Parsons v Trivett Automotive Retail Pty Ltd t/as Keystar Mitsubishi Morayfield
[2020] QCAT 420
•30 October 2020
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Parsons v Trivett Automotive Retail Pty Ltd t/as Keystar Mitsubishi Morayfield [2020] QCAT 420
PARTIES: CATHERINE ELIZABETH PARSONS (applicant)
v
TRIVETT AUTOMOTIVE RETAIL PTY LTD TRADING AS KEYSTAR MITSUBISHI MORAYFIELD (respondent)
APPLICATION NO/S:
MVL060-19
MATTER TYPE:
Motor vehicle matters
DELIVERED ON:
30 October 2020
HEARING DATE:
On the papers
HEARD AT:
Brisbane
DECISION OF:
Member Cranwell
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
Australian Consumer Law, s 54
Competition and Consumer Act 2010 (Cth), Schedule 2
Fair Trading Act 1989 (Qld), s 50AMedtel Pty Ltd v Courtney (2003) 130 FCR 182
APPEARANCES & REPRESENTATION:
Applicant:
Self-represented
Respondent:
Self-represented
REASONS FOR DECISION
On 5 March 2020, Ms Parsons (the applicant) filed an Application – Motor Vehicle Dispute with the Tribunal. The named respondent is Trivett Automotive Retail Pty Ltd trading as Keystar Mitsubishi Morayfield.
The applicant is the owner of a 2018 Mitsubishi Elite Cross (the motor vehicle).
The applicant purchased the motor vehicle from the respondent on 5 June 2018 for $37,495.
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 the residual amount payable under a novated lease agreement.
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, 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.
Evidence
The applicant provided a written statement and other documents. In summary:
(a)The applicant took possession of the motor vehicle on 29 June 2018.
(b)One of the safety features on the motor vehicle is adaptive cruise control (ACC). The ACC is designed to detect a vehicle in front, and adjust the speed of the motor vehicle accordingly to maintain a safe distance from the other vehicle.
(c)The applicant noticed that the motor vehicle would slow down if a vehicle was coming towards her. The worst example was when the motor vehicle slowed from 100 km/h to 68 km/h in approximately six seconds.
(d)The applicant returned the motor vehicle to Dundas Mitsubishi at Kingaroy on 17 September 2018. The respondent installed a software upgrade. The service technician also showed the applicant how to disable the ACC. The applicant was dissatisfied that the ACC would have to be disabled every time she started the motor vehicle, and could not be disabled permanently.
(e)The applicant returned the motor vehicle to Dundas Mitsubishi again on 27 March 2019. The applicant additionally complained of a problem with the cruise control, in that the motor vehicle could slow down to approximately 92 km/h and speed up to approximately 100 km/h. The service technician recalibrated the front and rear cameras. He also advised that the variation in speed was potentially due to having eco-mode switched on. Turning eco-mode off made no difference. The service technician could not identify any problems with the motor vehicle on a test drive.
(f)The applicant has continued to have problems with the motor vehicle slowing down due to oncoming traffic. For example, on 8 May 2019, the applicant moved from the left hand lane into the right hand overtaking lane. The motor vehicle slowed down to 78 km/h when vehicles came towards her.
(g)The applicant returned the motor vehicle to Dundas Mitsubishi again on 29 May 2019. The front and rear cameras were again recalibrated, and the auto brake system was checked. No fault was found. The service manager took the motor vehicle for a test drive with the applicant, and experienced the motor vehicle slowing when a vehicle was coming towards it.
(h)The motor vehicle was subsequently assessed by a Mitsubishi Regional Manager. The applicant understands that the motor vehicle was taken out for three hours of testing. The applicant has never been provided with the data collected during this testing.
The applicant provided an excerpt of the motor vehicle’s manual relating to ACC. It relevantly stated:
This system may not correctly detect the actual situation depending on the type of vehicle in front and its conditions, the weather conditions, and the road conditions.
…
CAUTION
In the following situations, the system may become transiently unable to detect a vehicle in front or triggers its control and alarm functions by detecting something other than a vehicle in front:
· When driving in curved sections of road including their entrance/outlet or running beside a closed lane in a traffic work or similar zone.
· When your vehicle position in a lane is unstable, is frequently steered to right and left, or running unstably due to a traffic accident, trouble with some vehicles, etc.
· When driving on the road that the vehicle in front runs in offset position from your vehicle.
· Never use the ACC in any of the following situations. Failure to follow this instruction could lead to an accident:
oOn roads with heavy traffic or roads including many winding or steep curves.
oOn roads with slippery surfaces, such as frozen, snow-covered and dirt roads.
oUnder adverse weather conditions (rain, snow, sand storms, etc).
oOn steel downslopes.
oOn roads including steep up and down slopes or many changes in inclination.
oIn traffic requiring frequent acceleration or deceleration.
oWhen the proximity alarm sounds frequently.
oWhen your vehicle is towed or your vehicle tows another vehicle.
oWhen your vehicle is on a chassis dynamometer or free rollers.
oWhen the air pressure in the tyres is not correct.
oWhen installing the spare tyre for emergency.
oWhen tyre chains are attached.
[images omitted]
The respondent provided an email from Mitsubishi Motors dated 25 October 2019, which relevantly stated:
As per our previous email, the vehicle does not have a manufacturing defect and that the adaptive cruise control is operating as intended, as per your owner’s manual.
Your feedback was provided to MMC regarding your experience and they have advised and confirm that there is no manufacturing defect and that the system is operating as intended.
In light of the above, we reiterate that the adaptive cruise control system is one that does not need to be engaged/used.
Consideration
I am not satisfied that a reasonable consumer fully acquainted with the state of the motor vehicle at the time of purchase would not regard the motor vehicle as being of acceptable quality as at the time of supply.
While the applicant has complained of unexpected slowing of the motor vehicle in a number of situations, the motor vehicle’s manual clearly indicates that certain situations may “trigger [the ACC’s] control and alarm functions by detecting something other than a vehicle in front”. The manual also sets out a number of situations in which the ACC should not be used. The applicant has not provided any form of expert evidence indicating that the ACC in the applicant’s motor vehicle is operating outside the parameters set out in the motor vehicle’s manual. In these circumstances, I do not accept that the ACC is not operating as intended.
In any event, the applicant does not dispute that the ACC can be disabled. While it may be inconvenient for the applicant to have to disable the ACC every time the motor vehicle is started if she does not wish to use the ACC at all, this does not seem to me to be particularly onerous. It involves pressing a button.
For completeness, there is no expert evidence before me that the motor vehicle’s cruise control is not functioning correctly. In these circumstances, I do not accept that the cruise control is defective.
Order
The application is dismissed.
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