Jakopovic v Kaber Manufacturing Pty Ltd t/a Custom Towbars and Trailers
[2024] QCATA 111
•11 September 2024
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Jakopovic v Kaber Manufacturing Pty Ltd t/a Custom Towbars and Trailers [2024] QCATA 111
PARTIES:
BORIS JAKOPOVIC (appellant)
v
KABER MANUFACTURING PTY LTD TRADING AS CUSTOM TOWBARS AND TRAILERS (respondent)
APPLICATION NO:
APL165-23
MATTER TYPE:
Appeal
DELIVERED ON:
11 September 2024
HEARING DATE:
On the papers
HEARD AT:
Brisbane
DECISION OF:
Judicial Member WA Isdale
ORDERS:
1. Leave to appeal refused.
CATCHWORDS:
APPEAL – GENERAL PRINCIPLES – where leave was sought to appeal the decision below – where the applicant argued that they were sold a faulty product – where the applicant sought to rely on the Australian Consumer Law – where the applicant continued to use the product after it was damaged – where the product subsequently failed – whether the applicant’s continued use of the product after being advised to have it inspected voided the consumer warranty
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) (QCAT Act)
REASONS FOR DECISION
The applicant purchased a towing system from the respondent. It allowed his 9 ton truck-based motorhome to tow his car on journeys around Australia. It is not in dispute that it was fitted correctly by the respondent. It was guaranteed for 2 years and failed after 9 months. It was in use when it failed.
The applicant was unable to reach what he regarded as a satisfactory resolution of his complaint with the respondent so brought the matter to QCAT for determination.
The learned Adjudicator heard the matter by telephone between 2:19 and 3:06pm on 28 September, 2022. The transcript records the reasons for the decision, which was given at the time.
The Adjudicator explained that the applicant was seeking $10,000 in respect of losses he claimed were due to the failure of the towing system. A part referred to as a receiver became bent in use. As this was discovered at a remote location, the applicant decided to continue towing without it for around 293 km to where the problem could be dealt with.
The respondent sent a replacement part, which the applicant fitted. There is a dispute about whether the applicant was told to have the assembly checked by a mechanic. The applicant says that he was not.
Subsequently, the towing assembly failed again, this time more seriously, giving rise to the dispute.
The Adjudicator’s reasons for decision record that the applicant had not established that there was a defect in the manufacturing process or that the towing system was not suitable for the task. Accordingly, the application was dismissed.[1]
[1]T 1-16, lines 22 to 25.
The Adjudicator referred to an engineering report prepared by Mr Jason Cerezo which states that under Australian Standard AS 4177.3 the receiver should be able to withstand being tilted up to 20 degrees. The bent part, described as a drop receiver, was measured to have been bent 24 degrees. Examination of the part therefore indicated that it failed when subject to force which bent it beyond the Australian Standard requirement and that was not normal use.
Mr Cerezo stated that, from the photographs, it was apparent that the subsequent final failure of the towing connection showed a tear, 85% of the length of which was rusty, the remainder being shiny. This indicated that the tear had been present for some time before the final failure and that the tear of the base plate flange happened when the drop receiver was bent.
The Adjudicator considered the report of Mr Richard Billett, a mechanical engineer and Registered Professional Engineer in Queensland. This report was prepared for the applicant. Mr Billett stated that the final failure of the product was a fatigue failure of one of the base plates that attach the towing mechanism to the vehicle. He identified that the failed base plate was steel of Grade S 235. This is a mild or low grade of steel. It has mechanical properties below that of Grade S 250, the lowest standard normally used in Australia. This report does not mention the drop receiver.
Mr Billett also noted that the cross beam joining the base plates of the towing mechanism has a permanent bend. He formed the opinion from this that the overall mechanism is unlikely to have a sufficient safety factor on its 3,000 kg rating. The email from Grant Della to Jason Cerezo at 12:57pm on 25 July, 2022 was also in evidence. It states that testing on the drop receiver showed that it did not bend when it was loaded to 1.5 times the component load rating, i.e. 5,250kg of force, so it did not bend under normal loaded conditions.
The Adjudicator noted that the towing mechanism has an Australian certification and that Mr Billett does not appear to have considered the earlier failure of the drop receiver and subsequent towing of the applicant’s car without use of that part. Consequently, he has not considered and reported on the relevance or otherwise of using the towing mechanism without that part in place.
Accordingly, the learned Adjudicator came to the view that Mr Billett’s report was not of assistance and dismissed the application.
The applicant, dissatisfied with this finding, wishes to appeal.
Section 142(3)(a)(i) of the QCAT Act provides that in cases such as this, leave to appeal is required. In the usual course, leave would be granted where it appears that there is a reasonable argument that there has been an error and an appeal would be necessary to correct a substantial injustice to the applicant which that error caused.[2]
[2]Pickering v McArthur [2005] QCA 294 [3].
The grounds of the proposed appeal
The applicant provided four proposed grounds of appeal. Each will be considered in turn. The applicant also explained that delay in applying for leave was due to travelling in remote areas with limited communications being available. For present purposes that is not an issue and attention may be directed to the substance of the matter. The applicant has referred to each of what amounts to the grounds of appeal as a “reason”. That terminology will be adopted in these reasons.
Reason 1
There was a 2-year warranty on the towing system. The receiver failed after 6 months and 6,000km. The second and final failure was about 3 months later, on 28 June, 2021. Australian Consumer Law, it is submitted, should be invoked.
Consideration
For the towing mechanism to fail within the 2-year warranty period certainly directs attention to Consumer Law. The evidence before the learned Adjudicator indicated that the towing mechanism was properly certified and that the failure of the receiver and most of the damage to the base plate occurred in the context of being challenged in excess of the Australian Standard when the receiver was bent. That evidence is not diminished by the evidence of Mr Billett who did not direct his report to this aspect. In view of the evidence before the learned Adjudicator, it could not be said that there is a reasonable argument that there is an error here or a failure able to be remedied by the Australian Consumer Law.
Reason 2
Lack of any factual evidence by Jason Gow of the respondent and Northcoach RV Equipment, the supplier of the towing system to the respondent. It is submitted that Mr Gow did not explain the final failure of the system.
Consideration
In proceedings of the nature of what was before the Adjudicator, the onus is on the applicant to prove their case and the respondent is not obliged to assist them. This “reason” does not assist the applicant for present purposes.
Reason 3
The learned Adjudicator did not properly consider the report prepared by Mr Billett. The kerb weight of the towed car, 1,525kg, is less than half of the claimed towing capacity.
Consideration
The reasons of the learned Adjudicator are recorded in the transcript. The Adjudicator engaged with the report of Mr Billett and, for reasons that were given, was not persuaded by it in the presence of the other evidence, all of which was referred to in adequate detail so as to disclose proper consideration of all of the evidence. The material does not disclose a reasonable argument that there has been an error such that an appeal would be necessary to correct a substantial injustice to the applicant caused by that error. The reasons for decision disclose that the decision was fairly open on the basis of the evidence and that the evidence was properly considered.
Reason 4
Delay of the applicant in seeking leave to appeal was due to travelling in the Australian outback while the Covid 19 virus was presenting a lot of challenges.
Consideration
The application for leave to appeal is now being considered on its merits. This delay has not been allowed to prejudice the applicant.
Conclusion
Consideration of the material before this Tribunal does not reveal the existence of an error such as would justify granting leave to appeal so such leave must be, and is refused.
Orders
Leave to appeal refused.
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