GGG Motors v Bender

[2014] QCATA 130

CITATION: GGG Motors v Bender [2014] QCATA 130

PARTIES:	Angela Grammenos t/as GGG Motors (Applicant/Appellant)
v
Matthew Bender (Respondent)

APPLICATION NUMBER: APL576-13

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Justice Thomas, President

DELIVERED ON: 16 May 2014

DELIVERED AT: Brisbane

ORDER MADE: The application for leave to appeal is refused.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – where applicant sold car with safety certificate – where car not of acceptable quality – where respondent returned car during statutory warranty period – where defects not repaired – where tribunal ordered return of car and applicant refund respondent the purchase price – whether grounds for leave to appeal

Competition and Consumer Act 2010 (Cth), s 138B, Sch 2, s 54, s 55, s 61
Property Agents and Motor Dealers Act 2000 (Qld), s 297, s 314, s 323, s 324
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 12(4)(b), s 32

Pickering v McArthur [2005] QCA 294, applied

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

1. Mr Bender bought a 1997 Holden Commodore ute from Ms Grammenos, trading as GGG Motors on 2 May 2012.  The odometer reading at the time of sale was 205,000.  Two days later, on 4 May 2013, Mr Bender told GGG Motors that the car had a number of defects and he had serious concerns about the safety certificate issued when he bought the car. Mr Bender returned the car that day for repairs.

2. Mr Bender collected the car on 13 May 2013.  He had the car inspected; it failed the safety certificate.  Again, he returned the car to GGG Motors.

3. GGG Motors sent the car to the mechanic that did the original safety certificate for repairs.  Mr Bender collected the car again on 27 May 2013. He had the car inspected again and, again, it failed the safety certificate inspection.  Mr Bender asked GGG Motors to take the car back and refund the purchase price.  Ms Grammenos refused to do so.  Mr Bender filed a claim in the tribunal asking for his money back.  Two Justices of the Peace, sitting in the minor civil disputes jurisdiction of the tribunal, ordered Ms Grammenos pay Mr Bender the purchase price and accept the return of the car.

4. Ms Grammenos wants to appeal that decision.  She does not agree with the decision as it was sold “with a roadworthy certificate”.  She says that GGG Motors has complied with its obligations.  She does not accept the evidence of Beecham Holden, who inspected the car for Mr Bender.  She says that only Queensland Transport can challenge the validity of the safety certificate.

5. Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary.[1]  The principles the appeal tribunal applies when considering an application for leave to appeal are as summarised by Keane JA (as his Honour then was) in Pickering v McArthur:

   There are numerous authorities, in varying language but with unvarying emphasis, that leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.[2]

   [1]QCAT Act s 142(3)(a)(i).

   [2][2005] QCA 294 at [3].

6. The learned Justices of the Peace decided that the statutory warranty and the cooling-off period were not relevant because the Australian Consumer Law overrides them.[3] That is not strictly correct. The Australian Consumer Law applies to this transaction, as long as it is not inconsistent with Queensland law. The Property Agents and Motor Dealers Act 2000 (Qld) provides both a cooling-off period and a statutory warranty. Those rights are not inconsistent with the Australian Consumer Law. When selling a car, Ms Grammenos has to comply with both the Australian Consumer Law and the Property Agents and Motor Dealers Act.

   [3]Transcript page 1-21, lines 35 - 38.

7. Ms Grammenos is correct in saying that the cooling-off period expired the day after Mr Bender bought the car.[4]  However, Mr Bender’s problems did occur within the statutory warranty period.[5]  Ms Grammenos had to ensure that the vehicle was repaired pursuant to the warranty within 14 days after she accepted that the defect was covered.[6]

   [4]Property Agents and Motor Dealers Act 2000 (Qld) (PAMDA) s 297(2).

   [5]PAMDA s 314(2).

   [6]PAMDA s 323(2).

8. GGG Motors’s failure to repair the car meant that s 324 of Property Agents and Motor Dealers Act applied.  Mr Bender could apply to the tribunal for an order that GGG Motors pay him the reasonable cost of having the defects repaired[7] only if GGG Motors had refused to accept that the defect was covered by the warranty; he had the car repaired by others and the defect was one to which the statutory warranty applied. While GGG Motors did fail to repair the car, they did accept that the defect was covered by the warranty; Mr Bender also did not have the defects repaired and therefore, the tribunal cannot make an order under s 324.

   [7]PAMDA s 324(4).

9. Section 54 of the Australian Consumer Law implies a guarantee that goods sold to a consumer must be of acceptable quality. Matters that should be considered when determining what is acceptable quality include the nature of the goods, the price, any representation made by the seller and any other relevant circumstance.[8]

   [8]Competition and Consumer Act 2010 (Cth) Sch 2, s 54(3).

10. The Australian Consumer Law also implies a guarantee that the goods sold are fit for their particular purpose. The learned Justices of the Peace referred to s 61 in relation to fitness for purpose (supply of services) rather than s 55 (supply of goods) but the point is well made.

11. Ms Grammenos takes issue with Beecham Holden’s evidence but that was the only evidence available to the learned Justices of the Peace. Ms Grammenos did not file a statement from her own repairer to rebut the Beecham Holden documents. 

12. Queensland Transport may be the only body that can take action for a safety certificate issued in error but this is a civil proceeding where the issue is whether the car was of a particular standard.  As the learned Justices of the Peace found, the mere fact that the car was sold with a safety certificate does not mean that the car was fit for the purpose or of acceptable quality.

13. The Justices of the Peace found that the car was not of acceptable quality even though the car was old and had high mileage.  They were entitled to make that finding.  They found that the purpose of the car was to transport Mr Bender on the road, and that finding is unexceptional.  They found that the car was not fit for that purpose, and the evidence supports these findings.  I can find no compelling reason to come to a different view.

14. Pursuant to s 237 of the Australian Consumer Law, a breach of a guarantee allows a court to make such orders as are appropriate. By the combined effect of s 12(4)(b) of the QCAT Act and s 138B of the Competition and Consumer Act 2010 (Cth), the tribunal has jurisdiction to make such orders.

15. The learned Justices of the Peace explained the reasons for their orders.  There is no reasonably arguable case that they were in error. Leave to appeal should be refused.