Craig v Mark Kelada Auto Sellers [2016] QCATA 48

CITATION: Craig v Mark Kelada Auto Sellers [2016] QCATA 48 PARTIES: Lisa Craig (Applicant/Appellant) v Mark Kelada Auto Sellers (Respondent) APPLICATION NUMBER: APL429 -15 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member Stilgoe OAM DELIVERED ON: 9 March 2016 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal refused CATCHWORDS: APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – CONSUMER/TRADER – where applicant purchased car – where defects noticed outside statutory warranty period – where claim for cost of repairs – where claim dismissed – whether tribunal correctly considered statutory warranty – whether tribunal correctly considered Australian Consumer Law – whether tribunal correctly considered evidence - whether grounds for leave to appeal Australian Consumer Law ss 54, 55, 260 Motor Dealers and Chattel Auctioneers Act (Qld) 2014 Schedule 1 ss 4, 9 Dearman v Dearman (1908) 7 CLR 549 Fox v Percy (2003) 214 CLR 118 Pickering v McArthur [2005] QCA 294 Chambers v Jobling (1986) 7 NSWLR 1 APPEARANCES and REPRESENTATION (if any): -- 1 of 4 -- 2 This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). REASONS FOR DECISION [1] On 23 February 2015, Lisa Craig bought a 2006 Chrysler Grand Voyager from Mark Kelada Auto Sellers for $10,650. Ninety-seven days after purchase, Ms Craig discovered the car had significant defects. After some unsuccessful communication with Mark Kelada, Ms Craig had the car repaired. She claimed the cost of repairs from Mark Kelada. The tribunal dismissed her claim. [2] Ms Craig wants to appeal that decision. Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary.1 Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.2 [3] Ms Craig says the tribunal failed to apply the appropriate standards under the Property Agents and Motor Dealers Act (Qld) 2000. She says the tribunal ignored her rights under the Australian Consumer Law when considering the claim. She says the tribunal gave weight to evidence not present, which is now proven to be false and that the tribunal ignored the evidence on hand. Property Agents and Motor Dealers Act [4] Ms Craig relies on s 324 of the Property Agents and Motor Dealers Act to support an argument that Mark Kelada was obliged to repair the car. The Property Agents and Motor Dealers Act was repealed on 1 December 2014, some two months before Ms Craig bought the car. Her rights, if any, lie under the replacement Act, the Motor Dealers and Chattel Auctioneers Act (Qld) 2014. [5] Schedule 1 of the Motor Dealers and Chattel Auctioneers Act deals with statutory warranties. A warranted vehicle, and Ms Craig’s car was within the definition, has a warranty period of 5000 km or 3 months from the date of possession, whichever is earlier3. [6] Three months from 23 February 2015 is 23 May 2015. The Motor Dealers and Chattel Auctioneers Act states4 that, if Ms Craig believes the car was defective, she must (my emphasis) give written notice of the defect before the end of the warranty period. Ms Craig notified Mark Kelada of the problem on 1 June 2015. The statutory warranty had expired. 1 QCAT Act, s 142(3)(a)(i). 2 Pickering v McArthur [2005] QCA 294 at [3]. 3 Motor Dealers and Chattel Auctioneers Act Schedule 1, s 4 4 Schedule 1, s 9(1) -- 2 of 4 -- 3 [7] Although it will not affect my decision in this application for leave to appeal, I will address one further point Ms Craig raised about the statutory warranty. If Ms Craig had given notice before the end of the statutory warranty, she was then obliged to deliver the car to Mark Kelada or its nominated repairer, to enable it to repair the defect5. Ms Craig refused to deliver the car to Mark Kelada. She would have been in breach of her obligations. [8] The tribunal was not in error. Australian Consumer Law [9] Ms Craig says the tribunal ignored her rights under the Australian Consumer Law. That submission is not correct. The transcript shows6 that the tribunal did consider, albeit briefly, the guarantees that existed under the Australian Consumer Law. [10] Ms Craig says that the Australian Consumer Law gives her a guarantee that the car was fit for purpose. Section 55 of the Australian Consumer Law does, indeed, provide a guarantee that goods are fit for purpose but the guarantee is not unlimited. The guarantee will exist for any disclosed purpose or any purpose for which Mark Kelada represented the car was reasonably fit. [11] I have read the transcript of the hearing carefully. I can find no evidence that suggests Ms Craig disclosed that she was buying the car for a particular purpose. Similarly, I can find no evidence that Mark Kelada represented that the car would be suitable for a particular purpose. Therefore, the guarantee under s 55 of the Australian Consumer Law does not apply. [12] Section 54 of the Australian Consumer Law implies a guarantee that goods supplied will be of acceptable quality. In her submissions, Ms Craig acknowledges the criteria against which “acceptable quality” will be tested7: the nature of the goods, the price paid, any representations; and any other relevant circumstance. [13] The appeal tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.8 An appellate tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.9 [14] Ms Craig bought a car that was nine years old, with an odometer reading of 123,470 km for $9,300 plus fees. On any view, this was a cheap, old car. Ms Craig may have financed the purchase on a three-year plan but that was her decision, and not an indication that the car was, in fact, going to be reliable for that period. 5 Schedule 1, s 9(1)(a) 6 Transcript page 1-30, lines 37 - 44 7 Australian Consumer Law s 54(3) 8 Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125- 126. 9 Chambers v Jobling (1986) 7 NSWLR 1 at 10. -- 3 of 4 -- 4 [15] The tribunal noted the statutory warranty of three months as a factor in its decision. A statutory warranty is not available at all if the car is more than 10 years old or has an odometer reading of more than 160,000 km. This car was approaching an age and usage that would have excluded the statutory warranty. Therefore, the tribunal’s finding that the statutory warranty is a reasonable period for which the seller should be responsible for the state of the car10 can be supported by the evidence and I can find no compelling reason to come to a different view. [16] Because I accept the tribunal’s view that there was no breach of a consumer guarantee, it is not necessary to consider whether the failure of the car was, or was not, a major defect11. The evidence [17] Ms Craig says the tribunal ignored evidence that the car was not safe to drive, or capable of being driven. She says the tribunal ignored evidence that Mark Kelada sold the car without proper suspension, steering or breaking. [18] The tribunal had invoices and quotes from other repairers but no statement that the car was, in fact, unsafe or incapable of being driven. As the learned Adjudicator pointed out12, Ms Craig continued to drive the car after she first reported the fault to Mark Kelada. The evidence probably showed that, at the time of inspection, the car would not have passed a safety inspection but there is no evidence that the car would not have passed a safety inspection at the time of sale. Ms Craig asked the tribunal to draw that inference, but there was simply not enough evidence for it to do so. [19] Ms Craig says the tribunal erred in accepting that the car was serviced just before sale when there was no evidence to support that finding. Mr Kelada gave that evidence under oath13. It was not contradicted. The tribunal was entitled to rely on that evidence and I can find no compelling reason to come to a different view. Conclusion [20] There is no reasonably arguable case that the tribunal was in error. Leave to appeal is refused. 10 Transcript page 1-30, lines 43 - 44 11 Australian Consumer Law s 260 12 Transcript page 1-13, lines 44- 45 13 Transcript page 1-24, lines 12 - 15 -- 4 of 4 --