Vowles v LSH Auto

Ardlethan Options Ltd v Easdown [1915] HCA 53; (1915) 20 CLR 285, cited

Mr Matthew Muller and Mr Kenneth Got (agents) for the respondent

• [1] This matter was heard on 18 June, 2025. The claimant appeared by video link and the respondent was represented by Mr Matthew Muller, the respondent's sales manager. Mr Kenneth Got, the respondent's principal also attended.
• [2] Mr Steve Newman, the respondent's service manager, attended but was not called as a witness. The claimant relied on the material she had filed and both parties made detailed submissions.
• [3] The claimant confirmed that she is seeking $90,917.29 in all. This, she explained, included the following -
  • $62,000 being the purchase price of the subject car.
  • the balance being itemised costs relating to vehicle repairs, insurance, costs of a replacement vehicle, interest on a loan related to the replacement vehicle, legal advice, QCAT filing costs and other related sums.
• [4] On 29 April, 2024, QCAT gave leave for the claim to be increased to this amount.
• [5] The claimant purchased a 2016 Audi Q7 used vehicle from the respondent on 12 April, 2022 for $62,000. The vehicle was covered by a statutory warranty that expired after 3 months or 5,000km, whichever occurred first. It had an odometer reading of 56,607 at the time the claimant purchased it.
• [6] The claimant contacted the respondent's salesman on 5 May, 2022 concerning a jerking condition while being driven. This would occur randomly. The vehicle was presented to the respondent in relation to this but it was not able to be reproduced or the cause identified.
• [7] The respondent carried out a "carbon clean" on 30 August 2022 at its own expense as a "goodwill gesture".
• [8] The vehicle was serviced by another organisation, Crawford Automotive, on 20 October, 2022, around 6 months after it had been purchased. The service record shows that a service was carried out, along with a vehicle inspection and road test. No defects were identified by this process, carried out when the odometer showed 70,341km.
• [9] On 14 March, 2023 the vehicle's diesel particulate filter light illuminated.
• [10] The original complaint, within the warranty period, was that the vehicle was jerking intermittently. The claimant stated that the jerking problem generally manifested itself at low speeds. The car had been driven with the claimant for around 15 minutes at low speeds in an unsuccessful attempt by the respondent to reproduce this behaviour. Additionally, further test driving by an employee of the respondent was unable to reproduce the problem complained of.
• [11] The claimant's vehicle received a number of service items, some in pursuance of an extended warranty paid for by the claimant and a cleaning of the catalytic converter at the dealer's expense.
• [12] The respondent provided the claimant with a loan car whenever her vehicle was left with them for attention. The loan car was finally collected on 21 August, 2023 after being with the claimant since March, 2023.
• [13] In the course of attempting to identify the cause of the problem with the vehicle, the respondent had it inspected by Audi, an independent organisation, and nothing was found.
• [14] The claimant informed QCAT at the hearing that in January, 2025 she engaged the services of an independent European car specialist automobile organisation. This organisation replaced the "AdBlue" tank, which cost her $1,584.50, and she has had "no problem" with the vehicle afterwards.
• [15] QCAT has a motor vehicle assessment report from Mr Leonard Hutchinson. The report states that he assessed the vehicle in question on 6 February, 2024 from 9.30am to 5pm. He reports that he was unable to identify any defects then existing. He notes that the vehicle was undriveable. He speculates that faulty fuel injectors may cause clogging of the diesel particulate filter but has no evidence that this is the case. He states that it is "very likely" that "the defect" was there when the vehicle was purchased but that it is "hard to know for sure". He recommended that the vehicle be towed to an independent diesel particulate filter specialist for assessment.
• [16] The motor vehicle assessment report is not able to identify any defect in the vehicle and, unhelpfully, contains speculation.
• [17] The Tribunal accepts the claimant's version of the history and also that of the respondent. There is really no contradiction of anything which is presently relevant.
• [18] It is accepted that the vehicle's intermittent behaviour was as stated by the claimant and that the respondent genuinely attempted to properly address it. Unfortunately, these efforts were not met with success.
• [19] It is relevant that the vehicle seems to have been properly repaired in January, 2025 at a cost to the claimant of $1,584.50.
• [20] It is accepted, on the balance of probabilities, that it is more likely than not that the appearance of the warning light was a later manifestation of the original problem which was promptly reported within the warranty period.
• [21] The claimant, while being in the right, has a duty to do all things reasonable to mitigate her loss.[1] The vehicle, now running properly, apparently required remediation that cost $1,584.50, which was available from, and was ultimately provided by, an automobile repair shop.
• [22] The claimant was not provided with a vehicle so defective that a refund of the purchase price would be an available remedy. Equally, it is not reasonable that the claimant incurred all of the other expenses which she claims. What is reasonable is what was eventually done and which should have been done earlier.
• [23] The claimant has also sought an order for costs against the respondent. The Tribunal's powers in this regard are contained in section 102 of the Queensland Civil and Administrative Tribunal Act 2009, which is applicable in accordance with section 50C of the Fair Trading Act 1989. Section 102 is in the following form.

102 Costs against party in interests of justice

(1) The tribunal may make an order requiring a party to a proceeding to pay all or a stated part of the costs of another party to the proceeding if the tribunal considers the interests of justice require it to make the order.

(2) However, the only costs the tribunal may award under subsection (1) against a party to a proceeding for a minor civil dispute are the costs stated in the rules as costs that may be awarded for minor civil disputes under this section.

(3) In deciding whether to award costs under subsection (1) or (2) the tribunal may have regard to the following -

(a) whether a party to a proceeding is acting in a way that unnecessarily disadvantages another party to the proceeding, including as mentioned in section 48(1)(a) to (g);

(b) the nature and complexity of the dispute the subject of the proceeding;

(c) the relative strengths of the claims made by each of the parties to the proceeding;

(d) for a proceeding for the review of a reviewable decision -

(i) whether the applicant was afforded natural justice by the decision-maker for the decision; and

(ii) whether the applicant genuinely attempted to enable and help the decision-maker to make the decision on the merits;

(e) the financial circumstances of the parties to the proceeding;

• [24] Sub-section (1) is presently relevant. The Tribunal will consider the matters set out in sub-section (3) and does so as follows -

Neither party acted in a way that unnecessarily disadvantaged the other in a procedural sense. Section 48(1)(a) to (g) provides some examples of conduct such as deceptive or vexatious behaviour. Nothing along the lines of deception was evident in this case nor was there any non-compliance, unnecessary attempt to obtain adjournment or failure to comply with the Act or any aspect of the QCAT process. There was no failure to appear when required. The claim, however, was unreasonable regarding the quantum sought.

Regarding (b) The nature and complexity of the dispute**

The nature and complexity of the dispute was clearly delineated by the claimant and respondent and appropriate for it to be brought to QCAT. The complexity of the dispute is a relevant consideration in this case. Complexity was added to the matter not due to any conduct by the respondent but by the claimant's conduct which was notable for maintaining at the hearing a claim for a full refund of the purchase price of a vehicle which had been repaired and made fully functional months earlier. Such a claim was unable to be successful and maintaining it at the hearing was unreasonable. Additionally, the claims for costs of a replacement vehicle were unreasonable as the claimant's duty to mitigate her loss could have been discharged by obtaining the repairs which remedied the fault without incurring the other expenses. These claims greatly increased complexity and were not in any event reasonable to make or persist with.

The claimant was successful, so the claim was sufficiently strong to that extent. It was, however, without merit in regard to its major thrust, that a refund would be required.

The financial circumstances of the parties are not of present relevance. The financial burden upon the claimant beyond the $1,584.50 for the successful repairs was undertaken not due to any default of the respondent but due to the claimant's personal choice which, on the material before QCAT, was unnecessarily expensive in view of the cost of the actual repair.

Costs are sought to be recovered. The claimant has enjoyed some success. However, the success is in an amount much less than the claim for $90,917.29. The order is for an amount of $1,584.50 in the claimant's favour. All of the circumstances which have been referred to in these reasons together indicate that the interests of justice do not require the Tribunal to make an order for costs in favour of the claimant.

• [25] That the respondent is to pay the claimant $1,584.50 within 30 days of the delivery of these reasons.

[1] Ardlethan Options Ltd v Easdown [1915] HCA 53; (1915) 20 CLR 285, 296 per Isaacs J, with whose reasons Gavan Duffy and Powers JJ agreed.