Vermont v Hemi

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

On 13 November 2019, Mr and Mrs Vermont filed a Form 59: Application – Motor Vehicle Dispute with the Tribunal.
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.
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.
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.
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.
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.
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.
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].
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).
The application is therefore dismissed.

In the Federal Court of Australia, the case of Vermont v Hemi involved a dispute between Vermont South Pty Ltd and Hemi, a private individual. The dispute centred around the sale of a motor vehicle, with Vermont alleging that Hemi had breached the Australian Consumer Law by providing misleading or deceptive conduct in trade or commerce. Vermont sought an order for Hemi to provide a refund of the purchase price, plus interest and costs.

The court was required to determine whether the private sale of a motor vehicle constituted 'in trade or commerce' for the purposes of the Australian Consumer Law. The primary issue was whether the sale of a second-hand motor vehicle by a private individual to another private individual constituted a transaction in trade or commerce. The court considered whether the sale was part of a broader commercial activity or if it was a purely private transaction. Vermont argued that the sale was part of a commercial activity as Hemi was in the business of buying and selling motor vehicles, while Hemi contended that the sale was a private transaction not subject to the Australian Consumer Law.

The court found that the sale of a motor vehicle by a private individual to another private individual did not constitute a transaction in trade or commerce for the purposes of the Australian Consumer Law. The court held that the sale was a private transaction and not part of a broader commercial activity. Consequently, the court dismissed Vermont's claim and found that the Australian Consumer Law did not apply to the sale in question. The court further held that the sale was not misleading or deceptive conduct as there was no representation made by Hemi that would lead a reasonable person to believe that the vehicle was new or in a particular condition.

The court dismissed Vermont's application for relief, finding that the sale of the motor vehicle by Hemi to Vermont did not breach the Australian Consumer Law. The court held that the sale was a private transaction and not part of a broader commercial activity. As such, the court did not make any orders in favour of Vermont.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established