A Victorian mother of four has requested leave to appeal a Victorian Civil and Administrative Tribunal (VCAT) decision in the Supreme Court. She took M&G Motors to VCAT in January 2014, seeking a full refund of $8,000 for a car which she says failed to start the day after she collected it, and which had ongoing problems that M & G failed to fix. She is appealing VCAT’s award of just $1,000.
The consumer’s application to the Supreme Court argues that VCAT misapplied the law. The Consumer Action Law Centre, which is supporting the consumer, believes her case could provide clarification around when a consumer is entitled to a refund for defects in a second hand car.
‘Victorians regularly ask us if they’re entitled to a refund in cases where their second hand car breaks down, but the answer isn’t black and white,’ said Gerard Brody of Consumer Action. ‘The law says you’re entitled to a full refund if there is a “major failure”. This does not have to be one catastrophic problem, but can include a series of problems, or if it takes too long for the car yard to make repairs.
‘Unfortunately, what constitutes each of these “major failures” is a matter for interpretation. The more case law we can get on the topic the more certainty consumers and tribunals will have.’
Mr Brody said that if a failure is not ‘major’, the consumer will not be automatically eligible for a full refund.
‘Shortly after collecting the car, our client took it to an independent mechanic who found the car wasn’t roadworthy. In combination with a report she obtained from the RACV which also highlighted problems, she expected that was grounds for a full refund, but VCAT found otherwise.
‘Our client’s application argues that VCAT has misapplied the consumer guarantee provisions of the Australian Consumer Law. A Supreme Court ruling on this would provide much needed certainty about when a full refund is appropriate,’ said Mr Brody.
Mr Brody said it was a concern that Consumer Action’s client had to take her case to the Supreme Court at all—an avenue that is out of reach for most consumers. ‘VCAT was established as a low cost forum to allow cases to be heard without legal representation. However, applying the Australian Consumer
Law to car cases can be challenging, because consumers often cannot afford an expert report and there may be some doubt about whether a defect is a “major failure”. Clarification of that term at law by the Supreme Court would have the double benefit of also guiding what mechanical evidence is needed to run a case.’
Media contact: Dan Simpson, 0413 299 567