Fenson v Gillam[2021] QCATA 29

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   The applicant, Stephen Fenson, has filed an application for leave to appeal or appeal a decision of the Tribunal made on 17 December 2020 that he pay to the respondent, Jodie Gillam, the sum of $1,000.00 (the decision).
2. [2]
   An affidavit of service filed by Mr Fenson records that service of the appeal proceeding has been effected on Ms Gillam. Ms Gillam has not participated in the proceeding and has not complied with any of the Appeal Tribunal’s directions.
3. [3]
   The decision followed a hearing of two matters heard together. The proceedings arose out of a dispute in relation to purchase of a second-hand Peugeot motor vehicle by Ms Gillam from Mr Fenson. Ms Gillam claimed return of a deposit of $1,000.00 and Mr Fenson claimed the balance of the purchase price from Ms Gillam.

Reasons for the decision

4. [4]
   The Adjudicator delivered oral reasons for the decision. In summary, the Adjudicator found that:

   1. (a)
      on 28 July 2019, the parties entered into a contract whereby Ms Gillam would purchase the motor vehicle from Mr Fenson for the sum of $4,500.00 upon the vehicle being issued with a roadworthy certificate (now known as a safety certificate) after completion of work necessary to make the vehicle roadworthy, including being fitted with three new tyres.
   2. (b)
      A deposit of $1,000.00 was paid and was intended to be sufficient to enable works to be completed to make the vehicle roadworthy and to fit the new tyres. The deposit was paid on 28 July 2019.
   3. (c)
      No time frame for provision of the roadworthy certificate was agreed between the parties. It was an implied term of the contract that the roadworthy certificate would be provided in a reasonable time, which the Adjudicator considered to be a period of 14 days.
   4. (d)
      The contract was terminated by Ms Gillam on 13 August 2019 by demand for return of the deposit in a text message giving her bank details.
   5. (e)
      As to whether Ms Gillam’s conduct was a termination of the contract validly effected or whether it amounted to a wrongful repudiation of the contract, it was relevant that, on 9 August 2019, Mr Fenson advised Ms Gillam by text that the vehicle could be collected and that he was happy for her to get a safety certificate. On 10 August 2019, Mr Fenson confirmed that he did not have a safety certificate and that all faults were fixed however the safety inspector had wanted a further fee and ‘stormed off’.
   6. (f)
      The exchange of texts indicates an intention not to be bound by the obligation under the contract to provide a safety certificate. What Mr Fenson is indicating is that he is prepared to leave it up to Ms Gillam to obtain the safety certificate and that she ought to pick up the car without one. No offer was made to offer a new time for getting the safety certificate.
   7. (g)
      The obligation to obtain a safety certificate was an essential condition of the contract. Mr Fenson indicated that he did not consider himself bound by that condition. Ms Gillam was entitled in the circumstances to terminate the contract as she did.
   8. (h)
      There had been a total failure of consideration in that the vehicle was never conveyed, despite payment of $1,000.00. Despite the tyres being fixed to the car, the tyres were never provided to Ms Gillam. As a result of the total failure of consideration, Ms Gillam was entitled to return of the deposit.

Grounds of appeal and submissions

5. [5]
   The grounds of appeal are:

   1. (a)
      failure to take into account all evidence before the Tribunal;
   2. (b)
      there is now proof of a phone call made to Ms Gillam by Mr Fenson; and
   3. (c)
      the Adjudicator relied on a ‘reasonable time frame’ for provision of a safety certificate, even though parts and materials had to be ordered through a specialist outlet.
6. [6]
   In support of the grounds of appeal, Mr Fenson submits that the evidence before the Tribunal not taken into account includes:

   1. (a)
      not only were tyres replaced, but bulbs were changed and front disc rotors and front brake pads were changed and a new key obtained;
   2. (b)
      the receipt provided for the deposit paid by Ms Gillam records work acknowledged as necessary for a safety certificate;
   3. (c)
      it was Ms Gillam’s idea to take the car on holiday and to obtain the roadworthy certificate whilst on holiday;
   4. (d)
      Mr Fenson was willing to allow Ms Gillam to take the car on holiday and to complete the deal on her return;
   5. (e)
      a letter was sent on 12 August 2019 confirming this was the case;
   6. (f)
      Ms Gillam was kept up to date with the progress of work on the car and was provided with receipts as items were fitted to the car; and
   7. (g)
      photographs of the new brake assembly (rotors and pads).
7. [7]
   Mr Fenson submits that the evidence before the Tribunal demonstrates that his conduct was not that of a person who did not intend to honour the contract by failing to provide a safety certificate. He said the reason a safety certificate was not obtained on 10 August 2019 was because the certifier required a further fee which he was not willing to pay.
8. [8]
   Mr Fenson submits that it is not the case that he had no intention of obtaining a roadworthy certificate. He refers to text messages between the parties filed in the Tribunal. I note:

   1. (a)
      on 30 July 2019, Mr Fenson advised Ms Gillam that he would have the safety inspection done on Saturday 3 August. By separate text he said: ‘the only hiccup will be if for some reason it fails the safety and I have to get something fixed! I’ll keep you updated.’ Ms Gillam responded: ‘No stress. I can borrow my dads car next week if so.  I’m sure she’ll be sweet’.
   2. (b)
      On 2 August 2019, Mr Fenson advised Ms Gillam the tyres were on and the safety inspection was booked for 3 August 2019.
   3. (c)
      There is no further text message until 8 August 2019 when Mr Fenson advised he would check the availability of the safety inspector.
   4. (d)
      On 8 August 2019, Ms Gillam offered to phone some same day roadworthy places if everything has been fixed and by later text asked if the car would be ready on Saturday (10 August 2019). Ms Gillam asked if she could organise anything to help speed things up.
   5. (e)
      On 10 August 2019, Mr Fenson advised he did not have a roadworthy certificate because of an argument with the inspector;
   6. (f)
      On 10 August 2019, Ms Gillam sent her bank details for return of the deposit and asked for return of the deposit and said: ‘My family will not let me buy the car without the certificate.’
   7. (g)
      On 10 August 2019, Mr Fenson responded: ‘I was and am not expecting anyone to buy a car without one either!’.
   8. (h)
      On 10 August 2019, Ms Gillam said: ‘please just send the transfer receipt for our deposit ASAP’.
   9. (i)
      On 12 August 2019, Mr Fenson wrote to Ms Gillam stating that he considered an agreement was in place between them and advising he was obtaining a safety certificate from another certifier which was being finalised on 14 August 2019.
   10. (j)
       On 12 August 2019, Ms Gillam again requested return of the deposit.
   11. (k)
       On 12 August 2019, Mr Fenson advised the safety certificate would be sent soon.
   12. (l)
       On 16 August 2019, Mr Fenson advised the car will be ready after 12:00pm tomorrow.
   13. (m)
       On 17 August 2019, the safety certificate issued.
   14. (n)
       On 18 August 2019, Mr Fenson advised Ms Gillam that if he is not contacted in 7 days the car will be re-listed. He confirmed all works complete in accordance with the safety certificate sent 17 August 2019.
   15. (o)
       On 23 August 2019, Mr Fenson advised Ms Gillam he was re-listing the car the next day.

Additional evidence

9. [9]
   Mr Fenson seeks to rely upon additional evidence; however, he has not filed and served an application seeking leave to do so. I am prepared to waive the requirement for a formal application and to treat Mr Fenson’s email of 29 November 2019 as his application for leave.^[1]
10. [10]
    The additional evidence Mr Fenson seeks to rely upon is a record of telephone calls made from his mobile phone. The record shows two telephone calls made to Ms Gillam on 3 August 2019. Mr Fenson submits that at the hearing, the evidence of  Ms Gillam was accepted that she did not receive any advice from Mr Fenson that the vehicle had failed the first roadworthy test on 3 August 2019. Mr Fenson submits that he had no evidence at the time, but he now has evidence that he rang Ms Gillam twice on 3 August 2019.
11. [11]
    The telephone records are not fresh evidence in the sense that the records were not available to Mr Fenson, with the exercise of reasonable diligence, at the time of the hearing below. The records are new evidence. The Tribunal may exercise its discretion to allow that evidence on a rehearing.^[2] The key consideration is whether the additional evidence would have produced a different result if it had been available at the hearing below.
12. [12]
    I do not think evidence of telephone calls to Ms Gillam on 3 August 2019 would have changed the Adjudicator’s reasons for her decision. The Adjudicator did not refer to the events of 3 August 2019 in her reasons for decision. It is apparent that the Adjudicator focussed on Mr Fenson’s communication with Ms Gillam on 10 August 2019 when he advised he did not have the safety certificate. The Adjudicator concluded that, at that point in time, Mr Fenson did not intend to meet the condition of the contract that the vehicle be transferred with a safety certificate.
13. [13]
    I also note that although the phone records reveal that two calls were made, they cannot reveal the content of the conversations. The phone records are of limited value in determining the matters in issue.
14. [14]
    I refuse the application for leave to rely upon additional evidence.

Leave to appeal

15. [15]
    An appeal from a decision of the Tribunal in a proceeding for a minor civil dispute may only be made with the leave of the Appeal Tribunal.^[3]
16. [16]
    Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error and an appeal is necessary to correct a substantial injustice to the Mr Fenson caused by that error.^[4]
17. [17]
    In an appeal against a decision on a question of fact only, or a question of mixed law and fact, the appeal must be decided by way of rehearing with or without the hearing of additional evidence. In deciding the appeal, the Appeal Tribunal may confirm or amend the decision or set aside the decision and substitute its own decision.^[5]
18. [18]
    Mr Fenson has not characterised his grounds of appeal; however, they relate to questions of fact (that is, what actually occurred between the parties) and mixed questions of fact and law (that is, questions about whether the facts satisfy the relevant legal tests).
19. [19]
    A finding of fact will generally not be disturbed on appeal if the evidence supports the inference drawn and the facts found.  However, an appellate tribunal may interfere if the conclusion is contrary to compelling inferences.^[6] Whether a decision is based on findings of fact, which are open on the available evidence, is a question of law.

Is the decision attended by error such that an appeal is necessary to correct a substantial injustice to Mr Fenson caused by the error?

20. [20]
    The specific finding of fact which Mr Fenson asserts was made in error is the finding that Mr Fenson indicated that he did not consider himself bound by the obligation to provide a roadworthy certificate.
21. [21]
    Mr Fenson submits that the decision was made without reference to text messages between the parties and his conduct in purchasing parts and tyres and having them fitted to the vehicle, which revealed his true intention.
22. [22]
    I note that the Adjudicator mistakenly noted the date of termination of the contract as 13 August 2019. The text message she refers to as evidence of termination was in fact sent on 10 August 2019.
23. [23]
    It is true that in her reasons the Adjudicator does not refer to the text exchange between the parties on 10 August 2019, in particular the message from Mr Fenson that he did not expect anyone to buy a car without a safety certificate; and the letter sent on 12 August 2019 advising that he was obtaining a safety certificate from another certifier.
24. [24]
    I consider that the Adjudicator did ignore relevant evidence and that the inference drawn as to Mr Fenson’s intention was not reasonably available on the evidence before her. Once that conclusion is reached, the decision made by the Adjudicator that Mr Fenson was in breach of an essential term of the contract entitling Ms Gillam to terminate the contract, demonstrates an appellable error.
25. [25]
    However, that conclusion is of little aid to Mr Fenson.
26. [26]
    No party has turned their mind to section 23 of the Transport Operations (Road Use Management – Vehicle Standards and Safety) Regulation 2010 (Qld) (‘the Regulation’).^[7] Nor was the Regulation referred to by the Adjudicator.
27. [27]
    Section 23 of the Regulation provides that the owner of a registered SC vehicle (a light vehicle such as the second-hand Peugeot) must not offer the vehicle for sale unless there is a current safety certificate. On the facts, Mr Fenson has advertised the vehicle for sale whilst the vehicle did not have a current safety certificate. Mr Fenson has then entered into an agreement to sell the vehicle.^[8] Mr Fenson is in breach of s 23 of the Regulation. The effect is that any contract entered into by Mr Fenson arising out of his illegal act is unenforceable. The Regulation is intended to protect the public; it prohibits offering and, by reasonable extension, agreement, to sell a motor vehicle without a safety certificate. A contract expressly or impliedly prohibited by statute is void and unenforceable.^[9]
28. [28]
    The result is that Mr Fenson cannot retain
29. [29]
    the deposit paid by Ms Gillam. Because the agreement to sell the vehicle is unenforceable it would be futile for the Appeal Tribunal to consider:

    1. (a)
       whether the sum of $1,000.00 paid by way of deposit is liable to be forfeited in the event of breach of the agreement by Ms Gillam; and
    2. (b)
       whether Ms Gillam is in breach of the agreement.

Conclusion

30. [30]
    Because of the failure to comply with section 23 of the Regulation Mr Fenson has no entitlement to forfeiture of the deposit.
31. [31]
    For that reason, leave to appeal is refused.