Berry v Auto Direct Group Pty Ltd (No 2)

[2020] QCAT 450

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Berry v Auto Direct Group Pty Ltd (No 2) [2020] QCAT 450

PARTIES:

NED CASSIDY BERRY

(applicant)

v

AUTO DIRECT GROUP PTY LTD

(respondent)

APPLICATION NO/S:

MVL052-20

MATTER TYPE:

Motor vehicle matters

DELIVERED ON:

25 November 2020

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Cranwell

ORDERS:

1.    The reference to engine in order 1 made on 6 October 2020 is to all components of the engine in Ned Cassidy Berry’s possession or under his control.

2.   The application for miscellaneous matters filed on 3 November 2020 is otherwise dismissed.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – JUDGMENTS AND ORDERS – GENERALLY – where party seeks clarification of order – where party seeks additional order relating to disbursement of amount ordered to be paid

Competition and Consumer Act 2010 (Cth), Schedule 2 – Australian Consumer Law, s 263

Personal Property Securities Act 2009 (Cth), s 21

REPRESENTATION:
Applicant:	Self-represented
Respondent:	Self-represented
APPEARANCES:	This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)	This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

1. On 6 October 2020, I made the following orders in these proceedings:[1]

   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.

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

2. On 3 November 2020, the respondent filed an application for miscellaneous matters.  The respondent sought:

   (a)clarification as to what the Tribunal meant by the requirement that the applicant return the engine; and

   (b)an order requiring the disbursement of certain funds directly to Pepper Asset Finance Pty Ltd as the holder of a security interest over the motor vehicle.

3. The applicant filed written submissions on 13 November 2020.

4. I will deal with each matter raised in the application for miscellaneous matters in turn.

Engine

1. The evidence before me at the hearing was the applicant took the motor vehicle to Kirra Mechanical when warning lights came on.  Extensive testing was undertaken, which included removal of the engine from the motor vehicle.

2. In my written reasons, I specified that the applicant was required to return the motor vehicle, including its engine.[2] 

   [2]Ibid, [36].

3. In response to the application for miscellaneous matters, I am willing to clarify that the reference to engine means all components of the engine in the applicant’s possession or under his control.

4. For completeness, I note that I accepted the applicant’s evidence that he had rejected the motor vehicle on the day after purchase.[3] Section 263(6) of the Australian Consumer Law provides:

   If the property in the rejected goods had passed to the consumer before the rejection was notified, the property in those goods revests in the supplier on the notification of the rejection.

   [3]Ibid, [29].

5. As the disassembly of the engine took place after the applicant had notified the respondent of the rejection, any risk to the motor vehicle is borne by the respondent.

Refund

1. My order for a refund was made pursuant to section 263(4) of the Australian Consumer Law.[4]  That subsection relevantly provides:

   The supplier must, in accordance with an election made by the consumer:

   (a) refund:

   (i) any money paid by the consumer for the goods; …

   [4]Ibid, [36].

2. The clear inference in s 263(4) is that the refund is to be paid to the consumer, in this case the applicant. The terms of my orders reflect this.

3. In any event, while I had evidence that the applicant had signed a security agreement with Pepper Asset Finance Pty Ltd, I had no evidence before me at the hearing that Pepper Asset Finance Pty Ltd had ‘perfected’ its security interest.[5]  I still have no such evidence before me.

   [5]A security interest is only enforceable if it is perfected by registration on the Personal Property Securities Register: Personal Property Securities Act 2009 (Cth), s 21.

4. Accordingly, I will otherwise dismiss the application for miscellaneous matters.

5. I note in passing that the applicant indicated at a mention on 25 November 2020 that he consented to the amount owing to Pepper Asset Finance Pty Ltd being disbursed directly to it by the respondent.  I am therefore unable to discern any difference of position between the parties.