Not all evidence is created equal

Tower Cranes International Pty Ltd v Boland Cranes Pty Ltd [2021] QDC 183

Michael Creedon, Alexandria Hammerton, Mikayla Colak

Key takeouts

A judge can accept and prefer evidence adduced by one party and doing so does not necessarily mean that other evidence has been ignored.  Decision makers must make an assessment as to the need to provide sufficient reasons for making a determination. A balance has to be struck between a basic explanation to be given to the parties and an extensive, detailed recitation as to how a decision has been reached.


Tower Cranes International Pty Ltd (Tower Cranes) supplied a second hand inverter, which was a crane part, to Boland Cranes Pty Ltd (Boland) who was in the business of hiring cranes for construction sites.

The inverter was supplied, received and installed on 23 March 2016.  During and after installation, Boland alleged that the inverter displayed a number of defects, including shuddering, brake release failures and rusting.

Attempts to fix these defects were unsuccessful, and by 9 June 2016 the inverter, and therefore the crane, stopped working altogether.

In the Magistrates Court

Boland sought damages for breach of contract or, alternatively, negligent misrepresentation or breach of the Australian Consumer Law (ACL) contained within the Competition and Consumer Act 2010 (Cth).

The primary judge found that Tower Cranes had breached the contract between the parties by supplying Boland a second-hand inverter that was not fit for purpose and awarded damages in Boland’s favour.

The appeal

Tower Cranes appealed this decision on the grounds that the primary judge had erred by:

  • imposing an onus on Tower Cranes to prove on the balance of probabilities that the inverter was of acceptable quality and fit for the disclosed purpose of use which had the effect of reversing the onus of proof;
  • relying on evidence from after the time of the supply, as the time at which goods are to be of acceptable quality or fit for the disclosed purpose or use is the time at which the goods are supplied to the consumer (and not after that time);
  • finding that the inverter was not of acceptable quality or fit for the disclosed purpose of use where the evidence adduced by Tower Cranes was that the inverter was functional prior to its supply;
  • failing to draw an inference from Tower Cranes’ expert evidence that the installation of the inverter contributed to the alleged defects or adverse performance; and
  • failing to draw an adverse inference from Boland’s unexplained failure to call a relevant witness in accordance with established legal principles.

Tower Cranes consistently raised arguments against the primary judge’s decision in relation to jurisdictional error and a failure to give full and adequate reasons.


The District Court dismissed the appeal, having not identified any error or mistake in law in the primary judge’s decision.

Jarro J held that the primary judge had merely preferred Boland’s evidence over Tower Cranes’ evidence.  The primary judge had found Boland’s evidence to be credible and reliable and had referred to this evidence in his reasons.  On the other hand, the primary judge had doubts as to the credibility and reliability of the evidence adduced by Tower Cranes.

His Honour held that the primary judge had properly considered the evidence led by both parties, given sufficient reasons for granting judgment in favour of Boland and did not fall into any error in making the decision. However, his Honour held that the ground for affirming the decision was that a consumer guarantee of acceptable quality and fitness for purpose applied to the supply of the inverter by virtue of the ACL.  The evidence enabled the primary judge to form the view that there were defects which rendered the inverter not fit for purpose.  AS a result Tower Cranes had breached the consumer guarantee and Boland was entitled to recover its losses by way of damages under section 236(1) of the ACL.

Glossary Term