Macey v White/King Brisbane Pty Ltd t/as Byrne Ford
[2023] QCAT 391
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Macey v White/King Brisbane Pty Ltd t/as Byrne Ford & Anor [2023] QCAT 391
PARTIES: SYE AIDEN MACEY (applicant)
V
WHITE/KING BRISANE PTY LTD TRADING AS BYRNE FORD
(first respondent)
FORD MOTOR COMPANY OF AUSTRALIA PTY LTD (second respondent)
APPLICATION NO/S:
MVL072-22
MATTER TYPE:
Motor vehicle matters
DELIVERED ON:
28 August 2023
HEARING DATE:
24 August 2023
HEARD AT:
Brisbane
DECISION OF:
Member Cranwell
ORDERS:
1. The application filed on 7 April 2022 is dismissed.
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 goods rejected during the rejection period – whether false, misleading or deceptive representations made
Australian Consumer Law, s 18, s 29, s 33, s 54, s 59, s 236, s 260, s 262
Competition and Consumer Act 2010 (Cth), Schedule 2
Fair Trading Act 1989 (Qld), s 50A
Medtel Pty Ltd v Courtney (2003) 130 FCR 182
Nesbit v Porter [2000] 2 NZLR 465
APPEARANCES & REPRESENTATION:
Applicants:
Self-represented
First Respondent:
J Levinson
Second Respondent:
J Newbound
REASONS FOR DECISION
On 7 April 2022, Sye Macey (‘the applicant’) filed an Application – Motor Vehicle Dispute with the Tribunal. The named respondents are White/King Brisbane Pty Ltd trading as Byrne Ford (‘the first respondent) and Ford Motor Company of Australia Pty Ltd (‘the second respondent’).
The applicant is the owner of a 2019 Ford Ranger (‘the motor vehicle’). The applicant purchased the motor vehicle from the first respondent on 4 February 2019 for $45,900.
The applicants seek relief under the Australian Consumer Law, which is Schedule 2 to the Competition and Consumer Act 2010 (Cth). The relief sought by the applicant is a refund plus damages.
Section 50A of the Fair Trading Act 1989 (Qld) vests the Tribunal with jurisdiction in relation to motor vehicles in respect of certain actions under the Australian Consumer Law.
Consumer guarantees
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’.
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.
Sections 54(2) and (3) of the Australian Consumer Law define acceptable quality as follows:
(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.
…
(6) Goods do not fail to be of acceptable quality if:
(a) the consumer to whom they are supplied causes them to become of unacceptable quality, or fails to take reasonable steps to prevent them from becoming of unacceptable quality; and
(b) they are damaged by abnormal use.
Section 59(1) of the Australian Consumer Law provides that, where a person supplies goods in trade or commerce, there is a guarantee that ‘the manufacturer will comply with any express warranty given or made by the manufacturer in relation to the goods’.
Section 59(2) contains a similar guarantee in relation to express warranties by the supplier.
Evidence
The applicant filed a statement attached to the application and an affidavit dated 20 December 2022. In summary:
(a)The applicant viewed advertising materials relating to the Ford Ranger, which showed the vehicles being driven in a variety of off-road terrain and conditions, including on sand.
(b)He subsequently purchased the motor vehicle on 4 February 2019.
(c)Between 20 and 21 June 2019, the applicant went on a camping trip at the Cooloola Recreation Area. Access to the camping area required driving the motor vehicle on sand roads. He did not experience any issues with the motor vehicle.
(d)On 3 December 2019, the applicant had the motor vehicle serviced by A P Ford Pty Ltd trading as Metro Ford (‘Metro Ford’). The service record includes the entry: ‘Inspected air intake system’.
(e)Between 4 and 5 January 2019, the applicant went on a camping trip to the Cooloola Recreation Area. Again, access to the camping area required driving the motor vehicle on sand roads. He did not experience any issues with the motor vehicle.
(f)The applicant understood the sand roads to be state roads as they were posted with speed limit signs and his access permit stated ‘All Queensland road rules apply’.
(g)On 24 April 2020, the applicant noted that the check engine light on the motor vehicle was illuminated. He took the motor vehicle directly to Metro Ford. Eventually, in June 2020, the applicant was advised that a new engine was required.
(h)On 23 June 2020, the second respondent declined to repair the motor vehicle under warranty, on the basis that the repairs were not due to any manufacturing defect but due to ‘external influence’.
(i)The applicant engaged in further correspondence with the second respondent. On 18 December 2020, the second respondent wrote to the applicant in the following terms:
Metro Ford found the air filter material to be compromised leading into the air intake system, the turbo blades had been sand blasted and there was metal in the throttle body and sand which has caused damage to engine bores. Metro Ford subsequently diagnosed the vehicle as requiring a replacement engine.
The failure of the air filter was due to excessive quantities of sand being ingested into the air intake system and this then acted as an abrasive on the air filter media. This was evidence by large sand deposits being present in the air box and also in the filter itself. This is evidence of the vehicle being used in arduous off-road and sandy areas without any mitigation of the risk for this occurrence, such as fitment of an external air intake snorkel or similar preventative measures being taken. It is also likely that post driving in this environment that the air filter itself was not inspected or cleaned and this excess material inside the air box for an extended amount of time would also have contributed to the concern.
(j)The applicant had the motor vehicle inspected by R Memmott & Co Pty Ltd. On 6 April 2021, Memmotts provided a tax invoice stating:
Failure – caused by engine air intake system leaking and ingesting sand into the intake past the air filter causing turbo failure and engine wear.
The air filter inlet is situated under the r/h front wheel rack – sand would come past the thin plastic wheel rack over when spinning in loose soft sand, would suggest air snorkel to be fitted but unable to see why sand passed the air filter assembly.
(k)On 28 October 2021, the applicant, through his solicitor, requested a refund from the first respondent.
The motor vehicle was inspected by an Assessor appointed by the Tribunal on 29 November 2022. The Assessor stated:
[V]ehicle was disassembled inspected internals of engine to find foreign particles of suspected sand and metal in engine that would require engine to be overhauled or replaced. Checked vehicles (sic) intake system to find air filter material failed causing ingress of foreign particles into engine. Air filter was inspected further to find paper element had failed prematurely causing foreign particles to enter air intake of the engine and damage to turbo sending metal through the engine. Unable to determine if filter was installed or damage (sic) via poor servicing due to air intake already disassembled by previous mechanics.
The Assessor went on to state that the likely cause of the defect was:
The air filter failing prematurely. Due to manufacture defect in air filter material or poor service of air filter.
The first respondent filed a written submission from Justin Newbound dated 20 February 2023. Mr Newbound advised at the hearing that he was an automotive engineer of 27 years experience. The submission attached an extract of page 197 of the motor vehicle’s manual:
After Off-Road Driving
It is important to complete a full vehicle inspection after off-road driving. Some items to check include:
…
· Check that the air filter is clean and dry.
The submission attached an access map for the Cooloola Recreation Area. This stated:
High clearance 4WD vehicles with low range capacity are essential
Cooloola’s sand tracks and beaches are soft and rough and are unsuitable for all-wheel-drive vehicles and motorhomes. Off-road camper trailers are recommended.
Mr Newbound also stated:
Ford notes that the resulting engine failure was not instantaneous and occurred some 3 months after [the applicant] says they last used the vehicle off-road. As sand was found in the air box and air filter on a post failure inspection, this indicates that the air filter itself was not inspected or cleaned after use on sand in off road 4WD conditions. The resulting damage caused by the sand could’ve been avoid had the appropriate inspections been carried out i.e., checking air filter is clean and dry, after being use off-road.
Neither the applicant nor Mr Newbound were required for cross-examination at the hearing.
Consideration
In my view, the applicant’s use of the motor vehicle on the sand roads could reasonably be considered to be off-road use. The Macquarie Dictionary defines ‘off-road’ to mean ‘designed for use on ungraded ground, as in natural bushland’. In contrast, ‘on-road’ is defined to mean ‘suitable for use on prepared roads’. The requirement for 4WD vehicles with high clearance at the Cooloola Recreation Area supports the view that the sand roads at that location should be regarded as ‘off-road’ in accordance with the common usage of the term.
The cause of the motor vehicle’s engine failure is not in dispute. Sand particles were ingested into the engine, requiring overhaul or replacement of the engine. Rather, the issue in dispute is whether the ingestion of sand particles was caused by a manufacturing defect or lack of durability affecting the air filter, or by the applicant’s failure to check that the air filter was ‘clean and dry’.
The Assessor was unable to express a definitive conclusion on this issue. He stated that the failure of the air filter was due either to ‘manufacture defect’ or ‘poor service of air filter’. The Assessor noted that the air filter had been disassembled by previous mechanics, and he was unable to comment on its installation. Similarly, Memmotts were ‘unable to see why sand passed the air filter assembly’.
In the absence of any definitive evidence on the issue, I prefer the second respondent’s evidence. Namely:
(a)the motor vehicle ingested sand into the air filter at the Cooloola Area Reserve;
(b)the air filter was not checked by the applicant; and
(c)the continued presence of sand in the air filter acted as an abrasive over a period of months, leading to the failure of the air filter.
In my view, it is persuasive that the engine issues did not manifest themselves at the time of, or immediately after, the applicant’s camping trips as might be expected if the air filter was affected by a manufacturing defect or incorrect installation. The fact that the issues first manifested themselves over three months after the motor vehicle was last driven on sand roads is consistent with the air filter having been abraded by the sand over a period of months.
This could have been avoided if the applicant had checked the air filter was clean and dry shortly after driving on the sand road, and does not support a conclusion that the air filter was lacking in durability.
The applicant has submitted that it was unreasonable for him to have read the instructions on page 197 of the manual outlined above. Further, he also submits that it was unreasonable to expect a consumer to know how to properly remove the air filter, and clean and/or dry the filter.
I do not accept the applicant’s submissions. All vehicles require periodic inspection, such as checking tyre pressures and oil levels. It is not unreasonable to expect that off-road usage of a vehicle may require additional inspections, nor is it unreasonable to expect that a consumer will refer to the manual for details of such inspections.
Similarly, I do not consider it unreasonable for the applicant to have informed himself as to how to inspect and clean and/or dry the air filter, or to have obtained professional assistance in this regard. To the extent that there were any issues with the air filter arising from the service on 3 December 2019, I note that the service was conducted by Metro Ford who is not a party to these proceedings.
In the circumstances, I find that s 54(6) of the Australian Consumer Law applies to exclude any liability of the respondents in respect of the guarantee of acceptable quality. Namely, I find that the applicant failed to take reasonable steps to prevent the motor vehicle from becoming of unacceptable quality.
For the same reasons, I find there has been no breach of the guarantee in s 59(1) of the Australian Consumer Law. The express warranty does not apply in circumstances where there is a ‘failure … to properly maintain … the Vehicle in accordance with the recommendation and instructions … specified for the Vehicle by Ford’.
Alternative findings
In the event that I am incorrect in this conclusion, I will proceed to consider whether the applicant would be entitled to a refund in the event that there was a failure of the guarantee of acceptable quality, and that the failure was a ‘major failure’ within the meaning of s 260 of the Australian Consumer Law.
Section 262(1)(a) of the Australian Consumer Law provides that a consumer is not entitled to reject the goods if ‘the rejection period for the goods has ended’. The term ‘rejection period’ 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.
In Nesbit v Porter [2000] 2 NZLR 465 at [39], the New Zealand Court of Appeal held that the rejection period was one that:
suffices to enable the consumer to become fully acquainted with the nature of the defect, which, where the cause of breakage or malfunction is not apparent, the consumer can be expected to do by taking the goods to someone, usually or preferably the supplier, for inspection. In this context, therefore, a defect is not ‘apparent’ until its cause has been identified and the buyer knows what has to be done to fix it, and that that will cost; in other words, until the buyer is in a position to determine whether the defect is substantial.
The evidence before me is that the engine failure became apparent in June 2020. The applicant then engaged in correspondence with the second respondent, and received a response on 18 December 2020. He then arranged for an independent mechanical inspection, which took place on 6 April 2021. The applicant then waited a further six months, until 28 October 2021, to seek a refund from the first respondent.
I am not satisfied that the applicant rejected the motor vehicle within the rejection period. In my view, the rejection period ended shortly after the applicant obtained an independent mechanical inspection of the motor vehicle. The investigations by the applicant were by that stage completed, and the purported defect must be considered to have been apparent. It was not then open to the applicant to delay a further six months before rejecting the motor vehicle.
Misleading or deceptive conduct
Section 236 of the Australian Consumer Law provides:
(1) If:
(a) a person (the claimant ) suffers loss or damage because of the conduct of another person; and
(b) the conduct contravened a provision of Chapter 2 or 3;
the claimant may recover the amount of the loss or damage by action against that other person, or against any person involved in the contravention.
As noted above, the applicant gave evidence that he had viewed advertising materials relating to the Ford Ranger, which showed the vehicles being driven in a variety of off-road terrain and conditions, including on sand. In particular, he stated:
The Applicant recalls seeing advertising materials produced by Ford in which Ford Rangers are used in various off-road settings without any snorkel or modification to the air intake system.
The Vehicle is a 4x4 utility vehicle and ordinary consumers purchasing such type of vehicle would reasonable expect the Vehicle to be suitable to be used off road.
This submissions has a number of difficulties. The first is that the applicant has not provided any of the advertising materials in which he claimed he saw a Ford Ranger being driven on sand. Even assuming that such advertising materials exist, I am unable to conclude that a Ford Ranger vehicle is not fit for driving on sand. The effect of my findings above is merely that the vehicle’s air filter needs to be checked after driving on sand in accordance with the manual.
In these circumstances, I am not satisfied that the respondents have made false, misleading or deceptive representations for the purposes of s 18(1), 29(1)(a) or 33 of the Australian Consumer Law, and accordingly the applicant is not entitled to damages under s 236.
Orders
The application is dismissed.
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