Moldovan v Aria Motors Pty Ltd - [2021] QCAT 173

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Moldovan v Aria Motors Pty Ltd [2021] QCAT 173

PARTIES: ANDREIA MOLDOVAN

(applicant)

v

ARIA MOTORS PTY LTD

(respondent)

APPLICATION NO/S:

MVL160-20

MATTER TYPE:

Motor vehicle matters

DELIVERED ON:

11 May 2021

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Cranwell

ORDERS:
1. Andreia Moldovan is required to return the motor vehicle the subject of these proceedings to Aria Motors Pty Ltd within 7 days of the date of these orders.

2. Aria Motors Pty Ltd is required to pay to Andreia Moldovan the amount of $23,786.05 within 28 days of the date of these orders.

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 guarantees a major failure – whether goods rejected during the rejection period – whether consumer entitled to refund – whether consumer entitled to damages

Competition and Consumer Act 2010 (Cth), Schedule 2 – Australian Consumer Law s 54, s 259, s 260, s 262, s 263

Fair Trading Act 1989 (Qld), s 50A

Haisman v Drive (Aust) Pty Ltd [2020] QCAT 44

Medtel Pty Ltd v Courtney (2003) 130 FCR 182

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

Self-represented

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

On 14 July 2020, Ms Moldovan (‘the applicant’) filed an Application – Motor Vehicle Dispute with the Tribunal. The respondent is Aria Motors Pty Ltd (‘the respondent’).
The applicant is the owner of a 2010 BMW X5 wagon (‘the motor vehicle’).
The applicant purchased the motor vehicle from the respondent on 13 June 2020 for $23,500.
The applicant seeks 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.

Guarantee of acceptable quality

Section 54(1) of the Australian Consumer Law provides that, where a person supplies goods in trade or commerce (other than by way of auction), 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…

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: [2021] QCAT 173
Decision Date

CaseChat Overview and Summary

This matter involved an application by Andreia Moldovan for relief under the Australian Consumer Law in respect of a 2010 BMW X5 wagon that she had purchased from Aria Motors Pty Ltd. The application was heard and determined on the papers by Member Cranwell. The applicant alleged that the motor vehicle was not of acceptable quality and sought a refund and damages. The respondent did not file any evidence.

The principal legal issue was whether the motor vehicle was of acceptable quality, and if not, whether the failure was a major failure. The second legal issue was whether the applicant had rejected the motor vehicle within the rejection period. The third issue was whether the applicant was entitled to damages.

The Tribunal found that the motor vehicle was not of acceptable quality, as the cost of repairs to fix the faults was almost half the purchase price. The Tribunal also found that the failure was a major failure, as the defects were present at the time of purchase. The Tribunal found that the applicant had rejected the motor vehicle within the rejection period and that she was entitled to damages for the inspection costs. The Tribunal did not award the petrol and market value claims. The Tribunal ordered that the applicant return the motor vehicle to the respondent and that the respondent pay the applicant the amount of $23,786.05 within 28 days of the date of these orders.

Orders