Parvez v Brisbane BMW - [2024] QCATA 107

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Parvez v Brisbane BMW [2024] QCATA 107

PARTIES:

MUHAMMAD PARVEZ

(appellant)

v

BRISBANE BMW

(respondent)

APPLICATION NO/S:

APL066 of 2023

ORIGINATING APPLICATION NO/S:

MCDO662 of 2022

MATTER TYPE:

Appeals

DELIVERED ON:

4 September 2024

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Judicial Member PG Stilgoe OAM

ORDERS:

1. Leave to adduce fresh evidence is refused

2. Leave to appeal is refused.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – where consumer claims car engine oil was overfilled by mechanic – where discovery of overfill occurred one year after the relevant service – where the car had been taken to other mechanics during the intervening year – where Tribunal dismissed claim – where the consumer claims the Tribunal erred on multiple grounds – where the consumer wishes to adduce fresh evidence that was available prior to the original hearing – whether the Tribunal erred in dismissing the claims – whether the fresh evidence should be adduced

Competition and Consumer Act 2010 (Cth), sch 2

Queensland Civil and Administrative Tribunal Act 2009, s 28, s 143

Australian Broadcasting Commission v Bond (1990) 170 CLR 321

Brisbane City Council v Mainsel Investments Pty Ltd [1989] 2 Qd R 204
Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404
Dearman v Dearman (1908) 7 CLR 549
FGT Custodians Pty Ltd v Fagenblat [2003] VSCA 33
Fox v Percy (2003) 214 CLR 118
James & Carroll v The Body Corporate for Palm Springs Residences [2010] QCAT 231
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Pickering v McArthur [2005] QCA 294
Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679
Terera & Anor v Clifford [2017] QCA 181
The King v War Pensions Entitlement Appeal Tribunal (1933) 50 CLR 228

Waterford v The Commonwealth (1987) 163 CLR 54

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

Muhammad Parvez took his car to be serviced by Brisbane BMW in December 2020. He was not happy with the car’s performance after the service and so took it to Bavaria Motors in May 2021 and Eurozone in July 2021.
In December 2021, Mr Parvez noticed an amber light on the dashboard which, on investigation, he found indicated that the car’s engine oil was overfilled.
Mr Parvez claimed that Brisbane BMW had overfilled his engine oil, contrary to its obligation under the Australian Consumer Law[1] (ACL) and caused ongoing damage to the car’s engine. Mr Parvez commenced proceedings in the Tribunal and sought orders that Brisbane BMW rectify the damage. Mr Parvez’s application was dismissed.
[1]Competition and Consumer Act 2010 (Cth), sch 2, s 60 (‘ACL’).
Mr Parvez wants to appeal that decision. Because this is an appeal from a decision of the Tribunal…

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 Parvez v Brisbane BMW

Details

AGLC: Parvez v Brisbane BMW [2024] QCATA 107
Case: [2024] QCATA 107
Decision Date: 4 September 2024

CaseChat Overview and Summary

The appeal arose from a decision of the Queensland Civil and Administrative Tribunal (QCAT), where Parvez, the consumer, sought to challenge the Tribunal's dismissal of his claim against Brisbane BMW, the supplier of a car service. Parvez alleged that the engine oil in his car was overfilled during a service, resulting in damage to his car. The Tribunal dismissed Parvez's claim, finding that he had not established the basis of his claim on the balance of probabilities.

The primary legal issues before the court were whether the Tribunal erred in dismissing Parvez's claim and whether Parvez should be allowed to adduce fresh evidence that was available prior to the original hearing. The court considered whether the Tribunal had made an error of law, and if the fresh evidence could be admitted under the relevant legal provisions.

In assessing the appeal, the court examined the evidence presented to the Tribunal and the Tribunal's reasons for dismissing the claim. The court found that the Tribunal had not erred in its decision, as Parvez had not provided sufficient evidence to establish that the overfill of engine oil was caused by Brisbane BMW's service. The court also determined that the fresh evidence Parvez wished to adduce was not admissible, as it was available at the time of the original hearing and Parvez had not demonstrated any exceptional circumstances that warranted its admission.

The court concluded that the appeal should be dismissed, and therefore, both the leave to adduce fresh evidence and the leave to appeal were refused. The Tribunal's decision stood affirmed, and Parvez's claims against Brisbane BMW were dismissed.

Orders

Orders of the court

1. Leave to adduce fresh evidence is refused

2. Leave to appeal is refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Leave to adduce fresh evidence is refused Leave to appeal is refused.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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