Mitchell v Norris Enterprises Pty Ltd [2025] QCAT 310

Motor Dealers and Chattel Auctioneers Act 2014 (Qld), s 12

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 9, s 10, s 100, s 102

Australian Competition and Consumer Commission v Jayco Corporation Pty Ltd (2020) FCA 1672

Baas v JB Hi Fi Group Pty Ltd [2021] NSWCATAP 10

Campbell v Caravan & RV Central Pty Ltd t/as Avan New South Wales & FCA Australia Pty Ltd [2016] NSWCATCD 90

Cary Boyd v Agrison Pty Ltd [2014] VMC 23

Holt-Lea v O'Connor & Anor [2022] QCAT 363

Morphy v Beaufort Townsville Pty Ltd [2018] VCAT 1520

Nuth v Soel Products Australia Pty Ltd trading as Caravan RV CQ [2020] QCAT 369

Peter Bennett Cars v Lyree-Jho Vodanovich [2020] QCATA 88

Sazdanoff-Haynes v MLS Wholesales Pty Ltd [2023] QCAT 37

P Casey (Dealer Principal) and K Foura (Fixed Operation Manager)

• [1] On 15 September 2022 the applicant, Mr Stephen John Mitchell ('Mr Mitchell') purchased a 2022 LDV T60 Max Ute from the respondent Norris Enterprises Pty Ltd, trading as Brendale LDV ('Norris Enterprises') for $43,844. Mr Mitchell asserts that the motor vehicle was not of acceptable quality as required under section 54 of the Australian Consumer Law (ACL) and seeks to reject and return the motor and obtain a full refund for the purchase price.
• [2] On 8 May 2023 Mr Mitchell filed an Application - Motor Vehicle Dispute with the tribunal, seeking a refund of the purchase price of the vehicle plus damages of $3,028 from Norris Enterprises Pty Ltd. Mr Mitchell took out a consumer loan to fund the purchase of the motor vehicle. The damages sought relate to a $990 introducer origination fee, $1,038 fees and charges on the loan and $1,000 termination fee under the loan as well as the total interest paid on the loan to the date. The claim was made under the Fair Trading Act 1989 (Qld) ('Fair Trading Act').
• [3] The matter was heard on 21 February 2025. Mr Mitchell was self-represented, and Norris Enterprises was represented by Mr Casey, the dealer principal of the respondent company and Mr Foura the Fixed Operation Manager.

The Jurisdiction of the Tribunal in Motor Vehicle Disputes

• [4] The tribunal is empowered to hear and determine disputes in accordance with the Queensland Civil and Administrative Tribunal Act 2009 (Qld) ('QCAT Act') and the "enabling Act".[1]
• [5] Mr Mitchell seeks relief under the Australian Consumer Law, which is schedule 2 to the Competition and Consumer Act 2010 (Cth) ('ACL'). The relief sought by the applicant is a refund and damages for additional incidental costs.
• [6] Section 50A of the Fair Trading Act 1989 (Qld) ('Fair Trading Act') provides that the tribunal has jurisdiction in relation to motor vehicle matters where an application is brought under a relevant provision of the ACL against a supplier or manufacturer for failure to comply with statutory guarantees, and no more than $100,000 is sought. The tribunal may make orders, including orders requiring a party to pay a stated amount to another person.
• [7] 'Motor vehicle' is defined in s 12(1) of the Motor Dealers and Chattel Auctioneers Act 2014 (Qld) to mean 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. Mr Mitchell's LDV T60 Max Ute clearly falls within this definition.
• [8] Pursuant to s 3(1)(b) of the ACL, a person is taken to have acquired goods as a consumer if 'the goods were of a kind ordinarily acquired for personal, domestic or household use or consumption'. This includes Mr Mitchell's motor vehicle.
• [9] The total refund and damages Mr Mitchell is seeking is well under the $100,000 maximum. Accordingly, the tribunal has jurisdiction to hear Mr Mitchell's motor vehicle dispute and to determine whether Mr Mitchell can obtain relief sought in the Application - Motor Vehicle Dispute filed in the tribunal under the Fair Trading Act.

• [10] Section 54(1) of the ACL provides that, where a person supplies goods in trade or commerce, the goods are guaranteed to be of 'acceptable quality'. Goods are defined as being of "acceptable quality" if they are:

(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.

• [11] The test of acceptable quality requires a test in terms of what the 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 following matters:

(a) the nature of the goods;

(b) the price of the goods;

(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.[2]

• [12] The Macquarie Dictionary defines the word 'defect' to mean 'a fault' or 'imperfection'. The Macquarie Dictionary defines 'durable' as 'having the quality of lasting or enduring of or relating to goods which will be good for some time, as opposed to those intended to be used or consumed immediately'.
• [13] Whether goods are of acceptable quality is not an absolute but rather is a flexible standard depending upon the application of provisions in s 54(2) and (3). This approach has been discussed in Australian Competition and Consumer Commission v Jayco Corporation Pty Ltd ('Jayco') by Wheelahan J:[3]

The standard of acceptable quality prescribed by s 54(2) is not absolute, or a standard of perfection. It is tempered by what a reasonable consumer would regard as acceptable having regard to the several matters in s 54(3). These matters render the standard of acceptable quality elastic, and context specific.. The significance of the components of the guarantee of acceptable quality will therefore vary with the circumstances of each case.[4]

• [14] In Morphy v Beaufort Townsville Pty Ltd,[5] the Victorian Civil and Administrative Tribunal stated:

[T]he context of the section clearly requires that the question of durability be determined by having regard to how long a 'reasonable consumer' would expect the goods to last, taking into account the price paid, the nature of the goods and the representations made about the goods.

• [15] The price of the vehicle is a relevant consideration, as a reasonable consumer would be entitled to expect that a high-cost item would be durable and be capable of safe and effective use over a number of years.[6]
• [16] Whether the goods, in this case the LDV T60 Max Ute, were of acceptable quality has to be determined 'at the time of supply'.[7] In these proceedings the relevant date for the assessment of the acceptable quality of the goods is the time of sale of the vehicle on 15 September 2022. However, information available after the time of supply may be taken into account in deciding whether the goods were of acceptable quality at the time of supply.[8]

Relief under the Fair Trading Act and Australian Consumer Law

• [17] The remedy available to the consumer against the supplier depends in the first instance on whether the failure is a 'major failure'.[9] In order for Mr Mitchell to seek a refund for the vehicle, as sought in the application, there needs to be a failure to comply with the guarantee and the failure needs to be a major failure and/or unable to be remedied.
• [18] "Major failure" is defined[10] to include circumstances where the goods would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of the failure or are unfit for purpose or not of acceptable quality as they are unsafe. In this case the applicant asserts there are a number of issues with the motor vehicle. A failure to comply with a guarantee referred to in section 259(1)(b) that applies to a supply of goods is also a major failure if:

(a) 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

(b) 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]

• [19] It has been held that an accumulation of individually minor defects can be aggregated to amount to a major failure giving rise to a right to reject the goods. In Cary Boyd v Agrison Pty Ltd,[12] the Court held that:

[D]espite the use of 'a', to suggest the singular, 'a major failure' might be constituted by a series of specific and individual defects which taken as a whole constitute one major failure. I also agree with this interpretation of s 260 of the ACL.

• [20] The ACL provides remedies when the failure to comply with the guarantee can be remedied and it is not a major failure.[13] To seek to recover under the ACL, the consumer must request the supplier to remedy the failure within a reasonable time and if the supplier refuses or fails to comply with the requirement within a reasonable time the consumer may have the failure remedied and recover all reasonable costs incurred by the consumer in having the failure so remedied; or subject to section 262, notify the supplier that the consumer rejects the goods and of the ground/s for the rejection.[14]
• [21] Damages are also recoverable under s 259(4) of the ACL, which provides for the recovery of 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.

• [22] Mr Mitchell relies upon the application filed 8 May 2023 as well as 11 exhibits filed with the application. Subsequent to filing the application, Mr Mitchell has also filed four documents sent to the tribunal on 18 October and a five-page statement filed on 13 December 2024 together with 17 exhibits.
• [23] Mr Mitchell asserts the vehicle was not of acceptable quality in that it was the subject of a substantial number of failures, which given they arose within a few months of purchase, must have been present since the date it was purchased. On 6 December 2022 the vehicle was serviced at the respondent's Geebung service centre and the following failures were raised by Mr Mitchell:

(a) engine keeps cutting out (engine failure);

(b) fuel gauge not reading right (resulting in the fuel tank being empty but still recording as quarter full);

(c) vibration in breaks; and

(d) centre arm rest noise.

• [24] The vehicle was returned to Mr Mitchell on 6 December 2022 and continued to experience these problems. As a result, the vehicle was again taken to the respondent's service centre on 8 December 2022 when faults relating to the car shaking on deceleration and the car power dropping out intermittently were further raised. Mr Mitchell asserts in total he had to return the vehicle approximately five times between 6 December 2022 and 12 January 2023, and on each occasion the cause of the faults could not be identified by Norris Enterprises. The fault relating to the vehicle engine cutting out occurred both while he was on the motorway driving with his family and while towing a race vehicle, both of which he asserts put him in a dangerous situation.
• [25] On or around 12 January 2023 Mr Michell made a complaint to Customer Relations at LDV Automotive Australia (the manufacturer). On 16 January 2023 Mr Mitchell purported to reject the vehicle and demanded a refund directly from the manufacturer, as well as reimbursement for out-of-pocket costs.
• [26] From on or around 12 January 2023 to early February 2023 the vehicle was with Norris Enterprises for investigation and repair of the faults and for further road testing. Mr Mitchell acknowledges he was provided with a rental vehicle during this time, up until 10 February 2023. There were some initial issues with the rental vehicle, but this was corrected, and he was reimbursed for all out-of-pocket costs.
• [27] When Mr Mitchell was advised on 2 February 2023 that the vehicle was ready for collection, he advised that he had requested a refund but was refused by the respondent and he refused to collect the vehicle. The vehicle has remained at Norris Enterprises' premise since that time. Mr Mitchell accepts that intermittent problems of this nature can be difficult to find, but states that a defect which causes the engine to cut out is dangerous and he needs a safe car that does not cut out on the motorway.

• [28] Norris Enterprises rely upon their response together with a three-page statement and three exhibits filed on 3 July 2023 and an updated response on 17 November 2023 with a two-page statement and one exhibit. Further material was received on 6 November 2023 being a statement from Kym Foura Fixed Operation Manager together with photographs of the vehicle and an email dated 26 November 2024 together with updated copies of photographs of the vehicle.
• [29] Norris Enterprises' position is that the vehicle was delivered to Mr Mitchell with no known defects and in perfect working order. At no stage has a major fault of any kind occurred or been reported. Norris Enterprises largely do not dispute the chronology of events and acknowledges that there were issues with the engine cutting out, the fuel tank being faulty and a vibration problem. However, they assert that these were all minor and intermittent issues with the vehicle, which have now been resolved and thoroughly tested.
• [30] Norris Enterprises acknowledges it was unfortunate Mr Mitchell had to return the vehicle on several occasions for these minor issues to be rectified. Intermittent issues with an electronic cause are extremely difficult to be diagnosed. On a number of occasions when Mr Mitchell returned his vehicle the nominated issues were unable to be reproduced in testing. However, with persistence and repeated attempts, the issues were identified.
• [31] Norris Enterprises deny the assertion that there has been any "engine failure" as at no stage was there a failure either of a mechanical or electronic nature with the engine. The cause of the issue reported in relation to the engine cutting out was diagnosed as an intermittent electronic fault in the accelerator pedal assembly. This issue was resolved in full on 16 January 2023 and has since been tested under multiple driving conditions. The issue with the fuel gauge was an intermittent fault which initially appeared to be resolved but with further thorough testing on each component the fault was traced to the fuel gauge. This was replaced under warranty on 17 January 2023.
• [32] The issue with vibration in brakes was isolated at the second service visit as being a vibration on deceleration emanating from the gearbox and was not an issue with the breaks themselves. The issue was resolved by applying the latest software update available and conducting a "re-learn" procedure. Norris Enterprises asserts that this vehicle has a different feel and there is more vibration in this type of car that some other utes, such as an Isuzu or a Toyota Hilux. However, it is accepted that initially this vehicle had more vibration than normal for this brand of vehicle, however after the software update, the vibration has reduced, and the remaining vibration is now representative of the normal vibration in this brand.
• [33] The vehicle has been extensively road tested since 17 January 2025, on the motorway and suburban roads, day and night, stop and start and they were unable to fault the vehicle. In contrast, the demo vehicle which the previous parts were put back in, did fault, which demonstrated to Norris Enterprises that they had identified and resolved the issue.
• [34] The centre arm rest noise was a low-level issue which required a part being replaced under warranty. The part was initially unavailable from the distributor in Australia and needed to be supplied by the manufacturer in China, resulting in delays. To avoid delays and Mr Mitchell having to wait for the part to arrive, Norris Enterprises offered to take a part from a brand-new vehicle they have in stock (subject to the correct trim colour). Mr Mitchell however, refused to provide consent for the part to be replaced.
• [35] All repairs have been undertaken, with the exception of replacing the console, for which the parts are available, and Norris Enterprises are just waiting for Mr Mitchell's permission to install it. All repairs carried out have been performed at no cost to Mr Mitchell and covered under his manufacturer's new car warranty. Norris Enterprises apologises for the inconvenience caused and state their staff have at all times put their best efforts into resolving the issues. Mr Mitchell was provided with loan vehicles at no cost so he would not be inconvenienced while his vehicle was retained for thorough testing. They have also offered Mr Mitchell two services free of charge for any inconvenience caused.
• [36] Since early 2023 Mr Mitchell has refused to collect his vehicle despite all mechanical issues being rectified and has effectively abandoned it. This has caused significant inconvenience and while Norris Enterprises would not normally continue to store a vehicle, in these circumstances, to respect the tribunal and legal process, they have done so awaiting an outcome. Mr Mitchell is free to collect his vehicle at any time Norris Enterprises would be happy to deliver it to his home.

• [37] An independent motor vehicle report was ordered by the tribunal on 9 August 2023 with each of the parties contributing to the costs. The report by Stephen Goddard, a motor vehicle assessor, dated 1 November 2023, was provided to the tribunal on 6 November 2023. Mr Goddard conducted some preliminary checking and undertook a road test with Mr Mitchell and a representative of Norris Enterprises.
• [38] Mr Goddard confirmed in his report that during the road test, when slowing down on several occasions, there was an obvious vibration from the vehicle. However, he was not able to replicate the faults of the engine cutting out and the vehicle intermittently stalls/drops out.
• [39] Given the timing of the concerns in relation to the vehicle, it is likely the defects were present when the vehicle was delivered. In terms of the causes of the issues the inconsistent fuel gauge reading seemed to be a defective part. The vibration through the vehicle when braking and slowing down and the car shaking on deceleration seem to be the same issue, which was a software concern with the automatic transmission. The cause of the engine cutting out and the vehicle intermittently stalling appears to be the same fault, but from the workshop notes it was difficult to identify the actual fault and cause.
• [40] Correspondents received from Norris Enterprises states that they believe all issues except the arm rest issue have been resolved. A replacement part for the arm rest is in stock and they are waiting on consent from Mr Mitchell to fit it. The motor vehicle assessor report also attaches a response from Norris Enterprises as to a description of repairs and diagnosis, received after the road test was completed.
• [41] The report notes that despite Norris Enterprises' advice the issues have been resolved the owner does not feel the vehicle meets his expectation and is not confident the current defects have been resolved. Mr Goddard recommended that the vehicle needs to be extensively road tested with the owner and a representative from LDV Australia to confirm each and every item listed has been fixed.

• [42] Mr Mitchell, Mr Casey (Dealer Principal) and Mr Foura (Fixed Operation Manager) each gave evidence at the hearing. Each presented as honest and credible witness. There were however some minor issues with Mr Mitchell's evidence in relation to recalling dates and calculating of time. The tribunal did not find this was due to any intention to be dishonest and it is acknowledged that Mr Mitchell had some health issues in 2024 which had contributed to some memory issues which would account for these minor inconsistencies.
• [43] While Mr Mitchell raised some concerns about the motor vehicle assessment and whether it was extensive enough to assess the concerns raised, neither party sough to cross-examine the motor vehicle assessor at the hearing.

Was there a breach of a guarantee of acceptable quality?

• [44] Mr Mitchell, as the applicant, bears the burden of establishing, on the balance of probabilities, that the vehicle was not free of defects, in that the defects complained of existed as at time of sale.
• [45] Whether goods are of acceptable quality is not an absolute or a standard of perfection, but rather is a flexible standard depending upon the application of provisions in sections 54(2) and (3). While it is accepted that it is reasonable to accept that some parts of a motor vehicle may have to be adjusted, repaired, or replaced within a manufacturer's warranty period,[15] a consumer should not expect that a brand-new motor vehicle would come with defects that need to be repaired or replaced within the first few months of possession, requiring the vehicle to be off the road for repairs.
• [46] It appears uncontested in this matter, that within three months of purchase, the vehicle had issues with the engine cutting out, the fuel gauge not correctly reading, increased vibrations in the breaks and a rattling sound in the centre arm rest. Norris Enterprises agrees these were faults with the vehicle, which needed repair/replacing.
• [47] The tribunal finds that given the timing of these faults occurring within three months of the vehicle being purchased as a brand-new car, they were defects that must have been present at the time of supply. A reasonable consumer would not expect a new motor vehicle, in this price range, to have these faults at the time of supply requiring investigation and repair. As such the reasonable consumer fully acquainted with the state of the motor vehicle at the time of purchase would not regard it as free from defects and therefore the tribunal finds it was not of acceptable quality.

Was the failure to comply with the guarantee of acceptable quality a major failure?

• [48] The legislation assumes that not every failure to comply with a guarantee will be a major failure. Section 259(2) of the ACL expressly contemplates that some failures to comply with statutory guarantees can be remedied within a reasonable time. The term 'major failure' is defined to mean:[16]

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

(b) the goods depart in one or more significant respects:

(i) if they were supplied by description - from that description; or

(ii) if they were supplied by reference to a sample or demonstration model - from that sample or demonstration model; or

(c) the goods are substantially unfit for a purpose for which goods of the same kind are commonly supplied and they cannot, easily and within a reasonable time, be remedied to make them fit for such a purpose; or

(d) the goods are unfit for a disclosed purpose that was made known to:

(i) the supplier of the goods; or

(ii) a person by whom any prior negotiations or arrangements in relation to the acquisition of the goods were conducted or made; and they cannot, easily and within a reasonable time, be remedied to make them fit for such a purpose; or

(e) the goods are not of acceptable quality because they are unsafe.

• [49] Mr Mitchell has not clearly articulated why he says that the vehicle is a major fault other than to state that he has lost faith in the vehicle, and he needs a car which is safe. The test in s 260(1)(a) of the ACL is not whether Mr Mitchell lost faith or would have purchased the vehicle but an objective test of whether a reasonable consumer with knowledge of the faults, and what would be needed in terms of time, costs and degree of difficulty to fix them, would have bought the goods.[17]
• [50] While it is accepted that the vehicle had faults which at times impacted its driving capacity, that could have led to a driver having concerns about the ability of the vehicle to perform in certain environments, e.g. on a motorway or while towing another vehicle, there was nothing inherently unsafe about the vehicle other than the faults. The vehicle was still able to be driven by Mr Mitchell during that time, albeit there were periods it would stall or cut out. As such the tribunal does not find the vehicle itself was unsafe.
• [51] The two main grounds it would appear that Mr Mitchell is relying upon is that the vehicle was substantially unfit for purpose due to the faults and could not, easily and within a reasonable time, be remedied to make it fit for such a purpose; and/or that a reasonable consumer fully acquainted with the nature and extent of the failure would not have purchased the vehicle. It has previously been accepted that a number of minor defects can be considered in aggregate to amount to a major failure.[18] However, not every fault or combination of faults which represents a breach of the guarantee of acceptable quality constitutes a major failure. A finding of a major failure is a judgement of fact and degree based on inferences from the evidence. Relevant considerations include the availability and cost of repairs relative to purchase price and the nature of the faults.[19]
• [52] The period of time in which the motor vehicle was not able to be reliably used while warranty claims were investigated, the cost of repair and whether the defects can be remedied easily in a timely manner are relevant considerations as to whether there has been a major failure. Mr Mitchell asserts that he believes he should be entitled to a refund due to how many times the vehicle was in and out of the workshop.
• [53] Mr Mitchell asserts the vehicle has still not been fixed and the defects are still present, however admits that other than when he was with the motor vehicle assessor, he has not tested the vehicle. Mr Mitchell's belief is based on the fact that he does not accept what Norris Enterprises have advised him as he felt that they did not give him a satisfactory answer in February 2023 as to what had been undertaken to fix the faults, when they requested him to collect the vehicle and they were unwilling to give him an unconditional guarantee that the vehicle was fixed and would not break down again.
• [54] The tribunal agrees that the way Norris Enterprises completes their service invoices, on one running document, even when the work is completed over different time periods, is unhelpful and makes it difficult for the tribunal to confirm when work was completed. Norris Enterprises did however provide written statements and oral evidence which asserts that faults have all been detected and corrected by replacing parts or running upgrades. They have explained both in written material and orally during the hearing that in relation to the vehicle intermittently cutting out, initially they were unable to replicate the fault, however once the fault was experienced, in depth electrical diagnosis was conducted leading to an anomaly in the voltage signal from the electronic accelerator pedal assembly. After testing with another accelerator pedal, this was determined to be the issue.
• [55] In relation to the fuel gauge reading incorrectly the issue was identified as the fuel sender unit. When this was replaced under manufacturer's warranty the gauge was checked and correctly read empty and also correctly indicated the amount of fuel put into the tank after further testing. In relation to the vibration in the brakes, they were unable to fault the braking system, but the technician did detect a harsher than normal vibration in the driveline which seemed to be related to the transmission operation. A software update was available for that transmission series control unit which was carried out and adaptive values reset to factory specification under the manufacturer's warranty. The harsh vibration experienced was removed and only the usual operational vibration which is a characteristic of this model vehicle remained. In relation to the centre console arm rest noise, the arm rest was assessed, and a new unit ordered under the manufacturer's warranty. There was a delay in receiving the part and this has not been fitted due to instructions from Mr Mitchell not to touch the vehicle but can be replaced as soon as they have permission.
• [56] The evidence from Norris Enterprises was that after these repairs were completed, the vehicle has undergone extensive testing to ensure there was no issues. This testing has been conducted by six people within the respondent company or the manufacturers company on different road times and times of the day including driving on the motorway, and they were unable to replicate any of the faults raised by Mr Mitchell.
• [57] The tribunal prefers the evidence of Norris Enterprises in relation to the repairs. While Mr Mitchell asserts that he does not think it is an accelerator fault which has caused the issues, he has provided no independent evidence to dispute the evidence of Norris Enterprises about the cause of the faults. In contrast, Mr Foura, the Fixed Operation Manager, was able to give evidence at the hearing as to how he located the fault and the texting undergone which led him to believe the fault was rectified.
• [58] The tribunal finds based on the probabilities based on the evidence provided in this matter that the faults in the vehicle have been rectified. The evidence from the respondent on this issue was clear, detailed and persuasive. In contrast Mr Mitchell was just going off a belief and had provided no independent evidence to support his position. Mr Mitchell has refused to collect the vehicle to test it, even after this was recommended by the motor vehicle assessor. At the hearing Mr Mitchell reinforced this position stating he was not willing to pick up the vehicle and drive it himself to confirm if the defects and faults had been rectified.
• [59] In terms of the time required to find the fault and fix the vehicle, Mr Mitchell was unable to give exact dates that the vehicle was in his possession as opposed to the dates it was with Norris Enterprises attempting to rectify the issues. However, it is accepted, that the vehicle was not repaired on the first occasion and had to be returned several occasions, resulting in the vehicle being with Norris Enterprises for a significant portion of December 2022 and January 2023. It is also accepted that the vehicle was returned to Norris Enterprises on or around 12 January 2025 and remained at their premises for over three weeks attempting to rectify the issues and then road test the vehicle until 2 February 2023 when Norris Enterprises advised Mr Mitchell the vehicle was repaired and ready to be collected.
• [60] All parties agreed that defects of this nature can be hard to fix as they can be difficult to locate the specific part in the vehicle which is faulty and causing the issues. The vehicle was first taken to Norris Enterprises on 6 December 2022 and based on the evidence of Norris Enterprises, all issues except for the arm rest which were waiting on parts, were repaired by mid-January, with the vehicle being retained by Norris Enterprises for a further two weeks for extensive testing to ensure the defect was addressed and no further faults were identified. In the circumstances the tribunal finds that the time taken to rectify the defect was reasonable, given the nature of the defects.
• [61] In relation to whether a reasonable consumer would have purchased the vehicle if fully acquainted with the nature and extent of the failure, it is accepted that a reasonable consumer would expect a new vehicle to be durable and without defects and not to have issues within the first three to six months of purchase. However, a reasonable consumer would also understand that at times faults occur, and some parts of a motor vehicle may have to be adjusted, repaired, or replaced within a manufacturer's warranty period.[20] Section 260(1)(a) requires that consideration be given to the nature and extent of the failure in determining whether the reasonable consumer would not have acquired the goods, thereby indicating that the mere existence of any failure is not sufficient.[21]
• [62] In considering whether a reasonable consumer would have purchased this vehicle, it is important to consider not only the defects that arose, but also the actions taken by Norris Enterprises. As such, given the vehicle was able to be repaired, within a reasonable timeframe, at no cost to the consumer and a rental car was provided to reduce the inconvenience, the tribunal does not accept that a reasonable consumer, fully acquainted with the nature and extent of the failure would not have purchased the vehicle.
• [63] Accordingly, the tribunal finds that while the vehicle clearly had defects which was a failure to comply with the guarantee of acceptable quality, it was not a major failure.

Was the motor vehicle rejected for failure of the guarantee of acceptable quality within the rejection period and was Mr Mitchell entitled to reject the motor vehicle?

• [64] Mr Mitchell asserts that he rejected the vehicle on 16 January 2023 when he requested a refund. This rejection was done promptly after discovering faults in the vehicle and the tribunal accepts that if Mr Mitchell was entitled to reject the motor vehicle and the rejection was properly made, it would have been within the rejection period. The question however is whether Mr Mitchell is entitled to reject the motor vehicle and whether Mr Mitchell did in fact reject the vehicle for failure of the guarantee of acceptable quality.
• [65] It is accepted that Mr Mitchell sent an email on 16 January 2023 advising he was rejecting the vehicle, and then refused to collect the vehicle in February 2023, asserting again on 3 February 2023 that he had rejected it and wanted a refund. The difficulty for Mr Mitchell is that while he purported to reject the vehicle, he still sought to exercise ownership over the vehicle and during the period that the vehicle was being repaired Mr Mitchell was offered and accepted a rental vehicle between mid-January 2023 to 10 February 2023. If Mr Mitchell had rejected the vehicle and returned it, as he asserts was his intention, he would not be entitled to a rental vehicle which is a benefit provided to the owner of a vehicle while that vehicle is being repaired, to compensate for the loss of the use of their vehicle. Mr Mitchell accepting the rental vehicle is at odds with the assertion that the vehicle was rejected on 16 January 2025.
• [66] While Mr Mitchell refused to collect the vehicle from the respondent's premise on 3 February 2023, asserting he had rejected it, the tribunal funds that he continued to seek to retain and/or exercise some control over the vehicle during the proceedings. This sits at odds with the position that the vehicle was rejected. The tribunal finds that Mr Mitchell asserted that no one was to touch his vehicle, and it was not to be driven further. While it is acknowledged Mr Mitchell disputes he said this, the tribunal finds the evidence of the respondent persuasive on this issue, and consistent with Mr Mitchell's actions in the proceedings, where he raised concerns about the cleanliness of the vehicle and where it was being stored while in the respondent's possession and sought the tribunal issue directions to stop the respondent driving the vehicle or working on it without authorisation.
• [67] In terms of whether Mr Mitchell was entitled to reject the motor vehicle, as the tribunal has found that this was not a major failure, Mr Michell was required to provide the vehicle to Norris Enterprises and allow them a reasonable time to repair/fix it. It is only if they then refused to fix it or failed to comply with the requirement within a reasonable time that Mr Mitchell may then reject the vehicle. The vehicle was returned to Norris Enterprises on 12 January 2023. Mr Mitchell sought to reject the vehicle four days later. At the hearing he acknowledged that this was before some upgrades had been undertaken on the vehicle. Accordingly, the tribunal finds that Mr Mitchell was not entitled to reject the motor vehicle in January 2023 as Norris Enterprises were still in the process of identifying and repairing the fault.
• [68] As Norris Enterprises did not refuse to fix the vehicle and did fix the faults in a reasonable time, Mr Mitchell was not entitled to reject the vehicle on 3 February 2023 when he refused to collect it, as at that time all faults had been repaired. The tribunal does not accept that Norris Enterprises' failure to provide Mr Mitchell a guarantee in writing that the vehicle had been repaired and would never fail again demonstrates that the vehicle had not been repaired or is sufficient to entitle Mr Mitchell to reject the vehicle. The request by Mr Mitchell was not reasonable.
• [69] No one can guarantee that a vehicle will never fault in the future and/or agree to provide a full refund if any issues arise in the future, without first investigating the issue. Faults and issues do arise from time to time during with vehicles, which is why vehicles come with warranties, requiring the manufacturer to repair the vehicle free of charge if faults do arise within an initial period. The response from Norris Enterprises was reasonable. It confirmed the faults had been detected and fixed and that while it could not guarantee that no fault would occur in the future, it confirmed the vehicle remained under warranty and any future issue would be considered on the facts at that time.
• [70] Accordingly, the tribunal finds that Mr Mitchell did not in fact reject the vehicle as he still sought to accept a benefit of owning the car, being the free rental vehicle and continued to seek to assert some control over the use/storage of the vehicle, and even if he had appropriately rejected the vehicle, he was not entitled to do in either January or February 2023 when he purported to do so.

• [71] As the fault with the vehicle is not a major defect and the tribunal finds on the balance of probabilities that the fault/defects have been rectified, Mr Mitchell is not entitled to a refund of the purchase price. Mr Mitchell would have been entitled to any out-of-pocket costs associated with the defect. However, as all repairs were covered under the vehicle warranty and as the rental vehicle was provided to Mr Mitchell free of charge and his initial out of pocket costs have already been reimbursed, there is no out-of-pocket costs to be awarded.
• [72] As the vehicle has been repaired, Mr Mitchell will need to collect the vehicle. Norris Enterprises will need to ensure that the new centre arm rest which had been awaiting approval to be installed is replaced and given the time the vehicle has been sitting at Norris Enterprises' premise, a full service is required on the vehicle to ensure that it is in full working order. Norris Enterprises have also advised they will ensure the vehicle has a full tank of petrol.
• [73] Norris Enterprises has advised that in acknowledgement of the inconvenience to Mr Mitchell they will provide him with two further free services to be conducted at no cost to Mr Michel. While it is not appropriate for the tribunal to order this occur, the tribunal expects Norris Enterprises will stand by their undertaking/promise to Mr Mitchell.
• [74] At the hearing Norris Enterprises advised all work can be conducted on the vehicle to ensure it is ready for collection within three weeks of the date of any order. Mr Mitchell advised he could collect the vehicle within three weeks of being advised it is ready for collection. Accordingly, the tribunal will order that the work and collection must occur within these timeframes

• [75] Section 50C of the Fair-Trading Act provides that the tribunal may make a costs order. This power is subject to s 100 of the QCAT Act that the starting point for costs is that each party must bear their own costs and s 102(1) of the QCAT Act which provides that the tribunal may make a costs order if the interests of justice require it.
• [76] As Mr Mitchell has been unsuccessful in his application, the tribunal finds that the interests of justice do not justify swaying from the ordinary position that each party pay their own costs.

• [77] The tribunal orders:
  1. Within 21 days of the date of this order, being by 2 September 2025, Norris Enterprises Group Pty Ltd are to service the vehicle, replace the centre arm rest, ensure the vehicle has a full tank of petrol and advise Mr Stephen Mitchell that the vehicle is ready for collection.
  2. Mr Stephen Mitchell is to collect the vehicle from Norris Enterprises Group Pty Ltd within 21 days of being advised the vehicle is ready for collection.

[3] [2020] FCA 1672, [27]. See also Sazdanoff-Haynes v MLS Wholesales Pty Ltd [2023] QCAT 37, [39]- [40] ('Sazdanoff-Haynes').

[4] Jayco [27]. Sazdanoff-Haynes [39]- [40].

[5] [2018] VCAT 1520, [72].

[6] Campbell v Caravan & RV Central Pty Ltd t/as Avan New South Wales & FCA Australia Pty Ltd [2016] NSWCATCD 90, [57].

[7] Holt-Lea v O'Connor & Anor [2022] QCAT 363, [29]; Sazdanoff-Haynes [38].

[8] Nuth v Soel Products Australia Pty Ltd trading as Caravan RV CQ [2020] QCAT 369, [33].

[12] [2014] VMC 23, [51].

[15] Australian Competition and Consumer Commission v Jayco Corporation Pty Ltd (2020) FCA 1672.

[17] Baas v JB Hi Fi Group Pty Ltd [2021] NSWCATAP 10, [28].

[18] Nuth v Soel Products Australia Pty Ltd trading as Caravan RV CQ [2020] QCAT 369, [33].

[19] Baas v JB Hi Fi Group Pty Ltd [2021] NSWCATAP 10, [28]; Peter Bennett Cars v Lyree-Jho Vodanovich [2020] QCATA 88, [24].

[20] Australian Competition and Consumer Commission v Jayco Corporation Pty Ltd (2020) FCA 1672, [40].