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Kurzelewski v Knapp[2016] QCATA 32


Kurzelewski v Knapp [2016] QCATA 32












16 March 2016




Justice Carmody


31 March 2016





  1. The application for leave to appeal is granted.
  2. The appeal is allowed.
  3. The respondent must pay the applicant an amount in the sum of $1,240 within 28 days.


APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – where the applicant purchased faulty goods – where the Tribunal awarded partial compensation – whether fitness of the goods was misrepresented – whether breach of warranty – whether the Tribunal should award full compensation.



Dariusz Marek Kurzelewski (self-represented)


Leslie John Knapp (self-represented)


  1. [1]
    This is an application for leave to appeal against an order in a minor civil dispute awarding the purchaser of faulty goods (the applicant) partial compensation ($1,000) instead of a full refund ($2,240) for breach of the sale contract.

The context

  1. [2]
    The applicant purchased 14 batteries (seven as new and seven as used) for $2,240 paid in instalments from Gary (aka Rodney) Goodwin who is the caretaker of the respondent’s property.
  2. [3]
    He was told that the new batteries had a shelf life of about 10 years and that the used ones would last for up to three years. They were also represented to be suitable for running 240v appliances.
  3. [4]
    In January 2015 the applicant connected all of the batteries to solar panels to charge them but found that they were shutting down at night and failing to hold power. Ordinarily a battery of this kind would only need charging once a month. According to the applicant the batteries were not fit for the represented purpose and had been exhausted by usage at the time of purchase. They have since been returned to the respondent.
  4. [5]
    The applicant’s case was that the respondent was personally involved in the negotiations leading to the sale of the batteries on his behalf by Mr Goodwin.

The evidence

  1. [6]
    The following oral evidence was given by the parties at the Tribunal hearing about the applicant’s knowledge of the sale transaction and whether he received any of the proceeds:
  2. [7]
    At 1-9 [10-30]:

“MR KNAPP: Gary Goodwin.

BENCH: And was he going to sell these batteries for you?

MR KNAPP: I – I don’t know. I’ve been – like I said

BENCH: Are they – did you own these batteries?

MR KNAPP: Yes, I did.

BENCH: Did you get money from these batteries?


BENCH: You didn’t.

MR KNAPP: No. I’ve paid out for them, to buy them; and I had them at my property, to put in caravans for lights and things.

BENCH: Did you get any money from Rodney [indistinct] this other man?


BENCH: You didn’t.


  1. [8]
    At 1-16 [40] -1-17 [1-2]:

“MR KURZELEWSKI: I – it’s not true, your Honour. Mr Knapp agreed to – “bring the batteries back”, which I – I [indistinct] three or four times to – to bring them back, because the gate was locked. And I called again Mr Knapp. I had to actually drive away to get some reception, because there’s no reception at that place. Then I said to Mr Knapp that you know, Rodney and [indistinct] they were playing games and I – I had enough. And – and Mr Knapp said to just drop them at the front of the property, on the trailer. So I left on the trailer. I took the photographs. I took the photographs that the gate was locked, because [indistinct]”

  1. [9]
    And at 1-14 [40] – 1-15 [30]:

“BENCH: So you spoke to Mr Knapp

MR KURZELEWSKI: That’s correct.

BENCH: when you returned the batteries?

MR KURZELEWSKI: That’s correct. He told me to return [indistinct] agreed to return them and give me money back.

MR KNAPP: He’s rung me up on the phone.

MR KURZELEWSKI: When he was in hospital; in March, your Honour. And in November, Mr Knapp – the seven “new” batteries which I purchased in November, Rodney said that Mr Knapp is delivering [indistinct] delivered them. So he knew exactly

BENCH: Did he deliver them to your house?

MR KURZELEWSKI: No, no. I was picking up from the property at – at Koah.

BENCH: Did you ever have any direct contact with Mr Knapp at the time you purchased the batteries?

MR KURZELEWSKI: At the time? Yes. I was at Koah when Mr Knapp was – came – arrive in the – in the truck, and we were sitting and talking; and that was the period of time when I was purchasing [indistinct]

BENCH: So Mr Knapp was there when you removed the batteries?

MR KURZELEWSKI: Not exactly this – the day, but the – the – that was the [indistinct] you know, just two or three, four days’, you know, difference.

BENCH: Was he ever there on the property when you acquired the batteries or purchased the batteries?

MR KURZELEWSKI: Rodney was acting on behalf of – of Les.”

  1. [10]
    During the appeal hearing, the respondent denied the batteries were faulty at the time of sale claimed that the applicant was given two weeks to return the batteries if they were unsuitable and contrary to his evidence to the Tribunal admitted receiving $1,400 in cash from Rodney from the proceeds.
  2. [11]
    Thus, the respondent has $400 plus all his batteries back while the applicant is still $1,240 out of pocket.
  3. [12]
    Part compensation appears to have been awarded against the respondent because the Tribunal believed that he had, at least, a moral if not legal, obligation to pay the applicant something because he was defrauded by his caretaker and has still got the batteries.
  4. [13]
    At 1-11 [35-45]:

“BENCH: Why you shouldn’t pay Mr Kurzelewski some money, in view of what’s happened here?

MR KNAPP: Pardon?

BENCH: Why shouldn’t you pay him some money? It’s quite obvious to me that Gary Rodney Goodwin has fraudulently misrepresented and sold the batteries in your absence.


  1. [14]
    Notably, however, the Tribunal also regarded Mr Knapp “to be anything (sic: nothing) but a rogue” for giving conflicting accounts of his knowledge of the transaction on the reopening of the default order on 7 August 2015 and the oral hearing on 17 September 2015.
  2. [15]
    At 1-20 [25] the Tribunal explains why the award was only partial:

“BENCH: Many of these batteries were second hand. The onus, of course, in the purchase of second hand goods is entirely to the purchaser to beware (the applicant) was honestly trusting of people who are obviously rogues; when he – this is verified to me [indistinct] when you tried to return the goods and he was met by a level of hostility which could only be described as totally inacceptable (sic).”


  1. [16]
    I am satisfied that leave to appeal should be granted to remedy a substantial injustice to the applicant as a result of appealable error.
  2. [17]
    There is little doubt that Mr Goodwin misrepresented the fitness of the batteries for their intended purpose and thereby induced a voidable contract. It is equally plain from the evidence that he knew and approved of the sale of the faulty batteries by Mr Goodwin to the applicant. The $1,400 he received from the transaction confirms that Mr Goodwin was acting on the respondent’s behalf as vendor.
  3. [18]
    There is every reason to disbelieve the respondent’s assertion that the batteries were in good working order and no evidence that the applicant damaged the batteries or that anything he did contributed to their inadequacy.
  4. [19]
    As the real vendor of unsuitable batteries the respondent is not only morally but legally liable to reimburse the full purchase price for breach of warranty.
  5. [20]
    To achieve a just result, therefore, the appeal is allowed and the decision in MCD151 of 2015 should be varied from $1,000 to $2,240. This means that the respondent still owes the applicant $1,240, which I order is payable within 28 days.

Editorial Notes

  • Published Case Name:

    Kurzelewski v Knapp

  • Shortened Case Name:

    Kurzelewski v Knapp

  • MNC:

    [2016] QCATA 32

  • Court:


  • Judge(s):

    Carmody J

  • Date:

    31 Mar 2016

Appeal Status

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

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