Memorey v DAS Wholesale Pty Ltd [2025] QCAT 311

Blu Logistics SA Pty Ltd (No 4) Pty Ltd & Ors v Flogineering Pty Ltd (2023) 412 ALR 347

Flogineering Pty Ltd v Blu Logistics SA Pty Ltd (No 4) Pty Ltd [2021] FCA 1219

I and L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd (2002) 210 CLR 109

Merck Sharp & Dohme (Australia) Pty Ltd v Peterson [2011] FCAFC 128; [2011] 196 FCR 145

Wyzenbeek & Ors v Australasian Marine Imports Pty Ltd (in liq) & Ors [2019] FCAFC 167; (2019) 272 FCR 373

• [1] This is an application by Ms Chelsea Memorey (Ms Memorey) against a motor dealer, DAS Wholesale Pty Ltd trading as "Logan's Cheapest Cars" (DAS).
• [2] The dispute concerns a used Honda Civic motor vehicle (Honda) that Ms Memorey bought from DAS for $10,000 by a contract dated 7 March 2023. At that time, the Honda's odometer reading was 248,905km.[1]
• [3] The application initially sought relief only pursuant to the Motor Dealers and Chattel Auctioneers Act 2014 (Qld). At the outset of the hearing, leave was given, with ex tempore reasons, to Ms Memorey to amend her application to apply for relief pursuant to the Fair Trading Act 1989 (Qld) (FTA) and particularly, the guarantee that goods will be of acceptable quality.
• [4] Ms Memorey has previously been granted leave to be represented by her father, Mr Ronald Memorey (Mr Memorey), at the hearing of her application. Mr Desmond Sharkey (Mr Sharkey) represented DAS in his role as its director.

• [5] Ms Memorey gave evidence to the effect that there were problems with the Honda within a couple of weeks of its purchase. She could not remember what the problems were. Her mother had been driving the car, and her mother noticed them. The Honda was taken to DAS, but it was not fixed. She had difficulty recalling the details of what occurred at this time.
• [6] She essentially said that her sister, Ms Tamara Elstob (Ms Elstob), acted on her behalf in all respects in relation to the breakdown of the car, including dealings with mechanics and the Queensland Office of Fair Trading (OFT). Ms Elstob would tell her what was going on, and she would tell Ms Elstob what she wanted done. All of Ms Memorey's dealings with DAS about the problems with the Honda occurred via Ms Elstob.
• [7] OFT attempted to assist the parties to resolve their dispute over the Honda, but was unsuccessful. A bundle of emails between Ms Elstob, OFT and Mr Sharkey is in evidence (OFT emails).[2] Ms Memorey agreed that an email between OFT and Mr Sharkey dated 21 August 2023 at 1.47pm reflected her position that three options were acceptable to her. They were, in summary (1) that DAS buy the car back from Ms Memorey and she would be "released from finance"; (2) that DAS repair the car "to working standard" by a mechanic chosen by Ms Memorey; and (3) a car of equivalent value in working order would be swapped for the Honda. Ms Memorey said that Mr Sharkey took the car back for repairs after this email.
• [8] Ms Memorey said to the effect that she did not know that Mr Sharkey had then offered for the car be collected, although she did agree that some repairs had been carried out. She said that she did not know the reason why Mr Sharkey's offers to have the car collected had not been taken up, but that after the repairs by DAS all decisions on her part were made by Ms Elstob.
• [9] She gave evidence that she had obtained a loan to buy the Honda from an entity named Money3. She did not know how much she had borrowed and did not know what the loan balance was now. She saw the car advertised on Facebook and then spoke to Mr Sharkey. She initially said she did not remember what the Facebook material said. Several copies of Facebook advertising material were shown to her.[3] These did not include a photo of the Honda although there were photos of other cars. She said that Mr Sharkey sent her a photo of the car, but she did not remember what was said in negotiations. She later said that she remembered seeing wording on the advertising material to the effect that all of DAS' cars come with a 36 month warranty.
• [10] During cross examination by Mr Sharkey, she agreed that she had actually seen the Facebook material some time later and it was not the actual advertising that she had seen. She did not accept that DAS had fixed the problems with the Honda, or that Mr Sharkey had tried to contact her by email and phone to collect the car. She said she was not aware that the car was ready to be collected. She said she did not know that Mr Sharkey had tried to contact Mr Memorey about collecting the car either. She denied that Money3 had made her aware that the car was ready to be collected.
• [11] When asked the reason why she did not contact DAS about collecting the car, she said that she was waiting but did not know what for. She said that she had a learning disability. Her evidence was that she had no say in Money3 selling the Honda and found out after it had been sold when she received a letter from Money3. She said that her fortnightly loan repayments are $168. Since receiving the letter from Money3, she had made these fortnightly repayments without fail. The loan balance would be the balance figure as at the date of the letter less payments of $168 per fortnight over the period until the date of the hearing.

• [12] Ms Elstob said that she had been acting on Ms Memorey's behalf in dealing with Mr Sharkey, OFT and mechanics. Ms Memorey told her when she had bought the Honda and then there were issues about one week later. The bonnet could not be opened, the engine did not start properly, and there was a minor oil leak. The Honda was taken back to DAS for repairs about a week and a half after purchase. She had called Mr Sharkey on behalf of Ms Memorey at about this time. Her evidence was to the effect that only repairs to the ignition of the car had occurred on this occasion. Ms Memorey's parents then took the Honda back from DAS.
• [13] There were further problems with the Honda about two weeks later. The car was at a shopping centre and had leaked a lot of oil. She was not there, but had been told this by Mr Memorey. She was present when Mr Memorey phoned Mr Sharkey about this, with the phone on loudspeaker. She said that Mr Sharkey was aggressive in his language, and essentially refused to fix the car and hung up.
• [14] After this call, she started to gather evidence, including a report by an RACQ inspector dated 25 August 2023 (RACQ report).[4] She did not provide a copy of the RACQ report to DAS immediately. A second opinion was obtained from other mechanics at an entity named Ipswich City Mechanical, and it provided a safety inspection report dated 12 September 2023,[5] and an estimate of the cost of repairs.[6] These documents are discussed further below.
• [15] Ms Elstob was in contact with OFT during this time and she then contacted a solicitor in about September 2023 to help compile documents to file this application. It was filed on 15 November 2023. She said that Ms Memorey had authorised her to deal with OFT on her behalf and the OFT emails reflected Ms Memorey's position, including the three options in the email dated 21 August 2023 discussed above.
• [16] Ms Elstob agreed that Mr Sharkey took the Honda back after the email dated 21 August 2023. She said that, after that, she was unaware of any communication from Mr Sharkey again. However, Ms Elstob later said that she had been present when Mr Memorey travelled to DAS' yard on a Saturday afternoon in an unsuccessful attempt to collect the Honda as a result of a phone call from Mr Memorey's son, Darren Memorey, to Mr Sharkey. This is discussed further below, however, she said that she could not go back to collect the car another day because she was a busy person with a range of commitments. Darren Memorey was not called to give evidence.
• [17] She essentially said that the reason why the Honda was never picked up again was because nothing about this was received by the Memoreys in writing from DAS. After the difficult phone call with Mr Sharkey, she decided that all communications with him had to be in writing. She said that OFT and the solicitor had advised her to take that position. She said that this even included practical arrangements about the collection of the Honda. When asked if she could point to a document that contained that advice, she said that the advice was oral. Nobody from OFT, or the solicitor, were called to give evidence.
• [18] Her evidence was that if written arrangements to collect the Honda had been made, then she would have collected it with a mechanic to make sure "everything" had been fixed. When asked what she meant by fixing everything, she said that this meant every single item referred to in the estimate by Ipswich City Mechanical. She said to the effect that if even one item had not been fixed, she would have refused to take the Honda back from DAS.
• [19] She said there had been further negotiations via OFT and an offer by DAS to pay $1,000 had been rejected. Under cross examination, it was put to her by Mr Sharkey that OFT was not required to be involved in the arrangements about collecting the Honda and that OFT had sent an email stating to the effect that its file was closed by the time it needed collecting.

• [20] Mr Memorey was not present when the Honda was bought and only travelled in the car as a passenger. He was present when the car first broke down due to ignition problems. He said this was about three to four days post-sale and it had been fixed for a cost of about $300 by an ignition specialist. He was also present when the Honda broke down at the shopping centre about a week and half later. There was a big oil patch under the car. It was towed to his home and then the RACQ inspector and Ipswich City Mechanical looked at it.
• [21] He said he had only had one conversation with Mr Sharkey about three to four days after the car was bought. He said that Mr Sharkey was very rude and abrupt, and hung up on him. However, he agreed that DAS had collected the Honda about four weeks after that call. He said that he had had no more involvement after that, except for going to the solicitor.
• [22] Mr Memorey's evidence was that after their unsuccessful phone call, Mr Sharkey did not try to contact him. His evidence was to the effect that car yards as a matter of practice will phone a customer when a car is ready to be picked up and if the customer does not answer, the car yard sends a letter. He said that he had dealt with lots of car yards, having bought about 20 cars in lifetime, and he was now aged 61 years.
• [23] He said that he never received a phone call from Mr Sharkey, and he never received a letter either. His evidence was that the next he heard about the Honda was when a letter was received from Money3 stating that Mr Sharkey had told Money3 to pick the car up, and they had, and they had sold it for $1,060.66. He thought that Money3's letter had been received about 12 months after DAS had taken the car back. His evidence was that Mr Sharkey had contacted Money3 about repossessing the car just before Ms Memorey's application was first listed in this Tribunal.
• [24] The letter from Money3 was produced and is in evidence. It is dated 26 March 2025 and expressly gave notice that the Honda had been sold, setting out the net proceeds of sale after deduction of itemised expenses from the gross proceeds. The balance outstanding under the credit contract is said to be $5,865.58. There was a statement to the effect that further recovery action might be taken, including legal action and the recording of a default with a credit reporting agency and consequences of that.[7]
• [25] During cross examination, Mr Memorey agreed that Mr Sharkey was on holidays in the USA when he had called him about the Honda. This was in about July 2023. Mr Sharkey put to Mr Memorey that it was Mr Memorey who was angry and that Mr Sharkey became angry in response. Mr Sharkey put to Mr Memorey that he made numerous calls to Mr Memorey about collecting the Honda following repairs, but Mr Memorey said there were none. Mr Memorey denied that Mr Sharkey had ever sent an email about collecting the car either.
• [26] Later, Mr Memorey said that there had in fact been a phone call between Darren Memorey and Mr Sharkey on a Saturday afternoon after DAS had carried out the repairs. Darren Memorey had phoned Mr Sharkey. He heard what his son said, and the effect of their conversation was that Mr Sharkey had said that they had to collect the car by the time DAS closed that day, the key to the car was to be left on a tyre, and that if nobody came, the car could be stolen. Mr Memorey said this left them about one hour to collect the Honda, and that he travelled from the Ipswich area to DAS' yard in Logan, but DAS was closed by the time they arrived, and the Honda was locked behind a fence.
• [27] Despite this however, he accepted that he could have returned on another day to collect the car if he wanted to. He continued to deny that he had been informed that he could collect the car. When asked why he did not collect the car on his own initiative, he said that he had spent enough on tow trucks. He denied that his son's call to Mr Sharkey was prompted by a call that Money3 had made to Ms Memorey. He said his son "just phoned to see what was going on".

• [28] Mr Sharkey tendered his response dated 2 May 2025 as a form of written statement.[8] Briefly, it said to the effect that the warranty on the car had expired by the time problems arose. Although his advertising states that cars come with a 36-month warranty, this is discussed at the selling phase. However, he agreed to bring the car back due to the oil leak and ignition issues and these were rectified. The car was then returned. After the RACQ inspection, the car was brought back for a second opinion from his mechanic and deemed roadworthy. Regardless, the mechanic attended to issues raised in the RACQ report.
• [29] He then attempted on numerous occasions to contact Ms Memorey by phone to no avail. He contacted the finance broker and requested that he contact the Memorey family on his behalf, also to no avail. He then emailed Ms Memorey saying the car was ready to be picked up and received no response. These events are discussed in more detail below. The Honda then remained in his yard for about 10 months until the finance company contacted him and asked if he still had the vehicle and if so, then they needed to come and collect it.
• [30] He supplemented this with oral evidence, recounting how he took the car back after the first problem arose in the form of a minor oil leak. He had this repaired at cost of about $300. Then in about mid-April 2023, there was a problem with a big oil puddle under the car. He said this involved the failure of a power steering hose. He said he took the car back again and had it repaired by an entity known as Australian CV's and Power Steering. He said the next issue was a problem with the ignition in about July 2023. He was in the USA, and he agreed that he told Mr Memorey by phone that he would not fix this as the car was outside its warranty.
• [31] He then said he was contacted by OFT in about September 2023. There was some back and forth in emails. In response, he agreed to fix the car but with his choice of mechanic because he could obtain the work and parts needed at trade rates and not retail rates. He took the Honda back in about October 2023.
• [32] Mr Sharkey arranged for repairs to be carried out by JTP Mechanical of Greenbank. He tendered an invoice of JTP Mechanical dated 22 November 2023, which he said was for the repairs.[9] By this stage, he had a copy of RACQ's report. He said he went through the RACQ report with Mr Joel Parker of JTP Mechanical and they agreed on the things in the RACQ report that were safety concerns and that these would be repaired. He said JTP Mechanical did that work.
• [33] He said he later had further repairs conducted although he and JTP Mechanical did not consider that the need arose as a safety issue. These were repairs to the suspension system, struts, and shock absorbers. A second invoice from JTP Mechanical dated 24 November 2023 for that work was tendered.[10] He then had the car cleaned by a person at his yard, and tried to call Ms Memorey and Mr Memorey on their mobile phone numbers about collecting the car on several occasions each. This was about one week after the work to the suspension.
• [34] His evidence was that he could not remember if he left messages but that he used his same mobile phone number each time. He recalled that this was over a week in about December 2023. Eventually, he also asked his daughter, who works for him, to send an email to Ms Memorey's email address about collecting the Honda. The email is in evidence.[11] It is dated 8 February 2024 and records being sent to an email address that is apparently Ms Memorey's address. It says:

"Hi Chelsea, The Honda Civic is ready for collection, We have tried to contact you several times and left messages for over 6 weeks.

• [35] Mr Sharkey confirmed in evidence that no email had been received in response, including no automatic email to warn him that his email could not be delivered to Ms Memorey's email address.
• [36] In about March 2024, he said he contacted Mr Chris Britain, a broker with Southeast Finance who had arranged the loan through Money3. Between about March 2024 to October 2024, he spoke to Mr Britain twice. He said he contacted Mr Britain because he did not know what to do. On the first occasion he spoke to Mr Britain, he was told that Money3 had tried to contact Ms Memorey too, with no response from her. On the second occasion, Mr Britain told him that Money3 had received a response. Mr Britain was not called to give evidence.
• [37] After this second call, Mr Sharkey said he received a call from a member of the Memorey family, perhaps Ms Memorey's brother. The effect of their conversation was that he said they could pick up the Honda on a Saturday afternoon in October 2024, but nobody picked it up. He was next contacted in about January 2025 by Money3 and asked if he still had the car, and he said he did. Soon after, Money3 organised for the car to be collected. All he said to Money3 was that he still had the car and he did not know what to do. He was not present when Money3 collected the car. That was the end of his dealings with the Honda. Nobody from Money3 was called to give evidence.
• [38] In cross examination, he was challenged on his evidence that he had called Mr Memorey's mobile phone. It was put to him that Mr Memorey had no such phone. He said he used a mobile phone number that he believed was Mr Memorey's number according to paperwork he had. He did not accept that when he spoke to Darren Memorey, he had said he would leave the car out with the key on the tyre and it could be stolen if it were not collected, but he said that if he did say that it was because he was angry. He accepted that his communications with the Memoreys were not constructive. He said he did not imply that he would steal the car, but it was in Logan, and it might be stolen.
• [39] It was put to Mr Sharkey that he had contacted Money3 so that the car would be repossessed and this would mean he escaped the consequences of this proceeding. He denied this. He said that he told Mr Britain to contact Money3 to try to get Ms Memorey to collect the car. He said his first contact with Mr Britain was before this proceeding started and his second contact with Mr Britain was after. He denied the repossession of the car made any difference. He agreed that he was aware of QCAT processes but took time to respond to the application and had not attended a first attempt at mediation unintentionally. He agreed that his demand for the car to be collected in October 2023 effectively left one hour to do so, but it was not a "once only" offer to collect it. If he had been contacted about collecting the Honda after this, he would have permitted it to occur.

• [40] The RACQ report is dated 25 August 2023 and was prepared by an inspector of RACQ who was not called to give evidence. It contains many photos of the Honda that support conclusions reached in it. The results of the inspection were to the effect that the Honda failed to meet required standards in respect of the interior and exterior lights, battery, hand brake, front and rear suspension, shock absorbers, steering components, gearbox and differential, oil levels, conditions, and seals.
• [41] More particularly, headlight lenses were found to be deteriorated and discoloured, and lights were found to be inoperative. The battery required replacement, and the hand brake mechanism was insecure. The suspension system had worn bushes and bent and distorted mountings. There were issues with the shock absorbers in the form of broken or missing bump stops and torn dust boots.
• [42] The steering rack had free play, and the gearbox / transmission housing was defective with widespread issues among drive train components, and the left-side gearbox mounting was broken. There were oil leaks, with oil leaking onto the exhaust and into the engine and other areas. There was widespread oil over the engine.
• [43] Engine mountings had deteriorated and were split, and the air filter was dirty and required replacement. Both rear brake pads had very limited service life remaining and coolant levels were low. A diagnostic scan failed because there was no communication with the vehicle.
• [44] The inspector could not conduct a road test because there was too much engine oil leaking, including onto the exhaust and the floor. The vehicle was unroadworthy in the inspector's opinion.
• [45] Importantly however, it was said that, due to age and kilometres, most components were showing signs of deterioration and general wear and tear. The suspension bushes were said to be typical for a car of that age.
• [46] At the time of RACQ's inspection, the odometer reading was 256,498 km. The cost to Ms Memorey of obtaining the RACQ report was $260.[12]

• [47] The safety inspection report prepared by Ipswich City Mechanical is dated 12 September 2023. Its author was not called to give evidence. The report says that it carried out a number of tests, including tests on the brakes, tyres, suspension, various oil and fluid levels, the cooling system, and battery, amongst other things. At this time, the odometer reading was 256,505 km.
• [48] The findings of the tests were to the effect that new rotors and brake pads were required, the air filter needed replacement, and repairs to the cooling fan were needed. Fluid levels for the power steering system were very low, and the power steering hose needed replacement.
• [49] The left-hand steering rack was subject to minor movement, and repairs were recommended. The front struts had seized, and the strut boots were torn. The car required new front struts, strut boots, and strut mounts. Bushes were split and torn, and it was recommended that they be renewed. There were large oil leaks coming from the engine and an engine mount was missing a bolt for the oil sump. Various lights on the car were not working. Windscreen wipers required replacement of the wiper head.
• [50] The rear window tint was bubbling and required removal, and the handbrake required a new mechanism. A sun visor was missing, and a new right-hand front window master switch was required. The bonnet release handle required a new cable and handle.
• [51] Ipswich City Mechanical charged Ms Memorey the sum of $154 to prepare its report.[13] As discussed above, it also provided an estimate of the cost of rectifying the issues identified in its report. The total of the estimate was $8,243.92.

• [52] The chain of emails between OFT, Ms Elstob and Mr Sharkey span a period from July to October 2023. They show the initiation of a complaint to OFT in late July 2023 on Ms Memorey's behalf about the problems with the Honda. Emails between OFT and Mr Sharkey were then exchanged.
• [53] These included OFT communicating the three options that Ms Memorey put forward on 21 August 2023 as alternatives for the resolution of her complaint discussed above. Mr Sharkey responded on the same day stating that he was open to helping but needed more information. The RACQ report was then provided to Mr Sharkey on 14 September 2023.
• [54] Mr Sharkey offered to pay $1,000 on 26 September 2023 but this was rejected. Later that day, he offered to have the car looked at by a mechanic of his choice and Ms Memorey agreed. On 2 October 2023, Mr Sharkey arranged for the Honda to be collected by a tow truck. On 20 October 2023, OFT said it was unable to assist further, and records Ms Elstob as having informed OFT that she was going to commence this proceeding.

• [55] Mr Joel Parker was not called to give evidence, however, the invoice from JTP Mechanical dated 22 November 2023 records work being carried out to secure the handbrake and fit new bushes and other parts relating to the suspension. The left hand engine mounts and various light bulbs were replaced. New bonnet parts, lower engine mount, and other parts were fitted. The solenoid was resealed. The charge for labour and minor consumables was $2,550.
• [56] JTP's Mechanical's invoice dated 24 November 2023 is for the supply and fitting of rear shock absorbers and front struts at a cost of $990 for labour and consumables.

• [57] This application seeks relief within the jurisdiction of this tribunal pursuant to the FTA. At issue is whether:[14]

(a) the sale of the Honda with the problems identified in the evidence discussed above amounted to a failure to comply with the guarantee as to acceptable quality of goods contained in section 54 of the Australian Consumer Law (Queensland) (ACL); and

(b) if so, whether pursuant to section 259(4) of the ACL, Ms Memorey may recover damages from DAS for loss and damage suffered by her because of the failure to comply with the guarantee if it was reasonably foreseeable that she would suffer such loss or damage as a result of the failure.

• [58] Goods will be of "acceptable quality" for the purposes of the statutory guarantee if they are as:[15]

(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 certain matters.

• [59] The ACL sets out those matters as follows:[16]

(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.

• [60] The issue of whether or not goods are of acceptable quality is determined objectively at the time that the goods are supplied.[17]
• [61] If the goods are not of acceptable quality, section 259(4) of the ACL provides that the consumer may, by action against the supplier, recover damages for any loss or damage suffered by the consumer because of the failure to comply with the guarantee if it was reasonably foreseeable that the consumer would suffer such loss or damage as a result of such a failure.
• [62] In Flogineering Pty Ltd v Blu Logistics SA Pty Ltd (No 4) Pty Ltd,[18] (Flogineering No 4) an issue was whether the applicant had suffered loss and damage "because of" a contravention of the ACL (by misleading and deceptive conduct). In reviewing the cases on causation in this context, the Court stressed that it is important to remember that the question of causation is a statutory question, that is, has the consumer suffered loss or damage because of the conduct that contravened the ACL?[19] The Court referred[20] to cases including I and L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd where it was said that:[21]

"As was recognised in Henville v Walker there may be cases where it will be possible to say that some of the damage suffered by a person following contravention of the Act was not caused by the contravention. But because the relevant question is whether the contravention was a cause of (in the sense of materially contributed to) the loss, cases in which it will be necessary and appropriate to divide up the loss that has been suffered and attribute parts of the loss to particular causative events are likely to be rare. Further, it is only in a case where it is found that the alleged contravention did not materially contribute to some part of the loss claimed that it will be useful to speak of what caused that separate part of the loss as being "independent" of the contravention." ... (citations omitted).

• [63] The above passage was cited by the Full Court of the Federal Court of Australia in Wyzenbeek & Ors v Australasian Marine Imports Pty Ltd (in liq) & Ors[22] and again in Blu Logistics SA Pty Ltd (No 4) Pty Ltd & Ors v Flogineering Pty Ltd, where an appeal of the decision of Flogineering No 4 was dismissed.[23]
• [64] Although these cases involved the application of different provisions and contravening conduct, I apply them on the question of causation here.

• [65] Mr Sharkey submitted that he agreed to repair the car some eight months after it was sold, including things that he did not believe he had to repair. He said he had spent about $3,000 for the repairs plus the cost of parts that he had sourced separately. He said he did not believe that he had acted in contravention of the law. He said that before his dealings with Ms Memorey, he had never been in the position where a customer would not collect their car.
• [66] On behalf of Ms Memorey, it was submitted that, while there was evidence of mechanical work being arranged by DAS, it should not be accepted that its mechanics actually did the work. It was accepted that Ms Memorey could have taken the car back and had checks performed to ensure the work was done, but it was said that Ms Memorey wanted the arrangements to collect the car to be made in writing. When the existence of the email in February 2024 was raised, it was accepted that it was received but it was submitted that one email was "not good enough".

• [67] Here, there is no difficulty in concluding that the statutory prerequisites for the application of section 54 of the ACL are satisfied. Ms Memorey was a consumer to whom DAS supplied goods in the form a vehicle. The supply happened by way of a non-auction sale in Australia. The amount paid or payable pursuant to the contract between Ms Memorey and DAS was $10,000.[24]
• [68] The Honda had a build date of June 2008, and it was sold as a used vehicle in March 2023. Accordingly, it was almost 15 years old when it was sold to Ms Memorey. At the time of sale, its odometer read 248,905km. Ms Memorey paid $10,000 to buy it.
• [69] I accept that the Honda had the defects described in the RACQ report. As the RACQ report has the quality of independence, I prefer the evidence contained in it over other evidence about the defects in the Honda. In the five and a half months between the day of sale on 7 March 2023 and RACQ's inspection on 25 August 2023, the Honda was driven 7,593km.
• [70] From this evidence, it is open to infer that the Honda had the defects described in the RACQ report at the time it was sold. The defects described in the report are mainly in the nature of deteriorated, worn, broken, inoperative, or missing parts.
• [71] While it is true that the RACQ report acknowledges that, due to the age and kilometres of the car, most components were showing signs of deterioration, and some general wear and tear was typical for a vehicle of that age, the problem is that the components were deteriorated to the point where the car was unroadworthy, especially due to the widespread oil leaks in the engine. I do not accept that this was solely caused by a broken power steering hose or that the parts deteriorated, or became so worn, broken, inoperative, or missing that the car went from a roadworthy state in March 2023 to an unroadworthy state in August 2023 despite being driven 7,593km over that time.
• [72] However, I do not consider that this applies to the brakes. The RACQ report says that the rear brake pads had very limited service life remaining. In my view, this does not mean that they were unroadworthy at the time of RACQ's inspection, and so could not have been unroadworthy when the Honda was sold about five and half months earlier before being driven 7,593km.
• [73] The defects described in the RACQ report concern critical systems of the Honda, namely the ignition, lighting, hand braking, suspension, steering, drive train and lubrication systems, which affect its ability to be driven safely on Queensland roads. The inspector that prepared the RACQ report expressly stated that they would not drive the Honda on the road.
• [74] In the circumstances, I find that the existence of those defects means that DAS failed to comply with the guarantee of acceptable quality when it supplied the Honda to Ms Memorey, because it was not safe or free from defects.
• [75] The Honda was taken back by DAS voluntarily, first in about April 2023 and then again in about October 2023. It remained with DAS until it was repossessed by Money3 in about March 2025. I note that this is not a case where Ms Memorey rejected the Honda. Instead, she gave DAS options as to what was to occur. Among these was for DAS to repair the car in the alternative to buying it back, and the parties proceeded on the footing that DAS would repair the car. Accordingly, sections 259(2) and 259(3) of the ACL are inapplicable here.
• [76] DAS took steps to repair the Honda using JTP Mechanical, being repairs to the handbrake, engine mounts, suspension, ignition, and lighting systems. The total cost to DAS to have these repairs carried out is uncertain as there is no evidence of the cost of the parts involved, but the cost of labour and minor consumables was $3,540. These repairs addressed problems identified in the RACQ report. Mr Sharkey's evidence was that these concerned the safety issues raised. This evidence was not challenged, and I accept it.
• [77] The Honda has been sold by Money3. No further cost will be incurred by Ms Memorey to perform repairs to the Honda, but she has a balance owing on her loan from Money3. Her application sought relief in the form of an order requiring DAS to pay her a total amount of $20,301. This amount was made up of several items, but the major component was $17,585.12 said to be the loan amount. Of the other items claimed, the only evidence placed before me about these was the cost of the inspections by RACQ and Ipswich City Mechanical.
• [78] As discussed above, the damages recoverable must be suffered because of DAS' failure to comply with the guarantee if it was reasonably foreseeable that Ms Memorey would suffer such loss or damage as a result of the failure.
• [79] Here, I do not find that Ms Memorey having a loan balance to Money3 has been suffered because of DAS' failure to comply with the guarantee. In my view, this is a case where it is possible to say that some of the loss and damage suffered by Ms Memorey following DAS' failure to comply with the guarantee was not caused by that failure.
• [80] While it is true that DAS' failure to comply with the guarantee was the reason that the Honda needed to be repaired in the first place, that is insufficient to ground a finding that DAS' failure materially contributed to the repossession and sale of the Honda by Money3 here. I find that the action taken by Money3 to repossess and sell the Honda happened because of the chronic inaction on the part of Ms Memorey to collect the Honda over some 16 months. By the time of the repossession, the failure to comply with the guarantee had been remedied by the repairs to the Honda that DAS arranged to be carried out by JTP Mechanical at DAS' cost.
• [81] It is true that there was some initial reluctance to try to repair the car on Mr Sharkey's part. He did not deny this, but explained that Mr Memorey was abusive when he spoke to him over the phone while he was holidaying in the USA. I accept this. Mr Memorey's hostility towards Mr Sharkey was observable during the course of the hearing.
• [82] After being contacted by OFT, Mr Sharkey offered $1,000 to Ms Memorey and then took the Honda back when that offer was rejected. With a mechanic from JTP Mechanical, he identified the defects described in the RACQ report that went to the vehicle's safety. He then arranged for JTP Mechanical to repair those defects. His evidence was that his repair of the suspension problems was not strictly safety-related, but he arranged for that work to be done too. This occurred after DAS received an email from OFT dated 21 August 2023 containing options including for the car to be repaired "to working standard."
• [83] Following the repairs, Mr Sharkey attempted to contact the Memoreys several times in an effort to have the car collected. I accept his evidence that he attempted to contact them by phone. Mr Memorey cavilled with Mr Sharkey in cross examination about owning a phone, but he did give evidence earlier that he phoned Mr Sharkey when he was in the USA. At the very least, it seems that Mr Memorey had access to a phone, and I accept that Mr Sharkey tried to call him on a phone. In any event, the evidence supports that Mr Sharkey tried to call Ms Memorey and that he sent an email to her on 8 February 2024.
• [84] The evidence on behalf of Ms Memorey and her witnesses initially omitted that Darren Memorey called Mr Sharkey in late 2024. Their evidence about the time of this was imprecise, but Mr Sharkey's evidence suggested it was on a Saturday afternoon in about October 2024. Later in the hearing, Mr Memorey said that he was present when Darren Memorey called Mr Sharkey, and Ms Elstob said that she attended at DAS' yard on that Saturday afternoon. While the parties accepted that Mr Sharkey effectively left the Memoreys one hour to collect the car on that day, Mr Sharkey did not initiate the call. The timing of the call was selected by Darren Memorey. It was not unreasonable to expect the Memoreys to drive from where they live in the Ipswich area to DAS' yard in the Logan area in one hour anyway.
• [85] The evidence of the Memoreys was that they never heard from Money3, but Mr Sharkey's evidence was that Money3 informed him that Money3 had contacted the Memoreys and told them to collect the car, and shortly after this he received the call from Darren Memorey. I infer that Darren Memorey's call to Mr Sharkey was prompted by the request made by Money3 to the Memoreys to collect the car. I do not accept that Darren Memorey called DAS just to see what was going on, having observed the parties' giving evidence, and given the way the evidence unfolded as discussed above. The complete absence of any other evidence that Darren Memorey was involved in dealing with DAS about the car also does not support the making of an unprompted, casual call to see what was going on with the car out of curiosity.
• [86] The above evidence is also contrary to Mr Memorey's evidence that Mr Sharkey prevailed upon Money3 to repossess the car. Mr Memorey said that the letter from Money3 said this, but it does not do so.
• [87] I accept Mr Sharkey's evidence that he contacted Mr Britain and asked him to contact Money3 about what to do with the Honda when he never received a response from the Memoreys after numerous attempts to contact them. I do not accept that Mr Sharkey tried to have the car repossessed to thwart this proceeding. Ms Memorey commenced this proceeding on 15 November 2023 and the call with Darren Memorey occurred in about October 2024. The letter from Money3 stating that the Honda had been sold is dated 26 March 2025. Accordingly, this proceeding had been on foot for some 16 months before the car was repossessed by Money3. It is also inconsistent with the undisputed evidence that Mr Sharkey did take the Honda back and repair it at his own cost. That conduct speaks of a motor dealer trying to abide by the statutory warranty.
• [88] Further, the evidence did not establish any reason why arrangements could not have been made to collect the car in the days after the attempt in October 2024, or before that time for that matter. The car was with DAS for some 16 months from the time that JTP performed its repairs in November 2023 to the time it seems that Money3 repossessed it in about March 2025.
• [89] The evidence and submissions on behalf of Ms Memorey about why the car was not collected was unsatisfactory. When asked why the Honda was not simply collected on a day after the attempt in October 2024, the effect of the submission on behalf of Ms Memorey was that Ms Elstob was too busy, despite that the event was prompted by a finance company, Money3, telling the Memoreys to collect the car.
• [90] Ms Elstob said that she was orally advised by a lawyer and OFT to only arrange for the collection of the Honda in writing. No details about this were developed by the evidence but assuming the advice was given, Mr Sharkey did initiate written arrangements for the car to be collected by the email dated 8 February 2024. When it was pointed out that Mr Sharkey had attempted to arrange collection in writing by the email, it was said on behalf of Ms Memorey that it "was not good enough." That was an unreasonable position to take in the circumstances.
• [91] Mr Memorey's evidence was to the effect that DAS failed to follow what Mr Memorey seemed to consider an industry practice, in that a motor dealer must send a letter to a customer stating that a car is ready for collection. I do not accept this. To the extent a written request was required, DAS provided this by the email dated 28 February 2024. Another reason given by Mr Memorey for the non-collection of the car was that he had spent enough on tow trucks. However, no explanation was given as to why a tow truck was needed to collect the Honda after the repairs by JTP Mechanical. Mr Sharkey told Darren Memorey (during the call that Mr Memorey said he was listening to, at least on Darren Memorey's part) that the key would be left on the Honda's tyre, and so it ought to have been reasonably obvious that it could be driven away.
• [92] The effect of the evidence and submissions on behalf of Ms Memorey were that DAS' efforts to repair the Honda would never be acceptable to the Memoreys unless and until each and every item in the Ipswich City Mechanical estimate was carried out. As discussed above, the RACQ report specifically said that some deterioration was to be expected or typical for a car like the Honda. The repairs quoted upon by Ipswich City Mechanical went further than the defects that DAS could reasonably be expected to attend to. For example, it required replacement or repairs to things like the windscreen wipers, driver's sun visor, window switch, brake pads and rotors, drive belt, two new tyres, wheel alignment plus the cost of disposing of the old tyres. The total cost of the repairs recommended by Ipswich City Mechanical was $8,243.92. This would have amounted to about 82% of the $10,000 sale price of the car.
• [93] The Memorey's deep level of suspicion and hostility towards Mr Sharkey were never rationally explained at the hearing of this matter. While it is true that DAS sold Ms Memorey a car that failed to comply with the guarantee of acceptable quality, it is equally true that DAS went to reasonable lengths to repair the defects.
• [94] While any loss and damage flowing from the repossession and sale of the Honda has not been suffered because of DAS' failure to comply with the guarantee, I do find that the cost that Ms Memorey incurred in having RACQ and Ipswich City Mechanical perform inspections on the Honda were. The total cost of those inspections was $414. Mr Sharkey did not oppose DAS paying these costs at the hearing, and I will order that DAS do so.
• [95] As to the claim under the Motor Dealers and Chattel Auctioneers Act 2014 (Qld), its statutory warranty did not apply. The Honda was a class B warranted vehicle as its odometer reading on the day of its sale was 248,905km. Ms Memorey took possession of the car on 7 March 2023. The warranty period ended one month from that date, being Tuesday, 4 April 2023. On the evidence, the earliest time that Ms Memorey gave written notice of the defects was when OFT sent DAS an email on 4 August 2023. The RACQ report was not provided to DAS until 14 September 2023. Hence, DAS was not given a defect notice before the end of the warranty period. Even if that were not so, the evidence would not establish that DAS failed to repair the defects in the car so that the defective parts cannot be reasonably relied on to perform their intended functions. The evidence of the repairs performed by JTP Mechanical balanced against the RACQ report supports a contrary finding.[25] I dismiss the application to the extent it seeks relief under that Act.

• [96] It is appropriate to order that DAS pay Ms Memorey the sum of $414 under section 259(4) of the ACL, and to otherwise dismiss the application to the extent it seeks relief under the Motor Dealers and Chattel Auctioneers Act 2014 (Qld).

• [97] I make the following orders:
  1. The application to the extent of the claim made pursuant to the Fair Trading Act 1989 (Qld) is allowed.
  2. The respondent must pay to the applicant the sum of $414.00 within 14 days.
  3. The application is otherwise dismissed.

[14] Fair Trading Act 1989 (Qld) ss 50, 50A; Australian Consumer Law (Queensland) ss 54, 259(4) (ACL).

[15] ACL s 54(2).

[16] ACL ss 54(3).

[17] Merck Sharp & Dohme (Australia) Pty Ltd v Peterson [2011] FCAFC 128; [2011] 196 FCR 145 at [180] per The Court.

[18] Flogineering Pty Ltd v Blu Logistics SA Pty Ltd (No 4) Pty Ltd [2021] FCA 1219 (Flogineering No 4).

[19] Flogineering No 4 [2021] FCA 1219 at [48].

[20] Flogineering No 4 [2021] FCA 1219 at [58].

[21] I and L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd (2002) 210 CLR 109 at [62] per Gaudron, Gummow & Hayne JJ.

[22] Wyzenbeek & Ors v Australasian Marine Imports Pty Ltd (in liq) & Ors [2019] FCAFC 167; (2019) 272 FCR 373 at [74-76] per The Court.

[23] Blu Logistics SA Pty Ltd (No 4) Pty Ltd & Ors v Flogineering Pty Ltd (2023) 412 ALR 347 per The Court.

[24] ACL ss 2, 3(1)(a)(i), 54(1).

[25] Motor Dealers and Chattel Auctioneers Act 2014 (Qld), schedule 1, sections 2(b), 3B, 4(2), 9, 12, 13; For the reasons discussed above, the issue identified in the RACQ report concerning the rear brake pads would not be a defect covered by the warranty because they had not deteriorated to an extent where they could not reasonably be relied on to perform their intended function at the time of sale.