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  4. Schmidt v Kevin Butler Wholesale Pty Ltd - [2024] QCAT 522

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Schmidt v Kevin Butler Wholesale Pty Ltd[2024] QCAT 522

Schmidt v Kevin Butler Wholesale Pty Ltd[2024] QCAT 522

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Schmidt v Kevin Butler Wholesale Pty Ltd [2024] QCAT 522

PARTIES:

raelene schmidt

(applicant)

v

kevin butler wholesale pty ltd

(respondent)

APPLICATION NO/S:

MVL086-23

MATTER TYPE:

Motor vehicle matter

DELIVERED ON:

26 November 2024

HEARING DATE:

On the papers hearing

HEARD AT:

Brisbane

DECISION OF:

Member D Brown

ORDERS:

The application is dismissed.

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 12 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.

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

Fair Trading Act 1984 (Qld), s 50A

Australian Consumer Law (Cth), s 54, 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

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

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 14 April 2023 the applicant, Ms Raelene Schmidt (‘Ms Schmidt’) filed an Application – Motor Vehicle Dispute with the Tribunal, seeking compensation of $14,619 plus the costs of filing the application from the respondent, Kevin Butler Wholesale Pty Ltd (‘Kevin Butler Wholesale’). The claim was made under the Fair Trading Act 1989 (Qld) (‘Fair Trading Act’).
  2. [2]
    On 23 February 2022 Ms Schmidt (together with her husband, Mr Adam Schmidt) purchased a 2010 Mazda CX-7 vehicle from Kevin Butler Wholesale for $11,000. The vehicle had an odometer reading of 186,386 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]
    Ms Schmidt traded in a 2016 Nissan Pathfinder vehicle to purchase the 2010 Mazda CX-7 and received $19,000 payment for the Nissan Pathfinder.
  4. [4]
    Within the first couple of weeks of ownership, an engine light come on and Ms Schmidt returned the vehicle to Kevin Butler Wholesale for investigation. As a result a new sensor was fitted into the vehicle by Kevin Butler Wholesale on 18 March 2022. 
  5. [5]
    The car was returned to Ms Schmidt who identified that the vehicle was sluggish and had lost power when seeking to speed up, so she returned it to Kevin Butler Wholesale for further investigation. As a result on 6 April 2022 a new oxygen sensor was fitted into the vehicle by Kevin Butler Wholesale.
  6. [6]
    In or around late July 2022 after the vehicle had been driven close to 7,000 km,[1] the vehicle started to blow smoke and was going through excessive oil. Ms Schmidt took the vehicle to another mechanic who advised the engine required rebuilding. 
  7. [7]
    Ms Schmidt advised Kevin Butler Wholesale about the issue with the vehicle and the car requiring an engine rebuild in late July 2022. Kevin Butler Wholesale offered to provide and fit a second hand engine at a trade cost of $5,000. Ms Schmidt declined this offer.
  8. [8]
    On or around 19 September 2022 Ms Schmidt took the vehicle to Raby Bay Mechanical Repairs who rebuilt the engine and the turbo as well as completed other repairs and standard service issues including replacing the oil filter, spark plugs, coolant, water pump, mounts for the engineer and gearbox, repair tyres, replace the radiator and re-gassed the air conditioning. The vehicle was returned to Ms Schmidt on 13 October 2023 and the total cost of the repairs and servicing was $12,632.40. The odometer reading at the time of the repairs was 193,360.
  9. [9]
    Ms Schmidt received $1,000 towards the cost from the warranty she had taken on the car with an external warranty company and Kevin Butler Wholesale provided Ms Schmidt with a good will payment of $1,000 towards the cost.
  10. [10]
    On or around late November 2022 the vehicle’s engine light came on resulting in Ms Schmidt taking the vehicle back to Raby Bay Mechanic, who called in Mastertech Automotive Diagnostics and Training, who diagnosed a suspected blocked catalytic converter.
  11. [11]
    On 9 December 2022 the vehicle was taken to Raby Bay Mechanical Repair for diagnose of engine light and rough idle, supply and fit air flow metre; EGR valve and spark plug, a fuel injector clean and Mastertech call out engine scan. The total cost was $2,587. The odometer reading at the time was 197,127.
  12. [12]
    On 21 December 2022 the vehicle was taken to Raby Bay Mechanical Repair to remove the secondary catalytic converter for testing and replace with a straight pipe. The total cost was $400. The odometer reading at the time was 197,348.
  13. [13]
    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]
  14. [14]
    Ms Schmidt seeks relief under the Australian Consumer Law, which is schedule 2 to the Competition and Consumer Act 2010 (Cth) (‘ACL’). The relief sought by Ms Schmidt is the cost of repairs.
  15. [15]
    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.
  16. [16]
    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 Ms Schmidt’s motor vehicle.
  17. [17]
    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
  1. a caravan.
  1. [18]
    Ms Schmidt’s Mazda CX-7 vehicle falls within this definition.
  2. [19]
    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. (ss 236(1), 259(2), (3) & (4)).
  1. [20]
    In this case Ms Schmidt is seeking less than $15,000 which is well within the $100,000 limit. Accordingly, the Tribunal has jurisdiction to hear Ms Schmidt’s motor vehicle dispute and to determine whether Ms Schmidt can obtain relief sought in the Application – Motor Vehicle Dispute filed in the Tribunal under the Fair Trading Act.

The applicant’s evidence

  1. [21]
    Despite filing directions being issued on 28 June 2023 and 10 May 2024 there is limited material filed by either Ms Schmidt as the applicant or Kevin Butler Wholesale as the respondent.
  2. [22]
    Together with the application filed on 14 April 2023, Ms Schmidt provided the following documents:
    1. The tax invoice, contract and Form 12 Cooling off periods and statutory warranty for the purchase of the vehicle.
    2. One page of a warranty on the vehicle administrated by Davantage Group Pty Ltd.
    3. Tax invoices from Raby Bay Mechanical Repairs dated 13 October 2022, 9 December 2022 and 21 December 2022.
    4. Tax invoice from Mastertech Automotive Diagnostic and Training dated 29 November 2022.
    5. Email correspondence between the parties between 29 December 2022 and 19 January 2023.
  3. [23]
    Since the application was filed Ms Schmidt has filed the following material:
    1. A one page email received on 12 July 2023 which contains an email from a Mr Jasper Mansfield on unknown date sharing his experiences when purchasing a van from the respondent company.
    2. A two page statement received on 7 June 2024.
    3. A half page statement in response received 29 July 2024.
  4. [24]
    Ms Schmidt’s material sets out the issues which she had with the vehicle and the engine light repeatedly appearing since the purchase of the vehicle, and how she raised these issues with Kevin Butler Wholesale.
  5. [25]
    Ms Schmidt seeks that the respondent, Kevin Butler Wholesale, pays the full cost of her three invoices from Raby Bay Mechanical Repairs for work conducted on the vehicle in October 2022 and December 2022, which she has confirmed to be $13,619.40,[3] not the $14,619.40 initially sought, plus her filing fee cost of $387, being a total of $14,006.40.
  6. [26]
    Ms Schmidt does not appear to differentiate in her claim for compensation/damages between the costs for the major mechanical issues relating to the concerns with the engine and turbo rebuild and the catalytic converter and those costs which are part of ordinary maintenance and servicing, such as oil filters, water pumps, spark plugs and aircon re-gassing.
  7. [27]
    Ms Schmidt does not provide any evidence, such as a tax invoice, for the filing fee which she is claiming be reimbursed to her by the Respondent. In Ms Schmidt’s statement received on 7 June 2022 she asserts the filing fee is $387.00. This is different to the notes on the front of the application which records the filing fee paid as only $367.00.
  8. [28]
    Ms Schmidt is asserting that this is owed compensation/damages for the repairs she had to undertake to the vehicle under the ACL, but she has not specified which breaches of the ACL she is relying upon. It is assumed based on the information provided and the fact Ms Schmidt asserts that since she had the catalytic converter removed in December 2022 and replaced with a straight pipe that she no longer has issues with the vehicle, that she is asserting that the vehicle was not of acceptable quality in that it was not free from defects.[4]
  9. [29]
    Ms Schmidt acknowledged that she had driven nearly 7,000 km at the time the issues with the engine and turbo first arose and nearly 11,000 km at the time the issue with the catalytic converter arose. Ms Schmidt states that this equates to only 348.6 km a week before the engine rebuild issue and then only 627 km a week including a long weekend away to Hervey Bay, between the engine issue and the suspected catalytic converter issue.[5]

Respondent’s evidence

  1. [30]
    Kevin Butler Wholesale has not filed any formal response document, but their response is evident in the email response and attached letter dated 19 January 2023 filed by Ms Schmidt and in their statement received on 8 July 2024.
  2. [31]
    The only material filed by Kevin Butler Wholesale is:
    1. Eight pages of Google customer reviews demonstrating a five-star rating received on 26 July 2023.
    2. A copy of the letter sent to Ms Schmidt in the email communication on 19 January 2023 (which was previously attached with the application), received by the Tribunal on 26 July 2023.
    3. A one page statement received on 8 July 2024.
  3. [32]
    Kevin Butler Wholesale sets out a chronology of post purchase repairs undertaken by their mechanics, which included checking engine light (pre and post cat sensor) on 10 March 2022, ordering a new senor on 11 March and then fitting it on 18 March 2022. They then ordered an oxygen sensor on 29 March 2022 and fitted the oxygen sensor on 6 April 2022. They then heard nothing from Ms Schmidt until the end of July when she reached out about engine smoke concerns and advised her mechanic diagnosis indicated a compete engine build was necessary.
  4. [33]
    This chronology appears largely undisputed by Ms Schmidt. The only area of uncertainty is whether the catalytic converters were cleaned at or around the time the oxygen sensors were replaced, as asserted by Ms Schmidt, but which Kevin Butler Wholesales does not mention, but also does not dispute as untrue.
  5. [34]
    The material also details the attempts by Kevin Butler Wholesale to assist Ms Schmidt with the engine issue, including offering a second hand motor at trade costs and contributing $1,000 towards the repairs.
  6. [35]
    In relation to the claim that Ms Schmidt is owed compensation/damages in relation to the repairs undertaken on the vehicle, Kevin Butler Wholesale state:
    1. Their mechanics were not given the opportunity to review the vehicle or handle these repairs claimed and the invoices are for the replacement of numerous components that in the respondent’s opinion were not all necessary.
    2. The vehicle purchased was a 13 year old vehicle which had travelled 186,388km and while it is regrettable that it has caused Ms Schmidt issues, that does not mean that it was not of acceptable quality taking into account the nature and price of the vehicle.
    3. While they agreed to rectify minor sensor defects due to the relatively close temporal proximity to purchase, they can not do the same with engine issues that arose many months and thousands of kilometres after the purchase of the vehicle.
    4. The vehicle was driven nearly 7,000 km before the issue with the engine arose and a further 3,767 km before the suspected issue with the catalytic converters. These are all post purchase defects rather than defects present at the time of purchase.

Material upon which the Tribunal placed limited or no weight

  1. [36]
    No weight has been put on evidence filed by Ms Schmidt from Mr Jasper Mansfield about a previous bad experience with Kevin Butler Wholesale or the materials provided by Kevin Butler Wholesale demonstrating five-star reviews and prior positive experiences across numerous customers. The experience of these other customers is not relevant to the specific issues in dispute in this matter about this vehicle and whether it was of acceptable quality and whether Kevin Butler Wholesale breached the ACL in relation to their contract with Ms Schmidt. 
  1. [37]
    Ms Schmidt makes mention in her application that she did not receive a copy of the safety/roadworthy certificate when purchasing the vehicle but did not raise this in her complaint email to the respondent in December 2022 or in any of the material or exhibits she filed in the Tribunal. Accordingly it appears that Ms Schmidt is not pressing this issue. Ms Schmidt also does not appear to be stating that there was not a safety certificate, only that she did not receive a copy of it.
  1. [38]
    There is a one page of a document provide with the application with appears to be details of a warranty relating to the vehicle which has a coverage period of 15 months from 24 February 2022 to 24 May 2023 and is administrated by Advantage Group Pty Ltd trading as National Warranty Company. The full document is not provided, and it is unclear what the warranty covers and what any exclusions are under the warranty.
  2. [39]
    In light of the limited information the tribunal cannot make any findings about any rights of Ms Schmidt under this purported warranty and in any case from the limited information provided, it would appear Ms Schmidt has already claimed under that warranty and any further claim or legal action in terms of that warranty would need to be made against Advantage Group Pty Ltd as opposed to Kevin Butler Wholesale.

Guarantee of acceptable quality

  1. [40]
    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. [41]
    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. [42]
    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.[6]
  1. [43]
    The Macquarie Dictionary defines the word ‘defect’ to mean ‘a fault’ or ‘imperfection.’
  2. [44]
    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. [45]
    The construction and interpretation of s 54 of the ACL was considered in Williams v Toyota Motor Corporation Australia Ltd where Justice Lee stated:[7]

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. [46]
    Whether the goods (in this case the Mazda CX-7 vehicle) were of acceptable quality has to be determined ‘at the time of supply’.[8] 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 23 February 2022. 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.[9]
  2. [47]
    Whether goods are of acceptable quality is not an absolute but rather is a flexible standard depending upon the application of provisions in s 54(2) and (3). This approach has been discussed in Australian Competition and Consumer Commission v Jayco Corporation Pty Ltd (‘Jayco’) by Wheelahan J:[10]

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.[11]

  1. [48]
    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. [49]
    The remedy available to the consumer against the supplier depends in the first instance on whether the failure is a ‘major failure’.[12] Pursuant to s 259 of the ACL,[13] 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.[14] 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.[15]
  1. [50]
    Ms Schmidt has had the vehicle repaired and does not appear to be alleging that the defect with the vehicle is a major failure. In addition, Ms Schmidt has not sought at any stage to seek to reject the vehicle and seek a refund.
  2. [51]
    In the circumstance it is not necessary for the Tribunal to unpack in detail the definition of major failure as Ms Schmidt 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 Ms Schmidt regardless of whether the defect was or was not a major failure.
  3. [52]
    While in other circumstances, issues arising with an engine or catalytic converter, requiring replacement within the first 6-12 months 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 12 years old and had been driven a 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 in relation to the engine and/or catalytic converter would not be a major failure.
  4. [53]
    The ACL provides remedies when the failure to comply with the guarantee can be remedied and it is not a major failure.[16] 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.[17]
  1. [54]
    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.

Findings

  1. [55]
    This issues to be determined is whether the vehicle was of acceptable quality at the time of supply and if it was not of acceptable quality, did Ms Schmidt request Kevin Butler Wholesale remedy the failure within a reasonable time and did they refuse or fails to comply with the requirement within a reasonable time.
  2. [56]
    As noted in Jayco[18] it is reasonable to accept that some parts of a motor vehicle may have to be adjusted, repaired, or replaced within a manufacturer’s warranty period, but the extent of what is reasonable will depend on the nature of the vehicle. A consumer should not expect that a brand-new motor vehicle would come with defects that need to be repaired or replaced within the first 1-2 years, requiring the vehicle to be off the road for significant periods of time.
  3. [57]
    In relation to the question of whether this vehicle was of acceptable quality at the time of supply, the nature of the vehicle needs to be considered. In this case, the Mazda CX-7 was not new and was sold second hand as a ‘used car’, not as a new car or a near-new demonstrator vehicle, which is reflected in its price. The vehicle was manufactured 12 years prior, had travelled 186,000 km, and was purchased for $11,000. Accordingly, at the time of sale it could be regarded as a reasonably old vehicle which had travelled a significant distance in its 12 years of use. 
  4. [58]
    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.
  5. [59]
    Given the purchase price, the age of the vehicle and the odometer reading, a reasonable consumer would anticipate that there would likely be some mechanical defects or repairs required to such a vehicle within a short timeframe.
  6. [60]
    Following its purchase, the vehicle was operational and able to be driven, so that by the time the issue in relation to the engine arose/became known, the vehicle had driven 193,360 km. As such there is no evidence to support the contrary, the Tribunal finds that the Mazda CX-7 vehicle was fit for all purposes for which that vehicle is commonly supplied. There were no specific representations made by the respondent company in terms of the vehicle and there is no evidence that it was not of acceptable appearance, safe and durable at the time of supply. 
  7. [61]
    Therefore the only real issue is whether the vehicle was free from defects, at the time of purchase.
  8. [62]
    While there is evidence that the vehicle required an engine replacement or rebuild in July 2022 and there was a suspected blockage in the catalytic converters in November/December 2022, this is not sufficient to provide that vehicle had a defect at the time of purchase. While some defects lay dormant and are unknown to the consumer for a period of time, it is also possible for new issues to arise with vehicles, especially older vehicles which have been driven many thousands of kilometres, shortly after purchase, that were not present at purchase.
  9. [63]
    Ms Schmidt, as the applicant, bears the burden of establishing, on the balance of probabilities, that the vehicle was not free of defects, in that the defects complained of existed as at time of sale.
  10. [64]
    Ms Schmidt appears to be saying that the issues with the engine light, which occurred within weeks of the vehicle being purchased, were an indication of this underlying defect with the engine, which required it to have to be rebuilt after only driving 7,000 km. While it is possible that this is true, it is also possible, as asserted by Kevin Butler Wholesale, that the initial engine light issues were addressed by the replacement of the sensors, which is why the vehicle was able to be driven for several thousand kilometres, over three months, with no issue and it was only after a new issue arose, which was not present at purchase, that the engine needed to be rebuilt.
  11. [65]
    The difficulty is that the only evidence about the motor vehicle is in the tax invoices for the service and repairs of the vehicle. Ms Schmidt has not provided any expert evidence about any defects in the vehicle, other than the work completed in the service invoice. There is no information from the mechanic who Ms Schmidt said diagnosed the vehicle in July 2022 with needing an engine rebuild as the first invoice is from October 2023. There is also no information to show how long any defect may have been in the vehicle. While the invoices identified the issues with the vehicle at the time of service in October and December 2022, they provide no information as to when these defects likely occurred and if any were present at the time of purchase.
  12. [66]
    In terms of the catalytic converter, Ms Schmidt appears to be saying that as the issue with the catalytic converters being blocked has arisen only 7-8 months after Kevin Butler Wholesale told her the catalytic converters had been cleaned (and some of that time the vehicle had not been driven due to the issue with the engine), it had to be an underlying defect that was present at the time of purchase.
  13. [67]
    The difficulty with the catalytic converter issue is that there is no clear evidence that there is a defect with the catalytic converters, let alone that the defect was present at the time of purchase. Again the only information provided was in the tax invoices, but they provide only a provisional or potential diagnosis stating, “catalytic converters seem blocked” and that they “suspect” a blockage to be the issue. The last invoice provided dated 21 December 2022 confirms the secondary catalytic converter was removed for testing.
  14. [68]
    When Ms Schmidt wrote to Kevin Butler Wholesale a week later on 29 December 2022, she confirmed the uncertainty as to the diagnosis of the catalytic converters confirming her request for compensation from Kevin Butler Wholesale did not include costs relating to the catalytic converter other than provisional work as “we don’t know on those at this stage’.
  15. [69]
    No evidence has been provided by Ms Schmidt post 19 December 2022 to confirm the outcome of any testing on the catalytic converters or to evidence that there was ever any confirmed defect with them. Ms Schmidt asserting she had no issues with her vehicle after the straight pipe was put in is not sufficient to evidence that there was a defect.
  16. [70]
    In terms of the catalytic converter, there is also a lack of evidence of Ms Schmidt requesting Kevin Butler Wholesale remedy the defect within a reasonable time and them refusing or failing to comply within a reasonable time.
  17. [71]
    Whilst the Tribunal accepts that the vehicle had defects in the engine which were rectified with an engine rebuild in October 2022, which were identified 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 23 February 2022.
  18. [72]
    In the circumstances, noting the age of the vehicle and that it had travelled over 186,000 km 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 issue was not identified until Ms Schmidt had driven the vehicle close to 7000 km, and there is no evidence provided to identify when the defect may have arisen, the Tribunal cannot be satisfied that these issues with the engine were present at the time of purchase, as opposed to occurring since purchase.
  19. [73]
    In addition, the Tribunal is not satisfied on the balance of probabilities that the vehicle had a blocked catalytic converter as the only diagnosis was provisional and the outcome of any testing was not provided.
  20. [74]
    In addition, the Tribunal finds that the work required to replace the oil filter spark plugs, water pump, anti-freeze and engine and gear box mounts, together with the tyre repair and air conditioner re-gassing did not indicate a defect and was not evidence of the vehicle being of unacceptable quality. These were minor service issues, which are within the range of repairs and maintenance that might be expected to be undertaken in a vehicle of this age and mileage. Accordingly, Ms Schmidt is not entitled to recover any costs associated with this work.
  21. [75]
    In the circumstances, the evidence is not sufficient to demonstrate that there were defects in the Mazda CX-7 vehicle at the time of purchase which meant it was not of an acceptable quality.
  22. [76]
    Accordingly, Ms Schmidt has no claim under the ACL or s 50A of the Fair Trading Act and is not entitled to recover any costs from Kevin Butler Wholesale associated with the repairs on her vehicle.
  23. [77]
    The starting point in terms of costs is that each party should pay their own costs and this should only be interfered with if it is in the interest of justices for the other party to pay the costs. As Ms Schmidt was unsuccessful in her application, it is not in the interest of justice to require Kevin Butler Wholesale pay her filing fee. Accordingly the request for costs is refused.

Orders

  1. [78]
    The order of the Tribunal is that the application is dismissed.

Footnotes

[1] This is based on the odometer reading on the invoice dated 13 October 2023 being 193,360 and Ms Schmidt’s statement that the vehicle sat her in her driveway for months between discovering the issue and being taken for repairs on 19 September 2023 and was only turned over once a week to keep the battery from going dead.

[2]  QCAT Act, ss 9-10.

[3]  This is calculated deducting the $1,000 payment under her externa warranty and $1,000 provided by Kevin Butler Wholesale.

[4]  ACL, s 54.

[5]  Material filed by Ms Schmidt on 29 July 2024.

[6]  ACL s 54(3).

[7]  [2022] FCA 344, [164].

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

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

[10]  [2020] FCA 1672, [27]. See also Sazdanoff-Haynes v MLS Wholesales Pty Ltd (n 8), [39]-[40].

[11] Jayco (n 10), [27]. See also Sazdanoff-Haynes (n 8), [39]-[40].

[12]  ACL, s 260.

[13]  Ibid, Schedule 2.

[14]  Ibid, s 259(3).

[15]  Ibid, s 259(2).

[16]  ACL, s 259(2).

[17]  Ibid, s 259(2)(b)(i)-(ii).

[18]  (2020) FCA 1672.

Close

Editorial Notes

  • Published Case Name:

    Schmidt v Kevin Butler Wholesale Pty Ltd

  • Shortened Case Name:

    Schmidt v Kevin Butler Wholesale Pty Ltd

  • MNC:

    [2024] QCAT 522

  • Court:

    QCAT

  • Judge(s):

    Member D Brown

  • Date:

    26 Nov 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
3 citations
Jump To
Cite 1 - [2020] FCA 1672
Cite 2 - [2020] FCA 1672
Cite 3 - [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
2 citations
Jump To
Cite 1 - [2020] QCAT 369
Cite 2 - [2020] QCAT 369
Sazdanoff-Haynes v MLS Wholesales Pty Ltd [2023] QCAT 37
1 citation
Jump To
Cite 1 - [2023] QCAT 37
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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