Applicant MH v Nexbridge Pty Ltd trading as Queensland RV [2021] QCAT 294

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Applicant MH v Nexbridge Pty Ltd trading as Queensland RV [2021] QCAT 294 PARTIES: APPLICANT MH (applicant) V NEXBRIDGE PTY LTD TRADING AS QUEENSLAND RV (respondent) APPLICATION NO/S: MVL218-20 MATTER TYPE: Motor vehicle matters DELIVERED ON: 9 July 2021 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Cranwell ORDERS: The application – motor vehicle dispute filed on 2 October 2020 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 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 – whether supplier engaged in misleading or deceptive conduct Australian Consumer Law, s 18, s 54, s 236, s 259, s 260, s 262, s 263 Competition and Consumer Act 2010 (Cth), Schedule 2 Fair Trading Act 1989 (Qld), s 50A Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 93 Medtel Pty Ltd v Courtney (2003) 130 FCR 182 APPEARANCES & REPRESENTATION: Applicant: Self-represented -- 1 of 12 -- 2 Respondent: Self-represented REASONS FOR DECISION On 2 October 2020, Applicant MH (‘the applicant’) filed an Application – Motor Vehicle Dispute with the Tribunal. The respondent is Nexbridge Pty Ltd trading as Queensland RV (‘the respondent’). The applicant is the owner of a 2014 Kea Ultima campervan (‘the motor vehicle’). The applicant purchased the motor vehicle from the respondent on 15 July 2020 for $64,990. The applicant sought relief under the Australian Consumer Law, which is Schedule 2 to the Competition and Consumer Act 2010 (Cth). Section 50A of the Fair Trading Act 1989 (Qld) vests the Tribunal with jurisdiction in relation to motor vehicles in respect of certain actions under the Australian Consumer Law. The relief sought by the applicant is a refund plus damages. Australian Consumer Law provisions Misleading or deceptive conduct Section 18(1) of the Australian Consumer Law provides that: A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive. Consumer guarantees Section 54(1) of the Australian Consumer Law provides that, where a person supplies goods in trade or commerce, the goods are guaranteed to be of ‘acceptable quality’. The time at which goods are to be of acceptable quality is the time at which the goods are supplied to the consumer: Medtel Pty Ltd v Courtney (2003) 130 FCR 182 at [64] and [70]. However, information available after the time of supply may be taken into account in deciding whether the goods were of acceptable quality at the time of supply. Sections 54(2) and (3) of the Australian Consumer Law 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; -- 2 of 12 -- 3 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. Evidence It is not in dispute that the applicant entered into a contract to purchase the motor vehicle from the respondent on 15 July 2020. The contract described the motor vehicle as a Kea Ultima campervan with VIN number [omitted]. The motor vehicle was recorded in the contract as having a compliance plate date in 2014, and an odometer reading of 277,346 km. The applicant has made a lengthy list of complaints about the motor vehicle. James Roche provided a written statement on behalf of the respondent, disputing many of the applicant’s complaints. For convenience, I will deal with each of the complaints in turn. Missing hub cap The applicant claims that the motor vehicle was supplied without a hub cap on the front wheel on the driver’s side. Mr Roche claims that all four hub caps were in place when the motor vehicle was delivered to the applicant. He stated that it is common for hub caps to fall off if the motor vehicle comes into contact with the kerb. In her evidence in reply, the applicant stated: Yes it could have dropped off somewhere but a missing hub cap fits with the shabbiness of the vehicle … In these circumstances, I am not satisfied that the motor vehicle was supplied with a missing hub cap. Hole in seat The applicant claims that the motor vehicle was supplied with a hole in the driver’s seat upholstery. She provided a close up photograph purportedly depicting a large hole. -- 3 of 12 -- 4 Mr Roche claims that the hole in the driver’s seat was not there when the motor vehicle was delivered to the applicant. Further, Mr Roche provided a photograph of a five cent piece next to the hole, showing it to be a small fraction of the size of the five cent piece. In her evidence in reply, the applicant stated: I saw it before hopping into the van to drive away. If the applicant had noticed the hole in the seat before taking possession of the motor vehicle, I would have expected that she would have raised it with the respondent at the time. Given that she did not do so, I am not satisfied that the motor vehicle was supplied with a hole in the driver’s seat upholstery. Stain on floor The applicant claims that the motor vehicle was supplied with a sticky stain on the floor. The applicant provided the Tribunal with very poor quality photograph purportedly depicting a large stain. Mr Roche claims that the stain was not on the floor when the motor vehicle was handed over. I am mindful of the photograph of the hole in the seat provided by the applicant which, as noted above, gave a false impression of the size of the hole. The quality of the photograph of the stain is such that I am unable to identify the size or nature of the claimed stain. In these circumstances, I am not satisfied that there was a stain on the floor of the motor vehicle at the time of supply. Dining table inoperable The applicant claims that the motor vehicle was supplied with the dining table inoperable, as there was no fixture to support the table leg. Mr Roche claims that the respondent inspected the dining table and that it was working. Photographs were provided of the brackets in which the table leg was to be mounted. In these circumstances, I am not satisfied that the dining table was inoperable. Crack on outside compartment door The applicant claims that the motor vehicle was supplied with a crack on one of the outside compartment doors. Mr Roche claims that the alleged crack was a black stain which was easily removed with a wet cloth. In her evidence in reply, the applicant stated: QRV has tampered with the evidence. They cleaned up the crack, use (sic) silicone or a similar substance to try to hide it and then drew a ‘dirty’ line back in. This line was easily washed away by a shower of rain. -- 4 of 12 -- 5 I regard this explanation by the applicant as farfetched. In these circumstances, I am not satisfied of the existence of a crack on one of the outside compartment doors. Dashboard paper clip broken The applicant claims that the motor vehicle was supplied with the dashboard paper clip glued on rather than being attached with a spring. There is no evidence before me as to whether the motor vehicle was originally manufactured with the dashboard paper clip glued on or attached with a spring. Nor is there any evidence before me as to the circumstances in which the applicant broke the dashboard paper clip. In these circumstances, I am not satisfied that the dashboard paper clip was defective or lacking in durability at the time of supply. Clipseal on driver’s side broken The applicant claims that the motor vehicle was supplied with the clipseal on the driver’s side broken. This has since been repaired. In these circumstances, I accept that the clipseal on the driver’s side was defective at the time of supply. Remote control would not open main cabin door The applicant claims that the motor vehicle was supplied with the remote control not being able to open the main cabin door. This has since been repaired. In these circumstances, I accept that the remote control was not operating properly at the time of supply. Hail damage The respondent inspected the motor vehicle for the purposes of obtaining an expert’s report in these proceedings. It returned the motor vehicle with a note that the motor vehicle had hail damage to its bonnet. The applicant has admitted that the motor vehicle was hailed on while stored at her daughter’s place, but that the hail appeared quite small. The respondent has provided evidence that there were no hail events at the relevant time at its location. To the extent that the motor vehicle has suffered hail damage, it appears to me that the most likely cause was when the motor vehicle was known to have been exposed to hail at the applicant’s daughter’s place. I do not accept that the motor vehicle was supplied with hail damage, or that hail damage occurred during inspection of the motor vehicle by the respondent. Motor vehicle substituted The applicant claims that she inspected and test drove a campervan at the respondent’s premises. She claims that the motor vehicle she was supplied with was a different vehicle to the one that she inspected and test drove. -- 5 of 12 -- 6 Mr Roche strenuously denies this. As noted above, the applicant entered into a contract with the respondent for the purchase of a Kea Ultima campervan with VIN number [omitted]. There is no evidence before me that the motor vehicle supplied to the applicant has a different VIN number to the one she contracted to purchase. Further, if the respondent had substituted a different motor vehicle, I would have expected the applicant to have raised this with the respondent and refused to take delivery. She did not. In these circumstances, I am not satisfied that the respondent substituted a different motor vehicle to the one that the applicant inspected, test drove and contracted to purchase. Faulty transmission The applicant claims that the transmission on the motor vehicle does not downshift when travelling at speed downhill. The applicant provided a report from Sommer Car Care dated 1 September 2020. The report contains a single sentence in relation to the transmission issue: Roadtest vehicle noticed vehicle downshifting when coming closer to stopping but not at higher speeds. Scan vehicle for faults there are fault in some modules but none in abs or transmission. Observed live data and found no anomalies vehicle is staying in the gear it is commanded to also checked abs module data and vehicle is seeing inclination when doing down hill. Reading self-study program (ssp) from VW on this gearbox there is no mention of hilldesent (sic) assist or control but there is mention of hill start assist. On another road test to test hill start assist it is functioning as designed which indicates that if the transmission was supposed to downshift when going down hill it would be. Possibly the transmission is not being used to slow the vehicle due to not wanting to wear the clutch prematurely this is only a possibility as I can find no hard manufacturer information to say weather (sic) it should or should not. Mr Roche claims that the respondent advised the applicant that the transmission would only downshift if she applied the brakes to slow the motor vehicle. The respondent had the motor vehicle inspected by Ron Hill Auto & Transmissions on 17 November 2020. Mr Hill’s conclusions as set out in his report were as follows: 2014 VW Crafter uses an automated manual transmission system. This vehicle has been assessed whilst driving various terrains, up hill, down hill, town driving and high way driving. Transmission performed as per manufacturer design, quality gear shifts and shift points are within parameters. In conclusion, the vehicles (sic) transmission system is in good health and operating as per manufactures (sic) design. -- 6 of 12 -- 7 The report from Sommer Car Care does not conclude that the transmission is operating outside the manufacturer’s design parameters. Mr Hill’s report positively concludes that it is operating within those parameters. In the circumstances, I am not satisfied that the motor vehicle had a defective transmission at the time of apply. Fault codes The report from Sommer Car Care dated 1 September 2020 noted a number of fault codes with the motor vehicle. The respondent provided a report from Michael Sugden of Battery Wise. Mr Sugden stated: 1. System scanned and codes found to be same codes as listed by Sommer Car Care. No codes found to be critical. 2. Codes cleared and vehicle test driven, vehicle drove and performed correctly, engine revving and gearbox shifting as we would expect it to being the style of gearbox. 3. Re-scanned vehicle after test drive and none of the codes that were cleared re-appeared during test drive, codes that were cleared were historic and not present in the vehicle. In her evidence in reply, the applicant stated: When I spoke to Clayton Olive from Sommer Car Care on 18 September 2020 he did say that most of the faults mentioned on pages 2 and 3 may not be an issue which is why I used the term of them possibly being benign in my earlier statement. In these circumstances, I am not satisfied that any of the fault codes relate to an issue with the motor vehicle at the time of supply. Turbo control valve The report from Sommer Car Care dated 1 September 2020 also noted that the motor vehicle: Has fault in engine for turbo position sensor intermittent fault – see fault code report attached to this invoice. In a further report dated 25 September 2020, Sommer Car Care stated: The engine control module reported an intermittent fault code for turbo vane position sensor P2563/09571 Turbocharger (TC) boost control position sensor – range/performance problem. The engine control module monitors the position of the actuator for the turbo vane position to control the level of boost pressure from the turbo to engine if the position sensor fails the turbo vane actuator will be placed in a fully open position which will provide minimal boost pressure from the turbo and cause the vehicle to have reduced power (limp home mode) which could present safety issues in such a large vehicle if it happened in the wrong circumstance. -- 7 of 12 -- 8 At this point the only reliable source for a new actuator with position sensor is via a Volkswagen dealer and is only sold as a complete turbo unit which will be relatively costly repair if the sensor fails completely. Mr Roche provided a tax invoice indicating that the turbo control valve was replaced by Adrian’s Mechanical Services on 14 July 2020, which was the day before supply of the motor vehicle to the applicant. The Sommer Car Care report was based on the existence of a fault code. As noted above, Mr Sugden indicated none of the fault codes were current. In the circumstances, and in the absence of evidence to the contrary, I find that the issue identified in the Sommer Car Care report had already been rectified by the replacement of the turbo control valve. In other words, the fault code identified by Sommer Car Care was historic and did not relate to the condition of the motor vehicle at the time of supply. Trade in The applicant claims that she was misled in relation to the trade in value of her Suzuki Alto. She stated that she was told that it was worth $2,500, but the value appears on the contract as $5,990. The applicant stated that she was told that this was some sort of creative accounting. I must confess to not understanding the applicant’s complaint in relation to the trade in value of the motor vehicle. It appears that the respondent increased the trade in value of the motor vehicle, which was in the applicant’s favour. I will give no further consideration to this claim. RACQ report In directions made on 11 November 2020, the applicant’s evidence in chief was due by 2 December 2020 and her evidence in reply was due by 6 January 2021. The applicant filed a report from the RACQ dated 7 May 2021. Notwithstanding the applicant’s failure to comply with the directions, and in order to give her every opportunity to present her case, I will proceed to consider the RACQ report. The RACQ report was prepared almost 10 months after the applicant took delivery of the motor vehicle. The report identified what it described as three defects requiring attention: (a) The return power steering hose was leaking. (b) There was evidence of an oil leak in the lower engine area. (c) There were unspecified diagnostic codes present. The RACQ mechanic offered no opinion as to whether the return power steering hose leak or the oil leak in the lower engine area were likely to have been present almost 10 months earlier at the time of supply. Nor did he offer an opinion as to whether these issues might reasonably be expected in a vehicle that was six years old and had travelled 277,346 km as at the date of supply. -- 8 of 12 -- 9 While the RACQ mechanic noted the presence of diagnostic codes, he did not provide any details of those codes or explain whether they had any relationship to the codes identified by Sommer Car Care previously (including the turbo control valve). In these circumstances, I am not satisfied that there were any additional defects present at the time of supply beyond those I have identified previously, or that the motor vehicle was otherwise lacking in durability at the time of supply. For completeness, I note the RACQ mechanic identified a number of other items which he did not categorise as defects, and opined that: This vehicle is considered to be in fair condition Consideration In summary, the applicant has presented a lengthy list of complaints, many of which I have rejected. However, I have accepted that: (a) The clipseal on the driver’s side was supplied broken. This has since been repaired. (b) The remote control did not operate the main cabin door at the time of supply. This has since been repaired. I am mindful that the motor vehicle was six years old when purchased, and had travelled 277,346 km. A reasonable purchaser would not expect a motor vehicle of that age and one that had travelled that far to be in perfect condition. The applicant in expressing her expectations appears to have had little regard to the fact that she was not purchasing a new vehicle. However, the applicant did pay $64,990 for the motor vehicle. Given the cost of the motor vehicle and the two complaints which I have accepted, I find that a reasonable consumer fully acquainted with the state of the motor vehicle at the time of purchase would not regard the motor vehicle as free from defects. Remedies The remedy available to the consumer against the supplier depends in the first instance on whether the failure is a ‘major failure’. That term is defined in s 260 of the Australian Consumer Law to relevantly mean: (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 -- 9 of 12 -- 10 (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. In the present case, I have found that the applicant’s motor vehicle had a broken clipseal on the driver’s side and a problem with the remote control operating the main cabin door. I consider these items to be minor. As noted above, the RACQ considered the motor vehicle to be in fair condition. In these circumstances, I am not satisfied that there is a major failure for the purposes of any of the tests contained in s 260 (which I have set out above). In the case of a failure which is not a major failure, the remedies available to the applicant are set out in s 259(2) of the Australian Consumer Law as follows: (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. As the broken clipseal on the driver’s side and the problem with the remote control operating the main cabin door have already been repaired, I find that the applicant has exhausted her remedies under s 259(2). -- 10 of 12 -- 11 Even if I am wrong and there are failures of the guarantee of acceptable quality which amount to a major failure, s 262(1)(c) does not permit rejection of the goods if the they have been ‘damaged after being delivered to the consumer for reasons not related to their state or condition at the time of supply’. As noted above, I have found that the motor vehicle sustained hail damage while stored at the applicant’s daughter’s place. At the time of the hail damage, the applicant had not returned the motor vehicle to the respondent by the applicant as required by s 263(2). The hail damage was not related to the state or condition of the motor vehicle at the time of supply, and as a consequence the applicant is precluded from rejecting the motor vehicle in any event. Damages The Tribunal is vested with jurisdiction in respect of actions under s 259(4) of the Australian Consumer Law, which 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. The applicant claims $179.50, being the cost of the report from Sommer Car Care. While a report of this type might ordinarily be considered to be a reasonably foreseeable expense, the difficulty in the present case is that I have not accepted that any of the faults identified in the Sommer Car Care were in existence at the time of supply. In these circumstances, the cost of the report is not recoverable. The applicant claims the costs of comprehensive car insurance. I am not satisfied this was caused by the respondent’s failure to comply with the guarantee of acceptable quality. Insurance is a routine expense associated with operating a motor vehicle. The applicant claims $5,000 for: psychological and physical stress caused by the trickery played on me with its associated deceit and dishonesty, and the realisation that I had been sold a van that is in need of costly repairs, is not fit for purpose and is unsafe to drive. It is evident from the emotive language used throughout the applicant’s evidence that this matter has caused her considerable distress. However, when viewed objectively, it seems to me that there is nothing in the respondent’s conduct that would justify an award of damages of the nature claimed by the applicant. The applicant claims $3,416 in loss of earnings on the superannuation she withdrew to purchase the motor vehicle. In Vautin v BY Winddown, Inc (formerly Bertram Yachts) (No 4) [2018] FCA 426 at [293], Derrington J stated: It would appear that this subsection is concerned with the recovery of ‘reliance losses’ as the inclusion of the limitation of ‘reasonable foreseeability’ pertains to such losses rather than expectation losses. The applicant’s loss of earnings is an expectation loss and not a reliance loss, and is not recoverable. The applicant also claims $2,000 for ‘loss of a reliable car’. In circumstances where I have found the applicant is not entitled to reject the motor vehicle, and will continue -- 11 of 12 -- 12 to have the benefit of the motor vehicle, I am unable to see any basis for these damages. Misleading or deceptive conduct Section 236 of the Australian Consumer Law provides: (1) If: (a) a person (the claimant ) suffers loss or damage because of the conduct of another person; and (b) the conduct contravened a provision of Chapter 2 or 3; the claimant may recover the amount of the loss or damage by action against that other person, or against any person involved in the contravention. I have rejected the applicant’s claims that the respondent substituted the motor vehicle with the one that she had inspected, test driven and contracted to purchase. I have also been unable to make any sense of the applicant’s claim that she received more for the trade in of her Suzuki Alto than she was initially told. For completeness, I note that the applicant gave evidence in her statement filed on 2 December 2020 that the salesperson represented that the motor vehicle would be ‘thoroughly checked, and repaired if necessary, to ensure [it was] in good condition and sound working order’. In submissions filed on 12 May 2021, the applicant amended this to claim that the salesperson represented that the motor vehicle was in ‘excellent working order’. I consider that the earlier version provided by the applicant to be the most reliable, and the later version likely to be exaggerated. While I have accepted two of the applicant’s complaints, these were repaired by the respondent. The RACQ also considered the motor vehicle to be in fair condition. In these circumstances, I am unable to identify any significant disparity between the condition of the motor vehicle and the representations made by the salesperson that the respondent would ensure it was in good condition and sound working order. Accordingly, I am not satisfied that the respondent has engaged in misleading or deceptive conduct for the purposes of s 18(1) of the Australian Consumer Law, and accordingly the applicant is not entitled to damages under s 236. Costs Section 50C of the Fair Trading Act 1989 (Qld) provides that the Tribunal may make a costs order against the respondent in the amount of the prescribed filing fee paid by the applicant. This power is subject to s 102(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), which provides that the Tribunal may make a costs order if the interests of justice require it. The applicant has been unsuccessful in the proceedings. In these circumstances, I do not consider that it is in the interests of justice to order the respondent to pay the filing fee of $345.80. Orders The application is dismissed. -- 12 of 12 --