LNM v Bailey

[2023] QCATA 131

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

LNM v Bailey [2023] QCATA 131

PARTIES:

 LNM

(applicant/appellant)

v

PAUL MARTIN BAILEY

(respondent)

APPLICATION NO/S:

APL369-22

ORIGINATING APPLICATION NO/S:

MVL042-22

MATTER TYPE:

Appeals

DELIVERED ON:

16 October 2023

HEARING DATE:

20 July 2023

HEARD AT:

Brisbane

DECISION OF:

Member Richard Oliver

ORDERS:

The application for leave to appeal is refused.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – where applicant purchased a second vehicle from the  respondent – where applicant obtained and independent report identifying serviceable items – where applicant contends the vehicle unsafe to drive – where applicant refused refund of purchase price – where respondent offered to inspect vehicle and attend to potential defects – where applicant cancelled the registration and terminated the contract – where vehicle returned to the applicant – whether the vehicle was unsafe to drive – whether evidence established vehicle had defects – application of statutory warranty – whether breach of statutory warranties.

Australian Consumer Law.

Fair Trading Act 1989.
Motor Dealers and Chattel Auctioneers Act 2014 Sch 1

Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 66 and 142(3)(a)(i)

Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qld R 404.

Rintoul v State of Queensland & Ors [2018] QCA 20
Robinson Helicopter Company Incorporated v McDermott [2016] HCA 22,
Terera & Anor v Clifford [2017] QCA 181.

Watkins v Eagers MD Pty Ltd t/as Newstead Mazda [2022] QCAT 369

APPEARANCES & REPRESENTATION:
Applicant:	Self-represented
Respondent:	Self-represented

REASONS FOR DECISION

1. The respondent is a second-hand motor vehicle dealer who operates a business at Southport. In March 2021 he advertised a second hand 2007 Hyundai Sonata Auto sedan with low km for $6,990 for sale. There was a reasonably comprehensive description of the vehicle in the advertisement. It had in fact done about 160,000 klm with (allegedly) one owner. There were also photographs of the car, including the interior, in the advertisement.

2. The applicant inspected the vehicle and decided to buy it. She signed a contract for the purchase of the vehicle on 12 March 2021 and collected the vehicle.

3. A couple weeks after collecting the vehicle, she took it to Bridgestone at Pimpama to have the vehicle undergo a mechanical inspection. Unsurprisingly, with a vehicle of that age some minor defects were noted. These included; the front sway bar D bushes noisy, rear swaybar D bushes, oil seeping around the sum area; transmission oil dirty, front lower control arm bushes starting to split and the tyres showing some age. The Bridgestone report, which is essentially the cornerstone of the applicant’s case stated the items required attention to “ensure the safe and reliable operation of the car”.  There is an audio recording of the Bridgestone person discussing the issues with the applicant but he did not say the car was not safe to drive. This is self-evident because the noted issues with the vehicle would not, from a common sense point of…