Johnston v Queensland Hyundai Parts

[2021] QCAT 385

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Johnston v Queensland Hyundai Parts [2021] QCAT 385

PARTIES:

JACQUELINE JOHNSTON

(applicant)

v

QUEENSLAND HYUNDAI PARTS

(respondent)

APPLICATION NO/S:

MVL162-21

MATTER TYPE:

Motor vehicle matter

DELIVERED ON:

3 November 2021

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Bertelsen

ORDERS:

1.   The application is dismissed for lack of jurisdiction.

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 inadequate consideration for trade in – whether failure to comply with consumer guarantee – whether goods rejected in cooling off period – whether regulatory breach of the motor dealers and chattel auctioneers act 2014

Australian Consumer Law, s 54, s 55
Motor Dealers and Chattel Auctioneers Act 2014 (Qld), s 99, s 105, s 111, s 113, Schedule 1

APPEARANCES & REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

1. On 4 August 2020 the applicant Jacqueline Johnston purchased a Hyundai Tucson auto wagon for $6000.00 from Queensland Hyundai Parts. As part of that transaction Ms Johnston traded in her 2011 Mitsubishi Triton dual cab motor vehicle for $5000.00 paying the $1000.00 difference it appears in cash.

2. The transaction was evidenced by a tax invoice recorded as a cash sale dated Wednesday 4 August 2020. Ms Johnston’s claim is for return of the Mitsubishi Triton or $35,000.00 as compensation based on the inadequacy of the trade-in value applied to the Mitsubishi Triton by Queensland Hyundai Parts. Ms Johnston stated the Mitsubishi Triton was worth $35,000.00 not $5000.00.

3. There was no reference to a cooling off period mandatory under section 105 of the Motor Dealers and Chattel Auctioneers Act 2014 (Qld) (the Act), the cooling off period being that period of time during which the vehicle buyer may avoid the contract by giving written notice to that effect to the dealer in accordance with the Act.

4. By section 105(3), any such notice must be given to the dealer within 7 days after the day property in the vehicle passes to the buyer. Here that is 4 August 2020. Therefore notice was required to be given by close of business 11 August 2020.

5. By section 111, Ms Johnston was also required to give Queensland Hyundai Parts or a person apparently working for Queensland Hyundai Parts at its place of business a written notice indicating that she was terminating the purchase contract.

6. According to the respondent, Queensland Hyundai Parts, Ms Johnston left an envelope in its letterbox in the evening after business hours on Wednesday 11 August 2020, the envelope containing a series of statements on multiple pieces of paper retrieved the next day and asking for return of the Mitsubishi Triton. Queensland Hyundai Parts asserted that was eight days after the date of issue of its invoice.

7. In addition in its response Queensland Hyundai Parts states the Mitsubishi Triton was sold to another licenced dealer on 10 August 2020 and was picked up by the buyers tow truck the same day.

8. That on the face of it appears to be a contravention of section 113 (2) of the Act which states that the dealer must not deal in the trade in or other consideration during the cooling off period. If the dealer does that attracts a minimum penalty of 200 penalty units or one year’s imprisonment. That would clearly be a regulatory offence under the act not the sort of claim that was ever contemplated by schedule 1 of the act which is about dealers and suppliers on the one hand and buyers and consumers on the other. Schedule 1 of the act under which claims can be brought in the tribunal deals with statutory warranties, defects and Australian consumer law protection usually acceptable quality and fit for purpose in respect of the vehicle that was sold. The assertion by Ms Johnston here is that the consideration applied to the Mitsubishi Triton as a trade in was inadequate. That in her view leads to her quantifying her claim at $35,000.00. There is no claim as such in respect of the vehicle actually sold at the time which was the Hyundai Tucson auto wagon.

9. Queensland Hyundai Parts in its response stated that the Mitsubishi Tritons was seized and there was surface rust evident; that the best price for the Mitsubishi Triton was $5,000.00 as supported by a statement from Hinterland Autos.

10. The tribunal has no jurisdiction to deal with alleged regulatory offences in its motor vehicle list jurisdiction under schedule 1 of the act. Whichever way one looks at it, Ms Johnston’s claim emanates from events outside the parameters of schedule 1. As well there is a strong implication or innuendo of unconscionable conduct on the part of Queensland Hyundai Parts. Nor is that a matter the Tribunal in its motor vehicle list jurisdiction can deal with. There is no claim here that enlivens the Tribunal motor vehicle list jurisdiction that empowers it to determine this application. The order therefore will be that the application is dismissed for lack of jurisdiction.