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QCAT – Consumer/Trader dispute fails because a Real Estate Agent is not a “trader”.

July 14, 2025
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In the recent decision of Quach v GLC Partners Pty Ltd [2025] QCAT 265, a claim made by QCAT as a minor civil dispute against a Real Estate agency was dismissed because the jurisdiction to have claims between a consumer and a trader does not extend to claims against professionals. Background QCT provides a convenient and generally economical forum through which consumers can advance claims in respect of goods and services. These are “Minor Civil Disputes” which include residential tenancy claims, minor debt claims, dividing fence disputes, and consumer/trader disputes. In the consumer/trader disputes a variety of orders can be made, including for the refund of money or relief against the obligation to pay a bill. In the subject proceedings, a claim is made against a real estate agency for certain matters. The Member considered whether QCAT had jurisdiction, noting that in Schedule 3 of the QCAT Act, a consumer is an individual for whom services are supplied for a fee other than in a trade or business carried on by the individual, and a trader is a person who in trade or commerce carries on the business of supplying services other than when acting in the exercise of a discipline that is not ordinarily regarded as within the field of trade or commerce. The question in this particular matter was whether a real estate agent was “acting in the exercise of a discipline that is not ordinarily regarded as within the field of trade or commerce”. In the decision, the Member quoted from previous QCAT authority which adopted the meaning of “Profession” as one which “would embrace intellectual activity, or manual activity controlled by the intellectual skill of the operator, whereby services are offered to the public, usually though not inevitably for reward and requiring professional standards of competence, training and ethics, typically reinforced by some form of official accreditation accompanied by evidence of qualification”. In the decision, the Member observed that the activities of the Real Estate agency were – in this instance – acting in the exercise of a discipline that is not ordinarily regarded as within the field of trade or commerce – ie it was a profession and accordingly – the Real Estate agency was not a “Trader” for the purposes of the QCAT Act. Similarly, Lawyers, Doctors, Dentists and Valuers are generally not considered Traders for the purpose of a consumer and trader dispute, meaning that claims against them cannot be brought within QCAT if they relate to the services that they have provided. For advice in respect of consumer law matters, please contact Peter Muller at peterm@qbmlaw.com.au

2 Minute Annual Legal Checkup

July 1, 2025
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As we become busy with life, we often overlook events that have triggered the need to modify our legal arrangements. Below is a list of questions dealing with commonplace legal dealings for many our clients, which should take no more than a minute or two to read. If the answer to any of the questions is “no” then you should look into it further. The list is not exhaustive, but it touches on common matters that slip between the cracks. Personal: Your Will- Do you have one? Are the executors healthy; Are the beneficiaries correct, healthy and no potential bankruptcies? Do you still own the property that is specifically given to someone in your will? Do you know where the original of the will is? Your Enduring power of attorney- Do you have one? Is your attorney healthy? Do you still trust your attorney to do what is right for you? Superannuation- Are binding nominations in place? If you control a Trust- Is the appointor (principal) healthy? Is there a succession plan for the appointor? Business: If you control a Company- Do you have a company power of attorney to operate if you are incapacitated? Are your ASIC records and addresses up to date? If you have a Lease- Have the rent reviews been done? Many option rights have to be exercised 6 months before the end of the term, or sometimes longer, otherwise the right is lost. Have you diarised the last date to exercise? If your option is to be exercised in the next year, have you instructed a lawyer to make sure that the option is exercised properly? If your business relies on some other form of legal rights (eg management rights, franchise agreement, license agreement), have you diarised when notice has to be given for renewal? QBM Lawyers can help you with your business and personal legal dealings. Please let us know if we can help. Contact Peter Muller at peterm@qbmlaw.com.au or Jessica Murray at jessicam@qbmlawyers.com.au.

May 22, 2025
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On 16 May 2025, QCAT ordered a motor dealership to refund the entirety of the purchase price of a new vehicle which had been bought in June 2022 and “rejected” by the buyer in about January 2024 some 18 months afterward, because – having regard to the various defects in the vehicle – a reasonable consumer fully acquainted with the nature and effect of the failure would not have acquired the vehicle at the time of the supply. This finding had the result that the failure was a “major failure” under the Australian Consumer Law, which allows the rejection of the item if the rejection is within the “rejection period” under section 262 of the Australian Consumer Law. The rejection period for goods is the period from the time of supply within which it would be reasonable to expect the failure to comply with the consumer guarantee to become apparent having regard to the type of goods, the use to which they are likely to be put, the length of time for which it is reasonable for them to be used, and the amount of use that it is reasonable for them to be put before the failure becomes apparent. The Tribunal had regard to a decision of the Victorian Civil and Administrative Tribunal which considered that the warranty period was relevant when considering whether the rejection period had expired. In that matter, the Tribunal did not consider itself bound by the warranty period given under the manufacturers express warranty, but it is relevant evidence of “the expected period of largely problem free use of the goods”. In the case of this particular vehicle, the Tribunal considered that given: the Tribunal was satisfied that the rejection of the vehicle in 2024 was made well within the rejection period. The consequence of a valid rejection is an entitlement on the part the applicant for a refund of any money paid for the goods, or the entitlement to the replacement the goods with goods of the same type and of similar value if they are readily available. In this particular case, the respondent was unable to provide a replacement value of the same type and of a similar value, and the Applicant did not want another vehicle of the same make. The Tribunal ordered the repayment of the purchase price, together with the payment of the filing fee, see Stevens v James Frizelles Automatic Group t/as Sunshine Kia [2025] QCAT 196 The decision demonstrates the further reach of consumer rights in relation to goods, which now can have to result that goods can be rejected after quite a lot of use if there is multiple issues over a period of time, such that a reasonable consumer would not have bought them. For advice in respect of consumer law matters, please contact Peter Muller at peterm@qbmlaw.com.au

What if you cannot find the original of a Will?

May 19, 2025
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Occasionally, a person passes away and the original of their Will cannot be located. There could be a number of reasons why the original cannot be found – they might have kept it at home and it was thrown out by mistake, or their lawyers lost it – however at law there is a presumption that when an original Will cannot be found, it means that the Will maker destroyed it with the intention that it was revoked. This presumption can lead to significant issues in some cases, depending upon the terms of the Will. What it means in effect is that the person who wants to have the copy Will carried out needs to convince the court that the presumption is “rebutted” – in other words, to convince the court that the will was not destroyed for the purpose of revoking it. The Queensland Supreme Court considered such a situation in the decision “In the will of Giuseppe Benito Sydney Calabro [2024] QSC 71”. In that matter, Mr Calabro had died. He was survived by his wife Roma Calabro. The evidence showed that in October 2019, Mr Colabro and Roma Colabro met with a lawyer to give instructions for the preparation of their Wills. In April 2020, copies of Wills were sent for their signing, and on 28 April 2020, both Mr Colabro and Roma Colabro signed their Wills before witnesses. The evidence was that the Wills were then posted back to the lawyer who received them and scanned them and saved copies of them into their online database. The originals were put into the firm’s securities. After he passed away, the firm checked their securities, but could not locate the original of the Will. There was no record of the firm having released the original Will to any person or receiving any instructions to destroy the Will. The matters to be satisfied for the court to give probate where the original will is missing are to prove: Usually, a Will contains a provision that it revokes all previous Wills. Furthermore, usually a copy of a signed Will will satisfy the tests at (a), (b), (d) and (e), assuming that it is signed correctly. In this particular matter, the court accepted “as a matter of common sense and plausibility in the context of what appears to have been a relatively long marriage” that Mr Colabro would not have revoked the Will or made a new one without discussing that with Roma Colabro, and accordingly found that he did not do so. The fact that the Will had never been released from safe custody, and that there was no evidence that Mr Colabro had made a new Will also lent in favour of a finding that the Will had been lost in the offices of the lawyers. As a result, it is always a good idea to keep a copy of the signed Will available as your own record in the event that the original Will is lost or destroyed. For advice in respect of Wills, please contact our property lawyers Peter Muller at peterm@qbmlaw.com.au or Jessica Murray at jessicam@qbmlaw.com

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QCAT – Consumer/Trader dispute fails because a Real Estate Agent is not a “trader”.

2 Minute Annual Legal Checkup

Dealership ordered to repay purchase price of car rejected after 18 months of ownership

What if you cannot find the original of a Will?

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