Julian v Brisbane’s Cheapest Commodores
[2012] QCAT 22
•31 January 2012
| CITATION: | Julian v Brisbane’s Cheapest Commodores |
| [2012] QCAT 22 | |
| PARTIES: | Anthony Julian |
| (Applicant/Appellant) | |
| v | |
| Brisbane’s Cheapest Commodores | |
| (Respondent) | |
| APPLICATION NUMBER: | MCDO2392-11 |
| MATTER TYPE: | Other minor civil disputes matters |
| HEARING DATE: | 19 December 2011 |
| HEARD AT: | Brisbane |
| DECISION OF: | Kevin O’Hanlon, Adjudicator |
| DELIVERED ON: | 31 January 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | The application is dismissed. |
| CATCHWORDS: | Rejection of goods – major failure – remedies |
| Competition And Consumer Act 2010 (Cth), sched 2 | |
| The Australian Consumer Law, s 259 |
3. Order the refund of the deposit and repayment of all monies paid to
any parties associated with the purchase of this vehicle to the date of
hearing and decision; and4. Brisbane Cheapest Commodores pay the filing fee.”
[2] Mr Julian purchased the vehicle from Brisbane Cheapest Commodores on 16 April 2011 and after travelling approximately 67km he says the engine blew up, which fact is not disputed. I accept his evidence, that he sent an email on 17 April 2011 to Brisbane Cheapest Commodores to the effect that he wished to in effect terminate his contract with Brisbane Cheapest Commodores as well as the finance company. The respondent, through Mr Miller, admits that he received that email.
[3] Notwithstanding that email Brisbane Cheapest Commodores collected the broken down car and replaced the engine with another second hand engine. Mr Julian did not seem to object to this being undertaken by Brisbane Cheapest Commodores. The replacement took approximately two weeks to effect and during that time, Brisbane Cheapest Commodores had given Mr Julian the use of a loan car. This also is not disputed.
[4] Since receiving the repaired car Mr Julian has travelled in it approximately 8,000km in his role of employment as a salesman. He complains that the car leaks oil and is noisy in its operation. In short, he is displeased with the car.
[5] At the hearing I heard evidence from Mr Anthony Julian and also from Mr Barrett, who advised he was the managing director of Brisbane Cheapest Commodores and also Mr Miller, the salesman involved with the sale of the car to Mr Julian.
[6] Mr Barrett gave evidence that the present oil problem can be fixed in an hour or two and involves repair of a rocker cover. However in view of Mr
Julian’s past dealings and problems with the car at present Mr Barret said
he would like Brisbane Cheapest Commodores to have the car for one or
two days to “really go through it and if necessary have a new road worthy
check done on the car”. He also stated during that time Mr Julian could
have the use of a loan car.
[7] Mr Julian purchased the car for $8,000 by way of a deposit of $1,000 and financed the remainder through a finance company named Syndicate 37 which is understood to be connected to Brisbane Cheapest Commodores. Mr Julian says he needs a car for his employment. All of these factual matters do not seem to be in contention; both parties agreed that there was a problem with the engine and it was replaced with a second hand engine; and that various other problems that have arisen have been attended to by Brisbane Cheapest Commodores with Mr Julian having a loan car throughout those intervals of non-use of the subject car.
[8] I am then left to consider the Competition and Consumer Act 2010 (Cth) to which I have been referred by Mr Julian.
[9] I have had regard to section 159 and the following sections of the Consumer and Competition Act 2010 (Cth) commonly called The Australian Consumer Law (ACL). Without repeating the wordings of those sections, and for the record, I have considered also sections 260 through to and including 268 of ACL.
[10] Considering all of the evidence before me, I find that Mr Julian acted promptly in advising Brisbane Cheapest Commodores that he wished to terminate the deal between them. In other words, that his email of 17 April 2011 had the effect of the vehicle breakdown being a major failure under the provisions of section 159(3)(a).
[11] However, I find that Mr Julian then compromised his position by then accepting the offer of Brisbane Cheapest Commodores to replace the engine and to have the use of a loan car. In other words in my opinion he has forgone the ability to rely on the ability to reject the vehicle under the provisions of section 159 of ACL. He has compounded the issue by accepting repair rather than rejection. He seems to have confirmed his contract to continue with his purchase of the vehicle and indeed he does so from about 30 April 2011 (2 weeks after the vehicle was repaired) up until 27 July 2011 when he then files his application before this Tribunal.
[12] Accordingly I find that if he was to take the benefit of the rejection he should not have continued to accept repairs and continue to use the vehicle. By his actions it seems to me that he accepts the repairs rather the rejection. To rely on rejection, he could well have left the vehicle where it had been towed from the M1, then used a hire vehicle for his job requirements and sought the recovery of expenses as well as rejection of the goods pursuant to the terms of the various sections referred to in the ACL.
[13] I dismiss the application.
APPEARANCES and REPRESENTATION (if any):
APPLICANT: Anthony Julian RESPONDENT: Peter Barret and Jamie Miller REASONS FOR DECISION [1] This is a claim for rejection of a car arising out of a contract between
Anthony Julian and Brisbane’s Cheapest Commodores whereby Mr Julian
in his application filed on 2 August 2011 sought orders that:-
1. “Uphold my rejection of the goods under section 259 of the Australian Consumer Law (Major failure); and
2. Cancel all contracts associated with the vehicle (a 1999 Holden Vectra
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