Dempsey v Northside Marine Pty Ltd

[2019] QCAT 363

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Dempsey & Anor v Northside Marine Pty Ltd [2019] QCAT 363

PARTIES:

EMMA IRENE DEMPSEY

(first applicant)

MAX WILLIAM PAULING

(second applicant)

v

NORTHSIDE MARINE PTY LTD

(respondent)

APPLICATION NO/S:

MVL016-19

MATTER TYPE:

Motor vehicle matters

DELIVERED ON:

22 November 2019

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Cranwell

ORDERS:

The Application – Motor Vehicle Dispute filed on 17 September 2019 is dismissed.

CATCHWORDS:

TRADE AND COMMERCE – COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION – CONSUMER PROTECTION – GUARANTEES, CONDITIONS AND WARRANTIES IN CONSUMER TRANSACTIONS – GUARANTEES, CONDITIONS AND WARRANTIES – action in respect of a motor vehicle under s 50A of Fair Trading Act 1989 (Qld) – whether boat falls within definition of motor vehicle

Fair Trading Act 1989 (Qld), s 50A

Motor Dealers and Chattel Auctioneers Act 2014 (Qld),
s 12, Sch 1 s 14

Motor Vehicle Standards Act 1989 (Cth), s 5

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)

REASONS FOR DECISION

1. Ms Dempsey and Mr Pauling filed a Form 59: Application – Motor Vehicle Dispute with the Tribunal on 17 September 2019. 

2. Form 59 requires an applicant or applicants to provide certain details relating to the dispute. Part C of the form requests details of the motor vehicle. Ms Dempsey and Mr Pauling described the motor vehicle as a Whittley FF2100 boat. In Part D, they indicated that they were seeking relief under s 50A of the Fair Trading Act 1984 (Qld).

3. Section 50A(1) of the Fair Trading Act provides:

   A person may apply, as provided under the QCAT Act, to the tribunal for an order mentioned in subsection (2) for an action—

   (a)     under a provision of the Australian Consumer Law (Queensland) listed in the table to this section; and

   (b)     relating to a motor vehicle; and

   (c)     seeking an amount or value of other relief of not more than $100,000.

4. Section 50A(4) provides:

   In this section—

   motor vehicle see the Motor Dealers and Chattel Auctioneers Act 2014, section 12.

5. Section 12(1) of the Motor Dealers and Chattel Auctioneers Act 2014 (Qld) relevantly defines a ‘motor vehicle’ as follows:

   A motor vehicle means—

   (a)     a vehicle that moves on wheels and is propelled by a motor that forms part of the vehicle, whether or not the vehicle is capable of being operated or used in a normal way; or

   (b)     a caravan.

6. It is stating the obvious to observe that a boat is not ‘a vehicle that moves on wheels’. Accordingly, a boat does not fall within the definition of motor vehicle contained in s 12 of the Motor Dealers and Chattel Auctioneers Act.

7. Ms Dempsey and Mr Pauling have submitted that a boat falls within the definition of motor vehicle in s 5 of the Motor Vehicle Standards Act 1989 (Cth). However, that definition of motor vehicle is not the definition required to be applied pursuant to s 50A(4) of the Fair Trading Act. The existence of a different definition of motor vehicle in a different Act passed by a different Parliament is irrelevant.

8. It follows that the Tribunal does not have jurisdiction to hear the application under

   
   

   s 50A of the Fair Trading Act, nor for that matter under s 14 of Schedule 1 to the Motor Dealers and Chattel Auctioneers Act.

9. The application is therefore dismissed.