Robinson v Sunshine State Recreational Vehicles Pty Ltd [2026] QCATA 45

[3] The appellant alleged multiple defects existed at the time of purchase or within a reasonable time of purchase, including serious issues concerning a gas leak and ventilation insufficiency leading to the motorhome being non-compliant with Queensland Gas regulations as well as electrical issues, water ingress and rust.

[4] By 3 October 2018 the appellant had requested a refund of the cost of the caravan. The respondent refused on the basis that the appellant had advertised the motorhome for hire on 'Outdoorsy'. The respondent claimed this meant the motorhome had been used for commercial purposes which voided the appellant's warranty.

[5] On 22 November 2018 the appellant went to the Office of Fair Trading but, after an unsuccessful conciliation, was told she needed to go to court.

[6] On 13 April 2019 the appellant made some repairs to the motorhome and sold it, receiving $110 000. At this point the odometer showed approximately 65,000 km.

[7] On 18 January 2023 the appellant lodged an Application for motor vehicle dispute. The appellant sought relief under the Australian Consumer Law (which is Schedule 2 to the Competition and Consumer Act 2010 (Cth)). She sought damages in the sum of $42 971.80 which she said represented the financial losses she had incurred resulting from the 'purchase, multiple and ongoing failures, repairs and subsequent sale of this vehicle' plus the filing fee of $367.

(a) The vehicle was not fit for the purpose Sunshine State RV told me would be fit for. The vehicle had multiple and ongoing failures.

(b) The vehicle was not of acceptable quality.

(c) It was not safe, lasting or looked acceptable with no faults. Gas leak and insufficient ventilation.

(d) The vehicle did not meet promises made about performance and quality.

(e) The vehicle had multiple problems which would have stopped me from purchasing had I known about them prior to.

(f) Despite spending nearly a year attempting to get this vehicle fully repaired under warranty it still had multiple failures.

[9] The Member heard and determined the matter on 16 November 2023 at which time she delivered oral reasons dismissing the application.

(a) The Tribunal had jurisdiction pursuant to s 50A of the Fair Trading Act 1989 (Qld) as the claim relates to a 'motor vehicle' and was for an amount less than $100 000.

(b) There were a number of difficulties with the motorhome, including: a handbrake issue; an electrical fault; a water heater issue; fridge failure; gas leak; and air conditioning problems. It is accepted there were faults with the motorhome, as outlined in the appellant's written evidence.

(c) The appellant asked the respondent for a refund but this was refused.

(d) The respondent refused to perform any further repairs under warranty upon realising the appellant had advertised the motorhome for hire online which was a commercial use. It is accepted the motorhome was advertised on a rental website.

(e) A claim in the Tribunal was brought approximately four years after she sold the vehicle for $110 000. She had purchased it 18 months earlier for $136 000.

(f) The appellant seeks damages under the Australian Consumer Law. An action in damages would be in accordance with s 236 of the ACL. This would need to be a matter that alleged misleading and deceptive conduct or unconscionable conduct. The appellant has not, in any of her material, relied upon any misleading, deceptive or unconscionable conduct and her claim for damages under s 236 of the ACL is dismissed.

(g) In relation to s 259(2), (3) and (4) of the ACL, that the appellant sought a refund on or about 3 October 2018. The appellant sold the motorhome in April 2019 and commenced action four years later. Rejection of goods, for the purpose of s 259 must be remedied in a reasonable period which is defined in s 262(2). The appellant believed she had seven years to bring an action as she was seeking damages. There were also delays due to COVID and her health issues. The appellant did not 'act on the rejection of goods' by returning the goods to the respondent and the goods have since been sold.

(h) Even if the goods had been rejected, she would not be able to rely on this as, by s 262(1)(a), I would find that the rejection period for the goods has ended and further, it is not available because the foods were disposed of by sale.

(i) As also noted, there are concerns that the motorhome may have been used for commercial purposes. Therefore, the application is dismissed.

[11] The appellant did not articulate separate grounds of appeal in her Application for Leave to Appeal and submissions in support, but her complaints can be summarised as follows:

(a) The Member repeatedly said that the applicant was trying to reject the vehicle, when in fact she was claiming losses after selling the defective vehicle at a loss, not seeking rejection.

(b) The Member incorrectly decided that Ms Robinson took too long to bring her claim/ did not have good reason for delay in bringing her claim.

(c) The Member incorrectly found that she had been hiring out the vehicle for commercial purposes and proceeded to rely on that as the sole basis for finding in favour of the respondent.

(d) The Member failed to admit evidence of a recording and transcript of a meeting between her, her partner and Mr McEvoy: 'This recording was important as this was where Mr McEvoy said he knew the air conditioners weren't very good before he sold me the vehicle, something which he denies in his evidence. This may ... be relevant when it comes to losses incurred given that Mr McEvoy arranged for a generator to be fitted, at my expense, costing thousands of dollars, to work this air conditioner that he knew "wasn't very good" and didn't cool the vehicle enough to use it in the warmer months.'

(e) The Member mistakenly thought she had verbally threatened Mr McEvoy during the hearing.

[12] During the hearing the appellant said that the only ground she wished to rely upon was the Member's error in concluding the motorhome had been used for commercial purposes because it had been advertised for hire online. This is perhaps understandable given she thought that was the main reason the Member found against her.

[13] Given the parties are self-represented, in view of the Tribunal's obligations in ss 28 and 29 of the QCAT Act and because the respondent has addressed each of the appellant's original complaints by way of a response and submissions, I will consider each of the complaints to the extent they are relevant to this application for leave to appeal.

[14] An appeal to the Appeal Tribunal on a question of law is as of right. An appeal on a question of fact or mixed law and fact requires the leave of the Appeal Tribunal.

[15] In deciding an appeal on a question of law only, the Appeal Tribunal may confirm or amend the decision, set aside the decision and substitute its own decision or set aside the decision and return the matter to the Tribunal (either as originally constituted or differently constituted) for reconsideration.

[16] Subject to leave to appeal being granted, if an appeal is against a decision on a question of fact only or a question of mixed law and fact the appeal must be decided by way of rehearing with or without the hearing of additional evidence as decided by the Appeal Tribunal. In deciding the appeal, the Appeal Tribunal may confirm or amend the decision, set aside the decision and substitute its own decision, or set aside the decision and return the matter to the Tribunal (either as originally constituted or differently constituted) for reconsideration.

[17] The relevant principles to be applied in determining whether to grant leave to appeal are: is there a reasonably arguable case of error in the primary decision?[4] Is there a reasonable prospect that the applicant will obtain substantive relief?[5] Is leave necessary to correct a substantial injustice caused by some error?[6] Is there a question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage?[7]

[18] If an appeal involves a question of law, unless the determination of the error of law decides the matter in its entirety in the appellant's favour, the proceeding must be returned to the Tribunal for reconsideration.[8] It is normally only possible to decide the matter in favour of the appellant by determining an error of law when no further evidence is required to resolve outstanding issues.[9]

[19] If different grounds of appeal raise questions of law and questions of fact or mixed law and fact, it is appropriate to address first those grounds involving questions of fact or mixed law and fact. If leave to appeal is granted then the appeal must be decided by way of rehearing and all of the matters the subject of the grounds of appeal should be dealt with in the rehearing although the Appeal Tribunal is not required to address distinctly each question raised by an appellant.[10] It is sufficient that the reasons of the Appeal Tribunal explain how its conclusion is reached.

[20] The appellant claims the Member erred by mischaracterising her claim as one for rejection of the vehicle when her claim was one for damages for breach of a statutory guarantee in the ACL.

[21] Having read the reasons of the Member, in my view, the claim was one for damages for failure to comply with the statutory guarantee of acceptable quality or fitness for purpose. The Member referred only to the 'rejection' of the vehicle, which, as she rightly concluded, was not available because the appellant had disposed of the vehicle. The Member did not consider whether the appellant had a claim for damages for breach of a statutory warranty, despite the appellant saying just before the matter was stood down so the Member could prepare her oral reasons:

I'm not rejecting it now. I'm asking for my losses to be covered now, of buying a vehicle that was not fit for the purpose for which it was sold and suffering losses consequently because of that.

[22] The Member concluded that the appellant had not rejected the goods and, even if she had, she would not be able to rely on this because the rejection period had ended and she had disposed of the goods (referring to s 262 of the ACL).

[23] The Member did make one reference to 'Ms Robinson's claim for damages' but mischaracterised that as a claim for damages under s 236 of the ACL which only applied where there had been misleading, deceptive or unconscionable conduct. The Member reasoned that because the appellant had not relied on any such conduct in her material, the claim for damages was dismissed.

[24] The Member did not consider the right to damages (or compensation) under s 259 for failure to comply with a statutory guarantee. The Member accepted that all the faults the appellant relied upon in fact occurred but did not proceed to consider whether a breach of any of the statutory guarantees had been established and, further, whether any failure to comply was major.

[25] The right to claim relief is not dependent on whether the appellant had 'rejected' the goods. Section 259 provides the following remedies which do not require rejection of goods, namely:

(a) Section 259(2)(b)(i) where if the failure can be remedied and is not a major failure, the consumer may require the supplier to remedy the failure within a reasonable time. If the supplier fails or refuses to do so, the consumer can have the failure remedied themselves and recover reasonable costs from the supplier.

(b) Section 259(3)(b) where if the failure cannot be remedied or is a major failure, the consumer may accept the goods and claim compensation for any reduction in their value below the price paid.

(c) Section 259(4) which provides 'a stand-alone right to damages'[11] for any loss or damage suffered if it was reasonably foreseeable that such loss or damage would result from the failure to comply with a guarantee. This remedy does not require rejection of the goods.

[26] The Member erred in failing to give consideration to the appellant's claim for damages under s 259. This required the Member first, to consider whether there had been a breach of any of the relevant statutory guarantees (for example, ss 54 as to acceptable quality or s 55 as to fitness for disclosed purpose) and, if there had been failure to comply, whether the failure was a major failure or not.

[27] The failure to consider the appellant's claim for damages under s 259 was an error of law. An appeal on this ground is as of right. I have set out below the consequences of this error.

[28] The appellant claims the Member erred in placing any emphasis on the fact she took four (4) years after the 'Fair Trading process' ended to lodge an application in QCAT.

[29] It appears the Member was referring to the appellant's 'delay' in bringing proceedings in the context of considering whether she was too late to reject the vehicle. The appellant when asked about her delay explained that she had tried to reject the vehicle before she sold it and that she had come to court to claim the losses she had suffered. The appellant explained that in the four years between finalisation of the Fair Trading process and filing her application in QCAT she had been in a wheelchair after two spinal surgeries and had been seeing a neurologist due to significant issues with her sight.

[30] The Member responded by asking why she had not lodged her medical evidence before the hearing 'about why there had been such a lengthy delay'.[12] The appellant replied that she didn't know that would be an issue and that she thought she had seven years to bring her claim.[13]

[31] The delay referred to by the Member was irrelevant to the appellant's claim for damages under s 259. It was also irrelevant to whether the appellant had rejected the vehicle.

[32] The appellant had six years from the date her cause of action accrued to bring her claim. In this case, that was from the date she suffered loss or damage because of a failure to comply with a consumer guarantee.[14]

[33] While it appears the Member has erred in considering the 'delay' in bringing a proceeding, the appellant has not suffered a substantial injustice as a result of the error. This is because the Member viewed delay as potentially affecting the right to reject the vehicle, a right she had already decided did not exist due to the vehicle having been sold.

[34] Leave to appeal in respect of this error is refused.

Ground Three - incorrect finding that applicant hired out the caravan

Member ...said she believed that all the defects I reported happened but she believed that I had hired the vehicle out and invalidated the warranty.

I submitted evidence in the form of a letter from Outdoorsy, the company that it was alleged I had hired it out through stating that this vehicle had never been hired out through their company.

Mr Sean McEvoy submitted a listing from the Outdoorsy website, showing my vehicle. I informed Member ... that this had been used for information gathering purposes only and that the vehicle had never been hired out or even driven by anyone but myself and the nominated repairers of the vehicle. No evidence that my vehicle was hired out was submitted by Mr Sean McEvoy, because there is no evidence as this vehicle was never hired out. I believe that Member ... had not seen the letter from Outdoorsy proving that my vehicle had never been hired out through them as she would never have made that decision. Member ... was having difficulty finding evidence throughout the hearing. There was a lot of evidence submitted and it was sent in order in files to the court. The court returned the files to me and I believe this made locating the evidence more difficult for Member ... as it was no longer in order.

Given that I didn't hear about Member ...decision that she believed I had hired the vehicle out was at the time when the member gave her decision, I had no way of informing her that the evidence that proved I hadn't hired this vehicle out was in the evidence submitted, which she had copies of.

Ms Robinson questions whether Member ... had access to all the evidence referring to the advertising of the motorhome on a rental site, and Outdoorsy stating that it had never been rented. I reject this as the Member had a copy of the add in front of her. Also the fact that had a statement from Outdoorsy stating that it hadn't been rented, was also recorded on page 23 of the transcript page 23 line 13.

Member rightly rejected this assertion in her judgment page 25, line 38 - 42. The advertisement was very comprehensive.

[37] The Member refers to the issue about whether the motorhome was rented out as follows in her reasons:

The respondent alleged commercial use and that this voided the Ms Robinson's warranty. Ms Robinson denied under affirmation that the motorhome was ever rented out and had been placed on the website to enable a person to view this type of motorhome. Ms Robinson's explanation for the purpose of this listing is rejected. It lacks credibility and proof. It is accepted that the motorhome was listed on a rental website, as evidenced by the documents provided by the respondent, the copy dated 4 October 2018.

[38] Contrary to the appellant's submission, the Member did not find the motorhome had been rented out, only that it had been advertised for hire. In any event, the Member went no further than to say that the respondent alleged this amounted to commercial use which affected the warranty (presumably the manufacturer's warranty). The Member made no findings about how offering the motorhome for hire affected the manufacturer's warranty, if at all. Indeed it does not appear that the terms of the manufacturer's warranty were before the Member or raised as an issue in the hearing.

[39] In any event, the issue of commercial use was irrelevant to the appellant's claim for damages under s 259 of the ACL. To be entitled to the protection of the consumer guarantees the person to whom the goods are supplied, must be a 'consumer'. A 'consumer' includes a person, relevantly, who acquires goods of a kind ordinarily acquired for personal, domestic, or household use or consumption.[15] A motorhome designed for recreational travel is clearly a good ordinarily acquired for personal use.

[40] No error is demonstrated. Leave to refuse in respect of this ground is refused.

Ground Four - failure of member to admit a recording and transcript

[41] In regards, to this ground, the applicant submitted that:

Member ... also refused to admit as evidence a recording and transcript of a meeting between myself, my partner and Mr McEvoy. This recording was important as this was where Mr McEvoy said he knew the air conditioners weren't very good before he sold me the vehicle, something which he denies in his evidence. I believe that in Queensland it is legal to record a conversation as long as you are a party involved in that conversation and that it is able to be used as evidence in court proceedings. This may be irrelevant given that Member ... accepted that all the defects had happened but it may be relevant when it comes to losses incurred given that Mr McEvoy arranged for a generator to be fitted, at my expense, costing thousands of dollars, to work this air conditioner that he knew "wasn't very good" and didn't cool the vehicle enough to use it in the warmer months.

MEMBER: Ms Robinson, what's your recollection of that conversation?

MS ROBINSON: I remember it very well because I've got a complete transcript of it and a recording. He said at the end - he mentioned taking it back on consignment, but he said he would need to talk to the

MEMBER: Was Mr McEvoy aware that you were recording that conversation?

MS ROBINSON: No. He wasn't.

MEMBER: You cannot use that conversation as evidence in here... If he was not aware that he was being recorded, I am not going to have any reference to a transcript of something where he's not aware he's being recorded.

MS ROBINSON: Right. I thought it was legal, because my other half is police, and he said it's actually legal in Queensland, but I didn't know that it wasn't legal in your court. What he said was that it was something he would think about. He wanted to talk to people, gather more evidence, which we fully understood at the time. I sent him a load of things through, because as Sean said, he'd been away sick for a few months and obviously didn't know what was going on. He didn't contact me again after that meeting, so I contacted him to arrange another meeting, because I expected him to contact me when he'd had a look at everything. When I actually turned up at his office, he was sat in his chair with his - both hands behind his head like this telling me he was going to do nothing because I'd hired this motorhome out, and therefore, all the deals were off the table. He wasn't going to repair it, and he certainly wasn't going to refund it, and that's when I went to Fair Trading, because I felt I had nowhere left to go because he obviously thought he'd got a way to get out of this vehicle. He was pleased as punch with himself. Everything is documented in Fair Trading. The only thing that he offered was to repair it, which I'd been down that line for the last year. It had never been fully repaired, and more things went wrong with it while they were - as was demonstrated by the meeting I had with Sean, in between - he did offer initially to replace the air conditioner. I said, "Okay, let's give it a go," and in the meantime - it was, like, literally days later - the toilet starts leaking into the shower, and then it's filling up with water every time it rains, and this was a matter of days after we'd had the meeting before the meeting that I recorded, and so it was after that that I said, "No, I'm not interested in anymore repairs," because it was obvious that this vehicle was just going to constantly break. When I thought there was nothing left in it to break, more things kept breaking all the time.

[43] In this ground, the applicant alleges error in that the Member did not take into account evidence, being the recording of an in person conversation between the applicant and Mr McEvoy where Mr Evoy was not aware he was being recorded. The applicant claims that admitting this evidence could have resulted in the applicant gaining further relief in that the recording would support the applicant receiving further damages for losses suffered by the applicant where the respondent had known prior to selling the applicant the caravan that the air conditioning was not good.

[44] The issue arises as to whether the Member erred in finding the recording inadmissible because it was illegal to record someone without their knowledge.

[45] In James v Tottman (No.2)[17] the appellant wanted to rely upon a recording of a telephone conversation. Judicial Member D J McGill SC there held:

The relevant Queensland legislation is the Invasion of Privacy Act 1971 (Qld), but that provides that a telephone conversation may lawfully be recorded by a party to it: s 43(2)(a). Such a recording can be used in legal proceedings [s 45(2)(b)] so there is no obstacle to its use under that Act.

[46] The Appeal Tribunal went on to consider the overriding effect of the Telecommunications (Interception and Access) Act 1979 (Cth) which does not appear to be relevant here where the appellant recorded an in person conversation, as opposed to using software on a mobile to record a phone call during transmission.

[47] In my view, the Member erred in refusing to admit the evidence of the phone call for that reason. However, I am not satisfied, on the basis of the appellant's submissions, that the omission of the evidence caused her substantial injustice. The Member had already said that she accepted all the faults had occurred, which presumably included the issue with the air conditioner.

[48] Leave to appeal in respect of this ground is refused.

Ground Five - Member's belief that appellant threatened Mr McEvoy

[49] In regards, to this ground, the applicant submitted that:

Member ... misunderstood something I said to Mr Sean McEvoy early in the hearing and I believe it upset her thinking that I was threatening Mr McEvoy! It took me time to think about why she reacted so sharply to what I'd said. Mr McEvoy said he'd offered to take the vehicle back and resell it for me and to that I answered " Sean, If you'd have offered that I would have bitten your hand off!" Meaning" I'd have jumped at the chance, I would have immediately accepted". I'm not sure if this is a colloquial phrase from where I was born in Yorkshire or if it is widely understood in Australia, but Member ... reaction later led me to believe she thought I was threatening Mr McEvoy! I'm a mental health counsellor and this was most definitely not my intention!

Regarding Member ... misunderstanding a comment made by Ms Robinson. No comment

MEMBER: Ms Robinson, you're shaking your head there.

MS ROBINSON: Well, I absolutely am shaking my head. Sean, if you'd have done that, I would have bitten

MEMBER: Ms Robinson

MS ROBINSON: Yes.

MEMBER: if you have a question for Mr McEvoy, you can ask that, but I'm not going to have people spoken to poorly in this hearing room.

MS ROBINSON: Sorry. I didn't think I spoke to him poorly. I would have bitten his hand off if he'd have offered me that. He mentioned it in the meeting that I recorded, and we would have been keen to do that, because that's all I wanted, was to get rid of it and get our money back on it, but when I went back to see him later

[52] This issue was not raised at the hearing. There may have been a misunderstanding as to what the appellant meant by her turn of phrase but it does not amount to an error of law or fact.

[54] The appeal is allowed on the basis of the error of law demonstrated by ground one. Leave to appeal in respect of the other grounds is refused.

[55] In deciding an appeal on a question of law only, the Appeal Tribunal's powers are those set out in s 146 of the QCAT Act. Under that section, the Appeal Tribunal may confirm or amend the decision, set aside the decision and substitute its own decision or set aside the decision and return the matter to the Tribunal (either as originally constituted or differently constituted) for reconsideration.[18]

1. The Court of Appeal[19] has made clear that, the Appeal Tribunal, in proceeding under s 146 must not engage in a rehearing of the matter, whether on the evidence below or fresh evidence:

[Section 146] enables the appeal tribunal, if setting aside a decision, either to substitute its own decision or to remit the matter to the tribunal which made the appealed decision for further consideration. Plainly, it is only if the determination of the question of law is capable of resolving the matter as a whole in the appellant's favour that the appeal tribunal will be in a position to substitute its own decision. Section 146, as already noted, does not entail any re-hearing of the matter, whether on the evidence below or on fresh evidence.

The appeal tribunal's decision in the negative of the questions whether the suspension decision could be reviewed and whether the member's construction of the Financial Requirements for Licensing was correct could not determine the outcome of the applicant's application for review of the exercise of discretion to cancel his licence. That could only be done on a consideration of all the evidence, with appropriate findings of fact and a fresh exercise of discretion. All of that might have occurred had the appeal tribunal been proceeding under s 147. Consequently, the determination of this aspect of the Appeal Application must not entail any re-hearing of the matter, whether on the evidence below or on fresh evidence.

[57] Although the Member at first instance found all faults had occurred, no finding was made as to whether this meant there had been failure to comply with a consumer guarantee, whether this was a major failure and what the appropriate remedy would be. Accordingly, the determination of the question of law is not capable of resolving the matter as a whole and the Appeal Tribunal may not substitute its own decision.

[58] In the circumstances, given the nature of the error which meant the appellant's claim in damages was not considered, I must set aside the decision of the Tribunal and return the matter to the Tribunal differently constituted for reconsideration.

(a) I am satisfied that 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.

(b) Leave to appeal should be granted.

(c) I allow the appeal.

(d) Pursuant to s 146 of the QCAT Act, the decision of the Tribunal should be set aside and the matter returned to the Tribunal, differently constituted, for reconsideration.

[1] I will refer to Ms Robinson as the appellant for convenience.

[2] Contract/Order Form to Buy a Motor Vehicle (Stock no 2429N) dated 15 June 2027.

[3] The discrepancy in price seems to be due to some extras.

[4] QUYD Pty Ltd v Marvass Pty Ltd [2008] QCA 257; [2009] 1 Qd R 41.

[5] Cachia v Grech [2009] NSWCA 232 at 2.

[6] QUYD Pty Ltd v Marvass Pty Ltd [2008] QCA 257; [2009] 1 Qd R 41.

[7] Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580.

[8] Ericson v Queensland Building Services Authority [2013] QCA 391.

[9] Lance v Riviera Motors Pty Ltd [2025] QCATA 30.

[10] Harrison v Meehan [2017] QCA 315.

[11] Pepper v EJ and WA Booth Pty Ltd (t/as Booths Motor Group Tuggerah) [2024] NSWCATCD 57 at [72].

[14] Limitation of Actions Act 1974 (Qld), s 10(1)(d).

[17] [2022] QCATA 10.

1. [19] Ericson v Queensland Building Services Authority [2013] QCA 391, [13], [25]; Ericson v Queensland Building and Construction Commission [2014] QCA 297, [13]-[16].