Remonde v Jaguar Land Rover Australia Pty Ltd

[2024] QCAT 24

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Remonde v Jaguar Land Rover Australia Pty Ltd [2024] QCAT 24

PARTIES:

RUSSEL REMONDE 

(applicant)

v

JAGUAR LAND ROVER AUSTRLIA PTY LTD
BEAUFORT TOWNSVILLE PTY LTD T/A TONY IRELAND LANDROVER

(respondents)

APPLICATION NO/S:

MVL123-23

MATTER TYPE:

Motor vehicle matter

DELIVERED ON:

24 January 2024

HEARING DATE:

19 January 2024

HEARD AT:

Brisbane

DECISION OF:

Member Bertelsen

ORDERS:

The Application is struck out.

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 claim is statute barred

Australian Consumer Law (Qld), s 18, s 54, s 55, s 100, s 236, s 259, s 262, s 263, s 273

Competition and Consumer Act 2010 (Cth), Schedule 2

Fair Trading Act 1989 (Qld), s 50A

Morphy v Beaufort Townsville Pty Ltd [2018] VCAT 1520

Carr Boyd v Agrison Pty Ltd [2014] VMC 23

APPEARANCES & REPRESENTATION: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act2009 (Qld)

REASONS FOR DECISION

1. On 5 June 2023 Russel Remonde and Geoffrey Craig (‘the Applicants’) filed a motor vehicle dispute application seeking reimbursement of invoices and quote, some $50,000.00, in respect of their purchase of a 2015 Land Rover Defender (‘the vehicle’) on 19 February 2016 from Beaufort Townsville trading as Tony Ireland Land Rover (the dealer, ‘Beaufort’) and Jaguar Land Rover Australia Pty Ltd (the manufacturer, ‘Land Rover’). Alternatively, an inflation-adjusted refund was sought. Numerous defects, performance issues, and replacements were asserted. The vehicle was sold with a three-year new vehicle warranty.

2. On 2 August 2023 Beaufort filed an Application for Miscellaneous Matters seeking a strike out of the proceeding or alternatively its removal from the proceeding. It asserted the sale occurred more than six years prior to the commencement of the proceeding and was therefore statute barred. That being so, the Applicants could not demonstrate any prospect of success. Moreover, their application was misconceived in terms of the Queensland Civil and Administrative Act 2009 (Qld) (‘QCAT Act’) in that it was lacking in substance because the Tribunal lacked jurisdiction to determine it. It was asserted that Beaufort had not traded since September 2016, was in the throes of deregistration, and had no assets. Beaufort further asserted it held no records regarding the sale of the vehicle and that the application could proceed against Land Rover Beaufort being entitled to an indemnity from Land Rover pursuant to section 274 of the Australian Consumer Law (‘ACL’).

3. In the event, the Tribunal by direction of 29 August 2023 refused Beaufort’s application. On the same day all parties were given leave to be legally represented.  

4. On 20 September 2023 Land Rover filed its response, in summary, including pointing to the vehicle’s service history under warranty and outside of warranty, usage of the vehicle over seven years with well over 180,000 kilometres travelled, and non-compliance with manufacturers’ service intervals. It was asserted the claim was statute barred.

5. Subsequently on 21 September 2023 Land Rover filed an Application for Miscellaneous Matters seeking dismissal of the proceeding, costs, and removal of Geoffrey Craig as a party to the application. With respect to removal of Geoffrey Craig it was pointed out that the affidavit of Russel Remonde sworn 2 June 2023 deposed to her purchase of the vehicle and her legal ownership. The affidavit of Geoffrey Craig sworn 2 June 2023 deposed to legal ownership by Russel Remonde. It is timely to state at this point that usage is not determinative of ownership.

6. Land Rover additionally pointed out that despite a direction to do so the Applicants had not provided a copy of the vehicle’s written purchase contract. The Applicants had provided only a receipt for finance, a bank loan agreement, unsigned, and a PPSR certificate that did not list the Applicants as vehicle owners, none of which constituted a written contract.

7. Land Rover relied on Morphy v Beaufort Townsville Pty Ltd[1] in support of its contention that such extrinsic material should not be relied upon to evidence the contract relating to the supply of the vehicle. That being so, it was asserted the Applicants were unable to satisfy the Tribunal, firstly that the vehicle was sold in trade or commerce, secondly, that it was sold to a consumer, and thirdly, that the supply did not occur by way of auction. The application ought to be dismissed.

   [1][2018] VCAT 1520 (‘Morphy’).

8. On 4 October 2023 the Tribunal directed the Applicants to respond to the dismissal application. Then the dismissal application was to be determined on the papers, but not before the written contract was produced or advice received that the written contract was not available for production. In that regard the Tribunal directed Land Rover file an application for production of the written contract from the relevant Land Rover dealer. Land Rover was also to provide any documentation in its possession or under its control that might identify the dealer who sold the vehicle and the date on which it was sold.

9. On 9 October 2023 the Applicants responded to the dismissal application stating that no documents other than what was furnished to the Tribunal were provided to them at the time of purchase. They asserted that proof of purchase pursuant to section 100 of the ACL could be established by the acceptance of the receipt provided at the time of purchase and submitted to the Tribunal. That receipt is headed ‘Tony Ireland Townsville’, is dated 19 February 2016, refers to Russel Remonde as customer, and correctly identifies the vehicle the subject of the application. In addition, or in tandem, a Land Rover Financial Services fixed rate loan agreement with a disclosure date 19 February 2016, unsigned, and recording Russel Remonde as customer, was produced. Read together this material could be construed as evidence of the purchase by Russel Remonde of the subject vehicle on the 19 February 2016 from Beaufort Townsville Pty Ltd trading as Tony Ireland Land Rover.

10. In accord with the directions of 4 October 2023 Land Rover filed an Application for Miscellaneous Matters on 13 October 2023 seeking from AP Townsville Pty Ltd a copy of the written contract (AP Townsville Pty Ltd was the immediate successor to Beaufort from September 2016). No such written contract could be located. However, Land Rover was able to produce, in accord with the Tribunal’s directions, two documents. Firstly, a Land Rover direct dealer warranty – vehicle details document recording a Tony Ireland Land Rover selling date 19 February 2016 for a Defender, the VIN number of which is identical to the VIN number of the Defender the subject of this proceeding. Secondly, an Assets Roles (2) and Key Dates record, the Assets Roles portion of which refers to account Geoff Craig as current owner effective 22 June 2016 and account AP Townsville Pty Ltd as previous owner effective 5 February 2016. The Key Dates record portion refers to warranty start date 19 February 2016 and warranty expiry date 18 February 2019.

11. Based on the cumulative effect of the foregoing written evidence the Tribunal is satisfied that Russel Remonde purchased the subject vehicle from Beaufort on the 19 February 2016.

12. Whilst it is the case the vehicle has been the subject of a multiplicity of repairs, replacements, and servicing, such has occurred over a period of some seven years during which time the vehicle has travelled well over 180,000 kilometres including interstate travel. The Applicants appear to be asserting major failure entitling them to compensation or even to reject the vehicle.

13. It has been stated in the past that a major failure might be constituted by a series of specific and individual defects which taken as a whole constitute one major failure.[2]   However, for that to be so such failures must occur within a limited timeframe such as to disentitle the consumer from any meaningful enjoyment or extended usage of the vehicle. That is not the case here. Additionally, where a considerable length of time is involved strict adherence to the manufacturer’s timing of servicing regime is essential. It does not appear to be disputed that the 80,000-kilometre service occurred on 23 November 2020 at 89,542 kilometres, the 100,000-kilometre service at 105,303 kilometres on 14 April 2021, the 120,000-kilometre service at 121,395 kilometres 19 August 2021 and the 140,000-kilometre service at 150,223 kilometres on 8 July 2022.    The vehicle here is designed for off-road usage. The severity of such usage informs the longevity of the vehicle’s structural and mechanical state.

    [2]Cary Boyd v Agrison Pty Ltd [2014] VMC23 at [51].

14. Under the ACL the rejection period is that 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 (acceptable quality/fit for purpose) to become apparent. Here however there have been repairs, replacements, and servicing over some seven years with continuity of usage of well over 180,000 kilometres travelled. The rejection period here has well and truly passed.

15. In Morphy[3] the Victorian Civil and Administrative Tribunal held that, while the rejection period did not necessarily correlate with the manufacturer’s warranty period, the warranty period was relevant in considering whether the rejection period had expired:

    At the time of rejection, the motor car remained under a three year/100,000-kilometre manufacturer’s warranty. In determining if the rejection period has ended, the Tribunal is not bound by the warranty period given by an express manufacturer’s warranty. Nevertheless, the express warranty period is relevant evidence of the expected period of largely problem-free use of goods. In this case, all the failures have occurred shortly within the manufacturer’s warranty period and the rejection was made well before the expiration of that period.   

    [3]Morphy at [86].

16. It is not the case here that all failures occurred shortly within the first three years of ownership with rejection being made well before the expiration of those three years. Even if it could be construed that some form of rejection was effected by word of mouth or in writing the vehicle was not returned to Beaufort as the act required by section 263 of the ACL following rejection. Rather the vehicle was serviced latterly in the seven-year period by other mechanical workshops which the Applicants preferred, asserting they, in particular Mark Nixon Automotive, did a better job than Land Rover-dedicated workshops.

17. Even if that is considered not to be the case the claim here is made over seven years after the purchase of the vehicle. Section 236 of the ACL states that any claim for loss or damage must be made within six years of the date the cause of action arose. Given that, the Applicants have asserted performance issues from the outset, that is, the date of purchase of the vehicle. That being so the claim is statute barred.

18. Pursuant to section 273 of the ACL any claim for damages against a manufacturer or deemed manufacturer ought to have been made within three years of the Applicants first becoming aware or ought reasonably to have become aware that the manufacturer’s guarantee against defects had not been complied with. In the context of ongoing repairs, replacements, and servicing it could well be argued that these procedures enabled continuity of usage of over seven years accruing mileage of well over 180,000 kilometres. There is no evidence before the Tribunal such as to enable the Tribunal to conclude that the Applicants somehow became aware or had reasonably become aware in June 2020 (three years prior to the date of filing of their application) or later that asserted defects amounted to a breach of the manufacturer’s warranty against defects. Rather there was a continuity of repairs, replacements, and servicing from the outset over a seven-year period coupled with a continuity of usage and the accumulation of substantial mileage. No basis has been established for departure from the primary position under the QCAT Act that each party bear their own costs.

19. Taking the above evidence and factors into account the Tribunal concludes that Russel Remonde is the sole proper Applicant in the initiating Application, that the vehicle was never rejected in terms of the ACL rejection provisions and that in any event the initiating Application is statute barred.

20. The initiating Application is struck out.