Southside Motor Auctions Pty Ltd v Waylett
[2012] QCATA 108
•21 June 2012
| CITATION: | Southside Motor Auctions Pty Ltd v Waylett [2012] QCATA 108 |
| PARTIES: | Southside Motor Auctions Pty Ltd (Applicant/Appellant) |
| v | |
| Ivor William Waylett Hayley Waylett (Respondents) |
| APPLICATION NUMBER: | APL373-11 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Hon K Dodds, Member |
| DELIVERED ON: | 21 June 2012 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The application for leave to appeal is refused. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – MINOR DEBT CLAIM – MOTOR VEHICLE – Where respondent purchaser of motor vehicle sought refund of purchase price and costs incurred – where statutory warranty under Property Owners and Motor Dealers Act 2000 – whether motor vehicle fit for its purpose Queensland Civil and Administrative Tribunal Act2009, ss 13, 28, 142, 147, Schedule 3 QUYD Pty Ltd v Marvass (2009) 1 Qd R 41 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act2009 (QCAT Act).
REASONS FOR DECISION
This is an application by Southside Motor Auctions Pty Ltd (Southside) for leave to appeal a Tribunal decision in a proceeding for a minor civil dispute. Southside seeks the Tribunal decision be set aside.
The matter before the Tribunal
On 22 March 2011 Mr and Mrs Waylett applied to the Tribunal seeking refund of $10,500 they had paid to Southside to buy a 1997 Volkswagen Caravelle, odometer reading 232,181 km from Southside. They also sought refund of costs incurred as a result of defects in the vehicle and the filing fee for the application.
On 29 September 2011 the Tribunal heard and decided the matter. At the time it had before it a large body of documentary material. It swore or affirmed Mr and Mrs Waylett and a Mr Phinney who appeared on behalf of Southside and heard from them orally.
The reasons accompanying the Tribunal’s decision indicate it accepted the evidence of Mr and Mrs Waylett, and preferred it to the evidence of Southside. It considered that its task was to determine whether or not the motor vehicle was fit for its purpose and whether the statutory warranty which had been provided or the standards set by it had been breached. It concluded that the vehicle was defective and ordered Southside pay Mr and Mrs Waylett the sum they had paid for the motor vehicle less the sum Southside had expended in an attempt to fix the transmission in the vehicle under the statutory warranty, plus a sum representing some of the costs claimed by Mr and Mrs Waylett since purchase due to defects in the motor vehicle. It refused the claim for the filing fee. That resulted in Southside being ordered to pay Mr and Mrs Waylett $7,446.86 on or before 4pm on 27 October 2011.
Leave to appeal
Leave to appeal will only be granted when the applicant (Southside) has shown there is a reasonably arguable case of error on the part of the Tribunal and the appeal is necessary to correct a substantial injustice to the applicant caused by that error.[1]
[1] QUYD Pty Ltd v Marvass (2009) 1 Qd R 41.
In support of its application for leave Southside submitted:
a) It had repaired the motor vehicle’s transmission and attended to other warranty related issues under the statutory warranty;
b) It was prepared to repair faults found by Queensland Transport, and Mr and Mrs Waylett were contacted and informed of that but had not brought the vehicle to the repairer for that to be done;
c) Southside had abided by its statutory warranty obligations. It had rectified faults the vehicle may have had so that it was fit for its intended purpose. It was prepared to and had offered to rectify faults found by Queensland Transport;
d) The amount the Tribunal awarded was excessive.
The grounds of appeal
The grounds of any appeal if leave were granted were:
a) Under the Motor Dealers Act, Southside must be given the opportunity to repair the vehicle to be safe. Southside had not been given the opportunity to do so;
b) Queensland Transport looked at the vehicle and found just two things wrong; and,
c) The amount of the original claim is in excess of the Tribunal’s jurisdiction and as such should not have been heard.
A minor civil dispute
Section 13 of the Queensland Civil and Administrative Tribunal Act2009 (‘QCAT Act’) provides that in a minor civil dispute the Tribunal must make orders it considers fair and equitable to the parties in order to resolve the dispute, or it may dismiss the application which brought the matter before it. Section 28 of the Act charges a Tribunal under the Act to act fairly and according to the substantial merits of the case before it.
Discussion
I have read the documentary material which was before the Tribunal and the transcript of the hearing and reasons for decision of the Tribunal.
To properly consider the application for leave, it is necessary to consider the material before the Tribunal and some provisions of the Property Agents and Motor Dealers Act2000 (‘the Act’).
Possession of the vehicle passed on 21 January 2011. For the purposes of the statutory warranty under the Act, the vehicle was a Class B vehicle. The warranty period was therefore one month from that date, which, pursuant to s 314(3) of the Act, was extendable by one day for each day or part of a day the vehicle was not in possession of the buyer if the vehicle was being repaired by or at the direction of the warrantor.
Mr and Mrs Waylett said they had test driven the vehicle seven or so days before taking possession of it. They agreed to buy it. Delivery of actual possession was delayed by Southside on three occasions and at the time of taking possession it was noticed the kilometerage displayed on the odometer had significantly increased. They said that after taking possession of the vehicle, on the drive home, they noticed the steering was pulling to one side, the automatic gear changes appeared faulty, there were vibrations and grinding noises and the speedometer stopped working. These sorts of things had not been apparent when they test drove the vehicle.
They said that on Saturday 22 January 2011 the vehicle was difficult to start. They took it to Southside but on arrival were advised by a security guard that it was closed.
They said that on the following Monday they set off for Southside again but a short distance into the journey the transmission ceased to operate. They phoned Southside twice to be told they would be called back but no call was received. They phoned Southside the next day and were told to contact another entity (AWN) who apparently stood behind the warranty. This they did and were told to arrange to have the vehicle towed to McKenzie’s garage at Sandgate. This they did at a cost of $77. They then hired a vehicle from Avis.
On 27 January 2011 they contacted McKenzie’s garage. They were told the vehicle could not be looked at that week. Four days later they were told by McKenzie that the vehicle was being moved to another repairer Queensland Automatic Transmission Service. Over the next four or five days there was no further progress, the repairer was not prepared to commence without appropriate authorisation. He advised an RACQ check. Mr and Mrs Waylett arranged this. It occurred on 8 February 2011 at a cost of $199.
The RACQ report I have referred to was before the Tribunal. It found fault in a number of areas. Some of those may be regarded as due to wear and tear in a vehicle of the age and apparent extent of use of this vehicle and not such as to render it unfit for its purpose or dangerous. Others were more serious; the windscreen washer jets were inoperative, the centre rear seat belt webbing was cut, the electric mirror adjuster on the driver’s side rear view mirror was inoperative, there was engine vibration at medium to high revolutions, the steering pulled to the right, the steering wheel was off-centre, the tensioner idler was damaged and the auto transmission has excessive delay on engagement and would not go into gear. Overall the report indicated the vehicle was in poor condition.
Following that on 9 February 2011, a notice of defects letter was sent to Southside by Mr and Mrs Waylett. A complaint was made to the Department of Transport regarding the safety certificate which had accompanied the sale of the vehicle. To interpolate it may be remarked that the evidence before the Tribunal indicated the safety certificate, or more accurately any inspection which preceded it, was plainly perfunctory to say the least.
In any event, after advice from the Department of Transport AWN was advised of the content of the RACQ report. Southside phoned Mr and Mrs Waylett and advised the vehicle should be towed to Vin Tech Auto (the entity that had provided the safety certificate) at Underwood and would provide a loan car until repairs. Mr and Mrs Waylett arranged the tow and upon arrival were advised it was to be taken to another repairer. They paid $275 for the towing.
The loan car provided broke down. Arrangements were made for it to be towed back to Southside. They hired another Avis car for a short period and then bought a cheap car with borrowed money to provide necessary transport.
On 10 March 2011 a complaint was made to the Office of Fair Trading. Eventually on 11 March 2011 Mr and Mrs Waylett were informed the vehicle was ready for collection. When collecting it they said they observed the front internal area of the vehicle had numerous oil stains, damage had been done to the gear indicator and the dashboard fuse cover was missing. Photos were taken and were before the Tribunal. A complaint by them to Southside regarding these matters they said brought a response that Southside wanted nothing further to do with vehicle, to take up any problems with someone else. Southside had spent $4,400 and would not be spending any more. On driving the vehicle home it still felt unsafe. The engine vibrations were still large and loud, the transmission felt different but it still appeared to be holding in gear. They arranged an RACQ spot check which was performed on 15 March 2011 for which they paid $40. The resulting report indicated the condition of the windscreen washers, rear view mirror, seatbelt, drive train operation, steering and suspension and other items mentioned in the original report remained the same. The report said there was flare on transmission upshift and the transmission was holding on before upshift. Mr and Mrs Waylett sent another notice of defects letter to Southside by registered post. A full refund of the price paid and payment of further costs incurred was asked for.
On 4 April 2011 as a result of a Department of Transport check of the vehicle a defect notice was issued by the Department. That was before the Tribunal. It indicated replacement, repair or alteration was required to seat or restraints, drivelines/emissions, the right hand front door seal was to be refitted or replaced, arm supports were to be fitted as per manufacturer’s build to the front seats, all oil contaminated areas were to be cleaned and rechecked after driving, the centre rear seat belt was to be replaced, a missing head rest was to be fitted as per vehicle safety and standards.
Southside put evidence before the Tribunal that the entity that had provided the safety certificate had contacted Mr and Mrs Waylett and asked that the vehicle be brought in so that it could attend to the matters in the Department of Transport report but that was never done. Mrs Waylett told the Tribunal they had never been contacted by that entity.
The Tribunal accepted the account of Mr and Mrs Waylett. Having considered all the evidence before the Tribunal, it cannot be concluded it was in error to do so. Further, on the evidence, it was plainly entitled to find the vehicle was defective and unfit for its purpose.
Southside has not shown a reasonably arguable case of error regarding the Tribunal’s finding that the vehicle was defective and unfit for its purpose. On the evidence before the Tribunal and accepted by it, the vehicle plainly was.
The ground of appeal that the original claim was in excess of the Tribunal’s jurisdiction is without merit. The Tribunal’s monetary jurisdiction was up to $25,000.[2] It had jurisdiction to hear a minor civil dispute which is what the matter was. It had power under the QCAT Act, section 13 to make the order it made. The Property Agents and Motor Dealers Act 2000 did not limit that power.
[2] Queensland Civil and Administrative Tribunal Act 2009, Schedule 3.
It is also necessary to touch upon some aspects of the order made by the Tribunal. It has wide powers under section 13(2) QCAT Act in a dispute such as this.
The reasons of the Tribunal say nothing about the fate of the vehicle. At the time of the Tribunal hearing it remained in the possession of Mr and Mrs Waylett although they said they did not want it. What has happened to it since the hearing is not known to me. It would have been preferable if the Tribunal had expressly dealt with it.
Regarding the additional expenses sought under s 320 of the Act it was Mr and Mrs Waylett’s obligation to deliver the vehicle to the warrantor or to a qualified repairer nominated by the warrantor after written notice of defect had been provided to and accepted by or deemed to be accepted by the warrantor. That obligation does not involve multiple deliveries to different repairers. The first towing paid for by Mr and Mrs Waylett was to McKenzie’s garage apparently on the instruction of AWN before any written notice of defect had been given. The second towing paid for by Mr and Mrs Waylett occurred after the first written notice of defect was given to Southside, and Southside apparently orally advised the vehicle was to be towed to Vin Tech Auto.
Regarding the RACQ charges, it may be remarked that had Mr and Mrs Waylett had an RACQ inspection before purchasing the vehicle, the mess that eventuated may not have occurred. Had they done, so the cost of such an inspection would have been theirs and would have been money well spent. The first inspection was in fact arranged and done prior to the delivery of written notice of defect to Southside. On the evidence accepted by the Tribunal the second inspection was inevitable because of the condition of the vehicle revealed by the first inspection, the observable condition of the vehicle when Mr and Mrs Waylett arrived to collect it and the apparent attitude of Southside to their complaints.
I have considered the various aspects of the claim for expenses and in particular those I have specifically referred to above. Those I have specifically referred to were at least open to argument. However on balance I have concluded Southside has not discharged its onus of showing leave should be granted.
The application for leave to appeal is refused.
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