JBL Ameli Pty Ltd v Luxe Autohaus Pty Ltd [2025] NSWCATCD 156;

(a) it was not of acceptable quality;

(b) It was unsafe to drive;

(c) It was not fit for its intended purpose; and

(d) a reasonable consumer would not have purchased the vehicle had they known of the defects.

1. Section 260 of the ACL deals with a major failure. I will deal with whether there was a major failure in connection with the Landcruiser later in these reasons.
2. The guarantees referred to in s259(1)(b) of the ACL are a:

guarantee that applies to the supply under Subdivision A of Division 1 of Part 3‑2 (other than sections 58 and 59(1));

1. Those guarantees are so far as relevant, s54 Guarantee as to acceptable quality and s55 Guarantee as to fitness for any disclosed purpose.
2. I find that a case based on representations allegedly made pursuant to s18 of the ACL for misleading or deceptive conduct does not give a consumer the right to make a claim under s260 of the ACL for a major failure.
3. Insofar as the applicant alleges that the Landcruiser was not fit for its intended purpose, I find that there is no consumer guarantee of fitness for intended purpose in Part 3-2 of the ACL. However under a Guarantee as to acceptable quality, goods will be of acceptable quality if they are, among other things:

"fit for all the purposes for which goods of that kind are commonly supplied;"

1. Exhibit A is made up of documents relating to purchase of the Landcruiser and document which came into exitance after the purchase. A number of the documents have the applicant's handwritten comments on them in red, which I will consider to be submissions made by the applicant on the document in question. In some cases the writing in red may be an assertion of fact. I will treat the applicant's comments with caution when they deal with mechanical/technical issues because there is no evidence that the applicant's representative Mr Khalil has any training or relevant experience in automotive/mechanical issues.
2. The applicant did not serve a witness statement as part of its evidence. As a result, there is no evidence that the applicant made known to the respondent a particular purpose for which it was acquiring the Landcruiser. Because of this, I find that the applicant is not in a position to make a case under s55 of the ACL against the respondent, namely for a breach of the Guarantee as to fitness for any disclosed purpose.
3. Section 54 of the ACL relevantly states:

'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

(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.

1. The matters in s54(3) are 'mandatory considerations' to establish whether or not goods are not of acceptable quality under s54(2)(a)-(e) such that a reasonable consumer, fully acquainted with the state and condition of the goods, would regard the goods as being of acceptable quality, determined at the date of the supply of the goods.
2. In Frediani v Hall t/as Happy Camper Conversions [2024] NSWCATAP 134 an appeal panel summarised the principles applicable to s54(2) of the ACL which are:

'The "reasonable consumer" in s 54(2) is assessed objectively, and idiosyncratic subjective views by the consumer about the state or condition of the goods or what is, or is not, acceptable, is irrelevant (Toyota Motor Corporation Australia Limited v Williams (2023) 296 FCR 514; [2023] FCAFC 50 (Williams-Appeal) at [42]-[43]).

Section 54 of the ACL requires consideration of at least some knowledge acquired after supply, or else it would not be possible to hold that goods were not of acceptable quality by reason of a latent or hidden defect (Capic-Appeal at [57]).

The statutory language of s 54(2) does not confine "acceptable quality" to "not potentially fatal" or "unusable" (Capic-Appeal) at [53].

The existence of a manufacturer's warranty should generally have no bearing on the question of whether the goods comply with the statutory guarantees of acceptable quality (Capic-Appeal at [63], applying Jayco at [43]; and Toyota Motor Corporation Australia Limited v Williams (2023) 296 FCR 514; [2023] FCAFC 50 at [45]).

The consumer guarantee in s 54 should not be "read down" because it could otherwise lead to a "disproportionate outcome" (Capic-Appeal at [75]).

A reasonable consumer in the hypothetical circumstances in s 54 would be aware that motor vehicles are complicated pieces of machinery that may develop future problems that may require rectification by the vehicle's manufacturer during its lifetime, and a merely speculative theoretical possibility of a future problem may not be regarded as unacceptable by a reasonable consumer (Dwyer v Volkswagen Group Australia Pty Ltd t/as Volkswagen Australia [2021] NSWSC 715 at [158]; Dwyer v Volkswagen Group Australia Pty Ltd [2023] NSWCA 211 at [154]- [156]).

A reasonable consumer being aware that motor vehicles are complicated pieces of machinery that may develop problems is different to a reasonable consumer accepting that a vehicle, because of a defect already present at the time of supply, cannot be used in a reasonable and normal way without malfunctioning and consequently exposing the vehicle one or more non-trivial adverse consequences (Williams v Toyota Motor Corporation Australia Limited [2022] FCA 344 at [198]; Capic v Ford Motor Company Pty Ltd [2021] FCA 715 at [636]).'

1. I find that matters which come within s54(3)(e) include that when the applicant purchased the Landcruiser, the Odometer reading was 262,364 kilometres. In connection with s54(3)(d) - representations, the respondent stated the following in connection with the Landcruiser:

'We are proud to offer this well maintained & highly accessorised 2008 Toyota Land Cruiser GXL.'

Boasting legendary Toyota reliability'

Ready for your next adventure the vehicle has just been serviced & is accompanied by two keys & original owner manuals..

All vehicles advertised by our dealership have undergone a rigorous mechanical inspection.'

1. The applicant alleges that within four days of purchase, the vehicle had been driven 576 kilometres and began displaying several mechanical faults, including warning codes on the dashboard, rough engine noise and idle vibration and pulling to one side when driven on the highway. It is also alleged that following these faults, the vehicle became non-operational and not roadworthy.
2. Approximately 21 days after the Landcruiser was purchased the applicant took it to Cornell Diesel Systems who provided a tax invoice for a basic diagnostic. The tax invoice dated 24 March 2025 stated that odometer was 263,461. Contrary to the applicant's submission, I find that the Landcruiser had travelled 1,097 kilometres since purchase. The tax invoice stated as follows:

'Customer advised vehicle has fault light's on dash. Customer has also advised light came on while the air cond was on x 2. Blows black smoke underload. Rough engine on idle. Customer recently purchased vehicle,check over is required.'

1. The tax invoice listed a number of items that had been checked. The items that were negative were:

'High blowby from the engine

Cylinder # 2 has high feedback

steering rack leaking.

Oil filter housing leaking.

Oil level on low mark

Recommendations

Remove and test injectors

Compression test engine, inspect cylinders with borescope.'

1. The applicant also relies on a document at page 16 of exhibit A which is stated by a hand annotation to come from DJ Auto Ingleburn. The document is a photograph of Code Scan Results which has two sections:

'Engine - History Codes - Codes: 1

P1238 Injector malfunction

Engine - Pending Codes - Codes: 1

P1238 Injector malfunction'

1. The applicant has written at the bottom of the photographic image:

'This scan is evidence that the vehicle was faulty at the time of time of purchase & the faults were hidden from me'.

1. I don't accept that evidence/submission from the applicant because there is no evidence that he has training or expertise in interpreting the Code Scan results taken from the machine used to produce the image which is at page 16.
2. Exhibit A also contains email correspondence between the parties which discloses that on 26 March the applicant sent a long email to the respondent which set out the facts experienced with the Landcruiser after it was purchased, including warning indicators on the dash occurring on 9 and 17 March. The applicant informed the respondent of the comments and observations made by Cornell Diesel Systems and in particular the recommendations it made.
3. The applicant stated that there was a pre-existing fault in the vehicle and that the vehicle was of an unacceptable quality with 'numerous pre-existing faults'. The applicant stated that there were 3 options which were

'Option 1: Return the Prado (trade in) and refund the funds paid to complete purchase of vehicle including transfer costs in exchange for the return of theV8 Landcruiser to you.

Option 2: Refund me the purchase price of the V8 vehicle I paid for as per the contract of sale including transfer costs in exchange for the return of the V8 Landcruiser to you. >

Option 3: Cover the costs to fix issues 1 to 4 listed above at Cornell Diesel Systems and/or another reputable Diesel Specialist in V8 Landcruiser that can carry out the above recommendations and subsequent fixes of the issues.'

1. They respondent replied on 27 March asking that the applicant return the vehicle to its premises for mechanical assessment.
2. The applicant replied on the same day stating that it would return the vehicle on Saturday which would have been 29 March 2025. On 1 April 2025, the respondent wrote to the applicant stating that it could confirm that all fault codes could be attributed to a faulty injector and that it was prepared to have the injector replaced at no cost to the applicant. The respondent stated that it had instructed its mechanic to complete the necessary repair as a matter of priority. On the same day the applicant wrote back enquiring whether the faults identified by Cornell Diesel Systems were all from a faulty injector. Then on the same day the applicant stated that the respondent should not start on the injector replacement until he had spoken to it. The applicant had been corresponding with the respondent's managing director who was overseas. On 2nd April the applicant wrote to Mr Croker of the respondent asking it not to allow its mechanic to work on the vehicle and stating that he did not authorise any repairs to be carried out. The applicant raised a number of issues. including that the respondent's mechanic had assessed the engine as being in good condition, that a blue slip had been issued despite the Landcruiser having tyres of a different size. He stated that he would be coming in after work to collect the vehicle and would be lodging a claim with Fair Trading.
3. On 2 April the respondent replied to the applicant confirming that all fault codes/warning indicators on the dash were attributed to the faulty injector and stating that none of these warnings were active at the time of the sale. The respondent's managing director stated that they were perplexed by the applicant's refusal to allow the repair to be carried out. He stated that he hoped that common sense would prevail in allowing the respondent the opportunity to complete the necessary repair on his behalf. It was also stated that as regards high blow by, that was consistent with a 17-year-old diesel engine that had travelled in excess of 260,000 kilometres and that the steering rack and oil filter housing leaks to which the applicant had referred might more accurately be described as weep seepage and were fair and reasonable and could be considered as consistent with the odometer reading of the vehicle
4. The applicant replied on 2 April 2025 in a long email stating that changing one injector would not fix the faults. The applicant stated that he would be picking the Landcruiser up in the afternoon and would ask Fair Trading then possibly the 'Review Tribunal' for a full refund of the following expenses to date:

(a) Purchase price;

(b) Transfer costs;

(c) Repair and placement of 4 x tyres;

(d) 2 x wheel alignments;

(e) Initial diagnosis of codes with local mechanic; and

(f) Second diagnosis of codes with Cornell Diesel.

1. The applicant then suggested an alternative way to resolve the situation which was not followed.

1. The respondent's evidence included an affidavit from Mr T Galloway who states that he is an expert witness. Mr Galloways affidavit is not long and is reproduced below:

'I am an expert witness for the respondent.

2 I made this statement regarding this matter on the 8th of July, 2025.

3 I have not changed my statement regarding this matter and I am not aware of any other matters that would give me cause to change it.

4 I have read the NCAT expert code of conduct - Procedural Direction 3 and agree to be bound by it.

5 I am the Head Mechanic at Tommy's Garage with 12 years of experience dealing with vehicles of this nature.

6 I was engaged by LUXE Autohaus to carry out a mechanical assessment of 2008 Toyota Landcruiser GXL (VIN JTMHVO9J6O4O 17264) pursuant to a consumer complaint pertaining to dash warning lights, engine blowby, an oil filter housing leak and a steering rack fluid leak.

7 Following assessment, it was determined that all fault codes were directly attributed to a failed injector for which I recommended replacement.

8 Following assessment, it was determined that the level of engine blowby was consistent with that of a 17 year old vehicle that has travelled in excess of 260,000 kilometres.

9 Following assessment, it was determined that the reported oil filter housing leak and steering rack fluid leaks were both merely weeps or sweats - neither constituting a repairable leak under Rule 107.01 of AIS Safety Check Standards

10 Following assessment and my recommendation for an injector replacement, I was advised by LUXE Autohaus that the owner of the vehicle had refused the repair and demanded prompt collection of their vehicle.

11. Based on my many years of experience, it was my professional determination following assessment that a replacement injector would render the vehicle mechanically sound and fit for purpose in line with the motor dealer's statutory obligations under Motor Dealers Act and Australian Consumer Law'

1. Mr Galloway's opinion was that the Landcruiser had a failed injector which had caused fault codes in the form of dash warning lights. He also stated that the level of engine blowby was consistent with a 17 year old vehicle that had travelled in excess of 260,000 kilometres. He also stated that the alleged leaking from the oil filter housing and the steering rack were weeps or sweats.
2. Mr Croker provided an affidavit for the respondent which states that the applicant's representative expressed a familiarity with the Landcruiser's engine and spent considerable time inspecting the mechanical components of the vehicle. Mr Croker states that the applicant's representative stated after a test drive that he was satisfied with the condition of the vehicle. Mr. Croker also states that during the course of the sale he personally drove the vehicle on several occasions and at no point did he observe any warning lights or mechanical issues with the vehicle. He stated that to the best of his knowledge, the vehicle was safe, roadworthy and free of fault at the time of sale.
3. While I accept Mr Croker's evidence I find that his observations as stated in his affidavit are not determinative in connection with the issue of whether or not the respondent was in breach of the s54 Guarantee as to acceptable quality.

1. The technical evidence tendered by the parties has some common ground in that Cornell Diesel Systems suggested removal and testing the injectors, the DJ Auto Code Scan referred to injector malfunction and Mr Galloway referred to a failed injector which he recommended be replaced.
2. I prefer the evidence of Mr Galloway to the evidence of Cornell Diesel system. I find that the evidence that can be inferred from the DJ Auto Code Scan is the same as Mr Galloway's evidence, namely that the issue with the Landcruiser related to the injector. It is also relevant that the evidence to be inferred from the Cornell Diesel Systems invoice does not reach a conclusion about the injectors. There are recommendations for testing which were not implemented by the applicant. The reason for preferring Mr Galloway's evidence is that he is an experienced mechanic who has agreed to be bound by the NCAT Expert Code of Conduct. He states that he has carried out a mechanical assessment of the Landcruiser. He has provided his opinion as stated at [11] of his affidavit which is to replace the injector. The tax invoice from Cornell Diesel Systems does not state with the author is or his or her experience. The tax invoice indicates that a basic diagnostic service for $300 was carried out which indicates to me that the investigation was of a preliminary nature. While I accept that the document does serve the purpose of a basic diagnostic test, there is no indication that any of the suggestions there, which were not carried out, should be preferred over and above the evidence given by Mr Galloway which was a concluded opinion.

1. For the purposes of ascertaining whether s259(1) of the ACL applies, namely whether the guarantee as to acceptable quality has not been complied with, I must consider the facts that I have referred to in context of s54(2) of the ACL to ascertain whether the Landcruiser was at the time of supply:

(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;

1. For the Landcruiser to be of acceptable quality, it must possess all of the above elements having regard to the following matters:

(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.

1. The test is whether a reasonable consumer who was fully acquainted with the state and condition of the Landcruiser (including any hidden defects) would regard it as acceptable having regard to the matters referred to in the preceding paragraph.
2. As regards the phrase 'including any hidden defects of the Landcruiser' the relevant authorities state that this means that the determination of what is objectively reasonable for a consumer to expect is to be made taking into account the relevant information known as at the time of the trial, including after-acquired knowledge.

1. I find that a reasonable consumer who was fully acquainted with the state and condition of the Landcruiser (including any hidden defects) and having regard to the matters referred to in s54(3) would consider the Landcruiser:

(a) fit for all the purposes for which goods of that kind are commonly supplied because it was a 17 year old vehicle with more than 250,000 kilometres with defects capable of being repaired;

(b) acceptable in appearance and finish there is no assertion to the contrary;

(c) not free from defects. It had a failed injector which needed to be replaced on the respondent's own evidence;

(d) safe there being no suggestion to the contrary, assuming that the injector was replaced;

(e) durable in context of being an old vehicle with more than 250,000 kilometres.

1. Because I have found that the Landcruiser was not free from defects, it follows that it was not of acceptable quality. To be of acceptable quality goods must meet all of the elements of s54(2) of the ACL.
2. I find that the position is made worse from the respondent's perspective by the reference in s54(3)(d) to:

'any representation made about the goods by the supplier or manufacturer of the goods'

1. The reason for referring to any representation made is that the respondent stated in connection with the Landcruiser:

'All vehicles advertised by our dealership have undergone a rigorous mechanical inspection'

1. In my view a reasonable consumer fully acquainted with the state and condition of the Landcruiser would have expected a rigorous mechanical inspection to have revealed the defective injector.

1. I have found that the applicant has been successful in establishing that the respondent breached s54 of the ACL thereby satisfying s259(1) of the ACL.
2. As stated at [8] above the applicant claimed that the Landcruiser suffered a major failure. A major failure is described as follows in s260 of the ACL:

'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

(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.'

1. In Safi v Heartland Motors Pty Ltd t/as Heartland Chrysler [2016] NSWCATAP 80 the Appeal Panel of the Tribunal set out a useful summary of the approach and principles to be applied in the construction of section 260:

85 Section 260 of the ACL (NSW) sets out five measures against which non-compliance is to be assessed for the purposes of determining whether there is a "major failure". As observed by the Magistrates' Court of Victoria in Cary Boyd v Agrison Pty Ltd [2014] VMC 23 at [50], for there to be a major failure it was not necessary for the claimant to establish each of the matters set out in s 260, establishing one is sufficient. This is clear from the drafting of the section.

86 The first measure, under s 260(a), is whether "the goods would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of the failure".

87 Subsection 260(a) applies to a generic "reasonable consumer" who acquires goods. It has the broadest and most general application. In contrast, s 260(d), where goods are unfit for a disclosed purpose, only applies when there have been specific negotiations about purpose between a consumer and a supplier. Similarly, s 260(b) only applies where goods have been acquired by description, sample or as a demonstration model.

88 Subsections 260(c) and 260(e), namely where goods are "substantially unfit" or where they are "unsafe", direct specific attention to the nature and extent of the failure. Whereas s 260(a) directs attention to the mind of the reasonable consumer, although the nature and extent of the failure is relevant in a contextual sense. There is an overlap between ss 260(a), 260(c), and 260(e). For instance, if it is established that goods are unfit for the purpose for which goods of the same kind are commonly supplied and that they cannot be remedied easily or in a reasonable time, it follows that a reasonable consumer, fully acquainted with this fact, would not have acquired the goods. The same can be said of goods that are found to be unsafe. However, the reverse is not true. Subsections (c) and (e) require proof of specific factual matters in relation to the nature of the failure in the goods, subsection (a) does not.

89 Subsections (a), (c) and (e) of s 260 are closely linked to the consumer guarantee of "acceptable quality" under s 54. Relevantly, s 54 requires that, among other things, goods be "fit for all purposes which goods of that kind are commonly used" and "safe" which is to be adjudged by the "reasonable consumer fully acquainted with the state and condition of the goods". As such, the inquiry as to whether goods comply with the guarantee of acceptable quality and any findings about this matter will be relevant to the inquiry about whether such failure is a major failure for the purposes of s 260.

1. The Appeal Panel went on to distil at [101] and [102] the following principles to be applied in determining if there is a major failure to comply with the guarantee as to acceptable quality:

101 Having regard to these cases and the commentary, where there is non-compliance with the guarantee of acceptable quality, as alleged in this case, we find that the following matters will be relevant to the question of whether this amounts to a "major failure" under s 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 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 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 and in a timely manner are relevant considerations.

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

1. In determining whether a failure to comply with s54 of the ACL is a major failure, I will consider each of the elements in the definition of major failure as stated in s260 to ascertain whether one or more is established by the applicant.
2. First, whether the Landcruiser would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of the failure. The relevant principles are:

(a) This limb 'applies to 'a generic "reasonable consumer" who acquires goods. It has the broadest and most general application';

(b) This limb is 'closely linked to the consumer guarantee of "acceptable quality" under s 54. Relevantly, s 54 requires that, among other things, goods be "fit for all purposes which goods of that kind are commonly used" and "safe" which is to be adjudged by the "reasonable consumer fully acquainted with the state and condition of the goods". As such, the inquiry as to whether goods comply with the guarantee of acceptable quality and any findings about this matter will be relevant to the inquiry about whether such failure is a major failure for the purposes of s 260'

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

(d) 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

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

1. First, I am unable to find that Landcruiser would not have been acquired by a reasonable consumer fully acquainted with the nature and effect of the failure, namely the failed injector, because the evidence is that the injector could be repaired. I also take into account that a reasonable consumer aware that the Landcruiser was years 17 old and had 260,000 kilometres on the odometer would, be likely to acquire such a Landcruiser with a known, but repairable defect, subject to price. In that regard the Appeal Panel in Safi v Heartland Motors Pty Ltd t/as Heartland Chrysler stated:

'A "reasonable consumer" would expect teething problems, even in a new vehicle'

1. If that is the expectation of a reasonable consumer as regards a new vehicle, then in my view a reasonable consumer would expect a 17 year old vehicle with 250,000 or more kilometres on the odometer to have hidden minor and more serious defects.
2. Secondly, 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

1. I find that this limb of s260 has no application because the Landcruiser was not supplied by description or by reference to a sample or demonstration model.
2. Thirdly, 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. I find that this limb of s260 has no application because the respondent's expert has stated that a replacement injector would render the Landcruiser mechanically sound and fit for purpose.
3. Fourthly, the goods are unfit for a disclosed purpose that was made known. I find that this ground has not been made out because there was no evidence that the applicant made known to the respondent the purpose for which the Landcruiser was acquired. In any event if I am wrong about that the evidence is that the Landcruiser can be made mechanically sound and fit for purpose. I find that there is no reason to find that could not be done in a reasonable time.
4. Fifthly, that the Landcruiser is not of acceptable quality because it was unsafe. I find that there is no independent persuasive evidence that the Landcruiser was or is unsafe. The applicant alleges that the Landcruiser was unsafe. It is relevant in my view that safety issues were not raised by the applicant in his email correspondence with the respondent, on or before 2 April 2025. I find that more is required than an applicant's own unsubstantiated assertion of a lack of safety. There is also no independent evidence which would support a finding that the Landcruiser was unsafe.
5. For the reasons set out above I find that the applicant has failed to establish that the failure of the respondent in connection with the Landcruiser under s54 of the ACL was a major failure as defined in s260 of the ACL.
6. By reason of that finding the applicant's claim for a refund of the purchase cost of the vehicle is rejected.
7. I also reject the applicant's claim for $200.00 for used Bridgestone tyres, $141.00 for tyre installation and $75.00 for wheel alignment.

1. At [7] I referred to the fact that the applicant stated, among other things, that it relied upon representations made by the respondent and representatives of the respondent in deciding to purchase the Landcruiser.
2. The applicant's case was not run on the basis of a claim under s18 of the ACL which states:

'A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.'

1. I find that despite referring to representations, the applicant's case before ethe Tribunal was essentially for breach of the guarantee as to acceptable quality which resulted in a major failure.
2. The applicant did not give evidence that it purchased the Landcruiser in reliance on the representations that were made.
3. I find that despite the applicant referring to representations made by the respondent, it did not run its case in the Tribunal on the basis that it had relied on a misrepresentation by the respondent, that s18 of the ACL had been breached with the result that it was claiming damages under s236 of the ACL. Because of that finding I will not seek to determine whether various aspects of the applicant's evidence might be joined together to make out a s18 claim. To do so would be procedurally unfair to the respondent as it was not made plain to it that it was required to answer a s18 case.
4. For the reasons provided, I find that the applicant has not established that there was a major failure under s260 of the ACL.

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.