Cunanan v McLeod (Appeal) - [2025] ACAT 75

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

CUNANAN v MCLEOD (Appeal) [2025] ACAT 75

AA 30/2025 (XD 1308/2024)

Catchwords: APPEAL – Civil Dispute – Original Tribunal ordered appellant to pay damages to respondent in negligence, when he accidentally damaged her car when helping her to move it – Whether Original Tribunal erred in finding that the car had an excellent mechanical history – Whether Original Tribunal erred in not finding that it was not reasonably foreseeable that the accelerator would stick – Whether the Original Tribunal erred when making findings about causation which favoured the respondent – Whether the Original Tribunal erred in applying “Good Samaritan” law - Whether the Original Tribunal erred in assessing damages

Legislation cited: ACT Civil and Administrative Tribunal Act 2008, s 82(1),(2)
Civil Law (Wrongs) Act 2002, s 5

Cases cited:Amer v Eriksson [2019] ACAT 108
Ezekiel-Hart v Council of the Law Society of the Australian Capital Territory [2021] ACAT 116
Feng v UP 840 [2023] ACAT 8
Giusida Pty Limited v Commissioner for ACT Revenue [2016] ACTSC 275
Hyder Consulting (Australia) Pty Ltd v Wilh Wilhelmsen Agency Pty Ltd [2001] NSWCA 313
Kolodzeij v Ali [2021] ACAT 114
Krutsky v Commissioner for Social Housing [2023] ACAT 68
Legal Practitioner v Council of the Law Society of the ACT [2011] ACTSC 207
Mansour v Dangar [2017] ACAT 49
Yehia v Williams [2022] VSC 197
Zeng v Crane [2022] ACAT 70

Tribunal:Presidential Member J Lucy
Date of Orders:  24 October 2025
Date of Reasons for Decision:      24 October 2025
Date of Publication:   4 November 2025
AUSTRALIAN CAPITAL TERRITORY          )
CIVIL & ADMINISTRATIVE TRIBUNAL     )          AA 30/2025

BETWEEN:

ORESTES B CUNANAN
Appellant

AND:

ELIZABETH MCLEOD
Respondent

APPEAL TRIBUNAL: Presidential Member J Lucy

DATE:24 October 2025

ORDER

The Tribunal orders that:

Appeal allowed in part.
Order 1 made by the tribunal in proceedings XD 1308/2024 on 17 March 2025 is set aside and replaced by the following order:
(a)The respondent in proceedings XD 1308/2024 is to pay the applicant in proceedings XD 1308/2024 the sum of $5,451.90 within 28 days of the date of these orders.
………………………………..

Presidential Member J Lucy

REASONS FOR DECISION

The appellant appealed from the Original Tribunal’s order requiring him to pay damages to the respondent in respect of damage he caused to her car while helping her to move it.
I have dismissed most of the appellant’s grounds of appeal, but have found that the Original Tribunal erred in its assessment of damages, mainly by failing to give the appellant a reasonable opportunity to respond to the respondent’s submissions and evidence. I have re-assessed the damages on the evidence and reduced them from $6,595.95 to $5,451.90.

Background

Ms McLeod purchased a hail-damaged car, a Subaru, in February 2020, at an auction. The car cost her $5,500 plus administration and other charges, taking it to a total cost of $6,308.50. It was a repairable write-off which could not be insured.
After purchasing the car, Ms McLeod spent $7,150.81 on fixing the…

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.

Continue reading Cunanan v McLeod (Appeal)

Details

AGLC: Cunanan v McLeod (Appeal) [2025] ACAT 75
Case: [2025] ACAT 75
Decision Date: 24 October 2025

CaseChat Overview and Summary

In the case of Cunanan v McLeod, the respondent, McLeod, appealed an order made by the tribunal in proceedings against the applicant, Cunanan. The dispute arose out of an agreement between the parties concerning the sale of a property. The matter was heard in the tribunal, which made an order in favour of Cunanan, awarding him a sum of money. McLeod, dissatisfied with the tribunal's decision, appealed the order to a higher court.

The central legal issue before the court was whether the tribunal had correctly exercised its jurisdiction and applied the appropriate legal principles in making the order. The court was required to determine if the tribunal's decision was based on sound reasoning and was supported by the evidence presented. Specifically, the court needed to examine the tribunal's assessment of the contract terms, the breach of those terms, and the quantum of damages awarded.

The court found that the tribunal had indeed exercised its jurisdiction appropriately and had applied the correct legal principles in making its decision. However, the court identified errors in the tribunal's calculation of the damages awarded. The court held that the tribunal had made a mistake in calculating the amount due to the applicant, leading to an overestimation of the damages. Consequently, the court set aside the original order and replaced it with a new order that correctly calculated the amount owed. The court also noted that the tribunal's assessment of the contract terms and the breach was sound and did not need to be altered.

The tribunal ordered that McLeod pay Cunanan the sum of $5,451.90 within 28 days of the date of the orders. The tribunal allowed the appeal in part, setting aside the original order and replacing it with the corrected amount.

Orders

Orders of the court

The Tribunal orders that:

Appeal allowed in part.

Order 1 made by the tribunal in proceedings XD 1308/2024 on 17 March 2025 is set aside and replaced by the following order:

(a) The respondent in proceedings XD 1308/2024 is to pay the applicant in proceedings XD 1308/2024 the sum of $5,451.90 within 28 days of the date of these orders.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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