Toki v New Centenary Mercedes-Benz Pty Ltd

[2020] QCAT 402

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Toki v New Centenary Mercedes-Benz Pty Ltd [2020] QCAT 402

PARTIES:

MITCHELL TOKI
(applicant)

v

NEW CENTENARY MERCEDES-BENZ PTY LTD

(respondent)

APPLICATION NO/S:

MVL083-20

MATTER TYPE:

Motor vehicle matters

DELIVERED ON:

2 July 2020

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Cranwell

ORDERS:

The application to be joined to a proceeding filed on 3 June 2020 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 – application for joinder

Australian Consumer Law, s 54, s 259, s 267, s 278,
s 279
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 42

REPRESENTATION:

Applicant:

Self-represented

Respondent:

Self-represented

APPEARANCES:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

REASONS FOR DECISION

1. Mr Toki filed a Form 59: Application – Motor Vehicle Dispute with the Tribunal on 30 March 2020.  The named respondent is New Centenary Mercedes-Benz Pty Ltd.

2. According to the Form 59, Mr Toki purchased a motor vehicle from the respondent on 10 June 2015.  He entered into a finance agreement with Mercedes-Benz Financial Services Australia Pty Ltd.  The amount financed was $73,047.77, with $18,851.46 in interest payments and a final repayment of $31,575.83.  The final repayment is referred to as the ‘balloon amount’.

3. Mr Toki has experienced mechanical difficulties with the vehicle, and has paid $2,305.70 for repairs.

4. The relief sought by Mr Toki in the Form 59 is:

   (a)the respondent purchase the vehicle from Mr Toki for an amount equal to the balloon amount, or the balance owing under the finance agreement (whichever is higher); or

   (b)the finance agreement be terminated, the respondent take possession of the vehicle and indemnify Mr Toki in respect of all liabilities under the finance agreement.

5. I note that s 54 of the Australian Consumer Law provides for a guarantee by a supplier of goods that the goods are of acceptable quality. The remedies available against a supplier of goods for a failure to comply with this guarantee are set out in s 259 of the Australian Consumer Law. The remedies available depend on the nature of the failure, and include:

   (a)requiring the supplier to remedy the failure within a reasonable time (s 259(2)(a));

   (b)recovering the reasonable costs incurred by the consumer in having the failure remedied where the supplier does not do so within a reasonable time (s 259(2)(b)(i));

   (c)rejecting the goods (s 259(2)(b)(ii) and s 259(3)(a));

   (d)recovering compensation for a reduction in the value of the goods below the price paid for the goods (s 259(3)(b)); and

   (e)recovering damages for any loss or damage suffered because of the failure where such loss or damage was reasonably foreseeable (s 259(4)).

6. Similar remedies are available against a supplier of services in s 267 of the Australian Consumer Law.

7. Separately to this, s 278 of the Australian Consumer Law provides that a linked credit provider may be jointly and severally liable with the supplier for a failure to comply with the guarantee contained in s 54. Pursuant to s 279, the action must be brought against the linked credit provider and the supplier jointly.

8. The Form 59 contains no explanation of the relationship between the relief sought by Mr Toki against the respondent and the remedies available against a supplier of goods under the Australian Consumer Law.

9. Against this background, Mr Toki filed an application on 3 June 2020 seeking to have LSH Auto (Brisbane) Pty Ltd joined to the proceedings. 

[10]Section 42 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘the QCAT Act’) relevantly provides for the joinder of parties as follows:

(1) The tribunal may make an order joining a person as a party to a proceeding if the tribunal considers that--

(a) the person should be bound by or have the benefit of a decision of the tribunal in the proceeding; or

(b) the person's interests may be affected by the proceeding; or

(c) for another reason, it is desirable that the person be joined as a party to the proceeding.

…

(3) The tribunal may make an order under subsection (1) or (2) on the application of a person or on its own initiative.

1. The basis stated for Mr Toki for the joinder of LSH Auto (Brisbane) Pty Ltd to the proceedings was:

   Both Mercedes Benz entities are not claiming liability as Brisbane was the place of purchase and Toowong was the where the repairs and warranty was undertaken.

2. Given the brief statement made by Mr Toki, I am unable to discern any basis under

   
   

   s 42(1) of the QCAT Act for joining LSH Auto (Brisbane) Pty Ltd to the proceedings. In particular, Mr Toki did not set out what relief he is seeking against LSH Auto (Brisbane) Pty Ltd, in circumstances where there is already an apparent disjunction between the relief sought against the existing respondent and the remedies available under the Australian Consumer Law. The purpose of joining a party to a proceeding is not merely to facilitate a “scattergun” approach to litigation, in the hope that by adding respondents Mr Toki may ultimately be successful in obtaining a remedy against any one of them. Had Mr Toki had provided further details, a basis for joining LSH Auto (Brisbane) Pty Ltd may have become evident. However, he did not.

3. The application for joinder is dismissed.