Marshall v Bunting [2025] QCAT 395

European Bank Ltd v Evans of Robb Evans and Associates [2010] HCA 6; (2010) 240 CLR 432

Google Inc v Australian Competition and Consumer Commission [2013] HCA 1; (2013) 249 CLR 435

Hadley v Baxendale (1854) 9 Exch 341

Hardchrome Engineering Pty Ltd v Kambrook Distributing Pty Ltd [2000] VSC 359

Competition and Consumer Act 2010 (Cth) s 60, s 61, s 62, s 267, s 268, sch 2

Fair Trading Act 1989 (Qld) s 50

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 11, s 12, s 102, sch 3

• [1] Mr Marshall engaged Mr Bunting, trading as 'Benzkraft' to undertake an engine swap, some mechanical work, and rust repairs to his 1981 Mercedes-Benz 300TD BDW-36D wagon (the vehicle). The vehicle had been purchased by Mr Marshall in 2008 and driven by him until 2022, when the engine overheated and Mr Marshall determined that an engine replacement was needed.
• [2] Between September 2022 and September 2024, Mr Bunting worked on the vehicle according to a 'scope of works' set out in a list[1] or spreadsheet[2] created and exchanged in September 2022. The parties are in dispute as to who terminated the contract, but in any event, by the time Mr Marshall arranged for the vehicle to be collected from Mr Bunting in September 2024, Mr Marshall had paid Mr Bunting $21,602.00 for labour and $9,398.00 for parts for the vehicle, which remained in an unfinished state when it was collected.
• [3] By an application filed 12 March 2025, Mr Marshall seeks a refund of money paid to Mr Bunting, to the Tribunal's monetary jurisdictional limit of $25,000.00 plus costs limited to the filing fee paid on the application of $379.50, for a total claim of $25,379.50.
• [4] Mr Bunting filed a counter-application on 14 April 2025, to which he attached several invoices he says remain unpaid by Mr Marshall. In the hearing he clarified that the counter-application was filed by way of response to Mr Marshall's claim, and that he was not seeking any orders for the payment or set-off of those invoices by way of counter-application.

• [5] The Tribunal has jurisdiction to hear minor civil disputes,[3] including claims arising out of a contract between a consumer and a trader.[4] The relief was sought by Mr Marshall pursuant to the Australian Consumer Law, contained in Schedule 2 to the Competition and Consumer Act 2010 (ACL).
• [6] The Tribunal is satisfied that Mr Marshall is a 'consumer' and Mr Bunting is a 'trader' within the definition of those terms set out in Schedule 3 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
• [7] Although Mr Bunting insisted that he was an engineer by profession and not a mechanic providing mechanical services (which would beg the question as to whether Mr Bunting was engaged in a profession or discipline that fell outside what is ordinary regarded as 'trade or commerce'), it is clear from the work regularly undertaken by Mr Bunting, as advertised on his benzkraft.co website and his 'Mercmad' profile on the 'OzBenz' forum that the services he agreed to undertake for Mr Marshall were not in the course of engaging in the engineering profession and were in the course of trade or commerce.
• [8] Section 50 of the Fair Trading Act 1989 (Qld) sets out those claims under the ACL which must be heard in the Tribunal provided the proceeding is one for a "minor civil dispute". It includes actions for damages against the suppliers of services (s 267) for breaching guarantees of acceptable quality and fitness for purpose (ss 60 and 61) and that service will be provided within a reasonable time (s 62).
• [9] Under s 267(2) if the failure to comply with the guarantee can be remedied and is not a major failure:

(a) the consumer may require the supplier to remedy the failure within a reasonable time; or

(b) if such a requirement is made of the supplier but the supplier refuses or fails to comply with the requirement, or fails to comply with the requirement within a reasonable time, the consumer may:

(i) have the failure remedied and, by action against the supplier, recover all reasonable costs incurred by the consumer in having the failure so remedied; or

(ii) terminate the contract for the supply of the services.

• [10] Under s 267(3) if the failure to comply with the guarantee cannot be remedied or is a major failure, the consumer may:

(a) terminate the contract for the supply of the services; or

(b) by action against the supplier, recover compensation for any reduction in the value of the services below the price paid or payable by the consumer for the services.

• [11] Under s 267(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 a guarantee if it was reasonably foreseeable that the consumer would suffer such loss or damage as a result of such a failure.
• [12] A major failure in relation to services is defined in s 268 to be if:

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

(b) the services are substantially unfit for a purpose for which services 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

(c) both of the following apply:

(i) the services, and any product resulting from the services, are unfit for a particular purpose for which the services were acquired by the consumer that was made known to the supplier of the services;

(ii) the services, and any of those products, cannot, easily and within a reasonable time, be remedied to make them fit for such a purpose; or

(d) both of the following apply:

(i) the services, and any product resulting from the services, are not of such a nature, or quality, state or condition, that they might reasonably be expected to achieve a result desired by the consumer that was made known to the supplier;

(ii) the services, and any of those products, cannot, easily and within a reasonable time, be remedied to achieve such a result; or

(e) the supply of the services creates an unsafe situation; or

(f) the failure is one of two or more failures to comply with a guarantee such that the services would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of those failures, taken as a whole.

• [13] Because loss is an essential element in any claim for damages, identifying the loss is a necessary step. Limits placed on recoverability of loss are:

(a) Causation: The claimed loss must have been caused by the breach.[5] Per Mason CJ in EH March v Stramare (E & MH) Pty Ltd [1991] HCA 12; (1991) 171 CLR 506 at 515_:_

The common law tradition is that what was the cause of a particular occurrence is a question of fact which "must be determined by applying common sense to the facts of each particular case".

(b) Remoteness: The loss must not be too remote. Per Hadley v Baxendale (1854) 9 Exch 341 at 354 a loss will still be recoverable as damages for breach of contract if it:

... may fairly and reasonably be considered either [as] arising naturally, that is, according to the usual course of things from such breach of contract itself, or... may reasonably be supposed to have been in the contemplation of both parties, at the time they made the contract, as the probable result of the breach of it.

The High Court has since emphasised that it is not the specific loss that must be foreseeable, but only a loss of the kind sustained.[6]

• [14] There is an obligation on the injured party to mitigate its loss.[7]
• [15] In mechanical cases, independent reports or opinions are usually required to support a case that the services were defective, Mr Marshall bearing the onus of proof as the one alleging the failure and loss.
• [16] Each case turns on its factual circumstances.[8]

Did Mr Bunting fail to comply with ACL guarantees?

• [17] The parties did not enter into a formal contract for the supply of the services.
• [18] However, it was not disputed that the work to be undertaken by Mr Bunting for Mr Marshall was discussed in calls and emails exchanged in July and August 2022 and captured in the spreadsheet created and sent to Mr Bunting by Mr Marshall under cover of an email dated 1 September 2022. The spreadsheet was updated by Mr Marshall online, and by Mr Bunting by 'ticking' a printed copy of the spreadsheet (that he referred to as a 'list') as tasks were completed from the scope of work. The documents are one and the same. The scope of work to be undertaken was detailed under headings that included:

RUST

PANEL

PAINT

TRANSPLANT

BRAKES

SUSPENSION

BODY

INTERIOR

• [19] Although Mr Bunting made some confusing submissions in the hearing about his relevant qualifications, it was not disputed that at all material times Mr Bunting understood the work to be undertaken, agreed to do the work as set out in the scope of work, and held himself out as being able to do the work.
• [20] Mr Marshall understood that after the work was completed, he could take the vehicle to a certifier in New South Wales to have the modifications certified to then register the vehicle. Mr Bunting disputed this and said all that was required of him was to achieve an outcome where the vehicle could run under its own steam.
• [21] Mr Bunting argued that Mr Marshall ought to, and failed to, have the vehicle and scope of work inspected and approved by an engineer approved to certify modifications in New South Wales before the work was commenced and during each stage of the works. Mr Bunting gave evidence that this was a requirement of NSW Transport.
• [22] A cursory review of the NSW Transport site during the hearing,[9] satisfied the Tribunal that this was not the case: although a party could have proposed modifications approved before building and/or inspected during work, nothing required it to be done until the works were completed.
• [23] Nonetheless, Mr Bunting's evidence in this regard, and the context of the approach to him by Mr Marshall and his expressed intention that, as an outcome of the works, he would receive a "reliable, good-looking vehicle that will see me through the next 20 years" satisfies me that the work to be undertaken per the scope of work was such that the vehicle was to be completed to standard whereby it was able to be driven on the road, and registered in New South Wales after the modifications were inspected and certified by a qualified person.
• [24] It seems that the engine swap contemplated by the scope of work was not one commonly undertaken - if ever - in Australia for a right-hand-drive vehicle of this particular make and model. Nothing turns on this: Mr Bunting understood what was being asked and agreed to do it. He was engaged by Mr Marshall and the vehicle was delivered to Mr Bunting on the basis of that agreement. Mr Bunting reserved the right, by his email of 3 August 2022 to see if the project was "viable" once he inspected the vehicle after it had been delivered. There is no evidence to suggest, and Mr Bunting did not give any evidence, that he ever communicated to Mr Marshall that the project was not viable, nor that he could not achieve the intended outcome of a vehicle that could be driven and, after certification, registered in New South Wales.
• [25] The agreement between the parties was vague as to time. Mr Bunting had estimated the job would take between "3 to 5 days" but this surprised Mr Marshall who thought it might take at least six months in a busy workshop and up to two years if done around other work commitments as a side-project.
• [26] Mr Marshall therefore informed Mr Bunting that there was "no hurry" and to "take your time and do a good job". He emphasised that:

In the end, what I'm after is a car that's not a show-pony, but a reliable, good-looking vehicle that will see me through the next 20 years.[10]

• [27] It was agreed that Mr Bunting would invoice Mr Marshall weekly as the project progressed. This allowed Mr Marshall to control his budget for the project and to track its progress. Mr Marshall filed evidence of over thirty-five text messages he sent Mr Bunting between September 2022 and September 2023 requesting invoices for work in progress.
• [28] On 11 December 2023, Mr Bunting informed Mr Marshall that the mechanical side was "almost there" and on 20 March 2024, Mr Bunting informed Mr Marshall that he was "very close to finishing". In June 2024 Mr Marshall's father visited Mr Bunting's workshop and expressed to Mr Marshall afterwards that he didn't believe the vehicle would ever be finished.
• [29] On 2 September 2024, Mr Marshall called Mr Bunting and asked what was happening with the vehicle, as it had by then been two years in the possession of Mr Bunting. Mr Marshall says Mr Bunting responded that he was no longer willing to work on the vehicle and that Mr Marshall would need to arrange for its collection or pay storage fees of $350.00 per week for as long as it remained uncollected.
• [30] Mr Marshall followed up with an email on 7 September 2024 wherein he questioned whether the vehicle was roadworthy, or at least driveable onto the back of a trailer for collection.
• [31] In the hearing, Mr Bunting gave evidence that he could not recall this conversation. Nor could he recall any aspect of the conversations that occurred in July and August 2022. He was for the most part, non-responsive, inconsistent and unreliable in the evidence he gave during the hearing.
• [32] Considering Mr Marshall's email of 7 September 2024 and his evidence regarding the 2 September 2024 call, I find that Mr Bunting repudiated the contract on 2 September 2024 by refusing to complete the scope of works and by requiring Mr Marshall to collect the vehicle. Further, by the same email, I find that Mr Marshall accepted this repudiation and terminated the contract.
• [33] I further find that a reasonable time to have completed the work was at the most, two years and no more given that the parties approached the project in an unhurried manner.
• [34] Following collection of the vehicle, Mr Marshall arranged for an inspection and report to be undertaken by Three Point Classic (TPC). According to their report, TPC are Mercedes-Benz Service and Parts Specialists located in Queensland. Their website holds them out as being specialists in diagnosing, servicing and repairing European vehicles, including Mercedes-Benz. According to their undated[11] report (among other things):

We have carried out an inspection of the 1981 Mercedes-Benz... focusing on the repairs that have been previously done (or attempted to be done) by Ron Bunting of Benzkraft. This list is not in any order of repair, just a full list of work that is required to be carried out or to be redone due to being done incorrectly and/or dangerously.

• The radiator upper and lower mountings were poorly welded and fitted, allowing the radiator to move when tightened down.
• The alloy sheeting to support the fan shroud to the radiator was not designed well and is not secure.
• The radiator is not positioned correctly, not allowing enough room between the radiator and the moving parts of the engine.
• The coolant expansion tank was incorrectly fitted and is hitting the bonnet.
• The power steering hoses are the incorrect diameter for the reservoir and the pump.
• The accelerator cable is too short and is pulling tight when using the throttle. The brackets are badly welded together.
• The battery is not secure and does not have mounting brackets.

...

• The engine bay fuse box lid is missing.

• A right hand front wheel stud is missing.

• The exhaust bracket and pipes are very poorly welded and dangerously fitted. The exhaust has been fitted very poorly and not into the correct position. The pipes are hitting body.

• The transmission has oil leaks from the pan and outer seals.

• The wiring for the transmission is loosely fitted and single wires are rubbing on the body.

• The engine mounting leg (supports) are badly made and not welded to a correct standard.

...

• The vehicle has numerous rust repairs that are well below standard and just body filler.
• The rear hydraulic suspension components have not been fitted correctly.

The vehicle will require all work to be redone. We have made a basic estimation and conclude that it would not be cost effective as the cost of repairs would considerably outweigh the value of the vehicle. We are not interested in doing this work, due to the poor quality of the work already carried out.

• [35] In his counter-application filed 14 April 2025, Mr Bunting criticised Mr Marshall's decision to "send the car to a car repair business, not a certified vehicle modification engineer, in order to obtain an opinion of the vehicle in its unfinished condition so as so bolster a claim against myself".
• [36] Accordingly, Mr Marshall also obtained a report from Rod Bods Downunder (Rod Bods), the trading name of Ian Davis, a NSW Transport VSCCS Vehicle Licenced Certifier and Qld Transport Approved inspector and licensed motor vehicle body maker and motor mechanic. Mr Davis gave a report dated 14 August 2025, expressed to be in accordance with the Qld Unform Civil Procedure Rules and the NSW Expert Witness Code of Conduct Schedule, supported by photographs, in which he stated:

Purpose of my inspection was to examine and make comment as to the engine and gearbox conversion fitment and if possible, determine any anomalies along with the quality of the workmanship.

Mr Marshall explained to me that he contracted a QLD person to complete an engine and gearbox conversion using the next generation Mercedes-Benz engine and gearbox model...for the purpose of road registration. This conversion was to include modified engine mounts along with all accessories including radiator, electrics, exhaust. Additional work was to be carried out including modifying the vehicle's front brake and a repair of the tailgate.

Item 1 The radiator had been mounted with not enough clearance between the radiator fan and the engine...Also the mounting of the radiator was of poor quality with inadequate welding of the lower mounts and the centre of the fan not being fastened. The coolant tank has been mounted incorrectly as the vehicle's bonnet cannot close without hitting the top of the tank.

Item 2 The engine seemed to be leaning to the right.

Item 3 On inspection of the engine mounts I found poor engineering practice, the choice of round tube that rests on a flat washer above the engine mount putting all the engine weight in one area is not recommended. My major concern regarding the fabricated engine mounts is the welding, it is of poor standard and it is clear to see that the welds do not penetrate to both sides of the metal.

Item 4 ...rerouted fluid lines are rubbing on the engine bay and fuel line.

Item 5 Electricals in the engine bay have not been fastened adequately in multiple places and with a fuse box with no cover.

Item 6 With the engine conversion...the [accelerator] cable is too short for the application and not fit for purpose.

Item 7 ...The medication of the cross-member shows poor welding skills and not enough room for engine movement as the engine only has approximately three millimetres before hitting the cross-member.

Item 8 The exhaust has been fitted with no clearance between the body and only approximately 2mm between the steering box.

Item 9 The repair of the tailgate inner metal panel is of a sub-standard quality; the welding has little penetration and has not been fully welded.

As for the engine conversion as a whole, the workmanship is of a poor standard, with none of the above-mentioned items coming close to meeting the Vehicle Standards required for registration in any state of Australia.

• [37] Mr Bunting objected to the TPC and Rod Bods reports because the authors did not attend the hearing for cross-examination. Although this is true, the reports were detailed, and Mr Bunting had them to hand months prior to the hearing. He did not request that the witnesses attend, nor did he produce any research, statements or opinions to contradict anything contained in the reports preferring to rely on his own opinions after fifty years in the industry and a few photographs of his own.
• [38] Mr Bunting also disputed the qualifications of TPC and Rod Bods to express opinions on the work inspected. This does not hold weight: one was experienced in diagnosing and repairing Mercedes-Benz vehicles and the other is licensed and approved in Queensland and New South Wales to inspect and certify modified vehicles. Mr Bunting had, in fact, by his counter-application suggested that someone of Mr Davis' qualifications would be more suitable to offer an opinion on the work.
• [39] Mr Bunting took particular issue with the comment made by Rod Bods that the engine was leaning to the right and returned to that point several times during the hearing. If it assists Mr Bunting, I am prepared to accept his evidence that the 'engine leaning' was not a defect, and to disregard the allegation of engine leaning entirely for the purpose of this decision because Rod Bods did not in its report express why this was defective or unsafe, they simply pointed out that it was leaning.
• [40] Mr Bunting also suggested that TPC were motivated to give an opinion in an exercise of self-interest to secure the job of redoing the work. Nothing supports this suggestion: to the contrary, the express evidence of TPC is that they were not seeking the repair job and would not undertake it.
• [41] Finally, Mr Bunting argued that:

(a) The vehicle arrived to him in a very poor condition, describing it as a "non running derelict".[12] This is of no consequence - Mr Bunting accepted the vehicle in that condition and confirmed his agreement to undertake the work.

(b) He cannot be held to ACL guarantees for unique, one-off and 'prototype' work that had never been attempted before in Australia. There is no such exemption under the ACL.

(c) Any references to poor welding only arose because all work done was temporarily welded because the work was unfinished. The finished version of the vehicle would have featured welds intended to be permanent. This argument is unconvincing: much of the relevant work was 'ticked' on Mr Bunting's list, indicating that it was complete. His messages to Mr Marshall in March and June 2024 indicated that the work was nearly complete.

(d) Mr Marshall could apply for approval in New South Wales, today, and it would be at the engineer's discretion as to what work would be required to obtain a New South Wales approval. This is inconsistent with Mr Davis' opinion, as a qualified certifier of vehicle modifications in New South Wales.

• [42] The evidence of TPC and Rod Bods, both independent and qualified in different but related fields, satisfies me that the services provided by Mr Bunting to Mr Marshall between September 2022 and September 2024:

(a) were not rendered with due care and skill, in breach of s 60, and

(b) did not result in a vehicle that was reasonably fit for the express purpose of driving and registration after certification in New South Wales, made known to Mr Bunting by Mr Marshall, in breach of s 61, and

(c) were not completed within a reasonable time, in breach of s 62.

• [43] The failures with respect to due care and skill include incorrect, incomplete, insecure and unsafe engineering and welding works, an accelerator cable that was too short and pulling tight when using the throttle, insufficient room left between the radiator and moving parts of the engine as well as between the cross-member that traverses under the engine and the engine itself and many other defects that are major failures under s 268 because:

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

(b) the services are substantially unfit for a purpose for which services 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, and

(c) both of the following apply:

(i) the services, and any product resulting from the services, are unfit for a particular purpose for which the services were acquired by the consumer that was made known to the supplier of the services, and

(ii) the services, and any of those products, cannot, easily and within a reasonable time, be remedied to make them fit for such a purpose, and

(d) both of the following apply:

(i) the services, and any product resulting from the services, are not of such a nature, or quality, state or condition, that they might reasonably be expected to achieve a result desired by the consumer that was made known to the supplier, and

(ii) the services, and any of those products, cannot, easily and within a reasonable time, be remedied to achieve such a result.

• [44] As the contract has already been terminated, under s 267(3) Mr Marshall is entitled to recover compensation for any reduction in the value of the services below the price he paid Mr Bunting for them and under s 267(4) to recover damages for any loss or damage he suffered by the failure to comply. Based on the expert evidence, I find that the value of the services that Mr Marshall received from Mr Bunting was nil. If he can find a repairer willing to do it, the work needs to be entirely redone. Nothing is salvageable, other than by an extensive effort to strip the vehicle and attempt salvage of perhaps some parts, and in those circumstances, Mr Marshall is entitled to a full refund of what he paid to Mr Bunting over the course of their dealings. As that sum is $31,000.00, by s 12(3) of the QCAT Act, the award to Mr Marshall is made in the sum of $25,000.00.

• [45] Pursuant to s 102 of the QCAT the Tribunal can award costs in a minor civil dispute, limited to the filing fee if the interests of justice require.
• [46] The Tribunal is satisfied that the interests of justice require the award to Mr Marshall of his filing fee: he has been wholly successful and remains significantly out of pocket arising from the failure by Mr Bunting to comply with ACL, for which the Tribunal cannot compensate him.
• [47] The sum of $379.50 is awarded to Mr Marshall for costs on that basis.

[3] Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), s 11.

[4] Ibid, Schedule 3 (definition of 'minor civil dispute').

[5] Hardchrome Engineering Pty Ltd v Kambrook Distributing Pty Ltd [2000] VSC 359 at [446].

[6] European Bank Ltd v Evans of Robb Evans and Associates [2010] HCA 6; (2010) 240 CLR 432.

[7] Cox v J & M Phelan trading as Carrara Carmart [2020] QCAT 190, [34].

[8] Google Inc v Australian Competition and Consumer Commission [2013] HCA 1; (2013) 249 CLR 435.

[9] NSW Government, 'Modified and non-standard vehicles' (web page)

[10] Email sent by Mr Marshall on 1 August 2022.

[11] Mr Marshall gave evidence that the TPC report was undertaken in November 2024.

[12] Counter-application filed 14 April 2025.