Hu v Westpoint Auto Qld Pty Ltd - [2021] QCATA 32

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Hu v Westpoint Auto Qld Pty Ltd & Anor [2021] QCATA 32

PARTIES: LOUISE JI HU

(applicant/appellant)

v

WESTPOINT AUTO QLD PTY LTD
(first respondent)

AND

HONDA AUSTRALIA PTY LTD

(second respondent)

APPLICATION NO/S:

APL205-20

ORIGINATING APPLICATION NO/S:

MVL002-19

MATTER TYPE:

Appeals

DELIVERED ON:

12 February 2021

HEARING DATE:

23 November 2020

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown, Presiding
Member Cranwell

ORDER:

Leave to appeal refused

CATCHWORDS:
TRADE AND COMMERCE – CONSUMER PROTECTION – GUARANTEES, CONDITIONS AND WARRANTIES IN CONSUMER TRANSACTIONS – where applicant purchased a car from the first respondent which was manufactured by the second respondent – where the applicant claimed there were many defects with the car including paint damage, uneven body panels and poor tinting on windows – where at first instance the adjudicator either found no evidence for the complaints or found the defects to be inconsequentially small – where the adjudicator rejected the applicant’s clam that the car’s gearbox was misrepresented – where the applicant’s claim for the return of the purchase price was dismissed – whether the adjudicator erred in dismissing the claim

Australian Consumer Law, s 260, s263

Fair Trading Act 1989 (Qld), s 50A

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s142, s 147, sch 3

Cachia v Grech [2009] NSWCA 232,

Ericson v Queensland Building Services Authority [2013] QCA 391
Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388
McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577
QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.

REASONS FOR DECISION

Ms Hu bought a Honda Jazz motor vehicle from Westpoint. After taking delivery, for various reasons Ms Hu was unhappy with the vehicle. Ms Hu commenced proceedings in the tribunal seeking, among other orders, the recovery of the purchase price of the vehicle. The tribunal dismissed Ms Hu’s application.[1]
[1]Hu v Westpoint Auto Qld Pty Ltd and Honda Australia Pty Ltd, unreported QCAT MVL 2/2019, 3 July 2020.
Ms Hu has appealed the tribunal’s decision.
Motor vehicle disputes – the jurisdiction of the tribunal
The jurisdiction of the tribunal in relation to claims about the sale and supply of motor vehicles is conferred by s 50A of the Fair Trading Act 1989 (Qld) (‘the FTA’).
Section 50A(1) states that a person may apply to the tribunal for an order 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 orders the tribunal may make are set out in s 50A(2).
The table to s 50A sets out a number of provisions of the Australian Consumer Law (Queensland) and the nature of the proceeding for each provision.
Appeals – the statutory framework
An appeal to the Appeal Tribunal on a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] QCATA 32
Decision Date: 12 February 2021

CaseChat Overview and Summary

The appeal before the Court was brought by Ms Hu, who purchased a Honda Jazz motor vehicle from Westpoint Auto Qld Pty Ltd, with Honda Australia Pty Ltd named as the second respondent. Ms Hu sought a refund of the purchase price on the basis that the vehicle was not as described and had various defects, including issues with the gearbox. The initial application was dismissed by the tribunal, and Ms Hu sought to appeal this decision.

The primary legal issue was whether the adjudicator had erred in dismissing Ms Hu's claim. This involved examining whether the adjudicator correctly interpreted the evidence and applied the relevant legal standards, particularly under the Australian Consumer Law (ACL) and the Fair Trading Act (FTA). A secondary issue was whether the adjudicator had jurisdiction to hear the case, given the claim amount.

The Court examined the evidence presented by Ms Hu and the tribunal's findings. It was determined that the adjudicator had correctly found no evidence to support most of Ms Hu's claims regarding the vehicle's defects, and the ones that were found to be true were inconsequential. The Court found that the adjudicator had jurisdiction to hear the case as the claim was below the $25,000 threshold, and an expedited hearing was ordered. Furthermore, the adjudicator was correct in dismissing the claim against Honda as the manufacturer, although there was an error in not considering Honda's potential liability under the ACL.

The Court held that the adjudicator did not err in dismissing Ms Hu's claim. The evidence did not support the majority of the complaints, and the defects identified were minor. Consequently, the appeal was dismissed, and leave to appeal was refused.

Orders

Orders of the court

Leave to appeal refused

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

If an appeal involves a question of law, unless the determination of the error of law decides the matter in its entirety in the appellant’s favour, the proceeding must be returned to the tribunal for reconsideration.[10][10]Ericson v Queensland Building Services Authority [2013] QCA 391.The decision at first instance In 2019 Ms Hu purchased a Honda Jazz motor vehicle from Westpoint. After taking delivery of the vehicle, Ms Hu complained to Westpoint that the vehicle was damaged or had misaligned body parts, was not new, and did not match the description of the vehicle as advertised. The latter complaint related to the vehicle’s gearbox. It is appropriate to pause here to consider what Ms Hu’s complaint was about the gearbox. The vehicle was fitted with a continuously variable transmission (CVT). A CVT is an automatic transmission that can change seamlessly through a continuous range of gear ratios. A CVT has no gears. However the CVT fitted to Ms Hu’s vehicle also had what could be described as a ‘manual’ mode. Using paddle shifters mounted behind the steering wheel, the driver could choose to drive the vehicle using seven pre-set gear ratios. In effect, the vehicle had one ‘gear’ and seven pre-set ‘speeds’. Ms Hu asserted she thought that she was purchasing a vehicle with seven gears. Ms Hu made a number of other assertions regarding the vehicle and the conduct of the respondents. Ms Hu first filed an application for a motor vehicle dispute in September 2019. Westpoint was named as the respondent. Ms Hu’s claim was broadly broken down into two limbs. Firstly, she claimed that she had been the victim of an overpayment scam. Ms Hu was to develop this theme over the course of the proceedings below and on appeal. The essence of this alleged overpayment scam was that Ms Hu paid for a new vehicle and what she received was not a new vehicle. Secondly, she claimed that the vehicle she purchased was not fitted with a ‘7 speeds CVT.’ Ms Hu sought a full refund of the purchase price she paid for the vehicle. Ms Hu filed an amended application in November 2019. Again, Westpoint was named as the respondent. The claim by Ms Hu remained largely unchanged save for an increase in the quantum of the claim to include, among other things, interest paid on a home loan account. A further amended application was filed by Ms Hu in November 2019 naming Honda Australia as the second respondent. Subsequent to the filing of the further amended application the tribunal ordered the joinder of Honda Australia as a respondent. The respondents filed their responses subsequent to the filing of the further amended application. The tribunal directed that the application be heard and determined on the papers. On 3 July 2020 the tribunal dismissed Ms Hu’s application. In addition to the complaint about the automatic transmission, Ms Hu particularised what she said were the defects in the vehicle as supplied:(a)The remote fobs for the vehicle were supplied in a damaged state: one was scratched, the other was chipped;(b)The paintwork on the vehicle was chipped;(c)The exhaust system was ‘aged’;(d)The vehicle had ‘uneven body parts line joins throughout’;(e)The two digital clocks in the vehicle were one minute apart;(f)The vehicle had ‘front compartment exposures’;(g)The doors of the vehicle were not level – ‘the passenger side of the doors are levelled, middle up, but unlevelled middle down;(h)There was repair damage marks on the roof of the vehicle;(i)The window tint was chipped;(j)The brakes made a ‘clicking sound’ when the vehicle was turned off;(k)Scratch marks were present inside the vehicle;(l)The side mirrors and internal rear vision mirror were ‘far different’;(m)The seats made ‘an awful sound’ when people entered and exited the vehicle;(n)The ‘seals of back screen can be rubbish storage to keep whatever might be blow into’;(o)The vehicle had a ‘swollen roof’.[11][11]Affidavit of Louise Hu dated 24 August 2019.

Ratio Decidendi

Legal Principle Established

The grounds of appeal raised by Ms Hu raise questions of fact and possibly mixed law and fact. ConsiderationThe learned adjudicator did not have jurisdiction to hear and decide the matter Ms Hu says that the adjudicator did not have jurisdiction to hear and decide the matter as the amount she was claiming exceeded $25,000.00. Section 50D of the FTA provides:For section 195(b) of the QCAT Act, an adjudicator may hear and decide a proceeding under section 50A if either or both of the following apply— (a) the amount or value of other relief sought in the proceeding is not more than $25,000; (b) an expedited hearing is to be conducted for the proceeding. The amount claimed by Ms Hu in her further amended application was $25,090. This included an amount of $345.80, being the filing fee. Section 50C of the FTA enables the tribunal to award costs to an applicant in the amount of ‘any prescribed fee paid by the applicant on filing the application for the proceeding’. The clear implication of this provision is that an amount claimed for costs is not to be included in the value of the relief otherwise sought by an applicant. It follows that the principal relief claimed by Ms Hu was the amount of $24,744.20, which is less than $25,000. In any event, directions were made on 26 February 2020 that the proceeding was to be conducted by way of an expedited hearing, enlivening the jurisdiction of an adjudicator to determine the proceeding under s 50D(b). This ground of appeal is not made out. Dismissing the claim against Honda The learned adjudicator found that the evidence established Honda did not sell or supply the vehicle to Ms Hu and found that Honda had no case to answer. Ms Hu says that this was an error by the adjudicator and says that Honda was a supplier. When asked at the appeal hearing to explain the basis for this submission, Ms Hu was unable to do so. In our view, while Honda did not supply the vehicle, the learned adjudicator erred in not considering the potential liability of Honda as the manufacturer under Division 2 of Part 5-4 of Chapter 4 of the ACL. However, this error did not affect the outcome of the proceeding. As noted above, the remedy claimed by Ms Hu was principally the recovery of the purchase price of the vehicle. This is not a remedy in terms available against a manufacturer. Section 272(1) of the ACL limits the remedies that may be recovered against a manufacturer as follows:(1) In an action for damages under this Division, an affected person in relation to goods is entitled to recover damages for:(a) any reduction in the value of the goods, resulting from the failure to comply with the guarantee to which the action relates, below whichever of the following prices is lower:(i) the price paid or payable by the consumer for the goods;(ii) the average retail price of the goods at the time of supply; and(b) any loss or damage suffered by the affected person because of the failure to comply with the guarantee to which the action relates if it was reasonably foreseeable that the affected person would suffer such loss or damage as a result of such a failure.

CITATION:	Hu v Westpoint Auto Qld Pty Ltd & Anor [2021] QCATA 32
PARTIES:	LOUISE JI HU
(applicant/appellant)
v
WESTPOINT AUTO QLD PTY LTD (first respondent) AND HONDA AUSTRALIA PTY LTD
(second respondent)
APPLICATION NO/S:	APL205-20
ORIGINATING APPLICATION NO/S:	MVL002-19
MATTER TYPE:	Appeals
DELIVERED ON:	12 February 2021
HEARING DATE:	23 November 2020
HEARD AT:	Brisbane
DECISION OF:	Senior Member Brown, Presiding Member Cranwell
ORDER:	Leave to appeal refused
CATCHWORDS:	TRADE AND COMMERCE – CONSUMER PROTECTION – GUARANTEES, CONDITIONS AND WARRANTIES IN CONSUMER TRANSACTIONS – where applicant purchased a car from the first respondent which was manufactured by the second respondent – where the applicant claimed there were many defects with the car including paint damage, uneven body panels and poor tinting on windows – where at first instance the adjudicator either found no evidence for the complaints or found the defects to be inconsequentially small – where the adjudicator rejected the applicant’s clam that the car’s gearbox was misrepresented – where the applicant’s claim for the return of the purchase price was dismissed – whether the adjudicator erred in dismissing the claim Australian Consumer Law, s 260, s263 Fair Trading Act 1989 (Qld), s 50A Queensland Civil and Administrative Tribunal Act 2009 (Qld) s142, s 147, sch 3 Cachia v Grech [2009] NSWCA 232, Ericson v Queensland Building Services Authority [2013] QCA 391 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.