Appeal refused: car owner’s rust claim failed because his two expert reports contradicted each other (QCAT, 2026)

What happened

In June 2023 the owner of a 1993 Nissan Patrol approached a trader who runs a custom and hot rod paint business to repaint the vehicle, including some minor body work and rust repair. The work was finished in October 2023 at a cost of $8,000.

It was not disputed that the vehicle developed significant rust defects within twelve months, nor that fixing the rust would require stripping the vehicle back to bare metal, treating the rust, rust proofing and repainting, at an estimated cost of $26,311.10. Between October 2024 and January 2025 the two men discussed the rust and the paint defects. The trader twice arranged to inspect the vehicle at the owner's home and on both occasions did not attend during the agreed time. The owner said at the hearing that he refused to take the vehicle to the trader's shop because he did not trust what the trader was saying, as the trader was saying it was not his fault.

In July 2025 the owner applied to the tribunal as a minor civil dispute (a small consumer or trader claim), capping his claim at the tribunal's limit of $25,000. He also tried to apply for a decision by default in September 2025. At the hearing in December 2025 an Adjudicator dismissed the claim for want of evidence, meaning the evidence did not prove the case.

The owner then asked for leave to appeal. Leave means permission: in this kind of case a party cannot appeal as of right and must first persuade the Appeal Tribunal to let the appeal proceed. He also applied in February 2026 for permission to rely on a new expert report dated 22 February 2026.

What each side wanted

The owner argued he was denied procedural fairness, which means a fair hearing. He said the trader had run an argument at the hearing that the rust was pre-existing, that the trader had filed a defence and supporting material in November 2025 that was never served on him, and that he was materially prejudiced because he could not answer factual matters he did not know about. He also asked to rely on a fresh expert report, saying that because the trader had not engaged in the proceeding it was impossible to obtain further evidence before the hearing, and that he had treated any extra time and money spent preparing as money he would never get back. The trader had denied all liability for the rust and the paint defects.

What the tribunal decided

The Appeal Tribunal refused leave to appeal and dismissed the application for leave to appeal or appeal. No money was ordered to be paid by either side, and the dismissal of the original claim stands.

The matter was heard and decided on the papers, that is, on the written material without an oral hearing.

Why the tribunal decided it that way

To get leave to appeal, the Appeal Tribunal had to be satisfied there was a reasonably arguable case of error in the original decision, a reasonable prospect of getting substantive relief, and a need for leave to correct a substantial injustice, or else a question of general importance that the public would benefit from having argued. The Appeal Tribunal found the grounds of appeal were not made out and there was no clear error in the decision below. It accepted the owner appeared to have an arguable case, but held that the only failure of process was his own inadvertent failure to make sure his evidence proved the issues he relied on.

On procedural fairness, the Appeal Tribunal could not locate any material filed by the trader in either proceeding, the transcript did not show the trader tendering or relying on filed material, and the Adjudicator did not refer to any. It proceeded on the basis that nothing had been filed, so the fairness complaint was about the trader's spoken submissions only. It then explained the normal path of this kind of case: under rule 43 of the Queensland Civil and Administrative Tribunal Rules 2009, a party to a minor civil dispute other than a minor debt claim cannot file a response at all, though they may make a counter-application or give written evidence or submissions if the tribunal allows it under section 95 of the Queensland Civil and Administrative Tribunal Act 2009. Nothing requires a responding party to file and serve material before the oral hearing, so in the ordinary course the first an applicant hears of the other side's position is at the final hearing. There is also no ability to obtain a decision by default except in a minor debt matter. Whether a hearing is fair depends on what is fair in the circumstances and whether a party had a reasonable opportunity to present their case, and parties are expected to look after their own interests or accept the consequences.

On the new report, fresh evidence is only allowed on appeal in limited circumstances. The party must generally show the evidence could not have been available with reasonable diligence for the original hearing, that it probably would have had an important impact on the result, and that it is credible. The report was credible and relevant, but the owner's own submissions showed that with effort, time and money he could have obtained it earlier, so the first requirement failed. The principle of finality counts against admitting fresh evidence, and leave to appeal is not an occasion to re-argue the case on existing or additional evidence.

Underlying all of this was the onus of proof. Section 50 of the Fair Trading Act 1989 (Qld) sends certain Australian Consumer Law claims to the tribunal as minor civil disputes, including claims for damages against a supplier of services under section 267 for breaching the guarantees that services be provided with due care and skill and be reasonably fit for purpose. Under section 267(4) a consumer can recover damages for loss that was reasonably foreseeable. Loss is an essential element, and recovery is limited by causation (the loss must have been caused by the breach, judged by common sense on the facts) and remoteness (the loss must arise naturally from the breach or have been in the parties' contemplation). Even though the trader denied liability only briefly and might not have turned up, the owner still had to prove liability and amount on the balance of probabilities. The rules of evidence are relaxed in the tribunal, but it cannot decide a case by conjecture where there is no evidence. At first instance his two reports contradicted each other: one said the trader should have stripped the vehicle to bare metal and did not, the other said he did strip it to bare metal and failed to seal it properly. The owner conceded the trader was never engaged to strip the vehicle to bare metal, that the price was budgeted on a respray, and that the second report was simply wrong about what had been done. Neither report criticised the quality of the paintwork itself. The Adjudicator could not rule out pre-existing rust on a thirty-year-old car that had never been stripped back, and so was not persuaded the rust was the trader's fault.

What this means if you are in a similar position

This decision shows how the tribunal applies the onus of proof in a small consumer claim about services. If you are in a similar position, the practical point is that the person bringing the claim has to prove both that the trader breached a consumer guarantee and what the loss is, to the balance of probabilities, and that this does not change if the other side says very little, never files anything, or may not even attend. In a minor civil dispute other than a minor debt claim the other side is not required to file a response, so their argument may be heard for the first time at the hearing, and there is no decision by default available.

It also shows how closely expert evidence is read. Two reports that disagree with each other, or that describe work the trader was never asked to do, can leave the tribunal unable to find in your favour even where the defect itself and the repair cost are not in dispute. The decision records that the claim was about the rust and the bare metal preparation, and that no report addressed the quality of the respray that was actually paid for.

The decision is also a reminder that an appeal is for correcting error, not for running the case again with better evidence. Fresh evidence is generally only allowed if it could not have been obtained with reasonable diligence before the first hearing. In this kind of dispute most people start by putting the problem to the trader in writing, under the consumer guarantees, setting out the defect, what they want done and by when, and only apply to the tribunal if that is not resolved.

How to apply: our step-by-step guide to a QCAT application. More decisions: QCAT cases and faulty goods and refunds.

Source: Hooper v Suman [2026] QCATA 142 (read the full decision). This summary was prepared from the published decision for general information. It is not legal advice, and the tribunal’s own reasons are the authoritative record.