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- Unreported Judgment
Foxy Wholesale Cars v Chaplin QCATA 76
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Foxy Wholesale Cars v Chaplin  QCATA 076
FOXY WHOLESALE CARS
ORIGINATING APPLICATION NO:
30 May 2022
On the papers
Leave to appeal is refused.
TRADE AND COMMERCE – COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION – CONSUMER PROTECTION – GUARANTEES, CONDITIONS AND WARRANTIES IN CONSUMER TRANSACTIONS – where the respondent purchased a vehicle from the applicant – where the vehicle suffered a major engine failure seven weeks after purchase – where the Tribunal found that applicant failed to comply with the statutory guarantee of acceptable quality – where the respondent awarded compensation for a reduction in the value of the vehicle – where alleged failure by respondent to transport vehicle to supplier’s mechanic for inspection – whether sufficient evidence to non-compliance with statutory warranty
Australian Consumer Law (Cth), s 272
Australian Consumer Law (Queensland), s 54, s 259, 260, 262, 263
Fair Trading Act 1989 (Qld), s 15, s 16, s 17, s 18, s 19, s 50A
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 11, s 28, s 32, s 142, s 143
Berry v Treasure & Anor  QCATA 61
Saxer v Hume  QCATA 25
Williams v Toyota Motor Corp Corporation Australia Limited  FCA 344
REASONS FOR DECISION
- By an Application for leave to appeal or appeal filed on 26 November 2021 (the Appeal Application), the Applicant seeks leave to appeal against a decision made by the Tribunal on 28 October 2021 (the Decision).
- The proceeding was commenced by the Respondent to this Appeal Application, Michelle Chaplin (Ms Chaplin) by an Application for Minor Civil Dispute – consumer dispute (the MCD Application) filed on 16 January 2019.
- By the MCD Application, Ms Chaplin claimed an amount of $10,638.24 together with payment of the filing fee of $338.20. The Applicant was the only respondent to the MCD Application.
- The hearing of the MCD Application proceeded on 20 January 2021 in the absence of Ms Chaplin who did not appear on that date.
- By the Decision, the Tribunal (constituted by an Adjudicator) made an order that the Applicant pay to Ms Chaplin $4,052.00 for claim and $338.20 for filing fee within 28 days.
The nature of Ms Chaplin’s claim
- Ms Chaplin’s claim arose out of the breakdown of a 2005 Hyundai Terracan Diesel Wagon (the Vehicle) which Ms Chaplin had purchased from the Applicant on 14 September 2018 for a price of $6,000.00. There is no dispute that the Vehicle had an odometer reading 197,245 km at the time of purchase.
- Ms Chaplin’s case was that the Vehicle was being driven approximately 40 km south of Dubbo in New South Wales, enroute to Victoria, when the Vehicle suffered engine failure and damage as a result of a snapped timing belt.
- The amount claimed by Ms Chaplin appears to have comprised $7,653.00 for repairs to the Vehicle carried out by Crowley Automotive Pty Ltd (Crowley Automotive) at Dubbo; $2,469.94 for rental car charges; and $546.00 in accommodation costs.
- The Reasons for Decision were given orally on 28 October 2021.
- In summary, the Adjudicator found in favour of Ms Chaplin, allowing part of her claim in the amount of $4,052.00 (together with the filing fee). The Adjudicator found that the Applicant had failed to comply with the statutory warranty, which applied by virtue of s 54 of the Australian Consumer Law (Queensland) (the ACL), that the Vehicle would be of acceptable quality.
- The Adjudicator disallowed the claims in relation to the rental car hire and accommodation costs. The Adjudicator also found that a proportion of the repair costs was not attributable to the failure of the timing belt. The amount ordered to be paid was $4,452.00 less an amount of $400.00 received by Ms Chaplin in relation to a warranty claim.
The Grounds of Appeal
- Part C of the Appeal Application refers to an attachment to the application.
- The attachment states as follows:
I would like to appeal the decision of The Queensland Civil and Administrative
Tribunal at Brisbane on the which was made on 28 October 2021 for the Brisbane Claim: 0000063/19. The applicant, Michele Chaplin, purchased 2005 Hyundai Terracan with the VIN KMHNM81XR5U173482 and 197345 on the clock at the time sale.
As the vehicle was older than 10 years Statutory warranty wasn’t applicable to it, however Foxy wholesale cars provided the Customer with one year National
Warranty. The customer (applicant) believes the timing belt was sipped [sic]
and the National Warrant Company didn’t cover the issues come with timing belt. Information in regards to the National Warranty Company not covering alleged damage (snapped timing belt) came from the customer (applicant) not any third party mechanic.
Foxy Wholesale car [sic] solution to this matter was to get the car transported to our nominated mechanic to investigate the mechanical Issue or to be replaced [sic] the engine if it was necessary However the applicant refused to our way approach [sic] to fix the challenged mechanical issue and she never provided us with the quotes or paperwork showing Third party inspection the costs and what was exact problem with the car.
At this stage we believe that we have no obligation to pay the costs that she claims have been paid to her mechanic: The application made all the decision on her own. Foxy wholesale Cars is willing to return the car back and refund all the money the applicant paid on the day of sale.
Ms Chaplin’s response
- By an Application for miscellaneous matters filed on 5 January 2022, Ms Chaplin sought directions to uphold the decision made by the Tribunal on 28 October “2018” (plainly intended to refer to 2021). The reasons for the application were set out in Part C, Section 2 and stated, amongst other matters, that Ms Chaplin was requesting that the Decision be enforced and the Appeal be dismissed. Ms Chaplin also contended that the Applicant had appealed outside the 28 day limit (and that the Applicant had had nearly three years to put forward any information for the case to the Tribunal).
- By directions made by the Tribunal on 17 February 2022, it was directed that the Application for miscellaneous matters be treated as Ms Chaplin’s submissions in response to the Appeal Application.
Leave to appeal
- An appeal against a decision by the Tribunal in a proceeding for a minor civil dispute may be made only if the party has obtained the Appeal Tribunal’s leave to appeal (s 142(3)(a)(i) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (the QCAT Act).
- As to the Tribunal’s approach to an application for such leave, I respectfully adopt the following observations of Judicial Member DJ McGill SC:
… As a general proposition, when leave to appeal to the Appeal Tribunal is required, it will be granted only where there is a reasonable argument that the decision was attended by error and an appeal is necessary to correct a substantial injustice caused by that error, or where the appeal raises a question of general importance upon which further argument and a decision of the Appeal Tribunal would be to the public advantage. In deciding whether grounds for leave to appeal have been shown, it is relevant to consider that the proceeding was a minor civil dispute, and the obligation on the Tribunal was to make orders it considered to be fair and equitable to the parties to the proceeding in order to resolve the dispute: the QCAT Act s 13(1). The Tribunal was also required to comply with the QCAT Act s 28 and s 29.
- Further, as was said by Justice Daubney, President in Berry v Treasure & Anor:
There is no automatic right of appeal against minor civil dispute decisions. I respectfully adopt and endorse the following observations by the former President, Justice Alan Wilson, in Durrand v Karaolis:
The Queensland Parliament has made it clear, in the QCAT Act, that so far as possible minor civil disputes of this kind are to be resolved by a simple procedure which is speedy, inexpensive and final. That conclusion is reinforced by the fact that before a party can appeal a decision in this jurisdiction it must obtain leave from the Appeal Tribunal … In other words, there is not an automatic right to appeal these decisions; rather, an applicant must first establish that it has a right to a grant of leave.
Appeal Application filed within time?
- By s 143(3) of the QCAT Act, an application for the Appeal Tribunal’s leave to appeal must be filed in the registry within 28 days after the relevant day.
- “Relevant day” is defined in s 143(5) of the QCAT Act as follows:
In this section—
relevant day, for an application or appeal, means—
- (a)if a person makes an application under part 7, division 5, 6 or 7 about the decision being appealed against within 28 days after the person is given written reasons for the decision—the day that application is finally dealt with under that division; or
- (b)if written reasons have not been given for the decision being appealed against and reasons have not been requested under section 122 or are not required to be given—the day the person received notice of the decision; or
- (c)the day the person is given written reasons for the decision being appealed against.
- Given that written reasons were not given, I consider that subparagraph (b) of the definition applies and the 28 day period began to run from the day that the Applicant received notice of the Decision.
- The Tribunal’s file for the proceeding contains a Certificate of Service by which the Registrar has certified that:
- (a)on 28 October 2021 the original of the Decision was posted to the address identified in the Certificate being the Applicant’s address last known to the Registrar; and
- (b)in the ordinary course of post, the original of the document would be delivered on 6 November 2021.
- Adopting 6 November 2021 as the date of receipt, the Appeal Application was filed within 28 days of that date (on 26 November 2021). I find that the Appeal Application was filed in accordance with the time limit provided for by s 143(3) of the QCAT Act.
Should leave to appeal be granted?
- Although the Adjudicator did not address the issue of jurisdiction in the reasons below, I am of the view that the Tribunal did have jurisdiction to determine the dispute.
- First, under s 11 of the QCAT Act, the Tribunal has jurisdiction to hear and decide a minor civil dispute. In my view, the MCD Application involved a claim arising out of a contract between a consumer and trader that was for payment of money of a value not more than the prescribed amount.
- Second, pursuant to s 50A(1) of the Fair Trading Act 1989 (Qld) (the FTA), a person may apply, as provided under the QCAT Act, to the Tribunal for an order mentioned in subsection (2) for an action - (a) under a provision of the Australian Consumer Law (Queensland) listed in the table to that section; and (b) relating to a motor vehicle; and (c) seeking an amount or value of other relief of not more than $100,000. The Table to s 50A refers to, relevantly, an action against suppliers of goods to recover compensation for reduction in value of goods pursuant to s 259(3) of the ACL. Pursuant to s 50A(2) of the FTA, the orders that the Tribunal may make include an order requiring a party to the proceeding to pay a stated amount to a stated person. In my view, the requirements of s 50A of the FTA were satisfied.
- In his oral reasons, the Adjudicator, who was then concurrently appointed a Sessional Member of the Tribunal, considered the requirements of ss 54 and 259 of the ACL. The reasons include a consideration of the matters relevant to assessing whether the Vehicle was of acceptable quality pursuant to s 54 of the ACL. Consideration was given to whether the failure to comply with the statutory guarantee was a “major failure”. The Member then dealt with s 259(3) of the ACL, including the issue of the “reduction in value” and assessed the amount of compensation. The Applicant does not assert any error in the approach adopted by the Member in applying the relevant provisions of the ACL.
- In relation to the award of compensation, the Adjudicator based his assessment of the loss in value on the amount of the repair costs that the Adjudicator considered to be attributable to the failure of the timing belt.
- Subsection 259(3) of the ACL provides that:
If the failure to comply with the guarantee cannot be remedied or is a major failure, the consumer may:
- (a)subject to section 262, notify the supplier that the consumer rejects the goods and of the ground or grounds for the rejection; or
- (b)by 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.
To my mind, it is erroneous to shoehorn any conception of “reduction in value” as only being able to be derived by comparison to market value. Concepts such as repair cost and WTP are useful indicators in ascertaining any reduction in value.
- Subject to ss 17, 18 and 19 of the FTA, the Australian Consumer Law text, as in force from time to time - (a) applies as a law of “this jurisdiction” (that is, the Queensland jurisdiction); and (b) as so applying may be referred to as the Australian Consumer Law (Queensland); and (c) as so applying is a part of the FTA.
- Although ss 259(3) and s 272(1)(a) of the ACL are not analogues, they both contain the identical phrase “any reduction in the value of the goods”. In my view, the analysis of Lee J is apposite to an interpretation of that phrase in s 259(3) and I respectfully adopt such analysis.
- Consequently, I am of the view that repair costs may be a useful indicator in ascertaining any reduction in value of goods. However, whether such repair costs justify a finding that that they reflect an appropriate reduction in value at the time of purchase will depend upon the evidence adduced (including, in the case of a motor vehicle, matters such as the length of time, and the distance travelled, since the date of purchase). In the present case, the Vehicle suffered a major breakdown only seven weeks after the date of purchase during which time the Vehicle had travelled 3,141 km. In those circumstances, I consider that it is not reasonably arguable that the Adjudicator erred in assessing the reduction in value by reference to the component of the repair costs attributable to the failure of the timing belt.
- In substance, the Applicant raises two complaints about the Decision:
- (a)that Ms Chaplin failed to arrange for the Vehicle to be transported to the Applicant’s nominated mechanic to enable the mechanic to investigate the mechanical issue and to replace the engine if it was necessary;
- (b)that Ms Chaplin did not provide the Applicant with the quotes or paperwork showing a third party inspection, the repair costs and what was exactly the problem with the Vehicle.
- In relation to the transport/investigation issue, I consider that no arguable error has been demonstrated. First, the Vehicle was undrivable and located in Dubbo, New South Wales. When the Applicant, by Mr Bryant, proposed to Ms Chaplin that the Vehicle be transported to the mechanic (in a text message exchange on 16 November 2018), Ms Chaplin responded that it was “not possible”, and that the Vehicle was 9½ hours and 857 km from the Applicant’s location. The Applicant led no evidence that it would have been feasible for the Vehicle to be transported to the Applicant’s mechanic, including the cost of doing so. In any event, the Adjudicator found that there was a “major failure” and, in my view, Ms Chaplin had the election of either rejecting the Vehicle and, at her election, seeking a refund of the purchase price or replacement of the Vehicle with a vehicle of the same type, and of similar value, if such a vehicle was reasonably available to the Applicant, or, as Ms Chaplin did, bringing an application to recover compensation.
- I turn to the issue of the alleged lack of supporting documentation.
- In the course of the text messaging between Ms Chaplin and Mr Bryant, Ms Chaplin stated: “Update on car still at mechanic major problems going to cost approx. $7000 to repair, all because timing belt not changed at 180km service”.
- In Part C of the MCD Application, Ms Chaplin provided details of what Mr Crawford allegedly informed her about the timing belt and the damage to the engine.
- In my view, the above matters, of themselves, arguably may not have founded a satisfactory basis for the Adjudicator’s findings in relation to the failure to comply with s 54 of the ACL. However, Ms Chaplin also provided a tax invoice from Crowley Automotive. The invoice was dated 2 November 2018 and identified the Vehicle. It then set out details of labour and parts including a “Timing Kit”. The invoice also included some Notes which stated:
Remove head and have damaged valves and rockers replaced and replace timing belt and water due to belt and tensioner failure and reassemble fit and code injectors as old injectors have failed and change oil and filter and fill and bleed cooling system and road test.
- In my view, on the totality of the material, the Adjudicator had sufficient evidence upon which to base his findings.
- In this regard, I note the provisions of s 28 of the QCAT Act:
- (1)The procedure for a proceeding is at the discretion of the tribunal, subject to this Act, an enabling Act and the rules.
- (2)In all proceedings, the tribunal must act fairly and according to the substantial merits of the case.
- (3)In conducting a proceeding, the tribunal—
- (a)must observe the rules of natural justice; and
- (b)is not bound by the rules of evidence, or any practices or procedures applying to courts of record, other than to the extent the tribunal adopts the rules, practices or procedures; and
- (c)may inform itself in any way it considers appropriate; and
- (d)must act with as little formality and technicality and with as much speed as the requirements of this Act, an enabling Act or the rules and a proper consideration of the matters before the tribunal permit; and
- (e)must ensure, so far as is practicable, that all relevant material is disclosed to the tribunal to enable it to decide the proceeding with all the relevant facts.
- (4)Without limiting subsection (3)(b), the tribunal may admit into evidence the contents of any document despite the noncompliance with any time limit or other requirement under this Act, an enabling Act or the rules relating to the document or the service of it.
- When regard is had to ss 28(3)(b), (c) and (d) in particular, I consider that there is no reasonable argument that the Adjudicator erred in making the findings he made in respect of s 54 of the ACL.
- In my view, the Applicant has failed to establish that there is either a reasonable argument that the decision was attended by error and that an appeal is necessary to correct a substantial injustice caused by that error, or that the appeal raises a question of general importance upon which further argument and a decision of the Appeal Tribunal would be to the public advantage. I consider that leave to appeal should be refused.
- Leave to appeal is refused.
- With respect to Ms Chaplin’s request that the Decision be enforced, I note that Ms Chaplin states that on 7 December 2021 she applied in the Magistrate Court at Hervey Bay to have the Decision enforced. In my view, the request for enforcement is outside the scope of the Appeal Application and it is for Ms Chaplin to continue to pursue the existing (or any other) enforcement action insofar as it is available to her.
 The Appeal Application states that the Decision was received on 15 November 2021.
 I calculate these amounts to total $10,668.94 which exceeds the amount claimed in the MCD Application but the discrepancy is of no consequence in light of the findings made by the Adjudicator.
 See Saxer v Hume  QCATA 25 at .
  QCATA 61 at .
 Which is earlier than the date of receipt asserted by the Applicant.
 See the definitions of “minor civil dispute”, "consumer" (note subparagraph (a)), “trader” and “prescribed amount” in Schedule 3 to the QCAT Act.
 T2-3 line 11 – T2-4 line 2.
 T2-4 lines 4-45.
 T2-5 line 1 – T2-6 line 15.
  FCA 344 at -.
 At .
 See s 15 of the FTA.
 FTA, s 16.
 See ACL, s 260.
 See ACL, ss 259(3)(a), 262 and 263.
 See ACL, s 259(3)(b).
- Published Case Name:
Foxy Wholesale Cars v Chaplin
- Shortened Case Name:
Foxy Wholesale Cars v Chaplin
 QCATA 76
30 May 2022