Thomson v Joshua Mortimer t/as Yandina Car Sales [2026] QCAT 94

Motor Dealers and Chattel Auctioneers Act 2014 (Qld), s 3B, s 8, s 9, s 11, s 12, s 14, s 15, s 18

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 9, s 14

[1] This proceeding was commenced on 30 May 2024 by an Application - Motor Vehicle Dispute, pursuant to which the Applicant sought:

(a) a refund of the purchase price of $11,990 for a 2008 X-Type Jaguar ("the Vehicle");

(b) the costs incurred in towing the Vehicle from the Respondent's mechanic to the Applicant, being $450;

(c) QCAT Application fee of $379;

(d) reimbursement of the Applicant's loan repayments made in respect of the Vehicle.

[2] The Applicant contends that the Vehicle was sold to him with the Class B statutory warranty, but must have been defective at the time of the sale because within just 50 hours of owning the Vehicle, and just 416 km of driving, the engine overheated and will no longer start. It was inspected by All Auto Accessories at Gympie and found to have numerous fault codes. The precise nature of the defect which is causing the engine to stop is unknown and recorded as requiring "further diagnosis".

[3] The Vehicle was then inspected by the Respondent's nominated mechanic, Sunshine Coast European Vehicle Centre, which concluded it had suffered a "blown head gasket".

[4] The Respondent contends that the statutory warranty that would otherwise have applied to the Vehicle is excluded:

(a) by Schedule 1, s 8 of the Motor Dealers and Chattel Auctioneers Act 2014 (Qld) ("Motor Dealers Act") because the defect/s arose from the Applicant's misuse or negligent use of the Vehicle;

(b) on the basis that the Applicant had the vehicle inspected by a mechanic other than one that was nominated by the Respondent which he says "voided" the statutory warranty; and

(c) on the basis that hose pipes are not covered by the statutory warranty.

[5] The Tribunal is empowered to hear and determine this dispute in its original jurisdiction pursuant to s 9 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) ("QCAT Act"), s 50A of the Fair Trading Act 1989 (Qld) ("Fair Trading Act") and Schedule 1, s 14 of the Motor Dealers Act.

[6] The Applicant brings this proceeding relying upon s 259(4) of the Australian Consumer Law (Queensland) being an action to recover damages because of failure to comply with the Class B statutory guarantees.

[7] On 2 December 2025, directions were made by Member Scott-Mackenzie requiring the parties to file in the Tribunal and deliver a copy of their evidence in chief in the form of statements that were to be set out in numbered paragraphs in chronological order and which annexed all documents to be relied upon.

[8] On 14 January 2026, further directions were made by Member Scott-Mackenzie extending the date of compliance:

(a) by the Applicant to 23 January 2026; and

(b) by the Respondent to 30 January 2026.

[9] The Applicant had filed and sent to the Respondent an eight-page signed statement together with 54 pages of what were described as attachments. He also filed and sent to the Respondent a single statement signed by his brother, Joshua Thompson.

[10] The Applicant sought to call evidence from his mother, however, there was no record of her statement being filed in the Tribunal and no copy of it could be provided by the parties. His material contained a single page signed statement from a friend of his, although that person did not attend as a witness and his evidence was not taken into account.

[11] The Respondent did not file any evidence in compliance with the directions.

[12] The consequences of the evidentiary failures were explained to the parties and they were offered an adjournment to enable proper compliance with the directions that had been made, but both expressed an unequivocal desire to proceed regardless of the identified shortfalls in their evidence.

[13] There is no dispute between the parties as to the following facts:

(a) the Applicant purchased the Vehicle from the Respondent on 25 January 2024 for $11,990;

(b) the Vehicle was more than 10 years old and its odometer had recorded 160,115 km on the day of the sale, such that it was a Class B warranted vehicle under Schedule 1, s 3B of the Motor Dealers Act.

[14] The Applicant gave uncontested evidence in chief, and I make findings, that:

(a) he took possession of the Vehicle at about 4:30pm on 25 January 2024;

(b) he drove to his home in Gympie that evening;

(c) the following day he drove the Vehicle to Harvey Bay and back;

(d) on Saturday 27 January 2024 he drove the Vehicle in his local area;

(e) at about 7pm on 27 January 2024 he drove the Vehicle for about two minutes, travelling about 2 kms to collect pizza when the "high engine temperature" dashboard light came on;

(f) he pulled over immediately, switched off the vehicle and inspected it, finding the coolant container to be empty;

(g) he waited about 30 minutes for the engine to cool and then filled the coolant container with water that was not cold;

(h) he restarted the Vehicle and there were no warning lights;

(i) he drove home, taking about two minutes, and travelling about 2 kms;

(j) the Vehicle had travelled 416 km since he took possession of it;

(k) he did not exceed the speed limit at any point since his purchase of the Vehicle;

(l) on Sunday 28 January 2024 he was unable to start the Vehicle's engine;

(m) on or about 1 February 2024, he arranged for the Vehicle to be towed to All Auto Accessories at Gympie for a pre-arranged inspection and to enable a mechanic to identify why the Vehicle would not start;

(n) on 3 February 2024 he informed the Respondent by text message that the Vehicle would not start and was being looked at by a mechanic;

(o) the Respondent replied, "Hey mate usually all that would be covered under warranty. But only my mechanic! Just give us a bell before you spend any doosh!";

(p) the Applicant sent another text message to the Respondent, "Yeah there only doing the inspection to find the problem, I'll get your mechanic to fix anything, I'll drop in this afternoon to give you the details";

(q) on 5 February 2024 the Applicant sent another text message to the Respondent, ".........I'll get it towed to you guys sometime tomorrow, probably after lunch";

(r) on 6 February 2024 the Applicant sent another text message to the Respondent, "Tow truck will come deliver the car tomorrow as there booked out for today";

(s) on 7 February 2024 the Vehicle was towed from All Auto Accessories at Gympie to the Respondent at a cost of $275;

(t) the Respondent told the Applicant that he had the Vehicle inspected by a mechanic;

(u) the Respondent had the car towed to Sunshine Coast European Vehicle Centre;

(v) the Applicant visited the Respondent several times for progress reports on the Vehicle;

(w) on 15 March 2025 the Applicant visited the Respondent and was told that the Respondent did not yet have a report from his mechanic;

(x) on 18 March 2025 the Applicant visited the Respondent and was told that the Respondent did not yet have a report from his mechanic;

(y) on 20 March 2024 the Applicant asked the Respondent for a refund of the monies he had paid for the Vehicle.

[15] The Applicant's brother gave uncontested evidence to the effect that the Applicant had not driven the Vehicle 'hard' or at excessive speed.

(a) the Applicant had driven the Vehicle 'hard' or at excessive speed; or

(b) the defect/s in the vehicle arose from hoses or pipes that would not have been covered by the statutory warranty.

[17] In light of the above, I find that the Applicant complied with his obligation under Schedule 1, s 9 of the Motor Dealers Act to give written notice of the defect/s to the Respondent and to deliver the Vehicle to the Respondent, both of which were done by 7 February 2024, within the statutory warranty period.

[18] Those things having occurred, the Respondent was then obliged by Schedule 1, s 11 of the Motor Dealers Act to advise the Applicant in writing within five business days whether he accepted or refused to accept that the defect was covered by the statutory warranty.

[19] The Respondent did not give the Applicant the required "warranty advice" and as such he is deemed by Schedule 1, s 11(3) of the Motor Dealers Act to have given a warranty advice accepting that the defect is covered by the statutory warranty. I find that occurred at the close of business on 15 February 2024.

[20] Accordingly, I reject the Respondent's contentions, and I find that the statutory warranty did apply.

(a) there was no evidence that the Applicant had misused, or been negligent in his use of, the Vehicle; and

(b) there is no basis at all for the Respondent's contention that having the Vehicle inspected by a mechanic prior to returning it to the Respondent for repairs to be effected, would void the statutory warranty.

[22] Pursuant to Schedule 1, s 12 of the Motor Dealers Act, the Respondent was obliged to repair the defect/s at his expense within 14 days of the deemed acceptance that the statutory warranty applies, unless he had a reasonable excuse. The time for the repairs to be effected was therefore by close of business on 29 February 2024. The repairs were not effected within that time, or at all. As no reasonable excuse was proffered by the Respondent, I find that he did not have one.

[23] The failure to repair enlivens the Tribunal's jurisdiction to make orders of the kind set out in Schedule 1, s 15 of the Motor Dealers Act, namely:

(1) In a proceeding under section 14, QCAT may make only the following orders -

(a) an order that the defect is or is not a defect covered by the statutory warranty;

(b) an order extending the warranty period for the warranted vehicle to a specified date;

(c) an order declaring the warranted vehicle is covered by the statutory warranty until a specified date;

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

(e) 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;

(f) an order requiring a party to the proceeding, other than the applicant, to perform work to rectify a defect in the warranted vehicle;

(g) an order requiring a party to the proceeding to return the warranted vehicle if it is in the party's possession or control to a stated person;

(h) an order combining 2 or more orders mentioned in paragraphs (a) to (g).

[24] Where the failure to comply with a guarantee such as the statutory warranty cannot be remedied, or amounts to a major failure, the Applicant is entitled to reject the goods.

[25] A 'major failure' exists where the goods would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of the failure. I find that a reasonable consumer, fully acquainted with the nature and extent of the failure/s that occurred in this case, would not have acquired the Vehicle and as such the Respondent's failure to comply with the statutory warranty was a "major failure".

[26] Section 262 of the Australian Consumer Law (Queensland) entitled the Applicant to reject the Vehicle. I find that he did so in the context of:

(a) his text message to the Respondent on 3 February 2024, "...I'll have to return it to you guys"; and

(b) his request for a refund on 20 March 2024.

[27] In circumstances where the Respondent has done nothing to repair the defect, and it is a major failure, and the Applicant has asked for a refund, I am satisfied that the Applicant was entitled to receive a refund within a reasonable period of time and in the circumstances of the delays that had already occurred on the Respondent's part, I find that a refund should have been given by close of business on 27 March 2024.

[28] Section 259 of the Australian Consumer Law (Queensland) entitles consumers to 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 failure. I find that it was reasonably foreseeable that the Applicant would incur the costs of towing the Vehicle. He was informed by text message that the Vehicle would not start, and that the Vehicle had been towed to All Auto Accessories at Gympie. That tow was covered by the Applicant's insurer and for that reason is not sought to be recovered. The Vehicle was then towed to the Respondent's mechanic, Sunshine Coast European Vehicle Centre, and it would have been obvious to the Respondent that, in the absence of repairs being conducted, the Vehicle would have to be towed from that location. The Respondent should pay the $450 incurred by the Applicant in having the Vehicle towed from Sunshine Coast European Vehicle Centre to his residence.

[29] Pursuant to s 18 of the Motor Dealers Act and s 102 of the QCAT Act, I find that it is in the interests of justice that the Respondent pay to the Applicant the amount of the QCAT Application fee that was incurred, being $379.

[30] The Applicant sought damages in respect of the interest that he has incurred on a loan that he obtained to enable him to purchase the Vehicle. The evidence on that issue was scant, and further I do not accept that the Respondent was aware that a loan was being taken by the Applicant. None of the purchase documents indicate that the purchase was being financed. I dismiss the application for reimbursement of the Applicant's loan repayments or the interest component of those repayments.

(a) Joshua Mortimer must collect the motor vehicle the subject of this proceeding from Nathan Thomson within 28 days of the date of these orders;

(b) Joshua Mortimer must pay to Nathan Thomson within 28 days of the date of these orders the sum of $12,819 comprising:

(i) $11,990 as a refund of the purchase price paid for the Vehicle;

(ii) $450 for the costs of towing the Vehicle from the Respondent's mechanic to the Applicant;

(iii) $379 pursuant to Schedule 1, s 18 of the Motor Dealers Act being the amount of the QCAT Application fee paid by the Applicant.