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  4. Brazier v Inverlee Pty Ltd t/as Crown Motors - [2024] QCAT 25

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Brazier v Inverlee Pty Ltd t/as Crown Motors[2024] QCAT 25

Brazier v Inverlee Pty Ltd t/as Crown Motors[2024] QCAT 25

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Brazier v Inverlee Pty Ltd t/as Crown Motors [2024] QCAT 25

PARTIES:

elizabeth brazier

(applicant)

v

inverlee pty ltd t/as crown motors

(respondent)

APPLICATION NO/S:

MVL241-21

MATTER TYPE:

Motor vehicle matter

DELIVERED ON:

23 January 2024

HEARING DATE:

16 September 2022

HEARD AT:

Brisbane

DECISION OF:

Member Carrigan

ORDERS:

The Tribunal orders that the Application-Motor Vehicle Dispute filed by the Applicant in the Tribunal on 8 November 2021 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 $7,500.00 – where used vehicle sold – where defects arose after purchase of the vehicle – where further mechanical services defects occurred several months later – whether defect complained of existed as at the date of sale – whether defect complained of arising subsequent to the time of supply of the motor vehicle – whether the vehicle was of acceptable quality – whether the vehicle complied with its description – whether the statutory warranties applied – whether the vehicle was a class A warranted vehicle – whether reasonable efforts were made to deliver the vehicle to the warrantor

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 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) QCAT 37 at (38)

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

Not Represented

REASONS FOR DECISION

  1. [1]
    Elizabeth Brazier (the Applicant) purchased a Skoda Octavia motor vehicle from Inverlee Pty Ltd trading as Crown Motors on 17 July 2021.
  2. [2]
    The motor vehicle developed mechanical faults and following a mechanical report from a local repair centre the Applicant says further major faults were identified.
  3. [3]
    Following discussions and demands by the Applicant with Crown Motors, these proceedings were commenced by the Applicant on 8 November 2021 filing in the Tribunal an Application – Motor Vehicle Dispute.
  4. [4]
    By that Application the Applicant asked to be put in the position she was before she purchased the motor vehicle and lists various costs of $8836.49   for payment from Crown Motors plus the cost of returning the vehicle. s.

Background Facts

  1. [5]
    The Applicant resides near Coffs Harbour in New South Wales.
  2. [6]
    Crown Motors carries on business on the Gold Coast, Queensland. The transaction relating to the purchase and sale of the Skoda Octavia occurred during the Covid – 19 period in 2021.
  3. [7]
    On 12 July 2021 the Applicant saw the Skoda Octavia motor vehicle advertised for sale by Crown Motors on Facebook Market Place.
  4. [8]
    Correspondence through Facebook Market Place between the Applicant and Brad Hemming of Crown Motors commenced on 12 July 2021 negotiating the sale and purchase of the Skoda Octavia. Extensive exchange of correspondence occurred between those parties until 17 July 2021. The Applicants says that Brad Hemming for Crown Motors said that the Skoda Octavia motor vehicle was immaculate and was a sound car. She also said that she was told that if she was not happy with the motor vehicle that Crown Motors would provide her with a full refund. However, the exchange of the correspondence records the statements about the motor vehicle by Brad Hemming in these terms:
    1. low kilometres full service history, great tyres and the car drives immaculate;
    2. you have my word that it drives amazing;
    3. yes 100% fixing regardless not major things but I would like them done anyway;
    4. such a great car this Skoda you will be so happy.
  5. [9]
    The evidence is that a pre-purchase inspection was arranged  to ascertain the condition of the car. Apparently this inspection was arranged by Crown Motors. The Applicant paid $90.00 for the inspection. An Inspection Report was not in evidence. There was no Roadworthiness Safety Certificate in evidence in these proceedings. The Applicant says that Brad Hemming informed her that Crown Motors would pay for the minor repairs. These repairs cost $700.00.
  6. [10]
    The Applicant says that she decided to purchase the motor vehicle based on Brad Hemmings assurances that the car was immaculate and that if she wasn’t happy he would give her a 100% refund.
  7. [11]
    On 14 July 2021 the Applicant sent an email to Brad Hemming thanking him for his help and stating that she will deposit $500 to hold the car until it gets repaired.

On 15 July 2021 the Applicant said she could travel to Kingscliff to take delivery of the vehicle. In an exchange of messages Brad Hemming enquired about a good spot to meet in Kingscliff. The Applicant responded: ‘Let’s say Chinderah BP’.

Brad Hemming replied “no problems thanks”.

  1. [12]
    There is a document in evidence described as a contract/order form for the Applicant to buy the motor vehicle from Crown Motors. It is not signed by either party. The buyer is described as the Applicant and the motor vehicle is identified as a “Used” Skoda Octavia registration CV62QF. The motor vehicle is described in that document as follows;.
    1. purchase price is $7500.00;
    2. compliance plate date 2/2011;
    3. build date 2/2011;
    4. odometer reading at 137,384 km.

The documents in evidence contain a “Dealers Receipt” recording that the sale was for a “used vehicle” and that the Applicant fully paid the $7500.00 on 17 July 2021.

  1. [13]
    On 17 July 2021 at about 10.00 am the Applicant and Brad Hemming met at the Chinderah BP in New South Wales for the delivery of the Skoda Octavia motor vehicle.
  2. [14]
    The Applicant says that the contract document under the name of Crown Motors records a licence motor vehicle dealers number which does not belong to Brad Hemming, but which the Applicant says belongs to another person, Graham J Hemming. No formal licence searches were in evidence from either party. Even if the Applicant’s allegations are correct, there is no evidence before the Tribunal to demonstrate that Graham J Hemming was not the licensee for Crown Motors.
  3. [15]
    There is also a Dealer’s Statement to Purchaser – Guarantee of Title from Crown Motors which appears signed by the Applicant at 9:30am on 17 July 2021. That Dealer’s Statement records the odometer reading at 137,384 km
  4. [16]
    On 17 July 2021 the Applicant was shown, but was permitted to take a photo of, a document with the New South Wales Government details which appears to be details of the motor vehicle registration and the name of a previous owner. The document records the registration current until 24 September 2021.
  5. [17]
    The Applicant then drove the motor vehicle from Chinderah to her home near Coffs Harbour. She reports that there were “no major issue”” with the motor vehicle in the first 24 hours.
  6. [18]
    At about 5:28 pm on 17 July 2021 the Applicant sent a message to Brad Hemming stating;

Hey Brad, car drives great. But we can’t open the boot. Do you know how to do it? Also can you recommend a way we can get a central locking clicky key made?

The messages are then record that Brad Hemming removed the motor vehicle from Facebook Marketplace.

  1. [19]
    On 22 July 2021 the first mechanical issue appears to have arisen with the motor vehicle when the dashboard lights for;
    1. oil;
    2. airbag; and
    3. coolant

came on as a warning sign. The vehicle oil and coolant was topped up and the only warning light remained illuminated was for the airbag.

  1. [20]
    On 3 August 2021 the oil light came on again.
  2. [21]
    The Applicant booked the motor vehicle in for a service on 6 August 2021 with Award European Automotive Specialists located at North Boambee in New South Wales. At that time the Applicant says the vehicle had travelled a thousand kilometres after its purchase.
  3. [22]
    Also, on 6 August 2022 the Applicant sent an email to Brad Hemming requesting the inspection report of the motor vehicle for which she had paid $700.00.She also advised that her local mechanics, Award European would send him a report of their inspection later that day.
  4. [23]
    The service by Award European included a 135,000 km service and a new purchase inspection of the vehicle. Bumper reflectors were supplied and fitted to the motor vehicle and the cost of that service which apparently includes a report of faultse was $438.85.
  5. [24]
    In an  undated letter from Award European it states that when the motor vehicle brought  to their workshop on 6 August 2021 the odometer reading was 138,841 kms. Based on the odometer reading in the contract/order form to purchase the vehicle, that motor vehicle had travelled 1457 km since its date of purchase by the Applicant.
  6. [25]
    Award European issued a Report dated 6 August 2020 which listed a number of faults with the vehicle as follows;
    1. rear wiper worn;
    2. LHR door check strap loose;
    3. coolant phalange on side of head leaking;
    4. service interval incorrect set – reset to 15,000 kms;
    5. RHR door lock actuator fault present;
    6. pieces missing from inlet manifold (previous repairs evident);
    7. all wheels have marks;
    8. rear wheel (Skoda Badge Missing);
    9. front of engine breather cover leaking;
    10. oil leak around turbo;
    11. timing change cover leaking;
    12. oil sump leaking;
    13. oil around Mechatronics Cover (known issue with this transmission);
    14. dip stick broken;
    15. battery test good but requires recharge in this repair identification.

The invoice cost for these mechanical issues was not quoted.. The report from Award European does not express any opinion as to how long the defects identified in the vehicle have been in existence. The motor vehicle had been purchased approximately three weeks earlier and that while the impression is that it is unlikely that these defects would have arisen since the date of purchase there is no evidence from Award European to this effect.

  1. [26]
    The Applicant says that when she was collecting the vehicle from Award European, they made a call to Brad Hemming who said that if the car was returned to him he would assess the condition and maybe give the Applicant a refund. Apparently Brad Hemming also stated that the car had no warranty because it was purchased in New South Wales. The Applicant says that if she had known that there was no statutory warranty in Queensland she might have acted differently.
  2. [27]
    The Applicant also states the request by Brad Hemming for the return of the motor vehicle for assessment was not reasonable considering the Applicants location in New South Wales, the condition of the car and a repair at a local independent mechanic was available. The Applicant suggested to Brad Hemming he should organise for the motor vehicle to be picked up and transported by truck to Queensland at his cost. This proposal was rejected by Brad Hemming.
  3. [28]
    The Applicant also says that Brad Hemming claimed that as the Applicant had a pre-purchase inspection, the condition of the motor vehicle had nothing to do with him. The Applicant says that the pre-inspection was undertaken by a business called “Mr Mechanical” and had been arranged by Brad Hemming who had a monthly account with that business.
  4. [29]
    On 9 August 2021 the Applicant sent Brad Hemming a letter of demand by email requesting a full refund or repairs. That email set out a chronology of the facts with additional allegations that Brad Hemming told the Applicant;
    1. it was “a great car”;
    2. “great tyres the car drives immaculate;”
    3. that he offered to deliver the car over the border in New South Wales;
    4. “you have my word that it drives amazing”;
    5. “I would refund the full amount if you aren’t happy”.
  5. [30]
    The Applicant explained the defects found by Award European and finally said:

To resolve the problem I request that you provide a full refund for the car, we will accept $7500 at this stage and not add on our extra out-of-pocket expenses.

We will not be delivering the car to you until we receive the cleared funds you can make payment to my bank account.……which is the same way I paid you. We are not comfortable to drive the car any great distance (to the Gold Coast) with the amount of oil leaks and coolant leaks and you will need to make arrangements to deliver the car to you, or to your car yards you work with in Casino/Lismore or you can come and collect it yourself from our mechanics work shop.

Alternatively we will accept you to pay for the full repair of the car at a mechanic that is close to us.

  1. [31]
    No reply was received from Brad Hemming.
  2. [32]
    On about 12 August 2021 the Applicant made a claim in respect of the motor vehicle through the Office of Fair Trading, New South Wales.
  3. [33]
    On 16 August 2021 the Office of Fair Trading advised the Applicant that as the purchase related to a vehicle from a Queensland Motor Dealer the New South Wales legislation did not apply to this sale and they are unable to assist her on this occasion.
  4. [34]
    The Applicant says that one of the reasons Brad Hemming had previously stated as to why he was refusing to give a refund or a repair or replacement as by that time the car was out of the statutory warranty of 1200 km. The Applicant disputes the facts relating to the distance travelled by the motor vehicle and says that the car is still at 1200 km as it has not been driven.
  5. [35]
    The Applicant is claiming a refund of the purchase price of the vehicle plus other associated costs totalling $8836.49 plus any return costs of the vehicle back to Crown Motors.
  6. [36]
    The Applicant also says that on 20 October 2021 the motor vehicle sustained hail damage and at the time that vehicle was uninsured as the Applicant was not driving that vehicle. However, the Applicant says that no remedy is being sought for the hail damage.
  7. [37]
    The Applicant says that her consumer guarantees have not been met by Crown Motors. She says the motor vehicle is “not lasting, safe” and has a number of faults including major faults as listed by Award European. She says the car does not drive as one would normally expect having to top up the oil and coolant every few days while as a result major leaks and the airbag warning light is still illuminated on the dashboard. She also says that the car does not match the description by the salesperson being immaculate and does not meet the promises made to her by Brad Hemming that she would be able to get a full refund if she was not 100% happy. The car, it is said is not fit for purpose as the Applicant cannot drive it safely as she does not know when the gearbox might fail due to or oil leaks in the mechtronics. The Applicant also says no roadworthy certificate was provided at the point of sale.
  8. [38]
    In an undated (possibly 1 November 2021) mechanical report by Award European the odometer reading was 139,040 km resulting in the motor vehicle travelling 1656 km since the date of its purchase by the Applicant. The undated mechanical report stated:

We explained in our opinion the vehicle is what we call a lemon vehicle meaning you have not bought a vehicle that was in any condition to sell due to the extensive works needed. I on your behalf called the gentleman that you purchased the vehicle from (Brad Hemming) who advised me that the vehicle had been to a friend of his and he had paid him cash to carry out repairs but he could not tell me what the said repairs were, he advised the vehicle had “no warranty on the car because it was bought in NSW” he did state that if you return the vehicle to him he would have to check its condition before considering a refund.

The mechanical report identified additional faults with the vehicle and contained a repair estimate in excess of $10,000.00 approximately.

Crown Motors did not Participate in the Tribunal Proceedings

  1. [39]
    Crown Motors did not file in the Tribunal a Response to the Applicants motor vehicle dispute Application. Nor did Crown Motors file an address for service or any documents in reply to or in support of its case in these proceedings.
  2. [40]
    On 16 February 2022 the Tribunal made a Direction for the Applicant to file an affidavit of service or a form of acknowledgement from Crown Motors.
  3. [41]
    The Applicant filed an affidavit of service in these proceedings on 9 May 2022. That affidavit said that on 3 March 2022 the Application – Motor Vehicle Dispute was served on:
    1. Brad Hemming of Crown motors by personal service at 11.00 am that day; and
    2. on Crown Motors by registered mail at its Bundall Road address on the Gold Coast.
  4. [42]
    The Tribunal continued with these proceedings and made directions on 5 May 2022 for the matter to be listed for a telephone hearing at a date and time to be advised by the Tribunal.

Crown Motors it did not attend the Tribunal Hearing

  1. [43]
    The Tribunal scheduled the hearing of these proceedings for 9:30 am on 16 September 2022. Because of Covid-19 restrictions at the time the hearing was to proceed by telephone hearing rather than an oral hearing in the Tribunal.
  2. [44]
    The Applicant attended the hearing by telephone. Crown Motors did not attend that hearing and was not represented at the hearing.
  3. [45]
    When the Tribunal hearing commenced and that there was no appearance for Crown Motors. There was evidence before the Tribunal that a Notice of Hearing dated 31 August 2022 had been sent by the Tribunal to the Applicant and to Crown Motors by a facsimile transmission on that date. That Notice informed the parties that the hearing was to be conducted by telephone with the Tribunal on 16 September 2022 and 9:30am.
  4. [46]
    In these circumstances the Tribunal was satisfied that Crown Motors had been given a notice of hearing in accordance with section 92 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). The Tribunal proceeded to hear and determine the proceedings in the absence of Crown Motors.

The Jurisdiction of the Tribunal in Motor Vehicle Disputes

  1. [47]
    The Tribunal is empowered to hear and determine disputes in accordance with the QCAT Act and the “enabling Act”.[1]
  2. [48]
    The Applicant brings these proceedings relying on;
    1. s 50A of the Fair Trading Act 1984 (Qld) (Fair Trading Act); and
    2. Schedule 1, s 14 of the Motor Dealers and Chattel Auctioneers Act 2014 (Qld) (Motor Dealers Act).
  3. [49]
    In these proceedings the Applicant seeks a refund of the purchase price from Crown Motors or, alternatively, that Crown Motors be directed to remedy the defect in a timely manner.

        The Applicants Reliance on s 50A of the Fair Trading Act

  1. [50]
    The Fair Trading Act provides that a person may apply, in accordance with the QCAT Act, to the Tribunal in an action under the Australian Consumer Law (Queensland) relating to a motor vehicle seeking an amount or value not more than $100,000.00.
  2. [51]
    In proceedings in reliance of the Fair Trading Act, the Tribunal may make a number of orders which include:[2]
    1. an order requiring a party to the proceedings to pay a stated amount to a stated person;
    2. an order requiring a party to the proceedings to return goods that relate to the claim and are in the party’s possession or control to a stated person.
  3. [52]
    The relevant provisions in the Australian Consumer Law which apply to an action brought by party pursuant to s 50 A of the Fair Trading Act are listed in the Table in s 50A. Those proceedings can include an action for damages against suppliers of goods to recover:
    1. an amount of loss or damage or and the reasonable costs incurred by consumers;
    2. compensation for reduction in value of goods;
    3. damages because of failure to comply with a guarantee.
  4. [53]
    The proceedings must be heard in a 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. would be a minor civil dispute within the meaning of the QCAT Act; or
  2. would be a matter to which s 50A applies; or
  1. for a Court;
  1. any civil jurisdictional limit, including any monetary limit, applying to the Court.
  1. [54]
    The Applicant has brought these proceedings in the Tribunal relying on s 50A of the Fair Trading Act.
  2. [55]
    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).(MotorDealers Act) The Applicants Skoda Octavia comes within the definition of “motor vehicle”.
  3. [56]
    For these proceedings the Applicant is seeking a refund or to recover loss and damage in reliance upon a guarantee under the Australian Consumer Law. The relevant guarantees relied on are:
    1. the guarantee of acceptable quality;[4] and
    2. the guarantee relating to the supply of good by description.[5] 
  4. [57]
    Accordingly, the Applicants proceedings come within the remedies available under the Fair Trading Act which is the relevant “enabling Act” for the purposes of the Tribunal’s jurisdiction. Whether the Applicant can successfully rely on these guarantees will be determined according to the evidence and which is yet to be considered.
  5. [58]
    In these proceedings the Applicant purchased the motor vehicle for $7500.00 in a purchase and sale transaction with Crown Motors. The Applicant seeks a refund of the purchase price for the motor vehicle and other expenses totalling $8836.46. In the Application filed in the Tribunal the Applicant relies on the provisions in s 50A of the Fair Trading Act relating to a motor vehicle for the claim not exceeding $100,000.00.
  6. [59]
    The Tribunal has jurisdiction in accordance with s 50A of the Fair Trading Act to hear the Applicants motor vehicle dispute with Crown Motors.

What are the Available Remedies based on s 50A of the Fair Trading Act.

  1. [60]
    The Table of provisions in s 50A of the Fair Trading Act includes actions against suppliers of goods based upon various provisions in the Australian Consumer Law (Queensland) (ACL) to recover:
    1. an amount of loss or damage;
    2. reasonable costs incurred;
    3. compensation for reduction in value of goods; and
    4. damages because of a failure to comply with a guarantee referred to in the ACL The relevant guarantees in these proceedings are;
    5. guarantee whether or not the motor vehicle supplied is of acceptable quality (s 54 of the ACL); and
    6. guarantee based on the supply of goods by description (s 56 of the ACL).
  2. [61]
    The Applicants proceedings raise the issue whether Crown Motors is in breach of these guarantees depending on whether the Skoda Octavia was:
    1. of acceptable quality; and/or
    2. complied with its description.

Guarantee of Acceptable Quality in s 54 of the ACL.

  1. [62]
    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.
  2. [63]
    The Applicant purchased the Skoda Octavia by a contract and not by way of auction. The contract for the purchase of the motor vehicle occurred in trade or commerce from Crown Motors, the supplier. The issue arises then is whether the Skoda Octavia was of acceptable quality when sold by Crown Motors to the Applicant.
  3. [64]
    Goods are of “acceptable quality” provided they are:[6]
    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 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 s 54(3) of the ACL;

  1. [65]
    The matters in s 54(3) to which a reasonable consumer would have regard are:
    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.
  2. [66]
    The construction and interpretation of s 54 of the ACL was considered in Williams v Toyota Motor Corporation Australia Ltd where Justice Lee stated;[7]

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.

The time to assess whether goods are of acceptable quality is determined by reference to the quality of the goods at the time of supply which has been adopted in decisions of the Tribunal.[8]

  1. [67]
    For the guarantee of acceptable quality is to be determined according to the evidence;
    1. at the time of the supply of the vehicle on 17 July 2021; and
    2. whether the vehicle supplied by Crown Motors to the Applicant complied with the statutory criteria in s 54(2) of the ACL.
  2. [68]
    According to the evidence before the Tribunal the Skoda Octavia supplied by Crown Motors to the Applicant was:
    1. acceptable in appearance and finish;

.

The Applicant’s evidence is that the vehicle was not safe and probably was not durable. However, apart from the Applicant’s assertion in the documents that the vehicle was not safe, there is no evidence, particularly from the mechanical reports, that the vehicle was unsafe. Similarly as to how long or durable the vehicle was is not supported by any evidence before the Tribunal. It is accepted that there is evidence about mechanical defects in the motor vehicle but none of that evidence extends to stating that the vehicle was not safe or was not durable. The vehicle required significant repairs but apparently could be driven provided there was a regular top up of oil and coolant to the engine.

  1. [69]
    The evidence before the Tribunal establishes that the motor vehicle required significant repairs costing somewhere in the vicinity of $10,000.00. The Tribunal accepts the evidence of the Applicant and that of Award European.
  2. [70]
    Having regard to matters in s 54(3) of the ACL that the purchase of the “Used” Skoda Octavia, having been built in February 2011, was approximately 11.5 years old  and odometer had 137,384 km. when purchased at a cost of $7,500.00 a reasonable consumer would anticipate that there would be some likely mechanical defects or repairs required to such a vehicle. However, a reasonable consumer being fully acquainted with the defects in the Skoda Octavia (as identified by Award European) would not be satisfied of the following criteria in s 54(2) of the ACL:
    1. that the vehicle was fit for all purposes for which a vehicle of that kind was commonly supplied; and
    2. was free of defects.
  3. [71]
    However, that is not the end of the exercise as to whether the vehicle satisfies the guarantee of “acceptable quality”. The next critical issue is whether the Skoda Octavia failed to satisfy the above two criteria in s 54(2) at the time of supply on 17 July 2021.
  4. [72]
    The uncontested facts include the fact that Crown Motors sold the used Skoda Octavia to the Applicant on 17 July 2021 who then took delivery of the vehicle. The vehicle was then driven some distance from Chinderah, near Tweed Heads to the applicants home near Coffs Harbour in New South Wales. The Applicant reported later in the day on 17 July 2021 in a message to Brad Hemming that the “car drives great”.
  5. [73]
    The Applicant says that the first occasion when defects occurred was on 22 July, 2021. The defects triggered a visit to the Applicants mechanics, Award European on 6 August 2021. This was approximately seven weeks later with the odometer reading of 138,841 kms evidencing that the motor vehicle had been driven just under 1500 km since its purchase. By approximately 1 November 2021 vehicle had been driven 139,040 kms a distance of 1656 kms since the date of purchase.
  6. [74]
    There is no evidence relating to the existence of mechanical problems with the vehicle on 17 July 2021. At that date the vehicle had three defects. Two of these were immediately rectified by topping up the engine with oil and coolant. The third defect, the airbag warning light, was and not rectified that time. Up to that time there Applicant described the motor vehicle as being a car that drives “great”.
  7. [75]
    The evidence in these proceedings did not include a Motor Vehicle Assessment Report which might have assisted the Tribunal in making its determination including a determination as to the time when the defects in the motor vehicle had arisen.
  8. [76]
    The evidence before the Tribunal is that the first defects in the motor vehicle approximately five (5) days after the date of supply of the Skoda Octavia to the Applicant. These defects could only be described as a minor irritant as to permit required the top up of engine oil and coolant. The remaining defect related to airbag warning light. The evidence is that up to that time the Applicant described the car as being “great”. More serious defects were identified in early August 2021. However, as previously explained, there is no evidence as to when these defects would have arisen. It is up to the parties to supply the necessary evidence in these proceedings to support their case.
  9. [77]
    The state of the evidence before the Tribunal is that as at the date of supply of the vehicle on 17 July 2021, there was no evidence demonstrating that the vehicle was not:
    1. fit for all the purposes for which the vehicle of that kind is commonly supplied; and
    2. free from defects.
  10. [78]
    The evidence about the matters in (a) and (b) only arise on some days and weeks subsequent to the date of purchase on 17 July 2021. The evidence about defects on the date of purchase is non-existent.
  11. [79]
    The Tribunal finds that the evidence establishes that at the time of supply of the Skoda Octavia there is no evidence before the Tribunal that there were any defects present in that motor vehicle. The defects to which the Applicant refers to in evidence arose subsequent to the date of supply.
  12. [80]
    Accordingly, for these reasons, the Applicant has not established that the Skoda Octavia was not of acceptable quality at the date of supply. The Tribunal will accordingly dismiss that part of the Application-Motor Vehicle Dispute filed on 8 November 2021 which relies upon the guarantee of acceptable quality of the motor vehicle.
  13. [81]
    It should be noted that a number of the Applicant’s concerns arise from representations made by Brad Hemming to the effect that if the Applicant is not 100% happy with the vehicle he will refund the purchase price in full. Other representations were made that it was a “great car”, “it drives amazing” and “such a great car this Skoda you will be so happy”. As can be seen from the definition of “acceptable quality” these matters can be taken into account in terms of s 54(3) of the ACL in determining whether a reasonable consumer fully acquainted with the state and condition of the motor vehicle would regard it as acceptable having regard to these representations and other matters. The problem for the Applicant is that while representations might have been made at, or coexistent with the time of supply on 17 July 2021, there was a lack of evidence before the Tribunal relating to existence of defects at that date which would demonstrate non-compliance with the representations. These representations have been taken into account but do not assist their Applicant because of the lack of evidence relating to the state or condition of the 11.5 years old vehicle at the time of purchase. Another problem is that on delivery of the motor vehicle the Applicant drove the vehicle approximately 300 km and then that afternoon in a text message to Brad Hemming stated that the “car drives great”. The Applicant says in the Application filed in the Tribunal:

we purchased in Chinderah and drove home to Coffs Harbour. At this stage we saw no major issue. (Less than 24 hours)

Guarantee that Goods Supplied Correspond with the Description (s 56).

  1. [82]
    The Applicant claims in the Application that the motor vehicle does not match the description given by Brad Hemming on behalf of Crown Motors that it was “immaculate”.
  2. [83]
    It seems from the Applicants evidence that by the motor vehicle being described as “immaculate” means that the vehicle is mechanically free from defects as well as describing the condition of the vehicle.
  3. [84]
    While the Applicant says that this was a description of the motor vehicle, the evidence relied upon in the exchange of text messages demonstrates that Brad Hemmings description was slightly different. The evidence in the text messages attached to the Application filed in the Tribunal contain the following evidence:
    1. on 12 July 2021 he said “low kilometres full service history great tyres the car drives immaculate”;
    2. on 12 July 2021 he said “you have my word that it drives amazing”;

These statements made above would indicate that the description of “immaculate” relates to how the car drives (road handling) rather than a description of the mechanical condition of the vehicle as being “immaculate”.

  1. [85]
    However, even if the evidence does point to a description of the motor vehicle supplied by Crown Motors as contended for by the Applicant, that description has to be considered as at the time of supply on the morning of 17 July 2021.
  2. [86]
    The evidence is that the Applicant having taken delivery of the Skoda Octavia that morning then drove the motor vehicle 300 km to Coffs Harbour. That was sufficient time for the Applicant to state at that time “We saw no major issue” and at 5:28 pm that day said in a text message to Brad Hemming that the “car drives great”. While these statements are not identical with the representation relied upon by the Applicant nevertheless supports the proposition that at the time of supply of the motor vehicle the driving and the mechanical condition of the motor vehicle was consistent with descriptions provided by Brad Hemming on behalf of Crown Motors. The evidence also demonstrates that within the next five days to 6 weeks mechanical condition of the vehicle was shown to contain that that evidence did not extend to showing that those defects were present at the time of supply.
  3. [87]
    As the state of the evidence does not support the Applicants proposition relating to the sale of the motor vehicle by description, that part of the Application-Motor Vehicle Dispute filed on 8 November 2021 will be dismissed.

Applicants Reliance on the Motor Dealers and Chattel Auctioneers Act 2014

  1. [88]
    The Motor Dealers Act provides for a statutory warranty for “warranted vehicles” sold by a motor dealer in particular circumstances.[9] These statutory warranties are in Schedule 1 to the Motor Dealers Act.
  2. [89]
    The Applicant’s statement of evidence filed in the Tribunal refers to a claim by Brad Hemming, on behalf of Crown Motors, that the statutory warranties in Queensland do not apply to the Skoda Octovia. The basis of that claim is that the delivery of that motor vehicle took place at Chinderah in New South Wales and not in Queensland. It rather seems that the claim relies upon the contract having been made in New South Wales. However, an examination of the facts in these proceedings referred to earlier demonstrate that there was an offer by Crown Motors to sell the motor vehicle on Facebook Marketplace, which offer was accepted by the Applicant and communicated to Crown Motors in Queensland. The parties by that stage had agreed on all the requisite requirements for a contract: parties, price and subject matter of the contract. The contract was made on the communication of the Applicant’s acceptance to Crown Motors who are located in Queensland. The contract was made before the Applicant took delivery of the vehicle at Chinderah. The part played by Chinderah was the chosen location for the delivery point of the vehicle being undertaken pursuant to the contract already made between the parties. The Tribunal finds that the contract for the purchase of this motor vehicle was made in Queensland and the Queensland legislation, rather than the New South Wales legislation is applicable in the circumstances of these proceedings.
  3. [90]
    In Queensland the provisions of the Motor Dealers Act provide that a buyer of a warranted vehicle sold by a motor dealer may apply to the Tribunal for various orders provided the relief sought is no more than $100,000.00.[10] Accordingly, the Motor Dealers Act is also an enabling Act for the purposes of these proceedings provided the statutory requirements are satisfied by the Applicant.
  4. [91]
    Schedule 1 to the Motor Dealers Act contains the Statutory Warranty provisions. Those provisions apply to a “warranted vehicle” which is defined as follows;

a warranted vehicle is a used motor vehicle.

  1. [92]
    That definition also excludes a number of categories of motor vehicles, none of which apply in these proceedings. The contract/order form for the purchase of the Skoda Octavia says that it is a “used” vehicle. It also states that the vehicles build date is February 2011 and at the time of sale its odometer reading was 137,384 kms. The Applicants motor vehicle is for the purposes of these proceedings a “warranted vehicle” as defined under the Motor Dealers Act.
  2. [93]
    Whether a warranted vehicle has a warranty for three months or for one month depends upon whether that vehicle fits within the definition of a “class A warranted vehicle” or a “class B warranted vehicle” respectively. In general terms vehicles that have an odometer reading of the less than 160,000 km are to be considered under the definition of a “class A warranted vehicle” whereas vehicles which have 160,000 km or more are to be considered under the definition of a “class B warranted vehicle”. The Skoda Octavia had a odometer reading of 137,384 km at the date of sale/supply and the issue arises as to whether it comes within the definition of a “class A warranted vehicle”.
  3. [94]
    The definition of a class A warranted vehicle means a vehicle that:
    1. on the day of its sale, has an odometer reading of less than 160,000 km; and
    2. has a build date of no more than 10 years before the date of its sale.
  4. [95]
    The Skoda Octavia satisfies the first of these criteria. The question is whether it’s “build date” is no more than 10 years before the date of its sale. The only evidence before the Tribunal of the date of manufacture of the motor vehicle is in the contract/order form to buy a motor vehicle provided by Crown Motors. That document says that the compliance plate date is February 2011 and the build date is February 2011. This date is more than 10 years prior to the date of sale on 17 July 2021 Ordinarily, it might be expected that that evidence is sufficient to demonstrate that the motor vehicle does not satisfy the criteria to establish that the vehicle was bought no more than 10 years prior to the date of its sale. However, that is not the case in these proceedings. The Motor Dealers Act provides a definition of “build date” which specifies that the build date for a warranted vehicle is:
    1. If the date the vehicle was manufactured is shown on the vehicle - that date; or
    2. the date stamped or printed on the vehicles identification plate; or
    3. the date of manufacture of the vehicle entered for the vehicle in the register of approved vehicles under the Road Vehicle Standards Act 2018 (Cth).
  5. [96]
    The reference in (b) above to “identification plate” has the meaning given by the repealed Motor Vehicles Standards Act 1989 (Cth). The difficulty in these proceedings is that there is no evidence before the Tribunal which would satisfy the definition of “build date” in (a) or (b) or (c) above. The evidence contained in the contract/order form of February 2011 does not fit the requirements in (a), (b) or (c) above. To satisfy the definition of “build date” requires evidence of the date shown on the vehicle about what date of the vehicle’s manufacturers, or evidence of the date stamp on the vehicle’s identification plate, or evidence of the date entered on the register of approved vehicles. None of that evidence has been provided. While a date of February 2011 is specified in the contract/order form, there is no evidence to show that that date corresponds with the date of manufacture shown on the vehicle or the date on the vehicles identification plate all the date entered into the register of approved vehicles. In these circumstances, there being no evidence satisfying the criteria to establish the “build date” the Tribunal cannot be satisfied about what date the Skoda Octavia was manufactured. Accordingly, the evidence before the Tribunal does not establish that the Skoda Octavia had a build date of not more than 10 years before the date of its sale. For these reasons, the Tribunal cannot be satisfied that the Skoda Octavia is a “class A warranted vehicle” and accordingly does not attract the warranty provided under the Motor Vehicles Act.
  6. [97]
    If however, contrary to the above conclusion that the Skoda Octavia is not a class A warranted vehicle, a warranty did apply to that motor vehicle then there are the additional requirements which the Applicant had to meet before obtaining the benefit of any warranty under the Motor Dealers Act.
  7. [98]
    Leaving to one side for a moment whether Crown Motors gave a buyer notice about statutory warranties the Applicant nevertheless has obligations under the statutory warranty process.[11] As the Skoda Octavia was located more than 200 km from Crown Motors place of business, the Applicant was required to give a defect notice before the end of the warranty period and to:[12]
    1. deliver the warranted vehicle to the qualified repairer nominated by the warrantor by signed writing given to the buyer of the vehicle and nearest to the vehicle to repair the defects; or
    2. deliver, at the warrantor’s expense, the warranted vehicle to another qualified repairer nominated by the warrantor by signed writing given to the buyer of the vehicle to repair the defect;
  8. [99]
    The evidence is that neither of the events in (a) or (b) above occurred. The evidence is that there was discussion by the Applicant, and the mechanical repairers Brad Hemming on 6 August 2021. A letter of demand was sent to Crown Motors on 9 August 2021. That letter is set out the details of the defects. Neither Crown Motors or Brad Hemming replied except by a series of text messages. In the first of those text messages Brad Hemming said;

Hi, I am very disappointed in this situation as we have gone far and beyond to help you and with even yourself getting a prepurchase inspection. If you can get the car up to us so that we can take back to Mr Mechanical that you supplied us with and we can look at the roadworthy items gladly do so.

  1. [100]
    The Applicant responded by text message that she was unable to get the car to Crown Motors “in its condition” which accompanied a further request for a refund in full for the car or for Crown Motors to pay for the card to be repaired by a local mechanic in Colts Harbour.
  2. [101]
    A response by text message from Brad Hemming was in these terms;

sorry I don’t believe you can’t drive the car in the condition, as the condition we sold you the car in was up to roadworthy and I myself drove it numerous times. The only way for us to consider a refund would be to bring the car back to us and having my mechanic go over all this so-called unroadworthy items be fixed by my mechanic, not a supplied one you have selected. As the law states for us to fix I will be contacting fair trading as to where we stand selling in the car as is no RWC and to…

  1. [102]
    The Applicant responded by text message requesting a response to earlier emails in the letter of demand by close of business. Otherwise, the Applicant;

‘will be moving forward with lodgement of the case with Fair Trading requesting a full refund and reimbursement of all extra costs associated with the purchase of the vehicle from you’.

  1. [103]
    Brad Hemming responded by text message requesting the Applicant stop the threats and then stated:

I’ve told you what you can do so far you have a pre-purchase inspection what else can you do I even delivered the car to you and lost money on the car leave me alone.

If you want a refund bring the car back.

  1. [104]
    The basis on which the Applicant appears unwilling to return the vehicle to Crown Motors is stated by the Applicant in the letter of demand of 9 August 2021 in which she states;

We are not comfortable to drive the car any great distance (to the Gold Coast) with the amount of oil leaks and coolant leaks and you will need to make arrangements to deliver the car to you, or to your car yards you work within Casino/Lismore or you can come and collect it yourself from our mechanics workshop.

  1. [105]
    While the Motor Dealers Act requires the Applicant to deliver the warranted vehicle to the qualified repairer nominated by Crown Motors “by signed writing given to” in the Applicant, none of the text messages nominating the delivery of the vehicle by Crown Motors was signed. There was non-compliance with the arrangements for the delivery of the vehicle stated in the Motor Dealers Act.
  2. [106]
    However, where there is a refusal to accept delivery of the vehicle, the buyer is taken to have delivered the vehicle and in the seller is taken to have possession of that vehicle:[13]

if the buyer makes reasonable efforts to deliver the vehicle under this section but is unable to do so because the warrantors are, or the qualified repairer nominated by the warranted, refuses to accept delivery of the vehicle.

  1. [107]
    The problem in these proceedings is that while Crown Motors required the Skoda Octavia to be delivered to its place of business in Queensland. The Applicant was “not comfortable to drive the car any distance” considering the amount of oil leaks and coolant leaks. No reference was made to Covid-19 restrictions, if any, as preventing delivery. The Applicant refused to deliver the vehicle to Crown Motors and insisted that the vehicle be transported back to Queensland at Crown Motor’s expense or it make arrangements to pick up the vehicle from the mechanics workshop near Coffs Harbour.
  2. [108]
    In these circumstances the Tribunal is not satisfied that reasonable arrangements were made by the Applicant for the return of the motor vehicle to Crown Motors. Several requests were made for the return of the motor vehicle but the evidence demonstrates that the vehicle would only be returned on the Applicant’s terms in circumstances where the Applicant “was not comfortable” in driving the vehicle to the Gold Coast. The explanation provided by the Applicant does not satisfy the Tribunal in all of the circumstances that reasonable attempts were made for the return of the motor vehicle.
  3. [109]
    In the circumstances, the Tribunal is not satisfied that Crown Motors was given a reasonable opportunity to inspect the vehicle nor that reasonable arrangements were made for the return of the motor vehicle.
  4. [110]
    Also, the Tribunal is not satisfied, for the above reasons that the Skoda Octavia is covered by any warranty as it does not meet the criteria for a class A warranted vehicle. No warranty or warranty period applies to that motor vehicle.
  5. [111]
    The Applicants claim made in reliance upon the Motor Dealers Act is dismissed.

Orders

  1. [112]
    The Tribunal orders that the Application – Motor Vehicle Dispute filed by the Applicant in the Tribunal on 8 November 2021 is dismissed.

Footnotes

[1]  QCAT Act s 9, s 10.

[2]  Fair Trading Act s 50A(2).

[3]  Fair Trading Act s 50(1).

[4]  ACL s 54.

[5]  ACL s 56.

[6]  ACL s 54(2).

[7]  (2022) FCA 344 at paragraphs 164-165.

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

[9]  Motor Dealers Act s 115.

[10]  Motor Dealers Act Schedule 1, s 14 &15

[11]  Motor Dealers Act Schedule 1, s 12.

[12]  Motor Dealers Act Schedule 1, s 9(1)(b).

[13]  Motor Dealers Act Schedule 1, s 9(2).

Close

Editorial Notes

  • Published Case Name:

    Brazier v Inverlee Pty Ltd t/as Crown Motors

  • Shortened Case Name:

    Brazier v Inverlee Pty Ltd t/as Crown Motors

  • MNC:

    [2024] QCAT 25

  • Court:

    QCAT

  • Judge(s):

    Member Carrigan

  • Date:

    23 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
Sazdanoff-Haynes v MLS Wholesales Pty Ltd [2023] QCAT 37
2 citations
Jump To
Cite 1 - [2023] QCAT 37
Cite 2 - [2023] QCAT 37
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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