Dwyer v Newmac Equipment Pty Ltd

[2024] QCATA 135

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Dwyer v Newmac Equipment Pty Ltd [2024] QCATA 135

PARTIES:

SHANE MICHAEL DWYER

(appellant)

v

NEWMAC EQUIPMENT PTY LTD

(respondent)

APPLICATION NO:

APL057-22

MATTER TYPE:

Appeal

DELIVERED ON:

12 December 2024

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Judicial Member WA Isdale

ORDER:

Leave to appeal refused

CATCHWORDS:

APPEAL – GENERAL PRINCIPLES – where the applicant seeks leave to appeal – where no fresh evidence was relied upon – where the applicant seeks to rely on the Australian Consumer Law – whether the Tribunal below erred in its decision

Queensland Civil and Administrative Tribunal Act 2009 s 142(3)(a)(i)

Pickering v McArthur [2005] QCA 294

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)

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

1. Mr Dwyer commenced this matter by an application for minor civil dispute – consumer dispute, which was received by QCAT on 17 February, 2021.

The dispute

1. The dispute relates to a lathe, made around 1997, that he purchased from the respondent through its website in July, 2017.

2. Mr Dwyer claims that it was sold with major defects and sought to have the respondent accept its return at the respondent’s cost, refund the $13,000 purchase price to him and reimburse his reasonable expenses.[1]

   [1]Application received 17 February, 2021, Part C.

3. A valuation by JD Dodds, Plant and Machinery valuers, states that on 10 August, 2020, the lathe had a fair market value of $7,000 and was in below average condition.

QCAT hearing

1. The matter was heard by an adjudicator. The substantive hearing took place by a telephone link between 2:06 and 2:47pm on 6 January, 2022 and is recorded in 25 pages of transcript.

2. The Adjudicator gave reasons for decision on 10 January, 2022 and made orders to dispose of the matter. The orders are that the respondent pay the applicant $1,500 and a filing fee of $352, which is $1,852 in total, within 28 days.

The present application

1. Mr Dwyer applied for leave to appeal this decision, which was in his favour. There has not been any application to rely on fresh evidence in accordance with directions made by QCAT on 18 March, 2022.

2. Section 142(3)(a)(i) of the QCAT Act requires that in cases such as this one, leave to appeal must be obtained. In the usual case, such leave would be forthcoming where it appears that there is a reasonable argument that there was an error made by the Adjudicator such that an appeal would be necessary to correct a substantial injustice to the applicant which was caused by that error.[2]

   [2]Pickering v McArthur [2005] QCA 294 [3].

The key facts

1. This used lathe, then about 20 years old, was purchased in July, 2017. The respondents had bought it at auction from a company that had made car transmissions in Albury. It was sold to Mr Dwyer by means of an “online” transaction. Mr Dwyer did not inspect it or have someone inspect it on his behalf before he bought it.

2. Mr Dwyer arranged for the transportation of the lathe from the seller in Victoria to him in South-East Queensland.

3. The lathe arrived with some substance on it and some corrosion. Mr Dwyer took this up with the insurer he had contracted with in regard to the transport and his claim was settled after two years, approximately.

4. There was some rust on the lathe at the time of purchase but it was described by Mr Dwyer as “… inconsequential. It did not affect my buying it because the rust shown on the photo that you advertised is not on any sliding or wear services (sic)”.[3]

   [3]T 6 January 2022 1-4 lines 32 to 33.

5. At the hearing, Mr Dwyer also said –

   “… for wear and tear for a lathe, the machine’s not in bad condition.[4]

   [4]T 1-16 line 25.

6. In relation to rust on the lathe at the time it left the seller’s premises, Mr Dwyer said –

   … It did have rust on it left the – when it left the premises. All right. But I don’t want to go there anymore. We’ll forget about that but, look, the gears and the apron – it’s gone through the case hardening; the rust …”.[5]

   [5]Ibid 26 to 29.

Adjudicator’s decision

1. The Adjudicator set out the facts as disclosed by the evidence. In relation to the water damage, the Adjudicator found that it was arguable that any water damage occurred at the time or coincidentally with the damage caused by the “industrial grit”[6] which the machine was covered with “most likely”[7] when in the custody of the transport company.[8]

   [6]T 10 January 2022 1-4 line 11.

   [7]Ibid line 5.

   [8]Ibid line 6.

The grounds of appeal

1. The proposed grounds of appeal, should leave to appeal be granted, are, in substance, that the Australian Consumer Law would entitle Mr Dwyer to redress due to the major failure of the respondent in respect of the product which it sold to him.

2. As there has not been any application to introduce fresh evidence, the present application must be determined on the existing evidence as it was when the matter was before the Adjudicator. The claim made in connection with the proposed appeal that the lathe was not of an acceptable quality and fit for purpose is inconsistent with the position taken at the hearing that the lathe was “…not in bad condition.”

3. The main thrust of the grounds of appeal is that the rust damage has reduced the value of the lathe.

4. There is a claim in the grounds of appeal that standard fitted equipment, a Rapid Traverse Mechanism was removed from the lathe and not disclosed. This is apparently contradicted by the valuation dated 10 August, 2020 which is expressed to be including the “… lathe and its standard component parts.”

5. The grounds of appeal also state that a question should have been asked of the respondent at the hearing but was not. This relates to the Australian Consumer Law.

6. It is misconceived to suggest that the Adjudicator ought to have asked the respondent questions such as this. The Adjudicator is constituting the impartial Tribunal and the parties must decide what questions they ask.

7. Mr Dwyer also claims that the Adjudicator misunderstood the Australian Consumer Law and argues that there is no time limit which would operate to exclude this claim.

Adjudicator’s decision

1. The Adjudicator’s decision shows that there was not an erroneous application of some time limit but rather a finding that, in this case, the passing of time was “… so great…”[9] that the Australian Consumer Law could not be relied upon to, in effect, demand a complete refund.

   [9]T 10 January 2022 1-3 line 33.

2. The Adjudicator pointed out that a demand for a refund can be made provided that the request is made “… within a reasonable time.”[10]

   [10]Ibid line 29.

3. The Adjudicator was not satisfied that the applicant had established that there was a major failure by the respondent in the supply of the lathe. This was the most significant finding.[11]

   [11]Ibid line 45 – 1-4 line 2.

Resolution

1. The findings of the Adjudicator were set out in detail in the decision. They are findings that were open on the evidence. The record discloses that Mr Dwyer stated that the lathe was not in bad condition. In practical terms, this makes it impossible for him to now claim that there was a major failure by the respondent in selling it to him. His concession undermines his claim on appeal so thoroughly that it could not be said that there is a reasonable argument that there was an error by the Adjudicator such that an appeal would be necessary to correct a substantial injustice to Mr Dwyer which was caused by the error.

2. The evidence supports the inference that the water-related corrosion of concern occurred in connection with the transportation of the lathe, when it was at Mr Dwyer’s risk, a risk he took steps to address with insurance.

3. For the reasons given, leave to appeal must be, and is, refused. The Adjudicator’s orders remain in force.

Order

Leave to appeal refused.