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Rapata v Critch Automotive Group Pty Ltd[2024] QCAT 43

Rapata v Critch Automotive Group Pty Ltd[2024] QCAT 43

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Rapata v Critch Automotive Group Pty Ltd [2024] QCAT 43

PARTIES:

cruze james reginald rapata

(applicant)

v

critch automotive group pty ltd

(respondent)

APPLICATION NO/S:

MVL014-22

MATTER TYPE:

Motor vehicle matter

DELIVERED ON:

31 January 2024

HEARING DATE:

16 September 2022

HEARD AT:

Brisbane

DECISION OF:

Member Carrigan

ORDERS:

The Application – Motor Vehicle Dispute filed in the Tribunal by the Applicant on 24 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 $6228.70 – where vehicle sold second hand as “used car” – where vehicle manufactured 11 years prior to purchase – where defects arose within 24 hours of purchase – where further mechanical services defects provided 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, 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 20 September 2019 Cruze James Reginal Rapata (the Applicant) purchased a 2008 Ford Territory vehicle from Critch Automotive Group Pty Ltd (the Respondent) for $6,228.70.
  2. [2]
    The Applicant says that the Respondent provided a Roadworthy Safety Check and Safety Certificate for the vehicle. Within 24 hours the Applicant noted that;
    1. the passenger side window of the vehicle was not working; and
    2. the vehicle was emitting a knocking noise in the front of the vehicle.
  3. [3]
    After attempts to have these defects repaired and further defects were identified over a period of time, the Applicant filed in the Tribunal an Application- Motor Vehicle Dispute on 24 January 2022 seeking an Order that the vehicle be   returned to the Respondent and for a refund of the purchase price and payment of other costs that had been incurred.

Background Facts.

  1. [4]
    On 20 September 2019 the Applicant and the Respondent entered into a written Contract for the purchase/sale of a used car, a 2008 Ford Territory SY MY07 Upgrade SR2 (RWD) vehicle which had an odometer reading of 159,238 km. With registration and stamp duty the total selling price of the car was $6228.70.
  2. [5]
    The terms and conditions of the written Contract stated that other than any manufacturer’s warranty the Respondent gave no other warranty to the Applicant save and except those specified in the Contract or provided by Law. (The terms of the Contract did not specify any warranty). Those terms also provided that where the vehicle is described as “used” the Applicant acknowledges that the Respondent does not warrant that:

the vehicle is free from defects other than those defects the vehicle must be free from as required by the Law and, for a Registered Vehicle, those defects which may be identifiable under a mechanical inspection required by for the production of a safety certificate or other certificate of inspection as required to transfer the registration to the Applicant.

  1. [6]
    A Roadworthy Safety Certificate for the Ford Territory had been issued to the previous owner of the vehicle on 29 July 2019. That Certificate recorded the odometer reading at 158,845 km. Between the date of that inspection in July 2019 and the date of the purchase of the vehicle by the Applicant, the vehicle had travelled 393 km. The Dealers Statement attached to the Contract stated that this was the Certificate which was given by the Respondent to the Applicant at the time of the purchase of the vehicle.
  2. [7]
    By the next day after purchase, 21 September 2019, the Applicants says that:
    1. the passenger side window of the vehicle was not working; and
    2. the vehicle was also emitting a knocking noise in the front of the vehicle.
  3. [8]
    The Applicants says that the vehicle was then booked in for a service with K & E Mechanical Pty Ltd, the Applicants personal mechanic. The date when this service occurred was not stated in evidence but it appears that at some stage the Applicant was advised by his personal mechanic that the vehicle had “heaps of faults” and it “was not in fact roadworthy”.
  4. [9]
    On 4 November 2019 the Applicant delivered the vehicle to the Respondent to undertake repairs. The Respondent arranged for the repairs to be completed by F & A Field Service, a motor vehicle business operating from 29 Boyd Street, Chinchilla and also an authorised Safety Inspector to issue Roadworthy Safety Certificates.
  5. [10]
    On 7 November 2019 the Respondent returned the vehicle to the Applicant together with a new Roadworthy Safety Certificate, dated that day, issued by F & A Field Services. That Certificate states that the vehicle passed inspection and at the time the odometer reading was 161,840 km. The vehicle had travelled 2602 km since the date it was purchased by the Applicant.
  6. [11]
    On 11 November 2019 the Applicant took the vehicle to K & E Mechanical (Qld) Pty Ltd for inspection. Those mechanics reported that:
    1. F & A Field Service replaced only two bushes and broken off bolts; and
    2. while a Roadworthy Safety Certificate had been issued, “there was still major safety issues including “leaking brake master cylinder and windows not working to name just two”.
  7. [12]
    The evidence appears to be that, as a consequence, the vehicle was sent to Main Roads for inspection who “defected the car off the road”.
  8. [13]
    The Applicant contacted the Respondent to fix the vehicle properly but, the Applicant says the Respondent denied any liability. The Applicant also says that due to his safety concerns for himself and his family he discontinued the use of the vehicle until it was guaranteed roadworthy by a third party.
  9. [14]
    On 29 January 2020, the Applicant took the vehicle to K & E Mechanical (Qld) Pty Ltd to have the vehicle serviced and to be made roadworthy. An invoice from those mechanics dated 29 January 2020 states that:
    1. a number of parts (including starter motor, brake master cylinder, rocker cover gasket, steering rack ends, rear differential bush ki,t rear trailing arm kit, window regulator and other parts) were supplied at a cost of $4000.00; and
    2. labour ( recorded as 24 at a rate of $80.00) was supplied at a cost of $1920 and
    3. sundries and consumables were invoiced at $204.55.

The total cost to the Applicant was $6737.01. The Applicant says that he has paid this invoice.

  1. [15]
    On 22 April 2020 the vehicle was taken for a further roadworthy Safety Certificate assessment. The Applicant says the vehicle failed this assessment.
  2. [16]
    On 5 May 2020 the vehicle was scheduled for another inspection where the Applicant said the inspector found heavy rust damage in the chassis. There are photos of rust damage which showed a hole in the chassis.
  3. [17]
    On 8 July 2020 the vehicle was again the subject of a vehicle inspection. Following that inspection the vehicle was taken to K & E Mechanical (Qld) Pty Ltd on 18 July 2020. During the mechanical service further faults were identified in the vehicle relating to the battery main harness was full of corrosion, the body control module was faulty and the cause of intermittent electrical faults that were draining the battery. An invoice from those mechanics is in evidence dated 18 July 2020 which states;
    1. labour charge of $1360.00;
    2. parts (body control module for repair)$220.00;
    3. obtaining Roadworthy Inspection from Ainsworth Motors$176.00;
    4. Day permit$179.52;
    5. inspection of chassis by qualified boilermaker$150.00

The total cost of this invoice including GST was $2294.07. The Applicant’s evidence is that the invoice has been paid.

  1. [18]
    After the mechanical defects were repaired the vehicle was then sent to an authorised Safety Inspector, Ainsworth Motors, for a new Roadworthy Safety Certificate. In the course of that inspection it was found that a heat shield had been fitted (where it should not have been and after removing the heat shield there was a rust hole in the chassis. The Applicant filed a photograph of what appears to be a hole in the chassis with an adjacent heat shield material folded back to expose the hole in the chassis.
  2. [19]
    K & E Mechanical (Qld) Pty Ltd state that at some date, not identified in evidence, a boilermaker inspected the rust hole in the chassis and found it too expensive to repair. Apparently, the vehicle “was then taken to ETS for review where a rear wheel bearing failed.”
  3. [20]
    On 24 January 2022 the Applicant filed in the Tribunal an Application - Motor Vehicle Dispute in relation to defects relating to the purchase of the Ford Territory vehicle. The Applicant claimed:
    1. that the Ford Territory be returned to the Respondent;
    2. that the Respondent pay to the Applicant the following;
    1. (i)
      $6228.70 being the purchase price of the vehicle;
    1. (ii)
      $6737.01 being repair costs;
    1. (iii)
      $2294.07 being further repair costs; and
    1. (iv)
      $567.00 being the filing fee, service fee and company search fee for the claim.
  4. [21]
    The total of the Applicants claim is $15,826.76 under all heads of claim.
  5. [22]
    The Respondent filed its Response on 14 April 2022. The Respondent agreed with several of the facts alleged in the Application – Motor Vehicle Dispute but otherwise found issues and disputed a number of other allegations made by the Applicant. The Respondent denied any wrongdoing and does not feel that it is responsible to refund the cost of the vehicle nor pay for any the repairs completed on the vehicle. Also,the Respondent says that it was not advised of the alleged repairs were taking place nor was it given an opportunity to assess the vehicle after it had been to F & A Field Services on 7 November 2019. The Respondent queries why a vehicle purchased for $6228.70 would then have repairs totalling $6737.01 which it says is more than the purchase price in circumstances where there was no contact with the Respondent.

The Jurisdiction of the Tribunal in Motor Vehicle Disputes.

  1. [23]
    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. [24]
    The Applicant brings these proceedings in accordance with the Australian Consumer Law (Queensland) (ACL) relying on s 50A the Fair Trading Act 1984 (Qld). (Fair Trading Act).
  3. [25]
    In these proceedings the Applicant seeks to recover payment made by him to the Respondent and also to recover compensation for costs incurred to remedy defects in the motor vehicle. Accordingly, the remedy sought by the Applicant is for a remedy listed in the Table in s 50 of the Fair Trading Act. The proceedings must be heard in a Tribunal or in a Court having jurisdiction for the proceedings, having regard to:
    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. [26]
    The Applicant has brought these proceedings relying on s 50A of the Fair Trading Act and not as a minor civil dispute.
  5. [27]
    So far as is relevant to these proceedings s 50A of the Fair Trading Act provides for the Tribunal’s jurisdiction for particular matters relating to motor vehicles. Significantly it provides:
    1. a person may apply, as provided under the QCAT Act, to the Tribunal for an order for an action:
      1. (i)
        under a provision of the Australian Consumer Law (Queensland) listed in the table in to this section; and
      1. (ii)
        relating to a motor vehicle; and
      1. (iii)
        seeking an amount or value of other relief of not more than $100,000.
    2. The Tribunal may make only the following orders:
      1. (i)
        an order requiring a party to the proceedings to pay a stated amount to a stated person;
      1. (ii)
        an order that a stated amount is not due or owing by the applicant to a stated person, or by any party to the proceeding to the applicant;
      1. (iii)
        an order requiring a party to the proceeding, other than the applicant, to perform work to rectify a defect in goods or services to which the claim relates;
      1. (iv)
        an order requiring a party to the proceeding to return goods that relate to the claim and are in the party’s possession or control to a stated person;
      1. (v)
        an order combining 2 or more orders mentioned in the above paragraph;
    3. However, the Tribunal cannot make an order that:
      1. (i)
        purports to require payment of an amount, performance of work or return of goods of a value of more than $100,000; or
      1. (ii)
        purports to grant relief of a value of more than $100,000 from the payment of an amount; or
      1. (iii)
        combines two or more orders mentioned above and purports to award or declare entitlements or benefits (or both) of a total value of more than $100,000.
    4. 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 2008 Ford Territory vehicle, the subject of these proceedings, is a “motor vehicle” within the meaning of that term in section 12.
    5. A Table of provisions provides for certain proceedings to be bought under the provisions of the Australian Consumer Law (Queensland) and which proceedings include the following:
      1. (i)
        an action for damages and 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), s 259(2),(3) & (4).
  6. [28]
    For these proceedings, the Fair Trading Act is the relevant “enabling Act”.
  7. [29]
    In these proceedings the Applicant purchased the motor vehicle for $6228.70 in a purchase and sales transaction with the Respondent. The Applicant seeks a refund of monies paid for the vehicle and other expenses paid in connection with the Ford Territory. The amount claimed is below the prescribed limit for a Minor Civil Dispute claims. The other limb relating to the Tribunals jurisdiction relates to whether the claim is made pursuant to s 50A of the Fair Trading Act. In the Application filed in the Tribunal the Applicant identifies that reliance is made upon the ACL provisions in s 50A of the Fair Trading Act relating to the purchase of a motor vehicle for less than $100,000.00.
  8. [30]
    The Tribunal therefore has jurisdiction to hear the Applicants motor vehicle dispute with the Respondent and to determine whether or not the Applicant can obtain relief sought by him in the Application-Motor Vehicle Dispute filed in the Tribunal.

Available Remedies.

  1. [31]
    The Table of provisions in s 50A of the Fair Trading Act includes actions to recover an amount of loss or damage pursuant to s 236(1). That provision provides that a person can recover loss or damage on the basis of s 259(2), (3) and/or (4) of the ACL. The provisions of ss 259(2), (3) and (4) relate to an action for damages against suppliers of goods to recover the reasonable costs incurred, to recover compensation for reduction in value of goods and to recover 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. [32]
    The Applicant in the Application filed in the Tribunal raises the issue whether Respondent is in breach of the guarantee in s 54 requiring the supply of goods of acceptable quality. The issue then is whether on 20 September 2019 the motor vehicle purchased by the Applicants from the Respondent was of acceptable quality.

Guarantee in s 54 of the ACL.

  1. [33]
    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. [34]
    The Applicant purchased the motor vehicle by a contract and not by way of auction. The contract for the purchase of the motor vehicle was made in trade or commerce and the Applicant was at all material times a consumer. In these circumstances there is a guarantee that the Ford Territory vehicle will be of acceptable quality.
  3. [35]
    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; and
    2. acceptable in appearance and finish; and
    3. free from defects; and
    4. safe; and
    5. durable

as 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; 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.
  1. [36]
    The construction and interpretation of s 54 of the ACL was considered in Williams v Toyota Motor Corporation Australia Ltd where Justice Lee stated:

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.

  1. [37]
    Whether the goods (in this case the Ford Territory) was of acceptable quality has to be determined “at the time of supply”. The time of supply is the relevant date to determine if the goods are of acceptable quality as has also been decided in other Tribunal decisions.[1]  In these proceedings the relevant date for the assessment of the acceptable quality of the goods is the time of supply on 20 September 2019.
  2. [38]
    The parties do not dispute a number of facts in these proceedings and there is much common ground. However, there are other facts about which there is serious dispute between the parties.
  3. [39]
    The uncontested facts include the fact that the Respondent sold the used Ford Territory motor vehicle to the Applicant on 20 September 2019.
  4. [40]
    The Applicant says that within 24 hours the Applicant noticed that:
    1. the side window of the vehicle was not working; and
    2. the vehicle was emitting a knocking noise in the front of the vehicle.

The Respondent says that it was not contacted within 24 hours regarding the alleged faults. It questions why the Applicant would go to his personal mechanic and not the dealership considering the recent purchase of the vehicle.

  1. [41]
    Approximately six weeks later, on or about 4 November 2019, the vehicle was delivered by the Applicant to the Respondent to carry out repairs to the vehicle. The evidence does not disclose exactly what were the repairs and if the repairs were to include the passenger side window and the “knocking noise” in the front of the vehicle. The evidence from the Applicant says that he was advised by K & E Mechanical (Qld) Pty Ltd that the vehicle “was not in fact roadworthy”. It is not known from this evidence exactly what the Respondent was to repair other than the allegation that the vehicle was not roadworthy. The Applicant also relies on an undated report from M & E Mechanical (Qld) Pty Ltd which says that when they first looked at the Ford Territory (on some date not specified) but which appears to be after the Applicants had been away for two (2) weeks that:

I found heaps of faults with the car I advised them to contact the car yard.

  1. [42]
    There is no evidence before the Tribunal what the “heaps of faults” were in the vehicle at the time of that first inspection by K & E Mechanical (Qld) Pty Ltd.
  2. [43]
    It does appear from the evidence that on 4 November 2019 the Applicant and the Respondent did discuss a Roadworthy Safety Certificate Assessment. There is no evidence of those discussions. The best evidence as to what may have occurred on 4 November 2019 appears from the invoice from F & A Field Services dated 7 November 2019 which sets out the works undertaken on the vehicle at the request and expense Respondent. That invoice states that in addition to issuing a new Safety Inspection Certificate the following was undertaken as repairs:
    1. remove and replace front left door trim and unseize window motor and lube;
    2. remove and replace ignition switch and shim up contacts so it would start consistently;
    3. remove and replace right-hand hand brake shoes and disc – found pin broken. Make up new pin - test all ok;
    4. fit new rear top upper control arm bushes – both sides;
    5. fit new left-hand lower control arm (rear of rear inner bush);
    6. supply bush kit – control arm;
    7. supply rose joint bush;
    8. supply fan belt gates.

The invoiced cost of this work and materials was $1,023.00. That cost was invoiced to the Respondent.

  1. [44]
    There is no evidence before the Tribunal to explain whether the work and materials supplied in the above invoice from F & A Field Services related to the Applicants observations in the first 24 hours after purchasing the vehicle on 20 September 2019 that the passenger side window was not working and the vehicle was emitting a knocking noise in the front of the vehicle or whether they relate to any additional defects arising on some date subsequent to 20 September 2019 but prior to 4 November 2019. For example, the invoice from F & A Field Services records that work was undertaken in connection with the ignition switch so that the vehicle would start consistently yet by that time some 6 to 7 weeks after the date of purchase the vehicle had travelled 2604 kms. The first time the evidence refers to any failure of the ignition is in the invoice of F & A Field Services of 7 November 2019. Similarly whether the fitting of new bushes to the vehicle had anything to do with the “knocking noise” the front of the vehicle is not known from the evidence in these proceedings. The Tribunal can draw an inference from the invoice from F & A Field Services that work relating to the removal and the replacement of the front left door trim and unseize the window motor and lube was work undertaken following the Applicant’s observation that the passenger side window of the vehicle was not working. However, as to the other observation of a “knocking noise” emitting from the front of the vehicle being related to other works in that invoice cannot be established on the evidence before the Tribunal. The Applicant has supplied no evidence connecting that defect to the work undertaken in the invoice. It is up to the parties, not the Tribunal, to provide the evidence necessary in support of their claims.
  2. [45]
    There are other defects with the Ford Territory identified in the evidence in these proceedings. For example, the invoice from K & E Mechanical (Qld) Pty Ltd of 29 January 2020 records work to repair the vehicle requiring the supply of parts of $4000.00 and for labour and incidentals at an additional cost of $2737.01. There is no evidence before the Tribunal that any of these repairs relate to defects in the Ford Territory as at the date of supply on 20 September 2019. There is evidence that the mechanic had undertaken these repairs on 29 January 2020 but that was approximately four (4) months after the date of purchase of the vehicle. As to when these defects requiring repairs occurred is not explained by the evidence. As at 29 January 2020, the odometer reading of the vehicle was 162,400 km and it had travelled 3164 km since the purchase by the Applicant. The evidence before the Tribunal is deficient in other respects about this invoice. For example, one of the parts supplied in the invoice was for a “Window regulator” but there is no evidence to state which window in the vehicle it related to and more importantly whether or not it related to the passenger side window observed by the Applicant not to be working within the first 24 hours of purchase. Again, whether other items supplied under that invoice related to the “knocking noise” the front of the vehicle is similarly not explained.
  3. [46]
    A further invoice from K & E Mechanical (Qld) of 18 July 2020 for $2294.97 is not accompanied by any evidence to explain in what way these defects may have been present in the Ford Territory as at the date of purchase on 20 September 2019. The invoice does not record the odometer reading of the vehicle and is dated approximately 10 months after the date of purchase. This invoice does not assist the Tribunal in making any findings of fact relevant to defects that may have been in existence at the date of supply Ford Territory vehicle.
  4. [47]
    There is evidence before the Tribunal in the form of two photographs of a hole in the chassis said to be caused by rust and which was located under a heat shield. The only evidence is from the Applicant that in Roadworthy Safety Inspection on 5 May 2020 this defect was identified. This Roadworthy Safety Inspection was approximately the fifth (5) roadworthy inspection of the vehicle since its purchase in September 2019. Why this rust defect was not identified in earlier road worthy inspections is not explained although it is noted that the hole is located beneath a heat shield which, according to the evidence, was not properly located in the engine compartment. Why the incorrect positioning of the heat shield did not attract prior attention and investigations during safety inspections is not explained. In any event, the Roadworthy Safety Inspection on 5 May 2020 Inspection occurred some 7 to 8 months after the date of supply the vehicle on 20 September 2019. While the photographs do depict heavy rust damage to the chassis of the vehicle, the cause and dates of the progress of the trust are not explained in any evidence before the Tribunal. The Respondent disagrees with this evidence and says it would like a copy of the report from the Inspector who found heavy rust damage. The Respondent also queries whether this photo proves damage was to the Ford Territory purchased from the Respondent. The Respondent also queries why this alleged rust damage was not picked up earlier and states:

This alleged damage has been apparently missed upon inspection now by 5 alleged roadworthy inspectors including Department of Main Roads and Transport and Kody Wagner”

The reference to Kody Wagner is the principal in the mechanical business K & E Mechanical (Qld) Pty Ltd.

  1. [48]
    The evidence before the Tribunal identifies that there were witnesses available who could have given evidence about the condition of this vehicle at the time of supply in September 2019 including any evidence about the origin and cause of the rust hole in the chassis. One such witness is the previous owner of the Ford Territory, Holly Maloney, who is identified in the contract for the purchase of the vehicle. That witness and her address are also identified on the Roadworthy Safety Certificate dated 29 July 2019. No evidence was provided from this potential witness.
  2. [49]
    A second witness being the Roadworthy Assessor from BNC Plant Hire and Mechanical of Chinchilla who provided the Roadworthy Safety Certificate dated 29 July 2019. No evidence was called from this potential witness.
  3. [50]
    The Applicant may well consider that the Respondent should have called F & A Field Services and BNC Plant Hire and Mechanical as a witness in the proceedings to support the Respondent’s case. However, there are two issues relating to this consideration. Firstly, it was the Applicant (not the Respondent) who relied upon and put in evidence the documents from F & A Field Service and from BNC Plant Hire and Mechanical. That evidence is located in the attachment to Application – Motor Vehicle Dispute filed 24 January 2020.
  4. [51]
    The evidence available to the Tribunal as to the nature and extent of the defects as at the date of supply of the vehicle, 20 September 2019, is the evidence from the Applicant that within 24 hours he noticed the passenger side window of the vehicle was not working and the vehicle was emitting at a knocking noise in the front of the vehicle. The Tribunal accepts the evidence of the Applicant as to these defects are and finds that as at the date of supply of the vehicle to the Applicants vehicle contained these defects:
    1. passenger side window of the vehicle was not working; and
    2. the vehicle was emitting a knocking noise in the front of the vehicle.

Do the Defects at Date of Supply mean the Vehicle is not of Acceptable Quality?

  1. [52]
    As has already been explained, a guarantee that goods supplied in trade or commerce to a consumer, other than by way of auction, are to be of “acceptable quality”.[2]
  2. [53]
    Whether goods are of acceptable quality is not an absolute but rather is a flexible standard depending upon the application of provisions in section 54 (2) and (3). This approach has been discussed in Australian Competition and Consumer Commission v Jayco Corporation Pty Ltd by Wheelahan J:[3]

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.

  1. [54]
    The Ford Territory vehicle was sold with a Roadworthy Safety Check and Safety Certificate dated 29 July 2019 for the vehicle. The Ford Territory was sold as a “Used Car”. The vehicle was manufactured in 2008 and had been in use for 11 years at the time of sale to the Applicant. It had travelled 159,238 km. Accordingly, at the time of sale it could be regarded as an old vehicle which had travelled a significant distance in its 11 years of use. Following its purchase, the vehicle was in operation so that by 7 November 2019 and had travelled 161,840 km. By 29 January 2020 it had travelled 162,400 km.
  2. [55]
    The Tribunal finds that the Ford Territory vehicle was fit for all purposes for which that vehicle is commonly supplied. There is no evidence that it was not of acceptable appearance, safe and durable at the time of supply. A reasonable consumer purchasing a used car such as the 2008 Ford Territory for $66228.70 in September 2019 would expect in regard it as being of acceptable quality in terms of s 54(2) and (3) of the Fair Trading Act.
  3. [56]
    The Tribunal is also required have regard to whether the vehicle was “free of any defects” as at the date of supply. As previously found by the Tribunal as at the date of sale the vehicle was not free of defects and had the following:
    1. a passenger-side window of the vehicle was not working; and
    2. the vehicle was emitting a knocking noise in the front of the engine,
  4. [57]
    The question then arises whether a reasonable consumer fully acquainted with the state and condition of the vehicle would regard it as acceptable quality having those two defects and having regard to (so far as is relevant in these proceedings):[4]
    1. the nature of the vehicle; and
    2. the price of the vehicle; and
    3. any other relevant circumstances relating to the supply the vehicle.
  5. [58]
    The nature of the vehicle is that it was sold second hand as a “used car”. It was not sold as a new car or a near new demonstrator vehicle. The vehicle was manufactured approximately 11 years prior and was purchased for $6228.70. 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. Notwithstanding the lack of any warranty, the Respondent, at its expense, arranged for repairs to the vehicle on 17 November 2019 by F & A Field Services. The invoiced cost to the Respondent was $1023.00 which included labour for the front left-hand door trim and unseize the window motor and “lube”. These repairs appear to be a reference to the passenger-side window which the Applicants said was not working. Those repairs leave unresolved, according to the evidence, the “knocking noise” to the front of the vehicle. The cause of that noise has not been identified in the evidence. Neither was it identified as part of the other repairs undertaken by F & A Field Services on 7 November 2019. Whether the Applicant discussed this “knocking noise” at the front of the vehicle with the Respondent on 4 November 2019 is not known from the evidence. What is known is that a Roadworthy Safety Certificate was issued on 7 November 2019 following the completion of the work undertaken by F & A Field Services. The Certificate included the certification in favour of the “Body, Chassis and Frame”, “Engine, Driveline and Emissions” as well as other mechanical features of the vehicle. Whether that mechanical service resolved the “knocking noise” is not known but even if it did not resolve that issue, there seems to be no basis upon which the vehicle could not receive a further Roadworthy Safety Certificate on that date.
  6. [59]
    In these circumstances a reasonable consumer fully acquainted with the above facts in the preceding paragraph would regard the 2008 Ford Territory vehicle purchased on 20 September 2019 as being of acceptable quality.
  7. [60]
    There is  evidence which I have already referred to relating to further mechanical work carried out on the vehicle on 29 January 2020 and again on 18 July 2020 in accordance with the invoice number 1584 and 0070 issued by K & E Mechanical (Qld) Pty Ltd.  While both invoices indicate that there were serious issues with the mechanical condition of the Ford Territory at those dates, the evidence does not identify that those mechanical issues were in existence at the date of supply on 20 September 2019. The Tribunal is not satisfied that those mechanical issues, including the discovery of a rust hole in the chassis of the vehicle were existing defects in that vehicle at the time of the Applicant purchase.
  8. [61]
    Accordingly,the Tribunal is not satisfied that the 2008 Ford Territory was, according to the evidence before the Tribunal, not of acceptable quality as that 20 September 2019. The Applicant has not been able to establish that the Respondent is, or was, in breach of the guarantee of acceptable quality in s 54 of the ACL at the time of supply of the 2008 Ford Territory vehicle. The Applicants claim will therefore be dismissed.
  9. [62]
    In the circumstances, the Applicant is not entitled to the relief claimed in the Application-Motor Vehicle Dispute filed on January 2024 where relief is claimed relating to the return of the vehicle to the Respondent, a refund of the purchase price of $6228.70 along with other mechanical expenses incurred in January 2020 and July 2020 as well as filing fees and other expenses. Those claims will be dismissed.

Orders

  1. [63]
    The Application – Motor Vehicle Dispute filed in the Tribunal by the Applicant on 24 January 2022 is dismissed.

Footnotes

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

[2]ACL s 54.

[3](2020) FCA 1672 at paragraph (27). See also Sazdanoff-Haynes v MLS Wholesales Pty Ltd (2023) QCAT 37 at paragraph (40).

[4]ACL s 54(3) - note only referring to those matters relevant to these proceedings as there is no evidence of any statements made about the goods on any packaging or label laws the evidence of representations made about the goods by the supplier or the manufacturer of the goods.

Close

Editorial Notes

  • Published Case Name:

    Rapata v Critch Automotive Group Pty Ltd

  • Shortened Case Name:

    Rapata v Critch Automotive Group Pty Ltd

  • MNC:

    [2024] QCAT 43

  • 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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