Mckennariey v A.P. Ford Pty Ltd t/as Metro Ford Brisbane
[2025] QCAT 211
•1 May 2025
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Mckennariey v A.P. Ford Pty Ltd t/as Metro Ford Brisbane & Anor [2025] QCAT 211
PARTIES:
JULIAN MCKENNARIEY
(applicant)
v
A.P. FORD PTY LTD TRADING AS METRO FORD BRISBANE
(first respondent)
FORD MOTOR COMPANY OF AUSTRALIA PTY LTD
(second respondent)
ORIGINATING APPLICATION NO:
MVL125-22
MATTER TYPE:
Motor vehicle matters
HEARING DATE:
22 April 2025 on the papers
DELIVERED ON:
1 May 2025
DECISION OF:
Member Roney KC
ORDERS:
THE APPLICATION 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 failure to comply with consumer guarantee a major failure – whether consumer entitled to refund or repair – whether section 50A Fair Trading Act1989 (Qld) establishes a mechanism by which a consumer can enforce the supplier’s obligation to provide a refund arising under s 263(4)(a) of the Australian Consumer Law
Australian Consumer Law s 18, s 54, s 236, s 259, s 260, s 262, s 263
Competition and Consumer Act 2010 (Cth), Schedule 2
Fair Trading Act1989 (Qld), s 50ABert v Red 5 Ltd [2017] QCA 233
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194
Fox vPercy (2003) 214 CLR 118
Jonathan v Mangera [2016] QCA 86
Lam v Steve Jarvin Motors Pty Ltd [2016] NSWCATAP 186.
Mackellar Mining Equipment Pty Ltd v Thornton [2019] QCA 77
Medtel Pty Ltd v Courtney (2003) 130 FCR 182
Murphy v Stone-Wallwork (Charlton) Ltd [1969] 1 WLR
Musca v Astle Corporation Pty Ltd (1988) 80 ALR 251
Pickering v McArthur [2010] QCA 341
Warren v Coombes (1979) 142 CLR 531
Williams v Toyota Motor Corporation Australia Limited (Initial Trial) [2022] FCA 344APPEARANCES:
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
The applicant is the owner of a 2015 series Ford EcoSport BK Trend (‘the vehicle’), which he purchased on 16 January 2016 as a new vehicle from the first respondent, which is a retail motor vehicle dealer. He paid the sum of $18,488 for the vehicle. Ford Motor Company of Australia Pty Ltd (‘the second respondent’) is the vehicle manufacturer with its head office located in Richmond, Victoria
In his application filed on 21 June 2022, six years after the purchase, the applicant alleged that at various times, although not necessarily at the time of delivery of the vehicle, the vehicle had or developed various defects. The defects which the applicant originally complained about were that the vehicle had the following issues:
(a)Over time the engine would lag on acceleration then suddenly shoot forward;
(b)When he tried to put the car into reverse gear it would stick or not go in at all and he would have to sometimes even repeatedly take it out of reverse;
(c)At a time when the engine had done some 50,000 kilometres on a trip back from a friend’s house with his family the engine began to run rough and eventually went into limp-home-mode. He had the vehicle checked by RACQ and they could find no major problems they could identify. It was towed to Metro Ford Newstead, by RACQ. After examination he was told they found parts of the piston rings in the fuel line;
(d)After the vehicle engine was repaired under warranty, and the vehicle had travelled another 22,000 kilometres, the back door lock locked permanently;
(e)Then for a second time the engine failed and he had recognised that the engine began shaking violently. He took the vehicle to Metro Ford immediately and he was informed that it was an engine 'miss' and that they would have to dismantle the engine to find the root cause and that one of the pistons had failed;
(f)He was told that the initial test would cost $2,500 and that that they may be willing to pay upwards of 50-75% of the cost of repair but there was no guarantee of what percent of payment or even if they would pay. He told them that he believed that under the Australian Consumer Law that a major fault had already occurred if they had to take the engine apart to diagnose it electrical problems causing the motor vehicle to go into limp mode;
(g)He contacted Ford Australia and they made the offer that he should pay Metro Ford what they quoted for the dismantling of the engine. They then closed the case. This meant that any attempt I made to reconcile another agreement was not recorded by them. The Metro Ford team sent him a message saying that the vehicle was safe to drive. He picked up the vehicle and continued to drive it for a time before it completely failed.
The respondents concede that on 21 February 2019, the applicant advised the first respondent of engine concerns with the Vehicle, and the first respondent fitted a replacement engine under warranty and that on 29 November 2021, the applicant again complained of engine concerns to the first respondent. The first respondent inspected the vehicle and advised the applicant that further diagnosis would be required. The applicant refused further diagnosis and continued driving the vehicle until complete engine failure.
The applicant sought various forms of relief under the Australian Consumer Law, which is Schedule 2 to the Competition and Consumer Act 2010 (Cth). As against the first respondent the applicant sought a refund of the purchase price paid for the Vehicle (being $18,500) (the refund claim) and as against the second respondent damages also for $18,500. Neither party addresses how these sums could be ordered cumulatively although the applicant claims to be entitled to $37,000. If the refund claim succeeded there would be no loss and damage and therefore no claim against the second respondent.
The material before me is not comprehensive. There is a statement from the applicant and emails that set out what has happened. There is no statement from anyone for either respondent. They have filed submissions, the applicant has not. There is a Motor Vehicle Assessment Report dated 2 November 2022 (‘the Assessment Report’) crated in consequence of orders by the Tribunal and said to be to “gather facts by inspections and observations about the motor vehicle” and to provide expert evidence to help QCAT to determine whether the respondent has complied with the guarantee of acceptable quality contained in the Australian Consumer Law.
On 4 April 2024, the Tribunal made various directions, including a direction that the parties are to provide any further submissions to the Tribunal as to the assessments of cost to repair the vehicle or any order as to compensation or the requirement for the vehicle to be repaired. In response, the first respondent filed a Repair Quote dated 24 April 2024 the cost to supply and fit a new motor as well as associated parts (Battery, Air Cleaner and Radiator) in the sum of $9,487.50.
The relief sought under the Australian Consumer Law and orders that this Tribunal could make
This Tribunal is vested with jurisdiction in relation to motor vehicle consumer claims arising out of the Australian Consumer Law (‘ACL’) by virtue of section 50A of the Fair-Trading Act 1989 (Qld). Section 50A(1) of the Fair Trading Act 1989 (Qld) (‘FT Act’) provides that a person may apply, as provided under the QCAT Act, to this 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.
As I have said, the primary relief sought was a refund of what the applicant had paid for the vehicle, but there is a secondary claim for damages.
It has been suggested in submissions for the respondents that Section 50A does not expressly establish a mechanism by which a consumer can enforce the supplier’s obligation to provide a refund arising under s 263(4)(a). This issue was considered by the New South Wales Civil and Administrative Tribunal in Lam v Steve Jarvin Motors Pty Ltd [2016] NSWCATAP 186 (‘Lam’). The Appeal Panel, which included the President of the Tribunal, Wright J, stated (at [99]): “A contrary indication in Part 5-4 is that the legislature expressly stated that certain amounts could be recovered “by action” by the consumer in s 259(2)(b)(i), s 259(3)(b) and s 259(4) but did not do so in respect of the obligations to provide a refund or replacement in s 263(4). This might, in other circumstances, be sufficient to establish that the obligations under s 263(4) were not intended to be able to be enforced by action by the consumer. Nonetheless, given the nature, scope and purpose of the ACL NSW, the mischief against which it is directed, the nature of the conduct prescribed and the pre-existing law, the failure expressly to provide that the obligation under s 263(4) could be enforced by action should not be taken to exclude the implication of a right on the part of the consumer to bring proceedings to enforce the supplier’s duty to provide a refund or replacement”.
The orders that the this Tribunal could make are set out in s 50A(2) and they include (a) an order requiring a party to the proceeding to pay a stated amount to a stated person; (b) an order that a stated amount is not due or owing by the applicant to a stated person, or by any party to the proceeding to the applicant; (c) an order requiring a party to the proceeding, other than the applicant, to perform work to rectify a defect in goods or services to which the claim relates; (d) an order requiring a party to the proceeding to return goods that relate to the claim and are in the party’s possession or control to a stated person; and (e) an order combining 2 or more orders mentioned in paragraphs (a), (b), (c) and (d).
The approach in Lam is clearly correct and there is no doubt that that Tribunal has jurisdiction to make an order requiring the supplier to pay to the consumer a stated amount of money, namely the amount of the refund payable under s 263(4)(a).
The guarantee of "acceptable quality" and “major failures” in the ACL
A guarantee of "acceptable quality" of a consumer product is provided for by s 54 of the ACL, which provides as follows:
Section 54 - Guarantee as to acceptable quality
(1) If:
(a)a person supplies, in trade or commerce, goods to a consumer; and
(b)the supply does not occur by way of sale by auction;
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.
(4) If:
(a) goods supplied to a consumer are not of acceptable quality; and
(b) the only reason or reasons why they are not of acceptable quality were specifically drawn to the consumer’s attention before the consumer agreed to the supply;
the goods are taken to be of acceptable quality.
(5) If:
(a)goods are displayed for sale or hire; and
(b)the goods would not be of acceptable quality if they were supplied to a consumer;
the reason or reasons why they are not of acceptable quality are taken, for the purposes of subsection (4), to have been specifically drawn to a consumer’s attention if those reasons were disclosed on a written notice that was displayed with the goods and that was transparent.
(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.
(7) Goods do not fail to be of acceptable quality if:
(a)the consumer acquiring the goods examines them before the consumer agrees to the supply of the goods; and
(b)the examination ought reasonably to have revealed that the goods were not of acceptable quality.
Hence, section 54(1) of the Australian Consumer Law has the effect 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: per the Full Court of the Federal Court in Medtel Pty Ltd v Courtney (2003) 130 FCR 182 at [64] and [70] per Branson J.
More recently in Williams v Toyota Motor Corporation Australia Limited (Initial Trial) [2022] FCA 344 Justice Lee held as follows in relation to the operation of s 54:
[164] Despite the obscure drafting of other sections of the ACL, s 54 is relatively straightforward. The continued use of the conjunction “and” in s 54(2) makes clear that goods must possess all of the qualities listed in s 54(2), to the requisite standard, in order to comply with the guarantee of acceptable quality. Failure to possess any one of those qualities will result in a failure to comply with the guarantee: see Vautin v By Winddown, Inc (formerly Bertram Yachts)(No 4)[2018] FCA 426; (2018) 362 ALR 702 (at 732 [142(d) — (f)] per Derrington J); Australian Competition and Consumer Commission v Jayco Corporation Pty Ltd[2020] FCA 1672 (at [25] per Wheelahan J).
[165] The question of whether the goods are of acceptable quality is to be answered by reference to the quality of the goods at the time of supply: Capic v Ford Motor Company of Australia Pty Ltd[2021] FCA 715; (2021) 154 ACSR 235 (at 377 [606] per Perram J); Jayco (at [27]); Vautin (at 738 [170]–[171], 760 [263]). The applicable standard of “acceptable quality” is to be determined by reference to what the “reasonable consumer” would regard as acceptable, having regard to the matters in s 54(3). The relevant enquiry is necessarily objective: Medtel Pty Ltd v Courtney[2003] FCAFC 151; (2003) 130 FCR 182 (at 199 [43] per Moore J, 205 [64] and 207 [72] per Branson J, with whom Jacobson J agreed at 209 [81]); Capic (at 265 [105]). As Wheelahan J explained in Jayco (at [26]):
The reasonable consumer sits with an array of other hypothetical persons who have been recruited by the law and by reference to whom objective standards are evaluated: see, Healthcare at Home Ltd v The Common Services Agency [2014] UKSC 49; 4 All ER 210 at [1]–[4] (Lord Reed JSC). Such a person has been described as an anthropomorphic conception of justice that is and must be the court itself: see Davis Contractors Ltd v Fareham Urban District Council[1956] AC 696 at 728 (Lord Radcliffe).
[166] In determining whether the “reasonable consumer” would regard the goods as acceptable at the time of supply, one must assume that the construct is “fully acquainted with the state and condition of the goods (including any hidden defects of the goods)”: s 54(2) of the ACL; see also Medtel (at 205–206 [65]–[70]). Thus, in the present case, the “reasonable consumer” is taken be fully acquainted with the nature of the Core Defect, including the ways in which it causes the Relevant Vehicles to malfunction when exposed to the High Speed Driving Pattern, and the class of consequences or symptoms associated with the Core Defect.
[167] Although TMCA accepts that the question of whether the goods are of acceptable quality is to be assessed by reference to the quality of the goods at the time of supply, it submits that the determination of what was objectively reasonable for the consumer to expect is made taking into account all relevant information available at the time of trial. Relying on the reasoning in Medtel (at 200 [45], 203 [57], 206 [70], 209 [81]), TMCA submits that “the individual experience of each vehicle owner, affects the assessment”.
[168] The flaw in this proposition is that the state and condition of the vehicles at the time of supply is not determined by anything occurring after the time of supply. The fact that a defective product has continued to perform following the time of supply through to the time of trial does not defeat a finding that the product was defective at the time it was supplied. In Medtel, as Branson J (at 202 [54], with whom Jacobson J agreed at 209 [81]) explained, “the principal issue to be determined … is whether a product which, at the time of trial, can be demonstrated to have performed, and to be continuing to perform, satisfactorily can nonetheless be found to be “not of merchantable quality” within the meaning of s 74D(1) of the Trade Practices Act 1974 (Cth) ”. Her Honour found (at 199 [41]) that the goods in issue — pacemakers — were not of merchantable quality at the time of supply, despite the fact that the applicant’s pacemaker had not failed by the time of trial: see generally at 197–202 [36]–[52].
In relation to the supply of goods, such as a vehicle, the remedies available to a consumer where goods are not of an acceptable quality under the ACL include:
(a) an action to recover from the supplier all reasonable costs incurred by the consumer in having the failure remedied, in circumstances where the failure is not a major failure and the supplier has not remedied it within a reasonable time (s 259(2)(b)(i));
(b) an action to recover from the supplier compensation for any reduction in the value of the goods below the price paid by the consumer, in circumstances where the failure is a major failure and the consumer has not rejected the goods (s 259(3)(b)); and
(c) an action to recover from the supplier damages for loss or damage suffered by the consumer where such loss or damage was reasonably foreseeable in respect of the failure (s 259(4)).
In respect of “major failures”, Section 260 of the ACL provides as follows (emphasis added):
When a failure to comply with a guarantee is a major failure
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.
Rejection is governed by s 262 and 263 of the ACL. They provide as follows:
262 When consumers are not entitled to reject goods
(1) A consumer is not entitled, under section 259, to notify a supplier of goods that the consumer rejects the goods if:
(a)the rejection period for the goods has ended; or
(b)the goods have been lost, destroyed or disposed of by the consumer; or
(c)the goods were damaged after being delivered to the consumer for reasons not related to their state or condition at the time of supply; or
(d)the goods have been attached to, or incorporated in, any real or personal property and they cannot be detached or isolated without damaging them.
(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.
263 Consequences of rejecting goods
(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.
Section 54 should be read bearing in mind the terms of section 260 and, in particular, that a "major failure" regarding acceptable quality will be made out "if the goods would not have been acquired by reasonable consumer fully acquainted with the nature and extent of the failure".
As is evident from what I have said above, section 54(2) of the ACL defines "acceptable quality" by reference to the "reasonable consumer" test and five specified criteria set out in sub-sections 54(2)(a)-(e). These criteria are cumulative, as evidenced by the use of the conjunction "and". Thus, if for example, particular goods are fit for purpose, safe, free from defects and durable, but not acceptable in appearance and finish, the goods will still fail to be of acceptable quality. Section 54(3) of the ACL identifies the matters relevant for the purposes of sub-section (2).
I accept that an accumulation of individually minor defects can be aggregated to amount to a major failure giving rise to a right to reject the goods and applied a statement in Cary Boyd v Agrison Pty Ltd [2014] VMC 23 at [51], that: [D]espite the use of ‘a’, to suggest the singular, ‘a major failure’ might be constituted by a series of specific and individual defects which taken as a whole constitute one major failure.
In summary then, the test of whether there is a major failure for the purposes of section 260 and the test for whether goods are of acceptable quality for the purposes of section 54 both adopt a ‘reasonable consumer’ test. If the failure can be remedied and is not a major failure, the consumer is limited to requiring the supplier to remedy the failure within a reasonable time; or if the supplier cannot remedy the failure within a reasonable time, having the failure remedied by someone other than the supplier and seeking compensation from the supplier, or rejecting the goods.
It is provided in the table to section 50A of the FT Act, that one may bring an action for damages against a manufacturer such as the second respondent pursuant to section 271(1) of the ACL. Section 272 of the ACL outlines the types of damages that may be recovered by action against the manufacturer if the acceptable quality guarantee has not been complied with, including: (a) any reduction in the value of the goods; and (b) any reasonably foreseeable loss or damage incurred as a result of the failure to comply with the acceptable quality guarantee
The Assessment Report and findings on the issue of the acceptable quality contained in the Australian Consumer Law
The Assessment Report, written in November 2022 by Mr Leonard Hutchinson which is not contradicted by any other evidence, provides;
First thing I checked was the oil and water capacity. there appeared to not be any oil registering on the dipstick whatsoever indicating either the engine using or burning oil.
I then removed each individual coil wire in order to confirm a misfire on cylinder 1. One cylinder was definitely not firing at all indicating the engine is only running on 2 cylinders out of 3.
I then drove the vehicle in the limited capacity I could due to the misfire. The complaint of the engine shudder is due to the engine not running on all cylinders therefore when the air conditioning is operating it is putting the engine under extra load highlighting the issue.
I could identify the Applicant’s complaint of a "miss". I could not replicate the clutch to stick, slip in reverse or have an irregular throttle response due to the inability to drive the vehicle whilst not running on all cylinders. The boot latch is still inoperable
On the issue acceptable quality, the Assessment Report states: -
(a) 3.3.1: " ... without stripping and inspecting the engine it is impossible to determine the likely cause of the failure. It is noted the first engine failed in December 2018 at 30,198kms. The second time the Applicant complained of engine failure was on 20 July at 85,315km's. These engines do have an inherent issue which causes catastrophic engine failure which is caused by the belt/tensioner on the oil pump to fail. This is not the case this time as the engine is still running”;
(b) 3.3.2: As to whether " the defect (was) likely to have been present at the date of purchase of the vehicle (e g a latent defect or a part lacking durability): The defect was not present at time of purchase as the vehicle travelled over 30,000kms prior to engine failure. The boot latch was also working at time of purchase but was reported to Ford in December 2018.
(c) 4: "it is noted that the Applicant has driven the vehicle a further 7,500kms since the Respondent diagnosed Piston 1 low compression (current odometer 92874kms). It is hard to determine what, if any, further damage this may have caused the engine as I noted above there was absolutely no oil registering on the dipstick. Without also knowing what caused Piston 1 to (have failed).
The opinions expressed in the Assessment Report are reasonable and the factual basis for them set out. The conclusions reached in that report are not so inherently implausible or unreasonable such that despite there being no contrary evidence or conclusions, I should reject them. I accept the evidence and opinions expressed in that report. He says the inherent issue with these vehicles which causes catastrophic engine failure which is caused by the belt/tensioner on the oil pump to fail.
As I have set out earlier, section 54(1) of the Australian Consumer Law has the effect that where a person supplies goods in trade or commerce, the goods are guaranteed to be of ‘acceptable quality’. The following principles apply;
1. The time at which goods are to be of acceptable quality is the time at which the goods are supplied to the consumer.
2. Adopting the approach discussed in Williams v Toyota Motor Corporation Australia Limited, goods must possess all of the qualities listed in s 54(2), to the requisite standard, in order to comply with the guarantee of acceptable quality.
3. Failure to possess any one of those qualities will result in a failure to comply with the guarantee.
4. The question of whether the goods are of acceptable quality is to be answered by reference to the quality of the goods at the time of supply.
5. In determining whether the “reasonable consumer” would regard the goods as acceptable at the time of supply, one must assume that the construct is “fully acquainted with the state and condition of the goods (including any hidden defects of the goods”: s 54(2) of the ACL.Thus, the “reasonable consumer” is taken be fully acquainted with the nature of any defect.
6. While the state and condition of the vehicle at the time of supply is not determined by anything occurring after the time of supply, the fact that a defective product has continued to perform following the time of supply through to the time of trial does not defeat a finding that the product was defective at the time it was supplied.
7. The issue is whether a product which, at the time of trial, can be demonstrated to have performed, and to be continuing to perform, satisfactorily can nonetheless be found to be “not of acceptable quality”.
The vehicle’s log books are in evidence. The Assessment Report does not refer to them. They show some servicing occurred at the dates or odometer readings for which they were contemplated. They show a missed service at 22,500 and that the next service due at 30,000 was not done before the first engine failure and only done at 43,000 kilometres. That is mentioned only by way of completeness and it not to constitute a finding as to cause of any failure.
Even if the applicant’s vehicle had not failed by the time of these reasons, it might still have been held to have been not of acceptable quality. But in the present case no hidden defect or any unsatisfactory latent of apparent condition has been identified. The fact that a vehicle’s engine only failed in December 2018 at 30,198 kilometres of use and the second time the applicant complained of engine failure was on 20 July at 85,315 kilometres of use, and the door latch problem did not occur for some years after purchase, do not, in my view demonstrate that the vehicle was not of acceptable quality at the time it was purchased.
Had I upheld the claim, since the first respondent had contended that on 24 April 2024 the cost to supply and fit a new motor as well as associated parts (Battery, Air Cleaner and Radiator) was the sum of $9,487.50 and there was no contrary evidence, I would have ordered that this sum, with an allowance for increased costs since then. was an appropriate measure of loss.
Conclusion
The application must fail and I therefore dismiss the application.
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