranty period is relevant evidence of the expected period of largely problem-free use of goods.

  1. [24]
    I have treated the filing of the application with the Tribunal on 5 November 2020, in which the applicant sought a refund, as a rejection of the motor vehicle.  This was communicated to the respondent by service of the application.
  2. [25]
    The applicant provided evidence that he waited almost three years before rejecting the motor vehicle because he was hoping for all the issues to be resolved.  However, by the time the application was filed with the Tribunal, he had concluded that the problems were ongoing.
  3. [26]
    In the context of the motor vehicle having a five-year warranty, I am satisfied that the applicant rejected the motor vehicle within the rejection period.
  1. [27]
    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 of the refund payable under s 263(4)(a).  In this case, 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).

Orders

  1. [28]
    The orders of the Tribunal are:
  1. The applicant is required to return the motor vehicle the subject of these proceedings to the respondent within 14 days of the date of these orders.
  2. The respondent is required to pay to the applicant the amount of $62,000 within 28 days of the date of these orders.
Close

Editorial Notes

  • Published Case Name:

    Lawless v Austral Pty Ltd trading as Brisbane City Land Rover

  • Shortened Case Name:

    Lawless v Austral Pty Ltd trading as Brisbane City Land Rover

  • MNC:

    [2021] QCAT 297

  • Court:

    QCAT

  • Judge(s):

    Member Cranwell

  • Date:

    20 Aug 2021

Appeal Status

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

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.