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Hu v Westpoint Auto Qld Pty Ltd[2021] QCATA 32

Hu v Westpoint Auto Qld Pty Ltd[2021] QCATA 32

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Hu v Westpoint Auto Qld Pty Ltd & Anor [2021] QCATA 32

PARTIES:

LOUISE JI HU

(applicant/appellant)

 

v

 

WESTPOINT AUTO QLD PTY LTD

(first respondent)

AND

HONDA AUSTRALIA PTY LTD

(second respondent)

APPLICATION NO/S:

APL205-20

ORIGINATING APPLICATION NO/S:

MVL002-19

MATTER TYPE:

Appeals

DELIVERED ON:

12 February 2021

HEARING DATE:

23 November 2020

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown, Presiding

Member Cranwell

ORDER:

Leave to appeal refused

CATCHWORDS:

TRADE AND COMMERCE – CONSUMER PROTECTION – GUARANTEES, CONDITIONS AND WARRANTIES IN CONSUMER TRANSACTIONS – where applicant purchased a car from the first respondent which was manufactured by the second respondent – where the applicant claimed there were many defects with the car including paint damage, uneven body panels and poor tinting on windows – where at first instance the adjudicator either found no evidence for the complaints or found the defects to be inconsequentially small – where the adjudicator rejected the applicant’s clam that the car’s gearbox was misrepresented – where the applicant’s claim for the return of the purchase price was dismissed – whether the adjudicator erred in dismissing the claim

Australian Consumer Law, s 260, s263

Fair Trading Act 1989 (Qld), s 50A

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s142, s 147, sch 3

Cachia v Grech [2009] NSWCA 232

Ericson v Queensland Building Services Authority [2013] QCA 391

Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388

McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577

QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41

REASONS FOR DECISION

  1. [1]
    Ms Hu bought a Honda Jazz motor vehicle from Westpoint. After taking delivery, for various reasons Ms Hu was unhappy with the vehicle. Ms Hu commenced proceedings in the tribunal seeking, among other orders, the recovery of the purchase price of the vehicle. The tribunal dismissed Ms Hu’s application.[1]
  2. [2]
    Ms Hu has appealed the tribunal’s decision.

Motor vehicle disputes – the jurisdiction of the tribunal

  1. [3]
    The jurisdiction of the tribunal in relation to claims about the sale and supply of motor vehicles is conferred by s 50A of the Fair Trading Act 1989 (Qld) (‘the FTA’).
  2. [4]
    Section 50A(1) states that a person may apply to the tribunal for an order for an action:
  1. (a)
    under a provision of the Australian Consumer Law (Queensland) listed in the table to this section; and
  1. (b)
    relating to a motor vehicle; and
  1. (c)
    seeking an amount or value of other relief of not more than $100,000.
  1. [5]
    The orders the tribunal may make are set out in s 50A(2).
  2. [6]
    The table to s 50A sets out a number of provisions of the Australian Consumer Law (Queensland) and the nature of the proceeding for each provision.

Appeals – the statutory framework

  1. [7]
    An appeal to the Appeal Tribunal on a question of law is as of right.[2] An appeal on a question of fact or mixed law and fact may only be made with the leave of the Appeal Tribunal.[3]
  2. [8]
    If an appeal is against a decision on a question of fact only or a question of mixed law and fact, and leave to appeal is granted, the appeal must be decided by way of rehearing with or without the hearing of additional evidence as decided by the appeal tribunal.[4] In deciding the appeal, the appeal tribunal may confirm or amend the decision, set aside the decision and substitute its own decision, or set aside the decision and return the matter to the tribunal for reconsideration.[5]
  3. [9]
    The relevant principles to be applied in determining whether to grant leave to appeal are: is there a reasonably arguable case of error in the primary decision?;[6] is there a reasonable prospect that the applicant will obtain substantive relief?;[7] is leave necessary to correct a substantial injustice to the applicant caused by some error?;[8] is there a question of general importance upon which further argument, and a decision of the appellate court or tribunal, would be to the public advantage?[9]
  4. [10]
    If an appeal involves a question of law, unless the determination of the error of law decides the matter in its entirety in the appellant’s favour, the proceeding must be returned to the tribunal for reconsideration.[10]

The decision at first instance

  1. [11]
    In 2019 Ms Hu purchased a Honda Jazz motor vehicle from Westpoint. After taking delivery of the vehicle, Ms Hu complained to Westpoint that the vehicle was damaged or had misaligned body parts, was not new, and did not match the description of the vehicle as advertised. The latter complaint related to the vehicle’s gearbox. It is appropriate to pause here to consider what Ms Hu’s complaint was about the gearbox.
  2. [12]
    The vehicle was fitted with a continuously variable transmission (CVT). A CVT is an automatic transmission that can change seamlessly through a continuous range of gear ratios. A CVT has no gears. However the CVT fitted to Ms Hu’s vehicle also had what could be described as a ‘manual’ mode. Using paddle shifters mounted behind the steering wheel, the driver could choose to drive the vehicle using seven pre-set gear ratios. In effect, the vehicle had one ‘gear’ and seven pre-set ‘speeds’. Ms Hu asserted she thought that she was purchasing a vehicle with seven gears.
  3. [13]
    Ms Hu made a number of other assertions regarding the vehicle and the conduct of the respondents.
  4. [14]
    Ms Hu first filed an application for a motor vehicle dispute in September 2019. Westpoint was named as the respondent. Ms Hu’s claim was broadly broken down into two limbs. Firstly, she claimed that she had been the victim of an overpayment scam. Ms Hu was to develop this theme over the course of the proceedings below and on appeal. The essence of this alleged overpayment scam was that Ms Hu paid for a new vehicle and what she received was not a new vehicle. Secondly, she claimed that the vehicle she purchased was not fitted with a ‘7 speeds CVT.’ Ms Hu sought a full refund of the purchase price she paid for the vehicle.
  5. [15]
    Ms Hu filed an amended application in November 2019. Again, Westpoint was named as the respondent. The claim by Ms Hu remained largely unchanged save for an increase in the quantum of the claim to include, among other things, interest paid on a home loan account.
  6. [16]
    A further amended application was filed by Ms Hu in November 2019 naming Honda Australia as the second respondent. Subsequent to the filing of the further amended application the tribunal ordered the joinder of Honda Australia as a respondent.
  7. [17]
    The respondents filed their responses subsequent to the filing of the further amended application.
  8. [18]
    The tribunal directed that the application be heard and determined on the papers.  On 3 July 2020 the tribunal dismissed Ms Hu’s application.
  9. [19]
    In addition to the complaint about the automatic transmission, Ms Hu particularised what she said were the defects in the vehicle as supplied:
    1. (a)
      The remote fobs for the vehicle were supplied in a damaged state: one was scratched, the other was chipped;
    2. (b)
      The paintwork on the vehicle was chipped;
    3. (c)
      The exhaust system was ‘aged’;
    4. (d)
      The vehicle had ‘uneven body parts line joins throughout’;
    5. (e)
      The two digital clocks in the vehicle were one minute apart;
    6. (f)
      The vehicle had ‘front compartment exposures’;
    7. (g)
      The doors of the vehicle were not level – ‘the passenger side of the doors are levelled, middle up, but unlevelled middle down;
    8. (h)
      There was repair damage marks on the roof of the vehicle;
    9. (i)
      The window tint was chipped;
    10. (j)
      The brakes made a ‘clicking sound’ when the vehicle was turned off;
    11. (k)
      Scratch marks were present inside the vehicle;
    12. (l)
      The side mirrors and internal rear vision mirror were ‘far different’;
    13. (m)
      The seats made ‘an awful sound’ when people entered and exited the vehicle;
    14. (n)
      The ‘seals of back screen can be rubbish storage to keep whatever might be blow into’;
    15. (o)
      The vehicle had a ‘swollen roof’.[11]
  10. [20]
    The learned adjudicator found:
    1. (a)
      The transmission of the vehicle had not been misdescribed;
    2. (b)
      Honda Australia did not sell or supply the vehicle to Ms Hu and had no case to answer;
    3. (c)
      There was no evidence of damage to the remote control fob;
    4. (d)
      There was no evidence that the vehicle has been supplied with second hand parts and in particular the exhaust system;
    5. (e)
      There was no evidence of uneven body parts and, even if some join lines were slightly uneven, this was commercially acceptable;
  1. [21]
    At the heart of the dispute between the parties are three issues:
    1. (a)
      Whether the nature and characteristics of the vehicle’s gearbox were misdescribed;
    2. (b)
      Whether the vehicle was otherwise defective in any respect;
    3. (c)
      Whether there was a concluded contract between Ms Hu and Westpoint for the purchase of the vehicle.

The grounds of appeal

  1. [22]
    In approaching the appeal we must confess to being confronted by many of the same problems identified by the learned adjudicator who observed that ‘(a) good deal of (Ms Hu’s) material … (is) nothing more than a disjointed, rambling discourse.’ It is difficult to discern the grounds of appeal from the Application for leave to appeal or appeal. The submissions filed by Ms Hu do not greatly assist. They are in part disorganised and incomprehensible and in part an attempt to reagitate her case at first instance.
  2. [23]
    Doing the best we can, the grounds of appeal have been distilled into the following broad categories:
    1. (a)
      The learned adjudicator did not have jurisdiction to hear and decide the matter;
    2. (b)
      The learned adjudicator erred in finding that Honda was not a supplier and in dismissing the claim by Ms Hu against Honda;
    3. (c)
      Error by the learned adjudicator in finding that there was a contract entered into between the parties for the purchase of the vehicle;
    4. (d)
      A failure by the learned adjudicator to take into consideration relevant evidence and error in preferring certain evidence;
    5. (e)
      Error by the learned adjudicator in failing to find that the vehicle had been misdescribed;
    6. (f)
      Error by the learned adjudicator in failing to find that the totality of the defects with the vehicle constituted a major failure.
  1. [24]
    The grounds of appeal raised by Ms Hu raise questions of fact and possibly mixed law and fact.

Consideration

The learned adjudicator did not have jurisdiction to hear and decide the matter

  1. [25]
    Ms Hu says that the adjudicator did not have jurisdiction to hear and decide the matter as the amount she was claiming exceeded $25,000.00.
  2. [26]
    Section 50D of the FTA provides:

For section 195(b) of the QCAT Act, an adjudicator may hear and decide a proceeding under section 50A if either or both of the following apply—

  1. (a)
    the amount or value of other relief sought in the proceeding is not more than $25,000;
  1. (b)
    an expedited hearing is to be conducted for the proceeding.
  1. [27]
    The amount claimed by Ms Hu in her further amended application was $25,090.  This included an amount of $345.80, being the filing fee.  Section 50C of the FTA enables the tribunal to award costs to an applicant in the amount of ‘any prescribed fee paid by the applicant on filing the application for the proceeding’.  The clear implication of this provision is that an amount claimed for costs is not to be included in the value of the relief otherwise sought by an applicant.  It follows that the principal relief claimed by Ms Hu was the amount of $24,744.20, which is less than $25,000.
  2. [28]
    In any event, directions were made on 26 February 2020 that the proceeding was to be conducted by way of an expedited hearing, enlivening the jurisdiction of an adjudicator to determine the proceeding under s 50D(b).
  3. [29]
    This ground of appeal is not made out.

Dismissing the claim against Honda

  1. [30]
    The learned adjudicator found that the evidence established Honda did not sell or supply the vehicle to Ms Hu and found that Honda had no case to answer. Ms Hu says that this was an error by the adjudicator and says that Honda was a supplier. When asked at the appeal hearing to explain the basis for this submission, Ms Hu was unable to do so.
  2. [31]
    In our view, while Honda did not supply the vehicle, the learned adjudicator erred in not considering the potential liability of Honda as the manufacturer under Division 2 of Part 5-4 of Chapter 4 of the ACL.
  3. [32]
    However, this error did not affect the outcome of the proceeding.  As noted above, the remedy claimed by Ms Hu was principally the recovery of the purchase price of the vehicle.  This is not a remedy in terms available against a manufacturer.  Section 272(1) of the ACL limits the remedies that may be recovered against a manufacturer as follows:
  1. (1)
    In an action for damages under this Division, an affected person in relation to goods is entitled to recover damages for:
  1. (a)
    any reduction in the value of the goods , resulting from the failure to comply with the guarantee to which the action relates, below whichever of the following prices is lower:
  1. (i)
    the price paid or payable by the consumer for the goods;
  1. (ii)
    the average retail price of the goods at the time of supply; and
  1. (b)
    any loss or damage suffered by the affected person because of the failure to comply with the guarantee to which the action relates if it was reasonably foreseeable that the affected person would suffer such loss or damage as a result of such a failure.
  1. [33]
    Ms Hu did not file any evidence as to the reduction in value of the vehicle due to any failure to comply with a consumer guarantee.  Nor did she establish any reasonably foreseeable loss or damage suffered by her because of any failure.  In the absence of at least one of these bases, there was no order for damages against Honda that could have been made by the learned adjudicator.
  2. [34]
    This ground of appeal is not made out.

Grounds of appeal relating to findings of fact

  1. [35]
    Ms Hu says that the tribunal erred in finding that she entered into a contract for the purchase of the vehicle.
  2. [36]
    Rule 7(1)(a) of the Queensland Civil and Administrative Tribunal Rules 2009 (Qld) requires that an application to the tribunal to deal with a matter must be made in the approved form.  The proceeding was commenced by Ms Hu filing a Form 60: ‘Application – Motor Vehicle Dispute’.  In Part D of the Form 60, Ms Hu indicated that s 50A of the FTA applied to her application.  Accordingly, we regard this as a proceeding to which s 50A of the FTA applies.
  3. [37]
    Proceedings to which s 50A of the FTA apply are not minor civil disputes.[12]  As noted above, s 50A(1)(a) limits the jurisdiction of the tribunal to actions ‘under a provision of the Australian Consumer Law (Queensland) listed in the table to this section’.  The table to s 50A sets out a number of provisions of the ACL and the nature of the proceeding for each provision.
  4. [38]
    Relevantly, the provisions of the ACL set out in the table to s 50A of the FTA do not extend to general contractual disputes.  The tribunal does not have jurisdiction in a motor vehicle dispute to entertain Ms Hu’s arguments as to the validity or otherwise of the contract, either in the proceedings below or on appeal.
  5. [39]
    Notwithstanding this conclusion, for the reasons which follow, we are unable to discern any error in the learned adjudicator’s finding that the parties had entered into a contract for the purchase of the vehicle.
  6. [40]
    In evidence below were the following documents:
    1. (a)
      a contract for the purchase of the vehicle, signed by Ms Hu and Westpoint, and dated 27 May 2019 (the contract). The contract provided for a total purchase price of $25,665.50. A deposit of $1,000.00 was recorded on the contract as having been paid by Ms Hu;
    2. (b)
      a letter of authority signed by Ms Hu and by Westpoint and dated 27 May 2019 authorising Westpoint to register the vehicle in her name. A ‘secondary customer’ was also recorded on the document, being Ms Hu’s daughter, Hannah Tam. Ms Tam’s signature does not appear on the document;
    3. (c)
      a contract for the purchase of the vehicle, signed by Ms Hu and Westpoint, and dated 31 May 2019 (the amended contract). The contract provided for a total purchase price of $23,995.00. The $1,000.00 deposit paid by Ms Hu was recorded on the contract. The contract also recorded that the balance of the purchase price, $22,995.00, had been paid by electronic funds transfer on 29 May 2019. The contract also acknowledged receipt by Ms Hu of delivery of the vehicle on 31 May 2019.
  1. [41]
    It would appear from the evidence before the tribunal below that Ms Hu attended at the premises of Westpoint on 27 May 2019. At that time she signed the contract and the letter of authority. In her evidence below, Ms Hu referred to the contract as a ‘quote’.[13] Ms Hu’s evidence was that she was not given a copy of the complete terms and conditions.[14] The contract stated ‘Terms and conditions and covenants attached to this document form part of this agreement’. If there was indeed no attachment to the contract, Ms Hu offers no explanation in her evidence as to why she signed the document. It seems apparent that on this date, Ms Hu paid to Westpoint a $1,000.00 deposit.[15]
  2. [42]
    After signing the contract Ms Hu advised Westpoint that she did not want to proceed with paint protection and leather protection.[16] Presumably, Westpoint agreed to vary the contract to remove the paint and leather protection. However the evidence below is that Ms Hu did wish the vehicle’s windows to be tinted. This variation presumably led to the preparation of the amended contract. The amended contract reflected the variation referred to, with a consequent reduction in stamp duty and GST. This resulted in a reduction in the total contract price to $23,995.00.  Consistent with the amended contract, Ms Hu paid the balance of the purchase price of $22,995.00 by electronic funds transfer on 29 May 2019.
  3. [43]
    The evidence before the tribunal was that on 30 May 2019 Ms Hu emailed Westpoint raising a number of concerns regarding the contract.[17] This would appear to relate to the amended contract as the email post dates the payment by Ms Hu of the balance of the purchase price. In the email, Ms Hu made no mention of a missing attachment. The issues raised by Ms Hu concerning the first contract related to the vehicle odometer reading, the absence of reference to 7 years free roadside assistance being included in the purchase price (in fact, this was included as a special condition), an issue regarding extending the manufacturer warranty beyond 7 years, and an issue regarding fixed price servicing. On 31 May 2019 Westpoint emailed Ms Hu to advise that the vehicle had been delivered to the showroom and addressed the issues raised by Ms Hu.[18] Westpoint also advised the odometer reading, that the documentation confirming the manufacturer warranty and roadside assistance would be provided to Ms Hu when she took delivery of the vehicle and that Ms Hu did not qualify for fixed price servicing as she had purchased the vehicle for a discounted amount. Westpoint advised that it could not understand the issue raised by Ms Hu about an extension of the manufacturer warranty.
  4. [44]
    On either 31 May 2019 or 1 June 2019 Ms Hu attended at Westpoint and took delivery of the vehicle. The second contract states that the date of delivery was 31 May 2019. In her evidence, Ms Hu said that she took delivery of the vehicle on 1 June 2019. Nothing turns on this discrepancy. It is not contentious that Ms Hu took delivery of the vehicle. 
  5. [45]
    If there was an issue in relation to whether a valid contract had been entered into between the parties, and noting that after taking delivery of the vehicle Ms Hu was not reluctant to voice her concerns about a great many issues, it seems likely that the matter would have been raised before Ms Hu paid the balance of the purchase price or at the time of delivery. 
  6. [46]
    Both below and in this appeal Ms Hu referred at some length to the letter of authority. Ms Hu says that the letter of authority was not signed by her daughter until after Ms Hu had paid the contract price. Although Ms Hu’s daughter’s name appears on the contract as a ‘customer’, she did not sign the contract. Why she did not do so is not clear on the evidence. It was not an issue agitated below or in the appeal. It is clear on the evidence that Ms Hu and Westpoint were the parties to the contract and the signatories to the contract. The letter of authority referred to by Ms Hu did not form part of the contract. It authorised Westpoint to register the vehicle in Ms Hu’s name and her daughter’s name. When or how it came to be signed was not, and is not, relevant to the issues in the proceedings below or in this appeal. 
  7. [47]
    In conclusion, the evidence is consistent with the parties having entered into the contract and subsequently agreeing to vary the contract to remove reference to certain after-market items.
  1. [48]
    This ground of appeal is not made out.
  1. [49]
    Ms Hu says that the learned adjudicator erred in failing to find that the vehicle had been misdescribed. When questioned at the appeal hearing to clarify this submission, Ms Hu said that the error by the learned adjudicator was in not taking into consideration evidence of the RACQ. This submission relates to the vehicle’s transmission. Ms Hu’s case below was that the vehicle was misdescribed as having 7 gears. In the proceedings below, Ms Hu relied upon a screen shot of a webpage apparently on the RACQ Insurance website. Ms Hu had entered details of the make and model of the vehicle. The RACQ website contained the following information about the vehicle: ‘City VTi-L MY19 – 4 Door Sedan – 1 Speed O FWD – 4 cylinders. 1.497L Petrol.’ Ms Hu says that the screen shot of the webpage is evidence that the vehicle had only 1 gear. As the learned adjudicator found, this is precisely what Ms Hu contracted to purchase, and did in fact receive.
  2. [50]
    In the proceedings below, Ms Hu deposed to having visited the website of Westpoint which advertised for sale the Honda City VTi-L. A copy of the website page was attached to Ms Hu’s affidavit.[19] The vehicle is described as having a ‘7 speed constant variable transmission’. Ms Hu relied upon a tax invoice prepared by a mechanic to support her claim that the vehicle had been misdescribed.[20] Unfortunately that evidence does not assist Ms Hu. The mechanic stated that the transmission of the vehicle purchased by Ms Hu was a ‘1 gear 7 speed gearbox’.
  3. [51]
    There was no evidence before the learned adjudicator that the vehicle was other than described as, variously, having a CVT transmission with 7 speeds. As the learned adjudicator observed when explaining the workings of a CVT transmission, the mechanic’s description of the gearbox, relied upon by Ms Hu, was itself misleading. As the adjudicator observed a CVT transmission has no gears in the sense of a conventional automatic gearbox. It should also be noted that Ms Hu does not assert that the learned adjudicator’s description of the workings of a CVT transmission was incorrect. Whether Ms Hu understood what this meant is not to the point. There is no evidence from Ms Hu that she did not understand what a CVT transmission was, or that she sought clarification from Westpoint in this regard. Ms Hu purchased a vehicle that met the description given by Westpoint.
  4. [52]
    There was no error by the learned adjudicator.
  5. [53]
    As to the other complaints by Ms Hu regarding the vehicle and the findings of fact by the learned member which Ms Hu says were made in error:
    1. (a)
      Wing mirrors. Ms Hu’s original complaint was that the side mirrors and internal rear vision mirror were ‘far different’. Ms Hu says that the evidence of the mechanic was that the wing mirrors did not mirror the same image. It is unclear from Ms Hu’s submissions what the ‘same image’ means. The mechanic makes no mention of the internal rear-view mirror. Apart from the brief statement by the mechanic, there was no evidence as to whether the issue constituted a defect. It could simply have been a matter of the mirrors requiring adjustment. It hardly seems surprising that the wing mirrors did not mirror the same image – after all they are on different sides of the vehicle.
    2. (b)
      Window tinting. The learned adjudicator found that if there was bubbling of the window tinting, the work itself was the subject of a guarantee and that the vehicle was booked in on 18 June 2018 to address any other issues. Ms Hu cancelled the booking. The evidence supports the findings by the learned adjudicator.[21] 
    3. (c)
      Paint work.  Ms Hu provided a colour photograph which she said showed chipped paintwork.[22]  The learned adjudicator found that the paint blemish depicted in a colour photograph provided by Ms Hu was ‘infinitesimal’ and ‘barely detectable except at very close range’.  We consider this characterisation to be accurate.
    4. (d)
      Odometer reading. The learned member found that the odometer reading may have been higher than 20km when the vehicle was delivered. There was no evidence that the actual reading was any higher than 30km. The learned adjudicator considered the matter inconsequential. We agree.
  6. [54]
    There was no error by the learned adjudicator in relation to the factual findings to which we have referred and which are the subject of the submissions by Ms Hu.

Did the totality of the defects with the vehicle constitute a major failure?

  1. [55]
    We have found no error by the learned member in finding that the vehicle had not been misdescribed. We have found no error by the learned member in his findings regarding the alleged defects in the vehicle. Ms Hu has confined her submissions in the appeal to those defects to which we have referred and the relevant findings by the learned adjudicator.
  2. [56]
    Ms Hu says that the various defective and damaged items she complains about constitute, cumulatively, a major failure.
  3. [57]
    A failure to comply with a consumer guarantee is a major failure if:
    1. (a)
      The goods would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of the failure; or
    2. (b)
      The goods depart (in one or more significant ways) from their description, sample or demonstration model; or
    3. (c)
      The goods are substantially unfit for a purpose for which goods of the same kind are commonly supplied and they cannot, easily and within a reasonable time, be remedied to make them fit for such a purpose; or
    4. (d)
      The goods are unfit for a disclosed purpose that was made known to the consumer or any person engaged in negotiations and the provider of the goods cannot easily remedy it within a reasonable time; or
    5. (e)
      The goods are not of acceptable quality because they are unsafe.[23]
  4. [58]
    The matters complained of by Ms Hu were extremely minor in nature as the learned adjudicator found. Even accepting the complaints made by Ms Hu, on no view of the evidence was there a major failure. Given the minor nature of the complaints it could not be said that the vehicle would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of the issues identified as a whole. Nor could it be said that any of the alleged issues make the vehicle substantially unfit for purpose or unsafe. There is no substance in Ms Hu’s submission.
  5. [59]
    For completeness, we note that the remedies available to Ms Hu for a failure which is not a major failure are set out in s 259(2) of the ACL as follows:
  1. (1)
    If the failure to comply with the guarantee can be remedied and is not a major failure:
  1. (a)
    the consumer may require the supplier to remedy the failure within a reasonable time; or
  1. (b)
    if such a requirement is made of the supplier but the supplier refuses or fails to comply with the requirement, or fails to comply with the requirement within a reasonable —time – the  consumer may:
  1. (i)
    otherwise have the failure remedied and, by action against the supplier, recover all reasonable costs incurred by the consumer in having the failure so remedied; or
  1. (ii)
    subject to section 262, notify the supplier that the consumer rejects the goods and of the ground or grounds for the rejection.
  1. [60]
    The learned adjudicator found that Westpoint offered to repair the window tinting and paintwork promptly.  In these circumstances, Ms Hu has exhausted her remedies under s 259(2).

Alternative ground of disposition

  1. [61]
    In this appeal, Ms Hu filed a copy of the registration renewal notice for the vehicle.  The notice is in the names of Ms Hu and Ms Tam, indicating that they are co-owners of the vehicle.
  2. [62]
    If there had been proper grounds for rejecting the vehicle, the effect of s 263(6) of the ACL is that property in the vehicle would have revested in Westpoint as the supplier upon notification of the rejection.  It is trite to state that property in goods cannot be transferred without the agreement of all of the owners in the goods.
  3. [63]
    There is no evidence either below or in this appeal that Ms Tam rejected the vehicle, or that she consented Ms Hu rejecting the vehicle on her behalf.  Ms Tam is also not a party to the proceedings and did not give evidence.  In these circumstances, the purported rejection of the vehicle by Ms Hu alone was ineffectual.
  4. [64]
    The appeal must fail.

Conclusion

  1. [65]
    Ms Hu has not established any error by the learned adjudicator capable of altering the outcome of the proceeding. As the grounds of appeal require leave to appeal, the appropriate order is that leave to appeal is refused.

Footnotes

[1] Hu v Westpoint Auto Qld Pty Ltd and Honda Australia Pty Ltd, unreported QCAT MVL 2/2019, 3 July 2020.

[2] Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), s 142(1).

[3] Ibid, s 142(3)(b).

[4] Ibid, ss 147(1), (2).

[5] Ibid, s 147(3).

[6] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.

[7] Cachia v Grech [2009] NSWCA 232, [13].

[8] Op cit 6.

[9] Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, 578, 580.

[10]  Ericson v Queensland Building Services Authority [2013] QCA 391.

[11] Affidavit of Louise Hu dated 24 August 2019.

[12] See the definition of ‘minor civil dispute’ in Schedule 3 to the QCAT Act.

[13] Affidavit of Louise Hu dated 21 August 2019, attachment LH1

[14] Affidavit of Louise Hu dated 21 August 2019, attachment LH1

[15] Affidavit of Louise Hu dated 21 August 2019, attachment LH1

[16] Affidavit of Louise Hu dated 21 August 2019, attachment LH1

[17] Affidavit of Louise Hu dated 21 August 2019, attachment LH1

[18] Affidavit of Louise Hu dated 21 August 2019, attachment LH1

[19] Affidavit of Louise Hu dated 21 August 2019, attachment LH1.

[20] Affidavit of Louise Hu dated 20 November 2019, attachment LH1.

[21] Affidavit of Louise Hu dated 24 August 2019, attachment LH9.

[22] Affidavit of Louise Hu dated 24 August 2019, attachment LH5.

[23] Australian Consumer Law, s 260.

Close

Editorial Notes

  • Published Case Name:

    Hu v Westpoint Auto Qld Pty Ltd & Anor

  • Shortened Case Name:

    Hu v Westpoint Auto Qld Pty Ltd

  • MNC:

    [2021] QCATA 32

  • Court:

    QCATA

  • Judge(s):

    Senior Member Brown, Member Cranwell

  • Date:

    12 Feb 2021

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
Cachia v Grech [2009] NSW CA 232
2 citations
Jump To
Cite 1 - [2009] NSW CA 232
Cite 2 - [2009] NSW CA 232
Ericson v Queensland Building Services Authority [2013] QCA 391
2 citations
Jump To
Cite 1 - [2013] QCA 391
Cite 2 - [2013] QCA 391
Glenwood Properties Pty Ltd v Delmoss Pty Ltd[1986] 2 Qd R 388; [1986] QSC 221
2 citations
Jump To
Cite 1 - [1986] 2 Qd R 388
Cite 2 - [1986] 2 Qd R 388
McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd[1989] 2 Qd R 577; [1989] QSCFC 53
2 citations
Jump To
Cite 1 - [1989] 2 Qd R 577
Cite 2 - [1989] 2 Qd R 577
QUYD Pty Ltd v Marvass Pty Ltd[2009] 1 Qd R 41; [2008] QCA 257
2 citations
Jump To
Cite 1 - [2009] 1 Qd R 41
Cite 2 - [2009] 1 Qd R 41

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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