Berry v Auto Direct Group Pty Ltd

[2020] QCAT 383

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Berry v Auto Direct Group Pty Ltd [2020] QCAT 383

PARTIES:

NED CASSIDY BERRY

(applicant)

v

AUTO DIRECT GROUP PTY LTD

(respondent)

APPLICATION NO/S:

MVL052-20

MATTER TYPE:

Motor vehicle matters

DELIVERED ON:

6 October 2020

HEARING DATE:

1 October 2020

HEARD AT:

Brisbane

DECISION OF:

Member Cranwell

ORDERS:

1.   Ned Cassidy Berry is required to return the motor vehicle the subject of these proceedings (including the engine) to Auto Direct Group Pty Ltd within 14 days of the date of these orders.

2.   Auto Direct Group Pty Ltd is required to pay to Ned Cassidy Berry the amount of $18,950 within 28 days of the date of these orders.

CATCHWORDS:

TRADE AND COMMERCE – COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION – CONSUMER PROTECTION – GUARANTEES, CONDITIONS AND WARRANTIES IN CONSUMER TRANSACTIONS – GUARANTEES, CONDITIONS AND WARRANTIES – whether motor vehicle of acceptable quality – whether failure to comply with consumer guarantee a major failure – whether goods rejected during the rejection period – whether consumer entitled to refund

Competition and Consumer Act 2010 (Cth), Schedule 2 – Australian Consumer Law s 54, s 259, s 260, s 262, s 263, s 278, s 279

Fair Trading Act 1989 (Qld), s 50A

Campbell v Caravan & RV Central Pty Ltd t/as Avan New South Wales & FCA Australia Pty Ltd [2016] NSWCATCD 90

Haisman v Drive (Aust) Pty Ltd  [2020] QCAT 44
Medtel Pty Ltd v Courtney (2003) 130 FCR 182

Morphy v Beaufort Townsville Pty Ltd [2018] VCAT 1520

APPEARANCES & REPRESENTATION:
Applicant:	Self-represented
Respondent:	Self-represented

REASONS FOR DECISION

1. On 28 February 2020, Mr Berry (‘the applicant’) filed an Application – Motor Vehicle Dispute with the Tribunal.  The respondent is Auto Direct Group Pty Ltd (‘the respondent’).

2. The applicant is the owner of a 2010 Subaru Impreza (‘the motor vehicle’). 

3. The applicant purchased the motor vehicle from the respondent on 15 May 2019 for $18,950.

4. The applicant seeks relief under the Australian Consumer Law, which is Schedule 2 to the Competition and Consumer Act 2010 (Cth). The relief sought by the applicant is a refund plus damages.

5. Section 50A of the Fair Trading Act 1989 (Qld) vests the Tribunal with jurisdiction in relation to motor vehicles in respect of certain actions under the Australian Consumer Law.

6. Pursuant to s 3(1)(b) of the Australian Consumer Law, a person is taken to have acquired goods as a consumer if ‘the goods were of a kind ordinarily acquired for personal, domestic or household use or consumption’. This includes the applicant’s motor vehicle.

Guarantee of acceptable quality

1. Section 54(1) of the Australian Consumer Law provides that, where a person supplies goods in trade or commerce, the goods are guaranteed to be of ‘acceptable quality’.

2. The time at which goods are to be of acceptable quality is the time at which the goods are supplied to the consumer: Medtel Pty Ltd v Courtney (2003) 130 FCR 182 at [64] and [70]. However, information available after the time of…