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  4. Ledger v Marine Power International LLC - [2022] QCAT 139

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Ledger v Marine Power International LLC[2022] QCAT 139

Ledger v Marine Power International LLC[2022] QCAT 139

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Ledger v Marine Power International LLC [2022] QCAT 139

PARTIES:

ALLAN LEDGER

(applicant)

V

MARINE POWER INTERNATIONAL LLC (formerly Marine Power internationaL PTY LTD)

(respondent)

APPLICATION NO/S:

MCDO488-21

MATTER TYPE:

Other minor civil dispute matters

DELIVERED ON:

19 April 2022

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Adjudicator Lember

ORDERS:

  1. The application against Marine International Pty Ltd is dismissed.
  2. The applicant is directed to file an application to join R & T maintenance Pty Ltd as a Respondent to these proceedings by 25 March 2022.
  3. If the applicant does not comply with Direction 2 of these orders the application in its entirety will be automatically dismissed.
  4. If the applicant does comply with Direction 2, the application for joinder will be considered on the papers.
  5. The hearing scheduled for 10 March 2022 is adjourned to a date to be fixed pending the outcome of the above directions.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – minor civil dispute – consumer dispute – where proceedings commenced against incorrect party – where Australian distributor deemed manufacturer 

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – OTHER MATTERS – whether proceedings should be dismissed under s 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

Competition and Consumer Act 2010 (Cth) s 47

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 4, s 13, s 32, s 42, s 47, s 95, s 122

Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 84

Agar v Hyde (2000) 201 CLR 552

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175

Australian Woollen Mills Pty Ltd v Commonwealth (1955) 93 CLR 546

Creek v Raine & Horne Real Estate Mossman [2011] QCATA 226

Dey v Victorian Railways Commissioners [1949] 78 CLR 62

Fox v Percy (2003) 214 CLR 118

Frost v State of Queensland & Ors [2020] QCAT 67

General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125

Markan v Bar Association of Queensland [2013] QSC 146

Platinum United II Pty Ltd & Anor v Secured Mortgage Management Ltd (in liq) [2011] QCA 162

Spencer v Commonwealth (2010) 241 CLR 118

Yeo v Brisbane Polo Club Inc [2013] QCAT 261

APPEARANCES &

REPRESENTATION:

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

What is the application about?

  1. [1]
    On 6 March 2019 Mr Ledger, the applicant, contracted to buy a Stessco Chaser 409 KTD Hull with a Mercury 30HP 4-stroke outboard motor (“the boat package”) from Karee Marine, an Australian business traded by R & T Maintenance Pty Ltd (“Karee Marine”).
  2. [2]
    Karee Marine is a Mercury Marine dealer under a Standard Dealer Agreement with the respondent dated 10 November 2010 (“the dealership agreement”).  Pursuant to that agreement, the respondent sells Mercury outboard engines, as well as other identified parts and accessories to Karee Marine to be on-sold in Australia. By clause 10.1 of the dealership agreement Karee Marine is required to offer a manufacturer’s warranty and other warranties as published in the Dealer Manual, and under clause 10.2 the respondent is not responsible for any misrepresentations made by Karee Marine regarding the performance, suitability or ability of the products sold. 
  3. [3]
    By an application for a minor civil dispute – consumer dispute filed 28 April 2021, Mr Ledger sought orders for a refund of the sum of $7,288.00 comprising:
    1. (a)
      $6,750.00 paid to Karee Marine for the 30HP outboard engine as part of the boat package; plus
    2. (b)
      $538.00 paid to Coffs Harbour Marine for a propellor upgrade in an attempt to rectify the difficulties with the engine. 
  4. [4]
    Mr Ledger said that he will return the motor to Coffs Harbour Marine (another authorised dealer of the respondent) upon receipt of his refund, with the cost of removing the motor to be met by the respondent.
  5. [5]
    The grounds of Mr Ledger’s application are set out in Part C.2 of his application and may be summarised as follows:
    1. (a)
      At the time he placed his holding deposit in March 2019, Mr Ledger told Karee Marine that he was retiring interstate, and that he intended to fish the local river as well as offshore. He asked for lifejackets to be upgraded, reflecting his intention to comply with interstate boating regulations and to fish offshore, which he says is evidence that this conversation in which he expressed his intentions did occur.
    2. (b)
      As Mr Ledger had no means of storing the boat at the time of purchase, he agreed that the boat package would remain in the dealer’s possession until after the Brisbane Boat Show event, and therefore the boat package remained with Karee Marine until 31 May 2019.
    3. (c)
      Mr Ledger said he called into the dealership on numerous occasions in the intervening period with a view to replicating some modifications and to organising interstate registration.
    4. (d)
      Mr Ledger produced a copy of the advertisement he responded to for the boat package that included the Mercury 30HP engine, as well as a photograph of the Hull Builder’s Plate which indicated the maximum outboard that should be attached to the vessel was a 40 HP engine.
    5. (e)
      He also attached invoices from Coffs Harbour Marine as follows:
      1. 9 June 2020, for a service and tune as per Mercury specifications, with a notation made that the boat had “no first service completed or logged, warranty will revert back to 3 years”;
      2. 25 November 2020, to “Run motor on earmuffs to diagnose problem. Did not find any problem, took to water, water tested, still no issue found”; and 
      3. 5 January 2021, with the following notation:

Took boat to water, found boat very slow to get on the plane with two people in boat. Recommend to fit 9 pitch prop to boat. Rewater test with the new prop. Boat was more responsive to get on the plane.

**Motor hit limiter**

  1. (f)
    By letter dated 16 February 2021 Mr Ledger wrote to the respondent’s customer service manager and said:

I have recently discovered that with two persons on board, the boat labours to get onto the plane. With one person the boat reaches 21 knots, with two persons only 7 knots.

  1. (g)
    After explaining his experience, he concludes “the boat is under powered” and that “a 40 HP outboard is the correct engine for this 4.1m hull configuration. The Australian builders plate supports this”.
  1. [6]
    Mr Ledger pursued the respondent rather than Karee Marine because he said manufacturers must meet consumer guarantees due to an act, default, omission or representation made by an agent of the manufacturer and that Karee Marine acted as an agent for the respondent, with ostensible authority to contract on their behalf.  He relies upon evidence that includes the following:
    1. (a)
      The invoice for his purchase of the boat package is in the name “Karee Marine” with an ABN displayed, but surrounded by several logos including Stessco, Tournament Pleasure Boats, McLay Boats, Dunbier, Mercury, and RedCo.
    2. (b)
      By a letter dated 23 March 2021 the respondent informed the applicant that they are the Australian distributor of Mercury outboard engines, that products are manufactured to the highest standard and are distributed to a network of independent authorised dealers and said:

We support our dealer network in many ways to ensure that they are able to deliver the highest standards when giving their customers information about our products and when servicing and repairing these products.

However all dealers are independently owned and operated and they retail products as independent resellers. Your assertion that dealers are agents of Marine Power International is not correct.

  1. [7]
    The applicant tendered correspondence written by lawyers for the respondent to the Australian Competition and Consumer Commission in 2007 (in relation to approvals for exclusive dealing) which states that the respondent has a network of Mercury dealers who are authorised to market and sell Mercury branded engines to end customers and to provide after sales servicing, maintenance and repair of engines.
  2. [8]
    Mr Ledger says this language describes a principle and agent relationship rather than an independent reseller relationship.
  3. [9]
    The applicant also says that Karee Marine is an authorised dealer and the Mercury logo is prominent on the display signage on the dealership premises and within their showroom. He says the dealership carries Mercury promotional material for customers in a Mercury branding even transits through the dealership’s tax invoices. He says it is reasonable to rely on Karee Marine as being a Mercury authorised dealer as agent for the respondent.
  4. [10]
    The respondent filed an application for miscellaneous matters seeking to dismiss the application on 4 January 2022. Accompanying the application was an affidavit by Nicholas Webb who is a senior manager in the employee of the respondent with responsibility for engine products, after sales and marketing for the Australia, New Zealand and Pacific region. According to Mr Webb:
    1. (a)
      the respondent carries on business as an importer and distributor of Mercury Marine engines and related parts and accessories that include Mercury outboards;
    2. (b)
      these products are distributed to a network of dealers, of which Karee Marine are one;
    3. (c)
      the dealers are all independent businesses, and the relationship between the respondent and each dealer is one of “seller and buyer”;
    4. (d)
      dealers purchase product from the respondent as stock and resell it to retail buyers in their own right, not on behalf of or as an agent for the respondent;
    5. (e)
      the applicant purchased the 30HP outboard engine the subject of the proceedings as a component of a package from Karee Marine;
    6. (f)
      the respondent did not supply the boat or trailer to Karee Marine; and
    7. (g)
      the motor supplied with the package is specified to produce a power output of 30HP – the applicant does not allege that it does not, rather, the applicant says:

at no time… did the dealer conversant with my intended use of the boat, offer a recommendation that I should consider upgrading from the 30 HP engine to a 40 HP engine in line with the holes maximum rating. The boat lacks performance with a 30 HP engine.

The dealer breached Australian consumer guarantee quote that the goods are “fit for the purpose the consumer makes known to the supplier.

  1. [11]
    The respondent says the issue of the motor’s suitability for the boat is solely a matter between the applicant and Karee Marine. The respondent reiterates that the motor was supplied to the applicant as a component of a boat motor trailer package, noting that the other components of the package including the boat and trailer were supplied by third parties.
  2. [12]
    The respondent therefore says the applicant’s claim against the respondent is misconceived, lacking in substance and has no real or genuine prospect of success, and seeks an order pursuant to section 47 of the Queensland Civil and Administrative Tribunal Act 2009 (“QCAT Act”) that the claim be dismissed or struck out on those bases.
  3. [13]
    On 22 February 2022, I found in the respondent’s favour and dismissed the application for a minor civil dispute – consumer dispute as against the respondent. This could have been the end of the matter, but, instead, I made directions giving the applicant an opportunity to join R & T Maintenance Pty Ltd as a respondent, failing which the application would be dismissed. I adjourned the hearing scheduled for 10 March 2022 in order that directions might be followed. The applicant has requested reasons for that decision and those directions[1] and they are set out below.

The Tribunal’s jurisdiction in this dispute

Contracts between consumers and traders

  1. [14]
    The Tribunal has jurisdiction to hear minor civil disputes.[2]  Claims arising out of a contract between a consumer and a trader are minor civil disputes.[3] I am satisfied that the applicant is a consumer and that the respondent is a trader.  But were thy
  2. [15]
    A contract requires an offer, acceptance of that offer, consideration for the promises made and an intention to create legal relations.[4] The terms must be certain, and the parties must have capacity to contract.
  3. [16]
    An agency exists where one person is accepted by the law to represent another, the principal, in such a way as to be able to affect the principal’s legal position with respect to others, for example, by entering contracts.
  4. [17]
    In true agency, the principal gives authority to the agent to bind the principal in transactions with others. The authority can be implied from the conduct of the principal and the agent making it reasonable to infer that authority has been given.
  5. [18]
    No formality is required to give such authority.
  6. [19]
    Agency may also arise through the doctrine of estoppel to prevent a principal from denying an agent’s authority to bind the principal. By this doctrine the agent has ostensible or apparent authority to bind the principal, and this occurs when the principal by words or conduct represents to another that the agent has authority to bind the principal and the other relies on that representation in dealing with the agent.
  7. [20]
    Generally, only the principal will be liable on contracts made through agents, but if the agent fails to disclose either the existence or the name of the principal then the agent will be personally liable on the contract as a direct contracting party.

The power to strike out

  1. [21]
    As a matter of procedure, proceedings may be finally determined, or interlocutory applications decided by the Tribunal upon the written submissions of the parties without those parties or their representatives appearing at a hearing.[5]  These proceedings are known as decisions made “on the papers”.
  2. [22]
    The Tribunal must allow a party to a proceeding a reasonable opportunity to call or give evidence and to make submissions to the Tribunal[6] and I am satisfied that this process has taken place.
  1. [23]
    The Tribunal is mandated[7] to deal with matters in a way that is accessible, fair, just, economical, informal and quick, and must also:
    1. (a)
      encourage the early and economical resolution of disputes before the Tribunal;[8] and
    2. (b)
      ensure proceedings are conducted in an informal way that minimises costs to the parties and is as quick as is consistent with achieving justice.[9]
  2. [24]
    Section 13 of the QCAT Act obliges the Tribunal to make orders that it considers fair and equitable to the parties to the proceeding to resolve the dispute but may, if the Tribunal considers it appropriate, make an order dismissing the application.
  3. [25]
    The Tribunal need also be mindful that their resources serve the public as a whole, not just the parties to the proceedings, Justice Wilson noting in Creek v Raine & Horne Real Estate Mossman[10] that:

The statutory regime under which QCAT operates places obligations upon parties themselves to take care in their dealings with Tribunal matters, and to act in their own best interests. QCAT’s resources for the resolution of disputes are in high demand and serve, as the High Court has recently observed in relation to court resources, “… the public as a whole, not merely the parties to the proceedings”.[11]  Finality in litigation is highly desirable, because any further action beyond the hearing can be costly and unnecessarily burdensome on the parties.[12]

  1. [26]
    The Tribunal can act on its own initiative[13] under section 47 of the QCAT Act to strike out or dismiss a proceeding if the Tribunal considers a proceeding is:
    1. (a)
      frivolous, vexatious or misconceived; or
    2. (b)
      lacking in substance; or
    3. (c)
      otherwise an abuse of process.
  2. [27]
    However, the power to strike out ought only to be exercised “sparingly” and “when a claim is groundless or futile”.[14]
  3. [28]
    According to Dey v Victorian Railways Commissioners,[15] in considering a strike out application, the evidence should be weighed to reach a conclusion about whether the applicant has an arguable case.  A lack of any cause of action must be very clear.[16]   The Tribunal ought to be satisfied to a “high degree of certainty about the outcome” to strike the proceeding out.[17]
  4. [29]
    Summary dismissal should not be granted simply because it appears an applicant is unlikely to succeed on an issue of fact, in circumstances where there are factual issues in dispute and capable of dispute.[18]

Discussion and findings

  1. [30]
    On the issue of agency, it is for the applicant to satisfy me that the agency exists sufficiently to enable the Tribunal to hold the respondent to account for the actions of Karee Marine, and he has not done so for several reasons:
    1. (a)
      There is no express authority establishing an agency.
    2. (b)
      As for ostensible authority, the applicant has not established words or conduct by the respondent that represented that Karee Marine had authority to bind them.  The implication cannot be drawn from the use of logos and promotional material. Otherwise, it would extend to all re-sellers who display logos and promotional material of their suppliers and who give advice when selling packages: Bunnings, for example, who package kitchens together with components such as cabinets, tapware and appliances from different suppliers. 
    3. (c)
      The implication cannot be drawn from the 2007 ACCC letter regarding exclusive dealing because:
      1. The applicant was not aware of the letter in making his purchase and, therefore, did not rely on it in making the purchase; and
      2. In any event, the letter does not contain an express statement or admission that dealers act as agents for the respondent and, if it does, it is only to the extent of performing work to satisfy manufacturer’s warranties that the respondent is obliged to provide; and
      3. Importantly, the entire purpose of the 2007 letter was to give notice of exclusive dealing in the nature of third line forcing that might contravene sections 47(6) and (7) of the then Trade Practices Act 1974 (Cth)[19]. Third line forcing occurs where a corporation either (my emphasis added):
        1. supplies goods or services to a buyer on condition that the buyer buys other goods or services from another person (not related to the corporation); or
        2. refuses to supply goods or services to a buyer for the reason that the buyer has not bought, or has not agreed to buy, other goods or services from another person (not related to the corporation).
      4. In a true agency relationship, there is no third party, as there is only the principal, represented by the agent, and the consumer. The letter is not evidence of agency, but evidence against it.
    4. (d)
      If the applicant’s case was accepted, then the dealer, Karee Marine, in selling the boat package to the applicant necessarily also acted simultaneously as agent for the Stessco and Dunbier in the course of making the sale, because their products were included in the package and their logos appear on the invoice as well. 
  2. [31]
    The case for agency is simply not made out nor can it be in all the circumstances.
  3. [32]
    Even if am wrong, the agency can only have extended to the motor itself which is not defective.  It is not pleaded that it is defective nor do the invoices from Coffs Harbour Marine make any such findings.  It was sold as a 30HP engine and that is exactly what it is. 
  4. [33]
    The applicant’s argument is that the boat package he was sold was not fit for purpose, being interstate river and offshore fishing.  The package comprises the collective sum of a number of different parts: supplied to Karee Machine variously by Dunbier, Stessco and the respondent.
  5. [34]
    If someone is responsible to the applicant, and that is yet to be determined, that “someone” can only be the dealer who put the boat package together and who, according to the applicant recommended it to him as fit for his intended use.  There is simply no evidence or basis for finding that Karee Marine represented the respondent as an agent in packaging and selling the products of other companies.
  6. [35]
    In summary, the dealer traded as an independent business known as “Karee Marine” and sold in its business the products of several different marine suppliers and manufacturers in various combinations. 
  7. [36]
    I do not agree with the applicant’s argument that the arrangement between the respondent and Karee Marine, or statements made by the respondent, including those in their communication with the ACCC, are consistent with principal and agency relationships. If anything, they are more akin to a franchise which is also an arrangement where an independent business is given permission to sell products under a system or marketing plan or brand owned or controlled by the franchisor.
  8. [37]
    The application against the named respondent lacks substance and proceeding with it is futile.  I have no hesitation in dismissing it under section 47 of the QCAT Act on that basis.
  9. [38]
    Whilst dismissal of the application itself ought to have followed, I am mindful of the Tribunal’s obligation to guide parties under section 29(1)(a) of the QCAT Act.  I am also mindful of the Tribunal’s power under section 42 of the QCAT Act to join a party to proceedings where the Tribunal considers that:
    1. (a)
      the person should be bound by or have the benefit of a decision of the Tribunal in the proceeding; or
    2. (b)
      the person’s interests may be affected by the proceeding; or
    3. (c)
      for another reason, it is desirable that the person be joined as a party to the proceeding.
  10. [39]
    Therefore, I made directions that offered the applicant an opportunity to consider whether it wishes to seek an order joining R & T Maintenance Pty Ltd (formerly trading as Karee Marine) to the proceedings, as the contracting party to his purchase of the boat package.[20]  However, if he did not take up that opportunity, there being no respondent remaining, the application would be dismissed.

Footnotes

[1]  Pursuant to section 122 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

[2]  Ibid, s 11.    

[3]  Ibid, Schedule 3 (definition of ‘minor civil dispute’).

[4]Australian Woollen Mills Pty Ltd v Commonwealth (1955) 93 CLR 546.

[5]  Ibid, s 32(2).

[6]  Ibid, s 95(1).

[7]  Section 3(b), ibid.

[8]  Section 4(b), ibid.

[9]  Section 4(c), ibid.

[10]  [2011] QCATA 226 at paragraph [13].

[11] Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at 217.

[12] Fox v Percy (2003) 214 CLR 118 at 128 per Gleeson CJ, Kirby and Gummow JJ.

[13]  Section 47(3) of the QCAT Act.

[14] Yeo v Brisbane Polo Club Inc [2013] QCAT 261, [5]-[7] citing Dey v Victorian Railways Commissioners [1949] 78 CLR 62.

[15]  [1949] 78 CLR 62.

[16] General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125.

[17] Yeo, ibid at [6], citing Agar v Hyde (2000) 201 CLR 552; Platinum United II Pty Ltd & Anor v Secured Mortgage Management Ltd (in liq) [2011] QCA 162; Markan v Bar Association of Queensland [2013] QSC 146.

[18] Spencer v Commonwealth (2010) 241 CLR 118.

[19]  Now s 47(6) and (7) of the Competition and Consumer Act 2010 (Cth).

[20]  Normally applications to join a party should be done formally: Frost v State of Queensland & Ors [2020] QCAT 67.

Close

Editorial Notes

  • Published Case Name:

    Ledger v Marine Power International LLC

  • Shortened Case Name:

    Ledger v Marine Power International LLC

  • MNC:

    [2022] QCAT 139

  • Court:

    QCAT

  • Judge(s):

    Adjudicator Lember

  • Date:

    19 Apr 2022

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Agar v Hyde (2000) 201 CLR 552
2 citations
Jump To
Cite 1 - (2000) 201 CLR 552
Cite 2 - (2000) 201 CLR 552
Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175
2 citations
Jump To
Cite 1 - (2009) 239 CLR 175
Cite 2 - (2009) 239 CLR 175
Australian Woollen Mills Proprietary Limited v The Commonwealth (1955) 93 CLR 546
2 citations
Jump To
Cite 1 - (1955) 93 CLR 546
Cite 2 - (1955) 93 CLR 546
Creek v Raine & Horne Real Estate Mossman [2011] QCATA 226
2 citations
Jump To
Cite 1 - [2011] QCATA 226
Cite 2 - [2011] QCATA 226
Dey v Victorian Railways Commissioners (1949) 78 CLR 62
3 citations
Jump To
Cite 1 - (1949) 78 CLR 62
Cite 2 - (1949) 78 CLR 62
Cite 3 - (1949) 78 CLR 62
Fox v Percy (2003) 214 CLR 118
2 citations
Jump To
Cite 1 - (2003) 214 CLR 118
Cite 2 - (2003) 214 CLR 118
Frost v State of Queensland [2020] QCAT 67
2 citations
Jump To
Cite 1 - [2020] QCAT 67
Cite 2 - [2020] QCAT 67
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
2 citations
Jump To
Cite 1 - (1964) 112 CLR 125
Cite 2 - (1964) 112 CLR 125
Markan v Bar Association of Queensland [2013] QSC 146
2 citations
Jump To
Cite 1 - [2013] QSC 146
Cite 2 - [2013] QSC 146
Platinum United II Pty Ltd v Secured Mortgage Management Ltd (in liq) [2011] QCA 162
2 citations
Jump To
Cite 1 - [2011] QCA 162
Cite 2 - [2011] QCA 162
Spencer v The Commonwealth (2010) 241 CLR 118
2 citations
Jump To
Cite 1 - (2010) 241 CLR 118
Cite 2 - (2010) 241 CLR 118
Yeo v Brisbane Polo Club Inc [2013] QCAT 261
2 citations
Jump To
Cite 1 - [2013] QCAT 261
Cite 2 - [2013] QCAT 261

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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