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Moroney v Auto Corner Pty Ltd t/as Mazda Mackay[2022] QCAT 205

Moroney v Auto Corner Pty Ltd t/as Mazda Mackay[2022] QCAT 205

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Moroney v Auto Corner Pty Ltd t/as Mazda Mackay & Anor [2022] QCAT 205

PARTIES:

brendand alan moroney

(applicant)

V

auto corner pty ltd trading as mazda mackay

(first respondent)

mazda australia pty ltd

(second respondent)

APPLICATION NO/S:

MVL173-21

MATTER TYPE:

Motor vehicle matters

DELIVERED ON:

16 June 2022

HEARING DATE:

On the papers

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 at time of supply

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

Fair Trading Act 1989 (Qld), s 50A

Freestone Auto Sales Pty Ltd Musulin [2015] NSWCA 160

Grehan & Anor v WestPoint Autos Qld Pty Ltd [2022] QCATA 65

Gurr v Hunter Volkswagen [2011] NSWCTTT 146

Medtel Pty Ltd v Courtney (2003) 130 FCR 182

APPEARANCES &

REPRESENTATION:

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. [1]
    On 26 August 2021, Mr Moroney (the applicant) filed an Application – Motor Vehicle Dispute with the Tribunal.  The respondents are Auto Corner Pty Ltd trading as Mazda Mackay (the first respondent) and Mazda Australia Pty Ltd (the second respondent).
  2. [2]
    The applicant purchased a Mazda BT-50 (the motor vehicle) from the first respondent for $43,400 on 1 May 2018. 
  3. [3]
    The applicant seeks relief under the Australian Consumer Law, which is Schedule 2 to the Competition and Consumer Act 2010 (Cth).  The applicant seeks repair of the motor vehicle plus damages.
  4. [4]
    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. [5]
    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. [6]
    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]; Freestone Auto Sales Pty Ltd Musulin [2015] NSWCA 160 at [63].  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. [7]
    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:

(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).

  1. (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.

  1. (6)
    Goods do not fail to be of acceptable quality if:

(a) the consumer to whom they are supplied causes them to become of unacceptable quality, or fails to take reasonable steps to prevent them from becoming of unacceptable quality; and

(b) they are damaged by abnormal use.

  1. [8]
    The Macquarie Dictionary defines the word ‘defect’ to mean ‘a fault’ or ‘imperfection’. 
  2. [9]
    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’.
  3. [10]
    The Macquarie Dictionary defines ‘hidden’ to mean ‘concealed; obscure; latent’.
  4. [11]
    The Macquarie Dictionary defines ‘abnormal’ to mean ‘not conforming to rule deviating from the type or standard; irregular’.

Evidence

  1. [12]
    The parties have provided voluminous material to the Tribunal.  However, the issue in dispute appears to be narrow in compass.
  2. [13]
    The applicant described an incident which took place on 7 May 2021 as follows:

On Friday, 7 May 2021:

a. The Applicant was driving the Vehicle at Kumbia, Queensland.

b. While driving along a rural road at a speed of approximately 90 kilometres per hour, the Applicant witnessed that an orange warning light in the shape of a cog had illuminated on the dash board …  A very short time after this light appeared, and perhaps after travelling about 100 metres the Vehicle’s engine stopped, and the Vehicle halted in the middle of the road.

c. Other than the brief appearance of the abovementioned warning light, the Vehicle did not provide any indication whatsoever that there was any malfunction with the Vehicle or in particular, the over heating of the Vehicle, whether in the form of any other warning light or indicator, audible warning or indicator, or gauge (including the Engine Coolant Temperature Gauge) …  To be clear, the Engine Coolant Temperature Gauge was normal.

d. Upon inspecting the Vehicle’s engine, the Applicant witnessed steam escaping from a hole in a hose.

e. The Applicant took photographs of the damaged hose and radiator and sent them to a local mechanic, Ken Fowler of KJS Service & Repairs.

f. Mr Fowler identified that the Vehicle had suffered a ‘blown top radiator to header tank hose and broken fitting in top radiator tank’.

g. Mr Fowler arranged replacement parts for the repair, travelling to Dalby, Qld to collect a replacement radiator and ordering a hose from Toowoomba Qld, to be delivered the following day.

h. Mr Fowler attended the Vehicle that evening and installed the replacement radiator.

i. The Vehicle remained parked on the shoulder of the road overnight.

On Saturday, 8 May 2021:

a. The Applicant and Mr Fowler attended the Vehicle and Mr Fowler fitted the new hose to the Vehicle.  After doing so, Mr Fowler added water to the radiator and attempted to start the Vehicle.  It began to turn over slowly, but water began gushing out of the header tank of the radiator …

b. After witnessing this, Mr Fowler suggested that there was an issue with the Vehicle’s engine.

  1. [14]
    The motor vehicle was subsequently towed to Redlands Mazda, where it was diagnosed that it required the following repairs:
    1. (a)
      replacement of the motor;
    2. (b)
      replacement of the EGR cooler; and
    3. (c)
      replacement of the thermostat.
  2. [15]
    The applicant stated that ‘Redlands Mazda did not specify the cause of the Engine Issue and Alert Failure’ (emphasis in original).
  3. [16]
    In an email dated 9 June 2021 to Redlands Mazda, the applicant stated:

And as you have also advised that you have seen the overflow/filler bottle has folded over and taped up and also stated that the old radiator has had the outlet for this hose broken off with a screw inserted in its place was definitely done by myself in a vain attempt to arrest the boiling water and steam from being discharged.  In the hope that we could continue motoring, but upon calling the local emergency mechanic from Kingaroy and taking photos and video of damage for him to bring the required (Mazda Dalby and Toowoomba) replacement parts which included a radiator and the new bypass hose.

  1. [17]
    There is no evidence before me that the applicant is a qualified mechanic, and he did not file any expert evidence.
  2. [18]
    The second respondent engaged the services of Geoff Senz, who is an automotive consultant with extensive experience.
  3. [19]
    Mr Senz provided a lengthy report dated 20 January 2022.  As part of his investigations, Redlands Mazda retrieved data from the motor vehicle.  The retrieved data indicated that the cog warning light (the Powertrain Warning Lamp) came on at an odometer reading of 143,314 km.  The odometer reading at the time of the motor vehicle’s breakdown was 143,326 km.  This indicated that the motor vehicle travelled 12 km after the cog warning light came on, not 100 metres as claimed by the applicant.
  4. [20]
    Mr Senz stated:

Because above values are only a ‘snapshot’ of what was happening when this vehicle’s onboard diagnostic system tripped to report and record an abnormal condition, it doesn’t directly tell readers or Technicians what was physically wrong.  However, one can say that the vehicle’s datalogger failed to validate the Applicant’s overall incident description that nothing went wrong prior to arrival at Kumbia.

For example, in relation to accusations that the Applicant and presumably his passengers received no warning of anything being wrong up until the last 100 m before engine seizure in the middle of the Highway, their accusation is clearly out by about 11.9 kilometres.

On the other hand, knowledge of the 11.9 km does validate why occupants would all have allegedly been concentrating on the dash and in particular, monitoring engine temperature simply because they were anticipating that their engine would boil over again before reaching the township proper of Kumbia.

Similarly, the above distance validates why a temporary repair to the radiator vent hose was not performed at Kumbia ie when Mr Fowler was asked to procure another radiator and vent hose.  This is simply because there would have been a temporary repair test/trial distance involved which would not only explain their interest in engine temperature but it would push the vehicle back out the highway some distance before the entrance to Kumbia ie more probably about 11.9 kilometres to where the Snapshot data was recorded.

Based on known vehicle speed, throttle position, engine RPM and load data, along with occupant numbers and knowledge they were towing, it is the writer’s considered opinion that this problem most probably resulted from sustained lugging conditions with minimal throttle movement which effectively put systems into limp mode by switching off the air conditioning system and reducing turbocharger boost pressure ie causing reduced air induction.  They in turn most probably responded to illumination of the fault light by stopping the vehicle and shutting the hot engine too quickly to which subsequent heat soaking activity caused the engine to boil over which in turn probably burst the vent hose.

Although physical evidence is that they addressed their predicament by performing a temporary repair and then tried to see how far they could continue.  The writer is concerned that cutting off what appeared to have been the holed and kinked over section of hose and presence of tape residue on the remaining section of hose, leads the writer to strong suspect that they had most probably stopped on more than one occasion to effect temporary repairs.

Summary: The writer’s interpretation of the Snapshot data and subsequent event indicates there is an extremely high probability that the Applicant destroyed his engine by trying to reach Kumbia after performing at least one temporary cooling system repair.

Consideration

  1. [21]
    I accept the applicant took possession of the motor vehicle on 1 May 2018.  I also accept that an incident involving the motor vehicle took place on 7 May 2021, just over three years later.
  2. [22]
    However, there are key aspects of the applicant’s account of the incident on 7 May 2021 which I do not consider to be plausible.
  3. [23]
    Firstly, the applicant’s evidence is that the cog warning light came on 100 metres before the motor vehicle stopped.  This is at odds with the objective evidence obtained from data stored by the motor vehicle that the cog warning light came on 12 km before the motor vehicle stopped.  I consider the data stored by the motor vehicle to be more reliable.
  4. [24]
    Secondly, the applicant’s evidence is that he effected temporary repairs only after the motor vehicle came to a final stop.  However, he also claims at this time to have taken photographs and sent them to Mr Fowler, who advised that a replacement radiator and hose were required.  If this was the case, and in light of Mr Fowler’s advice, the applicant had no reason to attempt to effect temporary repairs himself.
  5. [25]
    I consider Mr Senz’ conclusions to be far more plausible.  Namely, that the applicant attempted temporary repairs on at least one occasion prior to the motor vehicle coming to a final stop with a view to being able to reach Kumbia.  Is more probable than not that it is the failure of these repairs which led to the destruction of the engine and the motor vehicle coming to a final stop.
  6. [26]
    In these circumstances, I find that s 54(6) of the Australian Consumer Law applies to exclude any liability of the respondents.  Namely, I find that the applicant failed to take reasonable steps to prevent the motor vehicle from becoming of unacceptable quality, and that the motor vehicle was damaged by abnormal use.  For the purposes of clarity:
    1. (a)
      the reasonable step which the applicant should have taken to prevent the motor vehicle from becoming of acceptable quality was to seek professional repair at an earlier juncture, rather than effecting temporary repairs and continuing to operate the motor vehicle; and
    2. (b)
      the abnormal use was operating the motor vehicle with the temporary repairs.
  7. [27]
    In the event that I am incorrect in this conclusion, I will proceed to consider whether the motor vehicle was otherwise of acceptable quality. 
  8. [28]
    As noted above, the Federal Court and the New South Wales Court of Appeal have held that the time at which motor vehicle was required to be of acceptable quality was at the time of supply.  This approach has been applied by tribunals across Australia. 
  9. [29]
    Section 54(2) of the Australian Consumer Law sets out a number of attributes against which acceptable quality will be assessed by reference to the expectations of a reasonable consumer.  Relevantly, these attributes include that the motor vehicle was free from defects and durable – to which I would add the words, ‘as at the time of supply’.  I note that defects may include hidden defects, which could not have been discovered by reasonable inspection but which were nevertheless in existence as at the time of supply.  Similarly, the motor vehicle will not be durable if it possesses latent defects in existence at the time of supply but which may take some time to manifest themselves.  A lack of durability will ordinarily manifest itself by a defect becoming patent following a period of use.
  10. [30]
    Again, as noted above, evidence available after the time of supply may be taken into account in determining whether the motor vehicle was (amongst other things) free from defects and durable as at the time of supply.
  11. [31]
    In this regard, I note that the Appeals Tribunal appears to have partially misunderstood this position in Grehan & Anor v WestPoint Autos Qld Pty Ltd [2022] QCATA 65 at [29] and [31]-[32] when it stated:

The learned member said this in his reasons for decision: …

[T]here 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 … the mechanic from Grand Motors, who did not provide evidence but was quoted by the applicant, stated there was no way of knowing which of the possibilities he enumerated was the cause of the problem.

The member said:

If there is no way of knowing what the cause of the problem was, it follows that there is no way of me being satisfied that the motor vehicle was not of acceptable quality at the time of supply.

The test set out in s 54 ACL is not whether it can be established that goods had a particular and identifiable defect as at date of supply. That may not be possible to establish, yet the goods may still be defective based on one of the s 54(2) factors not being satisfied, such as whether the goods are free from defects or durable.

  1. [32]
    Correctly understood, the applicant nevertheless bears an evidentiary onus of proving that the problems experienced with the motor vehicle are attributable to the inherent condition of the motor vehicle as at the time of supply, and not to normal wear and tear or the occurrence of some intervening event.  In Gurr v Hunter Volkswagen [2011] NSWCTTT 146, the Tribunal stated:

[I]n order to succeed, the applicant, who bears the onus of proof, must show that there are problems with the vehicle, and that in all the circumstances the respondents or either of them is responsible for those problems. He has failed to discharge this onus of proof.

  1. [33]
    In that case, the Tribunal stated:

The Tribunal is not able to make any findings as to the nature or cause of the turbo problems complained of by the applicant. There is simply no evidence before the Tribunal to enable it to do so. The Tribunal cannot find that the breaches of the warranty conditions were the cause of the problems complained of.

  1. [34]
    There can be difficult issues of causation, particularly where a substantial period of time has elapsed since supply.  As Professor Jeannie Paterson and Kate Tokeley observed in their chapter on ‘Consumer Guarantees’ in Consumer Law and Policy in Australia and New Zealand (2013) at 97:

It may be relatively straightforward for a consumer to establish that goods are not of acceptable quality where the goods are purchased new and the defect becomes apparent soon after the date of purchase. … A consumer faces more difficult evidentiary challenges if the defect in the goods appears weeks or years after purchase. The defect might be one that existed at or near the time of purchase but did not cause problems until much later, in which case the goods would not be durable and would not meet the standard of acceptable quality, or it could be a defect that develops over time and is attributable to normal wear and tear.

  1. [35]
    In the present case, 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 incident occurred on 7 May 2021:
    1. (a)
      the motor vehicle was over three years old; and
    2. (b)
      the motor vehicle had travelled in excess of 143,000 km.
  2. [36]
    The applicant did not file any expert evidence, and his evidence noted only that Redlands Mazda did not specify the cause of the incident.
  3. [37]
    I have been prepared in some cases to infer that motor vehicles were not of acceptable quality as at the time of supply where there were defects (patent or latent) which 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 claimed 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 143,000 km.  The more time that has elapsed, and the further a vehicle has been driven, the greater is the scope for any claimed defects to have arisen from intervening events occurring after the time of supply.  The applicant’s temporary repairs in this case are an example of such an intervening event.
  4. [38]
    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. [39]
    The application is dismissed.
Close

Editorial Notes

  • Published Case Name:

    Moroney v Auto Corner Pty Ltd t/as Mazda Mackay & Anor

  • Shortened Case Name:

    Moroney v Auto Corner Pty Ltd t/as Mazda Mackay

  • MNC:

    [2022] QCAT 205

  • Court:

    QCAT

  • Judge(s):

    Member Cranwell

  • Date:

    16 Jun 2022

Appeal Status

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

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