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Dealership ordered to repay purchase price of car rejected after 18 months of ownership

May 22, 2025
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On 16 May 2025, QCAT ordered a motor dealership to refund the entirety of the purchase price of a new vehicle which had been bought in June 2022 and “rejected” by the buyer in about January 2024 some 18 months afterward, because – having regard to the various defects in the vehicle – a reasonable consumer fully acquainted with the nature and effect of the failure would not have acquired the vehicle at the time of the supply. This finding had the result that the failure was a “major failure” under the Australian Consumer Law, which allows the rejection of the item if the rejection is within the “rejection period” under section 262 of the Australian Consumer Law. The rejection period for goods is the period from the time of supply within which it would be reasonable to expect the failure to comply with the consumer guarantee to become apparent having regard to the type of goods, the use to which they are likely to be put, the length of time for which it is reasonable for them to be used, and the amount of use that it is reasonable for them to be put before the failure becomes apparent. The Tribunal had regard to a decision of the Victorian Civil and Administrative Tribunal which considered that the warranty period was relevant when considering whether the rejection period had expired. In that matter, the Tribunal did not consider itself bound by the warranty period given under the manufacturers express warranty, but it is relevant evidence of “the expected period of largely problem free use of the goods”. In the case of this particular vehicle, the Tribunal considered that given: the Tribunal was satisfied that the rejection of the vehicle in 2024 was made well within the rejection period. The consequence of a valid rejection is an entitlement on the part the applicant for a refund of any money paid for the goods, or the entitlement to the replacement the goods with goods of the same type and of similar value if they are readily available. In this particular case, the respondent was unable to provide a replacement value of the same type and of a similar value, and the Applicant did not want another vehicle of the same make. The Tribunal ordered the repayment of the purchase price, together with the payment of the filing fee, see Stevens v James Frizelles Automatic Group t/as Sunshine Kia [2025] QCAT 196 The decision demonstrates the further reach of consumer rights in relation to goods, which now can have to result that goods can be rejected after quite a lot of use if there is multiple issues over a period of time, such that a reasonable consumer would not have bought them. For advice in respect of consumer law matters, please contact Peter Muller at peterm@qbmlaw.com.au

What if you cannot find the original of a Will?

May 19, 2025
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Occasionally, a person passes away and the original of their Will cannot be located. There could be a number of reasons why the original cannot be found – they might have kept it at home and it was thrown out by mistake, or their lawyers lost it – however at law there is a presumption that when an original Will cannot be found, it means that the Will maker destroyed it with the intention that it was revoked. This presumption can lead to significant issues in some cases, depending upon the terms of the Will. What it means in effect is that the person who wants to have the copy Will carried out needs to convince the court that the presumption is “rebutted” – in other words, to convince the court that the will was not destroyed for the purpose of revoking it. The Queensland Supreme Court considered such a situation in the decision “In the will of Giuseppe Benito Sydney Calabro [2024] QSC 71”. In that matter, Mr Calabro had died. He was survived by his wife Roma Calabro. The evidence showed that in October 2019, Mr Colabro and Roma Colabro met with a lawyer to give instructions for the preparation of their Wills. In April 2020, copies of Wills were sent for their signing, and on 28 April 2020, both Mr Colabro and Roma Colabro signed their Wills before witnesses. The evidence was that the Wills were then posted back to the lawyer who received them and scanned them and saved copies of them into their online database. The originals were put into the firm’s securities. After he passed away, the firm checked their securities, but could not locate the original of the Will. There was no record of the firm having released the original Will to any person or receiving any instructions to destroy the Will. The matters to be satisfied for the court to give probate where the original will is missing are to prove: Usually, a Will contains a provision that it revokes all previous Wills. Furthermore, usually a copy of a signed Will will satisfy the tests at (a), (b), (d) and (e), assuming that it is signed correctly. In this particular matter, the court accepted “as a matter of common sense and plausibility in the context of what appears to have been a relatively long marriage” that Mr Colabro would not have revoked the Will or made a new one without discussing that with Roma Colabro, and accordingly found that he did not do so. The fact that the Will had never been released from safe custody, and that there was no evidence that Mr Colabro had made a new Will also lent in favour of a finding that the Will had been lost in the offices of the lawyers. As a result, it is always a good idea to keep a copy of the signed Will available as your own record in the event that the original Will is lost or destroyed. For advice in respect of Wills, please contact our property lawyers Peter Muller at peterm@qbmlaw.com.au or Jessica Murray at jessicam@qbmlaw.com

Granny Flat Disaster

March 26, 2025
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It has been said that the road to hell is paved with good intentions. The same could be said for the road to the courts, when families come into dispute over property arrangements. Recently, the Queensland Supreme Court considered an appropriate outcome for the failure of a “granny flat” arrangement – where Bonnie C came to an agreement with her daughter Shannon A and son in law, Brett, for Bonnie C to contribute toward the price of a property and for its improvement to create a granny flat, in return for having the right to reside in that property for the remainder of her life. This sort of arrangement is not uncommon because it has – at first blush – advantages for all of the parties. For the parent, it provides the security of being close to family, potentially a better place to live, and access to care. For the children, it provides proximity to the parent, and the introduction of more money to buy a better property, with an increased capital value in the property. There are also other benefits, particularly if the parties have a strong relationship or if the parent is able to help with looking after grandchildren or the property itself. However despite the best of intentions and rosiest of expectations, tensions arise when people live in close proximity. The most innocent of activities can become extremely annoying. For some the “5 second rule” applies to visitors as much as food dropped on the floor. The relationship can deteriorate, and continued living in close proximity become impossible. As lawyers, we often become involved in these matters when there is a problem. In many cases, that problem arises very early on, sometimes within a matter of days. The issue however is that once the money has been spent and the parties are living in this new arrangement, how will a court deal with one of them wanting to leave, and what is their interest in the property? In the dispute between Bonnie C, her daughter and son in law, the court considered this situation. The judgment records the following: There was also a question of costs. This matter demonstrates the risks associated with “granny flat right” agreements, and for that matter, any long term agreements in relation to property. Those agreements should not be entered into without the parties giving thought to how they might fail and what to do if they do fail. For advice in respect of the co-ownership of property or for agreements and rights in respect of property, please contact our property lawyers Peter Muller at peterm@qbmlaw.com.au or Jessica Murray at jessicam@qbmlaw.com

Clawback of leasing incentives

February 28, 2025
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Back in 2014, QBM Lawyers successfully applied to dismiss proceedings claiming the clawback (repayment) of over $1M in leasing incentives which were claimed to be repayable because of the termination of the lease. This was in the matter of GWC Property Group Pty Ltd v Higginson [2014] QSC 264 (“the GWC Decision”). Common kinds of lease incentives are rental discounts, or fitout contributions. The GWC Decision was and remains significant because clawback provisions in incentive deeds (or in the lease itself) are frequently used by landlords to attempt to recover incentives paid, and the decision made it clear that at least in some circumstances – and depending upon the effect of the clawback provision – the obligation would be void and unenforceable as what is known in legal terms to be a “penalty”. The GWC Decision has been referred to in a number of subsequent court decisions in courts and Tribunals in Queensland and other states. In 2023, the Queensland Supreme Court in the matter of BMG SP Pty Ltd v YFG Strathton Pty Ltd [2023] QSC 52 held that the obligation to repay a proportion of the fitout contribution was unenforceable as penalties, with the result that the Plaintiff’s claim in those proceedings of $993,607.29 were not recoverable. The decision relied substantially upon the reasoning of Her Honour Justice Dalton in the GWC Decision. The fact that an obligation is unenforceable because it is a penalty does not necessarily mean however that the lessor is left without any remedy at all. Even if a lease incentive could not be claimed back because it would be a penalty, the lessor in many cases can still sue the lessee and guarantors for damages for the breach or termination of the lease if that is the event that gave rise to the obligation to pay the incentive. In the GWC proceedings, the lessor was left with no remedy at all because the lease did not have guarantors (whereas the incentive deed did) and the tenant was in liquidation. Those circumstances however were usual. In most cases, the inability to claim the clawback of lease incentives if they were a penalty would still leave the landlord with remedies against the tenant and any guarantors for its losses consequent upon the breach of the lease. For advice in relation to leasing and lease disputes, please contact Peter Muller at peterm@qbmlaw.com.au and Jessica Murray at jessicam@qbmlaw.com

Author: admin

Dealership ordered to repay purchase price of car rejected after 18 months of ownership

What if you cannot find the original of a Will?

Granny Flat Disaster

Clawback of leasing incentives

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