MOTOR DEALERS AND CHATTEL AUCTIONEERS ACT 2014 - SCHEDULE 1

MOTOR DEALERS AND CHATTEL AUCTIONEERS ACT 2014 - SCHEDULE 1

SCHEDULE 1 – Statutory warranty provisions

Part 1 - Preliminary

1 Definitions for sch 1

In this schedule—


"built date" see section 3C (1) .


"class A warranted vehicle" see section 3A .


"class B warranted vehicle" see section 3B .


"defect" see section 2 .


"defect notice" see section 9 (1) .


"licensee" includes a person performing the activities of a licensee without a licence.


"repair period" see section 12 (2) .


"statutory warranty" means the warranty under section 7 .


"time of taking possession" , of a vehicle, means when the buyer of the vehicle takes possession of the vehicle under a contract for its purchase.


"warranted vehicle" see section 3 .


"warrantor" , of a warranted vehicle, means the licensee who owns the vehicle immediately before the time of taking possession.

Examples—

1 A, a motor dealer, sells a warranted vehicle owned by A at auction. A is the warrantor of the vehicle.

2 A, a chattel auctioneer, sells a warranted vehicle owned by D, a motor dealer, at auction. D is the warrantor of the vehicle.

2 Meaning of defect

A warranted vehicle has a
"defect" for this schedule if—

(a) a part of the vehicle does not perform its intended function; or

(b) a part of the vehicle has deteriorated to an extent where it can not reasonably be relied on to perform its intended function.

3 Meaning of warranted vehicle

A
"warranted vehicle" is a used motor vehicle other than—

(a) an unregistered motor vehicle that is—

(i) incapable of being registered in Queensland because of its design; or

(ii) a written-off vehicle; or

(b) a motor vehicle sold on consignment, unless the owner of the vehicle is a licensee; or

(c) a commercial vehicle; or

(d) a caravan; or

(e) a motorcycle.

3A Meaning of class A warranted vehicle

A
"class A warranted vehicle" is a warranted vehicle that—

(a) on the day of its sale, has an odometer reading of less than 160,000km; and

(b) has a built date of no more than 10 years before the day of its sale.

3B Meaning of class B warranted vehicle

A
"class B warranted vehicle" is a warranted vehicle that—

(a) on the day of its sale, has an odometer reading of 160,000km or more; or

(b) has a built date of more than 10 years before the day of its sale.

3C Meaning of built date

(1) Subject to subsection (2) , for sections 3A (b) and 3B (b) , the
"built date" of a warranted vehicle is—

(a) if the date the vehicle was manufactured is shown on the vehicle—that date; or

(b) if paragraph (a) does not apply—the date stamped or printed on the vehicle’s identification plate; or

(c) if neither paragraph (a) or (b) applies—the date of manufacture of the vehicle entered for the vehicle in the register of approved vehicles under the Road Vehicle Standards Act 2018 (Cwlth) .

(2) For a date under subsection (1) (a) , (b) or (c) that refers only to a month in a particular year, the date for the paragraph is taken to be the first day of the next month.

(3) In this section—


"identification plate" has the meaning given by the repealed Motor Vehicle Standards Act 1989 (Cwlth) .


"shown" , on a vehicle, means—

(a) stamped on—

(i) a metal component of the vehicle; or

(ii) a plate, other than an identification plate, affixed to the vehicle; or

(b) printed on a label, other than an identification plate, affixed to the vehicle.

4 Meaning of warranty period

(1) Subject to subsection (3) , the
"warranty period" of a class A warranted vehicle starts at the time of taking possession and ends when the first of the following happens or is reached—

(a) the vehicle travels 5,000km since the time of taking possession;

(b) 5p.m. on—

(i) the day 3 months after the time of taking possession if—

(A) that day is not a Sunday or public holiday; and

(B) on that day the warrantor’s place of business is open for business; or

(ii) the first day, after the day 3 months after the time of taking possession, that—

(A) is not a Sunday or public holiday; and

(B) the warrantor’s place of business is open for business.

(2) Subject to subsection (3) , the
"warranty period" of a class B warranted vehicle starts at the time of taking possession and ends when the first of the following happens or is reached—

(a) the vehicle travels 1,000km since the time of taking possession;

(b) 5p.m. on—

(i) the day 1 month after the time of taking possession if—

(A) that day is not a Sunday or public holiday; and

(B) on that day the warrantor’s place of business is open for business; or

(ii) the first day, after the day 1 month after the time of taking possession, that—

(A) is not a Sunday or public holiday; and

(B) the warrantor’s place of business is open for business.

(3) The warranty period under subsection (1) or (2) is extended by 1 day for each day or part of a day the warranted vehicle is not in the possession of the buyer of the vehicle if—

(a) the buyer has complied with section 9 (1) ; and

(b) a defect in the vehicle is being repaired by, or at the direction of, the warrantor of the vehicle under the statutory warranty.

5 Application of sch 1

(1) This schedule applies to each warranted vehicle sold by a licensee—

(a) as the owner of the vehicle; or

(b) on consignment for another licensee.

(2) However, this schedule does not apply to the sale of a motor vehicle by a licensee to—

(a) another licensee; or

(b) a person holding a licence, however described, under a corresponding law that is similar to a licence under this Act.

Part 2 - Provisions about statutory warranty

Division 1 - General

6 Licensee must give buyer notice about statutory warranty

(1) A licensee who sells a warranted vehicle must give the buyer of the vehicle a notice in the approved form—

(a) if the vehicle is sold by auction—immediately after the contract for its purchase is entered into; or

(b) otherwise—before a contract for its purchase is entered into.

Penalty—

Maximum penalty—100 penalty units.

(2) The buyer must acknowledge receipt of the notice by signing a copy of it.

(3) A reference in subsection (1) to the
"buyer" of a warranted vehicle that is sold other than by auction includes a reference to the buyer as the proposed buyer of the vehicle before it is sold.

7 Statutory warranty

(1) The warrantor of a warranted vehicle warrants that—

(a) the vehicle is free from defects at the time of taking possession and for the warranty period; and

(b) defects in the vehicle reported during the warranty period will be repaired by the warrantor free of charge.

(2) In this section—


"defects" does not include defects not covered by the statutory warranty.

8 Defects not covered by statutory warranty

The following defects in a warranted vehicle are not covered by the statutory warranty—

(a) a defect in the vehicle’s paintwork or upholstery that should have been apparent on any reasonable inspection of the vehicle before the time of taking possession;

(b) a defect after the time of taking possession—

(i) arising from or incidental to any accidental damage to the vehicle; or

(ii) arising from the buyer’s misuse or negligence; or

(iii) in an accessory to the vehicle not fitted to the vehicle when sold to the buyer;

(c) a defect in something else prescribed by regulation.

9 Buyer’s obligations under statutory warranty

(1) If the buyer of a warranted vehicle believes the vehicle has a defect the warrantor of the vehicle is obliged to repair under this part, the buyer must give the warrantor written notice of the defect (
"defect notice" ) before the end of the warranty period and—

(a) if the warranted vehicle is 200km or less from the warrantor’s place of business when the defect notice is given—deliver the vehicle to—

(i) the warrantor to repair the defect; or

(ii) a qualified repairer nominated by the warrantor, by signed writing given to the buyer of the vehicle, to repair the defect; or

(b) if the warranted vehicle is more than 200km from the warrantor’s place of business when the defect notice is given—

(i) deliver the warranted vehicle to the qualified repairer nominated by the warrantor by signed writing given to the buyer of the vehicle and nearest to the vehicle to repair the defect; or

(ii) deliver, at the warrantor’s expense, the warranted vehicle to another qualified repairer nominated by the warrantor by signed writing given to the buyer of the vehicle to repair the defect.

(2) The buyer is taken to deliver the vehicle and the warrantor is taken to have possession of the vehicle if the buyer makes reasonable efforts to deliver the vehicle under this section but is unable to do so because the warrantor, or the qualified repairer nominated by the warrantor, refuses to accept delivery of the vehicle.

(3) The place of delivery under subsection (1) (a) (ii) must not be more than 20km from the warrantor’s place of business, unless the warrantor and the buyer otherwise agree.

(4) In this section—


"qualified repairer" , for a warranted vehicle the subject of a defect notice, means a person who is, or holds the qualifications necessary to be appointed under the Transport Operations (Road Use Management) Act 1995 , section 21 to be, an accredited person to perform vehicle safety inspections for the vehicle.


"warrantor" includes someone apparently working for the warrantor at the warrantor’s place of business.

10 Warrantor to record particulars of extension of warranty period

The warrantor must keep a record, in the way prescribed under a regulation, of the day the warranted vehicle is delivered to the warrantor or nominated qualified repairer under section 9 and the day the vehicle is returned to the buyer.

Penalty—

Maximum penalty—100 penalty units.

11 Warrantor to advise whether defect covered by statutory warranty

(1) This section applies if a defect notice is given, and the vehicle is delivered, under section 9 .

(2) The warrantor must advise the buyer in writing (
"warranty advice" ) whether the warrantor accepts or refuses to accept that the defect is covered by the statutory warranty.

(3) If the warrantor fails to give the warranty advice within 5 business days after receiving the defect notice and delivery of the vehicle, the warrantor is taken to have given a warranty advice accepting that the defect is covered by the statutory warranty.

(4) In this section—


"business day" , for the giving of a warranty advice by a warrantor, means a day, other than Sunday or a public holiday, when the warrantor’s place of business is open for business.

12 Warrantor’s obligation to repair defects

(1) If the warrantor accepts that the defect in the vehicle is covered by the statutory warranty, the warrantor must repair the defect at the warrantor’s expense.

(2) The warrantor must ensure that the defect is repaired within 14 days after the warrantor accepts that the defect is covered by the statutory warranty (
"repair period" ), unless the warrantor has a reasonable excuse.

Penalty—

Maximum penalty—200 penalty units.

(3) The warrantor—

(a) must, if the warrantor stops carrying on the business, or performing the activities, of a licensee, nominate someone else to repair the defect; and

(b) may otherwise nominate someone else to repair the defect.

(4) If the warrantor nominates a person to repair the defect under subsection (3) , the warrantor must advise the buyer of the person’s name and the address where the vehicle is to be repaired.

(5) The warrantor is taken to have repaired the defect if the part of the vehicle affected by the defect is repaired so that it can be reasonably relied on to perform its intended function.

(6) The warrantor’s obligation to repair the defect under this section continues even though the warrantor is no longer carrying on the business, or performing the activities, of a licensee.

Division 2 - Warrantor’s failure to repair

13 Application of division

This division applies if the warrantor has by warranty advice or otherwise—

(a) refused to accept that the defect is covered by the statutory warranty; or

(b) accepted that the defect is covered by the statutory warranty but—

(i) failed to repair the defect within the repair period; or

(ii) failed to repair the defect so that the defective part can be reasonably relied on to perform its intended function.

14 Jurisdiction of QCAT

The buyer may apply, as provided under the QCAT Act , to QCAT for an order under section 15 if the amount or value of other relief sought is no more than $100,000.

15 Orders QCAT may make

(1) In a proceeding under section 14 , QCAT may make only the following orders—

(a) an order that the defect is or is not a defect covered by the statutory warranty;

(b) an order extending the warranty period for the warranted vehicle to a specified date;

(c) an order declaring the warranted vehicle is covered by the statutory warranty until a specified date;

(d) an order requiring a party to the proceeding to pay a stated amount to a stated person;

(e) an order that a stated amount is not due or owing by the applicant to a stated person, or by any party to the proceeding to the applicant;

(f) an order requiring a party to the proceeding, other than the applicant, to perform work to rectify a defect in the warranted vehicle;

(g) an order requiring a party to the proceeding to return the warranted vehicle if it is in the party’s possession or control to a stated person;

(h) an order combining 2 or more orders mentioned in paragraphs (a) to (g).

(2) Without limiting subsection (1) (d) , QCAT may make an order that the warrantor pay to the buyer a stated amount QCAT decides is the reasonable cost of having a defect repaired if—

(a) the warrantor has, by warranty advice or otherwise, refused to accept that the defect is covered by the statutory warranty; and

(b) the buyer has had the defect repaired by another person; and

(c) QCAT decides that the defect was one to which the statutory warranty applied.

(3) However, QCAT can not make an order under subsection (1) that—

(a) purports to require payment of an amount, performance of work or return of the warranted vehicle of a value of more than $100,000; or

(b) purports to grant relief of a value of more than $100,000 from the payment of an amount; or

(c) combines 2 or more orders mentioned in subsection (1) and purports to award or declare entitlements or benefits (or both) of a total value of more than $100,000.

(4) Also, QCAT may make an order under subsection (1) (b) or (c) only if it is satisfied—

(a) the vehicle was not able to be used by the buyer for a period during the warranty period; and

(b) the period from which the order is to be effective to the date the warranty period is to end, and the period during which the vehicle was able to be used by the buyer, taken together, are not more than 3 months.

16 Contravention of QCAT order

(1) If QCAT makes an order under section 15 in the buyer’s favour and the warrantor contravenes the order, the contravention is a ground for starting disciplinary proceedings under section 194 .

(2) Subsection (1) does not limit any right the buyer may have to enforce the order.

17 Expedited hearing

An expedited hearing under the QCAT Act , section 94 , may be conducted for a proceeding under section 14 if—

(a) the amount or value of other relief sought in the proceeding is not more than $25,000; or

(b) the president of QCAT considers it appropriate having regard to—

(i) the nature and complexity of the proceeding; and

(ii) the views of the parties to the proceeding; and

(iii) anything else the president considers relevant.

18 Costs

QCAT may make an order under section 102 (1) of the QCAT Act against a party to a proceeding under section 14 —

(a) only if the party is a respondent against whom QCAT has made a final decision; and

(b) only to order the party to pay to the applicant the amount of any prescribed fee paid by the applicant on filing the application for the proceeding.

19 Constitution of QCAT

For section 195 (b) of the QCAT Act , an adjudicator may hear and decide a proceeding under section 14 if either or both of the following apply—

(a) the amount or value of other relief sought in the proceeding is not more than $25,000;

(b) an expedited hearing is to be conducted for the proceeding.

20 Applications for more than QCAT’s jurisdictional limit

(1) This section applies if—

(a) a provision of this division provides that an application may be made to QCAT about a matter; and

(b) a person seeks the payment of an amount or other relief of a value greater than $100,000 in relation to the matter.

(2) A provision of this division about the matter applies—

(a) as if a reference to QCAT were a reference to the court having jurisdiction for the recovery of a debt equal to the amount or value of relief sought; and

(b) with all other necessary changes to give effect to paragraph (a) .