Rosily v Trustee for The Dosanjh Family Trust [2025] QCATA 90

Question of law under the Australian Consumer Law (ACL), consumers are entitled to certain protections and guarantees when purchasing goods. One such protection is that goods must be acceptable quality, safe, durable, and free from defects. The product or good has a 'major failure' under the ACL if it is significantly different from the description or sample shown to the consumer or if it is substantially unfit for its normal purpose.

Breach of Australian Consumer Law (ACL) - septic tank.

• [5] The applicant sought the following order in the Tribunal:

Consideration issuing a full refund for the faulty septic tank which has already been returned.

• [7] The jurisdiction to hear appeals is conferred upon the Tribunal pursuant to section 25 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) ('QCAT Act'). Section 25 states as follows:

The Tribunal's appeal jurisdiction is‑ -

(a) the jurisdiction conferred on the Tribunal by section 26; and

(b) the jurisdiction conferred on the Tribunal by an enabling Act to hear and decide an appeal against a decision of another entity under that Act.

The Tribunal has jurisdiction to hear and decide an appeal against a decision of the Tribunal in the circumstances mentioned in section 142.

• [9] The applicant appeals pursuant to section 142 of the QCAT Act. Subsection 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.

• [10] Subsection 142 (3) states that an appeal under subsection (1) against any of the listed decisions of the Tribunal may be made only if the party has obtained the Appeal Tribunal's leave to appeal.
• [11] In Allen v Queensland Building and Construction Commission [2023] QCATA 66 at [2], Judicial Member McGill SC 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 important upon which further argument and a decision of the Appeal Tribunal would be to the public advantage. An Appeal Tribunal would 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 section 147. Otherwise it is an appeal which will only correct an error of law: the QCAT Act section 146.

• [12] 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 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 substantial 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.

• [13] In the usual course, leave to appeal will usually only be granted where it is necessary to correct a substantial injustice to the applicant and where there is a reasonable argument that there was an error to be corrected.[1] In this case, leave to appeal is required as the matter concerns the proceedings for a Minor Civil Dispute.[2]

• [14] The applicant originally claimed an amount of $2,013.42 which included the amount owing of $1,795.20 plus interest of $218.42.
• [15] The applicant has provided a sworn document, which sets out her submissions with respect to the appeal.
• [16] The applicant submits that the Tribunal Member was in error by changing the name of the defendant and relies on information provided by ASIC. In the material filed by the applicant, there is a certificate setting out the ownership of the business named 'Oasis Landscaping and Building Supplies'. It is clear from that certificate, which was relied upon by the Tribunal Member, that the owner of that business name is 'Nachhater Singh Dosanjh as Trustee of the Dosanjh Family Trust'. Accordingly, it was perfectly appropriate and reasonable that the Tribunal Member make the change that she did to the name of the respondent. Nothing turns on this in respect of the appeal.
• [17] The submission appears to then rely on information which was provided to the Tribunal Member at the original hearing, including that the applicant was entitled to default judgment pursuant to the Australian Consumer Law, and her right to a refund for the product which was returned 'for its inoperable order'.[3]
• [18] The applicant notes in her submissions that in the mediation, the respondent told her to 'shut up', and in the hearing on 29 November 2024:

the respondent was throwing his arms pointing at The Tribunal members and then in a threatening manner TOWARDS THE APPLICANT and the applicant didn't feel well or safe the Applicant was given Permission to leave after that indecent act of the respondent and indecent Dealings Where performed without the applicant comfort of natural justice [sic].[4]

• [19] The transcript does not divulge any reference by the Tribunal Member to any behaviour by the respondent. Indeed, the Tribunal Member simply notes 'At the end of the hearing, Ms Rosily has elected not to remain to the giving of the decision with reasons.' The Tribunal Member made arrangements for the applicant to be provided with a link to listen to the audio and a written copy of the decision to be provided to the parties.
• [20] The applicant's submission then reiterates her submission that she was not afforded her rights under the Australian Consumer Law. It noted that she was entitled to a replacement or refund and compensation for any reasonably foreseeable loss and that she be provided a copy of legal advice from a legal service. The legal advice referred to concerns legal advice provided to the applicant by the legal service, which was made on the basis of information which the applicant provided to the legal service. The advice given by the legal services are reasonable and appropriate given the facts as described to them by the applicant.
• [21] The applicant also provides a number of witness statements with her appeal, which it appears were before the original Tribunal.
• [22] The respondent submits that he sold the applicant a new septic tank, which may not have been installed by professional installers and may have been damaged in the process. The respondent also notes that further damage to the tank was caused when the applicant brought the tank back. He submits that the lid did fit the tank and that he has pictures of the septic tank that show it had been installed and damaged, screw holes and PVC glue on the fittings and damage to the fittings.
• [23] The respondent notes that:

this case is also a Police matter as she came to the Business with Other People several times, and on one occasion she came with a male person who threatened to PUT A BULLET in one of my staff's head.[5]

• [24] The respondent notes that he has a number of pictures and videos showing the damage done to the septic tank that can be supplied.
• [25] He noted that he was not aware that he had to respond to the paperwork given to him by the applicant.

• [26] The Member's reasons are comprehensive and refer to the matters which were relevant to the application. The Tribunal Member has set out in detail the relevant considerations with respect to the Australian Consumer Law.[6] The Tribunal Member noted that the applicant gave evidence that she was not 100 per cent satisfied with the tank when it was brought around and put onto her friend's Ute. She said:

she just got a feeling that it was - something was not right with the tank, but she didn't, at the time, notice any obvious defect with it and was a bit vague about whether she inspected it at the time it was on the ute, giving evidence that she couldn't see the tank exactly because of the straps on it [sic].[7]

• [27] The Tribunal formed the view that the straps had been attached to the tank by those assisting the applicant.
• [28] The Tribunal member noted the issue for determination in the following way:

Although, the rules of evidence are relaxed, and we make our decisions on the balance of probabilities rather than any criminal standard of beyond reasonable doubt. It's a matter for the applicant, Ms Rosily, to satisfy the tribunal on balance that the product was defective at the time of supply. And then further to satisfy the tribunal that the defect that was a major defect so as to entitle her to a refund. The tribunal is not satisfied that Ms Rosily has established that the tank supplied by the respondent was defective or not of acceptable quality at the time of supply.[8]

• [29] The Tribunal Member went on to note that:

There seems to be no question that the product was not durable or safe. Although, there were some concerns with the appearance - some minor fading - which is not established in the photographs - but some minor fading of a tank would not a matter of concern for a septic installed into the ground for a reasonable consumer, bearing in mind it's the reasonable consumer that is the standard of the test we're applying today. Not what the subjective thoughts are of this particular consumer in this particular transaction.[9]

• [30] The Tribunal Member noted that the applicant provided evidence by way of photograph that the lid did not appear to fit on the tank. The Tribunal Member noted that the applicant said that the photograph was taken at the time she first noticed that the lid did not fit, on or about two days after the day of supply.[10] However, the date stamp on the photograph was noted to be August 2024, several months after the date of supply. The Tribunal Member noted:

But in any event, a photograph of the tank taken seven months after the day of supply does not establish the condition of the tank at the day of supply. It is telling in the tribunal's view that there are no photographs of the tank at the time of supply or when it was first noticed by Ms Rosily that the lid was not fitting.[11]

• [31] In all the circumstances, the Tribunal went on to make the following findings:

It was the sole basis on which she sought to return this tank and without that evidence, it is impossible on balance for the tribunal to find that the lid did not fit at the time of supply and otherwise, that the tank was not of acceptable quality at the time of supply. So on an absence of satisfactory evidence and noting, again, that the evidence given by Ms Rosily in the proceeding was somewhat contradictory in several different respects, the tribunal is not satisfied that the application for relief for a refund, under the Australian consumer laws, is grounded and for that reason, the application is dismissed.[12]

• [32] The applicant has not provided any evidence or information contrary to evidence and information which was before the original decision-maker, which would lead the Appeal Tribunal to the view that the original decision-maker had fallen into error.
• [33] It is clear on the evidence that the original Tribunal Member made a determination based on the evidence that was before her at the time, that she was not satisfied the goods were defective in the way described by the applicant or defective at all.
• [34] The applicant's application does not disclose any evidence that the original decision-maker made an error of law or fact when determining the original application. The original decision-maker, in my respectful view, properly identified the law, which was applicable, including the relevant sections of the Australian Consumer Law, pursuant to which the application was made. The original decision-maker properly identified the issues to be determined by her on the balance of probabilities.
• [35] For the reasons set out in the original decision-maker's reasons as identified above, the original decision-maker determined that the applicant had not satisfied her that the goods were defective in the way described by the applicant or defective at all. Therefore, the decision made by the original decision-maker is the appropriate decision in all circumstances. There, being no error of fact or law, leave to appeal is not granted, and the appeal is dismissed.

[1] Pickering v McArthur [2005] QCA 294.

[2] Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 142(3)(a)(i).

[3] Gila Golda Rosily, 'The 20 December 2024 Before Member Lember, Appeal Tribunal Direction Submissions of Gila Golda Rosily Sworn as an Affidavit on 16 January 2025', Submission in Gila Golda Rosily v Nachhater Singh Dosanjh as Trustee for The Dosanjh Family Trust, APL372-24, 16 January 2025, 2 [10] ('Applicant's Submissions').

[4] Applicant's Submissions, 2 [10] (emphasis in original).

[5] Respondent's Response to Minor Civil Dispute - minor debt, filed in the Tribunal on 20 May 2024 in the matter of Q1453-24, 3 (emphasis in original).

[6] Transcript of Proceedings, Gila Golda Rosily v Nachhater Singh Dosanjh as Trustee for The Dosanjh Family Trust (Queensland Civil and Administrative Tribunal, Q1453-24, Senior Member Lember, 29 November 2024) 1-46 ll 18-44 ('Q1453-24 Transcript of Proceedings').

[7] Q1453-24 Transcript of Proceedings 1-47 ll 38-44.

[8] Q1453-24 Transcript of Proceedings 1-48 ll 28-34.

[9] Q1453-24 Transcript of Proceedings 1-48 ll 36-43.

[10] Q1453-24 Transcript of Proceedings 1--48 ll 46-49.

[11] Q1453-24 Transcript of Proceedings 1-49 ll 6-10.

[12] Q1453-24 Transcript of Proceedings 1-49 ll 11-19.