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Parry v Westco Cairns Pty Ltd trading as Westco Motors[2024] QCAT 42

Parry v Westco Cairns Pty Ltd trading as Westco Motors[2024] QCAT 42

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Parry v Westco Cairns Pty Ltd trading as Westco Motors [2024] QCAT 42

PARTIES:

John Parry

(applicant)

v

Westco cairns Pty Ltd trading as WEStCO Motors

(respondent)

APPLICATION NO/S:

MVL007-22

MATTER TYPE:

Motor vehicle matter

DELIVERED ON:

31 January 2024

HEARING DATE:

11 November 2022

HEARD AT:

Brisbane

DECISION OF:

Member Carrigan

ORDERS:

The Tribunal orders that the Application Motor Vehicle Dispute filed by the applicant in the Tribunal on 17 January 2022 is dismissed.

CATCHWORDS:

TRADE AND COMMERCE – COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION CONSUMER PROTECTION – GUARANTEES, CONDITIONS AND WARRANTIES IN CONSUMER TRANSACTIONS – JURISDICTION – whether Tribunal has jurisdiction to order a refund by the supplier of goods under the Australian Consumer Law (Qld) – where purchase price of motor vehicle was $110,585.00 – where applicant limits claim to a refund of $100,00.00 of the purchase price – where new vehicle sold – where defects arose four months after purchase of the vehicle – where further mechanical services defects occurred several months later – whether defect complained of existed as at the date of sale – whether defect complained of arising subsequent to the time of supply of the motor vehicle – whether the vehicle was of acceptable quality

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

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

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

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

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

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

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

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

Self-represented

REASONS FOR DECISION

  1. [1]
    On 26 July 2019, John Parry (the Applicant) purchased a new VW Touareg Launch Edition 190 TDI 8 Speed automatic vehicle (VW Touareg) from Westco Cairns Pty Ltd trading as Westco Motors (Westco).
  2. [2]
    The purchase price paid for the VW Touareg was $84,530.23. That vehicle had accessories fitted and together with delivery and handling charges the total price was $110,585.00 (including GST).
  3. [3]
    The Applicant took delivery of the vehicle on 27 July 2019 and said that a short time later the VW Touareg developed an intermittent fault of failing to start which has been unable to be isolated and remedied for some years.
  4. [4]
    On 17 January 2022, the Applicant filed in the Tribunal an Application-Motor Vehicle Dispute initially seeking the replacement of the VW Touareg with an equivalent new vehicle. Westco was named as the respondent to that Application. Subsequently, the Applicant amended the Application to claim a refund of $100,000 of the purchase price or in the alternative a direction for Westco to remedy the defect in a timely manner.
  5. [5]
    Westco filed a Response in the Tribunal on 8 March 2022 rejecting a buyback of the VW Touareg and stating that the intermittent fault with the vehicle had been repaired.

Background Facts

  1. [6]
    The contract was formed on 26 July 2019, and the Applicant paid $110,585.00 for the VW Touareg from Westco.
  2. [7]
    The Applicant took delivery in Cairns, Queensland of the vehicle on 27 July 2019.
  3. [8]
    26 November 2019, when the Applicant was on holidays at the Sunshine Coast, Queensland was the first occasion the VW Touareg would not start. After numerous attempts to start the vehicle unsuccessfully, the Applicant exited the vehicle and locked it. A short time later the Applicant returned and retried starting the vehicle. The vehicle started immediately.
  4. [9]
    Later, on 26 November 2019, at the Noosa National Park car park, the VW Touareg would not start for a few minutes and while the Applicant was considering calling for road assistance, the Applicant made another attempt to start the vehicle and it suddenly started.
  5. [10]
    On 19 February 2020, the VW Touareg had its first service at Westco. The vehicle odometer records that it had travelled 13,297 km.[1] The Applicant says that he advised Westco of the fault with the vehicle not starting immediately. The Invoice from Westco records the following:

Check customer concern of one key NOP operating. Inspected and confirmed working all okay not able to fault.

  1. [11]
    On 23 February 2020, the Applicant says he had the first significant “non-start”. He was at Port Douglas and after several minutes attempting to start the vehicle he telephoned VW Road Assist. A recovery truck was arranged. A further attempt was made to start the vehicle and this was successful. The recovery truck was cancelled. The Applicant reported the incident to Westco the next day and the vehicle was booked in for a service.
  2. [12]
    The VW Touareg was taken to Westco on 25 February 2020. The Applicant says both keys were “reset” and was advised by Westco that it was 99% sure the problem is fixed. The Invoice for that service from Westco records:

Check vehicle for not starting sometimes. Sunday would not start for about 10 min had to callout Roadside. Performed Keys recoding via immobiliser adaption, tested operation all okay.

  1. [13]
    However, the VW Touareg would not start for the Applicant while at Westco. The Applicant says the Service Managers and other employees of Westco witnessed the non-start of the vehicle and unsuccessfully tried both keys. After a few minutes and another attempt the vehicle randomly started. Westco performed further tests which revealed that one of the keys for the vehicle was exhibiting an “unrecognised sign” unless placed in one specific spot on the console. The Service Manager advised that he would follow that up to resolve it with VW technicians and advise the next course of action.
  2. [14]
    On 4 March 2020, following another non-start event a further attempt to start the vehicle was successful and the Applicant drove the vehicle to Westco requesting a new key if they could not solve the apparent problem with the existing fault. The Service Manager was not available but the applicant was told the Service Manager would give the Applicant a telephone call.
  3. [15]
    On 5 March 2020, the Applicant experienced another non-start event with the vehicle.
  4. [16]
    As no response was received from the Service Manager, on 10 March 2020 the Applicant was able to start the vehicle and drive it to Westco to obtain a personal update. He was told by a Service Assistant that VW had approved a replacement key which would arrive next week.
  5. [17]
    On 6 May 2020, the Applicant says that as he had no advice back about the replacement key after eight weeks, coupled with another non-start event that day. He made a phone call to a Service Assistant at Westco requesting the Service Manager contact the Applicant.
  6. [18]
    On 7 May 2020 the Service Manager contacted the Applicant and said that he would refer the Applicant’s concerns to VW technicians. The Applicant reiterated his concerns about the non-start fault which seemed no closer to a resolution and that he was losing confidence in Westco and VW’s ability to identify and fix the problem.
  7. [19]
    On 8 May 2020, the Service Manager told the Applicant the replacement key had arrived and that a VW Technical Expert would assess the problem.
  8. [20]
    On 15 May 2020, the Service Manager contacted the Applicant to advise that VW could not identify any problem from their world database and that the Service Manager needed to await VW’s direction on a course of action.
  9. [21]
    On 18 May 2020, the Service Manager requested that the VW Touareg be brought in for more diagnostic assessments in approximately nine (9) days.
  10. [22]
    On 27 May 2020, the Applicant took the vehicle to Westco for the diagnostic assessment and key programming service. The Applicant received no assurances that the non-start fault was fixed. The Applicant advised a Service Assistant that after the next occurrence of a non-start event he would bring the VW Touareg to Westco and not take it back without a guarantee that they had identified the cause of the fault and had fixed the problem.
  11. [23]
    The VW Touareg had its second service from Westco on 1 December 2020. The vehicle odometer recorded that the vehicle had travelled 32,134 km. The Applicant says that a fault was found with the start switch and was to be replaced. The Invoices from Westco for that service records, in part, as follows:

Check customer concern of intermittent start-up, inspected and found switch intermittent open circuit. Removed and replaced switch as per VW instructions. Tested and confirmed the correct starting operation.

  1. [24]
    On 28 January 2021, the Applicant experienced the first non-start event since the replacement of the start switch. The vehicle started on the fifth attempt after removing the key and placing it on the console in the vehicle passenger cabin.
  2. [25]
    Following that non-start event, the Applicant and his wife experienced a re-occurrence of those events. They wrote to Westco highlighting the intermittent failure and were advised by the Service Manager that VW was being contacted. Following further calls, the Applicant was asked to bring the vehicle to Westco for inspection and diagnostic assessment by a VW Technical Expert.
  3. [26]
    On 1 March 2021, the VW Touareg was taken to Westco for inspection and diagnostic assessment by a Technical Expert. Advice was given that testing had identified a loss of vacuum and faulty sensor. The vehicle was left with Westco for several days during which a faulty coolant shuttle valve was replaced. Further testing indicated there was now no vacuum loss. Following further testing over the weekend the car was still required as the Technical Expert who advised that another couple of days were required to fix another sensor in the engine which was suspected of being a problem.
  4. [27]
    By 11 March 2021, Westco had completed its assessment and repairs. The Applicant was advised by the Service Manager that Westco “were confident” the non-start problem was fixed and there were discussions about any future service and maintenance of the VW Touareg.
  5. [28]
    On 22 March 2021, the VW Touareg experienced another non-start event while in Port Douglas. The Applicant left the vehicle for a couple of hours and then returned to the vehicle which successfully started.
  6. [29]
    From 25 March 2021, there was a history of the vehicle having non-start events, further communications with the Service Manager of Westco, concerns being passed on to the VW Area Manager and to Westco’s General Manager and Operation Manager and phone calls from VW Customer Relations Ambassador Manager.
  7. [30]
    By 6 May 2021, in a discussion with the VW Customer Relations Ambassador Manager, the Applicant advised:

I felt that an equivalent replacement vehicle was the best way forward. I explained that I was not keen on a moneyback option as we wish to continue as Touareg owners.

  1. [31]
    On 10 June 2021, the Applicant was advised by the VW Customer Relations Ambassador Manager that VW was unable to meet the Applicant’s expectations in relation to a refund or replacement of the vehicle.
  2. [32]
    On 14 June 2021, the vehicle was again delivered to Westco with the Applicant expressing concern that the vehicle brake pedal is hard and the vehicle is difficult to start. Tests were conducted and replacement parts were supplied to the vehicle. Tim Ahern, a Technician with Westco, stated:[2]

In my opinion as an experienced, qualified VW technician: the vehicle was repaired in a manner bringing the vehicle back within manufacture specifications for vacuum pressure. All subsequent tests following confirmed this opinion.

  1. [33]
    Further mechanical repairs/servicing of the VW Touareg were undertaken by Westco later in June 2021.
  2. [34]
    Between June 2021 and January 2022, the VW Touareg experienced multiple non-start events, the vehicle was returned to Westco for further service and repairs and the Applicant advised Westco that proceedings would be commenced in the Queensland Civil and Administrative Tribunal as Westco was unable to offer any alternative solution. The Applicant expressed concern about vehicle safety in the event of a vacuum failure while the vehicle was operational and asked for reassurance that this event would not occur.
  3. [35]
    On 17 January 2022, the Applicant filed an Application-Motor Vehicle Dispute in the Tribunal and commenced these proceedings.
  4. [36]
    On 8 March 2022, Westco filed its Response in the Tribunal rejecting any claim for it to buy back the VW Touareg and stating that the intermittent fault had been repaired.

Report from a Motor Vehicle Assessor

  1. [37]
    On 19 January 2022, the Tribunal gave notice to the parties that the Tribunal intends to obtain the assistance of a Motor Vehicle Assessor for the determination of the Application.
  2. [38]
    Subsequently, the Tribunal, on 9 March 2022, gave directions to the parties for the preparation of a Motor Vehicle Assessment Report.
  3. [39]
    Mark Dodge, Motor Vehicle Assessor, made an inspection and assessment of the VW Touareg on 4 May 2022.
  4. [40]
    The Report of the Motor Vehicle Assessment was filed in the Tribunal on 9 May 2022.[3] The Report stated the vehicle owner had been experiencing ongoing “no-start” faults and had documented twenty six (26) “no-start” occurrences since the purchase of the vehicle. Some other “no-start” occurrences had not been documented but the vehicle had been returned to Westco on numerous occasions. The Assessor conducted a physical and visual inspection of the vehicle but was unable to replicate a “no-start” occurrence during the inspection. However, the Assessor was able to replicate a harder than normal brake pedal by applying the foot break numerous times prior to attempting to start the vehicle. The Assessor reported that the likely cause of the defect was:

Based on the documented and verbal information provided the initial start fault related to keys/transponder issues. This issue has been rectified by Westco Motors as identified in documentation supplied. The secondary start fault issue has been documented as a low vacuum issue resulting in a “hard” brake pedal. This issue as reported by the vehicle owner is still ongoing fault with the vehicle.

  1. [41]
    The Assessor then addressed the issue whether the defect was likely to have been present at the date of purchase of the vehicle (e.g. a latent defect or a part lacking durability) and stated the following response in the Report:

It is unlikely that a no start fault was present at time of purchase as the first no start fault reported/documented by the vehicle owner was approximately four months after purchase.

  1. [42]
    The assessor, when dealing with what further investigations and/or repairs need to be taken to rectify any currently existing defects, stated the following in the Report:

The start fault as reported has occurred intermittently since 16 November 2019 this being approximately four months after purchase. Given that the reported start fault was not present (at time of my inspection) or evident when the vehicle has been presented to Westco Motors creates a very difficult situation of investigating a reported fault that is not present or evident at the time of inspection. Low vacuum testing has been carried out by Westco Motors and components replaced as documented, with reports from Westco Motors stating vacuum system/levels are within manufacturers specifications. Reported “hard” brake pedal can and is most likely to be caused by low/no vacuum in the system.

  1. [43]
    Westco respond to this statement in these terms:[4]

It is normal if you were to pump the brake pedal numerous times the brake pedal would go hard as the vacuum has been depleted from the brake booster – This is normal operation and not a manufacturing defect. Even when the vacuum has been depleted the vehicle could still be started by applying slightly more pressure to the brake pedal. Once a vehicle has been started the vacuum is restored in the booster.

We believe the vehicle is safe and operating as normal without defect.

  1. [44]
    Westco, in its evidence, states that the Motor Vehicle Assessor “tested the car over 25 times and at no stage did the vehicle fault for the inspector.”

The Jurisdiction of the Tribunal in Motor Vehicle Disputes

  1. [45]
    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”.
  2. [46]
    The Applicant brings these proceedings relying on;
    1. s 50A of the Fair Trading Act 1984 (Qld) (Fair Trading Act); and
    2. the Motor Dealers and Chattel Auctioneers Act 2014 (Qld) – Schedule 1, s 14 (Motor Dealers Act).
  3. [47]
    In these proceedings, the Applicant, by the amended Application, seeks a refund of the purchase price (limited to a maximum of $100,000.00 of the purchase price) from Westco or, alternatively, that Westco be directed to remedy the defect in a timely manner.

The Applicant’s Reliance on s 50A of the Fair Trading Act

  1. [48]
    The Fair Trading Act provides that a person may apply, in accordance with the QCAT Act, to the Tribunal in an action under the Australian Consumer Law (Queensland) relating to a motor vehicle and seeking an amount or value not more than $100,000.00.[5] In those proceedings the Tribunal may make a number of orders which include:[6]
    1. an order requiring a party to the proceedings to pay a stated amount to a stated person;
    2. an order requiring a party to the proceedings to return goods that relate to the claim and are in the party’s possession or control to a stated person.
  2. [49]
    The relevant provisions in the Australian Consumer Law which apply to an action brought by party pursuant to s 50 A of the Fair Trading Act are listed in the Table in s 50A. Those proceedings can include an action for damages against suppliers of goods to recover:
    1. an amount of loss or damage or and the reasonable costs incurred by consumers;
    2. compensation for reduction in value of goods;
    3. damages because of failure to comply with a guarantee.
  3. [50]
    The proceedings must be heard in a Tribunal or in a Court having jurisdiction for the proceedings, having regard to:[7]
    1. for the Tribunal, whether the subject of the proceeding:
      1. (i)
        would be a minor civil dispute within the meaning of the QCAT Act; or
      1. (ii)
        would be a matter to which s 50A applies; or
    2. for a Court:
      1. (i)
        any civil jurisdictional limit, including any monetary limit, applying to the Court.
  4. [51]
    The Applicant has brought these proceedings in the Tribunal relying on s 50A of the Fair Trading Act and not as a minor civil dispute.
  5. [52]
    A “motor vehicle” in these provisions means a motor vehicle referred to in section 12 of the Motor Dealers and Chattel Auctioneers Act 2014 (Qld). The Applicant’s VW Touareg comes within the definition of “motor vehicle”.
  6. [53]
    For these proceedings, the Applicant is seeking to recover loss and damage and, if a guarantee under the Australian Consumer Law applies, then to recover damages for failure to comply with the guarantee. Accordingly, the Applicant’s proceedings come within the remedies available under the Fair Trading Act which is the relevant “enabling Act” for the purposes of the Tribunal’s jurisdiction.
  7. [54]
    In these proceedings, the Applicant purchased the motor vehicle for $110,585.00 in a purchase and sale transaction with Westco. The Applicant seeks from Westco a refund of the purchase price for the VW Touareg limited to a maximum of $100,000.00. The amount claimed exceeds the prescribed monetary limit for Minor Civil Dispute claims. In the Application filed in the Tribunal the Applicant relies on the provisions in s 50A of the Fair Trading Act relating to a motor vehicle for the claim not exceeding $100,000.00.
  8. [55]
    The Tribunal therefore has jurisdiction in accordance with s 50A of the Fair Trading Act to hear the Applicant’s motor vehicle dispute with Westco.

Applicant’s Reliance on the Motor Dealers and Chattel Auctioneers Act 2014 (Qld)

  1. [56]
    The Motor Dealers and Chattel Auctioneers Act 2014 (“Motor Dealers Act”) provides for a statutory warranty for “warranted vehicles” sold by a motor dealer in particular circumstances.[8]
  2. [57]
    A buyer of a warranted vehicle sold by a motor dealer may apply to the Tribunal for an order prescribed in s 15 of Schedule 1 to the Motor Dealers Act if the amount or value sought is not more than $100,000.00.[9] Accordingly, the Motor Dealers Act is also an enabling Act for the purposes of these proceedings provided the statutory requirements are satisfied by the Applicant.
  3. [58]
    Schedule 1 to the Motor Dealers Act contains the Statutory Warranty provisions. Those provisions apply to a “warranted vehicle” which is defined as follows:[10]

a warranted vehicle is a used motor vehicle.

That definition also excludes a number of categories of motor vehicles, none of which apply in these proceedings.

  1. [59]
    Before discussing any other provisions relating to the Statutory Warranties in the Motor Dealers Act, the evidence in these proceedings is that the VW Touareg was purchased as a “new vehicle”. The contract between the Applicant and Westco specifically records the purchase of a new VW Touareg. Accordingly, the Applicant’s vehicle is not a “warranted vehicle” within the meaning and operation of the Motor Dealers Act. The statutory warranties in the Motor Dealers Act do not apply to the VW Touareg in these proceedings and the Applicant is not able to continue his claim against Westco relying on that Act.
  2. [60]
    The Applicant’s claim made in reliance upon the Motor Dealers Act is dismissed.

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

  1. [61]
    The Table of provisions in s 50A of the Fair Trading Act includes actions against suppliers of goods based upon various provisions in the Australian Consumer Law (Queensland) (ACL) to recover:
    1. an amount of loss or damage;
    2. reasonable costs incurred;
    3. compensation for reduction in value of goods; and
    4. damages because of a failure to comply with a guarantee referred to in s 54 of the ACL. That guarantee relates to whether or not a motor vehicle supplied is of acceptable quality. In these proceedings there is no factual basis for a claim based on the supply of goods by description in s 56 of the ACL.
  2. [62]
    The Applicant’s proceedings raise the issue whether Westco is in breach of the guarantee in s 54 requiring the supply of goods of acceptable quality.
  3. [63]
    The issue then is whether on 26 July 2019 was the VW Touareg of acceptable quality.

Guarantee of Acceptable Quality in s 54 of the ACL.

  1. [64]
    The ACL, in s 54, provides for a guarantee of acceptable quality where a person supplies, in trade or commerce, goods to a consumer and that supply does not occur by way of sale by auction.
  2. [65]
    The Applicant purchased the VW Touareg by a contract and not by way of auction. The contract for the purchase of the motor vehicle occurred in trade or commerce from Westco, the supplier. The issue arises is whether the VW Touareg was of acceptable quality when sold by Westco to the Applicant.
  3. [66]
    Goods are of “acceptable quality” provided they are:[11]
    1. fit for all the purposes for which goods of that kind are commonly supplied; and
    2. acceptable in appearance and finish; and
    3. free from defects; and
    4. safe; and
    5. durable

as a reasonable consumer fully acquainted with the state and condition of the goods (including any hidden defects of the goods), would regard as acceptable having regard to the matters in s 54(3) of the ACL;

  1. [67]
    The matters in s 54(3) to which a reasonable consumer would have regard are:
    1. the nature of the goods; and
    2. the price of the goods (if relevant); and
    3. any statements made about the goods on any packaging or label on the goods; and
    4. any representation made about the goods by the supplier or manufacturer of the goods; and
    5. any other relevant circumstances relating to the supply of the goods.
  2. [68]
    The construction and interpretation of s 54 of the ACL was considered in Williams v Toyota Motor Corporation Australia Ltd, where Justice Lee states:

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

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

The time to assess whether goods are of acceptable quality is determined by reference to the quality of the goods at the time of supply and has been adopted by the Tribunal.[12]

  1. [69]
    For the guarantee of acceptable quality to be determined depends upon the evidence:
    1. at the time of the supply of the vehicle on 26 July 2019; and
    2. whether the vehicle supplied by Westco to the Applicant complied with the statutory criteria in s 54(2) of the ACL.
  2. [70]
    According to the evidence before the Tribunal the VW Touareg supplied by Westco to the Applicant was:
    1. acceptable in appearance and finish; and
    2. safe; and
    3. durable.
  3. [71]
    The evidence before the Tribunal also establishes that the vehicle experienced random and frequent engine starting failures requiring multiple visits for service by Westco. The Tribunal accepts the evidence of the Applicant that the VW Touareg over a significant period from 16 November 2029 experienced numerous random and frequent engine failures due to the “non-start” events and vacuum faults requiring regular repairs and/or servicing by Westco.
  4. [72]
    Having regard to the purchase of a new VW Touareg at a cost of $84,530.23 (before costs of accessories and delivery charges) a reasonable consumer fully acquainted with the random and frequent non-start events and vacuum faults of the vehicle would not be satisfied of the following criteria in s 54(2);
    1. that the vehicle was fit for all purposes for which a vehicle of that kind was commonly supplied; and
    2. was free of defects.
  5. [73]
    However, that is not the end of the exercise as to whether the vehicle satisfies the guarantee of “acceptable quality”. The next critical issue is whether the VW Touareg failed to satisfy the above two criteria in s 54(2) at the time of supply on 26 July 2019.
  6. [74]
    The parties do not dispute a number of facts in these proceedings and there is some common ground. However, there are other facts about which there is serious dispute between the parties.
  7. [75]
    The uncontested facts includet that Westco sold the new VW Touareg to the Applicant on 26 July 2019 who then took delivery of the vehicle.

The Applicant says that the first occasion when a non-start event occurred was on 16 November 2019. That event triggered a litany of subsequent events of the same type over several years requiring the vehicle to be serviced on numerous occasions by Westco. That date when the vehicle first had a non-start event is supported by the opinion of the Motor Vehicle Assessor in the Report provided in evidence in these proceedings. The Tribunal accepts the evidence and opinions expressed in the Motor Assessors Report. The Tribunal makes a finding of fact in accordance with the Report that;It is unlikely that a no start fault was present at time of purchase as the first no start fault reported/documented by the vehicle owner was approximately four months after purchase

  1. [76]
    There is no evidence relating to the existence of any mechanical problems with the vehicle prior to 16 November 2019. There is no evidence of the distance the vehicle had travelled in that time. There is evidence that at the time of the vehicles first service by Westco on 21 February 2020 the vehicle had travelled 13,297 km. But this distance in the February 2020 does not assist the Tribunal as the focus of these proceedings is whether the vehicle was of acceptable quality at the time of supply on 26 July 2019.
  2. [77]
    The Tribunal has regard to the evidence of the Motor Vehicle Assessor who advised that that it is unlikely that the “non-start” event was present at the time of purchase and then went on to advise that:

the initial start fault related to keys/transponder issues. This issue has been rectified by Westco Motors as identified in documentation supplied. The secondary start fault issue has been documented as a low vacuum issue resulting in a “hard” brake pedal. This issue as reported by the vehicle owner is still an ongoing fault with the vehicle.

  1. [78]
    The evidence before the Tribunal is that the first non-start event occurred almost four (4) months after the date of supply of the VW Touareg to the Applicant. There is no evidence before the Tribunal to indicate that the non-start events occurred any earlier than 16 November 2019. As at the date of supply of the vehicle on 26 July 2019, there was no evidence demonstrating that the vehicle was not:
    1. fit for all the purposes for which the vehicle of that kind is commonly supplied; and
    2. free from defects.
  2. [79]
    The Tribunal finds that the evidence establishes that at the time of supply of the VW Touareg on 26 July 2019, neither the “non-start” event nor the low vacuum issue, as reported on by the Motor Vehicle Assessor, were present. The “non-start” event occurred on 16 November 2019 and the low vacuum issue developed some time later. Consequently as at the date of delivery on 26 July 2019, the Tribunal finds that the VW Touareg was operating without any mechanical or vehicle defect and was fit for all purposes for which this vehicle is commonly supplied and was free of defects. The vehicle was of acceptable quality as at the date of supply. The defects to which the Applicant refers to in his evidence arose subsequent to the date of supply.
  3. [80]
    Accordingly, for these reasons, the Applicant has not established that the VW Touareg was not of acceptable quality at the date of supply. The Tribunal will accordingly dismiss the Application-Motor Vehicle Dispute filed on 17 January 2022. This means that the Applicant’s amended claim for a refund of $100,000 of the purchase price or for a direction that Westco remedy the defects in a timely manner is unsuccessful.

Orders

  1. [81]
    The Tribunal orders that the Application – Motor Vehicle Dispute filed by the Applicant in the Tribunal on 17 January 2022 is dismissed.

Footnotes

[1]Westco Motors Service Tax Invoice dated 21 February 2020.

[2]Exhibit 4 at page 4.

[3]Motor Vehicle Assessment Report is Exhibited 5.

[4]Exhibit 4 at 3 paragraph 2.

[5]Fair Trading Act s 50A(1).

[6]Fair Trading Act s 50A(2).

[7]Fair Trading Act s 50(1).

[8]Motor Dealers Act s 115.

[9]Motor Dealers Act s 14 of Schedule 1.

[10]Motor Dealers Act s 1, s 3 of Schedule 1.

[11]ACL s 54(2).

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

Close

Editorial Notes

  • Published Case Name:

    Parry v Westco Cairns Pty Ltd trading as Westco Motors

  • Shortened Case Name:

    Parry v Westco Cairns Pty Ltd trading as Westco Motors

  • MNC:

    [2024] QCAT 42

  • Court:

    QCAT

  • Judge(s):

    Member Carrigan

  • Date:

    31 Jan 2024

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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