Stagg & Anor v LMN Holdings Pty Ltd as trustee for Brisbane BMW Unit Trust

• [1] The applicants are Peter Stagg ('PS') and Dylan Stagg ('DS'). I will refer to PS and DS as the Staggs. The Staggs are the registered owners of a 2012 BMW 740i motor vehicle registered number 128XMU ('Vehicle') with some 130,000 kilometres on the odometer.
• [2] On 7 July 2023 the Vehicle was delivered to the respondent, LMM Holdings Pty Ltd as Trustee for Brisbane BMW Unit Trust ABN 32 448 349 as trustee for Westside BMW ('Westside'). The Staggs requested Westside to investigate some issues that the Staggs were experiencing with the automatic transmission of the Vehicle.
• [3] The application ('Application') was filed in the Tribunal on 29 March 2023. A chronology of events ('Chronology') as alleged by the Staggs is attached to the Application.
• [4] The Application was heard before me, mostly in person, on 28 May 2025, 22 July 2025 and 6 August 2025. The hearing on 28 May 2025 was taken up in arranging a new hearing date as the notice of the hearing date was sent to an email address of a former employee of Westside.
• [5] For the first two days of the hearing PS and DS represented themselves and intermittently made submissions, presented evidence, or examined/cross examined the various witnesses. On 6 August 2025 Ms Kameka Krapkat ('Kameka'), who is DS's partner was at the hearing and DS authorised Kameka to represent the Staggs at the hearing.
• [6] Westside was represented by Andrew Noonan ('Noonan'), the principal of Westside. Noonan was not the principal at Westside in 2021 when the relevant events relating to the Application occurred.
• [7] The events as alleged by the Staggs are set out in the Chronology from 5 July 2023 to 12 July 2023.
• [8] The basic position of the Staggs is:

(i) They operate a limousine business, and the Vehicle is used in this business. They say that the Vehicle was immaculately maintained and serviced, albeit by their own mechanic, not a BMW service centre. They say that except for the issue with the automatic transmission, the Vehicle was operating perfectly before it was handed to Westside for a diagnosis and possible repair of the problem with automatic transmission.

(ii) The Staggs say that the Vehicle was serviced by their mechanic, Hung Vo ('Vo'). Vo gave oral evidence during the hearing.

(iii) The Staggs say that the engine in the Vehicle failed and seized whilst the Vehicle was in the care of technicians in the employ of Westside.

(iv) The Staggs allege that Westside rendered the services on the Vehicle negligently and this caused the engine in the Vehicle to seize. The Staggs used the term "negligently", but I accept that the Application is an action for damages pursuant to s 267 of schedule 2, of the Australian Consumer Law ('ACL'), of the Competition and Consumer Act 2010 (Cth).

(v) The Staggs say that under s 60 of the ACL if a person (Westside) supplies, in trade and commerce, services to a consumer (the Staggs) there is a guarantee that the services will be rendered with due care and skill. The Staggs allege that Westside has not complied with the guarantee and therefore they are entitled to damages as set out in s 267 of the ACL.

• [9] It is Westside's position that the work that its technicians carried out on the Vehicle was minimal, that is two test drives and an oil change of the automatic transmission, and this work was carried out with due care and skill.
• [10] I make the following comments regarding the manner that the matter was prosecuted in the hearings:

(i) The hearings were carried out with a background of distrust by the Staggs.

(ii) It was evident during the hearings that this dispute has taken an emotional toll on the Staggs, especially PS.

(iii) The Staggs position was that Westside must have carried out the work without due care and skill because the Vehicle was working perfectly, except the automatic transmission, when the Vehicle was left with Westside and when they took possession of the Vehicle on 12 July 2023 the engine had seized.

(iv) The Staggs suggested that the employees for Westside were lying and/or covering up some act or omission which caused the failure of the engine.

(v) The Staggs sought to support their claim with anecdotal evidence or evidence of past reviews about Westside's interactions with other customers.

• [11] Because the parties were not legally represented, I gave the parties considerable leeway in presenting their respective cases. I did remind the Staggs that the onus of proof was on them to prove their case on the balance of probabilities. At times the witnesses were interposed, and the parties presented their cases piecemeal. Noonan and the Staggs did not raise any objection to this process.

• [12] As mentioned previously the Staggs believed that some coverup and injustice was caused to them in the way that Westside carried out the work on the Vehicle. The following are some issues that were raised by the Staggs:

(i) The use of CCTV would have revealed the exact work carried out on the Vehicle.

(ii) There was oil dripping from the undertray cover of the engine when PS took possession of the Vehicle on 12 July 2021.

(iii) An apprentice, with or without supervision, may have undertaken some work on the Vehicle and mistakenly caused some damage to the engine sump plug which allowed oil to escape from the engine during a test drive.

(iv) There was a suggestion that an apprentice, with or without supervision, may have mistakenly drained the oil from the engine and not replaced oil in the engine.

(v) The diagnostic codes of the Vehicle were intentionally wiped by Westside during the work on the Vehicle. This was done as part of a cover up so the Staggs could not carry out any diagnosis of the engine after they took possession of the Vehicle.

(vi) After the Staggs took possession of the Vehicle and inspected the oil in the engine, the oil appeared to be clean oil and devoid of any contaminates. The implication that PS was attempting to convey was that Westside filled the engine with clean oil after it was towed back to Westside after the engine seized.

(vii) There was an inconsistency in the final position of the Vehicle on the Centenary Highway after the engine stopped on 9 July 2021. Westside say the Vehicle was off the road and on the grass. DS says that he drove past the Vehicle on 9 July 2021 and noticed that the Vehicle was stationery. He says that the Vehicle was on the road.

(viii) The independent mechanical assessor, Robert Haigh ('Haigh'), appointed by the Tribunal to inspect the engine was not independent and he had some connection to Westside.

(ix) Terry Griffiths ('Griffiths'), the technician who worked on the Vehicle and drove the Vehicle on 9 July 2021, was lying and he was not working at Westside on 9 July 2021. The Staggs produced a copy of Griffiths' Facebook page (Exhibit 2) which stated that he was the workshop foreman for Westside from November 2022.

(x) PS made an issue of the parked position of the Vehicle when it was picked up by a tow truck on 12 July 2021. The Vehicle was picked up from the Westside car park and not from the workshop. PS questioned how the Vehicle came to be in the car park given that the Vehicle's engine could not be started.

• [13] Griffiths was the technician who worked on the Vehicle for Westside. He gave evidence in two stages.
• [14] Griffiths stated that:

(i) He did not have any contact with the Staggs. Any contact with the Staggs was done through Carl Melara ('Melara') of Westside. Melara is no longer working for Westside, and he did not give evidence at the hearing.

(ii) On the morning of Friday 9 July 2021, he took possession of the Vehicle and looked at the job sheet. After an initial inspection of the Vehicle, he took it for a test drive of approximately 3 or 4 kilometres where he noticed the shuddering in the automatic transmission and returned to the workshop.

(iii) He undertook a diagnosis scan and cleared the transmission codes, and it was decided to recommend a change of the automatic transmission oil in case there was after market oil in the automatic transmission. He then arranged for Melara to contact PS to authorise this work. This authorisation was given by PS.

(iv) Griffiths then went ahead and removed the automatic transmission undertray cover and then changed the oil in the automatic transmission and recalibrated the codes. He stated that before he went on a further test drive, he reinstalled the automatic transmission undertray cover.

(v) Griffiths stated that the codes in the Vehicle must be recalibrated and that taking the Vehicle for a test drive allows the automatic transmission to recalibrate itself.

(vi) Griffiths stated that late in the afternoon of Friday 9 July 2021 he drove the Vehicle for about 6 or 7 kilometres and when he was entering the Centenary Highway at the Cinnamon Park off ramp and getting up to the 100 kph speed limit a warning chime for the oil pressure went off and he then placed the Vehicle into neutral and coasted to the side of the highway. He said that the engine warning light came on. He could not restart the engine and he then arranged for the Vehicle to be towed back to Westside.

(vii) Griffiths and other technicians then inspected the Vehicle and attempted to manually crank the engine, but they were unable to do so. He knew at that point that the engine had seized.

(viii) Griffiths says that he completed the report which is part of the Westside invoice dated 12 July 2021 which is attached to the Application. He says that Westside suggested to PS that investigations should be undertaken by Westside, but PS did not authorise this work.

(ix) Because at this stage it was late afternoon on Friday 9 July 2021 the Vehicle was stored by Westside at its premises and PS arranged for the Vehicle to be picked up by a tow truck on Monday 12 July 2021.

• [15] Griffiths was cross examined by the Staggs and Kameka on the following:

(i) As mentioned previously, the Staggs alleged at the hearing on 6 August 2025 that Griffiths was not the driver of the Vehicle and not working at Westside on 9 July 2021. They submitted a copy of a Facebook page stating that Griffiths was the workshop foreman from November 2022 until present. This was introduced into evidence as Exhibit 2. Griffiths responded to this assertion by saying that he was working at Westside from 2015 but became the workshop foreman in November 2022. Griffiths also gave other evidence after this interaction. At the conclusion of Griffiths' evidence, I requested the Staggs to withdraw their assertion. They reluctantly agreed to withdraw this assertion.

(ii) The Staggs suggested to Griffiths that he intentionally wiped all the codes in the Vehicle. He denied this accusation. He could not explain why the codes were not in the Vehicle's system. He suggested that they were there somewhere.

(iii) He stated that he manually wiped and reset the automatic transmission codes.

(iv) Griffiths adamantly denied that he worked on the sump of the engine or the plug of the sump. It was suggested to Griffiths that the engine sump was only 30 centimetres from the plug for the automatic transmission and he could have somehow knocked the plug. Griffiths denied this was the case.

(v) It was suggested to Griffiths that an apprentice may have worked on the Vehicle and made a mistake. Griffiths stated that he could not recall whether an apprentice was with him on that day, but the apprentice only assists him in completing the work or he shows the apprentice what task he is undertaking. For example, he stated that the apprentice may have assisted him in reinstalling the automatic transmission undertray cover.

(vi) Griffiths denied that there was oil emanating from the Vehicle in the workshop or around/under the Vehicle when the Vehicle broke down on the Centenary Highway.

(vii) Griffiths was adamant that he did not work on the undertray cover of the engine/sump or the engine or the sump of the engine.

(viii) During the hearing PS suggested that CCTV in the workshop at Westside would clarify whether Griffiths worked on the engine sump of the Vehicle or who was working on the Vehicle. Griffiths and Noonan stated that there were no CCTV cameras in the workshop.

(ix) PS also raised issues about position of the Vehicle when it was collected from Westside's premises on 12 July 2021. PS asked how the Vehicle was moved from the workshop to the parking lot. Griffiths stated that this scenario occurs often, and Westside use a tow rope to move any vehicles if the engine is not operating.

(x) When the engine seized on the Centenary highway on 9 July 2021, DS was driving on the Centenary Highway and noticed the Vehicle by the side of the road. DS raised the issue that the Vehicle was not on the grass or in the position as alleged by Griffiths. Griffiths did not directly respond to this issue.

• [16] I will comment further on the above issues later.

• [17] Haigh gave evidence remotely. Haigh was the expert appointed by the Tribunal. Haigh inspected the Vehicle at the premises of Hung Vo ('Vo') at Acacia Ridge on 12 February 2024. He emailed his report to the Tribunal on 27 February 2024. His report is dated 15 November 2023, but he accepts that this date is incorrect.
• [18] Haigh stated:

(i) The engine was in parts when he inspected the engine and the main engine block was on a pallet and parts in boxes on a shelf.

(ii) He stated that if a sump plug had come loose or was removed and oil escaped from the engine there would be oil everywhere in the engine bay and blow back on the differential.

(iii) Haigh was asked by PS about oil on the undercovers of the Vehicle. Haigh stated that he did inspect the undercovers and he did not find excessive oil on the undercovers.

(iv) Haig stated that if oil had escaped from the engine sump, then he would have expected to see evidence of oil everywhere in the engine bay and under the vehicle such as the gear box and differential. He did not see evidence of excessive oil under the Vehicle. He used the words that there are 6 to 8 litres of oil in the engine and if this amount escaped there would be evidence of oil everywhere. That was not the case during his inspection.

(v) Haigh stated that the Vehicle looked like it had not been cleaned since the engine in the Vehicle had been removed and dismantled.

(vi) He stated that there was evidence of excessive build up of carbon in the engine and he noted that in the previous service there had been an oil flush which possibly moved some oil contaminates into the oil gallery which caused a blockage to one chamber and thus caused the damage. If the engine was run totally without oil, then he would have found more damage in the engine.

(vii) Haigh was questioned by DS about what damage he would expect to find if the engine was starved of oil. Haigh stated that the first thing he would expect to find would be damage or scoring in the cam caps at the top of the engine because lack of oil starves the components at the top of the engine first. He stated that then you would expect to find cylinder bore scoring/seizing and then the main crankshaft would fail/seize. He stated that there was evidence of damage in only one gallery.

(viii) DS asked Haigh how long the engine would have to run for the engine to fail for lack of oil. Haigh stated "minutes". There was interaction between DS and Haigh about how long the Vehicle had to be running without oil pressure for the engine to seize or fail. Haigh stated that an engine takes 10 to 15 seconds for an engine to come up to sufficient oil pressure.

(ix) DS stated that it only takes 10 seconds for a bearing to be "grabbed". Haigh stated that the bearing in one cylinder welded to the engine. Haigh stated that one bearing could have "grabbed" and seized but there would have been oil to the other parts of the engine.

(x) DS asked if it was possible that oil pressure was starved to one cylinder and caused damage to one cylinder because the swift action of the technician who was driving the Vehicle when the incident occurred. Haigh stated that there was evidence of lack of oil to one bearing and there was light scoring to the oil pump. Haigh stated that if the engine was wholly starved of oil, then there would be much more damage to the oil pump with a total failure of the engine.

(xi) Haigh could not check the oil filter pick up.

(xii) Haigh could not check the main crankshaft because it had been through many hands.

(xiii) When he lifted the sump, he detected hard carbon build-up from lack of servicing.

(xiv) Haigh checked the service history, and he believed hard carbon would have had trouble moving through the small holes to the bearings thus damaging one bearing.

(xv) Haigh noted that the computer codes had been wiped. He confirmed that if the computer codes were still there, they would show what was the problem.

(xvi) DS and PS raised the issue that Haigh may have some connection with Westside. Haigh stated that he had no connection with Westside, and he has never been to any social functions held at Westside. Haigh stated that he is independent of Westside, and he works for himself and is impartial.

(xvii) Haigh stated that lack of maintenance and oil quality can be a factor in causing damage to an engine. However, Haigh noted that there was no engine oil available to carry out any testing to conclusively ascertain if the quality of the oil was a factor in causing damage to the engine.

(xviii) Haigh was cross examined by Noonan. Haigh stated that the quality of the oil makes a difference in the operation of an engine. He stated that good quality oil has cleaning properties. Again, he reiterated that he could not test the oil in this case.

(xix) Haigh stated that it is extremely difficult to clean away the evidence of a major oil leak. He stated that there would be oil everywhere.

(xx) Haigh was asked about his finding in 3.2.3 of his report. That is hard carbon may have caused a blockage. This may have been caused by a lack of maintenance or use of low-grade engine oil. Haigh also noted that the Vehicle did miss one service.

• [19] I requested Haigh to hear some of the evidence of Griffiths and then I would give an opportunity of the parties to ask Haigh questions about this evidence.
• [20] In giving this evidence Griffiths reiterated that he took the Vehicle for a test drive and he noticed shuddering in the automatic transmission. Griffiths noticed that there was a recent service and that possibly aftermarket oil had been used in the automatic transmission. Therefore, Griffiths spoke to the service advisor, Melara, and obtained authorisation from PS to change the oil in the automatic transmission. Griffiths then cleared transmission adaptors and changed the oil in the automatic transmission to factory oil. Griffiths then took the Vehicle for a test drive so that the automatic transmission system can learn how to adapt the new system. Griffith again stated that he did not touch the sump or the engine.
• [21] Griffith stated that when the Vehicle came to a stop after the problem with the engine there was no oil coming out of the engine. The final resting position of the Vehicle was the off ramp of the Cinnamon Park exit. Griffiths stated that there was a chime for the oil pressure warning light. Griffiths put the Vehicle into neutral and rolled off Centenary Highway. The engine warning alarm came on and he stopped on the grass and not the road. The Vehicle was towed from this area.
• [22] During giving this evidence Griffiths was asked about the oil pick up filter which is like a tea strainer. Apparently, this was missing and there was no oil filter in the oil pick up. Griffiths stated there was no oil spill and it was not necessary to clean up any oil on the road.
• [23] Haigh was questioned after Griffiths gave his evidence and he stated that an aftermarket filter and the quality of oil can make a difference. He stated that he believed that there was oil flush of the engine, and this may have blocked one outlet which caused the problem in one cylinder and bearing. He stated that if the engine was totally starved of oil, then there would be much more damage with shavings and splinters everywhere.
• [24] DS asked questions of Haigh about his conclusions. Haigh stated that there was only light scoring to the other cylinders and no great damage to the other cylinders. Haigh reiterated that he believed that there was a blockage in one outlet and not total loss of oil to the engine.
• [25] Haigh again mentioned the carbon build up in the engine sump and he stated that he was not able to examine the oil pickup because it was not available for his inspection.
• [26] I raised the issue of the engine sump plug. Haigh stated that the engine sump plug was there during his inspection and he took a photograph of the plug. Haigh provided 4 pages of photographs after he gave evidence. See exhibit 1. Haigh again stated the undertray covers were clean and there did not appear to be any damage to the threads in the sump plug.

• [27] Vo gave evidence at the hearing, and he provided a report dated 28 February 2023 which is attached to the Application. Vo says that he has been a motor mechanic since 1993. Noonan had no objection to his expertise.
• [28] Vo is the mechanic who had been servicing the Vehicle. In his report Vo says that the Vehicle was running very smoothly, and the engine had no leaks or signs of premature wear or damage. He stated that he recently carried out a service on the Vehicle and used high quality oil and changed the oil filter.
• [29] Vo stated that he carried out an engine flush when the Staggs first purchased the Vehicle and carried out services every 10,000 kilometres. He says that he uses good quality European oil and parts when he services this type of vehicle.
• [30] Vo confirmed that he removed the engine from the Vehicle and that Haigh inspected the engine and parts of the engine at his premises.
• [31] He stated that he could not give evidence about oil emanating from the engine because that was with another technician before the Vehicle was brought to him for removal of the engine.
• [32] There was some discussion regarding whether an oil flush was carried out at the last service. Vo stated that he can't be certain, and he would have to consult his invoices, but he may or may not have carried out an oil flush at the last service. He stated that an oil flush is usually carried out every 30,000 kilometres.

• [33] Graeme Norup ('Norup') gave evidence at the hearing. He also provided a report which is attached to the Application.
• [34] Norup stated that he is an A grade mechanic and a road worthy certificate inspector, and he has been in business for some 50 years. There was no objection from Noonan as to his expertise.
• [35] Norup disassembled the engine and in his report says that the engine appeared to be in good order but there were parts welded to the block which had to be ground off. He says in his report that because the engine seized after a short drive from the workshop where the Vehicle was serviced, it appears that the workshop may have mistakenly drained the oil from the engine.
• [36] In his report he goes on to say "Personally, in 45 years I have never seen this type of failure with an engine (all 12 big end bearing shells seized to the crankshaft with no tell tale signs of progressive bearing failure)".
• [37] Norup was questioned about the bearings. Norup stated that the crankshaft and bearings were sent out to another technician and the bearings were ground off the crankshaft with a grinder. The crankshaft was returned to Norup and it could not be salvaged. He stated that the bearings would be in small pieces and thrown away.
• [38] Kameka then asked Norup about the reference to bearings in Haigh's report and Norup stated that the bearings are in small pieces. It was made clear during this interaction with Norup that the engine was disassembled by Norup before Haigh inspected the various parts of the engine.
• [39] Norup was questioned about the issue of carbon or sludge in the engine as referenced by Haigh. Norup stated that the engine cannot suffer such failure without an oil blockage or lack of oil. He stated that the engine could not suffer such damage without an oil pressure failure.
• [40] Norup stated that there had to be an oil pressure issue with the engine. He stated that the oil pump and the relief valve were in working order.
• [41] Norup was then cross examined by Noonan and the following issues were canvassed:

(i) Noonan mentioned that in Haigh's report there was a reference to a build up of hard carbon deposits and sludge which may have caused a blockage. Norup responded by saying that they could cause a blockage, but he did not see any evidence of hard carbon and the deposits should have been stopped from causing a blockage by the oil filter pick up.

(ii) Noonan put it to Norup that he may not have had all the parts of the engine and that his report is speculative. Norup accepted that his report is speculative but he again stated that the engine totally ran out of oil pressure.

(iii) Norup reiterated that the Vehicle could only last some 5 to 6 kilometres with zero oil pressure.

(iv) Noonan asked Norup if he could explain the situation that is alleged by Westside. That is the Vehicle was driven to Westside and the technician only worked on the automatic transmission and did not touch the engine. Norup stated that there could have been an issue with the engine and it would have made sounds to a trained technician or the engine ran out of oil pressure.

(v) Griffiths then asked Norup some questions. Griffiths outlined what work he had undertaken and mentioned that the Vehicle was serviced about a week before the engine failure. Griffiths also stated that the engine may have had an engine flush which may have dislodged some carbon or sludge which caused a blockage in the oil filter to cause oil pressure failure. Norup was asked to comment on this possibility. Norup answered that this was possible, but he did not detect a great amount of sludge in the oil filter.

• [42] I then asked Norup some questions about the oil filter and how the oil filter is accessed. Norup stated that it is accessed by removing the sump and he did not detect any evidence of tampering with the sump. Norup stated that there was some sludge in the oil filter pick up but, in his view, not enough to cause a failure of oil pressure.
• [43] Finally, there was interaction between the parties and Norup. I also sought some clarification from Norup. His evidence was:

(i) Norup stated that the damage to the engine was substantial. He stated that he had never seen such damage previously.

(ii) He was of the view that the Vehicle was driven without oil, and it could have been driven for some distance without oil.

(iii) He was of the view that the oil warning light probably illuminated very soon after Griffiths left the workshop.

(iv) I questioned Norup about the possibility of a faulty warning light. Norup stated that he could not test the warning light, but this possibility was unlikely.

• [44] The Staggs applied to introduce further evidence about some reviews and complaints by other parties regarding their servicing experiences at Westside. I advised the Staggs that this evidence is irrelevant, and the authors of these complaints are not present to prove this evidence. The Staggs persisted with the application, so I admitted a copy of the reviews. See Exhibit 3. I advised the Staggs that I would not be able to give this evidence any weight.
• [45] I have reviewed the Application and the material annexed to the Application by the Staggs. I note the following:

(i) Stagg initially took the Vehicle to Western Suburbs Automatics ('WSA') who PS says are transmission specialists.

(ii) PS says in the Chronology that on 12 July 2021 he followed the tow truck to WSA and "explained the whole story of what was wrong with the car to Craig".

(iii) There is a copy of a report (undated) from WSA regarding some work that WSA undertook on the Vehicle and WSA emailed some codes to PS. The report states that the Vehicle "came into Western Suburbs Automatics on 20 July 2021....". This conflict in the dates is not important.

(iv) The report from WSA states "The covers removed from the Vehicle were full of oil at the time."

(v) No one from WSA was called by the Staggs to give evidence at the hearing.

(vi) From the Chronology it appears that on or about 14 July 2021 PS advised a "Craig" that he was arranging for the Vehicle to be towed to Prestige Performance ('P&P') who PS says are experts in European car servicing and tuning to obtain an independent mechanical inspection and written report from an independent mechanic.

(vii) A copy of a report (undated) from P&P is attached to the Application.

(viii) This report notes that the engine oil was drained, and the correct amount of oil was in the engine. The condition of the oil is noted as minimal metal particles, "oil looks a few thousand km's old".

(ix) The P&P report states that the oil filter was checked and "no evidence of metal particles - some carbon. Non genuine filter."

(x) The P&P report also states that the ECU programming status was checked "- last updated 07/07/2021 to latest version".

(xi) The P&P report states the engine sump was removed and "Found cylinder 1 journal was heat affected. Removed conrod cap and found bearing had spun and welded to crank".

(xii) The P&P report concludes "Suspect other bearings have also spun, still unable to rotate engine. Suspect failure due to rod bearings worn out and eventually failing".

(xiii) No one from P&P was called to give evidence at the hearing.

(xiv) Regarding the service history of the Vehicle, I note paragraph 8(c) of the response (Response) filed in the Tribunal on 2 June 2022 that there are details of overdue servicing of the Vehicle. That is 5 March 2015 (13,000 Kms late), 5 August 2016 (280 Kms late) and 24 September 2018 (6,000 Kms late).

(xv) There are copies of correspondence from the lawyers representing Westside (HWL Ebsworth dated 12 August 2022) and the Staggs (ALF dated 28 October 2022) attached to the Application. In the letter from HWL Ebsworth, Lawyers the above details of the overdue servicing of the Vehicle are outlined.

(xvi) The allegations of the overdue servicing of the Vehicle have not been contested by the Staggs, and this issue was raised during the hearing. Further I note that ALF, Lawyers, state that their client wishes to cease all litigation.

• [46] Pursuant to s 50A of the Fair Trading Act 1989 (Qld) the Tribunal has power to hear applications for relief under the ACL.
• [47] The relevant provisions of the ACL are contained in sections 60 and 267 of Schedule 2 of the Competition and Consumer Act 2010 (Cth). These provisions are outlined in full:
  1. Guarantee as to due care and skill

If a person supplies, in trade or commerce, services to a consumer, there is a guarantee that the services will be rendered with due care and skill.

1. Action against suppliers of services

(1) A consumer may take action under this section if:

(a) a person (the supplier) supplies, in trade or commerce, services to the consumer; and

(b) a guarantee that applies to the supply under Subdivision B of Division 1 of Part 3 - 2 is not complied with; and

(c) unless the guarantee is the guarantee under section 60--the failure to comply with the guarantee did not occur only because of:

(i) an act, default or omission of, or a representation made by, any person other than the supplier, or an agent or employee of the supplier; or

(ii) a cause independent of human control that occurred after the services were supplied.

(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) otherwise 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.

(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.

(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.

(5) To avoid doubt, subsection (4) applies in addition to subsections (2) and (3).

• [48] Pursuant to s 50A of the Fair Trading Act 1989 (Qld) the Tribunal has power to hear applications made under the provisions of the ACL.
• [49] The parties have not raised any jurisdiction or any other incidental legal issues.
• [50] The Staggs' claim relates to events that occurred over four years ago and it was very clear during the hearing that the prosecution of their claim in the Tribunal has been a difficult journey for the Staggs from an emotional and financial point of view.
• [51] I understand their frustrations. They say that they had a BMW 740, a prestige vehicle, which was used in their limousine hire business and which they say was meticulously maintained and in excellent working order, except for an issue in the automatic transmission, when they dropped off the Vehicle at Westside to diagnose the issue with the automatic transmission on 9 July 2021. By the afternoon of 9 July 2021, the engine in the Vehicle had seized. That is, the engine in the Vehicle catastrophically failed while Westside were rendering services on the Vehicle.
• [52] The Staggs have commenced an action in the Tribunal claiming that while the Vehicle was in the possession of Westside the failure of the engine was caused by an act or omission of Westside which was undertaken without due care and skill. In essence the Staggs have brought an action pursuant to s 267 of the ACL. The full text of this provision is set out above.
• [53] There is no doubt that Westside is a person who supplied, in trade and commerce, services to a consumer as set out in s 60 of the ACL. Accordingly in supplying these services there is a guarantee under the provisions of s 60 of the ACL that these services will be rendered with due care and skill. In these proceedings these services were rendered by Griffiths as an employee of Westside.
• [54] Accordingly, for the Staggs to succeed in this action, the Staggs must prove, on the balance of probabilities, that Westside:

(a) Did not comply with the guarantee under s 60 of the ACL; and

(b) The failure to comply with the guarantee did not occur only because of:

(i) An act or omission other than the supplier; or

(ii) A cause independent of human control that occurred after the services were supplied.

(a) The Vehicle is a 2012 BMW 740 with approximately 130,000 kilometres on the odometer.

(b) The Staggs purchased the Vehicle second hand and the last few services of the Vehicle had been carried out by Vo, who is not a BMW specialist.

(c) Prima facie the Vehicle was in good running order, except for a shudder in the automatic transmission, when it was left with Westside on 9 July 2021 for a diagnosis of the problem with the automatic transmission and a possible repair of the problem.

(d) The damage to the engine was caused when Westside were rendering services on the Vehicle.

• [56] I found the Staggs to be honest and truthful in giving their evidence. I accept their evidence. However, the Staggs themselves have very little direct evidence to support their action.
• [57] I do not accept the evidence regarding the reviews of Westside (Exhibit 3). This evidence was not proved by the Staggs in any way and the evidence has no direct relevance to the events that occurred on or about 9 July 2021 when Westside were rendering services on the Vehicle.
• [58] I found Griffiths who gave evidence for Westside to be open and honest. He was the only witness to give direct evidence about the services rendered by Westside. Griffiths answered all questions and allegations put to him by the Staggs in a consistent, direct, and honest way. His testimony had a ring of truth about it, and his testimony is supported by other witnesses. I accept his evidence.
• [59] I accept the evidence of Haigh, the independent Tribunal assessor, who states that the most likely scenario for the damage to the engine was:

(a) There may have been a lack of maintenance of the engine and/or the oil flush or service may have dislodged some contaminates and this caused an oil blockage which caused the damage to one piston.

(b) There was evidence of excessive buildup of hard carbon and sludge in the sump of the engine.

(c) Haigh could not test the oil filter, and no oil was available for testing.

(d) There was no sign of oil under or around the Vehicle. The lack of oil shows that there was no oil leaking whilst the engine was being driven on the test drive.

(e) Haigh's opinion is corroborated by the report from P&P. The P&P report states that there was oil in the engine, that cylinder one was heat affected and the report goes on to say that the failure was due to rod bearings worn out and eventually failing.

(f) Haigh was challenged by the Staggs during cross examination and I found that Haigh substantiated all questions and scenarios put to him.

• [60] Noonan and Griffiths gave evidence about the importance of maintaining a strict regime of servicing on the engine and using genuine BMW recommended oils and parts. They highlighted the overdue servicing of the Vehicle and the use of non-genuine oils and parts in the servicing of the Vehicle. This evidence is corroborated by Haigh and is not contested by the Staggs. Further Vo accepted that he uses high quality European oil and parts, but he did not use genuine BMW oils and parts when he serviced the Vehicle.
• [61] The Staggs have attempted to prove their claim by indirect evidence. Also, they have raised several scenarios on how the engine was damaged. They are:

(a) The plug in the engine sump was somehow bumped and/or removed so oil slowly leaked out of the engine on the second test drive so there was insufficient oil to lubricate the engine and the engine failed. This scenario is not supported by the evidence because:

(i) Haigh says that if this was the case then oil would be widely distributed in the engine bay and underneath the engine and the oil splatter would be almost impossible to be removed. Haigh found no evidence of oil splatter on or underneath the vehicle when he inspected the Vehicle in February 2024.

(ii) Haigh took a photograph of the engine sump plug when he was conducting his assessment in February 2024. See Exhibit 1. The plug does not appear to be damaged in any way.

(b) PS says there was oil pouring out of the engine and onto the undertray cover of the engine when it was towed to WSA on 12 July 2021. However, I note:

(i) No photographs of the leaking oil or the undertray covers was produced by the Staggs.

(ii) The Staggs did not adduce any evidence from any witnesses from WSA to prove this claim.

(iii) The Staggs did not adduce any evidence from the operator of the tow truck regarding any oil leaking from the engine.

(iv) Griffiths stated that there was no oil leaking from the engine when he stopped on the Centenary Highway on 9 July 2021 and there was no evidence of oil leaking from the engine when the Vehicle was returned to Westside on a tow truck on the afternoon of 9 July 2021.

(v) Haigh says there was no evidence of excessive oil on the undertray covers when he inspected them in February 2024.

(vi) I have accepted the evidence of Haigh.

(vii) P&P say that there was sufficient oil in the engine when it was drained by P&P.

(viii) Therefore, I cannot accept that any oil on the undertray covers had any bearing on the failure of the engine.

(c) The Staggs claim that an apprentice may have worked on the Vehicle and mistakenly bumped the engine sump plug and this may have caused an oil leak from the engine. The Staggs claim that the engine sump plug is only 30 centimetres from the automatic transmission plug and whilst working on the automatic transmission the engine sump plug may have been accidentally bumped which caused an oil leak. I make the following comments on this issue:

(i) I refer to my previous comments above that there does not appear to be any damage to the engine sump plug and P&P say that there was sufficient oil in the engine when they drained it in or about August 2021.

(ii) Griffiths stated in evidence that as far as he can recall there was no apprentice working on the Vehicle without his supervision. He stated that an apprentice may have assisted him in removing or reattaching the automatic transmission undertray, but he says that he carried out all the work on the Vehicle.

(iii) Griffiths also stated that he did not do any work on the engine sump, and he did not remove the undertray cover of the engine.

(iv) I also note that the engine sump plug is 30 centimetres from the automatic transmission plug which is still a significant distance in terms of working in or around an engine or associated parts.

(v) I accept the evidence of Griffiths on this issue.

(d) Another scenario which appears to be advanced by the Staggs is that there was no oil in the engine when the Vehicle was taken for the second test drive. This scenario is supported by the evidence of Norup.This would have required the engine sump plug to be removed and all the engine oil to be drained and no oil to be replaced in the engine. Again, this would have required the engine undertray cover to be removed, the oil drained out of the engine, the oil not to be replaced and the engine undertray cover to be reattached. I make the following comments:

(i) I find this scenario very improbable and difficult to accept because of my previous comments on the evidence of Griffiths that he did not do any work on the engine or the engine undertray covers.

(ii) This scenario could only have occurred by some coverup by employees of Westside. That is the Vehicle was driven by Griffiths without oil and when it was towed back to Westside it was filled with oil by employees of Westside. This is impossible to accept because I have found that Griffiths is a truthful witness. Further the Staggs have presented evidence that there was oil in the engine when the engine was inspected by P&P. See the report of P&P. In fact, the report from P&P states that the correct amount of oil was in the engine and the oil contained minimal metal particles and the "oil looks a few thousand km's old."

(iii) The scenario is supported by Noruf who stated that he had never seen an engine with this type of damage. He says that in this scenario the Vehicle was driven for some kilometres without lubrication but significantly he says that the oil pressure warning light would have illuminated almost as soon as the Vehicle left the workshop. Norup seemed to be implying that the Vehicle was driven for some kilometres with the oil pressure light illuminated. When I asked him about a faulty oil pressure warning light, Noruf stated that this was not checked, but it was improbable.

(iv) This scenario is not supported by the evidence of Griffiths who stated that the oil warning light did not illuminate until he had driven some 6 or 7 kilometres and he was on the Centenary Highway.

(v) This scenario is not supported by the report of Haigh.

(vi) This scenario is also not supported by the reports of P&P where it is stated that there was the correct amount of oil in the engine when they inspected the engine and there was damage to one chamber. The report from P&P states that the oil appears to be a "few thousand km's old".

(vii) As Haigh has stated that an engine could only last a matter of minutes without oil, I cannot accept that the Vehicle was operating for 6 to 7 kilometres without any oil.

(e) The Staggs raise the issue that all the diagnostic codes in the Vehicle have been wiped and they could not be retrieved. Griffiths gave evidence that he could not explain why this was the case and he stated that the diagnostic codes should be able to be retrieved. However, I note that the P&P report states that ECU programming status was updated on 07/07/2021 to the latest version. This is the date of the services rendered by Westside. In any event the issue of the possible wiping of the codes has no direct effect of the cause of the failure of the engine. I accept the evidence of Griffiths on this issue.

• [62] After considering all the above testimony, evidence and findings, on balance, I make the following findings:

(a) The Vehicle was a 2012 BMW 740 with approximately 130,000 kilometres on the odometer. The Staggs purchased the Vehicle second hand and notwithstanding their submissions that the Vehicle has been meticulously maintained and serviced, I find that the Vehicle has not been serviced in accordance with the recommendations of BMW and aftermarket oil and parts have been used in the most recent services carried out by Vo.

(b) The engine appears to have been dismantled or partly dismantled by WSA, P&P and Norup.

(c) No evidence has been presented by the Staggs which supports their submission that there has been any cover up by Westside.

(d) The only work that Griffiths undertook on the Vehicle was to remove and reattach the undercover trays of the automatic transmission and change the oil in the automatic transmission. He then took the Vehicle for a test drive where the engine failed some 6 or 7 kilometres from Westside's premises.

(e) None of the services rendered on the vehicle by Westside caused the engine to fail.

(f) The most probable cause of the failure of the engine was the scenario promulgated by Haigh and not Norup.

• [63] Because I have made the above findings, I must dismiss the Application.
• [64] The issue of what damages the Staggs can claim under their action was canvassed at the hearing. However, because I have found that the Application must be dismissed there is no reason for me to make any findings regarding the issue of damages.