Jenkins v Aria Motors Pty Ltd - [2022] QCAT 153

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 325

Van 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…

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: [2022] QCAT 153
Decision Date

CaseChat Overview and Summary

In Jenkins v Aria Motors Pty Ltd, the applicant, Mr Jenkins, brought proceedings against the respondent, Aria Motors Pty Ltd, seeking a refund of the purchase price of a vehicle he purchased from the respondent, plus other costs and expenses, on the basis that the vehicle was not of acceptable quality and the respondent had breached guarantees under the Australian Consumer Law. The respondent sought to have the application dismissed, arguing that the vehicle was in a good condition for its age and the applicant had merely changed his mind. The tribunal found that the vehicle was not of acceptable quality, that the respondent had breached guarantees under the Australian Consumer Law and that the applicant was entitled to a refund of the purchase price, plus certain other costs and expenses. The tribunal dismissed the respondent’s application for an adjournment and ordered that the respondent collect the vehicle from the applicant within 28 days and pay the applicant $23,586.31 within 28 days.

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