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Nadalin v Hartl QCATA 55
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Nadalin v Hartl  QCATA 55
UMBERTO PAOLA NADALIN
ORIGINATING APPLICATION NO:
23 April 2019
On the papers
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – where Justices of the Peace decided an application in respect of a defective car solely under the Australian Consumer Law – where the applicant was relying on the statutory warranty under the Motor Dealers and Chattel Auctioneers Act 2014 (Qld) – whether there was an error of law
Motor Dealers and Chattel Auctioneers Act 2014 (Qld), Schedule 1
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 146
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’).
REASONS FOR DECISION
- Umberto Paola Nadalin applied to the tribunal for an order against Andrew Hartl trading as Motorhub QLD, a motor dealer. This application concerned an Audi A5 motor car, then 9 years old, with 136,686 km on the odometer. Mr Nadalin paid $17,999 or possibly $17,000, for the car.
- Mr Nadalin discovered certain defects in the car and asked the dealer to repair them. The dealer refused, and Mr Nadalin claimed against him in the tribunal the sum of $1,700 being his expenditure already incurred to rectify defects, and a further $2,000 in respect of other defects not yet rectified.
- The matter was heard on 6 August 2018 by Justices of the Peace sitting as a panel in the tribunal.
- The Appeal Tribunal has obtained a transcript of the hearing. The panel heard from Mr Nadalin who was on the telephone, and from the dealer who was in person. The panel read the documents submitted by them both.
- The order made at the hearing was:-
- Respondent is to provide the correct door activator and install at its cost; the Applicant is required to book an appointment.
- Respondent is to pay $250 towards cost of repair or replacement of CD.
- Mr Nadalin told the panel that he was aware of the problem with the door actuator prior to the purchase and the dealer had provided a part, but it was the wrong one. He said that he discovered that the CD player was not working when first driving the car. He notified the dealer about this immediately by phone.
- Mr Nadalin also complained about other alleged defects but was unsuccessful in relation to those. In particular, he had received a report from Audi dealers seven days after purchasing the car which identified sagging engine mounts and split bushes in the front suspension link. He had paid to repair these himself. There was some evidence given at the hearing about what had been said about these particular items on a pre-purchase inspection and by mechanics after the purchase.
- The appeal is made on three grounds, which can be identified both from the application for leave to appeal or appeal and from the submissions in support of the appeal:-
- (a)Ground 1. The panel failed to consider strict liability statutory warranties correctly, which provide cover for 5,000 km and/or 3 months.
- (b)Ground 2. The $250 awarded for the repair and replacement of the CD was insufficient on the evidence. There was a quote for the replacement of the CD system for $1,800.
- (c)Ground 3. Various contentions about the panel’s failure properly to consider the documents and evidence and to apply the correct weight to them.
- As for ground 1, it is clear from the transcript that the panel dealt with the claim solely under the Australian Consumer Law (‘ACL’). This is not surprising because it is the main law covering sales of defective car claims and the vast majority of such claims are dealt with under the ACL.
- In his application Mr Nadalin sought to rely on the statutory warranty and did not mention the ACL at all. Many applicants in sales of defective car claims do refer to consumer law generally as providing ‘statutory warranties’ so it can be very unclear in such claims as to which law they refer.
- For this reason, and also because applicants are not expected precisely to know the law which applies to a particular set of facts, the tribunal strives to identify the correct law. This accords also with the tribunal’s statutory obligations.
- This means that in a sale of defective car claim the tribunal will consider whether the ACL applies and if so apply it accordingly. But it also means that the tribunal needs to consider whether the statutory warranty law applies, and if so apply that law. The two laws do not exclude each other and in fact will overlap to some extent. They are also quite different in many respects. An important difference for this case is that the ACL does reflect to some degree actual knowledge of the purchaser about defects at the time of purchase, whereas such knowledge is irrelevant in a statutory warranty claim, the tests being purely objective.
- It is notable in this case that Mr Nadalin did refer on a number of occasions during the hearing to the 5,000 km and/or 3 months statutory warranty, and the panel also referred to the statutory warranty. So the panel were alert to the need to consider the statutory warranty provisions and make findings on it. Instead, the panel only dealt with liability under the ACL. This was an error of law which needs to be corrected on appeal as far as the Appeal Tribunal is able to do so. Ground 1 of the appeal therefore succeeds.
- The question arises as to what should be done to correct this error. This depends on whether sufficient evidence has already been given, and sufficient factual findings have been made, which enable the Appeal Tribunal to deal with the appeal by itself deciding the statutory warranty claim, subject of course to Grounds 2 and 3 of the appeal.
- The statutory warranty provisions are in Schedule 1 of the Motor Dealers and Chattel Auctioneers Act 2014 (Qld). Section 2 provides that a vehicle has a ‘defect’ if (a) a part of the vehicle does not perform its intended function; or (b) a part of the vehicle has deteriorated to an extent where it can not reasonably be relied on to perform its intended function. Some things are excluded by section 8, such as defects in the paintwork or upholstery which should have been apparent on inspection, and defects caused by accidental damage or misuse of the vehicle. By section 3, a ‘warranted vehicle’ is one which is no more than 10 years old with an odometer reading of less than 160,000 km. By section 4 the warranty expires when either the vehicle travels 5000 km or 3 months after the purchaser takes possession of it. When the provisions apply, by section 7 the dealer warrants that the vehicle is free from defects (as defined) at the time of taking possession and also during the period of the warranty. The dealer also warrants that defects reported during the period of the warranty will be repaired by the dealer free of charge.
- Remedies are covered by sections 9 to 14. Basically, the purchaser must notify the dealer in writing of a defect before the end of the warranty period and deliver the vehicle to the dealer or a nominee for repair (depending on the distances involved) unless the dealer refuses to accept it. By section 13, if the dealer has refused to accept the defect is covered by the warranty or having accepted that it is covered but has failed to repair the defect, then the purchaser can apply to the tribunal.
- In this particular case evidence will be required so that the tribunal can determine whether Mr Nadalin has a remedy under these statutory warranty provisions. In particular, whether (a) any of the complaints about the car fall into the definition of ‘defect’ in section 2 and (b) whether Mr Nadalin followed the statutory warranty procedure sufficient to give the tribunal jurisdiction to deal with the matter. Further or in the alternative, the tribunal will need to reconsider the application under the Australian Consumer Law.
- Because further evidence will be required to resolve these issues, the Appeal Tribunal’s only power is to remit the matter for reconsideration. This is because, when deciding appeals on a question of law only, the Appeal Tribunal is unable to make findings of fact. This is for the tribunal below.
- Since the matter will be reconsidered at a fresh hearing it is inappropriate and unnecessary to consider Grounds 2 and 3 of the appeal.
- In the circumstances leave to appeal is granted. The appeal is allowed and the decision is returned to the tribunal for rehearing.
- Published Case Name:
Umberto Paola Nadalin v Andrew Hartl
- Shortened Case Name:
Nadalin v Hartl
 QCATA 55
23 Apr 2019