Holmes v Fartash[2022] QCATA 46

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   Mr Holmes purchased a BMW motor vehicle from Aria Motors Pty Ltd (Aria) in October 2019 for $13,900.
2. [2]
   Mr Holmes claimed soon after purchase he discovered certain problems with the motor vehicle, particularly with respect to timing chains, and asked Aria to fix them. Aria agreed to replace a top timing chain but refused to replace two others. Aria maintained none of the chains actually required replacement but agreed to replace the top most as a matter of good customer relations.
3. [3]
   Mr Holmes then arranged and paid for the replacement of the bottom two chains and claimed the costs from Aria, which claim was refused.
4. [4]
   Mr Holmes commenced proceedings in the tribunal’s minor civil dispute jurisdiction against Aria seeking recovery of an amount of $9,500 representing the cost of replacing the two timing chains and further the quoted cost of repairing the motor vehicles air-conditioning system, which he maintained was not working.
5. [5]
   Subsequent to commencement of the proceeding as a minor civil dispute the matter was transferred to the Motor Vehicle List for hearing. The hearing took place before an Adjudicator on 14 July, 2020 and the Adjudicator delivered his reasons for decision dismissing Mr Holmes’ claim against Aria on 7 October, 2020.
6. [6]
   Mr Holmes now applies to the Appeal Tribunal to overturn that decision, though he has commenced the appeal against the wrong party, Mr Fartash. Mr Fartash
7. [7]
   Mr Holmes initially pursued three grounds of appeal. The first may be categorised as an error of law. The other two, errors of fact or errors of mixed law and fact.
8. [8]
   Because the appeal concerns a question of fact or question of mixed fact and law, the appeal must proceed by way of rehearing with or without hearing additional evidence subject to leave to appeal being granted first.
9. [9]
   Leave to appeal will usually only be granted where an appeal is necessary to correct a substantial injustice to the appellant and where there is a reasonable argument that there is an error to be corrected.^[1]
10. [10]
    The ground of appeal involving a claimed error of law needs no initial leave to appeal.

Grounds of appeal

1. (a)
   The Adjudicator failed to take into consideration judicial precedents associated with three other court matters where Mr Fortash pleaded guilty to breaching the Australian Consumer Law and the Motor Dealers and Chattel Auctioneers Act 2014.
2. (b)
   The Adjudicator erred in finding that one of the three timing chains was covered by warranty and therefore replaced but not the other two.
3. (c)
   The Adjudicator erred in finding the air-conditioning system was repaired when it was not.

11. [11]
    At the hearing of the appeal Mr Holmes said he would not be pursuing ground three. This means grounds one and two only need be considered.
12. [12]
    It is appropriate to consider the claimed error of fact or mixed law and fact, ground two, first, after dealing with fresh evidence sought to be led on the appeal for the first time.

Fresh evidence

13. [13]
    Attached to Mr Holmes’ application for leave to appeal and appeal the number of documents which had not been handed up to the Adjudicator at hearing.
14. [14]
    Generally fresh evidence will only be allowed on appeal when it could not, by reasonable diligence, have been obtained for the original hearing, it might have produced an opposite result and is apparently credible.^[2]
15. [15]
    Mr Holmes does not explain why the evidence now sought to be presented was not available for the hearing. It was clearly in existence at the time of the hearing. If through carelessness or lack of preparation of an adequate case below the material was not relied upon to support the case made below, that cannot be remedied now, by relitigating the issues with additional and possibly more cogent evidence on appeal.
16. [16]
    Indeed Mr Holmes do not even apply for leave to adduce fresh evidence, he simply included additional material not presented to the adjudicator at the hearing below, with his application for leave to appeal or appeal.
17. [17]
    On this basis Mr Holmes was advised at the hearing of the appeal that he would not be given leave to adduce fresh evidence.

Ground two

18. [18]
    The Adjudicator erred in finding that one of the three timing chains was covered by warranty and therefore replaced but not the other two.
19. [19]
    The material filed by Mr Holmes and relied upon before the Adjudicator mostly involving inspection reports from automotive repair shops reveals the following.
20. [20]
    On 11 November, 2019 Linz Motors Pty Ltd did some work on Mr Holmes vehicle (at the cost of Aria) and amongst other things noted in an invoice:

Very slight noise in A/c compressor at idle and under slight load

Very slight timing chain rattle through engine @ idle and acceleration/start-up

21. [21]
    On 23 December, 2019, Comet Automotive supplied and fitted an upper chain, chain tensioner, rocker cover gasket and injectors seal ring at a cost of $1,504.55. This was also paid for by Aria.
22. [22]
    On 9 January, 2020 Brisbane BMW inspected the vehicle and made certain recommendations such as “timing chain wear may require checking soon – $540 for the check only”.
23. [23]
    On 23 January, 2020 Brisbane BMW advised that a timing chain replacement would cost $6,573.30 provided there was no internal damage or additional repair required to complete the work.
24. [24]
    On 20 February, 2020 in an email from Comet Automotive addressed to Mr Holmes, that company advised that the noise of the engine whilst idling was normal turbo noise but a noise evident from inside the engine would require opening the engine to further assess, which had not been done.
25. [25]
    This was the evidence before the Adjudicator.
26. [26]
    There was no evidence from any expert confirming Mr Holmes suspicion of a defective timing chain or chains remaining in the vehicle after the top chain was replaced by Comet Automotive at the cost of Aria.
27. [27]
    Mr Holmes advised the Adjudicator at hearing that he had had the additional timing chains replaced after Aria refused. He said the work was done by a company called Btuned. Mr Holmes suggested that he had filed in the Tribunal an invoice from that company for that work:

ADJUDICATOR BERTELSEN: And the other one was replaced by which entity?

MR HOLMES: Btuned.

ADJUDICATOR BERTELSEN: Btuned.

MR HOLMES: Btuned. I did send it through. I’m just trying to find though all this paperwork.

MR FARTASH: Yes, there’s a lot of paperwork. We probably need to have a hard copy to see what he’s referring to.^[3]

28. [28]
    There is no invoice from Btuned to be found in any of the material filed either in the initial minor civil dispute proceeding or the subsequent Motor Vehicle List proceeding.
29. [29]
    Amongst the fresh evidence Mr Holmes sought to adduce on appeal is a very short letter from Btuned Euro Specialist dated 28 October 2020 saying N47 engines in BMWs commonly fail because of (poor) design with the failure of chains, guides and tensioners playing a part in both low and high kilometre vehicles.
30. [30]
    This letter was written before the upper timing chain was replaced by Comet Automotive at the cost of Aria.
31. [31]
    The letter is broad brush and entirely unhelpful in addressing the claim that after the top chain was replaced other work was necessary to replace other timing chains.
32. [32]
    The letter was not made available by Mr Holmes to the Adjudicator at the hearing below. There was no invoice from Btuned made available to the Adjudicator in the proceeding below either.
33. [33]
    Mr Holmes said at the hearing of the appeal that there was mechanical evidence led before the Adjudicator to the effect that as soon as there is noise in a timing chain it should be replaced. There is no such evidence to be discovered from any material in the file. No expert witnesses were called. The only people who attended the hearing before the Adjudicator to give evidence were Mr Holmes and Mr Fartash.
34. [34]
    Mr Fartash’s evidence to the Adjudicator was that there was nothing wrong with any of the timing chains, but after Mr Holmes complained about a noise in the motor the upper chain was replaced at the cost of Aria and the noise disappeared. Mr Fartash maintained that there was never any evidence that the timing chains were defective. A slight noise remained after the top chain was replaced but it didn’t impact on the performance of the engine, particularly given this was a diesel motor which sounds different to petrol engines and generally noisier.
35. [35]
    An unidentified noise in an engine without independent evidence that the noise is associated with defective performance is rather meaningless. There was never any mechanical evidence to the effect that the noise in the engine that Mr Holmes complained about constituted a defect in the motor. This was the conclusion of the Adjudicator. On the very limited evidence presented, he was entitled to make that finding.
36. [36]
    There is no reasonable argument to be made that the adjudicator made an error in his decision that there was no evidence to support a claim that some noise emanating from the engine meant a defective powerplant.
37. [37]
    Mr Holmes claims the adjudicator found one of the timing chains was covered by warranty and on that basis it was replaced, and he erred in concluding the same did not apply with respect to the other chains. There was no such conclusion reached by the adjudicator. The adjudicator simply noted that Comet replaced a timing chain.
38. [38]
    Leave to appeal on this ground is refused.

Ground one

39. [39]
    The Adjudicator failed to take into consideration judicial precedents associated with three other court matters where Mr Fartash pleaded guilty to breaching the Australian Consumer Law and the Motor Dealers and Chattel Auctioneers Act 2014.
40. [40]
    In support of this ground of appeal Mr Holmes states in submissions attached to his appeal application:

Judicial precedent means the process whereby judges follow previously decided cases where the facts are of sufficient similarity

I thought my case would have precedents as Mr Hooman was previously taken to court for the very same issue of not paying out warranty claims and I believe he pleaded guilty to 10 charges going off the court documents I have supplied for not upholding the ethics of the warranty and false claims.

41. [41]
    Amongst the documents attached to the application to appeal are verdict and judgement records in respect of Aria Motors Pty Ltd and Mr Fartash in respect of fines imposed on both arising out of breaches, apparently, of statutory warranty provisions.
42. [42]
    The only mention made at hearing about third-party adverse court processes involving Aria and Mr Fartash was when he said to the Adjudicator:

I also sent you an article where you can see Mr Hooman has done this previously before, where I believe he went to court last year and for the exact same reason of not paying out warranty claims.^[4]

43. [43]
    The article referred to is apparently that contained in a large bundle of documents filed in the Tribunal before the hearing entitled “Darra motor dealer ditches warranty obligations” dated 11 February, 2020. The article refers to Mr Fartash as the principal licensee and sole director of Aria and refers to both Mr Fartash and Aria being fined in Richland’s Magistrates Court on 11 February 2020.
44. [44]
    The article refers to breaches of the Queensland statutory warranty provisions. There is also mention made of the Australian Consumer Law, but no details given.
45. [45]
    The article also notes however that no convictions were recorded.
46. [46]
    The claim brought by Mr Holmes in the Tribunal is not based on any claim under the statutory warranty. Mr Holmes made no attempt to explain the relevance of the past breaches of the statutory warranty provisions involving other consumers and vehicles to his claim before the Tribunal based, apparently, on breach of Australian Consumer Law guarantees.
47. [47]
    The statutory warranty provisions and guarantees under the Australian Consumer Law are entirely different things. The statutory warranty for a Class A vehicle as defined (which would have applied to Mr Holmes’ vehicle) warrants that the vehicle concerned is free from defects at the time of taking possession and for the period of the warranty period, which for class A vehicles is three months from the date of taking possession of the vehicle or the vehicle travels 5000 km, whichever comes first.
48. [48]
    As at 9 January, 2020, when Mr Holmes took his vehicle to Brisbane BMW and they recommended checking potential timing chain wear, his vehicle had travelled more than 5,000 km from date of taking possession and therefore he was not entitled to claim under the statutory warranty provisions.
49. [49]
    There was no attempt made to explain how circumstances of the offences referred to in the article were applicable to the matter before the learned Adjudicator, which was entirely different. If the assertion was that the breaches of the statutory warranties should go to Mr Fartash’s lack of credibility, that is not made clear nor how that leap might sensibly be drawn, nor how Mr Fartash’s credibility was a factor in the decision of the Tribunal below, which it was not.
50. [50]
    The passing comment at the hearing below about an article showing that Mr Fartash had “done this previously… not paying out warranty claims” absent an explanation showing how breaches of statutory warranty provisions without particulars were relevant to the claim in the current dispute was no sensible submission that required address by the Adjudicator.
51. [51]
    In result, this ground of appeal fails.