Bore v LMM Holdings Pty Ltd t/as Volvo Cars Brisbane North [2026] QCAT 379

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Bore v LMM Holdings Pty Ltd t/as Volvo Cars Brisbane North [2026] QCAT 379 PARTIES: PETER BORE (applicant) v LMM HOLDINGS PTY LTD t/as VOLVO CARS BRISBANE NORTH (respondent) ORIGINATING APPLICATION NO: MVL 133-24 MATTER TYPE: Motor vehicle matters HEARING DATE: 14 August 2026 DELIVERED ON: 20 August 2026 DECISION OF: Member Roney KC ORDERS: 1. Subject to any application that may be made to amend the application to seek alternative relief to that presently sought, the application for the payment of or refund of $59,250 is dismissed. 2. I grant the parties liberty to apply in respect of any other consequential or other orders which might be required to be made. 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 where it has throttle lag – whether failure to comply with consumer guarantee a major failure – whether consumer entitled to refund or repair – whether section 50A Fair Trading Act 1989 (Qld) establishes a mechanism by which a consumer can enforce the supplier’s obligation to provide a refund arising under s 263(4)(a) of the Australian Consumer Law –potential amendment of the claims to seek other forms of compensation other than a refund of the price paid -- 1 of 25 -- 2 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 ACH Computing Pty Ltd v Austral Pty Ltd trading as Brisbane City Jaguar Land Rover [2020] QCAT 176 Bert v Red 5 Ltd [2017] QCA 233 Foley v Westco Cairns Pty Ltd [2020] QCAT 345 Ford v Capiche [2024] 419 ALR [2024] 437 HCA 39 Haisman v Drive (Aust) Pty Ltd [2020] QCAT 44 Kablar Financial Services Pty Ltd v LSH Auto (Brisbane) Pty Ltd trading as Mercedes-Benz Brisbane [2020] QCAT 346 Lam v Steve Jarvin Motors Pty Ltd [2016] NSWCATAP 186 Lieven v Shem-mell Pty Ltd trading as Capalaba Car World [2020] QCAT 209 Medtel Pty Ltd v Courtney (2003) 130 FCR 182 Toyota v Williams [2024] 419 ALR 373 [2024] HCA 38 Williams v Toyota Motor Corporation Australia Limited (Initial Trial) [2022] FCA 344 APPEARANCES & REPRESENTATION: Applicant: Self-represented Respondent: Self-represented REASONS FOR DECISION [1] The applicant is the owner of a Chinese made Volvo XC 40 which he purchased in September 2020 for $59,250. It is now almost six years old and has done approximately 40,000 kilometres. He bought it as a new vehicle from the respondent, which is a retail motor vehicle dealer. The applicant sought a refund under the Australian Consumer Law, which is Schedule 2 to the Competition and Consumer Act 2010 (Cth). [2] The relief sought in the application puts the applicant’s case in one basket, in the sense that, although a number of alternative remedies potentially were open to him against the respondent, including an award of damages or compensation for the difference between the value that the vehicle ought to have had but for its current condition, and that which in fact had, and which may well have been a significant sum, he did not make such a claim. He is only seeking a refund of what he paid. [3] At the outset of the hearing, the applicant had explained to him that he needed to fit his case within a legal framework to succeed in showing an entitlement to a refund. Neither party addressed how this case fell within that or any legal framework but left it to the -- 2 of 25 -- 3 Tribunal to decide how it might determine the claim and what legal basis for it might exist. [4] The applicant said in opening that he had not specifically rejected or sought to return the vehicle to the respondent, except by making a claim for a refund when the proceeding here was commenced on 25 June 2024.He otherwise confirmed at the opening of his case at the hearing that he was rejecting the vehicle. But he has driven the vehicle now for a substantial time, albeit having to deal with an intermittent problem which I shall describe shortly. [5] The car has had a useful if not troubled life but has now ceased to be driveable. The applicant stopped driving it in early 2025 and did not renew its registration from October 2025.What would be now required to register it is moot. [6] The applicant gave evidence that in the first 6 months approximately after purchasing the vehicle, he noticed the unusual and concerning way in which the vehicle drove, specifically that there were intermittent events of an obvious delay in vehicle response moving from a stationary position and getting up to speed, but he did not identify that there was this specific problem with the delay at that time. He says that he did come to a realisation about that at some point. [7] He said, and I accept, that after about 6 to 8 months he noticed an intermittent delay in the car taking off after depressing the accelerator pedal. The problem sometimes occurred several times in one day but sometimes there were periods of up to two weeks without him being aware of it. The length of the delay is variable but can be as long as 8 or 9 seconds. He became aware that there were obvious safety implications if such a delay occurs unexpectedly whilst, for example, joining a major road in heavy traffic or entering a roundabout. [8] He said, and I accept, that on the occasions that he has been able to observe the instruments when the problem has occurred, engine rpm increases very slowly until about 1800 rpm when the car starts to take off. The problem seems to be entirely random. In the several hundred times that he has experienced the problem he has been unable to reliably identify any circumstances which make the problem more likely to occur. [9] As I shall later describe in outlining the expert evidence, the problem can be characterised as “throttle lag" caused by “throttle drift”. [10] He raised the lag problem with Volvo Brisbane North at the car's first service in November 2021. They reloaded the car's software. The problem seemed to be less frequent for a few weeks but gradually occurred more often. [11] I accept the evidence of the applicant that he changed his driving style and then continued to drive the vehicle since 2022, but nevertheless encountered this throttle lag problem and also the evidence of the expert, Mr Grant that the respondent’s assertion that he was engaging in left foot braking and that it was the cause of the problem was misguided and incorrect. [12] There are service invoices that show that a little more than a year after the vehicle was purchased namely on 8 November 2021 and then again in June 2022, the applicant brought the vehicle in for servicing to the respondent and complained about the lag problem. -- 3 of 25 -- 4 [13] I accept that on those occasions or indeed on any other occasion when the respondent sought to identify the existence of or cause of the problem, it could not replicate it but that is not, however, the end of the story because it is not suggested that this is a problem which is present at all times when the vehicle is being driven. And so, the mere fact that the respondent could not replicate it at any time does not exclude the possibility that it has occurred at other times. [14] Later the applicant returned to Volvo Brisbane North and went with the workshop supervisor on a test drive. The lag problem did not manifest itself during that brief drive either but the workshop supervisor noted that he sometimes used his left foot to operate the brake and suggested that he might still have pressure on the brake pedal when he next depressed the accelerator. That, he said, would cause inhibition of engine acceleration. [15] Despite him changing his driving habits the problem continued to occur at times when he was conscious that his left foot was nowhere near the brake pedal. Moreover, he could not reproduce the problem by deliberately applying pressure on the brake pedal. She says that when he reported this at his next visit to the dealer, he was ignored. [16] Subsequently Volvo Brisbane North had the car for several days for a prolonged test. It again said that they could not reproduce the problem. Their written report said only that no fault codes were recorded. It claimed that this problem is unknown to them. [17] The applicant said, and I accept, that it seems unlikely that a fault code would exist for this problem. They did not respond to his suggestion that they should attach a diagnostic computer to the car whilst driving it. The respondent told him that the problem was due to his keeping some pressure on the brake pedal. [18] He says he was not keeping some pressure on the brake pedal. I accept that evidence. He gave evidence that up to a certain time, he said in 2022 he used both feet in driving the vehicle and would use his left foot for breaking, but changed his driving style to not using left foot breaking sometime in 2022. [19] The applicant said, and I accept that the XC 40 owner's manual under RC 4 XC 40 Manual at page 423 – “Launch function” describes the 'launch function' as achieved by applying brake pedal pressure, depressing the accelerator, after a few seconds when engine revolutions have increased release the brake, as a way of making a brisk take off. He says that when the car is stationary one depresses the brake pedal followed by pressing the accelerator there is no inhibition of engine acceleration. [20] The applicant said, and I accept that he contacted the CEO of Volvo Brisbane North informing him that he was about to submit a claim to QCAT and was offering them a final opportunity to deal with this matter without recourse to legal action. [21] He then received a telephone response from Neil Marshall. In summary his response was that the respondent would not accept that the vehicle had a fault unless the fault occurred when a Volvo technician was there to observe it. Whilst he did not dispute the applicant’s suggestion that it was unrealistic to claim that the evidence or opinion in a dispute could be limited to only one party, he said that he was constrained by Volvo policy. He promised to put this response in writing at the time but did not do so. [22] He set out in his application to this Tribunal his position; -- 4 of 25 -- 5 I am now left with a car that I cannot sell. If I tell a potential buyer that the car has a safety related fault they would not buy it. Morally I cannot sell it without disclosing its faults and if I did, I would place myself in some legal peril. In the light of the above you will perhaps understand that I have no confidence in either the willingness nor the ability of Volvo Brisbane North to investigate let alone rectify a problem which is potentially dangerous. Thus the only option open to me is to request a refund of the purchase price. [23] He had consulted an independent automobile engineer, Mr Crossley who has particular expertise in electronic engine management systems and who specialises in modifying engines and in finding and rectifying faults in vehicles which have been modified elsewhere. He has a Diploma in Mechanical Engineering. [24] Tests were carried out using appropriate data measuring equipment by Mr Crossley and his report of 14 May 2024 is in evidence. He had no personal relationship with the applicant and was independent of the parties. He was, in my view a persuasive and truthful witness. [25] That report said; On the 11th of October 2022 I, Paul Crossley of Redlands Dyno Centre, went for a short drive with Peter in this car. From new Peter has complained that intermittently the vehicle does not actually accelerate away from a standing position when the accelerator is applied. I used a Snap-on Modis Edge Scan Tool to capture data from the OBD- 11 port. In a drive lasting about thirty minutes we experienced two distinct delay events perceptible to the occupants and which were captured on the scan tool. The longer lasted about ten seconds. From the time the accelerator is first depressed (time 3472 seconds) to the vehicle speed reaching 7 km/hr (time 3482 seconds) is 10 seconds / From the time the accelerator is first depressed (time 3472 seconds) to the vehicle speed reaching 15 km/hr (time 3487 seconds) is 15 seconds. I have also attempted to replicate the fault by deliberately applying pressure to the brake pedal but have not been able to do so. That is consistent with the fact the torque converter transmissions do not require the protection afforded by inhibition of engine acceleration when there is pressure on the brake pedal and if such a mechanism were fitted it would, in some circumstances, have an adverse effect on the car's performance. I can supply (electronically) the original data and a link to the Snap-on Tools software which will enable the captured data to be viewed. -- 5 of 25 -- 6 I can confirm that the vehicle Volvo XC40 950 AC3 exhibits an intermittent fault which could cause, or contribute to the cause, of an accident. The problem is not caused by pressure on the brake pedal. [26] Mr Crossley also gave oral evidence at the hearing. He gave evidence that he has qualifications amongst other things as an A Grade motor mechanic, is an auto electrician, and has been involved in supercar motor vehicle sports at a high level, and as well familiar with the operations of these kinds of vehicles. [27] He gave evidence of his having observed two examples of this problem during the time the vehicle was being driven in his presence and he was in the passenger seat. He went on a 15-to-20-minute drive, and the vehicle came to a stop and accelerated from a stationary position some 10 to 20 times in that time. On two of those occasions, whilst moving from the stationary position, the vehicle showed a significant lag in reaching any significant speed, critically, taking reaching 10 seconds to reach seven kilometres per hour and fifteen seconds to get to a speed of fifteen kilometres per hour in the second example. [28] This is, in his view, which I accept, a potentially dangerous condition for a vehicle to have, whether by design or not, because insofar as it occurs intermittently, driving the vehicle in busy traffic can present a situation where one sought to move quickly into a position in the traffic or to turn across oncoming traffic only to find that in effect, the vehicle is unresponsive or extremely slow to respond. The driver in a potentially dangerous situation. It is the uncertainty about when this condition will engage that also presents the danger. [29] Mr Crossley also gave evidence, which I accept, that the applicant did not engage in left foot breaking when these two test-drive incidents occurred and in fact, according to his evidence, left foot breaking does not affect whether this problem occurs. That is, he gave evidence, which I accept, that the applicant did not have his foot on the brake at the time the two incidents occurred, and they occurred after the vehicle had come to a full stop and he was attempted to move forward from a stationary position. He gave evidence that the accelerator pedal moves forward, but the vehicle does not or does not do so except at a very slow speed. [30] Mr Crossley was cross-examined about whether he said in an email that he was unaware of left foot breaking having occurred to slow the vehicle, but he explained whatever comments he made on that issue was about whether he saw it, which he did not. Rather his evidence was that he recorded the data that showed that and that he did not need to specifically see it. [31] His logs showed that the throttle was responding, but the vehicle was not responding accordingly, and the brake was not being engaged in those instances. In the evidence of Mr Dudley, for the respondent and in final submissions, the respondent contended that this evidence could not be correct because the logs kept by Mr Crossley did not show or record brake usage. [32] The respondent had the opportunity to challenge the evidence of Mr Crossley on this point when he was in the witness box but did not. I accept the evidence of Mr Crossley on that issue. -- 6 of 25 -- 7 [33] Mr Crossley also gave evidence of the essential launch function. The essential launch function as he described it, and which is specifically referred to in the vehicle’s manual, involves, broadly speaking, having the foot on the brake and the right foot on the throttle or accelerator pedal, allowing the revolutions per minute to increase in the engine to allow it to launch or catapult forward as he put it. [34] It was suggested to him that the car had neutral control to which he responded in the negative. It was put that if you have your foot on the brake, you can apply the throttle and the vehicle will launch, it isn't disengaged. [35] He disagreed with the proposition that if one put a foot on the brake lightly, it would not engage, but if you press it hard, it will launch. [36] He said and I accept that no one had ever demonstrated this practice to him or demonstrated that this is what happened. [37] The only expert evidence presented by the respondent was that of Mr Dudley, who did not even bother to deal with what was said in either Crossley or Grant reports, he said, because he rejected the conclusions that they reached because in his opinion, neither of them excluded the possibility of left foot breaking as being the cause. That proposition is also inconsistent with the direct evidence to the contrary, which I have accepted. [38] The evidence of Mr Dudley for the respondent as to the sensitivities around the essential launch function, is set out in his statement. He said that in his encounters with the applicant; (He)explained that Volvo cars were different, and they are fit with a neutral control function which will inhibit the transmission from engaging when the brake is pressed. Dr. Bore insisted this is not the issue and referred to another shop's diagnostic data that was shared with us, but we were unable to open the file type as it was from aftermarket equipment. At this point we decided that I will drive the car for the next 3 days to see if I could reproduce the fault. I drove the car for the next 3 nights, the car worked flawlessly as designed with zero manufacturer defects or drivability issues detected. When conducting the extensive test drive, I used only my right foot to drive with no faults as described by Dr. Bore. When I used my left foot on the brake and accelerated with my right then released the brake the car would move forward quickly. [39] Mr Dudley’s explanation of the essential launch function and the brake override function was as follows; Dr Bore's vehicle contains a neutral control function. This function is activated when the driver stops the vehicle and the vehicle is stationary for example at traffic lights. The Transmission Control Module (TCM) then partly disengages the C1 clutch, which releases the forward drive of the transmission and reduces the load on the engine. The function -- 7 of 25 -- 8 improves the fuel consumption and reduces vibrations at idle speed. When the driver releases the brake, the C1 clutch engages and drive is resumed. The following conditions must be met in order for the neutral control function to activate: • The gear selector is in position D. • The oil temperature is above+ 1 o °C. • The accelerator pedal is less than 3 % depressed. • The brake pedal is depressed. • The vehicle speed is o km/h. • The engine speed is less than 1500 r/min. If the driver is left foot braking and leaving their foot on the brake after neutral control has been activated, then the C1 clutch (which will allow the vehicle to move forward again) would not engage until the brake pedal is released. This would not require braking pressure, just the indication the brake pedal is pressed or depressed at that time. Dr Bore's vehicle also contains a brake override function. This function is different to the neutral control function. The brake override function operates during periods when the car is already in motion and operates as a brake override system to override the throttle function. [40] The conditions that must be met in order for the neutral control function to activate are such that, in my view, the operation of the neutral control function is not the explanation for the problem. I find that the problem which the applicant was encountering was not the essential launch function in action or the circumstances in which it might have been engaged enlivened, but rather some other specifically unidentified cause. [41] The brake override function is not the cause of it either because it operates during periods when the car is already in motion and operates as a brake override system to override the throttle function and this problem occurs when the vehicle is being from a stationary position not when the car is already in motion. [42] There is evidence from experts which I accept to the effect that using both feet in a non- manual geared vehicle, that is one that does not have a clutch, is not inappropriate and is common and one of the experts gave evidence that he used this practice himself. [43] This is significant because throughout the period whilst complaints have been made about this problem with the vehicle, including in its final submissions at the hearing, the respondent contended that the explanation for the problem was the applicant's practice of left foot breaking. -- 8 of 25 -- 9 [44] In my view, there is no cogent or reliable evidence that he in fact has, since 2022 adopted the practice of left foot breaking, but more critically, there is no evidence that if he has been using this practice intermittently or regularly, that it is a relevant cause of the problem. [45] It was put to the applicant that once he engaged the brake it disengaged the accelerator and so the car was not in gear until he took his foot off the break and then used the accelerator and it would move. I accept the evidence of the applicant that he changed his driving style after representatives of the respondent suggested he do so when the lag problem was first reported. [46] That means that the evidence of Mr Dudley, which attributed the cause of the problem to left foot breaking is not supported by the evidence and otherwise the only other explanation advanced for what might be causing the problem was. the presence potentially of the essential launch problem. There is no objective evidence that this specifically was the cause of the lag. The Motor Vehicle Assessment Report [47] There is a Motor Vehicle Assessment Report by Mr Grant (‘the Assessment Report’) provided in consequence of orders by the Tribunal .There were orders of the Tribunal on 2 July 2024 which had the effect of notifying that the Tribunal intended to appoint an assessor to assist in the determination of the application and by orders made on 4 September 2024 upon receipt of the assessor's report, the parties were to be provided with a copy of the assessor's report but no party was be allowed to produce further expert evidence without the leave of the Tribunal. Hence after the report of Mr Grant had been obtained in January 2025 that prevented either party, presenting later expert evidence on the issues for determination without leave. That meant that without leave of the Tribunal, the respondent was not able to present expert evidence on those issues, although it could, of course, challenge the evidence of Mr Grant. Nevertheless, the respondent relied upon a statement from its own in-house expert Mr Dudley as well as oral testimony from him. [48] The applicant did not oppose the calling of evidence from Mr Dudley nor did the respondent oppose the calling of Mr Crossley for the applicant and so I received not only their statements and written reports, but also additional oral evidence that each of them gave. [49] The Assessment Report provided as follows; For the first 6 months or so all was well with his car, however, he began noticing instances where the car's accelerator pedal would not respond when pressed before coming back to life after varying length pauses. This would typically happen at slow speeds such as taking off from lights, entering moving traffic etc. He reported these unnerving intermittent events to his dealership. They road tested the car and could not reproduce the issue. They scanned the car with their workshop computer and could find no recorded events/faults. They did a software update at that time. They also noticed that the applicant was a left foot braker and decided that he was pressing the brake pedal when using the accelerator pedal causing the automatic "Brake Override Function" to activate. -- 9 of 25 -- 10 Brake override is a safety feature whereby in a case of runaway acceleration if the brake pedal is pressed the throttle pedal will be disconnected from the engine and the car will return to idle so the driver can get things under control. This system was introduced many years ago after the introduction of "Fly by wire" throttle pedals with no physical cable connection between the throttle pedal and the engine. BOF is basically a feature of every new automatic car in Australia, it is very complex and relies on a number of inputs to the engine control computer to work. Every manufacturer has their own slant on how they want theirs to work, some are very sensitive and some require significant brake operation to kick in (this is important as the member will later see). The applicant felt over time the throttle pedal lag was getting more frequent and longer and continued to raise this with Volvo Brisbane North who could not get the car to fault and continued to maintain the issue was caused by his left foot braking. The applicant took his car to Volvo Springwood who could not get the car to fault and still no fault codes logged in the cars ECM. Frustrated, the applicant took his car to an independent expert diagnostician for analysis. The car displayed the issue while be driven with the applicant's diagnostician on board with a sophisticated scanner hooked up to and recording the cars streaming data. The applicant took the evidence to Volvo Brisbane North and Volvo Australia who, the applicant maintains, would not even look at it. Volvo Australia stance is that they will not do anything until a Volvo technician has experienced the issue and Volvo Brisbane North have decided that the problem is that the applicant is a left foot braker and there is no fault with the car. This led the applicant to QCAT. We went for a drive in the XC40, and needless to say the car behaved normally and my equipment recorded no events or anything unusual. What I was most interested in was how much brake application was required to get the brake override system to overrule the throttle pedal. I tried numerous times to get the brake pedal to cancel out the throttle but could not do so until there was enough braking pressure to be physically pulling the car up. I expected this as I have driven other XC40s and know that they do not have sensitive brake override systems. Volvo cars are not consistent in this as other models are quite sensitive. [50] The Assessment Report concluded as follows; Throttle "Lag" is the hallmark of "fly by wire" modern day throttle management in cars. The Japanese/Koreans are arguably the best at controlling it, most owners of these cars would probably never have noticed it, Euro cars and the Chinese are the worst at having good on time throttle control. A whole aftermarket industry has popped up selling plug and play "throttle controllers" promising to fix a whole host of issues including in their "spiel" ....... throttle lag! -- 10 of 25 -- 11 I am curious about Volvo's "Launch Mode". It seems, on the face of it to be suggesting a way for drivers to not be caught out by lack of throttle response at times. I cannot imagine why any manufacturer would be suggesting this driving style if they were happy with the throttle responsiveness of their cars. I am not aware of any other manufacturer who recommends this driving technique. Ultimately, the following is clear: • The car did not have the condition (fault) when purchased; • The car does have a throttle responsiveness problem that alarms the customer; • The car still has the condition; • Volvo North is incorrect in its belief that the applicant's habit of left foot braking is the cause of the condition; • The intermittent lack of throttle control is dangerous. Any car that can fail to respond to driver control inputs is dangerous; • The lack of attempts by Volvo to resolve the issue (replacing the throttle pedal assembly and the throttle body assembly at least) seems to indicate they have an internally known problem with no fix as yet. Given that I have not experienced the condition, I cannot say whether the applicant is being hypersensitive to the lag issue or not, although based on the applicant's ownership of a manual gearbox Land Rover Defender, I would think he is not in the habit of being too prissy about his car’s behaviours. [51] I will deal with his oral evidence later in these reasons. The relief sought under the Australian Consumer Law and orders that this Tribunal could make [52] This Tribunal is vested with jurisdiction in relation to motor vehicle consumer claims arising out of the Australian Consumer Law (‘ACL’) by virtue of section 50A of the Fair-Trading Act 1989 (Qld). Section 50A(1) of the Fair Trading Act 1989 (Qld) (‘FT Act’) provides that a person may apply, as provided under the QCAT Act, to this 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. [53] As I have said, the only relief sought was a sort of refund of what the applicant had paid for the vehicle, but there is no secondary claim for damages. [54] As to whether Section 50A does not expressly establish a mechanism by which a consumer can enforce the supplier’s obligation to provide a refund arising under s 263(4)(a), this issue has been decided previously by this Tribunal and was also considered by the New South Wales Civil and Administrative Tribunal in Lam v Steve -- 11 of 25 -- 12 Jarvin Motors Pty Ltd [2016] NSWCATAP 186 (‘Lam’). The Appeal Panel, which included the President of the Tribunal, Wright J, stated (at [99]): “A contrary indication in Part 5-4 is that the legislature expressly stated that certain amounts could be recovered “by action” by the consumer in s 259(2)(b)(i), s 259(3)(b) and s 259(4) but did not do so in respect of the obligations to provide a refund or replacement in s 263(4). This might, in other circumstances, be sufficient to establish that the obligations under s 263(4) were not intended to be able to be enforced by action by the consumer. Nonetheless, given the nature, scope and purpose of the ACL NSW, the mischief against which it is directed, the nature of the conduct prescribed and the pre-existing law, the failure expressly to provide that the obligation under s 263(4) could be enforced by action should not be taken to exclude the implication of a right on the part of the consumer to bring proceedings to enforce the supplier’s duty to provide a refund or replacement”. [55] The orders that the this Tribunal could make are set out in s 50A(2) and they include (a) an order requiring a party to the proceeding to pay a stated amount to a stated person; (b) an order that a stated amount is not due or owing by the applicant to a stated person, or by any party to the proceeding to the applicant; (c) an order requiring a party to the proceeding, other than the applicant, to perform work to rectify a defect in goods or services to which the claim relates; (d) an order requiring a party to the proceeding to return goods that relate to the claim and are in the party’s possession or control to a stated person; and (e) an order combining 2 or more orders mentioned in paragraphs (a), (b), (c) and (d). [56] The approach in Lam is clearly correct and there is no doubt that that Tribunal has jurisdiction to make an order requiring the supplier to pay to the consumer a stated amount of money, namely the amount of the refund payable under s 263(4)(a). The guarantee of "acceptable quality" and “major failures” in the ACL [57] A guarantee of "acceptable quality" of a consumer product is provided for by s 54 of the ACL, which provides as follows: Section 54 - Guarantee as to acceptable quality (1) If: (a) a person supplies, in trade or commerce, goods to a consumer; and (b) the supply does not occur by way of sale by auction; there is a guarantee that the goods are of acceptable quality. (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 -- 12 of 25 -- 13 (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 (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. (4) If: (a) goods supplied to a consumer are not of acceptable quality; and (b) the only reason or reasons why they are not of acceptable quality were specifically drawn to the consumer’s attention before the consumer agreed to the supply; the goods are taken to be of acceptable quality. (5) If: (a) goods are displayed for sale or hire; and (b) the goods would not be of acceptable quality if they were supplied to a consumer; the reason or reasons why they are not of acceptable quality are taken, for the purposes of subsection (4), to have been specifically drawn to a consumer’s attention if those reasons were disclosed on a written notice that was displayed with the goods and that was transparent. (6) Goods do not fail to be of acceptable quality if: (a) the consumer to whom they are supplied causes them to become of unacceptable quality, or fails to take reasonable steps to prevent them from becoming of unacceptable quality; and (b) they are damaged by abnormal use. (7) Goods do not fail to be of acceptable quality if: -- 13 of 25 -- 14 (a) the consumer acquiring the goods examines them before the consumer agrees to the supply of the goods; and (b) the examination ought reasonably to have revealed that the goods were not of acceptable quality. [58] Hence, section 54(1) of the Australian Consumer Law has the effect 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: per the Full Court of the Federal Court in Medtel Pty Ltd v Courtney (2003) 130 FCR 182 at [64] and [70] per Branson J. [59] More recently in Williams v Toyota Motor Corporation Australia Limited (Initial Trial) [2022] FCA 344 Justice Lee held as follows in relation to the operation of s 54: [164] Despite the obscure drafting of other sections of the ACL, s 54 is relatively straightforward. The continued use of the conjunction “and” in s 54(2) makes clear that goods must possess all of the qualities listed in s 54(2), to the requisite standard, in order to comply with the guarantee of acceptable quality. Failure to possess any one of those qualities will result in a failure to comply with the guarantee: see Vautin v By Winddown, Inc (formerly Bertram Yachts)(No 4) [2018] FCA 426; (2018) 362 ALR 702 (at 732 [142(d) — (f)] per Derrington J); Australian Competition and Consumer Commission v Jayco Corporation Pty Ltd [2020] FCA 1672 (at [25] per Wheelahan J). [165] The question of whether the goods are of acceptable quality is to be answered by reference to the quality of the goods at the time of supply: Capic v Ford Motor Company of Australia Pty Ltd [2021] FCA 715; (2021) 154 ACSR 235 (at 377 [606] per Perram J); Jayco (at [27]); Vautin (at 738 [170]–[171], 760 [263]). The applicable standard of “acceptable quality” is to be determined by reference to what the “reasonable consumer” would regard as acceptable, having regard to the matters in s 54(3). The relevant enquiry is necessarily objective: Medtel Pty Ltd v Courtney [2003] FCAFC 151; (2003) 130 FCR 182 (at 199 [43] per Moore J, 205 [64] and 207 [72] per Branson J, with whom Jacobson J agreed at 209 [81]); Capic (at 265 [105]). As Wheelahan J explained in Jayco (at [26]): The reasonable consumer sits with an array of other hypothetical persons who have been recruited by the law and by reference to whom objective standards are evaluated: see, Healthcare at Home Ltd v The Common Services Agency [2014] UKSC 49; 4 All ER 210 at [1]–[4] (Lord Reed JSC). Such a person has been described as an anthropomorphic conception of justice that is and must be the court itself: see Davis Contractors Ltd v Fareham Urban District Council [1956] AC 696 at 728 (Lord Radcliffe). [166] In determining whether the “reasonable consumer” would regard the goods as acceptable at the time of supply, one must assume that the construct is “fully acquainted with the state and condition of the goods (including any hidden defects of the goods)”: s 54(2) of the ACL; see also Medtel (at 205–206 [65]–[70]). Thus, in the present case, the “reasonable consumer” is taken be fully acquainted with the nature of the Core Defect, including the ways in which it causes the Relevant Vehicles to -- 14 of 25 -- 15 malfunction when exposed to the High Speed Driving Pattern, and the class of consequences or symptoms associated with the Core Defect. [167] Although TMCA accepts that the question of whether the goods are of acceptable quality is to be assessed by reference to the quality of the goods at the time of supply, it submits that the determination of what was objectively reasonable for the consumer to expect is made taking into account all relevant information available at the time of trial. Relying on the reasoning in Medtel (at 200 [45], 203 [57], 206 [70], 209 [81]), TMCA submits that “the individual experience of each vehicle owner, affects the assessment”. [168] The flaw in this proposition is that the state and condition of the vehicles at the time of supply is not determined by anything occurring after the time of supply. The fact that a defective product has continued to perform following the time of supply through to the time of trial does not defeat a finding that the product was defective at the time it was supplied. In Medtel, as Branson J (at 202 [54], with whom Jacobson J agreed at 209 [81]) explained, “the principal issue to be determined … is whether a product which, at the time of trial, can be demonstrated to have performed, and to be continuing to perform, satisfactorily can nonetheless be found to be “not of merchantable quality” within the meaning of s 74D(1) of the Trade Practices Act 1974 (Cth) ”. Her Honour found (at 199 [41]) that the goods in issue — pacemakers — were not of merchantable quality at the time of supply, despite the fact that the applicant’s pacemaker had not failed by the time of trial: see generally at 197–202 [36]–[52]. [60] In relation to the supply of goods, such as a vehicle, the remedies available to a consumer where goods are not of an acceptable quality under the ACL include: (a) an action to recover from the supplier all reasonable costs incurred by the consumer in having the failure remedied, in circumstances where the failure is not a major failure and the supplier has not remedied it within a reasonable time (s 259(2)(b)(i)); (b) an action to recover from the supplier compensation for any reduction in the value of the goods below the price paid by the consumer, in circumstances where the failure is a major failure and the consumer has not rejected the goods (s 259(3)(b)); and (c) an action to recover from the supplier damages for loss or damage suffered by the consumer where such loss or damage was reasonably foreseeable in respect of the failure (s 259(4)). [61] In respect of “major failures”, Section 260 of the ACL provides as follows (emphasis added): When a failure to comply with a guarantee is a major failure 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 -- 15 of 25 -- 16 (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 (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. [62] Rejection is governed by s 262 and 263 of the ACL. They provide as follows: 262 When consumers are not entitled to reject goods (1) A consumer is not entitled, under section 259, to notify a supplier of goods that the consumer rejects the goods if: (a) the rejection period for the goods has ended; or (b) the goods have been lost, destroyed or disposed of by the consumer; or (c) the goods were damaged after being delivered to the consumer for reasons not related to their state or condition at the time of supply; or (d) the goods have been attached to, or incorporated in, any real or personal property and they cannot be detached or isolated without damaging them. (2) The rejection period for goods is the period from the time of the supply of the goods to the consumer within which it would be reasonable to expect the relevant failure to comply with a guarantee referred to in section 259(1)(b) to become apparent having regard to: (a) the type of goods; and (b) the use to which a consumer is likely to put them; and (c) the length of time for which it is reasonable for them to be used; and (d) the amount of use to which it is reasonable for them to be put before such a failure becomes apparent. 263 Consequences of rejecting goods -- 16 of 25 -- 17 (1) This section applies if, under section 259, a consumer notifies a supplier of goods that the consumer rejects the goods. (2) The consumer must return the goods to the supplier unless: (a) the goods have already been returned to, or retrieved by, the supplier; or (b) the goods cannot be returned, removed or transported without significant cost to the consumer because of: (i) the nature of the failure to comply with the guarantee to which the rejection relates; or (ii) the size or height, or method of attachment, of the goods. (3) If subsection (2)(b) applies, the supplier must, within a reasonable time, collect the goods at the supplier’s expense. (4) The supplier must, in accordance with an election made by the consumer: (a) refund: (i) any money paid by the consumer for the goods; and (ii) an amount that is equal to the value of any other consideration provided by the consumer for the goods; or (b) replace the rejected goods with goods of the same type, and of similar value, if such goods are reasonably available to the supplier. (5) The supplier cannot satisfy subsection (4)(a) by permitting the consumer to acquire goods from the supplier. (6) If the property in the rejected goods had passed to the consumer before the rejection was notified, the property in those goods revests in the supplier on the notification of the rejection. [63] Section 54 should be read bearing in mind the terms of section 260 and, in particular, that a "major failure" regarding acceptable quality will be made out "if the goods would not have been acquired by reasonable consumer fully acquainted with the nature and extent of the failure". [64] As is evident from what I have said above, section 54(2) of the ACL defines "acceptable quality" by reference to the "reasonable consumer" test and five specified criteria set out in sub-sections 54(2)(a)-(e). These criteria are cumulative, as evidenced by the use of the conjunction "and". Thus, if for example, particular goods are fit for purpose, safe, free from defects and durable, but not acceptable in appearance and finish, the goods will still fail to be of acceptable quality. Section 54(3) of the ACL identifies the matters relevant for the purposes of sub-section (2). [65] In summary then, the test of whether there is a major failure for the purposes of section 260 and the test for whether goods are of acceptable quality for the purposes of section 54 both adopt a ‘reasonable consumer’ test. If the failure can be remedied and is not a major failure, the consumer is limited to requiring the supplier to remedy the failure -- 17 of 25 -- 18 within a reasonable time; or if the supplier cannot remedy the failure within a reasonable time, having the failure remedied by someone other than the supplier and seeking compensation from the supplier, or rejecting the goods. [66] The more defects a vehicle has, and the more time it has spent off the road as a result of those defects, the more willing the Tribunal has been to find that there is to be a major failure. Examples of where the Tribunal has found the existence of a major failure in such circumstances include in Haisman v Drive (Aust) Pty Ltd [2020] QCAT 44, where the presence of defects resulted in the motor vehicle being returned to the dealer for 30 days out of the first two months of the applicant’s ownership of the motor vehicle. In ACH Computing Pty Ltd v Austral Pty Ltd trading as Brisbane City Jaguar Land Rover [2020] QCAT 176 the presence of defects resulted in the vehicle being returned to the dealer for 29 days out of the first few months of the applicant’s ownership of the motor vehicle. In Foley v Westco Cairns Pty Ltd [2020] QCAT 345the presence of defects resulted in the vehicle being returned to the dealer on 14 occasions, and remaining in the dealer’s possession for 57 days in the first year of the applicant’s ownership of the vehicle and 16 days in the second year. In Kablar Financial Services Pty Ltd v LSH Auto (Brisbane) Pty Ltd trading as Mercedes-Benz Brisbane [2020] QCAT 346 the presence of defects which resulted in the vehicle being returned on nine occasions in the first year of the applicant’s ownership. [67] It is provided in the table to section 50A of the FT Act, that one may bring an action for damages against a manufacturer such as the second respondent pursuant to section 271(1) of the ACL. Section 272 of the ACL outlines the types of damages that may be recovered by action against the manufacturer if the acceptable quality guarantee has not been complied with, including: (a) any reduction in the value of the goods; and (b) any reasonably foreseeable loss or damage incurred as a result of the failure to comply with the acceptable quality guarantee. [68] Five judges of the High Court (Gageler CJ, Gordon, Steward, Gleeson and Beech-Jones JJ) gave combined reasons in both Toyota v Williams [2024] 419 ALR 373 [2024] HCA 38 and Ford v Capiche [2024] 419 ALR [2024] 437 HCA 39. [69] The majority held that: (a) Damages under s272(1)(a) are to be calculated as the amount by which the value of the goods was reduced by the failure to comply with the acceptable quality guarantee at the time of supply. With that said, the enquiry is to be carried out 'having regard to all that is known at the time of trial about the "state and condition of the goods"'; (b) The acceptable quality guarantee involves a hypothetical inquiry into what a reasonable consumer, 'fully acquainted with the state and condition of the goods'— including any defects—would regard as acceptable. In this way, the inquiry involves attributing to the consumer knowledge about the existence and nature of the defect (including hidden defects), even if such knowledge was, in reality, only acquired later; and (c) If knowledge about the existence and nature of a defect, including its potential consequences, is to be attributed to the hypothetical 'reasonable consumer', there is -- 18 of 25 -- 19 no reason to stop there. That is, later-acquired knowledge about the availability, effectiveness and cost of ameliorating the defect should also be attributed. [70] While the High Court formally dismissed the car manufacturers' appeals and upheld the plaintiffs' appeals, the availability of effective and timely repairs will need to be taken into account when assessing the quantum of damages available to consumers (even if it does not provide a complete defence). [71] What this means in practice is that, in the case of Toyota, the Full Court was correct to take into account the repair fix that was offered to customers. However, the Court was also required to take into account the length of time after acquisition of the vehicles that the fix would become available, and the 'inconvenience and cost that would be occasioned to a hypothetical reasonable consumer in the meantime'. [72] The High Court observed that any additional cost and inconvenience experienced by an individual consumer over and above that of a reasonable consumer, while not recoverable under s 272(1)(a), may be recoverable as consequential loss under s 272(1)(b). [73] One consequence of the Court's decision is that where a risk or propensity for a defect exists at the time of supply, whether or not the defect actually emerges in a given consumer's case, is not relevant to the assessment of damages under s272(1)(a).For example a vehicle that, at the time of supply, carries a 50% risk of the brakes failing in five years, all other things being equal, there will be no difference in the amount of damages under s272(1)(a) payable to one consumer whose brakes failed, and another whose brakes did not (assuming they bought their vehicles at the same time and for the same price). [74] Whether the brakes eventually failed would not affect the conclusion that, at the time of supply, both vehicles carried the same defect that rendered them non-compliant with the guarantee in s54. However, a consumer whose brakes did fail may also be able to recover for 'loss or damage' under s272(1)(b). [75] The Court observed that the term 'damages' is not confined to compensation for loss suffered and, accordingly, there is no requirement to show loss or damage (beyond the reduction in value at the time of supply) in order to recover damages under s272(1)(a). [76] In relation to second-hand vehicle purchasers, although it was not strictly necessary to either decision, the Court suggested that an entitlement to damages from a manufacturer under s272(1)(a) runs with the title or ownership of the goods. This means the claim of the primary purchaser of goods ceases upon any subsequent sale, with the second-hand purchaser being in a position to bring a claim for breach of the acceptable quality guarantee. However, all consumers in the 'chain of possession' of affected goods may be entitled to claim consequential damages under s272(1)(b). The Motor Vehicle Assessor’s evidence/findings on the lag problem and acceptable quality in the Australian Consumer Law [77] I have set out already what was relevantly contained in the Assessment Report of Mr Walsh which is not contradicted by any other evidence. [78] The nearest any expert witness came to explaining the cause of the problem was in the oral evidence of the Tribunal appointed examiner Mr Grant. No cause was attributed to -- 19 of 25 -- 20 the problem in his report. He said at one point that he was glad that he did not have to be the person on the Tribunal to decide what the outcome of this case should be. [79] In his opinion, expressed in his oral evidence, and which was not challenged in cross- examination, and which I accept, is that the problem would not have been present at the time of the sale of the vehicle but had developed sometime afterwards. He said, and I accept that the accelerator pedal has two sensors, and each sensor has, in effect, to agree with each other for the vehicle to operate effectively. He said, and I accept that there can be drift in the pedal application so the sensors “get out of kilter” over time. He described this as a software problem, which he called throttle drift. This throttle drift problem is not an inherent defect, and not every Volvo, has time. He said that it is one of the disadvantages or downsides of using fly by wire throttles. [80] Mr Grant’s evidence was not inconsistent with that of Mr Crossley. He had examined Mr Crossley’s data and found no fault with it. [81] In his engagement with the vehicle, he could not get the vehicle to present this problem but says that he has in fact, encountered on many other occasions on other vehicles. [82] The respondent sought to argue that Mr Grant had made some positive finding in its favour about the applicant’s hypersensitivity to this throttle lag problem. What he was actually, saying is that he did not have 8 particular hypersensitivities to it, meaning that he was not a person who was unusually intolerant of a situation where you have a fifteen second lag. The applicant drove other vehicles which demanded tolerance and it was in my view, a reasonable inference to draw that the applicant was not being hypersensitive to this problem with this vehicle. [83] The conundrum, in this case and which the assessor Mr Grant referenced was that there was no identified solution to the presence of this throttle drift or delay issue. He could offer no specific solution or say with certainty whether it was in the repair or replacement of a component in the vehicle but he was clear that when the vehicle was sold, it did not have this problem. [84] He acknowledged that it felt dangerous to be in the vehicle with this condition that he could not offer a solution to what should occur in the circumstances. After initially suggesting that it was a repairable issue, he concluded that it ‘might’ be repairable, by doing adaptations to or resetting the sensors or replacing them. Some cars may need new sensors to fix the problem. Ultimately, though he could not say what the prospects of such a repair being carried out, were and whether it was likely to, in fact, repair the problem. [85] In his opinion, which I accept, it might well not be repairable and the likelihood is as he put it, Volvo being Chinese owned, means it's probably not repairable. [86] His evidence, which I accept is that that the applicant might have been using left foot breaking from either a stationary position or while moving was of no significance and not cause of the throttle lag/ drift problem. [87] His evidence is that it is entirely unsatisfactory that a vehicle presents a 15 second lag to move from a stationary position to 15 km per hour, with this potentially being dangerous at roundabouts or where there was this lag whilst moving out of a line of traffic. He described the scenario as dangerous. I would agree. -- 20 of 25 -- 21 [88] He did not express any opinion about the issue acceptable quality but his conclusion that the defect was not present when the vehicle was sold is significant. [89] The opinions expressed by Mr Walsh in the Assessment Report and in his expanded evidence in oral testimony are reasonable. The conclusions he has reached in that report and in his expanded evidence are not so inherently implausible or unreasonable such that despite there being no contrary evidence or conclusions, I should reject them. I accept his evidence and the opinions expressed. [90] In final submissions, the respondent contended that the vehicle has always performed normally as designed and was not faulted even by Mr Grant in his report. I reject that contention on the evidence, which established the contrary. [91] The respondent also submitted that the experts’ focus on the brake override is not the correct system to examine and that, since neither expert looked at the neutral control function as the explanation, it could not be concluded that there was no major failure or defect. I also reject that contention on the evidence. [92] As I have set out earlier, section 54(1) of the Australian Consumer Law has the effect that where a person supplies goods in trade or commerce, the goods are guaranteed to be of ‘acceptable quality’. The following principles apply; 1. The time at which goods are to be of acceptable quality is the time at which the goods are supplied to the consumer. 2. Adopting the approach discussed in Williams v Toyota Motor Corporation Australia Limited, goods must possess all of the qualities listed in s 54(2), to the requisite standard, in order to comply with the guarantee of acceptable quality. 3. Failure to possess any one of those qualities will result in a failure to comply with the guarantee. 4. The question of whether the goods are of acceptable quality is to be answered by reference to the quality of the goods at the time of supply. 5. In determining whether the “reasonable consumer” would regard the goods as acceptable at the time of supply, one must assume that the construct is “fully acquainted with the state and condition of the goods (including any hidden defects of the goods”: s 54(2) of the ACL.Thus, the “reasonable consumer” is taken be fully acquainted with the nature of any defect. 6. While the state and condition of the vehicle at the time of supply is not determined by anything occurring after the time of supply, the fact that a defective product has continued to perform following the time of supply through to the time of trial does not defeat a finding that the product was defective at the time it was supplied. 7. The issue is whether a product which, at the time of trial, can be demonstrated to have performed, and to be continuing to perform, -- 21 of 25 -- 22 satisfactorily can nonetheless be found to be “not of acceptable quality”. [93] The ACL also provides for consumers to take action against suppliers even when a failure to comply with a consumer guarantee can be remedied and is not a major failure. Pursuant to s 259(2)(b), if a supplier fails to remedy a failure to comply with a consumer guarantee in a reasonable time, the consumer is entitled to reject the goods and take action pursuant to s 263 of the ACL. [94] The applicant has certainly rejected the vehicle. It would have been open to the applicant to submit that it is open to the Tribunal to determine that pursuant to s 259(2)(b) of the ACL, that the respondent did not remedy the failure to comply with consumer guarantees represented by the problem in a reasonable time, as evidenced by its ongoing nature. [95] Since the time at which goods are to be of acceptable quality is the time at which the goods are supplied to the consumer, the evidence of Mr Walsh which I have accepted is that the vehicle did not have the defect at the time when the vehicle was purchased. It developed later. [96] Since a "major failure" regarding acceptable quality will be made out "if the goods would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of the failure [97] Nor do I accept that the fact that there was such work required meant that a reasonable consumer fully acquainted with the nature and extent of the failure would not have acquired this vehicle. [98] Since the test of whether there is a major failure for the purposes of section 260 and the test for whether goods are of acceptable quality for the purposes of section 54 both adopt a ‘reasonable consumer’ test and if the failure can be remedied and is not a major failure, the consumer is limited to requiring the supplier to remedy the failure within a reasonable time; or if the supplier cannot remedy the failure within a reasonable time, having the failure remedied by someone other than the supplier and seeking compensation from the supplier, or rejecting the goods. [99] I find that there is a defect comprised by the throttle lag condition. I am not however satisfied that a "major failure" regarding acceptable quality has been made out because I am not persuaded that having regard to its character that the vehicle would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of the failure. Nor do I accept that the fact that there is work required, meant that a reasonable consumer fully acquainted with the nature and extent of the failure would not have acquired this vehicle. [100] I am not satisfied the respondent did not remedy the failure to comply with consumer guarantees represented by the defect in a reasonable time having regard to the fact that it has been unable to identify the cause of condition. I evidence now does identify it. Whether Volvo or a Volvo technician has identified it is not to the point. [101] I find that the applicant has not made out of case to be refunded the cost of the vehicle. -- 22 of 25 -- 23 The contractual warranty and promises from the respondent at the hearing [102] Neither party addressed the issue of whether that the vehicle carried a manufacturer’s warranty and therefore, was current when this problem emerged. [103] The Volvo Australia website1 asserts that; Each new Volvo comes with the assurance of a five years unlimited kilometres manufacturer’s warranty, commencing from the date of first registration. The Volvo Car Australia 5 years/unlimited km new car warranty is only applicable to new Volvos with a retail sale date of 1st April 2020 or later. [104] Assuming that position to be correct, whilst now outside the warranty period, the vehicle was shown to be defective during the warranty period. A failure to remedy the defect in the warranty period in and of itself may provide a foundation of a contractual or other claim [105] The respondent did go on record in its oral submissions at the hearing to say, in what I take to be the giving of an undertaking to the applicant as a foundation for the way in which he can proceed to act in the future, that it would be “happy” to conduct further diagnosis, albeit continuing to contend that there is in fact no defect. It said it would be willing to conduct further diagnosis to ascertain if a fault could be found. The proposition was that they could not fix something that was “not there”, but that if they could find a problem, they would fix it and provide whatever parts were necessary for that to occur. [106] The respondent's proposition that it was happy to do something with the car if it could find out what the problem is may be a barren undertaking if it is effectively refusing to accept the evidence of experts whose evidence I have accepted about the existence of a defect. If, as has been suggested, it can be remedied by working with or replacing the sensors or fixing some software issue in my view responsibly, it ought to attend to those works instead of continuing in denial of the existence of a problem which others have seen, measures and experienced whilst the vehicle was still under warranty. [107] In my view, having made the finding that I have made that there is a defect in this vehicle and that it is not caused by left-foot breaking by the applicant, responsibly, the respondent ought effect whatever repairs are necessary to make this vehicle safe to drive. It should move from its position of denial as to the existence of any defect and responsibly put this vehicle into a safe state for it to be driven. [108] Neither party addressed the question of whether it would ever be capable of being registered and whether a roadworthy certificate would be required for that purpose and whether the vehicle in its present condition, particularly with the alleged defect present, would permit such a certificate to be issued. The vehicle may have to be towed from the applicant’s premises to the Volvo workshop for any further diagnosis to occur [109] This Tribunal has power to make an order requiring a party to the proceeding, other than the applicant, to perform work to rectify a defect in goods or services to which the claim relates. No present claim is made in which such an order is sought but one might be made. 1 https://www.volvocars.com/au/l/warranty/ -- 23 of 25 -- 24 Potential to amend the relief sought to make a claim for damages [110] The applicant was well intentioned and motivated and although self-represented, but showed in their written and oral submissions that he had no understanding of legal principle and cited no law or authority in support of his claims. [111] As I mentioned at the outset, the relief sought in the application rather put the applicant’s case and the eggs in it in one basket , in the sense that , although a number of alternative remedies potentially were open to him against the respondent , including an award of damages or compensation for the difference between the value that the vehicle ought to have had but for its current condition, and that which in fact had , and which may well have been a significant sum, they did not make such a claim. [112] He only sought a payment of what he paid for the vehicle based on the contention that he was entitled to and had rejected the goods by commencing this proceeding. [113] As I said earlier, the orders that the this Tribunal could make are set out in s 50A(2) and they include (a) an order requiring a party to the proceeding to pay a stated amount to a stated person; (b) an order that a stated amount is not due or owing by the applicant to a stated person, or by any party to the proceeding to the applicant; (c) an order requiring a party to the proceeding, other than the applicant, to perform work to rectify a defect in goods or services to which the claim relates; (d) an order requiring a party to the proceeding to return goods that relate to the claim and are in the party’s possession or control to a stated person; and (e) an order combining 2 or more orders mentioned in paragraphs (a), (b), (c) and (d). [114] Even where there is a major failure, an applicant may keep or elect to keep the vehicle and claim damages for its repair under s259(4), rather than being limited to rejecting the goods and seeking a refund; Lieven v Shem-mell Pty Ltd trading as Capalaba Car World [2020] QCAT 209. [115] Had an application been made to amend the relief sought to make a claim for damages to reflect repair cost or difference in value, leave to amend would have been difficult to resist, although there was no evidence of what such cost would be or that there was any difference in value or as to what the quantum of it was. [116] I entertained the prospect after the hearing of inviting such an application to amend to be made and the orders that I make which grant the party's liberty to apply are intended to include that possibility should the applicants be so minded. [117] I will grant the applicant liberty to make any application as may be necessary to amend the claims to seek claims for damages, reflecting the extent to which the presence of this defect has affected the vehicle's value to the extent that it has not been repaired by the respondent in future or for orders requiring the respondent to perform work to rectify the defect or such other claims as he may be advised are appropriate having regard to the findings I have made. Conclusion [118] The application must fail as presently brought. Subject to any application that may be made to amend the application to seek alternative relief to that presently sought, the application for the payment of or refund is dismissed. -- 24 of 25 -- 25 [119] I grant the parties liberty to apply in respect of any other consequential or other orders which might be required to be made. -- 25 of 25 --