Davis v Prestige Auto Traders Australia Pty Limited trading as Prestige Auto Traders Australia [2025] NSWCATCD 219;

(1) Used Vehicle Tax Invoice dated 30 June 2023 from Motorline BMW to Prestige Auto Traders ("used vehicle invoice");

(2) Statutory Declaration by Steven Davis declared 24 October 2025;

(3) ARCI Certificate of Inspection dated 27 June 2023;

(4) "Transcript of internal communication extracted from the Pre-Delivery Control Board";

(5) "Absolute Motor Vehicle Warranty" from Integrity Car Care Pty Ltd."

1. On 8 October 2025 the Tribunal received further documents from the respondent. These have not been admitted into evidence. They were filed after the hearing, and it would be procedurally unfair to the applicant if they were taken into consideration.
2. All present at the final hearing gave sworn evidence and were afforded the opportunity to question the witnesses. Both parties provided oral submissions in support of their case.

1. For the following reasons I am satisfied that the Tribunal has jurisdiction to hear and determine this application:

(1) The applicant is a "consumer" pursuant to Section 79D of the Fair Trading Act 1987 (NSW) ("FTA"). This was not in contention (section 79H).

(2) The claim involves the supply of goods to the applicant for consideration pursuant to s 2 (1) of the ACL (s 4(1) FTA);

(3) The claim is for an amount which is within the jurisdictional limit of $100,000: (section 79S)(7) and clause 13A Fair Trading Regulation 2019 (NSW);

(4) The supply of services was within New South Wales (section 79K); and

(5) The claim is registered within 3 years of the cause of action (section 79L).

1. The following statement of the background to the proceedings represents my findings of fact. It reflects factual matters which are not in dispute or documentary material received in evidence. Where factual matters are in dispute, I provide reasons for my finding of fact.
2. On 30 June 2023 the respondent purchased a used Audi Q7 from Motorline BMW ("the vehicle") for the amount of $37,000.00. The Vin number was WAUZZZ4M1GD03XXXX. The production date of the vehicle was 1 December 2015.
3. A prepurchase inspection had been conducted a few days prior, on 27 June 2023. The Certificate of Inspection by ARCI records the same VIN number. At that time the vehicle was unregistered. The Certificate records:

"LHF both upper control arms split

RHF " " " " "

LHF/RHF LCA rear bushes split

Rear diff bush (front of diff) - split

LHF/RHF tyre have side wall damage

Both side rocker cover gasket leaking badly

Side bushes starting to split

LH headlight nil op"

1. On 8 September 2023 the applicant paid a deposit for the vehicle. She had not inspected it in person.
2. I accept Mr Macquet-Maurel's evidence that the vehicle was allocated to the applicant on 8 September 2023 and about the same time it was sent to the respondent's workshop to conduct the repairs identified in the Certificate. The transcript of internal communications produced by the respondent indicates the repairs were conducted over the following month.
3. On 12 September 2023 the applicant received an email from Jarrod Moon, Finance Assistant to the respondent. The email said:

"Congratulations on the approval of the Audi Q7.

Prestige Auto Traders would like to offer you an extension to your vehicle warranty to ensure you are covered in the unlikely event that any unforeseen mechanical failures might occur with your vehicle.

This is the top of the range product that we can offer and we very highly recommend this. I've attached a brochure and PDS for you to have a read over.

Key benefits include:

1. Unlimited claims

2. Unlimited kilometers (sic)

3. Parts and labour cover

4. Service where you want

5. Accommodation allowance

6. Car hire allowance

7. Fully transferable

8. Up to the market value per claim *

As you can see this is the GOLD STANDARD when it comes to extended warranties.

Repayments with no warranty period included - $713 per month or $164 per week

Repayments with 5 Years Absolute Level 4 included in repayments - $814.14 per month or $187.86 per week (RECOMMENDED)

Please feel free to call or email with any questions you might have regarding the product."

(emphasis in the original)

1. The applicant chose to purchase the warranty.
2. On or about 13 September 2023 the applicant entered into a loan contract with Mercedes-Benz Financial for the financing of the vehicle. It also included the warranty for $5,950.00 and a charge of $990.00 to the respondent for a "Dealer Origination Fee". Other details of the loan included:

(1) Total interest - $20,457.76;

(2) Number of repayments - 84;

(3) Repayment amount - $814.14 per month.

1. The repairs to the vehicle were completed by 9 October 2023, the date the 'blue slip' was issued for registration. This is also consistent with the transcript of internal communications. While the respondent's invoice regarding those repairs is dated 12 October 2025 ("the 12 October repairs",) I accept Mr Macquet-Maurel's evidence that the respondent's usual procedures include a 'lag' between the time the service department conducts the repairs and the time the invoice is generated for the sales department.
2. According to the repair invoice, the 12 October repairs, conducted at the respondent's expense, amounted to $8,119.13. The repairs were:
   • 90 Point Inspection Pre-delivery vehicle inspection including a detailed report $340.54;
   • Blue Slip inspection (AUVIS) For registration purposes $244.45;
   • Full detail $380.72;
   • Replace N/S/F headlight globe with Xenon globe D5S $294.60;
   • Strip rear windows tint - removed illegal tint film:$95.18;
   • Front brake pads chamfer machined and road-tested $190.36;
   • Remove and replace 4 upper control arm bushes and 2 castor arm bushes $962.43;
   • Remove and replace valve cover gaskets and road test: $931.08;
   • Repair oil leak in the engine, including replacement of turbo o-rings, valve cover seals and injector seal kit. Top up engine oil, top up coolant and bleed cooling system. Road test $2,690.68;
   • Replace main battery $190.36;
   • Replace rear tyres $600.00;
   • Replace NS door ashtray $272.59;
   • Remove and replace top radiator hose and coolant connector. Bleed cooling system $626.18.
3. On 9 October 2023 the parties entered into a contract for the sale of the vehicle. The purchase price was $ 41,500.00, including the deposit. The odometer was recorded as 90,873 kilometres.
4. The vehicle was delivered to the applicant on 16 October 2023. The applicant's husband, Steven David, noticed minor marks on the side and rear of the vehicle as confirmed in text messages to the respondent.
5. On 27 November 2023 the respondent provided the applicant with the invoice for the 12 October repairs. This was the first the applicant knew about the repairs.
6. Concerned about the 12 October repairs, on 12 December 2023 the applicant took the vehicle to European Automotive (which the Tribunal notes is the trading name of P8 Auto Pty Ltd). According to the invoice, it conducted a "Vehicle Check Over" for an amount of $165.00. The invoice records the odometer at 93,980 kilometres. Under 'Comments and Recommendations' the invoice says:

"- Engine Valve Covers Leaking Heavily (Video Sent). Require Replacing

- Engine Valley Leaks Oil + Coolant. Requires Valley Seal + Gaskets Replaced

- Coolant Low"

1. On 22 December 2023 the applicant arranged for two tyres to be replaced on the vehicle by Tempe Tyre & Wheel Centre for the amount of $408.00. I accept her evidence that this was necessary because the tyres were bald and the tyres in question were the rear tyres. The invoice records the odometer at 94,897 kilometres.
2. On 6 March 2024, the respondent arranged for the vehicle to be inspected by Banksia Motor Works. The invoice notes the odometer at 99,500 kilometres and says, relevantly:

"Oil leaks evident at cylinder head covers - recommend replacing both covers, injector seals and injector bolts. Also recommend replacing coolant crossover pipe as these usually get damaged during this repair ..."

1. On or about 11 April 2024 the repairs were carried out by Banksia Motor Works under warranty. The applicant also paid for the front brakes to be replaced at a cost of $715.55.
2. On 15 August 2024 a service of the vehicle was performed by European Automotive. The odometer recorded 108,877 kilometres. The invoice notes, relevantly:

"Front upper control arm bushes torn - recommend replacement."

1. On 27 March 2025, a service of the vehicle was performed by European Automotive. The odometer recorded 123,378 kilometres. The invoice notes, relevantly:

"Comments and recommendations:

V seals leaking - due

Front cover leaking - due

Front upper control arm bushes worn - due"

1. On 4 April 2025 the applicant obtained a quotation from P8 Auto Pty Ltd to conduct those repairs, an amount of $10,681.00.
2. On or around 7 May 2025 the applicant noticed the vehicle could not be reversed on an incline. The vehicle was inspected by P8 Auto Pty Ltd. The odometer recorded 124,575 kilometres. The quotation notes, relevantly:

"Check transmission not reversing. Check fault codes. Found gear ratio monitoring faults. Output to input speed not within specification. Internal transmission damage found. Transmission replacement required."

1. The quotation includes an amount of $154.55 plus GST for the "service" of the air-conditioning. I accept that the replacement of the air-conditioning compressor is related to the transmission fail, an amount of $2,727.27 plus GST.
2. Less, the air-conditioning service, the total quotation for the repairs is $40,020.00.
3. I accept the applicant's evidence that on 8 May 2025 the loan to Mercedes-Benz Financial was paid out.
4. On 10 May 2025 the vehicle again failed to reverse on a minor incline.

1. The applicant relies on a statement by Mitchell Oke, automotive technician at European Automotive dated 7 August 2025. It confirms the service and repairs outlined above. It concludes:

"... the mechanical issues with the Audi Q7 - particularly the premature transmission failure, ongoing oil leaks, and recurring control arm bushing failures - are not consistent with a vehicle that has been properly repaired prior to our inspections. These problems are indicative of pre-existing defects, poor quality repairs, or undisclosed faults at the time of sale.

I believe Hanna Davis has maintained the vehicle responsibly since ownership, as shown by regular servicing at our workshop. The issues presented are not the result of negligence or misuse but point toward a vehicle that had existing or recurring mechanical faults from the time it was sold."

1. The respondent did not provide an expert report. The respondent's representatives, who I accept have relevant qualifications and/or industry experience, gave evidence disputing Mr Oke's opinion, including:

(1) Various factors can influence the length of time the upper control bushes should last;

(2) The transmission fault reported by the applicant is very rare, but there was no record of a transmission fault when the vehicle was in the possession of the respondent;

(3) The quotation of $40,000.00 for a transmission repair is "extraordinary".

(1) The respondent did not provide independent expert evidence and;

(2) On the representative's own evidence, the respondent has not inspected or seen the vehicle in around 2.5 years.

1. Therefore, I prefer Mr Oke's opinion over that of the respondent.
2. I take into consideration the respondent's alternative quotation for the transmission replacement by Auto Trans Australia dated 14 August 2025, an amount of $13,200.00. However, the quotation was prepared without an inspection of the vehicle. It was open to the respondent to arrange for an expert in the applicant's locality to inspect the vehicle, but it did not. Therefore, I prefer the quotation of P8 Auto Pty Ltd which was based on an inspection.

1. Section 54 of the ACL provides a consumer with a guarantee that goods sold will be of an acceptable quality i.e. if they are fit for purpose for which they are commonly supplied, are of an acceptable quality and finish, free from defects, safe and durable as a reasonable consumer fully acquainted with the state and condition of the goods would regard as acceptable.
2. Section 54 also sets out the criteria to determine acceptability having regard to their nature, the price and any statements made about the goods by a supplier or manufacturer.
3. The test as to whether goods are of an "acceptable quality" is an objective one, being taken from the perspective of a "reasonable consumer" (APS Satellite Pty Ltd) (formerly known as Sky Mesh Pty Ltd) v Ipstar Australia Pty Ltd [2016] NSWSC 1898 at [57]; Merck Sharp & Dohme (Australia) Pty Ltd v Peterson [2011] FCAFC 128; (2011) 196 FCR 145.
4. The guarantee as to acceptable quality in section 54 applies at the time of supply of the goods (Volkswagen Group Australia Pty Ltd v Saad [2022] NSWCATAP 133).
5. Further, goods are not of unacceptable quality if the consumer is at fault. At section 54(6) goods do not fail to be of acceptable quality if the consumer causes them to become of unacceptable quality or fails to take reasonable steps to prevent them from becoming of unacceptable quality and they are damaged by abnormal use.
6. The applicant must prove her claim to the civil standard of proof, that is, on the balance of probabilities.

1. I am satisfied that a reasonable consumer, fully acquainted with the state and condition of the vehicle, would regard the vehicle as not of acceptable quality when sold because the vehicle:

(1) Was not fit for all purposes for which a used motor vehicle would be;

(2) Was not free from defects; and

(3) Was not durable.

1. In making this determination, I take the following into consideration:

(1) The purchase price of $42,800.00, a not insignificant amount;

(2) The vehicle's odometer reading was 90,873 kilometres at the time of purchase;

(3) The vehicle was just under 8 years' old at the time of purchase;

(4) The vehicle was sold with a 3 year warranty. This was a statement by the respondent of its confidence in the quality of the vehicle. The respondent's email regarding the warranty provided the further assurance that any "unforeseen mechanical failures" were an "unlikely event".

(5) Within 2 months of supply and 3,107 km, mechanical problems were identified in the vehicle, being leaking oil and coolant;

(6) A few weeks later, the rear tyres were replaced because they were bald, despite being installed as new prior to supply;

(7) Within 10 months of supply and 18,004 km, the front upper control arm bushes were torn, despite being replaced by the respondent prior to supply;

(8) Within 17 months of supply and 32,505 kilometres, leaks to the V seals and front cover were detected;

(9) Within 19 months of supply and 33,702 kilometres, the transmission failed, rendering the vehicle undriveable;

(10) There is no evidence that the applicant or another driver caused the vehicle to be of unacceptable quality. The vehicle was regularly serviced.

1. Therefore the respondent has breached the consumer guarantee pursuant to s 54 of the ACL.

Was the respondent's failure to comply with the guarantee of acceptable quality a major failure?

1. To obtain a full refund of the vehicle, the applicant must also prove that the respondent's failure to comply with the guarantee is a 'major' failure.
2. Section 260(a) provides that a failure to comply with a guarantee that applies to a supply of goods is a major failure if relevantly:

'the goods would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of the failure'.

1. In Safi v Heartland Motors Pty Ltd t/as Heartland Chrysler [2016] NSWCATAP 80 the Appeal Panel found that the following matters will be relevant to the question of whether a failure in a motor vehicle amounts to a "major failure" under section 260(a):

'1. A major failure may be constituted by one defect or a series of specific or individual defects which, when taken as a whole, constitute a major failure;

2. The test of whether the goods "would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of the failure" is an objective one;

3. A "reasonable consumer" would expect teething problems, even in a new vehicle;

4. The question to ask is whether the reasonable consumer, given the option of acquiring that particular good or alternatively purchasing either nothing or a different model, would not have acquired the good;

5. Defects which result in goods failing to comply with the guarantee of acceptable quality will not invariably be a major failure and it will depend on the nature and extent of the failure; and

6. The cost of repair, in proportion to the purchase price, and the question of whether the defects can be remedied easily in a timely manner are relevant considerations.

In our view, the purchase price for the goods and the nature of the defect are also relevant considerations for a "reasonable consumer".'

1. I have no doubt that a reasonable consumer, given the option of acquiring the particular vehicle or alternatively purchasing either nothing or a different vehicle, would not have acquired the vehicle:

(1) Although the vehicle was 8 years' old at the time of supply, with 90,873 kilometres on the odometer, a reasonable consumer would not expect a prestige vehicle with a purchase price of $41, 500.00 to be supplied with a compromised transmission, front upper control arm bushes that were not durable, and an engine prone to oil and coolant leaks.

(2) The repairs required are significant. They are not mere 'teething problems';

(3) The cost of repairs is very significant, in excess of the purchase price of the vehicle, an amount of $50,701.00;

1. For these reasons, I find that the respondent's breach of the s 54 guarantee was a major failure.

1. Section 259(3) of the ACL provides that if the failure to comply with the consumer guarantee is a major failure, the consumer may notify the supplier that they reject the goods and of the grounds for the rejection.
2. By filing this application with the Tribunal on 18 June 2025, the applicant notified the respondent that she rejected the vehicle and the reasons for that rejection. This rejection was confirmed by the email dated 19 June 2025, refusing the respondent's offer for the vehicle to be returned to its workshop for inspection. For the same reasons as outlined above, I am satisfied the applicant was entitled to reject the vehicle and did so within the rejection period (s 262).
3. In such circumstances the applicant may elect for a refund of the money paid for the goods and must return the goods to the supplier (s 263(4)).
4. The vehicle cannot be returned, removed or transported without significant cost to the applicant (ACL s 263(2)(b)(ii) and s 263(3)).
5. Further I find that the following losses were the reasonably foreseeable consequence of the respondent's failure to comply with the guarantee of acceptable quality (s 259(4)):

(1) Extended warranty - $5,950.00;

(2) Dealer origination fee - $990.00;

(3) Tyres - $408.00.

1. The applicant is therefore entitled to recover the amount of $7,348.00 as damages (s 259(4)).
2. The cost of the inspections by European Automotive on 8 August 2025 and 12 December 2023 ($275.00 in total) and the NCAT filing fee ($322.00) are costs incurred by the applicant in these proceedings. The usual rule is that a successful party should be entitled to an order for costs in their favour, here a total of $597.00: see Latoudis v Casey [1990] HCA 59; [1990] 170 CLR 534 per Mason CJ at 554 and Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 per McHugh J at 97. There is no need to establish "special circumstances"

as per s 60 Civil and Administrative Tribunal Act 2013 ("NCAT Act"); r 38, Civil and Administrative Tribunal Rules 2014 (NSW) because the amount in dispute exceeds $30,000.00. 3. However, I am not satisfied the applicant is entitled to the following claims:

(1) Loan interest - $20,457.00. The only evidence of the interest due is the one page loan schedule dated 13 September 2023.The loan, however, was paid out earlier than the 84 months identified in the schedule. The terms and conditions are not in evidence to indicate whether the early pay-out impacted the total interest. Nor is there other evidence of the total interest actually incurred. That evidence was reasonably available to the applicant. Therefore, there is no reliable way to assess damages and I decline to award them (see Sabouni v Revelop Building and Developments Pty Ltd [2021] NSWSC 31 as follows at [41]-[42]).

(2) Service fees of European Automotive dated 15 August 2024 and 27 March 2025 - These costs were not a consequence of the respondent's failure to comply with the guarantee but were service costs that were incurred as part of the vehicle's regular maintenance.

(3) Brakes - The evidence is that the respondent did not replace the brake pads in October 2023, but chamfer machined the front brake pads. I am not persuaded on the evidence that the cost of the new brakes is a consequence of the respondent's breach.

(4) Applicant's time - $7354.60. Leaving aside that there is no evidence of the hours spent, nor the 'scientist' rate applied, 'costs' that the Tribunal can order to be paid under s 60(2) of the NCAT Act do not include compensation for time spent by a litigant who is not a lawyer in preparing and conducting his or her case: Cachia v Hanes (1994)179 CLR 403 at 409; Profitability Consulting Pty Ltd v Thorpe [2018] NSWCATAP 41.

(5) Hire car - no evidence was provided of this cost.

1. Because I have found in the applicant's favour in relation to breach of the s 54 guarantee, it is not necessary to consider the applicant's other claims regarding the ACL, Motor Dealers and Repairers Act 2013 (NSW), the FTA, or the alleged 'ASIC regulatory and financial services breaches'. None of those claims would have provided a legal basis for the recovery of any further damages.
2. The ASIC search before the Tribunal indicates that the correct name of the respondent is Prestige Auto Traders Australia Pty Limited trading as Prestige Auto Traders Australia. The respondent's name is therefore amended.
3. The total amount awarded to the applicant is $49,445.00 as follows:

(1) Refund of the vehicle - $ 41,500.00;

(2) Damages - $,7348.00;

(3) Costs - $597.00.

1. The Tribunal orders that on or before 12 January 2026:

(1) The respondent shall pay the applicant the amount of $49,445.00;

(2) The respondent, at its own expense, shall arrange for the collection of the vehicle from the applicant;

(3) The applicant shall execute all necessary documents and registration papers to enable transfer of ownership of the vehicle into the respondent's name.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.