Atkinson v Manheim Pty Ltd and Anor [2012] QCAT 653

CITATION: Atkinson v Manheim Pty Ltd and Anor [2012] QCAT 653 PARTIES: Christian Verdon Atkinson (Applicant) v Manheim Pty Ltd Lance Dixon MG APPLICATION NUMBER: MCDO245-12 MATTER TYPE: Other minor civil dispute matters HEARING DATE: 20 December 2012 HEARD AT: Brisbane DECISION OF: David Paratz, Member DELIVERED ON: 21 December 2012 DELIVERED AT: Brisbane ORDERS MADE: The claim is dismissed. CATCHWORDS: Minor civil debt – online auction – purchase of car – misleading and deceptive conduct Competition and Consumer Act 2010 (Cth) Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 APPEARANCES and REPRESENTATION (if any): APPLICANT: Self represented RESPONDENT: First respondent self represented Second respondent no appearance REASONS FOR DECISION [1] This matter was heard as a minor civil dispute. Both parties participated by telephone. Mr Atkinson was on Stradbroke Island, and Manheim Pty Ltd were in Melbourne. Lance Dixon MG did not appear. -- 1 of 4 -- 2 [2] Mr Atkinson bought a 06/2006 Land Rover Discovery 3 SE in an online auction from Manheim on 20 July 2011 for $38,746.93. The vehicle was located in Melbourne. [3] Arrangements were made to ship the vehicle to Brisbane. [4] Mr Atkinson‟s wife picked up the vehicle in Brisbane from a road transport company on 29 July 2011. She noticed an obvious rattling/grinding noise, shudder and jerking gear shifting. [5] Mr Atkinson took the vehicle to Griffiths Automatic Transmission Services on the next business day. They advised that it needed transmission repairs. He authorised them to effect the repairs at a cost of $5,307.00. [6] The invoice from Griffiths is dated 10 August 2012. The meter reading is shown as 104,783 Kms. There are notes as follows: Transmission had very bad rattle noise coming from front of transmission removed transmission to find torque converter stator thrust and bearings were making metal and therefore the whole trans needed rebuilding. The fine parts of the metal would have eventually caused major mechanical problems in the valvebody and bearings throughout the transmission. No warranty on bottom of valve body as this part was not replaced at the customers request. [7] Mr Atkinson did not know Griffiths. He selected them from a telephone book. He did not obtain any other quotes or opinions. [8] At some time later, Mr Atkinson observed that there were gouge marks on the roof of the vehicle. He has obtained a single quote from “Top Gun Panel & Paint” at Beerwah dated 22 September 2011 for repairs for $525.14. [9] He filed a claim on 3 February 2012 against Manheim seeking a total of $5,927.14. [10] Manheim conduct an online auction business. They sell vehicles on consignment. [11] At the request of Manheim, the vendor of the vehicle, Lance Dixon MG was joined as a Second Respondent. [12] There was a suggestion made by Mr Atkinson, on his reading of the paperwork, that Manheim had possession of the vehicle for 9 days before the Auction, and that in that time it had travelled 331 kms. The evidence of Manheim however, was that the vehicle was delivered to them with the same kilometres as when sold, and that the earlier dates and kilometres were filled in on a preliminary form by Lance Dixon prior to delivery. [13] Mr Atkinson‟s claim is based upon a document that was posted online by Manheim in relation to the sale before he bought the vehicle. It is a “Road -- 2 of 4 -- 3 Test Report”. It refers to the vehicle. The odometer is shown as 104,587. The critical line that Mr Atkinson refers to is as follows: Transmission: Serviceable for age [14] Mr Atkinson argues that this a representation that breaches the Australian Consumer Law contained in Schedule 2 of the Competition and Consumer Act 2010 (Cth). He specifically refers to s 18 as to misleading and deceptive conduct, and s 21 as to unconscionable conduct. [15] The “road test report” has clear qualifications printed at the start of it, as follows: Note – this road test was undertaken to a maximum speed of 60km/h This report has been prepared as a result of a brief test undertaken prior to auction and is intended as a guide only. No detailed inspection has been conducted and so absolutely no warranty or guarantee concerning known or unknown faults is given or implied. Buyers are required to satisfy themselves as to all aspects of the condition of the vehicle during the inspection period prior to the auction. The report covers no item capable of visual inspection such as glass, tyres, body, exhaust system, interior, structural components, electrical components & equipment, chassis etc. all vehicles are sold with all faults ( if any). [16] Manheim refer to the standard conditions of the auction which were posted online. Clause 24 provides: Road test reports (where provided and excluding Truck & Machinery Auctions and Salvage Vehicle Auctions), are prepared as a result of a brief road test undertaken prior to auction, and are intended as a guide only. No detailed inspection has been undertaken, and so absolutely no warranty or guarantee concerning known or unknown fault is given or implied. The report covers no items capable of visual inspection. Vehicles sold with a Road test report are still sold subject to clause 21 of these Online Sales Terms and Conditions. [17] Clause 21 commences: You accept that all lots are offered for sale „as is, where is‟ with all faults. [18] The Australian Consumer Law specifically excludes guarantees, when an item is bought at auction, as to acceptable quality (s 54(1)(b)); fitness for any disclosed purpose (s 55(1)(b)); and description (s 56(1)(b)). [19] Did the “road test report” constitute misleading and deceptive conduct, or unconscionable conduct? [20] The meaning of the expression “misleading and deceptive conduct” was considered by Gibbs CJ in relation to the prior Trade Practices Act 1974 (Cth) in Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191. At [10] he noted that: -- 3 of 4 -- 4 The conduct of a defendant must be viewed as a whole. It would be wrong to select some words or act, which alone, would be likely to mislead if those words or acts, when viewed in their context, were not capable of misleading. It is obvious that where the conduct complained of consists of words it would not be right to select some words only and to ignore others which provided the context which gave meaning to the particular words. [21] The description of the transmission was on a page that had clear qualifications. I do not consider that it is open to Mr Atkinson to pluck one line from the page, and ignore all the other plain and clear wording on the same page. [22] What Manheim was saying in effect was “We believe the transmission is serviceable for age, but we cannot be sure as we have only conducted a limited test, and give no such guarantee”. [23] When viewed in context, the road test does not constitute misleading or deceptive conduct. [24] Similarly, I do not consider that the actions of Manheim in conducting the auction in this way could be seen as unconscionable – their business model was clearly spelt out in advance in their terms of sale, and is common practice in online auctions. [25] I note that consumer protection agencies repeatedly warn consumers to inspect goods before they buy them. The Queensland Office of Fair Trading further specifically says on its website as to buying a car at auction that: Buying a car at auction may be cheaper, but it can also present more risks. You are not protected by a cooling-off period and you won‟t have an opportunity to test drive the car. Remember, once the hammer falls you can‟t back out of your purchase. Carefully study the conditions of sale before bidding. [26] Even if Mr Atkinson was able to show that his argument was well founded in law, he would still have to show that the transmission was not “serviceable for age” in a large 6 year old four wheel drive vehicle which had completed over 100,000 kms. No evidence has been provided as to what the expected state of the transmission of such a vehicle would be. [27] It is unknown when the roof was damaged. Mr Atkinson did not inspect the vehicle before purchasing it, and is presuming that it was undamaged at the time the vehicle was put up for auction. He suspects it was damaged in transit. The “road test report” specifically does not refer to any item capable of visual inspection. There is no evidence that the vehicle was damaged by Manheim or the transporter after the sale. [28] I therefore find that Mr Atkinson‟s claim fails both in law and fact, and dismiss the claim. -- 4 of 4 --