Addis v McMoore Motor Co - [2022] QCAT 370

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Addis v McMoore Motor Co [2022] QCAT 370

PARTIES:

christopher addis

(applicant)

v

mCMoore motor co

(respondent)

APPLICATION NO/S:

MVL265-21

MATTER TYPE:

Motor vehicle matter

DELIVERED ON:

14 October 2022

HEARING DATE:

4 August 2022

HEARD AT:

Brisbane

DECISION OF:

Member Howe

ORDERS:

Application dismissed

CATCHWORDS:

TRADE AND COMMERCE – COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION – CONSUMER PROTECTION – GUARANTEES, CONDITIONS AND WARRANTIES IN CONSUMER TRANSACTIONS – GUARANTEES, CONDITIONS AND WARRANTIES – where the applicant purchased a 14 year old BMW sedan – where the applicant claimed numerous mechanical problems were identified in the vehicle – where the evidence in support of the claims about defects was poor – where various mechanical problems were rectified under warranty – where the age of the vehicle and kilometres travelled a consideration – where the claim that turbo chargers were defective as at date of sale was not established on the evidence – where there had not been opportunity given to the respondent to rectify minor defects before third party repair – where a compromise of claims associated with defects was not established on the evidence

Competition and Consumer Act 2010 (Cth), Schedule 2, s 54, s 259(2)

Williams v Toyota Motor Corporation Australia Limited [2022] FCA 344

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

Self-represented by P Moore

REASONS FOR DECISION

Mr Addis purchased a 2007 BMW sedan on 5 February 2021 from McMoore Motor Co for $16,500. It had travelled 151,575 kilometres (‘kms’).
As at date of hearing it had done 169,080 kilometres, meaning Mr Addis had travelled 17,505 kilometres in eighteen months of ownership.
Mr Addis gave evidence that only a couple of days after buying the vehicle it broke down. A warning light came on. Mr Addis took it to Bruce Lynton BM Service, who found a faulty throttle actuator.[1] It was replaced under vehicle warranty.
[1]Invoice dated 18 February 2021.
The parties were vague about many aspects of the dispute, including what defects were relied on to support Mr Addis’ general complaint that the car was not of acceptable quality. A number of problems were repaired partially or fully under a warranty. This appears to have been an extended warranty offered at sale. There was no evidence given about the terms of the warranty.
Bruce Lynton BM Service made a recommendation at the foot of the invoice for work done on the throttle actuator that the turbochargers be replaced, citing “waste gate rattles”, and also the sump and rocker cover gaskets and “vac lines”, but offering no elaboration. That repairer also noted various warning lights had been triggered on the dash, referred to oil leaks in the transmission sump and ‘electrical sleeve” and that the air conditioning system was not cooling the car.
Some weeks later, says Mr Addis, the battery failed. He purchased a replacement, the same type he says as the existing battery, but that too failed within three weeks. He was told to purchase a genuine BMW battery.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] QCAT 370
Decision Date

CaseChat Overview and Summary

The matter before the Tribunal was an application by Mr Addis, a consumer, seeking a refund of the purchase price of a second-hand BMW sedan he purchased from McMoore Motor Co, as well as compensation for out of pocket expenses and additional repair costs. Mr Addis alleged that the vehicle was not of acceptable quality at the time of sale and that the respondent was in breach of the guarantee as to acceptable quality under the Competition and Consumer Act 2010 (Cth) (ACL). The respondent argued that the vehicle was old and had been driven a significant distance, and that any mechanical issues that arose were not defects present at the time of sale but were due to normal wear and tear. The primary legal issue before the Tribunal was whether the vehicle was of acceptable quality at the time of sale, and whether the respondent was in breach of the guarantee as to acceptable quality under the ACL. The Tribunal found that the throttle actuator and coolant leak were more likely than not to have been present at the time of sale and therefore constituted a breach of the guarantee as to acceptable quality. However, the Tribunal found that the defects were minor and that Mr Addis was not entitled to recover the costs he paid to have them repaired, as he had not given the respondent an opportunity to remedy the defects before having them repaired by a third party. The Tribunal also found that the claim that the turbo chargers were defective as at the date of sale was not established on the evidence. The Tribunal dismissed Mr Addis' application in its entirety.

The Tribunal made no orders in favour of Mr Addis and dismissed his application.

Orders