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  4. Gaur v Southeast Automotive Group Pty Ltd t/as Zupps My Gravatt Kia - [2024] QCAT 10

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Gaur v Southeast Automotive Group Pty Ltd t/as Zupps My Gravatt Kia[2024] QCAT 10

Gaur v Southeast Automotive Group Pty Ltd t/as Zupps My Gravatt Kia[2024] QCAT 10

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Gaur v Southeast Automotive Group Pty Ltd t/as Zupps My Gravatt Kia [2024] QCAT 10

PARTIES:

uma kant gaur

(applicant)

v

Southeast automotive group Pty Ltd t/as Zupps Mt gravatt kia

(respondent)

APPLICATION NO/S:

MVL264-21

MATTER TYPE:

Motor vehicle matter

DELIVERED ON:

8 January 2024

HEARING DATE:

14 October 2022

HEARD AT:

Brisbane

DECISION OF:

Member Carrigan

ORDERS:

The Application - Motor Vehicle Dispute filed by the Applicant in the Tribunal on 13 January 2022 is dismissed.

CATCHWORDS:

TRADE AND COMMERCE – COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION CONSUMER PROTECTION – GUARANTEES, CONDITIONS AND WARRANTIES IN CONSUMER TRANSACTIONS – JURISDICTION – whether Tribunal has jurisdiction to order a refund by the supplier of goods under the Australian Consumer Law (Qld) – where purchase price of motor vehicle was $62,258.79 – whether defect complained of existed as at the date of sale – defect complained of arising subsequent to the time of supply of the motor vehicle

Motor Dealers and Chattel Auctioneers Act 2014 (Qld), s 12

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 9

Fair Trading Act 1984 (Qld), s s 50, s 50A

Australian Consumer Law (Queensland), s 54, s 56

Williams v Toyota Motor Corporation Australia Ltd (2022) FCA 344 at paragraphs 164 -165

Holt-Lea v O'Connor & Anor (2022) QCAT 363 at (29)

Sazdanoff-Haynes v MLS Wholesales Pty Ltd (2023) 37 at (38).

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

Self-represented

REASONS FOR DECISION

  1. [1]
    On 12 April 2019 Uma Kant Gaur (Applicant) purchased and took possession of a new Kia Carnival motor vehicle from Southeast Automotive Group Pty Ltd trading as Zupps Mt Gravatt Kia (Zupps).
  2. [2]
    The purchase price of the motor vehicle was $62,258.79 and was sold with a seven (7) year manufacturer’s warranty.
  3. [3]
    The Applicant says that after a few thousand kilometres the motor vehicle started making a noise on the righthand side somewhere near the door or seat altough the Applicant was unsure as to the exact cause of the noise as every time it was different.
  4. [4]
    After a number of unsuccessful attempts to rectify the cause of the noise, the Applicant applied to the Tribunal for a motor vehicle dispute claim relying on the s 50A of the Fair Trading Act 1984 (Qld). The claim made was for his money back (refund) subject to any depreciation caused by his driving of the vehicle and for compensation for time and mental harassment.

Background Facts

  1. [5]
    On 12 April 2019 the Applicant paid Zupps $62,258.79 for a new 2019 Kia Carnival motor vehicle. The sale contract was in evidence before the Tribunaal and included dealer fitted accessories, statutory and other charges and a discount provided on the purchase price.
  2. [6]
    The Applicant took delivery of the vehicle on 12 April 2019.
  3. [7]
    The Applicant says that:

after few thousand kilometres it started making noise mainly from right side somewhere near door or seat not sure cause every time differently.

  1. [8]
    The Applicant took the motor vehicle back to Zupps on a number of occasions to rectify this problem caused by the noise from somewhere near the RH side door or seat.
  2. [9]
    The first occasion the motor vehicle was returned to Zupps was on 2 July 2019. By that time the motor vehicle had travelled 5128 km and the Zupps’s Service Division Invoice gave the following job description:

rattles. carried out inspection of concern. found head rests causing rattle, placed headrests in right position. rattle not evident. all okay.

  1. [10]
    The Applicant says that the motor vehicle was with Zupps for three (3) hours and after picking the vehicle up and diving the vehicle the noise complaint returned and remained the same. He thought nothing had been fixed.
  2. [11]
    The next day, 3 July 2019, the Applicant returned the motor vehicle to Zupps. After a couple of hours the motor vehicle was returned to him. The applicant was informed that the door seal was dry and that it has been fixed. The Service Division Invoice for that date recorded the vehicles kilometres as 5354 and stated:

RHD door noise. Carried out inspection and relubricatin of door seal.tested all okay.

  1. [12]
    After the vehicle was returned to the Applicant, he says while driving the same noise reappeared and it was as though nothing had been fixed.
  2. [13]
    The Applicant took the motor vehicle back to Zupps for a third time on 4 July 2019 and spoke to the Manager, Paul, and was asked to book the vehicle into their Service Division at a later date. The Applicant made that booking for 16 July 2019.
  3. [14]
    On 16 July 2019 the Applicant returned the motor vehicle to Zupps. The motor vehicle had travelled 6750 km as at that date. On this occasion the vehicle remainded with Zupps for three (3) days. The Service Division Invoice records the following matters:

rattle from vehicle, confirm with kevin. Removed RH Roof Rail and Re—Insulated, carried out adjustments on RH Sliding Door. Tested all OK

  1. [15]
    The Applicant did not pick up the motor vehicle from Zupps until 19 July 2019. He drove the vehicle but the noise complaint on the RH side of the vehicle occurred once more.
  2. [16]
    The motor vehicle was next returned to Zupps on 26 July 2019 with a history of a rattle from the sliding door on the right-hand side. The vehicle had travelled 6750 km according to the Service Invoice which sets out the work to be undertaken on the vehicle as follows:

Rattle from sliding door on RH side, is slightly better, can also be heard on LH sliding door. Retensioned seat rails and mounts, carried out adjustments to both doors, retested when vehicle was cold, no noise had been heard.

  1. [17]
    The Applicant subsequently decided to change dealerships and on 20 September 2019 took the motor vehicle to Motorama at Morooka for attention to the noise complaint coming from the right-hand side door. The motor vehicle had travelled 15,231 km. The dealerships Service Division Invoice records the following complaint about that noise as being RHF door does not seem to be aligned makes creaking noise. Happens more so when cold with the Service Division carrying out the following work:

Unable to reproduce creaking noise. LubricatedRHF door seal. Hoping this will fix the creaking noise as seals were dry.

  1. [18]
    The motor vehicle was taken back to Motorama dealership for its annual service on 30 April 2020, when the Applicant also advised that the sliding doors are not aligned and sometimes the right sliding door makes noises and is not aligned correctly. He also said the left-hand door is making noises. The vehicle had travelled 48,919 km by the date. That dealership provided the annual service as well as the following service:

lubricated the doors to eliminate the noise. The car will need to go to a panel store to have the right-hand side doors adjusted. Will require permission from Kia Australia to carry out these repairs.

  1. [19]
    On 29 April 2021 the Applicant returned the motor vehicle to Motorama advising that when turning the vehicle on uneven ground there is a cracking sound at the right-hand sliding door area and to grease the door hinges as they were creaking. The dealership provided the following service to the motor vehicle:

cleaned the door seals and lubricated and tested – all ok.

  1. [20]
    On 6 September 2021 the Applicant changed in dealerships again and took the vehicle back to Zupps and informed them that the rattle from the sliding door on the RH side, is slightly better, but can also be heard on LH sliding door. The vehicle had travelled 61,602 km. The dealership provided the following service to the motor vehicle:

adjusted door locks and roadtested noise still present, removed door cards and lubricated, refitted noise still present, requires further checks.

  1. [21]
    On 13 January 2022 the Applicant filed an Application in the Tribunal in relation to a motor vehicle dispute. The Applicant says he has tried everything and has given more than enough chance to the dealerships to fix the problem and requests the Tribunal to order Zupps to pay his money back.
  2. [22]
    Zupps filed its Response in the Tribunal on 27 January 2022. While Zupps agrees that the Applicant attended with his vehicle on on a number of dates in 2019 and again in 2021, it disputes a number of the facts relied upon by the Applicant. It says that every attempt was made to satisfy the Applicant’s reports about the motor vehicle but this was made more difficult with the continuous change of where the Applicant believed the noise came from in the motor vehicle which could not be replicated by staff in the Service Division.

Motor Vehicle Assessment Report of 10 May 2022

  1. [23]
    The Tribunal made Directions on 23 February 2022 for both parties to contribute towards the cost of a Report from a Motor Vehicle Assessor to assist in the determination of the Application for the motor vehicle dispute.
  2. [24]
    A Report was prepared by Mr Stephen Goddard, Motor Vehicle Assessor, on 10 May 2022 and has been provided in evidence in the hearing of these proceedings.
  3. [25]
    The Report refers to Mr Goddard’s investigating the Applicants complaints about the sound of a rattle/noise originating from the right-hand rear sliding door and/or body area while driving the vehicle in normal conditions. During a test drive of the vehicle the Assessor was able to note a noise near the the right rear seat door. Also, during the test drive the right-hand rear sliding door was opened while the vehicle was travelling very slowly in a controlled area and the Assessor noted the noise appeared to be reduced considerably. The Assessor noted that the likely cause of this noise would be where the right-hand rear sliding door meets the body of the vehicle. In response to the question was the defect likely to have been present at the date of purchase of the vehicle, the Assessor stated:

It would indicate by Mr Gaur warranty invoices that the noise begun some 3 months after purchasing the vehicle new.

  1. [26]
    The Assessor further noted in the Report that the rattle/noise is not a safety-related issue and that:

As this is an ongoing complaint that hasn’t not being resolved it should be handled by the manufacturer. My recommendation that the manufacturer inspect the vehicle in an attempt to resolve the concern should only take a couple of weeks.

The Jurisdiction of the Tribunal in Motor Vehicle Disputes

  1. [27]
    The Tribunal is empowered to hear and determine disputes in accordance with the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) and the “enabling Act”.[1]
  2. [28]
    The Applicant brings these proceedings in accordance with the Australian Consumer Law (Queensland) (ACL) relying on s 50A the Fair Trading Act 1984 (Qld). (Fair Trading Act).[2]
  3. [29]
    Proceedings under the ACL must be heard in the Tribunal or in a Court having jurisdiction for the proceedings, having regard to:[3]
    1. for the Tribunal, whether the subject of the proceeding:
      1. (i)
        would be a minor civil dispute within the meaning of the QCAT Act; or
      2. (ii)
        would be a matter to which s 50A applies; or
    2. for a Court:
      1. (i)
        any civil jurisdictional limit, including any monetary limit, applying to the Court.
  4. [30]
    So far as is relevant to these proceedings s 50A of the Fair Trading Act provides for the Tribunal’s jurisdiction for particular matters relating to motor vehicles. Significantly it provides:
    1. a person may apply, as provided under the QCAT Act, to the Tribunal for an order for an action:
      1. (i)
        under a provision of the Australian Consumer Law (Queensland) listed in the table in to this section; and
      2. (ii)
        relating to a motor vehicle; and
      3. (iii)
        seeking an amount or value of other relief of not more than $100,000.
    2. The Tribunal may make only the following orders:
      1. (i)
        an order requiring a party to the proceedings to pay a stated amount to a stated person;
      2. (ii)
        an order that a stated amount is not due or owing by the applicant to a stated person, or by any party to the proceeding to the applicant;
      3. (iii)
        an order requiring a party to the proceeding, other than the applicant, to perform work to rectify a defect in goods or services to which the claim relates;
      4. (iv)
        an order requiring a party to the proceeding to return goods that relate to the claim and are in the party’s possession or control to a stated person;
      5. (v)
        an order combining 2 or more orders mentioned in the above paragraph;
    3. However, the Tribunal cannot make an order that;
      1. (i)
        purports to require payment of an amount, performance of work or return of goods of a value of more than $100,000; or
      2. (ii)
        purports to grant relief of a value of more than $100,000 from the payment of an amount; or
      3. (iii)
        combines two or more orders mentioned above and purports to award or declare entitlements or benefits (or both) of a total value of more than $100,000.
  5. [31]
    A Table of provisions of the Australian Consumer Law (Queensland are specified in s 50A to which reference will be made subsequently)A “motor vehicle” in these provisions means a motor vehicle referred to in section 12 of the Motor Dealers and Chattel Auctioneers Act 2014 (Qld). In these proceedings the Applicants Kia Carnival motor vehicle comes with the definition of”motor vehicle” as defined in s 12.
  6. [32]
    In these proceedings at the Applicant purchased the motor vehicle for $62,258.79[4] in a purchase and sales transaction with Zupps. The Applicant seeks a refund of monies paid for the vehicle. This is not a “minor civil dispute” given the amount claimed is over the prescribed limit for those claims. The other limb relating to whether the Tribunal has jurisdiction relates to whether the claim is made pursuant to s 50A of the Fair Trading Act. The Applicant in the Application filed in the Tribunal identifies that reliance is made upon the ACL provisions in s 50A of the Fair Trading Act relating to a motor vehicle which was purchased for less than $100,000.00.
  7. [33]
    The Tribunal therefore has jurisdiction to hear the Applicants motor vehicle dispute and to determine whether or not the Applicant can obtain relief pursuant to s 50A.

Available Remedies

  1. [34]
    The Table of provisions in s 50A of the Fair Trading Act includes actions to recover an amount of loss or damage pursuant to s 236(1). That provision provides that a person can recover loss or damage for a person’s breach of s 18 if the person suffered such loss or damage because of the persons misleading and deceptive conduct. The provisions of s 259(2), (3) and (4) relate to an action against suppliers of goods to recover the reasonable costs incurred, to recover compensation for reduction in value of goods and to recover damages because of a failure to comply with a guarantee referred to in s 54 of the ACL that, in these proceedings, the motor vehicle supplied is of acceptable quality. In these proceedings there is no claim relating to the supply of goods by description and accordingly the guarantee referred to in s 56 as no application.
  2. [35]
    The Applicant in the Application filed in the Tribunal raises the issue whether Zupps is in breach of the guarantee in s 54 requiring the supply of goods of acceptable quality. The issue then is whether on 12 April 2019 the motor vehicle purchased by the Applicants from Zupps was of acceptable quality.

Guarantee in s 54 of the ACL

  1. [36]
    The ACL in s 54 provides for a guarantee of acceptable quality where a person supplies, in trade or commerce, goods to a consumer and that supply does not occur by way of sale by auction.  The sale by Zupps of the Kia Carnival was not by auction. In these circumstances there is a guarantee that the goods are of acceptable quality.
  2. [37]
    Goods are defined as being of ”acceptable quality” if they are:[5]
    1. fit for all the purposes for which goods of that kind are commonly supplied; and
    2. acceptable in appearance and finish; and
    3. free from defects; and
    4. safe; and
    5. durable

as the 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 following matters:

  1. the nature of the goods; and
  2. the price of the goods (if relevant); and
  3. any statements made about the goods on any packaging or label on the goods; and
  4. any representation made about the goods by the supplier or manufacturer of the goods; and
  5. any other relevant circumstances relating to the supply of the goods.
  1. [38]
    The construction and interpretation of s 54 of the ACL was considered in Williams v Toyota Motor Corporation Australia Ltd where Justice Lee stated:[6]

Despite the obscure drafting of other provisions of the ACL, s 54 is relatively straightforward. The continued use of the conjunction “and” in s 54(2) makes clear that goods must possess all of the qualities listed in s 54(2), to the requisite standard, in order to comply with the guarantee of acceptable quality. Failure to possess any one of those qualities will result in failure to comply with the guarantee…

The question whether the goods are of acceptable quality is to be determined by reference to the quality of the goods at the time of supply.

  1. [39]
    The quality of the goods at the time of supply has been adopted in Tribunal decisions.[7] In these proceedings the relevant date for the assessment of the acceptable quality of the goods at the time of supply is 12 April 2019, the date of purchase and taking delivery of the motor vehicle.
  2. [40]
    The parties do not dispute a number of facts in these proceedings and there is much common ground. However, there are other facts about which there is serious dispute between the parties.
  3. [41]
    The uncontested facts are that Zupps sold the new motor vehicle to the Applicant on 12 April 2019. The Applicant’s evidence is that the noise defect on the RH side was first noticed:

After a few thousand kilometres it started making noise mainly from the right-hand side somewhere door or seal not sure because every every time they said differently.

  1. [42]
    The first occasion on which the Applicant sought to have the noise defect remedied was when he took the motor vehicle to Zupups on 2 July 2019. By that date the motor vehicle had travelled 5128 kms. There is no evidence in the proceedings as to what had occurred with the vehicle between 12 April 2019 and 2 July 2019. Nor is there any evidence as to the use of the motor vehicle over the 5128 km which it had travelled.
  2. [43]
    Zupps evidence is that their first knowledge of any noise defects in the vehicle was on 2 July 2019 when the vehicle was brought to their Service Division with complaints of a rattle on the RH side of the motor vehicle. Zupps gave evidence that they attended to the noise defect complaint from the RH side of the vehicle and that on that occasions, and on each subsequent occasion, the motor vehicle was in its Service Provision for rectification of this complaint, the vehicle was investigated or tested and the noise complaint was remedied. The Applicant disputes the evidence that the noise was remedied as he says that on driving the motor vehicle after leaving the Service Division the noise defect would reappear again and it would be necessary to have the motor vehicle return to Zupps or another Dealership for attention to this defect.
  3. [44]
    The Report from Mr Stephen Goddard, Motor Vehicle Assessor dated 10 May 2022 said that the noise defect to the RH side of the motor vehicle “begun some 3 months after purchasing the vehicle new.” According to the Assessors opinion, the noise defect did not arise at the time of supply of the motor vehicle on 12 April 2019 but arose in about July 2019. This is consistent with the Applicant’s first visit with the motor vehicle to Zupps on 2 July 2019.
  4. [45]
    The conclusion that can be drawn from these facts is that the noise defect to the RH side of the motor vehicle was not present on 12 April 2009 being the date of purchase and delivery of the motor vehicle to the Applicant. The earliest date on which the defect arose was approximately some 3 months later according to the evidence of the Applicant.and the Motor Vehicle Assessor. That evidence would place the defect as occurring in early July 2019. There is no evidentiary basis available to the Tribunal to find that the noise defect was present in the motor vehicle at the time of supply on 12 April 2019. Rather, the evidence establishes that it was not until some months later in July 2019 that that defect occurred.
  5. [46]
    The evidence in the Tribunal proceedings does establish that the motor vehicle does have a noise defect located to the RH side of the motor vehicle. That evidence is provided by the Applicant, Zupps (although they contend they remedied any defect at the time the vehicle left their Service Division) and by the Motor Vehicle Assessor in the Report of 10 May 2022. However, the Tribunal is not satisfied that the noise defect was present in the motor vehicle when it was purchased and delivery taken on 12 April 2019.
  6. [47]
    As the noise defect the subject of the Application for a motor vehicle dispute was not present at the time of sale of that motor vehicle on 12 April 2019, the Application must be dismissed. It is not necessary for the Tribunal to proceed further with the Applicants claim under s 50A of the Fair Trading Act.
  7. [48]
    For these reasons the Application for a motor vehicle dispute is dismissed.

Footnotes

[1]  QCAT Act s 9.

[2]  Fair Trading Act s 50A.

[3]  Fair Trading Act s 50.

[4]  See the Contract dated 4 April 2019 for the purchase of the the key Carnival vehicle.

[5]  ACL s 54(2).

[6]  (2022) FCA 344 at paragraphs 164 -165.

[7] Holt-Lea v O'Connor & Anor (2022) QCAT 363 at (29), Sazdanoff-Haynes v MLS Wholesales Pty Ltd (2023) 37 at (38).

Close

Editorial Notes

  • Published Case Name:

    Gaur v Southeast Automotive Group Pty Ltd t/as Zupps My Gravatt Kia

  • Shortened Case Name:

    Gaur v Southeast Automotive Group Pty Ltd t/as Zupps My Gravatt Kia

  • MNC:

    [2024] QCAT 10

  • Court:

    QCAT

  • Judge(s):

    Member Carrigan

  • Date:

    08 Jan 2024

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
Holt-Lea v O'Connor [2022] QCAT 363
2 citations
Jump To
Cite 1 - [2022] QCAT 363
Cite 2 - [2022] QCAT 363
Williams v Toyota Motor Corporation Australia Limited [2022] FCA 344
2 citations
Jump To
Cite 1 - [2022] FCA 344
Cite 2 - [2022] FCA 344

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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