Mohammed v Old Mac T Pty Ltd - [2022] QCAT 177

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Mohammed v Old Mac T Pty Ltd [2022] QCAT 177

PARTIES:

SALMAN MOHAMMED

(applicant)

V

OLD MAC T PTY LTD

(respondent)

APPLICATION NO/S:

MCDO0566-20

MATTER TYPE:

Other minor civil dispute matters

DELIVERED ON:

17 May 2022

HEARD AT:

Brisbane

DECISION OF:

Adjudicator Lember

ORDERS:

The application for a minor civil dispute filed 19 May 2020 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 or minor failure – whether consumer entitled to damages for misdescription

Competition and Consumer Act 2010 (Cth) s54(1), s54(2), s54(3), s260, s267(4), schedule 2

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s11, s13, s102, schedule 3

Australian Woollen Mills Pty Ltd v Commonwealth (1955) 93 CLR 546

Cox v J & M Phelan trading as Carrara Carmart [2020] QCAT 190

Medtel Pty Ltd v Courtney (2003) 130 FCR 182

APPEARANCES & REPRESENTATION:

This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

REASONS FOR DECISION

Factual background to the dispute

Mr Mohammed says that on 5 October 2019 he spoke to Mr Shanab, a salesperson in the employ of the respondent dealership, and reached an agreement to purchase a new Toyota Corolla Hybrid vehicle (“the vehicle”) for a price of $33,000, on a deposit of $1,000 (which Mr Mohammed paid on 5 October 2019) and to be delivered by late March 2020.
Between 14 November 2019 and 20 January 2020 text messages exchanged between Mr Shanab and Mr Mohammed evidence variations to the agreement whereby:
(a)the delivery date was reconfirmed for late March 2020;
(b)the price increased by $846.19 for after-market extras; and
(c)the respondent was to install floor mats, a bonnet protector, headlamp covers, boot liner and window tinting.
Mr Shanab confirmed in a text message sent on 7 February 2020 that the vehicle could be collected by a courier at 8am on 12 February 2020.
On 10 February 2020 Mr Mohamed paid the balance purchase price of $32,846.19.
On 11 February 2020 Mr Shanab sent a contract to Mr Mohammed for the purchase of the vehicle. The contract was dated 5 October 2019, had a purchase price of $33,846.19 (including additional accessories, on-road costs and GST) and was signed by Mr Shanab, but not the dealer principal of the respondent, even though there were clearly marked spaces for the dealer principal to sign. Mr Mohammed counter-signed the contract and returned it to Mr Shanab the same day.
The contact terms included clause 2 which read:
The total price of the goods shown in this contract is the price of the goods based on existing costs and circumstances. If there is any change in these costs or circumstances before delivery of the goods to the Customer,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] QCAT 177
Decision Date

CaseChat Overview and Summary

Salman Mohammed filed an application for a minor civil dispute against Old Mac T Pty Ltd, seeking damages for a motor vehicle that he purchased. The parties had agreed on the purchase of a new Toyota Corolla Hybrid vehicle for a price of $33,000. However, after the agreement, the respondent informed the applicant that the price had increased by $2,000, which the applicant paid under protest. The applicant sought an order that the respondent deliver the vehicle to him and transfer registration into his name, in addition to paying him for the overpaid purchase price, transport costs, courier fees, legal costs, wasted motor vehicle insurance fees, and the filing fee.

The legal issues in this case were whether the motor vehicle was of acceptable quality, whether the failure to comply with consumer guarantee was a major or minor failure, and whether the consumer was entitled to damages for misdescription. The tribunal had to decide whether the respondent was liable for the applicant's travel expenses and courier fees.

The tribunal found that the sales representative, Mr Shanab, had ostensible authority to deal with the applicant to negotiate and enter into an agreement for the sale of the vehicle. The initial terms of their agreement were reached on 5 October 2019, but the terms were varied in several respects between 5 October 2019 and 11 February 2020, including as to price and add-ons to the vehicle. On 11 February 2020, the parties concluded and formalised their agreement on the terms of the contract that was signed by the applicant and by Mr Shanab. On 11 February 2020 the respondent exercised its rights under clause 2 of the contract to advise of a price increase, which the respondent later accepted, under protest, however, the dispute between the parties was subsequently resolved on the basis that the applicant received a full refund of the price he had paid the respondent. The tribunal found that the remaining claims for travel expenses and courier fees were not payable. The tribunal dismissed the application in its entirety.

The tribunal's decision was based on the evidence before the tribunal in these proceedings and the applicable laws, including the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the Australian Consumer Law, and contract law. The tribunal found that the applicant was not entitled to his travel expenses and courier fees as they were not related to the applicant's dealings with the respondent. The tribunal also found that the respondent was not responsible for the applicant's cancelled booking as the dispute over the price increase prevented delivery of the vehicle. The tribunal declined to award legal fees and the filing fee as the applicant's claim had not been wholly or largely successful.

Orders