Motor vehicle disputes

A consumer can make an application for a motor vehicle dispute if the consumer has bought a vehicle from:

1. A licensed motor dealer (warrantor) or,
2. A supplier of motor vehicles (a trader).

QCAT can hear motor vehicle disputes against a motor dealer for the following:

• failure to repair a defect relating to a used warranted vehicle under the Motor Dealers and Chattel Auctioneers Act 2014 (MDCAA); or
• failure to comply with a consumer guarantee relating to a new or used vehicle under the Fair Trading Act 1989 – (Consumer Law Provisions) (FTA).

QCAT cannot hear disputes regarding private sales of motor vehicles between two parties. The purchase must be from a licensed motor dealer.

Your application will be dismissed if you file an application with QCAT to consider a dispute about a private sale of motor vehicle.

Under the MDCAA the types of used warranted vehicles that you can bring a dispute about include a used:

• car
• caravan; or
• motorhome

Under the FTA the definition of a new or used motor vehicle is wider. The types of vehicles that you can bring a dispute about includes a:

• car
• motorhome
• caravan; or
• motorcycle

The MDCAA and FTA do not apply to certain motor vehicles, and you cannot bring a dispute about a motor vehicle that is a:

• hovercraft
• motorised golf buggy
• motorised scooter
• motorised wheelchair; or
• trailer, tractor or farm machinery, or mining or railway vehicle

Before you make an application for a motor vehicle dispute, you need to ensure you understand when a dispute arises under the Motor Dealers and Chattel Auctioneers Act 2014 (MDCAA).

A motor vehicle dispute arises under the MDCAA when:

• a buyer purchases a used warranted motor vehicle from a licensed motor dealer
• the vehicle is defective within the warranty period
• the buyer has given written notice of the defect to the motor dealer; and
• the motor dealer has:
  • refused to accept that a defect is covered by a warranty; or
  • failed to repair a defect; or
  • failed to repair a defect so it can be reasonably relied upon to perform its intended function

This is also known as a breach of a statutory warranty.

What is a warranted motor vehicle as stated above?

A vehicle which is sold by a licensed motor vehicle dealer or chattel auctioneer may be sold subject to a statutory warranty.

There are two types of warranties:

• Class A warranted vehicle - on the day a vehicle is sold, it has an odometer reading of less than 160000km; and is not more than 10 years old
• Class B warranted vehicle – on the day of its sale has an odometer reading of more than 160000km or is more than 10 years old

What is the warranty period for the motor vehicle?

The warranty period depends on whether the vehicle has a Class A or Class B warranty.

Class A – the warranty ends when the first of the following happens:

• the vehicle travels 5000km since the time of taking possession; or
• 5pm on the day 3 months after the time of taking possession

Class B - the warranty ends when the first of the following happens:

• the vehicle travels 1000km since the time of taking possession; or
• 5pm on the day 1 month after the time of taking possession

When has the motor dealer failed to comply with a warranty?

Where a vehicle is the subject of a warranty, the buyer of the vehicle can bring an application under Schedule 1, section 14 of the MDCAA, against the licensed motor dealer (warrantor) who sold the vehicle, if the buyer has notified the motor dealer that the vehicle had a defect within the warranty period and the motor dealer:

• refused to accept that the defect is covered by the statutory warranty; or
• accepted that the defect is covered by the statutory warranty but has failed to repair it within the required period of 14 days; or
• failed to repair the defect so that the defective part can be reasonably relied upon to perform its intended function

What defects are not covered by a warranty?

The following defects are not covered by a statutory warranty:

• a defect in the vehicle’s paintwork or upholstery that should have been reasonably apparent when the vehicle was inspected before the buyer took possession
• a defect which arose after the buyer took possession:
  
  • from accidental damage to the vehicle
  • from the buyer’s misuse or negligence; or
  • in an accessory that was not fitted to the vehicle when it was sold
  • a defect in something else prescribed by regulation (see s47 of MDCAA Regulation 2014)

Before you make an application for a motor vehicle dispute, you need to ensure you understand when a dispute arises under the Fair Trading Act 1989 – Consumer Law Provisions (FTA).

A motor vehicle dispute arises under the FTA when:

1. a buyer purchases a new or used motor vehicle from a supplier of motor vehicles (a trader); and
2. the motor vehicle does not comply with a consumer guarantee

What is a consumer guarantee?

The law automatically gives consumers rights when they buy goods and services from a business. These are called consumer guarantees. A consumer can seek a remedy if a product or service they purchase does not meet a consumer guarantee.

What does a consumer guarantee under the FTA mean?

A consumer guarantee is a promise made to a consumer that a motor vehicle purchased is fit for purpose, is of acceptable quality and fits any demonstration model, sample or description provided. Consumer guarantees apply by law in addition to any other warranty, including a statutory warranty and manufacturer’s warranty.

A claim regarding a failure to comply with a consumer guarantee about a motor vehicle may be brought to QCAT as provided for in the Fair Trading Act 1989, section 50A.

You can find out more about consumer guarantees from the Australian Competition and Consumer Commission here.

When QCAT decides a motor vehicle dispute, the QCAT decision-maker can make orders including:

• to direct a party to pay to pay an amount of money to another party or person
• to declare that a defect is or is not covered by a warranty
• to extend a warranty or declare that a vehicle is covered by a warranty to a certain date
• to declare that an amount of money is not owing by a party to another party or person
• to direct that work be performed to rectify a defect; or
• to direct that a party return a vehicle to a party or stated person

After an application is made, QCAT will consider your motor vehicle dispute based on the amount claimed as follows:

If the claim is under $1500:

QCAT will organise a hearing where the parties will be required to appear and present their case and a decision will be made by QCAT. Unless QCAT directs otherwise and the claim is less than $1500, the case proceeds to hearing without mediation or directions issued.

If the claim is more than $1500 but less than $25,000:

QCAT will organise a mediation to allow parties to resolve the case. If mediation is not successful, QCAT will organise a hearing where the parties will be required to appear and present their case and a decision will be made by QCAT. If required, QCAT may issue directions requiring the parties to provide further information before the case proceeds to hearing.

If the claim is more than $25,000:

When you file an application for a motor vehicle dispute, QCAT may:

• issue directions to the parties. Directions are instructions to the parties involved on how the case will proceed. The directions will include time for filing of evidence, other material and joining of further parties if required
• list the case for a directions hearing or further dispute resolution proceeding to assist the parties to reach agreement if required
• engage a qualified motor vehicle assessor to conduct an assessment of the vehicle and provide a report with recommendations on fair resolution of the dispute.
• ask the parties to gather and file their evidence to support their side of the argument
• list the case for a hearing, after the parties have filed their evidence
• after the hearing, QCAT will then make a final decision based on the law and the evidence provided by the parties.

Participating in the motor vehicle dispute process can take a considerable length of time and resources and parties should consider other options to resolve the dispute with the other party before making an application to QCAT.

As part of the motor vehicle dispute process, QCAT may order an independent motor vehicle assessor to undertake an assessment of the vehicle.

The motor vehicle assessors are qualified inspectors. The assessor will be asked to inspect the motor vehicle the subject of the application and provide a report which will address the issues raised in the application. The assessor will provide a report to QCAT, who will provide a copy to the parties to the dispute.

A motor vehicle assessment can take a considerable period of time. The length of time it can take for the vehicle to be assessed is dependent upon the availability of a qualified assessor, the busy schedule of the motor vehicle assessors, access to the vehicle and the nature and complexity of the motor vehicle dispute.

The motor vehicle assessor is a neutral party, and their role is to provide an expert opinion. The motor vehicle assessor may be used as an expert witness during any QCAT proceedings.

The cost of the motor vehicle assessment of up to $1200 is to be divided between the parties at QCAT’s discretion. QCAT may seek submissions from the parties before deciding on payment of the motor vehicle assessment fee. If a party does not comply with the direction to pay their share of the motor vehicle assessment fee, this may delay the case and require QCAT to consider further avenues to proceed.

For further information on the role of the motor vehicle assessor see Practice Direction No. 2 of 2019 – Motor Vehicle List.

Where an assessor is not appointed, each party may provide evidence from one expert only.

The applicant may be required to give access to the motor vehicle the subject of the application to an expert engaged by the respondent. QCAT will provide further instructions if this event arises during the proceedings.

If both parties provide expert evidence, then subject to any orders or directions which QCAT may make in a specific application:

• each expert must prepare a written statement of their evidence
• the statement must satisfy the requirements of rule 429H of the Uniform Civil Procedures Rules 1999; and
• the experts will give concurrent evidence at the hearing

For further information on the role of the motor vehicle assessor see Practice Direction No. 2 of 2019 – Motor Vehicle List.

There are some key steps you need to take as the respondent in a motor vehicle dispute. You must:

• consider making attempts to resolve the dispute informally with the applicant in the case to save time and costs.
• read the above information and understand the QCAT process and how the case will be progressed to a final hearing based on the amount claimed by the applicant.
• file a response and/or counter application to the motor vehicle dispute using the correct response form.

To learn more about what happens next in the process and how to respond please click here.