Wang & Anor v Best Auto Care Pty Ltd - [2024] QCATA 41

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Wang & Anor v Best Auto Care Pty Ltd [2024] QCATA 41

PARTIES:

AO WANG

(first applicant/appellant)

and

WENZI ZHAO

(second applicant/appellant)

v

BEST AUTO CARE PTY LTD

(respondent)

APPLICATION NO/S:

APL304-22

ORIGINATING APPLICATION NO/S:

MCDO0307-22 (Brisbane)

MATTER TYPE:

Appeals

DELIVERED ON:

26 March 2024

HEARD AT:

Brisbane

DECISION OF:

Member Lember

ORDERS:

Application for leave to rely on fresh evidence

1.     Leave to rely on fresh evidence is refused.

Decision on the application in MCDO0307-22

2.     Leave to appeal the decision dismissing the application in MCDO0307-22 is refused.

Decision on the counter-application in MCDO0307-22

3.     Leave to appeal the decision made on the counter-application in MCDO0307-22 is granted.

4.     Appeal allowed.

5.     The decision made on the counter-application in MCDO0307-22 is set aside and replaced with a decision that the applicants (Wang and Zhao) pay the respondent (Best Auto Care Pty Ltd) the sum of $1,000.00 within twenty-eight days of the date of today.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – where applicants applied for leave to appeal – where Tribunal dismissed applications based on bailment and Australian Consumer Laws – where counter-application granted on vehicle damage – whether damage caused by or arising from use of a vehicle – whether evidence supported decision made on counter-application

Civil Liability Act (2003) s 7, schedule 2

Competition and Consumer Act 2010 (Cth) schedule 2 (Australian Consumer Laws s 60, s 61, s 62, s 267, s 268, s 269)
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 13, s 32, s 143, schedule 3

Queensland Civil and Administrative Tribunal Rules 2009 (Qld) r 48, r 51

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321

Brisbane City Council v Mainsel Investments Pty Ltd [1989] 2 Qd R 204
Cachia v Grech [2009] NSWCA 232
Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404
Colonial Bank of Australasia v Willan (1874) LR 5 PC 417
Darbyshire v Warran [1963] 1 WLR 1067
Davidson v J S Gilbert Fabrications Pty Ltd [1986] 1 Qd R 1
Dimond v Lovell [2002] 1 AC 384
Financial Advisers Australia v Mooney [2016] QCATA 181
Glebe Island Terminals Pty Ltd v Continental Seagram Pty Ltd (1993) 40 NSWLR 206
Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388
Johnson v Perez (1988) 166 CLR 351
McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577
Meandarra Aerial Spraying Pty Ltd v GEJ Geldard Pty Ltd [2012] QCA 315; [2013] 1 Qd R 319
Penfold v Firkin & Balvius [2023] QCATA 11

QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41

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

What is the application about?

The substantive…

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.

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Details

Case: [2024] QCATA 41
Decision Date: 26 March 2024

CaseChat Overview and Summary

Wang and Zhao have appealed against a decision of the Tribunal which dismissed their claims based on bailment and Australian Consumer Laws, and upheld a counter-application by Best Auto Care Pty Ltd for vehicle damage. The Tribunal dismissed the applicants’ claims and granted the respondent’s counter-application, finding that the vehicle damage was caused by or arose from the use of the vehicle by the applicants. The applicants sought leave to rely on fresh evidence, to appeal the dismissal of their claims, and to appeal the decision on the counter-application. The respondent opposed the applications. The applicants contended that the Tribunal erred in law by failing to consider the fresh evidence, that there was an error of law in the Tribunal’s decision on the counter-application, and that the decision on the counter-application should be set aside.

The court held that the applicants were not entitled to rely on fresh evidence as they had not demonstrated sufficient cause for the delay in tendering the evidence or that the evidence was likely to affect the result of the case. The court also held that there was no error of law in the Tribunal’s decision dismissing the applicants’ claims, as the evidence supported the Tribunal’s finding that the applicants failed to establish that the vehicle damage was not caused by or arose from the use of the vehicle by the applicants. However, the court held that there was an error of law in the Tribunal’s decision on the counter-application, as the Tribunal failed to properly consider the applicants’ submissions and evidence on the issue of causation. The court held that the evidence did not support the Tribunal’s finding that the vehicle damage was caused by or arose from the use of the vehicle by the applicants.

The court allowed the appeal on the counter-application and set aside the decision on the counter-application, ordering that the applicants pay the respondent the sum of $1,000.00 within twenty-eight days of the date of the decision. The court held that the applicants were liable for the vehicle damage under the terms of the bailment agreement, and that the respondent was entitled to compensation for the damage caused by the applicants’ use of the vehicle. The court held that the applicants’ arguments on the issue of causation were not supported by the evidence, and that the respondent had established its case on the counter-application. The court held that the applicants’ submissions on the counter-application were inadequate and did not address the evidence adduced by the respondent.

Orders

Orders of the court

Application for leave to rely on fresh evidence

1. Leave to rely on fresh evidence is refused.

Decision on the application in MCDO0307-22

2. Leave to appeal the decision dismissing the application in MCDO0307-22 is refused.

Decision on the counter-application in MCDO0307-22

3. Leave to appeal the decision made on the counter-application in MCDO0307-22 is granted.

4. Appeal allowed.

5. The decision made on the counter-application in MCDO0307-22 is set aside and replaced with a decision that the applicants (Wang and Zhao) pay the respondent (Best Auto Care Pty Ltd) the sum of $1,000.00 within twenty-eight days of the date of today.

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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