Hughes v Hock Your Ride Pty Ltd - [2016] QCAT 395

CITATION:

Hughes v Hock Your Ride Pty Ltd [2016] QCAT 395

PARTIES:	James Hughes (Applicant)
v
Hock Your Ride Pty Ltd (Respondent)

APPLICATION NUMBER:

MCDO223-16

MATTER TYPE:

Other minor civil dispute matters

HEARING DATE:

7 June 2016 and 15 July 2016

HEARD AT:

Decision

DECISION OF:

Adjudicator Bertelsen

DELIVERED ON:

26 October 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The application is dismissed.

CATCHWORDS:

Australian Consumer Law – motor vehicle purchase – implied warranty – fit for purpose – representations as to condition – adequacy of evidence regarding sellers representations as to fitness

Competition and Consumer Act 2010 (Cth), Schedule 2 (Australian Consumer Law)

GGG Motors v Bender [2014] QCATA 130

APPEARANCES:

APPLICANT:

James Hughes

RESPONDENT:

Vadim Volkov (Director) and Mark Shnirman (Manager)

REASONS FOR DECISION

Application

By application filed 8 February 2016 James Hughes seeks from Hock Your Ride Pty Ltd (the company) $18,000.00 as a refund of money paid by him for the purchase of a 2007 Ford Pursuit Utility which he says is neither road worthy nor safe together with reimbursement for expenses of $6,000.00 incurred by him subsequent to purchase as well as transport costs Brisbane to Melbourne of $700.00.

Background and evidence

Mr Hughes said he located a Ford Pursuit Utility for sale online. His father Daniel Hughes (Mr Hughes Snr) phoned Mark Shnirman Manager of Hock Your Ride Pty Ltd, whom he said described the vehicle as in very good condition with very low kilometres. He was advised there was a current Queensland Certificate of Safety and that the vehicle was unregistered and had been in the companies possession for nearly a year. According to Mr Hughes Snr, Mr Shnirman described the vehicle as having 14,000 kilometres on the odometer and presented as a vehicle one would expect of a vehicle with 14,000 kilometres on the odometer. He was told that a previous sale had fallen through.
Mr Hughes Snr was also informed that the vehicle had been in the possession of the company for a long time; that it was old stock; that though advertised at $22,000.00 Mr Shnirman was authorised to drop the sale price to $18,000.00.
On 5 September 2014, Mr Hughes paid for an online car facts check which indicated the vehicle had no history of being listed as stolen or written off and no history of odometer roll back. A current Queensland Road Safety Certificate was provided to Mr Hughes on 9 September 2014. On 10 September 2014, Mr Hughes proceeded to purchase the vehicle for $18,000.00. Transport was arranged for direct delivery to Mr Hughes’ mechanic, Mick Malone of Bayswater Victoria. It arrived on 24 September 2014.
Mr Malone, after inspecting the vehicle, indicated there were some serious issues with the vehicle; that there were telltale signs of serious frontend collision damage poorly repaired. These included front right hand rail bent, front bumper held on by only a couple of screws with no support brackets, rust not consistent with vehicle age, non connected airconditioning, use of inadequate plastic cables, absence of front parking light assembly, poor tyre tread, electronic faults in the dashboard and possible absence of airbags. Mr Hughes Snr was informed that Mr Malone’s panel beater estimated costs at $9,000.00 to $10,000.00.
Mr Hughes Snr contacted Mr Shnirman on 25 September 2014 and informed him of defects stating that the vehicle was ‘nothing like what it purported to be’ and requested a full refund. Mr Shnirman subsequently requested a full mechanical inspection ‘which was emailed to them’.
Mr Hughes Snr made enquiries and was informed that the company held a second hand dealer licence/pawn brokers licence. On 26 September 2014, reimbursement of purchase price and costs to that time was requested. Mr Hughes asserted the vehicle was unable to be registered or driven. He also asserted that Mr Shnirman did not offer him or his father the option ‘of having an independent assessment of the vehicle carried our prior to final sale/purchase’.
Mr Hughes lawyers, Mendelsons, in its corresponence of 27 February 2015 stated:
Our client maintains that Hock Your Ride were well aware of the actual condition of the vehile, as any reasonably qualified person in the automotive industry would have immediately identified the glaring issues.
Mr Volkov stated that the respondent company was a Queensland pawn broker licenced pursuant to the Second-hand Dealers and Pawn Brokers Act 2003 (Qld); that the respondent was never a motor dealer. He stated that in about June 2014 the company took possession of an unregistered 2007 Ford Performance Vehicle; that at that time the odometer reading was approximatley 13,700 kilometres. There were no log books or service history. He said ‘as the vehicle was to be sold unregistered, as per Queensland Department of Transport regulations, the respondent was not required to sell the vehicle with a safety certificate’. In order to be satisfied as to the condition of the vehicle however, on or about 4 July 2014, the respondent arranged for M1 safety certificates to inspect the vehicle and prepare a safety certificate; that M1 safety certificates issued a safety certificate on that date. It was produced to the Tribunal. He said the vehicle was listed online at a heavily discounted price of $18,000 when Mr Hughes contacted his company in early September 2014 and that he was ‘aware that a new Ford FPV ute has a retail price of approximatley $60,000 and the vehicle had very low mileage’. Mr Volkov went on to state:
When considering the purchase of the vehicle and despite having ample opportunity to do so the applicant did not:
a)   arrange for an RACQ or other mechanical pre-inspection to be done
b)   fly from Melbourne to personally inspect the vehicle
c)organise to have a buyers agent inspect the vehicle or take it for a test drive
d)   enquiry as to the availability of log books or service history and
e)otherwise failed and/or refused to conduct any due diligence as a reasonable person would have done or ought to have done.
Mr Volkov further stated that on 8 September 2014 Mr Hughes, by email, confirmed availability of purchase funds noting that the ‘company was not a car yard’. The email was produced to the Tribunal. On 9 September 2014, the company emailed a contract of sale to Mr Hughes. That document, produced to the Tribunal, recorded an odometer reading of 14,455 kilometres. Mr Volkov said the vehicle was purchased ‘as in where is’ for $18,000 on 10 September 2014 and that at the time of delivery to the transportation depot on 12 September 2014, the vehicle having been driven to that transport depot, the odometer reading was 14,463 kilometres. The email dated 12 September 2014 confirming delivery and mileage was produced to the Tribunal. He said from the time his company took possession of the vehicle to the time it left the company’s possession it had been driven some ‘700 kilometres without any issues arising’.
On 26 September 2014 Mr Hughes Snr complained to Mr Shnirman about the vehicles condition. Shortly following Mr Hughes Snr sent an email to the company alleging ‘the quantity and seriousness of defects would have been known’ and asserting the prescence of ‘several major defects which demanded further investigation’. That email was produced to the Tribunal.
On 2 October 2014 Mr Hughes Snr emailed the company attaching a hand written one page document from Mick Malone’s Service Center Pty Ltd listing some eleven faults and concluding:
Has had major repair to front of car and rear. Could have in excess of $9 -$10,000 of repairs to be done to make car safe & road worthy. Test is incomplete. It could have more problems.
Mr Volkov said Mr Hughes Snr stated in the email that the ‘estimate of panel damage without a full and proper examination and quotation is around $9000-10,000’. However Mr Volkov said no panel beaters report was provided. He asserted that at the time he was concerned that Mr Hughes Snr was alleging serious defects and demanding large sums of money without providing any supporting evidence of any such defects or associated repair costs. On about 10 October 2014 Mr Hughes engaged a legal firm, Mendelsons to handle matters.
On 14 October 2014 Mr Hughes Snr emailed the company stating:
We now have an invoice for mechanical inspection including comprehensive diagnostic analysis and Victorian roadworthy assessment for this vehicle. Costs are now beginning to mount and an application will be made to VCAT along with a complaint via the Queensland Office of Fair Trading under your pawn brokers licence and a compliant is to be lodged with the department of transport regarding the safety certificate. Repairs are now estimated in excess of $15,000 for this vehicle. Out of pocket expenses since purchasing this vehicle now stand in excess of $1200 with legal expenses to be accruing from this point forward.
Mr Volkov said ‘no such report or assessment was or has ever been provided and no evidence of damages exceeding $15,000 as reported by Mr Hughes Snr has been forwarded’. Mr Volkov said there was no further communication until a letter of demand dated 27 February 2015 was received from Mendelsons lawyers; that such letter still ‘did not enclose any mechanical reports or supporting evidence as to the condition of the vehicle’. The letter asserted:
(a) major failure under the Australian Consumer Law
(i)The vehicle is significantly different to how it was described
(ii)Our client would not have purchased the vehicle if he had been aware of its actual condition
(iii)The vehicle is unsuitable for its normal purpose and cannot be made fit within a reasonable time and with reasonable costs
(iv)The vehicle is unsafe to be driven
(b) misleading and deceptive conduct under the Australian Consumer Law
(c) breach of contract
The letter suggested Mr Hughes was entitled to a refund as well as consequential loss.
On 22 April 2015, Matthew Gibson Legal wrote to Mendelsons on behalf of the company stating that the company was a licenced pawn broker; that Mr Hughes had purchased the vehicle retained by the company subsequent to the expiry of a pawn contract redemption period; that Mr Hughes was aware that such was the case and purchased the vehicle on an as is basis at a considerably discounted price with reference to comparable vehicles on the used car market; that the company was not a motor dealer and had no obligation pursuant to the Property Agents and Motor Dealers Act 2000 i.e. that Mr Hughes could not rely on the statutory protection afforded by that legislation; that despite being perfectly entitled to do so, Mr Hughes elected not to arrange for the vehicle to undergo a mechanical inspection prior to purchase; that the vehicle was in Mr Hughes possession for some two weeks prior to concerns being raised; that Mr Hughes’ assertions were rejected and that demands were without merit.

Conclusions

In early September 2014, Mr Hughes purchased an unregistered Ford Pursuit utility vehicle from the respondent company. He carried out his own enquiries which were limited to a Car Facts history report. The respondent company, though not obliged to do so, produced to Mr Hughes a road safety certificate dated 4 July 2014.
In the Tribunal’s decision of GGG Motors v Bender [2014] QCATA 130, Justice Thomas stated:[1]
Section 54 of the Australian Consumer Law implies a guarantee that goods sold to a consumer must be of acceptable quality. Matters that should be considered when determining what is acceptable quality include the nature of the goods, the price, any representation made by the seller and any other relevant circumstance.[2]
[1]At paragraph [9].
[2]Competition and Consumer Act 2010 (Cth) Sch 2, s 54(3).
Mr Hughes asserted representations to the effect that the vehicle was at least impliedly in good condition. Mr Volkov stated the vehicle was sold ‘as is where is’. In the context of the lower end price paid for the vehicle, the vehicle’s age, failure on Mr Hughes’ part to have any sort of inspection carried out on the vehicle, its unregistered state, the functioning of the vehicle whilst in the possession of the respondent company, the absence of log books and service history and finally the direct delivery of the vehicle to Mick Malone’s mechanical workshop those factors together and cumulatively lead to the conclusion that there was no misdescription of the vehicle by the respondent company. That is to say the Tribunal finds it more than likely that no representations were made that could be interpreted as misleading.
The condition of the vehicle was there to see and inspect. No inspection of any kind took place prior to purchase. How then can Mr Hughes make a comparison between the actual condition of the vehicle, and it seems his perception of what the condition of the vehicle ought to have been? He cannot. It could even be reasonably inferred that direct delivery of the vehicle to Mick Malone’s mechanical workshop was in anticipation of an expectation that work on the vehicle would be required.
The vehicle was driven by the respondent company’s personnel or, at least it seems, by Mr Shnirman. The odomoeter reading at the time of the respondent company’s acquisition was, the Tribunal accepts, 13,700 kilometres, as recorded on the safety certificate it was 14,131 kilometres and at the time of sale 14,463 kilometres. Mr Volkov’s evidence was that the vehicle had been driven some 700 kilometres without any issues arising. It cannot be said then the vehicle was unsuitable for its normal purpose.
It was alleged that the vehicle could not be made fit (for purpose) within a reasonable time and at reasonable cost. The evidence of asserted cost of repairs is limited to Mick Malone’s one page hand-written document. It is neither sufficiently detailed nor complete. He simply draws the conclusion that there could be in excess of $9,000.00 - $10,000.00 worth of repairs in his opinion and was certainly not in the nature of a full mechanical assessment of cost of repairs. Mick Malone’s document falls far short of supporting any refund. Nor was there any worthwhile evidence about the time it would take to effect the repairs. There was no evidence to suggest it would take longer than the norm.
The assertion that the vehicle is unsafe to be driven directly conflicts, firstly with the M1 safety certificate dated 4 July 2014, and secondly with Mr Volkov’s evidence that the vehicle was driven some 700 kilometres without issue. The odomoter readings indicate that the vehicle was certainly driven in the months prior to September 2014.
Misleading and deceptive conduct is asserted. Given that the vehicle was sold ‘as is where is’ and unregistered, it is difficult to see what constituted such conduct. An assertion was made on behalf of Mr Hughes by Mendelsen’s lawyers that the respondent company was well aware of the condition of the vehicle ‘as any reasonably qualified person in the automotive industry would have immediately identified the glaring issues’. That statement seemed to suggest that the respondent company had some extraordinary insight into the state of the vehicle. The fact though is that the respondent company was a pawn broker selling an unregistered vehicle. It is was not a motor dealer or car yard or indeed an entity that could be expected to have extraordinary or expert knowledge. The respondent company was never obliged to provide the road safety certificate that it did and which it had more than likely obtained for the purpose of utilising the vehicle whilst in its possesion.
Finally, what was paid for was received. There was no breach of contract.
In any event, even if it could have been established that the respondent company was liable for repairs the quantum of such has not been clearly established or reduced to an identifiable, quantifiable sum.
Here, no entitlement to a refund has been established. It seems rather to be buyer’s remorse. Accordingly, the application is dismissed.