La Grecia v Auto Outlet Centre (Qld) Pty Ltd
[2016] QCAT 426
•7 November 2016
CITATION: | La Grecia v Auto Outlet Centre (Qld) Pty Ltd [2016] QCAT 426 |
PARTIES: | John Robert La Grecia |
| v | |
| Auto Outlet Centre (Qld) Pty Ltd (Respondent) | |
APPLICATION NUMBER: | MCDO704-16 |
MATTER TYPE: | Other minor civil dispute matters |
HEARING DATE: | 18 July 2016 |
HEARD AT: | Brisbane |
DECISION OF: | Adjudicator Bertelsen |
DELIVERED ON: | 7 November 2016 |
DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The respondent pay to the applicants the sum of $8,358.00. |
CATCHWORDS: | Used vehicle purchase – statutory warranty – vehicle description – purchase finance – licensed dealer’s liability Motor Dealers and Chattel Auctioneers Act 2014 (Qld) |
APPEARANCES: | |
APPLICANT: | Kirri-Lee La Grecia |
RESPONDENT: | Michael Vogelsang, Director |
REASONS FOR DECISION
Application
By application filed 14 April 2016 John Robert La Grecia, Vicki Marie La Grecia and Kirri-Lee La Grecia (‘Ms La Grecia’) claim:
a)$7,000.00 being the difference between the value of a Subaru WRX motor vehicle as represented to them and the value of the vehicle as purchased;
b)Compensation of $2,167.00 for the difference in loan repayments as represented, as opposed to loan repayments actually payable;
c)Rectification work of $1,053.00 for repairs that were subject to warranty.
Background and evidence
In April 2015 Auto Outlet Centre (‘Auto Outlet’) a licensed motor dealer advertised a 2006 Subaru Impreza WRX motor vehicle for sale. Kirri-Lee La Grecia expressed interest in the vehicle. She test drove it.
On 30 June 2015 a contract to buy a motor vehicle was entered into between Auto Outlet as seller and John Robert La Grecia and Vicki Marie La Grecia as buyers. The purchase price was $24,990.00 and the vehicle was particularly described as a Subaru Impreza WRX AWD Series SMY07 with build and compliance plate dates both April 2006. The vehicle was sold subject to statutory warranty pursuant to the Motor Dealers and Chattel Auctioneers Act 2014 (Qld) (‘MDCA Act’) i.e. a statutory warranty applicable for three months from 30 June 2015 or 5000km, whichever first occurred. In addition the vehicle was sold with a National Warranty Company 12 month warranty.
A deposit of $6,000.00 was paid. Purchase finance was arranged through an ANZ chattel mortgage for balance payable of $18,990.00. The chattel mortgage was taken out in the names of John Robert La Grecia and Vicki Marie La Grecia t/as JR La Grecia and VM La Grecia Earth Moving (ABN 42201722575). The description of the vehicle recorded on the chattel mortgage was ’06 Subaru Impreza WRX STI MY07 sedan’.
The chattel mortgage recorded a total loan of $22,024.08 payable by 36 calendar monthly instalments of $611.78.
John Robert La Grecia and Vicki Marie La Grecia were recorded on that document as beneficial owners of the Subaru and Transport and Main Roads registration was effected in their names. Though John Robert La Grecia and Vicki Marie La Grecia were recorded as both registered and beneficial owners of the Subaru, it appeared that Ms La Grecia, their daughter, was to be the person using the vehicle and paying the finance instalments which equated to, adopting 156 weeks as the 36 calendar monthly term, $141.18 per week.
Ms La Grecia asserted a sum refundable of $2,167.00 based, it appears, on the difference between $153.00 per week and the $140.00 per week i.e. $13 per week; that such equated to $52 per month (4 x $13); that over 36 months the difference amounted to $2,167.00 ($52 x 36) which is in fact incorrect. The calculation is $1,872.00. The sum of $153.00 per week was incorrectly, it appears, calculated by dividing the calendar monthly repayment of $611.78 by 4. That did not equate to a weekly repayment.
In the chronology attached to the application it was stated ‘there was a call from Crystal advising Kirri-Lee the repayments would come down to $140 per week, in which we accepted, told her we would pay the extra $2,000…’.
Ms La Grecia asserted shortly after purchase, on about 21 July 2015, the ‘vehicle started having problems’. She attended Auto Outlet’s premises on 29 July 2015 for unusual motor noise to be ‘fixed under statutory warranty’. She asserted that Auto Outlet’s representative ‘refused to physically look at the car and told me, Kirri-Lee it was not their problem and to call the warranty company that came with the car’. She said she spoke to National Warranty Company the same day and was told ‘I could use my own repairer but would have to send them [National Warranty Company] the report to determine if they would reimburse/cover it or not’.
Ms La Grecia did take the vehicle to a repairer that same day 29 July 2015, but due to commitments was not able to leave the vehicle with the repairer that day. Thereafter a hiatus of about six months occurred. On 18 January 2016, Bridgestone Select Enogerra advised that ‘it was the viscous coupling that was causing the problems I was and have been experiencing with the car since back in July and has slowly gotten worse’.
Bridgestone Select’s invoice dated 22 January 2016 for a genuine viscous roller bearing and associated parts and works totalled $998.00. The invoice recommended ‘getting exhaust welded has excessive rattling’. The exhaust was welded by Macs Auto Service Centre. Its invoice for $55.00 is dated 23 January 2016.
Ms La Grecia asserted that $1,053.00 ought to be at the cost of Auto Outlet.
Mr Vogelsang stated that work done on the vehicle in January 2016 was not authorised; that he understood that National Warranty Company had reimbursed Ms La Grecia for the $1,053.00 cost of repairs. However, he stated at hearing:
We will pay for the work that was done without authorisation and – to move on with it, not to get to this – to this case, but the client wasn’t happy with that and wanted to get to this stage. So I’m still happy to say here’s the money back that you paid and I’ll follow it up with the National Warranty Company.
That was because Ms La Grecia was adamant that neither she nor her parents had received any money from National Warranty Company.
Mr Vogelsang produced a copy of the original online sale advertisement for the Subaru vehicle. It simply described the vehicle as a ‘2006 Subaru Impreza WRX S’. Whether that meant that the vehicle was an S version or an STI S version of the vehicle was not clear. Ms Le Grecia stated that the Auto Outlet’s sales representative, Ron Robson, informed her the vehicle was an STI version and that it was rare for the dealership to have such a vehicle for sale. Ms La Grecia produced numerous carsales.com.au photos and particulars of numerous STI S versions of the vehicle around the same age in the $24,000.00 – $28,000.00 price range, and the same for simple S versions around the same age in the $12,000.00 – $20,000.00 price range. Ms La Grecia said the vehicle was priced as an STI version. She stated that she was informed by Esanda (ANZ) that the chattel mortgage had been typed up by Auto Outlet Centre’s broker.
Ms La Grecia went on to say she was informed by a person, Jaimie at Bridgestone in January 2016, that the vehicle was not the:
Make/model/year/series in vehicle I thought it was and what my parents and I were led to believe by Ron upon purchasing the car. After being informed of this I called a number of Subaru dealerships and Subaru Australia to confirm. This was raised with Ron on 22 January 2016…
Mr Vogelsang stated there was a typographical error in the contract of sale which recorded the vehicle as an MY07 model, as opposed to a MY06 model which the vehicle was. He asserted that, in any event, the difference in value between the two models was, according to Glass’ Market Value Guide insignificant. That guide valued both the MY06 and MY07 models at $14,900.00.
Conclusions
The Subaru vehicle was sold on 30 June 2015 subject to a statutory warranty as well as a 12 month National Warranty Company warranty. Complaint regarding the noise in the motor was made on 29 July 2015 at which time Ms La Grecia was told to claim through National Warranty Company which she did. As it transpired, albeit some time later in January 2016, that noise was identified as due to faulty viscous coupling which required repair. The initial complaint was made at a time when the vehicle was within the statutory warranty period and the National Warranty Company 12 month period. The exhaust which was repaired in January 2016 may not have been faulty in July 2015. Either way, Ms La Grecia was placed in the position of having to pay for repairs herself. She ought not to have been liable for, in particular, the viscous coupling repair at $998.00.
Mr Vogelsang said the repairs were a National Warranty Company issue. That is not so. The repairs, particularly the viscous coupling repair was a repair that ought to have been attended to pursuant to the statutory warranty. Mr Vogelsang stated at hearing he was prepared to pay Ms La Grecia the sum of $1,053.00 and that he would follow matters up with National Warranty Company. All those factors combined lead to the conclusion that Auto Outlet ought to pay the applicant’s the sum of $1,053.00.
With the respect to the claim for compensation in respect of repayments under the chattel mortgage the evidence is clear. According to the chattel mortgage loan repayments were $611.78 per calendar month over 36 calendar months. That equated, adopting 156 weeks as the 36 calendar monthly period to $141.18 per week. If a more exact calculation is to be made, the 36 calendar months is actually 156 weeks and 4 days. That results in a weekly payment of $140.66. There is no misrepresentation regarding finance here. That is quite apart from the acceptance of $140 per week as stated in the applicants’ claim and the fact that the chattel mortgage is between the ANZ bank and John Robert La Grecia and Vicki Marie La Grecia. The terms and conditions of that chattel mortgage are not referrable to Auto Outlet. Accordingly, the claim for compensation in respect of finance repayments fails.
The Subaru vehicle was advertised generally as a 2006 Subaru Impreza WRX S. A crucial, though not definitive, document identifying the vehicle is the contract of sale. That document describes the vehicle as a Subaru Impreza WRX AWD SMY07. It was not. It was an SMY06 model. The model year mis-description was admitted. The Glass’ market value guide however only addresses the model year issue. It does not address the issue of the difference between an STI S version and an S version.
The Tribunal accepts Ms La Grecia’s evidence (and that of her parents) that the sales representative, Ron Robson, sold the vehicle as a 2006 Subaru Impreza WRX STI MY06 sedan. The description on the vehicle on the contract of sale is defective in that it does not refer to the vehicle being an STI version and records the wrong year. However, the chattel mortgage does fully describe the vehicle as an STI version, though still records the year incorrectly as 07. Here, the chattel mortgage is crucial, perhaps even more crucial than the contract of sale because it enables finance in the sum of $22,024.08 to be obtained in respect of a vehicle being purchased for $24,990.00. If indeed the vehicle was sold as an S version only the finance sum probably would have exceeded the purchase price and finance would most likely have been refused. The vehicle description as recorded on the chattel mortgage was supplied by Auto Outlet and irrespective of whether that chattel mortgage was prepared in-house or not.
The evidence of the price difference between an S version and an STI version as depicted in numerous photos and particulars applicable to both versions is overwhelming.
The Tribunal accepts based on Ms La Grecia being informed by Bridgestone that the vehicle was not an STI version and her enquiries of Subaru dealerships and Subaru Australia that the vehicle sold was not an STI version. The fact that the mis-description was only discovered at a later time does not relieve Auto Outlet from liability for that mis-description. The quantum of the claim here is the difference between the market value of the two versions. Assessing the totality of carsales.com.au photographs and particulars, relevantly price of standard 2006 Subaru Impreza WRX S manual AWD MY06 sedans, the average price is approximately $18,000.00. The same assessment for 2006 Subaru Impreza WRX STI S MY06 is $25,000.00. The Tribunal finds that the difference claimed by all the applicants here is reasonably therefore $7,000.00.
The claim is allowed at $1,053.00 plus $7,000.00 plus the filing fee of $305.00, a total of $8,358.00.
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