Single v General Motors Australia NSC Ltd
[2020] QCAT 368
•22 September 2020
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Single v General Motors Australia NSC Ltd & Anor [2020] QCAT 368
PARTIES: LUKE SINGLE (applicant)
v
GENERAL MOTORS AUSTRALIA NSC LTD (first respondent)
NEW PIONEER MOTORS PTY LTD
(second respondent)
APPLICATION NO/S:
MVL044-19
MATTER TYPE:
Motor vehicle matters
DELIVERED ON:
22 September 2020
HEARING DATE:
17 September 2020
HEARD AT:
Brisbane
DECISION OF:
Member Cranwell
ORDERS:
The Application – Motor Vehicle Dispute filed on 18 October 2019 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 – whether motor vehicle was subject of abnormal use
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 18 October 2019, Mr Single (the applicant) filed an Application – Motor Vehicle Dispute with the Tribunal.
The named respondents were General Motors Holden Australia NSC Ltd (the first respondent) and New Pioneer Motors Pty Ltd (the second respondent).
The applicant purchased a 2013 Holden Colorado from the second respondent for $50,180 on 11 January 2013. This vehicle was replaced on 31 January 2017, when the applicant was supplied with a 2017 Holden Colorado (the motor vehicle).
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.
I note that s 264 of the Australian Consumer Law provides that the replacement of goods is taken to be a supply by the supplier, and the consumer guarantees apply to the replacement goods.
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.
However, the guarantee of acceptable quality does not apply in circumstances where the consumer has subjected the goods to abnormal use. Section 54(6) of the Australian Consumer Law provides:
(6) Goods do not fail to be of acceptable quality if:
(a) the consumer to whom they are supplied causes them to become of unacceptable quality, or fails to take reasonable steps to prevent them from becoming of unacceptable quality; and
(b) they are damaged by abnormal use.
Evidence
It is not in dispute that the motor vehicle was fitted with a number of accessories prior to delivery to the applicant. These are set out in the contract, and include:
(a)bull bar;
(b)snorkel kit;
(c)towing package;
(d)drop side steel tray;
(e)long range 130 litre fuel tank;
(f)under body driver’s side tool box;
(g)under body passenger side tool box;
(h)70 litre under tray water tank;
(i)additional trailer wiring plug;
(j)LED driving lights;
(k)UHF radio and aerial;
(l)dual battery and wiring;
(m)rhino rack leg kit.
The applicant also installed a personal fridge after delivery.
The service history of the motor vehicle is also not in dispute:
(a)The applicant reported a concern with the transmission in August 2018 at odometer reading 31,808 km. The transmission was replaced with a certified reconditioned part by Madill’s Holden at Gympie.
(b)The applicant reported a second concern with the transmission at odometer reading 34,192 km. The transmission was replaced with a brand new part by the second respondent.
(c)The applicant reported a third concern with the transmission in April 2019 at odometer reading 41,791 km. The transmission was replaced again.
(d)The applicant reported a fourth concern with the transmission on 6 June 2019 at odometer reading 45,294 km. The first respondent and the second respondent refused to repair the transmission.
The first respondent contends that the transmission failure is due to the applicant overloading the vehicle, and driving in a “spirited” manner.
The maximum GVM (gross vehicle mass) of the motor vehicle is 3,150 kg.
The applicant provided a photograph of the vehicle on a public weigh bridge showing a GVM of 3,140 kg. The applicant’s evidence was that the motor vehicle had a full load of fuel, a full water tank, the fridge, roof top camper, and contained the applicant, his father, his daughter and his dog. The motor vehicle also had the tow ball weight of his boat.
The applicant gave evidence that the motor vehicle had everything in it, and that his father is 30 kg heavier than his wife. He denied that he had ever overloaded the vehicle.
The applicant also gave evidence denying that he had a “spirited” driving style. He stated that this suggestion arose when he tried to replicate a transmission fault by performing a 100% throttle launch up a hill. This was not how he normally drives.
The first respondent provided evidence of it having weighed the vehicle on a public weigh bridge with a full tank of fuel, an empty water tank, a fridge half full of drinks and only the driver in the vehicle. The first respondent provided the following results:
(a)front axle weight of 1,340 kg;
(b)rear axle weight of 1,420 kg;
(c)water tank weight (calculated as tank empty) of 70 kg;
(d)tow ball weight (calculated as no trailer attached) of 350 kg;
(e)GVM of 3,180 kg.
The first respondent also provided photographs of marks on the motor vehicle where the rear suspension bump stops have come into contact with the chassis frame. It stated that these two components should not make contact when the vehicle is within its GVM specification.
Hemi Tanuvasa, who appeared for the first respondent, submitted that the difference between 3,140 kg and 3,150 kg was a couple of bags of potatoes, and an additional passenger would have caused the motor vehicle to exceed the GVM.
Mr Tanuvasa also submitted that the motor vehicle was on its fourth transmission. The three replacement transmissions had been fitted by two different providers, and two separate types of transmissions had been fitted. All had failed. This only left the weight of the vehicle and/or the driving style as the cause of the transmission failures.
Consideration
I do not accept that the applicant has a “spirited” driving style. This observation appears to be based solely on observations of the applicant attempting to replicate a transmission problem. The applicant’s evidence was that he does not normally drive this way. The use of the description “spirited” is in any event highly subjective.
However, I do consider it more likely than not that the maximum GVM of the motor vehicle has been exceeded on occasion. The applicant’s own evidence was that the motor vehicle had a GVM of 3,140 kg when fully loaded. This was only 10 kg under the maximum GVM, or within 0.3% of the maximum GVM. The addition of a couple of bags of potatoes, or an additional passenger, would be sufficient to cause the motor vehicle to exceed the maximum GVM.
Similarly, the GVM calculated by the first respondent was 3,180 kg. Even if the 350 kg allowance for the tow ball weight of a trailer is omitted, additional passengers and luggage of only 320 kg would cause the motor vehicle to exceed the maximum GVM.
Further support for this conclusion is found in the photographs of the bump stop marks. These suggest that the motor vehicle has been operated over the maximum GVM, at least at some points in time.
I note that the applicant gave evidence that he never exceeded the maximum GVM. However, unless he took the vehicle over a weigh bridge every time he drove it, it seems to me that he would be unable to be certain of this. The extensive list of accessories fitted by the applicant significantly increase the likelihood of the motor vehicle exceeding the maximum GVM on occasion.
More generally, I find it implausible that the motor vehicle would have experienced four transmission failures without some other cause beyond the individual transmissions. The initial transmission installed in the motor vehicle was fitted in the factory, and replacement transmissions were subsequently fitted by two different providers. At least two types of transmissions were fitted to the motor vehicle. This makes it unlikely that the failures arose from a manufacturing defect or faulty installation.
The applicant did not provide any expert evidence, and in particular was unable to identify an alternate cause for the transmission failures. On the other hand, the first respondent provided an explanation that the motor vehicle was used while overloaded. As noted above, I consider this explanation to be plausible, and there is circumstantial evidence available to support this inference being drawn.
In these circumstances, I find that the applicant caused the motor vehicle to become of unacceptable quality, and damaged the vehicle by abnormal use.
Orders
The application is dismissed.
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