Whiz Enterprises Pty Ltd v Rosen [2025] QCATA 47

• [5] The appeal process is not an opportunity for applicants to have their case automatically reheard or a decision reconsidered.[3] In considering whether to grant leave to appeal, the appeal tribunal considers whether:

(a) there is a reasonably arguable case of error in the primary decision;[4]

(b) there is a reasonable prospect that the appellant will obtain substantive relief;[5] and whether;

(c) leave is needed to correct a substantial injustice caused by the error;[6] or

(d) there is a question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage.[7]

• [6] I have had regard to the material filed by the parties and the transcript of proceedings conducted on 14 November 2023 which reveals:

(a) At the hearing, Mr Rosen appeared via Teams, and Mr Grayson appeared by telephone for Whiz.

(b) Mr Rosen had lodged an application seeking an order for the payment of $11,781.22 to him - $10,414.22 out of pocket costs, filing fees of $367.00, and $1,000 for exemplary damages.

(c) At the hearing, the adjudicator referred to material filed by Mr Rosen, who then confirmed his evidence:

(i) He had previously bought a golf cart from Whiz and after some time it was agreed that it was not worth repairing that cart and it was a better investment to buy a new one, so he agreed to purchase a new cart from Whiz.

(ii) Whiz was aware that the cart was to be used at a resort in Fiji with steep hills and so it was agreed that a more powerful motor be used, at an extra cost of $300.

(iii) On 26 December 2021, Whiz issued an invoice for $17,800. Mr Rosen took possession of the cart in Fiji on 11 May 2022.

(iv) The original cart had been serviced in Fiji by a business which seemed to be affiliated with Whiz, an Australian private company with its main business location in Queensland.

(v) On 17 August 2022, the cart was being used when it suddenly stopped. There was no warning and no incident which caused the cart to stop. The motor was very hot and so it wasn't driven further that day. Three other people on the cart that day provided statements confirming that version of events.

(vi) He then took photographs and exchanged text messages with Whiz.

(vii) He received advice from two electrical contractors who advised that the motor was cobbled together, badly insulated and had failed as a result of poor manufacturing. The entire circuitry of the cart had blown up including the motor, the controller and the on board computer so... it was not an external short... but a catastrophic short of all the major electrical parts.

(viii) He became concerned that he had not been provided with a new motor and asked Whiz to confirm. Whiz replied that the motor was new and was then completely rebuilt to a bigger spec for the hills on the island.

(ix) Whiz advised that it appeared to them (from photographs provided) that the damage was external so it appeared that Mr Rosen had driven over something that had flicked up and taken out the brushes terminal and the speed sensor.

(x) On 25 August 2022, to avoid conflict and in the interests of speedily resolving the matter, he agreed to pay $520 for Whiz to send parts to the electrician so the cart could be fixed.

(xi) The parties argued at the time as to whether the electrician in Fiji had advised that it was due to external damage or as a result of the motor being poorly installed, badly manufactured and not properly insulated.

(xii) When the new parts were installed, nothing worked and the electrician advised that as a result of the short circuit all the components in the cart, except for the battery, had been blown up and that he would need to install a controller to get the cart working.

(xiii) On a trip back to Australia he sent the controller to Whiz in Queensland, and they advised that they could either send it back to America or see if a local company could repair it.

(xiv) He believed that the cost of repairing or replacing the controller would be met under warranty. On 5 October 2022, Whiz advised that he would need to pay the cost himself. In the interests of resolving the matter, he offered to pay for the repairs if the cart worked once the repaired controller was installed. Whiz refused to enter into that arrangement. Whiz refused to return the controller to him, claiming that it had already been repaired and the repairer was owed money. The parties were also in dispute about how many hours the cart had been driven.

(xv) Ultimately, he bought the items necessary to fix the cart from a different supplier in America. He bought a new motor and kit and a controller and solenoid (all shipped to Fiji) and a new charger (shipped to Hawaii where he personally collected). When he compared the new items to the items supplied by Whiz, he was convinced that the motor provided by Whiz was not a new motor. Whether or not it was new, there was a latent defect in the golf cart that was supplied by Whiz.

(xvi) When the new motor and controller were fitted in March 2023, the buggy began to work. He was without the cart for approximately six months.

(xvii) The American manufacturer advised that golf carts have serial numbers, similar to a VIN number on a car. They advised that the serial number on the golf club supplied by Whiz belonged to another cart and it appeared that the cart supplied by Whiz was something created from parts of other old and new carts.

(xviii) Whiz had not produced any evidence that the failure was as a result of anything other than defective manufacturing and or new parts failure.

(xix) He confirmed his evidence (oral evidence and statement signed 19 June 2023) that the total cost of parts and labour was AUD$10,414.22, made up of:

1. 25/08/22 parts (Whiz) $ 520.00

2. 13/09/22 labour DCE electrician (Fiji) $ 792.97

   1. 09/01/23 labour DCE electrician (Fiji) $ 430.63

   2. 09/02/23 labour Esahan Tech (Fiji) $ 318.01

   3. 29/11/22 parts (America) $3,063.58

   4. 09/11/22 parts (America) $1,055.24

   5. 15/02/23 parts (America) $ 495.30

   6. 13/03/23 labour electrician (Fiji) $1,938.12

   7. Undated transport $ 653.23

(xx) Evidence in relation to the costs was provided as follows:

1. 25/08/22 payment of AU$520 to Whiz

2. 13/09/22 invoice for F$1200 from DCE

3. 09/11/22 receipt from American company US$682.95

4. 29/11/22 receipt from American company US$2,057.05

5. 09/01/23 invoice F$650 from DCE

6. 09/01/23 invoice from Eashaan Tech F$480

7. 15/02/23 receipt from American company US$342.45

8. 13/03/23 invoice from DCE $2,875

9. Estimate of cost of cart transport F$975

10. Screen shot of cost of onboard computer with estimated transport costs etc $947 (undated, but for estimated delivery between 22 May and 19 June 2000)

(xxi) At the time the application was lodged , future expenses were calculated at $947.13 for parts and labour for "on board computer" and $200 for incidentals, taking the total to $10,414.21.

(xxii) He did everything he could to avoid litigation and it was a last resort to come to the tribunal. After contacting the Office of Fair Trading, the OFT advised on 1 December 2022 that Whiz had offered to repair the cart if he sent it back to Australia. This was not financially feasible.

(xxiii) On 19 December 2002, he wrote to Whiz indicating that if they did not agree to fix the cart in Fiji, he would proceed through the court system.

(d) Mr Rosen's written evidence included statements from three people who were on the cart when it stopped working. One of those people lives in San Francisco, California. They all say that the cart suddenly stopped working without any warning and without touching or running over anything.

(e) In response, Mr Grayson, on behalf of Whiz stated in written and oral evidence:

(i) Mr Rosen ordered a custom built cart which was supplied, although there was no welding involved.

(ii) The serial number is not a unique number but is used for the type of cart provided to Mr Rosen.

(iii) Because the cart was going to be used in Fiji, it was made clear that there was no service, warranty or support being offered.

(iv) Mr Rosen sent him photos showing that the motor had been burnt out. Only two things could have directly shorted out the motor - water or metal. So either it had been in water or was parked against something metal.

(v) Someone working on repairing the cart for Mr Rosen advised that a new speed sensor was required as it had been ripped off. In his opinion, that indicated that something had been caught and shorted out the motor and ripped off the speed sensor at the same time.

(vi) The damage caused to the controller would indicate that damage had been caused by something metallic touching the positive terminal of the motor.

(vii) He did not know how the damage happened as he was not there but the size of the damage and the complexity of the damage clearly shows that some sort of metal object touched the positive terminal of the motor.

(viii) Mr Rosen had made "all sorts of crazy, stupid threats".

(ix) The controller was repaired at the cost of Whiz. When the controller was sent back to Mr Rosen, the cart started working again but Mr Rosen chose to buy a whole pile of different parts and instruct the mechanic to put in a new motor and purchase a new controller. Recent photos show that he is still using the controller provided by Whiz when the cart was built.

(x) Whiz made reasonable efforts to respond to and address Mr Rosen's concerns despite Mr Rosen failing to provide evidence that the cart had stopped due to a fault caused by Whiz. Mr Rosen has failed to provide evidence that there was a fault on the part of Whiz that caused loss to Mr Rosen. No expert evidence or report was provided.

(xi) When the controller was repaired, computer analysis revealed that the shock which caused the burnt out terminal came from an external source. A service report dated 7 November 2022 from Greentronics lists a number of possible causes for the damage to the controller.

(xii) Mr Rosen has claimed for an onboard computer. The cart that was provided did not have an onboard computer but the previous cart did.

(xiii) Whiz has never had the opportunity to look at the cart or been given a full report regarding the cart.

(xiv) Mr Rosen's mechanic had advised that some of the parts had been put in the old cart, not the one that was provided in 2022.

(xv) The controller repairer had reported that "it's a dead short, it's not a fault, it's not an accident, it's something that happened". Nothing like this has ever happened with any other cart built by Whiz.

(xvi) The motor exploded through a dead short. A dead short can only happen if something metallic or liquid touches the positive terminal and casing.

(f) In response, Mr Rosen:

(i) Denied threatening Mr Grayson.

(ii) Denied that Mr Grayson had indicated he would not provide support if the cart was in Fiji.

(iii) States that Mr Grayson is speculating in claiming that the cart was affected by water or metal.

[7] The adjudicator indicated that exemplary damages would not be awarded. The adjudicator's decision was that the respondent pay the applicant $10,781.22. The reasons for the decision were as follows:

This is decision Q2006 of 23. It's an application under the Consumer and Competition legislation, commonly called the Australian Competition Law, and the correct title for the Act is the Competition and Consumer Act 2010. There are two sections that I believe are relevant. Sections 54 and 58. Section 54 is a regard to the guarantees of acceptable quality and 58 is fitness for a disclosed purpose.

The facts of the situation are likely in agreement. The applicant purchased a purpose-built golf cart, which was to meet his needs in Fiji particularly about the terrain. It was shipped to Fiji and something happened just outside of three months. That is where the disagreement is.

I have read the affidavit of the applicant, I have also read the witness statements of Daniel Polsinger, Chad Swabb, Chase Smith. I note at this stage that in the respondent's submission he said at the start that the affidavit was long and rambling. I disagree with that. I think the affidavit was concise and was constructed in such a way to assist the Tribunal and to present his best efforts in the case. It included photographs and all of the WhatsApp communications and other communications regarding this matter, including the invoices of repairs that he had done to the cart.

Now, in terms of the incident, based on the three witness statements and also the submissions of the applicant, the cart just stopped. Now, in response to this the respondent, in their submissions, particularly in 11, 12 and 13 paragraphs and the evidence today, they believe that they haven't been told the truth by the applicant and that there was either water or metal damage to the motor. They have no evidence to that and, in fact, they refer to statements of the mechanic in Fiji. Unfortunately, they do not have any actual affidavits or statements from the mechanic, it is second hand as passed on by the applicant.

In the statement or the submissions of the respondent, I think it is in paragraph 11, they talked about communications so they could have got that person to give a statement today but they haven't done that. Similarly they relied heavily - in paragraph 12, they referred to the service report of Greentronics, which is attached. Unfortunately, that service report is quite sparse and it talks about possible causes but it doesn't reach anything with any finality or sufficiency to persuade the Tribunal.

The other submission of the respondent has been that there is no report from the applicant linking or putting the respondent at fault. In regard to that they cited the QCAT case of Baker v Botting [2012]. While I acknowledge there is no report per se, as is my responsibility here today under those two sections of the legislation to exercise my discretion and I believe that it does point clearly to fault of the respondent and the Tribunal is satisfied that the respondent - there is no other compelling explanation. The respondent has not provided statements, the respondent has not provided evidence in that regard so I find the weight of the evidence in the applicant.

Also of importance, there has been a lot of ancillary discussions today which have no relevance to the direct issues at hand. Particularly talking about servicing the cart in Fiji. The applicant hasn't applied for that here today. The applicant is applying for damages and that has been explained extensively in the application and the affidavit. So I believe that there has been a misunderstanding by the respondent in their submissions and also today confusing that issue.

As I have said, I am finding for the respondent today - for the applicant today, so it's the order of the Tribunal that the respondent pay the applicant $10,781.22. Thank you for your attendance today.

• [8] Whiz seeks leave to appeal, and to appeal, on the following grounds:

(a) The adjudicator erred in not taking into account that Mr Rosen had refused to make the motor available for inspection so that a report could be prepared on behalf of Whiz. Inspection by Whiz would confirm whether the photographic evidence provided by Mr Rosen was in fact photographs of the cart supplied in 2022, or a different cart and to prepare a report for the tribunal's assistance.

(b) The adjudicator erred in not following Baker v Botting [2012] QCAT 648, and in finding fault with Whiz despite Mr Rosen failing to supply any independent report as to the golf cart where there were other competing explanations for the fault.

(c) The adjudicator erred in failing to take into account that Whiz had requested access to the cart and was denied that access. This prevented Whiz from providing their own report to the tribunal. Reeve v Hamlyn [2015] QCATA 133 supports the principle that it is just and reasonable, and consistent with prior decisions, for the Tribunal to allow Whiz to inspect the cart and produce their own report where there are competing explanations for fault. In Nakrour v Kia Australia Pty Ltd [2023] QCAT 169, the tribunal in considering section 54 of the Competition and Consumer Act, appointed an independent assessor to produce a report where the applicant had failed to provide the vehicle for diagnosis to the respondent.

(d) The adjudicator erred in failing to take into account that Mr Rosen had failed to provide evidence that he had incurred the expenditure he claimed to have incurred, relying on nine invoices rather than receipts. In particular:

(i) Mr Rosen provided an invoice dated 13 September 2022 for "travel to the island and mounted the buggy motor after repair" which is contrary to Mr Rosen's evidence that a new motor had been bought and installed.

(ii) Mr Rosen provided an invoice dated 28 January 2023 from an electrical company making reference to "change board" and "change battery and test" although Mr Rosen had not raised in his material an electrical issue in relation to the cart. In any event, this cart does not have a circuit board or battery.

(iii) Mr Rosen provided an invoice dated 9 January 2023 referring to travelling to fix the cart - there is insufficient evidence to persuade the Tribunal that the work was conducted on this particular cart, as Mr Rosen owns a number of carts.

(iv) A receipt evidencing payment to Golf Cartology of $2,057.05 on 29 November 2022 does not specify what was purchased from them.

(v) Mr Rosen provided a receipt evidencing payment of $682.95 on 9 November 2022 to Golf Cartology which refers to an invoice not produced. The purchase item was a controller kit for an EZ-Go. Mr Rosen's cart is not an EZ-Go, and the delivery address is an address in California.

(vi) Mr Rosen provided evidence of a further purchase from Golf Cartology on 15 February 2023 for $342.45, with no specification of what was purchased. Again, the delivery address is in California.

(vii) Mr Rosen provided evidence of an invoice for $2,875 (date unclear) making reference to the fitting of a new motor which is inconsistent with the previous invoice for the repair and remounting of a motor. There is also reference to an onboard computer in this document and this cart does not have an onboard computer.

(viii) Mr Rosen provided an invoice which appears to relate to the transport of a golf cart but there is no indication that the invoice relates to the golf cart which is the subject of these proceedings.

(ix) Mr Rosen has provided an invoice for purchase and installation of an onboard computer ($947) but this golf cart had no onboard computer.

(a) Leave to appeal is granted.

(b) The decision of the tribunal dated 14 November 2023 is set aside.

(c) The application is dismissed.

(d) Mr Rosen pay Whiz's fees for making the appeal.

(a) None of the queries raised by Whiz above were raised by Whiz at the hearing before the adjudicator, and Whiz is now attempting to introduce new evidence into the proceedings.

(b) There is no evidence that Whiz was denied the opportunity to inspect the golf cart. While there was an initial request, Whiz did not follow up on Mr Rosen's request for further information.

(c) Leave to appeal should not be granted because the adjudicator preferred the evidence of Mr Rosen to the evidence of Whiz. The adjudicator preferred the empirical evidence supplied by Mr Rosen to the conjecture offered by Whiz.

(d) Any new evidence Whiz is trying to introduce should be ignored.

(e) Baker v Botting should be distinguished on the basis that there was no expert evidence available. In this case, the tribunal had the benefit of a report from DAC electrical, photographic evidence and comments made upon assessment by an electrician, and his own evidence. Further, the adjudicator considered Baker v Botting in his decision and found that there was no other compelling evidence as to the cause of the fault.

(f) Reeve v Hamlyn is irrelevant to this matter.

(g) Nakrour v Kia Australia Pty Ltd does not apply as Mr Rosen provided Whiz with an opportunity to inspect the vehicle and would be futile at this late stage as the motor of the cart has now been replaced.

• [11] Mr Rosen seeks the following determination:

(a) Dismissal of the application for leave to appeal / appeal.

(b) Orders enforcing the original decision of the QCAT.

(c) Further costs awarded for the filing of this application.

• [12] On 23 January 2024, the parties were directed to apply for leave to rely upon additional evidence if they wished to do so. No such application was lodged.
• [13] Some of the issues raised by Whiz are quickly dealt with.
• [14] The adjudicator was not compelled to follow any of the previous tribunal decisions referred to by Whiz. In any event, Baker v Botting was considered by the adjudicator and I am satisfied that his reasoning in his decision was sound.
• [15] I am unable to find any documentary evidence in the form of an email or text message to support Whiz's claim that it was denied the opportunity to inspect the cart, and so Reeve v Hamlyn and Nakrour v Kia Australia Pty Ltd may be distinguished.
• [16] I have had regard to the transcript of the hearing. The adjudicator had clearly read the material on the file prior to the hearing, provided the parties with ample opportunity to present their cases during the hearing, and considered the evidence before them.
• [17] Some of Whiz's arguments in this appeal restate the arguments which were considered by the adjudicator.
• [18] The applicant submits that the adjudicator was wrong and that the fault in the cart was caused by something that Mr Rosen did. Mr Rosen denies he did anything to affect the performance of the cart. The adjudicator determined the issue in favour of the Mr Rosen. It is clear that the adjudicator had regard to the evidence presented by the parties and made findings on the evidence. The reasons for the decision explain clearly what the decision was, and the basis upon which it was made. The adjudicator weighed up the relative strength of the evidence presented by the parties. I am satisfied that there was sufficient evidence to justify the decision, even though Whiz says it is wrong. There is no error of law identified by the applicant.
• [19] Whiz disagrees with the decision of the adjudicator. That does not entitle Whiz to have the issues reheard. The assessment of evidence is a matter for the adjudicator in the hearing. As the evidence was capable of supporting the conclusions reached, there is no basis for interfering with the factual conclusions reached by the adjudicator.
• [20] In relation to the issue of liability, I am not satisfied that there is a reasonably arguable case of error in the primary decision, or that there is a reasonable prospect that the applicant would obtain substantive relief if leave was given for the appeal to be considered. I am not satisfied that leave is needed to correct a substantial injustice caused by an error, and I am not satisfied that there is a question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage. Leave to appeal in relation to the issue of liability is refused.
• [21] The issue of the calculation of the amount payable to Mr Rosen is another issue.
• [22] Mr Rosen provided a mix of invoices and receipts to support his claim. The receipts do not itemise what was paid for. The invoices are not matched by receipts. He has claimed for items which Whiz state had not been installed in the golf cart which these proceedings relate to. He has also claimed "future costs" for an item which Whiz claims is not used in the cart manufactured by them. This issue was raised at the hearing but was not addressed by the adjudicator.
• [23] Having determined liability in favour of Mr Rosen, the adjudicator either did not turn their mind to whether the evidence as to costs incurred (which was disputed by Whiz) was sufficient, or did not provide reasons for accepting the evidence of Mr Rosen in that regard. I am satisfied that amounts to an error.
• [24] Leave to appeal is granted in respect of the calculation of the amount owing by Whiz to Mr Rosen.
• [25] The appeal is allowed insofar as it relates to the amount payable by Whiz. That issue will be remitted to be determined by a differently constituted tribunal.
• [26] If the parties wish to provide new evidence in relation to that issue, they should do so on the tribunal file Q2006-23. Documents filed on the appeal file will not be transferred to the original tribunal file and it is the responsibility of the parties to ensure that all evidence they wish to rely upon is placed before the tribunal hearing the matter, and that they are prepared to make submissions at the hearing.

1. [1] Queensland Civil and Administrative Tribunal Act 2009 (Qld) ('QCAT Act') s 142(3)(a)(i).

[2] Ibid s 143.

[3] Hempel v Richardson & Wrench Hervey Bay [2018] QCATA 170, [14].

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

[5] Cachia v Grech [2009] NSWCA 232, 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, 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, 577, 580.