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CITE

Unreported Judgment

S & S Professionals Pty Ltd as trustee of the Aana Aahana Family Trust v Blue Ribbon Motors (Ipswich) Pty Ltd[2023] QCATA 73Acting Deputy President Brown
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S & S Professionals Pty Ltd as trustee of the Aana Aahana Family Trust v Blue Ribbon Motors (Ipswich) Pty Ltd[2023] QCATA 73

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:	S & S Professionals Pty Ltd as trustee of the Aana Aahana Family Trust v Blue Ribbon Motors (Ipswich) Pty Ltd [2023] QCATA 73
PARTIES:	S & S Professionals pty ltd as trustee of the sana sahana family trust (applicant/appellant) v blue ribbon motors (ipswich) pty ltd (respondent)
APPLICATION NO/S:	APL069-22
ORIGINATING APPLICATION NO/S:	MVL241-20
MATTER TYPE:	Appeals
DELIVERED ON:	20 June 2023
HEARING DATE:	On the papers
HEARD AT:	Brisbane
DECISION OF:	Acting Deputy President Brown
ORDERS:	Leave to appeal is refused.
CATCHWORDS:	APPEAL AND NEW TRIAL – GENERAL PRINCIPLES – INTERFERENCE WITH JUDGE’S FINDINGS OF FACT – FUNCTIONS OF APPELLATE COURT – WHERE INFERENCE OF FACT INVOLVED – GENERALLY – where the applicant appeals the decision of the Tribunal to dismiss the claim by the applicant for a refund of the purchase price of the motor vehicle – where the applicant claims an error in fact and/or mixed law and fact – where the applicant claims an error in not finding the vehicle of unacceptable quality under Australian Consumer Law Competition and Consumer Act 2010 (Cth) sch 2 ('Australian Consumer Law'), s 54 Pickering & Anor v McArthur [2010] QCA 341 Howarth & Anor v Biscamoss Pty Ltd [2022] QCATA 072 Williams v Toyota Motor Corporation Australia Limited [2022] FCA 344
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 this appeal about?

[1]
The Tribunal dismissed a claim by the applicant seeking a refund of the purchase price of a motor vehicle.^[1]The applicant appeals the decision.

The background to the dispute and the decision at first instance

[2]
The applicant purchased from the respondent an LDV D90, a large four-wheel drive passenger vehicle. The relevant issues regarding the vehicle complained of by the applicant may be summarised as follows:
1. (a)
  The vehicle was not fitted with a rear differential lock and was therefore misdescribed as being equipped with four-wheel drive. The result was that the vehicle could not safely be driven off road. During a trip to Bribie Island, the vehicle’s under-body front and rear protection plates were damaged and issues arose with the wheels including damage to the wheel rims and the formation of bubbles or egg like bumps on two of the tyres;
2. (b)
  The vehicle experienced a loss of power when being driven, the result of an issue with the diesel particulate filter (DPF) fitted to the engine.
[3]
The applicant asserted a major failure by the respondent to comply with the guarantees in Subdivision A of Division 1 of Part 3-2 of the Australian Consumer Law (‘ACL’).^[2] Although not articulated such, it was apparent in the proceeding below that the applicant relied upon a breach by the respondent of s 54 of the ACL which provides that goods supplied in the course of trade or commerce to a consumer are required to be of acceptable quality.
[4]
The Tribunal at first instance found as follows:
1. (a)
  The issue identified with the diesel particulate filter was not a minor defect nor a major defect. Rather, the issue was a maintenance requirement common across modern diesel vehicles of all makes and models addressed by a flushing process of driving the vehicle for an extended distance or a half hour trip without requiring any mechanical knowledge on the part of the owner;
2. (b)
  The issues relating to the underbody protection plates and wheels and tyres were unrelated to any mechanical defect. Rather they were consistent with driver error or impact damage;
3. (c)
  The vehicle had not been misdescribed as being equipped with four-wheel drive as a result of the absence of a rear differential lock and could not therefore be driven off road. There was no evidence that the vehicle would sustain the damage it did following the Bribie Island trip if driven with due care and attention. The respondent had not, prior to the purchase of the vehicle, represented to the applicant that the vehicle was equipped with a rear differential lock. The respondent had undertaken his own due diligence before purchasing the vehicle. Further, the absence of a rear differential lock did not render the vehicle incapable of, or inappropriate for, off-road four-wheel drive use; and
4. (d)
  A reasonable consumer, fully acquainted with the state of the vehicle at the time of purchase would regard the vehicle as being of acceptable quality.

Appeals – the statutory framework

[5]
A party to a proceeding may appeal to the appeal tribunal against a decision of the tribunal.^[3] An appeal on a question of law is an appeal as of right. An appeal on a question of fact or mixed law and fact may only be made with the leave of the appeal tribunal.^[4]
[6]
In deciding an appeal on a question of law the appeal tribunal may confirm or amend the original decision; set aside the decision and substitute its own decision; set aside the decision and return the matter to the tribunal for reconsideration.^[5]
[7]
An appeal on a question of fact or mixed law and fact must, subject to leave to appeal being granted, be decided by way of rehearing with or without the hearing of additional evidence as decided by the appeal tribunal.^[6]

Preliminary matters

[8]
The applicant seeks:
1. (a)
  The joinder of additional parties as respondents;
2. (b)
  The production of documents by the respondent;
3. (c)
  To rely upon additional evidence.

Joinder of additional respondents

[9]
The applicant seeks to join the company the applicant arranged to have service the vehicle, Westpoint Autos (the first proposed joinder party), and the manufacturer of the vehicle, LDV Australia (the second proposed joinder party). Neither of the proposed joinder parties were parties in the proceeding below.
[10]
The applicant’s submissions in support of the application to join the additional parties are confined to 31 documents attached to the submission which the applicant does not otherwise explain.
[11]
By s 42 of the QCAT Act, the tribunal may make an order joining a person as a party to a proceeding if the tribunal considers that the person should be bound by or have the benefit of a decision of the tribunal in the proceeding, or the person’s interests may be affected by the proceeding or for another reason it is desirable that the person be joined as a party to the proceeding.
[12]
The applicant’s submissions do not address the matters set out in s 42. Presumably the applicant seeks to join the proposed parties on the basis that each has some liability to the applicant, otherwise there would be no utility in the joinder.
[13]
The applicant chose to pursue its claim against the respondent, the supplier of the vehicle. It is too late now for the applicant to seek to cast its net wider, putting aside the question of the jurisdiction of the tribunal in respect of the claim the applicant seeks to pursue against the first proposed joinder party. In this appeal the applicant must demonstrate error in the decision below. It is not an opportunity for the applicant to reargue its case over against other parties. The application for joinder is refused.

Production of documents and additional evidence

[14]
The principles to be considered in an application to rely upon additional evidence in an appeal are well established. Additional evidence may be permitted if all of the following requirements are satisfied:
1. (a)
  The evidence could not have been obtained with reasonable diligence for use at the original hearing;
2. (b)
  If given, the evidence would probably have an important influence on the result of the case (although it need not be decisive); and
3. (c)
  The evidence is credible.^[7]
[15]
The applicant seeks an order that Westpoint Autos produce the following documents:
1. (a)
  Engine diagnosis and other issues and faults, repairs ‘etc’;
2. (b)
  Spare parts ordered and delivery confirmation; and
3. (c)
  All email correspondence with party for above car.
[16]
I approach the application for the production of documents on the basis that it is an application to rely upon additional evidence. It is not clear whether the documents the applicant seeks to have produced by Westpoint Autos were in existence at the time of the original hearing and if they were, why the documents could not have been obtained had the applicant exercised reasonable diligence. It is apparent from the transcript of the hearing below that the applicant was given the opportunity to seek an adjournment to enable further documents from Westpoint Autos to be obtained. The applicant declined that opportunity.^[8] Nor is it clear precisely what the documents the applicant seeks to have produced are and what the relevance of the documents is. An appeal is not an opportunity for an unsuccessful party to seek to address any deficiencies in the conduct of the proceeding at first instance. The applicant had the opportunity to seek disclosure of the documents and did not do so. The applicant for the production of documents is refused.
[17]
In addition to the production of the documents referred to above, the applicant seeks to rely upon further evidence. The applicant’s submissions do not identify with any precision what the further evidence is however it would appear to be evidence that has come into existence since the original hearing. The evidence may therefore be characterised as fresh evidence.^[9] The documents include email communications between the applicant and the respondent, email communications between the applicant and Westpoint Autos, photographs of the dashboard of the vehicle and extracts from a vehicle maintenance manual.
[18]
Fresh evidence is evidence which either did not exist at the time of the original hearing or which could not then with reasonable diligence have been discovered.^[10]
[19]
The further evidence reflects a continuation of the various complaints made by the applicant about the vehicle. In this respect, the evidence is not unlike that referred to in Hawkins v Pender Bros Pty Ltd^[11] where the Court of Appeal stated:

Notwithstanding the linkage of this evidence to events occurring after trial, it is evidence of the same kind as was given at length at the trial, and is generally directed to support the opinions that Mr Ferrier had unsuccessfully presented on the appellants’ behalf at trial. It is really evidence of an ongoing situation that was litigated, and when both parties had full opportunity to call evidence or seek adjournment.

…

It is hardly necessary to say that all this evidence is simply an attempt to have another trial after initial failure, and after full opportunity to litigate all such questions.

[20]
Even accepting that some or all of the evidence has come into existence since the original hearing, there is nothing in the further evidence sought to be relied upon by the applicant that would, in my view, have had an important influence on the result of the case. It is, as was observed in Hawkins v Pender Bros Pty Ltd, an attempt by the applicant to continue to litigate its original claim in circumstances where the applicant had every opportunity to place evidence before the Tribunal. As I will refer to later in these reasons, the applicant was given the opportunity below to file statements of evidence in support of its claim and did not do so. The applicant was given the opportunity to have the hearing adjourned to enable additional evidence to be obtained regarding the complaints made by the applicant about the vehicle. The applicant declined that opportunity. Not only is the application to rely upon the further evidence an attempt to continue to litigate the dispute below, the applicant makes no attempt to address the relevant principles to which I have referred relating to adducing further evidence.
[21]
The application to rely upon further evidence is refused.

The grounds of appeal

[22]
I turn now to the grounds of appeal.
[23]
The applicant identifies no grounds of appeal as such. The applicant broadly asserts that the decision below was wrong on the basis that the evidence supported an outcome in the applicant’s favour. It is implicit from the applicant’s submissions that error by the learned member is asserted in failing to find that there had been a major failure by the respondent to comply with the consumer guarantees in the ACL. As such, the appeal is on a question of fact and/or mixed law and fact and leave to appeal is required by the applicant.
[24]
The well-established principles in considering whether to grant leave to appeal are: is there a reasonably arguable case of error in the primary decision?; is there a prospect that the applicant will obtain substantive relief?; is leave necessary to correct a substantial injustice caused by error?; is there a question of general importance upon which further argument and a decision of the Appeal Tribunal would be to the public advantage?^[12]
[25]
The Appeal Tribunal will not interfere with the findings of fact made by the Tribunal at first instance unless they are demonstrated to be wrong by incontrovertible facts or uncontested testimony, or they are glaringly improbable or contrary to compelling inferences.^[13]
[26]
The vague and diffuse way in which the applicant has framed the application for leave to appeal or appeal is largely reflective of the equally vague and diffuse way the applicant conducted its claim below. It is therefore appropriate to make some observations regarding the conduct of the parties in the proceeding at first instance.
[27]
Following a directions hearing in February 2021, the parties were directed to file statements of evidence. The Tribunal directed that neither party would be allowed to present any evidence at the hearing not contained in the statements without justifying the need for additional evidence to the Tribunal. Further directions for the filing of statements of evidence were made in June 2021. Neither party filed any statements of evidence in compliance with the directions although it should be observed that the applicant forwarded numerous emails to the tribunal registry containing information the applicant sought to rely upon.
[28]
The failure by the parties to file statements of evidence was noted by the learned member at the hearing. The learned member also noted that the applicant did not take up the opportunity to have the vehicle independently assessed by an assessor engaged by the tribunal. At the relevant time, QCAT Practice Direction No. 2 of 2019 (which has been subsequently amended), provided that the tribunal may engage an assessor who would be asked to inspect the motor vehicle the subject of the dispute and provide a report addressing the issues raised in the application.^[14] The Practice Direction provided that if an assessor was engaged by the tribunal, and unless leave was given by the tribunal, no party would be permitted to provide further expert evidence on the same issues covered by the assessor in the report.^[15] The practice direction stated:

16.
The preparation of statements is the most important part of a party’s preparation for a hearing. The evidence of each witness needs to be set out in detail in a statement, as the Tribunal may not allow a party to present evidence at the hearing which is not in their statement, or from witnesses who do not attend in person at the hearing.

17.
Guidance on the preparation of statements, including a sample template, can be found on the Tribunal’s website at the following link …^[16]

[29]
The applicant elected not to file any statements of evidence nor any expert evidence either in the form of a report addressing the various complaints made by the applicant about the vehicle or a statement by a witness to the same effect. Nor did the applicant elect to contribute to the cost of engaging an assessor. Indeed, at the directions hearing in February 2021 Mr Shah, representing the applicant, advised the Tribunal that he did not think an assessor was required.^[17]
[30]
It is against this background that the application for leave to appeal must be considered.

The Australian Consumer Law and the guarantee of acceptable quality

[31]
Section s 54 of the ACL provides as follows:

Section 54 - Guarantee as to acceptable quality

(1)
If:

(a)
a person supplies, in trade or commerce, goods to a consumer; and

(b)
the supply does not occur by way of sale by auction; there is a guarantee that the goods are of acceptable quality.

(2)
Goods are of acceptable quality if they are as:

(a)
fit for all the purposes for which goods of that kind are commonly supplied; and

(b)
acceptable in appearance and finish; and

(d)
safe; and

(e)
durable;

as a reasonable consumer fully acquainted with the state and condition of the goods (including any hidden defects of the goods), would regard as acceptable having regard to the matters in subsection (3).

(3)
The matters for the purposes of subsection (2) are:

(a)
the nature of the goods; and

(b)
the price of the goods (if relevant); and

(d)
any representation made about the goods by the supplier or manufacturer of the goods; and

(e)
any other relevant circumstances relating to the supply of the goods.

(4)
If:

(a)
goods supplied to a consumer are not of acceptable quality; and

(b)
the only reason or reasons why they are not of acceptable quality were specifically drawn to the consumer’s attention before the consumer agreed to the supply; the goods are taken to be of acceptable quality.

(5)
If:

(a)
goods are displayed for sale or hire; and

(b)
the goods would not be of acceptable quality if they were supplied to a consumer; the reason or reasons why they are not of acceptable quality are taken, for the purposes of subsection (4), to have been specifically drawn to a consumer’s attention if those reasons were disclosed on a written notice that was displayed with the goods and that was transparent.

(6)
Goods do not fail to be of acceptable quality if:

(a)
the consumer to whom they are supplied causes them to become of unacceptable quality, or fails to take reasonable steps to prevent them from becoming of unacceptable quality; and

(b)
they are damaged by abnormal use.

(7)
Goods do not fail to be of acceptable quality if:

(a)
the consumer acquiring the goods examines them before the consumer agrees to the supply of the goods; and

(b)
the examination ought reasonably to have revealed that the goods were not of acceptable quality.

[32]
In the reasons for decision, the learned member correctly identified s 54 as the relevant provision in the ACL. The learned member correctly observed that the time at which the goods are to be of acceptable quality is the time the goods are supplied to the consumer.^[18]
[33]
The goods supplied must possess all of the qualities set out in s 54(2) to be of acceptable quality.^[19] By s 259 of the ACL a consumer may take action against the supplier of goods for a failure to comply with a guarantee as to acceptable quality. A failure to comply with a guarantee may be a major failure. The ACL provides at s 260:

When a failure to comply with a guarantee is a major failure

A failure to comply with a guarantee referred to in section 259(1)(b) that applies to a supply of goods is a major failure if:

(a)
the goods would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of the failure; or

(b)
the goods depart in one or more significant respects:

(i)
if they were supplied by description—from that description; or

(ii)
if they were supplied by reference to a sample or demonstration model— from that sample or demonstration model; or

(c)
the goods are substantially unfit for a purpose for which goods of the same kind are commonly supplied and they cannot, easily and within a reasonable time, be remedied to make them fit for such a purpose; or

(d)
the goods are unfit for a disclosed purpose that was made known to:

(i)
the supplier of the goods; or

(ii)
a person by whom any prior negotiations or arrangements in relation to the acquisition of the goods were conducted or made; and they cannot, easily and within a reasonable time, be remedied to make them fit for such a purpose; or

(e)
the goods are not of acceptable quality because they are unsafe.

[34]
The Appeal Tribunal summarised the effect of the above provisions in Howarth & Anor v Biscamoss Pty Ltd:^[20]

[17]
Section 54 should be read bearing in mind the terms of s 260 and, in particular, that a "major failure" regarding acceptable quality will be made out "if the goods would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of the failure".

[18]
As is evident from what I have said above, section 54(2) of the ACL defines "acceptable quality" by reference to the "reasonable consumer" test and five specified criteria set out in sub-sections 54(2) (a)-(e). These criteria are cumulative, as evidenced by the use of the conjunction "and". Thus, if for example, particular goods are fit for purpose, safe, free from defects and durable, but not acceptable in appearance and finish, the goods will still fail to be of acceptable quality. Section 54(3) of the ACL identifies the matters relevant for the purposes of sub-section (2).

[19]
The member held that it may be accepted that an accumulation of individually minor defects can be aggregated to amount to a major failure giving rise to a right to reject the goods and applied a statement in Cary Boyd v Agrison Pty Ltd [2014] VMC 23 at [51], that: [D]espite the use of ‘a’, to suggest the singular, ‘a major failure’ might be constituted by a series of specific and individual defects which taken as a whole constitute one major failure.

[20]
In summary then, the test of whether there is a major failure for the purposes of section 260 and the test for whether goods are of acceptable quality for the purposes of section 54 both adopt a ‘reasonable consumer’ test. If the failure can be remedied and is not a major failure, the consumer is limited to requiring the supplier to remedy the failure within a reasonable time; or if the supplier cannot remedy the failure within a reasonable time, having the failure remedied by someone other than the supplier and seeking compensation from the supplier, or rejecting the goods.

[35]
I will address each of the learned member’s findings of fact by reference to the particular defects asserted by the applicant.

The engine warning light and the issues with the exhaust gas recirculation (EGR) valve and diesel particulate filter (DPF)

[36]
The evidence of Mr Stallard, for the respondent, was that the engine light came on as a result of a faulty EGR valve. The respondent replaced the valve and the issue did not recur.
[37]
The learned member accepted that in February 2022 the vehicle lost power while being driven on the highway and could not travel at more than 20 km/h. The learned member also accepted that the respondent diagnosed the issue as being a result of the diesel particulate filter (DPF) accumulating waste. The result of this was that the vehicle automatically defaulted to ‘limp mode’ to avoid further engine damage.
[38]
Mr Stallard gave evidence that the owner’s manual explained that the warning light relating to the DPF was triggered as a result of the vehicle having been driven for short periods and that repeated starting and stopping of the vehicle and low speed driving and prolonged idling had resulted in DPF accumulating waste. Mr Stallard’s evidence was that to address the issue the vehicle was required to be driven for 30 minutes with the engine operating at 2000 rpm which would result in the accumulated emissions would be cleared from the exhaust and the warning light would be extinguished. Mr Stallard’s evidence was that these steps were set out in the owner’s manual.
[39]
Mr Stallard’s evidence was that an instrument alarm was prompted when the DPF was close to being blocked which alerted the driver to take the recommended steps to clear the filter.
[40]
The applicant adduced no independent evidence in relation to the cause of the engine warning light being activated. The applicant’s evidence was that he had not observed the instrument alarm relating to the imminent DPF issue.
[41]
The learned member found that the fault in, and subsequent replacement of, the EGR valve was a minor issue which was repaired under warranty. This finding was open on the evidence. The learned member found that the issue with the DPF was not a defect. It is readily apparent from the reasons that the learned member accepted the respondent’s evidence regarding the DPF. The learned member accepted that the issue arose as a result of the vehicle being driven for short periods and that the vehicle manufacturer had identified the issue in the owners manual which provided a process for addressing the issue. These findings were open to the learned member on the evidence before her. The applicant adduced no independent evidence in relation to the DPF issue. It is also apparent from the reasons that the learned member accepted that a warning light was activated to alert the driver that the DPF flushing process was required to be undertaken. It was open to the learned member to accept the respondent’s evidence in this regard.

Findings that the vehicle was fit for purpose for use off road

[42]
It was not contentious below that the applicant had taken the vehicle off road and had driven it on Bribie Island. The vehicle had bash plates fitted to the underside. The applicant’s evidence was that the front and rear bash plates were damaged while the vehicle was being driven off road and that damage to the tyres had been sustained. The applicant’s case was that the damage to the bash plates, and the tyres, was inconsistent with a vehicle which was designed to be used off road. The applicant led no independent evidence on these issues.
[43]
Mr Irving, an auto technician with 35 years’ experience, gave evidence for the respondent. Mr Irving inspected the vehicle. His evidence was that the damage to the bash plates was consistent with either the underneath of the vehicle having impacted with something and/or the result of operator error.
[44]
The learned member found that the damage to the underside of the vehicle was consistent with impact damage or driver error and was not the result of any manufacturing or mechanical defect. In making this finding the learned member accepted the evidence of Mr Irving. There was no error in the learned member accepting the evidence of Mr Irving particularly in light of the applicant’s failure to lead any independent evidence about the issue.
[45]
In relation to the damage to the tyres, Mr Irving’s evidence was that such damage was consistent with impact damage or operator error. Mr Irving explained this to the applicant at the time the applicant presented at the dealership regarding the damage. Mr Irving’s evidence was that when the applicant expressed dissatisfaction with his assessment, Mr Irving referred the applicant to the local distributor of the brand of tyres fitted to the vehicle. There was in evidence an email from Mr Anthony Newland to Mr Irving. Mr Newland was the manager of the tyre distributor. Mr Newland inspected the tyres and expressed the view that the sidewalls of the tyres ballooned outwards consistent with impact damage. The applicant led no independent evidence regarding the damage to the tyres.
[46]
The learned member found that the damage to the tyres was consistent with driver error or impact damage and was not the result of any manufacturing or mechanical defect. In making this finding the learned member accepted the evidence of Mr Irving and Mr Newland which she was entitled to do.

The absence of a rear differential lock

[47]
It was not contentious that the vehicle purchased by the applicant was not fitted with a rear differential lock. In evidence, the applicant conceded that while the vehicle was equipped with four-wheel drive, it could not be described as an off-road four-wheel drive in the absence of the vehicle being fitted with a rear differential lock. It was not contentious below that the applicant’s representative, Mr Shah, had inspected the vehicle before purchase and that the vehicle was a demonstrator model. The applicant’s evidence was that the respondent had not informed the applicant that the rear differential lock was not available on the vehicle purchased by the applicant. The applicant adduced no independent evidence regarding the rear differential lock and the impact of its absence on the performance of the vehicle.
[48]
The respondent’s evidence was that, at the time the applicant purchased the vehicle, the particular model was not fitted with a rear differential lock nor was this an option available from the manufacturer. Before the Tribunal was a manufacturer’s brochure noting that the rear differential lock was not fitted to the vehicle model purchased by the applicant. The evidence of the respondent, given by Mr Stallard, was that the vehicle operated as a four-wheel drive vehicle without a rear differential lock being fitted. The effect of Mr Stallard’s evidence was that only in the event of ‘extreme off-road use’ would the absence of a rear differential lock have the potential to affect the performance of the vehicle.
[49]
The learned member found that the respondent had not represented to the applicant, before the applicant purchased the vehicle, that it was fitted with a rear differential lock. The learned member found that Mr Shah, the applicant’s representative, conducted his own due diligence before purchasing the vehicle. The learned member found that the absence of a rear differential lock did not render the vehicle incapable of or inappropriate for off-road four-wheel drive use. In making these findings the learned member accepted the respondent’s evidence. There was no error in the learned member in so doing.

Conclusion by the learned member as to whether there had a major failure to comply with the guarantee of acceptable quality

[50]
The learned member correctly identified the relevant test as to whether goods are of acceptable quality. It is unsurprising in light of the foregoing that the learned member found that a reasonable consumer fully acquainted with the state and condition of the vehicle at the time of purchase would have regarded the vehicle as acceptable having regard to the matters in s 54(3) of the ACL.
[51]
There was no error by the learned member in reaching this conclusion.

Conclusion

[52]
The applicant has failed to establish any error in the decision by the learned member.
[53]
Leave to appeal is refused.

Footnotes

[1]S & S Professional Pty Ltd as trustee of the Sana Sahana Family Trust v Blue Ribbon Motors Pty Ltd (unreported) QCAT 10 March 2022.

[2]Competition and Consumer Act 2010 (Cth) sch 2 ('Australian Consumer Law').

[3]Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), s 142(1).

[4] Ibid, s 142(3).

[5] Ibid, s 146.

[6] Ibid, s 147.

[7]Pickering & Anor v McArthur [2010] QCA 341 at [22] per Chesterman JA.

[8] T1-14, lines 18-20.

[9]R v SDT [2022] QCA 159.

[10] Ibid at [37] per McMurdo JA.

[11] [1990] 1 Qd R 135.

[12]LN & Anor v LSS & Ors [2020] QCATA 18, citing Amundsen v Queensland College of Teachers [2011] QCATA 2; see also GDLA v GMG [2017] QCATA 18 and Pickering v McArthur [2005] QCA 294.

[13]Robinson Helicopter Company Incorporated v McDermott [2016] HCA 22.

[14] QCAT Practice Direction 2 of 2019 at [7].

[15] Ibid, [12].

[16] Ibid.

[17] Transcript of directions hearing – 1-8, line 23.

[18]Medtel Pty Ltd v Courtney (2003) 130 FCR 182.

[19]Williams v Toyota Motor Corporation Australia Limited [2022] FCA 344.

[20] [2022] QCATA 072.

Editorial Notes

Published Case Name:
S & S Professionals Pty Ltd as trustee of the Aana Aahana Family Trust v Blue Ribbon Motors (Ipswich) Pty Ltd
Shortened Case Name:
S & S Professionals Pty Ltd as trustee of the Aana Aahana Family Trust v Blue Ribbon Motors (Ipswich) Pty Ltd
MNC:
[2023] QCATA 73
Court:
QCATA
Judge(s):
Acting Deputy President Brown
Date:
20 Jun 2023

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Cases Cited List of Cases Cited by this judgment

Case Name	Full Citation	Frequency
Amundsen v Queensland College of Teachers	[2011] QCATA 2	1 citation Jump To Cite 1 - [2011] QCATA 2
Cary Boyd v Agrison Pty Ltd	[2014] VMC 23	1 citation Jump To Cite 1 - [2014] VMC 23
GDLA v GMG	[2017] QCATA 18	1 citation Jump To Cite 1 - [2017] QCATA 18
Hawkins v Pender Bros Pty Ltd	[1990] 1 Qd R 135; [1989] QSCFC 41	1 citation Jump To Cite 1 - [1990] 1 Qd R 135
Howarth v Biscamoss Pty Ltd	[2022] QCATA 72	2 citations Jump To Cite 1 - [2022] QCATA 72 Cite 2 - [2022] QCATA 72
LN v LSS	[2020] QCATA 18	1 citation Jump To Cite 1 - [2020] QCATA 18
Medtel Pty Ltd v Courtney	(2003) 130 FCR 182	1 citation Jump To Cite 1 - (2003) 130 FCR 182
Pickering v McArthur	[2005] QCA 294	1 citation Jump To Cite 1 - [2005] QCA 294
Pickering v McArthur	[2010] QCA 341	2 citations Jump To Cite 1 - [2010] QCA 341 Cite 2 - [2010] QCA 341
R v SDT	(2022) 11 QR 556; [2022] QCA 159	2 citations Jump To Cite 1 - [2022] QCA 159 Cite 2 - [2022] QCA 159
Robinson Helicopter Company Incorporated v McDermott & Ors	View on:JADE[2016] HCA 22	1 citation Jump To Cite 1 - [2016] HCA 22
Williams v Toyota Motor Corporation Australia Limited	View on:JADE[2022] FCA 344	2 citations Jump To Cite 1 - [2022] FCA 344 Cite 2 - [2022] FCA 344

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S & S Professionals Pty Ltd as trustee of the Aana Aahana Family Trust v Blue Ribbon Motors (Ipswich) Pty Ltd[2023] QCATA 73