McPherson v Foton Motor Australia Pty Ltd

[2020] QCAT 43

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

McPherson v Foton Motor Australia Pty Ltd [2020] QCAT 43

PARTIES:

KIERON MCPHERSON

(applicant)

v

FOTON MOTOR AUSTRALIA PTY LTD

(respondent)

APPLICATION NO/S:

MVL028-19

MATTER TYPE:

Motor vehicle matters

DELIVERED ON:

10 February 2020

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Cranwell

ORDERS:

The Application – Motor Vehicle Dispute filed on 9 October 2019 is dismissed.

CATCHWORDS:

TRADE AND COMMERCE – COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION – CONSUMER PROTECTION – GUARANTEES, CONDITIONS AND WARRANTIES IN CONSUMER TRANSACTIONS – GUARANTEES, CONDITIONS AND WARRANTIES – where relief sought against manufacturer of motor vehicle – whether named respondent was a manufacturer

Competition and Consumer Act 2010 (Cth), Sch 2

(‘Australian Consumer Law’), s 7

REPRESENTATION:
Applicant:	Self-represented
Respondent:	Self-represented
APPEARANCES:	This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

1. On 9 October 2019, Mr McPherson filed a Form 59: Application – Motor Vehicle Dispute with the Tribunal.  The named respondent is Foton Motor Australia Pty Ltd (‘Foton Australia’).

2. A Form 59 requires the applicant to provide certain details relating to the dispute.  Part C of the form requests details of the motor vehicle.  Mr McPherson described the motor vehicle as a Foton Tunland purchased on 31 March 2015.

3. On 29 November 2019, Foton Australia filed an application for miscellaneous matters seeking to have the proceeding dismissed.

4. It is not in dispute that:

   (a)Mr McPherson purchased his Foton Tunland vehicle from the Barramundi Group on 31 March 2015;

   (b)As at the date of purchase, Ateco Automotive Pty Ltd (‘Ateco’) had an exclusive distribution agreement with Beiqi Foton Motor Company Ltd of Beijing, China (‘Foton China’) for Foton Tunland vehicles in Australia; and

   (c)Foton Australia took over distribution of Foton Tunland vehicles in Australia on 23 July 2017, pursuant to an agreement with Ateco and Foton China dated 23 March 2017.

5. The term ‘manufacturer’ is relevantly defined in s 7 of the Australian Consumer Law as follows:

   Meaning of manufacturer

   (1)    A manufacturer includes the following:

   (a)a person who grows, extracts, produces, processes or assembles goods;

   (b)a person who holds himself or herself out to the public as the manufacturer of goods;

   (c)a person who causes or permits the name of the person, a name by which the person carries on business or a brand or mark of the person to be applied to goods supplied by the person;

   (d)a person (the first person) who causes or permits another person, in connection with:

   (i)    the supply or possible supply of goods by that other person; or

   (ii)   the promotion by that other person by any means of the supply or use of goods;

   to hold out the first person to the public as the manufacturer of the goods;

   (e)a person who imports goods into Australia if:

   (i)    the person is not the manufacturer of the goods; and

   (ii)   at the time of the importation, the manufacturer of the goods does not have a place of business in Australia.

6. I find that Foton Australia was not the importer of Mr McPherson’s Foton Tunland vehicle.  There is no other basis apparent which would enable me to conclude that Foton Australia was a manufacturer of Foton Tunland vehicles as at the date of supply.

7. As Foton Australia was neither a manufacturer nor the supplier, it follows that Mr McPherson has no claim against Foton Australia for breach of the consumer guarantees contained in Part 3-2, Division 1 of the Australian Consumer Law.

8. The application is therefore dismissed.