Foley v Westco Cairns Pty Ltd

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Foley v Westco Cairns Pty Ltd [2020] QCAT 345

PARTIES:

TIMOTHY GERALD FOLEY

(applicant)

v

WESTCO CAIRNS PTY LTD

(respondent)

APPLICATION NO/S:

MVL021-19

MATTER TYPE:

Motor vehicle matters

DELIVERED ON:

9 September 2020

HEARING DATE:

1 September 2020

HEARD AT:

Brisbane

DECISION OF:

Member Cranwell

ORDERS:

1.   Timothy Gerard Foley is required to return the motor vehicle the subject of these proceedings to Westco Cairns Pty Ltd within 7 days of the date of these orders.

2.   Westco Cairns Pty Ltd is required to pay to Timothy Gerard Foley the amount of $29,990 within 28 days of the date of these orders.

3.   Westco Cairns Pty Ltd is required to pay to Timothy Gerard Foley costs the amount of $345.80 within 28 days of the date of these orders.

CATCHWORDS:

TRADE AND COMMERCE – COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION – CONSUMER PROTECTION – GUARANTEES, CONDITIONS AND WARRANTIES IN CONSUMER TRANSACTIONS – GUARANTEES, CONDITIONS AND WARRANTIES – whether motor vehicle of acceptable quality – whether failure to comply with consumer guarantee a major failure – whether goods rejected during the rejection period – whether consumer entitled to refund

Competition and Consumer Act 2010 (Cth), Schedule 2 – Australian Consumer Law s 54, s 259, s 260, s 262, s 263

Fair Trading Act 1989 (Qld), s 50A

Campbell v Caravan & RV Central Pty Ltd t/as Avan New South Wales & FCA Australia Pty Ltd [2016] NSWCATCD 90

Cary Boyd v Agrison Pty Ltd [2014] VMC 23
Haisman v Drive (Aust) Pty Ltd  [2020] QCAT 44
Medtel Pty Ltd v Courtney (2003) 130 FCR 182

Morphy v Beaufort Townsville Pty Ltd [2018] VCAT 1520

APPEARANCES & REPRESENTATION:
Applicant:	Self-represented
Respondent:	Self-represented

REASONS FOR DECISION

1. On 24 September 2019, Mr Foley (‘the applicant’) filed an Application – Motor Vehicle Dispute with the Tribunal.  The named respondent is Westco Cairns Pty Ltd (‘the respondent’).

2. The applicant is the owner of a 2016 Volkswagen Passat (‘the motor vehicle’). 

3. The applicant purchased the motor vehicle from the respondent on 27 March 2017 for $29,990.

4. The applicant seeks relief under the Australian Consumer Law, which is Schedule 2 to the Competition and Consumer Act 2010 (Cth). The relief sought by the applicant is a refund.

5. Section 50A of the Fair Trading Act 1989 (Qld) vests the Tribunal with jurisdiction in relation to motor vehicles in respect of certain actions under the Australian Consumer Law.

6. Pursuant to s 3(1)(b) of the Australian Consumer Law, a person is taken to have acquired goods as a consumer if ‘the goods were of a kind ordinarily acquired for personal, domestic or household use or consumption’. This includes the applicant’s motor vehicle.

Guarantee of acceptable quality

1. Section 54(1) of the Australian Consumer Law provides that, where a person supplies goods in trade or commerce, the goods are guaranteed to be of ‘acceptable quality’.

2. The time at which goods are to be of acceptable quality is the time at which the goods are supplied…