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  4. Hawkins v Trivett Automotive Retail Pty Ltd - [2024] QCAT 253

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Hawkins v Trivett Automotive Retail Pty Ltd[2024] QCAT 253

Hawkins v Trivett Automotive Retail Pty Ltd[2024] QCAT 253

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Hawkins v Trivett Automotive Retail Pty Ltd and Anor [2024] QCAT 253

PARTIES:

DAllas paul Hawkins

(applicant)

v

Trivett automotive retail pty ltd

(first respondent)

Stellantis (australia and new zealand) pty ltd

(second respondent)

APPLICATION NO/S:

MVL037-23

MATTER TYPE:

Motor vehicle matter

DELIVERED ON:

18 June 2024

HEARING DATE:

24 May 2024

HEARD AT:

Brisbane

DECISION OF:

Member D Brown

ORDERS:

  1. Dallas Hawkins is required to return the Jeep Compass Trail Hawk motor vehicle subject of these proceedings to Trivett Automotive Retail Pty Ltd trading as Keystar Redcliffe Jeep within 28 days of these orders.
  2. Trivett Automotive Retail Pty Ltd is to pay Dallas Hawkins $63,046.00 within 28 days of these orders, which consists of:
    1. Refund in the amount of $60,599.99.
    2. Damages of $2,000.00 for the loss associated with the Victorian High Country tour and $80 for the Blacklocks Jeep invoice.
    3. Costs for the filing fee of $367.00.

CATCHWORDS:

TRADE AND COMMERCE – COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION – CONSUMER PROTECTION – GUARANTEES, CONDITIONS AND WARRANTIES IN CONSUMER TRANSACTIONS – 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

Australian Consumer Law (Queensland), s 3, s 54, s 56, s 259, s 260, s 262, s 263

Fair Trading Act 1984 (Qld), s 50A

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

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 9, s 10, s 100, s 102

Australian Competition and Consumer Commission v Jayco Corporation Pty Ltd (2020) FCA 1672

Baas v JB Hi Fi Group Pty Ltd [2021] NSWCATAP 10

Cary Boyd v Agrison Pty Ltd [2014] VMC 23

Campbell v Caravan & RV Central Pty Ltd t/as Avan New South Wales & FCA Australia Pty Ltd [2016] NSWCATCD 90

Haisman v Drive (Aust) Pty Ltd [2020] QCAT 44

Medtel Pty Ltd v Courtney (2003) 130 FCR 182

Morphy v Beaufort Townsville Pty Ltd [2018] VCAT 1520

Nesbit v Porter [2000] 2 NZLR 465

Nuth v Soel Products Australia Pty Ltd trading as Caravan RV CQ [2020] QCAT 369

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

APPEARANCES & REPRESENTATION:

Applicant:

Mr Hawkins was self-represented

First Respondent:

Robert Humber – Service Manger

Second Respondent:

Olivia Do – Consumer Advocate

REASONS FOR DECISION

  1. [1]
    On 1 March 2023 the applicant, Mr Dallas Hawkins, filed an application – motor vehicle dispute with the Tribunal, seeking a refund of the purchase price of $60,599.99 plus additional incidental costs totalling $10,236.06.
  2. [2]
    The applicant entered into a contract with the first respondent Trivett Automotive Retail Pty Ltd which trades as Keystar Redcliffe Jeep, at Kippa-Ring in Queensland on 20 November 2021 to purchase a brand new Jeep Compass Trailhawk. The purchase price was $60,599.99 and included a 5-year, 100,000 km warranty. The applicant took possession of the vehicle on 27 November 2021.
  3. [3]
    The second respondent is the vehicle importer and distributor for Jeep motor vehicles in Australia. The Tribunal became aware at the hearing that the second respondent’s company name changed during proceedings from FCA Australia Pty Ltd to Stellantis (Australia and New Zealand) Pty Ltd. The ACN of the company remained the same.
  4. [4]
    The applicant asserts that the motor vehicle was not fit for purpose as an off road 4 wheel drive (‘4WD’) vehicle and had multiple defects in breach of the Australian Consumer Law and seeks to reject and return the motor and obtain a full refund for the purchase price.

The Jurisdiction of the Tribunal in Motor Vehicle Disputes

  1. [5]
    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. [6]
    The applicant seeks relief under the Australian Consumer Law, which is schedule 2 to the Competition and Consumer Act 2010 (Cth) (‘ACL’). The relief sought by the applicant is a refund and damages for additional incidental costs.
  3. [7]
    Section 50A of the Fair Trading Act 1989 (Qld) (‘Fair Trading Act’) provides that the Tribunal has jurisdiction in relation to motor vehicle matters where an application is brought under a relevant provision of the ACL against a supplier or manufacturer for failure to comply with statutory guarantees, and no more than $100,000 is sought. The Tribunal may make orders, including orders requiring a party to pay a stated amount to another person.
  4. [8]
    ‘Motor vehicle’ is defined in s 12(1) of the Motor Dealers and Chattel Auctioneers Act 2014 (Qld) to mean a vehicle that moves on wheels and is propelled by a motor that forms part of the vehicle, whether or not the vehicle is capable of being operated or used in a normal way; or a motor vehicle. The applicant’s Jeep Compass Trailhawk clearly falls within this definition.
  5. [9]
    Pursuant to s 3(1)(b) of the ACL, a person is taken to have acquired goods as a consumer if “the goods were of a kind ordinarily acquired for personal, domestic or household use or consumption”. This includes the applicant’s motor vehicle.
  6. [10]
    As the total the applicant is seeking is well under the $100,000 maximum, I am satisfied that there is jurisdiction for the Tribunal to hear the motor vehicle dispute.

Guarantee of acceptable quality

  1. [11]
    Section 54(1) of the ACL provides that, where a person supplies goods in trade or commerce, the goods are guaranteed to be of ‘acceptable quality’.
  2. [12]
    Goods are defined as being of “acceptable quality” if they are:
    1. fit for all the purposes for which goods of that kind are commonly supplied;
    2. acceptable in appearance and finish;
    3. free from defects;
    4. safe; and
    5. durable.
  3. [13]
    The test of acceptable quality requires a test in terms of what 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;
    2. the price of the goods;
    3. any statements made about the goods on any packaging or label on the goods;
    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]
  4. [14]
    The Macquarie Dictionary defines the word ‘defect’ to mean ‘a fault’ or ‘imperfection’.
  5. [15]
    The Macquarie Dictionary defines ‘durable’ as ‘having the quality of lasting or enduring of or relating to goods which will be good for some time, as opposed to those intended to be used or consumed immediately’.
  6. [16]
    The time at which goods are to be of acceptable quality is the time at which the goods are supplied to the consumer.[3] However, information available after the time of supply may be taken into account in deciding whether the goods were of acceptable quality at the time of supply.
  7. [17]
    In Morphy v Beaufort Townsville Pty Ltd,[4] the Victorian Civil and Administrative Tribunal stated:

[T]he context of the section clearly requires that the question of durability be determined by having regard to how long a ‘reasonable consumer’ would expect the goods to last, taking into account the price paid, the nature of the goods and the representations made about the goods.

  1. [18]
    The price of the vehicle is a relevant consideration, as a reasonable consumer would be entitled to expect that a high-cost item would be durable and be capable of safe and effective use over a number of years.[5]

Relief under the Fair Trading Act and Australian Consumer Law

  1. [19]
    The remedy available to the consumer against the supplier depends in the first instance on whether the failure is a ‘major failure’.[6] In order for the applicant to seek a refund for the vehicle, as sought in the application, there needs to be a failure to comply with the guarantee and the failure needs to be a major failure and/or unable to be remedied.
  2. [20]
    “Major failure” is defined[7] to include circumstances where the goods would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of the failure or are unfit for purpose or not of acceptable quality as they are unsafe.
  3. [21]
    In this case the applicant asserts there are a number of issues with the motor vehicle. A failure to comply with a guarantee referred to in section 259(1)(b) that applies to a supply of goods is also a major failure if:
    1. the failure is one of two or more failures to comply with a guarantee referred to in section 259(1)(b) that apply to the supply; and
    2. the goods would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of those failures, taken as a whole.[8]
  4. [22]
    It has been held that an accumulation of individually minor defects can be aggregated to amount to a major failure giving rise to a right to reject the goods. In Cary Boyd v Agrison Pty Ltd,[9] the Court held that:

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

The ACL provides remedies, including a refund, in the event that there is not a major failure, and the supplier does not remedy the failure with a reasonable time.[10]

Applicant’s position

  1. [23]
    Mr Hawkins states that he purchased the new Jeep Compass Trailhawk in order to travel across Australia with his wife. They wanted a 4WD capable vehicle and found the Jeep compass suited their requirements and specifically purchased the Trailhawk as it was a trail rated genuine 4WD vehicle. They choose to purchase a brand-new vehicle so they would not have any reliability, safety or peace of mind issues.[11] He purchased the vehicle for $60,599.99 and received possession of the vehicle on 27 November 2021. The vehicle came with a 5-year, 100,000 km warranty.
  2. [24]
    The applicant states that the motor vehicle is not fit for purpose as a 4WD off road vehicle due to the major failures which occurred when he used it for a 4WD tour, which the first and second respondent are unable to confirm have been repaired, and it is not of acceptable quality due to the numerous issues and defects that have been found in the vehicle over the first two years. This has resulted in the vehicle being off road due to investigation or repairs for 27 days in a 5-month period between October 2022 and March 2023 and in this time the applicant has made 21 calls to Jeep Customer Services (‘JCSA’) and 10 calls to the second respondent, all which went to answering machines and none of which were ever returned.
  3. [25]
    In November 2022, Mr Hawkins and his wife went on their first 4WD tour since taking possession of his jeep motor vehicle. It was a 7-day guided “Tag-a-long” driving tour with other 4WD vehicles in the Victorian High Country from 19 November 2022 to 26 November 2022.
  4. [26]
    On 21 November 2022 (the third day of the tour) after 30-60 minutes of driving in showery, wet, cool to cold, and light sleet conditions on a firm but muddy gravel road in high range 4WD manual transmission, Mr Hawkins stopped with the group for 5-10 minutes to take photographs. When he attempted to restart the vehicle the parking brake would not disengage, the hill hold could not be reengaged and there was a severe clunk occurring when the gear shift was moved to drive or reverse. No gears or manual transmission could be selected, and the vehicle was completely inoperable and immobile. Mr Hawkins turned the vehicle off and on several times without success and the vehicle remained immobile. There were multiple fault messages and warning lights in the dashboard. The tour leader had a diagnostic tool which after two attempts was able to clear the faults and the vehicle restarted and drove for the rest of the day with no issues.
  5. [27]
    The following day, 22 November 2022, the same issue occurred again after only 60 minutes of driving in cold snowy conditions on a firm gravel road in high range 4WD. After stopping for 5-10 minutes, the vehicle would not restart and was immobile and inoperable despite numerous attempts. The tour leader again used the diagnostic tool indicating the vehicle had nine faults. These were able to be cleared. However, when the vehicle was restarted there were a further six faults that had to be cleared. On the second occasion the vehicle was restarted, four faults had to be cleared.
  6. [28]
    Due to the vehicle becoming inoperable on two occasions, the applicant and his wife elected to discontinue the tour that day and drove back to the accommodation and called Jeep Roadside Assist (‘JRA’) who sent a RACV representative to view the vehicle. The RACV representative advised they could not assist in diagnosing the issue and the applicant would have to go to a Jeep dealer to diagnose it. Mr Hawkins called the two closest jeep dealers in Wangaratta and Shepparton, (which were both over one hundred kilometres away) and both advised they did not have availability to assist for at least a week.
  7. [29]
    On 23 November 2022 after two successive days after the vehicle became immobile and inoperable in remote country without telephone reception, which the applicant felt was inconveniencing their fellow travellers and tour leader, the applicant decided it was best to leave the tour to get the vehicle checked, so he and his wife commenced travelling back to Queensland. While driving on bitumen road in a normal two wheel drive in cool overcast conditions the same issue occurred when they tried to start the vehicle after a 10 minute stop. Multiple messages and warning lights appeared on the screen and the vehicle was immobile and inoperable. The amber transmission light was on, the amber hold light was illuminated on the dash but not the console and it would flash if the vehicle was in drive or reverse and there was severe clunk occurring if moving from to drive or reverse.
  8. [30]
    The vehicle had less than 20,000 kms on the odometer at this time.
  9. [31]
    Mr Hawkins immediately contacted JRA who sent an RACV representative who scanned the vehicle and identified four faults relating to the vehicle’s transmission. However, he was unable to diagnose the issues and recommended the applicant take the vehicle to the nearest Jeep dealer in Wodonga Victoria which was 70 kms away.
  10. [32]
    The applicant immediately took the vehicle to Blacklocks Jeep in Wodonga where the service manager advised that the vehicle required further investigation but as it was operational, and they could not find an appointment for the applicant for approximately a week, it was advisable to drive the vehicle back to Queensland to have the vehicle assessed by the local jeep dealers. They printed the list of 11 fault codes from the vehicle, the majority of which were implausible or gave invalid data and loss of communication and charged the applicant $80 for the service. The invoice notes that there are faults in the vehicle and the communication faults could be due to the vehicle being hit but the assessor was not 100% sure and would need more time to investigate.
  11. [33]
    The applicant returned to Queensland and took the vehicle to the first respondent who kept the car for seven days to conduct testing and were unable to replicate or diagnose the fault. Three potential reasons were put forward being a CAN fault, the windscreen not being properly recalibrated and the applicant driving “two-footed” causing a brake and accelerator pedal coherence fault. The second respondent acknowledged the testing conducted was unable to replicate the conditions when the car became immobile and inoperable due to the different weather conditions in Queensland and the only area similar to test the vehicle in 4WD was a small hill at the back of a sports field. A PCM update was put on the vehicle and the vehicle was returned to the applicant.
  12. [34]
    The applicant was concerned the issues had not been resolved and asked for proof of the changes that had been made to the vehicle to confirm that the faults would not continue to occur and was advised by the first respondent that there was no proof of changes which could be provided. When he asked for reports from the testing, the applicant was told by the first respondent that that there were none. When asked for the details of the Jeep Technical Assistance Team which had been in contact with the first respondent during the time they had the vehicle to seek reassurance the faults had been rectified, he was advised he had to contact JCSA.
  13. [35]
    The first respondent was unable to provide the applicant with a written guarantee the vehicle would not have the same faults again and advised the best way to test the vehicle was to take it back into the same conditions it was in when the faults occurred and if they re-occurred not to delete the faults but to have the vehicle towed out in the back of a flatbed truck and returned to a Jeep dealers. The applicant was not satisfied with this as the first two locations were off road which would not allow access to a flatbed truck to recover the vehicle. It is noted that this may also leave the applicant stranded in a rural location with no vehicle.
  14. [36]
    On 9 December 2022 the applicant contacted JCSA and sought a refund for the vehicle. This was forwarded to the Jeep Customer Resolution Team and the applicant followed up on a response on 19, 22 and 29 December and 3, 5 and 6 January. On 9 January JCSA refused the request for refund which was confirmed in writing on 18 January 2023 to be refused due to the fact they had been unable to replicate the concerns when tested by the first respondent.
  15. [37]
    The applicant had booked further 4WD trips in 2023 to Central and Northwest Australia that they had to cancel, due to the unreliability for the vehicle and the uncertainty as to whether the car would have another catastrophic failure which would leave it immobilised. The applicant was initially seeking the cost of those deposits as damages but has been able to mitigate his losses by using credits for flying tours as opposed to a driving tour.
  16. [38]
    In addition to that major issue with the vehicle becoming inoperable the applicant has also had other issues which, he states, when combined, result in the vehicle not being of acceptable quality and result in a major fault. These other issues are:
    1. On at least six occasions in 2022 the vehicle had little or no power when driving in 4WD, regardless of the level of acceleration.
    2. The auto stop/start function was not operating, resulting in warning messages occurring in October 2022. As a result, the battery was replaced under warranty on 31 October 2022. At the time the car had under 15,000 km on the odometer. This initially rectified the issue; however, the applicant has continued to have occasional error messages.
    3. When the vehicle was in for a service the first respondent’s technician noted it has a brake accelerator coherence fault which required the vehicle to be off road at the first respondent’s dealership for testing for a week from 15 February to 22 February 2023. The first respondent was unable to provide any repair or resolution and advised it a “ghost fault” and to ignore it if it was not affecting the car.
    4. There have been four recall campaigns in 18 months of owning the vehicle from November 2021 to January 2023. When the fourth recall issue in relation to the radio was corrected with a new update, it caused the speed limit in the navigation model to be stuck recording in miles per hour whereas the odometer is kilometre, making it difficult to decipher, and the voice command on the navigation system no longer operates requiring all addresses to be entered on the touch screen. This issue has still not been resolved twelve months later despite the applicant raising the issue with the first respondent and the second respondent in March 2023.
    5. In early 2023 the vehicle was vibrating and rattling while idling, after accelerating from standstill. The vehicle was taken to the first respondent on 8 March 2023 and after investigation it identified the shaft in the alternator was broken and the alternator needed replacing. The first respondent advised the applicant that there were no alternators available in the country and it is estimated an 8-week wait was necessary, during which time his vehicle would be inoperable. The applicant was advised to call JCSA to request a loan car and/or ask whether there was a way to escalate the repairs. The applicant attempted to call both JCSA and the second respondent but got no resolution on the issue.
    6. The first respondent also sought to negotiate with the second respondent to escalate the issue including requesting that they take an alternator from a floor stock model, which was refused by the second respondent. After the vehicle had been with the first respondent for a week, the first respondent’s management approved the removal of the alternator for the floor stock, despite the non-approval from the second respondent, and returned the vehicle to the applicant on 17 March with a repaired alternator. The applicant asserts the second respondent’s failure to respond to the request to use a floor stock alternator was an attempt by the second respondent to frustrate, inconvenience and intimate him from taking action in QCAT.
    7. A new error message has arisen in 2024 which states “service glow plug” which appeared for a week but then disappeared.
  17. [39]
    The applicant is seeking a refund of the vehicle due to the numerous issues, resulting in the vehicle being unusable and unavailable to the applicant for 27 days in 5 months and for which a number of concerns, in particular the major concerns about the vehicle becoming immobile while being used for 4WD purposes, have been unable to be repaired due to the first and second respondents being unable to determine what the causes of the issue were. The applicant also seeks damages for:
    1. The tag-a-long tour of the Victorian High Country that they had to leave when the vehicle became immobile, in the amount of $3,990.00.
    2. The invoice from Blacklocks Jeep on 23 November 2022 when they took the vehicle in with error messages in the amount of $80.00.
    3. Legal costs in the amount of $2,166.06.
    4. The costs of tyres that were specifically needed for 4WD conditions in the amount of $955.00.
  18. [40]
    The applicant had previously sought payment of two Travel West deposits in the amount of $2,000.00 each and $820.00 for aftermarket roof racks and a bull bar but has mitigated his losses by removing the roof rack and bull bar and used the deposits for alternative tours and therefore no longer seeks these costs.

The first respondent’s position

  1. [41]
    The first respondent largely relies on the response and position of the second respondent and their response filed 1 April 2023 simply states, “we rely upon the response submitted by the respondents FCA Australia Pty Ltd”.
  2. [42]
    The first respondent filed one witness statement of Robert Humber, the Service Manager, which confirms the vehicle came into the first respondent’s dealership on or around 14 February and remained there until on or around 23 February for testing but they were unable to reproduce the concerns in relation to the break accelerator cohesion fault.
  3. [43]
    The first respondent also filed two sets of submissions detailing the eight times the applicant’s vehicle had come in for service, recalls or to resolve issues in the first 16 months of ownership and attached records of these service/investigation. The first respondent confirmed the vehicle had been tested in low 4WD but as they were unable to replicate the same conditions as where the fault occurred, this could not be for a substantial amount of time. 
  4. [44]
    The first respondent disputed that there was any fault with the vehicle and disputed the applicant’s statement that the second respondent’s actions of not returning his call and the refusal by the second respondent to respond to the request to remove an alternator from a floor stock vehicle was an attempt to frustrate, inconvenience and intimidate the applicant.

The second respondent’s position 

  1. [45]
    In relation to the applicant’s major concerns relating to the vehicle becoming inoperable in November 2022 when using the vehicle for an off road 4WD driving tour in the Victorian High Country, the respondents state:
    1. Although the applicant alleged his concerns occurred over several days on multiple occasions, he did not present the vehicle to an authorised Jeep dealership for diagnosis or repair until 23 November 2023.
    2. The initial diagnosis indicates that the concerns may have been caused by an external influence or factor such as being hit.
    3. The vehicle was presented to the first respondent on or around 3 December 2022 and the alleged faults could not be replicated but a software update was conducted under warranty at no cost to the applicant.
    4. There is no evidence to support the applicant’s alleged major fault was a manufacturing defect and if there was any defect it was minor and was remedied within a reasonable time with no cost to the applicant.
    5. The applicant was not entitled to a refund when they sought to return the vehicle on 9 December 2022.
  2. [46]
    In relation to the lower power when driving in low 4WD and the brake accelerator coherence fault the respondent asserts that this was unable to be reproduced and there was no fault in the vehicle.
  3. [47]
    In relation to the recalls the second respondent asserts that these were all voluntary recalls which can be precautionary in nature and do not necessarily make a vehicle of unacceptable quality, and the repairs have already been conducted under the warranty.
  4. [48]
    In relation to the concern about the auto stop/start function the second respondent asserts that:
    1. It was minor in nature.
    2. It was easily removed within a reasonable time by replacing the battery.
    3. The repair was completed under warranty at no cost to the applicant.
    4. The issues have not re-occurred.
  5. [49]
    The second respondent denied the applicant has provided sufficient evidence to evidence that any of the concerns exist.
  6. [50]
    The second respondent denies that they have failed to meet their obligation under the ACL and state even if the vehicle was of unacceptable quality:
    1. Any concerns are not major failures.
    2. The applicant did not adequately reject the vehicle in accordance with the ACL.
    3. The applicant is not entitled to remedies sought.
  7. [51]
    The second respondent also disputed that the applicant is entitled to any of the damages sought due to the failure to evidence the payment made and or the loss occurring, that the losses are not reasonably foreseeable, the applicant failed to mitigate the losses and the provision in s 100 of the QCAT Act which states each party usually bears its own cost.
  8. [52]
    The second respondent filed a witness statement from Andrew Roberts, the National Technical Manager. Mr Roberts provided details of his work history and expertise advising he has completed a training course for every brand that he has worked for and currently has completed 173 training courses for the Stellantis brand and completed dealer visits in every state in Australia to diagnose complex vehicle concerns. The statement provided evidence on the technical cases from the first respondent in relation to the applicant’s vehicle and provided Mr Roberts’ expert opinion on the independent motor vehicle report and his concern with the findings.

Independent Motor Vehicle reports

  1. [53]
    An independent motor vehicle report was ordered by the Tribunal on 23 March 2023 with each of the parties contributing to the costs. The report by Ron Grant, a motor vehicle assessor, was provided on 22 August 2023. Mr Grant is trade qualified as an automotive technician on all types of wheeled vehicle and engine types, has post trade certificates in automotive electrical systems and high-speed diesel engines, has a certificate 3 in automotive sales and 40 years of automotive industry experience in technical/engineering, manufacturing management and retail dealership levels.
  2. [54]
    Mr Grant confirmed in his report:
    1. The vehicle was in as new condition and had travelled less than 30,000 kms.
    2. At the inspection the vehicle was driving normally in 2WD and apart from a continuing stop/start system malfunction warning coming up on the instrument cluster, it was performing as expected.
  3. [55]
    Mr Grant reviewed the dealer repair orders and ascertained the history of the vehicle. The report also provided background comments about significant problems with the power transmission unit in Jeeps over many years, particularly in the Cherokee model of which the Compass is a member.
  4. [56]
    The report concludes:
    1. That the car has an inherent transmission problem that the manufacturer has been, up until now unable to fix and the fault was present at the time of the sale to the applicant.
    2. The only attempt to fix the problem has been an unknown software update with no guarantee it would fix the issues.
    3. FCA, the second respondent, had exhibited little to no interest in resolving this issue for their customer whereas the first respondent has done their best to help the customer.
    4. That they would personally not take the case to a remote location.
  5. [57]
    The second respondent raised significant concerns with the motor vehicle assessor report largely in relation to:
    1. The background information about the issues with the other Jeep models, which concerned the 2014-2017 Cherokee models and were not related to this vehicle.
    2. The finding that there is an inherent transmission problem, asserting that it is not a transmission issue but is a communication issue between the transfer case module and transmission control module. The fault has been unable to be replicated and the error code suggests driving with two feet is the cause of the concern.
    3. The criticism of the second respondent stating they showed no interest in resolving the issue for the customer, stating they have gone over and above their obligations.
    4. The finding that the assessor would not take the vehicle to a remote location, stating it is without basis when no concerns/faults were found by the assessor.

The Hearing

  1. [58]
    Mr Hawkins presented as an honest and credible witness. His statements in the hearing were consistent with the written evidence and he made reasonable concessions, for example in terms of limitations on some of his cost claims. His evidence was not challenged by either the first or second respondents as neither sought to cross examine him, even after being advised about the need to respond to anything they claim is untrue in Mr Hawkins’ statement.
  2. [59]
    The evidence Mr Humber could provide on this matter on behalf of the first respondent was limited by the fact that he did not commence with the first respondent until February 2022, so was not involved until after the request for the refund in December and January and the previous person involved at that time no longer worked for the company. Notwithstanding this Mr Humber presented as an honest and reasonable witness, who tried his best to answer all questions to the best of his knowledge and acknowledged where he could not recall a situation, that if the applicant said it happened, he would believe his version, as the applicant has never lied to him.
  3. [60]
    Mr Humber confirmed that the submissions provided by the first respondent were not written by him or his dealership, but by their head office in New South Wales. This may explain why at paragraph 4 in the submissions there is no mention of the vehicle being taken in for investigation of the issue in the Victorian High Country and why the dates on the attached job details do not match the evidence given as to the dates the vehicle was presented.
  4. [61]
    Likewise, the evidence Ms Do could provide on this matter on behalf of the second respondent was limited by the fact that she had only recently become involved in the matter and the person who wrote the statement of evidence for the second respondent in October 2023 and the response was not available at hearing and had left the company. In the circumstance she was not required for cross examination by any party.
  5. [62]
    Mr Roberts gave evidence on behalf of the second respondent and presented as an honest and credible witness who provided helpful technical evidence. He made reasonable concessions, including acknowledging:
    1. Errors were made by RACV and Blacklocks Jeep in clearing the error codes.
    2. The “two foot driving codes” are not only caused by two foot driving, it is just the most common cause. There could be other issues like a break switch issue and he could not be certain that two foot driving was what was causing it.
    3. That the vehicle being immobile and unable to start on three occasions with multiple error codes was a defect and is a disappointing outcome for a customer with a new vehicle and not the quality expected of a new vehicle.
    4. He has never seen or examined the vehicle.
    5. That as they do not know what caused the defect, they cannot be certain that the defect was fixed/repaired.
    6. If a reasonable purchaser knew these issues would occur in the vehicle, it would not be reasonable for them to purchase it. He stated he would not want to buy it and “If you knew any of those concerns would happen with any manufacturer, you wouldn’t buy that vehicle. No one would buy that vehicle.”
  6. [63]
    Mr Roberts acknowledged in evidence he had never seen Mr Hawkins’ evidence filed in the proceedings, which would explain why there were some inconsistencies and errors in the details of the background of the vehicle from the tech cases in his statements, including stating the battery did not need to be replaced on 31 October 2022 when the records show it did and failing to mention the issue with the alternator.
  7. [64]
    The second respondent did not seek to call the motor vehicle assessor to give evidence at hearing or put to the expert who had inspected the vehicle any of their issues in dispute with the report.

Was there a breach of a guarantee of acceptable quality?

  1. [65]
    Whether goods are of acceptable quality is not an absolute or a standard of perfection, but rather is a flexible standard depending upon the application of provisions in sections 54(2) and (3).
  2. [66]
    While it is accepted that it is reasonable to accept that some parts of a motor vehicle may have to be adjusted, repaired, or replaced within a manufacturer’s warranty period,[12] a consumer should not expect that a brand-new motor vehicle would come with defects that need to be repaired or replaced within the first 1-2 years, requiring the vehicle to be off the road for repairs.
  3. [67]
    In Campbell v Caravan & RV Central Pty Ltd t/as Avan New South Wales & FCA Australia Pty Ltd[13] NCAT said:

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).

  1. [68]
    The Tribunal accepts the evidence of the second respondent about the recalls, that they are voluntary recalls and are not necessarily evidence of a defect and are more about customer satisfaction recalls or updates. The Tribunal does however find the outcome of the last recall, which caused issues with the navigation system, which had still not been resolved at hearing, is a minor defect.
  2. [69]
    The Tribunal does not accept the evidence of the second respondent that the faults in November 2022 which caused the vehicle to be immobile and inoperable over three consecutive days, or the brake accelerator coherence fault were caused by the actions of the applicant by way of two feet driving, as there is insufficient evidence to support this finding on the balance of probabilities. 
  3. [70]
    Although the second respondent’s evidence is that there were multiple codes for “two feet driving” (the exact number of which is unknown due to the second respondent not providing evidence of when all these codes occurred), the evidence of Mr Roberts was that two feet driving is not the only thing which causes these codes, just the most common cause.
  4. [71]
    Mr Hawkins gave evidence that he is in his 60s and has been driving for many years and does not drive two footed and has a car, a motorcycle and heavy truck licences. Mr Hawkins also advised he drove with the dealership when they were testing for the faults and no information has been raised by the first respondent that they observed any two foot driving. However, most crucial of all for both of the two issues: firstly, they are intermittent issues, whereas if two footed driving was the applicant’s mode of driving one would expect the issue would be persistent and ongoing. Secondly, the vehicle was in the service centre for a week for testing and the faults were never able to be replicated. Given the suggestion of two feet driving codes, it must be assumed that this was tested by the first respondent and did not cause the fault.
  5. [72]
    Based on the undisputed evidence of the applicant, the Tribunal does find that the following issues are clearly defects with the motor vehicle:
    1. The fault with the auto stop/start function which occurred in October 2022 and has continued to occur intermittently, including as identified by Mr Grant the motor vehicle assessor in August 2023.
    2. The fault with the battery requiring it to be replaced within the first 12 months when the vehicle had travelled less than 15,000 kilometres.
    3. The vehicle becoming immobile and inoperable on three consecutive days in November 2022.
    4. The brake accelerator coherence fault for which the vehicle was off the road for 7 days for testing and no resolution or repair was able to be undertaken.
    5. The fault with the alternator requiring it to be replaced within the first 18 months.
  6. [73]
    The Tribunal finds that given the timing of these defects, they must have been present at the time of supply and a reasonable consumer would not expect a new motor vehicle, in this price range, to have this many faults at the time of supply requiring investigation and repair within the first 18 months. A reasonable consumer fully acquainted with the state of the motor vehicle at the time of purchase would not regard it as free from defects and durable, and therefore the Tribunal finds it was not of acceptable quality. 

Was the failure to comply with the guarantee of acceptable quality a major failure?

  1. [74]
    The term ‘major failure’ is defined to mean:[14]
    1. the goods would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of the failure; or
    2. the goods depart in one or more significant respects:
  1. if they were supplied by description—from that description; or
  2. if they were supplied by reference to a sample or demonstration model— from that sample or demonstration model; or
  1. the goods are substantially unfit for a purpose for which goods of the same kind are commonly supplied and they cannot, easily and within a reasonable time, be remedied to make them fit for such a purpose; or
  2. the goods are unfit for a disclosed purpose that was made known to:
  1. the supplier of the goods; or
  2. a person by whom any prior negotiations or arrangements in relation to the acquisition of the goods were conducted or made; and they cannot, easily and within a reasonable time, be remedied to make them fit for such a purpose; or
  1. the goods are not of acceptable quality because they are unsafe.
  1. [75]
    A failure to comply with a guarantee that applies to a supply of goods is also a major failure if the failure is one of two or more failures to comply with a guarantee referred to in section 259(1)(b) and the goods would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of those failures, taken as a whole.[15]
  2. [76]
    It has previously been accepted that a number of minor defects can be considered in aggregate to amount to a major failure.[16] However, not every fault or combination of faults which represents a breach of the guarantee of acceptable quality constitutes a major failure. A finding of a major failure is a judgement of fact and degree based on inferences from the evidence. Relevant considerations include the availability and cost of repairs relative to purchase price and the nature of the faults.[17]
  3. [77]
    The test in s 260(a) of the ACL is whether a reasonable consumer with knowledge of the faults, and what would be needed in terms of time, costs and degree of difficulty to fix them, would have bought the goods or made a different decision.[18]
  4. [78]
    In terms of determining whether there was a major fault no weight has been put on the background section of the motor vehicle assessor’s report about the history of issues with Jeep Cherokee vehicles. I accept the second respondent’s evidence in relation to this, that this related to an earlier model and is not relevant to this vehicle.
  5. [79]
    Much was made of the testing before or after the PCA software update was carried out in the material and at hearing. However, nothing turns on this point, as the second respondent’s expert Mr Roberts confirmed that the PCA software update was never intended to repair the concerns with the car.[19]
  6. [80]
    The period of time in which the motor vehicle was not able to be reliably used while warranty claims were investigated, the cost of repair and whether the defects can be remedied easily in a timely manner are relevant considerations as to whether there has been a major failure. In this case, the vehicle was unavailable due to warranty claims or investigations for 27 days over a 5-month period, which is much higher than what is expected of a new vehicle. The defects were also not easily repaired as they could not be replicated by the Jeep dealers and accordingly could not be repaired, and no guarantee can be provided that the defects are resolved.
  7. [81]
    In relation to the defect arising when the vehicle become immobile and inoperable on three separate days, regardless as to whether this is caused by a transmission problem as identified by the motor vehicle assessor or a poor communication issue between the transfer case module and the transmission control module, the Tribunal finds on the balance of probabilities the evidence supports that this is a major defect as a new car should not be unable to start and become immobile and inoperable after driving for 30-60 minutes in cold or snowy conditions or while driving in mild weather conditions on a normal bitumen road.
  8. [82]
    Consumers are entitled to expect that a brand-new vehicle will reliably work for several years and will safely get them to and from wherever they are going, without leaving them stranded on the side of the road or in a remote bush or trail location. This is even more important for a 4WD vehicle marketed as a trail or off road vehicle, which are often driven in more remote locations, with limited phone reception and on more rugged terrain which is not always accessible to a tow truck.
  9. [83]
    The Tribunal finds that the vehicle being unable to be started with multiple error messages after only a short period of 4WD on two subsequent days, occurring on the  first occasion the vehicle has been used for 4WD purposes, combined with the first and second respondents being unable to identify with any certainty what caused the issue, meaning they have been unable to repair it and are unable to provide any guarantee that the defect will not occur when using the vehicle for 4WD purposes in the future, is clear evidence that the vehicle is not fit for the purpose of 4WD or trail driving as advertised and no reasonable consumer knowing this issue would purchase the vehicle.
  10. [84]
    The suggestion that the applicant should just take the vehicle back to the same conditions and if issues arise not clear the messages but arrange a flatbed truck to tow the vehicle to a dealer for investigation is unreasonable and impractical. This solution would not only risk leaving the applicant stranded in an unknown location but given the remote and often rigid nature of 4WD driving, a flatbed truck is unlikely to be able to reach any location the car may break down. There is also a potential safety issue if the vehicle were to break down in a remote location with no cellular phone reception and no other vehicles present.
  11. [85]
    In addition to the issues arising in the Victorian High Country, the Tribunal also finds that the combination of the other faults with the vehicle in terms of the stop/start error, the faulty battery requiring replacement within 12 months, the brake accelerator coherence fault, the navigation issues and the failing alternator which required replacing within 18 months meet the standard of a major defect as no reasonable consumer fully acquainted with the nature and extent of the multiple issues with this motor vehicle would have purchased it.
  12. [86]
    Mr Robert, the expert for the second respondent, conceded this issue at hearing stating he would not want to buy the vehicle if he knew of all the issues it would have and stated “if you knew any of those concerns would happen with any manufacturer, you wouldn’t buy that vehicle. No one would buy that vehicle.”
  13. [87]
    Accordingly, the Tribunal finds that the both the issues arising in November 2022 with the vehicle becoming immobile and inoperable and the combination of the defects in the motor vehicle at the time of supply arising over the first 18 months constitute a major failure.

Was the motor vehicle rejected for failure of the guarantee of acceptable quality?

  1. [88]
    The ACL provides that if the failure to comply with the guarantee is a major failure the consumer may, subject to section 262, notify the supplier that the consumer rejects the goods and of the ground or grounds for the rejection[20] and may recover damages for any loss or damage suffered because of the failure to comply with the guarantee.[21]
  2. [89]
    The second respondent argues that the applicant has not adequately rejected the vehicle in accordance with its obligations under the ACL, but the basis of this is not further explained and it is not clear whether the second respondent is suggesting the applicant did not reject the motor vehicle or accepting there was a rejection, but there was no basis for it and/or it was not done within the rejection period. The former would seem unlikely as the evidence is clear that there is a rejection of the motor vehicle by the applicant.
  3. [90]
    Mr Hawkins sought to reject the motor vehicle, both personally on 9 December 2022 through his discussions with a case manager from JCSA,[22] which was refused by the second respondent as detailed in an email dated 18 January 2023,[23] and through letters to the first and second respondents on 23 January 2023 from Porta Lawyers, who were engaged by the applicant.[24]
  4. [91]
    On both occasions Mr Hawkins sought a full refund and provided the reason for the request, which was due to failure of the vehicle in November 2022 when it became inoperable and immobile on three separate occasions, meaning the vehicle had faults and was not of acceptable quality, and not fit for the stated purpose of engaging in 4WD activities.
  5. [92]
    For completeness, while no specific concerns were raised by the respondents, but noting the ambiguous nature of the second respondent’s concerns about the applicant having not “adequately rejected” the vehicle, the Tribunal notes that nothing turns on the fact the first request for the refund was made by the applicant to JCSA as opposed to directly to the first respondent who is the supplier. This was done in the context of Mr Hawkins having already expressed his concerns about the vehicle to the first respondent and being advised he needed to escalate the issues directed to JCSA. In any case both the rejection a month later in January 2023 through his lawyers, and indeed a further rejection made in the QCAT application for a motor vehicle dispute in March, were provided to the first and second respondents.
  6. [93]
    In the circumstances, the Tribunal is satisfied that the applicant rejected the vehicle and notified the first and second respondents that he was rejecting the vehicle together with the grounds of the rejection.

Was Mr Hawkins entitled to reject the motor vehicle? Was the motor vehicle rejected within the rejection period?

  1. [94]
    Given the above findings in terms of the vehicle not being of acceptable quality and the failure being a major failure the Tribunal finds that the applicant was entitled to reject the motor vehicle.
  2. [95]
    In order to obtain a refund, the consumer is required to reject the goods within the ‘rejection period’. That term is defined in s 262(2) of the Australian Consumer Law to mean:
  1. 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:
  1. the type of goods; and
  1. the use to which a consumer is likely to put them; and
  1. the length of time for which it is reasonable for them to be used; and
  1. the amount of use to which it is reasonable for them to be put before such a failure becomes apparent.
  1. [96]
    In Nesbit v Porter[25] the New Zealand Court of Appeal held that the rejection period was one that:

…suffices to enable the consumer to become fully acquainted with the nature of the defect, which, where the cause of breakage or malfunction is not apparent, the consumer can be expected to do by taking the goods to someone, usually or preferably the supplier, for inspection. In this context, therefore, a defect is not ‘apparent’ until its cause has been identified and the buyer knows what has to be done to fix it, and what that will cost; in other words, until the buyer is in a position to determine whether the defect is substantial.

  1. [97]
    The tribunal is satisfied on the evidence that:
    1. The applicant first used the vehicle for the intended purposed of 4WD tours in November 2022, one year after purchase.
    2. On 21-23 November the applicant discovered the car had a major defect, making it inoperable and immobile on three separate occasions.
    3. On or around 4 December 2022 the applicant discovered the first respondent was unable to repair the vehicle due to being unable to elicit the fault and was unable to provide a guarantee that the vehicle would not continue to have the same issues.
    4. The applicant sought to reject the vehicle on or around 9 December 2022, 23 January 2023 and in their application dated 1 March 2023.
    5. The applicant rejected the motor vehicle within the rejection period on each of those three occasions.

Remedies - Is a refund payable?

  1. [98]
    In Haisman v Drive (Aust) Pty Ltd[26] the Tribunal confirmed it has jurisdiction to make an order requiring the supplier to pay to the consumer a stated amount of money, namely the amount of the refund payable.
  2. [99]
    In this case the supplier is the first respondent, Trivett Automotive Retail Pty Ltd. While much of the concerns in the applicant’s material are in relation to the conduct of the second respondent, as the manufacturer/importer of the vehicle, there is no power for the applicant to seek the refund from them, and it is the supplier in law who is liable to the consumer for the breach of the ACL.
  3. [100]
    The Tribunal finds that the applicant is entitled to a refund of the purchase price of $60,599.99 from the supplier, being the first respondent, pursuant to section 263(4)(a) of the ACL due to the failure to comply with the guarantee of acceptable quality, for the reasons stated earlier in these reasons.
  4. [101]
    The ACL sets out the consequences where goods have been rejected. It provides that where a consumer rejects the goods the consumer must return the goods unless they have already been returned or retrieved by the supplier[27] and the supplier must refund any money paid by the consumer for the goods or replace the rejected goods with goods of the same type and of similar value if such goods are reasonably available.[28]
  5. [102]
    In this case, the applicant has notified the respondent that the goods have been rejected in accordance with s 263(1) of the Australian Consumer Law. The Tribunal will give effect to the requirement in s 263(2) that the goods be returned by so ordering. Upon the return of the motor vehicle, the applicant will be entitled to a refund pursuant to s 263(4).

Damages

  1. [103]
    The Tribunal is vested with jurisdiction in respect of damages under s 259(4) of the ACL, which provides:

The consumer may, by action against the supplier, recover damages for any loss or damage suffered by the consumer because of the failure to comply with the guarantee, if it was reasonably foreseeable that the consumer would suffer such loss or damage as a result of such a failure.

  1. [104]
    In Vautin v BY Winddown, Inc (formerly Bertram Yachts) (No 4),[29] Derrington J stated:

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

  1. [105]
    The applicant has sought various damages, being:
    1. The tag-a-long tour of the Victorian High Country that they had to leave when the vehicle became immobile on two separate days in the amount of $3,990.00.
    2. The invoice from Blacklocks Jeep on 23 November 2022 in the amount of $80.
    3. Costs of 4WD Tyres in the amount of $955.00
  2. [106]
    In relation to the Victorian High Country the applicant has provided evidence of an email requesting a deposit of $1,500.00 (and $2,000.00 for anther tour) and Mr Hawkins confirming he had paid it in July 2022, and a subsequent email confirming receipt of a further $2,490.00 on 4 November 2022.
  3. [107]
    It is reasonably foreseeable that if a 4WD vehicle becomes immobile and will not start, during a 4WD driving tour, that the applicant would suffer loses.
  4. [108]
    The applicant provided evidence that after the vehicle became immobile and inoperable twice in two days, causing inconvenience to the other tour members and tour leader, and upon being advised the tour was going to a more remote area with limited phone service, he and his wife decided they needed to leave the tour. This was a reasonable decision, especially in hindsight as vehicle again became immobile the following day on a normal bitumen road.
  5. [109]
    It was also a reasonable and prudent decision for the applicant to decide to drive home to try and get his vehicle seen by his local Queensland Jeep dealer when the two local Victorian dealerships advised they would not be able to take the vehicle for at least a week.
  6. [110]
    The applicant is not entitled to the full cost of the tour, as he had two unaffected days of the eight-day tour, and still got the advantage of four nights’ accommodation. The applicant did however have two days of the driving tour affected by the car becoming immobile and ultimately decided to leave because of the risk of the car doing so again, with four days remining on the tour. Accordingly in the circumstances the Tribunal orders that the respondent is to pay the applicant $2,000.00 in damages for the loss of the second half of the tag-a-long tour.
  7. [111]
    In relation to the $80 service cost from Blacklocks Jeep, the response from the second respondent and their continual refusal to reimburse this cost over the past 2 ½ years presents as unreasonable and meanspirited. The applicant attended Blacklocks Jeep under the advice of RACV who came out on behalf of JRSA. There were clear faults in the vehicle at the time, which is evidenced by the printout provided by Blacklocks Jeep. 
  8. [112]
    The second respondent’s submissions made out that as it could not be proven the faults were a manufacturing failure, this therefore meant the applicant was not entitled to reimbursement. This makes no logical sense when all other investigations and assessments were covered under the warranty and there is no evidence to suggest that the applicant was using the vehicle for an inappropriate purpose or caused the faults.  The Tribunal also rejects the second respondent’s suggestion that as the initial record raises the question of the vehicle being hit as a possible cause, that this means the applicant is not entitled to reimbursement, given the matter was further investigated and no evidence has been provided to suggest the vehicle was hit in any way.
  9. [113]
    It is clearly foreseeable, and in fact prudent that if a vehicle is becoming immobile and raising multiple error messages that you would need to take the car to the closest dealership for inspection. This is especially so when advised to do so on the advice of roadside assistance. Accordingly, the Tribunal orders the first respondent pay the applicant $80 in damages for the Blacklocks Jeep invoice.
  10. [114]
    In relation to the tyres, the Tribunal does not allow this cost. The tyres have remained on the vehicle and the applicant has got the benefit of them since July 2022 and as such there is no evidence of any real loss. Accordingly, damages for the cost of the tyres is refused.

Costs

  1. [115]
    Section 50C of the Fair Trading Act provides that the Tribunal may make a costs order against the respondent in the amount of the prescribed filing fee paid by the applicant. This power is subject to s 102(1) of the QCAT Act which provides that the Tribunal may make a costs order if the interests of justice require it.
  2. [116]
    The applicant has been successful in the proceedings. While the Tribunal has not accepted some of the claims for damages, this has largely been for evidential reasons. The applicant sought a refund in a prompt way once the concerns with the vehicle were known and sought to engage a lawyer to assist with rejecting the vehicle prior to commencing the QCAT proceedings. In these circumstances, the Tribunal considers that it is in the interests of justice to order the first respondent to pay the filing fee of $367.00.
  3. [117]
    The applicant also seeks the legal cost of $2,166.06. The starting point in the Tribunal is that parties cover their own costs[30] (which include legal costs) unless it is in the interests of justice to do so. In the circumstances of this matter, where the legal costs occurred prior to the proceedings commencing, the Tribunal is not satisfied that it is appropriate or in the interests of justice to order the first respondent pay these costs, and accordingly the request for legal costs is refused. 

Orders

  1. [118]
    The Tribunal orders:
    1. Dallas Hawkins is required to return the Jeep Compass Trail Hawk motor vehicle subject of these proceedings to Trivett Automotive Retail Pty Ltd trading as Keystar Redcliffe Jeep within 28 days of these orders.
    2. Trivett Automotive Retail Pty Ltd is to pay Dallas Hawkins $63,046.00 within 28 days of these orders, which consists of:
  1. Refund in the amount of $60,599.99.
  2. Damages of $2,000.00 for the loss associated with the Victorian High Country tour and $80 for the Blacklocks Jeep invoice.
  3. Costs for the filing fee of $367.00.

Footnotes

[1]QCAT Act, ss 9, 10.

[2]ACL, s 54(3).

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

[4][2018] VCAT 1520,[72].

[5]Campbell v Caravan & RV Central Pty Ltd t/as Avan New South Wales & FCA Australia Pty Ltd [2016] NSWCATCD 90, [57].

[6]ACL, s 260.

[7]Ibid.

[8]Ibid, s 260(2).

[9][2014] VMC 23, [51].

[10]ACL, s 259(2)(b)(ii).

[11]Oral evidence of the applicant at hearing.

[12]Australian Competition and Consumer Commission v Jayco Corporation Pty Ltd (2020) FCA 1672.

[13][2016] NSWCATCD 90, [57].

[14]ACL, s 260.

[15]Ibid, s 260(2).

[16]Nuth v Soel Products Australia Pty Ltd trading as Motor vehicle RV CQ [2020] QCAT 369, [33].

[17]Baas v JB Hi Fi Group Pty Ltd [2021] NSWCATAP 10 [28]; Peter Bennett Cars v Lyree-Jho Vodanovich [2020] QCATA 88, [24].

[18]Baas v JB Hi Fi Group Pty Ltd [2021] NSWCATAP 10, [28].

[19]Second respondent’s statement of Evidence dated 17 October 2023, attachment 4.

[20]ACL, s 259(3)(a).

[21]Ibid, s 259(4).

[22]Application, Attachment F, page 3.

[23]Ibid, Attachment 7.

[24]Ibid, Attachment 13-14.

[25][2000] 2 NZLR 465, [39].

[26][2020] QCAT 44, [24].

[27]Ibid, s 263(2). 

[28]Ibid, s 263(4).

[29][2018] FCA 426 at [293].

[30]QCAT Act, s 100.

Close

Editorial Notes

  • Published Case Name:

    Hawkins v Trivett Automotive Retail Pty Ltd and Anor

  • Shortened Case Name:

    Hawkins v Trivett Automotive Retail Pty Ltd

  • MNC:

    [2024] QCAT 253

  • Court:

    QCAT

  • Judge(s):

    Member D Brown

  • Date:

    18 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

Case NameFull CitationFrequency
Australian Competition and Consumer Commission v Jayco Corporation Pty Ltd [2020] FCA 1672
2 citations
Jump To
Cite 1 - [2020] FCA 1672
Cite 2 - [2020] FCA 1672
Baas v JB Hi Fi Group Pty Ltd [2021] NSWCATAP 10
3 citations
Jump To
Cite 1 - [2021] NSWCATAP 10
Cite 2 - [2021] NSWCATAP 10
Cite 3 - [2021] NSWCATAP 10
Campbell v Caravan & RV Central Pty Ltd t/as Avan New South Wales & FCA Australia Pty Ltd [2016] NSWCATCD 90
3 citations
Jump To
Cite 1 - [2016] NSWCATCD 90
Cite 2 - [2016] NSWCATCD 90
Cite 3 - [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 [2018] VCAT 1520
2 citations
Jump To
Cite 1 - [2018] VCAT 1520
Cite 2 - [2018] VCAT 1520
Nesbit v Porter [2000] 2 NZLR 465
2 citations
Jump To
Cite 1 - [2000] 2 NZLR 465
Cite 2 - [2000] 2 NZLR 465
Nuth v Soel Products Australia Pty Ltd trading as Caravan RV CQ [2020] QCAT 369
2 citations
Jump To
Cite 1 - [2020] QCAT 369
Cite 2 - [2020] QCAT 369
Peter Bennett Cars v Lyree-Jo Vodanovich [2020] QCATA 88
1 citation
Jump To
Cite 1 - [2020] QCATA 88
Vautin v BY Winddown, Inc (formerly Bertram Yachts) (No 4) [2018] FCA 426
2 citations
Jump To
Cite 1 - [2018] FCA 426
Cite 2 - [2018] FCA 426

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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