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Death v Tonking[2017] QCATA 105


Death v Tonking [2017] QCATA 105













Application and Appeals


On the papers




Justice Carmody


28 September 2017





  1. The application for leave to appeal or appeal is dismissed


APPEAL – LEAVE TO APPEAL  –  MINOR CIVIL DISPUTE – purchase of car in private sale – where the parties dispute there was a guarantee the car was rust free – where the tribunal applied orthodox principles of contractual interpretation – where no misrepresentation or actionable detrimental reliance was found


This matter was heard and determined on the papers without the attendance of either party in accordance with s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“QCAT Act”).


  1. [1]
    In 2015 the applicant bought a second hand GTS HZ Holden car body from the respondent for $8,500 in a private sale.
  2. [2]
    He claims that he was induced to complete the transaction by negotiation misrepresentations about rust proofing.
  3. [3]
    The tribunal dismissed his minor civil dispute proceeding for $3,439.15 (including filing and service fees). The dismissal was supported by findings and inferences of fact that no rust free guarantee was made and that the applicant’s decision to buy the car was fully informed and based on two presale inspections.
  4. [4]
    The application for leave is made on the grounds that the applicant was denied a fair trial because the respondent was allowed to use undisclosed material on an iPad, an unwitnessed statement from a “professional”, as well as present photographs the applicant did not get to see or ask questions about.
  5. [5]
    The applicant’s case was that the car had been falsely advertised in a Facebook post as a:

H2 GTS genuine new professionally resprayed to white original colour.  Cost $10,000.  Now got all panels respray done absolutely no rust.

  1. [6]
    This, according to the applicant, amounted to a guarantee that the vehicle was completely rust free.
  2. [7]
    The respondent said he was only referring to the panels that had been resprayed as being rust free.
  3. [8]
    The tribunal heard sworn evidence and submissions from the parties in person before concluding, at T1:2:25 – T1:4:20:

The applicant in this matter bears the onus of proving any claim on the balance of probabilities.  I also note that since originally filing the application, the applicant is claiming additional moneys as he argues that more rust has been found in the vehicle, and therefore he requires more extensive repairs to take place to rid the vehicle of rust.

What is clear from the evidence is that after the applicant had indicated an interest in the vehicle, he had inspected the vehicle twice before purchasing it.  On the second inspection, he had spent an extended period of time going over the vehicle whilst a friend had accompanied him.  There was no evidence that the issue of the car being rust free was ever specifically discussed between the parties. … the respondent said something to the applicant along the lines of, “There is no rust where there is white point”, which the respondent points to being the panels which he referred to in his Facebook post.

After the second inspection, an offer was made by the applicant which was accepted by the respondent. … After having purchased the vehicle, the applicant pulled out the dashboard to inspect the vehicle and noticed rust. … This led to some exchanges between the party, but no resolution … things broke down when the applicant refused to let the respondent come over and view the rust that the applicant says was on the vehicle.  The applicant submitted … over time, various panels or sections of the vehicle were removed and more rust has been discovered in the vehicle … applicant has submitted that the conduct of the respondent was fraudulent in the circumstances as he guaranteed the vehicle was rust free.

Ultimately, I accept that the applicant, in his mind, was purchasing a vehicle which was rust free.  I’m also satisfied that the respondent, in his mind, was not selling a vehicle which was rust free, but that the panels that had been sprayed were rust free.  It therefore follows that there was, in my view, no express agreement, verbal or written, between the parties that the vehicle was being sold rust free.

The matter does not end there though.  What is required is a determination of whether, on the basis of the advertisement and the conduct of the parties, there was an implied term of the sale that the vehicle was rust free.  In other words, whether the advertisement and conduct of the parties prior to the sale would’ve allowed the applicant to reasonably believe the vehicle was rust free.

Having regard to all of the circumstances, I cannot be so satisfied.  I do this on several bases.  The advertisement, in my view, does not amount to a guarantee … can understand how the applicant would have interpreted it that way, but I’m of the view that the respondent was only referring to the panels which had been resprayed being rust free.  The applicant, in my view, was allowed several opportunities to inspect the vehicle and, in my view, was given several opportunities to raise the issue of rust with the respondent.  It seems to be he did not do so or, if he did, he did not do so in a manner which clearly communicated to the respondent that the issue of the vehicle being rust free was an essential condition to the sale.  … it does not seem to be that the respondent, in any way, hindered the inspections or attempted to conceal anything regarding the vehicle.

Thirdly, there was no ability of the respondent to offer such a guarantee … What is apparent … is that he’d put a lot of money into the restoration of the vehicle from the state it was in when he purchased it.  …  The respondent was not looking over the shoulder of the panel beaters who were working on the vehicle.

I understand the applicant’s submissions that the respondent would’ve seen rust when installing the dashboard and the floor covering, but he has not provided any independent evidence from a suitably qualified person which can support his submission.

… Dennis Yumans … was tendered by the applicants, which specifically states unseen damage and rust, would be seen as extra and is unable to be quoted until the vehicle has been completely stripped.  …  His letter, in my view, reinforces my point that the respondent could not have reasonably been expected to provide a rust-free guarantee, in the circumstances … one has to drill out spot-welds to remove panels to find it.

  1. [9]
    The tribunal decided the case by applying orthodox interpretive principles and found as a fact that no presale misrepresentation had been made nor had actionable detrimental reliance been placed on the alleged guarantee.  There is no legal basis for disturbing those findings.
  2. [10]
    The application is dismissed.

Editorial Notes

  • Published Case Name:

    Death v Tonking

  • Shortened Case Name:

    Death v Tonking

  • MNC:

    [2017] QCATA 105

  • Court:


  • Judge(s):

    Justice Carmody

  • Date:

    28 Sep 2017

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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