Hoiles v Grand Motors Prestige Pty Ltd

[2020] QCAT 483

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Hoiles v Grand Motors Prestige Pty Ltd [2020] QCAT 483

PARTIES:

SUZANNE HOILES

(applicant)

v

GRAND MOTORS PRESTIGE PTY LTD

(respondent)

APPLICATION NO/S:

MVL123-20

MATTER TYPE:

Motor vehicle matters

DELIVERED ON:

8 December 2020

HEARING DATE:

8 December 2020

HEARD AT:

Brisbane

DECISION OF:

Member Cranwell

ORDERS:

The Application – Motor Vehicle Dispute filed on 22 May 2020 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 – whether motor vehicle of acceptable quality – whether failure to comply with consumer guarantee a major failure – whether consumer entitled to refund

Australian Consumer Law, s 18, s 54, s 236, s 259, s 260, s 262, s 263

Competition and Consumer Act 2010 (Cth), Schedule 2
Fair Trading Act 1989 (Qld), s 50A

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 93

Medtel Pty Ltd v Courtney (2003) 130 FCR 182

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

REASONS FOR DECISION

1. On 22 May 2020, Suzanne Hoiles (‘the applicant’) filed an Application – Motor Vehicle Dispute with the Tribunal.  The respondent is Grand Motors Prestige Pty Ltd (‘the respondent’).

2. The applicant is the owner of a 2019 Mercedes Benz C200 (‘the motor vehicle’). 

3. The applicant purchased the motor vehicle from the respondent on 26 July 2019 for $63,550.

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

5. The relief sought by the applicant is a refund plus damages.

6. The applicant was uncontactable at the date and time of the hearing. I was satisfied that she was given notice of the hearing, and I proceeded to decide the matter in her absence pursuant to s 93 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

Australian Consumer Law provisions

Misleading or deceptive conduct

1. Section 18(1) of the Australian Consumer Law provides that:

   A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.

Consumer guarantees

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 to the consumer: Medtel Pty Ltd v Courtney (2003) 130 FCR 182 at [64] and [70]. However, information available after the time of supply may be taken into account in deciding whether the goods were of acceptable quality at the time of supply.

3. Sections 54(2) and (3) of the Australian Consumer Law define acceptable quality as follows:

   (2) Goods are of acceptable quality if they are as:

   (a) fit for all the purposes for which goods of that kind are commonly supplied; and

   (b) acceptable in appearance and finish; and

   (c) free from defects; and

   (d) safe; and

   (e) durable;

   as a reasonable consumer fully acquainted with the state and condition of the goods (including any hidden defects of the goods), would regard as acceptable having regard to the matters in subsection (3).

   (3) The matters for the purposes of subsection (2) are:

   (a) the nature of the goods; and

   (b) the price of the goods (if relevant); and

   (c) any statements made about the goods on any packaging or label on the goods; and

   (d) any representation made about the goods by the supplier or manufacturer of the goods; and

   (e) any other relevant circumstances relating to the supply of the goods.

Evidence

1. The applicant has made a lengthy list of complaints about the motor vehicle, which were set out in a letter from her lawyer to the respondent apparently dated 8 April 2020.  The applicant provided the Tribunal with a draft of this letter dated 6 April 2020, and the respondent’s response dated 15 April 2020.

2. Before setting out the applicant’s list of complaints, it should be noted that the motor vehicle was returned to the respondent on 29 August 2019 and 1 October 2019.  The respondent accepts that the motor vehicle had the following defects:

   (a)a small cosmetic gap in the door to dash trim on the right hand side of the vehicle, which was rectified at no cost to the applicant; and

   (b)an instrument cluster internal fault, which was also rectified at no cost to the applicant.

3. For convenience, I will set out the applicant’s complaints contained in the letter dated 8 April 2020 alongside the respondent’s response to these complaints in its letter dated 15 April 2020:

Applicant’s complaint	Respondent’s response
There is a significant noise when the brakes are applied.	Road test with applicant advised on multiple occasions not a safety factor and is a characteristic of the way in which the brakes are being applied.
There is a significant ‘grabbing’ feeling when the brakes are applied, which becomes particularly enhanced when braking at slower speeds going forward, reversing and when driving on a slight decline.	Road tested with applicant advised on multiple occasions not a safety factor and is a characteristic of the way in which the brakes are applied.  Explanation provided to the applicant by email: ‘the grabbing being referred to with your brakes is due to the fact that you are not fully releasing your brake pedal whilst the vehicle is still trying to move.  This is causing the brake pad to grab/drag across the brake disc which is causing the concern you are referring to.’
The brakes often resist when applied.	This concern has never been previously raised by the applicant.
The motor vehicle intermittently surges forward when parking, almost resulting in impact with other vehicles.	This concern has never been previously raised by the applicant.
The engine noise is excessive when the motor vehicle is in neutral gear.	This concern has never been previously raised by the applicant.
The engine revs are high and noisy, even when the motor vehicle is stationary at traffic lights and when in neutral gear.	This concern has never been previously raised by the applicant.
The CarPlay/digital display system turns off at random from time to time, including four separate occasions where it turned off for over a period of 24 hours.	No faults have been found when investigating this.  The applicant has not had the motor vehicle booked in for this to be investigated since October 2019.
The navigation display system often does not respond to the applicant’s commands.	This has been tested with the applicant in the motor vehicle – unable to reproduce the fault.  The motor vehicle has not been in the dealership since October 2019.
The voice command feature is often inconsistent and/or does not properly work.	This has been tested with the applicant in the motor vehicle – unable to reproduce the fault.  The motor vehicle has not been in the dealership since October 2019.
The radio and Spotify feature does not always reconnect after calls and needs to be done manually.	This has been tested with the applicant in the motor vehicle – unable to reproduce the fault.  The motor vehicle has not been in the dealership since October 2019.
The phone call contacts feature often does not respond to the applicant’s commands.	This has been tested with the applicant in the motor vehicle – unable to reproduce the fault.  The motor vehicle has not been in the dealership since October 2019.
The Bluetooth phone system does not work effectively for phone calls.	This concern has never been previously raised by the applicant.
The screen randomly changes without being prompted to.	This concern has never been previously raised by the applicant.
The parking screen often does not display and the parking sensors are inconsistent.  The right side sensors in particular often alarm when there is nothing there – while this issue was improved at the first service, it still occurs from time to time.	This has been tested with the applicant in the motor vehicle – unable to reproduce the fault.  The motor vehicle has not been in the dealership since October 2019.
The reading lights under the front mirror turn on from time to time without being prompted to.	This concern has never been previously raised by the applicant.
The full front console was out of alignment by approximately 1.5 cm on the driver’s side – this has since been rectified by the respondent.	This has been rectified.
The high beams do not turn on automatically or manually, but will flash if needed.	This has been explained as to how the automatic high beam function works.  There is no way of manually switching on the high beams unless you use the flash feature.  High beams are adaptive as to what light is surrounding them and will come on when needed.
The headlights are misaligned/askew when turned on.	This was mentioned in a meeting with the applicant, when the service manager went on a test drive with the applicant.  She was invited to rebook the motor vehicle in to have this inspected – no booking was made.
The right rear passenger door does not close properly.	The applicant advised of this concern by email on 26 November 2019.  She was invited to rebook the motor vehicle in to have this inspected – no booking was made.
The side sensors often notify the applicant when there is nothing there or close – this was corrected at the first service and improved, but is still occurring.	No faults have been found when investigating this.  The applicant has not had the motor vehicle booked in for this to be investigated since October 2019.
The CarPlay system.	No faults have been found when investigating this.  The applicant has not had the motor vehicle booked in for this to be investigated since October 2019.
When the motor vehicle is travelling at speeds above approximately 60 km/h, an air leak can be heard within the vehicle which appears to come from the front door.	This concern has never been previously raised by the applicant.
The Mercedes Me system often alerts the applicant’s phone that the motor vehicle is unlocked when it is not.	This concern has never been previously raised by the applicant.

1. The applicant provided a report from Norm’s Mobile Mechanics dated 29 April 2020, who appear to have carried out a 20,000 km service.  The report stated:

   Carry out full ECU scan

   ·     Engine low on oil

   ·     Vehicle electronics needs attention

   ·     Engine mounts – suspect.

   ·     Front L/H tyre – uneven wear

   ·     Brakes need attention

   oElectronic handbrake.

   Suggest 2^nd opinion through different Mercedes dealer.

Consideration

1. The applicant has presented a lengthy list of complaints with little or no evidence to support them.  Many of her complaints were either unable to be reproduced in the presence of the respondent, or were not raised with the respondent.  The only expert evidence provided by the applicant was the report from Norm’s Mobile Mechanics.

2. The report from Norm’s Mobile Mechanics merely stated that the engine mounts were ‘suspect’ and the brakes and electronics ‘need attention’.  These statements are insufficient for me to be able to identify the nature and scope of any defects relating to the engine mounts, brakes or electronics.  

3. I note that the report from Norm’s Mobile Mechanics does not contain evidence supporting the balance of the applicant’s complaints.  The report does not address the cause of the uneven tyre wear, which was not complained of by the applicant in any event.

4. In all the circumstances, I am unable to accept that the motor vehicle was affected by any defects at the time of supply other than those accepted by the respondent.

5. Based on the evidence before me, I find that a reasonable consumer fully acquainted with the state of the motor vehicle at the time of purchase, particularly having regard to:

   (a)a small cosmetic gap in the door to dash trim on the right hand side of the vehicle;

   (b)an instrument cluster internal fault;

   (c)the purchase price of $63,550; and

   (d)the motor vehicle having an odometer reading of 7,050 km,

   would not regard the motor vehicle as durable.

Remedies

1. The remedy available to the consumer against the supplier depends in the first instance on whether the failure is a ‘major failure’. That term is defined in s 260 of the Australian Consumer Law to relevantly mean:

   (a) the goods would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of the failure; or

   (b) the goods depart in one or more significant respects:

   (i) if they were supplied by description—from that description; or

   (ii) if they were supplied by reference to a sample or demonstration model—from that sample or demonstration model; or

   (c) the goods are substantially unfit for a purpose for which goods of the same kind are commonly supplied and they cannot, easily and within a reasonable time, be remedied to make them fit for such a purpose; or

   (d)  the goods are unfit for a disclosed purpose that was made known to:

   (i) the supplier of the goods; or

   (ii) a person by whom any prior negotiations or arrangements in relation to the acquisition of the goods were conducted or made;

   and they cannot, easily and within a reasonable time, be remedied to make them fit for such a purpose; or

   (e) the goods are not of acceptable quality because they are unsafe.

2. In the present case, the applicant’s motor vehicle had a small cosmetic gap and an instrument cluster internal fault, which were both rectified within a reasonable timeframe. On balance, I am not satisfied that there is a major failure for the purposes of the test contained in s 260.

3. In the case of a failure which is not a major failure, the remedies available to the applicant are set out in s 259(2) of the Australian Consumer Law as follows:

   (2)  If the failure to comply with the guarantee can be remedied and is not a major failure:

   (a)  the consumer may require the supplier to remedy the failure within a reasonable time; or

   (b)  if such a requirement is made of the supplier but the supplier refuses or fails to comply with the requirement, or fails to comply with the requirement within a reasonable time--the consumer may:

   (i)  otherwise have the failure remedied and, by action against the supplier, recover all reasonable costs incurred by the consumer in having the failure so remedied; or

   (ii) subject to section 262, notify the supplier that the consumer rejects the goods and of the ground or grounds for the rejection.

4. As noted above, the small cosmetic gap and the instrument cluster internal fault have been rectified. In these circumstances, I find that the applicant has exhausted her remedies under s 259(2).

Damages

1. The Tribunal is vested with jurisdiction in respect of actions under s 259(4) of the Australian Consumer Law, which provides:

   The consumer may, by action against the supplier, recover damages for any loss or damage suffered by the consumer because of the failure to comply with the guarantee, if it was reasonably foreseeable that the consumer would suffer such loss or damage as a result of such a failure.

2. In the present case, the applicant has claimed damages for interest payments on her loan.  In circumstances where I have found the applicant is not entitled to reject the motor vehicle, she is not entitled to these damages.

Misleading or deceptive conduct

1. Section 236 of the Australian Consumer Law provides:

   (1) If:

   (a)  a person (the claimant ) suffers loss or damage because of the conduct of another person; and

   (b)  the conduct contravened a provision of Chapter 2 or 3;

   the claimant may recover the amount of the loss or damage by action against that other person, or against any person involved in the contravention.

2. In the draft letter from the applicant’s lawyer dated 6 April 2020, it is stated that the applicant test drove another Mercedes Benz C200 vehicle (‘the comparable vehicle’), and not the motor vehicle which is the subject of the proceedings.  The letter alleges that the following representations were made:

   (a)the motor vehicle drives the same as the comparable vehicle (including the braking system);

   (b)the motor vehicle contains the same features as the comparable vehicle;

   (c)the motor vehicle contains no structural, mechanical or cosmetic issues or defects;

   (d)the motor vehicle has been previously used for demonstration with staff and customers only.

3. While her lawyer’s letters alleges that these representations were made, the applicant did not file a witness statement supporting these allegations.  I note that on 19 August 2020, I directed that the applicant file (amongst other things):

   Suzanne Hoiles’ statement of evidence … by 4:00 pm on 16 September 2020.

4. I also directed:

   No party will be allowed to present any evidence at the hearing that is not contained in the statements without justifying the need for additional evidence to the Tribunal.

5. At the applicant’s request, I extended this date until 7 October 2020, before declining to grant any further extensions.

6. In the absence of any evidence from the applicant supporting the allegations made by her lawyer, I am unable to be satisfied that the representations were made.

7. Accordingly, I am not satisfied that the respondent has engaged in misleading or deceptive conduct for the purposes of s 18(1) of the Australian Consumer Law, and accordingly the applicant is not entitled to damages under s 236.

Statutory warranty

1. The applicant has also sought to rely on the statutory warranty contained in the Motor Dealers and Chattel Auctioneers Act 2014 (Qld) (‘the Act’).

2. ‘Warranted vehicle’ is defined in s 3 of Schedule 1 to the Act to mean:

   A warranted vehicle is a used motor vehicle other than—

   (a) an unregistered motor vehicle that is—

   (i) incapable of being registered in Queensland because of its design; or

   (ii) a written-off vehicle; or

   (b) a motor vehicle sold on consignment, unless the owner of the vehicle is a licensee; or

   (c) a commercial vehicle; or

   (d) a caravan; or

   (e) a motorcycle.

3. The applicant’s motor vehicle falls within this definition.

4. At the time of sale, the motor vehicle had an odometer reading of 7,050 km and a built date of 8 February 2019. As the motor vehicle has an odometer reading of less than 160,000 km, and a built date of less than 10 years before the day of its sale, it is a class A warranted vehicle in accordance with s 3A of Schedule 1 to the Act.

5. In accordance with s 4 of Schedule 1 to the Act, as a class A warranted vehicle, the motor vehicle was warranted for a period which ended when the vehicle had travelled 5,000 km, or three months after taking possession, whichever happens first.

6. Under s 9 of Schedule 1 to the Act, the buyer must notify the dealer in writing of a defect before the end of the warranty period and deliver the vehicle to the warrantor or qualified repairer nominated by the warrantor, depending on whether the vehicle is less or more than 200 km from the warrantor’s place of business. The buyer is taken to have delivered the vehicle if he or she makes reasonable efforts to deliver the vehicle to the warrantor or a nominee, but they have refused to accept it.

7. While the applicant did attend the respondent’s premises on 29 August 2019 and 1 October 2019 with the motor vehicle, there is no evidence that she had provided the respondent with a written defect notice at that time. Accordingly, I am not satisfied that the respondent has failed to repair the defect within the repair period for the purposes of s 13(b)(i) of Schedule 1 to the Act.

1. In any event, as noted above, the respondent has rectified the only defects which I am satisfied were in existence during the statutory warranty period.

Costs

1. Section 50C of the Fair Trading Act 1989 (Qld) provides that the Tribunal may make a costs order against the respondent in the amount of the prescribed filing fee paid by the applicant. This power is subject to s 102(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), which provides that the Tribunal may make a costs order if the interests of justice require it.

2. The applicant has been unsuccessful in the proceedings.  In these circumstances, I do not consider that it is in the interests of justice to order the respondent to pay the filing fee of $345.80.

Orders

1. The application is dismissed.