Gym Imports Direct Pty Ltd v Train on Squad Pty Ltd [2025] QCATA 40

• [4] Freight and delivery allowance was paid in the sum of $8,140.00. leaving the sum of $7,274.08 to be paid. This amount was deducted from the deposit as noted.
• [5] The respondent argued before the Tribunal that on 21 October 2020 it paid the appellant the sum of $27,300.00 as a deposit for the supply of gym equipment. On the invoice for the deposit the following was noted; "Freight, Tailgate Delivery and Devanning charges are additional and will be calculated prior to final invoice being issued". The final invoice was issued on 29 November 2021, for the sum of $56,718.91. The appellant noted that the deposit would be returned in full once full payment was paid by the financier. The invoice amount of $56,718.91 was paid by the financier on 23 December 2021. On 20 January 2022 the deposit was returned less the additional freight costs of $7,274.08.
• [6] In the application before the Tribunal the appellant counter-claimed an amount of $9,580.79, made up of:

(a) $6,319.228 holding costs for "almost a year";

(b) $1,374.01 interest charge on equipment not paid when due;

(c) $1,760.0 for the consultant's fees "to address Train on Squad's sales order, equipment and delivery requirements and Queensland Civil and Administrative Tribunal application, mediation and counter claim"; and

(d) $127.50 filing fee.

• [7] The appellant submits that, although the member accepted that shipping, freight and delivery costs had increased significantly due to COVID-19, the amount charged to the respondent was reasonable and justified and the respondent was liable for costs causing the Tribunal to order the appellant to pay the respondent $4,000, the appellant suffered a loss as a result of the Tribunal's order.
• [8] The appellant noted clause 15 of the terms and conditions document which says, "Additional Charges" will be payable in the event of third party logistics, storage, devanning and other charges (i.e. inland freight charges, consolidation, port congestion etc). A further note states:

Due to the impact of COVID-19, all sea and local (China and Australia) freight charges are increasing. These charges will be passed on to the Buyer for payment before delivery.

• [9] It is submitted that the respondent signed the appellant's delivery form which stated:

You agree and acknowledge to pay all freight, devanning, port fees, tailgate delivery fees and (for international studios) customs clearance, duties, import GST/taxes and storage (if and where applicable) prior to delivery as well as accept responsibility for any additional charges that may result from inaccurate or incomplete information.

• [10] The respondent requested delivery on 20 March 2021, but the actual delivery date was 11 January 2022. The appellant therefore incurred storage costs of $6,319.28. It is submitted that the Tribunal dismissed this portion of the counter claim without reason.
• [11] The appellant was concerned that it had not been given an opportunity to explain the supply process and to correct incorrect statements made by the respondent. The Tribunal had taken offence at being asked if she knew what "devanning" was and did not conduct the hearing fairly.
• [12] The appellant seeks orders that the Tribunal order of 1 June 2022 be reversed, and the application and cross application both be dismissed.
• [13] The respondent submitted that they placed an order for "BFT studio equipment pack" with the appellant on 15 October 2020. The contract price was $48,578.70 including GST noting that "freight, tailgate delivery and devanning charges are additional and will be calculated prior to final invoice being issued." On 29 November 2021, the appellant sent an email attaching an invoice "for the financier." This email noted that "we will refund deposit upon settlement." On 20 January 2022, the deposit was refunded less $7,274.08.
• [14] The respondent submits that the Tribunal was correct in rejecting the appellant's cross application, as the consultant's fees claimed is in respect of work undertaken by their finance director, there is no explanation as to how interest was calculated as all monies due were paid within the payment terms and there was never any mention of any storage charge. It was submitted that even if there were storage charges they would have been known by November 2021 and should have been included in the final invoice. The respondent considered these claims "spurious and baseless."
• [15] The respondent submits that having found that the appellant was not entitled to deduct the monies from the deposit, it erred in arbitrarily reducing the amount to be refunded by $4,000.00; and further, the Tribunal should have ordered that the appellant refund the full amount of the claim.
• [16] The respondent submitted that although there had not been an application for introduction of fresh evidence, the appellant's documents identified as attachments A, B, C, E, F, I, L and N should not be accepted as there is no evidence to inform the Appeal Tribunal the fresh evidence:

(a) was not available to the Tribunal;

(b) is important; and

(c) should be accepted.

• [17] The respondent submits that the evidence should be rejected as it is neither objective or substantiated and some of it, including attachment E, is false evidence.
• [18] The respondent submits that the Tribunal gave the appellant a fair hearing.
• [19] It is submitted that the Appeal Tribunal would note that the appellant has "dropped" its cross application, which was described by the Tribunal as an "ambit claim".
• [20] The respondent submitted that the appeal should be decided on the law and "not on the basis of trying to make sure 'both sides win'".

• [21] The appellant appeals pursuant to s 142 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). Section 142(1) states as follows:

A party to a proceeding may appeal to the appeal tribunal against a decision of the tribunal in the proceeding if a judicial member did not constitute the tribunal in the proceeding.

• [22] Section 142(3) which talks about an appeal under subsection 1 against any of the following decisions of the Tribunal may be made only if the party has obtained the Appeal Tribunal's leave to appeal.
• [23] In Allen v Queensland Building and Construction Commission,[1] at [2], Judicial Member McGill SC recently summarised the approach to leave in the Appeal Tribunal:

As a general proposition, when leave to appeal to the Appeal Tribunal is required, it will be granted only where there is a reasonable argument that the decision was attended by error and an appeal is necessary to correct a substantial injustice caused by that error, or where the appeal raises a question of general importance upon which further argument and a decision of the Appeal Tribunal would be to the public advantage. An Appeal Tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the finding, and it is not contrary to compelling interference. If leave to appeal is granted, the appeal is by way of rehearing so far as it is against a decision on a question of fact, or of mixed fact and law: the QCAT Act s 147. Otherwise, it is an appeal which will only correct an error of law: the QCAT Act s 146.

• [24] The principles were also referred to by Senior Member Brown and Member Traves in Campbell v Queensland Building and Construction Commission [2021] QCATA 34 at [17]:

The relevant principles to be applied in determining whether to grant leave to appeal are well established: is there a reasonably arguable case of error in the primary decision; is there a reasonable prospect that the applicant will obtain substantive relief; is leave necessary to correct a substantial injustice to the applicant caused by some error; is there a question of general importance upon which further argument, and a decision of the appellate court or Tribunal, would be to the public advantage.[2]

• [25] Section 147(3) of the QCAT Act deals with deciding appeals on a question of fact or mixed law and fact. Section 147(2) notes that the appeal must be decided by way of rehearing, with or without the hearing of additional evidence as decided by the Appeal Tribunal. Section 147(3) states:

In deciding the appeal, the Appeal Tribunal may-

(a) confirm or amend the decision; or

(b) set aside the decision and substitute its own decision; or

(c) set aside the decision and return the matter to the tribunal or other entity who made the decision for reconsideration.

• [26] I have read the full transcript of the Tribunal hearing. I am satisfied that the Tribunal member did not misconduct herself during the hearing. It is clear that the Tribunal made every effort to assist both parties to present their cases as they wished. It is not surprising that the appellant feels aggrieved. Throughout the hearing its representatives were both forceful in presenting their case and ill prepared. The Tribunal generously, allowed the respondent time (over an hour) to obtain information which it should have had to hand, although other parties were waiting for their matters to be heard.
• [27] The Tribunal was also unhappy with the parties being on the phone, instead of in person, which would have facilitated easier identification and exchange of documents. Additionally, the Tribunal was, not unusually, extremely busy, and was short with the parties appearing to obfuscate in answering questions.
• [28] That being said, I am satisfied that the Tribunal acted appropriately throughout and neither party was disadvantaged by the Tribunal or hampered in presenting their case.
• [29] There was no denial of natural justice or procedural fairness.
• [30] The Tribunal could have eliminated interjection by the appellant by simply announcing it was to give reasons for its decision instead of launching into reasons as it did. This was no doubt confusing to the parties but does not lead to a conclusion of unfairness.
• [31] It is clear from the transcript that the Tribunal was concerned with three issues:

(a) the storage costs;

(b) the delivery date; and

(c) the invoice of acknowledgement by the appellant that "the freight, tailgate delivery and devanning charges are additional and will be calculated prior to final invoice being issued."

while this may well be within the frames of [the agreement], it's not in the frames that they were to invoice that prior. I am persuaded by the argument that they would have had all the details of that, but unfortunately, as I would refer to perhaps as sloppy bookkeeping, rather than any fraud or deliberate thing, but the purchasers have been left with a completely unknown cost.

• [33] The Tribunal went on to say:[4]

I accept that the costs have gone up. I accept the form that has been provided in the freight costs, because I can take judicial notice of what happened in COVID. I do have to note, however, that the extra charges are provided for in section 15(1) and (c) says:

If products have not been paid for prior to delivery or the buyer is not able to accept it when the seller is ready to make the delivery, the products may be warehoused until payment is received. Charges may apply.

Unfortunately for the buyers, while that's talking about storage, it also means that once they have delivered them, it's all been paid [etcetera], the parties are entitled to rely upon that.

Accordingly, I find that, unfortunately for [the appellant], they have not complied with their own, but I accept that there were some increases to go up and that it was an allowance. So, I intend to allow $3,000 of the increase, which will mean that the respondent must refund to the [appellantappellant] the sum of $4,000 further. So that leaves $3,274 which I'm allowing for reasonable costs, despite the fact that they should have notified them of that prior to their taking delivery and certainly prior to invoicing them their final invoice [...]. In regard to the cross application, there is a cross application signed on behalf of [the respondent], who is seeking storage costs incurred to hold payment under their order for a year.

• [34] The Tribunal went on to find that the respondent had paid for the goods on 23 December 2021 and accepted delivery of the goods on 20 January 2022 which was in accordance with the terms of the agreement. The Tribunal said:[5]

Therefore, I cannot find any basis for a storage charge whatsoever, as there does not appear to be any evidence before me of any earlier date when the goods were tendered according to the terms and conditions.

• [35] The Tribunal also found that no interest was payable as the equipment was paid for when due. The Tribunal also found that no finance consultant fees were payable.
• [36] I accept that the counterclaim was not sustainable on the evidence before the Tribunal. In any event, it now appears to have been abandoned.
• [37] I am satisfied that the Tribunal was fully aware of the issues and had before it all the documentary and oral evidence upon which to make an informed decision. In coming to the conclusion that the claim should be reduced by $3,274.08 for cost increases from the date of the agreement the Tribunal made an error of law. There was no basis for the Tribunal to order the reduction and the reason for so doing is not evident from the reasons. One can surmise that the Tribunal was attempting to give the appellant at least some recompense for cost increases occasioned by COVID.
• [38] As an error of law has occurred, leave to appeal is granted.
• [39] The real issue for the Tribunal to determine was whether on the evidence before it the respondent has established that it was lawfully entitled to a refund of the amount deducted by the appellant from the deposit of $7,274.08 for additional freight and delivery allowance.
• [40] I am satisfied that the Tribunal was so satisfied and accordingly should have ordered the appellant to refund the full amount of $7,274.08 to the respondent. There was no basis for concluding that the appellant was entitled to any amount.
• [41] To the extent that it is necessary I accept, as I consider the Tribunal accepted, that once the final invoice was issued and paid the contractual arrangements between the parties was at an end. The deduction of additional monies from the deposit had no legal basis. Clearly, any amounts the appellant wished to claim for additional costs had to be communicated to the respondent. Any amount justifiable and contained in the final invoice would have been in accordance with the contractual obligations of the parties. The respondent would have been able to arrange its financing accordingly.
• [42] The Tribunal member referred to it as sloppy bookkeeping. It may have been, but it was completely inappropriate to unilaterally deduct the amount from the deposit when the financial transaction had been concluded. It does appear to be a claw back for the costs of COVID.
• [43] There is no application to introduce fresh evidence. I have not had regard to documentary or oral evidence which was not before the Tribunal. The parties were given ample opportunity to place before the Tribunal all oral and documentary evidence they wished to.
• [44] In the circumstances, I order that:

1. Leave to appeal is granted.
2. The order of the Tribunal dated 1 June 2022 be set aside.
3. The appellant is to refund to the respondent the sum of $7,274.08.
4. The appellant is to pay the respondent's filing fees paid to the Tribunal in the sum of $127.50.
5. The appellants cross application is dismissed.

[1] [2023] QCATA 66.

[2] See also, Essam & Miles v Elvin [2023] QCATA 128 [34] (Judicial Member Murphy SC); Allen v Queensland Building and Construction Commission [2023] QCATA 66 (Judicial Member McGill SC).

[3] Transcript of proceedings on 1 June 2022, 1-43 [14]-[18].