BNMB Transport Pty Ltd v Mercedes-Benz Australia/Pacific Pty Ltd

The case of BNMB Transport Pty Ltd v Mercedes-Benz Australia/Pacific Pty Ltd involved a dispute between a purchaser of a used vehicle and the seller. BNMB Transport Pty Ltd (BNMB) purchased a vehicle from Mercedes-Benz Australia/Pacific Pty Ltd (Mercedes-Benz) for $85,000, but the vehicle experienced a major failure within two months of the purchase. BNMB alleged that the failure was due to a breach of consumer guarantees as to acceptable quality and fitness for purpose under the Australian Consumer Law (ACL), as well as a contravention of a statutory warranty under the Motor Car Traders Act 1986 (Vic). Mercedes-Benz denied liability and argued that the failure resulted from misuse or abnormal use of the vehicle after BNMB took delivery. The primary judge found in favour of Mercedes-Benz, holding that the failure of the vehicle's rear sub-frame was the result of misuse of the vehicle after BNMB took delivery.
The primary judge made several findings that led to this conclusion. First, the primary judge preferred the expert evidence of Dr Robert Casey, a mechanical engineer, over that of Mr William Malkoutzis, another mechanical engineer. The primary judge based this preference on the comparative academic qualifications and experience of the experts, as well as the quality of their evidence. Dr Casey was found to be an extremely impressive witness, with compelling evidence of the rotation of the rear sub-frame and the consequences of that rotation on the bolts and nuts. In contrast, Mr Malkoutzis was found to be willing to engage in speculation and not a careful witness. Second, the primary judge found that the failure of the vehicle's rear sub-frame was the result of harsh acceleration after BNMB took delivery. This finding was based on the evidence of Mr Scott Kelly, a supervisor and workshop foreman with Mercedes-Benz who was responsible for all roadworthy and pre-delivery operations. Mr Kelly testified that the vehicle was designed to be a high-performance vehicle but was nonetheless a passenger vehicle, not a race vehicle. He said that while the vehicle was built to withstand serious acceleration, it was not designed to withstand harsh acceleration, such as wheel spinning, "throwing the car around sideways," or putting the accelerator flat to the floor. Third, the primary judge found that Mercedes-Benz had made out statutory defences under s 54(6) of the ACL and s 54(4) of the MCT Act. These defences provide that goods do not fail to be of acceptable quality if the consumer causes them to become so, or if the goods are damaged by abnormal use, and that the obligation to repair the vehicle does not apply to any defect arising "from misuse or negligence on the part of the driver of the motor car that occurred after the taking of delivery," respectively. The primary judge found that the failure of the vehicle's rear sub-frame was the result of misuse of the vehicle after BNMB took delivery, and therefore Mercedes-Benz was not liable for the failure. The appeal was dismissed, and BNMB was ordered to pay Mercedes-Benz's costs.