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- Unreported Judgment
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Kalisimeras & Anor v Ross & Anor  QCATA 30
jimmy kalisimeras and sarah kalisimeras
alan ross and leoni ross
MCD200 of 2019 Southport
11 March 2020
6 March 2020
Dr J R Forbes, Member
The application for leave to appeal is dismissed.
APPEAL – APPLICATION FOR LEAVE TO APPEAL – purchase and importation of motor vehicle – whether FOB contract – where freight and other costs of importation not included in contract of sale – where purchasers unable or unwilling to bear freight and other costs – where such costs not initially paid by Applicant purchasers – where second agreement for loan of moneys to purchasers to defray such costs – whether loan agreement made with vendor or Respondents – where primary Tribunal prefers claim that debt due to Respondents – whether findings of fact and credit affected by legal error – where no such error established – where leave to appeal dismissed
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 143(4)
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Cypressvale Pty Ltd v Retail Shop Leases Tribunal  2 Qd R 462
Devries v Australian National Railways Commission (1993) 177 CLR 472
Drew v Makita (Australia) Pty Ltd  2 Qd R 66
Fox v Percy (2003) 214 CLR 118
JFM v QFG and KG  QCA 228
Maronai v Burns  WASCA 165
Mineralogy Pty Ltd v Sino Iron Pty Ltd (No 16)  WASC 340
Minister for Immigration and Citizenship v SZMDS & Anor (2010) 240 CLR 611
Montgomerie v United Kingdom Steamship Association  1 QB 370
Myers v Medical Practitioners Board (2007) 18 VR 48
N E Timber Importers v Arendt & Sons and Impresa Cerrito  2 Lloyds Rep 513
Perpetual Trustee Company Limited v Nebo Road Pty Ltd & Ors  QSC 283
R v Sakail  1 Qd R 312
Secretary of State for Education and Science v Tameside Metropolitan Borough Council  AC 1014
Threlfall v Matthew Goode & Co Ltd (1919) 26 CLR 217
Toula Holdings Pty Ltd & Ors v Morgo’s Leisure Pty Ltd & Ors  QCA 201
Appellant: Mr W Davis, solicitor, of Stonegate Legal.
Respondent: Ms L Ross in person.
REASONS FOR DECISION
- In many cases at first instance the law is tolerably clear, while the facts are complex or confused. This is such a case.
A complex car purchase
- Mr and Mrs Kalisimeras (`the Applicants’) desired to purchase a Nissan motor vehicle at auction in Japan. They took elaborate steps to avoid or reduce losses due to the currency exchange rate.
- The prospective vendor was a Tokyo-based company, Online Garage Inc, (`Online’) the alter ego of Peter Michael Grice.
- The Applicants’ bank declined to advance a loan for the purchase until the vehicle arrived in Australia. The loan moneys were then released to Grice’s parents, Mr and Mrs Ross (`the Respondents’). The Respondents transferred the funds to a Mr Jason Yu, who initially paid the purchase price. Yu, in turn, remitted them to the vendor Online.
- Pursuant to a contract of sale dated 28 January 2019 Online despatched the vehicle to the Applicants in South Australia. However, so as to comply with a time limit set by the Applicants’ bank, the vehicle was diverted to Brisbane, and sent overland to the Applicants in Adelaide.
Mr and Mrs Ross become involved
- The Respondents, who reside in Brisbane, came into the picture when the vehicle was unexpectedly landed in Brisbane. It then became convenient for Online’s Mr Grice to ask the Respondents – his parents - to liaise with Yu and the Applicants in Australia. In these circumstances it is difficult to escape the conclusion that, so far as the contract of sale is concerned – but another contract is considered below - the Respondents were Online’s agents. Indeed they are so described by the Adjudicator at several stages of the hearing, without correction or objection by the Respondents.
- A somewhat opaque portion of the reasons for decision reads:
I am satisfied that the parties to the contract [of sale] were as follows: Online Garage Inc, which is a Japanese corporate front for Mr Grice, who buys and exports these vehicles from Japan; [the Applicants] as the purchasers of the vehicle; and [the Respondents] as agents for Mr Grice and his Japanese company, to whom all payments had to be made in Australia.
Agents for the initial transaction
- It may be that the expression `parties’ is used here in the ordinary-language sense of `dramatis personae’ or `people involved’. As agents for a disclosed principal the Respondents were clearly not parties to the contract of sale. The Applicants’ carefully constructed submissions to this effect are clearly correct.
- As noted above, the vehicle was sold and consigned to the Applicants, purportedly FOB (`free on board’). If so, it followed that the sale was completed at the seller’s shipping dock, and that freight charges, insurance, registration fees, customs dues, land transport costs and other incidentals amounting to $6634 (`the extras’) were the Applicants’ responsibility.
- But despite the FOB notation on the relevant invoice, that document sets out detailed charges for international freight, customs duties, safety certificate etcetera. On the other hand, the Contract of Sale, bearing the same date as the invoice, makes no mention of those items, and simply records a sale price of $38,000, less deposit, which the Applicants, in the roundabout way outlined above, duly paid to Online.
- However, Online assumed that the transaction was, after all, FOB, and treated the extras as the Applicants’ responsibility. The Applicants did not accept that position. They complained bitterly that that they were `on a disability pension [and we] can’t afford to pay any more than what we paid’.
Principals for second agreement
ADJUDICATOR WALSH: ... [B]etween whom was the agreement for the payment of ... the extra cost of shipping ...?
MS ROSS: Peter [Grice] asked me in January if I could pay the shipping fees for an Elgrant for one of his clients who had overspent.
- On 23 February 2019 the Respondents sent this message to the Applicants:
Hi Jimmy. I was wondering when you would send me some more money that is owing. It’s been nearly 7 weeks since I received $200. We have to work out a payment plan. [We] have outlaid $6,634 less the $200 that you paid on 5/2/19’.
- The Respondents disavowed any agreement to accept payment at the rate of $25 per week: `[We] would be over 80 by the time it was paid back’.
- The Applicants admitted that they paid $200 to the Respondents’ account on 5 February 2019 `as a goodwill gesture”. The Adjudicator found that to be –
... part performance of the contractual obligation of the Kalisimerases to pay these additional costs. I therefore find that Mr and Mrs Kalisimeras have the obligation still to pay the amount claimed to Mr and Mrs Ross as set out in the minor debt application of the 18th of March 2019.
- This finding implies a second, `separate agreement, not part of the original purchase contract’ involving the Respondents as parties, not agents. It is effectively an acceptance by the Tribunal of the Respondents’ case. It is not a matter of advanced cynicism to wonder why the Respondents agreed to lend a substantial sum to the Applicants, who were not, after all, the most co-operative of clients. Nevertheless, there was evidence, including corroborative material, from which that conclusion could be drawn.
Decision on second agreement
- Accordingly, on the issue of a separate loan by the Respondents to the Applicants the Adjudicator, as primary decision maker, preferred the evidence of the Respondents to that of the Applicants. That was his function; it is not a prerogative of the appeal tribunal.
Nature and limits of leave application
- An application for leave to appeal is not an opportunity to retrace and `second guess’ findings of fact and credit made by the trial judge. It is not an appellable error to prefer one version of the facts to another, or to give less weight to one party’s case than he or she thinks it should receive. Findings of fact will rarely be disturbed if they have rational support in the evidence, even if another rational view is available. Where reasonable minds may differ, a decision cannot be called erroneous simply because one conclusion is preferred to another possible view.
If there is evidence, or if there are available inferences which compete for the judge’s acceptance, no error of law occurs simply because the judge prefers one version of evidence to another. That is his function ... Even if the evidence is strongly one way the appeal court may not intervene simply because it reaches a different conclusion, and this, even if it regards the conclusion of the trial judge against the weight of evidence.
- As Pincus JA observed in JFM v QFG and KG:
It appears to me that a factual conclusion cannot be treated as infected by legal error unless it is supported by no evidence whatever, or unless it is clear beyond serious argument that it is wrong. That this Court merely disagrees with a factual view of a tribunal does not show that a decision based on it is legally erroneous.
- In Devries v Australian National Railways Commission the High Court took an opportunity to remind courts of appeal that –
More than once in recent years, the Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against – even strongly against – that finding of fact. If the trial judge’s finding depends to any substantial degree on ... credibility, the finding must stand unless it can be shown that the trial judge ... has acted on evidence which was inconsistent with facts incontrovertibly established ... or which was glaringly improbable.
- The reasons of hard-pressed tribunals are not necessarily judged by the standards of superior courts. However the learned Adjudicator gave cogent reasons for his preference of the Respondent’s claim of a loan by them to the Applicants. With respect to the Brisbane-Adelaide component of the freight, he noted Mrs Ross’ remark to the Applicants, and the contemporary absence of dissent on their part:
Looks like I’m paying for the carrier, but I expect to be paid back pronto, Jimmy.
- There was also evidence of part payment.
- The original contract for purchase of the vehicle is not in dispute. The decision in question concerns the second agreement, concerning the Respondents’ payment of the Applicants’ `extras’ by way of loan. In the light of the authorities above I can discern no appellable error therein. The application for leave must be dismissed.
- In view of the above decision it is unnecessary to determine the limitation issue raised by the Respondents.
- The application for leave to appeal is dismissed.
Transcript of hearing 9 August 2019 (`T”) page 6 line 29; page 15 lines 21-23.
See for examples T page 21 line 6, page 22 lines 1-24, page 23 lines 1-11, page 31 lines 27-47, page 32 lines 1-40.
T page 54 lines 24-28.
Bowstead on Agency 13th edn 1968 at 373; Montgomerie v United Kingdom Steamship Association  1 QB 370 at 371; N E Timber Importers v Arendt & Sons and Impresa Cerrito  2 Lloyds Rep 513; Perpetual Trustee Company Limited v Nebo Road Pty Ltd & Ors  QSC 283 at .
See Invoice in evidence dated 28 January 2019: `The above price is FOB and does not include shipping.’
Threlfall v Matthew Goode & Co Ltd (1919) 26 CLR 217; Mineralogy Pty Ltd v Sino Iron Pty Ltd (No 16)  WASC 340 at .
T page 35 lines 4-5.
T page 56 lines 4-8.
As they now realise: `I think it was a huge lesson’ – T page 63 line 3.
T page 15 lines 28-34.
Ie the male Applicant.
T page 41 line 1 (Mr Ross).
Annexure to Response filed 2 April 2019 page 1.
T page 56 lines 4-8.
T page 21 lines 37-38 (Adjudicator).
Myers v Medical Practitioners Board (2007) 18 VR 48 at .
Fox v Percy (2003) 214 CLR 118 at 125-126.
Minister for Immigration and Citizenship v SZMDS & Anor (2010) 240 CLR 611 at ; Secretary of State for Education and Science v Tameside Metropolitan Borough Council  AC 1014 at 1025.
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 151 per Kirby P.
 QCA 228 at 21.
(1993) 177 CLR 472 at 479; followed in Toula Holdings Pty Ltd & Ors v Morgo’s Leisure Pty Ltd & Ors  QCA 201 at -..
Drew v Makita (Australia) Pty Ltd  2 Qd R 66 at ; Cypressvale Pty Ltd v Retail Shop Leases Tribunal  2 Qd R 462 at 485; Maronai v Burns  WASCA 165 at .
Corroborative evidence need not cover all the principal evidence: R v Sakail  1 Qd R 312 at 317.
T page 44 lines 29-31; page 56 lines 23-26.
T page 56 lines 4-5.
QCAT Act s 143(4)(b).
- Published Case Name:
Kalisimeras & Anor v Ross & Anor
- Shortened Case Name:
Kalisimeras v Ross
 QCATA 30
11 Mar 2020