1. Based on consideration of the evidence provided I make the following findings:
   • The car was purchased in January 2013. It currently has travelled approximately 20,000 kilometres.
   • The faults described as the flashing drive light, the rear door not closing, the sun glass holder not sitting flush, the handbrake sticking, the incorrect installation of a number plate, the loose car mat and the faulty battery were all identified by the applicants between February and July 2013. All these faults were rectified by the respondent in September 2013.
   • There appears to be a whistling sound when the car accelerates. There is insufficient evidence to assess the volume of this sound and to conclude whether it is a fault with the car.
   • The faults described as a rattling sidestep, faulty stability control light and oil leak were identified by the applicants approximately 12 months after they purchased the car. These faults have not been inspected by the respondent and there is no mechanical evidence in relation to those items.
   • The applicants attended the respondent's premises in August 2013 where work was carried out on the car. They were without their car for approximately 4-5 weeks and were given a smaller car for this period by the respondent.
   • On two occasions, the car would not start due to a fault with the battery.

1. In the absence of any mechanical evidence concerning the whistling sound I am not satisfied that the applicant has proven that this particular issue is a defect or meets the other requirements set out in s. 54(2) of the Act. Similarly, the issues relating to the left side step, the stability control and the oil leak occurred approximately 12 months after the car was purchased. In the absence of any mechanical report I am again not prepared to find that these constitute a defect or the other requirements set out in s. 54(2).
2. However the applicants have identified a number of other faults which have in turn been rectified by the respondent. In my view these clearly constitute defects with the car.
3. I am therefore satisfied that the respondent failed to comply with the guarantee provided by section 54 of the Act.
4. Before purchasing the car, the applicants drove a demonstration model. The evidence of the applicants was that this car was "quiet and smooth".
5. Given that a number of faults were identified by the applicants within approximately 3 weeks of purchasing the car, it is reasonable to assume that the car that they purchased did not correspond with the demonstration model in terms of quality, state or condition.
6. This section makes no reference about whether this failure to correspond in terms of quality, state or condition is minor or significant. On balance I therefore accept that there is a failure by the respondent in respect of the guarantee provided by section 57 of the Act.
7. The next question is whether these failures to comply constitute a "major failure"?
8. While I accept the submission of the respondent that the faults were relatively minor, it seems to me that, given the number of faults, a reasonable consumer may well consider that the vehicle they have purchased may exhibit further faults as time passes and would not have acquired their car in the first place if they had been aware of those faults at the time.
9. I therefore accepted that the failure to comply with the guarantees is a "major failure".
10. The potential remedies available to the applicants are:
    • rejection of the car (subject to the limitations on this set out in section 262)
    • claiming compensation for a reduction in value of the goods. No submissions were made by the applicants in relation to this. Instead they wanted to return the car and obtain a refund.
    • compensation by way of damages for reasonably foreseeable loss suffered as a result of a failure to comply with the guarantees. The applicants claimed $1068 in relation to this.
11. The applicants will not be entitled to reject the car and obtain a refund if any of the limitations referred to in subsections 262 (a) - (d) of the Act are satisfied.
12. The respondents inspected the car briefly and indicated that there was no apparent damage to the car internally or externally.
13. However goods cannot be rejected if the " rejection period" for the goods has ended.
14. This term is defined in ss 262 (2). In this case, the rejection period would start on 18 January 2013 when the car was purchased and would end when it was reasonable to expect the various faults that gave rise to the failure to comply with the guarantee to become apparent.
15. I have already found that the particular faults that gave rise to the failure to comply with the guarantees were identified by the applicant within approximately one month of purchasing the vehicle.
16. The applicants chose not to reject the goods at this time. Instead they waited approximately 4 months to bring those faults to the attention of the local dealership, and a further three months to bring these faults to the attention of the respondent. There is no evidence suggesting that at this time the applicants advised the respondent that they wished to reject the goods. It appears that the first occasion that this arose was when the application was made to this tribunal.
17. The "rejection period" had well and truly lapsed by this time. For the applicants to be able to reject the goods they would have needed to notify the respondent shortly after they became aware of the faults that they intended to reject the car. They did not do this.
18. As the applicants are not entitled to reject the goods the first remedy set out in their application is unavailable. The tribunal cannot order that the car be returned and the respondent refund the purchase price.
19. The second possible remedy is for compensation to be paid for a reduction in value of the goods. As already stated, the applicants did not seek compensation for this and provided no evidence in relation to any reduction in value. I am therefore unable to make any order in relation to this remedy.
20. The third potential remedy relates to damages resulting from a failure to comply with a guarantee. In summary, the applicants claimed time and petrol costs associated with taking the vehicle to the dealership in Ballarat and to the respondents. The total amount claimed is $429.
21. I note that the applicants live a considerable distance from the respondent and I accept that this claim is reasonable. I will allow this amount.
22. The applicants also claimed $300 in relation to the stress and inconvenience suffered as a result of not being able to start the car on two occasions. There is no evidence that they incurred additional costs on these occasions. I think compensation of $100 is reasonable and I will allow this sum.
23. The other aspects of the applicants' claim constitute costs associated with making the application, preparing the case for hearing and attendance at the tribunal. These are effectively costs associated with the proceeding and in my view there are insufficient grounds to award those amounts.
24. In total, I will therefore allow $529 and order the respondent pay this sum to the applicants.
25. Given this conclusion, I will make no order in relation to reimbursement of the applicants' application fee.

[1] 54 Guarantee as to acceptable quality

(a) a person supplies, in trade or commerce, goods to a consumer; and

(b) the supply does not occur by way of sale by auction;

there is a guarantee that the goods are of acceptable quality.

(2) Goods are of acceptable quality if they are as:

(a) fit for all the purposes for which goods of that kind are commonly supplied; and

as a reasonable consumer fully acquainted with the state and condition of the goods (including any hidden defects of the goods), would regard as acceptable having regard to the matters in subsection (3).

(3) The matters for the purposes of subsection (2) are:

(c) any statements made about the goods on any packaging or label on the goods; and

(d) any representation made about the goods by the supplier or manufacturer of the goods; and

(e) any other relevant circumstances relating to the supply of the goods.

[2] 57 Guarantees relating to the supply of goods by sample or demonstration model

(a) a person supplies, in trade or commerce, goods to a consumer by reference to a sample or demonstration model; and

(b) the supply does not occur by way of sale by auction;

(c) the goods correspond with the sample or demonstration model in quality, state or condition; and ...

[3] 259 Action against suppliers of goods

(1) A consumer may take action under this section if:

(a) a person (the supplier) supplies, in trade or commerce, goods to the consumer; and

(b) a guarantee that applies to the supply under Subdivision A of Division 1 of Part 3 2 (other than sections 58 and 59(1)) is not complied with.

(2) If the failure to comply with the guarantee can be remedied and is not a major failure:

(a) the consumer may require the supplier to remedy the failure within a reasonable time; or

(b) if such a requirement is made of the supplier but the supplier refuses or fails to comply with the requirement, or fails to comply with the requirement within a reasonable time - the consumer may:

(i) otherwise have the failure remedied and, by action against the supplier, recover all reasonable costs incurred by the consumer in having the failure so remedied; or

(ii) subject to section 262, notify the supplier that the consumer rejects the goods and of the ground or grounds for the rejection.

(3) If the failure to comply with the guarantee cannot be remedied or is a major failure, the consumer may:

(a) subject to section 262, notify the supplier that the consumer rejects the goods and of the ground or grounds for the rejection; or

(b) by action against the supplier, recover compensation for any reduction in the value of the goods below the price paid or payable by the consumer for the goods.

(4) The consumer may, by action against the supplier, recover damages for any loss or damage suffered by the consumer because of the failure to comply with the guarantee if it was reasonably foreseeable that the consumer would suffer such loss or damage as a result of such a failure.

[4] 260 When a failure to comply with a guarantee is a major failure

A failure to comply with a guarantee referred to in section 259(1)(b) that applies to a supply of goods is a major failure if:

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

[5] 262 When consumers are not entitled to reject goods

(1) A consumer is not entitled, under section 259, to notify a supplier of goods that the consumer rejects the goods if:

(a) the rejection period for the goods has ended; or

(b) the goods have been lost, destroyed or disposed of by the consumer; or

(c) the goods were damaged after being delivered to the consumer for reasons not related to their state or condition at the time of supply; or

(d) the goods have been attached to, or incorporated in, any real or personal property and they cannot be detached or isolated without damaging them.

(2) The rejection period for goods is the period from the time of the supply of the goods to the consumer within which it would be reasonable to expect the relevant failure to comply with a guarantee referred to in section 259(1)(b) to become apparent having regard to:

(b) the use to which a consumer is likely to put them; and

(c) the length of time for which it is reasonable for them to be used; and

(d) the amount of use to which it is reasonable for them to be put before such a failure becomes apparent.