1. The Applicant was not and is not required to transport the motor car to the First Respondent's address in Townsville, Queensland to effect the rejection of the goods.

1. On notification of the rejection of the motor car to the First Respondent, property in the motor car re-vested with the First Respondent.

1. The Second Respondent, Jaguar Land Rover Australia Pty Ltd, imported the motor car into Australia and at the time of the importation, the manufacturer of motor car did not have a place of business in Australia.

1. The First Respondent, Beaufort Townsville Pty Ltd, is to pay to the Applicant, Sally Morphy, the following sums:

1. the refund sum $235,074.08;
2. damages for consequential loss in the sum of $21,929.90;

1. Within fourteen (14) days of the date of this order, the First Respondent shall collect the motor car (registration number V0007) from the Applicant's residence.

1. Following the collection of the motor car the Applicant will do all things necessary, that do not involve her incurring an unreasonable expense, to facilitate the transfer of the motor car's registration from the name of the Applicant into the name of a person (corporate or natural) nominated by the First Respondent, but the transfer of the motor car shall not include the transfer of the registration plates or the registration number (V0007), which shall remain in the possession of the Applicant.

1. On the cross-claim, the Second Respondent, Jaguar Land Rover Australia Pty Ltd, must pay to the First Respondent, Beaufort Townsville Pty Ltd, the sum of $283,191.33.

1. The sum referred to in paragraph 4 (above) of this order may be paid either directly to the First Respondent or, at the direction of the First Respondent, to the Applicant in discharge of the First Respondent's liability to the Applicant under paragraph 1 (above) of this order.

1. On payment of the sum referred to in paragraph 4 (above), in accordance with the terms of paragraph 5 (above) of this order, the Second Respondent shall be entitled to the motor car and the First Respondent shall make the motor car available to the Second Respondent and do all things reasonably necessary to transfer the title and registration of the motor car to a person (corporate or natural) nominated by the Second Respondent.

1. The parties shall be heard on the question of costs. For that purpose, the Principal Registrar is directed to fix the matter for a costs hearing before Member Ussher and allow 1 hour for the hearing.

1. The Second Respondent is granted leave to attend the costs hearing by telephone. The Second Respondent is directed to notify the Tribunal of a contact telephone number at least seven (7) days prior to the scheduled hearing.

1. Should any of the parties wish to file written submissions on the question of costs at the costs hearing, those submissions must be served on the opposite parties at least 24 hours prior to the costs hearing.

1. This proceeding concerns the supply of a Range Rover Autobiography motor car (the motor car). The Applicant, Mrs Sally Morphy, claims that, in September 2015, she agreed to purchase the motor car from the First Respondent, Beaufort Townsville Pty Ltd, trading as Tony Ireland Land Rover (the "Supplier"). The purchase price was $235,074.08.
2. The motor car is described as a "high-end, luxury" motor car. It was manufactured by Jaguar Land Rover (UK)[1] and imported into Australia by the Second Respondent, Jaguar Land Rover Australia Pty Ltd (the "Importer").
3. The motor car was delivered to the Applicant in April 2016.
4. Shortly after delivery, problems with the motor car emerged resulting in the car being taken off the road and put in for repairs on several occasions. As a result of on-going failures, the Applicant ultimately rejected the car and requested the repayment of the purchase price ($235,074.08) together with damages for consequential losses, on the basis that such losses were reasonably foreseeable losses flowing from the non-compliance with the consumer guarantee.

1. Sally Morphy is, and was at all times material, a resident of Victoria. She lives on a sizeable rural property where she keeps a number of horses. She attends horse shows and competitions around Victoria.
2. At all relevant times she was employed by Winter & Taylor, a Holden motor car dealership. Her husband, James Morphy was at all material times a director of Winter & Taylor.

1. The First Respondent, Beaufort Townsville Pty Ltd (formerly Tony Ireland - Townsville Pty Ltd), at all material times, engaged in trade and commerce as a motor car trader, in Townsville Queensland.[2]

1. Jaguar Land Rover Australia Pty Ltd is a foreign owned private company. Its registered office is located in New South Wales.[3] It derives its revenue from operations as an importer and distributor of Jaguar and Land Rover motor cars, parts and accessories.

1. The ACL s. 54 provides for a guarantee of "acceptable quality" in relation to goods supplied to consumers.[4] This guarantee is binding on persons who supply, in trade or commerce, goods to a consumer other than by sale by auction. The First Respondent admitted that the applicant had acquired the motor car from it, as a consumer within the meaning of s.3 of the ACL.
2. The term "supplier" is defined in s. 2 of the ACL, in the case of goods, to mean a person who supplies goods "...by way of sale, exchange, lease, hire or hire-purchase".
3. The Applicant alleges that the motor car is not of an acceptable quality in non-compliance with the consumer guarantee. She alleges that the numerous break-downs, and the underlying defect, renders the motor car:
   • unfit for the purpose for which it was supplied; and/or
   • not free from defects; and/or
   • unsafe; and/or
   • not durable

to the extent that a reasonable consumer fully acquainted with the state and condition of the motor car, would consider the car to be unacceptable,[5] particularly, having regard to:

• the nature of the car;
• the price of the car; and
• the representations made by the manufacturer about the quality of the car.[6]

1. The Applicant alleges that the failures constitute a "major failure" within the meaning of sections 259 and 260 of the ACL and that, accordingly, she is entitled to reject the car, obtain a full refund of the price paid[7] (on re-delivery of the car)[8] and to recover compensation for consequential loss.[9]
2. The Applicant initially sought redress from the Supplier. The Supplier joined the Importer as a party to the claim and, pursuant to a cross action, sought indemnity from the Importer under s.274 of the ACL.
3. The Applicant then joined the Importer as a the Second Respondent and amended her claim to include a claim directly against the Importer under s. 271 of the ACL.
4. The Applicant contended that the Importer was a "manufacturer" within the meaning of s. 271 of the ACL. This section provides that where a guarantee under s.54 of the ACL is not complied with, the relevant consumer may recover their loss from the "manufacturer".
5. Section 7 of the ACL defines the term "manufacturer" to include a person who imports goods into Australia, if that person is not the manufacturer of the goods and, at the time of importation, the manufacturer did not have a place of business in Australia.
6. The Applicant sought a refund of the purchase price ($235,074.08)[10] or, alternatively, replacement of the car,[11] plus damages for consequential loss from the Supplier.[12]
7. Further, the Applicant sought damages for the reduction in value of the motor car from the purchase price of $235,074.08[13] by reason of the non-compliance with the s. 54 guarantee, plus damages for consequential loss, from the Importer pursuant to s. 272 of the ACL.
8. The Applicant's claim for consequential loss from both the Supplier and Importer was quantified as follows:

Costs thrown away of fitting a tow pro unit to the defective car

1. In bringing these claims, the Applicant relied upon the extended application of the ACL(Vic).[14]

1. The Supplier initially alleged that it did not supply the car to the Applicant but rather to another motor car trader known as Winter & Taylor. The Supplier alleged that the car was then supplied to the Applicant by Winter & Taylor. However, on the first day of the hearing, the Supplier amended its Points of Defence to admit that the contract for the supply of the motor car was between it, as "supplier", and the Applicant, as the "customer".
2. The Supplier otherwise required the Applicant to prove her claim. It did not call any evidence at the hearing.

1. Despite Tribunal orders, the Second Respondent did not file and serve Points of Defence to the Claim or Cross-Claim. Accordingly, at the commencement of the hearing the Second Respondent was called upon to state its defences. In that regard, the Second Respondent said that, notwithstanding the admissions made by the Supplier, it would contend that the Applicant's own evidence disclosed that:
   • the motor car was sold by the Supplier to Winter & Taylor and, therefore, the Importer was not obliged to indemnify the Supplier pursuant to s.274 of the ACL; and,
   • with respect to the claim under s. 271 of the ACL - the measure of damage imposed upon a manufacturer/importer under s.272, was the reduction in value from the purchase price paid under the supply contract with Winter & Taylor and the value of the defective goods. The purchase price under this supply agreement was considerably below the purchase price of $234,074.08 paid under the contract with the Supplier and hence, any loss resulting from the reduction in value of the goods caused by non-compliance with the guarantee under s.54 of the ACL should be commensurately less.
2. The Importer also contended that the Applicant could not recover double compensation, that is to say, if an order for a refund was made in favour of the Applicant under s. 263(4) against the Supplier, no order for damages in favour of the Applicant could be made against the Importer under s.272 of the ACL for the diminution in value of the motor car.
3. Further, the Importer made an open offer to the Applicant at the commencement of the hearing. This was an "all-in" offer to resolve the claim by replacing the motor car's engine. The Importer subsequently submitted that its readiness to replace the engine should be considered when assessing the quantum of damages.
4. Otherwise, the Second Respondent put the Applicant to her proofs. The Second Respondent did not call any evidence at the hearing.

1. Sally Morphy said that in 2015 she decided to replace her Range Rover Sport motor car with a new car. Mrs Morphy said that she needed a car that could be used for every day, personal and domestic purposes as well as for transporting her horses and the horse accoutrements. She wanted a car that was luxurious, a joy to drive, safe, powerful and rugged, capable of handling country roads and dirt tracks.
2. Mrs Morphy researched the features of the Range Rover Autobiography and noted that the manufacturer's website described this car as, inter alia:

1. "the pinnacle of refined capability";[15] 2. "sophisticated and modern", with "peerless characteristics";[16]

1. "capable of handling the most demanding tasks";

1. engineered so as to have passed - "a series of tests to establish the very highest levels of luxury, performance and capability".
2. Accompanying photographs showed the motor car fording streams, traversing rough country and towing horse floats.[17]
3. Mrs Morphy said that these representations induced her to settle on the purchase of a Range Rover Autobiography. She said that she had very high expectations about the quality of the motor car, particularly in relation to its safety, mechanical quality and durability. The manufacturer's representations were produced and tendered into evidence.[18]
4. Mrs Morphy said that on 22 September 2015 she entered into a written agreement with the First Respondent (the Supplier) to purchase a Range Rover Autobiography for the sum of $235,074.08. The estimated delivery date for the motor car was 25 March 2016. The contract was produced and tendered into evidence.[19]
5. Mrs Morphy said that, before the car was delivered to her, she arranged for an auto electrician to fit a "tow-pro" unit to the car to enable her to use the motor car to tow her large horse float. She paid $654.50 for the supply and fitting of this unit.[20]
6. Mrs Morphy said that the car arrived in April 2016. She said that the motor car came with a three year/100,000 kilometre manufacturer's warranty. Mrs Morphy said that she and her husband had arranged to be in Queensland in April 2016. Mr Morphy collected the car from the First Respondent. On receiving the car, Mrs Morphy was delighted. She considered it to be her "dream car".

1. Mrs Morphy's joy soon turned to disappointment when the motor car experienced a number of failures. In relation to these failures, Mrs Morphy's evidence can be summarised as follows:
   • in late April 2016, after the car had travelled about 3,000 kilometres, the coolant warning light came on. Rex Gorrell, the local authorised Land Rover dealer, considered that an air-pocket had formed in the coolant system. The dealer topped up the coolant with an additional 1.5 litres. The service manager advised that if this fault re-occurred, the fault may be "more sinister";
   • in early June 2016, after the motor car had travelled a total of 6,668 kilometres, the gearbox warning light activated. This fault could not be explained by Rex Gorrell;
   • in late July 2016, the coolant warning light again activated. The car was retained by Rex Gorrell for about one week. The dealer topped up the coolant so that the warning light was extinguished. The dealer could find no leak in the cooling system;
   • on 1 August 2016, Rex Gorrell again advised Mrs Morphy that no fault could be found with the coolant system;
   • on 28 September 2016, the coolant warning light again activated. Rex Gorrell could find no fault with the coolant system although, again, the coolant had to be topped up. Finding no leak in the cooling system, Rex Gorrell changed a sensor module on the warning light;
   • on 15 October 2016, the car would not start. Rex Gorrell worked on the car from 18 to 29 October 2016. The motor car had travelled a total of 15,670 kilometres by this time. The dealer found excessive carbon deposits on the throttle and replaced the "throttle body". The dealer could not explain the excessive carbon deposits;
   • on 27 November 2016, the car's coolant reservoir was found to be almost empty, although the coolant warning light had not activated. Mrs Morphy requested that the car be examined by another dealer. The car was taken to Melbourne City Land Rover for testing. After about two days of testing, Melbourne City Land Rover advised Mrs Morphy that it could find no fault with the car. The total kilometres travelled by the motor car at this time was in the order of 19,000.
2. On receipt of this advice, Mrs Morphy instructed her solicitors to write to the Supplier to reject the car and to arrange a refund of the purchase price. A copy of this letter, dated 22 December 2016 was also sent to the Importer.[21]
3. The letter noted that:

1. Mrs Morphy had been without the car for some 55 days as a consequence of the faults; 2. Rex Gorrell and Melbourne City Land Rover had both advised Mrs Morphy on 19 December 2016 that their mechanics could not identify the cause of the faults and could not rectify the problem; and

1. Mrs Morphy would not have purchased the car if she had been acquainted with this defect (this was reiterated by Mrs Morphy during her evidence at the hearing).
2. The car was retained by Melbourne City Land Rover over the Christmas period for further testing. The Applicant subpoenaed the Melbourne City Land Rover reports and tendered them into evidence.[22] These reports recorded that mechanics had reported that:
   • "a fair bit of liquid was coming out of the engine" that "this liquid looked like oil but felt very watery"; and
   • the coolant level had dropped by 5cm overnight and that there was about 1 litre of a very thin liquid coming from the engine; and
   • a new engine or a replacement head gasket might be required; and
   • this advice was not acted upon and instead a new oil cooler assembly was fitted to the car.
3. None of these findings were communicated to Mrs Morphy.
4. By correspondence dated 24 January 2017[23] sent to Mrs Morphy, the solicitors acting for the Importer advised that;
   • the coolant leak had been traced to a faulty engine oil cooler;
   • the faulty oil cooler had been replaced; and
   • the car was now operating in accordance with the manufacturer's specifications.
5. After several months, the Importer insisted that Mrs Morphy collect the car from Melbourne City Land Rover. She did so. Shortly thereafter the car's coolant warning light again activated. The coolant reservoir required to be topped up. This service was done on 19 July 2017.
6. On 11 August 2017, the coolant warning light again activated. Prior to this incident, on 1 August 2017, the Applicant's solicitors had written to the Supplier to confirm the Applicant's earlier rejection of the motor car. The Applicant's solicitors sought advice as to where to return the motor car.[24] Neither the Supplier nor the Importer responded to this letter.
7. Mrs Morphy said that on 4 August 2017, she purchased a replacement motor car as she could not hire a car with the features she required. The replacement car was a 2017 Holden Colorado. Its purchase price was $46,719.48.[25]
8. Mrs Morphy said that she had made inquiries about the costs of having the motor car transported back to Townsville by a carrier. She had been told that the costs would be between $2,400 and $2,600.
9. In cross-examination, Mrs Morphy conceded that the Supplier had invoiced the motor car's purchase price of $235,074.08 to Winter & Taylor. She said that Winter & Taylor paid the invoice.
10. Mrs Morphy further conceded that after delivery of the car to her, it had been registered in the name of Winter & Taylor. The registration had then been transferred from Winter & Taylor to her. She said this was done to facilitate the financing of the car. She said that from the delivery of the car by the Supplier, it had always been owned by her.
11. Mrs Morphy conceded that she had signed a loan application with Macquarie Leasing on 8 June 2016 and that this loan application:[26]
    • showed that the "supplier" was Winter & Taylor;
    • the purchase price was $192,807.40 (not $235,074.08);
    • the financed sum was $180,511.80; and
    • the purpose of the "loan" was to purchase the Range Rover Autobiography.

1. Mr Dunn was qualified as an expert automotive and mechanical engineer. He said that he had inspected the motor car in March and April 2017. On those inspections he reported that:
   • after warming the engine, the oil filter aperture was found to contain white foam while giving off vapour. This indicated that coolant was leaking into the engine oil;
   • this conclusion was confirmed by the presence of elevated levels of copper, iron and sodium in the engine oil;
   • the total volume of coolant that had leaked into the engine oil from the date of delivery was in the order of 6 litres;[27]
   • the elevated metal levels indicated that the engine bearing surfaces had already deteriorated;
   • there was a very high likelihood that the life of the engine had been compromised;
   • acids had formed as a result of the coolant contamination. These acids had caused erosion of iron, copper, lead and tin elements in the bearing surfaces of the crankshaft and camshaft systems;
   • coolant contamination to the engine oil causes:
     • blocked oil filters that can lead to bearing failure;
     • debris to by-pass the oil filter leading to the damage of all bearing surfaces;
     • severe corrosion of engine parts;
     • sludge deposits; and
     • high engine wear.
2. Mr Dunn's first report was tendered into evidence.[28]
3. In December 2017 and in March 2018, Mr Dunn again examined the engine and updated his report. This report was also tendered into evidence. He reported that:[29]
   • testing showed that 1.8 litres of coolant needed to drain from the coolant system to activate the car's coolant warning light;
   • the total volume of coolant contamination in the engine oil since supply of the car was in the order of 10 litres;
   • the replacement of the oil cooler by Melbourne City Land Rover had done nothing to prevent further contamination;
   • damage to the engine had occurred and would continue to occur.
4. At the hearing Mr Dunn testified that:
   • damage from contamination of engine oil by coolant can result in sudden and catastrophic engine failure;
   • the carbon build-up in the throttle box, which had prevented the car from starting in October 2016 and which culminated in the replacement of the throttle box, was caused by the coolant contamination. This problem was bound to re-occur every 16,000 kilometres travelled by the motor car;
   • by reason of this and the matters set out in paragraphs 47, 49 and 50 above, the motor car was:-
     • not free from defects;
     • not fit for all usual purposes
     • unsafe; and
     • not durable.
   • the most probable cause of the coolant leak was that the engine head was porous. This could only be rectified by total replacement of the car's engine; and
   • in any event, the most cost-effective way of rectifying the defect was to replace the car's engine.

1. Mr Morphy said that:
   • until recently he had been the director of Winter & Taylor. He said that he had been in the business of estimating the value of motor cars since 1998;
   • the replacement car, the Holden Colorado, had a trade value of $33,000. He produced Holden Price Reports to demonstrate this assessment;
   • Winter & Taylor did not purchase the Range Rover Autobiography from the Supplier;
   • he considered the value of the Range Rover Autobiography was now $156,000 given the distance travelled and the build-date. He based this estimate on a valuation tool called "LiveMarket" which is used and relied upon by motor car traders;
   • the cost to replace the engine would be in the order of $35,000;
   • the value of the car would be reduced by $10,000 on the replacement of the engine;
   • the value of the car would be further reduced by $10,000 to allow for the risks involved in dealing with his vehicle;
   • as a consequence, he considered that the market value of the car with the defects was in the order of $100,000;
   • in his experience as a motor car trader, no reasonable consumer would have purchased the Range Rover Autobiography if they had been acquainted with its defects.
2. In cross-examination, Mr Morphy said that:
   • the Supplier would have made little or no net profit from the sale of the car to his wife on the price of $235,074.08;
   • Winter & Taylor paid the purchase price of $235,074.08 to the Supplier on behalf of his wife. This sum was repaid by him. He paid $55,000 plus the amount financed by Macquarie Leasing;
   • the luxury car tax was not payable on transactions between dealers;
   • Winter & Taylor was not authorised by Jaguar Land Rover to sell new Range Rovers;
   • the business records maintained by Winter & Taylor recorded that it had supplied the Range Rover to Sally Morphy at a sale price of $192,807.40;
   • a written contract had been created to record that transaction. Despite this, Winter & Taylor had not purchased the car from the Supplier. The car had been purchased from the Supplier by his wife and had always been owned by her until her rejection of the car;
   • the Winter & Taylor documents had been created solely for the purpose of facilitating finance from Macquarie Leasing. Winter & Taylor had never owned the car and had not conveyed title in the car.

1. The Importer contended that, despite the admissions made by the First Respondent, it could still rely upon the allegation that the goods had not been supplied by the Supplier to the Applicant but rather by Winter & Taylor.
2. The Second Respondent contended that, if this defence was upheld, then:
   • the Importer would not be obliged to indemnify the First Respondent because the "supplier" for the purposes of s.274 was not the First Respondent; and
   • the measure of the Importer's direct liability to the Applicant for non-compliance with the consumer guarantee was, under s.272(1)(a), the difference between the purchase price under the Winter & Taylor supply contract and the diminished value of the goods by reason of the non-compliance.
3. The Second Respondent contended that, in relation to its defences under the claim and cross-action, the admissions made by the First Respondent were not determinative. It contended that the Tribunal was required to make a finding on the evidence as the admission did not bind it.
4. The Second Respondent conceded that the Tribunal could not overlook the admission made by a party to the alleged supply agreement, but that the totality of the evidence had to be considered.
5. In that regard, the Second Respondent referred the Tribunal to the following matters:-
   • the Supplier's contract document dated 21 April 2016 was signed by Mr Morphy;
   • the Supplier invoiced the purchase price ($235,074.08) to Winter & Taylor, not to the Applicant;
   • the application with Macquarie Leasing referred to a supply agreement between Winter & Taylor and the Applicant for the supply of the same motor car for the price of $192,807.40 and the Applicant had signed this application;
   • the car had been first registered into the name of Winter & Taylor before being transferred to the Applicant;
   • Winter & Taylor had paid the GST on the transaction, although it was claimed that the GST payment had been refunded; and, in summary
   • the business records of Winter & Taylor recorded the transaction between it and the Applicant as a sale agreement[30] (although production of the contract was not required by the Second Respondent).
6. I note that all the above matters are extrinsic to the written agreement which the Supplier admitted constituted the agreement for the supply of the motor car to Mrs Morphy, as a consumer.[31] I further note that the Importer did not allege that the Supplier's contract document was not the contract by which the Supplier sold the motor car. Rather, the Importer alleged that under that contract the Supplier sold the motor car to Winter & Taylor.
7. In reply, counsel for the Applicant, submitted that the Supplier had admitted that the supply contract was made between it and the Applicant. The case had been conducted on the basis of, inter alia, this admission and it could not be overlooked, because:
   1. it was made by that respondent who was directly involved in the transaction; and, if the Applicant's case against the First Respondent was otherwise proved -
   2. this admission would render the Supplier liable for non-compliance with the consumer guarantee and thereby invoke the indemnity under s.274 of the ACL.
8. The Applicant also pointed to the following matters:
   • the sale contract entered into in September 2015, was between the Applicant and the Supplier. That was made clear from the contract document. The "Customer" was "Sally Morphy" who, under clause 1.1(b) of the contract was defined as "the legal entity purchasing the Vehicle from the Dealer";
   • the fact that Winter & Taylor advanced the purchase payment did not alter that legal relationship;
   • there was uncontradicted evidence that Winter & Taylor had gained no commercial benefit from the transactions. Indeed, Winter & Taylor could have purchased the motor car without paying the luxury car tax ($39,666.94); and
   • on the uncontradicted evidence of Mr & Mrs Morphy, the documentation created by Winter & Taylor was created for the sole purpose of obtaining a lower interest rate in a finance arrangement with Macquarie Leasing. There was no real intention by Winter & Taylor to "supply" the motor car to the Applicant and it did not do so.
9. I am persuaded by the Applicant's submissions. I find that the extrinsic evidence, such as the payment by Winter & Taylor, the invoicing and the registration history, cannot alter the identity of the parties to that written contract.[32]
10. In the absence of any ambiguity, the intention of the parties to a written contract is to be construed objectively from the plain meaning of the words of that document.[33] The plain meaning of the words contained in the Supplier's contract leaves no doubt that the contract was between the Supplier and the Applicant and that the Applicant was the customer. This is inconsistent with any implied, collateral arrangement.
11. That being so, and accepting the testimony of Mr Morphy, I find that Winter & Taylor did not acquire property in the motor car at any time and could not have legally "supplied" the motor car to the Applicant.
12. The Winter & Taylor transaction makes no sense commercially other than to assist the Applicant to obtain a better rate of finance from a third-party financier. Therefore, I find that the Winter & Taylor contract (which was not put into evidence but merely referred to in cross-examination) recorded, at best, a convenient fiction. If it purported to be a supply contract, then it was a sham.[34]

(ii) The Consumer Guarantee of Acceptable Quality

1. The guarantee of "acceptable quality" contained in s. 54 of the ACL is not a guarantee of perfection.[35] Whether the goods are of an acceptable quality is evaluated objectively through a reasonable consumer test having regard to the matters set out in s.54(2) & (3).
2. This test falls to be assessed at the time of delivery of the goods to the consumer by reference to all that is known about the goods at the time of the hearing.[36] In Prestige Auto Traders Australia Ltd v Bonnefin, Adams J of the Supreme Court of NSW, identified the manner in which s. 54 should be applied. Her Honour said that:

"The relevant test in s.54(2) of the ACL of whether or not goods are of 'acceptable quality' is an objective one based on whether a reasonable consumer who was aware of the 'defects' in the goods at the time of supply would have considered them to be of acceptable quality. .... Taking into account the relevant information known as at the time of the trial, including 'after acquired knowledge'; Medtel v Courtney at [66] and [70]."[37]

1. Applying this test, I find that that a reasonable consumer, fully acquainted with the nature of the defects, particularly having regard to:-
   • the nature of the goods, such as the motor car's build date and the manufacturer's express warranty;[38] and
   • the purchase price; and
   • the representations made by the manufacturer as to the "supreme" quality of, inter alia, the motor car's engineering;

• fit for all the purposes that goods of that kind are commonly supplied;
• free from defects;
• safe; and
• durable.

1. The defect (which I accept, on the expert evidence, to be a porous engine head) is a substantial problem. The evidence of the expert establishes that that defect is significantly detrimental to the proper operation of the motor car and the durability of the car's engine. The defect, and the damage caused by the defect, can only be remedied by the total replacement of the car's engine. The failure was not a "minor issue" requiring "simple repairs."[39]
2. I find that the motor car was not fit for all the purposes that goods of that kind are commonly supplied, as required by s. 54(2)(a). The repetitive and undiagnosed failures made the car unreliable. That unreliability and the prospect of the defect leading to a sudden and catastrophic engine failure, rendered the motor car unfit for its basic purpose, that is to be driven on or off roads, let alone for any purpose such goods are commonly put to.
3. Whether the possibility of catastrophic engine failure also rendered the motor car unsafe, within the meaning of s. 54(2)(d), is a question of degree.
4. In Contact Energy Ltd v Jones [40] the High Court of New Zealand held that a "reasonable consumer" may be willing to accept a degree of risk. I consider that a "reasonable consumer", standing in the shoes of Mrs Morphy, would not accept this particular safety risk with respect to a motor car used for transporting children and towing horses over long stretches of country roads where there are limited or no facilities for dealing with the consequences of a catastrophic breakdown. In other words, it is reasonable not to expect a consumer to run the risk of a major mechanical breakdown and the risk of being stranded.[41] I find that the failure rendered the car unsafe within the meaning of s.54(2)(d).
5. I further find that the motor car was not durable as required by s. 54(2)(e). The term durable is not defined in the ACL. However, the 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.[42]
6. That expectation is, in this case, amplified by the quantum of the purchase price and by the representations made by the manufacturer about the quality of the car.[43] These representations go beyond mere "puffery". They make it clear that this motor car is at the top-end of the quality motor car market, a matter reflected in, and reinforced by, the car's price.[44]
7. Bearing all these factors in mind, I cannot imagine any "reasonable" consumer, saying, "Well the car might not be perfect, but it is good enough." No, it is clearly not good enough, for in the words of another tribunal - a "reasonable consumer would be entitled to expect that such a high cost item would be durable, being capable of safe and effective use over a number of years or at least many thousands of kilometres".[45]
8. For the reasons stated above, I find that there has been non-compliance with s. 54 of the ACL by the Supplier.

1. If the failure to comply with the consumer guarantee of "acceptable quality" is a "major failure" the goods may be rejected by the consumer.[46]
2. A major failure is one where, amongst other matters:
   • a reasonable consumer would not have acquired the goods had the consumer been fully aware of the nature and extent of the failure;[47] or
   • the goods are substantially unfit for purpose and they cannot easily and within a reasonable time be remedied to make them fit for such purposes;[48] or
   • the goods are unsafe.
3. I find that these criteria have been made out by the Applicant. I find that:

1. a reasonable consumer, fully acquainted with the nature and extent of the failure would not have acquired the car. The failures resulted in the Applicant having to take the car in for review and repair on numerous occasions after only limited use.[49] The repairs did not fix the car. The car remains defective to this day. Further, the defect has caused damage to the engine. This damage and the underlying defect can only be remedied by the replacement of the engine - an expensive and major component.[50] In this instance, the consumer paid a very high price for a brand new, high quality motor car. That being so, a reasonable consumer would be entitled to expect, at worst, only minor teething problems within the early years of the motor car's life;[51] 2. the car is substantially unfit for a purpose for which such goods are supplied owing to the repetitive failures which rendered it unreliable.[52] Furthermore, none of the repairs fixed the problem. The evidence strongly suggests that the Respondents' dealers never correctly diagnosed the problem. Accordingly, the failure was such that it could not easily, and within a reasonable time, be remedied to make it fit for purpose;[53]

1. finally, I accept Mr Dunn's expert opinion that the failure rendered the car unsafe owing to it being liable to sudden and catastrophic engine failure.

1. I find, on the evidence, that Mrs Morphy validly rejected the motor car by letter from her solicitors addressed to the Supplier, dated 22 December 2016.[54] Mrs Morphy confirmed this rejection of the motor car by a further letter from her solicitors to the Supplier dated 1 August 2017.[55] Notably, this letter was sent after being told by the solicitors for the Importer that the motor car had been fixed and was now operating according to the manufacturer's specifications.[56]

1. The consumer must reject the goods and seek a refund prior to the expiration of the "rejection period". The rejection period is defined under s. 262 of the ACL to mean the period, from the time of the supply of the goods to the consumer, within which it would be reasonable for the relevant failure to become apparent.
2. The "relevant failure" under this definition is not solely the existence of or manifestation of the defect in the goods. The "failure" is the failure to comply with the consumer guarantee and it may take some time for a consumer to be able to ascertain that the defect in the goods results from the failure of a supplier to comply with the consumer guarantee. Accordingly, in Nesbit v Porter [2000] NZLR 465 at [40], the New Zealand Court of Appeal accepted that this period must also include some allowance for the consumer to "become properly informed about the nature of the defect" and to "consider an appropriate decision, whether or not to return the goods."
3. Furthermore, on this point, in Vautin v BY Winddown Inc. (No. 4), Derrington J examined the concluding words of the definition, namely, "become apparent". His Honour concluded that these words established that the test under s. 262 required:[57]

"... a sufficiently high level of certainty in relation to the knowledge of the relevant failure including its nature and extent and what it will cost to remediate it. [Such that]... it follows that if there exists doubt about the consequences of the defect in an item and, therefore, the cost of repairing it, the failure of the statutory guarantee has not become apparent."

1. It is immaterial that, at the time of the rejection, Mrs Morphy was not fully aware of the extent or precise nature of the failure.[58] For, it cannot be said that a consumer may not take the benefit of remedies under the ACL in regard to matters that subsequently establish that the failure was a major failure. This is so, firstly, because the underlying defect was present in the motor car at the time of supply and, secondly, because the test under s.54 is an objective one based on a reasonable consumer, "fully acquainted with the state and condition of the goods (including any hidden defects in the goods) ..."
2. Further, it should be noted that the Respondents did not inform the consumer that the mechanics at Melbourne City Land Rover had discovered that the coolant was leaking into the engine oil system. That is to say, that the multiple failures stemmed from an internal leak, such as might be expected from a porous engine head.
3. This is significant because, in Cooper v Ashley & Johnson Motors Ltd, [59] the District Court of Auckland held that the supplier has an on-going obligation to assist the consumer to detect any latent defects. Judge Hubble held:

"In my view, it is a continuing obligation of the supplier to provide a consumer with sufficient information on which to make an informed decision. In other words, if a problem of "substantial character" exists at the time of the sale, the dealer is prima facie responsible for the diagnosis of that problem and to fully inform the consumer accordingly. If the dealer abdicates that responsibility to the purchaser then he cannot be heard to complain, in my opinion, if the purchaser takes a long time to carry out the diagnosis himself." [60]

1. Further, at the time of the rejection, the motor car remained under a three year/100,000 kilometre manufacturer's warranty. In determining if the rejection period has ended, the Tribunal is not bound by the warranty period given by an express manufacturer's warranty. Nevertheless, the express warranty period is relevant evidence of the expected period of largely problem-free use of goods. In this case, all the failures have occurred shortly within the manufacturer's warranty period and the rejection was made well before the expiration of that period.
2. On the facts of this case, I find that the true nature of the "relevant failure" only became "apparent" after several repeated failures and after the consumer went to the extent of engaging an expert automotive and mechanical engineer to examine the car, at a cost to her of about $6,500.
3. I note that, in contrast, the authorised Land Rover repairer, Rex Gorell was unable to diagnose the defect at all, while the other authorised repairer, Melbourne City Land Rover, found the fault but misdiagnosed the source, and even that was not until August 2017. Furthermore, at that time, the Importer's lawyers advised the Applicant that the motor car was operating in accordance with the manufacturer's specifications.
4. Taking all these matters into account, I am satisfied that the Applicant rejected the motor car within the "rejection period" under s.262.

1. Section 263(2) of the ACL provides that the consumer must return the rejected goods to the supplier unless the goods have already been returned to or retrieved by the supplier or the goods cannot be returned or transported without significant cost to the consumer by reason of, inter alia, the nature of the failure or the size of the goods.[61]
2. This provision requires the physical return of the goods unless that cannot be accomplished without incurring significant costs. The notional transfer of title by the consumer to the supplier, for example by the handing over of the keys, is not sufficient.[62]
3. Mrs Morphy testified that the costs of transporting the motor car to Townsville, Queensland, would be in the order of $2,400 to $2,600. That evidence was not challenged. It follows that the operation of s.263(2) had the effect that Mrs Morphy was not required to physically return the motor car to the Supplier and that, consequently, the Supplier was required to collect the motor car within a reasonable time and at its expense.[63]
4. Accordingly, I find that, pursuant to s.263(2), the Applicant was not and is not required to return the motor car to the Supplier.
5. This view is confirmed by the Federal Court's decision in Ferraro v DBN Holdings Australia Pty Ltd. [64] In that case the Court held that under s. 263(2)(b) of the ACL a Nissan Skyline motor car could not be returned to the supplier without significant cost because of the size of the goods.[65]

(vii) The Importer is deemed to be the Manufacturer

1. As noted above, s. 7 of the ACL defines the term "manufacturer" to include a person who imports goods into Australia, if that person is not the manufacturer of the goods and, at the time of importation, the manufacturer did not have a place of business in Australia.
2. The Applicant alleged that the Importer imported the motor car into Australia and, at that time, the manufacturer did not have a place of business in Australia.
3. The Importer did not file Points of Defence in this matter despite an order by the Tribunal that it do so.[66] When stating its defences, at the commencement of the hearing, it did not address this issue. The failure to traverse this allegation may, in itself, constitute an implicit admission.[67] In any event, I note that in an interlocutory hearing, the Importer expressly conceded that it was the "deemed manufacturer for the purposes of the Australian Consumer Law."[68]
4. By reason of the matters set out above, I find that the Importer has conceded that it falls within the definition of "manufacturer" under s. 7 of the ACL and may be liable in damages to the Applicants under s. 271 of the ACL for non-compliance with the consumer guarantee provided by s.54 of the ACL and thereby also liable to indemnify the Supplier under s. 274.

1. The Applicant has rejected the motor car. She seeks to return the motor car to the Supplier and obtain a full refund of the purchase price, namely, $235,074.08. In those circumstances the Supplier is compelled to provide this remedy by virtue of s. 263(4) of the ACL.
2. In the alternative, the Applicant has sought a new Range Rover SDV 8 Autobiography pursuant to s. 263(4)(b) of the ACL. However, I note that s. 263(5) provides that if the consumer chooses a refund after rejecting the goods, the supplier is expressly precluded from providing replacement goods to satisfy the requirement of a refund.
3. Having rejected the motor car and elected to obtain a full refund of the purchase price, I find that the Supplier must refund the purchase price.
4. There remains the question of whether the refund sum can be discounted by reason of the fact that the Applicant obtained some limited use and enjoyment from the motor car despite the failure.
5. In Campbell v Caravan & RV Central Pty Ltd [69] the NSWCATCD thought that an allowance of that kind should be made. That case involved the supply of a motorhome to a retiree who planned to tour Australia. Shortly after its purchase, the motorhome suffered repeated failures which, the Tribunal found, constituted a "major failure" for the purposes of s. 259 and s.260 of the ACL. The Tribunal also found that the Applicant had rejected the goods and was entitled to a refund of the purchase price. However, the Tribunal noted that despite the failures suffered by the motorhome, the consumer had travelled some 22,000 kilometres in the motorhome from the date of its purchase. Therefore, the Tribunal considered that the supplier "ought to be allowed a reasonable sum for the (albeit limited) use and enjoyment the Applicant" had of the motorhome. The Tribunal reduced the refund sum by $5,000.
6. This view is at odds with the strict terms of s. 263(4) of the ACL. This sub-section provides that, on the consumer exercising his/her election to reject the goods:

"The supplier must, in accordance with an election made by the consumer:

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

1. an amount that is equal to the value of any other consideration for the goods."

1. I note that sub-section 263(4) is cast in mandatory terms. The election to return the goods, and require a full refund, resides with the consumer and, on that election, the supplier must refund any money paid by the consumer for the goods.
2. Furthermore, the discounting of the refund price has been expressly rejected in a number of decisions. Firstly, in Stephens v Chevron Ltd [70] the District Court of Dunedin held that the Consumer Guarantee Act 1993 (NZ), which is the New Zealand equivalent of the ACL, provided no means for compensating the supplier for the use of the motor car prior to its rejection.[71]
3. In Vautin v B Y Winddown Inc. (No. 4)[72] the Federal Court took a similarly strict view of the requirements of s. 263(4). The Court held that, on the election of the consumer, the supplier must provide a full refund to the consumer. In that case the goods, namely, an ocean going motor vessel had been delivered in March 2012 and used by the consumer until the failure occurred in November 2014. The Federal Court did not discount the refund sum for the consumer's use of the motor vessel over that period. The Court explained this approach by contrasting it with the prior implied terms regime. The Court stated that,

"The new scheme of statutory guarantees in the ACL appears to have abandoned that regime [the implied term regime imposed by the Goods Act] in favour of one which apparently imposes standards of normative behaviour in relation to the quality of goods produced by manufacturers and supplied by suppliers."[73]

1. Accordingly, I find that the applicant is entitled to a full refund of the purchase price from the Supplier.
2. I consider, however, that the approach adopted by the NSWCATCD in the motorhome case is applicable to the assessment of damages for consequential losses.[74]

1. The ACL provides consumers with remedies directly against manufacturers for a failure to comply with the guarantee of acceptable quality. These remedies permit the recovery of damages. The ACL s.272 permits the recovery of two forms of damages against manufacturers. These are:
   • damages for the reduction in the value of goods [s.272(1)(a)]; and
   • damages, for losses that are reasonably foreseeable losses flowing from the non-compliance with the guarantee [s. 272(1)(b)].
2. In relation to the first category of damages, I note that the Applicant did not allege that the major failure rendered the motor car worthless. Rather the Applicant's evidence was that the non-compliance with the consumer guarantee reduced the value of the motor car from its purchase price of $235,074.08 to $101,000, a loss of $134,074.
3. I have found that the Applicant became entitled to reject the motor car and that she did so in accordance with the requirements of s. 262 and s. 263. On notification of the rejection, title in the motor car reverted to the Supplier [75] and the Applicant became entitled to a full refund of the purchase price. That being so, the Applicant cannot recover damages from the Importer for the reduction in value of the motor car because she has not sustained that loss. Accordingly, I find that, as the Applicant is entitled to recover the full purchase price, she has no loss under s. 272(1)(a).[76]
4. I conclude that, damages under this subsection may only arise if the consumer has not exercised their right to reject the goods or if that right of rejection has been lost. I will make no order against the Importer under s.272(1)(a).
5. Damages that may be recoverable under the second category [s. 272(1)(b)] will be considered below, together with the liability of the Supplier for such losses.

1. A consumer may, in addition to the remedies under s. 263(4) and s. 272(1)(a), recover damages for any loss resulting from the failure to comply with the consumer guarantee, provided that such loss was reasonably foreseeable. This form of consequential loss may be recovered from the supplier and the manufacturer/importer.[77] The Applicant has claimed several items of consequential loss (see the table sub-joined to paragraph 19 above). I will consider each in turn.
2. On road costs - $7,807.40. These costs include the transfer fee and stamp duty charge. The Applicant contended that these costs had been thrown away by reason of the non-compliance with the guarantee.
3. The First Respondent took no issue with this claim.
4. The Second Respondent contended that these charges were included in the sale price and, therefore, if the purchase price was refunded, the consumer would be compensated for these expenses and no further allowance should be made.
5. On the evidence, the Second Respondent's contention is plainly wrong. The on-road charges were not included in the contract price.[78] Nevertheless, I consider that these charges were not entirely thrown away. The Applicant received some benefit from the motor car, even if that benefit was seriously diminished by the multitude of "failures". I note that the car travelled about 19,000 kilometres prior to the rejection. Having regard to the mileage travelled, I consider that the motor car might be expected to be retained for eight years by the Applicant under normal operating conditions. Taking this assessment into account and given the use received by the Applicant, I consider that this item should be reduced by 12%. I will allow $6,870.
6. Costs of fitting the "Tow-Pro" thrown away - $654.50. Neither of the Respondents took issue with this claim. The loss of the motor car, on its rejection, includes the loss of this item. I will allow this item in full as no substantive benefit was received.[79]
7. The cost of the use of a replacement motor car - $13,719. The Applicant assessed this loss by deducting the current trade value of the Holden Colorado ($33,000) from its purchase price ($46,719). I understood the Applicant to contend that this expense was a necessary, stop-gap measure, forced upon her by the failure of the motor car to comply with the consumer guarantee. As such, the Colorado was not intended as a permanent replacement.[80]
8. The Respondents took no issue with this claim. For these reasons, I will allow this item.
9. Costs of the Expert to diagnose the fault - $6,509. The Respondents took no issue with this item. I consider this class of costs to be both reasonably foreseeable and directly consequential upon the Respondents' non-compliance with the consumer guarantee. I note that Derrington J. in Vautin v BY Winddown Inc. (No. 4) expressly held that "the costs of attempting to ascertain the defects in the goods" would sound in damages under s.259(4).[81] Accordingly, I will allow these costs in full.
10. Costs of returning the motor car - $2,500. By reason of the terms of the orders set out above, this loss does not arise.
11. Costs of maintaining the motor car's registration after its rejection by the Applicant - $686.40.[82] This matter was not included in the "Particulars" of loss subjoined to paragraph 17 of the Applicant's Amended Points of Claim filed in July 2018. No formal application was made by the Applicant to further amend the Amended Points of Claim to include this item. Nevertheless, the Respondents were given the opportunity to make submissions in relation to the claim. They both declined to do so.
12. I note that, once the rejection is notified to the supplier, property in the goods reverts to the supplier, irrespective of whether the rejection has been accepted or not.[83] This may seem to sever the chain of causation as, on notice of the rejection, the legal risk to maintain the motor car passed to the Supplier. However, I also note that, at no time, did the Supplier or Importer acknowledge their liability to the Applicant. Neither took possession of the motor car for the purpose of maintaining it pending the resolution of this proceeding. They left it in the possession of the Applicant for her to maintain and did not respond to her requests as to where she could return the motor car. In my view, registration expenses constitute a reasonable maintenance cost in those circumstances[84]. I will allow $686.40.
13. I find that the Applicant's claim for consequential loss is proved in the total sum of $21,929.90. I further find that pursuant to the statutory framework set out in s.263(4) and s. 272(1)(b) the Supplier and the Importer are jointly and severally liable for this loss.

1. The Applicant claims interest under s. 259(4) of the ACL or s. 184(4) of the Australian Consumer Law and Fair Trading Act 2012 at the penalty rate[85] (10%) as from the date of issuing the proceedings (15 August 2017) to the date of trial (12 September 2018) on the balance of the following sums:
   • The purchase price refund - $235,074.08;
   • The on-road costs - $6,870.00;
   • The cost of the tow-pro - $654.50

1. This claim was not actively contested by the Respondents.
2. The purpose of awarding interest is to compensate the Applicant for the loss or detriment which she has suffered by being kept from her money during the period from the commencement of the proceedings to the date of judgement.[86] The award of interest may also serve the purpose of encouraging the early resolution of litigation.[87] The Tribunal has the power to award a rate of interest up to the penalty rate prescribed by s. 2 of the Penalty Interest Rate Act 1983[88]. I am mindful that the rate of interest should be compensatory and not a penalty. However, the rate prescribed by s. 2 of the Penalty Interest Rate Act 1983 is the only compensatory rate that has been advanced and it was not contested. Therefore, I see no reason why a lesser rate should be applied, particularly as the Applicant only seeks interest from the date of the commencement of the action to the date of the hearing and not to the date of judgment.
3. I consider that the Applicant's method of calculation falls within the principles elucidated in the Johnson Tiles case. I will allow interest in the sum of $26,187.35 in accordance with the power granted to the Tribunal under s. 184(4) of the Australian Consumer Law and Fair Trading Act 2012.

1. I find that all requirements set out in s. 274 of the ACL have been made out by the Supplier. Further, I accept the evidence that the Supplier obtained no real net profit from the supply of the motor car to the Applicant.
2. Given these findings, it is appropriate to make an order pursuant to section 274 of the ACL, to require the Importer to indemnify the Supplier to the full extent of the Supplier's liability to the Applicant. This includes any order that may be made as to costs.[89]

1. The parties are entitled to be heard on the question of costs.

1. The orders set out above accord with findings contained within these written reasons.

[2] Document 65 and 81 & Points of Defence of First Respondent paragraph 1

[4] The term "goods" includes motor cars - s. 2 ACL definition

[5] See ACL s. 54(2)

[6] See ACL s. 54(3)

[13] Under s. 272(1)(a)(i) of the ACL

[14] The ACL(Vic.) [the ACL] applies within and outside Victoria and applies, inter alia, to contracts made outside Victoria for the supply of goods to a person ordinarily resident in Victoria. See s. 5(1), s. 5(3)(d)(i) and s.12

[16] See Document 2 for statements contained in paragraph 28 (b) (c) & (d)

[27] Mr Dunn, in his second report, amended this figure to 10 litres, after further testing, see paragraph 49 below.

[31] See ACL s. 3 definition of consumer

[32] See Codelfa Construction Pty Ltd v State Rail Authority NSW (1982) 149 CLR at 352

[33] See the joint judgment of French CJ, Nettle and Gordon JJ in Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104; [2015] HCA 37 at [48]

[34] See Camden Nurseries Pty Ltd v Aussie Growers (Aust.) Pty Ltd [2017] NSWC 1770 - on the evidence, the common intention of Mr & Mrs Morphy was to give only an outward impression to the finance company that there was a contract of supply with Winter & Taylor

[35] This has been confirmed by NZ case of Norton v Hervey Motors Ltd [1996] DCR 427

[36] See Medtel Pty Ltd v Courtney [2003] FCAFC 151; (2003) 130 FCR 182 at [64] and [70].

[37] [2017] NSWSC 149 at [132].

[38] Norton v Hervey Motors Ltd [1996] DCR 427

[39] Campbell v Caravan & RV Central Pty Ltd [2016] NSWCATCD 90 at [65]

[40] [2009] NZHC 2631; [2009] 2 NZLR 830

[41] See also Campbell v Caravan & RV Central Pty Ltd [2016 NSWCATCD at [71]

[42] See ACL s. 54(3); see also Contact Energy v Jones [2009] NZHC 2631; [2009] 2 NZLR 830 at [95] where Millar J adopted the view of Ormond LJ in Cehave NV v Bremer Handelsgesellschaft mbH [1976] QB 44 at 80:

"It is a composite quality comprising elements of description, purpose, condition and price. The relative significance of each of these elements will vary from case to case according to the nature of the goods in question and the characteristics of the market that exist for them."

[43] See paragraph 28 above and Documents 2 & 51

[44] In Vautin v BY Winddown Inc (No 4) [2018] FCA 426 at [164] the Federal Court considered that: "The manner vessels of this nature were held out to potential purchasers was important in relation to the expectations of a reasonable consumer."

[45] See Campbell v Caravan & RV Central Pty Ltd [2016] NSWCATCD 91; in this instance the motor car was rejected by Mrs Morphy after it had travelled approximately 19,000 kilomteres.

[49] On the evidence of the applicant the car suffered a failure on at least seven occasions within the first nine months.

[50] See Safi v Heartland Motors Pty Ltd [2016] NSWCATAP 80 at [104] where the Appeal Panel found that a Jeep motor car purchased for $55,000 was an "expensive motor car" and a reasonable consumer would regard such a motor car with a defective transmission as not of acceptable quality; and at [108] where the Appeal Panel held that where the motor car's transmission had to be replaced, this constituted a "major failure".

[51] On this point, see the Tribunal's findings in Australian Rong Hua Fu Pty Ltd v Ateco Automotive [2015] VCAT 756 at [42]

[52] See also the findings under paragraph 69 above.

[53] See Prestige Auto Traders Pty v Bonnefin [2017] NSWSC 149 where the court held that a consumer was entitled to reject a second-hand BMW motor car that had repeated coolant leaks and was not remedied after three attempts.

[58] See Cary Boyd v Agrison Pty Ltd [2015] MVC

[59] [1997] DCR 170; NZDCR Lexis 19

[60] Cooper v Ashley & Johnson Motors Ltd [1997] DCR 170; NZDCR Lexis 19 at 24-25

[62] Vautin v B Y Winddown Inc. (No. 4) [2018] FCA 426 at [285]

[63] Vautin v B Y Winddown Inc. (No. 4) op cit. (above) at [286]

[64] [2015] FCA 117 at [22]

[65] See also Cary Boyd v Agrison Tractors Pty Ltd [2015] MVC at [122], [126] and [127] where the Court held that a tractor could not be returned from a consumer in Tasmania to a supplier in Victoria because of the significant costs, namely, $1396.

[67] See Bullen & Leake and Jacobs_, Precedents of Pleadings_, 12th Edition p. 77

[68] See exhibit CM-1 to the affidavit of Craig Mac Dougall sworn 11 September 2018

[69] [2016] NSWCATCD 90 at [89]

[70] [1996] DCR 1

[71] See also S.G. Corones, The Australian Consumer Law (2nd edition, The Law Book Co.) at [15.80] see also Tokeley, Consumer Law in New Zealand (Butterworths; Wellington, 2000) at 2.25

[72] [2018] FCA 426 at [286]

[73] [2018] FCA 426 at [292]

[76] See Vautin v B Y Winddown Inc. (No. 4) [2018] FCA 426 at [339]

[79] In Vautin v YB Winddown Inc. (No. 4) [2018] 426 the Federal Court allowed the costs of fitting items on the motor vessel prior to its rejection. See discussion at [327], [328] & [329]

[80] See Adams v J. & D's Used Cars Ltd (1983) 26 Sask R 40

[81] [2018] FCA 426 at [293]

[84] See also Ferraro v DBN Holdings Aust. Pty Ltd [2015] FCA 1127 where Besanko J of the Federal Court at [18] held that losses incurred in connection with financing, insuring, transporting and inspection of the motor car were reasonably foreseeable consequences of the non-compliance with the consumer guarantee; and see also Bennett v Chequered Flag Motors & Jaguar Land Rover Australia Pty Ltd [2017] VCAT 1671 at [39]

[85] This rate of interest is set pursuant to s. 2 of the Penalty Interest Rate Act 1983

[86] Grancelis v House [2000] HCA 42; (2001) 201 CLR 321 at 328

[87] See Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (No.3) [2003] VSC 244 at [61]; and Management 3 Group Pty Ltd (in liq) v Lenny's Commercial Kitchen Pty Ltd (No.2) [2012] FCAFC 92; (2012) 289 ALR 275

[88] See s.184(4) of the Australian Consumer Law and Fair Trading Act 2012.

[89] See Vautin v BY Winddown Inc. (No. 4) [2018] FCA 426 at [371]