Aquamarine Services Pty Ltd v Butson; Butson v Aquamarine Services Pty Ltd [2025] QCATA 32

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

[1] On 23 December 2019, Mr and Ms Butson purchased a Sirocco Rigid Inflatable Boat (RIB) 270 Alloy Tender from Aquamarine Services Pty Ltd for $4390. At the time of purchase, Aquamarine supplied and fitted davit pads to the tender for an additional $550.
[2] In October 2022, the Butsons discovered that the tender had deflated. They arranged for the tender to be returned to Aquamarine for assessment and repair.
[3] When the repairs were unsuccessful, the Butsons emailed Aquamarine requesting the replacement of the tender and for the reimbursement of freight costs and other consequential losses. Aquamarine did not respond.
[4] The Butsons filed an application in QCAT. The Tribunal ordered Aquamarine to pay them $4,538.51 within twenty-one days and to collect the tender within fourteen days.

(a) allowing Ms Butson to reference evidence in support of her case which was received at mediation;

(b) allowing Ms Butson, as a qualified lawyer, to participate in the proceedings;

(c) making an error of fact;

(d) misinterpreting the Australian Consumer Law (ACL) guarantees;

(e) relying on evidence from unqualified people; and

(f) failing to consider evidence and facts provided by them.

[6] Aquamarine wants to file new evidence.
[7] The Butsons also appeal this decision. They argue that the Tribunal erred in fact by failing to award compensation for their loss of:

(a) $660 for the transportation of the original tender to the supplier for assessment and repair; and

(b) $550 for the cost of supplying and installing davit pads to the original tender at the time of purchase.

[8] Because these are appeals from a decision of the Tribunal in its minor civil disputes jurisdiction, leave is necessary.[1] Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.[2]
[9] I will address these appeals in turn.

Should Aquamarine have leave to file new evidence?

[10] Aquamarine wants to file new evidence but it has not filed anything to show what that evidence might be.
[11] The appeals tribunal will only accept fresh evidence if it was not reasonably available at the time the proceeding was heard and determined.[3] Ordinarily, an application for leave to adduce such evidence must satisfy each of the following tests:

(a) The evidence could not have been obtained with reasonable diligence for use at the trial;

(b) The evidence, if allowed, would probably have an important impact on the result of the case (although it need not be demonstrated that it would be decisive); and

(c) That the evidence is credible though it need not be incontrovertible.[4]

[12] An application for leave to appeal is not, and should not be, an attempt to shore up the deficiencies of a party's case at the initial hearing.
[13] Aquamarine has not explained why the evidence it wants to rely on could not have been obtained at the hearing, nor have they explained how the evidence would have an important impact on the result of the case. As the evidence is not before me, I cannot comment on its credibility.
[14] That evidence should not be admitted and the application for leave to appeal must proceed on the basis of the evidence before the learned Adjudicator.

Did the Butsons refer to evidence received at mediation?

[15] Aquamarine submits that Ms Butson did not file statements of evidence that emerged at mediation but still relied on information obtained at mediation. Aquamarine says that the Tribunal should not have relied on that evidence in coming to its decision.
[16] Evidence of anything said or done during mediation is not admissible unless it is subsequently filed.[5]
[17] The evidence referred to by Ms Butson in her oral submissions to the Tribunal was a report provided by Whitsunday Ocean Services. The transcript of proceedings shows that the Learned Adjudicator clarified with the representatives for Aquamarine whether the report had been provided to the Tribunal. They clarified that there was no such report, but instead that there was an email which had been submitted to the Tribunal for consideration.[6] The Tribunal, therefore, was able to consider this submission as it had been filed.
[18] Ms Butson was of the belief that this report suggested that 'although the repair had been completed, that it was quite possible that the glue would fail further, causing a similar problem to arise.' The Tribunal does not appear to have relied on this evidence as the Learned Adjudicator did not refer to this information in his reasons.[7]
[19] For completeness, findings of fact by a Tribunal will not usually be disturbed on appeal if the facts inferred by the Tribunal, upon which the finding is based, are capable of supporting its conclusions, and there is evidence capable of supporting any inferences underlining it.[8]
[20] Even excluding the impugned evidence, I find that there is evidence capable of supporting the Tribunal's conclusion, and I can find no good reason to set that finding aside.

[21] Aquamarine submits that given "Lisa Butson's experience as a qualified legal practitioner" it was a conflict of interest for her to appear at the hearing and that she should have sought leave to appear. It likewise submits that it suffered a disadvantage because it did not have legal representation.
[22] Section 43 of the QCAT Act is as follows:

(1) The main purpose of this section is to have parties represent themselves unless the interests of justice require otherwise.

(2) In a proceeding, a party -

(a) may appear without representation; or

(b) may be represented by someone else if -

(iv) The party has been given leave by the tribunal to be represented.

[23] On a plain interpretation of this provision, Ms Butson, as a party to the proceeding had a right to represent herself in the proceedings.
[24] Aquamarine had an opportunity to ask for leave to be represented but, apparently, chose not to do so.
[25] The oral transcript of proceedings shows that both parties were given an opportunity to put forward their case and the learned Adjudicator commented that "both parties have assisted the tribunal in providing substantial and well-argued submissions with respect to their positions in the claim".[9]
[26] I consider that the Tribunal acted in a manner that was fair to both parties. I dismiss this ground of appeal.

[27] Aquamarine generally disputes the findings of fact of the learned Adjudicator, including that the manufacturer of the tender had gone out of business.
[28] As I have already identified, findings of fact by a Tribunal will not usually be disturbed on appeal if there is evidence capable of supporting any inferences underlining it.[10]
[29] On the evidence before me, I find that the learned Adjudicator erred in fact and that the manufacturer remains in business.
[30] This error of fact, however, does not have a significant impact on the decision as under sections 259 and 271 of the ACL, the consumer can elect to seek a remedy from the supplier or the manufacturer. In this instance, the Butsons have chosen to seek a remedy against the supplier.
[31] In the circumstances, I find that, although the Tribunal has made an error of fact, an appeal is not necessary to correct a substantial injustice to the applicant caused by that error.

[32] Aquamarine submits that the learned Adjudicator misinterpreted the ACL guarantees. It submits that, it does not understand how the manufacturer warranty was not in compliance with the ACL. It likewise submits that the stated warranty provided to the Butsons was for 2 years, and that the claim was made outside of that time.
[33] Under the ACL, there is a guarantee that goods are of acceptable quality; that they are fit for purpose, free from defects, safe and durable.[11]
[34] A failure to comply with a consumer guarantee is a major failure if: [12]

(a) the goods would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of the failure; or

(c) the goods are substantially unfit for a purpose for which goods of the same kind are commonly supplied and they cannot, easily and within a reasonable time, be remedied to make them fit for such a purpose; or ...

[35] The ACL is a statutory scheme for the benefit of consumers. Consumer rights under the ACL cannot be excluded or limited by a warranty.[13] The warranty provided by Aquamarine was in addition to the consumer guarantees under the ACL and cannot override or limit a consumer's rights under it.
[36] In the circumstances, I find that the learned Adjudicator did not err in his interpretation of the ACL.

[37] Aquamarine submits that the Tribunal relied on two expert statements to verify the condition of the tender. It argues that neither submission should be relied on as both 'experts' are unqualified.
[38] The learned Adjudicator considered two statements: the statement of marine surveyor, Mr Peter McFarlane; and the statement of Mr Cody Blucher.[14]
[39] There is no requirement for Mr Blucher to be qualified as he gave evidence of the tasks that he had performed in providing a service to the vessel and his personal observations as to the condition of the vessel.
[40] Aquamarine made several submissions relating to the qualification of Mr Peter McFarlane.
[41] Firstly, they submit that "the ABN listed on Peter McFarlane survey report lists Sunbird Produce as trading name, not currently GST registered". Mr McFarlane's lack of personal ABN does not have any bearing on the Tribunal's assessment of his evidence, nor his ability to provide an independent report.
[42] Secondly, Aquamarine Services submit that "Peter McFarlane is not listed as an accredited marine surveyor in any of the Australian surveyor associates". I accept the submissions of the Butsons that, despite no longer maintaining his accreditation and membership of professional organisations, Mr Peter McFarlane has been a qualified marine surveyor for 20 years and can be considered an expert for the purposes of giving evidence.
[43] Finally, they submit that the "'report' subsists of less than a paragraph" and that "there is no test methodology or results regarding the claim of tube leakage in areas reported. There are no photos contained in the report and there are no references to any kind of test methodology whatsoever."
[44] I accept this submission. However, the Tribunal is not bound by the rules of evidence[15] and may inform itself in any way that it considers appropriate.[16] This does not mean that the Tribunal can ignore the rules of evidence[17] but it does allow the Tribunal to accept evidence which might not be admissible as expert evidence in a Court.[18]Even if the report provided by Mr McFarlane is brief, the Tribunal may still rely on the statement as evidence. Aquamarine "does not accept relevance of this 'report' and suggests it is attempt to shore up the Butson's claim [sic]". They also submit that "they could have only seen the tender and or cover 2 to 3 times at most while polishing for the day".
[45] It is important to keep in mind that the standard test for weighing and applying the evidence is not one of mathematical or scientific exercise but based on a reasonable search for the truth in the circumstances of each particular case.[19]
[46] The Tribunal considered that the report was relevant. It provided evidence of how the tender was being taken care of by the Butsons at different points in time. The Tribunal was entitled to consider the report and I can find no reason to come to a different view
[47] Even if Mr Blucher's report was not 'relevant', there was other evidence before the Tribunal that was capable of supporting the inferences underlying it.

Insufficient weight given to Aquamarine's Evidence:

[48] Aquamarine submits that, as the Tribunal did not refer to its evidence in the oral transcript, it did not consider or give weight to those facts and evidence. It also submits that the inferences arising from the facts provided were overlooked.
[49] The Tribunal specifically acknowledged Aquamarine's evidence in the transcript of proceedings,[20] and I am satisfied that the Tribunal turned its mind to all the available evidence.
[50] There is no error of law simply in making a wrong finding of fact unless there is no evidence to support that finding.[21]
[51] On the material before me, I find that there is evidence capable of supporting the conclusion inferred by the Tribunal.

[52] For the reasons above, Aquamarine's application for leave to appeal is refused.

Compensation for supply and installation of davit pads:

[53] The Butsons argue that they should be reimbursed for the total cost of the tender, which includes an additional $550 for the davit pads. The tender cannot be stored without the davit pads, and because they are permanently attached, they cannot be salvaged.
[54] The Tribunal did not address this claim in the reasons. The Tribunal erred in failing to consider the evidence before it. This is an error for which leave should be given.

Compensation for transportation costs - s 263 of the ACL:

[55] The Butsons submit that the Tribunal erred in law by failing to compensate them for the cost of returning the tender to Aquamarine for assessment and repair. They submit that s 263 of the ACL provides a basis for the reimbursement of the cost of transport.
[56] Section 263 of the ACL states:

(1) This section applies if, under section 259, a consumer notifies a supplier of goods that the consumer rejects the goods.

(2) The consumer must return the goods to the supplier unless:

(a) the goods have already been returned to, or retrieved by, the supplier; or

(b) the goods cannot be returned, removed or transported without significant cost to the consumer because of:

(i) the nature of the failure to comply with the guarantee to which the rejection relates; or

(ii) the size or height, or method of attachment, of the goods.

(3) If subsection (2)(b) applies, the supplier must, within a reasonable time, collect the goods at the supplier's expense.

(4) The supplier must, in accordance with an election made by the consumer:

(i) any money paid by the consumer for the goods; and

(ii) an amount that is equal to the value of any other consideration provided by the consumer for the goods; or

(b) replace the rejected goods with goods of the same type, and of similar value, if such goods are reasonably available to the supplier.

(5) The supplier cannot satisfy subsection (4)(a) by permitting the consumer to acquire goods from the supplier.

(6) If the property in the rejected goods had passed to the consumer before the rejection was notified, the property in those goods revests in the supplier on the notification of the rejection.

[57] Section 263 sets out the consequences that flow from a rejection of the goods.[22] The provision only becomes enlivened once the goods have been rejected.[23] Due to the size of the tender, it was unable to be returned without significant cost to the Butsons.[24]
[58] The tender was, however, transported from Townsville to the Gold Coast for its assessment and repair. At this point the Butsons had not 'rejected' the tender. This cost, therefore, falls outside the scope of s 263.

Compensation for transportation costs - s 259(4) of the ACL:

[59] In the alternative, the Butsons submit that s 259(4) the ACL provides a basis for recovery of consequential losses.
[60] That section states:

(4) The consumer may, by action against the supplier, recover damages for any loss or damage suffered by the consumer because of the failure to comply with the guarantee if it was reasonably foreseeable that the consumer would suffer such loss or damage as a result of such a failure.

[61] The Tribunal found there was a major fault with the tender pursuant to the provisions of the ACL and, therefore, it failed to comply with the consumer guarantees under the ACL.[25]
[62] In Vautin v BY Winddown, Inc (formerly Bertram Yachts) (No 4)[26], Derrington J stated:

It would appear that this subsection is concerned with the recovery of 'reliance losses' as the inclusion of the limitation of 'reasonable foreseeability' pertains to such losses....

[63] Reasonable foreseeability is assessed using normal legal principles because the ACL does not contain its own, separate, rules for assessing damages.[27] Foreseeability is an objective test. The Tribunal must determine whether a reasonable person in Aquamarine's position would reasonably have foreseen that the Butsons would suffer loss or damage as a result of the failure.[28]
[64] The Butsons submit that, where there is a major fault, "a business...would understand that ... the customer will ... wish to return the product to the business for repairs or replacement ... there would be costs involved in returning the product".
[65] In Pojzak v Congeo Nominees Pty Ltd[29], the Victorian Civil and Administrative Tribunal stated that "any entitlement to claim damages comes with the obligation to mitigate the damages". In Weskey v Liano, the Tribunal determined that the charges the Applicant paid to a tow truck company when their car broke down were recoverable under s 259(4) as they were "damages which the Applicant sustained in consequence of the Respondent's failure to comply with the consumer guarantee".[30]
[66] Applying the reasoning in those cases, the Tribunal erred in determining that the ACL does not provide a basis for reimbursement for the cost of returning the tender to Aquamarine for assessment and repair.
[67] I find that the transport cost was a reasonably foreseeable loss.

[68] Section 146(b) of the QCAT Act provides that the Appeal Tribunal may set aside a decision and substitute its own decision where an error of law is demonstrated.
[69] I can also remit this matter for rehearing,
[70] In Brown and Anor v Noosa Constructions Pty Ltd, the Appeal Tribunal said:

... it is appropriate for the Appeal Tribunal to consider those matters complained of in the appeal, where the facts are clear but insufficient reasons were given, and substitute its own decision and reasons with an appropriate amendment to the learned Member's orders as required.[31]

[71] I am mindful of the Tribunal's mandate to deal with matters in a way that minimises costs to parties and is as quick as is consistent with achieving justice.
[72] Aquamarine does not dispute the quantum of Butsons' claims for the davit or transport. I am satisfied that I can substitute my own decision on these claims.
[73] Aquamarine is to pay Mr and Ms Butson the sum of $1,210 in addition to the amount ordered by the Tribunal on 11 December 2023.
[74] This amount reflects the cost of the tender, including the davit pads, and the cost of transportation of the tender to Aquamarine for assessment and repair.

[75] On 21 February 2024, Member Lember made the decision to stay the 11 December 2023 decision of Adjudicator Eardley pending the outcome of the application for leave to appeal or appeal.
[76] The application has now been decided. I consider that it is appropriate to lift the stay of the decision.

Aquamarine Services Pty Ltd's leave to appeal refused.
Benjamin Butson and Lisa Butson's leave to appeal is granted and the appeal allowed.
Aquamarine Services Pty Ltd shall pay Benjamin Butson and Lisa Butson the sum of $1,210 in addition to the amount ordered by the Tribunal on 11 December 2023 within 21 days of today's date.
The order of 21 February 2024 staying the decision of the Tribunal is lifted.

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

[4] Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 408.

[6] Oral Transcript of Proceedings dated 4 October 2023 at 1-18, 1-19.

[7] Oral Transcript of Proceedings dated 11 December 2023.

[8] Dearman v Dearman [1908] HCA 84; (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.

[9] Oral Transcript of Proceedings dated 11 December 2023 at 1-2.

[10] Dearman v Dearman [1908] HCA 84; (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.

[11] Competition and Consumer Act 2010 (Qld), Schedule 2 (ACL), s 54.

[14] Oral Transcript of Proceedings dated 11 December 2023, 1-3.

[17] R v War Pensions Entitlement Appeal Tribunal (1933) 50 CLR 228 at 256.

[18] Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 [85] per Heydon JA, as his Honour then was).

[19] TNT Management Pty Ltd v Brooks (1979) 23 ALJR 345 at 349-350.

[20] Oral Transcript of Proceedings dated 4 October 2023.

[21] Waterford v The Commonwealth [1987] HCA 25; (1987) 163 CLR 54 at 77; Australian Broadcasting Commission v Bond (1990) 170 CLR 321 at 341.

[22] Atkins v Future Wheels Pty Ltd [2024] QCAT 233 [26].

[23] ACH Computing Pty Ltd v Austral Pty Ltd [2020] QCAT 176 [26].

[27] Tildiz v Caltex Australia Petroleum Pty Ltd [2019] VCAT 1202 [22].

[28] Donoghue v Stevenson [1932] AC 562.

Civil and Administrative Tribunal Act 2009

ACH Computing Pty Ltd v Austral Pty Ltd [2020] QCAT 176

Atkins v Future Wheels Pty Ltd [2024] QCAT 233

Brown and Anor v Noosa Constructions Pty Ltd [2012] QCATA 194

Dearman v Dearman [1908] HCA 84; (1908) 7 CLR 549

Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705

Pickering v McArthur [2005] QCA 294

Pojzak v Congeo Nominees Pty Ltd [2013] VCAT 2175

Tildiz v Caltex Australia Petroleum Pty Ltd [2019] VCAT 1202

Vautin v BY Winddown, Inc (formerly Bertram Yachts) (No 4) [2018] FCA 426

Waterford v The Commonwealth [1987] HCA 25; (1987) 163 CLR 54

Weskey v Liano [2017] VCAT 1465

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