Finch v IClick Group Pty Ltd t/a Beepz Auto Solutions [2023] QCAT 55

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Finch v IClick Group Pty Ltd t/a Beepz Auto Solutions [2023] QCAT 55 PARTIES: REBECCA FINCH (applicant) v ICLICK GROUP PTY LTD T/A BEEPZ AUTO SOLUTIONS (respondent) APPLICATION NO/S: MVL119-22 MATTER TYPE: Motor vehicle matter DELIVERED ON: 13 February 2023 HEARING DATE: 2 February 2023 HEARD AT: Brisbane DECISION OF: Member Deane ORDERS: The Application is 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 statutory warranty applied – whether warranted vehicle - whether failure to comply with a guarantee to correspond with description – whether consumer entitled to a refund or damages for loss Australian Consumer Law (Queensland), s 3, s 56, s 259, s 260, s 263 Fair Trading Act 1989 (Qld), s 15, s 16, s 50A Motor Dealers and Chattel Auctioneers Act 2014 (Qld), s 12, Schedule 1 s 1, s 3, s 5, s 7, s 14, s 15 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 9, s 11, s 83, Schedule 3 Jarmain v Market Direct Group Pty Ltd t/as MDC Camper Trailers & Offroad Caravans [2022] QCAT 375 APPEARANCES & REPRESENTATION: Applicant: Self-represented -- 1 of 8 -- 2 Respondent: D Molinas REASONS FOR DECISION [1] On 25 September 2021 Ms Finch purchased a 2008 Toyota Rav 4 for $3,250 from a business trading as Beepz Auto Solutions. It is not controversial that IClick Group Pty Ltd owns the business name Beepz Auto Solutions (Beepz) and is a motor dealer licensed under the Motor Dealers and Chattel Auctioneers Act 2014(Qld)(the Act). [2] Ms Finch claims: (a) a refund of the amount paid in the amount of $3,250; (b) an amount of $17,000, the claimed market value of an undamaged 2008 Toyota Rav 4; and (c) $10,000 for stress and financial hardship.1 [3] Ms Finch, who was self-represented, did not clearly set out the legal basis of her claim nor the Tribunal’s power to make the orders sought. In her Application she refers to obligations under the Act, Schedule 1 section 14. She also refers to section 50A of the Fair Trading Act 1984 (Qld) (FTA) and the Australian Consumer Law Queensland (ACL (Queensland)). [4] Beepz disputes the claims and says that it complied with its obligations under the Act. It also says that the Rav 4 was sold ‘as is’ and as a written off vehicle, which would need repair and to pass a written off vehicle inspection (WOVI) prior to re- registration.2 [5] The Response contains a reference to what was said at a mediation. In reviewing the file and considering Ms Finch’s claims I have disregarded such information as Ms Finch did not agree to the disclosure of without prejudice communications.3 [6] Ms Finch provided little documentary evidence to support the amounts claimed. An applicant bears the onus to establish each element of their case on the balance of probabilities. [7] The Tribunal is required to find its power to hear and determine disputes in either the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) or an enabling Act.4 An enabling Act confers original jurisdiction if it confers the power to make an application or referral to the tribunal in relation to a matter under the enabling Act.5 Does the Tribunal have jurisdiction to order a refund and damages for loss against a supplier of a motor vehicle under the Act? If so, is Ms Finch entitled to such an order? [8] I find that the Tribunal’s power to make orders for the payment of money in relation to a claim under Schedule 1 section 14 of the Act depends upon the vehicle being a 1 Exhibit1, Application – Motor Vehicle Dispute filed 20 June 2022 (Application). 2 Exhibit 2, Response. 3 QCAT Act, s 83. 4 Ibid, s 9(1). 5 Ibid, s 9(3). -- 2 of 8 -- 3 warranted vehicle.6 I find that the statutory warranty does not apply to the Rav 4 because it is not a warranted vehicle. [9] Schedule 1 of the Act sets out statutory warranty provisions. The schedule relevantly applies to each warranted vehicle sold by a licensee as the owner of the vehicle.7 The statutory warranty is set out in Schedule 1 section 7. [10] A warranted vehicle relevantly is defined as a used motor vehicle other than an unregistered motor vehicle that is a written-off vehicle.8 [11] Warrantor, of a warranted vehicle, is defined to mean the licensee who owns the vehicle immediately before the time of taking possession.9 [12] Schedule 1 section 14 provides: The buyer may apply, as provided under the QCAT Act, to QCAT for an order under section 15 if the amount or value of other relief sought is no more than $100,000. [13] Schedule 1 section 15 sets out the orders which the Tribunal may make, which includes an order requiring a party to the proceeding to pay a stated amount to a stated person.10 [14] The undisputed evidence is that: (a) no written warranty was provided in relation to the Rav 4; (b) Ms Finch responded to an advertisement on Facebook. A copy of the advertisement is in evidence before me.11 It clearly states that the Rav 4 is being sold ‘As Is’ and that the car has been written off and it has to pass a ‘wovi inspection’; (c) the vehicle was un-registered. [15] I find that the Rav 4 is not a warranted vehicle because it was an unregistered motor vehicle that is a written-off vehicle, which is expressly excluded from the definition. The statutory warranty does not apply to it. [16] The claim under Schedule 1 section 14 of the Act is dismissed. Does the Tribunal have jurisdiction to order a refund, reduction in value and damages for failure to comply with a guarantee that goods correspond with the description against a supplier of a motor vehicle under the ACL (Queensland)? If so, is Ms Finch entitled to such orders? [17] I find the Tribunal has jurisdiction to order amounts for reduction in value and damages for failure to comply with a guarantee that goods correspond with the description. However, I am not satisfied that the Rav 4 did not correspond with the description and therefore I am not satisfied that there was a failure to comply with the guarantee. 6 Motor Dealers and Chattel Auctioneers Act 2014(Qld), Schedule 1 section 1 (definition warranted vehicle) (the Act). 7 Ibid, Schedule 1 section 5. 8 Ibid, Schedule 1 section 3. 9 Ibid, Schedule 1 section 1 (definition warrantor). 10 Ibid, s 15(1)(d). 11 Exhibit 1, attachment. -- 3 of 8 -- 4 [18] During the hearing Ms Finch clarified that her claim for a refund and loss was on the basis that the vehicle was not as described in the advertisement, her discussions with Mr Molinas and in particular, the Personal Property Securities Register (PPSR) report because she says the damage was much more extensive and more costly to repair. She says that if she had been told the true extent of the damage then she would not have purchased the Rav 4. [19] The Competition and Consumer Act 2010 (Cth) (CCA) replaced the Trade Practices Act 1974 (Cth). The Australian Consumer Law (ACL) is in Schedule 2 of the CCA. The ACL has been adopted by the FTA12 and when applied is referred to as the ACL (Queensland). Section 15 of the FTA provides that the text of the ACL(Queensland) consists of Schedule 2 to the CCA. [20] The FTA is an enabling Act. Section 50A of the FTA confers jurisdiction on the Tribunal in relation to motor vehicles in respect of certain actions under the ACL (Queensland) listed in the table to the section where the amount or value of relief is not more than $100,000. [21] Motor vehicle has the meaning provided in section 12(1) of the Act.13 I accept that this action relates to a motor vehicle and seeks an amount of not more than $100,000. Refund under ACL (Queensland)for breach of guarantee [22] I find that the Tribunal does not have jurisdiction to order a refund to Ms Finch under the ACL (Queensland). [23] Section 56 of the ACL (Queensland) relevantly provides: (1) If: (a) a person supplies, in trade or commerce, goods by description to a consumer; and (b) the supply does not occur by way of sale by auction; there is a guarantee that the goods correspond with the description. [24] Section 259(1) of the ACL (Queensland) provides that a consumer may take action against a supplier of goods where a guarantee, in this case that the goods correspond with the description, is not complied with. [25] A person is taken to have acquired goods as a consumer if ‘the goods were of a kind ordinarily acquired for personal, domestic or household use or consumption’.14 There was no contention by Beepz that Ms Finch was not a consumer to displace the statutory presumption.15 I accept Ms Finch’s evidence that she acquired the Rav 4 for her personal use. I accept it was acquired as a consumer. [26] The provisions of the ACL (Queensland) listed in the table to section 50A of the FTA include section 259(2), (3) and (4) in relation to actions against suppliers of goods. Section 259(1) is not included in the table. There is no reference to section 263, which imposes an obligation to refund money paid for the goods, where the consumer rejects the goods in certain circumstances. This is perhaps understandable as section 263 does 12 Fair Trading Act 1989 (Qld), s 16 (FTA). 13 Ibid, s 50A(4). 14 ACL (Queensland), s 3(1)(b). 15 Ibid, s 3(10). -- 4 of 8 -- 5 not expressly provide for an action against the supplier but rather sets out the consequences where a consumer validly rejects the goods under section 259. [27] The table sets out the nature of the proceeding under section 259(3) as an action to recover compensation for reduction in value of goods, which reflects the express action provided for in section 259(3)(b) but not a rejection of the goods as provided for in section 259(3)(a). Again, this is perhaps understandable as section 259(3)(a) does not expressly provide for an action against the supplier for rejection of goods. [28] The Tribunal has recently found that it does not have jurisdiction to hear and determine claims for refunds upon a rejection against a supplier of a motor vehicle under section 50A of the FTA for failure to comply with a guarantee.16 [29] I consider an alternative basis on which the Tribunal may have jurisdiction to order a refund of $3,250 below. Claim for reduction in value or damages under ACL (Queensland) [30] I find the Tribunal has jurisdiction to hear and determine a claim for reduction in value or for damages. [31] Section 259(3) of the ACL (Queensland) provides: 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 (a) 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. [32] The table in section 50A of the FTA sets out the nature of the proceeding under section 259(4) as an action to recover damages because of a failure to comply with guarantee (sic). [33] Section 259(4) of the ACL (Queensland) provides: The consumer may, by action against the supplier, recover damages for any loss or damage suffered by the consumer because of the failure to comply with the guarantee if it was reasonably foreseeable that the consumer would suffer such loss or damage as a result of such a failure. Was there a breach of the guarantee that the Rav 4 correspond with the description? Was it a major failure? [34] I am not satisfied that Ms Finch has established that it is more likely than not that there was a failure to comply with the guarantee. I am not satisfied it was a major failure. [35] Section 260 of the ACL(Queensland) provides: 16 Jarmain v Market Direct Group Pty Ltd t/as MDC Camper Trailers & Offroad Caravans [2022] QCAT 375. -- 5 of 8 -- 6 (1) A failure to comply with a guarantee referred to in section 259(1)(b) that applies to a supply of goods is a major failure if: (a) the goods would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of the failure; or (b) the goods depart in one or more significant respects: (i) if they were supplied by description—from that description; or (ii) if they were supplied by reference to a sample or demonstration model— from that sample or demonstration model; or (c) the goods are substantially unfit for a purpose for which goods of the same kind are commonly supplied and they cannot, easily and within a reasonable time, be remedied to make them fit for such a purpose; or (d) the goods are unfit for a disclosed purpose that was made known to: (i) the supplier of the goods; or (ii) a person by whom any prior negotiations or arrangements in relation to the acquisition of the goods were conducted or made; and they cannot, easily and within a reasonable time, be remedied to make them fit for such a purpose; or (e) the goods are not of acceptable quality because they are unsafe. (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. [36] The undisputed evidence is that: (a) Mr Molinas, on behalf of Beepz, provided a copy of a PPSR report it obtained at the time it purchased the vehicle to Ms Finch prior to Ms Finch inspecting the vehicle in about mid September 2021. A copy of the PPSR report is in evidence before me.17 It clearly shows that the vehicle was written off and outlines six items of damage. Two items are described as ‘heavy structural’. Both of those items are stated to be located at the driver rear i.e. right-hand side rear. (b) Ms Finch and her then partner inspected the vehicle at Beepz premises, the car was placed on a hoist so that it could be inspected from underneath, her then partner drove the car for a short time, and they consulted a repairer. There is some dispute as to whether the consultation was by telephone or video chat; (c) Mr Molinas told Ms Finch that, in his opinion the damage shown on the PPSR report, would cost approximately $1,500 to fix; 17 Exhibit 2, Response filed 11 August 2022 (Response), attachment 3. -- 6 of 8 -- 7 (d) Ms Finch paid $3,250 for the car and a copy of the invoice was emailed to her. The documentary evidence is that it was sent to Ms Finch by email on 27 September 2021.18 [37] Ms Finch’s evidence is that she: (a) relied upon what she was told by Mr Molinas and what was on the PPSR report in purchasing the Rav 4, transported it to the repairer, who had been consulted, she provided a copy of the PPSR report to the repairer and requested the repairs be undertaken for which she paid. A copy of an invoice dated 10 December 2021 is in evidence before me showing work to the value of $1,543. There was no statement of evidence or report from the repairer before me. I asked Ms Finch if she wanted the Tribunal to attempt to call the repairer to give evidence by telephone. She declined the offer. (b) bought new tyres for the car. There is no evidence before me of the amount paid for tyres. (c) obtained a roadworthy certificate at a cost of $87 on 27 January 2022 and then on 3 February 2022 sought a WOVI at a cost of $451, which the vehicle failed because there was damage that had not been repaired. There is no documentary evidence of the cost of either of these expenses before me although Mr Molinas did not dispute that such amounts may have been incurred for those items. (d) transported the vehicle to Gundy Smash Repairs, who prepared a report in relation to damage found on the Rav 4. A copy of the report is in evidence before me.19 The report expresses the opinion that the cost to repair the damage would exceed the market value of the vehicle. (e) sought a replacement vehicle from Beepz20 who refused her claim.21 (f) she retains possession of the Rav 4. [38] During the hearing Mr Pastuch of Gundy Smash Repairs gave evidence, by telephone, in relation to his inspection of the Rav 4 and his report. His evidence was: (a) that all damage is repairable but that his view was that the cost to repair would exceed the market value. He did not give evidence of the market value or the costs of the necessary repairs. (b) that not all items of damage are necessarily included on a PPSR report. Mr Molinas gave evidence to this affect as well. (c) the significant damage to the right-hand rear of the car he noted in his report was in the same area of the car as items of damage noted on the PPSR report and could be the same damage. (d) where a PPSR report highlights damage in a location on a vehicle it puts the reader on alert that other damage may be in that location. [39] I accept Mr Pastuch’s evidence, which was independent of the parties. 18 Ibid, attachment 5. 19 Exhibit 1, attachment undated report, signed by Mark Pastuch. 20 Ibid, attachment, letter dated 8 February 2022. 21 Ibid, attachment, email 14 February 2022. -- 7 of 8 -- 8 [40] I am not satisfied that Ms Finch has established, that it is more likely than not, that the Rav 4 as sold was not as described. [41] Whilst Mr Molinas indicated how much he thought it would cost to repair Ms Finch was alerted to significant damage to the vehicle by the PPSR report and consulted with a repairer before she purchased the Rav 4. The repairer was provided with a copy of the PPSR report and requested to repair the damage. The repairer charged her about $1,500 for its work. [42] The car was advertised as sold ‘as is’ and that it required a WOVI. There is no evidence before me that Ms Finch rejected the ‘as is’ condition before buying the vehicle and that Beepz agreed that it was not sold ‘as is’. The invoice/receipt22 in evidence before me is evidence that the condition ‘as is’ remained part of the informal contract of sale. [43] I find that the description of the vehicle alerted a reasonable consumer to the possibility that the damage may be more extensive than it first appeared and may therefore be more costly to repair. [44] I am not satisfied that Ms Finch has established that Beepz failed to comply with the guarantee. I am not satisfied that the Rav 4 departed in one or more significant respects from the description taken as a whole and therefore I am not satisfied any departure from the description was a major failure. [45] The claims for reduction in value and damages ought to be dismissed. Alternative claim for Refund of $3,250 [46] The Tribunal has jurisdiction in relation to a claim arising out of a contract between a consumer and a trader for payment of money of a value not more than $25,000 in its minor civil dispute jurisdiction where section 50A of the FTA does not apply.23 [47] For the reasons set out earlier, I am not satisfied that Ms Finch has established that it is more likely than not, that Beepz has breached the informal contract for the supply of the Rav 4. I am therefore not satisfied any entitlement to damages for breach has arisen. 22 Exhibit 1, attachment. 23 QCAT Act, s 11, Schedule 3 (definitions ‘consumer’, ‘minor civil dispute 1 (b)(i) and 3’, ‘trader’). -- 8 of 8 --