Johnson v Toyota Motor Corporation Pty Ltd
[2020] QCAT 436
•12 November 2020
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Johnson v Toyota Motor Corporation Pty Ltd [2020] QCAT 436
PARTIES: STEVEN JOHNSON (applicant)
v
TOYOTA MOTOR CORPORATION PTY LTD (respondent)
APPLICATION NO/S:
MVL064-20
MATTER TYPE:
Motor vehicle matters
DELIVERED ON:
12 November 2020
HEARING DATE:
10 November 2020
HEARD AT:
Brisbane
DECISION OF:
Member Cranwell
ORDERS:
The application is dismissed.
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 – liability of manufacturer – measure of damages
Competition and Consumer Act 2010 (Cth), Schedule 2 – Australian Consumer Law, s 54, s 271, s 272
Fair Trading Act 1989 (Qld), s 50A, s 50C
Medtel Pty Ltd v Courtney (2003) 130 FCR 182
APPEARANCES & REPRESENTATION:
Applicant:
Self-represented
Respondent:
Self-represented
REASONS FOR DECISION
On 10 March 2020, Steven Johnson (‘the applicant’) filed an Application – Motor Vehicle Dispute with the Tribunal. The respondent is Toyota Motor Corporation Pty Ltd (‘the respondent’).
The applicant is the owner of a 2016 Lexus RX350 (‘the motor vehicle’).
The applicant purchased the motor vehicle from Sci-Fleet Motors Pty Ltd on 18 February 2016 for $103,089.01.
The applicant seeks relief under the Australian Consumer Law, which is Schedule 2 to the Competition and Consumer Act 2010 (Cth). Section 50A of the Fair Trading Act 1989 (Qld) vests the Tribunal with jurisdiction in relation to motor vehicles in respect of certain actions under the Australian Consumer Law.
The relief sought by the applicant is a replacement vehicle.
I note that the applicant has not joined the supplier to the proceedings.
Consumer guarantees
Section 54(1) of the Australian Consumer Law provides that, where a person supplies goods in trade or commerce, the goods are guaranteed to be of ‘acceptable quality’.
The time at which goods are to be of acceptable quality is the time at which the goods are supplied to the consumer: Medtel Pty Ltd v Courtney (2003) 130 FCR 182 at [64] and [70]. However, information available after the time of supply may be taken into account in deciding whether the goods were of acceptable quality at the time of supply.
Sections 54(2) and (3) of the Australian Consumer Law define acceptable quality as follows:
(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.
Evidence
The applicant gave the following evidence:
(a)A loud knocking noise is emitted by the vacuum pump during cold starts and persists for a number of minutes afterwards.
(b)Technical bulletins were attached regarding the knocking noise from the vacuum pump. These bulletins were issued by ‘Toyota Motor Sales, USA’.
(c)Exhaust fumes fill the cabin when driving up steep hills. The fumes are not detected driving up the hill but only when the motor vehicle levels out at the top.
(d)The automatic mode for air intake control is supposed to ‘[detect] exhaust gas and other pollutants and automatically [switch] between outside air and circulated air modes’.
David Cooper, on behalf of the respondent, gave the following evidence:
(a)The vacuum pump on the motor vehicle was replaced on 2 November 2018.
(b)When inspected on 20 June 2020, there was no appreciable difference in the level or duration of vacuum pump noise to those of other RX350 vehicles inspected. The noise is exhibited from 30 seconds until approximately three minutes after a cold start. The noise is only just audible in the interior with the radio off and windows up.
(c)When driving up hills and slowing near the top, exhaust gases caught in the air envelope behind the motor vehicle are catching up with the vehicle and entering at the fresh air intake in the front wiper area. The production of sulphur hydroxide and exhaust gases travelling with a wagon body profile are normal.
(d)The technical bulletins referred to by the applicant relate to vehicles manufactured for the American market only.
At the hearing, Mr Cooper told the Tribunal that the air intake was in front of the windscreen, and the sensor for the air intake control is at the front of the vehicle. Exhaust gases catching up from behind will reach the windscreen first before they reach the front of the vehicle. The reason the sensor is located at the front of the vehicle is because it is designed to detect exhaust fumes from other vehicles travelling in front, not the vehicle’s own exhaust fumes approaching from the rear.
Based on the evidence before me, I am not satisfied that the knocking noise associated with the vacuum pump amounts to a defect or otherwise amounts to a failure of the guarantee of acceptable quality. It is a feature of the vacuum pump used in the engine, does not affect the operation of the motor vehicle and persists for no more than three minutes after a cold start. The issue of whether the noise is a ‘loud’ noise appears to be subjective one, with the parties providing differing evidence on the issue.
Nor do I accept that the automatic mode for air intake control is defective or otherwise amounts to a failure of the guarantee of acceptable quality. Presumably if the sensor was located in front of the windscreen adjacent to the intake, it would not be as effective in detecting exhaust fumes from other vehicles travelling in front, which is the primary purpose of the automatic system. In any event, the air intake is able to be operated manually in the circumstances complained of by the applicant.
The guarantee of acceptable quality in s 54 has therefore been complied with.
Remedies against a manufacturer
Even if I am wrong, and the guarantee of acceptable quality in s 54 was not complied with, the applicant would not be entitled to any remedies against the respondent as the manufacturer given the evidence presented by the applicant.
The remedies available to a consumer against the manufacturer of goods are set out in s 272 of the Australian Consumer Law. That section provides:
272 Damages that may be recovered by action against manufacturers of goods
(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.
(2) Without limiting subsection (1)(b), the cost of inspecting and returning the goods to the manufacturer is taken to be a reasonably foreseeable loss suffered by the affected person as a result of the failure to comply with the guarantee.
(3) Subsection (1)(b) does not apply to loss or damage suffered through a reduction in the value of the goods.
I will deal with the types of damages available in s 272(1)(a) and (b) in turn.
Damages for reduction in value
There is no evidence before me as to the reduction in value of the applicant’s motor vehicle.
The applicant claimed the change-over figure were he to trade the motor vehicle in on a later model would be $51,000. With respect, that is not the calculation invited by
s 272(1)(a). The change-over figure for a trade-in is affected by factors other than the knocking noise and the air intake control. In any event, the applicant provided no evidence to support this claim.
In these circumstances, even had there been a failure to comply with the guarantee of acceptable quality in s 54, I would have been unable to quantify any damages that might be available to the applicant under s 272(1)(a).
Damages for reasonably foreseeable loss or damage
The applicant has not made any claims for loss or damage. Accordingly, even had there been a failure to comply with the guarantee of acceptable quality in s 54, I would have been unable to award any damages under s 272(1)(b).
The remedies available under s 272 do not include a replacement vehicle as sought by the applicant.
Orders
The application is dismissed.
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