QCAT Orders Full Refund for Defective Jeep Compass in Hawkins v Trivett Automotive

Hawkins v Trivett Automotive Retail Pty Ltd and Anor [2024] QCAT 253

​​​

In a recent decision handed down by the Queensland Civil and Administrative Tribunal (QCAT) on 18 June 2024, a Brisbane dealership was ordered to refund a customer the cost of the vehicle after issues with their new Jeep proved so troublesome that the importers own expert told the Tribunal “he would not want to buy it”.

 

Summary

 

In this case, Mr Dallas Hawkins commenced a proceeding in QCAT against the motor car dealer, Trivett Automotive Retail Pty Ltd (Trivett Automotive), as well as the importer, Stellantis (Australia and New Zealand) Pty Ltd (Stellantis) for contraventions of the consumer guarantees under the Australian Consumer Law (ACL) in relation to his brand new Jeep Compass Trailhawk. Mr Hawkins argued that his Jeep was not fit for its purpose as an off road 4 wheel drive vehicle and had multiple defects in breach of the ACL. These failures occurred within the first 1 – 2 years of owning the Jeep. The Tribunal awarded that the motor car dealer refund to Mr Hawkins the cost of the vehicle being $60,599.99, as well as damages for consequential losses in the sum of $2,080 as well as costs for the filing fee of $367.

 

Key Takeaways

 

• Under the ACL, there are a number of guarantees that apply to new motor vehicles including that the goods supplied are of acceptable quality (under section 54) and they must be fit for purpose (under section 55).

• A consumer should not expect that a brand new motor vehicle would come with defects that need to be repaired or replaced within the first 1 – 2 years, requiring the vehicle to be off the road for repairs.

• Where a vehicle is not fit for the purpose which it was advertised (in this case for 4 wheel driving or trail driving as advertised) a major failure is said to occur and the consumer has the right to ask for a replacement vehicle or refund.

• This case provides comfort that there are avenues for redress (including the right to a full refund and consequential losses) if a consumer purchases defective goods, including defective vehicles.

 

Facts

 

In November 2021, Mr Dallas Hawkins bought a brand new Jeep Compass Trailhawk for $60,599.99 from Trivett Automotive which trades as Keystar Redcliffe Jeep, at Kippa Ring in Queensland.

 

In November 2022, Mr Hawkins and his wife took the Jeep on its first 4WD tour – a 7 day guided “tag-a-long’ driving tour with other 4WD vehicles in the Victorian High Country. Three days into the tour, trouble struck when the vehicle would not turn on after a stop and only started after multiple fault messages were cleared by the tour leader using a diagnostic tool. The same issues occurred the next day after an hour of driving in cold, snowy conditions on a firm gravel road in high range 4WD. The vehicle would not restart and was immobile and inoperable despite numerous attempts. The tour leader again used the diagnostic tool to clear the various faults.

 

Due to the vehicle being inoperable on two occasions, and that they were travelling in remote country without reception, Mr Hawkins and his wife pulled out of the tour and called Jeep Roadside Assist who sent a RACV representative to view the vehicle. The RACV representative advised that they could not assist in diagnosing the issue and that Mr Hawkins would have to go to a Jeep dealer to diagnose it.

 

While driving back to Queensland on bitumen, after a 10 minute stop, the vehicle failed to start. Multiple messages and warning lights appeared on the screen and the vehicle was immobile and inoperable. The vehicle had less than 20,000kms on it at this time.

 

Once back in Queensland, Mr Hawkins took it to Trivett Automotive which, after a week, were unable to replicate or diagnose the fault. Mr Hawkins was told that it may be a communication fault, the windscreen not properly recalibrated or Mr Hawkins was driving “two-footed” causing a brake and accelerator pedal coherence fault.

 

A PCM update was put on the vehicle and when it was returned to Mr Hawkins he asked for proof of the changes that had been made to the car to confirm that the faults would not continue. However, Mr Hawkins was told that could not be provided with this confirmation. Instead, Mr Hawkins was told that the best way to test the vehicle was to take it back into the same conditions it was in when the faults occurred (the Victorian High Country) and if the faults re-occurred not to delete them but have the Jeep towed in the back of a flatbed truck and returned to a dealer.

 

Mr Hawkins was not satisfied with this idea given the off-road location of the initial breakdowns would not allow access to a flatbed truck to recover the vehicle and it may leave him stranded in a rural location with no vehicle.

 

In December 2022, Mr Hawkins sought a refund for the Jeep through Jeep Customer Services which denied the request on the basis that they had been unable to replicate the concerns when tested by Trivett Automotive.

 

In addition to the major issue with the vehicle becoming inoperable, the vehicle also had other issues which included:

 

1. the auto stop / start function was not operating resulting in warning messages occurring in October 2022 which required the battery to be replaced. At this time the vehicle had under 15,000km on the odometer;

2. the vehicle became immobile and inoperable on three consecutive days;

3. when the vehicle was in for a service it was identified that it had a brake accelerator coherence fault which required the vehicle to be taken off the road for 7 days; and

4. in early 2023, the vehicle was vibrating and rattling while idling, after accelerating from standstill and was identified that the shaft in the alternator was broker and the alternator needed replacing.

 

Mr Hawkins subsequently commenced proceedings the Queensland Civil and Administrative Tribunal against Trivett Automotive (as the motor car dealer) and Stellantis (the importer and distributor) for Jeeps in Australia.

 

QCAT’s decision

 

In deciding whether to afford Mr Hawkins a refund, the Tribunal was first required to consider whether, in the circumstances, there was a breach of guarantee of acceptable quality (of section 54 of the ACL) and if so, secondly, whether the failure to comply a major failure (pursuant to section 260 of the ACL).

 

Was there a breach of acceptable quality?

 

“Acceptable quality” under the Australian Consumer Law is defined under section 54(2) to mean the goods are:

1. fit for all the purposes the goods are commonly supplied;

2. acceptable in appearance and finish;

3. free from defects;

4. safe; and

5. durable.

 

The Tribunal noted that while it is accepted that it is reasonable to accept that some parts of a motor vehicle may have to be adjusted, repaired, or replaced within a manufacturer’s warranty period, a “consumer should not expect that a brand-new motor vehicle would come with defects that need to be repaired or replaced within the first 1-2 years, requiring the vehicle to be off the road for repairs.”

 

Trivett Automotive disputed that there was any fault with the vehicle and relied on submissions by Stellantis which submitted that there was no evidence to support Mr Hawkins’ claim that the alleged major fault was a manufacturing defect. Trivett Automotive argued that if there was any defect it was minor and remedied within a reasonable time at no cost.

 

The Tribunal ordered that an independent motor vehicle expert report be obtained which found that the Jeep:

 

• had an inherent transmission problem that the manufacturer has been, up until now, unable to fix and the fault was present at the time of the sale to Mr Hawkins;

• the only attempt to fix the problem has been an unknown software update with no guarantee it would fix the issues.

 

The independent expert also concluded that he personally would not take the Jeep to a remote location and alleged that Stellantis had exhibited “little to no interest” in resolving this issue for Mr Hawkins while Trivett Automotive “had done their best to help him”.

 

Stellantis disputed the independent expert’s report and filed a witness statement from a National Technical Manager asserting that it was not a transmission problem but a communication issue, the fault could not be replicated and the error code suggested driving with two feet was the cause.

 

However, Stellantis’ National Technical Manager gave evidence acknowledging that:

 

• “too foot driving codes” could actually be caused by something else;

• as they do now know what caused the defect, they cannot be certain that the defect was fixed / repaired; and

• if a reasonable purchaser knew these issues would occur in the vehicle, it would not be reasonable for them to purchase it.

 

Stellantis’ National Technical Manager also conceded that he would not want to buy it and “If you knew any of those concerns would happen with any manufacturer, you wouldn’t buy that vehicle. No one would buy that vehicle.”

 

The Tribunal found that the Jeep was not of acceptable quality (in contravention of section 54 of the Australian Consumer Law) because:

 

1. the fault with the auto stop / start function occurred in the first 12 months and has continued to occur intermittently.

2. the battery was required to be replaced within the first 12 months.

3. the vehicle becoming immobile and inoperable on three consecutive days.

4. the brake accelerator coherence fault required the vehicle to be taken off the road for 7 days for testing and no resolution or repair was able to be undertaken.

5. the fault with the alternator required it to be replaced within the first 18 months.

 

The Tribunal found that given the timing of these defects, they must have been present at the time of supply and a reasonable consumer would not expect a new motor vehicle, in this price range, to have this many faults within the first 18 months.

 

In finding that that the Jeep was not of acceptable quality, the Tribunal then turned to consider whether the failure to comply with the guarantee of acceptable quality was a ‘major failure’.

 

Was there was a major failure?

 

A ‘major failure’ is defined in section 260 of the ACL to include circumstances where the “the goods would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of the failure”.

 

It has also been held that a combination of individually minor defects can be aggregated to amount to a ‘major failure’ giving rise to a right to reject the goods (section 260(2) of the Australian Consumer Law).

 

The Tribunal found that a ‘major failure’ had occurred with the vehicle because in addition to the issues arising in the Victorian High Country, the combination of the other faults with the vehicle met the standard of a major defect as no reasonable consumer fully acquainted with the nature and extent of the multiple issues with this motor vehicle would have purchased it.

 

In coming to this view, the Tribunal held that “consumers are entitled to expect that a brand-new vehicle will reliably work for several years and will safely get them to and from wherever they are going, without leaving them stranded on the side of the road or in a remote bush or trail location. This is even more important for a 4WD vehicle marketed as a trail or off road vehicle, which are often driven in more remote locations, with limited phone reception and on more rugged terrain which is not always accessible to a tow truck.”

 

Do you need help with a troublesome vehicle or caravan?

 

Since 1 January 2011, the Australian Consumer Law has introduced consumer guarantees on products and services including that they must be of acceptable quality, match descriptions, have spare parts and repair facilities available for a reasonable time.

 

We understand that motor vehicles and caravan purchases are a significant spend and generally by way of finance and as such you should expect to receive a working and functional vehicle free from defects. If you are not satisfied, please contact us for an obligation-free initial consultation.

 

At Arida Lawyers, we provide a variety of legal services focused on the Australian Consumer Law. We know that navigating the intricacies of these laws can be challenging, and we are committed to guiding you through every step.

 

We are happy to arrange an obligation-free initial consultation to assist you in navigating the procedures set out under the relevant legislation for your circumstances.

​

This article provides general information relevant to our expert services. It is not legal advice and should not be relied upon as such. If you are seeking legal advice, you should contact us for a free initial consultation.

​

Liability limited by a scheme approved under Professional Standards Legislation.