Ahern v James Frizelle's Automotive Group Pty Ltd [2025] QCAT 478

• [17] Ahern is taking action under the Australian Consumer Law ('ACL'). The provisions of the ACL are contained in Schedule 2 of the Competition and Consumer Act 2010 (Cth). The relevant provisions that are relevant to these proceedings are outlined:
  1. 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

(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:

(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.

1. Action against suppliers of goods

(1) A consumer may take action under this section if:

(a) a person (the supplier) supplies, in trade or commerce, goods to the consumer; and

(b) a guarantee that applies to the supply under Subdivision A of Division 1 of Part 3 - 2 (other than sections 58 and 59(1)) is not complied with.

(2) If the failure to comply with the guarantee can be remedied and is not a major failure:

(a) the consumer may require the supplier to remedy the failure within a reasonable time; or

(b) if such a requirement is made of the supplier but the supplier refuses or fails to comply with the requirement, or fails to comply with the requirement within a reasonable time--the consumer may:

(i) otherwise have the failure remedied and, by action against the supplier, recover all reasonable costs incurred by the consumer in having the failure so remedied; or

(ii) subject to section 262, notify the supplier that the consumer rejects the goods and of the ground or grounds for the rejection.

(3) If the failure to comply with the guarantee cannot be remedied or is a major failure, the consumer may:

(a) subject to section 262, notify the supplier that the consumer rejects the goods and of the ground or grounds for the rejection; or

(b) by action against the supplier, recover compensation for any reduction in the value of the goods below the price paid or payable by the consumer for the goods.

(4) The consumer may, by action against the supplier, recover damages for any loss or damage suffered by the consumer because of the failure to comply with the guarantee if it was reasonably foreseeable that the consumer would suffer such loss or damage as a result of such a failure.

(5) Subsection (4) does not apply if the failure to comply with the guarantee occurred only because of a cause independent of human control that occurred after the goods left the control of the supplier.

(6) To avoid doubt, subsection (4) applies in addition to subsections (2) and (3).

(7) The consumer may take action under this section whether or not the goods are in their original packaging.

1. Action against suppliers of services

(1) A consumer may take action under this section if:

(a) a person (the supplier) supplies, in trade or commerce, services to the consumer; and

(b) a guarantee that applies to the supply under Subdivision B of Division 1 of Part 3 - 2 is not complied with; and

(c) unless the guarantee is the guarantee under section 60--the failure to comply with the guarantee did not occur only because of:

(i) an act, default or omission of, or a representation made by, any person other than the supplier, or an agent or employee of the supplier; or

(ii) a cause independent of human control that occurred after the services were supplied.

(2) If the failure to comply with the guarantee can be remedied and is not a major failure:

(a) the consumer may require the supplier to remedy the failure within a reasonable time; or

(b) if such a requirement is made of the supplier but the supplier refuses or fails to comply with the requirement, or fails to comply with the requirement within a reasonable time--the consumer may:

(i) otherwise have the failure remedied and, by action against the supplier, recover all reasonable costs incurred by the consumer in having the failure so remedied; or

(ii) terminate the contract for the supply of the services.

(3) If the failure to comply with the guarantee cannot be remedied or is a major failure, the consumer may:

(a) terminate the contract for the supply of the services; or

(b) by action against the supplier, recover compensation for any reduction in the value of the services below the price paid or payable by the consumer for the services.

(4) The consumer may, by action against the supplier, recover damages for any loss or damage suffered by the consumer because of the failure to comply with the guarantee if it was reasonably foreseeable that the consumer would suffer such loss or damage as a result of such a failure.

(5) To avoid doubt, subsection (4) applies in addition to subsections (2) and (3).

1. Action for damages against manufacturers of goods

(1) If:

(a) the guarantee under section 54 applies to a supply of goods to a consumer; and

(b) the guarantee is not complied with;

an affected person in relation to the goods may, by action against the manufacturer of the goods, recover damages from the manufacturer.

(2) Subsection (1) does not apply if the guarantee under section 54 is not complied with only because of:

(a) an act, default or omission of, or any representation made by, any person other than the manufacturer or an employee or agent of the manufacturer; or

(b) a cause independent of human control that occurred after the goods left the control of the manufacturer; or

(c) the fact that the price charged by the supplier was higher than the manufacturer's recommended retail price, or the average retail price, for the goods.

(3) If:

(a) a person supplies, in trade or commerce, goods by description to a consumer; and

(b) the description was applied to the goods by or on behalf of the manufacturer of the goods, or with express or implied consent of the manufacturer; and

(c) the guarantee under section 56 applies to the supply and it is not complied with;

an affected person in relation to the goods may, by action against the manufacturer of the goods, recover damages from the manufacturer.

(4) Subsection (3) does not apply if the guarantee under section 56 is not complied with only because of:

(a) an act, default or omission of any person other than the manufacturer or an employee or agent of the manufacturer; or

(b) a cause independent of human control that occurred after the goods left the control of the manufacturer.

(5) If:

(a) the guarantee under section 58 or 59(1) applies to a supply of goods to a consumer; and

(b) the guarantee is not complied with;

an affected person in relation to the goods may, by action against the manufacturer of the goods, recover damages from the manufacturer.

(6) If an affected person in relation to goods has, in accordance with an express warranty given or made by the manufacturer of the goods, required the manufacturer to remedy a failure to comply with a guarantee referred to in subsection (1), (3) or (5):

(a) by repairing the goods; or

(b) by replacing the goods with goods of an identical type;

then, despite that subsection, the affected person is not entitled to commence an action under that subsection to recover damages of a kind referred to in section 272(1)(a) unless the manufacturer has refused or failed to remedy the failure, or has failed to remedy the failure within a reasonable time.

(7) The affected person in relation to the goods may commence an action under this section whether or not the goods are in their original packaging.

1. Time limit for actions against manufacturers of goods

An affected person may commence an action for damages under this Division at any time within 3 years after the day on which the affected person first became aware, or ought reasonably to have become aware, that the guarantee to which the action relates has not been complied with.

• [18] Ahern has the onus of proof to prove his claim on the balance of probabilities. That is what is more probable than not.
• [19] The laws relating to the ACL and how the provisions of the ACL operate are complicated and difficult to navigate. Ahern has applied for relief under the ACL. It is not clear under which particular provision of the ACL Ahern is relying on to support the Application.
• [20] Further, Ahern has not adduced any expert evidence from an engineer or engine specialist as to what exactly is the cause of the defect in the engine that causes the intermittent stalling and other problems with the engine. I gave Ahern opportunities to adjourn the hearing to allow him to obtain such expert evidence to support the Application. Ahern did not take this opportunity. In any event this technical and expert evidence may be difficult to obtain as the engine that was replaced in 2022 may no longer be available for dismantling and inspection. Of course, it would probably be possible to inspect the new engine to determine what is causing the problems with the new engine.
• [21] To support the Application, Ahern refers to evidence that there have been problems with the engine, and he refers to the recall notices from Mazda and the problems with this model of Mazda generally. This issue was discussed in the hearing, and I indicated to Ahern that I cannot take this evidence into account as it relates to similar makes of Mazda vehicles generally and not to specific problems with the Vehicle.
• [22] Ahern has made a claim for miscellaneous expenses relating to the various problems with the Vehicle, including the replacement of the engine. These expenses are attributable to Mazda as the manufacturer.
• [23] Under s 271 of the ACL Ahern can make a claim against a manufacturer which in this case is Mazda. To succeed in such an action Ahern must prove that Mazda has not complied with the guarantee contained in s 54 of the ACL that is the Vehicle is safe, fit for purpose and free from defects.
• [24] Further to bring an action against Mazda, Ahern must satisfy s 273 of the ACL which states that there is a three-year time limit to commence an action against a manufacturer after becoming aware of the defect.
• [25] Ahern has not commenced any action under the ACL against Mazda. As Mazda is not a party to the Application, I cannot make any orders against Mazda.
• [26] Ahern has commenced an action against the Respondent for compensation. Pursuant to s 259 and/or s 267 of the ACL it is possible to commence legal action for damages against the Respondent.
• [27] An action under s 259 of the ACL is an action against the supplier of the Vehicle which in this case is the Respondent. To succeed in such an action Ahern must prove that the Respondent has failed to comply with the statutory guarantee when the Vehicle was supplied to him in 2013. Ahern must provide evidence that when the Vehicle was sold to him by the Respondent, the Vehicle was not free from defects, was not safe or was not fit for purpose.
• [28] There is no doubt that there were serious issues with the engine of the Vehicle. Sudden deceleration is a real concern especially from a safety point of view. However, to succeed Ahern must demonstrate with supporting evidence that the intermittent deceleration issue is caused by some defect in the engine and/or associated equipment as manufactured by Mazda and as supplied by the Respondent. Ahern has not adduced any expert evidence to support his case that the Vehicle was supplied with a defective engine that stalls intermittently, causes sudden deceleration of the Vehicle and this is a potential safety issue.
• [29] I can appreciate that obtaining an expert's report would require disassembling and inspection of the engine and this would be expensive. However, this expert evidence is essential for Ahern to prove his case and eliminate the possibility that there is another reason for the problem with the engine. For example, lack of proper maintenance of the engine.
• [30] Unfortunately, as previously mentioned, Ahern was only able to provide general anecdotal evidence and general recall evidence about the Mazda CX5. This evidence does not address the central issue in these proceedings. That is what exactly causes the specific problems with the engine or engines in the Vehicle.
• [31] It is noted that a new engine has been installed in the Vehicle in 2022 and this new engine also has the same type of problems that were evident in the original engine. Pursuant to s 267 of the ACL a consumer can make a claim for damages when a supplier of services fails to comply with the statutory guarantee that the services will be undertaken with due care and skill.
• [32] For example, Ahern can commence proceedings against the Respondent regarding the installation of the new engine in the Vehicle in 2022 on behalf of Mazda. To succeed in such an action Ahern must prove that the Respondent did not use due care and skill when installing the new engine and consequently this failure causes the stalling problem, sudden deceleration of the Vehicle and potential safety issues with the Vehicle.
• [33] It may be difficult for Ahern to obtain the required specific expert evidence to support any claims about the installation of the new engine. Further Ahern chose not to adjourn the proceedings to allow him to possibly obtain such specific expert evidence to support such a claim. As a consequence, Ahern cannot succeed in a claim made under s 267 of the ACL.
• [34] Ahern says that he does not use the Vehicle because of his concerns with the Vehicle. This is an unfortunate position for Ahern and his family. However, taking all the above facts and circumstances into account, I find that Ahern cannot succeed in his claim against the Respondent and therefore his Application is dismissed.