QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Jenkins v Aria Motors Pty Ltd [2022] QCAT 153
PARTIES:
BADEN JENKINS
(applicant)
v
ARIA MOTORS PTY LTD
(respondent)
APPLICATION NO/S:
MVL191-21
MATTER TYPE:
Other minor civil dispute matters
DELIVERED ON:
29 April 2022
HEARING DATE:
21 April 2022
HEARD AT:
Brisbane
DECISION OF:
Adjudicator Lember
ORDERS:
1. The respondent’s application for an adjournment is refused.
2. Aria Motors Pty Ltd must collect the motor vehicle the subject of these proceedings from Baden Jenkins within 28 days of the date of these orders.
3. Aria Motors Pty Ltd must pay Baden Jenkins the sum of $23,586.31 within 28 days of the date of these orders.
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 or minor failure – whether vehicle rejected within rejection period - whether consumer entitled to refund of purchase price and compensation for costs associated with purchase
Competition and Consumer Act 2010 (Cth) s54(1), s54(2), s54(3), s260, s267(4), schedule 2
Fair Trading Act 1989 (Qld) s 50A
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 102, schedule 3
Belomark Pty Ltd v Robinson (No 2) [2020] QCATA 112
Carlill v Carbolic Smoke Ball Company [1893] Q.B. 256
Cary Boyd v Agrison Pty Ltd [2014] VMC 23
Clarke v Cascade Pools (Qld) Pty Ltd [2010] QCAT 323
Creek v Raine & Horne Real Estate Mossman [2011] QCATA 226
Cordon Investments Pty Ltd v Lesdor Properties Pty Ltd [2012] NSWCA 184
Cox v J & M Phelan trading as Carrara Carmart [2020] QCAT 190
Equuscorp Pty Ltd v Glengallen Investments Pty Ltd [2004] 218 CLR 483
Hielbut, Symons & Co v Buckleton [1913] AC 30
Hochster v De la Tour (1853) 2 E & B 678
Laurie v Carroll (1858) 98 CLR 310
Oscar Chess Ltd v Williams [1957] 1 All ER 325Van den Esschert v Chappell [1960] WAR 114
APPEARANCES & REPRESENTATION:
Applicant:
Self-represented
Respondent:
Self-represented by director, Hooman Fartash
REASONS FOR DECISION
Mr Jenkins, an electrician who lives in North Queensland, purchased the vehicle the subject of this dispute from the respondent’s car dealership in Brisbane.
The advertisement for the vehicle described it, among other things as:
Used 2012 Toyota Hilux Utility
153,000 kilometres
Real Wheel Drive
The advertisement goes on to say that “this vehicle has been well looked after”.
The vehicle had been detailed and, on its surface, was in a “tidy” condition when advertised for sale and when possession was given to the applicant, according to Mr Fartash, and this was not disputed by Mr Jenkins.
Mr Jenkins flew to Brisbane, inspected the vehicle “briefly” – although Mr Fartash, who wasn’t present for the inspection, said he “looked at it crazy”, from which I infer he means that Mr Jenkins inspected it thoroughly – and signed the purchase contract…
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- Case
- [2022] QCAT 153
- Decision Date
CaseChat Overview and Summary
The legal issues the tribunal was required to decide were: (a)whether the vehicle was of acceptable quality; (b)whether the failure to comply with the guarantees under the Australian Consumer Law was a minor or major failure; (c)whether the applicant rejected the vehicle within the rejection period; and (d)whether the applicant was entitled to a refund of the purchase price and compensation for certain other costs and expenses. The tribunal found that the vehicle was not of acceptable quality because it was not acceptable in appearance and finish, it was not free from defects and it was unsafe. The tribunal found that the failure to comply with the guarantees was a major failure because the vehicle was substantially unfit for a purpose for which goods of the same kind are commonly supplied and it was unsafe. The tribunal found that the applicant rejected the vehicle within the rejection period. The tribunal found that the applicant was entitled to a refund of the purchase price and compensation for certain other costs and expenses.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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