Rogers v Thomson - [2024] QCATA 114

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Rogers v Thomson [2024] QCATA 114

PARTIES:

JAMES KENNETH ROGERS

(appellant)

v

RICHARD LESLIE THOMSON

(respondent)

APPLICATION NO/S:

APL294-23

ORIGINATING APPLICATION NO/S:

MCD999-22

MATTER TYPE:

Appeals

DELIVERED ON:

14 October 2024

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Judicial Member Stilgoe OAM

ORDERS:

Leave to appeal is refused

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW where appellant brought claim under the Australian Consumer Law for an alleged failure to service a boat with due care and diligence – where respondent made counterclaim for unpaid invoice – where Tribunal made orders dismissing claim and awarding compensation for counterclaim – where appellant claims the Tribunal failed to provide procedural fairness, made errors of fact and errors of mixed fact and law – where Tribunal heard from the appellant and allowed them to make submissions in reply – where Tribunal’s findings were open on the evidence before it – whether the appellant should be granted leave to appeal

Competition and Consumer Act 2010 (Cth) Sch 2

Queensland Civil and Administrative Tribunal Act 2009 s 142

Chambers v Jobling (1986) 7 NSWLR 1

Dearman v Dearman (1908) 7 CLR 549
Fox v Percy (2003) 214 CLR 118
Karpik v Carnival PLC [2023] FCA 1280
Kioa v West (1985) 159 CLR 550

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)

REASONS FOR DECISION

It is often said that loose lips sink ships, in this case a faulty seal did just that.
In late 2017, James Rogers bought a second-hand boat in a private sale. Shortly after, he took that boat to be serviced by Richard Thomson. The invoice rendered categorised the service as a “major service” and was in the amount of $975.03.
In November 2018, the boat began taking in water while moored. It sank. Mr Rogers lodged a claim with the boat’s insurer for the damage to the vessel, totalling $15,089.75.
The insurer’s loss adjuster determined that the cause of the water ingress was the failure of a seal on the boat’s stern drive. At Mr Rogers’ request, Mr Thomson wrote a letter to the boat’s insurer stating that he did not detect corrosion on the faulty seal during the service.
Mr Rogers alleges that, prior to writing the letter, Mr Thomson apologised for the damage to the boat and stated that he should have replaced the seal.
Though damage stemming from the failure of a seal was excluded from the boat’s insurance policy, Mr Rogers’ insurer offered to pay 50% of the claim. Mr Rogers accepted this offer and was paid $7,044.87.
Around the same time, Mr Rogers brought his boat back to Mr Thomson for the assessment and repair of the boat’s engine. Mr Rogers claims that he was quoted a figure…

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 Rogers v Thomson

Details

AGLC: Rogers v Thomson [2024] QCATA 114
Case: [2024] QCATA 114
Decision Date: 14 October 2024

CaseChat Overview and Summary

In the matter of Rogers v Thomson, the appellant brought a claim against the respondent under the Australian Consumer Law, alleging that the respondent had failed to service a boat with due care and diligence. The respondent made a counterclaim for an unpaid invoice. The dispute was heard by a Tribunal, which dismissed the appellant's claim and awarded compensation for the counterclaim. The appellant now seeks leave to appeal the Tribunal's decision, claiming that the Tribunal failed to provide procedural fairness, made errors of fact and mixed fact and law.

The court considered whether the appellant was entitled to leave to appeal. The legal issues included whether the appellant had a right to appeal, whether there was an error of law, and whether the Tribunal's findings were open on the evidence before it. The court noted that the Tribunal had heard from the appellant and allowed them to make submissions in reply. The court found that the Tribunal's findings were open on the evidence before it and that the appellant's claims of error were not sufficient to warrant leave to appeal.

The court held that the appellant was not entitled to leave to appeal. The court found that the Tribunal had provided procedural fairness and that its findings were open on the evidence before it. The court also found that the appellant's claims of error were not sufficient to warrant leave to appeal. The court noted that the appellant had been given an opportunity to make submissions in reply and that the Tribunal had considered those submissions.

The court refused the appellant leave to appeal. The court found that the Tribunal's decision was open on the evidence before it and that the appellant's claims of error were not sufficient to warrant leave to appeal. The court noted that the appellant had been given an opportunity to make submissions in reply and that the Tribunal had considered those submissions. The court held that the appellant was not entitled to leave to appeal.

Orders

Orders of the court

Leave to appeal is refused

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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