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The Tribunal queried the provenance of the sale. It directed the applicant to confirm who she bought the vehicle from and whether that person was a dealer or a private individual (para [2]). The applicant then disclosed she had purchased a second-hand Land Rover Discovery Sport from a private individual, Arpad Schubert (para [3]). Given that fact, the Tribunal invited submissions on whether it had jurisdiction to determine the ACL-based claim where the sale was a private sale (para [4]).

The legal issue was whether the ACL consumer guarantees and the Tribunal's statutory jurisdictional gateway (s 50A of the Fair Trading Act 1989 (Qld)) applied to a motor vehicle that had been supplied by private sale. The Tribunal observed the statutory mechanics: s 50A FTA permits applications to QCAT for orders under specified ACL provisions in relation to motor vehicles, and s 271 of the ACL permits a consumer to recover damages against a manufacturer where guarantees (s 54, s 56, s 58, s 59(1)) apply, but those guarantees only apply where goods are supplied to a consumer 'in trade or commerce' (para [5]–[6]).

To decide whether a private sale amounted to supply 'in trade or commerce' the Tribunal followed Walker v Sell [2016] FCA 1259. In Walker, Bromwich J held that a private sale of a motor vehicle via a classified advertisement on Gumtree was not a supply 'in trade or commerce' because it did not occur in the course of business activity or arise in a business context (para [7]). Applying that authority to the facts here, the Tribunal concluded the sale to Ms Mackness was a private sale and not 'in trade or commerce', and therefore the Tribunal had no jurisdiction under s 50A FTA or s 14 Schedule 1 of the Motor Dealers and Chattel Auctioneers Act 2014 (Qld) to adjudicate the ACL claim (paras [7]–[8]). The application was dismissed (para [9]).

Why the court decided this way

The decision rests on two linked legal propositions grounded in statute and precedent:

1. The statutory requirement that ACL guarantees apply only where goods or services are supplied to a consumer 'in trade or commerce'. Member Cranwell expressly identifies s 271 ACL as the mechanism by which a consumer may recover damages against a manufacturer for breaches of guarantees, and states the prerequisite that the guarantees in s 54, s 56, s 58 and s 59(1) only apply if the supply is 'in trade or commerce' (para [6]). That textual requirement is the legal lens through which the Tribunal assessed jurisdiction.

2. The controlling precedent on whether a private sale is a supply in trade or commerce is Walker v Sell. The Tribunal adopted Bromwich J's analysis that a private sale made by an individual via a classified advertisement was not conducted in the course of business activity and did not arise in a business context, and therefore was not a supply 'in trade or commerce' (para [7]). Because the applicant's purchase was a private sale from an individual (Arpad Schubert), the Tribunal treated Walker as applicable and decisive.

These two elements, statute and precedent, yielded a straightforward jurisdictional conclusion. If the sale was not 'in trade or commerce', then the statutory guarantees did not attach and the Tribunal's jurisdictional gateway under s 50A FTA was not available. The Tribunal also noted the related provision in the Motor Dealers and Chattel Auctioneers Act, and concluded it similarly did not provide jurisdiction in the circumstances (para [8]).

Procedurally, the Tribunal gave the applicant opportunity to show otherwise by requiring details of the seller and inviting submissions, but the factual record confirmed a private sale. There was no contested factual finding to the contrary. The decision therefore turned on legal characterisation of that private sale.

Before and after state of the law

Before this decision (and as the Tribunal recognised), the ACL's consumer guarantees attach only where there has been supply 'in trade or commerce'. The question of whether an individual private sale is a supply in trade or commerce has been litigated and was authoritatively addressed in Walker v Sell [2016] FCA 1259. Walker is the direct authority applied by the Tribunal.

This QCAT decision applies Walker on the facts of a private motor vehicle sale and confirms that, at least for tribunal jurisdictional purposes in Queensland, a plainly private sale from an individual seller will not be treated as a supply in trade or commerce and therefore ACL guarantees do not arise in QCAT. The decision is consistent with Walker and follows its logic without extending it.

The decision does not change the law; it applies the established rule to a particular factual setting. It confirms that an applicant who purchases a motor vehicle from a private seller cannot, in QCAT under s 50A FTA, pursue ACL guarantees against the manufacturer unless the supply can be characterised as being in trade or commerce.

Key passages with plain-English translation

• Quotation: Section 50A(1) FTA (para [5]): "A person may apply ... to the tribunal for an order ... for an action ... under a provision of the Australian Consumer Law ... relating to a motor vehicle ... seeking ... not more than $100,000."

  Plain English: QCAT has a statutory pathway (s 50A) to hear certain ACL disputes about motor vehicles, provided the ACL provisions apply to the particular supply.

• Quotation: "Under s 271 of the Australian Consumer Law, a consumer can recover damages against a manufacturer ... The guarantees ... only apply where the goods or services are supplied to a consumer 'in trade or commerce'." (para [6])

  Plain English: You can sue a manufacturer under the ACL for broken consumer guarantees, but only if the product was supplied as part of business activity or commerce, not necessarily when bought privately.

• Quotation: "In Walker v Sell, Bromwich J held that the private sale of a motor vehicle through a classified advertisement on Gumtree was not in trade or commerce because it was not done in the course of a business activity or arising in a business context." (para [7])

  Plain English: A previous Federal Court decision said that selling a car as a private person through an online ad is not a business sale, so the ACL consumer protections did not apply to that transaction.

• Quotation: "The application is therefore dismissed." (para [9])

  Plain English: Because the applicant bought the car privately, QCAT had no legal power to hear the ACL claim, so the Tribunal ended the case in favour of the respondent.

What fact patterns trigger this precedent

This decision (following Walker) will be triggered where:

• A consumer sues under ACL consumer guarantees in a tribunal or court but the vehicle (or goods) was bought from a private individual, not from a dealer or business.
• The applicant seeks relief in QCAT relying on the s 50A FTA gateway which only permits ACL-based motor vehicle claims where the ACL applies to the supply.
• The sale is informal and not demonstrably connected to any business activity; for example, advertising on classified listings, one-off private transactions, or sales where the seller is not engaged in the motor trade.

Conversely, the precedent will not be triggered where there is evidence that the seller was acting in the course of a business, for example, a seller trading in vehicles, regularly selling cars as a business, or where the context of the sale indicates a commercial venture. In those fact patterns the 'in trade or commerce' requirement may be satisfied and this line of reasoning would not bar tribunal jurisdiction.

How later courts have treated it

The judgment itself cites Walker v Sell as the controlling authority and does not refer to any subsequent treatment of the issue. The decision applies Walker and does not purport to depart from it. The Tribunal therefore adopts the Federal Court's analysis and applies it at the tribunal level for the present factual circumstances (para [7]). The decision contains no discussion of subsequent appellate treatment or conflicting authority, and the written reasons do not identify any later cases that have conversely broadened the scope of 'in trade or commerce' for private sellers.

Because the decision is short and fact-specific, it functions as an application of existing Federal Court authority in a tribunal context rather than as an independent development of the law. If practitioners need to know whether any later courts have altered Walker's principle, they must consult subsequent case law; the QCAT reasons do not provide that material.

Still-open questions

1. What precise factual indicia will suffice to transform an ostensibly private sale into a supply 'in trade or commerce'? The Tribunal applied Walker where the sale was plainly private. But there remains grey area where a seller may be an occasional trader, advertise repeatedly, or otherwise give the transaction a commercial character. The decision does not elaborate the boundary markers beyond adopting Walker's statement that sales occurring in the course of business or arising in a business context are 'in trade or commerce' (para [7]).

2. How should mixed factual scenarios be approached? For example, a private individual who regularly sells cars on online platforms may display some characteristics of trade without being a registered motor dealer. This decision does not analyse intermediate cases; it simply applies Walker to a straightforward private sale.

3. What evidentiary standard should tribunals apply when jurisdiction turns on the 'in trade or commerce' characterisation? The Tribunal here required the applicant to disclose who she bought the vehicle from and to file submissions (paras [2], [4]). The decision does not discuss whether the Tribunal would accept limited documentary proof or require broader discovery to test the seller's commerciality.

4. To what extent do legislative schemes differ in approach? The decision applies s 50A FTA and references s 14 MDACAA, concluding neither provided jurisdiction given the private-sale finding (para [8]). It does not, however, explore whether other statutory remedies or jurisdictional avenues could be pursued in different forums or under other legislative heads.

5. How will courts treat manufacturer liability claims where the supply to the immediate purchaser was private but the underlying chain of distribution involved businesses? The Tribunal here treated the acquisition as private and declined jurisdiction; the decision does not examine whether there might be alternative bases for a manufacturer's liability where the chain of supply includes business actors.

In practice, this decision reinforces the need for a plaintiff seeking ACL remedies in QCAT to plead and prove that the relevant supply occurred 'in trade or commerce'. If the sale is shown to be a private transaction with no business characteristics, QCAT will treat Walker v Sell as determinative and will decline jurisdiction for ACL guarantees under s 50A FTA, resulting in dismissal as occurred here (paras [6]–[9]). Practitioners should carefully investigate and plead the seller's status and the commercial context before launching ACL claims in tribunal forums.