Cicchini v Barbizon Pty Ltd - [2014] QCAT 675

CITATION:

Cicchini v Barbizon Pty Ltd [2014] QCAT 675

PARTIES:	Concetta Cicchini (Applicant)
v
Barbizon Pty Ltd ACN 062 850 819 (Respondent)

APPLICATION NUMBER:

MCD903/13

MATTER TYPE:

Other minor civil dispute matters

HEARING DATE:

22 September 2014

HEARD AT:

Brisbane

DECISION OF:

Adjudicator Davern

DELIVERED ON:

23 December 2014

DELIVERED AT:

Brisbane

ORDERS MADE:

The Application is Dismissed

CATCHWORDS:

Minor Civil Dispute – Sale of Goods – acceptable quality – motor vehicle – right to reject the goods – reduction of claim to come within jurisdiction

Australian Consumer Law ss 54, 259 – 262
Queensland Civil and Administrative Tribunal Rules 2009 rule 83

Russo v Belcar Pty Ltd ACN 967 286 081 & Anor [2011] SASCFC 151
Medtel Pty Ltd v Courtney [2003] FCAFC 151
Effem Foods Ltd v Nicholls [2004] NSWCA 332
Graanhandel T Vink BV v European Grain and Shipping Ltd [1989] 2 Lloyd’s Rep 531

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Ms Concetta Cicchini – in person

RESPONDENT:

Barbizon Pty Ltd (ACN 062 850 819) represented by Mr Ken Berrill , general manager, Audi Centre Brisbane

REASONS FOR DECISION

The Applicant’s claim relates to the purchase of a motor vehicle from the Respondent on or about 24 October 2009 through its ‘Alfa Romeo Gold Coast’ Dealership. The subject vehicle is a 2008 Alfa Romeo 147 5-door hatchback and the purchase price was $41,050 (including on road costs). In her application, which was filed on 8 May 2013, the Applicant originally sought a payment order for the amount of $41,385.80, for a refund of the purchase price with some costs. The claim is based on allegations that the vehicle is not safe and reliable to drive, is not fit for purpose for which it was purchased, and is not of a merchantable quality.
From December 2009 on, Ms Cicchini returned her vehicle to Alfa Romeo Brisbane on a number of occasions to have a variety of matters dealt with. The most serious of these was the replacement of the transmission in February 2010. Much of the work was completed under warranty. Some issues appear to relate to contaminated fuel in the vehicle, after it had travelled 25,000km. On each occasion, the Respondent provided Ms Cicchini with a courtesy car.
From the evidence, the first clear attempt by Ms Cicchini to terminate the contract and return the vehicle for a full refund, occurred with her engagement with the Office of Fair Trading in April 2012.
The last work done to the vehicle by the Respondent was in July 2012. Issues were dealt with under warranty and the vehicle was driving effectively. Also in that month, as a goodwill gesture, the Fiat Chrysler Group offered Ms Cicchini an extension of the original manufacturer’s three year warranty, to 31 October 2013.
The Applicant claims that further issues arose but she did not return her vehicle to the Respondent for attention because they were refusing to provide her with a courtesy again, as she had returned the last one damaged. The Applicant…

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: [2014] QCAT 675
Decision Date: 23 December 2014

CaseChat Overview and Summary

The case of Cicchini v Barbizon Pty Ltd involved a dispute between a buyer and a seller of a motor vehicle. The buyer, Cicchini, alleged that the vehicle was not of acceptable quality and sought a refund of the purchase price. Barbizon Pty Ltd, the seller, contested the claim, arguing that the vehicle met acceptable quality standards. The matter was brought before the ACT Civil and Administrative Tribunal, which has jurisdiction over minor civil disputes up to $75,000.

The central legal issues that the Tribunal needed to address were whether the motor vehicle sold by Barbizon Pty Ltd met the acceptable quality standard as defined under the Australian Consumer Law, and whether Cicchini was entitled to reject the goods and seek a refund. The Tribunal also needed to determine if Cicchini's claim was appropriately reduced to fall within the tribunal's jurisdictional limits.

The Tribunal examined the evidence presented by both parties, including expert opinions on the condition of the vehicle. It found that while the vehicle had several defects, they did not collectively render the vehicle outside of acceptable quality. The Tribunal concluded that the defects were not significant enough to justify rejecting the vehicle outright and awarding a full refund. Consequently, Cicchini's claim exceeded the tribunal's jurisdictional limit, leading to the dismissal of the application. The Tribunal did not have the authority to entertain claims over $75,000, and reducing the claim to fit within this limit was not deemed appropriate.

Orders

Orders of the court

The Application is Dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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