Vermont v Hemi

[2020] QCAT 71

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Vermont & Anor v Hemi & Anor [2020] QCAT 71

PARTIES:

ROBERT VERMONT

MAREE VERMONT

(applicants)

v

APIHAI HEMI

STEVEN SOTOGI

(respondents)

APPLICATION NO/S:

MVL076-19

MATTER TYPE:

Motor vehicle matters

DELIVERED ON:

10 March 2020

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Cranwell

ORDERS:

The Application – Motor Vehicle Dispute filed on 13 November 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 – where motor vehicle sold by private sale – whether ‘in trade or commerce’

Competition and Consumer Act 2010 (Cth), Schedule 2 – Australian Consumer Law, s 18, s 20, s 21, s 54, s 55,
s 56, s 57, s 58, s 59, s 60, s 61, s 62
Fair Trading Act 1989 (Qld), s 50A

Motor Dealers and Chattel Auctioneers Act 2014 (Qld),
Schedule 1 – s 14

Walker v Sell [2016] FCA 1259

REPRESENTATION:

Applicants:

Self-represented

First Respondent:

Second Respondent:

Self-represented

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. On 13 November 2019, Mr and Mrs Vermont filed a Form 59: Application – Motor Vehicle Dispute with the Tribunal. 

2. According to the Form 59, Mr and Mrs Vermont bought a second hand Toyota Hiace which was advertised on Gumtree.  Mr and Mrs Vermont allege that the motor vehicle has extensive rust.  They seek a refund of the $28,000 they paid for the motor vehicle.

3. Mr and Mrs Vermont allege that Mr Hemi was the owner of the motor vehicle, and that Mr Sotogi acted as Mr Hemi’s agent in relation to the sale.  There is no suggestion on the material before me that Mr Sotogi is engaged in the business of selling motor vehicles.  According to the Form 59, Mr Sotogi ‘has a financial advice business’ and there is no suggestion that the sale of the motor vehicle formed part of that business.

4. On 4 December 2019, I directed that the parties file submissions as to whether the Tribunal has jurisdiction in relation the private sale of a motor vehicle. 

5. Mr and Mrs Vermont filed submissions on 20 February 2020, which included the following:

   We have consulted with Caxton legal services and are aware that any compensation for the vehicle is unlikely …

   Despite knowing this I’d like QCAT to hear this case as it has caused my wife a great deal of distress, sleepless nights and tears as well as the hundreds of hours I have put into this.

6. Section 50A(1) of the Fair Trading Act 1984 (Qld) provides:

   A person may apply, as provided under the QCAT Act, to the tribunal for an order mentioned in subsection (2) for an action—

   (a)     under a provision of the Australian Consumer Law (Queensland) listed in the table to this section; and

   (b)     relating to a motor vehicle; and

   (c)     seeking an amount or value of other relief of not more than $100,000.

7. The protections against misleading or deceptive conduct[1] and unconscionable conduct[2] provided for in Chapter 2 of the Australian Consumer Law only apply if the conduct occurs ‘in trade or commerce’. Similarly, the consumer guarantees as to goods of acceptable quality,[3] goods fit for the purpose,[4] goods of corresponding description,[5] supply by way of sample or demonstration model,[6] repairs and spare parts,[7] compliance with any express warranty,[8] services rendered with due care and skill,[9] services fit for purpose[10] and services supplied within a reasonable time[11] provided for in Chapter 3 are only imposed where the goods or services are supplied to a consumer ‘in trade or commerce’.

   [1]Australian Consumer Law, s 18.

   [2]Ibid, s 20, s 21.

   [3]Ibid, s 54.

   [4]Ibid, s 55.

   [5]Ibid, s 56.

   [6]Ibid, s 57.

   [7]Ibid, s 58.

   [8]Ibid, s 59.

   [9]Ibid, s 60.

   [10]Ibid, s 61.

   [11]Ibid, s 62.

8. In Walker v Sell,[12] Bromwich J held that the private sale of a motor vehicle through a classified advertisement on Gumtree was not in trade or commerce because it was not done in the course of a business activity or arising in a business context.

   [12][2016] FCA 1259, [76].

9. It follows that the Tribunal does not have jurisdiction to hear the application under

   
   

   s 50A of the Fair Trading Act, nor for that matter under s 14 of Schedule 1 to the Motor Dealers and Chattel Auctioneers Act 2014 (Qld).

10. The application is therefore dismissed.