Wheatcroft v Garry Crick's (Nambour) Pty Ltd
[2022] QCAT 49
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Wheatcroft v Garry Crick’s (Nambour) Pty Ltd [2022] QCAT 49
PARTIES: ASHTON WHEATCROFT (applicant)
V
GARRY CRICK’S (NAMBOUR) PTY LTD (respondent)
APPLICATION NO/S:
MVL040-21
MATTER TYPE:
Motor vehicle matters
DELIVERED ON:
2 February 2022
HEARING DATE:
27 January 2022
HEARD AT:
Brisbane
DECISION OF:
Member Cranwell
ORDERS: 1. Ashton Wheatcroft is required to return the motor vehicle the subject of these proceedings to Garry Crick’s (Nambour) Pty Ltd within 21 days of the date of these orders.
2. Within seven days of the motor vehicle being returned to it, Garry Crick’s (Nambour) Pty Ltd must either:
(a) pay Ashton Wheatcroft the amount of $34,500; or
(b) file an application seeking to have the proceeding reopened.
CATCHWORDS: TRADE AND COMMERCE – COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION – CONSUMER PROTECTION – GUARANTEES, CONDITIONS AND WARRANTIES IN CONSUMER TRANSACTIONS – GUARANTEES, CONDITIONS AND WARRANTIES – whether motor vehicle of acceptable quality – whether failure to comply with consumer guarantee a major failure – whether goods rejected during the rejection period – whether consumer entitled to refund
Australian Consumer Law, s 54, s 259, s 260, s 262,
s 263Competition and Consumer Act 2010 (Cth), Schedule 2
Fair Trading Act 1989 (Qld), s 50A
ACH Computing Pty Ltd v Austral Pty Ltd trading as
Allcroft & Anor v Shem-mell Pty Ltd trading as Capalaba Car World [2021] QCAT 386
Brisbane City Jaguar Land Rover [2020] QCAT 176
Crawford v Sunco Motors Pty Ltd [2021] QCAT 183
Foley v Westco Cairns Pty Ltd [2020] QCAT 345
Haisman v Drive (Aust) Pty Ltd [2020] QCAT 44
Kablar Financial Services Pty Ltd v LSH Auto (Brisbane) Pty Ltd trading as Mercedes-Benz Brisbane [2020] QCAT 346
Laceur v Townsville Auto Group Pty Ltd & Anor [2021] QCAT 247
Lawless v Austral Pty Ltd trading as Brisbane City Land Rover [2021] QCAT 297
Medtel Pty Ltd v Courtney (2003) 130 FCR 182
Morphy v Beaufort Townsville Pty Ltd [2018] VCAT 1520
Rigby v LDV Automotive Pty Ltd & Anor [2021] QCAT 316Sullivan & Anor v James Frizelle’s Automotive Group Pty Ltd [2021] QCAT 49
APPEARANCES & REPRESENTATION:
Applicant:
Self-represented
Respondent:
Self-represented
REASONS FOR DECISION
On 26 February 2021, Ashton Wheatcroft (‘the applicant’) filed an Application – Motor Vehicle Dispute with the Tribunal. The respondent is Garry Crick’s (Nambour) Pty Ltd (‘the respondent’).
The applicant is the owner of a 2018 Renault Trafic van (‘the motor vehicle’).
The applicant purchased the motor vehicle from the respondent on 19 October 2018 for $34,500.
The applicant seeks relief under the Australian Consumer Law, which is Schedule 2 to the Competition and Consumer Act 2010 (Cth). The relief sought by the applicant is a refund plus damages.
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 the Australian Consumer Law.
Guarantee of acceptable quality
Section 54(1) of the Australian Consumer Law provides that, where a person supplies goods in trade or commerce, the goods are guaranteed to be of ‘acceptable quality’.
The time at which goods are to be of acceptable quality is the time at which the goods are supplied to the consumer: Medtel Pty Ltd v Courtney (2003) 130 FCR 182 at [64] and [70]. 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) acceptable in appearance and finish; 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
(c) any statements made about the goods on any packaging or label on the goods; and
(d) any representation made about the goods by the supplier or manufacturer of the goods; and
(e) any other relevant circumstances relating to the supply of the goods.
The Macquarie Dictionary defines the word ‘defect’ to mean ‘a fault’ or ‘imperfection’.
The Macquarie Dictionary defines ‘durable’ as ‘having the quality of lasting or enduring of or relating to goods which will be good for some time, as opposed to those intended to be used or consumed immediately’.
Evidence
The applicant gave the following written evidence:
(a)Shortly after delivery of the motor vehicle, the applicant started to notice excessive on start up like a low oil pressure noise. This issue was raised with the respondent at the first service.
(b)In August 2019, the issue was diagnosed by Village Motors as worn timing chains. Repairs were undertaken under warranty, including to the timing chain, tensioners and oil pump. The hands free microphone was also replaced, and the sliding door adjusted due to a warning light issue. These repairs took approximately four weeks.
(c)The issues re-emerged shortly after repairs. The motor vehicle was left with Village Motors for a two week period, but they were unable to diagnose the fault.
(d)In late June and early July 2020, the applicant began having trouble with gear selection and clutch operation. The motor vehicle was towed to the respondent on 7 July 2020, where the fault was diagnosed as an internal failure of the clutch master cylinder and a new master cylinder was fitted. The motor vehicle was returned to the applicant on 14 July 2020.
(e)On 17 August 2020, the applicant experienced a complete failure of the starter motor. The motor vehicle was diagnosed as suffering an internal failure of the starter motor. The motor vehicle was left with the respondent from 17 August 2020 to 16 September 2020 while a starter motor was sourced from France. During this time, the clutch master cylinder was replaced again along with the clutch pedal assembly due to a re-emergence of the previous issue.
(f)On 8 December 2020, the motor vehicle was again towed to the respondent. The motor vehicle was subsequently diagnosed as having dual mass flywheel failure. A new flywheel was ordered from France, and the motor vehicle was returned to the applicant on 12 January 2021.
(g)On 7 May 2021, the motor vehicle was towed again to the respondent. The gear cables and shifter assembly were replaced, and the motor vehicle was returned to the applicant on 11 May 2021.
The respondent also gave written evidence, which did not materially dispute the applicant’s evidence. In these circumstances, I accept the applicant’s evidence as set out above. However, I would note that on my calculations the motor vehicle was off the road for repairs for 16 weeks between the time of purchase and the date the application was filed with the Tribunal. This is slightly less than the 18 or 20 weeks claimed by the applicant.
The respondent noted in its evidence that long-term loan vehicles were provided to the applicant where available. The respondent also made good faith attempts to resolve the issues with the applicant by offering both warranty and purchase solutions. While commendable, these are not relevant to my determination.
I find that a reasonable consumer fully acquainted with the state of the motor vehicle at the time of purchase, particularly having regard to:
(a)the motor vehicle having been off the road for repairs for 16 weeks in the first two and a half years of the applicant’s ownership;
(b)the purchase price of $34,500; and
(c)the motor vehicle being new,
would not regard the motor vehicle as free from defects and durable.
Remedies
The remedy available to the consumer against the supplier depends in the first instance on whether the failure is a ‘major failure’. That term is defined in s 260 of the Australian Consumer Law to relevantly mean:
(1) A failure to comply with a guarantee referred to in section 259(1)(b) that applies to a supply of goods is a major failure if:
(a) the goods would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of the failure; or
(b) the goods depart in one or more significant respects:
(i) if they were supplied by description—from that description; or
(ii) if they were supplied by reference to a sample or demonstration model—from that sample or demonstration model; or
(c) the goods are substantially unfit for a purpose for which goods of the same kind are commonly supplied and they cannot, easily and within a reasonable time, be remedied to make them fit for such a purpose; or
(d) the goods are unfit for a disclosed purpose that was made known to:
(i) the supplier of the goods; or
(ii) a person by whom any prior negotiations or arrangements in relation to the acquisition of the goods were conducted or made;
and they cannot, easily and within a reasonable time, be remedied to make them fit for such a purpose; or
(e) the goods are not of acceptable quality because they are unsafe.
The test of whether there is a major failure for the purposes of s 260 and the test for whether goods are of acceptable quality for the purposes of s 54 both adopt a ‘reasonable consumer’ benchmark. For the reasons already given, I find that the defects with motor vehicle are such that a reasonable consumer, fully acquainted with the nature and extent of the failure, would not have acquired the motor vehicle. In particular, a reasonable consumer would not expect to have to a new vehicle off the road for 16 weeks in the first two and a half years of ownership.
I note that this conclusion is consistent with that reached by the Tribunal in many other cases, including Haisman v Drive (Aust) Pty Ltd [2020] QCAT 44, ACH Computing Pty Ltd v Austral Pty Ltd trading as Brisbane City Jaguar Land Rover [2020] QCAT 176, Foley v Westco Cairns Pty Ltd [2020] QCAT 345, Kablar Financial Services Pty Ltd v LSH Auto (Brisbane) Pty Ltd trading as Mercedes-Benz Brisbane [2020] QCAT 346, Sullivan & Anor v James Frizelle’s Automotive Group Pty Ltd [2021] QCAT 49, Crawford v Sunco Motors Pty Ltd [2021] QCAT 183, Laceur v Townsville Auto Group Pty Ltd & Anor [2021] QCAT 247, Lawless v Austral Pty Ltd trading as Brisbane City Land Rover [2021] QCAT 297, Rigby v LDV Automotive Pty Ltd & Anor [2021] QCAT 316 and Allcroft & Anor v Shem-mell Pty Ltd trading as Capalaba Car World [2021] QCAT 386.
In order to obtain a refund, the consumer is required to reject within the ‘rejection period’. That term is defined in s 262(2) of the Australian Consumer Law to mean:
(2) The rejection period for goods is the period from the time of the supply of the goods to the consumer within which it would be reasonable to expect the relevant failure to comply with a guarantee referred to in section 259(1)(b) to become apparent having regard to:
(a) the type of goods; and
(b) the use to which a consumer is likely to put them; and
(c) the length of time for which it is reasonable for them to be used; and
(d) the amount of use to which it is reasonable for them to be put before such a failure becomes apparent.
In Morphy v Beaufort Townsville Pty Ltd [2018] VCAT 1520 at [86], the Victorian Civil and Administrative Tribunal held that, while the rejection period did not necessarily correlate with the manufacturer’s warranty period, the warranty period was relevant in considering whether the rejection period had expired:
[A]t the time of the rejection, the motor car remained under a three year/100,000 kilometre manufacturer’s warranty. In determining if the rejection period has ended, the Tribunal is not bound by the warranty period given by an express manufacturer’s warranty. Nevertheless, the express warranty period is relevant evidence of the expected period of largely problem-free use of goods.
The applicant wrote to the respondent requesting a refund or replacement of the motor vehicle on 7 January 2021. I note that this letter was written was during the second extended period that the motor vehicle was in for repairs awaiting parts from France. In the context of the motor vehicle having a three year warranty, I am satisfied that the applicant rejected the motor vehicle within the rejection period.
In Haisman v Drive (Aust) Pty Ltd [2020] QCAT 44 at [24], I found that the Tribunal has jurisdiction to make an order requiring the supplier to pay to the consumer a stated amount of money, namely the amount of the refund payable under s 263(4)(a). In this case, the applicant has notified the respondent that the goods have been rejected in accordance with s 263(1) of the Australian Consumer Law. I will give effect to the requirement in s 263(2) that the goods be returned by so ordering. Upon the return of the motor vehicle, the applicant will be entitled to a refund pursuant to s 263(4).
Damages
The Tribunal is vested with jurisdiction in respect of actions under s 259(4) of the Australian Consumer Law, which provides:
The consumer may, by action against the supplier, recover damages for any loss or damage suffered by the consumer because of the failure to comply with the guarantee, if it was reasonably foreseeable that the consumer would suffer such loss or damage as a result of such a failure.
In Vautin v BY Winddown, Inc (formerly Bertram Yachts) (No 4) [2018] FCA 426 at [294], Derrington J stated:
It would appear that this subsection is concerned with the recovery of ‘reliance losses’ as the inclusion of the limitation of ‘reasonable foreseeability’ pertains to such losses rather than expectation losses.
The applicant has claimed $30,000 to $40,000 in damages for loss of income. It appears to me that this is properly to be classified as an expectation loss, and accordingly is not recoverable. In any event, the applicant did not provide any accounts for his business or other evidence which would enable me to quantify any damages suffered by him. Unsupported claims are not sufficient to prove loss.
Condition of the motor vehicle as at the date of hearing
During the course of submissions, the applicant disclosed that the motor vehicle had sustained hail damage, and that the rear wiper had also been damaged in a separate incident. As at the date of hearing, the motor vehicle was being repaired under an insurance claim made by the applicant. It was estimated that the repairs would take two weeks.
Given the late disclosure by the applicant, there was no evidence before me as to the nature of the damage and when it occurred. The respondent indicated that it would not take issue with the damage for the purposes of the proceeding, provided the damage is repaired by the time the motor vehicle is returned.
In the circumstances, the terms of my orders will provide sufficient time for the applicant to have the motor vehicle repaired prior to return. My orders will also provide the respondent with an opportunity to inspect the motor vehicle prior to giving the applicant a refund. If the respondent wishes to raise issues with the condition of the motor vehicle upon return, it may apply to have the proceeding reopened and to file further evidence.
Orders
The orders of the Tribunal are:
1. The applicant is required to return the motor vehicle the subject of these proceedings to the second respondent within 21 days of the date of these orders.
2. Within seven days of the motor vehicle being returned, the respondent is to either:
(a)pay to the applicant the amount of $34,500; or
(b)file an application seeking to reopen the proceeding.
13
0