Leonard v Mitsubishi Motors Australia Ltd
[2021] QCAT 35
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Leonard v Mitsubishi Motors Australia Ltd & Anor [2021] QCAT 35
PARTIES: MICHELLE LEONARD (applicant)
v
MITSUBISHI MOTORS AUSTRALIA LTD
(first respondent)
TOOWONG MITSUBISHI PTY LTD
(second respondent)
APPLICATION NO/S:
MVL100-20
MATTER TYPE:
Motor vehicle matter
DELIVERED ON:
2 February 2021
HEARING DATE:
On the papers
HEARD AT:
Brisbane
DECISION OF:
Member Kanowski
ORDERS:
1. Mitsubishi Motors Australia Ltd must pay Michelle Leonard $4,544.79 by 26 February 2021.
2. Toowong Mitsubishi Pty Ltd must pay Michelle Leonard $5,380 by 26 February 2021.
3. Michelle Leonard’s application for costs is refused.
CATCHWORDS:
TRADE AND COMMERCE – COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION – CONSUMER PROTECTION – GUARANTEES, CONDITIONS AND WARRANTIES IN CONSUMER TRANSACTIONS – GUARANTEES, CONDITIONS AND WARRANTIES – where vehicle required two engine replacements in eight years – whether vehicle of acceptable quality – whether consumer entitled to refund – whether consumer entitled to damages – whether claim against manufacturer out of time
Australian Consumer Law, s 54, s 259, s 271, s 272, s 273
Competition and Consumer Act 2010 (Cth), Schedule 2
Fair Trading Act 1989 (Qld), s 50A
ACH Computing Pty Ltd v Austral Pty Ltd trading as Brisbane City Land Rover [2020] QCAT 176
APPEARANCES & REPRESENTATION:
Applicant:
Self-represented
First Respondent:
Jane Amos, customer relations team leader of first respondent
Second Respondent:
Nil
This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’)
REASONS FOR DECISION
Introduction
Ms Leonard in this proceeding seeks an order that she be paid $19,544.79, plus costs, for an alleged breach of a statutory guarantee as to acceptable quality. This relates to a Mitsubishi Triton vehicle that she bought new in 2011. The respondents are the manufacturer, Mitsubishi Motors Australia Ltd (‘Mitsubishi Motors’), and the dealer from whom Ms Leonard bought the car, Toowong Mitsubishi Pty Ltd (‘Toowong Mitsubishi’). In this context, such a dealer is referred to as the supplier.
In a nutshell, Ms Leonard says that the engine overheated on a number of occasions, several years after she purchased the vehicle, and that Mitsubishi Motors has twice replaced the engine as a result. She contends that this points to some unidentified design or other manufacturing defect.
In response to tribunal directions dated 8 September 2020, Ms Leonard and Mitsubishi Motors indicated their preference for the matter be decided on the papers. On 9 October 2020 the tribunal directed that it be decided in that manner.
Toowong Mitsubishi did not indicate a preference. In fact, it has not filed any evidence, submissions or other documents in the proceeding. I therefore had a concern that it may not have received notice of the proceeding. Further, Ms Leonard’s affidavit of service indicated that she had served Toowong Mitsubishi by email to a particular individual’s email address. This address conceivably might have come from contractual documents in 2011, and been out of date by 2020. However, these concerns were allayed when my examination of file notes revealed that a tribunal case manager phoned Toowong Mitsubishi on 11 September 2020, and was given that same email address for use by the tribunal to send directions etc.
The material before the tribunal relevant to the final determination of the matter consists of:
(a)Ms Leonard’s Application – Motor Vehicle Dispute filed on 27 April 2020, together with 20 appendices;
(b)email from Ms Leonard dated 21 September 2020 updating the circumstances of the vehicle; and
(c)submissions filed by Mitsubishi Motors on 8 October 2020.
Although the tribunal directions of 8 September 2020 gave the respondents the opportunity to file any further material that they wished to rely upon by 8 October 2020, the only material received was the submissions of Mitsubishi Motors mentioned above. Neither respondent has filed any evidence.
Outline of Ms Leonard’s case
In her Application – Motor Vehicle Dispute, Ms Leonard indicated that the relevant legislation is section 50A of the Fair Trading Act 1989 (Qld) (‘Fair Trading Act’), which in turn refers to the Australian Consumer Law (Queensland). Section 50A permits a person to apply to the tribunal for certain orders under certain provisions within the Australian Consumer Law (Queensland). The Australian Consumer Law (Queensland) consists, relevantly, of Schedule 2 to the Competition and Consumer Act 2010 (Cth).[1]
[1]Fair Trading Act, s 15, s 16.
Ms Leonard has not cited further provisions. However, as I understand her claims, they consist of:
(a)an action for a refund and damages against Mitsubishi Motors as manufacturer of the vehicle, under section 271 of the Australian Consumer Law (Queensland) – although, as I will explain, that provision does not allow for an action for a refund – for failure to comply with the guarantee as to acceptable quality found in section 54 of the Australian Consumer Law (Queensland); and
(b)an action for a refund, compensation, and damages against Toowong Mitsubishi as supplier of the vehicle, under section 259 of the Australian Consumer Law (Queensland), for failure to comply with the same guarantee.
Australian Consumer Law (Queensland) provisions
The relevant guarantee is set out in section 54:
54 Guarantee as to acceptable quality
(1) If:
(a) a person supplies, in trade or commerce, goods to a consumer;
…
there is a guarantee that the goods are of acceptable quality.
(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.
…
The Australian Consumer Law (Queensland) provides for actions against the manufacturer and against the supplier where the guarantee is not complied with.
Action against manufacturer
Under section 271(1), an affected person may recover damages from the manufacturer. Sections 272 and 273 are also relevant in relation to an action against the manufacturer:
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.
273 Time limit for actions against manufacturers of goods
An affected person may commence an action for damages under this Division at any time within 3 years after the day on which the affected person first became aware, or ought reasonably to have become aware, that the guarantee to which the action relates has not been complied with.
Action against supplier
Sections 259 and 260 are relevant:
259 Action against suppliers of goods
(1) A consumer may take action under this section if:
(a) a person (the supplier) supplies, in trade or commerce, goods to the consumer; and
(b) a guarantee that applies to the supply under Subdivision A of Division 1 of Part 3‑2 (other than sections 58 and 59(1)) is not complied with.
(2) If the failure to comply with the guarantee can be remedied and is not a major failure:
(a) the consumer may require the supplier to remedy the failure within a reasonable time; or
(b) if such a requirement is made of the supplier but the supplier refuses or fails to comply with the requirement, or fails to comply with the requirement within a reasonable time—the consumer may:
(i) otherwise have the failure remedied and, by action against the supplier, recover all reasonable costs incurred by the consumer in having the failure so remedied; or
(ii) subject to section 262, notify the supplier that the consumer rejects the goods and of the ground or grounds for the rejection.
(3) If the failure to comply with the guarantee cannot be remedied or is a major failure, the consumer may:
(a) subject to section 262, notify the supplier that the consumer rejects the goods and of the ground or grounds for the rejection; or
(b) by action against the supplier, recover compensation for any reduction in the value of the goods below the price paid or payable by the consumer for the goods.
(4) The consumer may, by action against the supplier, recover damages for any loss or damage suffered by the consumer because of the failure to comply with the guarantee if it was reasonably foreseeable that the consumer would suffer such loss or damage as a result of such a failure.
(5) Subsection (4) does not apply if the failure to comply with the guarantee occurred only because of a cause independent of human control that occurred after the goods left the control of the supplier.
(6) To avoid doubt, subsection (4) applies in addition to subsections (2) and (3).
…
260 When a failure to comply with a guarantee is a major failure
(1) A failure to comply with a guarantee referred to in section 259(1)(b) that applies to a supply of goods is a major failure if:
(a) the goods would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of the failure; or
(b) the goods depart in one or more significant respects:
(i) if they were supplied by description—from that description; or
(ii) if they were supplied by reference to a sample or demonstration model—from that sample or demonstration model; or
(c) the goods are substantially unfit for a purpose for which goods of the same kind are commonly supplied and they cannot, easily and within a reasonable time, be remedied to make them fit for such a purpose; or
(d) the goods are unfit for a disclosed purpose that was made known to:
(i) the supplier of the goods; or
(ii) a person by whom any prior negotiations or arrangements in relation to the acquisition of the goods were conducted or made;
and they cannot, easily and within a reasonable time, be remedied to make them fit for such a purpose; or
(e) the goods are not of acceptable quality because they are unsafe.
Section 262 restricts the option of rejecting the goods to a reasonable ‘rejection period’.
Section 263 then deals with the situation where a customer rejects goods within the rejection period. Broadly speaking, it requires the customer to return the goods to the supplier. The customer can then elect between a refund of the price paid or a replacement product.
Evidence and findings
Ms Leonard’s account in her Application – Motor Vehicle Dispute may be summarised as follows:
(a)the vehicle is a four-wheel drive utility;
(b)she purchased it new from Toowong Mitsubishi on 22 November 2011 for $39,130;
(c)she did not drive it much in the first few years because it was with her on a relatively small island, Groote Eylandt in the Northern Territory, and she had it transported from Brisbane and later back to Brisbane by road train and barge at the start and end of her time there;
(d)she then drove the vehicle in 2015 up to her new home at a small town in mainland Northern Territory, located 380 km from Alice Springs;
(e)in February 2016 the vehicle repeatedly overheated on a highway trip;
(f)the odometer reading was 42,000 km;[2]
[2]I have rounded this and later odometer readings.
(g)she took it to a Mitsubishi dealer in Alice Springs for tests and repairs;
(h)in September 2016 the overheating problem recurred on a highway trip and she again took the vehicle to the Alice Springs dealer;
(i)the odometer reading was 62,000 km;
(j)Mitsubishi Motors (via the Alice Springs dealer) then replaced the engine ‘under warranty’[3] – which I take to mean the manufacturer’s warranty rather than any statutory guarantee or warranty – in September 2016;
[3]Application - Motor Vehicle Dispute, [6].
(k)in April 2018, overheating occurred again, at 119,000 km, but the dealer in Alice Springs did not detect any ‘issues’;[4]
[4]Application - Motor Vehicle Dispute, [7].
(l)in mid-2018, overheating occurred again;
(m)the dealer in Alice Springs did not have any appointments for a few weeks, and suggested she take the vehicle to Mycar;
(n)Mycar replaced the radiator and thermostat;
(o)in August 2018 she sent the vehicle by road train to Chinchilla in Queensland for her son to use;
(p)the vehicle overheated during highway travel by the son in December 2019;
(q)Ms Leonard went to Chinchilla in December 2019, and was driving the vehicle to the Mitsubishi dealer in Dalby when it again overheated, and she ended up having the vehicle towed to the dealer;
(r)on 10 January 2020, Mitsubishi Motors advised Ms Leonard that it had given approval to the Dalby dealer to replace the engine;
(s)on 14 January 2020 Ms Leonard advised Mitsubishi Motors that she did not agree to the replacement of the engine as the ‘remedy’,[5]
(t)Ms Leonard told Mitsubishi Motors that instead she should have ‘a part refund of $15,000, being a fair and accurate assessment of the car’s value’,[6] as well as reimbursement for certain costs;
(u)she added that there had been a major failure, so she was entitled to request a refund rather than repair or replacement;
(v)further negotiations between Ms Leonard and Mitsubishi Motors stalled, and so she commenced the present proceeding;
(w)the odometer reading as at January 2020 was 136,000 km;
(x)on the occasions when overheating occurred, it happened quite suddenly, requiring the driver to pull over, and this was hazardous especially in high-speed conditions on Northern Territory roads; and
(y)further, the overheating would delay any journey significantly, which was also hazardous particularly in hot and isolated stretches of road in the Northern Territory.
[5]Ibid, Appendix 13, 5.
[6]Ibid.
Ms Leonard’s account is detailed, uncontradicted, and supported in many aspects by source documents. I accept her evidence, and find that the matters summarised in the above paragraph occurred as described by Ms Leonard.
It seems that the vehicle remained at the dealer’s in Dalby for several months from December 2019, because in her email to the tribunal dated 21 September 2020 Ms Leonard said:
…
14.5.2020 Applicant received phone call from Dalby Mitsubishi requesting Triton be removed from their site. When questioned whether the Triton was drivable was informed that [Mitsubishi Motors] had authorised another new engine installed
15.5.20 Applicant organised her son to purchase a day’s registration for the Triton and picked it up on this day. The Triton has been at son’s house unused since then.
I infer from this that the Dalby dealer went ahead and replaced the engine sometime in 2020, at no cost to Ms Leonard.
An appraisal by Dalby Used Cars on 22 January 2020 valued the vehicle at $9,500. I gather, from comments in an accompanying email, that this appraisal was obtained by the Dalby dealer at the request of Mitsubishi Motors. From the context, it seems likely that this appraisal was before the engine was replaced, though I cannot be certain of that.
A Red Book valuation certificate, which I gather was obtained online by Ms Leonard in March 2020, shows the private sale value of a 2011 Mitsubishi Triton in good condition, and with mileage of 134,000 km, at $14,880.
As none of the parties has sought to disprove these two valuations, and they appear to be reasonable, I accept them as fair indications of value. Accordingly, I infer that Ms Leonard’s vehicle was in a condition as at early 2020 that was somewhat less than good. I find that the approximate values, as at early 2020, of:
(a)Ms Leonard’s vehicle was $9,500; and
(b)a vehicle of the same age and type, and similar mileage, but in good condition, was $14,880.
Ms Leonard has not provided any expert evidence about the cause or causes of the overheating.
Ms Leonard has said that the first engine replacement was pursuant to the manufacturer’s warranty. There is no evidence about whether the second one was as well. No evidence has been filed about the terms of the manufacturer’s warranty, or the specific reasons why Mitsubishi Motors decided to make the replacements.
Although Mitsubishi Motors had the vehicle assessed by its dealers in Alice Springs and Dalby before replacing the engines, it has not provided any evidence about whether it determined a cause of the problem.
Was the guarantee of acceptable quality not complied with?
The time at which goods are to be of acceptable quality is the time when the goods were supplied to the consumer, but later information may be taken into account in deciding whether goods were of acceptable quality at that time.[7]
[7]ACH Computing Pty Ltd v Austral Pty Ltd trading as Brisbane City Land Rover [2020] QCAT 176, [8].
I have earlier quoted the factors set out in section 54(2) and (3) of the Australian Consumer Law (Queensland), and I will now consider their application in this case.
Starting with the relevant section 54(3) matters, I note that the vehicle was a new four-wheel drive utility. One would expect such a vehicle to cope comfortably with inhospitable climates and terrain. It was priced at over $39,000 in 2011, which was substantial enough to bring with it expectations of good quality and durability.
Several of the section 54(2) factors point, in this case, to the vehicle being of acceptable quality at the time of supply in 2011. It was fit to drive. There is no suggestion of any problems in appearance, finish, or safety at that time. On the other hand, real questions arise as to whether the vehicle was durable, and whether it had some hidden defect or defects.
As I have mentioned, Ms Leonard has not provided any expert evidence to explain the cause of the overheating problem. Rather, she in effect invites the tribunal to infer that there must have been some design or other manufacturing defect because a vehicle should not ordinarily require two new engines in the space of some eight years.
Of course, there might be other explanations for the problem such as abnormal use, excessive use, or poor maintenance. Conceivably, environmental conditions in some parts of the Northern Territory might be inhospitable for machinery, but I would be speculating if I assumed that such factors were significant in Ms Leonard’s case. There is no evidence or even suggestion that the overheating problem was related to abnormal use, excessive use, poor maintenance, or any other factor that arose after the time of supply.
On the available evidence, the inference is irresistible that there was a hidden design or other manufacturing defect in the vehicle at the time of supply that caused the later overheating problem. I find, on the balance of probabilities, that this was the case.
It is also significant that the overheating was a serious enough problem to warrant engine replacements. Less drastic repairs were attempted, but failed.
I find that a reasonable consumer, as at the time of supply in 2011, fully acquainted with the state and condition of the vehicle, including the hidden defect, would not have regarded the vehicle as of acceptable quality. Such a consumer would not have regarded as acceptable in quality a vehicle costing almost $40,000 if they knew that it would require two engine replacements within about eight years. A reasonable consumer would expect such a vehicle to last longer than eight years without requiring a new engine.
Accordingly, the guarantee of acceptable quality was not complied with.
Does Ms Leonard have a remedy against Mitsubishi Motors?
Emails between Ms Leonard and Mitsubishi Motors show that she is under the misconception that she is entitled to require a refund from Mitsubishi Motors in the event of a major failure. However, as can be seen from the statutory provisions I have earlier discussed, the remedy of a refund would be potentially available only against the supplier, namely Toowong Mitsubishi. Against a manufacturer, a consumer can only recover damages, as provided for in sections 271 and 272 of the Australian Consumer Law (Queensland). A refund is different in nature, and typically in amount, to damages. A refund would be for the amount paid at the time of supply.[8] Damages, on the other hand, are designed to compensate the consumer for the amount of loss they have sustained.
[8]Australian Consumer Law (Queensland), s 263(4)(a).
In relation to a claim for damages against a manufacturer, as has been noted, section 273 of the Australian Consumer Law (Queensland) imposes a three-year limitation period running from the time when the affected person first became aware, or ought reasonably to have become aware, that the guarantee has not been complied with.
Mitsubishi Motors submits that if the tribunal finds that the guarantee was not complied with, the three year period would run from 26 February 2016. Accordingly, Ms Leonard’s claim is out of time, it contends.
It seems that 26 February 2016 must be when Ms Leonard first experienced the overheating problem, as the first invoice from the Alice Springs dealer is dated 27 February 2016. However, on the available evidence, Ms Leonard did not know the cause of the problem. She would not have been in a position to know, therefore, that there was a design or systemic problem. Nor would she have been in a position to know of such a problem at the time of the first engine replacement. The problem may simply have been with some fault in the particular first engine. Ms Leonard would have assumed that the replacement would overcome the problem. It was only at the point when Mitsubishi Motors assessed in early 2020 that a second engine replacement was needed that Ms Leonard would have known, or been in a position to know, that there was some design or systemic problem. That was when the three-year period began to run. I find that Ms Leonard commenced her action within time.
Section 272 of the Australian Consumer Law (Queensland) sets out two bases for damages.
The first is for any reduction in the value of the goods, resulting from the failure to comply with the guarantee, below the price paid or the average retail price at the time of supply.[9] This must involve an assessment of the true value of the vehicle at the time of supply, taking into account the hidden defect: given that the value of most goods, especially most vehicles, decreases over time, it would be meaningless to compare the price at the time of supply with some later value of the goods. So, evidence would be required of the value of the vehicle as at November 2011, taking into account the hidden defect. Such evidence has not been supplied, and so I am not in a position to award damages on this first basis.
[9]Australian Consumer Law (Queensland), s 272(1)(a).
The second is for loss or damage suffered by the affected person because of the failure to comply with the guarantee if it was reasonably foreseeable that the affected person would suffer such loss or damage as a result of the failure.[10] However, this does not extend to loss or damage suffered through a reduction in the value of the goods.[11] So, while evidence has been supplied about reduced value as at early 2020, I cannot award damages against Mitsubishi Motors for this.
[10]Ibid, s 272(1)(b).
[11]Ibid, s 272(3).
The amounts claimed by Ms Leonard are:
(a)$15,000, ‘being the amount the consumer would [have] expected to receive during private sale’[12] as per the Red Book certificate; and
(b)$4,544.79, ‘being the cost of repairs, hire cars and towing fees’.[13]
[12]Application - Motor Vehicle Dispute, Part G, [1].
[13]Application - Motor Vehicle Dispute, Part G, [2].
The $15,000 figure must, I think, be the amount that Ms Leonard contends she should receive as a refund from Mitsubishi Motors, presumably in exchange for the vehicle, rather than a quantification of any damages. As discussed, the remedy of a refund is not available against a manufacturer.
The figure of $4,544.79 is supported by receipts. I accept that these expenditures represent losses suffered by Ms Leonard in that they were necessarily incurred to deal with an ongoing problem resulting from failure to comply with the guarantee. They were reasonably foreseeable. I will award this amount as damages payable by Mitsubishi Motors to Ms Leonard.
Does Ms Leonard have a remedy against Toowong Mitsubishi?
Potentially, and assuming that there was a ‘major failure’, Ms Leonard could have required a refund from Toowong Mitsubishi. However, she would have had to notify Toowong Mitsubishi, within the rejection period, that she was rejecting the vehicle. There is no suggestion that she gave such notification to Toowong Mitsubishi, or indeed had any contact with that dealer from the time of purchase until she served documents relating to this proceeding on 31 August 2020.
Accordingly, there is no basis for ordering a refund.
Under section 259(3)(b) of the Australian Consumer Law (Queensland), Ms Leonard can potentially be awarded compensation for ‘any reduction in the value of the goods below the price paid …’. Again, however, that would require evidence, which has not been provided, of the true value of the vehicle as at November 2011.
However, unlike the provisions relating to manufacturers, there is nothing preventing an award of damages against a supplier for a later diminution in value. Under section 259(4) of the Australian Consumer Law (Queensland), a consumer may recover damages from a supplier for any loss or damage suffered by the consumer because of the failure to comply with the guarantee if it was reasonably foreseeable that the consumer would suffer such loss or damage as a result of the failure. Section 259(6) clarifies that subsection (4) applies in addition to subsection (3).
I consider that a later loss in value, resulting from the failure to comply with the guarantee, was reasonably foreseeable. There is evidence relating to a diminished value as at early 2020: Ms Leonard’s vehicle was worth $9,500, whereas a vehicle in good condition would be worth $14,880. No factor has been suggested for the difference in value other than the failure to comply with the guarantee. I appreciate that the figure of $9,500 may reflect the value before the second engine replacement. However, no evidence of a revised value has been supplied by the respondents, and it can be expected that any increase in value attributable to the new engine would be tempered by the risk of further overheating and the potential need for further engine replacement. In these circumstances, I will use the best available evidence, which is the figure of $9,500. I assess damages payable by Toowong Mitsubishi as the difference between $14,880 and $9,500, which is $5,380.
Costs
Ms Leonard also seeks an order for costs associated with taking the action.
Section 50C of the Fair Trading Act provides that the tribunal can make an order for costs under section 102(1) of the QCAT Act only to the extent of the prescribed application filing fee. The prescribed filing fee was $345.80 at the time of filing.
Costs are not automatic. Indeed, section 100 of the QCAT Act says that except as provided for elsewhere, a party must bear its own costs. Section 102 of the QCAT Act permits an order for costs where the interests of justice require it, and the tribunal may have regard to matters such as the relative strengths of the parties’ cases and whether a party has unnecessarily disadvantaged another.
It is relevant to take into account that Ms Leonard has been only partly successful in her claims.
Mitsubishi Motors did not attend a mediation (by telephone) in the matter on 11 June 2020, which may have disadvantaged Ms Leonard. However, the failure to attend may have been the result of a mix-up during Covid-related disruptions, and so I do not place substantial weight on this matter. Toowong Mitsubishi did not attend the mediation either, but it had not been joined as a respondent at that point.
The email correspondence indicates that Mitsubishi Motors had earlier made attempts to resolve the dispute with Ms Leonard. It appears that Ms Leonard’s misconceived insistence that Mitsubishi Motors was obliged to give a refund was a substantial impediment in those negotiations.
Ms Leonard did not seek any resolution with Toowong Mitsubishi before commencing the proceeding. This no doubt reflected her misconception about Mitsubishi Motors’ obligation.
Overall, there are reasons to conclude that Ms Leonard might well have obtained a satisfactory outcome in other ways, without having to resort to this proceeding. In all of the circumstances, I am not convinced that the interests of justice require a costs order against either respondent. The costs application is therefore refused.
Conclusion
The extent of damages which can and should be awarded in the circumstances of this case are the amounts I have set out above:
(a)$4,544.79 payable by Mitsubishi Motors; and
(b)$5,380 payable by Toowong Mitsubishi.
I will allow until 26 February 2021 for payment, which allows a little extra time than would be ordinarily warranted, in case of processing delays in issuing the orders.
For the reasons explained, there is no basis for other orders such as for a refund, and the application for costs is refused.
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