Butler v Von Bibra Robina Auto Village Pty Ltd [2026] QCAT 67

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Butler v Von Bibra Robina Auto Village Pty Ltd [2026] QCAT 67 PARTIES: KAYE BUTLER (applicant) v VON BIBRA ROBINA AUTO VILLAGE PTY LTD (respondent) APPLICATION NO/S: MVL048-25 MATTER TYPE: Motor vehicle matter DELIVERED ON: 10 February 2026 HEARING DATE: 4 November 2025 HEARD AT: Brisbane DECISION OF: Member Jensen ORDERS: Pursuant to section 50A(2)(b) of the Fair Trading Act 1989 (Qld) no amount ($nil) is due or owing by the respondent to the applicant. The Application is otherwise 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 – whether motor vehicle of acceptable quality – whether failure to comply with consumer guarantee a major failure – whether consumer entitled to refund – whether consumer entitled to damages Competition and Consumer Act 2010 (Cth), Schedule 2, s 3, s 54, s 259, s 260, s 261 Fair Trading Act 1989 (Qld), s 50A Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 9, s 10 Vautin v BY Winddown, Inc (formerly Bertram Yachts) (No 4) [2018] FCA 426 APPEARANCES & REPRESENTATION: Applicant: Self-represented -- 1 of 6 -- 2 Respondent: Mr M Simpson on behalf of the respondent REASONS FOR DECISION [1] On or about 11 May 2024, the applicant purchased a 2021 white LDV utility registration number FGS 50K (the “motor vehicle”) from the respondent for a price of $28,345. [2] On 13 February 2025, the applicant filed in the tribunal an Application – Motor Vehicle Dispute relying on s 50A of the Fair Trading Act 1989 (the “FTA”). The applicant seeks a refund of the purchase price of the motor vehicle, reimbursement of out of pocket expenses and compensation. The respondent states in the response filed in the tribunal on 4 April 2025 to the effect that there were issues with the motor vehicle that have been addressed by the LDV service department under warranty and that there are no outstanding issues. [3] The issues for the tribunal to decide are the following: (a) Tribunal jurisdiction. (b) Application of the ACL: (i) The provisions of s 54(2), (3) – guarantee as to acceptable quality. (c) Is there a failure to comply with the guarantee? (d) If so, the action against suppliers of goods under s 259? (i) Is the failure a major failure or not a major failure? (ii) What is the remedy? Tribunal jurisdiction [4] The tribunal’s original jurisdiction is the jurisdiction conferred on it under an enabling Act to decide the matter in the first instance.1 [5] The enabling Act is the FTA. Under s 50A(1) of the FTA a person may apply to the tribunal for an action (all three elements to be satisfied): (a) Under a provision of the Australian Consumer Law2 as listed in the table at the end of s 50A; and (b) Relating to a motor vehicle; and (c) Seeking an amount of relief or value of other relief of not more than $100,000. [6] The applicant applies under a provision of the ACL listed in the table, namely s 259 of the ACL action against supplier of goods. The application relates to the motor vehicle and the amount of relief sought is under the $100,000 limit. I find that the tribunal has jurisdiction to decide the application. 1 Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 9(1), (2)(a), 10(1)(b). 2 Competition and Consumer Act 2010 (Cth) sch 2 (the Australian Consumer Law) (the “ACL”). -- 2 of 6 -- 3 Application of the ACL [7] In order for the guarantee to apply, s 54(1) of the ACL must be satisfied. That section provides if: (a) a person supplies, in trade or commerce, goods to 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. [8] I find that the respondent supplied the motor vehicle to the applicant in the course of the respondent’s business. The respondent’s purchase contract is sufficient evidence of a sale in the course of business. I also find that the applicant is a “consumer” under s 3 of the ACL because the goods (the motor vehicle) were of a kind ordinarily acquired for personal, domestic or household use or consumption. The supply did not occur by way of sale by auction. There was no dispute from the respondent that the guarantee applied. [9] I find that the guarantee of acceptable quality applies to this supply. The provisions of s 54(2) and 54(3) – guarantee as to acceptable quality [10] Section 54(2) and (3) of the ACL 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. Is there a failure to comply with the guarantee? [11] When the applicant took possession of the motor vehicle, it had an odometer reading of 48,733 kms. -- 3 of 6 -- 4 [12] Within the first two weeks from taking possession, the applicant noticed: (a) Water leaking from pedals on the driver’s side; (b) Oil leaking from underneath the vehicle; (c) Radio would blare at start up and could not be adjusted; (d) Paint peeling from the front of the motor vehicle. [13] The assessor’s report states that “some of the defects were present at time of purchase namely: water leak, oil leak, paint peeling, electrical issues such as radio blasting and cruise control” (the “defects”). The respondent does not dispute this conclusion by the assessor. [14] I place weight on the assessor’s report dated 24 June 2025 for the following reasons: (a) He is independent of the parties; (b) He is an expert witness with qualifications including being a qualified motor mechanic, an AIS inspector, a licensed motor dealer and industry experience dating back to 1994. (c) He states at paragraph 3 of his report that he conducted an inspection of the motor vehicle on 16 June 2025 and inspected the fluids, test drove the motor vehicle, inspected the radio and other electrical dash cluster issues, tested cruise control and inspected paint work, inspected the roller shutter on rear of tray. [15] I am satisfied that a reasonable consumer fully acquainted with the state and condition of the motor vehicle would not regard these defects as acceptable, notwithstanding that the motor vehicle had travelled 48,733 kms at the time of handover. I find that this constitutes a failure to comply with the guarantee of acceptable quality. [16] There was an incident when the alternator failed while Aidyn (the applicant’s son) was driving the motor vehicle on the M1 near Ballina on 20 August 2024. The applicant states that the electrical system failed, airbag lights came on, dashboard lights were flashing, radio blaring, wipers windows stopped working and indicators ceased to function. The applicant describes this as a life threatening incident. It was raining heavily and the motor vehicle hit a pole trying to exit the road due to zero visibility. The applicant states that Jaylen (her other son also in the motor vehicle) aged 12 was quite distressed by the incident calling the applicant saying he “was going to die”. The NRMA diagnosed a faulty alternator and the vehicle was towed to Lismore and then eventually to Ashmore. [17] The respondent does not dispute that the alternator failed as described above but says that: (a) two days prior to the failure, on 18 August 2024, the applicant had new battery installed. It is submitted that it is standard procedure to test the alternator at that time because the two are closely linked. There is no evidence that the alternator was tested to ascertain why the original battery died; (b) failure of an alternator is an example of wear and tear which is easily fixable. [18] The time of assessment for compliance with a consumer guarantee is at the time of supply of the motor vehicle. In this case, the faulty alternator only manifested after supply and there is no evidence before me that it existed at the time of supply of the -- 4 of 6 -- 5 motor vehicle to the applicant. The assessor at paragraph 3 3 2 of his report listed defects he considered to be present at the time of supply. He does not cite the failed alternator as one of those defects. Furthermore, the assessor at paragraph 3 3 1 of his report supports the respondent’s evidence of a failed alternator being a wear and tear item where he says that: “an alternator and failing battery is normal wear and tear on any make or model of motor vehicle. Although to do both within a short space of time is not common, it could also have been just a matter of recharging the battery after the alternator failure”. For the above reasons, I am satisfied that the failed alternator on 20 August 2024 does not constitute a failure to comply with the guarantee of acceptable quality. Action against suppliers of goods under s 259 [19] A consumer may take action against a supplier for non-compliance with a consumer guarantee. The remedies available to the consumer will depend on whether the failure to comply is not a major failure (a “minor failure”) or is a major failure. [20] The question is therefore whether the defects constitute a major or a minor failure to comply with the consumer guarantee of acceptable quality. Is the failure a major failure or minor failure? [21] A “major failure” is defined in s 260(1) of the ACL to relevantly mean: (a) the goods would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of the failure; or … (e) the goods are not of acceptable quality because they are unsafe. [22] The test of whether there is a major failure for the purposes of s 260 and the test for whether the goods are of acceptable quality for the purposes of s 54 both adopt the “reasonable person” test. [23] As far as the defects are concerned, the assessor describes the water leaking inside the motor vehicle as “common and is usually attributed to the drain hose for the air conditioning unit being blocked”. In relation to oil usage, the report states that “it is acceptable for an engine to use the most miniscule amount of oil between services but it would be beneficial for the (applicant) to perhaps carry out an oil consumption test on a fortnightly or monthly basis in between servicing to see how much and how often the oil is being consumed.” There is little or no evidence that defects of themselves rendered the motor vehicle unsafe. Most of the evidence in relation to safety relates to the failure of the alternator. Furthermore, the applicant’s email of 11 September 2024 rejecting the motor vehicle and wanting a refund was sent after the failed alternator incident on 20 August 2024. When I have regard to the defects present at the time of supply and this letter, I infer that a reasonable consumer fully acquainted with the nature and extent of the failure in relation to the defects would have acquired the motor vehicle. [24] I therefore find that the respondent’s failure to comply with the guarantee of acceptable quality as far as the defects are concerned is a minor failure. -- 5 of 6 -- 6 What is the remedy? [25] The applicant is not entitled to a refund of the purchase price because that remedy is only available where there is a major failure to comply with the consumer guarantee. [26] Under s 259(2)(a) of the ACL, the consumer may require the supplier to remedy the failure within a reasonable time. The assessor states at paragraph 3 2 of his report to the effect that upon inspection the paint work and water leak had been rectified; the cruise control was working at time of test drive; the radio volume was working when the motor vehicle was started at time of testing; the battery was charging at correct CCA when tested; the tyre pressure and roller shutter on tray had been repaired by the respondent; the instrument cluster did not play up during the test drive. The oil was down approximately 300–500 mls on the dipstick; the seat belt lights stayed illuminated for approximately 2 kms prior to going off. This is consistent with the respondent’s statement that the issues have been rectified, and I find accordingly. [27] Section 259(4) of the ACL also allows a consumer to 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 failure. [28] Section 259(4) is concerned with the recovery of “reliance losses” by reason of the inclusion of the limitation of “reasonable foreseeability” which pertains to such losses rather than expectation losses.3 Reliance loss is where the consumer is reimbursed for wasted expenditure. The following claims by the applicant are not wasted expenditure: (a) compensation for time, costs and inconvenience; (b) claim for emotional distress and trauma; (c) counselling; (d) extra stress; (e) husband giving up work; (f) not having a reliable safe car; (g) loss of use of vehicle. [29] In the circumstances, the remedy available to the applicant for non-compliance with the guarantee, of having the defects rectified, has been provided by the respondent. Orders [30] The orders the tribunal may make are listed in s 50A(2) of the FTA. [31] Pursuant to s 50A(2)(b) of the FTA no amount ($nil) is due or owing by the respondent to the applicant. [32] The application filed 13 February 2025 is otherwise dismissed. 3 Vautin v BY Winddown, Inc (formerly Bertram Yachts) (No 4) [2018] FCA 426, [293]. -- 6 of 6 --