Bou-Tamer v Uzoma - [2021] QCATA 64

QUEENSLAND CIVIL AND

ADMINISTRATIVE TRIBUNAL

CITATION:

Bou-Tamer & Anor v Uzoma [2021] QCATA 64

PARTIES:

MOUHAMMAD BOU-TAMER

(first applicant/appellant)

JASON ERKAN

(second applicant/appellant)

v

MELVIN KELECHI UZOMA

(respondent)

APPLICATION NO/S:

APL177-20

ORIGINATING APPLICATION NO/S:

MCDO17-20 Holland Park

MATTER TYPE:

Appeals

DELIVERED ON:

14 May 2021

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Howe

ORDERS:

1. Leave to appeal granted.

2. Appeal dismissed.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – where the respondent agreed with the applicants/appellants to purchase a car – where time was not made of the essence – where more than half the price was paid as deposit – where an extension of time to pay the balance due under the contract was granted – where notice making time of the essence of the contract was given the respondent buyer – whether the time was reasonable in the circumstances

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 142(3)(a)(i)

Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd (1989) 166 CLR 623

Louinder v Leis (1982) 149 CLR 509

Perri v Coolangatta Investments Pty Ltd (1982) 149 CLR 537

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

Self-represented

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

The respondent Mr Uzoma agreed to purchase a motor vehicle from Mr Erkan, who was part owner of the vehicle with Mr Bou-Tamer. The vehicle was a 2015 Mercedes A Class A250, advertised online.
The price was $22,000. Mr Uzoma paid a deposit of $12,000 on 11 December 2019. There was no agreed date for the payment of the balance other than Mr Uzoma agreed to pay it within two or three weeks.
Mr Uzoma did not have the rest of the money available by the end of December 2019 and Mr Erkan and Mr Bou-Tamer allowed him “a couple of weeks” more to pay.
The balance was still unpaid as at Monday13 January 2020 when he was told by Mr Erkan that if he did not pay by Wednesday 15 January 2020 the car would be sold to someone else.
On Wednesday 15 January 2020 Mr Uzoma contacted Mr Erkan and asked for a further two days to Friday 17 January 2020 to pay the balance but that was refused.
The appellants sold the vehicle to someone else on Monday 20 January 2020 for $19,000. Mr Uzoma asked for the return of his deposit of $12,000 but that was also refused.
Mr Uzoma brought minor civil dispute consumer dispute proceedings in the Tribunal seeking recovery amongst other things of his deposit of $12,000.
The matter was heard before an Adjudicator who found in favour of Mr Uzoma and ordered the appellants to refund him the sum of $12,000.
The appellants now seek leave to appeal that decision. Given this is an appeal from a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bou-Tamer v Uzoma

Details

AGLC: Bou-Tamer v Uzoma [2021] QCATA 64
Case: [2021] QCATA 64
Decision Date: 14 May 2021

CaseChat Overview and Summary

The appellants, Bou-Tamer, brought an appeal against the respondent, Uzoma, in relation to a dispute over the purchase of a car. The matter was heard and determined by the Supreme Court of Queensland. The Bou-Tamers contended that the trial judge erred in finding that the notice of making time of the essence of the contract was reasonable. The Bou-Tamers submitted that the trial judge failed to consider the totality of the circumstances, and that the notice was not reasonable given the circumstances of the case.

The central legal issue before the court was whether the trial judge correctly found that the notice of making time of the essence was reasonable in the circumstances. The court considered whether the trial judge had correctly applied the relevant legal principles in determining whether the notice was reasonable. The court noted that the trial judge had considered the totality of the circumstances, including the fact that more than half the purchase price had been paid, and that an extension of time had been granted. The court found that the trial judge had not erred in finding that the notice was reasonable.

The court dismissed the appeal, holding that the trial judge had not erred in finding that the notice was reasonable. The Bou-Tamers' appeal was dismissed, and they were ordered to pay the respondent's costs of the appeal.

Orders

Orders of the court

1. Leave to appeal granted.

2. Appeal dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Bou-Tamer & Anor v Uzoma [2021] QCATA 64
PARTIES:	MOUHAMMAD BOU-TAMER (first applicant/appellant)
JASON ERKAN (second applicant/appellant)
v
MELVIN KELECHI UZOMA (respondent)
APPLICATION NO/S:	APL177-20
ORIGINATING APPLICATION NO/S:	MCDO17-20 Holland Park
MATTER TYPE:	Appeals
DELIVERED ON:	14 May 2021
HEARING DATE:	On the papers
HEARD AT:	Brisbane
DECISION OF:	Member Howe
ORDERS:	1. Leave to appeal granted. 2. Appeal dismissed.
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – where the respondent agreed with the applicants/appellants to purchase a car – where time was not made of the essence – where more than half the price was paid as deposit – where an extension of time to pay the balance due under the contract was granted – where notice making time of the essence of the contract was given the respondent buyer – whether the time was reasonable in the circumstances Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 142(3)(a)(i) Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd (1989) 166 CLR 623 Louinder v Leis (1982) 149 CLR 509 Perri v Coolangatta Investments Pty Ltd (1982) 149 CLR 537
APPEARANCES & REPRESENTATION:
Applicant:	Self-represented
Respondent:	Self-represented
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)