Donnelly v Jaguar Land Rover Australia Pty Ltd & Anor [2025] QCAT 77

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Donnelly v Jaguar Land Rover Australia Pty Ltd & Anor [2025] QCAT 77 PARTIES: CHRISTOPHER DONNELLY (applicant) v JAGUAR LAND ROVER AUSTRALIA PTY LTD (first respondent) JAMES FRIZELLE’S AUTOMOTIVE GROUP PTY LTD T/AS SOUTH BRISBANE JAGUAR LAND ROVER (second respondent) APPLICATION NO/S: MVL163-23 MATTER TYPE: Motor vehicle matter DELIVERED ON: 27 February 2025 HEARING DATE: 16 January 2025 HEARD AT: Brisbane DECISION OF: Acting Member Jensen ORDERS: Pursuant to s 50A(2)(b) of the Fair Trading Act 1989 (Qld), no money is owed by either the first or the second respondent to the applicant. 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 part refund and damages Australian Consumer Law, s 54, s 259, s 260 Competition and Consumer Act 2010 (Cth), Schedule 2 Fair Trading Act 1989 (Qld), s 50A, s 50C Medtel Pty Ltd v Courtney (2003) 130 FCR 182 APPEARANCES & REPRESENTATION: Is Applicant: Self-represented Respondent: Anthony D’Amico for the first respondent -- 1 of 11 -- 2 Fraser Perrin for second the respondent REASONS FOR DECISION Issues [1] It is not disputed that the applicant purchased a Land Rover Range Rover Sport DSV6 SE 3.0L (the ‘vehicle’) from the second respondent on or about 22 July 2017. The purchase price was $132,695 including trade in. [2] On 3 August 2023, the applicant filed proceedings in this tribunal claiming against both respondents: A part refund of purchase price based on ACL major failure. I claim $100,000 including compensation as listed. [3] At the hearing, the applicant stated that his claim of $100,000 was comprised of $85,000 for part refund of the purchase price and $15,000 for damages. [4] The second respondent disputes the claim and states at Part C of its response filed on 26 October 2023 that: The defects raised by the applicant do not meet the threshold for an ACL remedy of a buyback or replacement under the legislation. Upon independent expert providing their report, the respondent shall be in a position to particularise its position in greater detail. The vehicle has not suffered a major defect or an accumulation of minor defects. [5] There was no response filed by or on behalf of the first respondent, but it did participate at the hearing. [6] The following issues are also raised in the matter: (a) Is the guarantee of acceptable quality applicable? (b) If so, was there a major failure on the part of the respondents to comply with the guarantee? (c) Has the time for providing a rejection notice lapsed? (d) What are the applicant’s remedies (if any)? [7] The respondents do not dispute that the applicant was a consumer, and that the vehicle was supplied in trade and commerce, as defined in the Australian Consumer Law (‘ACL’). Jurisdiction [8] At Part D of the Application form filed on 3 August 2023, under the part headed ‘Legislation’, the applicant has ticked the box: Fair Trading Act 1984 – s 50A (Australian Consumer Law Queensland). [9] Pursuant to s 50A(1) of the Fair Trading Act 1989 (Qld) (the ‘FTA’), the Tribunal is vested with jurisdiction for actions in respect of a provision listed in the table in s 50A(4) of the FTA relating to a motor vehicle and seeking an amount or value of other relief of not more than $100,000. The table lists actions against suppliers of goods [s -- 2 of 11 -- 3 259(2), (3) and (4) of the ACL] where one of the available claims is for a failure to comply with a consumer guarantee. [10] The applicant asserts a failure to comply with a consumer guarantee. He states that, at page 18 of the documents filed with the application, the basis of his claim is that the “vehicle is not fit for purpose” and that it has defects. He also raised safety issues in his further statement filed on 12 March 2024. A vehicle being fit for all purposes, free from defects durable and safe are part of the consumer guarantee as to acceptable quality under s 54(2) of the ACL for which an action can be brought under s 259 of the ACL where there is a failure to comply with the guarantee. [11] I am therefore satisfied that the tribunal has jurisdiction to hear and determine this application. [12] In a proceeding under s 50A(1) of the FTA, the only orders the tribunal may make are set out in s 50A(2)(a) to (e) of the FTA, namely: (a) an order requiring a party to a proceeding to pay a stated amount to a stated person; (b) an order that a stated amount is not due or owing by the applicant to a stated person, or by any party to the proceeding to the applicant; (c) an order requiring a party to the proceeding, other than the applicant, to perform work to rectify a defect in goods or services to which the claim relates; (d) an order requiring a party to the proceeding to return goods that relate to the claim and are in the party’s possession or control to a stated person; (e) an order combining two or more orders mentioned in paragraphs (a), (b), (c) and (d). Evidence [13] The applicant gave the following evidence: (a) he purchased the vehicle on 22 July 2017 from the second respondent; (b) from the time of purchase and prior to July 2020, the vehicle had a number of issues resolved under JLR warranty but that some remained unresolved; (c) since 2022, more defects have appeared. Some have been repaired at the applicant’s cost, but others still remain some 12 months later; (d) the vehicle has travelled less than 90,000 kms at the time of bringing the application;1 (e) the applicant has had defects to the vehicle repaired (or under repair) since July 2022 in an amount of $22,713 (estimated); (f) the applicant rejected the vehicle by email dated 16 July 2023 to the second respondent and requested a refund (the ‘rejection notice’). The rejection notice provides: 1 Application filed 3 August 2023 attaching a document titled Basis of claim and background documents, page 16. -- 3 of 11 -- 4 Daniel Its hard to believe that its been over a year since we first discussed the defects on my vehicle. I traded in my reliable 15 year old campervan with nearly 200,00 [sic] km on the clock with the express purpose of travelling in my future retirement with a caravan. I made it known that I was intending to keep the car for some time. I paid $132,695 for a range rover sport Vin SALWA2EK0HA680087 (current Reg ZZD338) in August 2017. You were copied in on my original email of July 2022 relating to premature failure of a number of items found on my low mileage vehicle. Since that time, more defects have appeared. Some have been repaired, but others still remain some 12 months later. I have been unable to use my vehicle as intended for over 6 months now. I have cancelled or shortened holidays, driven to you dealership 6 or 7 times and spent countless hours chasing stuff up. I have been reasonably patient. On my last visit I was asked for another $275 to look at a potential EGR fault (first raised December 2022 and which I understood was fixed) and possible lane departure fault which I thought might have been related to the electrical issues with the vehicle. This was the last straw – especially when I’d had to bring the vehicle in to fix up your poor (and potentially dangerous) workmanship, check out a defect that you had been unable to diagnose for 6 months (such I had to pay someone else to diagnose it for you) and attempt to repair an infotainment system (again) that hasn’t worked for a year now. I understand that yet another component is required (ex UK) and any repair is likely to be at least a another [sic] month away. My vehicle is not of an acceptable quality. I bought a premium off road capable vehicle. It has low mileage, has been used normally and serviced in accordance with your servicing schedule. It is neither durable or free from defects. See summary below. My vehicle is not fit for purpose. I cannot reasonably use the vehicle with confidence for its intended purpose. I’m concerned that there may be yet more defects that have not been diagnosed. My vehicle has (and continues to have) multiple failures. At no time has JLR Springwood or Land Rover Australia accepted responsibility for the defects and has relied on my private Extended Warranty to pay the cost of the repairs. To their credit, Eric Insurance have approved the repairs every single time (in their words) “the defects are unusual in such a low mileage vehicle, and we would not class them as normal wear and tear”. There are multiple problems with the vehicle which has prevented me using it as I intended. I would not have purchased the product if I had known about the problems and the poor durability overall. Those repairs that have been completed, have been at my cost and have taken an unreasonable time to complete. Taken as a whole, these multiple failures constitute a major failure under consumer law. I request my refund as per my rights. -- 4 of 11 -- 5 Please provide a written response to this email no later than COB Friday 21 July 2023. If my request is ignored or refused I will progress with my legal claim. Any legal claim with include compensation for post purchase modifications, loss of use, third party inspection costs and the cost of recent (incomplete) vehicle service, I will also forward appropriate submissions to the ACCC, the Qld Office of Fair Trading and contact the media. I will supply all relevant documentation referred to in the text below tomorrow morning. [14] The first respondent gave the following evidence: (a) the vehicle travelled 89,160 kms at the time of rejection and now has travelled 100,000 kilometres; (b) the applicant has derived a benefit from the vehicle and despite rejection, he continues to use it; (c) the continued use of the vehicle is inconsistent with its rejection; (d) A part refund is not a remedy under ACL; (e) there is no expert evidence in a reduction in value of the vehicle.2 [15] The second respondent gave the following evidence: (a) the period for rejecting the vehicle has lapsed; (b) there is no expert evidence from the applicant as to why the vehicle failed. There is only the evidence of Mr Grant, the assessor appointed by the tribunal; (c) the vehicle has travelled 10,000 kms since inspection by Mr Grant; (d) the vehicle is still operational; (e) there is no remedy of a part refund under ACL. It is either a full refund or nothing and in this case it should be nothing. [16] There is also the evidence of the vehicle assessor, Mr Grant, dated 28 January 2024. Consideration Is the guarantee of acceptable quality applicable? [17] Section 54(1) of the ACL provides that where a person supplies goods in trade and commerce, the goods are guaranteed to be of acceptable quality. [18] Sections 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 2 There is evidence of the applicant’s estimated value of the vehicle as at the date of the claim at page 27 of the statement of further evidence of the applicant filed on 12 March 2024. -- 5 of 11 -- 6 (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. [19] It is not contested that the vehicle was supplied in trade or commerce to the applicant and that the applicant is a consumer within the meaning of the ACL. I am satisfied from the evidence before me that s 54 of the ACL applies to the supply of the vehicle to the applicant. [20] The time at which the goods are to be of acceptable quality is the time they are supplied to the consumer.3 This date is on or about 22 July 2017. Was there a major failure on the part of the respondents to comply with the guarantee of acceptable quality? [21] Section 259(4) of the ACL allows a consumer to take action against a supplier for damages because of the failure to comply with a consumer guarantee, if it was reasonably foreseeable that the consumer would suffer loss or damage as a result of such failure. [22] The applicant has claimed a major failure on the part of the respondents to comply with the consumer guarantee of acceptable quality. A major failure is defined in s 260 of the ACL to mean: (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 from their description or model (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 3 Medtel Pty Ltd v Courtney (2003) 130 FCR 182 at [64]. -- 6 of 11 -- 7 (d) the goods are unfit for a disclosed purpose, 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. [23] In terms of the expert evidence, the respondents rely on the report of Mr Grant, who is an assessor appointed by the tribunal. Mr Grant’s report states that he carried out an inspection of the vehicle on 25 January 2024. He says that the inspection took place at the applicant’s address and that there was no need for workshop facilities for this inspection and interview. Mr Grant’s report states in part at page 2 are as follows: Rectification of Defects As at the time of the report, there are no outstanding defects of operation with the vehicle and no further work needs to be conducted to rectify any operating issues. …….. Overview This car has no inherent defects at this point in time. The car has never broken down or stranded the owner and has no previous or current or safety issues. The car has not had any specific defects that would give it a “Lemon Label”…… The defects that have been outlined in this claim would not have been present at the time of purchase……. [24] The applicant has pushed back on Mr Grant’s report in a further statement filed on about 12 March 2024 and asked the tribunal to reject it. The applicant states in relation to the above extracts to the effect that: (a) Mr Grant did not inspect the vehicle and made no attempt to verify the repairs undertaken to date are complete, safe or durable. Moreover, it is submitted that not having examined or driven the vehicle, Mr Grant is unable to state that no further work needs to be done or that the vehicle has no inherent defects. (b) the vehicle had effectively broken down or was immobile for certain periods and that it ceased to be able to be used safely for its intended purpose. (c) that he rejects the assessor expressing an opinion as to whether the guarantee of acceptable quality had been complied with; (d) that the defects (as described) on the balance of probabilities were either present at the time of purchase or components have failed prematurely due to defective design, manufacture or poor durability. [25] There are also the applicant’s contentions regarding the respondents’ major failure to comply with the consumer guarantees as contained in the rejection notice dated 16 July 2023 (extracted above). [26] However, in my view there is insufficient evidence to make a finding that there was major failure on the part of the respondents to comply with the consumer guarantee of acceptable quality at the time of purchase (on or about 22 July 2017) for the following reasons: -- 7 of 11 -- 8 (a) The evidence of repairs to the vehicle for the three years from the time of purchase to July 2020 is as follows:4 (i) 20 August 2017 (odometer [OD] 1,076 km) – recall to update PCM to eliminate a warning light error. Undertaken as part of the first service and installation of tow bar and replacement number plates; (ii) 4 August 2018 (OD 7,239 km)– recall to update PCM again (same error) and recall to update suspension software to eliminate a warning light error; (iii) 14 August 2018 (OD 13,748 km) – Infotainment system freezing/resetting… All dash warning lights lit up (cleared codes – customer to monitor); (iv) 26 July 2019 (OD 24,211 km) – vehicles fails to start (software updated). Gearbox not in park error warning (software update). Recall to update PCM again… (v) 16 August 2019 (OD 24,523) – RHS valve cover gasket failure repaired under warranty. RSH engine side bolts leaking oil repaired under warranty; (vi) 22 July 2020 (OD 34,494) – Gearbox not in part error warning. Stop start not working (battery replaced under warranty). (b) None of the above repair work is evidence of a major failure on the part of the respondents as defined in s 260 of the ACL. The applicant continued to use the vehicle over the period as shown by the odometer readings; and there is no evidence that the vehicle was substantially unfit for use. Work to the vehicle was carried out under Land Rover warranty and on or about 15 July 2020 the applicant purchased an extended warranty from a third party insurer for three years to 21 July 2023. (c) The rejection notice refers primarily to defects found in 2022 and which were repaired under the extended warranty. There is no independent and reliable evidence that these defects existed at the time of purchase. (d) In response to Mr Grant’s comment to the effect that the defects that have been outlined would not have been present at the time of purchase, but the propensity for such failures most certainly would have, the applicant submits: (i) the valve cover oil leaks were repaired under warranty in 2019; (ii) the ‘glitchy’ infotainment system was repaired under warranty; (iii) other defects: A. DPF failures that are part of a class action which the applicant’s vehicle “appears to be on the list of those potentially affected.” B. Rough idling repairs in 2020 and 2021; 4 Application filed 3 August 2023 attaching a document titled Basis of claim and background documents, page 20. -- 8 of 11 -- 9 C. Replaced components of the exhaust gas recirculation system eight months after the fault was reported; D. Replaced engine mounts as having failed eight to 10 months after reporting; (e) The applicant gave evidence that he is a civil engineer which he accepted is a different field of expertise from the one that is relevant here in relation to the vehicle. (f) By contrast, Mr Grant is independently appointed by the tribunal. I am satisfied that he is qualified in this area of expertise and states he has over 40 years automotive industry experience in technical/engineering, manufacturer management and retail dealership levels. (g) I therefore place more weight on Mr Grant’s report than the applicant’s evidence because of Mr Grant’s experience and expertise in the industry; the applicant does not have the same experience or qualifications. Furthermore, Mr Grant is disinterested in these proceedings and as such I am satisfied that his evidence is given in a neutral way, and it is reliable. (h) Mr Grant is quite clear in his opinion that the defects were not present at the relevant time which is the time of purchase. I accept this opinion based on Mr Grant’s experience and expertise and find accordingly. (i) In any event, I am not satisfied that on the material before me that the work carried out on the vehicle during the period from 2017 to 2020 is evidence of a major failure to comply with the guarantee of acceptable quality. There is no evidence that during this period the vehicle was substantially unfit for purpose, was unsafe or that the applicant would not have acquired it. (j) I also accept the evidence of Mr Grant that at the time of the report, there are no outstanding defects of operation with the vehicle and no further work needs to be conducted to rectify any operating issues. This finding is consistent with the evidence of the applicant’s continued use of the vehicle. (k) There is conflicting evidence regarding whether Mr Grant carried out an inspection of the vehicle. The extent of an inspection of a vehicle can vary depending on the circumstances. Mr Grant says in his report that he inspected the vehicle whereas the applicant says he did not. I have accepted Mr Grant’s report as reliable and I am therefore satisfied that he inspected the vehicle. He may not have carried out an inspection of the vehicle to the extent expected by the applicant, but I infer that, given his experience and qualification in the industry, Mr Grant carried out an inspection of the vehicle that was sufficient for his purposes and for providing his opinion to the tribunal. (l) I do not place any weight on the applicant’s submission that “on the balance of probabilities the defects on the vehicle were either present at the time of purchase or components have failed prematurely due to defective design, manufacture or poor durability”. Although an astute owner, the applicant’s opinion is given without the authority of having qualifications and experience in the motor vehicle industry. -- 9 of 11 -- 10 [27] I therefore am satisfied and find that, at the time of supply, there was not a major failure on the part of the respondents to comply with the guarantee of acceptable quality. [28] This finding disposes of the action against both the first and second respondents. However, time was spent during the hearing regarding the validity of the rejection notice which I shall also consider below. Has the time for providing a rejection notice lapsed? [29] The remedies for a major failure under s 259(3) of the ACL are that the consumer may: (a) reject the goods and choose a refund or replacement; or (b) keep the goods and recover compensation for any reduction in value of the goods. [30] In order to obtain a refund, the consumer is required to reject the goods within the “rejection period”. Under s 262(2) of the ACL, the “rejection period” is the period from the time of supply of the goods to the consumer within which it would be reasonable to expect the relevant failure of the guarantee to become apparent having regard to the: (a) type of goods; (b) use to which the consumer is likely to put them; (c) length of time for which it is reasonable for them to be used; and (d) amount of use to which it is reasonable for them to be put before such a failure becomes apparent. [31] Therefore, the time at which the goods are to be of acceptable quality under s 54 of the ACL and the commencement of the rejection period under s 262(2) of the ACL is the same time in both instances, namely the time of the supply of the vehicle to the applicant. [32] Even if there were a major failure of a consumer guarantee (which I have found there was not) the applicant has not satisfied the requirements of s 259(3) as follows: (a) The applicant has not validly rejected the vehicle for the following reasons: (i) the rejection period had lapsed - I am satisfied that the rejection period had lapsed by the time of the rejection notice almost six years after purchase;5 given the applicant’s extensive evidence of the history of the vehicle, in my view it would have been reasonable to expect the applicant to put his claim forward for relief under s 259(3) of the ACL before 16 July 2023; (ii) the applicant had the use of the vehicle for almost six years before rejecting it; 5 The date of purchase was 20 July 2017, and the rejection notice is dated 16 July 2023. -- 10 of 11 -- 11 (iii) It is common ground that the applicant has had the continued use of the vehicle since the rejection notice. The applicant has derived a benefit from the vehicle. In my view, this continued use of the vehicle is inconsistent with its rejection; (iv) the uncontested evidence is that the vehicle is still operational and has travelled 10,000 kilometres since the giving of the rejection notice. (b) The claim is for a partial refund of $85,000. There is no evidence before me of how that amount is calculated. Furthermore, I am not persuaded that a partial refund is available. On my reading of the ACL, the natural and ordinary meaning of the word “refund” is a full refund or return of all the monies paid, not a part refund. In other words, the ACL does not allow the tribunal to order a part refund. (c) The applicant did not provide any reliable independent evidence that the vehicle has reduced in value or by $15,000 in value. What are the applicant’s remedies (if any)? [33] The was no major failure on the part of the respondents to comply with the guarantee of acceptable quality. [34] Furthermore, even assuming there was a major failure (which I have found there was not) the elements of s 259(3) are not satisfied and the applicant would have had no remedy under s 259(3) of the ACL in any event. Order [35] Pursuant to s 50A(2)(b) of the FTA, no money is owed by either the first or the second respondent to the applicant. -- 11 of 11 --