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Rayan v Almassi[2022] QCATA 57

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Rayan v Almassi [2022] QCATA 057

PARTIES:

Ellijah isaac rayan

(appellant)

v

aarash almassi

(respondent)

APPLICATION NO/S:

APL015-21

ORIGINATING APPLICATION NO/S:

MCDO43/20 (Redcliffe)

MATTER TYPE:

Appeals

DELIVERED ON:

4 May 2022

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Gordon

ORDERS:

  1. The record of the Appeal Tribunal is to show the name of the appellant as Ellijah Isaac Rayan.
  2. The application to put additional evidence before the Appeal Tribunal is refused. 
  3. Leave to appeal is refused.  This means the appeal fails.

CATCHWORDS:

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – WHEN NO APPEAL LIES – where the appellant seeks to admit additional evidence obtained following the hearing – whether it should be admitted – whether appeal could succeed on various grounds of appeal

Queensland Vedic Cultural Centre Pty Ltd v Lal [2022] QCATA 50

APPEARANCES &

REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

  1. [1]
    This is an appeal brought by Ellijah Isaac Rayan in which he wishes to rely on new information discovered after the original hearing. 
  2. [2]
    He claimed a total of $6,541 from Aarash Almassi trading as Almassi Light and Heavy Mechanical, for allegedly defective repair work on his two vehicles, a VW Beetle and a VW Kombi.  Mr Almassi denied the claim but did concede that a used engine which he had sourced from a third party and supplied to Mr Rayan at $1,600 had been faulty.  Having heard the claim on 30 November 2020, a tribunal Adjudicator decided that there were no defects in the repair work except for the conceded matter and ordered Mr Almassi to repay the $1,600 to Mr Rayan.
  3. [3]
    On 14 December 2020 the Adjudicator gave this decision with full written reasons in an unpublished form.
  4. [4]
    In this appeal,[1] Mr Rayan says that the award of $1,600 was ‘manifestly inadequate’.  He says that there were a ‘violation of a number of sections of the Australian Consumer Law’ although he did not specify the sections referred or the way in which they had been violated.  It was said that the Adjudicator failed to examine all the documentation presented and that the Adjudicator should not have believed Mr Almassi.  It is also said that the Adjudicator said in the hearing that he would be awarded his towing fees and his filing fee but this was not done in the final decision.

Application to admit additional evidence

  1. [5]
    Mr Rayan applied on 5 May 2021 to rely in the appeal on additional evidence in the form of an invoice from a Volkswagen dealer dated 8 March 2021, which document was created after the hearing of this matter.  The invoice is for work done on the VW Kombi by a Volkswagen dealer, in which someone has added under ‘Comments’ that the carburettor needs ‘repair/replacement’.
  2. [6]
    Mr Rayan naturally compares this with an invoice dated 15 September 2020 from Mr Almassi when the odometer reading was 684 kms less, which records a ‘Carb Full Rebuild’ having been carried out on the vehicle for which Mr Rayan paid Mr Almassi $350. 
  3. [7]
    Mr Almassi has responded to the additional evidence with his own additional evidence, which he says shows that he subcontracted the carburettor repair to another business.  There is an invoice from that business dated 11 September 2020 which states:

Repair Labour Volkswagen Kombi rego (xxxxxx) T2 Fuel issue.

Inspected.  Carburettor leaking.  Disassembled and inspected.  Gaskets split causing fuel to leak down onto manifold.  Replaced all carburettor seals and gaskets.  Refitted.  Adjusted idle and timing.  Test drove vehicle and rechecked.  (Carburettor rebuild kit supplied).

  1. [8]
    Mr Almassi’s purchase of the rebuild kit was evidenced by an invoice before the Adjudicator dated 2 September 2020 from a parts supplier.
  2. [9]
    I have to decide whether or not to admit this additional evidence in this appeal.  In Queensland Vedic Cultural Centre Pty Ltd v Lal [2022] QCATA 50 I examined when such additional may be admitted.  One requirement is that the evidence was not reasonably available when the proceeding was first heard and decided.  A second is that the appellant would suffer a substantial injustice if the evidence were not admitted.  And a third is that the injustice could be effectively or conveniently dealt with by admitting the evidence.
  3. [10]
    Concentrating on whether Mr Rayan would suffer a substantial injustice if the evidence was not admitted, it is necessary to examine the new document in the light of the relevant facts.  The Appeal Tribunal has obtained a transcript of the original hearing and this shows that Mr Almassi gave the Adjudicator information about the VW Kombi which was not controverted by Mr Rayan.
  4. [11]
    He said that the vehicle was a 1979 model, and that although there was only 44,000 kms on the odometer, in fact at 100,000 kms the odometer starts again at zero so it is impossible to say what mileage it had done.  He said that the carburettor fitted was not the correct one for the vehicle, that one week after the carburettor rebuild in September 2020 Mr Rayan returned the vehicle saying it was sluggish and then some weeks later returned it again complaining of a smell of fuel inside the vehicle.[2] 
  5. [12]
    In his submissions in this appeal Mr Almassi says that vehicles of this type and age suffer from numerous ongoing defects, and that there would be a difficulty diagnosing the cause of any ongoing problems, so he questions whether the Volkswagen dealers have correctly identified the carburettor as requiring work.  He notes that there is no evidence that any work was actually done to the carburettor since the hearing. 
  6. [13]
    These submissions seem to have some substance, and it is also to be noted that the dealer’s invoice does not state what symptoms were reported which led them to suspect the carburettor.
  7. [14]
    In these circumstances, in order to be able to say that Mr Rayan would suffer a substantial injustice if the evidence were not admitted, the evidence would need to be much better than it is.  As it stands, there is doubt whether it is true that the carburettor needed repair or replacement when the Volkswagen dealer saw the vehicle on 8 March 2021.
  8. [15]
    For that reason I refuse leave for this additional evidence to be admitted in this appeal.

Other appeal points

  1. [16]
    From the transcript of the hearing it can be seen that Mr Rayan is incorrect in his belief that the Adjudicator said that he could recover the towing fees and his filing fee.  In the written reasons he was refused the filing fee because he had been ‘largely unsuccessful and received no better than what the respondent had already offered’.
  2. [17]
    The other appeal points are not going to be successful.  In careful written reasons the Adjudicator explained why the application failed in other respects.  It is clear that the decision was fully justified.

Conclusion

  1. [18]
    In these types of appeal, leave to appeal is necessary.  Leave to appeal will only be given if the appeal is reasonably arguable or there is some other reason to grant leave.  I have refused leave to admit the additional evidence.  This means that none of the grounds of appeal are reasonably arguable, and since there is no other reason to grant leave I refuse it.  The appeal therefore fails.

Footnotes

[1]Application for leave to appeal or appeal dated 12 January 2021.

[2]Transcript 1-9 line 25.

Close

Editorial Notes

  • Published Case Name:

    Rayan v Almassi

  • Shortened Case Name:

    Rayan v Almassi

  • MNC:

    [2022] QCATA 57

  • Court:

    QCATA

  • Judge(s):

    Member Gordon

  • Date:

    04 May 2022

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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