Doonan v Mahindra Automotive Australia Pty Ltd & Anor [2026] QCAT 231

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Doonan v Mahindra Automotive Australia Pty Ltd & Anor [2026] QCAT 231 PARTIES: TERRY MICHAEL DOONAN (applicant) KIRSTY LEE DOONAN (applicant) v MAHINDRA AUTOMOTIVE AUSTRALIA PTY LTD (respondent) IAN WEIGH MOTORS PTY LTD T/A IAN WEIGH MAHINDRA (respondent) APPLICATION NO/S: MVL001-24, MVL050-24 MATTER TYPE: Motor vehicle matter DELIVERED ON: 18 May 2026 HEARING DATE: 10 February 2026 HEARD AT: Brisbane DECISION OF: Member Lumb ORDERS: 1. The name of the first-named Respondent is changed to Mahindra Automotive Australia Pty Ltd. 2. The Respondents must pay to the Applicants the sum of $2,546.50 within 21 days of the date the Decision is issued to the parties. 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 applicant purchased a new four wheel drive motor vehicle from the second-named respondent motor dealer – where vehicle imported by first-named respondent – where first-named respondent was a deemed manufacturer under the Australian Consumer Law (Queensland) – where motor vehicle required a number of repairs – whether motor vehicle failed to comply with the consumer guarantee of acceptable quality under the Australian Consumer Law (Queensland) – where applicants claim refund of the purchase price and damages for towing fees – whether any failure to comply -- 1 of 21 -- 2 was a major failure – whether applicant rejected the motor vehicle within the rejection period Australian Consumer Law Queensland, s 54, s 259, s 260, s 261, s 262, s 263 Fair Trading Act 1989 (Qld), s 50, s 50A Medtel Pty Ltd v Courtney [2003] FCAFC 151 Melbourne Roma Caravans & RV’s v Cunningham [2022] VSC 25 Prestige Auto Traders Australia Pty Ltd v Bonnefin [2017] NSWSC 149 Strain v Townsville Auto Group Pty Ltd [2025] QCAT 534 Vautin v BY Winddown, Inc. (formerly Bertram Yachts) (No 4) (2018) 362 ALR 702 Weranga Property and Livestock Enterprises Pty Ltd t/as Ray White Rural Tara v Metis Rex Pty Ltd t/as Metis Machinery [2025] QCATA 92 Williams v Toyota Motor Corporation Australia Ltd (2024) 419 ALR 373 APPEARANCES & REPRESENTATION: Applicant: Self-represented Respondents: Self-represented REASONS FOR DECISION Introduction [1] The Applicants (who I will refer to collectively as ‘the Doonans’) filed the following applications in the Tribunal: (a) an Application – Motor Vehicle Dispute filed on 14 December 2023, which was given the file number MVL001-24 (‘the MVL001 Application’), against the first-named respondent (‘Mahindra Automotive’); (b) an Application – Motor Vehicle Dispute filed on 13 March 2024, which was given the file number MVL050-24 (‘the MVL050 Application’), against the second-named respondent (‘the Dealer’). [2] By Tribunal Directions dated 27 February 2024 in the MVL001 Application, the Dealer was joined as a second respondent to that Application. [3] By Tribunal Directions dated 15 May 2024 made in each of the Applications, it was directed that the Applications be consolidated (which I will refer to collectively as ‘the Consolidated Application’). It was further directed that Mahindra Automotive and the Dealer were Respondents in the Consolidated Application. [4] The Consolidated Application concerns a Mahindra ‘Pikup’ Dual Cab 4x4 motor vehicle (‘the Vehicle’) purchased new by the Doonans from the Dealer on 20 December 2021 for a price of $46,369.23. Mahindra Automotive was the importer of -- 2 of 21 -- 3 the Vehicle.1 The claim arises out of various issues with the Vehicle which primarily occurred over approximately the first two years of ownership. [5] By the Consolidated Application (as claimed in each of the original applications), the Doonans claim a refund of the whole purchase price of $46,369.23 plus $2,546.50 as ‘monies owing for towing of vehicle for warranty work’. [6] The claim is brought in reliance on the Australian Consumer Law. The Australian Consumer Law text (as defined in s 15 of the Fair Trading Act 1989 (Qld) (‘the FTA’)), as in force from time to time: (a) applies as a law of ‘this jurisdiction’ (that is, Queensland jurisdiction); (b) as so applying, may be referred to as the ‘Australian Consumer Law (Queensland)’ (which I will refer to as ‘the ACL (Qld)’); and (c) as so applying, is a part of the FTA.2 [7] As a preliminary matter, I order that Mahindra Automotive’s name is changed to its correct name, Mahindra Automotive Australia Pty Ltd (previously named in the proceeding as ‘Mahindra Automotive Australia’).3 Jurisdiction [8] For the reasons I set out in Strain v Townsville Auto Group Pty Ltd,4 I find that the Tribunal has jurisdiction to order a refund if such an entitlement is established by the Doonans (although, as addressed below, relief by way of refund is not, in point of law, available against Mahindra Automotive). Further, I am satisfied that, with respect to the towing charges, the Tribunal has jurisdiction to make an order for payment of those moneys. The agreed order for payment of the towing fee [9] At the hearing, both Mahindra Automotive and the Dealer agreed to an order that they pay to the Doonans the sum of $2,546.50 within 21 days of the date of the Decision (for the towing of the Vehicle for warranty work after the Vehicle broke down).5 The claim for a refund against Mahindra Automotive [10] As noted above, the Doonans filed the MVL001 Application on 14 December 2023. However, it appears from the affidavit of service filed by the Doonans that the application was not posted to the registered office of Mahindra Automotive until 10 January 2024.6 Service would not be taken to have been effected until the time at which the Application would be delivered in the ordinary course of post.7 At the hearing, Mahindra Automotive denied receipt of the MVL001 Application, but I find that it was properly posted to the then registered office of Mahindra Automotive.8 1 Transcript T1-3 lines 41-44. 2 FTA s 16. 3 No objection was taken to this course at the hearing by any party. 4 [2025] QCAT 534, [12]–[16]. 5 Transcript T1-33 lines 13-33. 6 See the Affidavit of service filed on 17 January 2024. 7 Weranga Property and Livestock Enterprises Pty Ltd t/as Ray White Rural Tara v Metis Rex Pty Ltd t/as Metis Machinery [2025] QCATA 92, [46]–[51]. 8 See Current Company Extract of Mahindra Automotive Australia Pty Ltd filed on 9 January 2024. -- 3 of 21 -- 4 [11] However, can the Doonans claim a refund of the purchase price on the basis of any major failure as against Mahindra Automotive? [12] The ACL (Qld) provides remedies against manufacturers of goods. [13] Section 7 of the ACL (Qld) contains an extended definition of ‘manufacturer’. Relevantly to this case, the reference to a ‘manufacturer’ includes a person who imports goods into Australia if, first, the person is not the manufacturer of the goods; and, second, at the time of the importation, the manufacturer of the goods does not have a place of business in Australia.9 Mahindra Automotive is not the manufacturer of the Vehicle. There is no evidence to suggest that the actual manufacturer of the Vehicle has a place of business in Australia. [14] Section 271 of the ACL (Qld) provides for recovery of damages against a manufacturer for non-compliance with the statutory guarantee under s 54 of the ACL. Damages are assessed in accordance with s 272 of the ACL. [15] As against a manufacturer, the ACL does not provide for a consumer to reject the goods on the basis of a ‘major failure’. It follows that a refund is not available to the Doonans against Mahindra Automotive, only damages pursuant to s 272 of the ACL (Qld). Mahindra Automotive has agreed to pay the amount sought by way of damages. [16] The Doonans’ only possible recourse for a refund is against the Dealer. Provisions and principles relevant to the claim against the Dealer [17] Section 54 of the ACL (Qld) provides: (1) If: (a) a person supplies, in trade or commerce, goods to a consumer; and (b) the supply does not occur by way of sale by auction; there is a guarantee that the goods are of acceptable quality. (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 9 ACL (Qld) s 7(1)(e). -- 4 of 21 -- 5 (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. (4) If: (a) goods supplied to a consumer are not of acceptable quality; and (b) the only reason or reasons why they are not of acceptable quality were specifically drawn to the consumer’s attention before the consumer agreed to the supply; the goods are taken to be of acceptable quality. (5) If: (a) goods are displayed for sale or hire; and (b) the goods would not be of acceptable quality if they were supplied to a consumer; the reason or reasons why they are not of acceptable quality are taken, for the purposes of subsection (4), to have been specifically drawn to a consumer’s attention if those reasons were disclosed on a written notice that was displayed with the goods and that was transparent. (6) Goods do not fail to be of acceptable quality if: (a) the consumer to whom they are supplied causes them to become of unacceptable quality, or fails to take reasonable steps to prevent them from becoming of unacceptable quality; and (b) they are damaged by abnormal use. (7) Goods do not fail to be of acceptable quality if: (a) the consumer acquiring the goods examines them before the consumer agrees to the supply of the goods; and (b) the examination ought reasonably to have revealed that the goods were not of acceptable quality. [18] The relevant test in s 54(2) of the ACL (Qld) is an objective test based on whether a reasonable consumer who was aware of the ‘defects’ in the goods at the time of the supply would have considered them to be of acceptable quality.10 In determining what is objectively reasonable for a consumer to expect, at least in a case of a hidden defect, the relevant information known as at the time of the trial, including ‘after-acquired knowledge’ may be taken into account.11 Defects in goods (here, the Vehicle) must exist at the time of supply but may not manifest themselves until after supply.12 10 Prestige Auto Traders Australia Pty Ltd v Bonnefin [2017] NSWSC 149, [132] (‘Prestige Auto’). 11 Williams v Toyota Motor Corporation Australia Ltd (2024) 419 ALR 373, [33]; Prestige Auto [132] (citing Medtel Pty Ltd v Courtney (2003) 130 FCR 182, [66], [70]). 12 Vautin v BY Winddown, Inc (formerly Bertram Yachts) and Another (No 4) (2018) 362 ALR 702, [264]. -- 5 of 21 -- 6 [19] In Vautin v BY Winddown, Inc (formerly Bertram Yachts) and Another (No 4)13 (‘Vautin’), the following was said by R Derrington J:14 It must also be remembered that, in relation to the non-compliance with the requirements of s 54, the issue of non-compliance concerns the state of the goods at the time of supply. It does not concern the state of the goods at some later time when the defect manifests itself. Therefore, where a latent defect results in the manifestation of a deficiency in the goods at some subsequent date, one element in it becoming apparent that the guarantee in s 54 was not complied with is knowledge that the defect, which was latent in the goods at the time of the supply, was causative of the manifested deficiency … (emphasis added) [20] Section 259 provides: (1) A consumer may take action under this section if: (a) a person (the supplier) supplies, in trade or commerce, goods to the consumer; and (b) a guarantee that applies to the supply under Subdivision A of Division 1 of Part 3-2 (other than sections 58 and 59(1)) is not complied with. (2) If the failure to comply with the guarantee can be remedied and is not a major failure: (a) the consumer may require the supplier to remedy the failure within a reasonable time; or (b) if such a requirement is made of the supplier but the supplier refuses or fails to comply with the requirement, or fails to comply with the requirement within a reasonable time—the consumer may: (i) otherwise have the failure remedied and, by action against the supplier, recover all reasonable costs incurred by the consumer in having the failure so remedied; or (ii) subject to section 262, notify the supplier that the consumer rejects the goods and of the ground or grounds for the rejection. (3) If the failure to comply with the guarantee cannot be remedied or is a major failure, the consumer may: (a) subject to section 262, notify the supplier that the consumer rejects the goods and of the ground or grounds for the rejection; or (b) by action against the supplier, recover compensation for any reduction in the value of the goods below the price paid or payable by the consumer for the goods. (4) The consumer may, by action against the supplier, recover damages for any loss or damage suffered by the consumer because of the failure to 13 (2018) 362 ALR 702. 14 Ibid [263]. -- 6 of 21 -- 7 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. (5) Subsection (4) does not apply if the failure to comply with the guarantee occurred only because of a cause independent of human control that occurred after the goods left the control of the supplier. (6) To avoid doubt, subsection (4) applies in addition to subsections (2) and (3). (7) The consumer may take action under this section whether or not the goods are in their original packaging. [21] There is no dispute that, and I find that: (a) the Dealer supplied, in trade or commerce, ‘goods’ (namely, the Vehicle) to the Doonans as a ‘consumer’; (b) the guarantee under s 54 of the ACL (Qld) applied to the supply of the Vehicle. [22] Section 260 provides, relevantly: (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 … (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; … (e) the goods are not of acceptable quality because they are unsafe. (2) A failure to comply with a guarantee referred to in section 259(1)(b) that applies to a supply of goods is also a major failure if: (a) the failure is one of 2 or more failures to comply with a guarantee referred to in section 259(1)(b) that apply to the supply; and (b) the goods would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of those failures, taken as a whole. Note: The multiple failures do not need to relate to the same guarantee. (3) Subsection (2) applies regardless of whether the consumer has taken action under section 259 in relation to any of the failures. [23] In order to establish a major failure for the purposes of s 260, a consumer need only establish one of the matters set out in s 260(1)(a) to (e).15 Further, s 260(2) provides that a failure to comply with a guarantee is also a major failure if the failure is one of 2 or more failures to comply with a guarantee referred to in s 259(1)(b) that apply to 15 Melbourne Roma Caravans & RV’s v Cunningham [2022] VSC 25, [104]. -- 7 of 21 -- 8 the supply and the goods would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of those failures, taken as a whole. Each of those failures must exist at the time of supply. [24] Section 262 provides: (1) A consumer is not entitled, under section 259, to notify a supplier of goods that the consumer rejects the goods if: (a) the rejection period for the goods has ended; or (b) the goods have been lost, destroyed or disposed of by the consumer; or (c) the goods were damaged after being delivered to the consumer for reasons not related to their state or condition at the time of supply; or (d) the goods have been attached to, or incorporated in, any real or personal property and they cannot be detached or isolated without damaging them. (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. [25] Section 263 provides: (1) This section applies if, under section 259, a consumer notifies a supplier of goods that the consumer rejects the goods. (2) The consumer must return the goods to the supplier unless: (a) the goods have already been returned to, or retrieved by, the supplier; or (b) the goods cannot be returned, removed or transported without significant cost to the consumer because of: (i) the nature of the failure to comply with the guarantee to which the rejection relates; or (ii) the size or height, or method of attachment, of the goods. (3) If subsection (2)(b) applies, the supplier must, within a reasonable time, collect the goods at the supplier’s expense. (4) The supplier must, in accordance with an election made by the consumer: (a) refund: (i) any money paid by the consumer for the goods; and -- 8 of 21 -- 9 (ii) an amount that is equal to the value of any other consideration provided by the consumer for the goods; or (b) replace the rejected goods with goods of the same type, and of similar value, if such goods are reasonably available to the supplier. (5) The supplier cannot satisfy subsection (4)(a) by permitting the consumer to acquire goods from the supplier. (6) If the property in the rejected goods had passed to the consumer before the rejection was notified, the property in those goods revests in the supplier on the notification of the rejection. [26] In Vautin, R Derrington J also made the following observations in relation to s 262 and s 263:16 [264] In the definition of “rejection period” the expression “relevant failure” is used. That latter expression must mean that “major failure” to comply with a guarantee on which the consumer relies or is entitled to rely to reject the goods. Where the manifestation of the failure to comply with a guarantee is patent, the period in which it would be reasonable to expect it to become apparent will be relatively short and easy to identify. Where the item acquired does not work at all and the cause of that is the failure of the product rather than the manner of its use, it can be readily inferred that there has been a failure which is the result of the goods not being of an acceptable quality. Different considerations arise where the defect in the goods is latent and the defect does not manifest itself for some period of time. Indeed, even when the latent defect does manifest itself, it may not be clear that the cause is the failure to comply with a guarantee. Additionally, even when a latent defects manifests itself to some degree and the cause is known, it may not be apparent for some time thereafter how the latent defect will, if at all, further manifest itself or what are the consequences of its existence. In Nesbit v Porter the Court of Appeal (NZ) determined that the “reasonable time” for identification of the failure included time for the consumer to become aware of the nature and extent of the defect and what it will cost to fix it. That is, until these matters are known it cannot be said that the failure to comply with a guarantee has “become apparent”. [265] The use of the expression “become apparent” in s 262(2) is also problematical. Something is apparent when it meets the eyes or shows itself, is open to sight, visible or plainly seen (Oxford English Dictionary, online service). Or, as the Macquarie Dictionary defines the word, “capable of being clearly perceived or understood; plain or clear”, “ostensible” or “exposed to sight; open to view”. In other words, the section requires a sufficiently high level of certainty in relation to the knowledge of the relevant failure including its nature and extent and what it will cost to remediate it. If the level of knowledge required is as identified above, it follows that if there exists doubt about the consequences of a defect in an item and, therefore, the cost of repairing it, the failure of the statutory guarantee has not become apparent … … 16 Vautin [264]–[265], [269]. -- 9 of 21 -- 10 [269] It might have been argued that the rejection period ends under s 262 once it is reasonable to expect that the relevant failure can be seen to be a “major failure” within s 260. On such a construction, at that time the consumer will be aware that the defect is serious and they would be entitled to return the goods. However, such a construction tends to confine the rights of consumers and it is not consistent with Nesbit v Porter. Even where a consumer has become aware of the existence of a major failure and the right of rejection, they are still entitled to ascertain the nature and extent of the defect and how much it will cost to repair, before being put to an election … The issues for determination [27] In my view, the following issues arise: (a) whether the Vehicle was of acceptable quality at the time of supply and, if not, what were the respects in which it was not of acceptable quality; (b) if the Vehicle was not of acceptable quality, whether the failure was a ‘major failure’;17 (c) if the failure was a major failure, whether the Doonans rejected the Vehicle and, if so, whether they did so within the ‘rejection period’. Was the Vehicle of acceptable quality at the time of supply? [28] Having regard to s 54(2) of the ACL (Qld), the question is whether the Vehicle was, relevantly, as free from defects or as safe as a reasonable consumer fully acquainted with the state and condition of the Vehicle (including any hidden defects) would regard as acceptable having regard to the matters in s 54(3). [29] Between the time of supply of the (new) Vehicle on 20 December 2021 and the filing of the MVL001 application on 14 December 2023 (approximately two years later), the Doonans experienced a number of issues with the car, each of which was repaired under warranty. [30] Within a month of taking delivery, a missing mud flap and a rear wheel speed sensor required replacement, and the cruise control required recalibration. Given the short period of time between supply and the occurrence of these issues, I am satisfied that the issues were attributable to defects present in the Vehicle at the time of supply. [31] During a service on 4 April 2022, a faulty/damaged bonnet switch was replaced. The note on the tax invoice records that if the bonnet is opened, the hazard lights come on. I accept that a ‘DPF’ sensor was also replaced at that time.18 Again, having regard to the lapse of time between supply and these issues emerging, I am satisfied that they were attributable to defects present in the Vehicle at the time of supply. [32] The next issue occurred on 31 March 2023 (approximately 15 months after supply) when the Vehicle went into limp mode and had to be towed. The issue was identified as a cracked intercooler which required replacement (including the boost pressure actuator). It appears from a tax invoice 23 May 2023 that the Vehicle had then travelled 48,994 kilometres. The Doonans’ timeline document states that they were 17 The evidence did not sustain a case that one or more of the alleged failures to comply with the guarantee could not be remedied. 18 T1-46 lines 11-34. -- 10 of 21 -- 11 25 days without a car. There may be a discrepancy with the date of that tax invoice having regard to the number of kilometres recorded in the Dealer’s subsequent tax invoice of 9 June 2023 (55,511). [33] At the end of May 2023, Mr Doonan noted that the car was going into four-wheel- drive by itself. [34] The Vehicle was serviced by the Dealer on 9 June 2023. The tax invoice indicates that the kilometres travelled at that time was 55,511. The four-wheel-drive system was inspected and checked out ‘okay’, no fault could be identified. During the service, the Dealer found that the front sway bar links, front lower shock bushes, and rear sway bar link bushes were showing signs of wear and these were subsequently replaced. [35] On 5 August 2023, the Vehicle broke down 90 kilometres from Injune. The Doonans managed to drive the Vehicle home but from there it was towed to the dealership for repair on 8 August 2023. The Vehicle was repaired and was then collected on 12 August 2023. The issue identified was a cracked torsion bar adjuster (left-hand side) which required replacement. The tax invoice indicates that the number of kilometres travelled at that time was 62,030. [36] A similar incident occurred on 1 October 2023 requiring the Vehicle to be towed. This breakdown involved the right-hand side torsion bar adjuster. The repair was completed on 9 October 2023. The tax invoice indicated that the Vehicle had travelled 66,941 kilometres at that time. The Doonans were unable to collect the Vehicle until 13 October 2023. [37] In the MVL001 Application, it was stated that the Vehicle had travelled approximately 72,000 kilometres. It follows that the Vehicle travelled approximately 5,059 kilometres since 13 October 2023. [38] At the date of the hearing the Vehicle had travelled 76,278 kilometres. In closing submissions, Mr Doonan said:19 All I was going to say is, the 10,000 k keep coming up that I’ve driven it. We picked it up in October 23, and I stopped driving it just after Christmas 24. And the only time it’s been driven since October 24 – that’s where the 10,000 ks come. Since January 24, I should say, the only time I’ve drove it was when the assessor was here. [39] Given the statement that the only time the Vehicle had been driven since January 2024 was when the assessor was ‘here’ and the number of kilometres recorded in the MVL001 Application, I infer that the Vehicle was driven for a few thousand kilometres between the date of the MVL001 Application and January 2004. [40] In my view, the question that arises on the material is whether the issues that arose with the Vehicle on and from late March 2023 onwards were attributable to defects (or hidden defects) or a lack of durability that existed at the time of supply of the Vehicle to the Doonans. 19 T1-56 lines 16-20. -- 11 of 21 -- 12 The expert evidence [41] The only expert evidence before the Tribunal is a Motor Vehicle Assessment Report dated ‘26/02/2024’20 (‘the Report’)21 provided by Mr Stephen Goddard, Motor Vehicle Assessor. The Report identifies additional issues or potential issues with the Vehicle that were not raised by the Doonans prior to the filing of the MVL001 application. [42] The Report stated, amongst other matters: … 3. Inspection and Observations 3 1 What investigations did you carry out in relation to the motor vehicle? The engine oil and coolant were checked for correct levels during the inspection. Under the bonnet, checks were completed for any signs of leakage, etc. The intercooler fitment was inspected for any signs of reoccurring cracking or failure. The vehicle was road-tested with the applicant checking for - 1/Jumping out of 4* wheel drive 2/The knocking sound from the LHF wheel area 3/Hand brake operation 4/Signs of the engine light illumination Visual inspection of - 5/ Rear differential oil leakage 6/ Audio function 7/ Torsion bar brackets 8/ Rear spring bushes 9/ Broken reverse lamp 3 2 Did you identify any defect or defects currently in existence? If so, please list each defect separately The rear differential seal is leaking The reverse light housing is broken The audio is not functioning correctly There is a knocking sound from the LHF wheel area Rear suspension bushes 3 3 In respect of: • each currently existing defect identified (if any), • any defects complained of by the Applicant which have been previously rectified, The handbrake mechanism has been repaired When driving the vehicle, the engine light did not appear The torsion bar brackets have been replaced A replacement intercooler has been installed 20 The date of the report is plainly in error; the Report refers to an assessment being conducted on 30 September 2024 and the Report was provided to the Tribunal on 10 October 2024. I will proceed on the basis that the Report was prepared between those two dates. 21 Exhibit 5. -- 12 of 21 -- 13 please address the following issues: 3 3 1 What is the likely cause of the defect It would appear going by the failure of the torsion bar brackets they lack durability for a 4-wheel drive vehicle Some of the remaining items do not fit the quality required to be sold as an off-road vehicle 3 3 2 Was the defect likely to have been present at the date of purchase of the vehicle (e g a latent defect or a part lacking durability) The fact that this vehicle is marketed and sold as an off-road 4-wheel drive vehicle, indicates that the failure of the items listed appears to lack durability. 3 4 What further investigations and/or repairs would need to be taken to rectify any currently existing defects, and how long would these steps likely take? Further investigation is required to ascertain the reasons behind the vehicle's 4wheel drive mechanism jumping out of gear – The estimated time to diagnose and rectify may take several days, as the respondent has not been able to locate the fault The knocking sound from the LHF wheel is also a concern as the respondent is unable to locate the fault – time for rectification could be a few days Diagnose and rectify the audio fault – time 2 hours Replace the rear suspension bushes – time 4 hours Replace the rear differential seal – time 2 hours 3 General Comment Does the vehicle match the purpose it was sold for—fit for purpose? With the applicant's current faults and ongoing concerns, and the vehicle being used in outback Queensland, the applicant cannot rely on the vehicle as it is. It is marketed and sold as an off- road 4-wheel drive. It would appear it doesn’t match the description provided by the manufacturer. Quote from Mahindra website. “The refinement and tough and durable approach often not words used in the same sentence, but apply here, really challenge customers to think beyond their own boundaries. Mahindra PikUp does everything it says it will at a price point that represents great value for Australian Families, Farmers, 4×4 Enthusiasts, Business buyers and Fleet customers. #beatyourexpectations.” [43] I will address the various issues dealt with by Mr Goddard. Jumping out of four-wheel-drive [44] As noted above, the four-wheel-drive system was inspected during the service on 9 June 2023 and the Dealer said that it checked out ‘okay’. -- 13 of 21 -- 14 [45] The Report notes the Doonans’ compliant about this issue. Whilst the Report states that the Vehicle was road-tested for this issue, it does not identify whether the issue manifested itself whilst being road-tested. I note that this issue is not included in the list of defects in section 3.2 of the Report. I am not satisfied, on the balance of probabilities, that the issue manifested itself during that test. [46] Further, Mr Goddard noted that it would take several days to diagnose and rectify this issue. The evidence does not identify the cause of the issue, much less one that was attributable to a defect, or lack of durability of any particular part, that existed at the time of supply of the Vehicle. The new issues identified [47] There are five defects listed in section 3.2 of the Report. I find that these purported defects were not previously identified to the Dealer as at the date of filing the MVL050-24 Application. [48] Although the Report suggests that the issue of the knocking sound from the left-hand front wheel area of the Vehicle was investigated by the Dealer, Mr Doonan accepted that he did not bring the knocking sound to the attention of either of the Respondents before he got the Report.22 [49] On inspection, Mr Goddard did not identify the cause of the knocking sound. I am not satisfied, on the balance of probabilities, that the knocking sound was attributable to a defect present at the time of supply of the Vehicle or that the evidence supports a finding of a lack of durability arising out of any particular part referable to this issue at the time of supply. [50] I reach a similar conclusion in respect of the audio fault, the cause of which, in Mr Goddard’s view, required diagnosis. [51] Mr Goddard has noted in the summary of complaints made about the Vehicle that: (a) the rear differential seal is leaking; (b) the rear suspension bushes are cracked (this complaint appears to be recorded twice by Mr Goddard). [52] Mr Goddard observed that the rear differential seal was leaking. Mr Goddard provided no further details in relation to leak, including the cause of the leak. At section 3.4, Mr Goddard identified that the rear differential seal required replacement (and estimated that this would take two hours). [53] At section 3.1 of the Report, Mr Goddard stated that he conducted a visual inspection of, relevantly, ‘Rear spring bushes’. Under the list of defects set out at section 3.2 of the Report, Mr Goddard referred to ‘Rear suspension bushes’. No details were provided in relation to this issue. I infer from the report of the complaint made by Mr Doonan and to Mr Goddard’s view that the rear suspension bushes required replacement, that the issue was that rear suspension bushes were cracked. Mr Goddard identified that the rear suspension bushes required replacement (and estimated that this would take four hours). Prior issues 22 T1-38 lines 16-42. -- 14 of 21 -- 15 [54] Mr Goddard did not note, as a defect, any of the previous issues that had been repaired by the Dealer (including the torsion bar adjusters (‘brackets’) and the intercooler). Mr Goddard’s conclusions The torsion bar ‘brackets’ [55] As extracted above, Mr Goddard stated that: (a) ‘It would appear going by the failure of the torsion bar brackets they lack durability for a 4-wheel drive vehicle’. (b) ‘The fact that this vehicle is marketed and sold as an off-road 4-wheel drive vehicle, indicates that the failure of the items listed appears to lack durability.’ [56] Each of the torsion brackets failed and required replacement with the Vehicle having travelled less than 67,000 kilometres. On each occasion, the Vehicle was required to be towed for repairs. [57] There was no suggestion by Mahindra Automotive that the torsion bar adjusters (‘brackets’) amounted to wear and tear items. However, Mahindra Automotive suggested that the issue may have been the result of the fitment by the Doonans of an aftermarket bullbar. The Doonans’ evidence included a letter from Tuff Australia dated 22 May 2024. The bullbar fitted was a Tuff product. The letter stated: … We have reviewed your situation, and it is of our opinion that the failure to your vehicle suspension cannot be related to our product. We have fitted your style of bulbar [sic] to Mahindra’s since 2011 and have not had a complaint of your nature. The two post, 50mm steel tube fitted to your vehicle weighs approximately 40kg. This is a similar way to bullbars of the same configuration built by other manufacturers as well as genuine bullbars supplied by dealers. We have formed the conclusion that the information we have been provided that the damage to your vehicle suspension is related to the vehicle manufacturer quality and not related to the bullbar fitted your vehicle. [58] Neither Mahindra Automotive nor the Dealer adduced evidence that countered the evidence of Mr Goddard and Tuff Australia. Having regard to that evidence, the nature of the torsion bar adjusters that failed, the type of goods involved namely a four- wheel-drive vehicle marketed as an off-road vehicle, and the number of kilometres travelled at the time that the Vehicle broke down on each occasion, I am satisfied, on the balance of probabilities, that the torsion bar adjuster lacked durability at the time the Vehicle was supplied to the Doonans. Other items [59] In section 3.3.1, Mr Goddard stated that ‘Some of the remaining items do not fit the quality required to be sold as an off-road vehicle’. I also refer to the ‘items listed’ in section 3.3.2. Mr Goddard does not identify the particular items referred to nor does Mr Goddard explain the basis upon which he states that they lacked durability as at the date of ‘purchase’ of the Vehicle. Other than the torsion bar adjusters, I am not satisfied, on balance of probabilities, that the evidence supports a conclusion that other -- 15 of 21 -- 16 parts of the Vehicle lacked durability as at the time of supply of the Vehicle to the Doonans (including the intercooler). [60] Despite the Doonans’ concern that the Vehicle is not safe to drive, I am not satisfied that the evidence establishes this to be the case. Summary [61] In my view, the only issues with the Vehicle that support a finding of a lack of acceptable quality at the time of supply of the Vehicle are those set out at paragraphs [30], [31], [35] and [36] above. [62] The question that arises is whether such failure to comply with the statutory guarantee amounted to a ‘major failure’. Major failure? [63] With respect to the issues at paragraphs [30] and [31] above: (a) there is no evidence that such issues rendered the Vehicle substantially unfit for the purpose of a four wheel drive Vehicle and, in any event, I find that they were remedied easily and within a reasonable time; (b) there is no evidence that such issues rendered the Vehicle unsafe; and (c) having regard the relatively minor nature of the issues and that they were easily repaired, I am not satisfied, on the balance of probabilities, the Vehicle would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of the failure to comply with the statutory guarantee by reason of such issues. [64] With respect to the torsion bar adjuster issues ( paragraphs [35] and [36] above): (a) I am satisfied that that the issues rendered the Vehicle substantially unfit for the purpose of a four wheel drive Vehicle; however, I find that the issues were remedied easily and within a reasonable time; (b) there is no evidence that such issues rendered the Vehicle unsafe; (c) having regard to the following matters, I am satisfied that the Vehicle would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of the failure to comply with the guarantee of acceptable quality: (i) the nature of the Vehicle, being a four-wheel drive motor vehicle; (ii) the nature of the items that failed, being suspension components; (iii) that each torsion bar adjuster failed separately; (iv) the consequence of each failure, namely that the Vehicle went into limp mode and had to be towed for repairs; (v) that both failures occurred less than two years after the purchase of the Vehicle (new), and it had travelled less than 67,000 kilometres; (d) by reason of the matters set out in subparagraph (c) above, the failure to comply was a major failure within the meaning of s 260 of the ACL (Qld). -- 16 of 21 -- 17 [65] The next issue is whether, in respect of the major failure, the Doonans rejected the Vehicle pursuant to s 259(2)(b)(ii) of the ACL (Qld) and, if so, whether they did so within the ‘rejection period’ pursuant to s 262 of the ACL (Qld). Was the Vehicle rejected within the rejection period? [66] Under s 259(3), the Doonans were obliged to notify the Dealer that they rejected the Vehicle and of the ground or grounds for the rejection. [67] As a result of the conclusions reached above in relation to the subsequent issues (or potential issues), it is unnecessary to decide whether the Doonans would be entitled to rely on those additional issues to justify any earlier rejection of the Vehicle. The requirements of s 259(3)(a) of the ACL (Qld) [68] The notification of rejection is one element of the exercise of the right under s 259(3)(a). [69] The term ‘notify’ is not defined in the ACL (Qld). [70] That term is defined in the Macquarie Dictionary online to mean: 1. to give notice to, or inform, of something, to make known; 2. give information of: the sale was notified in the newspapers. [71] Having regard to the dictionary meanings of ‘notify’, and the consumer protection purpose of the statutory guarantee regime in the ACL (Qld), I consider that a consumer may notify a supplier of the rejection either orally or in writing. Further, I do not consider it necessary that a consumer needs to adopt the precise language of ‘rejects’; rather, the import of the notification must be that the goods are rejected. However, I consider that it is a prerequisite of rejection under s 259(3) that there must be notification of such rejection by the consumer (here, the Doonans) to the supplier (here, the Dealer). [72] The other element of s 259(3)(a) is that the consumer must notify the supplier of the ground or grounds for the rejection. [73] Reading s 259(3)(a) in the context of the balance of s 259 and Part 5-4, Division 1 of the ACL (Qld) more generally, I consider that the ground or grounds for the rejection ought to, ideally, identify each guarantee alleged not to have been complied with; that such failure to comply cannot be remedied or is a major failure (as the case may be); and set out the facts said to establish this. However, given that there are no prescriptive statutory requirements in respect of notifying the ground (or grounds) of rejection, and the consumer objects of the legislation, I consider that it would be sufficient for a consumer to, at least, inform the supplier of sufficient facts as would, if accepted, (at least arguably) amount to one or more grounds for rejection under the ACL (Qld). When did the Doonans notify the Dealer that the Vehicle was rejected? [74] On 22 June 2023, the solicitor acting for, it appears, Mr Doolan only sent a letter to the Dealer (‘the 22 June letter’) in the following terms: I refer to the above and advise that I act on behalf of Mr Terry Doonan who is the registered owner of the above motor vehicle. As you are well aware this motor vehicle has had a number of faults requiring attention over the last year and half. Each time Mr Doonan or his wife Kirsty has to deliver the motor vehicle to your dealership in Rockhampton to have vehicle repaired. Mr Doonan is a -- 17 of 21 -- 18 sole trader so every time he takes time off his work to deliver the vehicle to you, he receives no income. Over the last year and half the motor vehicle has had to be repaired eight (8) times which is excessive for a new motor vehicle and suggests that my client may have purchased a lemon. My client is very conscious that the warranty period is close to expiry; as the warranty expires 30/12/2024 or 100,000 km which ever is the earliest to occur. Each time my client has to attend your work shop to have the vehicle repaired they are having to travel 515km which are using up the kilometers [sic] on their motor vehicles warranty. I am told as a result of all this travelling the vehicle has already done 55,000.00 km. My client also instructs that you are required to reimburse him for the sum of $2,500.00 being an up front towing fee from Injune to Rockhampton in March, 2023. My client is asking if you could do a thorough once over on the whole motor vehicle. If it requires more attention within twelve (12) months of that service then the motor vehicle be classed as a lemon and that my client be given a brand new motor vehicle. Alternatively you agree that the motor vehicle is in fact a lemon and provide them a brand new motor vehicle now. My client will also require written assurance from you that the warranty be extended until such time as the motor vehicle does not require attention for a period of twelve (12) month duration. If my client does not receive a satisfactory response from you regarding the above matters my client will have no choice but to get the Office of Fair Trading involved and/or Current Affairs. [75] In my view, the content of the letter did not purport to reject the Vehicle; rather, it foreshadowed that a future rejection may be made in the event of a further issue requiring attention within 12 months of the proposed service. Consistently with this, the Doonans retained possession of the Vehicle and continued to drive it. [76] The 22 June letter was the only letter written by the Doonans’ solicitor.23 [77] It appears that the Dealer did not respond to the 22 June letter until 23 October 2023, seemingly prompted by contact from the Office of Fair Trading (as addressed below). [78] The issues with the torsion bar adjusters occurred and the Doonans took possession of the Vehicle after it had been repaired on each occasion. As noted above, the second breakdown (involving the right-hand side torsion bar adjuster) occurred on 1 October 2023. I find that the Vehicle was collected on 13 October 2023.24 [79] The Doonans then lodged a complaint with the Office of Fair Trading (‘OFT’). It appears that copies of the correspondence sent to or from the OFT have not been not included in the material relied upon at the hearing. [80] It appears that the OFT advised the Doonans that the OFT was not the ‘appropriate place’ to lodge the complaint.25 [81] It also appears that, on 16 October 2023, the Dealer received an email from the OFT advising of the Doonans’ complaint to the OFT (it is not clear whether this was a separate email to the Dealer or a copy of the email sent by the OFT to the Doonans).26 23 T1-48 lines 15-47. 24 T1-49 lines 32-49. The second-named Respondent did not confirm or deny this: T1-49 lines 15-18. 25 T1-50 lines 9-14. 26 T1-50 lines 13-26; T1-51 lines 1-2. -- 18 of 21 -- 19 [82] On 20 October 2023, the Dealer sent a response to the OFT, the content of which is effectively reflected in the following letter to the Doonans.27 [83] By letter from the Dealer to the Doonans’ solicitor dated 23 October 2023 it was stated: This has reference to your letter to us regarding abovementioned customer and their Mahindra PIK UP (Reference Leslie Sabine) While we acknowledge the concerns raised by Mr. Terry Doonan regarding the visits that he had to make to our dealership in Rockhampton to service/ rectify certain issues on his vehicle. We do not accept that the vehicle be termed as a "lemon" as mentioned in your letter. We have gone through the visit history of the vehicle to our dealership and have noted the following points- • The vehicle runs an average of about 102 kms per day as deduced from visit history. It was delivered to Mr. Doonan on 20th December 2021 and until 09/10/23 when it last reported to us for repairs, it had done 66,941kms. • The vehicle has visited our workshop on four occasions within a period from Dec'21 to Oct'23 (21 months) for warranty related repairs. All other visits were either for regular maintenance service and/or retail repairs (like accessories fitment/ wear & tear parts replacement.) So, if we consider the kilometres travelled by owner (as claimed) for repairs other than regular maintenance, this works out to 1880krns. As per our records, his residence is about 470 kms away from our Rockhampton dealership. Having stated the above, we have taken the case up with Mahindra Automotive Australia and they have offered the following as resolution of Mr. Doonan's concern/s and/or apprehension - • The car would be checked for any further concerns that Mr. Doonan has, as requested by him. Further a preventative check would be carried out of the vehicle to see whether any preventative concerns can be identified & rectified. This inspection and rectification would be covered under warranty. • Mr. Doonan would be reimbursed $2546.00 for the private tow that he undertook for reporting the vehicle on 31/03/2023. • Mr. Doonan's vehicle's warranty expires on 19/12/24, the company offers a 6-month/ 5,000 kms warranty extension up to 19/06/25 or 105,000 kms whichever earlier. • Further the company offers to reimburse Mr. Doonan $300.00 (Inc. GST) for the retail repairs undertaken on his vehicle during the 09/06/23 visit. The owner would be required to sign off a general release of liability letter to close the legal notice that has been initiated through your office. 27 T1-51 lines 8-42. -- 19 of 21 -- 20 Please note that he still retains all his rights as provided through the statutory guarantees/ warranties offered under the Australian consumer laws. [84] The Doonans did not accept the proposal to resolve the matter.28 [85] Whilst the MVL001 Application was filed on 14 December 2023 and served on Mahindra Automotive in January 2024, the MVL050 Application (against the Dealer) was not filed until 13 March 2024. It appears from the affidavit of service filed by the Doonans on 9 May 2024 that the MVL050 Application was posted to the registered office of the Dealer on 12 March 2024. Whilst there is no dispute that the Dealer received the MVL050 Application, there is no direct evidence of when that receipt occurred or evidence of the period comprising the ordinary course of post at that time for the sending of the documents by post. I consider that nothing turns on the precise date on which service is taken to have been effected. I will proceed on the basis that it occurred on 15 March 2024. [86] In circumstances where the MVL050 Application sought a ‘buy back’ of the whole purchase price (and the towing fee), set out details of the issues with the Vehicle; and claimed that it was not fit for purpose, I am satisfied that the content of same was sufficient to convey to the Dealer that the Vehicle was rejected and the grounds for rejection. I find that the date of the purported rejection was 15 March 2024. [87] However, had the rejection period ended before then? Was the Vehicle rejected within the rejection period? [88] Section 262 applies to a purported rejection under, relevantly to the present case, s 259(3)(a) of the ACL (Qld). A consumer is not entitled to notify a supplier of goods that the consumer rejects the goods if the ‘rejection period’ for the goods has ended (see s 262(1)(a)). [89] Subsection 262(2) is extracted above. The ‘rejection period’ 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 to become apparent having regard to the matters set out in that subsection. In my view, the reference to the ‘relevant failure to comply’ captures, relevantly, a failure to comply which cannot be remedied or which is a major failure and is the subject of the purported rejection under s 259(3)(a).29 [90] Having regard to the factual matters which formed the basis for seeking the refund claimed by each of the MVL001 Application and the MVL050 Application, the Doonans were aware of such matters by 13 October 2023 (when they collected the Vehicle after it had been repaired following the breakdown on 1 October 2023). I infer that this was the catalyst for the complaint to the OFT. [91] Having regard to the nature of the goods, being a four-wheel drive motor vehicle, the use to which Mr Doonan put the Vehicle, the length of time that had elapsed since the Doonans took delivery of the Vehicle, the kilometres travelled by 1 October 2023, the fact that the Doonans were aware of the various issues with the Vehicle by 13 October 2023, and factoring in time to consider the proposal put by the Dealer (say 21 days), I find the rejection period ended on 13 November 2023. It follows that the rejection 28 T1-51 line 46 – T1-52 line 1. 29 See Vautin [264]. -- 20 of 21 -- 21 period ended well before the Doonans’ purported notification to the Dealer of the rejection of the Vehicle upon serving the MVL050 application on the Dealer. I find that the Doonans were not then entitled to reject the Vehicle at that time. Conclusion [92] Having regard to the above matters, I find that the Doonans are not entitled to a refund of the purchase price of the Vehicle. Further, the Doonans have not established, on the balance of probabilities, that they have suffered any loss or damage over and above the amount of the towing fee which the Respondents have agreed to pay to the Doonans. Order [93] For the above reasons, it is ordered that: 1. The name of the first-named Respondent is changed to Mahindra Automotive Australia Pty Ltd. 2. The Respondents must pay to the Applicants the sum of $2,546.50 within 21 days of the date that the Decision is issued to the parties. -- 21 of 21 --