Mackness v Jaguar Land Rover Australia Pty Ltd

[2020] QCAT 34

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Mackness v Jaguar Land Rover Australia Pty Ltd [2020] QCAT 34

PARTIES:

SACHA ROCHELLE MACKNESS

(applicant)

v

JAGUAR LAND ROVER AUSTRALIA PTY LTD

(respondent)

APPLICATION NO/S:

MVL022-19

MATTER TYPE:

Motor vehicle matters

DELIVERED ON:

3 February 2020

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Cranwell

ORDERS:

The Application – Motor Vehicle Dispute filed on 1 October 2019 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 – where motor vehicle sold by private sale – whether ‘in trade or commerce’

Competition and Consumer Act 2010 (Cth), Schedule 2 – Australian Consumer Law, s 54, s 56, s 58, s 59, s 271
Fair Trading Act 1989 (Qld), s 50A

Motor Dealers and Chattel Auctioneers Act 2014 (Qld),
Schedule 1 – s 14

Queensland Civil and Administrative Tribunal Act 2009 (Qld), Schedule 3

Walker v Sell [2016] FCA 1259

REPRESENTATION:
Applicant:	Self-represented
Respondent:	Self-represented
APPEARANCES:	This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

1. On 1 October 2019, Ms Mackness filed a Form 59: Application – Motor Vehicle Dispute with the Tribunal. She sought relief against the manufacturer of her vehicle, Jaguar Land Rover Australia Pty Ltd, for alleged breaches of various consumer guarantees contained in the Australian Consumer Law.

2. On 23 October 2019, I directed Ms Mackness to file full details of who the motor vehicle was purchased from, including whether the seller was a motor dealer or a private individual.

3. On 29 October 2019, Ms Mackness filed a statement indicating that she bought a second hand Land Rover Discovery Sport TD4, HSE Luxury vehicle through a private sale from one Arpad Schubert. 

4. On 27 November 2019, I directed that the parties file submissions as to whether the Tribunal has jurisdiction in relation the private sale of a motor vehicle.

5. Section 50A(1) of the Fair Trading Act 1984 (Qld) provides:

   A person may apply, as provided under the QCAT Act, to the tribunal for an order mentioned in subsection (2) for an action—

   (a)     under a provision of the Australian Consumer Law (Queensland) listed in the table to this section; and

   (b)     relating to a motor vehicle; and

   (c)     seeking an amount or value of other relief of not more than $100,000.

6. Under s 271 of the Australian Consumer Law, a consumer can recover damages against a manufacturer of goods where the guarantees contained in s 54, s 56, s 58 or s 59(1) apply and are not complied with. The guarantees provided for in those sections only apply where the goods or services are supplied to a consumer ‘in trade or commerce’.

7. In Walker v Sell,[1] Bromwich J held that the private sale of a motor vehicle through a classified advertisement on Gumtree was not in trade or commerce because it was not done in the course of a business activity or arising in a business context.

   [1][2016] FCA 1259, [76].

8. It follows that the Tribunal does not have jurisdiction to hear the application under

   
   

   s 50A of the Fair Trading Act, nor for that matter under s 14 of Schedule 1 to the Motor Dealers and Chattel Auctioneers Act 2014 (Qld).

9. The application is therefore dismissed.