Howse v Luke - [2025] QCAT 55

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Howse v Luke [2025] QCAT 55

PARTIES:

BELINDA VICTORIA HOWSE

(applicant)

v

CHRISTOPHER LUKE

(respondent)

APPLICATION NO/S:

MVL151-23

MATTER TYPE:

Motor vehicle matter

DELIVERED ON:

31 January 2025

HEARING DATE:

15 October 2024

HEARD AT:

Brisbane

DECISION OF:

Member Howe

ORDERS:

1. Christopher Luke pay Belinda Victoria Howse the sum of $24,772.78 within 14 days of Order.

2. Belinda Victoria Howse make available for collection by Christopher Luke or his agent motor vehicle Volkswagen Multivan registration number 108ZHX at a mutually agreed and reasonable time after date of Order.

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 the applicant purchased a vehicle and experienced problems of black smoke emitted from the exhaust immediately after sale – where the applicant complained to the respondent motor vehicle dealer who claimed such was common with the particular vehicle – where the applicant was advised by a motor mechanic that the problem was a fuel injector – where the respondent refused to return the purchase price – where the applicant gave written notice of rejection of the goods within 17 days of sale – where the dealer disagreed – where the parties further engaged and the respondent purported to service the vehicle – where the condition of the vehicle worsened and the vehicle suffered continuous smoke and oil problems and then failure of the head gasket through overheating – where it was held that all problems were attributable to the defective fuel injector or injectors and there had been a major breach of the guarantee as to acceptable quality at time of sale – where the applicant commenced proceedings in the Tribunal some six months after acquisition of the goods – where it was held the letter of rejection had been effective – where damage done to the vehicle after supply and before the letter of rejection was an issue falling to the respondent to pursue but the respondent had failed to establish the date or circumstances of damage

Competition and Consumer Act 2010 (Cth) Schedule 2 s 54, s 259, s 260, s 262(1), s 263(6)

Effem Foods v Nicholls [2004] NSWCA 332

Medtel Pty Ltd v Courtney [2003] FCAFC 151

Vautin v By Winddown, Inc. (formerly Bertram Yachts) (No 4) [2018] FCA 426

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

Self-represented

REASONS FOR DECISION

On 30 December 2022 the applicant, Ms Howse, purchased a 2013 Volkswagen Multivan from motor dealer Mr Luke[1] for $24,300.
[1]At hearing it was agreed between the parties that the dealer/seller of the vehicle was Mr Christopher Luke. He, together with his brother, traded as Luke Family Motors, but the contract of sale of the vehicle was between Mr Christopher Luke and Ms Howse. The name of the respondent was corrected accordingly.
At the time the vehicle had travelled 223,435 kilometres.
Ms Howse experienced problems with the van and told Mr Luke that she wanted to return the vehicle and her money back. Mr Luke refused to do that.
Ms Howse has applied to the Tribunal for orders to that effect.
Her application for Motor Vehicle Dispute was filed on 18 July 2023. By the application she pursues a remedy under the statutory warranty provisions of the Motor Dealers and Chattel Auctioneers Act2014 (Qld) and in correspondence between the parties in the course of the proceedings (8 September 2023) she made clear that she also claims under the consumer guarantee provisions of the Australian Consumer Law (‘ACL’).[2]
[2]Competition and Consumer Act 2010 (Cth) Schedule 2.

Chronology

The following chronology of events is discernible from copies of documents, emails and SMS messages put into evidence by one or other of the parties.
Ms Howse purchased the vehicle on 30 December 2022.
That day, after travelling from the Gold Coast to Brisbane with the van, she (through her partner) advised Mr Luke the vehicle was blowing large amounts of black smoke. The mechanical condition of the vehicle was queried. It was noted the vehicle was 4,000 kilometres late for a required service.
Mr Luke replied (also that same day) that black smoke was common with Volkswagens and it could relate to the overdue service. He suggested injector cleaner be added to the next fuel fill.
On 3 January 2023 Ms Howse took the vehicle to a mechanic, Mr Cheeseman. He inspected it and advised her that there was a mechanical issue with the van common to this model and it would require at least one fuel injector or possibly all of them to be replaced. His opinion was that this mechanical issue would have been apparent for some time prior to her purchase.
On 4 January 2023 Ms Howse emailed Mr Luke to say there were issues with the running of the vehicle and again raising the overdue service.
Mr Luke replied on 9 January 2023 to say the service light had probably not been reset at the last service by the previous mechanic.
On 11 January 2023 Ms Howse took the vehicle to Mr Cheeseman again. She told him of Mr Luke’s suggestion to add injector cleaner to the fuel. His view expressed to her was that that would not work and the problem would return.
On 16 January 2023 Ms Howse wrote to Mr Luke (addressing the letter to Luke Family Motors) on advice apparently from the Office of Fair Trading, cancelling the contract and noting amongst other things: the overdue service; black smoke being emitted from the exhaust; a warning message “Engine off oil pressure” appearing within 24 hours of taking possession; finding the engine oil empty; and the vehicle being difficult to start. She asked for a refund of the purchase price of $24,300 and she wanted to return the vehicle.
By email dated 19 January 2023 Mr Luke replied that the problems were probably service items easily rectified. He was happy to help with servicing but refused a full refund.
On 20 January Ms Howse noted the car had been driven by her son when it stalled and he had had to walk for two hours to the nearest petrol station. When RACQ arrived RACQ had advised the car had no oil.
Ms Howse wrote to Mr Luke on 24 January 2023 noting he had not responded to her previous communications, mentioning also that she had tried for a resolution but given his failure to reply she would file a formal complaint about the matter with the “ACCC”.
That prompted a response from Mr Luke querying whether she would be interested in another vehicle and whether it would have to have nine-seat capacity. He added that he had offered multiple times to service the car and he asked when she could bring it in for servicing.
Two days later on 26 January 2023 she answered that any exchange vehicle would have to have eight seats. She said false representations had been made to her at time of sale. She had been told that all the servicing of the van had been done through a Volkswagen dealership and told that the van servicing was up to date. Therefore she wanted the van serviced through Volkswagen at Mr Luke’s expense. She mentioned in the email that the representations had included such descriptors of the vehicle as “immaculate”, “detailed” and “drives perfect” (sic). She said at time of sale the van was not fit for purpose. She invited a final opportunity for Mr Luke to propose a mutually agreeable solution prior to her proceeding further with her complaint.

Other evidence

Ms Howse said in her statements of evidence that she had continued to contact Mr Luke after 26 January 2023, on 1 February 2023, 7 February 2023, 14 February 2023 and 28 February 2023 without success.
It was finally arranged that Mr Luke service the vehicle on 2 March 2023.
She maintains the car was not driveable for much of the time. A friend delivered the vehicle to Mr Luke at the Gold Coast on 2 March 2023.
The following day she requested an update and was told the service had been done and the mechanical issues had been fixed.
Mr Luke did not return the vehicle for a week however and then drove it back to Brisbane and left it for collection with the key on a tyre. She said when she started the vehicle the next day the engine light (warning light) came on.
She took the vehicle back to Mr Cheeseman, the mechanic.

Mr Cheeseman

Mr Cheeseman gave evidence at hearing. He had prepared a report. In the report he detailed his early inspections of 3 January and 11 January 2023.
He adds that on 22 March 2023 he inspected the vehicle again. He recorded that Ms Howse had told him the engine light had come on which showed the problem was a failed injector with a possible overheating issue. In his opinion both were directly related to the injector faults that he had noted on 3 January 2023. He had been told the van had just been serviced by the dealer. He said it was evident that no such service had occurred, noting the same oil filter was in place and the oil black and slightly low. The same mechanical issues noted as existing at collection (purchase) were evident.
He was asked to inspect the vehicle again on 2 June 2023. He went to Ms Howse’s home to do that. The engine light was again on and the temperature of the engine rose on start-up. He observed the engine was clearly bubbling back through the radiator which was indicative of a failed head gasket, again in his opinion caused by the pre-existing issues. He noted the vehicle had not been used for some time because it had had to be jump-started. He instructed Ms Howse not to drive the van and recommended she obtain a quote from a European car specialist for the cost of repairs. He recommended Le Mans Motors.
Ms Howse obtained a quotation from Le Mans Motors on 16 June 2023. There is a copy of the quotation in evidence. The noted problem on the quotation is overheating and the work necessary would require the cylinder head to be removed. Le Mans advised, given the age of the motor, that the engine assembly should be replaced as a complete unit. The total cost quoted was $16,060.

Mr Luke

Mr Luke filed a Response to the claim on 11 October 2023. Given that date, he was aware the claim made by Ms Howse also involved a claim under the guarantee provisions of the ACL.
He says he was not allowed sufficient time to rectify the problems with the vehicle.
Further he states she was careless in not acting swiftly in dealing with the problems. Her delay in returning the vehicle to him hindered him assisting her effectively and possibly caused additional damage.

The hearing

At hearing Ms Howse said when driving the van she did not feel safe. She used it to transport her child with a disability and her terminally ill mother. She wanted her money back because it was not mechanically sound. Her complaints about lack of servicing were made because she thought if it was serviced they might discover what was wrong with the car.
It was using a lot of oil. Between date of purchase and the incident with her son driving it and the car stalling, approximately 20 days, they had had to top the engine up with oil numerous times. She said Mr Cheeseman had told her that before she drove the vehicle she would always have to check the oil.
Mr Luke challenged her that she had never mentioned an oil problem. She rejected that in the following somewhat confusing exchange with Mr Luke:
MS HOWSE: I definitely did because, when I dropped it off at the Gold Coast, you said that you’re driving round with minimal oil and I said I filled it up before it left for the Gold Coast and I only purchased it under a month ago, so usually it lasts 15,000 k, so how has - is it now on minimal oil when I only bought it three weeks ago? That’s - that indicates a problem. I don’t know a lot about cars, but I know that that would indicate a problem. And then when I picked it up I also let you know that it was low in oil. And that was just Gold Coast back to Brisbane.
MR C LUKE: Yes. So our main stance has been assumed around the black smoke issue, that’s why we’re trying to get driving 8,000 ks with the injector over-fuelling won’t cause any problems, but the fact that it was using oil and still driven 8,000 ks.
MS HOWSE: But you knew about the oil and I mentioned it numerous times.
MR C LUKE: I would not - I would not recommend to drive a car 8,000 ks if it was using oil.
MR J LUKE: Or sold a car for - - -
MS HOWSE: You criticised – you – when it arrived, I let you know when it arrived in Brisbane that it had minimal oil. I didn’t know that it was using it. I just assumed you hadn’t topped it up. Then when I dropped it to you, you criticised me for dropping it off - driving it with minimal oil.
MR C LUKE: Sorry, we didn’t top up the oil, we actually replaced the oil because you can’t top up the minimum oil that was already in the car.
MS HOWSE: But that’s fine, but when I got it back, it was - it had minimal oil. So I said to you, it’s - from you bringing it back to Brisbane, it’s down on the lowest point, so if you’ve topped it up, or if you’ve changed it or whatever you’ve done, it now is on low and I had to then fill it up again.
MR C LUKE: We didn’t hear back from you since the 23^rd of March so how did you tell us that?[3]
[3]T1-30 L15.
Mr Cheeseman gave evidence. He said a problem with oil is not uncommon when over-fuelling occurs:
Yes, okay, I’ve seen these before - these injectors fail before and, as such, what happens when they over-fuel they do two things. They can (a) wash the bore, which creates oil burning, but also if it gets to a more severe stage of over-fuelling, one of the things which is common is the cylinder temperatures are raised significantly because of the over-fuelling and they will do things like blow head gaskets, damage pistons, because of the simple more fuel in there, bigger bang when they’re not meant to.[4]
[4]T1-34 L44.
Mr Cheeseman was of the view that if the injector (or injectors) had been replaced very early, when he had first seen the vehicle, then it probably would not have had the problems that later developed.
It was put to Mr Cheeseman that the vehicle had stalled whilst driving and it was found to be out of oil. Could that be the cause of the current blown head gasket? He thought probably not, because if it had stalled because of low oil the outcome would more likely have been a seized bottom end, a seized motor. The problem with the head gasket, and potentially linked with that a damaged head requiring machining, was more likely the result of the defective injectors over-fuelling the engine.
It was also put to Mr Cheeseman by Mr Luke that when Mr Cheeseman first saw the vehicle he had said it was fine to drive. Mr Cheeseman refuted that suggestion. Rather he said, he had told Ms Howse that she should take the vehicle back to the dealer. It was still under warranty:
I suggested right from the word go, I suggested that they get in touch with you and get your opinion on what they should do with the car because, as far as I was told at the time, it was under warranty and I wasn’t willing to touch the car because I know that warranty can be a finnicky thing. I said, “Get in touch with them, get them to do it”, and they came back to me and said that the suggestion was to use injector cleaner. And I said, “Well, you know, that’s up to them”, but I did - I remember mentioning at the time I have had no success with this at any time.[5]
[5]T1-36 L12.
Mr Cheeseman said the first time he saw the van it was billowing black smoke. He had followed it out onto the highway. In his opinion the problem with one or more of the injectors existed at that time. He added that he performed roadworthy inspections himself, and he did not understand how the vehicle could have obtained a roadworthy certificate given the volume of black smoke being emitted.
Mr Luke also gave evidence. He said that when he did the service on the vehicle he replaced the oil, the oil filter and added injector cleaner to the fuel as well as re-gassing the air-conditioning. In answer to a query about noticing black smoke when the car was driven back to Brisbane from the Gold Coast he said there was a little bit on steep acceleration only.
Mr Luke agreed that in hindsight a failed injector had been the problem with the vehicle at the time of his service of the vehicle, but he did not answer clearly, when given the opportunity to do so, to either confirm or deny that that problem existed as at time of sale of the vehicle.
Mr Luke suggested the injector issue had nothing to do with Ms Howse, but potentially she had contributed to the problem of the blown head gasket. He did not accept Mr Cheeseman’s opinion that the injector caused over-fuelling and that resulted in the head gasket problem. He said excess fuel would not burn off but go into the sump which would mean the oil level would rise. He thought the head gasket problem was caused by a cooling issue, either oil or water.

Consideration

The claim under the statutory warranty provisions given by the Motor Dealers and Chattel Auctioneers Act 2014 (Qld) cannot succeed.
A class B statutory warranty applies in circumstances where a vehicle has travelled more than 160,000 kilometres as at date of sale. The warranty ends either one month later or when the vehicle travels 1,000 kilometres more than the distance travelled as at date of sale, whichever comes first. There is no evidence about the distance the van travelled after purchase, including the odometer reading as at date of purported termination on 16 January 2023. The only distance recorded appears on the quotation by Le Mans Motors dated 16 June 2023, which notes the vehicle having travelled, by that date, 229,991 kilometres.
Ms Howse had the burden of proving the car warranty had not ended prior to the letter of rejection and she failed to lead the necessary evidence about that.
Ms Howse primarily pursues in any case however a claim in reliance on the guarantee provisions of the ACL.
Section 54 of the ACL, as relevant, provides:
Guarantee as to acceptable quality
(1)     If:
(a)a person supplies, in trade or commerce, goods to a consumer; and
(b)the supply does not occur by way of sale by auction;
there is a guarantee that the goods are of acceptable quality.
(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.
…
(6)     Goods do not fail to be of acceptable quality if:
(a)the consumer to whom they are supplied causes them to become of unacceptable quality, or fails to take reasonable steps to prevent them from becoming of unacceptable quality; and
(b)they are damaged by abnormal use.
The relevant considerations in assessing whether s 54 has been breached have been usefully summarised by Derrington J in Vautin v By Winddown, Inc. (formerly Bertram Yachts) (No 4) [2018] FCA 426:
(a) The test as to whether goods are of an “acceptable quality” is an objective one; being taken from the perspective of a “reasonable consumer” (APS Satellite Pty Ltd (formerly known as “Sky Mesh Pty Ltd”) v Ipstar Australia Pty Ltd [2016] NSWSC 1898 at [57]; Merck Sharp & Dohme (Australia) Pty Ltd v Peterson (2011) 196 FCR 145).
(b)     The question for the “reasonable consumer” is whether the goods in question have the identified qualities enumerated in 54(2) to an “acceptable standard”. This requirement is derived from the words “as a reasonable consumer … would regard as acceptable”.
(c) The “acceptable standard” is used as the yardstick against which the qualities of the goods are to be measured. It is ascertained by a consideration of the matters referred to in s 54(3); the nature of the goods, their price, any statement made about the goods on packaging or labels, any representations made about the goods by the supplier or manufacturer, and any other circumstance relating to their supply.
(d)     It is necessary the goods have all of the qualities identified in s 54(2) to the ascertained acceptable standard. Those qualities are that the goods are fit for all the purposes for which goods of that kind are commonly supplied, acceptable in appearance and finish, free from defects, safe and durable.
(e)     In the assessment of whether the goods meet that relevant standard, the reasonable consumer is taken to be fully acquainted with the state and condition of the goods (including any hidden defects of the goods).
(f)     If the goods supplied do not have all of the identified qualities to the acceptable standard, they will not be of an “acceptable quality”.

To be clear, the time at which the goods are to be assessed and weighed for acceptable quality is at the time of supply of the goods to the consumer: Medtel Pty Ltd v Courtney [2003] FCAFC 151 [64] (‘Medtel’).[6]
[6]In Vautin Derrington J observed [150] that although Medtel was decided under the earlier warranty provisions of the repealed Trade Practices Act 1974, the precursor legislation to the ACL, the principles observed there are useful in consideration of s 54(2) ACL.
But the assessment is based on all information concerning the goods available as at time of trial: Medtel [70].
These are the considerations of law that apply when considering the evidence given by the parties as accepted by me. Concerning the evidence of the parties, I observe as follows.
I accept Ms Howse was honest in her evidence and the answers she gave at hearing.
I found Mr Luke to be guarded in his evidence and careful not to say anything that he thought might put his case in bad light. His avoidance in that regard was fairly clear and does not make me confident about the usefulness of his evidence. In result it leads me to conclude that where his evidence diverges or disagrees from that of Ms Howse, the latter’s evidence and recollection of events is to be preferred.
I accept that Mr Cheeseman gave honest and independent evidence. He seemed to be knowledgeable and independent in his views about the mechanical problems in issue. I accept his evidence as to cause and effect concerning such. I determine that where Mr Luke disagreed with Mr Cheeseman about the mechanical problems, their cause and effect, Mr Cheeseman’s evidence is to be preferred as both more reliable and correct.
Accordingly I find as follows.
The vehicle had a problem with significant emission of black smoke from the exhaust from time of supply. The problem surfaced immediately after purchase on the day the vehicle was driven back to Brisbane from the Gold Coast. Mr Luke was put on notice about that issue that afternoon or evening.
Mr Cheeseman inspected the vehicle within four days of purchase and diagnosed the problem as one or more, perhaps all, of the fuel injectors being defective.
By June 2023 Mr Cheeseman diagnosed a blown head gasket caused by over-fuelling problems associated with the defective injector or injectors. I accept his evidence that that was the problem with the vehicle and I also accept his opinion that the problem of one or more defective fuel injectors existed at time of sale. Mr Luke admitted that was the case at hearing.[7]
[7]T1-42 L12.
I also accept his opinion that the defective injector or injectors caused over-fuelling caused and that caused the head gasket to blow out and cause overheating problems.
I do not accept that lack of oil in the sump, the result of poor maintenance on the part of Ms Howse, caused the blown head gasket. Had that been the case it is more likely than not, again accepting the evidence of Mr Cheeseman, that the outcome would have been bearing failure and in consequence a “cooked engine”. That seems rather obvious given the vehicle continued to be driveable through to commencement of proceedings.
I accept the vehicle was advertised by Mr Luke as being “immaculate” and that it “drives perfect” (sic). It was nearly 10 years old and had travelled 223,435 kilometres at time of sale, yet the price was quite high, $24,300. I also accept that Mr Luke represented to Ms Howse that the vehicle had been fully serviced by a Volkswagen dealership prior to sale. Ms Howse was entitled to expect some reliability from the vehicle and some reasonable years of use from it based on the description and price and representation that it had been serviced by Volkswagen. It was also reasonable for her to expect that over those years of use she would not be obliged to undertake unusual maintenance in the form of constant checking and topping up of oil before each journey, and endure the possibility of overheating and break down and excessive emissions of black smoke from the exhaust on every venture from her home.
The vehicle was not free from defects, it was not durable and it was not safe. Her son was driving when it broke down some hours walk from the nearest service station.
I find the guarantee as to acceptable quality implied by s 54 ACL was breached in the sale of the vehicle to her by Mr Luke.

Remedies

The ACL makes provision for remedy of the breach of guarantees as follows:
259 Action against suppliers of goods
(1)A consumer may take action under this section if:
(a)a person (the supplier) supplies, in trade or commerce, goods to the consumer; and
(b)a guarantee that applies to the supply under Subdivision A of Division 1 of Part 3 2 (other than sections 58 and 59(1)) is not complied with.
(2)…
(3)If the failure to comply with the guarantee cannot be remedied or is a major failure, the consumer may:
(a)subject to section 262, notify the supplier that the consumer rejects the goods and of the ground or grounds for the rejection; or
(b)by action against the supplier, recover compensation for any reduction in the value of the goods below the price paid or payable by the consumer for the goods.
(4)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.
(5)Subsection (4) does not apply if the failure to comply with the guarantee occurred only because of a cause independent of human control that occurred after the goods left the control of the supplier.
(6)To avoid doubt, subsection (4) applies in addition to subsections (2) and (3).
…
(emphasis added)
260 When a failure to comply with a guarantee is a major failure
(1)A failure to comply with a guarantee referred to in section 259(1)(b) that applies to a supply of goods is a major failure if:
(a)the goods would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of the failure; or
…
(e)the goods are not of acceptable quality because they are unsafe.
…
(emphasis added)
I find that the defects with the vehicle constituted a major failure. No reasonable consumer, aware that one or more or perhaps all fuel injectors were defective and require replacement within months of purchase and if that was not done the engine would be damaged such that it would be necessary to replace it at an additional cost of two thirds the purchase price, would have acquired the vehicle.
Mr Luke maintains he was still exploring potential problems with the vehicle when Ms Howse commenced proceedings in the Tribunal. He says he was not given sufficient time or opportunity to rectify the problems. Ms Howse delayed returning the vehicle to him which prevented him from doing that.
I reject those submissions.
There is no evidence that there was anything extraordinary in the use of the vehicle by Ms Howse that contributed to the defects. She simply drove the vehicle, constantly topping up the oil. The engine never seized.
Ms Howse advised Mr Luke about the smoke problem promptly, in fact on the day of sale. I accept Ms Howse’s evidence about the number of times she communicated the problem about smoke to Mr Luke in January 2023.
I also accept her evidence that the problem of oil loss and high oil consumption was brought to Mr Luke’s attention when she delivered the vehicle to him at the Gold Coast to service it. He returned the vehicle to her without doing anything about the defective fuel injector or injectors or indeed address the black smoke problem flagging the defective injector problems. I do not accept Mr Luke’s evidence that when he drove the vehicle back to Brisbane after servicing the vehicle he noticed “… it had a little bit of like black smoke on steep acceleration only.”[8]
[8]T1-39 L4.
Mr Cheeseman considered the problem from outset was a defective fuel injector, one or more. I have accepted that Mr Cheeseman was right about that. Mr Luke’s suggestion to add a cleansing agent to the fuel tank was no adequate solution. Mr Cheeseman said he had never seen it work and the problem would return. It was a suggestion made by Mr Luke in response to the first complaint on the day of sale about the vehicle blowing large amounts of black smoke. There was no inspection of the vehicle prompting the suggestion. I consider that it was offered more to avoid his being responsible for the cost of repairs than to meaningfully address the consumer’s complaints about the vehicle brought to his attention.
Given Mr Luke was in a position to observe the large amount of black smoke being emitted by the vehicle when driving it back to Brisbane after servicing it, and as I have found he had been advised of the excessive oil consumption by Ms Howse, I do not accept that he was not given ample opportunity to rectify the problem with the vehicle. Rather he avoided engaging with Ms Howse to find a solution to the problem with the vehicle.
Ms Howse gave written notice of rejection of the vehicle on 16 January 2023. Though that was based on advice from the Office of Fair Trading and with a view to action required under the Motor Dealers and Chattel Auctioneers Act 2014 (Qld), the letter identified the relevant defects with the vehicle, smoke and oil, which defects rendered it to be of unacceptable quality.
The evidence as at date of hearing shows that as at date of supply/sale, the vehicle was not of acceptable quality. The defects with the vehicle were such as to constitute a major breach of the guarantee as to acceptable quality. Therefore on 16 January 2023 Ms Howse was entitled to reject the goods and seek recovery of her money.
There is a final matter to be addressed however. That is, damage done to the rear door of the vehicle after Ms Howse purchased it.
By s 262(1) ACL:
262 When consumers are not entitled to reject goods
(1)A consumer is not entitled, under section 259, to notify a supplier of goods that the consumer rejects the goods if:
(a)the rejection period for the goods has ended; or
(b)the goods have been lost, destroyed or disposed of by the consumer; or
(c)the goods were damaged after being delivered to the consumer for reasons not related to their state or condition at the time of supply;
…
By s 263(6) ACL:
(6) If the property in the rejected goods had passed to the consumer before the rejection was notified, the property in those goods revests in the supplier on the notification of the rejection.

Ms Howse included a photograph of damage to rear door of the van in her initial application. She makes no comment about it other than say there was minor damage to the rear door.
Mr Luke made only passing comment about it in closing submissions.
There is no evidence about when the damage was done, nor the circumstances of damage, nor evidence about cost of repair.
If the damage was done after 16 January 2023, which is more probably the case than not given the short time of 16 days possession involved, Ms Howse was entitled to notify the supplier of the goods, Mr Luke, that she rejected the goods. In those circumstances her letter of 16 January 2023 was effective notice pursuant to s 263(6) ACL to revest ownership of the goods in the seller, Mr Luke. Subsequently Ms Howse held the goods as bailee for Mr Luke. Damage done to the vehicle after that did not effect the reversion of interest in the goods although it potentially exposed Ms Howse to a claim from Mr Luke for costs of repair.
Any claim that Ms Howse was not entitled to give notice of rejection on 16 January 2023 fell on Mr Luke to pursue in the proceedings. In civil proceedings the onus of proof rests on the party raising an issue for determination in the proceedings.
Here the defective nature of the goods has been made out. The consumer, Ms Howse, has been found to be entitled to reject the goods on the basis that a breach of the guarantee as to acceptable quality has been made out and the breach is a major breach entitling her to reject the goods.
In so far as s 262(1)(c) provides that she may not be entitled to reject the defective goods if they were damaged after delivery to her for reasons not related to their state or condition at time of supply, it is not up to her to prove there was no additional damage done to the vehicle at the time of rejection. Rather, if that be asserted by the supplier (which it is not here) then it is an issue for the supplier, Mr Luke, to pursue and prove.[9]
[9]In Effem Foods v Nicholls [2004] NSWCA 332 it was held that if the supplier of goods claims a failure of the goods arose after the goods were supplied, the onus of proving that fell on the supplier. That matter involved a claim under the former Trade Practices Act 1974 (Cth) (repealed) s 74D(2)(a)(i), and a defence available to a supplier that the goods were in merchantable condition (the precursor to the present acceptable condition standard) when they were supplied but something happened to them after that to render them un-merchantable.
Mr Luke does not make that case however. He offers no evidence about the circumstances of the damage to the rear door or the date it occurred.

Disposition

I determine Ms Howse was entitled to reject the vehicle for major breach of the guarantee as to acceptable quality which she did in her letter of 16 January 2023. She is entitled to recover her purchase price paid of $24,300 and the vehicle must be made available for Mr Luke to collect.
I say for Mr Luke to collect because the vehicle should not be driven further until the defects are remedied, or driven perhaps by someone with mechanical knowledge and therefore the vehicle would have to be transported to the Gold Coast at some significant cost to Ms Howse, which is not appropriate.[10]
[10]ACL, s 263(2)(b) and (3).
Ms Howse also claims the renewal of registration payment she made on 21 June 2023 of $472.78. That is recoverable as loss or damage suffered because of the failure to comply with the guarantee pursuant to s 259(4) ACL.