Barrett v Reef City Motors Pty Ltd & Anor [2020] QCAT 474

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Barrett v Reef City Motors Pty Ltd & Anor [2020] QCAT 474 PARTIES: PAUL BARRETT (applicant) v REEF CITY MOTORS PTY LTD (first respondent) KIA MOTORS AUSTRALIA PTY LTD (second respondent) APPLICATION NO/S: MVL090-19 MATTER TYPE: Motor vehicle matters DELIVERED ON: 3 December 2020 HEARING DATE: 24 November 2020 HEARD AT: Brisbane DECISION OF: Member Cranwell 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 motor vehicle of acceptable quality Competition and Consumer Act 2010 (Cth), Schedule 2 – Australian Consumer Law s 54 Fair Trading Act 1989 (Qld), s 50A Medtel Pty Ltd v Courtney (2003) 130 FCR 182 APPEARANCES & REPRESENTATION: Applicant: Self-represented First respondent: Self-represented Second respondent: Self-represented -- 1 of 7 -- 2 REASONS FOR DECISION On 17 December 2019, Mr Barrett (the applicant) filed an Application – Motor Vehicle Dispute with the Tribunal. The respondents are Reef City Motors Pty Ltd (the first respondent) and Kia Motors Australia Pty Ltd (the second respondent). The applicant is the owner of a 2016 Kia Sportage GT (the motor vehicle). The applicant purchased the motor vehicle from the first respondent on 11 April 2016 for $47,000. The applicant seeks relief under the Australian Consumer Law, which is Schedule 2 to the Competition and Consumer Act 2010 (Cth). The relief sought by the applicant is a refund plus $100,000 in damages for stress and anxiety. 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. Australian Consumer Law provisions 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; 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 -- 2 of 7 -- 3 (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 The applicant is unable to read and write, and complains of memory loss. I offered to adjourn the hearing so that he could obtain the assistance of a support person or representative, but he indicated that he wished to proceed. Out of an abundance of caution, I also read the first respondent’s statement out loud at the hearing, to ensure that the applicant was aware of its case. The applicant’s main complaint is a knocking noise at the left hand rear of the motor vehicle. This did not manifest itself until some time after the 30,000 km service. The applicant stated that the noise occurs once the motor vehicle reaches 35 km/h. The noise does not affect the motor vehicle’s performance, but is a nuisance. The applicant also claimed at the hearing that the automatic braking system stopped working about a week and a half ago. The applicant provided a letter from Jeffrey Cant of JC’s Mobile Roadworthy and Inspection dated 20 October 2019. The letter states: On driveing (sic) this vehicle on numerous occasions at verious (sic) times of the day a disticent (sic) noise or loude (sic) bang is heard when car is cole (sic) or been sitting for half hr or so as it reaches 35 KPH it will only accure (sic) once, noise coming from rear left of car as vehicle has a high standard of sound proofing a (sic) exact pin point to its sauce (sic) is very hard to pin point, the bang is more audable (sic) on a very smooth service and have heard it when in reverse. A full fuel tank also changes the noise leval (sic) this happened at app 28000 km now has 32941 km. In my appionin (sic) it is not a suspenshion (sic) or body mouting (sic) issue as it can’t be replacted (sic), it seemes (sic) to be a mechanical issue for example this vehicle has a solinide (sic) on rear diff which may be engaging or disinguaging (sic) at the exact speed every time this could be caused be a too heave (sic) oil in system. I have driven and been in the vehicle many times to determin (sic) the cause of this noise but haven’t been able to pin point it, yet it is there every time once you have heard it. In my appion (sic) this is not a go away problem it is rear (sic) and very annoying, I would say when found would be a simple fix but to find the cause is the hard part. The applicant also provided an undated letter from Neil Streeter of Future Ron Streeter Motors Pty Ltd. The letter states: We have been asked by Paul Barrett to inspect the following reported faults.  Noise @ rear. heard noise once you reach approx. 35 km, checked over rear end ok. Noise appears to be very intermittent, possibly coming from the brakes.  Emergency braking not operating. Tested anti crash sensor operation OK. Unable to test correctly due to not having correct testing equipment. -- 3 of 7 -- 4  Rear anti crash sensors not operating. Noted that the alarm is not changing speed when crossing into red anti-collision parameter lines.  Injectors leaking. Identify a very slight amount of oil misting around injectors.  Radio not operating when car is started. If you wait till the radio boots up all operates ok.  Rear Door Not Opening all the time. Noted door not opening with key remote at all times. Glen Sharp gave evidence on behalf of the first respondent. An email from Mr Sharp dated 14 August 2020 states: I have driven the vehicle each day to check for a noise along as (sic) being present while inspected by the Senior Technician … When the vehicle was first driven I hear (sic) a noise coming from the rear of the vehicle when going over a driveway and a rough road. 1. On inspection of the vehicle I found that in the rear spare wheel area the tools that are normally kept in a bag were loose and this meant there was metal on metal (picture included). I put the bars back into the bag and secured the bag in the bag in the spare wheel (pictures included). 2. The jack was not secured correctly (picture included). 3. The vehicle was then test driven again to check for noise and the noise could not be detected. 4. The vehicle was then given to our senior tech to do a full inspection. a. Wheels were removed. b. Each area of the back of the vehicle was inspected. 5. On inspection we located the following: a. Exhaust shield for the rear muffler had a number of small stones caught under the shield (picture included). The heat shield was removed and the stones removed and refitted. b. Rear drivers (sic) side inner guard also had stones behind the guard. The inner guard was removed and the stones removed and refitted (picture included). 6. The vehicle was taken for a test drive by the technician and no noise could be found. 7. The vehicle was then left to sit until cold each day and driven to locate noise by myself and no noise explained (sic) was detected. In summary we have spent 10 hours working and inspecting the vehicle and have not been able to find any manufacturer or workmanship issues as claimed by Mr Barrett. -- 4 of 7 -- 5 My last test drive in the vehicle was this morning and no explained (sic) noise was able to be detected. Mr Sharp also provided the following evidence in his written statement: (a) On 15 September 2016, the applicant visited the first respondent complaining that he had broken the valve stem while testing the air pressure in his tyres. This was swapped over. (b) On 4 November 2016, the applicant visited the first respondent complaining that his sensors were not working. This was checked and it was found that the sensors had been turned off. (c) On 11 November 2016, the applicant visited the first respondent complaining that the satellite navigation was not working correctly. The system was reprogrammed and found to be fully functional. (d) On 20 November 2016, the applicant visited the first respondent complaining that the speed limiter was not working. This was checked and it was found that the speed limiter was turned off. (e) On 8 December 2016, the applicant booked a service with the first respondent but did not attend. (f) On 6 March 2017, the applicant visited the first respondent to have trim fitted to the rear of the motor vehicle. It appears this was part of a promotional campaign. (g) On 11 August 2017, the applicant visited the first respondent to have the 15,000 km service. (h) On 28 November 2017, the applicant visited the first respondent complaining that the sensors were not working. This was checked and it was found that the volume was turned right down. (i) On 7 March 2018, the applicant visited the first respondent complaining that the gears were changing in drive mode. This concern could not be reproduced. The applicant also complained that the blind spot warning was not working. This was checked and it was found that the blind spot warning was turned off. (j) On 8 March 2018, the applicant visited the first respondent complaining that the reverse sensors were not working. These were checked and found to be working. The applicant also complained that the rear camera was not working. This was checked and found to be working. The applicant also complained that the accident awareness feature was not working. This was checked and found to be working. The applicant also complained that the handbrake was not working. This was checked and a part ordered. (k) On 8 August 2018, the applicant visited the first respondent to have the 30,000 km service. The applicant also complained that the sensors were not working. This was checked and found to be working. The first respondent noted impact damage. -- 5 of 7 -- 6 (l) On 16 August 2018, the applicant returned to the first respondent to have the pollen filter replaced, which was not in stock during the previous service. The wiper blades were also replaced. (m) On 12 September 2018, the applicant visited the first respondent complaining of a noise in the rear of the motor vehicle when started cold. This was tested and no fault was found. (n) On 27 September 2019, the applicant visited the first respondent to have the sensors tested. These were tested and no fault was found. The applicant complained that the radio was taking one to two seconds to begin operating. This was found to be normal. The AEB auto braking function was checked, and found to be turned off. The injectors were checked, and no sign of fluid leaking was found. The motor vehicle was checked for noise in rear when starting, and no noise could be found. The applicant complained that the remote was not unlocking the door at all times. The first respondent advised that there was a 15 second gap required once the tailgate has automatically locked. (o) On 16 January 2020, the applicant visited the first respondent to have a switch replaced. (p) On 2 April 2020, the applicant visited the first respondent complaining that the seatbelt was not retracting correctly. This was diagnosed and parts were ordered. The applicant also complained of scratches on the window tint, but this was found to be just dirt. Consideration I accept that the applicant hears a noise emanating from the left hand rear of the motor vehicle when started cold. I also accept that this noise was first noticed some time after the 30,000 km service, which took place on 8 August 2018. The applicant reported the noise to the first respondent on 12 September 2018. The applicant provided reports from two mechanics, but neither Mr Cant nor Mr Streeter were able to identify the cause of the noise. I note that the only noises Mr Sharp was able to detect after exhaustive examination were caused by loose objects such as tools or stones. There is insufficient evidence to enable me to be satisfied that the motor vehicle was not of acceptable quality at the time of supply. In particular, by the time the left hand rear noise manifested itself the motor vehicle was over two years old. In Haisman v Drive (Aust) Pty Ltd [2020] QCAT 44 and ACH Computing Pty Ltd v Austral Pty Ltd trading as Brisbane City Land Rover [2020] QCAT 176, for example, I was prepared to infer that the respective motor vehicles were not of acceptable quality at the date of supply where defects manifested themselves within a short period after supply. However, I am not prepared to make a similar inference in the circumstances of this case where the noise did not manifest itself until over two years after the date of supply and where neither of the applicant’s mechanics were able to identify the cause of the noise. -- 6 of 7 -- 7 For completeness, I note that Mr Streeter also raised several other issues: (a) Mr Streeter found that the anti crash sensor was operating but he was unable to test it correctly. When checked by the first respondent, the auto braking function was found to be turned off. (b) Mr Streeter found that the rear sensors were not operating. The first respondent checked this, but found the sensors to be operational. (c) Mr Streeter found a very slight mist of oil around the injectors. The first respondent was unable to find any sign of fluid leaking. (d) Mr Streeter found the radio operates OK if you wait until it boots up. The first respondent found a one to two second delay is normal. (e) Mr Streeter found that the rear door was not opening with the remote at all times. The first respondent advised that there was a 15 second gap required once the tailgate has automatically locked. On the basis of the evidence outlined above, I am not satisfied that any of the other issues raised by Mr Streeter amount to a defect. In particular, I note that the applicant has repeatedly raised the sensors with the first respondent, only to be told that the sensors were either working or that he had switched them off. The only defects that I have been able to identify from the evidence are that there were minor faults with the handbrake and seatbelt which were repaired. There is no evidence that these defects resulted in the motor vehicle not being of acceptable quality at the time of supply. I am not satisfied that the automatic braking system ceased working shortly before the hearing. I have no expert evidence in relation to this issue, and the respondents have not had the opportunity of investigating the issue. Given the applicant’s history as outlined above, I cannot exclude the possibility of a simple explanation for this issue, such as the system being switched off. On the basis of the evidence before me, I am therefore not satisfied 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 being of acceptable quality as at the time of supply. Order The application is dismissed. -- 7 of 7 --