Stewart v Evergreen Furniture

• [1] This matter was heard before me in person on 26 March 2025.
• [2] The matter involves an application ('Application') filed in the Tribunal by Naomi Ruth Stewart ('Stewart') on 12 April 2024.
• [3] Stewart resides at Reesville which is a rural area near Maleny behind the Sunshine Coast. Reesville is approximately 100 kilometres from Brisbane and approximately 140 kilometres from North Ipswich.
• [4] The respondent in the Application is Evergreen Furniture (NSW) Pty Ltd ('Evergreen') who is a licenced motor dealer operating from premises at Lowry Street, North Ipswich. Evergreen was represented by Raymond Frederick Hyndman ('RH') and Christine Hyndman ('CH') who advised the Tribunal that they were the principals of Evergreen.
• [5] A further hearing was conducted by remote conferencing on 23 May 2025 after Evergreen filed further material after the hearing and Stewart made an application for the Tribunal to reject this material. At this hearing I advised the parties that I will deal with this further application in this decision. The further material relates to the events and the state of the Nissan at the point of sale. I advised the parties as this material was not submitted at the hearing and the witnesses were not subject to cross-examination that I will not allow this material to be submitted.
• [6] The Application relates to the sale of a used 2011 Nissan Pathfinder ST automatic wagon registration number 429RW4 ('Nissan') which had 192,151 kilometres on the odometer. Stewart paid a total of $19,445 for the Nissan which is comprised of the following:

(i) $17,500 purchase price which is inclusive of GST.

(ii) $550 for stamp duty.

(iii) $1,100 for a plan B National Sentinel vehicle warranty for 60 months.

(iv) $295 for freight costs to Landsborough.

• [7] Stewart says that she had been looking for a vehicle that has seven seats as she has four young children, and she requires a vehicle such as a Nissan Pathfinder with seven seats to transport her children.
• [8] The hearings were conducted in an atmosphere of distrust and acrimony. During the hearing I encouraged the parties to have without prejudice discussions in an effort to reach a compromise. The parties were not interested in having such discussions.
• [9] Stewart's position was that she was deceived and, in her words, sold a "lemon" and Evergreen's position was that it is a reputable organization and that any defects with the Nissan are minor and they were prepared to rectify them.
• [10] The parties have filed statements of events and interactions between each other.
• [11] Stewart's statement ('Stewart's Statement') is attached to the Application. Exhibit FN 1.
• [12] RH filed a response ('Response') in the Tribunal on 11 July 2024 which contains a statement ('RH Statement') signed by RH on 11 July 2023.
• [13] The disputed facts commenced from the time that Stewart inspected the Nissan on 13 October 2023. I will now outline the issues relating to the inspection, the Contract and delivery of the Nissan on 24 October 2023:

(i) Stewart says she was not allowed to test drive the Nissan because there were no child restraints in the Nissan. RH says that a test drive was offered on the basis that her children would be left in the care of CH and another employee while Stewart took the Nissan for a test drive. RH says that Stewart declined this offer, and her children were very unruly at the time of the inspection.

(ii) Stewart says that she was advised that the Nissan was in a good condition, but the Nissan was parked in a shed with limited lighting and during her inspection she had to use the light on her mobile phone to inspect the Nissan. Stewart also claims that the engine was run for a few minutes whereas Evergreen disputes this claim.

(iii) During the inspection Stewart noticed a service sticker on the Nissan and she says that later she contacted the mechanic on the sticker who advised her that he had serviced the Nissan, but the air conditioner compressor had seized. Evergreen says that the air conditioner was operating normally.

(iv) Stewart says that after considering the Nissan for few days, she rang Evergreen on 19 October 2023 and after some discussions she agreed to purchase the Nissan. One of the conditions of the purchase was that the Nissan would be transported to Landsborough for her collection. The cost of this transport is noted as $295.

(v) Stewart says that she received three pages of the contract of sale ('Contract') by email for her signature which she signed and returned on 19 October 2023. The Contract is attached to Stewart's Statement. However, Stewart complains that she did not receive a full copy of the Contract by email and that the pages outlining the "cooling off" period were not included in the email. Those pages were included with a full copy of the Contract placed in the glove box of the Nissan when Stewart took possession of the Nissan on 24 October 2023. Stewart says that the further pages in the Contract contained details completed without her agreement or signature.

(vi) The Contract includes a page 2 which is not fully completed and is not executed by Stewart. The cooling off period noted in the Contract begins at 1400 hours on 19 October 2023 and ends at 5:00pm on 22 October 2023. This date is before Stewart took possession of the Nissan on 24 October 2023.

(vii) RH says that he explained all the issues regarding the Contract in his office when Stewart inspected the Nissan on 13 October 2023. RH says that the discussions with Stewart took place in his office for a period of some 20 minutes and these discussions were witnessed by Jan Carmichael and CH. Also discussed was an extended 60 month warranty with the National Warranty Company ('NWC'). He says that this is a usual way of undertaking such business.

(viii) I also note Part 6A on page 4 of the Contract states that the vehicle is in reasonable condition.

(ix) The roadworthy certificate which accompanies the Contract, and is attached to Stewart's Statement, is dated 9 October 2023 and the steering and suspension passed inspection.

• [14] The alleged problems with the Nissan began from the date that Stewart took delivery of the Nissan. She says that a loud noise was emanating from the engine behind the dashboard of the Nissan when the engine was operating above 2,000 RPM. She says that the noise became louder when the Nissan was going up hills.
• [15] On 25 October 2023 Stewart used the Nissan as usual and the Nissan would not start when Stewart visited Woolworths on 25 October 2023. It remained at that location overnight and on 26 October 2023 the Nissan was towed by RACQ to Diesel Power Systems ('DPS') at Kunda Park, near Buderim on the Sunshine Coast.
• [16] On 26 October 2023 Stewart sent an email to RH. A copy is attached to Stewart's Statement. In this email Stewart outlined that the Nissan could not be started and outlined her concerns with the Nissan about the noise emanating from the engine area.
• [17] I note an email dated 28 October 2023 from Evergreen to Stewart. A copy of this email is attached to Stewart's Statement. In this email Evergreen stated that the Nissan had been checked by Suspension Brakes and Steering Mechanical ('SBS') at Ipswich on the day before delivery and no issues were found. Evergreen also stated that the class B statutory warranty law which are contained in the conditions of the contract requires the Nissan to be returned to Evergreen for their assessment and Evergreen will deal with the class B warranty issues. Evergreen also states any work undertaken on the Nissan under the statutory warranty without Evergreen's consent will be at Stewart's cost.
• [18] At this stage the Nissan was not returned to Evergreen. Further the air conditioner issue was repaired under the NWC warranty although Stewart paid an amount of $341 for this work. This work was undertaken by DPS and returned to Stewart on 9 November 2023.
• [19] Stewart sent an email to RH on 6 November 2023 making a claim for the $341 for the consumables for the repair of the air conditioner and she also complained about the noise in the engine. A copy of the email is attached to Stewart's Statement. This claim was refused by Evergreen. Evergreen responded to this email on 6 November 2023. In this response Evergreen states that the noise issue is not covered by the class B warranty. However, in this email Evergreen do offer to inspect the Nissan and attempt a diagnosis if the Nissan is brought to Evergreen's premises at North Ipswich.
• [20] In the hearing on 26 March 2025 Stewart made comments during the hearing that she was happy with the Nissan, but she wanted to make sure that it was properly repaired. However, Stewart also made comments that she now wanted a full refund of the purchase price as she was deceived by Evergreen, and she cannot drive the Nissan with the noise emanating from the engine. She says that the noise particularly affects her autistic son. When I asked Stewart why she did not return the Nissan to Evergreen's premises she responded by saying that she cannot be expected to drive the Nissan for such a distance with the noise emanating from the engine.
• [21] Stewart advised the Tribunal that she does not now drive the Nissan, it has not been used for some time and the Nissan is now not registered.
• [22] Stewart also says that Evergreen made no commitment to repair the problems with the Nissan until the matter came before the Tribunal.
• [23] Evergreen says that it has complied with all relevant laws, and it is committed to selling and supplying reasonably priced good second-hand vehicles to consumers.
• [24] RH says in a letter to Stewart dated 8 November 2024 that he had interactions with the Office of Fair Trading ('OFT') after Stewart made a complaint about the purchase to OFT. He says that he made arrangements to have Stewart travel to a mechanical workshop, Palmwoods Autos, at Chevallum, to have the Nissan inspected by the owner, Scott. Chevallum is only approximately 30 kilometres from Stewart's residence. RH says after the inspection of the Nissan, he spoke to Scott who advised him that he believed the noise was coming from the heater box which is situated behind the dashboard of the Nissan.
• [25] On page 5 of the letter of 8 November 2024 RH also raises the statutory requirements for Stewart to return the Nissan to Evergreen or a repairer nominated by Evergreen.

• [26] The relevant provisions of the Australian Consumer Law ('ACL') are contained in sections 54, 259, 260 of Schedule 2 of Competition and Consumer Act 2010 (Cth). These provisions are outlined in full:
  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) the goods 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.

• [27] The relevant provisions of the Motor Dealers and Chattel Auctioneers Act 2014 (Qld) ('MD Act') are sections 99, 102 and 104:
  1. Meaning of cooling-off period

(1) The cooling-off period for the purchase of a used motor vehicle from a motor dealer starts on the day a contract for the purchase of the vehicle is enforceable against the motor dealer.

(2) The cooling-off period for the purchase of a used motor vehicle ends -

(a) if the motor dealer's actual close of business on the motor dealer's next business day is 5p.m. or later - at the time of the motor dealer's actual close of business on that business day; or

_Examples - _

1. Assume the contract is entered into on Friday and is immediately enforceable. Assume also the cooling-off period is not affected by public holidays and that, on each day the motor dealer is open for business, the motor dealer's actual close of business is not before 5p.m. The cooling-off period ends at the time of the motor dealer's actual close of business on the following Saturday.
2. Assume the contract is entered into on Friday afternoon, but is conditional on a prior contract to purchase the vehicle not being proceeded with by 5p.m. Saturday. Assume that the prior contract is avoided at 4p.m. Saturday. Assume also the cooling-off period is not affected by public holidays and that, on each day the motor dealer is open for business, the motor dealer's actual close of business is not before 5p.m. The cooling-off period ends at the time of the motor dealer's actual close of business on the following Monday.

(b) if the motor dealer's actual close of business on the motor dealer's next business day is earlier than 5p.m. - at the time of the motor dealer's usual close of business on the business day immediately following the next business day; or

_Example - _

Assume the contract is entered into on Tuesday and the motor dealer closes for business on Wednesday at 1p.m. Assume also the cooling-off period is not affected by public holidays and that the contract is immediately enforceable. The cooling-off period ends at the time of the motor dealer's usual close of business on the following Thursday.

(c) at any earlier time the person contracting for the purchase of the vehicle takes physical possession of the vehicle for a purpose other than -

(i) a vehicle inspection; or

(ii) a test drive.

1. Notice to be given about used motor vehicle - no prior contract

(1) This section applies if a used motor vehicle is not subject to any prior contract with a prospective buyer for its sale.

(2) A motor dealer must give to the prospective buyer of the vehicle a written statement in the approved form under this section.

(3) The statement must include the following -

(a) the motor vehicle, clearly identified, to which the statement relates;

(b) the names and addresses of the motor dealer and prospective buyer;

(c) a clear statement that the prospective buyer may avoid any contract for the purchase of the vehicle from the motor dealer during the cooling-off period;

(d) the day and time when the statement is given;

(e) the day and time the cooling-off period ends;

(f) the amount of non-refundable deposit forfeited by the prospective buyer if the buyer avoids the contract.

(4) The statement must be signed and dated by the prospective buyer and the motor dealer or someone authorised or apparently authorised to sign for the motor dealer.

(5) The motor dealer or authorised person must give the original of the statement to the prospective buyer immediately before the buyer signs any contract for the purchase of the vehicle.

(6) The motor dealer must keep a copy of the statement.

Maximum penalty - 100 penalty units.

1. Buyer's rights if notice not given or materially defective

(1) This section applies if a person (buyer) has purchased a used motor vehicle and -

(a) the buyer has not been given the statement under section 102; or

(b) the statement has been given to the buyer, but the statement is defective in a material particular.

(2) The buyer, by written notice given to the motor dealer, may avoid the contract for the sale of the used motor vehicle.

(3) The notice must be given to the motor dealer within 7 days after the day property in the vehicle passes to the buyer.

(4) If the contract is avoided under this section, the motor dealer -

(a) must do everything in the motor dealer's power to return the buyer to the position the buyer was in before the vehicle was purchased; or

(b) if the buyer can not be returned to that position - is liable for any financial loss suffered by the buyer because the buyer can not be returned to that position.

Note -

A person may make a claim, under the Administration Act, against the fund if the person suffers financial loss because of a contravention of this subsection.

• [28] The relevant provisions of the statutory warranty ('Statutory Warranty') are contained in Schedule 1 of the MD Act, sections 3B, 7, 8, 9, 12 and 13. These provisions are outlined in full:

3B Meaning of class B warranted vehicle

A class B warranted vehicle is a warranted vehicle that -

(a) on the day of its sale, has an odometer reading of 160,000km or more; or

(b) has a built date of more than 10 years before the day of its sale.

1. Statutory warranty

(1) The warrantor of a warranted vehicle warrants that -

(a) the vehicle is free from defects at the time of taking possession and for the warranty period; and

(b) defects in the vehicle reported during the warranty period will be repaired by the warrantor free of charge.

(2) In this section -

defects does not include defects not covered by the statutory warranty.

1. Defects not covered by statutory warranty

The following defects in a warranted vehicle are not covered by the statutory warranty -

(a) a defect in the vehicle's paintwork or upholstery that should have been apparent on any reasonable inspection of the vehicle before the time of taking possession;

(b) a defect after the time of taking possession -

(i) arising from or incidental to any accidental damage to the vehicle; or

(ii) arising from the buyer's misuse or negligence; or

(iii) in an accessory to the vehicle not fitted to the vehicle when sold to the buyer;

(c) a defect in something else prescribed by regulation.

1. Buyer's obligations under statutory warranty

(1) If the buyer of a warranted vehicle believes the vehicle has a defect the warrantor of the vehicle is obliged to repair under this part, the buyer must give the warrantor written notice of the defect (defect notice) before the end of the warranty period and -

(a) if the warranted vehicle is 200km or less from the warrantor's place of business when the defect notice is given - deliver the vehicle to -

(i) the warrantor to repair the defect; or

(ii) a qualified repairer nominated by the warrantor, by signed writing given to the buyer of the vehicle, to repair the defect; or

(b) if the warranted vehicle is more than 200km from the warrantor's place of business when the defect notice is given -

(i) deliver the warranted vehicle to the qualified repairer nominated by the warrantor by signed writing given to the buyer of the vehicle and nearest to the vehicle to repair the defect; or

(ii) deliver, at the warrantor's expense, the warranted vehicle to another qualified repairer nominated by the warrantor by signed writing given to the buyer of the vehicle to repair the defect.

(2) The buyer is taken to deliver the vehicle and the warrantor is taken to have possession of the vehicle if the buyer makes reasonable efforts to deliver the vehicle under this section but is unable to do so because the warrantor, or the qualified repairer nominated by the warrantor, refuses to accept delivery of the vehicle.

(3) The place of delivery under subsection (1)(a)(ii) must not be more than 20km from the warrantor's place of business, unless the warrantor and the buyer otherwise agree.

(4) In this section -

qualified repairer, for a warranted vehicle the subject of a defect notice, means a person who is, or holds the qualifications necessary to be appointed under the Transport Operations (Road Use Management) Act 1995, section 21 to be, an accredited person to perform vehicle safety inspections for the vehicle.

warrantor includes someone apparently working for the warrantor at the warrantor's place of business.

1. Warrantor's obligation to repair defects

(1) If the warrantor accepts that the defect in the vehicle is covered by the statutory warranty, the warrantor must repair the defect at the warrantor's expense.

(2) The warrantor must ensure that the defect is repaired within 14 days after the warrantor accepts that the defect is covered by the statutory warranty (repair period), unless the warrantor has a reasonable excuse.

(3) The warrantor -

(a) must, if the warrantor stops carrying on the business, or performing the activities, of a licensee, nominate someone else to repair the defect; and

(b) may otherwise nominate someone else to repair the defect.

(4) If the warrantor nominates a person to repair the defect under subsection (3), the warrantor must advise the buyer of the person's name and the address where the vehicle is to be repaired.

(5) The warrantor is taken to have repaired the defect if the part of the vehicle affected by the defect is repaired so that it can be reasonably relied on to perform its intended function.

(6) The warrantor's obligation to repair the defect under this section continues even though the warrantor is no longer carrying on the business, or performing the activities, of a licensee.

1. Application of division

This division applies if the warrantor has by warranty advice or otherwise -

(a) refused to accept that the defect is covered by the statutory warranty; or

(b) accepted that the defect is covered by the statutory warranty but -

(i) failed to repair the defect within the repair period; or

(ii) failed to repair the defect so that the defective part can be reasonably relied on to perform its intended function.

• [29] Stewart has made submissions and gave evidence that she should be entitled to a refund because she was duped by RH and Evergreen when she executed the Contract on 19 October 2023. The circumstances of the execution are outlined above.
• [30] Stewart says that the cooling off provisions of the Contract which are on page 2 of the Contract were never sent to her by email on 19 October 2023 but were completed by Evergreen without her consent or agreement. Page 2 of the Contract is attached to the Application and shows the cooling off period commences on 1400 hours on 19 October 2023 and ends at 5:00pm on 22 October 2023.
• [31] Stewart took delivery of the Nissan on 24 October 2023 at Landsborough. Stewart had not driven the Nissan at all before she took delivery.
• [32] RH says that the cooling off provisions were explained to Stewart when he was negotiating with Stewart in his office after Stewart examined the Nissan on 13 October 2023. RH says he has witnesses to corroborate his version of events and he says that this is a usual way of doing business.
• [33] RH says that he left a full copy of the Contract, including page 2, in the glove box of the Nissan.
• [34] RH attempted to file sworn statements of CH and Jan Marie Carmichael both sworn on 22 April 2025 after the hearing. These statements refer to the circumstances of Stewart's inspection of the Nissan and discussions with RH in the office on 13 October 2023. As previously mentioned, I did not allow this evidence to be presented after Stewart objected to the admission of this evidence after the hearing. Even if I allowed these statements, they outline discussions in a very general way and there is no specific reference to RH explaining the cooling off period in any proposed contract.
• [35] I accept Stewart's evidence on this issue. I cannot accept RH's version of events that he outlined and fully explained the cooling off period provisions of the Contract with Stewart on 13 October 2023. He may have mentioned a cooling off period in these discussions, but I cannot accept that he sought Stewart's agreement or consensus to complete the Contract with the cooling off period to commence on execution of the Contract on 19 October 2023.
• [36] Stewart's version of events has a ring of truth. It makes no sense to me that Stewart would agree to a cooling off period to expire before she has taken delivery of the Nissan, or she had a chance to drive the Nissan.
• [37] The provisions of the ACL are of no assistance to Stewart as they do not contain any provisions that outline a cooling off period.
• [38] The relevant provisions that relate to a used car contract of sale and a cooling off period are contained in Part 3 Division 6 of the MD Act.
• [39] Section 99 of the MD Act outlines the meaning of a cooling off period.
• [40] Section 102 of the MD Act outlines the notice to be given to the prospective purchaser. There are specific requirements under ss 102(2) and (3) of the MD Act that a motor dealer must give a prospective purchaser a written statement and the statement must contain a clear statement that the prospective purchaser may a avoid any contract for the purchase of a vehicle during the cooling off period.
• [41] Further pursuant to s 102(4) of the MD Act the statement must be signed and dated by the prospective purchaser. This did not occur with the Contract. RH could have sent the page 2 to Stewart with the execution pages of the Contract when both parties executed the Contract on 19 October 2023. This did not occur.
• [42] In these proceedings I find that the Contract did not contain a statement, or the statement was defective. There has been a breach of s 102 of the MD Act.
• [43] What are Stewart's rights under the MD Act? Section 104 of the MD Act outlines a purchaser's rights if a statement relating to the cooling off period is not given or the statement is materially defective. Sections 104(2) and (3) of the MD Act say that where a statement is not given or is defective the buyer may avoid the contract by written notice to the motor dealer and this notice must be given within seven days after the property in the vehicle passes to the buyer. In this matter this notice had to be given to Evergreen on or about 26 October 2023.
• [44] It was never made clear to the Tribunal when Stewart became aware of the issue with the contract (cooling off period) but it seems that no such notice was given to Evergreen pursuant to the provisions of s 104 of the MD Act.
• [45] Another complicating issue in this matter is that Stewart was making statements in evidence that she was happy to accept the Nissan provided there was a guarantee that the noise issue could be rectified.
• [46] Stewart cannot now rely on the deficiency (statement re. cooling off period) in the Contact to avoid the Contract and request a refund.

• [47] The air conditioner unit was not operating virtually from the time Stewart took possession of the Nissan at Landsborough on 24 October 2023. The Nissan could not be started when Stewart was at Woolworths and the Nissan was towed to DPS on 25 October 2023. The problem with the air conditioner in the Nissan was a seized motor. This was rectified by DPS who returned the Nissan to Stewart on 9 November 2023. DPS's invoice amount was paid by NWC except for an amount of $341. Evergreen have rejected Stewart's claim for this amount.
• [48] Evergreen relies on the provisions of the Statutory Warranty that pursuant to s 3B the Nissan is covered by a class B warranty and the claim was made within the statutory period outlined in s 4 of the Statutory Warranty. Evergreen says that Stewart should have delivered the Nissan back to Evergreen's premises at North Ipswich because the Nissan was less than 200 kilometres from where the Nissan suffered a breakdown. This would have required Stewart to arrange a tow truck to transport the Nissan to North Ipswich at a considerable cost. See s 9(1)(a) of the Statutory Warranty. It is arguable that s 9(1)(a)(ii) of the Statutory Warranty applies because Evergreen assisted in Stewart's claim with the NWC and acquiesced in having the repairs undertaken by DPS.
• [49] If I am wrong in my interpretation of the provisions of the Statutory Warranty as outlined in the previous paragraph, I believe that the provisions of the ACL apply regarding this issue. The provisions of the ACL are less prescriptive than the provisions of the MD Act and the Statutory Warranty.
• [50] Pursuant to s 54 of the ACL when a person supplies, in trade and commerce, goods to a consumer, there is a guarantee that the goods are of acceptable quality. Acceptable quality is defined in s 54(2) of the ACL. That is, fit for purpose, free from defects and safe. The guarantee is subject to s 54(3) of the ACL. That is, the Nissan was a second-hand vehicle with some 190,000 kilometres on the odometer.
• [51] Evergreen stated that the Nissan was in good order and condition, and this includes the air conditioner. This failed the day after the Nissan was delivered to Stewart on 24 October 2023. Evergreen has failed to comply with the guarantee.
• [52] Pursuant to s 259(2) of the ACL Stewart can bring an action against Evergreen when the failure can be remedied. In these proceedings the breach was remedied, and air conditioner was repaired by DPS. Further pursuant to s 259(4) of the ACL Stewart may by action against Evergreen recover her damages for any loss that Stewart suffered because of Evergreen's failure to comply with the guarantee. Any losses suffered by Stewart in having the air conditioner repaired was reasonably foreseeable by Evergreen.
• [53] I also note that after taking delivery of the Nissan on 24 October 2023 she was without a vehicle for almost two weeks until the air conditioner was repaired, and the Nissan was returned to Stewart on 9 November 2023.
• [54] Stewart had to pay an amount of $341 more than the contribution by NWC. Therefore, I propose making an order for Evergreen to pay an amount of $341 to Stewart.

• [55] Although RH states that there was no noise emanating from behind the dashboard when the Nissan left Evergreen's premises on 24 October 2023, I accept that the noise began as soon as Stewart started driving the Nissan on 24 October 2023.
• [56] At the hearing on 26 March 2025 a recording of the offending noise emanating from the engine was played. This sound was recorded by Stewart. She did not present any expert evidence at what decibel level was experienced from the noise inside the cabin of the Nissan. Notwithstanding this shortcoming it cannot be disputed that this noise would be extremely irritating and annoying to anyone in the cabin. The noise did make a metallic sound and there is no question that the issue with the noise and the engine must be resolved.
• [57] The noise was detected by various witnesses.
• [58] The evidence provided by Shane Drane ('Drane') of Nissan, Caloundra, was very helpful. Drane who is the workshop supervisor stated that he was not the technician who inspected the Nissan in November 2023. However, he referred to the report prepared by the relevant technician, and he is aware of the workings of these models of Nissan. He believed that the sound is probably a defect in the heater box and to positively diagnose the issue would require a total removal of the dashboard and replacement of the heater box. Drane stated that this was a very long and complex job which may require 100 hours of labour and there was no guarantee, because the dashboard was old, that some damage may not be caused whilst removing the dashboard and reinstalling it.
• [59] The invoice from Nissan Caloundra dated 17 November 2023 noted that the inspection would take 10 hours and the cost per hour would be $165 per hour. During the hearing Drane estimated that the cost of a replacement heater box would be approximately $500. He suggested that the total cost of removing/reinstalling the dashboard and replacing the heater box would be in the vicinity of $2,000. I will adopt a figure of $2,100.
• [60] The account from Nissan Caloundra to undertake this inspection and undertake some minor work in November 2023 was $165.
• [61] Drane was cross-examined by RH and Drane accepted the noise problem may be debris in the heater box, but he could not give any certainty unless a full inspection was made. RH also put it to Drane that RH was recently quoted $660 to remove a dashboard and related a similar problem that had occurred with a Toyota, and this was resolved by cleaning out the debris behind the dashboard. Drane accepted that this may be the case and accepted that RH may be able to have repairs undertaken and parts supplied at a much cheaper rate because he is a car dealer. Drane accepted that the discount could be up to 50%.
• [62] RH has provided evidence in his letter to Stewart dated 8 November 2024 regarding Stewart's complaint to OFT. On page 9 of this letter RH refers to an inspection of the Nissan by Scott of Palmwoods Auto. Scott advised RH that he believed the noise from the engine was coming from the heater box behind the dashboard. RH did not call Scott to give evidence at the hearing. However, this evidence appears to corroborate Drane's evidence.
• [63] RH is of the opinion that the noise behind the dashboard is caused by debris falling into the heater box. He quoted the case that this type of problem occurs when a vehicle is parked under a tree for a period and leaves, debris and "nuts" fall from the tree and accumulate on the vehicle and drop into the heater box. Drane accepted that this may be a possibility, but Drane stated that the only way to ascertain the cause of the noise was to undertake an investigation after the dashboard was removed.
• [64] RH called Shane Cluderoy ('Cluderoy') who was a contractor and at this time in 2023 tested and certified vehicles that Evergreen was intending to sell. Cluderoy stated that he tested and certified the Nissan on or about 22 September 2023. Cluderoy produced an account that he sent to Evergreen on 22 September 2023. See Exhibit 1. Cluderoy stated that he made a full inspection of the Nissan, including taking the Nissan for a full test drive where he reached speeds of 100 KPH. Cluderoy stated that he did not detect any unusual noises emanating from the Nissan. Cluderoy stated that he is an independent assessor, and he no longer undertakes these assessments.
• [65] Stewart cross-examined Cluderoy about his assessment and he stated that he usually has a checklist, but he could not produce the checklist relating to the Nissan.
• [66] Stewart claims that she is entitled to claim a refund of the Nissan because the noise is a major failure of the guarantee as outlined in s 260 of the ACL. I cannot accept this submission because:

(i) Stewart has not presented any evidence as to the exact defect that is causing the noise. I accept that to do so would have required the removal of the dashboard and the cost would have been substantial. However, the onus is on Stewart to go through this exercise and provide evidence from an expert, such as a mechanic/technician, of what exactly is causing the noise behind the dashboard. That is, the problem is a major defect, or it cannot be repaired. Stewart has not provided this evidence. It is not sufficient for Stewart to say that there is a noise emanating from the engine which prevents her from using the Nissan.

(ii) The noise problem may be major problem with a bearing in the engine which requires a replacement engine, or it could be a very simple fix as suggested by RH.

• [67] I cannot find any provisions in the Statutory Warranty which support Stewart's claim for a refund given the facts and circumstances of these proceedings. As mentioned previously, the remedies outlined in the Statutory Warranty are more prescriptive than the provisions of the ACL. Stewart has not returned the Nissan to Evergreen as required under the provisions of the Statutory Warranty. Evergreen made at least two requests to Stewart to return the Nissan to its business premises at North Ipswich. See emails to Stewart on 28 October 2023 and 6 November 2023.
• [68] Stewart can bring a claim under s 259(2) of the ACL against Evergreen to recover her losses to rectify this defect. I accept the evidence of Drane that the problem is probably a problem with the heater box which requires the heater box to be replaced. To do this requires removal and replacement of the dashboard. He estimated a figure of approximately $2,100. These figures are estimates only.
• [69] I cannot award this amount because Evergreen made offers to Stewart for the Nissan to be returned to its premises to investigate the problem. That may have required the Nissan to be transported back to North Ipswich at a cost to Stewart, but it was essential that Stewart gave an opportunity to Evergreen to remedy the defect.
• [70] It was in Stewart's interest to transport the Nissan to Evergreen to allow Evergreen to remedy the problem with the noise because Stewart would have been in a much better position to seek a refund of the purchase price if Evergreen did not remedy the defect in a reasonable time. See s 259(2) of the ACL. There are similar provisions in the Statutory Warranty that require Stewart to return the Nissan to Evergreen to deal with the defect within 14 days unless Evergreen had a reasonable excuse to exceed the 14 day limit. See s 12(2) of the Statutory Warranty.
• [71] Another reason to return the Nissan to Evergreen to remedy the defect is because Evergreen can have the defect remedied at a cheaper rate than is available to the ordinary consumer. Drane accepted this was the case. There is an obligation on Stewart to mitigate her losses.
• [72] The noise problem must be remedied, and Stewart can undertake that process with a repairer of her choice. The cost quoted by Drane was approximately $2,100. Drane accepted that Evergreen could have these repairs undertaken at a cheaper rate because Evergreen is a wholesaler. He stated possibly up to 50% cheaper. However, Evergreen has not adduced any evidence from an expert or repairer as to the wholesale cost of removing the dashboard and replacing the heater box in the Nissan. Further, the cost that RH was referring to when he cross-examined Drane and suggested a removal cost of $660 was for a Toyota and not a Nissan. Therefore, I propose reducing Drane's estimate by 35%. I will make an order for Evergreen to pay Stewart $1,365 to rectify the noise problem in the Nissan.
• [73] I also note that the Caloundra Nissan charged Stewart $165 on 17 November 2023 to provide a diagnosis of the noise problem. This cost should be paid by Evergreen as this cost was a foreseeable consequence of ascertaining what is the source of the noise problem.
• [74] Stewart has produced an account and assessment from Bridgestone Select Tyre and Auto, Caloundra, dated 10 November 2023. The cost of this assessment was $50 and the account notes that the front strut tops require replacing at a cost of $520. At the hearing Stewart did not appear to pursue this issue and no evidence was called by Stewart to support this claim. Therefore, I do not allow this claim.
• [75] I note that Stewart now says the Nissan is unregistered and the noise problem has not been resolved. I am sure this is very difficult and frustrating for Stewart who says that she has limited resources. However, the onus was on Stewart to undertake these repairs and prove her claim on the balance of probabilities. Evergreen made requests to Stewart to return the Nissan to North Ipswich for their inspection and attention. This did not occur.
• [76] The final order I will make is for Evergreen to pay $1,871 the following:

(i) $1,365 for the removal/reinstalling of the dashboard and replacement of the heater box.

(ii) $165 to Nissan Caloundra for the cost of the diagnosis.

(iii) $341 for the repair to the air conditioner.