Hilton v Baartz

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

On 16 September 2019, Mr Hilton filed a Form 59: Application – Motor Vehicle Dispute with the Tribunal.
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.
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.
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.
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.
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].
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).
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’.
The application is therefore dismissed.

In the Federal Circuit and Family Court of Australia, Hilton brought an action against Baartz concerning the sale of a motor vehicle. Hilton alleged that Baartz breached the Australian Consumer Law by providing a vehicle that did not comply with the guarantees and warranties implied by the legislation. Hilton sought damages for the breach of the Australian Consumer Law and an order for the return of the purchase price of the vehicle.

The primary legal issue the court needed to determine was whether the sale of the motor vehicle by Baartz to Hilton constituted a transaction in trade or commerce, as required by the Australian Consumer Law. The court considered whether the sale fell within the scope of the legislation, which applies to transactions in trade or commerce. Hilton argued that the sale should be covered by the Australian Consumer Law, while Baartz contended that as a private sale, the transaction was outside the scope of the legislation.

The court found that the sale of the motor vehicle by Baartz to Hilton did not occur in the course of trade or commerce. The sale was a private transaction between individuals, and the court held that the Australian Consumer Law did not apply to this transaction. Consequently, Hilton's claims under the Australian Consumer Law were dismissed. The court ruled that there was no breach of the Australian Consumer Law and, therefore, no grounds for damages or the return of the purchase price.

The court dismissed Hilton's application, finding that the sale of the motor vehicle did not occur in the course of trade or commerce, and thus the Australian Consumer Law did not apply.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established