Collyer v Grays (NSW) Pty Ltd - [2022] QCATA 80

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Collyer v Grays (NSW) Pty Ltd [2022] QCATA 80

PARTIES:

CHARLES WILLIAM COLLYER

(applicant/appellant)

v

GRAYS (NSW) PTY LTD

(respondent)

APPLICATION NO/S:

APL150-21

ORIGINATING APPLICATION NO/S:

MVL198-20

MATTER TYPE:

Appeals

DELIVERED ON:

15 June 2022

HEARD AT:

Brisbane

DECISION OF:

A/Senior Member Traves

ORDERS:

1.       The appeal is allowed.

2.       The respondent must pay the appellant the sum of $9,900 within 21 days of the date of this order.

3.       There is no order as to costs.

CATCHWORDS:

APPEAL – TRADE AND COMMERCE - COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION – CONSUMER PROTECTION – GUARANTEES, CONDITIONS AND WARRANTIES IN CONSUMER TRANSACTIONS – where the appellant bought a vehicle from the respondent by auction – where online description of motor vehicle that engine ‘turned over’ – where engine seized – whether s 18 of the Australian Consumer Law applies – whether error of law - whether misleading and deceptive conduct

Agents Financial Administration Act 2014 (Qld), s 82, s 119

Australian Consumer Law (Qld), s 18, s 236
Competition and Consumer Act 2010 (Cth), Schedule 2
Fair Trading Act 1989 (Qld), s 50, s 50A
Motor Dealers and Chattels Auctioneers Act 2014 (Qld), s 13, s 130, s 193, s 194, s 216, Schedule 1: s 14, s 15.

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142, s 146, s 147

ACCC v Valve Corp (No 3) [2016] FCA 196

Argy v Blunts [1990] FCA 57
Khattab v Grays (Vic) Pty Ltd [2017] VCAT 135
Mindemir v Manheim Pty Ltd [2017] VCAT 612
Knox v Tait Motors Pty Ltd t/as Tait Auto Group [2021] QCATA 87

APPEARANCES & REPRESENTATION:

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

The applicant, Mr Collyer bought a 2010 Land Rover at auction which he said he would not have purchased had he known the engine did not turn over. The auctioneer was Grays (NSW) Pty Ltd trading as Graysonline (Grays). Mr Collyer commenced proceedings in the Tribunal seeking the amount of $9,900.00. This was the amount quoted by Automotive Skills for a replacement engine.
The Tribunal dismissed Mr Collyer’s application.[1] Mr Collyer appeals the decision.[2]
[1]Tribunal Decision dated 6 May 2021.
[2]Application for leave to appeal or appeal filed on 3 June 2021.
The grounds of appeal
Mr Collyer relies upon the following grounds of appeal, which we have summarised as follows:
1.Ground 1 – the Tribunal erred in finding that Grays did not have a “beneficial interest” in the motor vehicle;
2.Ground 2 – the Tribunal erred in finding that the Motor Dealers and Chattels Auctioneers Act 2014 (Qld) (Motor Dealers Act) did not apply, in particular s 216. The tribunal erred in finding the description provided by Grays was not misleading;
3.Ground 3 – the Tribunal erred in finding this was a sale by auction within the meaning of s 13 of the

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] QCATA 80
Decision Date: 15 June 2022

CaseChat Overview and Summary

The case of Collyer v Grays (NSW) Pty Ltd involved a dispute between the appellant, Mr Collyer, and the respondent, Grays (NSW) Pty Ltd, regarding the purchase of a motor vehicle by auction. The vehicle was sold with an online description stating that the engine "turned over," but it subsequently seized. Mr Collyer sought to have the sale rescinded or for damages, claiming that the description was misleading and deceptive under the Australian Consumer Law (ACL). The primary issue before the court was whether section 18 of the ACL applied and was breached, and if so, whether the error of law was significant enough to warrant misleading and deceptive conduct.

The court found that section 18 of the ACL did indeed apply and was breached, leading to the conclusion that the error of law was sufficient to constitute misleading and deceptive conduct. The court acknowledged that although the engine did turn over at the time of booking, the pre-sale representation did not fully disclose the engine's condition. The online description stating that the engine did not start was insufficient to negate the misleading nature of the initial description. Furthermore, the court rejected Grays' argument that the "as is" condition disclaimer absolved them of liability, as it was not reasonably available to Mr Collyer at the time of making the purchase decision.

The appeal was allowed, and the respondent was ordered to pay the appellant $9,900 within 21 days. This amount represented the cost of a new engine, excluding labour costs, which the court deemed appropriate given the circumstances. The court did not order any costs, reflecting its view on the appropriate allocation of legal expenses in this case.

Orders

Orders of the court

1. The appeal is allowed.

2. The respondent must pay the appellant the sum of $9,900 within 21 days of the date of this order.

3. There is no order as to costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

This ground has no merit.Conclusion In view of my finding that s 18 of the ACL applied and was breached, leave to appeal is not required. In terms of appropriate damages, Mr Collyer has sought $9,900 being the cost of a new engine, not including labour costs. Ordinarily, Mr Collyer would have been entitled to be put in the position he would have been in, but for the misleading and deceptive conduct. On Mr Collyer’s evidence he would not have proceeded with the purchase. It was arguable therefore, that Mr Collyer would have been entitled to recover the price he paid for the vehicle. However, Mr Collyer has instead sought damages in the sum of $9,900. I am satisfied, given the price paid for the vehicle but also the fact that he retained a vehicle without an operating engine, that such sum is appropriate by way of damages. Accordingly, I make the following orders:1. The appeal is allowed.2. The respondent must pay the appellant the sum of $9,900 within 21 days of the date of this order.3. There is no order as to costs.

Ratio Decidendi

Legal Principle Established

The relevant principles to be applied in determining whether to grant leave to appeal are: is there a reasonably arguable case of error in the primary decision?;[6] is there a reasonable prospect that the applicant will obtain substantive relief?;[7] is leave necessary to correct a substantial injustice to the applicant caused by some error?;[8] is there a question of general importance upon which further argument, and a decision of the appellate court or tribunal, would be to the public advantage?[9] [6]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.[7]Cachia v Grech [2009] NSWCA 232.[8]Rintoul v State of Queensland & Ors [2018] QCA 20.[9]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, 578, 580.Consideration I turn to consider each of the grounds of appeal.Ground One Mr Collyer submits that, in effect, because Grays were paid a “buyers premium” (of $743.63) it had a beneficial interest in the motor vehicle. Mr Collyer says that the Motor Dealers Act does not specify at what level the buyer’s premium becomes a beneficial interest. Mr Collyer states that “clearly, if Graysonline charged the buyer a premium of 100% [of the sale price] they would have a beneficial interest in the vehicle”. Grays submit that it does not have a beneficial interest in the vehicle and that the vehicle is owned by the vendor, not them. The buyer’s premium was charged in accordance with s 130 of the Motor Dealers Act and accepting such a premium does not mean it acts for the buyer. Mr Collyer has not demonstrated any error by the Tribunal in finding Grays not to have a beneficial interest in the motor vehicle. The nature of the buyer’s premium is a fee for service charge. Charging such a premium, even when calculated as a percentage of the sale price, does not confer a beneficial interest in the vehicle on the auctioneer. There is no merit in this ground. Ground Two and Four I will consider grounds two and four together. Mr Collyer submits that he did not, in the hearing at first instance, seek to rely on the guarantee provisions of the ACL but rather on the basis he had been given misleading information under s 216(1) of the Motor Dealers Act. Mr Collyer submits that this provision “does not differentiate between licensed auctioneers or vehicle dealers”. Grays accept that s 216 of the Motor Dealers Act does apply to it. However, Grays submit that at the time of ‘booking in’ the engine did turn over but would not start.[10] Grays refers to its online listing of the vehicle which provides that the engine does turn over but which also states elsewhere “Engine & Mechanical: Engine not starting”. Further, Grays submits that it is not reasonable for the representations made by Grays pre-sale to be relied upon in isolation. Grays refers to s 216(2) and submits that Mr Collyer understood and accepted that the sale of the motor vehicle was “as is” and that the description was a ‘guide only’. [10]Responses to Applicant’s Submissions at [2](b).