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Faisal v Karimi[2021] QCATA 150

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Faisal v Karimi [2021] QCATA 150

PARTIES:

Ahmed jaman faisal

(appellant)

v

majId karimi

(respondent)

APPLICATION NO/S:

APL312-20

ORIGINATING
APPLICATION NO/S:

MCDO 1403 of 2019 (Brisbane)

MATTER TYPE:

Appeals

DELIVERED ON:

15 December 2021

HEARING DATE:

10 December 2021

HEARD AT:

Brisbane

DECISION OF:

Member Gordon

ORDERS:

  1. Leave to appeal is granted.
  2. The appeal is allowed and the order made in MCDO 1403 of 2019 (Brisbane) on 3 September 2020 is set aside.
  3. Application MCDO 1403 of 2019 (Brisbane) is remitted to the minor civil dispute list for reconsideration before a different Adjudicator.
  4. A copy of the transcript of the hearing on 3 September 2020 which has been obtained by the Appeal Tribunal shall be put on the minor civil dispute file and may be taken in evidence at the remitted hearing.
  5. At the remitted hearing the tribunal may need to know the probable cost of repair of the oil leak on the car (evidenced by a quote from a suitable repairer) and the parties are encouraged in advance of the hearing to contact each other to try to agree such probable cost. 
  6. If Majid Karimi wishes to obtain his own quote for this work then it is directed that:
  1. (a)
    he should notify Ahmed Jaman Faisal of this wish;
  2. (b)
    upon Mr Faisal being notified as above, he shall within 7 days of such notification, propose to Mr Karimi three dates and times (which shall all be reasonable) when the car may be inspected and shall identify a reasonable place for the inspection;
  3. (c)
    Mr Faisal shall permit Mr Karimi and his mechanic to inspect the car and take photographs of the car on the date and time and at the place chosen by Mr Karimi from those suggested by Mr Faisal.
  1. If either party needs to apply to the tribunal for further directions such application shall be made to the Registry conducting the minor civil disputes list and not to the Appeal Tribunal.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – PARTICULAR CASES INVOLVING ERROR OF LAW – where during an oral hearing of a minor civil dispute about a defect in a car, the Adjudicator appeared to find in the applicant’s favour but then sought to achieve agreement as to a suitable order – where the Adjudicator suggested a particular order involving repairs to the car but only one of the parties agreed to it – where the Adjudicator made the order anyway – where the order did not correspond with the rights and obligations of the parties – whether it should be set aside

Australian Consumer Law, s 259, s 262, s 263

Motor Dealers and Chattel Auctioneers Act 2014 (Qld), s 9, s 13

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 13, s 146

Owen v Menzies [2012] QCA 170

Russo v Belcar Pty Ltd [2011] SASFC 151

APPEARANCES &
REPRESENTATION:

 

Applicant:

Self-represented

Respondent:

Self-represented

REASONS FOR DECISION

  1. [1]
    This appeal concerns a car purchased by the appellant, Ahmed Jaman Faisal, from the respondent, Majid Karimi, who is a dealer in motor vehicles.  Because of a defect in the car, Mr Faisal came to the tribunal seeking a refund for his purchase.  At the hearing, the Adjudicator said that Mr Faisal was not entitled to a refund.  Then, instead of assessing the appropriate monetary compensation, against Mr Faisal’s wishes the Adjudicator made an order providing for Mr Karimi to repair the defect in the car.
  2. [2]
    In this appeal, Mr Faisal says that the Adjudicator should have granted him the refund, and he says that he was not given sufficient opportunity at the hearing to explain why he was entitled to a refund because having heard the evidence the Adjudicator made a decision without calling for argument.  He says that the final order was unfair and is likely to cause difficulties. 
  3. [3]
    For this appeal, I have needed to consider whether the order that the Adjudicator made was outside the tribunal’s powers.
  4. [4]
    The following facts are not in dispute. 
  5. [5]
    On 28 August 2019 Mr Faisal purchased the car, a Holden Cruze sedan, for $5,200 from Mr Karimi a motor dealer.  At that time it had 109,252 kms on the odometer.  Although at the time of sale there was a safety certificate for the car, in fact there was an oil leak from the engine.  Mr Faisal discovered this the day after the purchase, that is on 29 August 2019, when he had the car inspected.  Mr Faisal contacted Mr Karimi and asked for a full refund.  Mr Karimi refused the refund but offered to arrange for repairs at his own expense.  Since at the time of sale the car was no more than 10 years old and had travelled less than 160,000 kms, this was Mr Karimi’s obligation under the statutory warranty in the Motor Dealers and Chattel Auctioneers Act 2014 (Qld).
  6. [6]
    Mr Faisal did not permit Mr Karimi to repair the car under the statutory warranty because he wanted a full refund. 
  7. [7]
    Instead, the next day, that is 30 August 2019, Mr Faisal presented a claim to the tribunal claiming return of the purchase price of $5,200 plus $290 which he had spent.  In the material submitted to the tribunal he said that although the dealer had offered to repair the oil leak he wanted a refund because of what he regarded as the dealer’s deception in providing an incorrect safety certificate at the time of sale.
  8. [8]
    The difficulty is that Mr Faisal did not return the car to Mr Karimi.  Instead he kept it and used it.  By the time of the tribunal hearing, which was on 3 September 2020, he had been using the car for a year and had travelled some 14,000 kms in it.
  9. [9]
    What happened at the hearing on 3 September 2020 appears from the transcript which the Appeal Tribunal has obtained.  Mr Faisal has obtained his own transcript.  However, Mr Karimi does not have a transcript.  The Appeal Tribunal was unable to provide Mr Karimi with a copy of the transcript due to copyright and cost reasons.  I am satisfied that this imbalance is not unfair to Mr Karimi in the circumstances.
  10. [10]
    At the hearing, the Adjudicator heard from both parties and considered their written material.  The order made was:
  1. The Respondent will, within 7 days, propose to the Applicant 3 separate and independent registered mechanical businesses to repair his motor vehicle.
  1. Within a further 7 days the Applicant will deliver his motor vehicle to the mechanic of his choice with written instructions for the repair of the oil leak at the Respondents cost and the Respondent will also pay the cost of that mechanic producing a new roadworthy certificate at that time.
  1. [11]
    The Adjudicator added to the above order that the parties could request that this matter be brought back to the Adjudicator.  Since the order was a ‘final decision’ because it finally decided the matters the subject of the proceeding,[1] this permission to return to the Adjudicator must have been to facilitate a possible ‘renewal’ of the order, so that it could be revised if there were practical problems with compliance.[2]
  2. [12]
    The way the Adjudicator reached this result was as follows.  Having heard from the parties, the Adjudicator expressed this view:[3]

Mr Faisal, I don’t think I can give you a refund.

You should have dropped this car back to his business and walked away and at that stage I could have given you a refund.  But we’ve now put an extra 14,000 kilometres on it and its value has changed.  You see, you have had the benefit of this car for that amount of time.

  1. [13]
    Later the Adjudicator said to Mr Faisal:

You are going to have to have this car repaired.  It’s gone too long.  I’m sorry.  Even though it’s our fault, it’s too long.  We’re going to have to go for repair.

  1. [14]
    Having decided that there had been a breach of contract but that the buyer was not entitled to a refund, normally the Adjudicator would consider monetary compensation, probably based on the reasonable cost of repairs.  Here however, Mr Faisal had not obtained a quote for the repairs.  He stated that he had been told the repairs would cost $3,200.  But Mr Karimi considered it would only be $35 or $40 for a tappet cover gasket and one hour’s work. 
  2. [15]
    The problem facing the Adjudicator was one which often happens in these types of cases.  Monetary compensation needed to be assessed, but there was little reliable evidence on which to assess it. 
  3. [16]
    When this happens there are really only three fair options bearing in mind a breach of contract has been shown and the tribunal when hearing a minor civil dispute has an obligation to make orders that it considers fair and equitable to the parties to the proceeding in order to resolve the dispute,[4] and as far as is practicable, to ensure that all relevant material is disclosed to the tribunal and to enable it to decide the proceeding with all relevant facts.[5]  The tribunal could either adjourn the matter for the parties to obtain quotes, or do its best to assess the correct level of compensation from the available evidence, or offer the parties a chance to agree what order could be made. 
  4. [17]
    Here the Adjudicator seemed to attempt this third option, but then imposed an order on the parties despite no agreement being reached.  One difficulty was that the end of the hearing was necessarily rather rushed because Mr Karimi said that he only had 3 minutes charge left on his mobile phone.  This may have disturbed the usual process of evidence – submissions – factual findings (with reasons for these) – application of the law to the factual findings (with reasons) – final decision.
  5. [18]
    The Adjudicator said that he had a ‘suggestion’.[6]  Firstly he checked with Mr Faisal whether anything else (other than the oil leak) was wrong with the car.  Mr Faisal did not say that there was any other fault.[7]  Then the Adjudicator told the parties: ‘this is what we’re going to do’.[8]  Then he checked with Mr Karimi that he had a number of registered motor vehicle mechanics that he used.[9]  Then he ran through the proposed order in the same terms as the final order above. 
  6. [19]
    During the discussion about the order the parties came close to agreement.  Mr Faisal said that Mr Karimi can pay the money directly to the mechanic and that he was happy with that.[10]  Mr Karimi said that the proposed order would be fine with him and that he would pay for the work directly to the mechanic, including paying for a safety certificate.[11]
  7. [20]
    But Mr Faisal then said that he preferred to have the car repaired by a Holden dealer rather than a mechanic nominated by Mr Karimi.[12]  He explained that the reason for that was that the safety certificate given with the car at the time of sale had not been accurate.[13]  Impliedly he was saying that he did not trust Mr Karimi.

Was there power to make the order?

  1. [21]
    This meant that there was no agreement between the parties as to the terms of the order.  I need to consider therefore whether the Adjudicator had the power to make the order that he did.  The substance of the order was that it required Mr Karimi to repair the oil leak in the car and obtain a safety certificate for it at his own expense, and required Mr Faisal to co-operate in this.
  2. [22]
    When making a final decision in a minor civil dispute, only certain types of order can be made.[14]  One such order which can be made is the type here – requiring a respondent to make a repair.[15]  The other parts of the order made here could be made by the Adjudicator as conditional or ancillary orders.[16]
  3. [23]
    However, the difficulty here is that in a minor civil dispute the tribunal cannot make an order which does not correspond with the rights and obligations of the parties.  This is clear from what was said in Owen v Menzies [2012] QCA 170 where it was submitted by counsel that in a minor civil dispute, the provisions of section 13 of the QCAT Act requiring the tribunal to make orders that it considers to be ‘fair and equitable’ meant that the tribunal was not obliged to apply the law.  This was rejected by the Court of Appeal who said that the tribunal had an implied obligation ‘to make its determinations in accordance with the parties’ legal rights and obligations’.[17]
  4. [24]
    It is generally thought that in a minor civil dispute the tribunal has power to make an order by consent.[18]  It seems likely, although I am not deciding this, that a consent order in a minor civil dispute does not have to correspond with the rights and obligations of the parties, but can include other things going beyond or less than those rights and obligations.
  5. [25]
    But here there was no agreement, and the Adjudicator was aware of this, which is why the order was not expressed as made ‘by consent’. 
  6. [26]
    Hence it is important to see whether the order made by the Adjudicator corresponded with the rights and obligations of the parties.  If not, then the order would be beyond outside the tribunal’s powers.
  7. [27]
    Here the Adjudicator did not give any reasons for the decision as would be usual, so this makes it more difficult on appeal to understand the rights and obligations which arose from the factual findings.

Position under Australian Consumer Law

  1. [28]
    It seems clear that the Adjudicator thought that the oil leak was sufficiently serious to be a ‘major failure’ under the Australian Consumer Law.  This appears from the statement by the Adjudicator that if Mr Faisal had returned the car and walked away on finding the defect he would have been entitled to a refund.
  2. [29]
    The process that the Adjudicator was referring to in this passage is that in section 259(3)(a) of the Australian Consumer Law under which, in the case of a major failure, the consumer may notify the seller that he is rejecting the goods and why this is so.  The right to reject is made subject to section 262 which lists a number of eventualities which will cause the right to reject to be extinguished, none of which happened here.
  3. [30]
    It is clear that the Adjudicator thought that Mr Faisal had not rejected the car under section 259(3)(a).  This comes from the Adjudicator’s expressed view that Mr Faisal had lost the right to a refund.
  4. [31]
    This finding was clearly open the Adjudicator.  The evidence given by Mr Faisal about this was:

.. then after it failed the safety certificate inspection test, I have contacted Mr Karimi and that, you know, this car doesn’t pass or got the certificate or safety certificate, so at this point we had a conversation over the phone, and he offered me to bring the car to him and to fix it.  And eventually I have refused that offer that no, I don’t want the car to get fixed, I want the car to be refunded – to be returned and I want to get my money back, and he declined that.  And so from there on, as he declined to give refund, I have lodged a complaint to QCAT, and this is where we are.[19]

.. I have contacted him, and he didn’t want the car back as refunded.  So he didn’t accept – agreed that he will refund the money.  He said he will fix the car, but he is not going to refund the money.  Then in that case there’s no point in bringing the car back to him because he didn’t agree to what I was asking for.[20]

  1. [32]
    Here Mr Faisal is describing his attempt to persuade the dealer to accept the car back and refund the purchase price.  When the dealer refused to do this, instead of rejecting the car Mr Faisal kept the car and looked for redress through the tribunal. 
  2. [33]
    The common law rules applicable to rejection of goods were stated in Russo v Belcar Pty Ltd [2011] SASFC 151 to be that ‘a rejection of goods must be clear and unequivocal and the whole of the buyer’s conduct will be relevant to the issue’.[21]
  3. [34]
    One good reason why the rejection must be clear and unequivocal is because the result of rejection is automatic and profound.  The result is given in section 263.  Three things happen, seemingly independently of each other.  Of particular importance is section 263(6) which provides that on rejection, the property in the goods revests in the supplier on the notification of the rejection.  Consistent with this, section 263(2) requires the consumer to return the goods to the seller, and section 263(4) requires the seller to refund the price to the buyer if this is what the buyer wants.
  4. [35]
    It is a question of fact whether or not a consumer has rejected the goods, so that the legal consequences set out in section 263 happen.  One sufficient way to do this in the case of a purchase of a car where the buyer and seller are in close proximity as here, would have been if Mr Faisal had left the car with its keys with Mr Karimi as the Adjudicator said.  In some cases, less than this would be adequate.  But clearly, what Mr Faisal actually did, to keep the car and drive it 14,000 kms over the following year, was completely inconsistent with rejection.  In particular, it was completely inconsistent with the consequence of rejection in section 263(6) whereby rejection causes the ownership of the car to return to the seller.
  5. [36]
    Therefore I approach the appeal on the basis that Mr Faisal did not reject the car under section 259(3)(a).
  6. [37]
    Where goods are supplied with a major failure then if the buyer does not reject the goods then the buyer may seek compensation under section 259(3(b) for ‘any reduction in the value of the goods below the price paid’ and under section 259(4) for other consequential losses.
  7. [38]
    This is a right to a monetary amount payable by the seller.  An order that the seller repair the goods does not satisfy that right.  So, unless the order made by the Adjudicator corresponded with the rights and obligations of the parties in some other way, there was no jurisdiction to make the order that was made.

The rights and obligations not relying on Australian Consumer Law

  1. [39]
    The order which was made could not have been under the Motor Dealers and Chattel Auctioneers Act 2014 (Qld) because the right of repair for a defect under that Act is triggered by written notice of the defect given before the end of the warranty period and delivery of the car to the dealer or a nominated repairer so that the repair can be done.[22]  Only if the dealer refuses to repair can the tribunal order the dealer to repair.[23]  This did not happen here – Mr Karimi agreed to repair, but it was Mr Faisal who refused to accept this (because he wanted a refund).
  2. [40]
    Even if as was submitted by Mr Faisal at the appeal hearing, that the matter should be dealt with under the law of misrepresentation, the same result is obtained.  Mr Faisal has no right to a repair, and there is no continuing obligation on Mr Karimi’s part to repair.

Conclusion in the appeal

  1. [41]
    It must follow that the Adjudicator had no jurisdiction to make the order that was made.  I must give the appellant leave to appeal, allow the appeal and set aside the order made by the Adjudicator.
  2. [42]
    Since there was an error of law, this appeal needs to be disposed of under section 146 of the QCAT Act.  Since on the apparent factual findings it is not possible to substitute a decision, the application will have to be remitted back to the tribunal for reconsideration.  Since there was an allegation in the appeal of procedural unfairness it is best if the application is heard by a different Adjudicator.

Footnotes

[1]  This is the definition of a ‘final decision’ in Schedule 3 to the Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

[2]  Under section 133 of the QCAT Act.

[3]  Transcript 1-8 line 44.

[4]  Section 13(1) of the QCAT Act.

[5]  Section 28(3)(e) of the QCAT Act.

[6]  Transcript 1-9 line 13.

[7]  Transcript 1-9 line 17 to 1-10 line 19.

[8]  Transcript 1-10 line 19.

[9]  Transcript 1-10 line 24.

[10]  Transcript 1-11 line 23.

[11]  Transcript 1-11 lines 15, 25 and 43.

[12]  Transcript 1-12 line 1.

[13]  Transcript 1-12 line 33.

[14]  The list of orders which can be made is in section 13(2).

[15]  Section 13(2)(a)(iii).

[16]  Permitted under section 114 of the QCAT Act.

[17]  [13], Chief Justice de Jersey with whom Margaret McMurdo P and Muir JA agreed.

[18]  Such power probably arises from sections 9(1), 9(4), 11, and 13(1) of the QCAT Act, in the light of section 4(b) which requires the tribunal to encourage the early and economical resolution of disputes.

[19]  Transcript 1-2 line 40.

[20]  Transcript 1-3 line 15.

[21]  The Full Court of the Supreme Court of South Australia, [11] and [101].

[22]  Schedule 1, section 9.

[23]  Schedule 1, section 13.

Close

Editorial Notes

  • Published Case Name:

    Faisal v Karimi

  • Shortened Case Name:

    Faisal v Karimi

  • MNC:

    [2021] QCATA 150

  • Court:

    QCATA

  • Judge(s):

    Member Gordon

  • Date:

    15 Dec 2021

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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