Callinan v Power Equipment Pty Ltd - [2023] QCA 246

SUPREME COURT OF QUEENSLAND

CITATION:

Callinan v Power Equipment Pty Ltd [2023] QCA 246

PARTIES:

KEITH ALLEN CALLINAN
(applicant)
v
POWER EQUIPMENT PTY LTD
ACN 005 866 642
(respondent)

FILE NO/S:

Appeal No 4156 of 2023
DC No 7 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave s 118 DCA (Civil)

ORIGINATING COURT:

District Court at Townsville – Unreported, 8 March 2023 (Lynham DCJ)

DELIVERED ON:

5 December 2023

DELIVERED AT:

Brisbane

HEARING DATE:

21 August 2023; further submissions received on 4 September 2023 and 6 September 2023

JUDGES:

Bond JA and Henry and Cooper JJ

ORDERS:

1.   Leave to appeal be granted.

2.   The appeal be allowed.

3.   Order 1 of the judgment delivered on 8 March 2023 be varied by deleting “$8,069.00” and substituting “$70,494 together with interest on the amount of $62,425”.

4.   The respondent pay the applicant’s costs of the application for leave to appeal and of the appeal.

CATCHWORDS:

TRADE AND COMMERCE – COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION – ENFORCEMENT AND REMEDIES – ACTIONS FOR DAMAGES – ASSESSMENT OR AVAILABILITY OF DAMAGES – GENERALLY – where the applicant owns a recreational speedboat – where the applicant replaced the engines and sterndrives on the boat – where the replacement equipment suffered numerous performance issues including the complete failure of one of the engines and both sterndrives – where the applicant claimed $155,412.15 as damages from the respondent – where the primary judge assessed damages in the amount of $8,069 including interest – where the applicant seeks leave pursuant to s 118(3) of the District Court of Queensland Act 1967 (Qld) to appeal the assessment of damages – whether the primary judge erred in finding that the applicant had not proved his entitlement to recover damages under s 272(1)(a) of the Australian Consumer Law – whether the primary judge incorrectly interpreted the measure of damages available under s 272(1)(b) of the Australian Consumer Law

Competition and Consumer Act 2010 (Cth), sch 2, s 7(1)(e), s 54, s 259, s 260, s 261(c), s 263(4), s 267, s 271, s 272
District Court of Queensland Act 1967 (Qld), s 118(3)
Uniform Civil Procedure Rules 1999 (Qld), r 757

Moore v Scenic Tours Pty Ltd (2020) 268 CLR 326; [2020] HCA 17, applied
Toyota Motor Corporation Australia Ltd v Williams (2023) 296 FCR 514; [2023] FCAFC 50, considered
Vautin v By Winddown Inc (formerly Bertram Yachts) (No 4) (2018) 362 ALR 702; [2018] FCA 426, considered

COUNSEL:

M T de Waard for the applicant
J P Hastie for the respondent

SOLICITORS:

Macrossan & Amiet Solicitors for the applicant
Macpherson Kelley for the respondent

BOND JA: I agree with the reasons for judgment of Cooper J and with the orders proposed by his Honour.
HENRY J: I agree with the reasons of Cooper J and the orders proposed by his Honour.
COOPER J: The applicant owns a recreational speedboat named Quick Fix. When the applicant purchased Quick Fix in 2006,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] QCA 246
Decision Date: 5 December 2023

CaseChat Overview and Summary

Callinan v Power Equipment Pty Ltd involved a dispute between the applicant, who owned a recreational speedboat, and the respondent, a company that supplied replacement engines and sterndrives. The applicant had replaced the engines and sterndrives on the boat, which subsequently experienced numerous performance issues, culminating in the complete failure of one engine and both sterndrives. The applicant claimed $155,412.15 as damages from the respondent, but the primary judge assessed the damages at $8,069, including interest. The applicant sought leave to appeal the assessment of damages under s 118(3) of the District Court of Queensland Act 1967. The central legal issues were whether the primary judge erred in finding that the applicant had not proved his entitlement to recover damages under s 272(1)(a) of the Australian Consumer Law and whether the primary judge incorrectly interpreted the measure of damages available under s 272(1)(b) of the Australian Consumer Law.

The court found that the primary judge had erred in both respects. The court held that the applicant had proved his entitlement to recover damages under s 272(1)(a) of the Australian Consumer Law, as the respondent's failure to provide engines and sterndrives that were fit for purpose resulted in significant losses for the applicant. Furthermore, the court held that the primary judge had incorrectly interpreted the measure of damages available under s 272(1)(b) of the Australian Consumer Law by failing to take into account the full extent of the applicant's losses. The court found that the applicant's losses were not limited to the cost of the engines and sterndrives, but also included the loss of use of the boat, the cost of hiring a replacement boat, and the diminution in value of the boat. The court ordered that the primary judge's assessment of damages be varied to reflect these findings.

The court granted leave to appeal and allowed the appeal. It varied the primary judge's assessment of damages by deleting "$8,069.00" and substituting "$70,494 together with interest on the amount of $62,425". The court also ordered the respondent to pay the applicant's costs of the application for leave to appeal and of the appeal. The court's decision highlights the importance of accurately assessing damages in cases involving consumer protection legislation and the need for courts to take into account the full extent of a consumer's losses when determining the appropriate amount of damages.

Orders

Orders of the court

1. Leave to appeal be granted.

2. The appeal be allowed.

3. Order 1 of the judgment delivered on 8 March 2023 be varied by deleting “$8,069.00” and substituting “$70,494 together with interest on the amount of $62,425”.

4. The respondent pay the applicant’s costs of the application for leave to appeal and of the appeal.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Callinan v Power Equipment Pty Ltd [2023] QCA 246
PARTIES:	KEITH ALLEN CALLINAN (applicant) v POWER EQUIPMENT PTY LTD ACN 005 866 642 (respondent)
FILE NO/S:	Appeal No 4156 of 2023 DC No 7 of 2019
DIVISION:	Court of Appeal
PROCEEDING:	Application for Leave s 118 DCA (Civil)
ORIGINATING COURT:	District Court at Townsville – Unreported, 8 March 2023 (Lynham DCJ)
DELIVERED ON:	5 December 2023
DELIVERED AT:	Brisbane
HEARING DATE:	21 August 2023; further submissions received on 4 September 2023 and 6 September 2023
JUDGES:	Bond JA and Henry and Cooper JJ
ORDERS:	1. Leave to appeal be granted. 2. The appeal be allowed. 3. Order 1 of the judgment delivered on 8 March 2023 be varied by deleting “$8,069.00” and substituting “$70,494 together with interest on the amount of $62,425”. 4. The respondent pay the applicant’s costs of the application for leave to appeal and of the appeal.
CATCHWORDS:	TRADE AND COMMERCE – COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION – ENFORCEMENT AND REMEDIES – ACTIONS FOR DAMAGES – ASSESSMENT OR AVAILABILITY OF DAMAGES – GENERALLY – where the applicant owns a recreational speedboat – where the applicant replaced the engines and sterndrives on the boat – where the replacement equipment suffered numerous performance issues including the complete failure of one of the engines and both sterndrives – where the applicant claimed $155,412.15 as damages from the respondent – where the primary judge assessed damages in the amount of $8,069 including interest – where the applicant seeks leave pursuant to s 118(3) of the District Court of Queensland Act 1967 (Qld) to appeal the assessment of damages – whether the primary judge erred in finding that the applicant had not proved his entitlement to recover damages under s 272(1)(a) of the Australian Consumer Law – whether the primary judge incorrectly interpreted the measure of damages available under s 272(1)(b) of the Australian Consumer Law Competition and Consumer Act 2010 (Cth), sch 2, s 7(1)(e), s 54, s 259, s 260, s 261(c), s 263(4), s 267, s 271, s 272 District Court of Queensland Act 1967 (Qld), s 118(3) Uniform Civil Procedure Rules 1999 (Qld), r 757 Moore v Scenic Tours Pty Ltd (2020) 268 CLR 326; [2020] HCA 17, applied Toyota Motor Corporation Australia Ltd v Williams (2023) 296 FCR 514; [2023] FCAFC 50, considered Vautin v By Winddown Inc (formerly Bertram Yachts) (No 4) (2018) 362 ALR 702; [2018] FCA 426, considered
COUNSEL:	M T de Waard for the applicant J P Hastie for the respondent
SOLICITORS:	Macrossan & Amiet Solicitors for the applicant Macpherson Kelley for the respondent