Asimus v Lallu

[2018] QCATA 108

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Asimus v Lallu [2018] QCATA 108

PARTIES:

GREGORY PAUL ASIMUS
(appellant)

v

NESHA LALLU

(respondent)

APPLICATION NO/S:

APL350-17

ORIGINATING APPLICATION NO/S:

MCDO530-17 (Southport)

MATTER TYPE:

Appeals

DELIVERED ON:

2 August 2018

HEARING DATE:

29 June 2018

HEARD AT:

Brisbane

DECISION OF:

Senior Member Howard, Presiding Member
Member Traves

ORDERS:

1.   The application for leave to appeal is allowed.

2.   The appeal is dismissed.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – EXCESSIVE OR INADEQUATE DAMAGES – GENERAL PRINCIPLES – DAMAGES EXCESSIVE – where a motor vehicle purchased through an agent – where motor vehicle a ‘repairable write-off’ – whether representations made regarding motor vehicle misleading and deceptive – whether error made in award of damages to respondent

Australian Consumer Law (Qld), s 18, s 236
Fair Trading Act 1989 (Qld) s 16, s 50
Queensland Civil and Administrative Tribunal Act2009 (Qld) s 12, Schedule 3

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

Self-represented

REASONS FOR DECISION

1. This matter began in the Minor Civil Disputes (MCD) jurisdiction of the Queensland Civil and Administrative Tribunal (Tribunal) as a dispute between Nesha Lallu (as the applicant) and Gregory Asimus and Wade Lawrence (as the respondents).

2. The dispute arose out of the purchase of a 2012 KIA hatchback. Ms Lallu purchased the car from Mr Asimus for $14,500.00 on 13 March 2017. The sale was negotiated on behalf of Mr Asimus by Wade Sprowles. Mr Sprowles advertised the motor vehicle on Gumtree and emailed Ms Lallu in response to questions she had about the motor vehicle. Mr Sprowles also arranged for Ms Lallu to undertake pre-contract inspections of the motor vehicle at his home and was present when these occurred.

3. Ms Lallu was made aware prior to entering into the contract of sale that the vehicle was owned by Mr Asimus and that Mr Sprowles was acting as his agent.[1] The fact that Mr Sprowles was acting as agent for Mr Asimus in the negotiations for the sale of the motor vehicle was not in dispute.

   [1]Email from Wade to Ms Lallu on 6 March 2017.

4. In the course of those negotiations, Ms Lallu wrote to Mr Sprowles and asked:

   Could you please confirm that the vehicle has been in no accidents?

5. Mr Sprowles replied:

   The car has had a minor accident, the rear passenger door was damaged however fixed and you can’t see any evidence of it.

6. On 29 March 2017 Ms Lallu undertook a Personal Property Securities Register (PPSR) search using the VIN number of the motor vehicle. That search reported:

   NEVDIS Written Off Vehicle Notification:

   QLD, 11 Jan 2016, Inspected

   ·105C [Impact/Passenger rear/ Heavy structural]

   ·106A [Impact/Passenger side/Heavy panel]

   QLD, 4 Nov 2015, Repairable Write-off

   ·105C [Impact/Passenger rear/ Heavy structural]

   ·106A [Impact/Passenger side/Heavy panel]

7. On 23 May 2017 Ms Lallu sent a Letter of Demand to Mr Asimus and to Mr Lawrence (she had thought Mr Sprowles’ name was Mr Lawrence as a result of an internet search she had done of his mobile number). Ms Lallu wanted to return the vehicle and obtain a refund of the purchase price on the basis she would not have purchased it had she known the vehicle was a “repairable write-off”.

8. As her letter of demand was unsuccessful in resolving the dispute, Ms Lallu then applied to the Tribunal for orders. She claimed, in effect, that the respondents had engaged in misleading and deceptive conduct. On 6 October 2017, the Tribunal found in favour of Ms Lallu and ordered Mr Asimus pay Ms Lallu $4,725.00 on or before 3 November 2017. Although an application for a stay of the decision was refused, the judgment sum has not been paid.

   Application for leave to appeal

9. On 30 October 2017, Mr Asimus filed an application for leave to appeal.

10. As this is an appeal from a decision in a proceeding for a minor civil dispute, leave to appeal is required.[2]

    [2]QCAT, s 142(3)(i).

11. Mr Asimus’ ground of appeal is that the amount he was ordered to pay is “excessive”. He refers to the fact he is a pensioner and that he would find it “extremely difficult” to pay Ms Lallu by the date specified in the orders, that is, 3 November 2017. On appeal, he seeks orders that the amount of the order be reduced to a “much more manageable figure (possibly $2,000.00)”.

12. The learned Member determined the Tribunal had jurisdiction because the matter was a “claim arising out of a contract between a consumer and trader” or, alternatively because it was a “claim to recover a debt or liquidated demand of money”. [3] However, on the face of the Transcript and Reasons for Decision it was not clear that the Tribunal had jurisdiction for the matter.

    [3]QCAT Act, Schedule 3, definition of “minor civil dispute”.

13. The claim was not a claim to recover a debt or liquidated sum, being instead a claim for an unliquidated amount, namely of an amount of damages to be assessed or return of the vehicle. The contract was entered into between Mr Asimus and Ms Lallu. The Tribunal accepted that an agency relationship existed between Mr Asimus and Mr Sprowles (though referred to him as Mr Lawrence as he did not advise the Tribunal that was not his name). The Tribunal determined that the sale occurred in “trade and commerce” and that therefore the Tribunal had jurisdiction. This is not the test for whether a matter is an MCD. Therefore, before proceeding to determine the application for leave to appeal, and if successful, the appeal, we must determine whether the Tribunal has/had jurisdiction for the claim.

14. The Tribunal has jurisdiction if the claim by Ms Lallu can be said to have arisen out of a contract between a consumer and trader. “Consumer” is defined, relevantly, as an individual who buys goods.[4] Ms Lallu satisfies the definition. “Trader” is defined, relevantly, to mean:

    A person who in trade or commerce –

    (i)carries on a business of supplying goods or providing services; or

    (ii)regularly holds himself, herself or itself out as ready to supply goods or to provide services of a similar nature…[5]

    [4]QCAT Act, Schedule 3.

    [5]QCAT Act, Schedule 3.

15. It was not clear whether Mr Asimus was a “trader”. At the Appeal Tribunal hearing both parties were therefore administered an oath or affirmation so that we could obtain evidence to determine the jurisdictional issue. Mr Asimus gave evidence that he had purchased 3 or 4 cars in the past 5 years. He purchased these cars at auction. His practice was to target cars that were classified as “repairable write-offs”, repair them and on-sell them.

16. On the basis of this evidence, we are satisfied that Mr Asimus was in the business of supplying goods, and therefore, that he satisfies the definition of “trader”. The claim brought by Ms Lallu arose out of the contract of sale entered into between her and Mr Asimus and it was below the minor civil dispute threshold for such claims of $25,000.00. It follows therefore that the Tribunal had jurisdiction to determine the claim.

17. We turn now to consider the ground of appeal.

18. As discussed, Mr Asimus claims the amount awarded was excessive. When asked to elaborate, Mr Asimus submitted that the amount awarded was high in view of the fact that it represented almost one third of the price of the car. Although he had not placed evidence to this effect before the Tribunal at first instance, he also said that the motor vehicle had cost him over $13,000.00 including repairs and that the car had been a “good buy” in any event, low kilometres, structurally sound and roadworthy. Finally, he said that the only repairs done had been to the rear passenger door and that he had never had any trouble with the vehicle in the time he had owned it. Ms Lallu argued again that had she known the car had been classified as a “repairable write-off” she would not have bought it.

Did the Tribunal err in its assessment of damages?

1. Although Ms Lallu based her claim in misleading and deceptive conduct, the Tribunal appeared to apply the statutory guarantee as to correspondence with description in the Australian Consumer Law (Qld) (ACL). The Tribunal found that the “selling of the car did not match the description as that term is known in consumer law”.[6]

   [6]Transcript of Proceedings, Lallu v Asimus (Queensland Civil and Administrative Tribunal, Southport Claim MCDO530/17, Member Lee, 6 October 2017) I-26.

2. We disagree. The words that comprise the description for the purposes of s 55 of the ACL are confined to words of identity rather than quality, that is, to words that go to describing the kind, class or species of the goods. In our view, the classification of the car in the PPSR were not words of description for the purposes of s 55.

3. That said, we consider that the representation by Mr Sprowles/Lawrence that the car was in a “minor accident” was misleading within the meaning of s 18 of the ACL (Qld). It was misleading because it would lead a reasonable consumer into error. It does not indicate that it had been in a sufficiently serious accident so as to be classified as a repairable write-off.

4. Mr Asimus authorised the representation made by Mr Sprowles/Lawrence and is therefore liable for it being misleading or deceptive.

5. The remedy for a contravention of s 18 is damages, as assessed under s 236 of the ACL (Qld). By way of damages, the Tribunal awarded Ms Lallu half of the difference between the estimated value Ms Lallu ascribed in her evidence to the car as a repairable write-off and the price she paid. Ms Lallu told the Tribunal she would have paid $5,000.00 for the car as a repairable write-off. The difference was $9,500.00. Half of this was $4,750.00.

6. While there is little evidence of the value of the car as a “repairable write-off”, we find that there is no reason to depart from the Tribunal’s assessment. The award was based on the evidence before the learned Member.

7. Accordingly, although the learned Member was in error in finding a breach of s55, rather than s 18, of the ACL (Qld), the damages awarded were nevertheless reasonable on the available evidence.  In the circumstances, the error made by the Tribunal was not material.

   Conclusion

8. Having regard to the jurisdictional issue discussed in these reasons, leave to appeal is granted.

9. However, as the error made by the Tribunal was not material to its decision, the appeal is dismissed.