Howarth v Biscamoss Pty Ltd

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Howarth & Anor v Biscamoss Pty Ltd [2020] QCAT 446

PARTIES:

DAVID ANTHONY JOSEPH HOWARTH

SUZANNE EVELYNNE HOWARTH

(applicants)

v

BISCAMOSS PTY LTD

(respondent)

APPLICATION NO/S:

MVL092-20

MATTER TYPE:

Motor vehicle matters

DELIVERED ON:

HEARING DATE:

13 November 2020

HEARD AT:

Brisbane

DECISION OF:

Member Cranwell

ORDERS:

1.   David Anthony Joseph Howarth and Suzanne Evelynne Howarth are to advise Biscamoss Pty Ltd in writing within 28 days of the date of these orders whether they consent to the engine in the motor vehicle the subject of these proceedings being replaced.

2.   In the event that David Anthony Joseph Howarth and Suzanne Evelynne Howarth advise that they consent to the replacement of the engine, Biscamoss Pty Ltd is to effect this repair within a further 28 days.

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 or repair

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

Medtel Pty Ltd v Courtney (2003) 130 FCR 182

Musca v Astle Corp Pty Ltd (1988) 80 ALR 251

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

REASONS FOR DECISION

1. David Howarth filed an Application – Motor Vehicle Dispute with the Tribunal on 31 March 2020.  Mr Howarth subsequently filed an Amended Application on 15 June 2020.  Suzanne Howarth was added as an applicant on 30 October 2020, and Mr Howarth was granted leave to represent her.  I will refer to Mr and Mrs Howarth as ‘the applicants’, and Mr Howarth as ‘the primary applicant’.

2. The named respondent was Bartons Motors Pty Ltd.  Bartons Motors Pty Ltd was removed as a respondent and Biscamoss Pty Ltd was added as a respondent on 30 October 2020.  I will refer to Biscamoss Pty Ltd as ‘the respondent’.

3. The applicants are the owners of a 2014 Holden Colorado, which I will refer to as ‘the motor vehicle’. 

4. The applicants purchased the motor vehicle from the respondent on 16 January 2014 for $54,047.40.

5. The applicants seek 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.

6. The relief sought by the applicants is a refund plus damages.

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…