Queensland Judgments
Authorised Reports & Unreported Judgments
  • sclq logo
  1. Caselaw
  2. QCAT
  3. 2022
  4. Mohammed v Old Mac T Pty Ltd - [2022] QCAT 177

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

Mohammed v Old Mac T Pty Ltd[2022] QCAT 177

Mohammed v Old Mac T Pty Ltd[2022] QCAT 177

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Mohammed v Old Mac T Pty Ltd [2022] QCAT 177

PARTIES:

SALMAN MOHAMMED

(applicant)

V

OLD MAC T PTY LTD

(respondent)

APPLICATION NO/S:

MCDO0566-20

MATTER TYPE:

Other minor civil dispute matters

DELIVERED ON:

17 May 2022

HEARD AT:

Brisbane

DECISION OF:

Adjudicator Lember

ORDERS:

The application for a minor civil dispute filed 19 May 2020 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 – whether failure to comply with consumer guarantee a major failure or minor failure – whether consumer entitled to damages for misdescription

Competition and Consumer Act 2010 (Cth) s 54(1), s 54(2), s 54(3), s 260, s 267(4), schedule 2

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 11, s 13, s 102, schedule 3

Australian Woollen Mills Pty Ltd v Commonwealth (1955) 93 CLR 546

Cox v J & M Phelan trading as Carrara Carmart [2020] QCAT 190

Medtel Pty Ltd v Courtney (2003) 130 FCR 182

APPEARANCES &

REPRESENTATION:

This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

REASONS FOR DECISION

Factual background to the dispute

  1. [1]
    Mr Mohammed says that on 5 October 2019 he spoke to Mr Shanab, a salesperson in the employ of the respondent dealership, and reached an agreement to purchase a new Toyota Corolla Hybrid vehicle (“the vehicle”) for a price of $33,000, on a deposit of $1,000 (which Mr Mohammed paid on 5 October 2019) and to be delivered by late March 2020.
  2. [2]
    Between 14 November 2019 and 20 January 2020 text messages exchanged between Mr Shanab and Mr Mohammed evidence variations to the agreement whereby:
    1. (a)
      the delivery date was reconfirmed for late March 2020;
    2. (b)
      the price increased by $846.19 for after-market extras; and
    3. (c)
      the respondent was to install floor mats, a bonnet protector, headlamp covers, boot liner and window tinting.
  3. [3]
    Mr Shanab confirmed in a text message sent on 7 February 2020 that the vehicle could be collected by a courier at 8am on 12 February 2020.
  4. [4]
    On 10 February 2020 Mr Mohamed paid the balance purchase price of $32,846.19.
  5. [5]
    On 11 February 2020 Mr Shanab sent a contract to Mr Mohammed for the purchase of the vehicle. The contract was dated 5 October 2019, had a purchase price of $33,846.19 (including additional accessories, on-road costs and GST) and was signed by Mr Shanab, but not the dealer principal of the respondent, even though there were clearly marked spaces for the dealer principal to sign. Mr Mohammed counter-signed the contract and returned it to Mr Shanab the same day.
  6. [6]
    The contact terms included clause 2 which read:

The total price of the goods shown in this contract is the price of the goods based on existing costs and circumstances. If there is any change in these costs or circumstances before delivery of the goods to the Customer, the Dealer reserves the right to increase the total price of the goods. If the Dealer increases the total price of the goods the customer may by notice in writing to the Dealer cancel the contract at any time within three days after the receipt of the notification of the increase.

  1. [7]
    The estimated delivery date on the contract remained “30 March 2020” although delivery was booked for 12 February 2020.  Time was deemed to be of the essence. 
  2. [8]
    Mr Mohammed then received a call from Ms Fisher, sales manager for the respondent, who informed Mr Mohammed that Mr Shanab had errored in quoting the price for the vehicle, and a further $2,000 needed to be paid by Mr Mohammed to secure it.  He was offered a refund of monies paid if the price increase was not agreed and this was confirmed in a follow-up email Ms Fisher sent to Mr Mohammed on 11 February 2020.
  3. [9]
    By a letter of demand dated 25 February 2020 lawyers for Mr Mohammed:
    1. (a)
      rejected the offer of a refund; and
    2. (b)
      insisted the vehicle be released to Mr Mohammed for the agreed price.
  4. [10]
    By a letter dated 3 March 2020 lawyers for Mr Mohammed advised the respondent that he was paying the $2,000 under protest to mitigate the damages he was incurring in the form of wasted courier fees, insurance, transport cost and legal costs, reserving rights to recover these sums from the respondent later. 
  5. [11]
    On 9 March 2020 the respondent sent Mr Mohammed an updated contract reflecting the additional costs, but he declined to sign it, saying that he had already signed a contract for the vehicle. In reply, the respondent indicated that without a contract signed by a duly authorised representative of the respondent, they could not release the vehicle and asked Mr Mohammed where they might direct his refund.
  6. [12]
    By an application for a minor civil dispute – consumer dispute filed 19 May 2020, Mr Mohammed sought an order that the respondent deliver the vehicle to him and transfer registration into his name, in addition to paying him:
    1. (a)
      $2,000.00 overpaid toward the purchase price under protest;
    2. (b)
      $507.20 for transport costs incurred between 17 February 2020 and 24 April 2020 (comprising Uber costs);
    3. (c)
      $622.00 for wasted courier fees incurred to release the vehicle to the respondent;
    4. (d)
      Legal costs in the sum of $1,881.00;
    5. (e)
      Wasted motor vehicle insurance fees of $801.04; and
    6. (f)
      The filing fee of $123.20.
  7. [13]
    On 4 May 2021 a tribunal hearing took place at which the respondent appeared, but the applicant did not.  By that time, a full refund had been provided to Mr Mohammed and the respondent had made attempts without success to pay the additional $507.20 for transport costs.  An order was made that those costs be paid within fourteen days, and the application was otherwise dismissed.
  8. [14]
    On 2 June 2021 Mr Mohammed successfully applied to the tribunal to reopen the application on the basis that he did not receive notice of the hearing until after it had taken place.
  9. [15]
    On 23 August 2021 Mr Mohammed was directed to clarify the claim and orders sought, given that, by that time, the transport costs of $507.20 had been reimbursed and the full purchase price had been repaid to him.  
  10. [16]
    By email sent 29 September 2021 Mr Mohammed advised the tribunal that his remaining claim was for:
    1. (a)
      transport (Uber travel) costs incurred between 5 October 2019 (when he ordered the car and paid his deposit) and when his purchase price was fully refunded (the last receipt is dated 24 May 2020) in the sum of $4,402.02; and
    2. (b)
      courier cancellation fees in the sum of $531.00.
  11. [17]
    Mr Mohammed did not formally amend his application to increase the claim for travel costs by almost $4,000 and did not explain why his travel costs back to 5 October 2019 were added to his original claim for costs from 17 February 2020 only. 
  12. [18]
    In any event, on 18 November 2021, as the substantive dispute had largely resolved and Mr Mohammed indicated that he would like a written decision sent to him, the tribunal directed the parties to make submissions on the outstanding claims before a final decision on the application for a consumer dispute was to be made, on the papers. That decision follows.

The laws applying to the dispute

  1. [19]
    The tribunal has jurisdiction to hear minor civil disputes,[1]  and must make orders that it considers fair and equitable to the parties to the proceeding to resolve the dispute but may, if the tribunal considers it appropriate, make an order dismissing the application.[2]
  2. [20]
    Claims arising out of a contract between a consumer and a trader are minor civil disputes.[3]
  3. [21]
    A “consumer”[4] is an individual for whom services are supplied for fee other than in a trade or business carried on by the individual.
  4. [22]
    A “trader”[5] is a person who in trade or commerce carries on a business of supplying services other than when acting in the exercise of a discipline that is not ordinarily regarded as within the field of trade or commerce.
  5. [23]
    I am satisfied that at all material times the applicant was a consumer and the respondent was a trader for the purpose of the Australian Consumer Law.

Australian Consumer Law

  1. [24]
    Consumers can seek refunds or damages from traders under the Australian Consumer Law, contained in schedule 2 to the Competition and Consumer Act 2010 (Cth) (“Australian Consumer Law”). 
  2. [25]
    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’. 
  3. [26]
    The time at which goods are to be of acceptable quality is the time at which the goods are supplied to the consumer.[6]
  4. [27]
    The remedy available to a consumer against a supplier depends in the first instance on whether the failure is a ‘minor failure’ or a ‘major failure’. The term ‘major failure’ is defined in s 260 of the Australian Consumer Law to relevantly mean (emphasis added):
  1. (a)
    the goods would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of the failure; or
  2. (b)
    the goods depart in one or more significant respects:
  1. (i)
    if they were supplied by description—from that description.
  1. [28]
    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.
  2. [29]
    To obtain a refund, the consumer is required to reject within the ‘rejection period’.
  3. [30]
    That term is defined in s 262(2) of the Australian Consumer Law to mean:
  1. (1)
    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
  2. (b)
    the use to which a consumer is likely to put them; and
  3. (c)
    the length of time for which it is reasonable for them to be used; and
  4. (d)
    the amount of use to which it is reasonable for them to be put before such a failure becomes apparent.
  1. [31]
    If the failure can be remedied and is not a major failure, the consumer is limited to:
    1. (a)
      requiring the supplier to remedy the failure within a reasonable time; or
    2. (b)
      if the supplier cannot remedy the failure within a reasonable time, having the failure remedied by someone other than the supplier and seeking compensation from the supplier, or rejecting the goods.

Contract law

  1. [32]
    A legally enforceable agreement (contract) requires an offer, acceptance of that offer, consideration for the promises made and an intention to create legal relations.[7] The terms must be certain, and the parties must have capacity to contract.  A contract does not have to be in writing and can be made verbally or by conduct or by a combination of both.
  2. [33]
    To vary a contract the parties to it must both agree to the variation (unless the contract expressly permits a unilateral variation and even then, such clauses can be problematic).

Agency

  1. [34]
    An agency exists where one person is accepted by the law to represent another, the principal, in such a way as to be able to affect the principal’s legal position with respect to others.  Agency can be implied from the conduct of the principal and the agent making it reasonable to infer that authority has been given, where the principal by words or conduct represents to another that the agent has authority to bind the principal and the other relies on that representation in dealing with the agent.
  2. [35]
    This principle of “ostensible authority” operates to prevent a person from reneging on an agreement instituted by someone who appeared to have authority to act for them, where it would be unconscionable to a third party to do so.

Discussion and findings

  1. [36]
    Between when the application was filed and when the first hearing took place, the consumer had accepted a refund and the issue of supply was no longer in dispute for the purpose of applying Australian Consumer Law guarantees.
  2. [37]
    On the question of contract, I am satisfied on the evidence before the tribunal in these proceedings that the sales representative, Mr Shanab, had ostensible authority to deal with Mr Mohammed to negotiate and enter into an agreement for the sale of the vehicle.
  3. [38]
    The initial terms of their agreement were reached on 5 October 2019, contemplating a March 2020 delivery of the vehicle, but the terms were varied in several respects between 5 October 2019 and 11 February 2020, including as to price and add-ons to the vehicle.  On 11 February 2020, the parties concluded and formalised their agreement on the terms of the contract that was signed by Mr Mohammed and by Mr Shanab.
  4. [39]
    On 11 February 2020 the respondent exercised its rights under clause 2 of the contract to advise of a price increase, which the respondent later accepted, under protest, however, the dispute between the parties was subsequently resolved on the basis that Mr Mohammed received a full refund of the price he had paid the applicant.
  5. [40]
    As for the remaining claims for travel expenses and courier fees:
    1. (a)
      The claim for travel expenses from 5 October 2019 is, frankly, unfathomable. When the deposit was paid on that date, it was done so on the understanding that the delivery of the vehicle was not expected until late March 2020.  Between 5 October 2019 and 30 March 2020 therefore the applicant always had to incur his own transport costs, even if the contract with the respondent had proceeded.  These expenses were not in any way related to the applicant’s dealings with the respondent. By 9 March 2020, the applicant had been offered a full refund, which would have enabled him to purchase an alternate vehicle in which to travel.  There is no basis to award the applicant his travel expenses and that part of his claim is dismissed, nothing that, nonetheless the applicant has been paid $507.20 by the respondent towards these costs and that the respondent did so voluntarily.
    2. (b)
      Whilst Mr Mohammed booked his courier on the strength of representations by Mr Shannab that the vehicle would be ready for collection on 12 February 2020, it is the dispute over the price increase that occurred on 11 February 2020 that prevented delivery of the vehicle. The respondent was still able to supply it on the 12 February 2020 if the price increase was agreed. Mr Mohammed’s rights in the event he did not agree to the price increase were limited to cancelling the contract.  The respondent is not responsible to Mr Mohammed for the cancelled booking.   If I am wrong about that, then I am simply not satisfied that an order for this payment is a just and equitable outcome contemplated by section 13 of the QCAT Act. Mr Mohammed has received reimbursement of some travel costs to which he was not, in my view, entitled, in an amount similar to his courier fees and he pursued a claim for $4,400 in travel costs that was entirely misconceived and that did not form part of his original application.  Dismissal of the remaining claims is the appropriate order in the circumstances. 
  6. [41]
    Mr Mohammed did not pursue his claims application for wasted insurance costs and I infer, as would usually be the case, that these costs were refunded to him by the insurer.
  7. [42]
    Nor did he pursue his claims for legal fees or for his filing fee. In the event this was an oversight I address those claims briefly as follows:
    1. (a)
      The tribunal’s jurisdiction in minor civil disputes (other than minor debts), is limited to filing fees however the starting point is set out in section 100 of the QCAT Act is that each party shall bear its own costs unless the interests of justice require otherwise.
    2. (b)
      As I do not have jurisdiction to award legal fees, I decline to do so.  I decline to exercise my discretion to award the filing fee paid by the applicant on the basis that his claim has neither been wholly nor largely successful.

Orders

  1. [43]
    For the reasons given, the application is dismissed in its entirety.

Footnotes

[1] Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“QCAT Act”), section 11.

[2]  Ibid, section 13.

[3]  Ibid, schedule 3.

[4]  Ibid.

[5]  Ibid.

[6] Medtel Pty Ltd v Courtney (2003) 130 FCR 182, [64] and [70].

[7] Australian Woollen Mills Pty Ltd v Commonwealth (1955) 93 CLR 546.

Close

Editorial Notes

  • Published Case Name:

    Mohammed v Old Mac T Pty Ltd

  • Shortened Case Name:

    Mohammed v Old Mac T Pty Ltd

  • MNC:

    [2022] QCAT 177

  • Court:

    QCAT

  • Judge(s):

    Adjudicator Lember

  • Date:

    17 May 2022

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
Australian Woollen Mills Proprietary Limited v The Commonwealth (1955) 93 CLR 546
2 citations
Jump To
Cite 1 - (1955) 93 CLR 546
Cite 2 - (1955) 93 CLR 546
Cox v J & M Phelan trading as Carrara Carmart [2020] QCAT 190
1 citation
Jump To
Cite 1 - [2020] QCAT 190
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

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.