Faisal v Karimi - [2021] QCATA 150

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Faisal v Karimi [2021] QCATA 150

PARTIES: AHMED JAMAN FAISAL

(appellant)

v

MAJID KARIMI

(respondent)

APPLICATION NO/S:

APL312-20

ORIGINATING APPLICATION NO/S:

MCDO 1403 of 2019 (Brisbane)

MATTER TYPE:

Appeals

DELIVERED ON:

15 December 2021

HEARING DATE:

10 December 2021

HEARD AT:

Brisbane

DECISION OF:

Member Gordon

ORDERS:

1.   Leave to appeal is granted.

2.   The appeal is allowed and the order made in MCDO 1403 of 2019 (Brisbane) on 3 September 2020 is set aside.

3.   Application MCDO 1403 of 2019 (Brisbane) is remitted to the minor civil dispute list for reconsideration before a different Adjudicator.

4.   A copy of the transcript of the hearing on 3 September 2020 which has been obtained by the Appeal Tribunal shall be put on the minor civil dispute file and may be taken in evidence at the remitted hearing.

5.   At the remitted hearing the tribunal may need to know the probable cost of repair of the oil leak on the car (evidenced by a quote from a suitable repairer) and the parties are encouraged in advance of the hearing to contact each other to try to agree such probable cost.

6.   If Majid Karimi wishes to obtain his own quote for this work then it is directed that:

(a)    he should notify Ahmed Jaman Faisal of this wish;

(b)   upon Mr Faisal being notified as above, he shall within 7 days of such notification, propose to Mr Karimi three dates and times (which shall all be reasonable) when the car may be inspected and shall identify a reasonable place for the inspection;

(c)    Mr Faisal shall permit Mr Karimi and his mechanic to inspect the car and take photographs of the car on the date and time and at the place chosen by Mr Karimi from those suggested by Mr Faisal.

7.       If either party needs to apply to the tribunal for further directions such application shall be made to the Registry conducting the minor civil disputes list and not to the Appeal Tribunal.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – PARTICULAR CASES INVOLVING ERROR OF LAW – where during an oral hearing of a minor civil dispute about a defect in a car, the Adjudicator appeared to find in the applicant’s favour but then sought to achieve agreement as to a suitable order – where the Adjudicator suggested a particular order involving repairs to the car but only one of the parties agreed to it – where the Adjudicator made the order anyway – where the order did not correspond with the rights and obligations of the parties – whether it should be set aside

Australian Consumer Law, s 259, s 262, s 263

Motor Dealers and Chattel Auctioneers Act 2014 (Qld), s 9, s 13

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 13, s 146

Owen v Menzies [2012] QCA 170

Russo v Belcar Pty…

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 Faisal v Karimi

Details

AGLC: Faisal v Karimi [2021] QCATA 150
Case: [2021] QCATA 150
Decision Date: 15 December 2021

CaseChat Overview and Summary

In the case of Faisal v Karimi, the appellant, Ahmed Jaman Faisal, sought to appeal an order made in a minor civil dispute concerning a defect in a car, while the respondent, Majid Karimi, opposed the appeal. The original order, made on 3 September 2020, involved an order for repairs to the car, which only one party had agreed to. The dispute was heard in the Queensland Civil and Administrative Tribunal (QCAT) and the matter was remitted to the minor civil dispute list for reconsideration before a different Adjudicator. The appellant argued that the Adjudicator erred in making an order without the consent of both parties, while the respondent contended that the order should be upheld as it was made in the interest of justice and efficiency.

The court was required to determine whether the Adjudicator had the authority to make an order without the consent of both parties and whether the order should be set aside. The appeal hinged on the interpretation of the relevant legislation and case law concerning the Adjudicator’s power to make binding orders in minor civil disputes. The court considered whether the Adjudicator had misapplied the law in making the order and whether the order was fair and just given the circumstances of the case. The court also had to consider the appropriate remedy for the appellant if the appeal was allowed.

The court found that the Adjudicator had indeed erred in making the order without the consent of both parties, as the relevant legislation required that any order made in a minor civil dispute must be agreed upon by both parties. The court held that the Adjudicator had exceeded their jurisdiction in making the order and that the order did not correspond with the rights and obligations of the parties. As a result, the court allowed the appeal and set aside the order made on 3 September 2020. The matter was remitted to the minor civil dispute list for reconsideration before a different Adjudicator, with specific directions regarding the cost of repair and the inspection of the car. The court emphasised the importance of ensuring that all parties have an opportunity to consent to any order made in a minor civil dispute, to avoid such errors in the future.

Orders

Orders of the court

1. Leave to appeal is granted.

2. The appeal is allowed and the order made in MCDO 1403 of 2019 (Brisbane) on 3 September 2020 is set aside.

3. Application MCDO 1403 of 2019 (Brisbane) is remitted to the minor civil dispute list for reconsideration before a different Adjudicator.

4. A copy of the transcript of the hearing on 3 September 2020 which has been obtained by the Appeal Tribunal shall be put on the minor civil dispute file and may be taken in evidence at the remitted hearing.

5. At the remitted hearing the tribunal may need to know the probable cost of repair of the oil leak on the car (evidenced by a quote from a suitable repairer) and the parties are encouraged in advance of the hearing to contact each other to try to agree such probable cost.

6. If Majid Karimi wishes to obtain his own quote for this work then it is directed that:

(a) he should notify Ahmed Jaman Faisal of this wish;

(b) upon Mr Faisal being notified as above, he shall within 7 days of such notification, propose to Mr Karimi three dates and times (which shall all be reasonable) when the car may be inspected and shall identify a reasonable place for the inspection;

(c) Mr Faisal shall permit Mr Karimi and his mechanic to inspect the car and take photographs of the car on the date and time and at the place chosen by Mr Karimi from those suggested by Mr Faisal.

7. If either party needs to apply to the tribunal for further directions such application shall be made to the Registry conducting the minor civil disputes list and not to the Appeal Tribunal.

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:	Faisal v Karimi [2021] QCATA 150
PARTIES:	AHMED JAMAN FAISAL
(appellant)
v
MAJID KARIMI
(respondent)
APPLICATION NO/S:	APL312-20
ORIGINATING APPLICATION NO/S:	MCDO 1403 of 2019 (Brisbane)
MATTER TYPE:	Appeals
DELIVERED ON:	15 December 2021
HEARING DATE:	10 December 2021
HEARD AT:	Brisbane
DECISION OF:	Member Gordon
ORDERS:	1. Leave to appeal is granted. 2. The appeal is allowed and the order made in MCDO 1403 of 2019 (Brisbane) on 3 September 2020 is set aside. 3. Application MCDO 1403 of 2019 (Brisbane) is remitted to the minor civil dispute list for reconsideration before a different Adjudicator. 4. A copy of the transcript of the hearing on 3 September 2020 which has been obtained by the Appeal Tribunal shall be put on the minor civil dispute file and may be taken in evidence at the remitted hearing. 5. At the remitted hearing the tribunal may need to know the probable cost of repair of the oil leak on the car (evidenced by a quote from a suitable repairer) and the parties are encouraged in advance of the hearing to contact each other to try to agree such probable cost. 6. If Majid Karimi wishes to obtain his own quote for this work then it is directed that: (a) he should notify Ahmed Jaman Faisal of this wish; (b) upon Mr Faisal being notified as above, he shall within 7 days of such notification, propose to Mr Karimi three dates and times (which shall all be reasonable) when the car may be inspected and shall identify a reasonable place for the inspection; (c) Mr Faisal shall permit Mr Karimi and his mechanic to inspect the car and take photographs of the car on the date and time and at the place chosen by Mr Karimi from those suggested by Mr Faisal. 7. If either party needs to apply to the tribunal for further directions such application shall be made to the Registry conducting the minor civil disputes list and not to the Appeal Tribunal.
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – PARTICULAR CASES INVOLVING ERROR OF LAW – where during an oral hearing of a minor civil dispute about a defect in a car, the Adjudicator appeared to find in the applicant’s favour but then sought to achieve agreement as to a suitable order – where the Adjudicator suggested a particular order involving repairs to the car but only one of the parties agreed to it – where the Adjudicator made the order anyway – where the order did not correspond with the rights and obligations of the parties – whether it should be set aside Australian Consumer Law, s 259, s 262, s 263 Motor Dealers and Chattel Auctioneers Act 2014 (Qld), s 9, s 13 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 13, s 146 Owen v Menzies [2012] QCA 170 Russo v Belcar Pty…