Boers v Blue Star Autos Pty Ltd & Ors [2022] QCATA 77

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Boers v Blue Star Autos Pty Ltd & ors [2022] QCATA 77 PARTIES: TIMOTHY MARINUS BOERS (applicant/appellant) v BLUE STAR AUTOS PTY LTD (First respondent) MV AUTO WORKSHOP (Second respondent) APPLICATION NO/S: APL036-21 ORIGINATING APPLICATION NO/S: MVL081-20 MATTER TYPE: Appeals DELIVERED ON: 10 June 2022 HEARING DATE: 31 May 2022 HEARD AT: Brisbane DECISION OF: A/ Senior Member Traves ORDERS: The application for leave to appeal is refused. The appeal fails. CATCHWORDS: APPEAL – APPLICATION FOR LEAVE TO APPEAL – TRADE AND COMMERCE – COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION – GUARANTEES, CONDITIONS AND WARRANTIES IN CONUSMER TRANSACTIONS – where defects in used vehicle purchased from motor dealer- where some defects found to be covered by statutory warranty – where other defects and costs not covered by statutory warranty – whether grounds to interfere with decision at first instance – leave to appeal refused. Motor Dealers and Chattel Auctioneers Act 2014 (Qld), Schedule 1, s 15, s 18 Motor Dealers and Chattel Auctioneers Regulation 2014 (Qld), s 47 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 11, s142, Schedule 3 Nadalin v Hartl [2019] QCATA 55 -- 1 of 7 -- 2 APPEARANCES & REPRESENTATION: Applicant: Self-represented Respondent: Self-represented REASONS FOR DECISION [1] Mr Boers is seeking leave to appeal and to appeal a decision which allowed some claims for the cost of repairing defects in a used 2009 BMW under the motor dealers statutory warranty scheme and disallowed others. The claim was made pursuant to Schedule 1, s 14 of the Motor Dealers and Chattel Auctioneers Act 2014 (Qld) (the Motor Dealers Act). The decision at first instance [2] The Tribunal at first instance ordered Blue Star Auto Sales Pty Ltd (Blue Star) to pay to Mr Boers the sum of $1,034.77 and a further $123.20 in costs. The application against MV Auto Workshop was dismissed. Mr Boers confirmed in the appeal hearing that he did not wish to appeal the decision made in respect of MV Auto Workshop. [3] The Tribunal allowed claims in respect of the following: the purchase of coolant; the purchase of a coolant expansion tank; the purchase of oil; and for work undertaken by RXA Automotive. The Tribunal also allowed an amount for fuel because the car had been driven several hundred kilometres without explanation when it was in the possession of Blue Star for repairs in December 2019. The Tribunal also allowed $123.20 in costs. [4] The Tribunal refused the following claims: (a) $70.45 for ‘Windscreen Top Rubber Seal’; (b) $113.98 for ‘Head Light Repair Kit’; (c) $20.48 for a taxi fare on the day of purchase; (d) $275 for stamp duty; and (e) $363.28 and $280 for inspections carried out by Accelerate Automotive. [5] Mr Boer seeks to appeal each of these items. He has also identified a number of alleged factual errors in the decision. As they do not affect the decision I will say no more about them. Application for leave to appeal [6] An appeal to the Appeal Tribunal on a question of law is as of right.1 An appeal on a question of fact or mixed law and fact may only be made with the leave of the Appeal Tribunal.2 If an appeal is against a decision on a question of fact only or a question of mixed law and fact, and leave to appeal is granted, the appeal must be decided by way 1 Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), s 142(1). 2 QCAT Act, s 142(3). -- 2 of 7 -- 3 of rehearing with or without the hearing of additional evidence as decided by the Appeal Tribunal.3 [7] In deciding the appeal, the Appeal Tribunal may confirm or amend the decision, set aside the decision and substitute its own decision, or set aside the decision and return the matter to the tribunal for reconsideration.4 [8] The relevant principles to be applied in determining whether to grant leave to appeal are: is there a reasonably arguable case of error in the primary decision?; is there a reasonable prospect that the applicant will obtain substantive relief?; is leave necessary to correct a substantial injustice to the applicant caused by some error?; is there a question of general importance upon which further argument, and a decision of the appellate court or tribunal, would be to the public advantage? If an appeal involves a question of law, unless the determination of the error of law decides the matter in its entirety in the appellant’s favour, the proceeding must be returned to the tribunal for reconsideration. Grounds of appeal [9] I turn now to deal with each item the subject of appeal. Windscreen seal [10] Mr Boer submits that he should be entitled to recover the cost of this item ($70.45). Since the hearing at first instance, Mr Boers has added a further claim for $150 for labour by the owner to install the windscreen seal. The amount for labour was Mr Boer’s estimate of how long it took to replace the seal. Mr Boer did not provide any evidence to support this claim and it was not a claim made in the original hearing or in his application for leave to appeal. [11] The claim for the cost of the windscreen seal was refused because it was not included by Mr Boer in the defect notices he sent to the dealer and accordingly was not covered by the statutory warranty scheme. [12] Mr Boer admitted in the Appeal Tribunal that he had not notified this defect to the dealer. The Tribunal under s 15(1)(d) of Schedule 1 to the Motor Dealers Act has power to make an order requiring a party to pay a stated amount to a stated person. Section 15(2) provides: (2) Without limiting subsection (1)(d), QCAT may make an order that the warrantor pay to the buyer a stated amount QCAT decides is the reasonable cost of having a defect repaired if— (a) the warrantor has, by warranty advice or otherwise, refused to accept that the defect is covered by the statutory warranty; and (b) the buyer has had the defect repaired by another person; and (c) QCAT decides that the defect was one to which the statutory warranty applied. [13] In this case the warrantor, namely Blue Star, had not “refused to accept that the defect [was] covered by the statutory warranty”.5 Blue Star had not, as Mr Boer accepted, 3 QCAT Act, s147(1), s 147(2). 4 QCAT Act, s147(3). 5 Motor Dealers Act, s 15(2)(a). -- 3 of 7 -- 4 been made aware of the defect. It follows that it could not be said Blue Star had refused to accept it was covered. [14] Accordingly, I see no error in the approach of the Member. Head Light Kit [15] Mr Boer submits that he is entitled to $113.98 for a ‘Head Light Repair Kit’ as well as a further $150 for labour costs. Again, the labour costs were added late to his appeal, they were not claimed below, and there was no evidence in support of the labour costs. [16] The Tribunal refused the claim for the ‘Head Light Repair Kit’ on the basis of the exclusion in s 47 of the Motor Dealers and Chattel Auctioneers Regulation 2014 (Qld) (the Regulation). [17] Section 8 of the Motor Dealers Act sets out defects that are not covered by the statutory warranty. Section 8 provides: 8 Defects not covered by statutory warranty The following defects in a warranted vehicle are not covered by the statutory warranty— (a) a defect in the vehicle’s paintwork or upholstery that should have been apparent on any reasonable inspection of the vehicle before the time of taking possession; (b) a defect after the time of taking possession— (i) arising from or incidental to any accidental damage to the vehicle; or (ii) arising from the buyer’s misuse or negligence; or (iii) in an accessory to the vehicle not fitted to the vehicle when sold to the buyer; (c) a defect in something else prescribed by regulation. [18] Section 47 of the Regulation provides: 47 Defects not covered by statutory warranty For schedule 1, section 8(c) of the Act, the following are prescribed as defects in a warranted vehicle that are not covered by the statutory warranty— (a) a defect in the vehicle’s fitted airbag; (b) a defect in the vehicle’s installed audio entertainment device; Example of an audio entertainment device— a radio, tape recorder, CD player or a device, for example, a digital audio device, that performs a comparable function (c) a defect in any of the following— (i) a tyre or tyre tube; (ii) a battery; (iii) a light other than a warning light or a turn indicator light used as a hazard light; (iv) a radiator hose; -- 4 of 7 -- 5 (v) a radio aerial or other aerial; (vi) spark plugs; (vii) distributor points; (viii) wiper rubbers; (ix) oil or an oil filter; (x) a fuel filter or air filter; (xi) a hose for a heater unit; (d) for a class B warranted vehicle, a defect in the vehicle’s air-conditioning system. [19] The Tribunal found that the head light repair kit was excluded under s 47(c)(iii) of the Regulation and therefore refused the claim. [20] Mr Boer submitted in the appeal hearing that the defect was not in the light but with the protective plastic cover of the head lights which had oxidised due to exposure to the sun. This had caused the covers to become cloudy which in turn meant that the light from the head lamps appeared yellow. [21] The Tribunal has taken a broad interpretation of the exclusion, so that ‘light’ includes the cover of the light. That is a reasonable interpretation, particularly where the cover affects the light being emitted from the light, and I find no error in that approach. Taxi fare and Stamp Duty [22] The Tribunal did not allow these claims on the basis they did not have sufficient connection with particular repairs to be the subject of an order. [23] The taxi fare was incurred on the day of sale, prior to any defects having been discovered. The stamp duty was a normal incident of the sale transaction and, again, nothing to do with any alleged defects. [24] I see no error in the approach of the Member. Diagnostic inspections [25] In respect of the two items for $368.28 and $280 the Tribunal held: Mr Boers also claims $363.28 and $280.00 for the inspections carried out by Accelerate Automotive. I do not consider that they are amounts for which awards should be made. They were, essentially, for diagnostic assessments. There is no requirement for a buyer to obtain an expert assessment in order to issue a defect notice. A defect, as defined in the scheme, is indicated by impairment of function rather than by way of underlying cause. The buyer does not have to diagnose the cause. If a buyer chooses to obtain an assessment, that is not a cost which should be passed on to the dealer.6 [26] Mr Boer submitted in the appeal hearing that these amounts should have been allowed because, in effect, they were so closely associated with the repair of his motor vehicle, that the costs should be categorised as repair costs. Mr Boer also submitted that the 6 Boers v Blue Star Auto Sales Pty Ltd & Anor [2021] QCAT 17 at [52]. -- 5 of 7 -- 6 costs were costs that the dealer would have had to incur had he not undertaken the testing. Mr Boer in written submissions stated: Diagnostic Assessments were carried out to determine if any fault codes were recorded within the Engine or Exhaust System, these fault codes were recorded, then referenced to the manufacturer’s manual, to then determine what these codes referred to, and which repairs were required. It is not a choice it is a diagnostic tool – (computer and software) used by mechanics to determine what repairs are needed to the vehicle. This process is part of the Repair Process, as the Mechanic has to determine what needs to be repaired before they can repair it. These tests were repeatedly performed because the vehicle had repeatedly registered fault codes after the dealer had purported to have repaired the vehicle. This diagnostic assessment is also used to cancel fault codes, these fault codes remain visible on the dashboard instrument cluster, until the fault codes have been cancelled, by the same instrument that reads the fault codes.7 [27] Blue Star submitted in response that they should not be liable for costs they did not know the buyer was going to incur and further, that they could have undertaken these tests at a reduced price. [28] The Tribunal has broad power to order a party pay a stated amount to a stated person. Section 15(2) of the Motor Dealers Act provides that “without limiting subsection (1)(d)” QCAT can make an order that the warrantor pay to the buyer of the ‘reasonable cost of having a defect repaired’. However, the power is qualified by defining the circumstances in which this can occur, namely, where: (a) the warrantor has refused to accept the defect is covered; (b) the buyer has had the defect repaired; and (c) QCAT decides the defect was one to which the statutory warranty applied. [29] The Member at first instance considered that the power to order payment must be related to the purpose of the scheme and, accordingly, that the diagnostic testing fell outside what was recoverable. [30] While the testing occurred in the context of Blue Star’s refusal to accept that vehicle was unroadworthy and needed major mechanical repairs, as the Member said, the defect notice does not need to identify a cause of the defect, only impairment of function. In those circumstances, the amount, in my view, is not intended to be covered by the warranty scheme. Accordingly, I find no error in the Member’s approach to the cost of diagnostic testing. Should leave to appeal be granted? [31] On balance I am not satisfied that there is an error of law or fact such as to warrant granting leave to appeal. [32] I am not satisfied there is a reasonably arguable case of error in the primary decision or a reasonable prospect that Mr Boers will obtain substantive relief. It follows that I do not consider leave is necessary to correct a substantial injustice to Mr Boers caused by some error. 7 Submissions by the appellant filed on 20 May 2021 at 3. -- 6 of 7 -- 7 [33] This is also not a matter where a question of general importance upon which further argument, and a decision of the appellate court or tribunal, would be to the public advantage. [34] An application for leave to appeal is not an opportunity to reargue those items or grounds on which a party has not been successful. I accept that Mr Boers has a deep sense of grievance, particularly as he alleged in the hearing of the appeal, in circumstances where Blue Stars have re-advertised the car for sale in the same condition. However, that is not a sufficient basis upon which to grant leave to appeal, nor is it enough for Mr Boers to entertain a subjective feeling that justice has not been done, or, as he said, that he hoped on appeal a more lateral approach to the legislation would be taken. Where reasonable minds may differ as to the proper construction of a statute, a decision cannot properly be called erroneous, simply because one conclusion has been preferred to another sensible view. [35] Accordingly, leave to appeal is refused. The appeal therefore fails. -- 7 of 7 --