Holmes v Fartash

[2022] QCATA 46

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Holmes v Fartash [2022] QCATA 46

PARTIES:

TRENT HOLMES

(applicant/appellant)

v

HOOMAN FARTASH

(respondent)

APPLICATION NO/S:

APL348-20

ORIGINATING APPLICATION NO/S:

MVL070-20

MATTER TYPE:

Appeals

DELIVERED ON:

12 April 2022

HEARING DATE:

16 December 2021

HEARD AT:

Brisbane

DECISION OF:

A/Senior Member Howe

ORDERS:

1.       Leave to appeal refused.

2.       The appeal concerning error of law dismissed.

CATCHWORDS:

TRADE AND COMMERCE – CONSUMER PROTECTION – GUARANTEES, CONDITIONS AND WARRANTIES IN CONSUMER TRANSACTIONS – where the applicant purchased a second hand motor vehicle – where the applicant claimed the motor was defective – where the respondent motor dealer paid for some costs of replacement parts but refused other work – where there was no evidence that the motor vehicle engine was defective save that it made noise – where Magistrates Court proceedings in which the respondent dealer was fined for breaches of unrelated third-party transactions involving the statutory warranty scheme were mentioned in passing – where the relevance of such was not explained at hearing – where the appeal involved error of law and error of fact or mixed fact and law

Jonathan v Mangera [2016] QCA 86

Pickering v McArthur [2005] QCA 294

APPEARANCES & REPRESENTATION:
Applicant:	Self-represented
Respondent:	Self-represented

REASONS FOR DECISION

1. Mr Holmes purchased a BMW motor vehicle from Aria Motors Pty Ltd (Aria) in October 2019 for $13,900.

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. 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. 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. 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. 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. 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. 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…