Turner v FR Ireland Pty Ltd trading as Ireland Mitsubishi & Anor
[2022] QCAT 50
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Turner v FR Ireland Pty Ltd trading as Ireland Mitsubishi & Anor[2022] QCAT 50
- Add to List
Turner v FR Ireland Pty Ltd trading as Ireland Mitsubishi & Anor[2022] QCAT 50
Turner v FR Ireland Pty Ltd trading as Ireland Mitsubishi & Anor[2022] QCAT 50
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Turner v FR Ireland Pty Ltd trading as Ireland Mitsubishi & Anor [2022] QCAT 50 | ||||||
PARTIES: | john turner (applicant) V fr ireland pty ltd trading as ireland mitsubish (first respondent) MITSUBSHI MOTORS AUSTRALIA LIMITED (second respondent) | ||||||
APPLICATION NO/S: | MVL105-21 | ||||||
MATTER TYPE: | Motor vehicle matters | ||||||
DELIVERED ON: | 9 February 2022 | ||||||
HEARING DATE: | 3 February 2022 | ||||||
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 fit for disclosed purpose – 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 55, 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 | ||||||
| |||||||
REASONS FOR DECISION
- [1]On 25 May 2021, John Turner (‘the applicant’) filed an Application – Motor Vehicle Dispute with the Tribunal. The respondents are FR Ireland Pty Ltd trading as Ireland Mitsubishi (‘the first respondent’) and Mitsubishi Motors Australia Limited (‘the second respondent’).
- [2]The applicant is the owner of a 2018 Mitsubishi Outlander (‘the motor vehicle’).
- [3]The applicant purchased the motor vehicle from the first respondent on 27 May 2019 for $34,000.
- [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.
- [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 as to fitness for any disclosed purpose
- [6]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’.
- [7]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:
- (a)the consumer makes known, expressly or by implication, to:
- (i)the supplier; or
- (ii)a person by whom any prior negotiations or arrangements in relation to the acquisition of the goods were conducted or made; or
- (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).
- [8]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
Disclosed purpose
- [9]The applicant gave the following written evidence:
I attended Irelands Mitsubishi with my wife Carol Turner to purchase a new car, whilst we were in the dealership I informed the Mitsubishi Sales Person, Geoffrey Doeblien, that I already have a Mitsubishi Outlander which is a great car, however I need to upgrade this car as it is unable to be fitted with a bulbar and I need a car with a bulbar as I drive to my farm in outback NSW, on previously (sic) trips I have accidents where I hit a kangaroo and another where I hit a goat and that’s why I’m upgrading.
I asked Geoffrey Doeblien if a bulbar could be fitting (sic) to this car, he was unsure so he went to the office and came back several minutes later and stated said (sic) “no worries, you can definitely have one fitted on this vehicle”, he assured me there would be no issues fitting a bulbar to this car, he even provided me with names of companies (including ARB) who could supply and install one on this car.
With this reassurance I agreed to purchase the car.
- [10]Mr Doeblien gave the following written evidence:
I do not recall the exact conversation I have (sic) with Mr Turner during his visit to the dealership in 2019. I would have advised him with regards to the fitment of a non-genuine bulbar the same as every customer who was considering an Aftermarket Accessory.
That is, “Mitsubishi does not make a Genuine Bulbar accessory for the Outlander. There are aftermarket options available but you would need to speak with someone like ARB or TJM to discuss as we do not provide them through the dealership”.
- [11]In the circumstances where Mr Doeblien does not recall the exact conversation he had with the applicant, but where he does not explicitly dispute the applicant’s account, I accept the applicant’s evidence. In particular, I accept that the applicant disclosed the purpose of operation with of the motor vehicle with a bulbar, and that Mr Doeblien advised him that a bulbar could be fitted.
- [12]I also accept that it was reasonable for the applicant to rely on Mr Doeblien’s advice.
Fitness for the disclosed purpose
- [13]It is not in dispute that the applicant had a bulbar fitted to the motor vehicle.
- [14]The applicant gave written evidence that he subsequently experienced a number of issues with the motor vehicle. It is not necessary for me to traverse those issues in any detail in these reasons. However, I note that the applicant has returned the motor vehicle to the first respondent and Brookvale Mitsubishi for repair on approximately 10 occasions.
- [15]The second respondent gave written evidence, which included an extract from the owner’s manual for the motor vehicle:
Do not modify your steering wheel, seat belt retractor or any other SRS components. For example, replacement of steering wheel, or modifications to the front bumper or body structure (for example fitment of a frontal protection bar, including roo bars and bull bars except approved MITSUBISHI MOTORS GENUINE accessory parts) can adversely affect SRS performance and lead to possible injury.
- [16]The second respondent also gave the following written evidence relating to issues with the fitment of the bulbar:
- (a)The aftermarket bulbar restricted airflow to the engine cooling system, which has the effect of increasing the coolant temperature.
- (b)The fitment of the bulbar required the Ultrasonic Mis-acceleration Mitigation (‘UMS’) system to be relocated away from their original location. This meant that the UMS sensors were no longer calibrated to allow the system to work accurately.
- (c)Similarly, the Front Collision Mitigation (‘FCM’) system control unit was relocated away from its original position. Therefore, the FCM sensor was no longer correctly calibrated to allow this system to work accurately.
- (a)
- [17]At the hearing, the second respondent stated that it did not recommend the fitment of a bulbar to a Mitsubishi Outlander, which is why there was no genuine Mitsubishi bulbar accessory available.
- [18]Given the evidence of the second respondent, I find that the motor vehicle was not fit for the disclosed purpose of operation with a bulbar fitted.
Remedies
- [19]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:
…
(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; …
- [20]The second respondent’s evidence was that it does not recommend a bulbar be fitted to a Mitsubishi Outlander. In these circumstances, I find that the motor vehicle could not easily and within a reasonable time be remedied to make it fit for the disclosed purpose of operation with a bulbar.
- [21]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.
- [22]The applicant wrote to the second respondent requesting a refund or replacement of the motor vehicle on 2 October 2020. This led to a meeting with the first respondent on 7 October 2020. In these circumstances, I am satisfied that the applicant notified the first respondent of its rejection of the motor vehicle on 7 October 2020.
- [23]By the time the applicant rejected the motor vehicle, he had returned it to the first respondent and Brookvale Mitsubishi for repair on six occasions. In the context of the applicant having been told that the motor vehicle was suitable for the fitment of a bulbar, I consider it was reasonable for the applicant to have made several attempts to have the vehicle repaired under warranty before rejecting the motor vehicle. In these circumstances, I am satisfied that the applicant rejected the motor vehicle within the rejection period.
- [24]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).
- [25]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 am satisfied that the goods cannot be returned, removed or transported without significant cost to the applicant due to the size of the goods for the purposes of s 263(2)(b)(ii) of the Australian Consumer Law. I will require the respondent to collect the motor vehicle at its own expense from the applicant within 28 days pursuant to s 263(3). Upon the collection of the goods, the applicant will be entitled to a refund pursuant to s 263(4).
Damages
- [26]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.
- [27]The applicant has claimed damages in the amount of $1,938.05 for repairs undertaken by Brookvale Mitsubishi. At the hearing, the applicant stated that he had not paid this amount to Brookvale Mitsubishi, and was disputing payment in proceedings before the Local Court in New South Wales. In these circumstances, while it is possible that the applicant may suffer a loss in this regard in the future, I am not satisfied that the applicant had suffered a loss as at the date of the hearing.
- [28]I emphasise that I express no views on the merits of the Local Court proceedings.
Orders
- [29]For completeness, I note that the first respondent has not sought any relief against the second respondent pursuant to s 274 of the Australian Consumer Law.
- [30]The orders of the Tribunal are:
- The first respondent is required to collect the motor vehicle the subject of these proceedings from the applicant within 28 days of the date of these orders.
- The first respondent is required to pay to the applicant the amount of $34,000 within 28 days of the date of these orders.