Decorug Holdings Pty Ltd v Callaghan [2026] QCATA 109

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Decorug Holdings Pty Ltd v Callaghan [2026] QCATA 109 PARTIES: DECORUG HOLDINGS PTY LTD (applicant) V EDWARD CALLAGHAN (respondent) APPLICATION NO/S: APL324-25 ORIGINATING APPLICATION NO/S: Q9113-24 MATTER TYPE: Appeals DELIVERED ON: 6 July 2026 HEARD AT: Brisbane DECISION OF: Senior Member Lember ORDERS: The application for leave to rely on fresh evidence filed 29 September 2025 is refused. Leave to appeal is refused. The application for leave to appeal or appeal filed 15 August 2025 is dismissed. CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – where application for a minor civil dispute consumer dispute – where claim relates to flooring laid by respondent – disconnection of a party during a telephone hearing – where hearing continued in absence of a party – whether respondent was denied procedural fairness – whether leave to appeal should be granted Alderton & Anor v Wide Bay Constructions Pty Ltd [2017] QCATA 147 Australian Broadcasting Commission v Bond (1990) 170 CLR 321 Bradlyn Nominees Pty Ltd v Saikovski [2012] QCATA 39 Brian Maggen t/as Painters in Paradise v Vels [2021] QCATA 117 Cachia v Grech [2009] NSWCA 232 Cooks Construction Pty Ltd v Stork Food Systems Aust Pty Ltd [2008] 2 Qd R 453 Fox v Percy (2003) 214 CLR 118 -- 1 of 11 -- 2 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 Greg Ritchie v Harcourts Broadbeach/Mermaid Waters [2024] QCATA 15 Grey v Manitoba and North Western Railway Co of Canada [1897] AC 254 Hempel v Richardson & Wrench Hervey Bay [2018] QCATA 170 Hessey-Tenny & Anor v Jones [2018] QCATA 131 Johnson v Perez (1988) 166 CLR 351 Kioa v West (1985) 159 CLR 550 Maxi Cool Pty Ltd V North (1989) 9 MVR 61 McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 O'Brien and Others V Komesaroff (1982) 150 CLR 310 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 Ramsay v Fraser [2024] QCATA 72 The Pot Man Pty Ltd v Reaoch [2011] QCATA 318 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 11, s 28, s 57, s 93, s 122, s 143 APPEARANCES & REPRESENTATION: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’). REASONS FOR DECISION What is the application about? [1] Mr Callaghan obtained an order for compensation from Decorug Holdings Pty Ltd (‘Decorug’) in the Tribunal below.1 Decorug seeks leave to appeal, and if, granted, to appeal that decision.2 [2] The appeal process is not an opportunity for applicants to have their case reheard,3 or for a party to reargue a case that it should have presented at the initial hearing.4 [3] To grant leave to appeal, the Appeal Tribunal must be satisfied that: (a) there is a reasonably arguable case of error in the primary decision,5 1 Q9113-24 (Brisbane); Order made 24 July 2025. 2 Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), s 143(3); Application for leave to appeal or appeal filed 15 August 2025. 3 Hempel v Richardson & Wrench Hervey Bay [2018] QCATA 170 [14]. 4 Bradlyn Nominees Pty Ltd v Saikovski [2012] QCATA 39. 5 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. -- 2 of 11 -- 3 (b) there is a reasonable prospect that the appellant will obtain substantive relief,6 and (c) leave is needed to correct a substantial injustice caused by some error,7 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.8 New evidence was filed in the appeal [4] Decorug seek leave to rely on new evidence comprising: (a) a QCAT Notice of Hearing 21 July 2025 including the email serving it; (b) a QCAT Mediation correspondence, Notice of mediation, Notice of mediation adjournment; (c) an Office of Fair Trading ‘determination’, namely emails dated 1 July 2024 and 2 July 2024; (d) submissions to the Office of Fair trading (various emails and other records dated 13 September 2023 through to 21 May 2024); (e) a warranty claim made by email on 13 September 2023 and internal emails forwarding it within Decorug; (f) notes extracted from Decorug’s ‘ERP System’ between 19 September 2023 and 10 January 2024; (g) a timeline of events/contact that appears to have been extracted from the ERP, noting dates between 19 September 2023 and 17 May 2024; (h) a sales order dated 19 September 2023 upon which handwritten notes have been made about rebooking between November 2023 and April 2024; (i) OneNote file records of calls with Mr Callaghan dated 13 and 14 May 2024; (j) a typed summary by Decorug of attempts to resolve the warranty issue with Mr Callaghan between September 2023 and May 2024; (k) a sales contract and staged invoices dated 19 December 2022, 6 February 2023, and 10 February 2023; and (l) warranty materials, purchase orders, and supplier invoices dated 10 November 2023, 15 November 2023, 13 April 2024 and 13 May 2024. [5] Mr Callaghan opposes the application for leave to rely on new evidence. [6] In Alderton & Anor v Wide Bay Constructions Pty Ltd [2017] QCATA 147 at [7], Senior Member Howard said that: 6 Cachia v Grech [2009] NSWCA 232, 2. 7 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 8 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R388, 389; Mciver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, 580. -- 3 of 11 -- 4 [38] Fresh evidence may be allowed in appeal proceedings that proceed by way of rehearing, but only in limited circumstances. Although I am not determining the application for leave to appeal or the appeal, I observe some relevant underlying principles. The appeal process is for correcting error made by the original decision-maker. It is not an opportunity for a party to present their case again in order to achieve a different outcome, or reargue it, merely because the party does not like or agree with the outcome/decision of the original tribunal. Where required, leave to appeal will generally only be granted when there is a reasonably arguable case of error in the primary decision; reasonable prospects of substantive relief and there is a necessity to grant leave to correct a substantial injustice. [39] The principle of finality in litigation counts against admitting fresh evidence on appeal. Parties are expected to act in their own interests and make their own case fully in the first hearing. [40] In an application for leave to rely upon fresh evidence concerning evidence that did not exist at the time of the original hearing, to succeed, an applicant must generally show as follows: (a) That the evidence could not have been available with reasonable diligence for the original hearing; (b) That if it was allowed to be relied upon it probably would have had an important impact on the result of the case; and (c) That the evidence is credible. [7] The Notices form part of the record of proceedings and are not ‘evidence’. Leave is not required to rely on them in the appeal. [8] Otherwise, Decorug have not established that the new evidence was not available with reasonable diligence for the original hearing nor explained why it did not tender it in the below proceeding. In fact, the evidence was available to it prior to the hearing. [9] As observed in Ramsay v Fraser [2024] QCATA 72 at [11] an application for leave to adduce fresh evidence is not, and should not be, an attempt to shore up the deficiencies of a party's case at the initial hearing, although in this case the evidence is if scant relevance to the matters to be decided in any event. [10] Leave to rely on the new evidence is refused for those reasons. A reasonably arguable case of error - the grounds of appeal [11] The appeal grounds contained in the application for leave to appeal or appeal are somewhat confusing in that they were originally targeted at an application to set aside a default judgment, which involves different considerations. The decision was not a default judgment. They are supplemented by the submissions filed 31 October 2025 that more properly detail the grounds of appeal. -- 4 of 11 -- 5 Ground 1: Lack of clarity on the actual claim / denial of procedural fairness [12] Procedural fairness results from a fair hearing. Whether a matter has been dealt with fairly depends on what is fair in the circumstances of the case9 and whether a party was given a reasonable opportunity of presenting their case. [13] Decorug say that it did not receive the application for minor civil dispute or supporting material, noting that the documents that were first posted to it were returned undelivered and the second documents said to have been posted are not supported by evidence of the address to which they were sent, ‘inferring an addressing error’. [14] It also says that the email address to which substituted service was directed, namely [email protected] is a generic address that was ‘not actively managed due to staff changes and shortages’ and, therefore, the original claim and evidence ‘were not received by management’. [15] Decorug nonetheless say it received the Notice of Mediation on 14 February 2025 and the adjournment request on 17 February 2025, to that same email address. [16] It also says that the hearing notice sent to that email address on 10 July 2025 was received but ‘first reached management’ on Monday 21 July 2025 which amounted to insufficient notice of the hearing set down for Thursday 24 July 2025 and a denial of procedural fairness to Decorug. [17] Nothing in the information before the Appeal Tribunal suggests that the originating application and material were not received by Decorug. [18] The responsibility of litigants in the Tribunal to attend to their own interests was emphasised by a former President of the Tribunal, Justice Wilson, in The Pot Man Pty Ltd v Reaoch [2011] QCATA 318 at [9]-[10]: The QCAT statutory regime itself places obligations upon parties to take care in dealing with tribunal matters ... The legislation and the demands upon public resources which fund QCAT, necessarily impose an expectation and an obligation upon a party that it act in its own best interests, or accept the consequences. [19] That Decorug promotes an email address for the receipt of correspondence and then fails to internally resource itself in a way that is sufficient to protect its own interests, namely by having that email address monitored and correspondence actioned in a timely way, is a matter for Decorug. It does not amount to a denial of procedural fairness. [20] In any event, Mr Cereira, Area Leader (Queensland) attended the hearing for Decorug. According to the hearing transcript, his opening words were that he had ‘gone through the paperwork’ and ‘spoken to the installers’.10 He did not request to stand the matter down or to adjourn to have more time to peruse the material. [21] There is no merit in this ground of appeal. 9 Kioa v West (1985) 159 CLR 550, 612. 10 Transcript, page 1-3, lines 39-40. -- 5 of 11 -- 6 Ground 2: Technical issues prevented Decorug from fully participating in the hearing [22] Decorug says that Mr Cereira joined the hearing by telephone and was disconnected ‘shortly after it commenced’.11 Despite repeated attempts to reconnect, Mr Cereira says he was only reconnected after the hearing had concluded. Therefore, Decorug says it was denied a full opportunity to present its case. [23] According to the transcript of the 24 July 2025 hearing: (a) Mr Cereira appeared for the respondent when the hearing commenced at 2.07pm. (b) Mr Callaghan stepped through his claim and the evidence he was relying on, but said he largely relied on the material set out in his application. (c) The Adjudicator observed that Decorug had not filed material and invited their response. (d) Mr Cereira then said that he had ‘gone through the paperwork’ and ‘spoken to the installers’ and had no difficulty fixing the work, if Mr Callaghan gave access to their installers. (e) Mr Callaghan in reply disputed that he had obstructed Decorug’s installers from returning to rectify the work, contending that: Just on the comment there, that I was uncontactable. I totally disagree with that. As I said, on the advice of the OFT, who acted as a mediator, initially, with Decorug – I gave three dates eventually to Wayne, saying I’m available on these three dates. Please, can you [indistinct] manager come and make your assessments of the work so we try on – can try upon a solution. I never received a response. And when we got – when we went through this process, I think typical of Decorug’s action [indistinct] for mediation, they didn’t even attend the mediation. So my view is there, like, I – there was no sort of effort to try and rectify it and also they didn’t even both to turn up to the mediation. So – and ultimately - - - (f) At 2.13pm (and 20 seconds) the connection to Mr Cereira then dropped out and the Adjudicator stopped the hearing. (g) The hearing support officer tried to reconnect Mr Cereira at 2.13pm (and 45 seconds), leaving a voicemail that a further attempt would be made again shortly and, if the call was not answered, the hearing would proceed in their absence. (h) The second attempt to reconnect Mr Cereira was made at 2.15pm (and 37 seconds), but the call was not answered, and a further voicemail was left that the hearing would then proceed in his absence. (i) From 2.16pm to 2.17pm Mr Callaghan continued his response submission as follows: MR CALLAGHAN: …In response to the respondent’s claim that I was uncontactable, I totally reject that because as per the OFT’s advice, who acted as a mediator when I couldn’t get a response from Decorug – so 11 Submissions filed 31 October 2025. -- 6 of 11 -- 7 they advised me to send an email, just giving some dates when I was available to – to their schedule so that we could agree – Wayne, who was the [indistinct] manager, for him to come out and look because – because he hadn’t been to the property. So making assessments himself, we looked to work towards a solution. I provided three dates in an email on the 30th of June 2024 and I didn’t get a response and I still haven’t had any contact from Decorug to this day. And I think what typifies their attitude towards trying to rectify the situation, if they didn’t appear to the QCAT mediation here [indistinct] just a no show, I appeared, they didn’t. And going back to the fact that I’ve now had to proceed to get someone else in to rectify the works on the instruction of the property manager to rent the property out so that I’m not losing further income [indistinct] opinion was that the floor – there was two reasons that the flooring’s failed. One, the subgrade that was prepared by Decorug was uneven and secondly, it was too wet, which meant that when they tried to apply the new flooring, it wouldn’t bond with it and it was actually pulling away the subfloor that’d been prepared. And this makes sense to me because the installer at the time told us he had another big job down in Melbourne that he had to get to and Decorug were sending him there to do that and my honest opinion is, they – the amount of subgrade that had to be prepared, wasn’t allowed to dry out and it all makes perfect sense because they put a lot of material underneath and it was a rush to get the flooring laid so they could get to the next job and I think from the opinion of another professional installer, that is where the problem lies. (j) The first paragraph of Mr Callaghan’s submission repeated what had been said in Mr Cereira’s presence before the telephone connection cut out. Decorug was not disadvantaged by the fact that this submission was repeated in their absence. (k) Decorug were not present for the submissions as to the subgrade being uneven and ‘too wet’ to bond to the flooring laid atop it. The learned Adjudicator did not interrogate Mr Callaghan on these submissions and proceeded to give his decision and the reasons for it immediately after they were made. (l) The Adjudicator’s decision with reasons was delivered between 2.18pm (and 6 seconds) and 2.20pm (and 49 seconds) and the hearing then concluded. [24] In giving his reasons for the decision, the Adjudicator found that in the absence of any filed evidence to the contrary and given Decorug’s position that it sought orders permitting them to return to repair the work, Decorug had admitted the defects complained of by Mr Callaghan. On appeal, Decorug maintains the position that they ought to have been allowed to return or that the quantum should reflect what they would have spent on the repairs had they been permitted to return. In short, the question of liability was not disputed by Decorug at first instance or on appeal. [25] In the circumstances, the Appeal Tribunal cannot be satisfied that Decorug was disadvantaged or denied a reasonable opportunity to respond to Mr Callaghan’s case as the telephone disconnected because he only missed two minutes of the hearing, and during those two minutes the submissions made as to the cause of the defect were of no consequence because liability was admitted by Decorug. There was therefore no injustice or disadvantage to Decorug that it was disconnected from the hearing -- 7 of 11 -- 8 prematurely because Mr Cereira had apparently concluded his submissions when asked by the Adjudicator what his views were on the application.12 [26] In any event, the Tribunal attempted twice to reconnect Mr Pereira to the hearing, leaving a voicemail that the hearing would proceed in his absence if he did not answer the second call. Section 93 of the QCAT Act permits the Tribunal to do so. [27] There is no merit in this ground of appeal. Ground 3: Office of Fair Trading Determination [28] Decorug contend that the Office of Fair Trading investigated a complaint by Mr Callaghan and determined that no further action would be taken as services had been provided. They acknowledge that what the Office of Fair Trading told Mr Callaghan was different. [29] Decorug says, nonetheless, that it acted on advice received from the Office of Fair Trading and ‘cannot be held responsible for inconsistent correspondence issued by the regulator’.13 [30] There is no merit in this ground of appeal because the dispute resolution procedures of the Office of Fair Trading and the investigations they undertake in regulating the conduct of traders are unrelated to the Tribunal’s civil jurisdiction to determine claims by a consumer against a trader in the minor civil dispute jurisdiction. Ground 4: Genuine Defence on Merits & Ground 5: No prejudice to respondent (law and fact) [31] Decorug contend that the claim has not yet been heard on the merits, but that is not the case. Rather, Decorug are seeking a further opportunity to respond to the claim because it did not file material or argue the quantum at the first hearing. [32] Mr Callaghan’s material listed the amount of his claim and how he had calculated it. His material attached all invoices for the rectification work, and they were relatively detailed. [33] Where: (a) Mr Cereira said at the outset of the hearing that he had read that paperwork and spoken to his own installers; (b) Mr Callaghan’s opening submissions stated that he largely relied on what he had filed; (c) Mr Cereira’s response submission conceded liability; and (d) Mr Cereira did not take the opportunity presented to question quantum at all. His entire response rested on seeking an opportunity to rectify the work. It ought to have been clear to him that such an opportunity had passed, 12 Transcript page 1-3, at line 37. 13 Submissions filed 30 October 2025, [10]. -- 8 of 11 -- 9 it is clear that Decorug did not act in its own interests in properly responding to the claim and in preparing for the hearing. That was a consequence of its own failing and did not arise from a denial of procedural fairness to it. [34] Further, Mr Callaghan will be prejudiced if the matter is reheard because, absent an error by the Tribunal below that caused a substantial injustice to Decorug, final decisions are not merely provisional, and a successful party – Mr Callaghan in this instance – is entitled to the ‘fruits of its judgment’.14 [35] There is no merit in this ground of appeal. Ground 6: Quantum of Award (error of fact) [36] Decorug say that because it never received the documents filed by Mr Callaghan it could not address the quantum of the claim before the ‘default decision’. As stated, Decorug had read the material prior to the hearing and consulted its installers in relation to the claim. [37] Decorug now argue that the claim, and therefore the amount awarded, was inflated because: (a) Leveling costs of $4,270.00 formed part of the sub-floor preparation and the benefit of this would work have been realised in any subsequent flooring installation. On that basis, they should not be rewarded to Mr Callaghan. (b) No depreciation was applied to the value of the flooring, which was laid in 2022- 2023, and it ought to have been. (c) Warranty materials ($294.42) and installer payments ($844.80) were already expended by Decorug and were not taken into account when they should have been. [38] An appeal focuses on whether an error has been made by the Tribunal below limited to what was before the Tribunal below: The conduct of the trial is governed by the questions [then] asked ... a party is, and ought to be bound by the course of the trial.15 [39] It is not open to Decorug to argue on appeal a point which had not been pleaded by them or made an issue of at the trial.16 Decorug did not argue quantum at all at the hearing because it discounted all outcomes other than one where it returned to rectify the defective work. In so doing, it failed to act in its own best interests. [40] In any event, an Appeal Tribunal may not interfere with the findings of fact made in a first instance decision except where those findings of fact are demonstrated to be wrong by incontrovertible facts, or if they are contrary to compelling inferences.17 14 Cooks Construction Pty Ltd v Stork Food Systems Aust Pty Ltd [2008] 2 Qd R 453 at [12]; cited in Hessey-Tenny & Anor v Jones [2018] QCATA 131 at [27]. 15 Grey v Manitoba and North Western Railway Co of Canada [1897] AC 254 at 267. 16 Maxi Cool Pty Ltd V North (1989) 9 MVR 61; O'Brien and Others V Komesaroff (1982) 150 CLR 310. 17 Fox v Percy (2003) 214 CLR 118, 128. -- 9 of 11 -- 10 [41] Put another way, there is no error of law simply in making a wrong finding of fact unless there is no evidence to support that finding.18 [42] The total claim amount was $19,055.46 for a refund and $379.50 as costs for the filing fee. The full sum was awarded to Mr Callaghan. [43] The evidence before the learned Adjudicator on quantum comprised contracts, invoices and receipts for payments for the original work totalling $19,055.46. Mr Callaghan incurred but did not claim any costs for the rectification work. [44] It cannot be said that the decision went against the evidence nor that there was no evidence to support it. [45] On the question of whether the Adjudicator applied in incorrect test by failing to depreciate the award, there is no requirement to apply depreciation to an award of damages. [46] The usual principle of compensation stated in Johnson v Perez (1988) 166 CLR 351 is that the complainant is to be put back so far as money can do it into the same position as if the damage had not occurred. Betterment or an allowance for depreciation may be considered to ensure a party is not put in a better position than if the breach had not occurred in the first place, but only when it is fair to do so. If a party is forced to incur expenditure when otherwise it would not have incurred such expenditure, or has incurred it prematurely, then it may not be fair to reduce for betterment. [47] In Brian Maggen t/as Painters in Paradise v Vels [2021] QCATA 117 the Tribunal considered a claim by an owner against a painter for the cost of replacement carpet after the painter spilled paint on the carpet. The full cost of replacement carpet and underlay was awarded by the Adjudicator, despite the carpet being 15 years old, the Adjudicator having found that: (a) the carpet was in excellent condition, was well cared for and serviceable and would not have required replacement; (b) the carpet had to be replaced in its entirety, and there was no reasonable alternative to replacement such as patching or replacement with old carpet given the lack of available carpet; (c) it was not fair or equitable that the applicant be required to contribute in circumstances where the carpet would not have required replacement having regard to the excellent condition of the carpet; and (d) whilst the carpet was arguably beyond its depreciated life, it was not beyond its serviceable life. [48] The painter’s appeal was dismissed, with the learned Member affirming that there are exceptions to the approach that gains should be deducted from awards of damages to account for betterment, and that if a party has no choice in the available remedy which results in a betterment, then a refusal to account for the betterment can be justified. [49] There is no merit in this ground of appeal. 18 Australian Broadcasting Commission v Bond (1990) 170 CLR 321, 341. -- 10 of 11 -- 11 Should leave to appeal be granted? [50] The grounds of appeal do not have merit and, without an error by the Tribunal below, it cannot be said that a substantial injustice has occurred.19 Further, the claim is not one of general importance such as it would be in the public interest to have it determined on appeal. [51] For those reasons, leave to appeal is refused and the application for leave to appeal is dismissed. 19 Greg Ritchie v Harcourts Broadbeach/Mermaid Waters [2024] QCATA 15. -- 11 of 11 --