Spryszynski v Brisbane Auto Group Pty Ltd [2025] QCAT 309

• [1] This matter came before me on 21 March 2025. The Applicant, Peter Spryszynski ('Peter') represented himself. The Respondent, Brisbane Auto Group Pty Ltd ('Brisbane Auto') was represented by Richard Ecclestone ('Rick') On 26 May 2023 Peter, who stated that he was principal of Brisbane Auto.
• [2] Peter filed an application ('Application') in the Tribunal on 2 May 2023 seeking a refund of the purchase monies of $26,000 paid for a 2016 Mini Clubman registration 128EC2 ('Mini') purchased from Brisbane Auto on 24 January 2023. Peter is also claiming some incidental costs.
• [3] I also held a further hearing at the Richlands Magistrates Court on 9 May 2025 where Peter appeared in person. There was no appearance from Brisbane Auto. The subject of this further hearing was Peter's claims for compensation for the additions/repairs/improvements to the Mini.
• [4] Brisbane Auto is a licensed car dealer.
• [5] Pursuant to s 50A of the Fair Trading Act 1989 (Qld) the Tribunal is vested with jurisdiction in relation to motor vehicles in respect to certain actions under the Australian Consumer Law ('ACL'). The parties have not raised any jurisdiction issues regarding the application.
• [6] The background facts of this claim are outlined in a statement attached to the application filed in the Tribunal 2 May 2024. The facts are not in dispute.
• [7] Peter paid $26,000 for the Mini which had travelled 48,795 kilometres. Peter says that he had the Mini serviced and some work undertaken by Mini Garage in Brisbane. This work included repair of a faulty sensor light.
• [8] Peter says in his statement and chronology filed in the Tribunal on 13 December 2023 ('Chronology') that there were some initial issues with the Mini, so he decided to have them repaired by Mini Garage. The details are:

(a) A week after purchasing the Mini, Peter noticed a warning light "check engine". Mini Garage reported that the problem was a faulty oxygen sensor, so he had it repaired at Mini Garage for $300. See attachment 7 to the Chronology.

(b) During the repair of the faulty oxygen sensor a further fault was identified and rather than go through a protracted warranty claim with Brisbane Auto, Peter elected to have the Mini repaired by Mini Garage. Peter says that this is because, in any event, Brisbane Auto would have had to replace it while repairing the engine. The cost of this repair was $4,790. See attachment 8 to the Chronology.

• [9] Peter noticed that the Mini was misfiring on 5 March 2023. Accordingly, Peter returned the Mini to the Mini Garage where Peter was advised that there were issues with the engine of the Mini. Mini Garage advised that a major diagnosis of the engine at a cost of $1,500 was required to identify the problems with the engine.
• [10] After discussions with Brisbane Auto, the Mini was returned to Brisbane Auto on 8 March 2023, along with a copy of the report from the Mini Garage. After further telephone discussions with Brisbane Auto, Peter was advised by Brisbane Auto that a replacement engine was required, and one had been ordered and that it would arrive at the end of the week. That is 24 March 2023.
• [11] On 18 April 2023 Peter sent a letter to Brisbane Auto where Peter gave Brisbane Auto three options regarding the return of the Mini to Peter. See attachment 28 to the Chronology. These options are:

(a) Return the car fixed by the end of week; or

(b) Transport the vehicle to Peter's repairer of choice; or

(c) Provide a full refund for the vehicle.

• [12] On 5 April 2023 Brisbane Auto offered a loan car to Peter. This loan car was collected from Brisbane Auto on 6 April 2023.
• [13] Peter outlines several times that Brisbane Auto promised Peter that the work for the replacement engine would be completed but the Mini was not made available for his collection until 21 April 2023.
• [14] Peter also outlines problems with his collection of the Mini on 21 April 2023. Peter says that on 20 April 2023 he was initially advised by Brisbane Auto that the Mini could be collected from Brisbane Auto at its Eagle Farm premises in Brisbane on 21 April 2023. On the morning of 21 April 2023 Peter received a call from Brisbane Auto that the Mini would not be delivered to its premises in Brisbane and Peter could collect the Mini from the premises of the repairer on the Gold Coast and leave the loan car with the repairer.
• [15] Peter subsequently collected the Mini from the repairers on 21 April 2023 and after driving the Mini approximately 2 kilometres the Mini exhibited the same problems as previously. That is misfiring engine and the engine going into limp mode. He then returned the Mini to the repairer.
• [16] Peter called Brisbane Auto and advised them what had occurred, and he requested a full refund. He was requested by Brisbane Auto to make a written request for a refund. On 18 April 2023 Peter wrote to Brisbane Auto making a request for a refund plus compensation for the improvements to the Mini. See attachment 28 to the Chronology.
• [17] Subsequent interaction took place between the parties and Peter filed the Application on 2 May 2023.
• [18] On 26 May 2023 Peter returned the loan vehicle at the request from Brisbane Auto.
• [19] Peter made an application in the Tribunal on 2 May 2023 for an interim order that the Mini remain in the possession of Brisbane Auto pending resolution of these proceedings. On 25 May 2023 this application was refused.
• [20] On 29 May 2024 Peter returned the loan vehicle to Brisbane Auto and collected the Mini. Peter says that he does not have confidence in the Mini and he says that he has only driven the Mini approximately 200 kilometres since taking possession of the Mini.
• [21] Brisbane Auto say that the Mini has now been repaired with a replacement engine and the issue on the 21 April 2024 was a faulty warning light. Rick produced a copy of an account dated 19 April 2024 from All Car Tyre and Mechanical for $8,359.75 for the work to install a replacement engine in the Mini. See Exhibit 1. Rick says that the time taken to replace the engine was reasonable and he also says that a loan car was provided to Peter so he would not be inconvenienced.

• [22] The law that applies to these proceedings is Schedule 2 of the Competition and Consumer Act 2010 (Cth). That is the Australian Consumer Law ('ACL'). I outline the relevant sections of the ACL, which are ss 54, 259, 260, 261, 262 and 263.
  1. Guarantee as to acceptable quality

(1) If:

(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

(b) acceptable in appearance and finish; and

(c) free from defects; and

(d) safe; and

(e) durable;

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

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

(a) the nature of the goods; and

(b) the price of the goods (if relevant); and

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

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

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

(4) If:

(a) goods supplied to a consumer are not of acceptable quality; and

(b) the only reason or reasons why they are not of acceptable quality were specifically drawn to the consumer's attention before the consumer agreed to the supply;

the goods are taken to be of acceptable quality.

(5) If:

(a) goods are displayed for sale or hire; and

(b) would not be of acceptable quality if they were supplied to a consumer;

the reason or reasons why they are not of acceptable quality are taken, for the purposes of subsection (4), to have been specifically drawn to a consumer's attention if those reasons were disclosed on a written notice that was displayed with the goods and that was transparent.

(6) Goods do not fail to be of acceptable quality if:

(a) the consumer to whom they are supplied causes them to become of unacceptable quality, or fails to take reasonable steps to prevent them from becoming of unacceptable quality; and

(b) they are damaged by abnormal use.

(7) Goods do not fail to be of acceptable quality if:

(a) the consumer acquiring the goods examines them before the consumer agrees to the supply of the goods; and

(b) the examination ought reasonably to have revealed that the goods were not of acceptable quality.

1. 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.

(5) Subsection (4) does not apply if the failure to comply with the guarantee occurred only because of a cause independent of human control that occurred after the goods left the control of the supplier.

(6) To avoid doubt, subsection (4) applies in addition to subsections (2) and (3).

(7) The consumer may take action under this section whether or not the goods are in their original packaging.

1. When a failure to comply with a guarantee is a major failure

(1) 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

(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.

(2) 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 2 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.

Note: The multiple failures do not need to relate to the same guarantee.

(3) Subsection (2) applies regardless of whether the consumer has taken action under section 259 in relation to any of the failures.

1. How suppliers may remedy a failure to comply with a guarantee

If, under section 259(2)(a), a consumer requires a supplier of goods to remedy a failure to comply with a guarantee referred to in section 259(1)(b), the supplier may comply with the requirement:

(a) if the failure relates to title - by curing any defect in title; or

(b) if the failure does not relate to title - by repairing the goods; or

(c) by replacing the goods with goods of an identical type; or

(d) by refunding:

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

(ii) an amount that is equal to the value of any other consideration provided by the consumer for the goods.

1. 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:

(a) the type of goods; and

(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.

1. Consequences of rejecting goods

(1) This section applies if, under section 259, a consumer notifies a supplier of goods that the consumer rejects the goods.

(2) The consumer must return the goods to the supplier unless:

(a) the goods have already been returned to, or retrieved by, the supplier; or

(b) the goods cannot be returned, removed or transported without significant cost to the consumer because of:

(i) the nature of the failure to comply with the guarantee to which the rejection relates; or

(ii) the size or height, or method of attachment, of the goods.

(3) If subsection (2)(b) applies, the supplier must, within a reasonable time, collect the goods at the supplier's expense.

(4) The supplier must, in accordance with an election made by the consumer:

(a) refund:

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

(ii) an amount that is equal to the value of any other consideration provided by the consumer for the goods; or

(b) replace the rejected goods with goods of the same type, and of similar value, if such goods are reasonably available to the supplier.

(5) The supplier cannot satisfy subsection (4)(a) by permitting the consumer to acquire goods from the supplier.

(6) If the property in the rejected goods had passed to the consumer before the rejection was notified, the property in those goods revests in the supplier on the notification of the rejection.

• [23] The Mini was inspected by Robert Haigh ('Haigh') on 16 October 2023 who is an independent motor vehicle expert appointed by the Tribunal. Haigh provided a report dated 16 October 2023 and gave evidence at the hearing. Haigh stated that he drove the Mini for a short distance and carried out tests on the engine. Haigh's report states that there may have been some issues with the original engine and a warning light when the Mini was purchased by Peter. Haigh says that he could not detect any problems with the Mini's engine when he inspected, and road tested the Mini.
• [24] Therefore, I find that the engine has been replaced and that any problems with the engine have been rectified. Peter accepts this is the case but says that pursuant to the provisions of the ACL he properly terminated the contract and requested a refund in his email to Brisbane Auto dated 21 April 2023. See attachment 29 to the Chronology.
• [25] The critical date in this dispute is 21 April 2023. On this date Peter was advised by Brisbane Auto that the Mini was available for collection from the repairer on the Gold Coast. On that date Peter collected the Mini and after travelling some 2 kilometres the engine in the Mini started misfiring and he returned the Mini to the repairer. It was on this day that Peter contacted Brisbane Auto and requested a refund of the Mini. He was advised to make a written request to Brisbane Auto. Peter then sent the request to Brisbane Auto. See attachment 29 to the Chronology.
• [26] Brisbane Auto have refused the request for a refund on the basis that the engine in the Mini has been replaced and there are no more issues with the engine. Brisbane Auto say that the work to replace the engine was undertaken in a reasonable time and a loan vehicle was supplied to Peter.

• [27] Pursuant to s 54 of the ACL Brisbane Auto guarantees that the Mini is of acceptable quality. Section 54(2) of the ACL refers to a reasonable consumer fully acquainted with the state and condition of the goods. This guarantee is subject to the matters contained in s 54(3) of the ACL. That includes matters such as the Mini is a second-hand vehicle and the purchase price of the Mini was $26,000.
• [28] The problems with the engine began prior to 5 March 2023 but Peter chose to have the issues dealt with by Mini Garage rather than inform Brisbane Auto. It was at this stage that Brisbane Auto were informed that there may be some issues with the engine. On advice from Brisbane Auto the Mini was returned to the premises of Brisbane Auto at Eagle Farm on 8 March 2023. After some interactions between the parties Peter was informed that the engine would have to be replaced and this work should be available on 31 March 2023.
• [29] There were further delays in having the engine replaced and eventually Peter was offered a loan vehicle from Brisbane Auto which Peter collected on 6 April 2023.
• [30] There were further delays in having the work completed for the replacement engine and there was further interaction between Peter and Brisbane Auto until the advice from Brisbane Auto that he could collect the Mini on 21 April 2023.
• [31] Pursuant to s 259 of the ACL Peter can take action against Brisbane Auto if the guarantee that applies to the sale of the Mini to Peter has not been complied with. I find that Brisbane Auto failed to comply with the guarantee.
• [32] I find that Peter accepted that the failure was not a major failure of the guarantee as outlined in s 259(3) of the ACL because Peter accepted that the defect with the Mini (i.e. defective engine) could be remedied. Peter gave that opportunity to Brisbane Auto.
• [33] I note that Peter uses the words "major failure" in his notices to and correspondence with Brisbane Auto. It is my construction that he was entitled to relief under the provisions of the ACL even though he was referring to an incorrect provision of the ACL. In my view these notices are still valid.
• [34] I find that pursuant s 259(2) of the ACL Brisbane Auto failed to comply with the guarantee because Brisbane Auto failed to have the engine work completed when Peter went to collect the Mini from the repairer on 21 April 2023. At that point after Brisbane Auto initially had promised to have the work on the engine completed by 31 March 2023, there were further delays in having the work on the engine completed.
• [35] The evidence presented by Brisbane Auto does not support a finding that the rectification and replacement of the engine was rectified in a reasonable time. When Peter gave notice to Brisbane Auto on 21 April 2023 no one was aware that the issue with the replacement engine was only a faulty sensor. As far as Peter was aware was that the work to replace the engine was not completed. Brisbane Auto did not respond to Peter's notice of 21 April 2023 until 27 April 2023.
• [36] Therefore, I find that Peter was entitled to reject the Mini on 21 April 2023 pursuant to s 259(2) of the ACL because the problems with the engine were not rectified in a reasonable time. I also note that s 262 of the ACL does not apply to the facts and circumstances of this matter.
• [37] Therefore, I propose making orders for Peter to return the Mini to Brisbane Auto and for Brisbane Auto to refund the purchase price of $26,000 to Peter.

• [38] I note that Peter has been successful in his prosecution of the Application. Peter has also made a claim for his incidental costs and losses. This is possible pursuant to s 259(4) of the ACL. However, a claim is only possible if it was reasonably foreseeable by Brisbane Auto that Peter would suffer such losses or damage by its failure to comply with the guarantee.
• [39] These claims are outlined in Exhibit 2 which was admitted in the Tribunal hearing on 21 March 2025. During the hearing of 9 May 2025 Peter indicated to the Tribunal that if an order was made by the Tribunal for a refund of the purchase price, he did not intend to remove any of the improvements/upgrades, such as the light upgrade or second key from the Mini. I will now comment on these claims.
• [40] Claims outlined in (ii) of Exhibit 2:

(a) Some claims relate to insurance and registration costs. The only period that Peter did not have a loan car, or he could not use his vehicle was from 8 March 2023 to 6 April 2023. Notwithstanding Peter's claim that he still has concerns with the Mini, the evidence from Haigh indicates that there are no problems with the Mini and the issues with the replaced engine have been rectified. Peter could have used the Mini after he retook possession of the Mini and returned the loan car to Brisbane Auto on 29 May 2023. On this basis I cannot allow these claims.

(b) There are further claims for repairs, servicing and mapping another key for the Mini. These repairs and enhancements were undertaken without consultation and the consent of Brisbane Auto. Brisbane Auto may have been able to undertake some of the repairs at a cheaper price than Peter or under a possible warranty claim. The enhancements are really a matter for Peter. For example, the Mini was sold with one key, without driving light upgrades and the scratches on the wheels and Peter was aware of these issues before he purchased the Mini. On this basis I cannot allow these claims.

(a) These claims relate to Peter's time. Peter did not employ any other person to undertake these tasks. On this basis I cannot allow these claims.

(b) However, Peter would have expended a substantial amount in fuel, especially for his trip to the Gold Coast, to collect the Mini on 21 April 2023. Therefore, I will allow a nominal amount of $200 for the cost of this fuel.

(a) Peter has made claims for travel costs. For the same reason outlined in paragraph [41] I cannot allow these claims.

(b) The other claims relate directly to outlays, such as postage, filing fees and stationary expenses, that Peter has expended in the prosecution of his claim. He has been successful in this claim, and I find that these costs and losses were reasonably foreseeable. Brisbane Auto should have known that a wrongful rejection of the refund request from Peter may result in legal proceedings and Peter may have to pay for expenses to initiate and prosecute any legal proceedings. This includes the $600 paid to Haigh for his report which was ordered by the Tribunal.

(c) These claims are:

(i) Tribunal filing fee- $367

(ii) Postage costs - $11.19, $29.10 and $46.30.

(iii) Stationery- $66.86

(iv) Fuel - $200

(v) Independent assessor's Cost - $600

(d) The total for these claims is $1,320.45

• [43] The total claim that I will allow is $27,320.45.