Hilton v Baartz

[2019] QCAT 362

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Hilton v Baartz [2019] QCAT 362

PARTIES:

STEPHEN HILTON

(applicant)

v

LINDSAY BAARTZ

(respondent)

APPLICATION NO/S:

MVL014-19

MATTER TYPE:

Motor vehicle matters

DELIVERED ON:

29 November 2019

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Cranwell

ORDERS:

The Application – Motor Vehicle Dispute filed on 16 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 – where motor vehicle sold by private sale – whether ‘in trade or commerce’

Competition and Consumer Act 2010 (Cth), Schedule 2 – Australian Consumer Law, s 18, s 20, s 21, s 54, s 55,
s 56, s 57, s 58, s 59, s 60, s 61, s 62
Fair Trading Act 1989 (Qld), s 50A

Motor Dealers and Chattel Auctioneers Act 2014 (Qld),
Schedule 1 – s 14

Queensland Civil and Administrative Tribunal Act 2009 (Qld), Schedule 3

Walker v Sell [2016] FCA 1259

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. On 16 September 2019, Mr Hilton filed a Form 59: Application – Motor Vehicle Dispute with the Tribunal. 

2. According to the Form 59, Mr Hilton bought a second hand Ford Ranger from Mr Baartz after the motor vehicle was advertised on Gumtree. Mr Hilton alleges that the vehicle was advertised as a four wheel drive, but is in fact a two wheel drive.

3. On 14 October 2019, I directed that the parties file submissions as to whether the Tribunal has jurisdiction in relation the private sale of a motor vehicle. No submissions were filed.

4. Section 50A(1) of the Fair Trading Act 1984 (Qld) 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.

5. The protections against misleading or deceptive conduct[1] and unconscionable conduct[2] provided for in Chapter 2 of the Australian Consumer Law only apply if the conduct occurs ‘in trade or commerce’. Similarly, the consumer guarantees as to goods of acceptable quality,[3] goods fit for the purpose,[4] goods of corresponding description,[5] supply by way of sample or demonstration model,[6] repairs and spare parts,[7] compliance with any express warranty,[8] services rendered with due care and skill,[9] services fit for purpose[10] and services supplied within a reasonable time[11] provided for in Chapter 3 are only imposed where the goods or services are supplied to a consumer ‘in trade or commerce’.

   [1]Australian Consumer Law, s 18.

   [2]Australian Consumer Law, ss 20, 21.

   [3]Australian Consumer Law, s 54.

   [4]Australian Consumer Law, s 55.

   [5]Australian Consumer Law, s 56.

   [6]Australian Consumer Law, s 57.

   [7]Australian Consumer Law, s 58.

   [8]Australian Consumer Law, s 59.

   [9]Australian Consumer Law, s 60.

   [10]Australian Consumer Law, s 61.

   [11]Australian Consumer Law, s 62.

6. In Walker v Sell,[12] Bromwich J held that the private sale of a motor vehicle through a classified advertisement on Gumtree was not in trade or commerce because it was not done in the course of a business activity or arising in a business context.

   [12][2016] FCA 1259, [76].

7. 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 2014 (Qld).

8. For completeness, although the matter was commenced as a motor vehicle dispute, I note that the claim would not fall within paragraph 1(b) of the definition of ‘minor civil dispute’ in Schedule 3 to the Queensland Civil and Administrative Tribunal Act 2009 (Qld). Mr Baartz was not a ‘trader’ as defined in Schedule 3, which also requires that certain activities be done by the person ‘in trade or commerce’.

9. The application is therefore dismissed.