Linner v Netpark Pty Ltd t/a Teammoto Suzuki Virginia - [2024] QCAT 499

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Linner v Netpark Pty Ltd t/a Teammoto Suzuki Virginia [2024] QCAT 499

PARTIES:

ANTHONY HANS LINNER

(applicant)

v

NETPARK PTY LTD TRADING AS TEAMMOTO SUZUKI VIRGINIA

(respondent)

APPLICATION NO:

MVL145-23

MATTER TYPE:

Motor vehicle matter

DELIVERED ON:

11 November 2024

HEARING DATE:

30 October 2024

HEARD AT:

Brisbane

DECISION OF:

Member Chapple

ORDERS:

1. Teammoto Virginia must collect the motor vehicle from Mr Linner within 21 days of the date of these orders.

2. Teammoto Virginia must pay to Mr Linner the amount of $7,001.15 within 21 days of the date of these orders.

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 – whether failure to comply with consumer guarantee a major failure – whether consumer entitled to refund – whether consumer entitled to damages – whether statutory warranty applies

Australian Consumer Law, s 18, s 54, s 236, s 259, s 260, s 262, s 263

Competition and Consumer Act2010 (Cth), Schedule 2 Fair Trading Act1989 (Qld), s 50A, s 50C

Motor Dealers and Chattel Auctioneers Act2014 (Qld), Schedule 1

Medtel Pty Ltd v Courtney (2003) 130 FCR 182

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

Self-represented

REASONS FOR DECISION

On 6 July 2023, the Applicant (‘Mr Linner’) filed an Application – Motor Vehicle Dispute (‘the application’) in the Tribunal against the Respondent (‘Teammoto Virginia’).
Mr Linner is the owner of a 2021 CF MOTO 650CC 650NK ABS SPORTS motorbike (‘the motor vehicle’).
Mr Linner purchased the motor vehicle from Teammoto Virginia on 15 April 2023.
Mr Linner seeks relief in the application under the Australian Consumer Law, which is Schedule 2 to the Competition and Consumer Act2010 (Cth). Section 50A of the Fair Trading Act1989 (Qld) vests the Tribunal with jurisdiction in relation to motor vehicles in respect of certain actions under the Australian Consumer Law.
Mr Linner also indicates in the application that the statutory warranty provisions set out in Schedule 1 of the Motor Dealers and Chattel Auctioneers Act2014 (Qld) apply to the application.
The relief sought by Mr Linner in the application is a refund of the on-road cost of the motor vehicle, a QBE comprehensive insurance premium, and a so-described “unauthorised service cost”.
The matter was heard by the Tribunal on 30 October 2024.
Evidence
Mr Linner appeared in person, supported by his sister, Ms Melissa Linner.
Mr Lacey appeared on behalf of Teammoto Virginia. Mr Lacey stated his position to the Tribunal as Group Service Manager for MotorCycle Holdings Limited, which he claimed is the parent company of Teammoto Virginia.
The parties filed in the Tribunal written statements of evidence and gave oral evidence at hearing under cross examination and in response to questioning by the Tribunal.
Teammoto Virginia did not file a statement of evidence for Mr Lacey. Mr Lacey stated to the Tribunal that he had not been involved in the dealings between Teammoto Virginia and Mr Linner.
Teammoto Virginia filed statements of evidence for Mr Craig Macklin (Teammoto Virginia service manager) and Mr Kristaan Baker (Teammoto Virginia dealer principal), both of whom had been involved in the dealings between Teammoto Virginia and Mr Linner. However, neither Mr Macklin nor Mr Baker made themselves available for cross examination at hearing.
The following material relating to the motor vehicle and/or the dealings between Teammoto Virginia and Mr Linner in respect of the motor vehicle and filed in evidence by Mr Linner or Teammoto Virginia is not in dispute:
(a)Contract to Purchase a New Motor Vehicle dated 15 April 2023 and annexures, pages numbered 1 to 12, and comprising Annexure A to Mr Linner’s affidavit dated and filed 6 July 2023.
(b)Video of the motor vehicle’s fuel gauge filed by Mr Linner on 21 October 2024 and viewed at hearing.
(c)Teammoto Virginia service tax invoices dated 28 April 2023, 2 May and 2 June 2023, 5 February 2024, and 15 April 2024 filed by Teammoto Virginia on 25 October 2024.
(d)CFMOTO 400NK CF400-BF 650NK CF650-7F Owner’s Manual filed by Teammoto Virginia on 25 October 2024.
(e)Bundle of photographs of damage to the motor vehicle filed by Teammoto Virginia on 25 October 2024.
Referencing the material listed in the preceding paragraph, the following facts are not in dispute:
(a)The motor vehicle was sold by Teammoto Virginia to Mr Linner as a new motor vehicle with an odometer reading of 20km at the date of purchase/taking possession.
(b)Mr Linner purchased and took possession of the motor vehicle on 15 April 2023.
(c)Mr Linner paid Teammoto Virginia $6,865.95 for the purchase of the motor vehicle.
(d)The factory warranty applicable to the motor vehicle expires on 15 April 2026.
(e)The break-in and periodic maintenance schedule stipulated for the motor vehicle in the owner’s manual requires a service of specified items at mileages of 1000km, 5000km, 10000km, 15000km, 20000km, 30000km, and 40000km (or respective specified calendar months, whichever the earlier).
(f)The following work was undertaken in relation to the motor vehicle at Teammoto Virginia’s workshop on the dates, at the mileages, and for the charges indicated in the service tax invoices as follows:
(i)      28 April 2023 at 1078km:
-Fuel gauge issues – Submitted a claim for a sender unit and ordered part – NO CHARGE.
-Completed 1000km service and tune as per manufacturers specifications, adjusted cable free play, idle speed, drive chain and steering bearings, checked brake light switches, brake and coolant levels and hoses, replaced oil and oil filter, tighten all nuts and bolts, lube chain, cables and all pivot points, check and adjust tyre pressures, test ride - $249.00 (labour, consumables, parts, miscellaneous, gst).
(ii)      2 May 2023 at 3146km:
-Fuel gauge and dash – Supplied and installed new fuel level sensor and LCD dashboard. Replaced at 3146km. Adjusted level sensor to work correctly, the pivot was loose so had to tighten/adjust as was still jumping on ohm’s test. Checked your bike over, the dash has soft/rubber mounts behind it to absorb vibrations, the movement is quite normal and the mounts are fine. After several rides on the bike we are unable to fault the brakes. Please note though if the rear brake has a slight hard application the ABS system kicks in and this will in turn release pressure off the brakes so they do not lock up. This is also normal and how the brake should operate. At this stage we are unable to fault your bike and happy how it is riding – NO CHARGE.
-Replaced horn – Horn 12V BLK – NO CHARGE.
(iii)     5 February 2024 at 13778km:
-Rear tyre or tube on bike – Fit and balance rear tyre. New tyres have a mould release coating to preserve and protect the tyre compound. This coating can be slippery, so please ride carefully for the first 100-150 - $339.94 (labour, parts, miscellaneous, gst).
(iv)     15 April 2024 at 15820km:
-Drive noise - chain possibly????? - $430 C & S kit + $850 clutch kit – supplied and fitted. Bike needs clutch kit. We have now supplied and installed new clutch kit. We have also done oil ad filter as part of the clutch kit replacement. 2.2L Honda GN4 engine oil. Chain and sprockets kit – new C & S supplied and adjusted up. Front tyre still needs replacing. Clutch lever still needs replacing. Horn needs replacing. Number plate light is damaged. Left hand mirror still needs replacing. Please note bike should be serviced at least every 5000km. - $1181.35 (labour, parts, gst).
Mr Linner’s further oral and written evidence relevant to his claim is summarised as follows:
(a)Mr Linner has been on a disability support pension for more than ten years. He is not able to maintain long-term employment due to his disability. He works when he can. He saved for four years to purchase a motorbike.
(b)When Mr Linner and his sister attended the Teammoto Virginia showroom on 15 April 2023 to inspect the motor vehicle, the salesperson declined Mr Linner’s request for a test ride. Instead, the salesperson turned on the ignition and revved the engine a few times. Mr Linner had done a lot of research on the CF MOTO 650NK, he was satisfied with the physical appearance of the motor vehicle and how the engine sounded, and believed he was ready to purchase the motor vehicle without a test drive. After price negotiations with the salesperson, Mr Linner agreed to pay and did pay $6865.85 to purchase the motor vehicle. He also paid $74.13 for QBE comprehensive insurance cover. Mr Linner took delivery of the motor vehicle on the same day and rode it home.
(c)The following day, on 16 April 2023, Mr Linner took the motor vehicle for a ride and noticed the fuel gauge was altering between full and empty, and he had no idea how much fuel was in the tank.
(d)On 18 April 2023, Mr Linner rang Teammoto Virginia and reported that the fuel gauge was faulty and the horn not working. A maintenance appointment was booked for 28 April 2023.
(e)In the ten days leading up to the maintenance appointment, the fuel gauge continued not to work. Mr Linner was riding 100km each day between his home at West End and his course at Caboolture. He did not know how much fuel was in the tank and was always going to the fuel station to refuel to avoid breaking down.
(f)When Mr Linner attended the Teammoto Virginia workshop on 28 April 2023 to collect the motor vehicle after the maintenance appointment, he was told that the fuel gauge had not been fixed and he would have to wait two weeks for the parts. Mr Linner was also told that the motor vehicle needed a new fuel system, and that a 1000km service had been done, which he would have to pay for at a cost of $249. Mr Linner paid for the service, but he claims that he did not authorise the service because he had been told by Teammoto Virginia staff earlier in the week that the motor vehicle should be repaired first. Mr Linner acknowledged at hearing that if the 1000km service had not been done, the factory warranty would have been voided. Mr Linner also asked whether the squeak in the brakes had been fixed, but he did not receive a response.
(g)On 29 April 2023, Mr Linner made a complaint in writing to Teammoto Virginia under cover of an email from Mr Linner’s sister to Mr Luke Swan. In the complaint letter, Mr Linner outlined the motor vehicle’s defects that had become apparent since purchase and the delay in repairs, his unhappiness at having purchased a new motorbike that needed immediate repairs, the stress he was experiencing riding a faulty motorbike long distances each day fearing that it would break down, and his advice from Fair Trading that he could request a new motorbike or his money back. In concluding the complaint letter, Mr Linner requested a replacement motorbike. Teammoto Virginia did not respond to Mr Linner’s complaint letter.
(h)Also on 29 April 2023, Mr Linner and his sister attended Teammoto Virginia to discuss his complaint in person with the manager, Mr Baker, and to show him the motor vehicle. Mr Baker told Mr Linner that the fuel gauge problem could be many things without specifying anything in particular and that he knows the laws and he could not have a replacement motorbike. Mr Linner told Mr Baker that he would not have bought the motor vehicle if he knew it was broken and not fit for purpose and requested a loan bike so he could get to his course. Mr Baker organised a loan bike but did not tell Mr Linner what would be done about the motor vehicle, other than he would call him in a couple of days.
(i)On 3 May 2023, Mr Macklin, the Teammoto Virginia service manager, called Mr Linner to let him know that the fuel level was due to arrive the following day and he would call when it was fitted. Mr Linner asked again for a new motorbike but was refused. On the same day, Mr Baker emailed Mr Linner advising that Teammoto Virginia was taking the matter seriously and they would ensure the motor vehicle is fixed in a timely manner.
(j)On 3 May 2023, Mr Linner lodged a complaint online with Fair Trading providing the following details:
I purchased a CF MOTO 650NK 2021 from Teammoto Virginia on the 15/04/2022 [sic]. The brand-new motorbike has a defect. The defect affects the safety and reliability of the bike. Teammoto sold me a product that is not fit for its purpose and did not disclose that the bike had a defect. The motorcycle fuel gauge and horn do not work. The motorcycle needs a whole new fuel replacement system. I have approached Teammoto in person to request a brand-new motorcycle replacement. Teammoto have said no and they will not fix the current bike in a timely manner.
(k)On 9 May 2023, Mr Linner attended the Teammoto Virginia workshop to collect the motor vehicle after being advised by the mechanic that a new fuel level and horn had been installed. Mr Linner returned the motor vehicle to the Teammoto Virginia workshop within minutes due to repeated stalling. The mechanic acknowledged they had overlooked an issue relating to the headlight switch; the problem was fixed and Mr Linner drove the motor vehicle home.
(l)On 11 May 2023, when riding the motor vehicle, Mr Linner noticed the fuel gauge was still altering between full and empty.
(m)Mr Linner reported the ongoing fuel gauge problem to Teammoto Virginia again on 12 May 2023. After asking Mr Linner about the holding capacity of the fuel tank, the mechanic told Mr Linner he did not know what else he could do, and that he would contact CF MOTO (the manufacturer).
(n)On 12 May 2023, Mr Linner called a number he found for CF MOTO on their website and asked about getting a replacement motorbike. He was told that he needed to sort it out with the dealership. Mr Linner believes that it was not the CF MOTO head office he called, but another dealer.
(o)On 15 May 2023, Teammoto Virginia told Mr Linner they were still waiting for a response from CF MOTO. Frustrated with the lack of action, Mr Linner called Mr Baker later that day and requested a full refund on the motor vehicle. Mr Baker refused to give a refund and said he would call CF MOTO the following day.
(p)Also on 15 May 2023, the Teammoto Virginia mechanic called Mr Linner and told him the motor vehicle needed a new dash to fix the fuel gauge problem, and that he would call him again when the part arrived.
(q)Mr Linner followed up Teammoto Virginia on 26 May 2023 and was told they could replace the dash on 1 June 2023.
(r)On 1 June 2023, Mr Linner took the motor vehicle to the Teammoto Virginia workshop to have the dash replaced. He also told them the back brake was not working properly. Mr Linner was given a loan motorbike. When he rode the motor vehicle home later the same day, Mr Linner noticed that the fuel gauge was still altering, the brakes were squeaky, and the dash was loose. Mr Linner was not given an invoice for the work done.
(s)On 5 June 2023, Mr Linner called Mr Baker at Teammoto Virginia and reported the ongoing problems with the fuel gauge, which he had captured on video. Mr Baker told Mr Linner they had done extensive testing and it was fine but invited him to send the videos. Mr Baker also stated that the shape of the fuel tank can affect the fuel gauge reading.
(t)On 7 June 2023, Mr Baker asked Mr Linner to send the videos by a different means and said he would contact CF MOTO.
(u)On 14 June 2023, when riding the motor vehicle, Mr Linner applied the brake as he approached a red right arrow, and the brake failed to bring the motor vehicle to a stop.
(v)On 15 June 2023, Mr Linner reported the brake problem to Teammoto Virginia, however Mr Baker was not available and he did not return Mr Linner’s call. On the same day, Mr Linner tried to contact Teammoto Springwood as he was told it was CF MOTO’s head office; he wanted to submit a complaint and to find out whether Mr Baker had contacted them about the faulty motor vehicle. Mr Linner was disconnected and became distressed. His sister then called Teammoto Springwood to find out how a complaint could be made and was told someone would call her back. However, no one did.
(w)On 15 June 2023, Mr Linner emailed Mr Baker letting him know the brake issue was urgent and needed to be fixed, the fuel gauge was still altering, and the motor vehicle was unsafe to ride. He also asked Mr Baker the outcome of his contact with CF MOTO head office about getting a refund. Mr Baker called Mr Linner the same day advising that he had not heard from CF MOTO.
(x)On 16 June 2023, Teammoto Virginia arranged for the motor vehicle to be collected from Mr Linner’s home. Mr Linner was given a loan motorbike.
(y)On 20 June 2023, Teammoto Virginia staff told Mr Linner there were no problems with the motor vehicle. Mr Linner also received an email from Mr Macklin advising that the dash was normal and that after several test rides, they could find no brake fault. Riding the motor vehicle home that day, Mr Linner noticed the brakes had a loud squeak and the fuel gauge was still altering.
(z)On 20 June 2023, Mr Linner emailed Teammoto Virginia expressing his disappointment with the service and repairs on the motor vehicle and stating that he cannot sell the motorbike because it is too dangerous and requesting a full refund or store credit.
(aa)On 21 June 2023, Mr Baker emailed Mr Linner advising that they had found no issue with the brakes or safety concerns after extensive testing, CF MOTO had not responded to the fuel gauge issue, he could not have a refund or store credit, and if he has concerns, to go to Fair Trading.
(bb)On 29 August 2023, Mr Linner attended a telephone mediation with Teammoto Virginia, but they were unable to resolve the matter.
(cc)The motor vehicle has been knocked over and damaged on four occasions while parked in the car park of Mr Linner’s apartment block where he lives at West End. Mr Linner states that the damage occurred over many months, but he cannot say what dates. There was damage to both number plates, the clutch lever and the left-hand mirror. Mr Linner complained to police. He did not maintain the insurance because it was too expensive and has not made any claims on insurance.
(dd)On 20 February 2024, while Mr Linner was riding the motor vehicle, the clutch broke. Mr Linner called Teammoto Virginia to book the motor vehicle in for repairs. He was told the repairs would not be covered by the warranty because he did not service the motor vehicle and the clutch problem was due to fair wear and tear. The motor vehicle remained at the Teammoto Virginia workshop for six weeks awaiting repairs, and Mr Linner was not provided a loan motorbike. Mr Linner lost work because he was unable to get to Port of Brisbane.
(ee)Mr Linner believes that the clutch issue is not related to the damage occasioned to the motor vehicle in his building car park.
(ff)Mr Linner has not had the motor vehicle serviced since the 1000km service.
(gg)Mr Linner decided to stop riding the motor vehicle in May 2024 because there were too many problems including the altering fuel gauge and unreliable back brake, it felt unsafe, and the repairs were too expensive. The final odometer reading is 16560km. Mr Linner has bought an electric scooter, which he uses as his main form of transport.
Mr Macklin’s written evidence (untested at hearing due to his non-appearance) relevant to Mr Linner’s claim is summarised as follows:
(a)The fuel gauge presented faulty at the first service and after diagnosis the fuel lever sender and dash were replaced under warranty.
(b)The ABS system and standard brakes were operating perfectly on each assessment. The customer (Mr Linner) experienced the correct operation of the ABS system when the brakes are applied aggressively.
(c)The damage to the motor vehicle when it was knocked over caused the clutch lever/cable to take away all free play, then continued use caused the clutch to start slipping. The motor vehicle could not be ridden safely and needed a new clutch kit. Mr Linner was advised it was not a warranty issue, but perhaps it was an insurance claim.
(d)Teammoto Virginia’s records show the motor vehicle’s last odometer reading as 15820km and last service at odometer reading 1078km, having missed three services.
(e)The motor vehicle was handed over as per dealer instructions and all faults, both factory warranty related and non-factory warranty related, have occurred since delivery.

Mr Baker’s written evidence (untested at hearing due to his non-appearance) relevant to Mr Linner’s claim is summarised as follows:
(a)A former named salesperson handled the sale of the motor vehicle to Mr Linner.
(b)Mr Linner and his sister presented at Teammoto Virginia on 29 April 2023, both extremely irate and aggressive, demanding that they replace the motor vehicle immediately, and unwilling to accept an explanation of the warranty cover.
(c)Mr Baker offered a loan bike to diffuse the situation. He has found Mr Linner difficult to deal with during the whole process, calling Mr Baker’s mobile and the dealership incessantly to the point of intimidation. Mr Linner has sent dozens of videos and messages to Mr Baker’s mobile of the fuel gauge and dash and messages requesting refunds, none of which show any defect or error.
(d)Most recently Mr Linner presented at Teammoto Virginia on 22 October 2024, argumentative and aggressive, demanding that Mr Baker respond to the mediation request.
(e)The motor vehicle was brand new, unused and free from faults, defects or damage at the time of handover. It had a full tank of fuel and had been test ridden prior to Mr Linner taking possession.
Mr Lacey’s oral evidence at hearing is summarised as follows:
(a)Mr Lacey cannot comment on the transaction between Teammoto Virginia and Mr Linner because he was not involved.
(b)Mr Lacey is a qualified mechanic.
(c)A roadworthy certificate was not required for the sale of the motor vehicle as it was new.
(d)The motor vehicle had no known faults at the time of sale.
(e)The faulty horn was a safety issue and it was replaced under warranty.
(f)Mr Lacey acknowledges that the video of the fuel gauge shown at hearing indicates a continuing fault, and that the issue needs to be re-diagnosed.
(g)The motor vehicle’s fuel system is different from the fuel gauge; there was never any problem with the fuel system.
(h)The clutch issue has arisen as a result of the damage occasioned to the motor vehicle while parked in the car park of Mr Linner’s apartment building where he lives.
(i)The motor vehicle’s brakes were inspected on many occasions and found to be operating normally per the ABS system.
(j)Mr Linner did not service the motor vehicle in accordance with the manufacturer’s manual.

Consideration

Mr Linner maintained a detailed record of his dealings with Teammoto Virginia from the date he purchased the motor vehicle on 15 April 2023 until at least 20 February 2024, which he produced as part of his statements of evidence filed in the Tribunal. Mr Linner attended the hearing in person and answered my questions and questions under cross examination by Mr Lacey.
I consider the evidence of Mr Linner consistent and credible.
Teammoto Virginia filed in the Tribunal statements of evidence for Mr Macklin and Mr Baker. However, neither Mr Macklin nor Mr Baker made themselves available for cross examination at hearing.
I afford no weight to the evidence of Mr Macklin and Mr Baker and prefer the evidence of Mr Linner.
Mr Lacey did not file his own statement of evidence.
Mr Lacey acknowledged in his oral evidence that he could not comment on the transaction between Teammoto Virginia and Mr Linner as he was not involved.
I consider that Mr Lacey endeavoured to assist the Tribunal to the best of his ability, however in the circumstances I afford his oral evidence no weight.
I accept that Teammoto Virginia denied Mr Linner’s request to take the motor vehicle for a test ride, and only started and revved the engine briefly, prior to Mr Linner agreeing to purchase the motor vehicle.
I accept that on 15 April 2023, Teammoto Virginia sold the motor vehicle to Mr Linner as a new motor vehicle.
I accept that on 16 April 2023, the day after Mr Linner purchased and took possession of the motor vehicle, Mr Linner became aware that the motor vehicle’s fuel gauge was altering between full and empty.
I accept that sometime from 16 to 18 April 2023, Mr Linner became aware that the motor vehicle’s horn was not working.
I accept that Mr Linner first reported the motor vehicle’s faulty fuel gauge and horn to Teammoto Virginia on 18 April 2023.
I accept that Teammoto Virginia replaced the motor vehicle’s faulty horn under warranty at no cost to Mr Linner.
I accept that on or around 28 April 2023 Teammoto Virginia ordered parts for the repair of the motor vehicle’s faulty fuel gauge and on or around 2 May 2023 replaced the motor vehicle’s fuel gauge and dash, under warranty and at no cost to Mr Linner.
I accept that Teammoto Virginia never repaired the motor vehicle’s faulty fuel gauge, and that it remains faulty.
I accept that Mr Linner endeavoured on multiple occasions (including 29 April, 3 May, 9 May, 12 May, 15 May, 1 June, 5 June, 15 June, and 20 June 2023) to complain to Teammoto Virginia about his dissatisfaction with the motor vehicle and/or to request a replacement motorbike or a refund, and that Teammoto Virginia refused Mr Linner’s requests.
I accept that Mr Linner endeavoured without success to contact CF MOTO, the motor vehicle’s manufacturer, in or around June 2023 to complain about his dissatisfaction with the motor vehicle.
I do not accept that Mr Baker ever contacted CF MOTO on Mr Linner’s behalf in relation to the problems with the motor vehicle.
I accept that Mr Linner made a formal complaint to Fair Trading about his dissatisfaction with the motor vehicle and that the parties were unable to reach a resolution of the dispute through mediation.
I accept that Mr Linner was distressed about riding the motor vehicle with a faulty fuel gauge as he was never able to ascertain how much fuel was in the tank and how much fuel was required to fill the tank, and as a result, he regularly stopped at fuel stations to top up the tank.
I accept that on a number of occasions in or around early 2024, the motor vehicle was damaged in the car park of the apartment building where Mr Linner lives at West End.
I accept that Mr Linner has not had the motor vehicle serviced since the first 1000km service undertaken by Teammoto Virginia at Mr Linner’s cost on 28 April 2023.
I accept that Mr Linner has not renewed the motor vehicle’s registration or insurance and has not ridden the motor vehicle since May 2024.
I consider there is insufficient evidence before the Tribunal to make a finding about Mr Linner’s claims regarding the motor vehicle’s brake and clutch issues.
Consumer guarantee
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’.
Section 54 subsections (2) and (3) of the Australian Consumer Law provide that:
(2) Goods are of acceptable quality if they are:
(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 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.
Mr Linner extensively researched the type of motorbike he wished to purchase, he saved for four years from his disability pension to fund the purchase, and he ascertained that the particular motorbike was being offered for sale as new by Teammoto Virginia at a price he considered reasonable and that he could afford.
Having been denied by Teammoto Virginia the opportunity to take the motor vehicle for a test ride and having only had the opportunity to listen to the engine being revved briefly, Mr Linner relied on his extensive prior research of that type of motorbike and on Teammoto Virginia’s representations that the motor vehicle was being sold new.
The day after purchasing and taking possession of the motor vehicle, Mr Linner became aware that the motor vehicle’s fuel gauge was faulty, and despite his repeated efforts over an extended period to have Teammoto Virginia address the problem, they failed to do so.
I consider it is likely that the motor vehicle’s fuel gauge was faulty at the time Mr Linner purchased and took possession of the motor vehicle. However, there is no evidence before the Tribunal that either Mr Linner or Teammoto Virginia was aware of the fault at that time.
The test for whether goods are of acceptable quality for the purposes of s 54 of the Australian Consumer Law adopts the ‘reasonable consumer’ benchmark. I consider that a reasonable consumer fully acquainted with the state and condition of the goods (including any hidden defects), in this case being a motorbike with a faulty fuel gauge, would not regard the motorbike as being any of the following:
(a)Fit for all the purposes for which a motorbike is supplied: a motorbike—the main purpose of which is as a means of fuelled motorised transport—that is not equipped with a dependable measure of the volume of fuel in the tank at any given time, thereby resulting in its rider being unable to ascertain whether or when the motorbike requires fuel and the motorbike being susceptible to breakdown due to lack of fuel and/or problems related to lack of or low fuel, is not a motorbike that could reasonably be considered fit for such purpose; or
(b)Free from defects: a motorbike that is not equipped with a dependable measure of the volume of fuel in the tank at any given time is not a motorbike that could reasonably be considered free from defects; or
(c)Safe: a motorbike that is not equipped with a dependable measure of the volume of fuel in the tank at any given time, thereby resulting in its rider being unable to ascertain whether or when the motorbike requires fuel and the motorbike being susceptible to breakdown due to lack of fuel and/or problems related to lack of or low fuel, is not a motorbike that could reasonably be considered safe.
As such, I consider that a reasonable consumer would not regard the motorbike as being of acceptable quality having regard to the following matters particular to this case:
(a)The fact that the motor vehicle was sold as new.
(b)The fact that Mr Linner was denied the opportunity to test drive the motor vehicle prior to purchase.
(c)The potential serious danger to Mr Linner in riding the motor vehicle long distances each day.
(d)The significant financial outlay by Mr Linner in purchasing the motor vehicle.
(e)Mr Linner’s evidence that he would never have purchased the motor vehicle had he been made aware of the faulty fuel gauge.
I find that the motor vehicle was not of acceptable quality for the purposes of s 54 of the Australian Consumer Law and that Teammoto Virginia has failed to comply with the acceptable quality guarantee.

Remedy

The remedy available to the consumer against the supplier for a failure to comply with the acceptable quality guarantee depends in the first instance on whether the failure is a ‘major failure’. That term is defined in s 260 of the Australian Consumer Law to mean:
(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.
The test for whether there is a major failure for the purposes of s 260 of the Australian Consumer Law also adopts the ‘reasonable consumer’ benchmark. For the reasons already given, I find that the motor vehicle’s faulty fuel gauge is such that a reasonable consumer fully acquainted with the nature and extent of the fault, would not have acquired the motor vehicle and the motor vehicle is not of acceptable quality because it is unsafe. Further, on the evidence, Teammoto Virginia failed to rectify the faulty fuel gauge and thereby failed to make the motor vehicle fit for purpose.
To obtain a refund, the consumer is required to reject the goods within the ‘rejection period’. That term is defined in s 262(2) of the Australian Consumer Law to mean:
(2) The rejection period for goods is the period from the time of the supply of the goods to the consumer within which it would be reasonable to expect the relevant failure to comply with a guarantee referred to in section 259(1)(b) to become apparent having regard to:
(a)the type of goods; and
(b)the use to which a consumer is likely to put them; and
(c)the length of time for which it is reasonable for them to be used; and
(d)the amount of use to which it is reasonable for them to be put before such a failure becomes apparent.
The consequences of rejecting goods are set out in s 263 of the Australian Consumer Law:
(1) This section applies if, under section 259, a consumer notifies a supplier of goods that the consumer rejects the goods.
(2)     The consumer must return the goods to the supplier unless:
(a)the goods have already been returned to, or retrieved by, the supplier; or
(b)the goods cannot be returned, removed or transported without significant cost to the consumer because of:
(i)the nature of the failure to comply with the guarantee to which the rejection relates; or
(ii)the size or height, or method of attachment, of the goods.
(3)     If subsection (2)(b) applies, the supplier must, within a reasonable time, collect the goods at the supplier’s expense.
(4)     The supplier must, in accordance with an election made by the consumer:
(a)refund:
(i)any money paid by the consumer for the goods; and
(ii)an amount that is equal to the value of any other consideration provided by the consumer for the goods; or
(b)replace the rejected goods with goods of the same type, and of similar value, if such goods are reasonably available to the supplier.
(5)     The supplier cannot satisfy subsection (4)(a) by permitting the consumer to acquire goods from the supplier.
(6)     If the property in the rejected goods had passed to the consumer before the rejection was notified, the property in those goods revests in the supplier on the notification of the rejection.
Mr Linner became aware of the motor vehicle’s faulty fuel gauge on 16 April 2023, the day after he purchased and took possession of the motor vehicle. Mr Linner first reported the fault to Teammoto Virginia two days later, on 18 April 2023, and first notified Teammoto Virginia of his consumer rights eleven days after that, on 29 April 2023, and specifically requested a replacement motorbike. I consider therefore that Mr Linner acted as swiftly as reasonably possible in the circumstances in bringing the faulty fuel gauge to the attention of Teammoto Virginia and seeking to exercise his consumer rights.
I find that Mr Linner rejected the motor vehicle within the rejection period and that Mr Linner notified Teammoto Virginia of the rejection in accordance with s 263(1) of the Australian Consumer Law.
Mr Linner stopped riding the motor vehicle sometime in May 2024. Around or prior to May 2024, Mr Linner elected not to renew the motor vehicle’s registration and insurance, and, at some stage since, Mr Linner has acquired an electric scooter as his main form of transport. I find that Mr Linner’s decision to take the motor vehicle off the road was due, at least in part, to Teammoto Virginia’s failure to comply with the acceptable quality guarantee. As a result, I find that the motor vehicle cannot be returned, removed or transported without significant cost to Mr Linner.
I will therefore give effect to the requirement in s 263(3) of the Australian Consumer Law by so ordering that Teammoto Virginia must, within a reasonable time, collect the motor vehicle at Teammoto Virginia’s expense, whereupon Mr Linner will be entitled to a refund pursuant to s 263(4) of the Australian Consumer Law.
Mr Linner’s application refers to the motor vehicle’s on-road cost of $6406.00. I note however the Contract to Purchase a New Motor Vehicle dated 15 April 2023 and associated receipts record the purchase price of the motor vehicle as $6865.95. I find therefore that $6865.95 is the amount Mr Linner paid Teammoto Virginia for the purchase of the motor vehicle, and that this is the relevant refund amount.
Damages
The Tribunal is vested with jurisdiction in respect of actions under s 259(4) of the Australian Consumer law, which provides that:
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.
Mr Linner’s application also refers to additional amounts paid by him: $74.13 for QBE comprehensive insurance premium (paid on 15 April 2023, the date of purchase of the motor vehicle); and $249.00 for what he describes as an unauthorised service cost (paid on 28 April 2023, the date Mr Linner took the motor vehicle to Teammoto Virginia to have the faulty fuel gauge repaired). I consider that these costs were required to enable the motor vehicle to get on the road and to maintain the factory warranty. I therefore find that the amounts do not represent loss or damage suffered by Mr Linner because of Teammoto Virginia’s failure to comply with the acceptable quality guarantee.
Mr Linner has not made any other claim for damages in the application or his other material or evidence.
Statutory warranty
There is no dispute by Teammoto Virginia that Mr Linner has the benefit of the statutory warranty contained in Schedule 1 of the Motor Dealers and Chattel Auctioneers Act2014 (Qld) and the CF MOTO factory warranty that, on the face of the service tax invoices, appears to extend the warranty to 15 April 2026. Notwithstanding this, I find that Teammoto Virginia has repeatedly failed to rectify the faulty fuel gauge and thereby failed to make the motor vehicle fit for purpose.
Costs
Section 50C of the Fair Trading Act1989 (Qld) provides that the Tribunal may make a costs order against the respondent in the amount of the prescribed filing fee paid by the applicant. This power is subject to s 102(1) of the Queensland Civil and Administrative Tribunal Act2009 (Qld), which provides that the Tribunal may make a costs order if the interests of justice require it.

The applicant has been successful in the proceeding. I therefore find that it is in the interests of justice to order Teammoto Virginia to pay the filing fee of $135.20.