Laskaris v Subaru

1. Subaru is the local manufacturer of Subaru vehicles in Australia. The fourth respondent (Suttons City) is a supplier of Subaru motor vehicles.
2. On or about 11 May 2021, the applicants purchased a Subaru Outback with registration number xxx (Vehicle) from Suttons City. Thee total purchase price, including all on road charges, was $47,050.
3. The Vehicle had been a demonstrator model and, in February 2021, a "Mechanical Diagnosis" of the Vehicle conducted by Subaru had reported the Vehicle to be in good working order.
4. In December 2021, the Vehicle had undertaken 4,611 Kms according to the odometer. On about 12 December 2021, Mrs Laskaris was driving the Vehicle and experienced an issue where, when the brake pedal was pressed, a grinding noise was heard. Mr Laskaris attended the vehicle come out restarted it, and the brakes appeared to function normally.
5. On the following day, the Vehicle was driven to Suttons City. Despite being informed the issue had been resolved, the issue with the brakes recurred on 14 December 2021. On 15 December 2021, the applicants again delivered the Vehicle to Suttons City. The following report was provided to Mr Laskaris that day by Suttons City:

Check - Brakes still locking up

confirm customer concern at time of testing

inspected brake booster

found loose connector

remove & refitted connector

carried out road test over night

tested all ok

customer to monitor

1. On 3 February 2022, Suttons City conducted a service of the Vehicle. The service report in evidence did not disclose any issue with the Vehicle. That service was conducted at no charge to the applicants as a consequence of the brake issue that had been experienced a few months prior.
2. In February 2023, the applicants took the Vehicle for a service at a Subaru dealership at Alexandria not associated with Suttons. At that time the Vehicle had 18,976 Kms on the odometer. The documents tendered by the applicants with respect to this service do not reveal any issues with the Vehicle. The applicants were charged $540.68 for that service.
3. On 20 March 2023, a further issue with the brakes occurred. The Vehicle was towed to the Suttons dealership in Chullora operated by the third respondent. By about 30 March 2023, Subaru and Suttons had determined that the brake booster needed to be replaced, which necessity was apparent given the presence of certain codes. Corrosion was noted in connector assembly. Unfortunately, it appears there was some delay in obtaining parts from Japan to effect the necessary repairs to the Vehicle. It was not until about 19 May 2023 that the repairs were completed, and the Vehicle returned to the applicants. The records of the respondents disclose the following with respect to the repairs:

Add electric boost as required by Subaru Aus. Bled system, cleared codes, test drove car no issues. Brakes operating as they should.

1. On 2 February 2024, a scheduled capped price service of the Vehicle was carried out at Suttons Subaru Chullora. At that point the odometer showed the Vehicle had travelled 28,547 Kms. As well as replacing the battery, the following matters appear on the service tax invoice (totalling $941.00):

Check RAB light comes on & flashes

Checked and found DTC C1460 Brake booster abnormality

Need to check/adjust booster adjustment rod.

Adjusted rod to 160.4mm test drove car, cleared codes no issues

1. The subsequent issue manifesting in the following days is best evidenced by Mr Laskaris' email to Subaru sent on 5 February 2024:

Last Friday I paid $950, and your member was keen to ask if we will be paying cash or card when booked, that service was not worth $10. The car came back with problems it never had before. The car stopped while in traffic. Lucky the car behind me stopped in time! I would like a refund of my last service.

In addition, for that service I paid for a battery, the old battery dropped because the car was in your yard over three months not moving waiting for parts. So I was made to pay for a drained battery that was not my fault.

1. After the incident described by Mr Laskaris where the Vehicle stopped in traffic, it appears the Vehicle was returned to Suttons Subaru Chullora. A service tax invoice dated 9 February 2024 states as follows:

TOWED IN - Vehicle was here last week

###########################################

Check vehicle lost power and started high revving and wasn't moving forward

checked and scanned vehicle

completed control module registration

removed brake booster

confirmed adjustment rod was @ 160.4 mm

reinstalled brake booster again

carried system bled

test drove vehicle overnight found no issues

scan vehicle this morning no codes found in the system

1. During the conduct of the repairs by the respondents on this occasion, Mr Laskaris discovered a dirty cloth left behind in the engine bay of the Vehicle. As Mr Laskaris noted, he considered this indicative of poor workmanship and he would not want to deal with them again.
2. On 14 March 2025, the Vehicle received a service at Suttons Subaru Arncliffe at which time the odometer showed 38,620 Kms. No issues were noted and the applicants paid a total sum of $917.00.
3. At about 8.00pm on 30 May 2025, the Vehicle lost power while the applicants were driving near Nowra NSW. The Vehicle was towed to Suttons Subaru Arncliffe. The Vehicle remained at Arncliffe for approximately two weeks.
4. The evidence as to what was in fact the problem with the Vehicle on this occasion is limited. As the applicants rightly stated, no mechanics report was provided, either at the relevant time or subsequently. The service tax invoice dated 12 June 2025 notes "CHECK VEHICLE NOT STARTING IT COULD BE THE THROTTLE BODY" and notes a number of repairs. It is relevant to interpolate that in addition to addressing the issue of the Vehicle losing power, the respondents checked and replaced a missing wheel nut and stud.
5. An email from the Workshop Controller at Suttons noted to Mr Laskaris on 11 June 2025 that "we have a code for coolant control valve p26a6".
6. The applicants incurred the sum of $380 in respect of towing the Vehicle and at least $225.42 for a rental vehicle.
7. As set out above, the applicants commenced these proceedings on 6 July 2025.
8. In accordance with orders made by the Tribunal on 13 August 2025, the Vehicle was delivered to the respondents for inspection and assessment on 24 September 2025. The Tribunal was provided with a report of Mr Thomas of Subaru concentrating on braking concerns, warning lights on dashboard, wheel studs and nuts and thermo control valve. Mr Thomas did not find any indication of faults and opined that no work is required to the Vehicle.
9. The applicants report that they "still have codes coming up at random times".

1. The Tribunal has jurisdiction to hear and determine this matter under Part 6A of the Fair Trading Act 1987 (NSW) (sections 79I and 79J) as an order is sought that requires the respondent to pay a specified sum of money subsection 79E(1)(a).
2. The applicants are consumers pursuant to section 79D. Suttons City is a supplier of goods on the basis that it supplied the goods (being the Vehicle) the subject of the dispute in the course of carrying on a business: sections 79D and 79G.
3. The supply of the Vehicle has the requisite territorial connection with NSW: section 79K. The application has been made to the Tribunal within the three-year time limit required by section 79L. The claim falls within the monetary limit on the Tribunal's jurisdiction: subsection 79S.

1. In this matter, the relevant consumer guarantee provision of the Australian Consumer Law (ACL) raised by the applicants' claim is s 54 of the ACL.
2. Section 54 of the ACL 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.

(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. Sections 259-263 of the ACL contain remedial provisions against the supplier of goods if there has been a breach of the consumer guarantee under s 54 of the ACL.
2. Section 260 of the ACL sets out the circumstances where a failure to comply with the guarantee as to acceptable quality will be a "major failure". Relevantly, there will be a major failure if the goods would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of the failure (subsection 260(a)) or 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 (subsection 260(d)) or the goods are not of acceptable quality because they are unsafe (subsection 260(e)).
3. Under s 263 of the ACL, if the goods have a "major failure" (as defined in s 259 of the ACL) and the consumer had rejected the goods within a reasonable period of time (as defined in s 262 (2) of the ACL); and the consumer has either returned the goods or the goods cannot be returned without significant cost to the consumer, then the consumer can elect to have a refund or replacement of the goods; and the supplier must refund or replace (s 263 (4) of the ACL).
4. In Crooks v Hyundai Motor Company Australia Pty Ltd [2023] NSWCATCD 29 at [63], the relevant principles were distilled from the authorities:

(1) Whether goods are of acceptable quality (and whether they have a "major failure") involves an objective, not a subjective test. Subjective dissatisfaction with the goods is not sufficient to prove a breach of the consumer guarantee provisions.

(2) A reasonable consumer, full acquainted with potential faults, would understand that no purchase of goods is completely risk free, understanding that teething problems and other problems may be addressed under warranty.

(3) The absence of an independent expert report goes to the weight of evidence, and the absence of such a report does not mean, of itself, that a consumer cannot establish that goods are not of acceptable quality (or have a "major failure").

(4) In respect of the purpose of the goods have been purchased for, "roadworthiness" means fit for use on the roads and is synonymous with "safe."

(5) A series of faults or defects over a period of time may be sufficient to prove objectively that the goods are not of acceptable quality and have a "major failure."

(6) To obtain the remedy of a refund s 263 (4) of the ACL in respect of a breach of the consumer guarantee provisions (including ss 54 and 55 of the ACL) where the failure to comply with the guarantee is a "major failure" under s 260 of the ACL, the goods must have been rejected within a "reasonable time" of the consumer notifying the supplier that the goods have been rejected and the grounds of rejecting the goods (ss 259 (3) (a), 262 and 263 of the ACL.

1. Also relevant are the principles set out by the Appeal Panel in Safi v Heartland Motors Pty Ltd t/as Heartland Chrysler [2016] NSWCATAP 80 at [101]- [102]:

101 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 a 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. As was noted in Crooks at [64], the only remedies available against the manufacturer under the ACL (i.e. Subaru) are for damages under ss 271 (3) and 272 (1) of the ACL. Those damages involve either (or both) (a) loss of value of the goods; (b) reasonably foreseeable loss to the consumer as a result of the failure.

1. The Tribunal has no doubt that the applicants are genuinely dissatisfied with the Vehicle. They gave their evidence and made their submissions in an honest and forthright manner. It is plain that the incident near Nowra was distressing for the applicants and their children. Matters have not been assisted by what Mr Frad (who appeared for Suttons) correctly classified as "bad service" having been provided to the applicants over the years.
2. However, the applicants bear the onus of establishing that the Vehicle has breached the consumer guarantee as to acceptable quality. Further, in circumstances where the substantial relief the applicants seek is a refund of the purchase price, the applicants bear the onus of establishing that there has been a "major failure" and that they rejected the Vehicle within a reasonable time.
3. The relevant principles were summarised in Wilkinson v Bostock [2023] NSWCATCD 150 at [212]- [213]:

The applicant bears the onus of proving causes of action and damages on the balance of probabilities.

In making factual findings on the balance of probabilities, Hallen J in Pollock v NSW Trustee & Guardian [2022] NSWSC 923 summarised the principles as follows at [74]-[75]:

Emmett J in Warner v Hung, in the matter of Bellpac Pty Ltd (Receivers and Managers Appointed) (In Liquidation) (No 2) (2011) 297 ALR 56; [2011] FCA 1123 wrote at [48]:

"When proof of any fact is required, the court must feel an actual persuasion of the occurrence or existence of that fact before it can be found. Mere mechanical comparison of probabilities, independent of any belief in reality, cannot justify the finding of a fact. Actual persuasion is achieved where the affirmative of an allegation is made out to the reasonable satisfaction of the court. However, reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequences of the fact to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, and the gravity of the consequences flowing from a particular finding are considerations that must affect whether the fact has been proved to the reasonable satisfaction of the court. Reasonable satisfaction should not be produced by inexact proofs, indefinite testimony or indirect inferences: see Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 361-2; [1938] HCA 34; [1938] ALR 334 at 342."

In Nguyen v Cosmopolitan Homes [2008] NSWCA 246, speaking with the concurrence of McColl and Bell JJA, McDougall J, similarly, had expressed the view, at [44]-[52], that proof on the balance of probabilities required a feeling of actual persuasion; that the event in question was more likely than not to have occurred; with "a probability in excess of 50%". His Honour repeated that view in Ballard v Multiplex [2012] NSWSC 426 at [126].

1. On the evidence before the Tribunal, there is some basis for satisfaction that there has been a breach of the consumer guarantee in s 54 in relation to the Vehicle. Despite the relative paucity of the evidence, there has been a number of incidents with the Vehicle during the applicants' ownership since May 2021.
2. The brake issue appears to have persisted from time to time between December 2021 and February 2024. However, there is no question on the evidence before the Tribunal that the issue has not recurred since February 2024. The only evidence that the Tribunal has before it tends to the conclusion that the issue has been resolved some time before the proceedings were commenced. Further, it cannot be said to be reasonable to reject the Vehicle more than 3 years after the issue became manifest and approximately 18 months after the issue was last manifested and apparently resolved.
3. The loss of power issue that manifested in late May 2025 falls into a different category. There can be no complaint that the applicants did not bring the proceedings in a reasonable time after this issue manifested. However, although the evidence adduced by the respondents on this issue was relatively sparse, particularly as to what caused the issue (apparently with the thermo control valve) to manifest, the respondents' evidence is to the effect that the issue has been resolved within a reasonable time from the issue appearing and there is no indication of any remaining problem. In the absence of any competing mechanical evidence, the Tribunal considers that there is not sufficient objective evidence enabling it to ignore the evidence advanced by the respondents. The Tribunal is satisfied that there was an issue with the thermos control valve, that it can conclude that, to that limited extent, there was a breach of the guarantee imposed by s 54, but is not satisfied there has been a major failure. That is so even when one takes the incidents of the brake issue and the loss of power together. The issue of the wheel bolts and studs (which the Tribunal concludes having considered the evidence of both parties arose from a misreading of the relevant manual) and the issue of the absence of battery documentation relating to the June 2025 attendance at Chullora do not materially add to the applicants' case.
4. The short point is that the applicants have failed to adduce evidence sufficient to establish that there has been a "major failure" consistent with the ACL and the authorities set out above. Although the absence of an independent expert report is not itself determinative of the applicants' claim, it has meant that the only cogent mechanical evidence before the Tribunal is that adduced by the respondents. The tenor of that evidence is that there is nothing substantially wrong with the Vehicle and that individual incidents have arisen over the more than four years of ownership which have been dealt with (though not necessarily as swiftly or with as an acceptable level of service as might otherwise have been the case). There is simply nothing to gainsay that evidence.
5. In those circumstances, it is simply not possible for the Tribunal to reach the "required feeling of actual persuasion" that there has been a "major failure".
6. As noted above, the Tribunal is satisfied there was a breach of s 54 and is further satisfied that the applicants incurred the sums of $380 in respect of towing the Vehicle and at least $225.42 for a rental vehicle. The respondents ought to pay those sums to the applicants. Otherwise, the application must be dismissed.

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.