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Knox v Tait Motors Pty Ltd t/as Tait Auto Group[2021] QCATA 87

Knox v Tait Motors Pty Ltd t/as Tait Auto Group[2021] QCATA 87

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Knox v Tait Motors Pty Ltd t/as Tait Auto Group [2021] QCATA 87

PARTIES:

KENNETH WILLIAM KNOX

(applicant/appellant)

v

TAIT MOTORS PTY LTD T/AS TAIT AUTO GROUP

(respondent)

APPLICATION NO:

APL179-20

ORIGINATING

APPLICATION NO:

MVL010-19

MATTER TYPE:

Appeals

DELIVERED ON:

8 July 2021

HEARING DATE:

11 March 2021

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown

Member Traves

ORDERS:

  1. Leave to appeal is granted;
  2. The appeal is allowed;
  3. The decision of the tribunal made 4 June 2020 is set aside;
  4. Kenneth William Knox must arrange for the return of the Holden Colorado motor vehicle to Tait Motors Pty Ltd t/as Tait Auto Group within twenty-eight (28) days of the date of this decision;
  5. Upon compliance by Kenneth William Knox with order 4, Tait Motors Pty Ltd t/as Tait Auto Group must pay to Kenneth William Knox the amount of $39,251.87.

CATCHWORDS:

TRADE AND COMMERCE – COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION – CONSUMER PROTECTION – GUARANTEES, CONDITIONS AND WARRANTIES IN CONSUMER TRANSACTIONS – where the applicant/appellant bought a vehicle from the respondent – where the vehicle used excessive amounts of oil – where the solution was a full engine replacement – where the buyer requested a refund of the purchase price – where this was rejected by the seller – whether the excessive oil usage amounted to a major fault with the vehicle

Australian Consumer Law, s 54, s 259, s 260, s 262, s 263

Competition and Consumer Act 2010 (Cth), Schedule 2

Consumer Guarantees Act 1993 (NZ), s 20

Fair Trading Act 1989 (Qld), s 50A

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142, s 146, s 147

Australian Competition and Consumer Commission v Jayco Corporation Pty Ltd [2020] FCA 1672

Baas v JB Hi Fi Group Pty Ltd [2021] NSWCATAP 10

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

Harrison & Anor v Meehan [2017] QCA 315

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

Medtel Pty Ltd v Courtney (2003) 130 FCR 182 per Branson J

Nesbit v Porter [2000] 2 NZLR 465

Pickering & Anor v McArthur [2010] QCA 341

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

Rintoul v State of Queensland & Ors [2018] QCA 20

Vautin v BY Winddown, Inc (No 4) [2018] FCA 426

APPEARANCES &

REPRESENTATION:

Applicant:

Self represented

Respondent:

Self represented

REASONS FOR DECISION

  1. [1]
    Mr Knox purchased a Holden Colorado motor vehicle from Tait Motors. The Holden Colorado is a four wheel drive utility with a diesel engine. Mr Knox claimed that the vehicle was defective. He commenced proceedings in the tribunal seeking a refund of the purchase price. The tribunal dismissed Mr Knox’s application.[1] Mr Knox appeals the decision.

The grounds of appeal

  1. [2]
    Mr Knox relies upon 6 grounds of appeal:
    1. Ground 1 – the tribunal erred in finding that Mr Knox had not filed a statement of evidence and failed to take into consideration his evidence;
    2. Ground 2 – the tribunal erred in failing to take into consideration evidence regarding the knowledge of Tait Motors about excessive oil consumption by Holden Colorados;
    3. Ground 3 – the tribunal erred in finding that Tait Motors was not aware until 2017 that Holden Colorados manufactured in 2015 had problems with excessive oil use;
    4. Ground 4 – the tribunal erred in failing to give appropriate weight to the evidence of Mr Knox as to problems with the vehicle, apart from excessive oil consumption, which themselves resulted in the vehicle not being of acceptable quality;
    5. Ground 5 – the tribunal erred in failing to take into consideration evidence that Tait Motors had engaged in misleading and deceptive conduct;
    6. Ground 6 – the tribunal erred in not permitting Mr Knox to rely upon evidence at the hearing.

The hearing below

  1. [3]
    To understand the grounds of appeal it is necessary to consider briefly the background to the dispute and the findings by the tribunal below.
  2. [4]
    Mr Knox purchased a 2015 Holden Colorado from Tait Motors in December 2015. In December 2016 and again in April 2017 Mr Knox notified Tait Motors that the vehicle was using excessive amounts of oil. The vehicle subsequently underwent testing to ascertain whether its oil usage was within design parameters. After it was identified that the oil usage exceeded design intent, the manufacturer replaced the engine. Notwithstanding the replacement of the engine, Mr Knox said that the vehicle continued to use excessive amounts of oil. Mr Knox also complained about other issues relating to the vehicle.
  3. [5]
    Mr Knox commenced proceedings in the tribunal.
  4. [6]
    The hearing took place on 1 June 2020. The parties and witnesses appeared at the hearing by telephone. The tribunal’s decision was handed down on 4 June 2020. The tribunal found:
    1. There was no evidence that when Mr Knox purchased the vehicle Tait Motors had been advised by the manufacturer that 2015 build Colorados suffered from excessive oil consumption;
    2. After purchase, the vehicle consumed oil outside design intent;
    3. The manufacturer agreed to replace the vehicle’s engine;
    4. The vehicle was off the road for 9 days while the engine was replaced;
    5. The cause of the excessive oil use was excessive cylinder bore roughness;
    6. The defect was present when Mr Knox purchased the vehicle;
    7. As a result, at the time of purchase by Mr Knox, the vehicle was not of acceptable quality;
    8. In the absence of expert evidence in relation to issues relating to the flywheel, gearbox selector and air conditioner which were identified at the time of the engine replacement, the tribunal was not satisfied that these issues resulted from the vehicle not being of acceptable quality at the time Mr Knox took possession of the vehicle;
    9. In the absence of appropriate evidence the tribunal was not satisfied that, following the engine replacement, the vehicle continued to use excessive amounts of oil;
    10. In the absence of expert evidence in relation to other complaints made by Mr Knox regarding the vehicle, including with the differential, the tribunal was not satisfied that these issues resulted from the vehicle not being of acceptable quality at the time Mr Knox took possession of the vehicle;
    11. There had been no major failure in respect of the vehicle for the purposes of s 260 of the Australian Consumer Law (ACL);
    12. Mr Knox had exhausted his remedies under s 259(2) of the ACL;
    13. The tribunal was not satisfied that Tait Motors had engaged in misleading or deceptive conduct for the purposes of s 18(1) of the ACL.

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 requires the leave of the Appeal Tribunal.[3]
  2. [8]
    In deciding an appeal on a question of law only, 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 (either as originally constituted or differently constituted) for reconsideration.[4]
  3. [9]
    Subject to leave to appeal being granted, if an appeal is against a decision on a question of fact only or a question of mixed law and fact the appeal must be decided by way of rehearing with or without the hearing of additional evidence as decided by the appeal tribunal.[5] 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 (either as originally constituted or differently constituted) for reconsideration.[6]
  4. [10]
    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?;[7] is there a reasonable prospect that the applicant will obtain substantive relief?;[8] is leave necessary to correct a substantial injustice to the applicant caused by some error?[9]; 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?[10]
  5. [11]
    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.[11]
  6. [12]
    If different grounds of appeal raise questions of law and questions of fact or mixed law and fact, it is appropriate to address first those grounds involving questions of fact or mixed law and fact. If leave to appeal is granted then the appeal must be decided by way of rehearing and all of the matters the subject of the grounds of appeal should be dealt with in the rehearing although the Appeal Tribunal is not required to address distinctly each question raised by an appellant.[12] It is sufficient that the reasons of the Appeal Tribunal explain how its conclusion is reached.[13]

Application to adduce fresh evidence

  1. [13]
    Before turning to consider the grounds of appeal it is necessary to address the application by Mr Knox to rely upon fresh evidence.
  2. [14]
    The fresh evidence is a service bulletin dated 17 July 2014. The document is referred to in the decision below.[14] Mr Knox says that it has come to his attention that the document did not print in its complete form leaving out the relevant vehicle year models. It was in this incomplete form that the document went into evidence below. Mr Knox says that the relevance of the complete document is that it shows the manufacturer was aware that 2015 Colorado models were affected by excessive engine oil consumption in July 2014 when the bulletin was issued.
  3. [15]
    The principles in relation to the admission of fresh evidence are well established:[15]
    1. The evidence could not have been available with reasonable diligence for the original hearing;
    2. The evidence would probably have produced a different result in the first hearing;
    3. The evidence is credible.
  4. [16]
    For fresh evidence to permitted on appeal, all of these requirements must be satisfied.
  5. [17]
    Mr Knox offers no explanation as to why the evidence was not made available at the hearing below. He says that it has ‘come to his attention’ that the document did not print in its complete form. This rather vague explanation does not speak of diligence on the part of Mr Knox in presenting his evidence. Indeed, Mr Knox makes no real attempt to explain why the complete document could not have been produced to the tribunal.
  6. [18]
    In our view, had Mr Knox acted diligently, the document could have been available for the hearing below.
  7. [19]
    In any event, it is difficult to apprehend why the document would have produced a different result in the first hearing. The learned member found that Mr Knox’s vehicle used excessive engine oil caused by excessive cylinder bore roughness ‘having regard to service bulletins and letters issued by Holden.[16] This finding was favourable to Mr Knox. The document is not likely to have led to any different or more favourable finding for Mr Knox in the proceedings below. The learned member found that the failure to comply with the guarantee of acceptable quality was not a major failure. The document sought to be adduced by Mr Knox is not relevant to the determination of the question whether the failure to comply with the guarantee of acceptable quality was a major failure. The document is unlikely to have had any impact on the outcome below.
  8. [20]
    It follows that the application to rely upon fresh evidence must be refused.

Consideration

  1. [21]
    Before turning to consider each of the grounds of appeal it is appropriate to make some observations regarding the Australian Consumer Law, the guarantee under the ACL that goods are of acceptable quality and the distinction between major failures and non-major failures.
  2. [22]
    Of relevance for present purposes, s 54 of the ACL provides:
  1. (1)
    If:
  1. (a)
    a person supplies, in trade or commerce, goods to a consumer; and
  2. (b)
    the supply does not occur by way of sale by auction;

there is a guarantee that the goods are of acceptable quality.

  1. (2)
    Goods are of acceptable quality if they are as:
  1. (a)
    fit for all purposes for which goods of that kind are commonly supplied; and
  1. (b)
    acceptable in appearance and finish; and
  1. (c)
    free from defects; and
  1. (d)
    safe; and
  1. (e)
    durable;

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

  1. (3)
    The matters for the purposes of subsection (2) are:
  1. (a)
    the nature of the goods; and
  1. (b)
    the price of the goods (if relevant); and
  1. (c)
    any statements made about the goods on any packaging or label on the goods; and
  1. (d)
    any representation made about the goods by the supplier or manufacturer of the goods; and
  1. (e)
    any other relevant circumstances relating to the supply of the goods.

…

  1. (6)
    Goods do not fail to be of acceptable quality if:
  1. (a)
    the consumer to whom they are supplied causes them to become of unacceptable quality, or fails to take reasonable steps to prevent them from becoming of unacceptable quality; and
  1. (b)
    they are damaged by abnormal use.
  1. [23]
    It should be noted that s 54 is not a guarantee of perfection. Rather, reference must be had to the matters set out in s 54(3) and the particular circumstances of the case in determining whether particular goods are of acceptable quality.
  2. [24]
    The question as to whether a reasonable consumer would consider goods as being acceptable is to be determined at the time of supply. Information about the goods acquired by a consumer after the time of supply may be relevant in determining whether the goods were of acceptable quality at the time of supply.[17]  Importantly, where the supplier claims that the failure arose after the goods were supplied, the onus is upon the supplier to prove that is the case.[18] That onus may be discharged based on circumstantial evidence.[19]
  3. [25]
    A supplier of goods is liable to a consumer to remedy a failure to comply with a guarantee of acceptable quality or fitness for purpose within a reasonable time, or for compensation where the supplier refuses or fails to comply with the requirement to remedy the failure. If the failure to comply with the guarantee cannot be remedied, or the failure is a major failure, the consumer may reject the goods. If the consumer rejects the goods, the supplier must, in accordance with an election made by the consumer, refund any money paid by the consumer for the goods, or replace the rejected goods with goods of the same type and of similar value, if such goods are reasonably available to the supplier.
  4. [26]
    Section 259 of the ACL provides:

259 Action against suppliers of goods

  1. (1)
    A consumer may take action under this section if:
  1. (a)
    a person (the supplier) supplies, in trade or commerce, goods to the consumer; and
  1. (b)
    a guarantee that applies to the supply under Subdivision A of Division 1 of Part 3–2 (other than sections 58 and 59(1)) is not complied with.
  1. (2)
    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, 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. (3)
    If the failure to comply with the guarantee cannot be remedied or is a major failure, the consumer may:
  1. (a)
    subject to section 262, notify the supplier that the consumer rejects the goods and of the ground or grounds for the rejection; or
  1. (b)
    by the action against the supplier, recover compensation for any reduction in the value of the goods below the price paid or payable by the consumer for the goods.
  1. (4)
    The consumer may, by action against the supplier, recover 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.
  1. (5)
    Subsection (4) does not apply if the failure to comply with the guarantee occurred only because of a cause independent of human control that occurred after the goods left the control of the supplier.
  1. (6)
    To avoid doubt, subsection (4) applies in addition to subsections (2) and (3).
  1. (7)
    The consumer may take action under this section whether or not the goods are in their original packaging.
  1. [27]
    As s 259(3) makes clear, a consumer may reject goods if the failure to comply with a guarantee is a major failure. What constitutes a major failure to comply with a guarantee is set out at s 260 of the ACL:

260 When a failure to comply with a guarantee is a major failure

A failure to comply with a guarantee referred to in section 259(1)(b) that applies to a supply of goods 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
  1. (b)
    the goods depart in one or more significant respects:
  1. (i)
    if they were supplied by description — from that description; or
  1. (ii)
    if they were supplied by reference to a sample or demonstration model — from that sample or demonstration model; or
  1. (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
  1. (d)
    the goods are unfit for a disclosed purpose that was made known to:
  1. (i)
    the supplier of the goods; or
  1. (ii)
    a person by whom any prior negotiations or arrangements in relation to the acquisition of the goods were conducted or made;

and they cannot, easily and within a reasonable time, be remedied to make them fit for such a purpose; or

  1. (e)
    the goods are not of acceptable quality because they are unsafe.
  1. [28]
    Accordingly it can be seen from the operation of s 259 and s 260 of the ACL that consideration of whether a failure to comply with a guarantee is a major failure, first requires a determination of whether there has been a failure to comply with one of the guarantees found in Subdivision A of Division 1 of Part 3-2.
  2. [29]
    It is also clear from s 260 that not every failure in respect of goods will be a major failure. As was observed in Australian Competition and Consumer Commission v Jayco Corporation Pty Ltd,[20] in the context of a caravan sold which was alleged to be defective:

RVs, like many substantial consumer items such as motor vehicles, yachts, and even bicycles, are manufactured from a range of component parts, many of which may be capable of easy replacement or repair in the event of some fault. Some of the accessories, such as air conditioning units, televisions, or microwave ovens, may be manufactured by specialist suppliers of electrical appliances, and installed in the RV by the manufacturer or the supplier of the RV. Many of the component parts are designed for mechanical movement. RVs are intended to be towed. The process of towing will subject the RVs to stresses and flex. RVs will necessarily be exposed to weather. They are designed to be lived in, and otherwise to be used. Lids will be raised, and lowered. Doors will be opened, and shut. Drawers will be pulled out, and pushed in. RVs will be used by families with children, who sometimes lack fine motor skills when handling equipment. Surfaces may become scratched or chipped though normal use. An appliance installed in an RV, if found to be faulty, might be able to be easily repaired or replaced by a specialist supplier. Fuses may blow. Sometimes, just as in a household, the cause of an isolated occurrence of a blown fuse may not be apparent. Screws might have to be tightened. Doors might have to be straightened. These things are inherent in the nature of the goods. The reasonable consumer will tolerate some faults or breakages, and some need for adjustments of this type that are exposed by a period of initial use. The reasonable consumer will purchase an RV accepting that there is a reasonable prospect that some components of the RV may have to be adjusted, repaired, or replaced within a manufacturer’s warranty period. Putatively, if a reasonable consumer was fully acquainted with the nature and extent of a failure to comply with a statutory guarantee at the time of purchase, the reasonable consumer might nonetheless proceed with the purchase on the basis that the supplier, or the manufacturer, will remedy the failure within a reasonable time. On the other hand, it does not follow that merely because a failure to comply with a statutory guarantee is capable of being remedied, that a reasonable consumer fully acquainted with the nature and extent of the failure would acquire the goods. Whether that is so will depend upon the circumstances of each case.[21]

  1. [30]
    There may be a major failure in circumstances where the cumulative effect of a number of defects compels such a finding.[22]
  2. [31]
    Where there is a major failure in respect of the goods or the defect cannot be remedied, s 259(3) of the ACL applies and the consumer can either reject the goods or accept the goods and claim compensation for any reduction in value below the contract price. Where the failure is not a major failure then s 259(2) of the ACL applies and the consumer can require the supplier to remedy the defect but if this is not done the consumer can reject the goods or have the defect repaired themselves and claim the cost of this.
  3. [32]
    The entitlement of a consumer pursuant to s 259(2)(b)(ii) (where the failure is not a major failure and the supplier refuses or fails to remedy the failure) or s 259(3)(a) (where the failure is a major failure or where the defect cannot be remedied) to reject goods is qualified by s 262. A consumer must notify a supplier that the consumer rejects the goods within the “rejection period”. The “rejection period” for goods is defined in s 262(2) as follows:
  1. (2)
    The rejection period for goods is the period from the time of the supply of the goods to the consumer within which it would be reasonable to expect the relevant failure to comply with a guarantee referred to in section 259(1)(b) to become apparent having regard to:
  1. (a)
    the type of goods; and
  1. (b)
    the use to which a consumer is likely to put them; and
  1. (c)
    the length of time for which it is reasonable for them to be used; and
  1. (d)
    the amount of use to which it is reasonable for them to be put before such a failure becomes apparent.
  1. [33]
    While the term “rejection period” is defined[23] it does not specify a period for particular goods. For example, it does not refer to, or correlate with, a relevant statutory warranty period.[24] The rejection period is a matter of fact in each matter to be decided having regard to the matters listed in s 262(2).[25] In Jayco Pty Ltd, in considering the application of s 262(2), it was held:

…the rejection period is the period from the time of the supply of the goods to the consumer within which it would be reasonable to expect the relevant failure to become apparent. This is a reference to the failure to comply with the statutory guarantee becoming apparent, rather than any underlying defect becoming apparent, which may occur at an earlier point in time.[26]

  1. [34]
    In Nesbit v Porter[27] the New Zealand Court of Appeal held, in construing the equivalent New Zealand provision,[28] that the rejection period is one that:

...suffices to enable the consumer to become fully acquainted with the nature of the defect, which, where the cause of breakage or malfunction is not apparent, the consumer can be expected to do by taking the goods to someone, usually or preferably the supplier, for inspection. In this context, therefore, a defect is not ‘apparent’ until its cause has been identified and the buyer knows what has to be done to fix it, and what that will cost; in other words, until the buyer is in a position to determine whether the defect is substantial.

In some instances the defect will be of a kind where it may be obvious that something is wrong with the goods but the supplier or someone else to whom the consumer turns for help may be in doubt about the exact nature of the problem and thus about how serious it is. For example, the operation of a motor vehicle may be affected by the failure of a small and comparatively obscure part, say, a waver spring in an automatic transmission; until the transmission is dismantled a mechanic cannot be sure what the defect is. Or the cause of malfunction, particularly one which occurs intermittently, may be hard to detect even upon inspection. It may be necessary to carry out a series of tests or even to wait and see what, if anything, develops. Or the repairer may think the fault has been identified and that the correct repair or adjustment has been made but this view may prove to be wrong and the problem may manifest itself again. An example is to be found in the judgment of the District Court at Auckland in Cooper v Ashley & Johnson Motors Ltd [1997] DCR 170. In all such cases, a reasonable period will not elapse before the consumer has had the opportunity to become properly informed about the nature of the defect and has also had a little time then to consider an appropriate decision, whether or not to reject the goods. It almost goes without saying that the period will be correspondingly longer where the supplier has taken steps which effectively conceal a defect or has withheld relevant information.[29]

  1. [35]
    In terms of the time within which it would be reasonable to expect the failure to comply with a guarantee to become apparent it has been held:

… the section requires a sufficiently high level of certainty in relation to the knowledge of the relevant failure including its nature and extent and what it will cost to remediate it. If the level of knowledge required is as identified above, it follows that if there exists doubt about the consequences of a defect in an item and, therefore, the cost of repairing it, the failure of the statutory guarantee has not become apparent.[30]

  1. [36]
    Section 263 of the ACL deals with the consequences of the rejection of goods by a consumer. Subject to certain exceptions, the consumer must return the goods to the supplier and the supplier must, in accordance with the election made by the consumer, refund the money paid by the consumer or replace the goods.
  2. [37]
    Section 18(1) of the ACL prohibits misleading or deceptive conduct:

18  Misleading or deceptive conduct

  1. (1)
    A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.
  1. [38]
    The question whether conduct is misleading or deceptive, or likely to mislead or deceive, is an objective question of fact.[31] The relevant test is whether the impugned conduct, viewed as whole, has a sufficient tendency to lead a person exposed to the conduct into error, that is, to form an erroneous assumption or conclusion about some fact or matter.[32] It is not necessary to prove an intention to mislead or deceive, nor is it necessary to prove that the impugned conduct in fact misled or deceived anyone.[33]

Consideration of the grounds of appeal

  1. [39]
    Although Mr Knox raises a number of issues in the grounds of appeal, it is clear that central to this appeal is Mr Knox’s assertion that the tribunal should have found that there was a major failure in complying with the guarantee in s 54 of the ACL. It is also reasonably clear that Mr Knox says that the tribunal should have found a major failure as a result of the engine oil consumption issue, the other issues about which Mr Knox complained, or a combination of these issues.
  2. [40]
    None of the grounds of appeal, with the possible exception of appeal ground 4, articulate with any precision the argument that the tribunal erred in not finding a major failure although at the hearing of the appeal Mr Knox said that this is what he was asserting.
  3. [41]
    As these reasons will reveal, the issue of whether the failure to comply with the guarantee as to acceptable quality was a major failure was critical to the outcome of the proceedings below. Notwithstanding the absence of a clearly articulated appeal ground raised by Mr Knox, we are satisfied that the issue to which we have referred was sufficiently agitated both below and in the appeal to enable us to address it.
  4. [42]
    The learned member referred to the definition of ‘acceptable quality’ in the ACL. The learned member was satisfied, on the evidence, that the motor vehicle’s excessive engine oil consumption was caused by excessive cylinder bore roughness, that this defect was present at the time Mr Knox took possession of the vehicle, and that the vehicle was not of acceptable quality at that time.[34] The finding that the vehicle was not of acceptable quality was confined to the issue of the excessive engine oil consumption.
  5. [43]
    The learned member referred to the definition of ‘major failure’ in the ACL.[35]
  6. [44]
    We have referred earlier to the test to be applied in determining whether a failure to comply with a consumer guarantee is a major failure, namely that in s 260 of the ACL.
  7. [45]
    Whether a failure to comply with a consumer guarantee is a major failure is an objective test based upon a reasonable consumer. The question to be posited is whether a reasonable consumer, given the option of acquiring the specific good or not  would have acquired the good had they been aware of the nature and extent of the failure of the goods to comply with the relevant statutory guarantee. If the answer is ‘no’ there has been a ‘major failure’.
  8. [46]
    The concept of ‘major failure’ was considered in Baas v JB Hi Fi Group Pty Ltd[36] where it was held:

Not every fault or combination of faults which represents a breach of the guarantee of acceptable quality constitutes a major failure under s 260(a) of the ACL: Safi v Heartland Motors PL t/as Heartland Chrysler [2016]

NSWCATAP 80. The test is objective. Relevant considerations include the

availability and cost of repairs relative to purchase price and the nature of the

fault(s). The test in s 260(a) of the ACL is whether a reasonable consumer

with knowledge of the faults and what would be needed in terms of time, costs

and degree of difficulty to fix them would have bought the goods or made a

different decision.[37]

  1. [47]
    If a failure to comply with a consumer guarantee is a major failure the consumer may either reject the goods or accept the goods and claim compensation because they are of lower value than the contract price.[38] Section 262 of the ACL provides that a consumer is not entitled to reject goods where the “rejection period” has ended or the goods have become attached to real or personal property and cannot be detached without damage. The “rejection period” is defined in s 262(2) as being “the period from the time of the supply of the goods within which it would be reasonable to expect the failure to comply with a guarantee referred to in section 259(1)(b) to become apparent”. The reasonableness of the time is determined by having regard to:
    1. (a)
      the type of goods; and
    2. (b)
      the use to which a consumer is likely to put them; and
    3. (c)
      the length of time for which it is reasonable for them to be used; and
    4. (d)
      the amount of use to which it is reasonable for them to be put before such a failure becomes apparent.[39]
  2. [48]
    The evidence before the learned member was that Mr Knox first notified Tait Motors of a possible issue relating to excessive oil consumption in December 2016.[40] This was 12 months after Mr Knox took delivery of the vehicle. The Colorado had travelled approximately 24,000 kilometres by this time. When the vehicle was serviced by Tait Motors on 4 April 2017, Mr Knox again informed the dealer about the excessive oil use.[41] At this time, the vehicle had travelled 34,887 kilometres.[42] Mr Knox was advised by the dealer that oil consumption testing would be undertaken. The evidence below was that Mr Knox contacted the dealer principal, David Tait, on 5 April 2017 and requested a refund of the purchase price paid for the vehicle.[43] That request was refused. Mr Knox’s evidence was that he was told by Mr Tait during that conversation that the oil consumption testing was first required to be undertaken. Two oil consumption tests were undertaken. The testing concluded on 7 November 2017 after the vehicle had travelled 48,475 kilometres.[44]
  3. [49]
    The evidence below, which the learned member accepted, was that the Colorado’s excessive oil consumption was caused by excessive cylinder bore roughness. The evidence of the dealer was that there were two options to rectify the defect:
    1. Removal of the engine, re-machine the cylinder bore, fit new pistons and reinstall the engine. This would require the vehicle to be off the road for one to two weeks;
    2. Total engine replacement. This would require the vehicle to be off the road for two to three days.  
  4. [50]
    The evidence below was that Mr Knox communicated his rejection of the vehicle to both Tait Motors and the manufacturer on a number of other occasions:
    1. On 9 August 2017 Mr Knox contacted the manufacturer by telephone and advised that he wanted the return of the purchase price paid;
    2. On 18 August 2017 Mr Knox attended at the premises of the dealer and spoke with Brian Brennan, advising him that he wanted a refund of the purchase price;
    3. On 1 September 2017 Mr Knox and his wife met with David Tait, the principal of Tait Motors, and sought a replacement vehicle and when this was refused by the dealer, a refund of the purchase price was sought;
    4. On 6 September 2017 Mr Knox had a conversation with the dealer’s service manager and requested a refund of the purchase price.[45]
  5. [51]
    Mr Knox attempted to reject the vehicle on a further occasion following the replacement of the engine. Mr Knox’s evidence was that he was advised that the return of the vehicle following the engine replacement would be delayed as a result of a number of issues including the replacement of an air conditioner hose. Mr Knox was also informed that the reverse gear on the vehicle was not working and that a part had been ordered. Mr Knox informed the manufacturer at this time that he did not want the vehicle.
  6. [52]
    The evidence of Mr Knox in relation to the various attempts made by him to secure a refund of the price paid for the vehicle, which presumably also involved the return of the vehicle, was not challenged in the proceedings below.
  7. [53]
    The learned member, having found the dealer failed to comply with the guarantee of acceptable quality, approached the question of whether such failure was a major failure in the following way:

[26] The dividing line between what is or is not a major failure is not always a clear one. In Haisman v Drive (Aust) Pty Ltd [2020] QCAT 44, I found that defects which resulted in a motor vehicle being off the road for 30 days shortly after purchase amounted to a major defect. Similarly, in ACH Computing Pty Ltd v Austral Pty Ltd trading as Brisbane City Jaguar Land Rover [2020] QCAT 176, I found that defects which resulted in a motor vehicle being off the road for 29 days shortly after purchase amounted to a major failure.

[27] By contrast, in the present case, the applicant’s motor vehicle was off the road for at most nine days while it underwent an engine replacement. This occurred almost two years after the applicant took possession of the motor vehicle, and after the vehicle had driven over 48,000 kms. The respondent provided evidence that an engine replacement is the most convenient repair for the consumer, even though the fault itself was small. On balance, I am not satisfied that there is a major failure for the purposes of the test contained in s 260.

  1. [54]
    The learned member’s consideration of the issue as to whether the failure to comply with the guarantee of acceptable quality was a major failure was, at least insofar as such consideration is revealed in the reasons, confined to these passages. The reasons do not reveal that the learned member considered whether a reasonable consumer, given the option of acquiring the vehicle or alternatively purchasing either nothing or a different model, would have acquired the vehicle if they had been aware of the nature and extent of the failure. Although the engine was replaced at no cost to Mr Knox, the options to remedy the oil consumption issue with the engine, both of which required extensive works to be undertaken, was a relevant consideration in determining whether there had been a major failure particularly in the context of a new vehicle.
  2. [55]
    As we have observed, the learned member found that the cause of the engine oil consumption issue was excessive cylinder bore roughness. Mr Knox’s evidence was that between August 2016 and December 2016 the vehicle travelled approximately 9,400 kilometres and consumed three litres of oil. Before the tribunal below was a statement by the respondent responding to various social media posts by Mr Knox. The provenance of the document is not challenged. In that statement the respondent referred to the oil consumption testing of the vehicle which revealed that the vehicle was consuming 3.4 litres per 10,000 kilometres. The evidence before the tribunal was, according to the manufacturer, that oil consumption of up to two litres per 10,000 kilometres was typical oil consumption for the particular type of engine and was no cause for concern.[46] The evidence before the tribunal was that the vehicle’s oil consumption was significantly higher than what was considered typical. The corollary of this is that the oil consumption reported by Mr Knox was presumably a cause for concern, as evidenced by the subsequent actions of the respondent and the manufacturer in the steps taken to address the issue.
  3. [56]
    There was no evidence before the tribunal below about the long-term effect on the engine of the identified excessive cylinder bore roughness. It can be inferred however from the evidence regarding the action taken by the respondent to address the problem that the issue needed to be remedied to ensure the proper functioning of the engine and presumably to avoid long term damage to the engine.
  4. [57]
    None of these were matters to which the learned member referred in the reasons. In the absence of any such reference, we conclude that the learned member failed to take these matters into consideration. The learned member appears to have confined his consideration as to whether there had been a major failure to the period of time the vehicle was off the road undergoing repairs. We accept that the cost of repair and whether the defects can be remedied easily in a timely manner are relevant considerations. In this regard, the period of time a vehicle is off the road while remedial work is being undertaken may form part of the relevant factual matrix. However cost and ease of repair are by no means the only considerations. In our view, the reasons reveal error in the approach by the learned member in determining whether the respondent’s failure to comply with the guarantee of acceptable quality was a major failure. Having failed to identify and apply the correct test, the error was compounded in the application by the learned member of the facts to the correct legal test. This was an error of mixed law and fact.
  5. [58]
    There is a reasonable prospect that Mr Knox will obtain substantive relief. It is therefore appropriate that leave to appeal be granted.  We now proceed to decide the appeal by way of rehearing.

Rehearing

  1. [59]
    An appeal by way of rehearing involves a new determination of the rights and liabilities of the parties and is not limited to a correction of errors in the determination of the tribunal below. However, the rehearing is not a hearing de novo. We must make our own determination on the material before the tribunal below with due respect for the findings of fact of the learned member and due to consideration of the advantages enjoyed by him.
  2. [60]
    Accordingly, we have adopted the learned member’s primary findings of fact other than where those findings have been challenged in the appeal or where there is doubt as to the findings made.
  3. [61]
    The finding by the learned member that the vehicle was not of acceptable quality in breach of s 54 of the ACL is not contentious as between the parties. For the purposes of the rehearing we proceed on the basis that there was a failure by the respondent to comply with a consumer guarantee. The focus of the rehearing will be upon whether the failure was a major failure for the purposes of s 259 and s 260 of the ACL.
  4. [62]
    We have referred earlier in these reasons to those matters that are relevant in considering whether a failure to comply with a consumer guarantee is a major failure. It is convenient that we start by addressing those matters:

The various complaints by Mr Knox about the vehicle, other than the issue of excessive oil consumption

  1. [63]
    In addition to the issue of excessive oil consumption, Mr Knox complained about a number of other matters regarding the vehicle. In his grounds of appeal Mr Knox says that the tribunal erred in failing to give appropriate weight to his evidence regarding problems with the vehicle, apart from excessive oil consumption, which themselves meant that the vehicle was not of acceptable quality.
  2. [64]
    As has been referred to earlier in these reasons, a major failure may be constituted by one defect or a series of specific or individual defects which, when taken as a whole, constitute a major failure.
  3. [65]
    In his written submissions Mr Knox says that the tribunal made contradictory findings, on the one hand finding that the vehicle was not of acceptable quality[47] and on the other, finding that the other complaints made by Mr Knox about the vehicle did not result from the vehicle not being of acceptable quality.[48] This submission arises out of Mr Knox’s misunderstanding as to the application of the various provisions of the ACL.
  4. [66]
    At the hearing of the appeal Mr Knox clarified his submissions. He said that the error by the learned member was in not finding that the failure by Tait Motors to comply with the consumer guarantee as to acceptable quality was a major failure.
  5. [67]
    The learned member referred in the reasons to Mr Knox’s other complaints about the vehicle. These were separate and distinct from the engine oil issue and included: replacement of the battery; issue with front wheel bearing seal; issue with the air conditioner; flywheel replacement; issue with the selector bush; issues relating to the front differential and rear differential; and, interior console lid not operating correctly.
  6. [68]
    Mr Knox presented no expert evidence regarding the other matters of complaint. With the exception of the oil consumption issues, the evidence concerning the alleged defects comprised various tax invoices for service and repairs undertaken by Tait Motors and by the mechanic responsible for the replacement of the engine. From these documents can be deduced the following: the flywheel was identified as having twisted and seized at the time the engine was replaced; the flywheel was replaced; the gearbox selector bush was identified as being cracked and was replaced; the air conditioner condenser was replaced at the same time the engine was replaced; an issue with the battery was identified however it is not clear that the battery was in fact replaced; an issue was identified with ‘seal, frt whl’ although it is not clear what this meant and what was done about it; an issue was identified with ‘seal-diff drv P’ and ‘shim-diff drv p/gr brg’, although again, it is not clear what this meant and what was done about it; the console lid required replacement as a result of poor spring retention.
  7. [69]
    There was no evidence adduced by Mr Knox that these various issues were the result of the vehicle not being of acceptable quality. There was, for example, no evidence as to why the flywheel had become twisted and seized and whether the issue was attributable to the design and manufacture of the vehicle, whether this was normal wear and tear of componentry or whether the issue was the result of another supervening event. Using the complaint about the air conditioner as a further example, the evidence before the tribunal was limited to a service tax invoice referring to ‘check pressure in A/C system – found to have no gas inspect with UV light found die on A/C drain tube wheel – need to remove evaporator, on removal found fin to have split, will require replacing’. Mr Knox adduced no evidence, other than the service tax invoice, in relation to the air conditioner issue. We do not propose to traverse all of the other issues raised by Mr Knox in relation to the vehicle. Suffice it to say there was a lack of cogent evidence as to the nature, extent and cause of the issues complained of. As the learned member observed:

For completeness, I note that the applicant has raised a number of other complaints about the vehicle, including with the differential. I have no expert evidence as to the cause of these defects. In these circumstances, I am unable to be satisfied that they resulted from the vehicle not being of acceptable quality at the time the applicant took possession of the motor vehicle.[49]

  1. [70]
    Although some of the matters complained of by Mr Knox could be said to be more serious than ‘teething problems’, the difficulty facing Mr Knox was, and is, the absence of evidence to support what he says were defects in the vehicle. We are not satisfied on the evidence that, apart from the issue relating to the excessive cylinder bore roughness, the other matters complained of by Mr Knox regarding the vehicle constitute a failure to comply with the s 54 guarantee of acceptable quality.

Was the failure to comply with the guarantee of acceptable quality in relation to the excessive cylinder bore roughness a major failure?

  1. [71]
    On any view of the evidence, the vehicle’s consumption of engine oil was excessive. Indeed, based upon the manufacturer’s guidelines, the vehicle was consuming in excess of 30% more oil than the ‘typical’ level of consumption identified by the manufacturer. As we have previously observed, in the service dealer letter dated 4 December 2015 the manufacturer referred to consumption of up to 2 litres of oil per 10,000 kilometres as being ‘no cause for concern’. The consumption of oil by Mr Knox’s vehicle exceeded this by some margin. When the respondent eventually accepted that Mr Knox’s vehicle was consuming an excessive amount of oil, arrangements were made for the engine to be replaced.
  2. [72]
    We accept the evidence of the respondent that there were two options available to address the excessive cylinder bore roughness. Each, in our view, required significant work to be carried out to the vehicle. We are not persuaded that the fault in the engine was a small one as contended by the respondent. The options to address the issue were either the total replacement of the engine or the removal of the engine, re-machining the cylinder bore, fitting new pistons and reinstalling the engine. The latter would have required the vehicle to be off the road for several weeks. Neither of these remedial options speaks of a small fault.
  3. [73]
    Mr Knox was not required to pay for the replacement of the engine and there is, understandably, an absence of evidence as to what cost a consumer would have incurred in replacing the engine. There can be no doubt however that such cost would be significant. Equally, it is difficult to imagine that the cost associated with the alternative method of rectification identified by the respondent would not have been inconsiderable.
  4. [74]
    The reliability of the engine in a new motor vehicle is a matter of central and singular importance to a consumer. A reasonable consumer would not expect a new motor vehicle to require extensive works to be undertaken to the engine to address excessive oil use. It seems to us that a reasonable consumer, acquainted with the oil usage issues relating to the particular Holden Colorado motor vehicle, would have very serious reservations about purchasing the vehicle.
  5. [75]
    Taking all of these matters into consideration, in our view a reasonable consumer, given the option of acquiring the Holden Colorado or alternatively purchasing either nothing or a different vehicle model, would not have acquired the vehicle. The failure to comply with the consumer guarantee as to acceptable quality was a major failure for the purposes of s 260(a) of the ACL.

Did Mr Knox (i) Notify the respondent that he rejected the vehicle and the ground/s for such rejection? (ii) If so, was the notice given within the rejection period?

  1. [76]
    We have referred earlier in these reasons to the various communications by Mr Knox to both the respondent and the manufacturer rejecting the vehicle and seeking a refund of the purchase price.
  2. [77]
    We accept the evidence of Mr Knox that on 5 April 2017 he spoke with the principal of the respondent and requested a refund of the purchase price paid for the vehicle.[50] This was after Mr Knox had first informed the respondent of the issue of excessive oil consumption in December 2016. We accept the evidence of Mr Knox that his request for a refund in April 2017 was refused by the respondent. We accept that Mr Knox’s request for a refund was notification of rejection of the vehicle in accordance with s 259(3)(a) of the ACL.
  3. [78]
    Was the rejection notice given within the rejection period? The defect in the vehicle was latent. In Vautin v By Winddown Inc (formerly Bertram Yachts) (No 4)[51] Derrington J discussed the rejection period in relation to latent defects:

In the definition of “rejection period” the expression “relevant failure” is used. That latter expression must mean that “major failure” to comply with a guarantee on which the consumer relies or is entitled to rely to reject the goods. Where the manifestation of the failure to comply with a guarantee is patent, the period in which it would be reasonable to expect it to become apparent will be relatively short and easy to identify. Where the item acquired does not work at all and the cause of that is the failure of the product rather than the manner of its use, it can be readily inferred that there has been a failure which is the result of the goods not being of an acceptable quality. Different considerations arise where the defect in the goods is latent and the defect does not manifest itself for some period of time. Indeed, even when the latent defect does manifest itself, it may not be clear that the cause is the failure to comply with a guarantee. Additionally, even when a latent defects manifests itself to some degree and the cause is known, it may not be apparent for some time thereafter how the latent defect will, if at all, further manifest itself or what are the consequences of its existence. In Nesbit v Porter the Court of Appeal (NZ) determined that the “reasonable time” for identification of the failure included time for the consumer to become aware of the nature and extent of the defect and what it will cost to fix it. That is, until these matters are known it cannot be said that the failure to comply with a guarantee has “become apparent”.[52]

  1. [79]
    The rejection period for present purposes was that sufficient to enable Mr Knox to become fully acquainted with the vehicle’s excessive oil consumption, the cause of the problem and the steps required to be taken to rectify the issue. Although Mr Knox believed he had established that the vehicle was using excessive amounts of oil, it was not unreasonable for him to have complied with the request by the respondent that the vehicle undergo oil consumption testing to verify the extent of the oil use. The oil consumption tests subsequently confirmed what Mr Knox had reported to the dealer, that is, the vehicle was using an excessive amount of engine oil. Accordingly, we find that the rejection period did not expire until November or December 2017, that is until after the oil consumption testing had been completed by the respondent and the cause of the issue had been acknowledged by the respondent and Mr Knox informed as to what could be done to rectify the issue.
  2. [80]
    It follows from the foregoing, and noting that Mr Knox first communicated to the respondent his rejection of the vehicle in April 2017, notice to the respondent rejecting the vehicle was given by Mr Knox during the rejection period.
  3. [81]
    Neither party raised either below or in the appeal the issue of whether, if it was found that there had been a major failure and a rejection of the vehicle during the rejection period, Mr Knox had failed to return the vehicle to the respondent as required by s 263 of the ACL. We note, in any event, that under s 263(6) that property in the goods revests to the supplier on the notification of the rejection.
  4. [82]
    The requirement under s 263(2) of the ACL that rejected goods must be returned by the consumer to the supplier is ameliorated to some extent by s 263(2)(b). A consumer is not required to return goods to a supplier if the goods cannot be returned, removed or transported without significant cost to the consumer because of the nature of the failure to comply with the guarantee or the size, height or method of attachment of the goods.
  5. [83]
    We would observe that return of the vehicle by Mr Knox to the dealer would likely have presented not inconsiderable difficulties for Mr Knox including potentially significant costs. Noting that the respondent has not asserted a failure by Mr Knox to return the vehicle, had we been required to determine the issue we would have been satisfied that Mr Knox would likely have incurred significant cost in returning the vehicle to the respondent. In our view Mr Knox was not required to return the vehicle to the respondent.[53]
  6. [84]
    In circumstances where s 263(2)(b) of the ACL applies, the supplier must within a reasonable time after being notified that the consumer rejects the goods, collect the goods at the supplier’s expense. Here, the respondent made no attempt to collect the goods. Indeed, the respondent was quite adamant that it would not be refunding to Mr Knox the purchase price of the vehicle nor was it interested in having the vehicle returned.
  7. [85]
    By s 263(4) of the ACL the supplier must, in accordance with the consumer’s election, either refund the purchase price or replace the rejected goods. It is clear from the evidence that Mr Knox sought a refund of the purchase price. This the respondent was obliged to do.
  8. [86]
    Notwithstanding that the engine in the vehicle has been replaced, the consequence of the major failure to comply with the guarantee as to acceptable quality is that Mr Knox is entitled to a refund of the purchase price of the vehicle.
  9. [87]
    The purchase price paid by Mr Knox and claimed by him in the proceedings below was $35,790.00.[54] Upon the return of the motor vehicle by Mr Knox, Tait Motors must pay this amount to Mr Knox.
  10. [88]
    Mr Knox claims various other amounts in addition to the purchase price of the vehicle:
    1. Interest on loan to purchase vehicle$5,244.06
    2. Installation of bulbar and towbar harness$3,461.87
    3. Solicitor’s fees$3,600.00
  11. [89]
    By s 259(4) of the ACL a consumer may recover damages for any loss or damage suffered by the consumer because of the failure to comply with a guarantee if it was reasonably foreseeable that the consumer would suffer such loss or damage as a result of such a failure. The tribunal has jurisdiction to award such damages.[55] We will deal with each of the claims made by Mr Knox.

Interest

  1. [90]
    Mr Knox financed the purchase of the vehicle through Toyota Finance Australia. He claims the interest he has paid on the amount borrowed. Mr Knox has had the benefit of the vehicle since purchase. Presumably had he purchased a different vehicle he would have been required to borrow funds which in turn would have incurred interest charges. The claim for interest is not allowed.

Bulbar and towbar

  1. [91]
    There is evidence that Mr Knox expended an amount of $2,640.55 in having a bulbar fitted to the vehicle. There is evidence that Mr Know expended an amount of $821.32 having a tow bar and harness fitted to the vehicle.[56] These items will presumably remain with the vehicle when it is returned to the respondent. It is appropriate that Mr Knox recover these amounts totalling $3,461.87.

Solicitor’s fees

  1. [92]
    The claim for solicitor’s fees arises out of an altercation between Mr Knox and servants or agents of the respondent. The costs are unrelated to these proceedings. The amount claimed is not allowed.

Final orders

  1. [93]
    We make the following orders:
    1. Leave to appeal is granted;
    2. The appeal is allowed;
    3. The decision of the tribunal made 4 June 2020 is set aside;
    4. Kenneth William Knox must arrange for the return of the Holden Colorado motor vehicle to Tait Motors Pty Ltd t/as Tait Auto Group within twenty-eight (28) days of the date of this decision;
    5. Upon compliance by Kenneth William Knox with order 4, Tait Motors Pty Ltd t/as Tait Auto Group must pay to Kenneth William Knox the amount of $39,251.87.

Footnotes

[1]Knox v Tait Motors Pty Ltd trading as Tait Auto Group [2020] QCAT 195.

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

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

[4]QCAT Act, s 146.

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

[6]Ibid, s 147(3).

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

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

[9]Rintoul v State of Queensland & Ors [2018] QCA 20.

[10]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.

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

[12]Harrison & Anor v Meehan [2017] QCA 315.

[13]Ibid, per McMurdo JA at [50].

[14]Reasons at [11](a).

[15]Pickering & Anor v McArthur [2010] QCA 341

[16]Reasons [20].

[17]Medtel Pty Ltd v Courtney (2003) 130 FCR 182 per Branson J.

[18]Effem Foods Ltd v Nicholls [2004] NSWCA 332.

[19]Ibid at [30].

[20][2020] FCA 1672.

[21]Ibid, [40]

[22]Ibid, [196]

[23]ACL, s 262(2).

[24]For example see Motor Dealer and Chattel Auctioneers Act 2014 (Qld) and the statutory warranties at s 115.

[25]Prestige Auto Traders Australia Pty Ltd v Bonnefin [2017] NSWSC 149.

[26][2020] FCA 1672 at [46].

[27][2000] 2 NZLR 465

[28]Consumer Guarantees Act 1993 (NZ), s 20(2).

[29]Ibid at [39]-[40]; applied in Jayco Pty Ltd at [46].

[30]Vautin v By Winddown Inc (formerly Bertram Yachts) (No 4) (2018) 362 ALR 702 at [265].

[31]Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304.

[32]Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2013) 250 CLR 640.

[33]Parkdale Custom Built Furniture Pty Ltd v Puxu (1982) 149 CLR 191.

[34]Reasons [20].

[35]Reasons [25].

[36][2021] NSWCATAP 10.

[37]Ibid at [28].

[38]ACL, s 259(3).

[39]ACL, s 262(2)

[40]Mr Knox - Schedule of evidence, page 40.

[41]Ibid, page 20.

[42]Ibid, page 27.

[43]Ibid, page 40.

[44]Tait Motors – Schedule of evidence, attachment 8.

[45]Mr Knox Schedule of evidence, page 40 and pages 146-147

[46]Mr Knox Schedule of evidence, page 41.

[47]Reasons [20].

[48]Reasons [24].

[49]Reasons at [24].

[50]Op cit 47, page 40.

[51](2018) 362 ALR 702.

[52]Ibid at [264].

[53]Op cit 52.

[54]Mr Knox Schedule of Evidence, page 1.

[55]Fair Trading Act 1989 (Qld), s 50A, Table.

[56]Mr Knox Schedule of Evidence, pages 115 to 117.

Close

Editorial Notes

  • Published Case Name:

    Knox v Tait Motors Pty Ltd t/as Tait Auto Group

  • Shortened Case Name:

    Knox v Tait Motors Pty Ltd t/as Tait Auto Group

  • MNC:

    [2021] QCATA 87

  • Court:

    QCATA

  • Judge(s):

    Senior Member Brown, Member Traves

  • Date:

    08 Jul 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
ACCC v TPG Internet Pty Ltd (2013) 250 CLR 640
1 citation
Jump To
Cite 1 - (2013) 250 CLR 640
ACH Computing Pty Ltd v Austral Pty Ltd [2020] QCAT 176
1 citation
Jump To
Cite 1 - [2020] QCAT 176
Auckland in Cooper v Ashley & Johnson Motors Ltd [1997] DCR 170
1 citation
Jump To
Cite 1 - [1997] DCR 170
Australian Competition and Consumer Commission v Jayco Corporation Pty Ltd [2020] FCA 1672
6 citations
Jump To
Cite 1 - [2020] FCA 1672
Cite 2 - [2020] FCA 1672
Cite 3 - [2020] FCA 1672
Cite 4 - [2020] FCA 1672
Cite 5 - [2020] FCA 1672
Cite 6 - [2020] FCA 1672
Baas v JB Hi Fi Group Pty Ltd [2021] NSWCATAP 10
3 citations
Jump To
Cite 1 - [2021] NSWCATAP 10
Cite 2 - [2021] NSWCATAP 10
Cite 3 - [2021] NSWCATAP 10
Cachia v Grech [2009] NSW CA 232
2 citations
Jump To
Cite 1 - [2009] NSW CA 232
Cite 2 - [2009] NSW CA 232
Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304
1 citation
Jump To
Cite 1 - (2009) 238 CLR 304
Effem Foods Ltd v Nicholls [2004] NSWCA 332
2 citations
Jump To
Cite 1 - [2004] NSWCA 332
Cite 2 - [2004] NSWCA 332
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
Haisman v Drive (Aust) Pty Ltd [2020] QCAT 44
1 citation
Jump To
Cite 1 - [2020] QCAT 44
Harrison v Meehan [2017] QCA 315
3 citations
Jump To
Cite 1 - [2017] QCA 315
Cite 2 - [2017] QCA 315
Cite 3 - [2017] QCA 315
Knox v Tait Motors Pty Ltd trading as Tait Auto Group [2020] QCAT 195
1 citation
Jump To
Cite 1 - [2020] QCAT 195
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
Medtel Pty Ltd v Courtney (2003) 130 FCR 182
2 citations
Jump To
Cite 1 - (2003) 130 FCR 182
Cite 2 - (2003) 130 FCR 182
Nesbit v Porter [2000] 2 NZLR 465
2 citations
Jump To
Cite 1 - [2000] 2 NZLR 465
Cite 2 - [2000] 2 NZLR 465
Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191
1 citation
Jump To
Cite 1 - (1982) 149 CLR 191
Pickering v McArthur [2010] QCA 341
2 citations
Jump To
Cite 1 - [2010] QCA 341
Cite 2 - [2010] QCA 341
Prestige Auto Traders Pty Ltd v Bonnefin [2017] NSWSC 149
1 citation
Jump To
Cite 1 - [2017] NSWSC 149
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
Rintoul v State of Queensland [2018] QCA 20
2 citations
Jump To
Cite 1 - [2018] QCA 20
Cite 2 - [2018] QCA 20
Safi v Heartland Motors PL t/as Heartland Chrysler [2016] NSWCATAP 80
1 citation
Jump To
Cite 1 - [2016] NSWCATAP 80
Vautin v BY Winddown, Inc (formerly Bertram Yachts) (No 4) (2018) 362 ALR 702
3 citations
Jump To
Cite 1 - (2018) 362 ALR 702
Cite 2 - (2018) 362 ALR 702
Cite 3 - (2018) 362 ALR 702
Vautin v BY Winddown, Inc (formerly Bertram Yachts) (No 4) [2018] FCA 426
1 citation
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