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Barter v Southeast Auto Sales Pty Ltd[2024] QCAT 277

Barter v Southeast Auto Sales Pty Ltd[2024] QCAT 277

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Barter v Southeast Auto Sales Pty Ltd [2024] QCAT 277

PARTIES:

Alan Barter

(applicant)

v

Southeast auto sales pty ltd

(respondent)

APPLICATION NO/S:

MVL247-22

MATTER TYPE:

Motor vehicle matter

DELIVERED ON:

12 July 2024

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member D Brown

ORDERS:

Southeast Auto Sales Pty Ltd is to pay Alan Barter $5, 616 within 28 days, consisting of:

  1. Damages of $5,331 for the costs of identifying and repairing the defects with the gearbox and clutch; and
  2. Damages of $285 in relation to towing costs.

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 – where vehicle sold second hand as “used car” and vehicle manufactured 21 years prior to purchase – whether failure to comply with consumer guarantees – whether the evidence established a defect with the vehicle as at time of sale.

Motor Dealers and Chattel Auctioneers Act 2014 (Qld), s 4(2), s 7(1)(a), s 7(1)(b), s 8, s 9(2), s 12, Schedule 1

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 9, s 10, s 92, s 93

Fair Trading Act 1984 (Qld), s 50A

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

Australian Competition and Consumer Commission v Jayco Corporation Pty Ltd [2020] FCA 1672

Morphy v Beaufort Townsville Pty Ltd [2018] VCAT 1520

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

Williams v Toyota Motor Corporation Australia Ltd [2022] FCA 344

APPEARANCES & REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

Background

  1. [1]
    On 10 November 2022 the applicant, Mr Alan Barter filed an Application – Motor Vehicle Dispute with the Tribunal, seeking compensation of $60,000 from the respondent, Southeast Auto Sales Pty Ltd (‘Southeast Auto’). The claim was made under the Fair Trading Act 1989 (Qld) (‘Fair Trading Act’).
  2. [2]
    On 22 December 2021 Mr Barter purchased a 2000 Landcruiser Prado RV vehicle from Southeast Auto for $10,000. The vehicle had an odometer reading of 449,108 at the time of the sale.  The vehicle came with a one month/1,000 km Class B statutory warranty under the Motor Dealers and Chattel Auctioneers Act 2014 (Qld).
  3. [3]
    On 27 December 2021 while driving on the Logan Motorway after returning from a holiday in the Gold Coast, the vehicle started to shudder and the clutch and gears failed, causing the vehicle to break down on the side of the Logan motorway at or near the Larapinta Truckstop.
  4. [4]
    Mr Barter called Mr Anthony Duck (‘Mr Duck’), General Manager from Southeast Auto seeking assistance with a tow truck due to the vehicle breaking down on the side of the road. Mr Duck was unable to assist as he was with his family and advised he would not be able to get a tow truck to move the vehicle until the following day. Accordingly, Mr Barter arranged for a tow truck to tow the vehicle to his residence in Spring Mountain and then subsequently to tow the vehicle to Bridgestone Select in Springfield for an inspection.
  5. [5]
    On or around 5 January 2022 Bridgestone Select carried out an inspection and found the transmission oil was full of metal and recommended the transmission to be rebuilt or replaced and that a clutch replacement should also occur if the transmission is removed. The vehicle odometer was 449,450 at the time.
  6. [6]
    The vehicle was towed to Southeast Auto on the evening of 5 January 2022 and remained in their possession for approximately 2 weeks while investigations occurred.
  7. [7]
    Southeast Auto refused to repair the vehicle stating that clutch misuse was a factor in what happened as it was driven in low 4WD on bitumen and that this caused the car to fail. The vehicle was towed back to Bridgestone Select on 17 January 2022 and then to the applicant’s home on 19 January 2022.
  8. [8]
    On 3 February 2022 the applicant arranged for the vehicle to have the gearbox and clutch replaced at a cost of $5, 271. The vehicle had an odometer reading of 449,455 at the time.
  9. [9]
    In addition to the gearbox and clutch which have been replaced, Mr Barter has identified the following additional concerns with the motor vehicle which need to be repaired:
    1. handbrake completely snapped;
    2. incorrect battery for the vehicle;
    3. spare tyre on back door is the wrong size and does not fit the vehicle;
    4. indicator lights are screwed in with wooden screws and need to be replaced;
    5. tyres are illegal as they are too far out;
    6. truck does not sit level;
    7. sub tank is full of rust and does not work;
    8. power steering fluid reservoir full of rust; 
    9. fuel gauge gives incorrect reading;
    10. A/C belt is cracking;
    11. two alternator belts are cracking;
    12. front strut bushes are sagging;
    13. rear brakes need replacing;
    14. front lower control arm bushes are splitting;
    15. rack and bushes are leaking;
    16. righthand front lower ball joints have movement;
    17. front pinion seals are leaking;
    18. trans mount is sagging; and
    19. fuse blown due to wrong battery.

The Jurisdiction of the Tribunal in Motor Vehicle Disputes

  1. [10]
    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. [11]
    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 the cost of repairs and damages for additional incidental costs.
  3. [12]
    Section 50A of the 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. [13]
    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.
  5. [14]
    Motor vehicle is defined in s 12(1) of the Motor Dealers and Chattel Auctioneers Act 2014 (Qld) to mean:
    1. 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
    2. a caravan.
  6. [15]
    The applicant’s Landcruiser vehicle falls within this definition.
  7. [16]
    A table of provisions provides for certain proceedings to be bought under the provisions of the ACL and which proceedings include the following:
    1. an action against supplier of goods to recover an amount of loss or damage and recoverable reasonable costs incurred by a consumer or to recover damages because failure to comply with a guarantee. (s 236(1), ss 259(2), (3) & (4)).
  1. [17]
    In this case the applicant is seeking the amount of $60,000, which is well within the $100,000 limit. Accordingly, the Tribunal has jurisdiction to hear the applicant’s motor vehicle dispute and to determine whether the applicant can obtain relief sought in the Application – Motor Vehicle Dispute filed in the Tribunal under the Fair Trading Act.

Guarantee of acceptable quality

  1. [18]
    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’.
  1. [19]
    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.
  2. [20]
    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]
  1. [21]
    The Macquarie Dictionary defines the word ‘defect’ to mean ‘a fault’ or ‘imperfection.’
  2. [22]
    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’.
  1. [23]
    The construction and interpretation of s 54 of the ACL was considered in Williams v Toyota Motor Corporation Australia Ltd where Justice Lee stated:[3]

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

  1. [24]
    Whether the goods (in this case the Landcruiser vehicle) were of acceptable quality has to be determined ‘at the time of supply’.[4] In these proceedings the relevant date for the assessment of the acceptable quality of the goods is the time of sale of the vehicle on 22 December 2021. 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.[5]
  2. [25]
    Whether goods are of acceptable quality is not an absolute but rather is a flexible standard depending upon the application of provisions in ss 54(2) and (3). This approach has been discussed in Australian Competition and Consumer Commission v Jayco Corporation Pty Ltd by Wheelahan J:[6]

The standard of acceptable quality prescribed by s 54(2) is not absolute, or a standard of perfection. It is tempered by what a reasonable consumer would regard as acceptable having regard to the several matters in s 54(3). These matters render the standard of acceptable quality elastic, and context specific: Contact Energy Ltd v Jones [2009] 2 NZLR 830 at [95] (Miller J). The significance of the components of the guarantee of acceptable quality will therefore vary with the circumstances of each case.[7]

  1. [26]
    In Morphy v Beaufort Townsville Pty Ltd [2018] VCAT 1520 at [72], 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.

Remedies

  1. [27]
    The remedy available to the consumer against the supplier depends in the first instance on whether the failure is a ‘major failure’.[8] Pursuant to s 259 of the ACL,[9] if the failure to comply with the guarantee cannot be remedied or is a major failure the consumer may reject the goods and seek a refund.[10] If the failure to comply with the guarantee can be remedied and is not a major failure the consumer must require the supplier to remedy the failure within a reasonable time and only if there is a failure to remedy can the consumer seek reasonable costs or seek to reject the goods.[11]
  1. [28]
    The applicant has had the vehicle repaired and does not appear to be alleging that the defect with the vehicle is a major failure. Mr Barter has not sought at any stage to seek to reject the vehicle and seek a refund, and in fact did the opposite. After being advised that the respondent company would not repair the vehicle Mr Barter stated he wanted his truck back and would (and then did) report it as stolen to the police when it was not returned to him in a timely way.[12]
  2. [29]
    In the circumstance it is not necessary for the Tribunal to unpack in detail the definition of major failure as the applicant has not alleged these issues are a major failure and has not sought to reject the vehicle and there are remedies under the ACL available to the applicant regardless of whether the defect was or was not a major failure.
  3. [30]
    While in other circumstances, issues arising with a clutch and gearbox, requiring replacement so soon after purchase may be considered to be a major failure, especially if the vehicle was a new or near new car; given this vehicle was over 20 years old and had been driven an exceptionally high amount of kms and the issues were able to be remedied relatively quickly, albeit at a financial cost, the Tribunal accept that any defects with the clutch and gearbox would not be a major failure.
  4. [31]
    The ACL provides remedies when the failure to comply with the guarantee can be remedied and it is not a major failure.[13] To seek to recover under the ACL,  the consumer must request the supplier to remedy the failure within a reasonable time and if the supplier refuses or fails to comply with the requirement within a reasonable time the consumer may have the failure remedied and recover all reasonable costs incurred by the consumer in having the failure so remedied; or subject to section 262, notify the supplier that the consumer rejects the goods and of the ground/s for the rejection.[14]
  1. [32]
    Damages are also recoverable under s 259(4) of the ACL, which provides for the recovery of 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.

Procedural issues and material filed in proceedings.

  1. [33]
    There is no response or material filed by the respondent and therefore the only material the Tribunal can rely upon is the evidence provided by the applicant.
  2. [34]
    As the respondent has filed no response and has not participated in the proceedings, consideration has been given to the procedural fairness requirements in s 92 and s 93 of the QCAT Act. The Tribunal is satisfied that respondent company has been given notice of the proceedings and the directions of the Tribunal and have failed to comply with the directions to file a response and failed to attend the hearing of the matter listed for 14 September 2023.
  3. [35]
    The applicant has provided an affidavit of service confirming he served Mr Duck from Southeast Auto with the court paperwork, court date and the usb material on 18 November 2022.
  4. [36]
    Directions were made by the Tribunal on 2 February 2023 that the respondent was to file a response by 16 March 2023 and file any further material relied upon by 13 April 2023. The respondent did not comply with the directions and did not file any material. 
  5. [37]
    Further directions were made by the Tribunal on 8 May 2023 which extended the time for the respondent Southeast Auto to comply with the directions for the filing of the response to 29 May 2023 and to 26 June 2023 to file any further material. The respondent did not comply with the directions and did not file any material.
  6. [38]
    Further directions were issued on 1 September 2023 that stated that Southeast Auto must, by 12 September 2023, file in the Tribunal two (2) copies and give Alan Barter one (1) copy of the following:
    1. Submissions addressing whether it has a reasonable excuse for not complying with directions to file a Form 60 response and/or counter-application – Motor Vehicle Dispute, made by the Tribunal on 2 February 2023 and 8 May 2023.
    2. Submissions addressing why the Tribunal should not make its final decision in the proceeding in the applicant’s favour pursuant to s 47(2)(b)(i) of the QCAT Act.
  1. [39]
    The respondent did not comply with the directions and did not file any submissions.
  1. [40]
    The matter was listed for hearing on 14 September 2023. The parties were advised about the hearing date on 21 July 2023 and 7 September 2023. No material had been filed by the respondent by this date and there was no representative from the respondent company at the hearing on 14 September 2023.
  2. [41]
    All directions and notices of hearing have been sent to the respondent company at the email address of the respondent company, as noted on the application which matches the email address on the Form 12 warranty document and the tax invoice for purchase of the vehicle. This is the same email address from which Mr Duck responded to the applicant on behalf of the respondent company on 13 January 2022 to confirm they would not be fixing the vehicle under warranty.
  3. [42]
    Accordingly the Tribunal is satisfied the respondent has been given notice of the hearing and a reasonable opportunity to provide material and participate in the proceedings.
  4. [43]
    The applicant also failed to appear at the hearing scheduled for 14 September 2024 and directions were issued that:
    1. Mr Barter notify the Tribunal and Southeast Auto Sales Pty Ltd if he wishes to continue with the Application for a Motor Vehicle Dispute filed 10 November 2022 and provide a reasonable excuse for his failure to attend the Tribunal hearing on 14 September 2023 by 4:00pm on 28 September 2023.
    2. If Alan Barter fails to comply with Direction 1 above, the application may be dismissed by the Tribunal without further notice to the parties.
    3. If the application is not dismissed pursuant to Direction 2 above, the matter will be determined on the papers.
  5. [44]
    Mr Barter did provide the Tribunal an explanation on 3 October 2024, together with a Form 42 application for an extension of time to comply. This explanation is accepted, and the matter has been determined on the papers without an oral hearing. This is that decision.
  6. [45]
    Mr Barter did not file any further material other than the initial application, as invited to in the directions issued on 2 February 2023 and 8 May 2023. Accordingly, the only material the Tribunal has to rely upon is that filed with the application.
  7. [46]
    In addition to the Form 59 Application for a Motor Vehicle Dispute Mr Barter also provide the Tribunal with the following evidence on 10 November 2022:
    1. copies of the contract for purchase of a used car, & Form 12 warranty and cooling off period;
    2. a screenshot of the ‘For Sale’ advertisement for the vehicle;
    3. tax invoice for the purchase, confirmation of cash withdrawals of $8,000 and $2,000 on 22 December 2021 and photographs of the money withdrawn;
    4. copies of a car history dealer report & PPSR certificate from 11 November 2021 and 22 December 2021;
    5. an ABN lookup for the respondent company dated 15 September 2022 together with contact details of an alternative business name ‘All About 4x4’;
    6. screenshots of sms text messages between the applicant and Mr Duck between 27 December 2021 and 19 January 2022;
    7. screenshots of sms text messages between the applicant and the tow truck operator engaged by the respondent between 5 January 2022 and 17 January 2022;
    8. email from Mr Duck at Southeast Auto dated 13 January 2022 together with an invoice from FGH Auto dated 13 January 2022;
    9. towing invoices for towing of the vehicle on 27 December 2021 from Larapinta to the applicant’s address in Spring Mountain and on 19 January 2022 from the applicant’s address in Spring Mountain to Ipswich Gearbox Repairs, together with photographs of the money paid and of the towing of the vehicle;
    10. tax invoice from Bridgestone Select Springfield dated 5 January 2022, in the amount of $60, for inspection of the vehicle;
    11. tax invoice from Ipswich Gearbox Repairs, dated 3 February 2022, in the amount of $5,271.00 for the rebuilding of the gearbox and a replacement clutch;
    12. tax invoice from Bridgestone Select Springfield dated 11 March 2022, in the amount of $400, for inspection of the vehicle and work on the brake discs;
    13. tax invoice from Bridgestone Select Springfield dated 23 July 2022 in the amount of $120 for safety inspection of the vehicle;
    14. quote from Bridgestone Select Springfield dated 21 September 2022, in the amount of $7,670.00, for replacement of A/C belt, alternator belts, front strut bushes, trans mount, front lower control arms, steering rack and lower ball joints and corrections or restoration to the tie rod ends, handbrake, front pinion seal and headlight colouring;
    15. an email from Battery World Ipswich dated 12 October 2022 confirming which battery is suitable for the applicant’s vehicle;
    16. undated photographs of the vehicle which show rust, the vehicle’s rear tyre, a battery and the vehicle with a level on it;
    17. Hertz rental car agreements from 29/6/22 to 15/7/2022 in Gladstone and Sixt rental car agreement from 15/7/2022 to 18/7/2022 at Brisbane airport;
    18. registration confirmation on 18 July 2022 and surrender of plates dated 13 October 2022;
    19. a computer printout about motor vehicle disputes;
    20. two screenshots of credit card payments made on 13 October 2022 in the amount of $55 and $98;
    21. a usb stick containing duplicate copies of the photographs and three video recordings of phone calls between Mr Barter and Southeast Auto in January 2022.

Findings

  1. [47]
    In relation to the question of whether the vehicle was of acceptable quality at the time of supply, the nature of the vehicle is that it was sold second hand as a ‘used car’. It was not new and not sold as a new car or a near-new demonstrator vehicle, which is reflected in its price. The vehicle was manufactured 21 years prior, had travelled 449,108 kms, and was purchased for $10,000. Accordingly, at the time of sale it could be regarded as an old vehicle which had travelled a very significant distance in its 21 years of use. 
  2. [48]
    The nature of motor vehicles is such that the older they are, and the more they have been driven, the more likely it is that parts will fail and require repair.
  3. [49]
    Given the purchase price and that the used Landcruiser having been built 21 years prior and travelled nearly 450,000km, a reasonable consumer would anticipate that there would likely be some mechanical defects or repairs required to such a vehicle.
  4. [50]
    Other relevant circumstances of the supply are that it was sold without a warranty from the respondent, other than those warranties specifically provided by law.
  5. [51]
    While a reasonable consumer would anticipate that there would be some likely mechanical defects or repairs required to such a vehicle, the Tribunal accepts that a reasonable consumer would not expect the car to breakdown within 5 days and require towing due to the vehicle being immobile and needing a replacement gearbox and clutch.
  6. [52]
    Consideration has been given to the respondent’s position, as detailed in an email from Mr Duck to Mr Barter on 13 January 2022 that the issue with the vehicle arose as a result of the applicant’s misuse, due to driving the vehicle in low 4WD on a bitumen road.
  7. [53]
    Given the lack of information from the respondent, there is insufficient evidence to support this position. Mr Barter denies driving in low 4WD other than to get the vehicle on the tow truck and for 20 metres in the pullover zone, to test the vehicle when it started shuddering and there is insufficient evidence to support a finding that he drove in low 4WD or misused the vehicle and that this caused the defect.
  8. [54]
    The Tribunal also does not accept the statement from Mr Duck that if Mr Barter did drive in low 4WD this is what, in the mechanic’s opinion, caused the car to fail. This is not consistent with the tax invoice from FGH Auto. The invoice states that a quick inspection determined the vehicle has possibly been driven in ‘4 Low’ and dust was found internally and around the bell house.  The report does not link the driving with the cause of any defect and states the gearbox oil was in poor condition and further investigation was needed to take place to confirm if the gearbox was faulty or the clutch was faulty. 
  9. [55]
    On the balance of probabilities, the Tribunal finds that the issues with the clutch and gearbox were defects in the vehicle, which given they arose 5 days after the time of sale and with the car having travelled only 342km, were defects present at the time of the sale. A reasonable consumer being fully acquainted with these defects in the Landcruiser would not be satisfied of the following criteria in s 54(2) of the ACL: (a) that the vehicle was fit for all purposes for which a vehicle of that kind was commonly supplied; (b) was free of defect; and (c) durable.
  10. [56]
    The Tribunal finds the applicant raised the defect in a very timely way with the respondent, contacting Mr Duck the General Manger of Southeast Auto immediately upon the car experiencing difficulties. The Tribunal accepts the defects with the gearbox and clutch are able to be repaired (and was done so by the applicant). The Tribunal finds the applicant did attempt to seek that the respondent repair the vehicle, which was returned to the respondent for nearly two weeks in January 2022 for investigation and/or repair, however, they refused to do so, notwithstanding the vehicle still being under the Class B warranty, due to stating the applicant caused the defect.
  11. [57]
    Accordingly, as the vehicle was not of acceptable quality, the defects were able to be remedied and were not a major failure, and as Southeast Auto refused to remedy the defect when requested to do so by Mr Barter, pursuant to s 259(2)(b)(i) Mr Barter is entitled to recover from Southeast Auto all reasonable costs incurred in having the defect remedied.
  12. [58]
    Accordingly, the Tribunal orders that Southeast Auto Sales Pty Ltd pay Mr Alan Barter $5,331 within 28 days, being the combined cost to identify the defect, rebuild the gearbox and replace the clutch as detailed in the invoices from Ipswich Gearbox Repairs dated 3 February 2022 and the initial $60 cost for the inspection of the vehicle on 5 January 2022 by Bridgestone Select.
  13. [59]
    Mr Barter has also raised a number of other issues with the vehicle and provided tax invoices from Bridgestone Select Springfield in March 2022, and July 2022 and a quote from September 2022.
  14. [60]
    In terms of the issue in relation to the handbrake not working and the work conducted on the brake discs contained in the invoice from 11 March 2022, this occurred when the vehicle had been driven 1,894 km by Mr Barter. The issue with the hand brake seizing was not identified by the applicant at the time of purchase, who indicated, except for an issue with the central locking, there were no apparent issues, nor was it identified in the first inspection by Bridgestone Select in January 2022.
  15. [61]
    The tax invoice from Bridgestone Select, while identifying this is an issue, does not provide any evidence as to when the issue arose or whether the issue would have been present at the time of purchase.
  16. [62]
    In the circumstances, noting the age of the vehicle and that it has close to 450,000km at the time of purchase, it is significantly more likely that parts will fail and require repair, even within a short timeframe of the purchase. In the circumstances where this was not identified until the applicant had driven the vehicle close to 1900 km, the Tribunal cannot be satisfied that these issues were present at the time of purchase, as opposed to occurring since purchase. In the circumstances, the evidence is not sufficient to demonstrate that these issues resulted in the vehicle not being of an acceptable quality at the time of purchase.
  17. [63]
    In addition, the Tribunal finds that the issues with the brake pads were not a defect and not evidence of the vehicle not being of unacceptable quality, but was a minor issue, which only cost $400 to rectified and was within the range of repairs and maintenance that might be expected to be undertaken in a vehicle of this age and mileage. Accordingly, Mr Barter is not entitled to recover any costs associated with this work.
  18. [64]
    In relation to the additional concerns identified in the safety inspection by Bridgestone Selection  in July 2022, which include, amongst other issues, the cracking in the A/C belt and alternator belts, and issues with the front strut bushes, front lower control arms,  steering rack and bushes and trans mount, the evidence before the Tribunal is that the first time these defects were identified was in July 2022, some 7 months after the applicant took possession and when the odometer was 456,433, meaning Mr Barter had driven nearly 7,000 km. These defects were not identified by Mr Barter when he took possession of the vehicle or in the previous inspections of the vehicle by Bridgestone Select in January 2022 or March 2022.
  19. [65]
    While the invoice identified the issues, it provides no information as to when these defects likely occurred and if any were present at the time of purchase.
  20. [66]
    Whilst the Tribunal accepts that the vehicle had defects in July 2022, the Tribunal is not satisfied on the balance of probabilities, that any of these defects were present in the vehicle when it was purchased on 22 December 2021. Accordingly Mr Barter is not entitled to recover any costs associated wit these issue or defects.
  21. [67]
    Mr Barter has not provided sufficient evidence to support a finding that the following issues raised were defects in the vehicle causing it to not be of acceptable quality and that any of these issues, if they were defects, existed at the time of purchase:
    1. incorrect battery for the vehicle;
    2. spare tyre on back door is the wrong size and does not fit the vehicle;
    3. indicator lights are screwed in with wooden screws and need to be replaced;
    4. tyres are illegal as they are too far out;
    5. truck does not sit level;
    6. sub tank is full of rust and does not work;
    7. power steering fluid reservoir full of rust;
    8. fuel gauge gives incorrect reading; or
    9. fuse blown due to wrong battery.
  22. [68]
    The tax invoices and quotes provided do not speak to any of these issues and Mr Barter has not provided a statement about these issues. Undated photographs and an email to confirm the types of battery which would be suitable for the vehicle are not sufficient evidence to demonstrate that these issues exist with the vehicle, that they were present at the time of purchase and that they are defects causing the vehicle to not be of acceptable quality.
  23. [69]
    Mr Barter bears the burden of establishing on the balance of probabilities that the defects complained of existed as at time of sale. He has failed to do that; accordingly, Mr Barter is not entitled to recover any costs associated with these defects/issues.

Damages/Costs

  1. [70]
    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. [71]
    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.

  1. [72]
    Mr Barter has sought damages of $60,000 for lost wages, loss of employment, inconvenience, loss in the purchased vehicle, loss of money spent on the vehicle, towing of the vehicle and compensation for time wasted and money putting his family through financial hardship.
  2. [73]
    Mr Barter has not quantified any of these individual losses or cost to demonstrate how the sum of $60,000 is calculated. Mr Barter has also provided no evidence of any loss of wages, loss of employment, financial hardship, or loss in value of the vehicle. Therefore, no damages or compensation can be paid for any of these alleged losses.  There is also no ability to order the recovery of costs or damages for inconvenience or time wasted as requested.
  3. [74]
    Mr Barter has provided invoices for towing fees from Larapinta (where the car broke down) to his home address on 27 December 2021 in the amount of $140.00 and from his home address to Ipswich Gearbox repairs on 19 January 2022 in the amount of $145.00. The Tribunal accepts that Mr Barker incurred these towing expenses and accept that this is a reasonably foreseeable consequence of the vehicle breaking down and being undrivable. Accordingly, the Tribunal orders that Southeast Auto Sales Pty Ltd are to pay Mr Barker $285 damages for the losses associated with towing the vehicle.
  4. [75]
    Mr Barter stated that the vehicle was also towed on a ‘mates trailer’ to Bridgestone Springfield on 5 January 2022 and he is out of pocket $60. Mr Barter however provided no evidence of this, (eg an invoice, a statement from the friend who towed it) and accordingly no compensation can be awarded for this alleged cost.
  5. [76]
    Mr Barter has provided rental car agreements and screenshots of credit card payments made on 13 October 2022 in the amount of $55 and $98. It is unclear how these costs relate to this matter or any failure to comply with the guarantee of acceptable quality. Mr Barter has provided no information in relation to these costs and accordingly no order can be made for any compensation in relation to these costs. 
  6. [77]
    The filing fee in this matter was waived and the applicant was self-represented, so there is no need for the Tribunal to consider whether costs should be awarded in relation to the costs of the proceedings.

Orders

  1. [78]
    I order Southeast Auto Sales Pty Ltd to pay Alan Barter $5,616 within 28 days, consisting of:
    1. Damages of $5,331 for the costs of identifying and repairing the defects with the gearbox and clutch; and
    2. Damages of $285 in relation to towing costs.

Footnotes

[1] QCAT Act, ss 9–10.

[2] ACL s 54(3).

[3]  [2022] FCA 344, [164].

[4] Holt-Lea v O'Connor & Anor [2022] QCAT 363, [29]; Sazdanoff-Haynes v MLS Wholesales Pty Ltd [2023] QCAT 37, [38]; Williams v Toyota Motor Corporation Australia Ltd [2022] FCA 344, [164].

[5] Nuth v Soel Products Australia Pty Ltd trading as Caravan RV CQ [2020] QCAT 369, [33].

[6]  [2020] FCA 1672, [27]. See also Sazdanoff-Haynes v MLS Wholesales Pty Ltd (n 4), [39]-[40].

[7] Jayco (n 6), [27]. See also Sazdanoff-Haynes (n 4), [39]-[40].

[8] ACL, s 260.

[9] ACL, Schedule 2.

[10]  Ibid, s 259 (3).

[11]  Ibid, s 259 (2).

[12]  Screenshot of text messages attached to the application on 14/1/2022, 17/1/2022 and 18/1/2022.

[13] ACL, s 259(2).

[14]  Ibid, ss 259(2)(b)(i)–(ii).

Close

Editorial Notes

  • Published Case Name:

    Barter v Southeast Auto Sales Pty Ltd

  • Shortened Case Name:

    Barter v Southeast Auto Sales Pty Ltd

  • MNC:

    [2024] QCAT 277

  • Court:

    QCAT

  • Judge(s):

    Member D Brown

  • Date:

    12 Jul 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
Contact Energy Ltd v Jones [2009] 2 NZLR 830
1 citation
Jump To
Cite 1 - [2009] 2 NZLR 830
Holt-Lea v O'Connor [2022] QCAT 363
1 citation
Jump To
Cite 1 - [2022] QCAT 363
Morphy v Beaufort Townsville Pty Ltd [2018] VCAT 1520
2 citations
Jump To
Cite 1 - [2018] VCAT 1520
Cite 2 - [2018] VCAT 1520
Nuth v Soel Products Australia Pty Ltd trading as Caravan RV CQ [2020] QCAT 369
1 citation
Jump To
Cite 1 - [2020] QCAT 369
Sazdanoff-Haynes v MLS Wholesales Pty Ltd [2023] QCAT 37
1 citation
Jump To
Cite 1 - [2023] QCAT 37
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
Williams v Toyota Motor Corporation Australia Limited [2022] FCA 344
3 citations
Jump To
Cite 1 - [2022] FCA 344
Cite 2 - [2022] FCA 344
Cite 3 - [2022] FCA 344

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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