Ehlers v Performax International Pty Ltd - [2025] QCAT 233

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Ehlers v Performax International Pty Ltd [2025] QCAT 233

PARTIES:

BRIAN EHLERS

(applicant)
VICKI EHLERS
(applicant)

v

PERFORMAX INTERNATIONAL PTY LTD

(respondent)

APPLICATION NO:

MVL025-24

MATTER TYPE:

Motor vehicle matter

DELIVERED ON:

16 June 2025

HEARING DATE:

22 May 2025

HEARD AT:

Brisbane

DECISION OF:

Member Chapple

ORDERS:

1.     ‘Vicki Ehlers’ is added as an Applicant in this proceeding.

2.     The Applicant must allow the return of the vehicle to the Respondent within 14 days of the date of these orders.

3.     To facilitate the return of the vehicle, the Respondent must collect the vehicle from the Applicant at the Respondent’s expense within 14 days of the date of these orders.

4.     The Respondent must give the Applicant 2 days’ written notice of the vehicle collection date and time and, upon receipt of such notice, the Applicant must advise the Respondent in writing of the address at which the vehicle is located and ready for collection.

5.     The Applicant must allow the Respondent reasonable and necessary access for the collection of the vehicle.

6. The Respondent must within 12 weeks of the vehicle collection date, and at the Respondent’s expense not exceeding $100,000, replace the vehicle’s engine and perform all necessary investigations, testing and rectification of the vehicle’s systems, including the DPF system, such that the vehicle is of an acceptable quality in accordance with the requirements of Australian Consumer Law (‘the rectification work’).

7.     The Respondent must provide the Applicant a warranty in respect of the rectification work comparable to industry standards in duration and scope for equivalent work (‘the warranty’).

8.     The Respondent must upon completion of the rectification work and within 12 weeks of the vehicle collection date, make the vehicle available for collection by the Applicant from the Respondent’s premises and provide to the Applicant at that time all relevant documentation relating to the rectification work and the warranty.

CATCHWORDS:

NEW MOTOR VEHICLE – GUARANTEE OF ACCEPTABLE QUALITY – FAILURE TO COMPLY – where engine failure occurred outside contractual warranty period – where manufacturer defect existing at time of supply – where vehicle not fit for purpose and nor free of defects – where supplier bound by acceptable quality guarantee – where order made to return and rectify vehicle

Australian Consumer Law (Queensland), s 54, s 259, s 261, s 262, s 263

Fair Trading Act 1989 (Qld), s 16, s 50A

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 42

Medtel Pty Ltd v Courtney (2003) 130 FCR 182

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

Self-represented

REASONS FOR DECISION

Background

Mrs Ehlers purchased for her husband a new white 2017 model TI Nissan Titan utility (‘the vehicle’) from Performax International Pty Ltd (‘the Respondent’) for a purchase price of $116,694.70, and total settlement sum including taxes and insurance of $125,000. The vehicle had been imported from the United States and converted to right-hand drive. Mrs Ehlers and the Respondent signed a new vehicle purchase contract and warranty on…

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.

Keep reading for free

Create a free CaseChat account to read Ehlers v Performax International Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2025] QCAT 233
Decision Date: 16 June 2025

CaseChat Overview and Summary

The matter of Ehlers v Performax International Pty Ltd involved Vicki Ehlers, the purchaser of a motor vehicle, and Performax International Pty Ltd, the supplier. The dispute centred on the vehicle's failure to meet the acceptable quality guarantee under the Australian Consumer Law, despite multiple services and repairs. The vehicle experienced significant engine issues, including a complete engine failure, which occurred outside the contractual warranty period. Vicki Ehlers sought remedies for the failure of the vehicle to comply with the consumer guarantees, specifically the guarantee of acceptable quality.

The court was tasked with determining whether the vehicle was of acceptable quality at the time of supply and whether the engine failure was due to a pre-existing defect. The court considered the contractual terms, the evidence provided by both parties, and the expert assessment of the vehicle's condition. The court examined the expert's report, which identified a blocked diesel particulate filter and issues with the crankshaft position, leading to the engine failure. The court also weighed the testimonies of Vicki Ehlers, the vehicle owner, and the Respondent's representative, who provided insights into the vehicle's maintenance and the diagnosis of its defects.

The court found that the vehicle was not of acceptable quality at the time of supply, as evidenced by the persistent issues with the turbo and the eventual engine failure. The court determined that the engine failure was due to a pre-existing defect, which rendered the vehicle unfit for its intended purpose. The court ordered Performax International Pty Ltd to replace the vehicle's engine and perform necessary rectification work to ensure the vehicle met the acceptable quality standards. Additionally, the court mandated that the Respondent provide a warranty for the rectification work and return the vehicle to Vicki Ehlers in a fit state.

In summary, the court ordered the Respondent to replace the vehicle's engine and rectify all necessary systems within 12 weeks at their expense, up to a maximum of $100,000. The Respondent was also required to provide a warranty for the rectification work and return the vehicle to Vicki Ehlers once the work was completed. The court mandated that Vicki Ehlers allow the Respondent to collect the vehicle from her premises and provide reasonable access for the collection and repair process.

Orders

Orders of the court

1. ‘Vicki Ehlers’ is added as an Applicant in this proceeding.

2. The Applicant must allow the return of the vehicle to the Respondent within 14 days of the date of these orders.

3. To facilitate the return of the vehicle, the Respondent must collect the vehicle from the Applicant at the Respondent’s expense within 14 days of the date of these orders.

4. The Respondent must give the Applicant 2 days’ written notice of the vehicle collection date and time and, upon receipt of such notice, the Applicant must advise the Respondent in writing of the address at which the vehicle is located and ready for collection.

5. The Applicant must allow the Respondent reasonable and necessary access for the collection of the vehicle.

6. The Respondent must within 12 weeks of the vehicle collection date, and at the Respondent’s expense not exceeding $100,000, replace the vehicle’s engine and perform all necessary investigations, testing and rectification of the vehicle’s systems, including the DPF system, such that the vehicle is of an acceptable quality in accordance with the requirements of Australian Consumer Law (‘the rectification work’).

7. The Respondent must provide the Applicant a warranty in respect of the rectification work comparable to industry standards in duration and scope for equivalent work (‘the warranty’).

8. The Respondent must upon completion of the rectification work and within 12 weeks of the vehicle collection date, make the vehicle available for collection by the Applicant from the Respondent’s premises and provide to the Applicant at that time all relevant documentation relating to the rectification work and the warranty.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Where the consumer guarantee is not complied with, the consumer may take certain action against the supplier.[1]Evidence[1]ACLQ ss 259(2), 259(3), 261, 262, 263.Documentary evidence The parties filed the following material, which was read into the Tribunal’s record:(a)New Vehicle Purchase Contract #4947 dated 30 June 2020.(b)Warranty #PPLS2259475 dated 30 June 2020.(c)Bathurst Motor Group invoice dated 13 October 2023.(d)Performax International invoice and related email correspondence dated 5 February 2024.(e)Statement of evidence – Vicki Ehlers dated 27 May 2024.(f)Statement of evidence – Brian Ehlers dated 27 May 2024.(g)Statement of evidence – Geoffrey Robertson dated 3 May 2024.(h)Statement of evidence – Greg Waters dated 29 May 2024.(i)Motor Vehicle Assessment Report by Robert Haigh dated 16 June 2024.Applicant’s oral evidence Mr and Mrs Ehlers gave or concurred with evidence at hearing in response to my examination, which I summarise as follows:(a)The vehicle was sold as an extra duty pick-up truck with a 5 litre Cummins V8 turbo diesel engine promoted as having legendary power, reliability and efficiency. The Applicant bought the vehicle to tow their caravan.(b)The Applicant had the vehicle serviced by the Respondent every 6 months since purchase before engine failure; in total, 7 services and 7 oil changes over a total mileage of 49,000 kilometres.(c)The vehicle had gone into limp mode on many occasions due to the turbo. The Respondent could not diagnose the problem because they did not have the correct software, so the vehicle was sent to another company, SCD at Brendale; they diagnosed issues with the turbo and repaired under warranty.(d)When the malfunction light came on in the vehicle before the Applicant left for their caravanning holiday, the Respondent told them the vehicle was okay to drive with the light on because it was just the sensor. At the time, the Respondent performed a regeneration, for which the Applicant was charged $455 whilst the vehicle was still under warranty.(e)Whilst in Bathurst on their caravanning holiday, the Applicant took the vehicle to Bathurst Nissan, concerned about the malfunction light persisting. Bathurst Nissan cautioned the Applicant that they should not be driving the vehicle while the malfunction light was on. Bathurst Nissan scanned the vehicle and found code indicating a high reading for the particulate filter. Bathurst Nissan performed a regeneration then test drove the vehicle, advising that the code had cleared, the malfunction light had not reappeared, and it was okay to drive the vehicle back home to Queensland as long as the light did not reappear. Bathurst Nissan told the Applicant they could not diagnose the problem properly, but the light issue had been addressed so the vehicle could be driven. They also noted that the vehicle was shifting harshly through the transmission, which was consistent with the Applicant’s experience of the vehicle since purchase.(f)When the Applicant proceeded to drive home, the vehicle began shuddering abruptly before the engine shut down completely.(g)They would have taken out the extended warranty had it been offered, however it was not offered.Respondent’s oral evidence

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Mr Haigh gave evidence at hearing in response to my and the Respondent’s examination, which I summarise as follows:(a)When he inspected the vehicle on 14 June 2024, it was located at the Applicant’s Sunshine Coast property. The vehicle could not be started. (b)He conducted diagnostic testing on the vehicle by connecting the diagnostic tool to the vehicle’s engine computer that records the diagnostic trouble code/s. There are specific codes for specific defects. There is no problem with conducting the testing some months after the engine failure because the codes are stored in the engine computer until they are cleared by the action undertaken to address the defect.(c)He found main three codes. One code related to the diesel particulate filter (‘DPF’), a filter in the exhaust to comply with emissions standards. The filter holds the soot particles preventing them from being emitted; when the filter is full, the exhaust heats up to 700 degrees to burn the soot particles off resulting in less carbon being emitted. The code indicated the DPF was blocked.(d)The other codes related to the crankshaft position and misfire. The position of the crankshaft dictates the engine timing and fuel injection. If the position is wrong, the engine timing is out and misfires.(e)The crankshaft is a very solid piece of machinery; it takes time to fatigue and crack. The vehicle was not used often and had low mileage, which would explain why it took three years for the engine to fail.(f)The style of engine in this model year vehicle has a reported problem with the crankshaft snapping at low kilometres; it is an American engine, there are few in Australia. He is not aware of when the US investigation into the problem began and did not offer any further details about the investigation.(g)Nissan Australia does not have the capacity to test the vehicle with their equipment because the vehicle is imported; they do not have the genuine factory scan tools. Every country is different in the parameters of their scan tools. He however has a generic scan tool that tests motor vehicles across the world.(h)He did not internally inspect the crankshaft because to do so would require a complete engine disassembly. Rather, he removed the inspection cover on the gearbox and inserted a bar that allowed him to pull back the plate at the back of the engine. He observed that the crankshaft was moving in the engine where it should not be. Crankshafts need oil lubrication; the oil helps reduce friction and wear. He removed the oil filter and found metal particles from the crankshaft in the oil.(i)He could not inspect the DPF system because to do so would require the engine running to determine the differential pressures and blockage. Excessive back pressure in the exhaust could cause excessive load on the engine when it is not required, which can put extra strain on the crankshaft, connecting rods and pistons.(j)It is not normal for a DPF system to get blocked. It is an unserviceable component; it operates under its own parameters and requires no maintenance. Usually, a DPF blockage is due to an air leak somewhere in the intake system: the vehicle loses engine boost, the computer detects that and increases the fuel to the engine to increase the boost pressure; more fuel causes more soot particles to collect in the DPF filter, which in turn rapidly causes blockage. He is not certain that the DPF blockage has contributed to the engine failure; he would need to do conduct testing when the engine is running.(k)He understands the vehicle had been inspected on a couple of occasions for the DPF issue and believes it should not have been driven while the codes indicated the issue was persisting. The forced burn-off or regeneration previously conducted is not the best diagnostic procedure; it should never be required for a properly functioning DPF system. (l)He does not agree with the Respondent’s proposition that where a vehicle like this one is not driven much and treated more like a car, the vehicle needs a forced burn off from time to time. It does not matter how blocked the DPF is; if the vehicle is driven on the motorway at a correct speed with no defects recorded, and if the DPF filter is full, a burn off will automatically be triggered. He does not believe the cause was the low mileage; rather, he believes there was an air leak in the intake and that has caused the soot particles to build up. This is consistent with the codes that Bathurst Nissan found, one relating to turbo boost control and the other relating to crank case ventilation.(m)He does not believe the conversion to right-hand drive has contributed to the engine failure.(n)He recommends an engine replacement or overhaul. Replacement viability depends on the availability of parts, which would need to come from the United States. It also depends on how much internal damage there is to the engine; it would need to be stripped down before deciding whether it was rebuildable. If the crankshaft case is damaged from the crankshaft failure, there would need to be an engine replacement. Most people would elect for a replacement because parts are cheaper than labour. The DPS system would need to be investigated further once the engine is fitted.Consideration