Macintosh v Obiodogwu [2026] QCAT 39

Fair Trading Act 1989 (Qld), s 16, s 50, s 50A

Motor Dealers and Chattel Auctioneers Act 2014 (Qld), s 3B, s 4, s 6, s 7, s 9

Australian Competition and Consumer Commission v Jayco Corporation Pty Ltd [2020] FCA 1672

Capic v Ford Motor Company of Australia Pty Ltd [2021] FCA 715

Medtel Pty Ltd v Courtney [2003] FCAFC 151

Vautin v BY Winddown, Inc. (formerly Bertram Yachts) (No 4) [2018] FCA 426

Williams v Toyota Motor Corporation Australia Ltd (Initial Trial) [2022] FCA 344

[1] On 28 March 2024 the applicant ('Mr Macintosh') commenced a proceeding in the Tribunal for a motor vehicle dispute. He commenced it against the respondent ('Mr Obiodogwu'), Nick Chalermphol Somsaen ('Mr Somsaen') and Group DB88 Pty Ltd trading as CJS Auto Works ('Group DB88').

[2] The Tribunal, on 17 December 2024, directed that Mr Somsaen and Group DB88 be removed as respondents to the proceeding.

[3] On 16 July 2023 Mr Macintosh purchased the motor vehicle from Mr Obiodogwu for $6,684.00. He did so after reading an advertisement for the vehicle in Facebook Marketplace and inspecting the vehicle. The advertisement described the vehicle in the following terms:

2012 Holden Captiva 7-Seater + REGO + RWC + Bluetooth

Selling this great and reliable 7-Seater 2012 Holden Captiva with reliable and powerful diesel Engine. Low km, just done 159,523km. It's clean and tidy both interior and exterior. It's mechanically in great condition and no issues. Full detailed service done (including engine and transmission service) saving you money. Drives really smooth and nice. Comes with Bluetooth, sunroof, and many more. Summary of benefits as follows.

[4] The 'Exciting Features and Benefits' are described as follows:

• 3 Months REGO

• Road Worthy Certificate (RWC) ready to go

• Bluetooth for mobile connectivity

• Low KM. Just done 159,523km only

• Full detailed service done

• Very clean interior and exterior

• 4 cylinder, 2.2L diesel engine and fuel efficient

• Sunroof

• Cruise Control

• 17 Inch Alloy Wheels

• Iced Air conditioning

• Power Mirrors, Power Steering & Power Windows

[5] As Mr Macintosh was driving the motor vehicle away from Mr Obiodogwu's home, he noticed a grinding noise when he turned the vehicle and the wheels 'skipped'.

[6] On 26 July 2023 Mr Macintosh took the motor vehicle to Village Motors in North Lakes. The vehicle was said to be unroadworthy. It estimated the cost to repair the vehicle at $15,314.00.

[7] On 9 August 2023 Mr Macintosh engaged lawyers, Butler McDermott Lawyers, to send a letter to Mr Obiodogwu setting out claims under the Motor Dealers and Chattel Auctioneers Act 2014 (Qld) ('MDCA Act') and sections 54, 56 and 59 of the Australian Consumer Law ('ACL'). The letter set out options for settling the claims.

[8] On 21 August 2023 Mr Macintosh's lawyers sent a further letter to Mr Obiodogwu. He responded the same day asserting the motor vehicle was tested by three persons and commented on the options for settling the dispute.

[9] On 31 August 2023 Mr Macintosh's lawyers sent a letter to Mr Obiodogwu. They agreed to the motor vehicle being repaired by Auto Zone.

[10] On 3 September 2023 Mr Obiodogwu sent a letter to Mr Macintosh's lawyers asserting the motor vehicle was sold privately. It went on to assert the vehicle was driven for 800 kilometres and commented on the options for settling the dispute.

[11] On 27 September 2023 Mr Macintosh's lawyers sent a letter to Mr Obiodogwu agreeing to deliver the motor vehicle to his home for repair.

[12] On 20 October 2023 Mr Obiodogwu sent a letter to Mr Macintosh's lawyers again asserting the motor vehicle was sold privately. The vehicle was said to be available for collection from Auto Zone.

[13] On 24 October 2023 Mr Macintosh's lawyers sent letters to Mr Obiodogwu seeking an offer of settlement and to Auto Zone asking for particulars of the repairs.

[14] On 26 October 2023 Mr Obiodogwu sent a letter to Mr Macintosh's lawyers again asserting the motor vehicle was sold privately. The parts removed from the vehicle were available for collection from Auto Zone's workshop and again stating the vehicle was available for collection.

[15] On 26 October 2023 Mr Macintosh's lawyers sent a letter to Mr Obiodogwu rejecting an offer of settlement and a letter informing him the motor vehicle will be collected from Auto Zone. A further letter, on the same day, was sent by Mr Macintosh's lawyers to Mr Obiodogwu asking for documents evidencing the repairs.

[16] Mr Obiodogwu sent a letter to Mr Macintosh's lawyers the same day denying liability, informing them the replacement parts remained in Auto Zone's workshop and extending a warranty by two weeks. The letter asserted Mr Obiodogwu test drove the motor vehicle and accepted the repairs. Mr Obiodogwu offered Mr Macintosh compensation in the sum of $6,000.00.

[17] On 26 and 27 October 2023 Mr Macintosh's lawyers sent letters to Mr Obiodogwu rejecting an offer of $5,500.00 and an offer of $6,000.00.

[18] On 21 November 2023 Mr Macintosh's lawyers sent a letter to Mr Obiodogwu informing him Mr Macintosh will collect the motor vehicle from Auto Zone. It was taken to Village Motors and declared to be unroadworthy. The estimated cost to repair the vehicle is $11,800.00.

[19] On 21 November 2023 Mr Macintosh's lawyers sent a letter to Mr Obiodogwu demanding payment of the cost to repair the motor vehicle and other losses.

[20] In part F of the original application, Mr Macintosh identifies fourteen defects. They are:

1. coolant leak from resivour [sic.] t piece hose
2. leak from turbo to intercooler hose
3. coolant leak from turbo to EGR cooler line
4. engine oil leak from timing cover, requires removal of motor to reseal
5. front diff removal to reseal
6. need to remove and inspect transfer case to reseal
7. 2 lower control arms bushes split
8. 2 link pins split
9. hot spots on 4 rotors
10. EGR gasket leaking coolant AND EGR cooler to turbo hose leaking coolant
11. right hand number plate bulb blown
12. replace rear differential internal damage
13. transfer case internal damage
14. the vehicle does not have a safety certificate - a new safety certificate needs to be issued.

Towing $ 683.39

Mechanical inspection $ 433.50

Non-refundable motor vehicle registration $ 433.50

Non-refundable motor vehicle insurance $ 98.11

Fair Trading filing fee (unspecified)

Loss of value of the motor vehicle $ 835.50

Compensation $7,515.00

$9,999.00

[22] Mr Macintosh filed with the original application the following receipts for expenses incurred by him:

[23] The receipts include the cost of repairs by Auto Zone paid for by Mr Obiodogwu, $8,685.00, and the quotation for the repairs by Village Motors, $11,800.00. Deducting those amounts from the claims leaves a balance of $3,058.21.

[24] Mr Macintosh also includes documents said to support his claim for compensation in the sum of $7,515.00.

[25] Mr Obiodogwu did not file a response to the original application. However, he filed submissions in support of an application to dismiss the proceeding.

[26] Mr Obiodogwu submits the motor vehicle when sold by him to Mr Macintosh was in 'good condition'. Mr Macintosh was satisfied with the condition of the vehicle and paid the price. The vehicle was almost 11 years old at the time of purchase.

[27] Mr Macintosh, Mr Obiodogwu submits, refused to settle the dispute. He continues he has undertaken the following:

‐ cooperating with his solicitor to resolve the dispute;

‐ offering $6,000.00 to buy back the car from Bjorn (which Bjorn rejected);

‐ spending as much as $8,685.00 to fix the list of alleged defects as provided by Bjorn;

‐ spending extra towing cost to move the car to the right workshop despite giving Bjorn the workshop address where the car to be delivered; and

‐ offering extra two weeks warranty after the repairs (never heard from Bjorn after he picked up the car).

[28] The parties did not file statements of evidence.

[29] Auto Zone provided Mr Obiodogwu with an invoice number 024 dated 19 October 2023 setting out the repairs said to have been carried out on the motor vehicle. A copy of the invoice was filed in the Tribunal by Mr Macintosh with the original application.

[30] The repairs, totalling $8,685.00, are in the following terms:

Replace complete rear differential $2,650.00

Replace rear left side shock absorber $ 805.00

Fix coolant leak $ 940.00

Replace wiper $ 120.00

Replace tail shaft $ 995.00

Replace transfer shaft $2,955.00

Tighten all bolts & nuts on the rocker colder $ 220.00

$8,685.00

[31] Village Motors provided Mr Macintosh with a quotation to repair the motor vehicle following collection from Auto Zone. The quotation is for $11,800.00 calculated as follows:

2 x LCA bushes split $ 462.00

2 x link pins split $ 281.00

Hot spots on rotors (machine x 4) $ 96.00

EGR gasket leaking coolant. EGR cooler to turbo

hose leaking coolant $ 808.00

RH number plate blown $ 18.00

Rear diff possible internal damage $ 5,145.00

Transfer case possible internal damage $ 4,491.00

$11,800.00

[33] Mr Macintosh relies on the statutory warranty in the MDCA Act and sections 54, 56 260 of the ACL applying as law in Queensland by section 16(1)(a) of the Fair Trading Act 1989 (Qld) ('FT Act').

Motor Dealers and Chattel Auctioneers Act 2014 (Qld)

[34] The motor vehicle is a class B warranted vehicle.[1]

[35] The warranty period of a class B warranted vehicle starts at the time of taking possession and ends when the first of the following happens or is reached:

(a) the vehicle travels of 1,000km since the time of taking possession;

(b) 5:00pm on:

(i) the day one month after the time of taking possession if:

(A) that day is not a Sunday or public holiday; and

(B) on that day the warrantor's place of the business is open for business; or

(ii) the first day, after the day 1 month after the time of taking possession, that:

(B) the warrantor's place of business is open for business.

[36] The warranty period is extended by 1 day for each day or part of a day the warranted vehicle is not in the possession of the buyer of the vehicle if:

(a) the buyer has complied with section 9(1) (buyer's obligations under the statutory warranty); and

(b) a defect in the vehicle is being repaired by, or at the direction of, the warrantor of the vehicle under the statutory warranty.[2]

[37] The licensee who sells a warranted vehicle must give to the buyer of the vehicle a notice in the approved form.[3] There is no evidence Mr Obiodogwu gave to Mr Macintosh the required notice.

[38] The warrantor of a warranted vehicle warrants that:

(a) the vehicle is free from defects at the time of taking possession and for the warranty period; and

(b) defects in the vehicle reported during the warranty period will be repaired by the warrantor free of charge.[4]

[39] It is clear from the evidence the defects were notified by Mr Macintosh's lawyers to Mr Obiodogwu within the warranty period. Mr Obiodogwu warranted that the vehicle is free from defects at the time of taking possession and for the warranty period. He further warranted that defects in the vehicle reported during the warranty period will be repaired by him free of charge.

Competition and Consumer Act 2010 (Cth)

[40] Section 54 of the ACL, found in schedule 2 to the Competition and Consumer Act 2010 (Cth), provides that if a person supplies, in trade or commerce, goods to a consumer and the supply does not occur by way of sale by auction, there is a guarantee the goods are of acceptable quality.

[41] Goods are of acceptable quality if they are as:

(a) fit for all the purposes for which goods of that kind are commonly supplied;

(b) acceptable in appearance and finish;

(c) free from defects;

(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).[5]

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

(b) the supply does not occur by way of sale by auction,

there is a guarantee that the goods correspond with the description.[6]

[43] A proceeding for the purposes of a provision of the ACL listed in the table to section 50 of the FT Act must be heard in the tribunal or in a court having jurisdiction for the proceeding, having regard to, for the tribunal, whether the subject of the proceeding:

(a) would be a minor civil dispute within the meaning of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) ('QCAT Act'); or

(b) would be a matter to which section 50A applies.

[44] The table to section 50(1) includes an action against a supplier of goods under section 259(2) of the ACL (to recover reasonable costs incurred by a consumer), section 259(3) (to recover compensation for the reduction in the value of the goods) and section 259(4) (to recover damages because of a failure to comply with a guarantee).

[45] Section 50A of the FT Act provides that a person may apply, as provided under the QCAT Act, to the Tribunal for an order mentioned in section 50A(2) for an action:

(a) under a provision of the ACL listed in the table to the section; and

(b) relating to a motor vehicle; and

(c) seeking an amount or value of other relief of not more than $100,000.00.

[46] Motor vehicle is defined in subsection (4) to have the same meaning as defined in the MDCA Act. The definition includes '... a vehicle that moves on wheels and is propelled by a motor that forms part of the vehicle, whether or not the vehicle is capable of being operated or used in a normal way.'[7]

[47] The table to the section includes an action against a supplier of goods under section 259(2) of the ACL (to recover reasonable costs incurred by a consumer), section 259(3) (to recover compensation for the reduction in the value of the goods) and section 259(4) (to recover damages because of a failure to comply with a guarantee).

[48] The remedies available to a consumer for a failure to comply with a statutory guarantee are found in part 5.4 of the ACL. If the failure to comply with a 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.[8]

[49] If the failure to comply with a 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.[9]

[50] A failure to comply with a guarantee in section 54 is a major failure if, inter alia:

(a) the goods would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of the failure;

(b) 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

(c) the goods are not of acceptable quality because they are unsafe.[10]

[51] A failure is also a major failure if the failure is one of two or more failures to comply with a guarantee referred to in section 259(1)(b) that apply to the supply and the goods would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of those failures, taken as a whole.[11]

[52] If, under section 259(2)(a), a consumer requires a supplier of goods to remedy a failure to comply with a guarantee referred to in section 259(l)(b), the supplier may comply with the requirement by, inter alia, repairing the goods, replacing the goods with goods of an identical type or refunding:

(a) any money paid by the consumer for the goods; and

(b) an amount that is equal to the value of any other consideration provided by the consumer for the goods.[12]

[53] A consumer is not entitled, under section 259, to notify a supplier of goods that the consumer rejects the goods if, inter alia, the rejection period for the goods has ended. The rejection period for goods is the period from the time of the supply of the goods to the consumer within which it would be reasonable to expect the relevant failure to comply with a guarantee referred to in section 259(l)(b) to become apparent having regard to:

(a) the type of goods; and

(b) the use to which a consumer is likely to put them; and

(c) the length of time for which it is reasonable for them to be used; and

(d) the amount of use to which it is reasonable for them to be put before such a failure becomes apparent.[13]

[54] The claim was heard by the Tribunal on 6 November 2025.

[55] Mr Macintosh appeared before the Tribunal in person. Mr Obiodogwu appeared by Microsoft Teams.

[56] Mr Macintosh gave evidence. He outlined the circumstances surrounding his purchase of the motor vehicle and identified the defects observed as he drove away from Mr Obiodogwu's home. He took the vehicle to Village Motors for assessment and then retained lawyers to communicate with Mr Obiodogwu. They confirmed Mr Obiodogwu is a licensed motor dealer.

[57] Correspondence passed between Mr Macintosh's lawyers and Mr Obiodogwu. Eventually, Mr Obiodogwu agreed to repair the motor vehicle. Auto Zone carried out the repairs set out in invoice number 024 from it to Mr Obiodogwu dated 19 October 2023 at a cost of $8,685.00.

[58] The motor vehicle, following the repairs by Auto Zone, was transported to Village Motors. It informed Mr McIntosh that the vehicle is unroadworthy and estimated the cost of repairs at $11,800.00.

[59] The motor vehicle has not been repaired and has not been driven since collection from Auto Zone.

[60] In cross-examination by Mr Obiodogwu, Mr Macintosh denied test driving the motor vehicle prior to purchasing it. He further denied that the vehicle was sold to him by Mr Obiodogwu privately.

[61] Mr Obiodogwu, in cross-examination by Mr Macintosh, stated he is a mechanical engineer employed in the air conditioning industry. He admitted he is the holder of a motor dealer licence.

[62] He registered Quick Car Buyer but has not commenced trading in the name of the business.

[63] Mr Obiodogwu conceded he is familiar with the requirements of the MDCA Act. He was unable to recall whether he gave Mr Macintosh the notice required by schedule 1 section 6 of the Act.

[64] He conceded he engaged CJS Auto Works to provide safety certificates a couple of times. He likewise conceded he had engaged Auto Zone to carry out repairs about three years or so ago.

[65] The parties delivered closing addresses. Mr Obiodogwu again submitted the motor vehicle was sold privately. He agreed to repair the vehicle to resolve the dispute.

[66] Mr Obiodogwu later said he drove the motor vehicle after it was repaired by Auto Zone and the vehicle was perfect.

[67] The issues to be decided by the Tribunal are:

(a) did Mr Obiodogwu sell the motor vehicle to Mr Macintosh as the holder of a motor dealer's licence or privately;

(b) did the statutory warranty under the MDCA Act apply to the motor vehicle, was the vehicle free from defects at the time Mr Macintosh took possession and for the warranty period and did Mr Obiodogwu repair the defects free of charge;

(c) did the consumer guarantees in sections 54 and 56 of the ACL apply to the motor vehicle; and

(d) what remedy, if any, is available to Mr Macintosh?

[68] Mr Obiodogwu is registered for an Australian Business Number and is the proprietor of Best Option Cars and Quick Car Buyer. He is the holder of a motor dealer's licence. The principal place of business of the businesses is his home at 129 Vineyard Drive, Greenbank, the address from which Mr Macintosh took possession of the motor vehicle.

[69] Photographs from Facebook Marketplace display numerous motor vehicles for sale by Mr Obiodogwu.

[70] The motor vehicle was registered in Victoria. In cross-examination by Mr Macintosh, Mr Obiodogwu explained he purchased the motor vehicle for his wife. He then decided to purchase a larger vehicle because relatives were visiting him. His wife agreed.

[71] In further cross-examination, Mr Obiodogwu stated he acquired the motor vehicle about a week or so before selling it to Mr Macintosh. He went on to explain when purchasing the vehicle the seller said it belonged to a Victorian person who came to Queensland for holidays and decided to sell it. The vehicle is a 'good car' and the exterior duco was 'top notch', Mr Obiodogwu stated in cross-examination.

[72] Having regard to the documents filed in the Tribunal by Mr Macintosh and the evidence of Mr Macintosh and Mr Obiodogwu, on the balance of probabilities I am satisfied that on the day of its sale Mr Obiodogwu was a motor dealer and as such sold the vehicle to Mr Macintosh. The documents show Mr Obiodogwu held a motor vehicle dealer licence and was the proprietor of the two businesses selling motor vehicles. The evidence also shows he was selling many vehicles.

[73] Mr Obiodogwu's explanation for the motor vehicle being registered in Victoria is rejected. It is unlikely he acquired the vehicle for his wife and sold it a week later because relatives were visiting him.

[74] Likewise, his evidence about the condition of the motor vehicle at the time he purchased it, one week before selling it, is rejected. It is unlikely the vehicle was in the condition described one week before being sold and then declared unroadworthy shortly after purchase and again after being repaired by Auto Zone.

[75] The evidence of Mr Macintosh shows the motor vehicle was not free of defects at the time of taking possession. It was unroadworthy. Village Motors estimated the cost to repair the vehicle at significantly above the cost price.

[76] The motor vehicle was repaired by Auto Zone. It did not give evidence at the hearing. Consequently, the evidence of the repairs was not tested. Suffice it to say the vehicle was then taken to Village Motors and declared to be unroadworthy. It estimated the cost of repairs at $11,800.00.

[77] I accept the evidence the motor vehicle was not free of defects for the warranty period. The defects were reported during the warranty period to Mr Obiodogwu. He failed to repair the defects free of charge.

Consumer guarantees under the Australian Consumer Law

[78] It is settled goods must possess all of the qualities in section 54(2) of the ACL, to the requisite standard, to comply with the guarantee of acceptable quality. A failure to possess one of the qualities is a failure to comply with the guarantee.[14]

[79] The quality of the goods at the time of supply will determine whether they are of acceptable quality.[15] The applicable standard of 'acceptable quality' is determined by what the 'reasonable consumer' would consider acceptable having regard to the matters in section 54(3). The relevant enquiry is necessarily objective.[16]

[80] In Jayco, at [26], Wheelahan J explained:

The standard of acceptable quality in s 54(2) has as its reference point a construct, namely the objective standard of a reasonable consumer fully acquainted with the state and condition of the goods, including any hidden defects of the goods. The reasonable consumer sits with an array of other hypothetical persons who have been recruited by the law and by reference to whom objective standards are evaluated. Such a person has been described as an anthropomorphic conception of justice that is and must be the court itself. (Citations omitted)

[81] The 'reasonable consumer' is assumed to be '... fully acquainted with the state and condition of the goods (including any hidden defects of the goods) ...'[17] Here, Mr Macintosh is taken to be fully acquainted with the state and nature of the defects initially identified by Village Motors and again identified after the motor vehicle was repaired by Auto Zone.

Fit for all the purposes for which goods of that kind are commonly supplied (ACL, section 54(2)(a))

[82] I accept the evidence of Village Motors the motor vehicle was unroadworthy at the time Mr Macintosh took possession of it and required the repairs quoted. Likewise, I accept the evidence of Village Motors remained unroadworthy following repair by Auto Zone and required the repairs quoted.

[83] The motor vehicle, I find, was not fit for all the purposes for which vehicles of that kind are commonly supplied.

Acceptable in appearance and finish (ACL, section 54(2)(b))

[84] The motor vehicle, in my opinion, was acceptable in appearance and finish. The evidence does not suggest otherwise.

[85] The motor vehicle was not free from defects at the time Mr Macintosh took possession of it. It was unroadworthy and remained unroadworthy despite being repaired by Auto Zone.

[86] The motor vehicle was not safe. It was unroadworthy when initially inspected by Village Motors and remained unroadworthy following repair by Auto Zone.

[87] Mr Macintosh was informed he should not drive the motor vehicle.

[88] It is clear from the evidence the defects were such the motor vehicle was not durable. It was unroadworthy at the time Mr Macintosh took possession of it and continued to be unroadworthy. Mr Macintosh was informed he should not drive the vehicle.

[89] The matters for the purposes of section 54(2) are:

(a) the nature of the goods;

(b) the price of the goods (if relevant);

(c) any statements made about the goods on any packaging or label on the goods;

(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.[18]

[90] A motor vehicle is defined to include a vehicle that moves on wheels and is propelled by a motor that forms part of the vehicle, whether or not the vehicle is capable of being operated or used in a normal way. It is defined in different ways in legislation. Generally, it is defined as any self-propelled land vehicle, using an internal motor or other power source (such as electricity or steam) for propulsion, designed for use on roads to transport people or goods, excluding rail vehicles, aircraft, or boats, and often includes attached trailers.

[91] The motor vehicle purchased by Mr Macintosh from Mr Obiodogwu was unroadworthy. He was informed it is unsafe and he should not drive it. The cost to repair the vehicle is significant.

[92] In my opinion, the nature of the motor vehicle is such it cannot be used for that purpose.

[93] The motor vehicle was advertised on Facebook Marketplace as 'great and reliable' and 'with reliable and powerful diesel engine'. The interior and exterior of the vehicle was described as 'clean and tidy', mechanically in 'great condition and no issues' and 'drives really smooth and nice'. It was sold to Mr Macintosh by Mr Obiodogwu for $6,684.00.

[94] The motor vehicle, when compared to the price of similar vehicles, appears to be appropriate. Had it been in the condition described, a reasonable person would have expected to be able to continue driving it for some time. It was not and failed almost immediately.

Representations made about the goods (section 54(3)(d))

[95] The representations made about the motor vehicle in Facebook Marketplace are set out in paragraphs [3] and [4] of these reasons for decision. The vehicle was far from being 'great and reliable'. It did not have a 'reliable and powerful diesel engine' and the interior was not clean and tidy. Mechanically, it was far from being in great condition and there were numerous issues. It did not drive smoothly or nice.

[96] The representations, clearly, were false and misleading. The motor vehicle did not match the condition described in the advertisement.

[97] The motor vehicle, in my opinion, did not comply with the guarantee of acceptable quality.

Determining the question of acceptable quality on a common basis

[98] In Williams v Toyota Motor Corporation Australia Ltd (Initial Trial),[19] Lee J, at [199] and following, considered whether a court can and should determine a motor vehicle the subject of a proceeding was of acceptable quality on a common basis. It is not suggested by Mr Macintosh and will not be considered in the circumstances here.

[99] The consumer guarantee in section 54 of the ACL applying to the sale of the motor vehicle to Mr Macintosh by Mr Obiodogwu, it is unnecessary to consider whether the guarantee in section 56 of the ACL also applies.

[100] The motor vehicle was significantly different to that described in the Facebook Marketplace advertisement. It was unroadworthy and unsafe to drive.

[101] In my opinion, the motor vehicle would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of the failures. It follows the failure to comply with the consumer guarantee in section 54 of the ACL is a major failure within the meaning of section 260(1) of the ACL.

[102] The parties gave little attention to relief at the hearing of the proceeding.

[103] Mr Macintosh, in the original application, claims the cost to repair the motor vehicle, $11,800.00, and other costs as follows:

Towing $683.39

Mechanical inspection $433.50

Non-refundable motor vehicle registration $433.50

Non-refundable motor vehicle insurance $98.11

Fair Trading filing fee (unspecified)

Loss of value of the motor vehicle $835.50

Compensation $7,515.00

[104] The following receipts were filed in the Tribunal with the original application:

Department of Transport and Main Roads ($1,031.00 - $499.55 = $531.45)

[105] Additionally, Mr Macintosh claims depreciation of the motor vehicle in the sum of $835.50, compensation for emotional damage, damage to the relationship with his wife and financial stress in the sum of $7,515.00 and interest.

[106] The cost to repair the motor vehicle quoted by Village Motors, $11,800.00, is reasonable costs to be incurred by Mr Macintosh to have the failure remedied. The amount will be allowed the decision of the Tribunal.

[107] The costs set out in paragraph [104] were reasonably incurred by Mr Macintosh. He took reasonable action to mitigate any loss suffered by him.

[108] The total of the costs will be added to the amount to be paid to Mr Macintosh.

[109] The claim for depreciation and compensation are troubling. The Tribunal is without particulars of the calculation of depreciation. In the circumstances, it will not be allowed.

[110] Likewise, the claim for compensation is without proof. The material filed, to the extent it evidences a claim, suggests any loss is unrelated to the defects in the motor vehicle.

[112] Mention is made to a claim for legal costs. It is not referred to in the original application.

[113] Mr Macintosh was not given leave by the Tribunal to be represented by lawyers. Any claim will not be allowed.

[114] The findings of the Tribunal may be summarised in the following terms:

(a) Mr Obiodogwu was a licenced motor dealer at the time he sold the motor vehicle to Mr Macintosh;

(b) the statutory warranty under the MDCA Act applied to the vehicle, it was not free from defects at the time Mr Macintosh took possession and for the warranty period and Mr Obiodogwu did not repair the defects free of charge;

(c) the consumer guarantee in section 54 of the ACL applied to the vehicle;

(d) Mr Macintosh is entitled to costs incurred by him in the sum of $13,859.11.

[115] The decision of the Tribunal is that Mr Obiodogwu pay to Mr Macintosh $13,859.11.

[116] The Tribunal is empowered to order a respondent pay to an applicant the amount of any prescribed fee paid by the applicant on filing the application for the proceeding. In the circumstances, it is appropriate that Mr Obiodogwu be ordered to pay to Mr Macintosh the filing fee on the original application. The sum of $135.20 will be added to the amount ordered.

[117] The amount ordered should be paid within three weeks of this decision.

[14] Vautin v BY Winddown, Inc. (formerly Bertram Yachts) (No 4) [2018] FCA 426, [142] (Derrington J) ('Vautin'); Australian Competition and Consumer Commission v Jayco Corporation Pty Ltd [2020] FCA 1672, [25] (Wheelahan J) ('Jayco').

[15] Capic v Ford Motor Company of Australia Pty Ltd [2021] FCA 715, [606] (Perram J); Jayco [27]; Vautin [170]-[171], [273].

[16] Medtel Pty Ltd v Courtney [2003] FCAFC 151, [64] (Moore J), [72], [81] (Branson J with whom Jacobson J agreed); Capic [105].

[19] [2022] FCA 344.