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Opportunity Found Pty Ltd v Haywood[2024] QCATA 32

Opportunity Found Pty Ltd v Haywood[2024] QCATA 32

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Opportunity Found Pty Ltd v Haywood [2024] QCATA 32

PARTIES:

OPPORTUNITY FOUND PTY LTD T/A GOODE FAMILY CARS

(appellant)

v

PATRICIA HAYWARD

(respondent)

APPLICATION NO/S:

APL244-22

ORIGINATING APPLICATION NO/S:

MVL201-21

MATTER TYPE:

Appeals

DELIVERED ON:

14 March 2024

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Judicial Member JR McNamara

ORDERS:

  1. The application for leave to appeal is granted.
  2. The appeal is refused. 

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – AUSTRALIAN CONSUMER LAW – where respondent purchased a vehicle from the appellant – whether the vehicle was of an acceptable quality – whether the vehicle was fit for purpose – whether grounds for leave to appeal – whether the Member below made errors of fact – whether the Member below failed to take into account relevant considerations  and gave too much weight to irrelevant considerations – whether the consumer was entitled to refund of purchase price and compensation for costs associated with purchase

Competition and Consumer Act 2010 (Cth) schedule 2, ss 54, 60, 259, 260

Fair Trading Act 1989 (Qld) s 50A

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

Cougar Air Pty Ltd v Sankarayya [2015] QCATA 98

David Anthony Joseph Howarth, Suzanne Evelynne Howarth v Biscamoss Pty Ltd [2022] QCATA 072

Pickering v McArthur [2005] QCA 294 [5]

Medtel Pty Ltd v Courtney (2003) 130 FCR 182

Williams v Toyota Motor Corporation Australia Limited (Initial Trial) [2022] FCA 344

APPEARANCES & REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of theQueensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

  1. [1]
    This is an application for leave to appeal a motor vehicle consumer claim decision of the Queensland Civil and Administrative Tribunal (QCAT). The Queensland Civil and Administrative Tribunal Act 2009 (the Act) s 142(3)(a)(i) requires that leave to appeal must be obtained.
  2. [2]
    The matter the subject of this application was heard on 16 June 2022.  The appellant (Opportunity Found Pty Ltd t/a Goode Family Cars, represented by Mr Goode) and the respondent (vehicle purchaser Ms Hayward) participated in the hearing and a decision was delivered ex tempore.  In the sale of the vehicle to Ms Hayward, Opportunity Found Pty Ltd trading as Goode Family Cars was found to have breached consumer guarantees outlined in the Australian Consumer Law arising from a major failure. Ms Hayward was awarded $25,997.12.
  3. [3]
    On 18 August 2022, Mr Goode made an application for leave to appeal and an application to stay the decision. The application to stay the decision was refused on 5 December 2022.
  4. [4]
    I was appointed to constitute the Appeal Tribunal. There are some familiar and often repeated passages in decisions of the Appeal Tribunal concerning its function – including these: In the usual course, leave will be granted where it appears that there is a reasonable argument that the decision is infected by error and that an appeal is necessary in order to correct a substantial injustice to the appellant which was caused by that error;[1] the Appeal Tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions; and, an appellate tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.[2]

Background

  1. [5]
    In May 2021, the respondent (Ms Hayward) purchased a 2011 Hyundai i-Max (vehicle) from the car dealer business owned by the appellant (Mr Goode)[3]. The odometer reading entered on the sale contract was 206,039km.[4] The purchase price was $17,700 with an extended warranty for 3 years. During the sale process Mr Goode told Ms Hayward that a new ‘turbo’ had been placed in the vehicle and was under warranty.[5]  Ms Hayward in evidence said that she asked specifically about the turbo, because she had experienced turbo problems with her previous vehicle.
  2. [6]
    The vehicle was delivered to Ms Hayward’s home in Marmor, 45 km south of Rockhampton, on or about Wednesday, 2 June 2021. She maintains that she drove the vehicle “into town” (Rockhampton) once to the shops and to take her mother to the doctor on or about Thursday, 3 June 2021.
  3. [7]
    Ms Hayward says the next time she drove the vehicle was on Friday, 11 June 2021 when she set off for Mt Isa. She says that at Kynuna, around 1000 km from Marmor and 300 km out from Mt Isa, the vehicle started making a loud noise. She phoned Mr Goode who said that he could not hear the noise.  She then contacted RACQ roadside assistance.
  4. [8]
    RACQ roadside assistance attended the vehicle on Saturday, 12 June 2021. The RACQ mechanic said he thought the issue was the turbo and towed the vehicle to a mechanic in Cloncurry.
  5. [9]
    On Monday 14 June 2021, the Cloncurry mechanic (John Green, Manager, Field Engineering Services Pty Ltd) advised that the turbo “had blown”. Mr Green phoned Mr Goode and sent him photos of the engine. In a statement made by Mr Green some months later he said:[6]

On diagnosis we discovered the turbo was blown, we also discovered that some foreign object has been left internally in the suction side of the turbo and this is what caused the turbos failure, the object has been smashing up against the turbo fins, we have sent pictures of the damage, this is not a mechanical failure due to normal wear and tear! This damage has been caused by someone accidentally leaving the foreign object inside the suction side of the turbo pipe! …

  1. [10]
    Mr Goode told Mr Green that his mechanic in Brisbane would fix the vehicle. 
  2. [11]
    About 6 weeks later, on 26 July 2021, the vehicle was collected from Cloncurry and taken to Mr Goode’s mechanic in Brisbane, Total Car Care. According to Mr Goode the mechanic at Total Car Care found that the turbo fitted in the vehicle prior to its sale was “faulty”.[7] He says in evidence that Total Car Care refitted a new turbo in the vehicle which had been provided at no cost from the supplier. There is no statement from the Total Car Care mechanic regarding the mechanical situation and condition of the vehicle.
  3. [12]
    On 19 August 2021, the vehicle was returned to Ms Hayward.
  4. [13]
    On 27 August 2021, Ms Hayward drove the vehicle for the first time since its return, to Brisbane. On Saturday 28 August 2021, she was leaving Brisbane but stopped driving when she heard a loud noise coming from the bonnet. The vehicle lost power and there was black smoke coming out the back of the car.
  5. [14]
    Ms Hayward called RACQ roadside assistance and in a statement attached to her QCAT application she says that the RACQ mechanic said he thought that the turbo and engine were ruined. Ms Hayward called Mr Goode who said he wanted the vehicle to be towed to his mechanic in Brisbane and the keys to be left on top of a rear tyre. As it was a Saturday the mechanic was closed. RACQ declined to leave the vehicle and keys at the mechanic’s premises in those circumstances. Attempts to contact Mr Goode by telephone to discuss an alternative arrangement were not successful. The situation was discussed with RACQ and the decision was made to tow the vehicle to Ms Hayward’s house at Marmor.
  6. [15]
    On 20 September 2021 Ms Hayward filed a Motor Vehicle Dispute application with QCAT seeking an order that Mr Goode’s business pay her a sum equal to the amount required to discharge the full amount owing under her car loan, and that Mr Goode collect the car from Marmor.
  7. [16]
    On 18 October 2021 Mr Goode filed a response and on 28 October 2021 Mr Goode filed further material concerning issues to do with communication between the parties.
  8. [17]
    In November 2021, Ms Hayward had two mechanics inspect the vehicle: her regular mechanic, Jim’s Mobile Servicing and Mechanical, and an independent mechanic, Rockhampton Mobile Mechanic.[8] Jim’s Mobile Servicing conducted a visual inspection using a mechanical stethoscope and concluded that the turbo required removal and full inspection and that the supply and fit of a new engine and turbo would cost around $15,000. The Rockhampton Mobile Mechanic “checked over engine” and concluded the “engine and turbo will require replacing”.
  9. [18]
    The vehicle was collected from Ms Hayward’s house on behalf of Mr Goode and delivered to Brisbane. The respondent was in hospital when it was collected and is not sure of exactly when it was collected.
  10. [19]
    Mr Goode says that an inspection of the vehicle by his mechanic (Total Car Care) showed that there was no problem with the turbo or engine and that the issue on this occasion was a $209 flange which was causing the car to lose power. Apart from an invoice (8 December 2021) for work performed by Total Car Care there is no statement from the mechanic regarding the cause and circumstances of the failure of the vehicle. Mr Goode obtained a report from RACQ dated 9 December 2021 which he says found that the engine and turbo were ‘okay’.[9]
  11. [20]
    The 9 December 2021 RACQ motor vehicle inspection report includes a photo of the odometer showing 212728 km – suggesting the vehicle had travelled around 6680 kms since its purchase.  The content of the report is considered later in these reasons.
  12. [21]
    On 20 January 2022 Ms Hayward filed a document: Evidence to be Relied on by Ms Hayward at the Hearing of this Matter. 
  13. [22]
    Mr Goode filed a Statement of Evidence of the Respondent on 15 February 2022. Ms Hayward filed a further statement on 16 February 2022 which is effectively a reply.

The Appeal

  1. [23]
    The appellant seeks orders that leave to appeal be granted, the appeal allowed, the decision of the hearing member be set aside, and application MVL201-21 be dismissed; alternatively, that leave to appeal be granted and the matter remitted for reconsideration.
  2. [24]
    The parties filed submissions in the appeal.  Attached to Ms Hayward’s submissions filed 12 April 2023 are a copy of the (earlier) submissions filed on 20 January 2022. Attached to the copy of the earlier submissions is “finance paperwork”.  Ms Hayward’s submissions indicate that these were filed with those earlier submissions but they do not appear on the QCAT file. 

The grounds of appeal

  1. [25]
    In delivering his decision, the hearing member first outlined matters concerning the jurisdiction of QCAT with regard to the Australian Consumer Law; the meaning of certain terms; the interpretation of certain provisions such as consumer guarantees and major failure; the relevant test/s; and the types of order that QCAT can make. He then made a number of findings concerning the evidence.

Ground 1 – Alleged error of fact

  1. [26]
    The appellant does not contend that the hearing member failed to identify the correct law.[10]  The appellant says the member made an error of fact “that the turbo of the vehicle  … was not replaced prior to sale” which they refer to as the Turbo Replacement Fact Error.[11] 
  2. [27]
    The appellant says in effect that the error adversely impacted the member’s view of the veracity of the appellant’s evidence and that, but for that error the member would have reached an alternative decision when applying the Australian Consumer Law (ACL) as set out in schedule 2 of the Competition and Consumer Act 2010 (Cth).

Ground 2 - Alleged error of mixed fact and law

  1. [28]
    The appellant says that the member failed to take into account relevant considerations and/or give appropriate weight to certain factors and gave inappropriate weight to other relevant considerations.  They refer to this as the Relevant/irrelevant Considerations Ground.  The ground as presented is reminiscent of the foundational principles of judicial review.
  2. [29]
    The appellant says too little weight was given to the 9 December 2021 RACQ Mobile vehicle Inspection Report which they commissioned;[12] and to the recorded odometer readings in the contract of sale on 27 May 2021, and as recorded by the RACQ on 9 December 2021 which would suggest the vehicle “travelled a significant distance prior to experiencing any mechanical issues”.[13]
  3. [30]
    The appellant says too much weight was given to the inspections carried out by John Green (Manager, Field Engineering Services Pty Ltd) in Cloncurry on or about 14 June 2021 to the effect that the turbo had “blown” and that a “foreign object had been left internally in the suction side of the turbo” which caused the turbo failure; and the 18 November 2021 report from Jim’s Mobile Servicing and Mechanical of an inspection carried out on 10 November 2021 at Marmor. They say these reports pre-date “the most recent tests performed on the vehicle” – being the RACQ Report dated 9 December 2021 commissioned by the appellant.
  4. [31]
    The appellant says that the most recent inspection report is critical to a finding of “major failure” within the meaning of the ACL.  They say the most recent inspection report demonstrates any defects were “capable of rectification, in addition to their ability to be fixed”. 

Grounds 3 and 4

  1. [32]
    Ground 3 is an alleged error of fact by the hearing member that there was “no dispute that the vehicle experienced a breakdown twice”. They say this conclusion by the member was without proper foundation. 
  2. [33]
    Ground 4 is to the effect that the quantum of damages, which included amounts paid for vehicle insurance and finance loan repayment, was determined without evidence that the relevant payments were in fact made.  The appellant says this “necessarily creates an error in the decision” which would, when rectified, reduce the quantum of damages.   The appellant does not explain why the quantum would necessarily reduce, or what amounts, if any, were improperly claimed.

Australian Consumer Law and QCAT

  1. [34]
    When giving his reasons for decision, the hearing member set out the form of relief available under the ACL, and the jurisdiction of QCAT in relation to motor vehicle consumer claims by virtue of s 50A of the Fair Trading Act 1989 (Qld). As noted already, there is no challenge to the jurisdiction of QCAT, nor the application of the ACL relevant to the facts in this matter.
  2. [35]
    The orders QCAT can make in a motor vehicle matter where the relief sought is not more than $100,000 include: a) an order requiring a party to a proceeding to pay a stated amount to a stated person; b) an order that a stated amount is not due or owing by the applicant to a stated person, or by any party to the proceeding to the applicant; (c) an order requiring a party to the proceeding, other than the applicant, to perform work to rectify a defect in goods or services to which the claim relates; (d) an order requiring a party to the proceeding to return goods that relate to the claim and are in the party’s possession or control to a stated person; and (e) an order combining 2 or more orders mentioned in paragraphs (a), (b), (c) and (d).

The consumer guarantee

  1. [36]
    One of the guarantees the ACL (s 54) creates for consumers who acquire goods is that the goods will be of acceptable quality (consumer guarantee). This guarantee includes that goods will be durable as a reasonable consumer would consider acceptable for a reasonable amount of time. But goods do not fail to be of acceptable quality if the consumer causes them to become of unacceptable quality, or fails to take reasonable steps to prevent them from becoming of unacceptable quality, and they are damaged by abnormal use.
  2. [37]
    The time at which goods are to be of acceptable quality is the time at which the goods are supplied to the consumer.[14] The goods must possess all of the qualities listed in s 54(2) being: fit for all the purposes for which goods of that kinds are commonly supplied; acceptable in appearance and finish; free from defects; safe; and durable.  In considering whether the “reasonable consumer” would regard the goods as acceptable at the time of supply:[15]

… “one must assume that the construct is “fully acquainted with the state and condition of the goods (including any hidden defects of the goods)” : s 54(2) of the ACL; see also Medtel (at 205-206 [65]-[70]. Thus, in the present case, the “reasonable consumer” is taken to be fully acquainted with the nature of the Core Defect, including the ways in which it causes the Relevant Vehicles to malfunction when exposed to the High Speed Driving Pattern, and the class of consequences or symptoms associated with the Core Defect.”

  1. [38]
    Lee J in Williams v Toyota Motor Corporation said at [168] the fact that a defective product has continued to perform following the time of supply through to the time of trial does not defeat a finding that the product was defective at the time it was supplied.[16]

Failure to comply with the consumer guarantee, but not a “major failure”

  1. [39]
    Remedies, where the goods supplied are not of an acceptable quality, include an action to recover from the supplier all reasonable costs incurred by the consumer in having the failure remedied. 
  2. [40]
    Where the failure is not a major failure and the failure is not remedied within a reasonable time (s 259(2)(b)(i)), remedies include an action to recover compensation for any reduction in value of the goods below the price paid where the failure is a major failure and the consumer has not rejected the goods (s 259(3)(b)), and damages for loss or damage where such loss or damage was reasonably foreseeable in respect of the failure (s 259(4)).

Failure to comply with the consumer guarantee and a “major failure”

  1. [41]
    Section 260 ACL provides that a major failure is a failure to comply with a guarantee where the goods would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of the failure, or 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, the goods are not of acceptable quality because they are unsafe.
  2. [42]
    Member Roney KC summarised the operation of these aspects of the ACL in David Anthony Joseph Howarth, Suzanne Evelynne Howarth v Biscamoss Pty Ltd [2022] QCATA 072 at [20] as follows:

In summary then, the test of whether there is a major failure for the purposes of section 260 and the test for whether goods are of acceptable quality for the purposes of section 54 both adopt a ‘reasonable consumer’ test. If the failure can be remedied and is not a major failure, the consumer is limited to requiring the supplier to remedy the failure within a reasonable time; or if the supplier cannot remedy the failure within a reasonable time, having the failure remedied by someone other than the supplier and seeking compensation from the supplier, or rejecting the goods.

Two or more failures to comply with the consumer guarantee

  1. [43]
    Two or more failures to comply with the consumer guarantee can amount to major failure where the goods would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of those failures, taken as a whole – s 260(2). This applies regardless of whether the consumer has taken action under s 259 (s 260(3)) and the multiple failures do not need to relate to the same guarantee.  The ability if any on the part of the supplier to remedy the failure/s within a reasonable time is not relevant in the case of two or more failures. 

Findings below and the grounds of appeal

  1. [44]
    The hearing member itemised matters not in dispute; matters in dispute; and matters in dispute which he considered not relevant to his determination.
  2. [45]
    The matters not in dispute were: the facts related to the purchase and delivery of the van to Ms Hayward; the fact Ms Hayward drove the van from (near) Rockhampton to Kynuna, near Cloncurry; the fact the vehicle had “broken down” and was taken to a mechanic in Cloncurry; the fact that the vehicle was taken from Cloncurry to Mr Goode for repair; and the fact that Mr Goode’s mechanic did work on the vehicle and returned it to Ms Hayward after that work was done.
  3. [46]
    The hearing member said there was some dispute about how long it took to get the vehicle from Cloncurry to Brisbane for repair and said: “but that’s not relevant to my determination”.[17]

Ground 1 – the Turbo Replacement Fact Error

  1. [47]
    The hearing member said: “what is in dispute is the extent to which work was required and how that work has been done, has the defect been repaired, are the goods of acceptable quality, are they reasonably fit for purpose.”[18]
  2. [48]
    The hearing member found that the claim by Mr Goode that a new turbo had been fitted to the vehicle prior to sale was not supported “by the invoice of Total Care dated 27th of May 2021, which appears to suggest that there was a repair only conducted”. 
  3. [49]
    He found that the evidence of Mr Goode that the manufacturer provided another new (turbo) for free was not supported by the invoice from Total Car Care dated 8 December 2021.
  4. [50]
    These two findings of fact are in error.
  5. [51]
    The evidence is that Total Car Care fitted a new turbo in May 2021, prior to the sale to Ms Hayward, for which an invoice was issued on 27 May 2021.  The 27 May 2021 invoice in my view itemises costs for both parts “replaced turbo” and labour to “remove/replace turbo”.
  6. [52]
    At paragraph [11] I note that the vehicle was delivered to Brisbane from Cloncurry in late July.  It was Mr Goode’s evidence that the Total Car Care mechanic “found that the turbo fitted in the vehicle prior to its sale was faulty” and fitted a new turbo which was provided at no cost from the supplier.  No reference is made to a foreign object having been left in the suction side of the turbo as the cause of failure.  The vehicle was then returned to Ms Hayward on 19 August 2021. 
  7. [53]
    There is no invoice from Total Car Care for the fitting of the replacement turbo, presumably because the replacement turbo was provided at no cost from the supplier – although one might expect that labour costs were incurred.
  8. [54]
      There is no statement from a Total Car Care mechanic to explain the mechanical situation (as opposed to some invoices for work performed – although the 8 December 2021 invoice includes the comment that the engine was in very good condition).  The only other evidence from the appellant regarding matters mechanical (apart from the 9 December 2021 RACQ report) is that of Mr Goode who did not himself conduct the work.
  9. [55]
    The hearing member’s reference to the 8 December 2021 invoice from Total Car Care as relevant to a finding regarding the replacement turbo is also an error.  It is unrelated.
  10. [56]
    The 8 December 2021 invoice to which the member refers concerns the work performed by Total Car Care following the incident where the vehicle “lost all power” in Brisbane in late August 2021, not for the work performed between 26 July 2021 and 19 August 2021. The 8 December 2021 invoice concerned the “replacement of faulty intercooler hose clamps” – which Mr Goode refers to as a flange gasket.
  11. [57]
    In my view, despite the errors I have identified, for the reasons stated and the reasons that follow I do not accept that the correct understanding of those facts would have led to a different decision.

Ground 2 - mixed fact and law 

  1. [58]
    The appellant says the error (ground 1) led to some of the consequences described in Ground 2 – that too little weight was given to the 9 December 2021 RACQ mobile vehicle inspection report, being the most recent; and that too much weight was given to the inspections carried out by Jim’s Mobile Servicing and Mechanical, and the Rockhampton Mobile Mechanic. 
  2. [59]
    The hearing member rejected Mr Goode’s evidence that the turbo had been replaced prior to sale, and rejected the evidence that a replacement turbo had been fitted after the vehicle was collected from Cloncurry.  On these points the member said that he preferred the evidence of “those independent mechanics” being Jim’s Mobile Servicing and Mechanical, and the Rockhampton Mobile Mechanic.  He noted from the reports: “that the turbo was either jammed or completely seized and did not appear to be new, that it required removal and full inspection …” and a finding of “excess oil in various parts of the engine, excessive blow-by, noisy turbo, low engine power, and finally stating that the engine and turbo will require replacing”.
  3. [60]
    The evidence of those mechanics concerns the condition of the vehicle only at the point where the turbo had been twice replaced (once prior to sale, and once after it was collected from Cloncurry), and the vehicle subsequently lost power while driving in Brisbane.  Apart from the statement from Jim’s Mobile Servicing and Mechanical that the turbo did not appear to be new, the evidence of those mechanics does not support a conclusion that the turbo had not been replaced.  The relevance of this evidence is that the vehicle had suffered a mechanical malfunction.
  4. [61]
    Ultimately though whether or not the turbo had been replaced is not determinative.  It is the condition of the vehicle, and in this case the turbo including any defects, that is relevant to a consideration of the reasonable consumer test.
  5. [62]
    The appellant’s Ground 2 includes a claim that too little weight was given to the 9 December 2021 RACQ mobile vehicle Inspection Report. 
  6. [63]
    The member said that he noted Mr Goode’s evidence and that he had read the 9 December 2021 RACQ report which indicated that the engine and engine noise were okay. He identified what he considered to be deficiencies in the RACQ report. 
  7. [64]
    The member did have regard to the report.  The report says its purpose was “Prior to Sale” (which would appear not to be the correct purpose); the inspection did not include a road test to assess engine performance or the operation of the speedometer or odometer.  The “Mechanical Condition Rating” is presented as a dial with an arrow pointing to a position just above “poor”. 
  8. [65]
    In my view the report was given the weight it deserved. There is no error.
  9. [66]
    The other issue raised in the ground of appeal concerns the odometer reading as recorded on the sales contract, and that recorded in the 9 December 2021 RACQ motor vehicle inspection report.  As noted already the recorded readings would indicate that around 6680 km had been travelled between those dates – and the accuracy of the odometer was not assessed in the RACQ 9 December 2021 report.
  10. [67]
    Ms Hayward admits to driving perhaps 1000 km before the vehicle broke down in Kynuna; she says she drove from Rockhampton to Brisbane, but did not complete any other road trips of any distance.  Mr Goode makes a point of the fact that the vehicle had travelled a “significant distance” before experiencing any mechanical issue. 
  11. [68]
    There is no evidence regarding what might be the reasonable “longevity”, in terms of driving distance, of a turbo, however, in my view a reasonable purchaser would expect to comfortably travel more than 1000 km, and more than 7000 km, before the article seized. 
  12. [69]
    In my view nothing turns on this issue.  There is no error.

Ground 3 – the 2nd “break down”

  1. [70]
    The hearing member said that it was not in dispute that “subsequently the vehicle broke down again after that work was done”.
  2. [71]
    The appellant’s ground 3 is that this conclusion was without proper foundation but does not speak to the consequences of this conclusion for the appellant.  The appellant acknowledges that he received a phone call from Ms Hayward to say that there was a problem with the vehicle which occurred while she was driving the vehicle in Brisbane, which apparently again concerned the turbo (“the vehicle had lost all power”) and which caused her to stop driving on the motorway.[19] 
  3. [72]
    Mr Goode says that when his mechanic eventually inspected the vehicle, he (the mechanic) formed the view that it wasn’t the turbo but a flange gasket which was “causing it to lose power”.[20]  No responsibility for the failure of the flange gasket is taken or attributed; that is, it is not said whether this was a manufacturing failure or a failure in installation – and who might be responsible.
  4. [73]
    In my view it was entirely reasonable for the hearing member to describe the situation as he did, that is that the vehicle had “broken down” as that description is commonly understood. There was a mechanical failure. This is important as I am also of the view that the language adopted by the member below of “second breakdown” is a finding of a 2nd failure to comply with the consumer guarantee. A finding which is supported by the evidence before the member.

Ground 4 - quantum

  1. [74]
    Ground 4 is to the effect that the quantum of damages, which included amounts paid for vehicle insurance and finance loan repayment, was determined without evidence that the relevant payments were in fact made.  The appellant says this “necessarily creates an error in the decision” which would when rectified reduce the quantum of damages.   The appellant does not explain why the quantum would necessarily reduce, or what amounts, if any, were improperly claimed.
  2. [75]
    At paragraph [24] above I note that Ms Hayward says she provided “finance paperwork” which was attached to a copy of the submissions filed in the application.  There does not appear to be a basis to assert that loan repayments and insurance premiums were not paid, at least while Ms Hayward retained possession of the vehicle.  There was evidence from Ms Hayward that Mr Goode had arranged financing for the vehicle.  The total amount of the repayments and the insurance premiums were before the member at the hearing.  As I noted at [33] above the appellant does not explain how an error was necessarily created, and why the quantum would necessarily reduce, or what amounts, if any were improperly claimed. In my view there was sufficient material before the member and sufficient opportunity to challenge quantum at the hearing.  This ground has no merit.

Acceptable quality - Major failure?

  1. [76]
    Overall, despite the errors I have found there was sufficient evidence before the member to support a finding that based on the reasonable consumer test the vehicle at the time of sale/purchase was not of an acceptable quality.  Within two weeks of purchase the vehicle was incapacitated and stranded. This amounted to a failure of the consumer guarantee.
  2. [77]
    Findings by the member regarding the fitting of a new turbo before sale and again after the vehicle was retrieved from Cloncurry do not impact that conclusion.  It was reasonable for the member to accept the evidence of Mr Green that there was a foreign object left in the turbo (whether it was the original or a replacement turbo) which caused the turbo failure.  There was no evidence to contradict that understanding. The errors identified do not, in my view, affect the conclusion that a reasonable consumer fully acquainted with the state and condition of the vehicle, the core defect, and the consequences of failure would consider the vehicle at the time of purchase to not be of an acceptable quality.
  3. [78]
    As noted, the reasonable consumer test also applies to the consideration of major failure.  Having concluded that the vehicle was not of an acceptable quality, could the failure be remedied; and, if it can be remedied could it be remedied within a reasonable time?
  4. [79]
    The evidence of Mr Goode is that if there was failure, it has been remedied by Total Car Care on 8 December 2021, a conclusion Mr Goode says is supported by the RACQ motor vehicle inspection report 9 December 2021.
  5. [80]
    The problems with this vehicle would seem to predate its purchase by Ms Hayward.  A new turbo was fitted in May 2021.  There is no evidence about the circumstance which led to the turbo needing replacement at that time.  There presumably was a reason.  The current turbo would be the third turbo this vehicle held in a period of a few months - the (possibly original) turbo before it was replaced in May 2021, the “faulty” replacement installed by Total Car Care in May 2021, and the “replacement replacement” installed by Total Car Care in July-August 2021.  Although the Rockhampton mechanics formed a view that the problems with the engine after the “break down” in Brisbane were severe, Total Car Care record in December 2021 (over 5 months since the first problems were encountered) that the problem was minor – a flange gasket.  The RACQ 9 December 2021 report did not include a road test, and gave the vehicle a Mechanical Condition Rating just above poor. There was no specific report regarding the engine condition apart from a rating of “okay” for engine noise, power balance, exhaust smoke etc.  
  6. [81]
    Again, in my view the errors identified do not affect the conclusion that the problems with this vehicle constitute major failure.
  7. [82]
    At paragraph [43] above I also raise another basis upon which the member might have concluded that the failure to comply with the guarantee was a major failure due to the occurrence of two failures to comply with the guarantee – the first being the failure that led to the breakdown near Cloncurry, the second being the breakdown in Brisbane.  While Mr Goode does not accept that the event in Brisbane was a “break down” it was the view of the hearing member, and it is my view it was.  Further, in my view it constituted a second failure to comply with the consumer guarantee and would qualify as a major failure for the purposes of s 260(2) of the ACL.  
  8. [83]
    Therefore, leave to appeal is granted, however for the reasons contained herein the appeal is refused and the decision of the hearing member is not disturbed.

Orders

  1. The application for leave to appeal is granted.
  2. The appeal is refused.

Footnotes

[1] Pickering v McArthur [2005] QCA 294 [5].

[2] Cougar Air Pty Ltd v Sankarayya [2015] QCATA 98.

[3] For convenience, throughout these reasons the appellant is referred to as Mr Goode, as representing Opportunity Found Pty Ltd trading as Goode Family Cars.

[4] Attachment 1 to the Appeal Book, pg. 17.

[5] Statement of evidence of the Respondent – Exhibit A – Total Car Care invoice 151388 – 27 May 2021.

[6] Attachment to the Statement of Evidence of Ms Hayward filed 20 January 2022.

[7] T1-11, lines 27 to 29.

[8] Statement of Ms Hayward filed 20 January 2022, attached invoice dated 30 November 2021.

[9] Statement of evidence of the respondent – 15 February 2022, ex E.

[10] Grounds of Appeal filed 18 August 2022 [7].

[11] Grounds of Appeal filed 18 August 2022 [3(a)(i)].

[12] Statement of Evidence of the Respondent 15 February 2022, ex E.

[13] Grounds of Appeal [8(c)(i)].

[14] Medtel Pty Ltd v Courtney (2003) 130 FCR 182.

[15] Williams v Toyota Motor Corporation Australia Limited (Initial Trial) [2022] FCA 344 [166] (Lee J).

[16] Ibid [168].

[17] T1-18 lines 19 to 20.

[18] T1-18 lines 23-25.

[19] T1-4 lines 18 to 19.

[20] T1-12 lines 15 to 16.

Close

Editorial Notes

  • Published Case Name:

    Opportunity Found Pty Ltd v Haywood

  • Shortened Case Name:

    Opportunity Found Pty Ltd v Haywood

  • MNC:

    [2024] QCATA 32

  • Court:

    QCATA

  • Judge(s):

    JR McNamara

  • Date:

    14 Mar 2024

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Cougar Air Pty Ltd v Sankarayya [2015] QCATA 98
2 citations
Jump To
Cite 1 - [2015] QCATA 98
Cite 2 - [2015] QCATA 98
Howarth v Biscamoss Pty Ltd [2022] QCATA 72
2 citations
Jump To
Cite 1 - [2022] QCATA 72
Cite 2 - [2022] QCATA 72
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
Pickering v McArthur [2005] QCA 294
2 citations
Jump To
Cite 1 - [2005] QCA 294
Cite 2 - [2005] QCA 294
Williams v Toyota Motor Corporation Australia Limited [2022] FCA 344
2 citations
Jump To
Cite 1 - [2022] FCA 344
Cite 2 - [2022] FCA 344

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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