Voicu v Volkswagen Group Australia Pty Ltd - [2022] QCAT 217

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Voicu v Volkswagen Group Australia Pty Ltd & Anor [2022] QCAT 217

PARTIES:

GEORGE ADRIAN VOICU

(applicant)

v

VOLKSWAGEN GROUP AUSTRALIA PTY LTD

(respondent)

PICKERING AUTO GROUP PTY LTD

(respondent)

APPLICATION NO/S:

MVL127-21

MATTER TYPE:

Motor vehicle matter

DELIVERED ON:

8 June 2022

HEARING DATE:

19 May 2022

HEARD AT:

Brisbane

DECISION OF:

Member Goodman

ORDERS:

The application is dismissed.

CATCHWORDS:

TRADE AND COMMERCE – COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION – CONSUMER PROTECTION – GUARNATEES, CONDITIONS AND WARRANTIES INCONSUMER TRANSACTIONS – whether motor vehicle of acceptable quality – whether motor vehicle may be rejected after written off in floods – whether respondents liable for costs incurred due to delay in repairs by third party

Competition and Consumer Act 2010 (Cth), Schedule 2

Australian Consumer Law, s 54, s 55, s 64, s 260, s 262, s 271

Fair Trading Act 1989 (Qld), s 50A

APPEARANCES & REPRESENTATION:

Applicant:

Self represented

First Respondent:

Second respondent:

Mr A Dowling

Mr A Stitt

REASONS FOR DECISION

Mr Voicu purchased a Volkswagen Passat from Pickering Auto Group (PAG) on 20 May 2019, and took possession on 22 May 2019. The total purchase price was $43,118 and included an extended 5 year warranty, to expire 30 October 2023.
After the payment of a deposit, Mr Voicu borrowed $35,919 from Volkswagen Financial Services Australia Pty Ltd to fund the purchase. The loan was to be repaid over 48 months at a rate of approximately $906.69 each month. Ultimately, he was to repay a total amount of loan instalments of $43,521.21.
In March 2021, Mr Voicu noticed difficulties with the car misfiring, and a service was scheduled for 18 March 2021 at Austral Volkswagen (AV) in Newstead, which was his closest dealer. At that stage, the car had been driven for 111,159 kms.
AV are not part of these proceedings in the Tribunal. There is limited information available regarding the repairs and the process undertaken by AV. It is common ground that the car was with AV for some 20 weeks. Mr Voicu states that this was due to AV being unable to determine the cause of the misfiring. He says that while there was one three week delay due to waiting for a part to arrive from Germany, there was otherwise no significant delay because of difficulty in finding parts.
At some stage, Mr Voicu requested VGA buy the car back. On 3 June 2021, VGA emailed Mr Voicu to advise that his request for a buyback was not approved, noting that parts or systems that fail or cease functioning correctly within the warranty period are repaired or replaced free of charge.
On 9 June 2021, an employee of AV detailed in an email the various work and investigations that had been completed in attempting to find the source of the misfiring, and noting that assistance had been sought from “Volkswagen technical” on 26 March 2021. As at 9 June 2021, the engine was still misfiring.
On 15 June 2021, Mr Voicu lodged an application with this Tribunal, stating that he had been advised that the Volkswagen technical team had identified a number of faults but to date had been unable to fix the car.
In his application, Mr Voicu sought reimbursement of the purchase price and other out of pocket expenses for the period he was unable to use the car.
The misfiring issue was ultimately dealt with, and Mr Voicu collected the car from AV on 5 August 2021. On around 11 August 2021, Mr Voicu and VAG reached an agreement regarding the resolution of this application before the Tribunal. Before the application could be withdrawn, however, further difficulties arose.
Mr Voicu emailed VGA on 14 August 2021 stating
I do not want anymore to continue with this settlement, as today we had again issues with the car….My wife … felt a very strong petrol smell inside the car… on Monday morning I will contact AV to send a towing truck to come and pick it up, as I do not want to drive this car anymore. I will proceed further with my case with QCAT, as do not have confidence to drive this car and cannot sell a car like this and put someone else at risk.
The car was returned to AV on 16 August 2021 for further repair. On 20 August 2021, Mr Voicu was advised that the car had been repaired and was ready to be collected. Mr Voicu refused to collect the car as these proceedings had been commenced, and he was seeking a full refund of the costs he had incurred. He did not seek a replacement car as he had already purchased another car.
On 20 December 2021, an Independent Assessor conducted an assessment of the motor vehicle, noting that complaints had been made about an engine misfire and fuel leak. He noted:
(a)No evidence of a misfire or fuel leak found;
(b)Evidence that the engine’s components had been slightly scuffed or opened to rectify the previous defect;
(c)The vehicle showed a “please have your vehicle inspected” notification on the dash - this was due to it being due for an inspection;
(d)A loose bolt required tightening before the vehicle was driven;
(e)No contamination was found in the coolant or oil;
(f)A noise from the RH front CV shaft was noted – this would require a CV shaft replacement, which would entail approximately 1-3 hours of labour;
(g)The defects previously noted (fuel leak and engine misfire) were unlikely to have been present at the time of purchase; and
(h)The likely cause of the defects were: engine misfire caused by micro fracture / crack of head, now replaced, fuel leak likely caused by fuel return fault, now corrected.
Based on the report of the independent assessor, I am satisfied that the vehicle did not present with defects (except for the work required on the front CV shaft) as at 20 December 2021. The evidence is that the work to rectify the fuel leak and the engine misfire had been completed by AV by 20 August 2021, and so I am satisfied that the vehicle did not present with defects (except for the work required on the front CV shaft) as at 20 August 2021. VAG describe the front CV shaft issue as a “wear and tear issue”. There is no particular evidence as to the cause of that issue.
The independent assessor states that the fuel leak and engine misfire were unlikely to have been present at the time of purchase. This is supported by the evidence that Mr Voicu drove the vehicle 111,159 kms between May 2019 and March 2021 before reporting the misfiring.
The car remained at AV until it was written off following floods in February 2022. As a result, Mr Voicu lodged an insurance claim and his claim for $28,900 (the agreed value of the car) was paid out. $12,307.62 was paid towards the remaining moneys due under the loan agreement. After the payment of excess and outstanding premiums, Mr Voicu received $15,814.54.
Mr Voicu then wrote to the Tribunal clarifying his claim. In a letter received on 19 April 2022, Mr Voicu provided details of the insurance claim and stated that the “balance to be paid” was $39,802.81, calculated as follows (in his own words):
(a)Purchasing cost:
(i)      Down payment $8,624
(ii)      Loan finance $43521.21 - $386.13 (rebate for early payment) = $43135.08
Total cost purchase $51759.08
(b)Rego costs (from 18.03.2021 up to date)
343.68 + 454.25 + 454.25 = $1252.53
Total cost rego $1252.53
(c)Insurance costs (from 18.03.2021 up to date)
-     From 18.03.2021 to 22.05.2021 - $374.50
-     From 23.05.2021 to date $1479.24
Total cost insurance $1853.74
(d)QCAT file costs
-     Opening file fee $352
-     Assessor fee $400

Total costs $51759.08 + $1252.53 + $1853.74 +752 = $55617.35
Paid by insurance at settlement: $15814.54
Balance to be paid $39802.81

Some time was spent in the hearing attempting to clarify the claimed amount. The purchase price of the car was $43,118, as per the contract. I do not propose to add in the amount of interest payable on the loan when calculating the purchase price. There is no evidence that a “down payment” was paid in excess of the purchase price. The purchase price of the vehicle was $43,118.
In relation to the insurance payment of $28,900, it is not clear why Mr Voicu has not deducted the entire amount of the claim from the amount sought. As noted above, the agreed value of the car was $28,900 and that was the amount which was paid out under the insurance claim.
Mr Voicu has referred the Tribunal to consumer safeguards provided under Australian Consumer Law (ACL), which is Schedule 2 to the Competition and Consumer Act 2010 (Cth). 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 ACL.
Mr Voicu states that, under the legislation, he is entitled to a replacement of the car, or a full refund. He submits that there should be no allowance made for depreciation.
ACL Part 3-2 regulates transactions with consumers by implying into consumer contracts certain guarantees which are intended to protect the interests of consumers. In particular, the ACL implies a guarantee that the car was of acceptable quality[1] and fit for purpose[2]. These terms cannot be excluded, modified or restricted by contract[3].
[1]ACL s54.
[2]ACL s55.
[3]ACL s64.
The time at which the goods are to be of acceptable quality is the time at which the goods are supplied to the consumer. 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)… 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
…
(e)any other relevant circumstances relating to the supply of the goods.
ACL Part 5-4 sets out the remedies available to Mr Voicu if the car did not comply with the consumer guarantees. Action may be taken against the supplier, and also against the manufacturer.
In relation to the action against PGA, if non-compliance with the consumer guarantees is a major failure or cannot be remedied by the business, the consumer can reject the goods (return them for a refund or replacement) or require the business to pay the difference between the value of the goods and the price paid for them. A failure to comply with a guarantee is a “major failure” if the goods would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of the failure, or are substantially unfit for a purpose for which goods of that kind are commonly supplied and they cannot, easily and within a reasonable time, be remedied to make them fit for such a purpose, or are unsafe[4].
[4]ACL s 260.
A consumer loses the right to reject the goods (return them for a replacement or refund) if the goods have been disposed of by the consumer[5].
[5]ACL s 262.
In this case, the car is no longer owned by Mr Voicu. He has, therefore, lost his right to reject the goods.
In any event, I am satisfied that the car was of acceptable quality at the time it was supplied to Mr Voicu. That is the evidence of the independent assessor and Mr Voicu drove the car a significant distance over 22 months before the misfiring issue arose. Mr Voicu has not, therefore, established non-compliance with the consumer guarantees related to the sale of the car.
Mr Voicu’s complaints have arisen out of the 20 week delay in the repair of the misfiring, and the subsequent fuel issue. This is an unusual case where the repairers were not the original suppliers, and there is no independent evidence as to an explanation for the 20 week delay. I am not satisfied that the supplier, PAG, is responsible for the delay in delivering the repairs, or any costs incurred by Mr Voicu on account of the delay.
The manufacturer VGA is also named as a respondent in these proceedings. Mr Voicu seeks compensation from VGA on the basis that a consumer guarantee in relation to the supply of the goods has not been complied with[6]. VGA submits that, as manufacturer, their responsibility was to comply with consumer guarantees and repair defects within the warranty period, which they did.
[6]ACL s271.
ACL provides that if an implied guarantee under s 54 is not complied with, Mr Voicu may recover damages from the manufacturer in some circumstances[7]. I accept the evidence that Mr Voicu was frustrated and annoyed with the amount of time taken to complete the repairs. The manufacturer did, however, repair the misfiring and fuel issues under warranty.
[7]ACL s271.
I am satisfied that car did not have defects at the time of sale. I accept that issues subsequently arose. That is an acknowledged risk of car ownership, and were dealt with appropriately under the warranty. The car was eventually repaired.
Mr Voicu has now lost his right to reject the vehicle. The issues with misfiring and fuel leakage were repaired under warranty. The delay in the repair was outside of the control of either of these respondents.
This application is dismissed.