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CITE

Unreported Judgment

Allen v New Centenary Pty Ltd t/a Mercedes-Benz Macgregor[2024] QCAT 252Member Bishop
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Allen v New Centenary Pty Ltd t/a Mercedes-Benz Macgregor[2024] QCAT 252

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:	Allen v New Centenary Pty Ltd t/a Mercedes-Benz Macgregor & Anor [2024] QCAT 252
PARTIES:	barry leonard ALLEN (applicant) v NEW CENTENARY PTY LTD t/a mercedes-benz macgregor (first respondent) mercedes-benz australia/pacific pty ltd (second respondent)
APPLICATION NO/S:	MVL126-22
MATTER TYPE:	Motor vehicle matters
DELIVERED ON:	14 June 2024
HEARING DATE:	26 October 2023
HEARD AT:	Brisbane
DECISION OF:	Member Bishop
ORDERS:	New Centenary Pty Ltd t/a Mercedes-Benz Macgregor is required to collect the Motor Vehicle the subject of these proceedings from Barry Leonard Allen, or Barry Leonard Allen’s representative, within 14 days of the date of these orders. Within 14 days of New Centenary Pty Ltd t/a Mercedes-Benz Macgregor collecting the Motor Vehicle, New Centenary Pty Ltd t/a Mercedes-Benz Macgregor is required to pay Barry Leonard Allen the amount of $73,088.51. If Barry Leonard Allen, or Barry Leonard Allen’s representative, refuses to allow New Centenary Pty Ltd t/a Mercedes-Benz Macgregor to collect the Motor Vehicle the subject of these proceedings in accordance with Order 1, New Centenary Pty Ltd t/a Mercedes-Benz Macgregor is required to pay Barry Leonard Allen the amount of $440.00.
CATCHWORDS:	TRADE AND COMMERCE – COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION – CONSUMER PROTECTION – GUARANTEES, CONDITIONS AND WARRANTIES IN CONSUMER TRANSACTIONS – GUARANTEES, CONDITIONS AND WARRANTIES – limits on the Tribunal’s jurisdiction – whether motor vehicle of acceptable quality – whether failure to comply with consumer guarantee a major failure – whether goods rejected during the rejection period – whether consumer entitled to refund – whether consumer entitled to costs Competition and Consumer Act 2010 (Cth), Schedule 2 s 3, s 54, s 60, s 61, s 236, s 260, s 262, s 263 Fair Trading Act 1989 (Qld), s 50A, s 50C Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 10 Medtel Pty Ltd v Courtney (2003) 130 FCR 182 Campbell v Caravan & RV Central Pty Ltd t/as Avan New South Wales & FCA Australia Pty Ltd [2016] NSWCATCD 90 Cary Boyd v Agrison Pty Ltd [2014] VMC 23 Morphy v Beaufort Townsville Pty Ltd [2018] VCAT 1520 Vautin v BY Winddown, Inc (formerly Bertram Yachts) (No 4) [2018] FCA 426 Haisman v Drive (Aust) Pty Ltd [2020] QCAT 44
APPEARANCES & REPRESENTATION:
Applicant:	James Allen
Respondents:	Mercedes-Benz Macgregor represented by Ben Haywood Mercedes-Benz Australia/Pacific Pty Ltd represented by Claire Poyser

REASONS FOR DECISION

Background

[1]
Mr Barry Leonard Allen (‘the Applicant’) purchased a 2018 Mercedes-Benz X350d (‘the Motor Vehicle’) from Mercedes-Benz Macgregor (‘MBM’) in and around 28 August 2020. The Applicant took delivery of the Motor Vehicle on 11 September 2020.
[2]
On 24 June 2022, the Applicant filed in the Tribunal an Application – Motor Vehicle Dispute (‘the Application’) seeking relief under Schedule 2 to the Competition and Consumer Act 2010 (Cth) (the Australian Consumer Law) (‘ACL’). The Application named MBM as the only Respondent but Mercedes-Benz Australia/Pacific Pty Ltd (‘MBAuP’) was joined as a Respondent on 27 October 2022.

The Tribunal’s Jurisdiction

[3]
The Tribunal’s original jurisdiction is “the jurisdiction conferred on the tribunal under an enabling Act to decide a matter in the first instance”.^[1] In relation to motor vehicles, the Tribunal’s jurisdiction is conferred by section 50A of the Fair Trading Act 1989 (Qld).
[4]
Section 50A of the Fair Trading Act 1989 (Qld) enables a person to make an application to the Tribunal for an order mentioned in subsection (2) for an action related to a motor vehicle under a provision of the ACL seeking an amount or value of not more than $100,000. These include actions for damages under section 236(1) of the ACL and actions against a supplier or manufacturer for a failure to comply with statutory guarantees in Part 3.2 of the ACL.
[5]
Subsection 50A(2) of the Fair Trading Act 1989 (Qld) states the Tribunal may make only the following orders:

an order requiring a party to the proceeding to pay a stated amount to a stated person;
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;
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;
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;
an order combining 2 or more orders mentioned in paragraphs (a), (b), (c) and (d).

[6]
Section 50A of the Fair Trading Act 1989 (Qld) is explicit about what orders the Tribunal can make in relation to motor vehicles. The Tribunal has no jurisdiction to refer, investigate or determine matters in relation to motor vehicles outside the actions under the ACL in the “interest of justice”. Nor does the Tribunal have jurisdiction to make orders in relation to motor vehicles outside those specified in subsection 50A(2) of the Fair Trading Act (Qld).

The services provided by Mercedes-Benz North Shore in New Zealand

[7]
The Applicant requested to join the Miles Group and Mercedes-Benz North Shore in relation to their servicing of his Motor Vehicle in New Zealand. The Applicant conceded the Miles Group was a New Zealand company, and the services were provided in New Zealand, but argued those services arose from a contract entered into in Queensland. The service plan was a contract between the Applicant and MBAuP. In post-hearing submissions the Applicant states MBAuP are the purchasers of servicing on behalf of the customer and “therefore it is assumed that the management of those contractual relationships are a service that MBAuP provides to the customer”.^[2] The Respondents’ evidence was that when the Applicant purchased the Motor Vehicle there was a promotion, and the Applicant was given a complimentary three-year service plan.
[8]
Under sections 60 and 61 of the ACL, a person who supplies, in trade or commence, services to a consumer, guarantees that the services will be rendered with due care and skill and fit for a particular purpose. The term ‘supply’ when used as a verb is defined in relation to services as provide, grant or confer.
[9]
The servicing of the Applicant’s Motor Vehicle in dispute were provided by Mercedes-Benz North Shore in New Zealand. Mercedes-Benz North Shore is the ‘person’ who supplied the service and would be the correct Respondent. However, the ACL does not bind services provided in New Zealand and the Tribunal has no jurisdiction to make such orders. Whether the Applicant can make an application, and whether MBAuP and/or the Miles Group are joined, must be determined in New Zealand with reference to the relevant New Zealand legislation.

The Tribunal’s use of the Gilmore Report

[10]
On 27 March 2023, Member Howe directed an assessor would be appointed to inspect the Motor Vehicle and that no “party would be allowed to produce further expert evidence without leave of the Tribunal”.
[11]
On the morning of the Tribunal hearing, the Applicant provided an Engineering Assessment of Brake Pad and Rotor Wear dated 25 October 2023 (‘the Gilmore Report’). During the hearing, the Applicant submitted the Gilmore Report was relevant to the Motor Vehicle recall and Mercedes-Benz North Shore’s servicing. The Respondents argued the Tribunal should not rely on the Gilmore Report and, if it did, the Respondents should be afforded the right to have the Motor Vehicle assessed and inspected. Those submissions were repeated post-hearing.
[12]
The Tribunal agrees with the Applicant’s submission that the Gilmore Report is relevant to the servicing by Mercedes-Benz North Shore. For reasons outlined in detail above, those matters are not before the Tribunal. The Tribunal has not relied on the Gilmore Report.

Application – Motor VehicleDispute

Is the Applicant a Consumer?

[13]
Section 3 of the ACL states:

(1)
A person is taken to have acquired particular goods as a consumer if, and only if:

the amount paid or payable for the goods, as worked out under subsections (4) to (9), did not exceed:

$40,000;^[3] or
if a greater amount is prescribed for the purposes of this paragraph--that greater amount; or

the goods were of a kind ordinarily acquired for personal, domestic or household use or consumption; or
the goods consisted of a vehicle or trailer acquired for use principally in the transport of goods on public roads.

[14]
The Respondents submitted the X350d is marketed to, used by and is usually acquired for use in business or commercial applications. The marketing material describes the Motor Vehicle as “robust”, a “reliable workhorse” and “an ideal partner for work”. The X350d has a load carrying capacity of over 1000 kilograms and the longest load bed in the class. The Respondents argued the attributes of the X350d are not of a kind ordinarily acquired for personal, domestic or household use; although the X350d may be used for incidental personal or domestic tasks.
[15]
The Applicant’s written evidence is he intended to use his Motor Vehicle “for an Australian outback working holiday” but that intention did not materialise.
[16]
The Tribunal accepts the Motor Vehicle has attributes consistent with it being used in business or commerce. However, the Tribunal does not accept those attributes preclude it from being ordinarily acquired for personal, domestic or household use. The Mercedes-Benz marketing material also states the Motor Vehicle looks “equally at home in an urban setting. An ideal partner for work and play, the vehicle brings worlds together in unprecedented fashion”.^[4] The Motor Vehicle has five seats, and its interior is described as luxurious.^[5] On the Applicant’s own evidence, he intended to use the Motor Vehicle in both an urban and outback environment requiring a more “robust” and “reliable workhorse”.
[17]
The Tribunal finds the Motor Vehicle was a good of a kind ordinarily acquired for personal, domestic or household use or consumption. The Tribunal finds the Applicant is a consumer.

[18]
Under section 54(1) of the ACL, when a person supplies in trade or commerce goods to a consumer, there is a guarantee that the goods will be of “acceptable quality”. The time when the goods are to be of acceptable quality is at the time the goods are supplied to the consumer. However, information available at the time the goods are supplied, may be taken into account when determining whether the goods were, or were not, of acceptable quality.^[6]
[19]
Sections 54(2) and (3) of the ACL define acceptable quality as follows:

Goods are of acceptable quality if they are as:

fit for all the purposes for which goods of that kind are commonly supplied; and
acceptable in appearance and finish; and
free from defects; and
safe; and
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).

The matters for the purposes of subsection (2) are:

the nature of the goods; and
the price of the goods (if relevant); and
any statements made about the goods on any packaging or label on the goods; and
any representation made about the goods by the supplier or manufacturer of the goods; and
any other relevant circumstances relating to the supply of the goods.

Evidence

[20]
The Applicant’s evidence is he took possession of the Motor Vehicle on 11 September 2020. The Motor Vehicle broke down on 12 September 2020 and was towed to MBM on 13 September 2020.^[7]
[21]
The MBM service tax invoice dated 14 September 2020 stated the Motor Vehicle’s air flow meters were swapped. On 16 September 2020 the Motor Vehicle was returned to the Applicant, and it broke down again the following day. The Applicant’s evidence is the Motor Vehicle displayed an engine warning light but was driven about 140 kilometres back to MBM. The Applicant requested a new car on 17 September 2020 stating the Motor Vehicle was not fit for purpose.^[8] On 9 October 2020 the Motor Vehicle was returned to the Applicant, and he again asked for a full refund or replacement.
[22]
On 16 May 2021 the Motor Vehicle experienced two faulty airflow intake sensors and required towing to the nearest service centre.^[9] The Motor Vehicle was returned to the Applicant about a week later. On 19 May 2021 the Applicant emailed MBM and stated the Motor Vehicle had, amongst other issues, problems with its cruise control. The Applicant stated the Motor Vehicle was not fit for purpose and he wanted a full refund. He stated the alternative would be to go to QCAT.
[23]
The Applicant’s evidence is that prior to leaving for New Zealand in July 2021, the Motor Vehicle had an unusual turbo noise or whine. The Motor Vehicle was booked in for MBM to undertake a service but, for a number of reasons, that service did not eventuate. On 16 September 2021 the Motor Vehicle was shipped to New Zealand.
[24]
On 9 March 2022 the Applicant emailed Mr Haywood at MBM stating the Motor Vehicle did not have working air bags and the differential locking system was malfunctioning.
[25]
On 13 April 2022 the Motor Vehicle^[10] was serviced in New Zealand and checked for a “TURBO NOISE – LOW REV, LOW SPEED”. The following issues and/or recommendations were found:

Left hand axle seal leaking
Left hand brake shoes ($1,550)
Passenger SRS sensor ($1,550)
Boot lock ($210)
Front brakes ($1,200)
Rear brakes ($1,100)
Rear diff-lock fault logged – traction system malfunction
Left hand side running board ($2,800)
Stone chip protector peeling

[26]
The Motor Vehicle had 32,187 kilometres on the odometer.
[27]
On 20 October 2022 the Applicant organised for the Motor Vehicle to be inspected by Prestige European Motors Ltd with 36,753 kilometres on the odometer. That inspection found:

Oil on alternator
Diesel leaking around fuel filter in valley of engine
LHR Axle seal leaking oil
Rust beginning on bonnet latch area
Tail gate rubber strips poorly cut and not fitting properly
Front and rear number plates crooked
Front radar sensor exposed by crudely cut front bumper and susceptible to damage
Rear bar light wiring exposed from protective conduit and liable to wear through on body
Rubber trims between body and rear deck unclipped
Bonnet rubber unclipped on drivers’ side
Deck lid light not working
Slight turbo whine under hard acceleration

[28]
On 13 November 2022 the Applicant sent an email to, amongst others, Mr Haywood advising him the Motor Vehicle has a “pretty serious oil leak going on”.^[11]
[29]
On 31 March 2023 the Motor Vehicle had 39,931 kilometres on its odometer and underwent an inspection to obtain a roadworthy certificate in Queensland. It failed the inspection because of leaking oil and fuel.
[30]
On 19 July 2023 the Motor Vehicle underwent a Motor Vehicle Assessment by Mr Robert Haigh. Mr Haigh found the Motor Vehicle:

Was leaking oil – potentially reducing the life of the alternator
Was leaking fuel from hoses to filter in valley of engine minor leak
Left rear axle seal leaking contaminating brakes with oil
Rubber seals on tub and hard lid required replacement
Rust in bonnet around hatch
Abnormal noise from turb
Front radar unprotected hole cut in mesh in bulbar

[31]
Mr Haigh believed the rust in the bonnet was due to poor paint preparation from the factory and the abnormal noise in the turbo was possibly due to turbo failure or an intake leak. Mr Haigh’s opinion was that apart from the radar defect, all other defects were caused by parts lacking in durability as failures should not be seen on a vehicle with little usage. Mr Haigh questioned whether the Motor Vehicle had been stored or maintained inappropriately causing premature wear on systems.
[32]
On 15 August 2023 the Department of Infrastructure, Transport, Regional Development, Communications and the Arts issued a vehicle recall on the Mercedes-Benz X class 2017–2019. The defect was due “to a manufacturing defect, the rear axle radial shaft ring may not be sealed adequately. This could cause an oil leak resulting in an unexpected reduction in braking performance.” The recall states the “unexpected reduction in braking performance could increase the risk of an accident causing injury or death to vehicle occupants and/or other road users”.^[12]
[33]
The Applicant purchased the Motor Vehicle brand new for $72,290.51 with a five-year manufacturer’s warranty. The Motor Vehicle was marketed as a robust reliable workhorse. The Applicant took possession of the Motor Vehicle on 11 September 2020 and between that date and 9 October 2020, it broke down twice and was in his possession for about three days. The Motor Vehicle underwent a one-year service in April 2021 but was returned for repairs in May 2021 for about one week. In September 2021 the Applicant was reporting a ‘turbo noise’ and in March 2022 the Motor Vehicle did not have working air bags and the differential locking system was malfunctioning. The ‘turbo noise’ was investigated in April 2022 and in October 2022 a slight turbo whine was present under hard acceleration. That abnormal turbo noise persisted in April 2023. In April 2023 the Motor Vehicle was unroadworthy and had, amongst other things, leaking oil, leaking fuel and rust in the bonnet. Further, in August 2023 the Department of Infrastructure, Transport, Regional Development, Communications and the Arts issued a vehicle recall due to a defect that could cause an oil leak and reduce braking performance.
[34]
In Campbell v Caravan & RV Central Pty Ltd t/as Avan New South Wales & FCA Australia Pty Ltd [2016] NSWCATCD 90 at [57], the New South Wales Civil and Administrative Tribunal stated:

A reasonable consumer would also be entitled to expect that such a high cost item would be durable, being capable of safe and effective use over a number of years (or at least many thousands of kilometres).

[35]
Based on all the evidence before it, including its high cost, the Tribunal is satisfied the Motor Vehicle was not of acceptable quality at the time of supply.
[36]
The Respondents submit the Motor Vehicle’s failures are minor and “simply remedied”.^[13] The Respondents are willing to rectify those failures and noted Mr Haigh’s statement that repairs should be able to be carried out in a timely manner.
[37]
Under section 260 of the ACL, 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:

the goods would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of the failure; or …

[38]
In Cary Boyd v Agrison Pty Ltd [2014] VMC 23 at [51], the Court held that a major failure “might be constituted by a series of specific and individual defects which taken as a whole constitute one major failure”. Under section 260 of the ACL a major failure occurs if the “goods would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of the failure.”
[39]
Taking all the defects together, the Tribunal is satisfied a reasonable consumer fully acquainted with the nature and extent of the failure, would not have acquired the motor vehicle at the time of supply. The Tribunal is satisfied the failure is a major failure.
[40]
The Respondents submit the Applicant has not properly rejected the Motor Vehicle as required under the ACL. The Respondents argue that despite the Applicant verbally and in writing purporting to reject the Motor Vehicle he has not done so. The odometer readings indicate the Applicant has continued to use the Motor Vehicle after purporting to reject it and/or after the rejection period ended. The Respondents argue the Applicant’s action of taking the Motor Vehicle to New Zealand was indicative of his wish to continue ownership.
[41]
To obtain a refund, the Applicant must have rejected the Motor Vehicle during the rejection period. Under section 262(2) of the ACL the rejection period is defined to mean:

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:

the type of goods; and
the use to which a consumer is likely to put them; and
the length of time for which it is reasonable for them to be used; and
the amount of use to which it is reasonable for them to be put before such a failure becomes apparent.

[42]
In Morphy v Beaufort Townsville Pty Ltd [2018] VCAT 1520 at [86], the Victorian Civil and Administrative Tribunal held the warranty period was relevant when considering whether the rejection period had expired. The Tribunal stated:

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. In this case, all the failures have occurred shortly within the manufacturer’s warranty period and the rejection was made well before the expiration of that period.

[43]
The Motor Vehicle came with a five-year manufacturer’s warranty and that warranty will expire on 10 September 2025. The Motor Vehicle has done less than 40,000 kilometres which Mr Haigh described in his report as “little usage”.
[44]
The Applicant requested a new car on 17 September 2020 stating the Motor Vehicle was not fit for purpose.^[14]On 9 October 2020 the Applicant’s evidence is he asked for a full refund or replacement. MBM refused but paid and arranged for the installation of a bull bar. On 19 May 2021 the Applicant emailed MBM and stated the Motor Vehicle was not fit for purpose and he wanted a full refund. He stated the alternative would be to go to QCAT.^[15] On 21 May 2021 Mr Haywood responded that he was willing to offer the Applicant $60,000. On 24 May 2021 Mr Haywood emailed the Applicant stating he was unable to offer a full refund as requested. On 23 May 2021 the Applicant emailed Mr Haywood requesting a full refund of his purchase price. On 23 June 2021 the Applicant emailed Mr Haywood asking for a full refund and said he would be leaving the Motor Vehicle in Australia. My Haywood responded that he would not be able to provide a full refund. On 22 June 2021 Mr Haywood emailed the Applicant and offered him $65,000 for the Motor Vehicle.
[45]
On 15 June 2022 the Applicant lodged an Application for a Motor Vehicle dispute. The Tribunal accepts the Applicant continued to drive the Motor Vehicle about 6,000 kilometres further until he transported it back to Queensland in March 2023 and it has not been driven since.
[46]
The Tribunal is satisfied the Applicant first rejected the Motor Vehicle on 17 September 2020 and has continued to do so since that time. However, even if the Tribunal accepted the Respondents’ submission that the Applicant did not have a genuine intention to reject the Motor Vehicle at that time, the Tribunal is satisfied he rejected it on 19 May 2021 and MBM refused to provide a full refund.
[47]
The Tribunal is satisfied the Applicant rejected the Motor Vehicle well within the rejection period.

Damages

[48]
Under section 259(4) of the ACL the Applicant can:

…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.

[49]
In Vautin v BY Winddown, Inc (formerly Bertram Yachts) (No 4) [2018] FCA 426 at [293], 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.

[50]
The Respondents argue the Applicant should not be able to obtain a refund because there was a break in “causation” pursuant to section 259(5) of the ACL. Subsection 259(5) states that an Applicant cannot recover damages if the failure to comply with the guarantee occurred “only because of a cause independent of human control that occurred after the goods left the control of the supplier”.
[51]
The Respondents argue fitting the bull bar by a third party on 24 December 2020, modification of the bull bar by a third party in June 2021, the Applicant exporting the Motor Vehicle to New Zealand in September 2021 and the Motor Vehicle becoming unroadworthy were all “breaks in causation”. All of these events are well within human control and the Tribunal does not accept the Respondents’ submission.
[52]
For completeness, the Tribunal is satisfied the bull bar is not a modification that has damaged the Motor Vehicle and can be removed.^[16]

Refund of the purchase price

[53]
The Tribunal has jurisdiction to make an order requiring the supplier to pay to the consumer a stated amount of money, including a refund payable under section 263(4)(a).^[17] During the hearing, the Tribunal explained to the Applicant that to be entitled to a refund, the Motor Vehicle must be returned to MBM.^[18] Although for various reasons the Applicant indicated a reluctance to do so, he is not entitled to a refund unless and until he does.
[54]
The Motor Vehicle is not roadworthy and is currently being stored in a Brisbane suburb. Under section 263 of the ACL, the Applicant must return the Motor Vehicle to MBM unless he would incur significant costs to do so because of the nature of the failure to comply with the guarantee or because of the size of the goods. The Tribunal accepts the Motor Vehicle will need to be towed to MBM and that represents a significant cost to the Applicant. The Tribunal requires MBM to collect the Motor Vehicle at its own expense pursuant to section 263(3). Upon collection of the Motor Vehicle, the Applicant will be entitled to a full refund of the purchase price of $72,290.51 pursuant to section 263(4). If the Applicant refuses to allow MBM to collect the Motor Vehicle, he is not entitled to a refund.

Cost of towing

[55]
The Applicant’s written evidence is that on 12 September 2020 the Motor Vehicle broke down and could not be driven. The Motor Vehicle was towed to MBM at a cost of $440.
[56]
The Applicant provided an invoice dated 19 September 2020 indicating the Motor Vehicle was towed to MBM on 12 September 2020 for the cost of $440.00. Despite the Applicant emailing this invoice to MBM, the amount was never paid.
[57]
The Tribunal accepts the Applicant was advised to tow the Motor Vehicle back to MBM because it had broken down. The Tribunal finds the cost of towing a Motor Vehicle back to a supplier was reasonably foreseeable and recoverable.

Costs of transport to and from Queensland

[58]
The Applicant claims the costs of $19,842.39 for exporting and reimporting the Motor Vehicle. The Applicant provided invoices from Willship International Pty Ltd dated 17 September 2021 in the amount of $3,443.68, dated 27 September 2021 in the amount of $9,743.46, dated 27 September 2021 in the amount of $638.25, dated 5 March 2023 in the amount of $4,931.00 and dated 23 March 2023 in the amount of $1086.00 (a total of $19,843.39).
[59]
The Applicant argued he has a human right to transport the Motor Vehicle to and from New Zealand. He had business in New Zealand and there were travel restrictions due to the COVID-19 pandemic. He told the Tribunal he traded in a car he had imported from New Zealand when he purchased the Motor Vehicle and MBM knew he was a Trans-Tasman citizen. He didn’t want to transport the Motor Vehicle to New Zealand, but cars were scarce due to the pandemic.
[60]
The Tribunal accepts the Applicant was reluctant to transport the Motor Vehicle to New Zealand but did so because of the circumstances he found himself in. However, the Tribunal is not satisfied those costs are reasonably foreseeable because the car he traded in at MBM had been imported from New Zealand. The Tribunal is not satisfied the costs of international transport are reasonably foreseeable and recoverable.

Costs

[61]
The Applicant has claimed the costs of the QCAT filing fee ($358.00), $205.60 for photocopies and binding of documents, $287.50 for the cost of Prestige European Motors Ltd (Gisborne New Zealand) inspecting the Motor Vehicle, $3,300.00 for the costs of the Gilmore Report, $400.00 for the cost of the QCAT Motor Vehicle inspection and $84.35 for the cost of recording direction hearings on 22 August 2022 and 12 December 2022.
[62]
Under section 50C of the Fair Trading Act 1989 (Qld) the Tribunal can only make a costs order against the Respondents in the amount of the prescribed filing fee paid by the Applicant. The cost of photocopies, binding of documents, direction hearing recordings and Motor Vehicle inspections are not recoverable.
[63]
The power to make a costs order is subject to section 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.
[64]
The Applicant has been substantially successful in the proceedings and, given the overall circumstances of the case, the Tribunal considers it is in the interests of justice to order MBM to pay the filing fee of $358.00. If the Applicant refuses to allow MBM to collect the Motor Vehicle, then he has been substantially unsuccessful in the proceedings and the Tribunal considers it would not be in the interests of justice to order MBM to pay the filing fee of $358.00.
[65]
For the reasons outlined above, the Tribunal does not accept the Respondents post-hearing submissions that the Application should be dismissed.

Orders

[66]
The Tribunal orders:

New Centenary Pty Ltd t/a Mercedes-Benz Macgregor is required to collect the Motor Vehicle the subject of these proceedings from Barry Leonard Allen, or Barry Leonard Allen’s representative, within 14 days of the date of these orders.
Within 14 days of New Centenary Pty Ltd t/a Mercedes-Benz Macgregor collecting the Motor Vehicle, New Centenary Pty Ltd t/a Mercedes-Benz Macgregor is required to pay Barry Leonard Allen the amount of $73,088.51.
If Barry Leonard Allen, or Barry Leonard Allen’s representative, refuses to allow New Centenary Pty Ltd t/a Mercedes-Benz Macgregor to collect the Motor Vehicle the subject of these proceedings in accordance with Order 1, New Centenary Pty Ltd t/a Mercedes-Benz Macgregor is required to pay Barry Leonard Allen the amount of $440.00.

Footnotes

[1]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 10.

[2]Post-hearing submissions received by the Tribunal on 8 December 2023.

[3]This was increased to $100,000 on 1 July 2021.

[4]See X-Class Mercedes-Benz marketing material.

[5]See X-Class Mercedes-Benz marketing material.

[6]Medtel Pty Ltd v Courtney (2003) 130 FCR 182 at [64] and [70].

[7]MBM service tax invoice dated 14 September 2020.

[8]Email sent by the Applicant to Zane Hau at MBM on 17 September 2020 at 1:56pm.

[9]Mercedes-Benz Sunshine Coast service tax invoice dated 20 May 2021.

[10]Mercedes-Benz North Shore service tax invoice dated 13 April 2022.

[11]See email dated 13 November 2022 sent from Barry Allen to Ben Haywood, Adam Dowdle, QCATCivil, Daniel Overs.

[12]Recall notice dated 15 August 2023.

[13]Respondents’ submissions received by the Tribunal on 24 August 2023 at paragraph 39.

[14]Email sent by the Applicant to Zane Hau at MBM on 17 September 2020 at 1:56pm.

[15]See email sent by the Applicant to Ben Haywood at MBM on 19 May 2021 at 8:00am.

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

[17]Haisman v Drive (Aust) Pty Ltd [2020] QCAT 44 at [24].

[18]ACL, s 263(2).

Editorial Notes

Published Case Name:
Allen v New Centenary Pty Ltd t/a Mercedes-Benz Macgregor & Anor
Shortened Case Name:
Allen v New Centenary Pty Ltd t/a Mercedes-Benz Macgregor
MNC:
[2024] QCAT 252
Court:
QCAT
Judge(s):
Member Bishop
Date:
14 Jun 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 List of Cases Cited by this judgment

Case Name	Full Citation	Frequency
Campbell v Caravan & RV Central Pty Ltd t/as Avan New South Wales & FCA Australia Pty Ltd	View on:JADE[2016] NSWCATCD 90	2 citations Jump To Cite 1 - [2016] NSWCATCD 90 Cite 2 - [2016] NSWCATCD 90
Cary Boyd v Agrison Pty Ltd	[2014] VMC 23	2 citations Jump To Cite 1 - [2014] VMC 23 Cite 2 - [2014] VMC 23
Haisman v Drive (Aust) Pty Ltd	[2020] QCAT 44	2 citations Jump To Cite 1 - [2020] QCAT 44 Cite 2 - [2020] QCAT 44
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	View on:JADE[2018] VCAT 1520	2 citations Jump To Cite 1 - [2018] VCAT 1520 Cite 2 - [2018] VCAT 1520
Vautin v BY Winddown, Inc (formerly Bertram Yachts) (No 4)	View on:JADE[2018] FCA 426	3 citations Jump To Cite 1 - [2018] FCA 426 Cite 2 - [2018] FCA 426 Cite 3 - [2018] FCA 426

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Allen v New Centenary Pty Ltd t/a Mercedes-Benz Macgregor[2024] QCAT 252