Muir v Cheap Car Co Pty Ltd [2025] QCAT 332

• [1] The applicant is Shonal Muir. The respondent is The Cheap Car Co Pty Ltd ACN 121 145 266.

• [2] The applicant has brought an application in the Tribunal regarding a motor vehicle dispute arising from his purchase of a 2003 Nissan Patrol ST.
• [3] The applicant claims relief pursuant to section 50A of the Fair Trading Act 1989 (Qld) ("FTA"). That provision imports, inter alia, a cause of action pursuant to section 259(4) of the Australian Consumer Law ("ACL"), to recover reasonably foreseeable damages because of a failure by a supplier of goods to comply with a mandatory statutory guarantee of acceptable quality provided by the supplier by the operation of section 54(1) of the ACL.

• [4] The applicant's evidence included exhibit 1, comprising a bundle of documents attached to the filed application. That bundle includes a copy of the written contract, which reveals that the purchase was agreed on 21 October 2023. The vehicle had an odometer reading at the date of purchase of 243,498 km.
• [5] The purchase price was $16,000, of which $8,000 was credited towards the applicant's trade-in of his previous motor vehicle.
• [6] The purchased vehicle also included a statutory warranty pursuant to the Motor Dealers and Chattel Auctioneers Act 2014 (Qld). In the present case, the relevant warranty was a "Class B" warranty under that Act, on the basis that the odometer reading was greater than 160,000 kilometres and the build date of the vehicle was more than ten years before the sale date.
• [7] Prior to collecting the vehicle on 21 October 2023, the applicant had inspected the vehicle on 18 October 2023. At that time, he had noted that the vehicle appeared to have two oil leaks under the body, and that the oil pressure light was on. He was advised by a salesperson, Andrew, that the oil leaks would be repaired before delivery.
• [8] The applicant gave evidence that, after leaving the respondent's premises at Sherwood in Brisbane to drive to his home in Toowoomba, in the purchased vehicle, the oil pressure warning light came on during the trip home.
• [9] After arriving in Toowoomba, and having noted the oil pressure warning light whilst travelling, the applicant arranged for the vehicle to be inspected by his mechanic, Toowoomba Mechanical. Exhibit 1 includes a report dated 26 October 2023 on a safety inspection and check of the vehicle by Toowoomba Mechanical which noted:
  • moisture in right hand front park light;
  • oil pressure light on;
  • no battery clamp;
  • large section of fan shroud missing;
  • inner cooler mount cracked;
  • rear wiper rubber;
  • A-C compressor leaking oil;
  • front radius arm bushes completely worn;
  • steering dampener leaking;
  • major engine oil leaks including turbo oil drain;
  • rear shock bushes;
  • no head rests for third row seats;
  • right hand front seat belt does not retract correctly;
  • tyres oversize by 1 inch in diameter;
  • transmission shifts harshly;
  • light bar not operating.
• [10] Exhibit 1 also includes several photographs taken by Toowoomba Mechanical, which appear to indicate the oil pressure light illuminated, various oil leaks including around the sump, and oil spot marks on a driveway.
• [11] On 1 November 2023, the applicant delivered the vehicle to the respondent for repairs. The applicant lives in Toowoomba and was required to return the vehicle to the respondent's premises at Sherwood, a distance of approximately 104 kilometres.
• [12] The respondent advised the applicant on 18 November 2023 that the vehicle was repaired and available for collection. The applicant collected the vehicle on 20 November 2023, arranging to be driven from Toowoomba to Brisbane in order to do so.
• [13] The applicant gave evidence that, on the same day as he collected the vehicle (20 November 2023), the oil pressure light again lit up on the dashboard while he was driving back to Toowoomba.
• [14] On 21 November 2023, the applicant took the vehicle back to Toowoomba Mechanical for inspection. An invoice/inspection report issued by Toowoomba Mechanical dated 21 November 2023 identifies the following faults:
  • moisture in r/h front park light assembly;
  • oil pressure light on;
  • battery clamp mounted on battery but not secure;
  • inner cooler mount cracked and bracket now missing;
  • rear wiper rubber;
  • A-C compressor leaking oil;
  • major engine oil leaks including turbo oil drain;
  • tyres are oversize by 1 inch in diameter;
  • transmission shifts harshly.
• [15] The bundle of photographs contained in Exhibit 1 includes a photograph dated 20 November 2023 showing the oil pressure light illuminated. Photographs dated 21 November 2023 show additional oil leaks on and around the sump. Further photos dated 23 November 2023 clearly show the repaired sump, including what appears to be the seal between the sump and the engine heavily encased in silicon sealant, through which are obvious oil leaks flowing out of and on to the sump below and, in one instance, dripping on to a person's finger next to the sump. The repairs to the sump appear to have been performed in an untradesman-like fashion, and continue to show significant oil leaks.
• [16] The applicant then wrote again to the respondent on 1 December 2023 complaining that the repairs had not been carried out properly, and stating that he wished to have a new engine supplied and fitted at the respondent's cost.
• [17] By email dated 22 November 2023 the respondent advised that it was "confident all required repairs had been completed satisfactorily" but suggested that the applicant could return the vehicle for further inspection and "further repair" provided that the vehicle was again returned to the premises at Sherwood. It further advised that no replacement vehicle would be provided for any period that the subject vehicle was under repair.
• [18] The applicant then advised the respondent that he was not satisfied with the vehicle, would not be returning the vehicle for further repairs given that the earlier attempted repairs had taken more than 14 days and had not resolved the issues.
• [19] The present application was filed on 18 December 2023.
• [20] Mr Swanson, manager of the respondent, gave evidence that the roadworthiness certificate issued prior to the sale of the vehicle to the applicant had not referred to any oil leaks. He stated that "We've gone off that". Mr Swanson accepted that both reports obtained by the applicant showed significant oil leaks and accepted that the vehicle was leaking oil at the time it was sold to the applicant. He stated "We trust the mechanics to do the right thing. Obviously, they haven't". Mr Swanson also responded to the proposition that the vehicle was not in an acceptable condition when it was sold to Mr Muir, saying "That appears to be the case".

• [21] The application filed identifies the Fair Trading Act 1989 (Qld) section 50A as the applicable legislation.
• [22] Section 50A of the FTA provides that a person may apply for orders under sections 259(2), (3) and (4) of the Australian Consumer Law. Section 54 of the ACL provides a guarantee that goods must be of acceptable quality. The relevant guarantee is set out in section 54 of the ACL. Goods such as a motor vehicle are of acceptable quality if they are:

(a) Fit for all the purposes for which a motor vehicle of the kind sold is commonly used; and

(b) Acceptable in appearance and finish; and

(c) Free from defects; and

(d) Safe; and

(e) Durable.

• [23] Acceptable quality involves all of the above factors, such that if one factor is absent, the goods may not be of acceptable quality.[1] The provision requires an enquiry by the tribunal as to:

(a) What a reasonable consumer,

(b) Fully acquainted with the state and condition of the motor vehicle (including any hidden defects) known at the date of the hearing not necessarily at the point of sale,

(c) Would regard as acceptable having regard to price, nature of the motor vehicle, any representations made about the motor vehicle prior to sale, and any other relevant circumstances pertaining to the supply of the vehicle.

• [24] The time at which the determination of whether or not a motor vehicle is of acceptable quality is made is when it is supplied.
• [25] A major failure of a guarantee as to acceptable quality entitles a buyer to reject a vehicle under section 262 of the ACL. By the application filed the applicant has elected to reject the purchased vehicle and claim damages.
• [26] Section 263 of the ACL requires that if a consumer rejects goods, they must return the goods to the supplier unless, relevantly, the goods cannot be returned, removed or transported without significant cost to the consumer because of the failure to comply with the guarantee to which the rejection relates. I note that the vehicle in question continued to exhibit the faults referred to, including the fault relating to the non-retracting seatbelt which I regard as a significant point of safety. The vehicle remains at the applicant's home in Toowoomba. I am satisfied that returning the vehicle to the respondent's premises cannot be returned without significant cost to the applicant. I note that the applicant has previously returned the vehicle to the respondent for repairs, which were ineffective as set out earlier in these reasons.

• [27] The vehicle in question was not of acceptable quality within the meaning of the ACL, further, I find that the defects in the vehicle amounted to a major failure within the meaning of section 260 of the ACL. In particular, I find that the following defects identified in the application were, taken together, a major failure:

(a) The faulty oil pressure light;

(b) The inappropriately secured battery clamp;

(c) The major engine oil leaks and turbo oil drain; and

(d) The non-retracting front seatbelt.

• [28] I am satisfied that a reasonable consumer would not have purchased the vehicle if they were aware of the nature and extent of the defects identified.
• [29] The applicant claims a total of $22,346.00 damages for breach of the guarantee of acceptable quality pursuant to section 50A of the FTA and section 259(4) of the ACL. That figure comprises:

(a) Refund of purchase price - $16,000.00

(b) Mechanic inspection fees - $266.00

(c) 20 days missed work whilst without a functioning vehicle - $6,000.000

(d) Fuel costs for travelling from Toowoomba to Brisbane - $80.00

(e) Filing fee - $379.50

• [30] I am satisfied that, in addition to the recovery of the purchase price, the applicant is entitled to recover the additional amounts claimed on the basis that it was reasonably foreseeable that the applicant would suffer loss or damage in having the vehicle inspected, travelling to and from Brisbane for repairs, and would be unable to work due to not having a functioning vehicle. The additional losses are recoverable pursuant to section 259(4) of the ACL.

• [31] The respondent is to pay to the applicant the sum of $22,725.50 within 28 days of the date of this order.

[1] Williams v Toyota Motor Corporation Australia Ltd [2022] FCA 344.