Stevens v James Frizelles Automatic Group Pty Ltd t/as Sunshine Kia [2025] QCAT 196

s 3, s 54, s 236, s 259, s 260, s 262, s 263

Fair Trading Act 1989 (Qld), s 50A, s 50C

Queensland Civil and Administrative Tribunal Act 2009 (Qld) (Qld), s 10, s 74, s 83, s 102

Cary Boyd v Agrison Pty Ltd [2014] VMC 23

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

Haisman v Drive (Aust) Pty Ltd [2020] QCAT 44

Medtel Pty Ltd v Courtney [2003] FCAFC 151; (2003) 130 FCR 182

Morphy v Beaufort Townsville Pty Ltd [2018] VCAT 1520

Vautin v BY Winddown, Inc (formerly Bertram Yachts) (No 4) [2018] FCA 426

James Frizelles Automatic Group Pty Ltd trading as Sunshine Kia represented by Fraser Perrin

• [1] Ms Astacia Stevens ('the Applicant') entered into a contract to purchase a 2022 Kia Carnival Platinum 2.2 litre eight speed eight seater ('the Motor Vehicle') from James Frizelles Automatic Group Pty Ltd trading as Sunshine Kia ('the Respondent') on 27 October 2021. The Applicant took possession of the Motor Vehicle on 22 June 2022.
• [2] On 19 February 2024, the Applicant filed in the Tribunal an Application - Motor Vehicle Dispute ('the Application') seeking relief under Schedule 2 to the Competition and Consumer Act 2010 (Cth) (the Australian Consumer Law) ('ACL').

• [3] The evidence before the Tribunal included an offer of settlement from the Respondent and the Applicant's response. Evidence of anything said or done in an attempt to settle a matter is, in general, not admissible.[1] The Tribunal gave the parties the option of adjourning the hearing and allocating another Member but both parties consented to the hearing going ahead. The Tribunal heard the matter but disregarded all evidence pertaining to settlement negotiations.

Respondent's submissions received on 15 April 2025

• [4] During the hearing, the Respondent referred to documents it had submitted on 15 April 2025. The Applicant had not received those documents and made an application for them to be inadmissible. The Applicant argued the Respondent had many opportunities to provide their evidence and/or submissions but did not do so, the Respondent had not complied with the Tribunal's Directions, and it was another example of the Respondent manipulating the court process.
• [5] The Tribunal notes that on 24 July 2024, the Respondent was directed to file in the Tribunal and give one copy to the Applicant 28 days after the date the motor vehicle's assessor report had been email to them, amongst other things:

1. The statements from each witness for Respondent to give evidence at the hearing;
2. Any documents referred to in a further statement of evidence must be identified, explained and attached to the appropriate witness statement.

1. No party will be allowed to present any evidence at the hearing that is not contained in the statements without justifying the need for additional evidence to the Tribunal.

• [6] The Applicant and the Respondent were emailed the motor vehicle's assessor report on 3 December 2024. The Applicant was given similar directions to file in the Tribunal and give one copy to the Respondent statements and/or evidence 14 days after the date the motor vehicle's assessor report had been emailed. The Applicant provided to the Tribunal and the Respondent a document titled "Victim Impact Statement and Independent Vehicle Inspection Summary" on 9 December 2024. However, the Respondent failed to file further documentation until 15 April 2025.
• [7] On 15 April 2025, the Respondent filed a one page submission with attachments A to E in the Tribunal. Attachments A and D contained evidence that had already been filed and Attachment E contained an email from the Applicant to numerous recipients, including Members of Parliament, titled "Urgent Need for Reform: How Kia Motors and Frizelles Kia Exploited My Family and a Broken System." That email outlined the Applicant's experiences, the deficiencies in the law, courts and regulatory bodies to obtain substantive relief and a request to investigate the Respondent and strengthen consumer protections. Attachment B was evidence of the Applicant paying a $1,000 deposit on 27 October 2021 and Attachment C was evidence of the Applicant paying the amount of $73,330.01 on 9 June 2022.
• [8] Most of the Respondent's submissions and/or evidence filed in the Tribunal on 15 April 2025 did not contain new evidence that was relevant to the Application. However, Attachments B and C did contain new evidence of the Respondent's accounts indicating what monies were received from the Applicant and when. Those documents are relevant, and the Tribunal accepts the Respondent should have provided them sooner. Likewise, the Tribunal accepts the Respondent should have provided their relevant submissions sooner. However, the Tribunal is not satisfied that admitting the Respondent's one page submission and Attachments B and Attachment C is prejudicial to the Applicant. Given the material contained in Attachments A and D were already before the Tribunal, Attachment E did not contain any new information relevant to the Application, the Applicant continued to file documents until February 2025 and the Applicant provided new evidence during the hearing about the amount and mode of payment to the Respondent, the Tribunal is not satisfied the documents filed by the Respondent on 15 April 2025 are inadmissible. The Tribunal admits those documents as Exhibit R2.
• [9] The Tribunal provided Exhibit R2 to the Applicant and stood the matter down for 20 minutes to enable her to read the documents and provide oral submissions if she wished to do so. When the Tribunal reconvened, the Applicant did provide oral submissions in response to Exhibit R2 and confirmed she had ample time to do so. She did not want further time to provide a written submission.

• [10] The Tribunal's original jurisdiction is "the jurisdiction conferred on the tribunal under an enabling Act to decide a matter in the first instance."[2] In relation to motor vehicles, the Tribunal's jurisdiction is conferred by section 50A of the Fair Trading Act 1989 (Qld).
• [11] Section 50A of the Fair Trading Act 1989 (Qld) enables a person to make an application to the Tribunal for an order mentioned in subsection (2) for an action related to a motor vehicle under a provision of the ACL seeking an amount or value of not more than $100,000. These include actions for damages under section 236(1) of the ACL and actions against a supplier or manufacturer for a failure to comply with statutory guarantees in Part 3.2 of the ACL.
• [12] Subsection 50A(2) of the Fair Trading Act 1989 (Qld) states the Tribunal may make only the following orders:

(a) an order requiring a party to the proceeding to pay a stated amount to a stated person;

(b) an order that a stated amount is not due or owing by the applicant to a stated person, or by any party to the proceeding to the applicant;

(c) an order requiring a party to the proceeding, other than the applicant, to perform work to rectify a defect in goods or services to which the claim relates;

(d) an order requiring a party to the proceeding to return goods that relate to the claim and are in the party's possession or control to a stated person;

(e) an order combining 2 or more orders mentioned in paragraphs (a), (b), (c) and (d).

• [13] Section 50A of the Fair Trading Act 1989 (Qld) is explicit about what orders the Tribunal can make in relation to motor vehicles.

• [14] Section 3 of the ACL states:

(1) A person is taken to have acquired particular goods as a consumer if, and only if:

(a) the amount paid or payable for the goods, as worked out under subsections (4) to (9), did not exceed:

(i) $40,000;[3] or

(ii) if a greater amount is prescribed for the purposes of this paragraph-that greater amount; or

(b) the goods were of a kind ordinarily acquired for personal, domestic or household use or consumption; or

(c) the goods consisted of a vehicle or trailer acquired for use principally in the transport of goods on public roads.

• [15] The Applicant's evidence is the Motor Vehicle was purchased to be used as the family car and the Respondent did not argue otherwise. The Tribunal finds the Motor Vehicle is a good of a kind ordinarily acquired for personal, domestic or household use or consumption. The Tribunal finds the Applicant is a consumer.
• [16] Under section 54(1) of the ACL, where a person supplies in trade or commerce goods to a consumer, there is a guarantee that the goods will be of "acceptable quality". The time when the goods are to be of acceptable quality is at the time the goods are supplied to the consumer. However, information available at the time the goods are supplied, may be taken into account when determining whether the goods were, or were not, of acceptable quality.[4]
• [17] Sections 54(2) and (3) of the ACL define acceptable quality as follows:

(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.

• [18] The Applicant's evidence is the Motor Vehicle's first fault occurred within a month of its purchase. When no-one was sitting in the rear seats, the seatbelt warning light would activate. To manage this fault the Applicant would ensure all seatbelts were plugged in and the back seats folded. However, during the Motor Vehicle's first service no fault could be located. In September 2022, the Applicant sensed the Motor Vehicle's brakes "locking on their own."[5] The Applicant claims this caused the Motor Vehicle's rear brakes to overheat and emit a burning smell. When the Respondent investigated, the Motor Vehicle's rear brakes were found to have a defective pin. The Applicant claims the Motor Vehicle continued to have various issues including:
  • Sensor faults;
  • Electric door not opening or latching;
  • Seatbelt light activating in error;
  • Park brake auto hold light engaging while driving;
  • Lane assist errors;
  • Cruise control failures - including erroneous collision sensor alters;
  • "Key not detected" warnings;
  • Intermittent starting problems;
  • Recurrent flat batteries;
  • Electric window faults;
  • Boot closing faults; and
  • The driving seat engaging another person's seating preferences whilst driving.
• [19] The Applicant returned the Motor Vehicle several times for repairs, but the issues persisted. In and around December 2023, the Respondent replaced the Motor Vehicle's Engine Control Unit ('the ECU') but the Applicant claims the faults continued. The Motor Vehicle was returned to the Respondent for repairs on 31 January 2024 and it has remained in their possession since that time.
• [20] The Applicant and her husband attended the Respondent's premises on 4 June 2024 and provided to the Tribunal a transcript of their conversation with the Respondent's representatives. Those transcripts indicate the Applicant had had minimal contact with the Respondent since 31 January 2024, the Motor Vehicle could be driven but would still experience faults and that the whole wiring harness needed to be replaced. Upon hearing this, the Applicant claims to have told the Respondent's representative that she did not want the Motor Vehicle back and she wanted a full refund of $85,000; which included the costs of tinting, interior and exterior protection.
• [21] Mr Thomas Kovalev ('motor vehicle assessor') assessed the Motor Vehicle on 29 October 2024 and provided a Motor Vehicle Assessment Report dated 28 November 2024 ('the Report'). The Report states the Motor Vehicle had 17,988 kilometres on the odometer and no defects were observed during a test drive or via diagnostic scanning. Mr Kovalev states the "likely causes of the multiple defects was identified as a fault in the vehicle's floor wiring harness, specifically within the data communication circuit (CAN-B line). This conclusion was provided by the technician who conducted the diagnostics and repairs and is consistent with the intermittent and varying faults that were observed in the control units".[6] The Report states the fault was likely present at the time of purchase and as "stated by the technician, the final repairs appear to have resolved the issue".[7] Mr Kovalev states that "If this is confirmed, no further investigation or repairs will be necessary".[8] However, the Motor Vehicle is now unregistered and would need a roadworthy certificate to be re-registered.
• [22] The Respondent submits the faults were intermittent and difficult to diagnose. However, it was established that the wiring harness needed to be replaced and subsequent testing indicates the Motor Vehicle meets all Manufacturer's specifications.
• [23] The Applicant purchased the Motor Vehicle brand new for in excess of $70,000 and claims it came with a seven-year unlimited kilometre warranty. The Applicant took possession of the Motor Vehicle in June 2022 and between that date and 31 January 2024, it had been returned to the Respondent about five times for ongoing repairs. On one of those occasions the Respondent had possession of the Motor Vehicle for a period of eight weeks. In June 2024, the Motor Vehicle remained in the Respondent's possession and, although the evidence indicates the fault had potentially been identified, the part had just been ordered.
• [24] In Campbell v Caravan & RV Central Pty Ltd (t/as Avan New South Wales) & FCA Australia Pty Ltd [2016] NSWCATCD 90 at [57], the New South Wales Civil and Administrative Tribunal stated:

A reasonable consumer would also 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).

• [25] The evidence before the Tribunal is the Motor Vehicle has done minimal kilometres, has experienced ongoing intermittent faults that - despite being returned to the Respondent four times for repairs - were not rectified. On the final occasion the Motor Vehicle was returned for repairs on 31 January 2024, it was still not repaired in June 2024 (a period of more than four months) and the part/s had just been ordered. Taking into account all the evidence before it, including its high cost, the Tribunal is satisfied the Motor Vehicle was not of acceptable quality at the time of supply.
• [26] The Respondent submits the Motor Vehicle's failures are minor and have now been rectified.
• [27] Under section 260 of the ACL, 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 ...

• [28] In Cary Boyd v Agrison Pty Ltd [2014] VMC 23 at [51], the Court held that a major failure "might be constituted by a series of specific and individual defects which taken as a whole constitute one major failure".
• [29] Taking all the defects together, the Tribunal is satisfied a reasonable consumer fully acquainted with the nature and extent of the failure, would not have acquired the Motor Vehicle at the time of supply. The Tribunal does not accept the Respondent's submission and is satisfied the failure is a major failure.
• [30] To obtain a refund, the Applicant must have rejected the Motor Vehicle during the rejection period. Under section 262(2) of the ACL the rejection period is defined to mean:

(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.

• [31] In Morphy v Beaufort Townsville Pty Ltd [2018] VCAT 1520 at [86], the Victorian Civil and Administrative Tribunal held the warranty period was relevant when considering whether the rejection period had expired. The Tribunal stated:

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.

• [32] The Applicant filed the Application in February 2024 and indicated she was seeking a new replacement vehicle. In June 2024 (upon hearing the Motor Vehicle needed the wiring harness replaced), the Applicant told a Respondent representative that she did not want the Motor Vehicle returned to her after it was repaired and wanted a full refund. The Applicant's evidence is the Motor Vehicle came with a seven-year unlimited kilometre warranty and, in October 2024, it had done less than 20,000 kilometres. The Tribunal is satisfied the Applicant first rejected the Motor Vehicle in February 2024 and again in June 2024. The Tribunal is satisfied the Applicant rejected the Motor Vehicle well within the rejection period.

• [33] Under section 263 of the ACL, the consequences of rejecting the goods are a refund of any money paid for the goods or replacing the goods with goods of the same type, and of similar value, if those goods are reasonably available to the supplier.
• [34] During the hearing, Mr Perrin said the Respondent was unable to provide a replacement vehicle of the same type and of a similar value. As outlined below, the Applicant told the Tribunal she did not want the Motor Vehicle replaced with a Kia. The Tribunal accepts that replacing the Motor Vehicle with a vehicle of the same type and similar value is not an option.
• [35] The Applicant's evidence about how much she paid for the Motor Vehicle has been inconsistent. The Application indicated the purchase price was $75,330.01 and she was seeking the cost of a new replacement vehicle in the amount of $91,660.22. In June 2024 (during a conversation with a Respondent representative) the Applicant indicated she was seeking an amount of $85,000. In submissions filed on 2 September 2024 and 20 September 2024, she was seeking an amount of $92,000 representing the full cost of the Motor Vehicle, the additional purchases (window tinting and vehicle protection) and a sum for inflation.
• [36] During the hearing, the Applicant said she was seeking the amount of $95,000. She said she doesn't want to purchase another Kia and to replace a brand new similar eight seater vehicle now would cost that amount. When the Tribunal asked the Applicant the full cost of the Motor Vehicle, she responded that she paid about $74,330 and then an additional amount of $8,000 to the sale's assistance in cash for the extras like mats and interior/exterior protections. When the Tribunal asked if she received a receipt for the cash paid, she responded that she trusted the Respondent and did not. The Tribunal asked the Applicant if her evidence was that she paid, in total, the amount of about $82,330 for the Motor Vehicle and she responded that it was. Mr Perrin told the Tribunal he had asked the Applicant several times the amount she claimed to have paid for the Motor Vehicle and she has never raised paying the amount of $8,000 in cash prior to the hearing. Mr Perrin said the Respondent has strict guidelines for handling cash and did not accept such an amount had, in fact, been paid.
• [37] The Respondent's evidence is the Applicant paid the amount of $74,330.01 in two amounts. On 27 October 2023, the Applicant paid $1,000 and on 9 June 2022 she paid $73,330.01. This evidence is more or less consistent with the Applicant's evidence in her Application that the Motor Vehicle's purchase price was $75,330.01. Based on the evidence before it, the Tribunal is not satisfied the Applicant paid an additional sum of $8,000 in cash as claimed. The Tribunal finds the Applicant paid, in total, $74,330.01 for the Motor Vehicle. This amount included the costs of tinting, mats and extra protections.
• [38] It is not in dispute that the Motor Vehicle has been returned to the Respondent and that replacing the Motor Vehicle is not an option. The Tribunal has jurisdiction to make an order requiring the supplier to pay to the Applicant any money paid by the Applicant, and any amount equal to the value of any other consideration provided by the Applicant (for example if the Applicant provided a trade-in vehicle), for the Motor Vehicle under section 263(4)(a).[9] The Tribunal has found the Applicant paid the total consideration of $74,330.01 for the Motor Vehicle and that is the amount she is entitled to under the ACL. The Tribunal has no jurisdiction to award the amounts claimed by the Applicant.

• [39] Under section 259(4) of the ACL the Applicant can:

...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.

• [40] In Vautin v BY Winddown, Inc (formerly Bertram Yachts) (No 4) [2018] FCA 426 at [293], Derrington J stated:

It would appear that this subsection is concerned with the recovery of 'reliance losses' as the inclusion of the limitation of 'reasonable foreseeability' pertains to such losses rather than expectation losses.

• [41] During the hearing, the Tribunal asked the Applicant if she had incurred costs like hiring a car or towing the Motor Vehicle. The Applicant responded that she had not and that is consistent with the evidence before the Tribunal.

• [42] The Applicant has claimed the costs of the QCAT filing fee ($379.50) and $600.00 for the cost of the Report.
• [43] Under section 50C of the Fair Trading Act 1989 (Qld) the Tribunal can only make a costs order against the Respondent in the amount of the prescribed filing fee paid by the Applicant. The cost of obtaining the Report is not recoverable.
• [44] The power to make a costs order is subject to section 102(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), which provides that the Tribunal may make a costs order if the interests of justice require it.
• [45] The Applicant has been successful in the proceedings and, given the Respondent's overall lack of engagement in the proceedings, the Tribunal considers it is in the interests of justice to order the Respondent to pay the filing fee of $379.50.

• [46] The Respondent has asked the Tribunal to order the Applicant to return their complementary vehicle, however the Tribunal has no jurisdiction to do so. Having said that, once the Respondent complies with the Tribunal's Order, it is likely the basis on which the Applicant was provided a complementary vehicle, no longer exists.
• [47] The Tribunal orders:

On or before 4:00pm on 20 June 2025, James Frizelles Automatic Group Pty Ltd trading as Sunshine Kia must pay Astacia Stevens the amount of $74,709.51 (Australian dollars).

[1] Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 74, 83; Civil Proceedings Act 2011 (Qld) ss 52, 53, 54.

[2] Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 10.

[3] This was increased to $100,000 on 1 July 2021.

[4] Medtel Pty Ltd v Courtney [2003] FCAFC 151; (2003) 130 FCR 182, [64], [70].

[5] Exhibit A2 at page 2 under the heading 'Brake Issues Begin'.

[6] Motor Vehicle Assessment Report at 3 3 1.

[9] Haisman v Drive (Aust) Pty Ltd [2020] QCAT 44, [24].