Dempsey & Anor v Northside Marine Pty Ltd [2019] QCAT 363

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Dempsey & Anor v Northside Marine Pty Ltd [2019] QCAT 363 PARTIES: EMMA IRENE DEMPSEY (first applicant) MAX WILLIAM PAULING (second applicant) v NORTHSIDE MARINE PTY LTD (respondent) APPLICATION NO/S: MVL016-19 MATTER TYPE: Motor vehicle matters DELIVERED ON: 22 November 2019 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Cranwell ORDERS: The Application – Motor Vehicle Dispute filed on 17 September 2019 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 – action in respect of a motor vehicle under s 50A of Fair Trading Act 1989 (Qld) – whether boat falls within definition of motor vehicle Fair Trading Act 1989 (Qld), s 50A Motor Dealers and Chattel Auctioneers Act 2014 (Qld), s 12, Sch 1 s 14 Motor Vehicle Standards Act 1989 (Cth), s 5 REPRESENTATION: Applicant: Self-represented Respondent: Self-represented APPEARANCES: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) -- 1 of 2 -- 2 REASONS FOR DECISION Ms Dempsey and Mr Pauling filed a Form 59: Application – Motor Vehicle Dispute with the Tribunal on 17 September 2019. Form 59 requires an applicant or applicants to provide certain details relating to the dispute. Part C of the form requests details of the motor vehicle. Ms Dempsey and Mr Pauling described the motor vehicle as a Whittley FF2100 boat. In Part D, they indicated that they were seeking relief under s 50A of the Fair Trading Act 1984 (Qld). Section 50A(1) of the Fair Trading Act provides: A person may apply, as provided under the QCAT Act, to the tribunal for an order mentioned in subsection (2) for an action— (a) under a provision of the Australian Consumer Law (Queensland) listed in the table to this section; and (b) relating to a motor vehicle; and (c) seeking an amount or value of other relief of not more than $100,000. Section 50A(4) provides: In this section— motor vehicle see the Motor Dealers and Chattel Auctioneers Act 2014, section 12. Section 12(1) of the Motor Dealers and Chattel Auctioneers Act 2014 (Qld) relevantly defines a ‘motor vehicle’ as follows: A motor vehicle means— (a) a vehicle that moves on wheels and is propelled by a motor that forms part of the vehicle, whether or not the vehicle is capable of being operated or used in a normal way; or (b) a caravan. It is stating the obvious to observe that a boat is not ‘a vehicle that moves on wheels’. Accordingly, a boat does not fall within the definition of motor vehicle contained in s 12 of the Motor Dealers and Chattel Auctioneers Act. Ms Dempsey and Mr Pauling have submitted that a boat falls within the definition of motor vehicle in s 5 of the Motor Vehicle Standards Act 1989 (Cth). However, that definition of motor vehicle is not the definition required to be applied pursuant to s 50A(4) of the Fair Trading Act. The existence of a different definition of motor vehicle in a different Act passed by a different Parliament is irrelevant. It follows that the Tribunal does not have jurisdiction to hear the application under s 50A of the Fair Trading Act, nor for that matter under s 14 of Schedule 1 to the Motor Dealers and Chattel Auctioneers Act. The application is therefore dismissed. -- 2 of 2 --