Queensland Judgments
Authorised Reports & Unreported Judgments
  • sclq logo
  1. Caselaw
  2. QCAT
  3. 2022
  4. Watkins v Eagers MD Pty Ltd t/as Newstead Mazda - [2022] QCAT 369

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

Watkins v Eagers MD Pty Ltd t/as Newstead Mazda[2022] QCAT 369

Watkins v Eagers MD Pty Ltd t/as Newstead Mazda[2022] QCAT 369

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Watkins v Eagers MD Pty Ltd t/as Newstead Mazda [2022] QCAT 369

PARTIES:

michael watkins

(applicant)

V

eagers md pty ltd trading as newstead mazda

(respondent)

APPLICATION NO/S:

MVL115-21

MATTER TYPE:

Motor vehicle matters

DELIVERED ON:

26 October 2022

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Cranwell

ORDERS:

  1. Michael Watkins is required to return the motor vehicle the subject of these proceedings to Eagers MD Pty Ltd trading as Newstead Mazda within 14 days of the date of these orders.
  2. Eagers MD Pty Ltd trading as Newstead Mazda is required to pay to Michael Watkins the amount of $60,272 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 motor vehicle fit for disclosed purposes – 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 55, s 259, s 260, s 262, s 263

Competition and Consumer Act 2010 (Cth), Schedule 2

Fair Trading Act 1989 (Qld), s 50A

ACH Computing Pty Ltd v Austral Pty Ltd trading as

Allcroft & Anor v Shem-mell Pty Ltd trading as Capalaba Car World [2021] QCAT 386

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

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

Medtel Pty Ltd v Courtney (2003) 130 FCR 182

Morphy v Beaufort Townsville Pty Ltd [2018] VCAT 1520

Rigby v LDV Automotive Pty Ltd & Anor [2021] QCAT 316

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

Vautin v BY Winddown, Inc (formerly Bertram Yachts) (No 4) [2018] FCA 426

Wheatcroft v Garry Crick’s (Nambour) Pty Ltd [2022] QCAT 49

APPEARANCES:

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 2 June 2021, Michael Watkins (‘the applicant’) filed an Application – Motor Vehicle Dispute with the Tribunal.  The respondent is Eagers MD Pty Ltd trading as Eagers Mazda (‘the respondent’).
  2. [2]
    The applicant is the owner of a 2019 Mazda CX-8 (‘the motor vehicle’). 
  3. [3]
    The applicant purchased the motor vehicle from the respondent on 1 May 2019 for $60,272.
  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 plus damages.
  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.

Consumer guarantees

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:

(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.

  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’.

Guarantee as to fitness for any disclosed purpose

  1. [11]
    Section 55(1) of the Australian Consumer Law provides that, where a person supplies goods in trade or commerce, there is a guarantee that the goods will be ‘reasonably fit for any disclosed purpose, and for any purpose for which the supplier represents that they are reasonably fit’.
  2. [12]
    Section 55(2) of the Australian Consumer law defines ‘disclosed purpose’ as follows:

(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
  1. (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).
  1. [13]
    Section 55(3) of the Australian Consumer Law provides that the guarantee does not apply if the consumer did not rely on, or that it was unreasonable for the consumer to rely on, the skill or judgment of the supplier, the person referred to in subsection (2)(a)(ii) or the manufacturer (as the case may be).

Evidence

  1. [14]
    The applicant filed statements on 2 June 2021 and 25 May 2022.  The Tribunal obtained a report from an independent assessor dated 28 January 2022.  The respondent filed no evidence.
  2. [15]
    The applicant has claimed that the motor vehicle was affected by 13 defects.  I will deal with each of these claims in turn.

First claimed defect

  1. [16]
    The applicant stated that on or about 20 May 2019, the motor vehicle shuddered at speeds of 100 km/h.  He took the motor vehicle to Highlands Tyremasters, who advised that the shuddering was caused by the wheels being imbalanced.
  2. [17]
    The independent assessor expressed the view that the defect was likely caused by a wheel balance not being carried out prior to delivery of the motor vehicle.
  3. [18]
    In the absence of evidence to the contrary from the respondent, I accept that this defect was present at the time of supply.

Second claimed defect

  1. [19]
    The applicant stated that in or around late May 2019, the rear brakes discs appeared to be visibly wearing and were doing so unevenly.  He returned the motor vehicle to the respondent, who advised him that the rear brakes were faulty.  The respondent replaced the rear brake discs and pads, which resulted in the motor vehicle being off the road for two days.
  2. [20]
    The independent assessor expressed the view that the defect was likely caused by a manufacturing fault.
  3. [21]
    In the absence of evidence to the contrary from the respondent, I accept that this defect was present at the time of supply.

Third claimed defect

  1. [22]
    The applicant stated that in or around July 2019, he noticed a high-pitched squeal coming from the dashboard whenever the interior fan was operating.  He returned the motor vehicle to the respondent, who advised him that the fan motor was faulty.  The respondent replaced the fan motor, which resulted in the motor vehicle being off the road for two days.
  2. [23]
    The independent assessor expressed the view that the defect was likely caused by a manufacturing fault.
  3. [24]
    In the absence of evidence to the contrary from the respondent, I accept that this defect was present at the time of supply.

Fourth, fifth and sixth claimed defects

  1. [25]
    The applicant stated in or around July 2019, he noticed the following:
    1. (a)
      the gear box was clunky between gear changes, and did not seem to be shifting gears smoothly;
    2. (b)
      the rear seat alarm signifying a lack of seat belt being worn would go off at random with no one sitting in the rear seat of the motor vehicle;
    3. (c)
      the Bluetooth system would drop out and cease to be connected to his iPhone; and
    4. (d)
      there was noticeable vibration coming through the rear cabin when the motor vehicle accelerated up hills and during turning.
  2. [26]
    The applicant provided video footage documenting his problems with the Bluetooth system and the rear seat alarm, but no expert evidence in relation to the cause of the problems. 
  3. [27]
    The applicant returned the motor vehicle to the respondent, who was unable to identify any faults.
  4. [28]
    The independent assessor was unable to comment on these issues due to insufficient information.
  5. [29]
    In circumstances where the applicant has not provided any expert evidence in support of his claims, I do not accept the existence of these claimed defects.

Seventh claimed defect

  1. [30]
    The applicant stated that in or around October 2019, he noticed the driver’s seat would rock backward and forward when it was supposed to be locked.
  2. [31]
    The applicant returned the motor vehicle to the respondent, who advised him that the undercarriage of the seat had collapsed. The respondent repaired the seat, which resulted in the motor vehicle being off the road for two or three days.
  3. [32]
    The independent assessor was unable to comment on this issue due to insufficient information.
  4. [33]
    In the absence of evidence to the contrary from the respondent, I accept this defect was present, or alternatively that the seat was not durable, at the time of supply.

Eighth claimed defect

  1. [34]
    The applicant stated that after the repair of the driver’s seat, the driver’s seat memory system did not operate.
  2. [35]
    The applicant returned the motor vehicle to the respondent, who advised him that this was due to a fitting error.
  3. [36]
    The independent assessor expressed the view that the defect was likely caused by incorrect seat installation procedure.
  4. [37]
    In the absence of evidence to the contrary from the respondent, I accept that this defect arose from incorrect installation during replacement of the defective driver’s seat.

Ninth claimed defect

  1. [38]
    The applicant stated that he also experienced problems with the rear suspension. 
  2. [39]
    The applicant returned the motor vehicle to the respondent, who advised that the suspension was ‘as correct and operating as expected’.
  3. [40]
    The applicant provided a report from Pedders Suspension Enoggera dated 28 April 2021, which stated:

VEHICLE CAME IN WITH HEAVY BODY ROLL AND SOFT REAR SUEPNSION.  AFTER AN INITIAL CHECK AND DIAGNOSIES THE REAR SPRINGS WERE FOUND TO BE VERY SOFT AND UNABLE TO SAFELY HOLD THE LOAD OF THE VHEICLE OR TRAILER.  AIRBAGS WILL BE FITTED TO REDUCE THE WEIGHT ON THE SPRINGS ALLOWING FOR BETTER TOWING CAPACITY AND ON ROAD HANDLING.

  1. [41]
    The applicant also provided a report from Fulcrum Suspension Specialists dated 6 May 2021, which stated:

Test drove and found the factory rear suspension to be soft.  Recommend the fitment of a rear airbag kit to firm up the rear and act as an anti-roll device.  Airbags will also aid when vehicle is towing.

  1. [42]
    The independent assessor was unable to comment on this issue due to insufficient information.
  2. [43]
    In the absence of evidence to the contrary from the respondent, I accept that the balance of the evidence before me establishes that this defect was present at the time of supply. 
  3. [44]
    For completeness, I note that the reports from Pedders Suspension Enoggera and Fulcrum Suspension Specialists appear to indicate that the problem with the rear suspension occurred both when the motor vehicle was towing a trailer and when it was not.  Accordingly, this defect appears to be independent of issues relating to towing capacity, which I discuss separately below.

Tenth claimed defect

  1. [45]
    The applicant stated that he also experienced problems with the service indicator on the instrument panel, which displayed that the motor vehicle needed a service prior to the required kilometres being reached.
  2. [46]
    The applicant returned the motor vehicle to the respondent, who advised that it was unable to reset the service indicator to display at the correct intervals.
  3. [47]
    The independent assessor expressed the view that the defect was likely caused by incorrect reset procedure during scheduled services.
  4. [48]
    While I accept that this defect was caused by incorrect reset procedure during scheduled services, I do not accept that the defect was present at the time of supply on 1 May 2019.  I note that the applicant has not sought any remedies in relation to the fees he has paid for servicing of the motor vehicle.

Eleventh claimed defect

  1. [49]
    The applicant stated that he also experienced problems with the proximity system, which locked the motor vehicle even when he was in close proximity.
  2. [50]
    The applicant returned the motor vehicle to the respondent, who advised that it was unable to fault the operation of the system.
  3. [51]
    The independent assessor was unable to comment on this issue due to insufficient information.
  4. [52]
    In circumstances where the applicant has not provided any expert evidence in support of his claim, I do not accept the existence of this defect.

Twelfth claimed defect

  1. [53]
    The applicant stated that in or around October 2019, he noticed a clicking noise coming from the front brakes of the motor vehicle when moving slowly forward and reversing.
  2. [54]
    The applicant returned the motor vehicle to the respondent, who repaired it as a warranty issue.
  3. [55]
    The independent assessor expressed the view that the defect was likely caused by a manufacturing issue leading to service repair bulletin NS036_20.
  4. [56]
    In the absence of evidence to the contrary from the respondent, I accept that this defect was present at the time of supply.

Thirteenth claimed defect

  1. [57]
    The applicant stated that on 7 February 2020, the active bonnet system deployed causing significant damage to the bonnet and created two positive upward dents on the tops of the two front guards.
  2. [58]
    The applicant stated that the circumstances of the incident were as follows:
    1. (a)
      in wet conditions, he entered a roundabout driving at slower than 40 km/h;
    2. (b)
      two small wallabies cross onto the road in front of him;
    3. (c)
      he braked firmly, bring the motor vehicle to a complete stop;
    4. (d)
      he heard two loud ‘bangs’ coming from the front of the motor vehicle, and noticed that the bonnet was warped and twisted; and
    5. (e)
      he saw the wallaby hop away, and it did not feel like the wallaby had been struck with any force.
  3. [59]
    The applicant stated that he had since learned that the motor vehicle came with an ‘active bonnet system’, which is designed to raise the bonnet and minimise the risk of a pedestrian suffering a head injury in the event of collision.
  4. [60]
    I have viewed the dashcam footage of the incident provided by the applicant.  It appears to me more likely than not that the applicant did in fact collide with a wallaby at low speed, before the wallaby hopped away.  I note that footage taken by the applicant after the accident showed that there was no damage to the front bumper, which supports the applicant’s evidence that the collision was not a forceful one.
  5. [61]
    The independent assessor stated in his report:

if the active bonnet system was triggered as a result of collision with wildlife, then this would not be a fault with the system, as it is designed to active (sic) upon contact with an object.  The resulting damage of the active bonnet system event is also consistent with other safety systems (for example airbag systems) that when deployed can cause damage to surrounding parts.

  1. [62]
    The applicant’s evidence raises questions in relation to the sensitivity of the active bonnet system, given that the collision was such that no damage was sustained to the front bumper.  However, the applicant did not provide any expert evidence as to the sensitivity of the system, and whether such a level of sensitivity is necessary or appropriate to achieve the system’s safety objectives.  In these circumstances, there is insufficient evidence for me to conclude that the active bonnet system is defective.

Conclusion as to acceptable quality

  1. [63]
    I have accepted the existence of six defects which were present at the time of supply, including:
    1. (a)
      wheel balance issue;
    2. (b)
      rear brake issue;
    3. (c)
      interior fan failure;
    4. (d)
      driver’s seat failure (and associated driver’s seat memory issue);
    5. (e)
      rear suspension issue;
    6. (f)
      front brake issue.
  2. [64]
    I find that a reasonable consumer fully acquainted with the state of the motor vehicle at the time of supply, particularly having regard to:
    1. (a)
      the existence of six defects in the first year of the applicant’s ownership, requiring the motor vehicle to be off the road for repairs;
    2. (b)
      the purchase price of $60,272; and
    3. (c)
      the motor vehicle being new,

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

Conclusion as to fitness for purpose

  1. [65]
    The applicant gave evidence that he had the following exchange with the sales representative prior to purchase of the motor vehicle:

Applicant:  I will also need the Vehicle to be able to tow a boat and trailer weighing approximately 850 kilograms.

Sales representative:  The vehicle will be suitable for towing your boat because it has a towing capacity of up to 2000 kilograms.

  1. [66]
    The respondent did not file any evidence contradicting the applicant’s version, and accordingly I accept that the conversation took place as claimed.  I accept that the applicant relied on the skill and judgment of the respondent, and that it was reasonable for him to do so given the respondent is a Mazda dealer.
  2. [67]
    The independent assessor made the following observations in his report:

According to the Mazda CX-8 owner’s manual, the towing capacity is 2,000 kg for trailers with brakes and 750 kg for trailers without brakes with a maximum downward load on the tow ball to not exceed 80 kg.

  1. [68]
    To the extent that the applicant may have wished to tow his 850 kg boat on a trailer without brakes as opposed to a trailer with brakes, I find that the motor vehicle was not fit for the disclosed purpose.  The sales representative failed to include the qualification in relation to brakes contained in the owner’s manual.

Remedies

  1. [69]
    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) 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:

(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.

  1. [70]
    It has been held that an accumulation of individually minor defects can be aggregated to amount to a major failure giving rise to a right to reject the goods.  In Cary Boyd v Agrison Pty Ltd [2014] VMC 23 at [51], the Court held that:

[D]espite the use of ‘a’, to suggest the singular, ‘a major failure’ might be constituted by a series of specific and individual defects which taken as a whole constitute one major failure.  I also agree with this interpretation of s 260 of the ACL.

  1. [71]
    While not applicable in the present case, I note in passing that this position is now reflected in amendments to s 260 made by Treasury Laws Amendment (2020 Measures No. 6) Act 2020 (Cth).  Pursuant to s 303 of the Australian Consumer Law, these amendments apply in relation to goods supplied under a contract entered into on or after 1 July 2021.
  2. [72]
    I find the series of defects set out above, taken as a whole, are such that a reasonable consumer fully acquainted with the nature and extent of the failures, would not have acquired the motor vehicle.  A reasonable consumer would not expect to have to return a new vehicle multiple times over a one year period in order for the six defects which I have accepted to be remedied.  I emphasise that my finding is based on the series of defects taken together.  It may well be the case that none of the defects, individually, would in itself have amounted to a major failure.
  3. [73]
    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, Laceur v Townsville Auto Group Pty Ltd & Anor [2021] QCAT 247, Lawless v Austral Pty Ltd trading as Brisbane City Land Rover [2021] QCAT 297, Rigby v LDV Automotive Pty Ltd & Anor [2021] QCAT 316; Allcroft & Anor v Shem-mell Pty Ltd trading as Capalaba Car World [2021] QCAT 386 and Wheatcroft v Garry Crick’s (Nambour) Pty Ltd [2022] QCAT 49.
  4. [74]
    Further, the respondent provided no evidence as to what modifications would be necessary in order for the motor vehicle to be able to tow the applicant’s 850 kg boat on a trailer without brakes.  In these circumstances, I am not satisfied that the motor vehicle could easily and within a reasonable time be remedied to make it fit for the disclosed purpose.
  5. [75]
    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.

  1. [76]
    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. [77]
    The applicant wrote to the respondent requesting a refund or replacement of the motor vehicle on 29 June 2020, which was just over a year after purchase.  In these circumstances, I am satisfied that the applicant rejected the motor vehicle within the rejection period.
  1. [78]
    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.  In this regard, I note that there is no evidence that the goods cannot be returned, removed or transported without significant cost for the purposes of s 263(2)(b).  Upon the return of the motor vehicle, the applicant will be entitled to a refund pursuant to s 263(4).

Damages

  1. [79]
    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.

  1. [80]
    In Vautin v BY Winddown, Inc (formerly Bertram Yachts) (No 4) [2018] FCA 426 at [294], Derrington J stated:

It would appear that this subsection is concerned with the recovery of ‘reliance losses’ as the inclusion of the limitation of ‘reasonable foreseeability’ pertains to such losses rather than expectation losses.

  1. [81]
    The applicant has claimed $13,700 in damages for lost wages as a ride share driver.  It appears to me that this is properly to be classified as an expectation loss, and accordingly is not recoverable.  In any event, the applicant did not provide any accounts for his business or other evidence which would enable me to quantify any damages suffered by him.  Unsupported claims are not sufficient to prove loss.
  2. [82]
    The applicant also claimed $800 in damages for the insurance excess he had to pay after his collision with the wallabies.  As I have rejected the applicant’s claim that the active bonnet system was defective, this amount is not recoverable.

Costs

  1. [83]
    Section 50C of the Fair Trading Act 1989 (Qld) provides that the Tribunal may make a costs order against the respondent in the amount of the prescribed filing fee paid by the applicant.  This power is subject to s 102(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), which provides that the Tribunal may make a costs order if the interests of justice require it.
  2. [84]
    The applicant has been successful in obtaining a refund in the proceedings.  However, the applicant inflated his claim by including damages, which I have found not to be recoverable.  Inflated claims only inhibit the ability of the parties to resolve the matter without a hearing.  In these circumstances, I do not consider that it is in the interests of justice to order the respondent to pay the filing fee of $352.

Orders

  1. [85]
    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 first respondent is required to pay to the applicant the amount of $60,272 within 28 days of the date of these orders.
Close

Editorial Notes

  • Published Case Name:

    Watkins v Eagers MD Pty Ltd t/as Newstead Mazda

  • Shortened Case Name:

    Watkins v Eagers MD Pty Ltd t/as Newstead Mazda

  • MNC:

    [2022] QCAT 369

  • Court:

    QCAT

  • Judge(s):

    Member Cranwell

  • Date:

    26 Oct 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
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
Allcroft v Shem-mell Pty Ltd trading as Capalaba Car World [2021] QCAT 386
2 citations
Jump To
Cite 1 - [2021] QCAT 386
Cite 2 - [2021] QCAT 386
Cary Boyd v Agrison Pty Ltd [2014] VMC 23
1 citation
Jump To
Cite 1 - [2014] VMC 23
Crawford v Sunco Motors Pty Ltd [2021] QCAT 183
2 citations
Jump To
Cite 1 - [2021] QCAT 183
Cite 2 - [2021] QCAT 183
Foley v Westco Cairns Pty Ltd [2020] QCAT 345
2 citations
Jump To
Cite 1 - [2020] QCAT 345
Cite 2 - [2020] QCAT 345
Haisman v Drive (Aust) Pty Ltd [2020] QCAT 44
3 citations
Jump To
Cite 1 - [2020] QCAT 44
Cite 2 - [2020] QCAT 44
Cite 3 - [2020] QCAT 44
Kablar Financial Services Pty Ltd v LSH Auto (Brisbane) Pty Ltd trading as Mercedes-Benz Brisbane [2020] QCAT 346
2 citations
Jump To
Cite 1 - [2020] QCAT 346
Cite 2 - [2020] QCAT 346
Laceur v Townsville Auto Group Pty Ltd [2021] QCAT 247
2 citations
Jump To
Cite 1 - [2021] QCAT 247
Cite 2 - [2021] QCAT 247
Lawless v Austral Pty Ltd trading as Brisbane City Land Rover [2021] QCAT 297
2 citations
Jump To
Cite 1 - [2021] QCAT 297
Cite 2 - [2021] QCAT 297
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
Morphy v Beaufort Townsville Pty Ltd [2018] VCAT 1520
2 citations
Jump To
Cite 1 - [2018] VCAT 1520
Cite 2 - [2018] VCAT 1520
Rigby v LDV Automotive Pty Ltd [2021] QCAT 316
2 citations
Jump To
Cite 1 - [2021] QCAT 316
Cite 2 - [2021] QCAT 316
Sullivan v James Frizelle's Automotive Group Pty Ltd [2021] QCAT 49
2 citations
Jump To
Cite 1 - [2021] QCAT 49
Cite 2 - [2021] QCAT 49
Vautin v BY Winddown, Inc (formerly Bertram Yachts) (No 4) [2018] FCA 426
2 citations
Jump To
Cite 1 - [2018] FCA 426
Cite 2 - [2018] FCA 426
Wheatcroft v Garry Crick's (Nambour) Pty Ltd [2022] QCAT 49
2 citations
Jump To
Cite 1 - [2022] QCAT 49
Cite 2 - [2022] QCAT 49

Cases Citing

Case NameFull CitationFrequency
LNM v Bailey [2023] QCATA 1312 citations
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.