Howarth & Anor v Biscamoss Pty Ltd

[2022] QCATA 72

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Howarth & Anor v Biscamoss Pty Ltd [2022] QCATA 072

PARTIES:

DAVID ANTHONY JOSEPH HOWARTH
SUZANNE EVELYNNE HOWARTH (appellants)
V
BISCAMOSS PTY LTD (respondent)

APPLICATION NO/S:

APL373-20

ORIGINATING  APPLICATION NO:

MVL092-20

MATTER TYPE:

Appeals

HEARING DATE:

20 May 2022

DELIVERED ON:

1 June 2022

DECISION OF:

Member Roney QC

ORDERS:

The appeal is dismissed.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES -complaint of unwarranted emphasis on oral evidence rather than to other documentary evidence - correction of error- new evidence- special grounds

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 or repair- Whether Section 50A Fair Trading Act 1989 (Qld) establishes a mechanism by which a consumer can enforce the supplier’s obligation to provide a refund arising under s 263(4)(a) of the Australian Consumer Law

Competition and Consumer Act 2010 (Cth), Schedule 2 – Australian Consumer Law s 18, s 54, s 236, s 259, s 260, s 262, s 263
Fair Trading Act 1989 (Qld), s 50A

Lam v Steve Jarvin Motors Pty Ltd [2016] NSWCATAP 186.
Medtel Pty Ltd v Courtney (2003) 130 FCR 182
Musca v Astle Corp Pty Ltd (1988) 80 ALR 251
Williams v Toyota Motor Corporation Australia Limited (Initial Trial) [2022] FCA 344
Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at [203-3], Warren v Coombes (1979) 142 CLR 531 at 538-539,
Bert & Ors v Red 5 Ltd & Anor [2017] QCA 233,
Fox v Percy (2003) 214 CLR 118.
Murphy v Stone-Wallwork (Charlton) Ltd [1969] 1 WLR 1023 at 1028 per Lord Pearce.
Mackellar Mining Equipment Pty Ltd v Thornton [2019] QCA 77 at [60]
Pickering & Anor v McArthur [2010] QCA 341 at [22] ;
Jonathan v Mangera [2016] QCA 86; (2016) 75 MVR 143 at [12].

APPEARANCES:

Appellants:

Self-represented by the First Appellant David Howarth

Respondent:

Self-represented by Mr Daniel Davies

REASONS FOR DECISION

1. The appellants are the owners of a 2014 Holden Colorado, which they purchased on 16 January 2014 as a new vehicle from the respondent, which is a retail motor vehicle dealer They paid the sum of $54,047.40 for the vehicle.

2. In their Amended Application, the Appellants alleged that at various times, although  not necessarily at the time of delivery of the vehicle, the vehicle had or developed seven specific defects. The seven defects which the appellants originally complained about were that the vehicle had:

   (a)excessive oil consumption;

   (b)suspension failure;

   (c)defective paintwork;

   (d)an improperly labelled fuse board;

   (e)electrical problems causing the motor vehicle to go into limp mode;

   (f)defective right hand front drive shaft seal; and

   (g)fuel economy which was low and not in accordance with…