Rahmani v Vehicle Auctions Australia Pty Ltd

[2021] QCAT 399

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Rahmani v Vehicle Auctions Australia Pty Ltd [2021] QCAT 399

PARTIES:

MARTINE RAHMANI

(applicant)

V

VEHICLE AUCTIONS AUSTRALIA PTY LTD

(respondent)

APPLICATION NO/S:

MVL046-21

MATTER TYPE:

Motor vehicle matters

DELIVERED ON:

15 November 2021

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Cranwell

ORDERS:

1.   Vehicle Auctions Australia Pty Ltd is required to pay to Martine Rahmani the amount of $36,500 within 14 days of the date of these orders.

CATCHWORDS:

TRADE AND COMMERCE – COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION – CONSUMER PROTECTION – MISLEADING OR DECEPTIVE CONDUCT OR FALSE REPRESENTATIONS – MISLEADING OR DECEPTIVE CONDUCT GENERALLY – where the parties entered into a contact for the sale of a motor vehicle – where the consumer paid the purchase price – where the supplier did not supply the motor vehicle - whether consumer entitled to damages

Competition and Consumer Act 2010 (Cth), Schedule 2 – Australian Consumer Law s 18, s 236

Corporations Act 2001 (Qld), s 109X
Fair Trading Act 1989 (Qld), s 50A

Futuretronics International Pty Ltd v Gadzhis [1992] 2 VR 217

Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd [1984] FCA 180

APPEARANCES & REPRESENTATION:
Applicant:	Self-represented
Respondent:	No appearance

REASONS FOR DECISION

1. On 3 March 2021, Martine Rahmani (‘the applicant’) filed an Application – Motor Vehicle Dispute with the Tribunal.  The named respondent is Vehicle Auctions Australia Pty Ltd (‘the respondent’).

2. On 27 April 2021, the applicant filed an affidavit of service indicating that the application was served on the respondent by post at the address of its registered office, namely 18 Geranium Drive, Springfield Lakes QLD 4300. The applicant was also directed to file an ASIC search of the respondent, which confirms the address of its registered office. Accordingly, I am satisfied that the respondent was served pursuant to s 109X(1)(b) of the Corporations Act 2001 (Cth).

3. The relief sought by the applicant as set out in the application was ‘[a] full refund of $36,500 immediately – PLEASE’.

Evidence

1. On 4 February 2021, the applicant contracted to purchase a 2016 Hyundai Santa Fe (‘the motor vehicle’) from the respondent.  The purchase price was $36,500.

2. The applicant provided evidence that $500 was paid to the respondent by visa card on 4 February 2021, with the balance of $36,000 paid by bank transfer on the same date. 

3. The respondent subsequently issued an invoice recording these payments, and showing a balance due of $0.

4. The applicant’s evidence was that the motor vehicle was never delivered.

5. The respondent filed no evidence in the proceedings.  In these circumstances, I accept the applicant’s evidence in its entirety.

6. For completeness, I note that the applicant also provided an invoice from the respondent for $330, being a service fee for sourcing the motor vehicle.  No evidence was provided that this amount was paid, and the applicant has not sought recovery of this amount in any event.

Australian Consumer Law provisions

1. 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.

2. These include an action under s 236(1) of the Australian Consumer Law, which provides:

   If:

   (a) a person (the claimant ) suffers loss or damage because of the conduct of another person; and

   (b) the conduct contravened a provision of Chapter 2 or 3;

   the claimant may recover the amount of the loss or damage by action against that other person, or against any person involved in the contravention.

3. Chapter 2 of the Australian Consumer Law includes the prohibition on misleading and deceptive conduct contained in s 18(1), which provides:

   A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.

4. Section 2(2)(a) and (b) of the Australian Consumer Law define engaging in conduct to include ‘the making of, or giving effect to a provision of, a contract’.

5. Section 4 of the Australian Consumer Law provides:

   (1)  If:

   (a)  a person makes a representation with respect to any future matter (including the doing of, or the refusing to do, any act); and

   (b)  the person does not have reasonable grounds for making the representation;

   the representation is taken, for the purposes of this Schedule, to be misleading.

   (2)  For the purposes of applying subsection (1) in relation to a proceeding concerning a representation made with respect to a future matter by:

   (a)  a party to the proceeding; or

   (b)  any other person;

   the party or other person is taken not to have had reasonable grounds for making the representation, unless evidence is adduced to the contrary.

Consideration

1. The applicant’s claim is fundamentally a contractual claim against the respondent for non-performance of its promise to deliver the motor vehicle upon receiving payment. However, in matters over $25,000, the Tribunal’s jurisdiction is relevantly limited to actions under the provisions of the Australian Consumer Law listed in the table contained in s 50A of the Fair Trading Act. As set out above, this includes an action for misleading or deceptive conduct.

2. In Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd, the Full Federal Court stated:[1]

   [T]he non-fulfilment of a promise when the time for performance arrives does not of itself establish that the promisor did not intend to perform it when it was made or that the promisor’s intention lacked any, or any adequate foundation.

   [1] [1984] FCA 180, [18].

3. However, in Futuretronics International Pty Ltd v Gadzhis,[2] Ormiston J stated:

   I am not persuaded that one should treat every contractual promise as giving rise to an implied representation of the kind referred to in [s 4]. However, I am persuaded that if there be an unconditional promise which forms part of the contractual obligations, then it is proper to treat the giving of that promise, at least in the ordinary case, as the making of a representation as to a future matter, being either the doing of an act or the "refusing" (sic) to do an act, being in each case the subject of the promise.

   [2] [1992] 2 VR 217.

4. I find that, by accepting the applicant’s payment and issuing an invoice to the applicant showing a balance due of $0, the respondent made an implied representation as to a future matter, namely that it would supply the applicant with the motor vehicle.  The representation at that point was unconditional.

5. The respondent has not adduced any evidence to indicate that it had reasonable grounds for making the representation. In those circumstances, pursuant to s 4(2) of the Australian Consumer, the respondent is taken not to have had reasonable grounds for making the representation. The representation is therefore taken to be misleading.

6. Accordingly, I find that the respondent engaged in misleading conduct for the purposes of s 18(1) of the Australian Consumer Law.

7. I assess the applicant’s loss pursuant to s 236(1) of the Australian Consumer Law as being $36,500, being the amount paid for the motor vehicle which was not delivered.

Orders

1. The respondent is ordered to pay to the applicant the amount of $36,500 within 14 days of the date of these orders.