Riley v Discount 4x4s Pty Ltd
[2011] QCAT 723
•16 August 2011
| CITATION: | Riley and Anor v Discount 4x4s Pty Ltd [2011] QCAT 723 |
| PARTIES: | Williams Frederick Riley Ray Maralyn Riley |
| v | |
| Discount 4x4s Pty Ltd ABN 21 474 836 47 (Respondent) |
| APPLICATION NUMBER: | MCDO3714-10 |
| MATTER TYPE: | Other minor civil dispute matters |
| HEARING DATE: | 20 July 2011 |
| HEARD AT: | Brisbane |
| DECISION OF: | John Bertelsen, Member |
| DELIVERED ON: | 16 August 2011 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | [1] The applicants return the 2001 Nissan Patrol Wagon former registration number 350NTI to the respondent’s place of business at 979 Beaudesert Road, Coopers Plains within 14 days. [2] The respondent rectify/repair the defects identified in the Department of Transport and Main Roads defect notice dated 26 February 2010 within a further 21 days and provide written evidence to the applicants sufficient to satisfy the Department of Transport and Main Roads that all such defects have been rectified/repaired. [3] Upon notification of completion of rectification/repair of defects the applicants shall collect the vehicle from the respondent’s Coopers Plains premises. [4] The respondent shall pay the applicants the sum of $674.00 within 14 days in satisfaction of expenses incurred by the applicants. [5] In the event of non compliance either party is at liberty to apply. |
| CATCHWORDS: | Refund or repair of vehicle when defective at point of sale – whether defects brought to attention of respondent within the statutory warranty period – opportunity to effect repairs |
REASONS FOR DECISION
Application
The applicants seek refund of the $16,000 purchase price of a 2001 Nissan Patrol Wagon registration number 350 NTI purchased by them from the respondent’s Brisbane premises on 20 January 2010 together with an order that they be reimbursed for various expenses and costs since that time and in the alternative seek a Tribunal order that defects listed on a defect notice issued by the Department of Transport and Main Roads (DTMR) on 26 February 2010 be rectified in a satisfactory manner, once again together with an order that they be reimbursed for various expenses incurred since 20 January 2010.
Background and evidence
The applicants purchased the Nissan Patrol wagon (the vehicle) for $16,000 cash, which they had borrowed, on 20 January 2010. At the time of purchase the odometer reading was 310,453km. At the point of sale the vehicle had been inspected firstly on 14 January 2010 and secondly on 20 January 2010 by Ryszard Kazimierz Miszczuk, a DTMR approved examiner, who issued a safety certificate. That enabled the respondent as dealer to register the vehicle and transfer it to a third party ie the applicants. Mr Miszczuk’s safety certificate was accompanied by a Class B statutory warranty pursuant to the Property Agents and Motor Dealers Act 2000 (PAMDA). That warranty was for a period of 1 month after the day the vehicle was “sold” or “at the time the vehicle travels 1000km after it is sold; whichever happens first.” The warrantor (the respondent) of the vehicle warranted that the vehicle was free from defects at the time of sale and for the warranty period; and that defects in the vehicle reported in writing during the warranty period would be repaired by the warrantor free of charge. In terms of PAMDA a warranted vehicle has a defect if a part of the vehicle does not perform its intended function or has deteriorated to an extent where it cannot reasonably be relied on to perform its intended function.
Immediately after purchase the backseat of the vehicle fell out. The applicants attended DTMR where on 22 January 2010 Alan Douglas Shepherd, Transport Inspector, employed by DTMR inspected the vehicle. At paragraph 5 of his affidavit sworn 14 March 2011 he stated that “I observed the front guards were cracked and the inner right guard and battery tray were cracked, these items made the vehicle defective”. He goes on to say that he advised Mr Riley to obtain “a vehicle mechanical inspection booking at a later date where a thorough inspection could be carried out.” He stated that on 26 February 2010 he carried out a thorough inspection of the vehicle and issued a defects notice D6006572 which listed 15 defects to be rectified.
Mr Shepherd in his departmental statement dated 26 February 2010 identified that as at 26 February 2010 the vehicle’s odometer reading was 311,637km. Between 20 January 2010 and 26 February 2010 the vehicle had therefore travelled 1,184km. He applied the Code of Practice – Vehicle Inspection Guidelines as referred to in the Transport Operations (Road Use Management – Vehicle Standards and Safety) Regulation 1999 and then addressed the defects in terms of the code of practice. He issued a defects notice to the applicants as owners. Defects numbers 1, 2, 3, 4, 6 and 9 are set out hereunder:
1. Ensure battery carrier is secure to inner guard;
2. Repair all cracks in left and right side inner guard;
3. Repair cracks and ensure inner guard is secure to front radiator support panel;
4. Repair all cracks in left and right side guards;
6. Repair all rear seat mounts and ensure mounts comply with ADR;
9. Ensure rear gearbox mounts are secure and function correctly – replace if necessary.
Mr Shepherd stated as follows “I believe items 1, 2, 3, 4, 6 and 9 as mentioned in defects notice D6006572 would have been present at the time of inspection by an approved examiner on the 20th January 2010 and would have been a cause for rejection for the issue of Safety Certificate LV-J1514678 by the Approved Inspection Station” (ie Mr Miszczuk). In fact the 3 defects observed by Mr Shepherd in the course of his inspection on 22 January 2010 are identical to the first 3 defects of the 15 defects list identified by Mr Shepherd on 26 February 2010.
On 1 February 2010 the applicants returned the vehicle to the respondent informing the respondent of the defects thus far identified and providing a written list of defects. The vehicle remained with the respondent for some 11 days being collected by the applicants on 12 February 2010 after some heated exchanges between the parties ultimately involving police intervention. The applicants asserted that on both the 1st February and 12th February they demanded their money back as the vehicle was amongst other things a “lemon”. They asserted the defects were not attended to with the respondent asserting that all defects were repaired free of charge pursuant to sections 236 and 242 of PAMDA.
On 15 February 2010 the applicants attended DTMR to have the vehicle registered in their names with a view to having the vehicle thoroughly inspected with a defect notice to issue. The applicants were verbally advised by DTMR on 15 February 2010 that the vehicle was registered in their names.
The applicants asserted that on 16 February 2010 they rang the respondent regarding defects yet to be rectified. They asserted that they were told to obtain a roadworthy. The applicants asserted they did so contacting Mick Tighe Mechanical which entity carried out a safety inspection and issued a defect list at a cost of $60.00. A number of the defects listed in Mr Tighe’s defect list dated 16 February 2010 are identical to those subsequently listed by Mr Shepherd on 26 February 2010. Michael Tighe, himself a DTMR approved examiner, in his affidavit sworn 18 March 2011 stated that the “repairs required listed were of an important and urgent nature as the vehicle was definitely not in a roadworthy condition when it arrived at our workshop”. He further stated that the “repairs listed were definitely not brought about by the way the car had been driven or cared for by Mr Riley as they were not fresh or of recent nature so to speak. The damage in the vehicle could not have occurred in the time that Mr Riley had owned the vehicle and in the short amount of kilometres that the vehicle had travelled since purchasing”. When Mr Tighe inspected the vehicle on 16 February 2010 the odometer reading was 311,328km i.e. the vehicle had travelled 875km since purchase. The applicants received confirmation of registration in their names on 26 February 2010.
The next day 17 February 2010 Mick Tighe Mechanical’s defect list was faxed to the respondent. The applicants then arranged for the vehicle to be fully inspected by DTMR such inspection being that carried out on 26 February 2010 finding the vehicle to be unroadworthy and resulting in a defects notice. The defects notice was faxed to the respondent the same day and on-forwarded by the respondent to Mr Miszczuk. The applicants asserted that they continued to request repairs to be carried out or a refund made.
In early March 2010 the applicants lodged a formal complaint with the Office of Fair Trading.
Subsequently on or about 21 April 2010 the applicants obtained quotes for repair of defects from Mick Tighe Mechanical, Clifford Street Auto and Wayne Smith Smash Repairs. These quotes variously included a number of the defects referred to in Mr Shepherd’s list of 26 February 2010.
Thereafter in early June 2010 it appears that arrangements were made involving the applicants, the respondent and the Office of Fair Trading to the effect that the vehicle be returned to the respondent for defects to be rectified/repaired. The respondent’s tow truck operator, at the respondent’s expense, collected the vehicle from the applicants in Toowoomba.
On 18 June 2010 the respondent advised the applicants that as a gesture of goodwill it would only repair items listed in the defects notice stating it was observed that the vehicle had been involved in tow impacts front and rear causing further cracks in the chassis, a cracked rear light and other damage due to off road driving.
The respondent asserted that when it received the vehicle it had travelled a further 2,198km from when the defects notice was issued ie subsequent to 26 February 2010. Whilst the vehicle was returned to the respondent it was effectively in the possession of Mr Miszczuk. He gave evidence at hearing. He expressed concern at the overall condition of the vehicle stating that it had deteriorated markedly from January to June 2010. He contacted DTMR informing the Department of the number of kilometres travelled and requesting a Department inspection. The Department inspected the vehicle after which Mr Miszczuk apparently addressed the items on the defects notice contracting some of the work to a third party. Mr Miszczuk asserted that the vehicle was in a roadworthy condition as at 20 January 2010 further asserting that a vehicle can become unroadworthy during the course of a safety certificate.
On 17/18 July 2010 the vehicle was returned by the respondent to Jeffreys Caravan Park, Toowoomba from where it was then moved directly to an RACQ inspection premises. On 21 July 2010 the RACQ conducted a Mastercheck Vehicle Inspection report number 2656434 which, whilst concluding the vehicle to be in fair condition, identified defects “which, in our opinion should be rectified prior to the vehicles continued use or purchase”. A number of these defects correspond to defects numbers 2, 3, 5, 6, 10, 12 listed in Mr Shepherd’s defects notice of 26 February 2011. Subsequent to the inspection RACQ delivered the vehicle to 12 Arrowfield Street, Toowoomba, the applicants’ daughter’s home address. The vehicle remained there and off the road until 27 June 2011 when due to the applicants’ daughter’s changed circumstances the vehicle was towed to the premises Newtown Towing Service, Toowoomba at a cost of $275.00 and remains there presently at a cost of $15.00 per day.
On 12 August 2010 the DTMR advised the applicants that registration of the vehicle would not be renewed until its defects notice was dealt with. That would require endorsement of the defects notice by an approved safety examiner confirming that all defects listed in the notice had been rectified/repaired. That was never done by Mr Miszczuk. That is to say he never endorsed the 26 February 2010 defects notice nor did he produce any document that would have notified DTMR that the 26 February 2010 defects were rectified/repaired. This is despite the fact that at paragraph 13 of his affidavit sworn 4 March 2011 he states “although I did not think I was liable for the matters raised in the defect notice in good faith and to maintain good customer relations I attend to the required repairs”. That evidence is at odds with the defects subsequently identified by RACQ Mastercheck a number of which correspond with the applicants’ own list, Mr Tighe’s list of defects and Mr Shepherd’s list of defects.
Conclusions on evidence
The first issue to be determined is whether the vehicle was defective at the point of sale; secondly whether defects in terms of the statutory warranty were brought to the attention of the respondent within the warranty period; thirdly was the respondent given the opportunity to effect repairs.
On 22 January 2010 the applicants’ primary cause of complaint to Mr Shepherd was the fact that the backseat “fell out”. Mr Shepherd identified that “front guards were cracked and the inner right guard and battery tray were cracked, these items made the vehicle defective”. A written list of repairs to be carried out under the statutory warranty made by the applicant and handed to the respondent on or about 1 February 2010 included “battery broken carrier, back door lock to be repaired and radiator not fitted properly”. The 13 point defects list prepared by Mick Tighe Mechanical and faxed to the respondent on 17 February 2010 included “rear seat mount boby damaged needs a repair, rh inner gard damaged and just glueded up, battery tray cracked and needs a repair, lh inner guard cracked @ radiator support needs repair”. Those defects are virtually identical to defects identified by Mr Shepherd on 22 January 2010. Additionally, of the 9 defects remaining defects numbers 1, 2, 4, 7, 9 and 13 correspond to items 8, 3, 15, 9, 12 and 5 of Mr Shepherd’s defects list of 26 February 2010. Mr Shepherd swears to the effect that his listed defects numbers 1, 2, 3, 4, 6 and 9 would have been present on 20 January 2010.
Michael Tighe swears to the effect that the repairs he listed were of an “important and urgent nature” and that the “repairs listed were definitely not brought about by the way the car had been driven or cared for by Mr Riley as they were not fresh or of a recent nature, so to speak. The damage in the vehicle could not have occurred in the time that Mr Riley had owned the vehicle.” In contrast is Mr Miszczuk’s assertion that the vehicle was roadworthy at the point of sale and that the vehicle had since become unroadworthy. I consider there is compelling evidence that the vehicle was defective at the point of sale.
For its part the respondent did not produce evidence of any acknowledgement of liability for statutory warranty defects but rather relied on what appeared to be a technical defence namely that Mr Shepherd’s inspection was carried out on 26 February 2010 (over one month after the date of purchase) and at a time when the odometer reading was 311,637km ie the vehicle had travelled 1,184km since purchase putting it 184km outside the statutory 1,000km limit.
That argument may have gained some traction but for the written notification of defects by the applicants to the respondent when the vehicle was returned to it on 1 February 2010, the purported rectification/repair of defects by the respondent in the period 1 February 2010 to 12 February 2010, further written notification of defects on 17 February 2010 and the continued requests for repairs to be carried out or for a refund due to defects not being rectified/repaired which cumulatively constitute compelling evidence of notification of defects within the warranty period.
A number of defects were brought to the attention of the respondent on or about 1 February 2010 when the applicant returned the vehicle to the respondent for defects to be rectified/repaired. The respondent purported to rectify all defects on the applicants’ written list of defects during the period 1 February-12 February 2010. Mr Tighe’s list of defects of 16 February 2010, notified to the respondent on or about 17 February 2010 and to a large degree confirmed by Mr Shepherd’s defects list of 26 February 2010 which was also immediately communicated to the respondent makes it abundantly clear that statutory warranty defects were brought to the attention of and that the respondent was aware of outstanding defects within the statutory warranty period.
The applicants obtained Mr Tighe’s list of defects on 16 February 2010 at the insistence of the respondent. There was no evidence produced to the Tribunal that there was any acknowledgement of statutory defects at that point let alone any willingness to effect rectification/repairs subsequent to it being furnished with that list on 17 February 2010. Nor did the situation change when the respondent was furnished with Mr Shepherd’s list which identified common defects. I draw the conclusion that there was an ongoing unwillingness on the part of the respondent to rectify/repair defects, that despite being furnished with Mr Tighe’s list of defects and being requested to rectify/repair defects the respondent did not engage with the applicants.
The applicants had previously returned the vehicle to the respondent on 1 February 2010 and were willing to return the vehicle again in order to have defects rectified/repaired. I find that the respondent was given ample opportunity to effect rectification/repairs.
Quite apart from the respondent’s liability to attend to all those defects notified during the warranty period the respondent agreed in June 2010 as a gesture of goodwill to address the defect items referred to in Mr Shepherd’s defects notice. No documentary evidence supporting the respondent’s contention that the items listed in the defects notice had been rectified/repaired was produced to the Tribunal such as would have enabled the applicants to attend DTMR and have registration effected in their names unfettered (subject to any other defects not on the list being attended to). This was despite the statement in Mr Miszczuk’s affidavit sworn 4 March 2011 to the effect that he had attended to the required repairs.
Throughout the period 20 January 2010 to date the applicants have been put to additional expense quite apart from being deprived of the use of the vehicle since June 2010. Those expenses are set out at paragraph 38 of the applicants’ affidavit sworn 14 October 2010. Those expenses I consider directly referable to the respondent’s failure to rectify the defects listed in Mr Shepherd’s list of defects of 26 February 2010 are as follows:
Mick Tighe Mechanical (Roadworthy) $ 60.00
RACQ (towing fees $55 x 2) $110.00
RACQ Mastercheck Report $249.00
Application filing fee $255.00
Orders
The applicants return the 2001 Nissan Patrol Wagon former registration number 350NTI to the respondent’s place of business at 979 Beaudesert Road, Coopers Plains within 14 days.
The respondent rectify/repair the defects identified in the Department of Transport and Main Roads defect notice dated 26 February 2010 within a further 21 days and provide written evidence to the applicants sufficient to satisfy the Department of Transport and Main Roads that all such defects have been rectified/repaired.
Upon notification of completion of rectification/repair of defects the applicants shall collect the vehicle from the respondent’s Coopers Plains premises.
The respondent shall pay the applicants the sum of $674.00 within 14 days in satisfaction of expenses incurred by the applicants.
In the event of non compliance either party is at liberty to apply.
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