Hussain v Tam
[2015] ACTSC 197
•5 August 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Hussain v Tam |
Citation: | [2015] ACTSC 197 |
Hearing Date(s): | 13 April 2015 |
DecisionDate: | 5 August 2015 |
Before: | Burns J |
Decision: | Leave to appeal is granted. The appeal is dismissed. |
Category: | Principal Judgment |
Catchwords: | CIVIL – Appeal – application for leave to appeal out of time – leave granted. CIVIL – Appeal – error in finding of fact – sale and purchase of motor vehicle - appeal dismissed. |
Legislation Cited: | Magistrates Court Act 1930 (ACT) s 276 |
Cases Cited: | Theodorelos v Nexus Projects Pty Ltd [2009] ACTSC 149 |
Parties: | Hasin Hussain and Mohammad Hussain (Appellant) Chung Lai Tam (Respondent) |
Representation: | Counsel Mr A Jones (Appellant) Self-represented (Respondent) |
| Solicitors AP Jones and Co Lawyers (Appellant) Self-represented (Respondent) | |
File Number(s): | SCA 80 of 2014 |
Decision under appeal: | Court/Tribunal: ACT Magistrates Court Before: Magistrate Campbell Date of Decision: 6 May 2014 Case Title: Chung Lai Tam v Hasin Hussain and Mohammad Hussain Court File Number(s): CS No 10334 of 2010 |
BURNS J:
This is an application for leave to appeal from a decision of a Magistrate that the applicant is liable to pay the respondent $8,276.75 plus an amount of interest on that sum. Leave is required because the applicant did not commence an appeal from the decision of the Magistrate within the prescribed period of 28 days. Judgment was entered by the Magistrate on 27 August 2014, with costs orders being made on 5 September 2014. The application for leave to appeal was lodged on 26 September 2014, so that the delay in lodging the application is not egregious.
The application for leave to appeal was heard at the same time as the appeal, and I reserved my decision on both matters. The two grounds on which the applicant sought to appeal the decision of the Magistrate were:
(a)the Magistrate erred in admitting evidence as to the parties’ agreement to a purchase price of the motor vehicle of $9,000.00; and
(b)the Magistrate erred in finding that the second defendant in the proceedings before her (the applicant’s father) was the applicant’s agent.
Background
The proceedings before the Magistrate arose out of the sale and purchase of a motor vehicle. The respondent (the plaintiff in the proceedings below) alleged that, on or about 25 August 2009, he sold a 2004 Ford Falcon sedan to the applicant for the sum of $9,000.00. The plaintiff was a taxi driver and the owner of Cabxpress Network Pty Ltd, which is located in Queanbeyan, New South Wales. He alleged that the applicant and his father were taxi operators in the Australian Capital Territory and that the applicant was the owner of taxi plate TX405. He alleged that the applicant, after purchasing the Ford Falcon sedan, affixed the taxi plates to the vehicle and operated it as a taxi. The purchase price of $9,000.00, the respondent said, was to be paid, by agreement between the parties, by weekly instalments based upon a rate of $13.15 per day. On 25 October 2009, the Ford Falcon sedan was damaged in a collision and was written off. By that time, the applicant had only paid $723.25 for the vehicle, leaving a balance of $8,276.75 unpaid. The applicant refused to pay that sum, alleging that the sale price of the vehicle was $2,000.00, not $9,000.00. The applicant further denied that there had been any agreement as alleged that the sale price would be paid in instalments, instead alleging that the $2,000.00 sale price was paid to the respondent in cash on 25 August 2009.
The respondent testified that he purchased the Ford Falcon sedan in June 2009 for $6,500.00. He said that the market price for the vehicle was $9,000.00 but the transmission was not working so the owner sold it to him for $6,500.00. He said that he repaired the vehicle at his own expense and sold it to the applicant for $9,000.00 with the applicant to pay that sum by instalments. It was a term of the purchase agreement, the respondent said, that the full balance of the purchase amount was to become immediately payable if taxi TX405 left the Cabxpress Network.
It was agreed between the parties that, after the accident, the pre-accident value of the Ford Falcon sedan was assessed by an organisation called CARAS as $7,820.00. The vehicle’s insurer later paid the sum of $7,430.00 for the vehicle as a write-off. It may safely be inferred that this was the insured value of the vehicle.
All of the dealings concerning the purchase of the vehicle were conducted by the applicant’s father. The applicant gave evidence that he was employed at the time by Telstra. His father suggested to him that he become a taxi operator “on paper”. His father said that he would “manage everything”, so the applicant agreed and he signed a lot of documents, trusting in his father. He said his father (the second defendant in the proceedings before the Magistrate) purchased the Ford Falcon sedan from the respondent. Other than signing documents presented to him by his father from time to time, the applicant said he played no part in the operation of taxi TX405. In cross-examination, the applicant agreed that whatever his father had done concerning the purchase of the taxi plate had been done with his authority. He agreed that his signature was offered as the applicant for the transfer of the registration of the taxi on the transfer document used to calculate the stamp duty on the purchase of the Ford Falcon sedan. The respondent completed part of that form, including his name and address, as the person from whom the vehicle was purchased. The respondent said that he wrote $5,000.00 as the purchase price on the transfer document at the request of the applicant’s father, so that the applicant would be required to pay less stamp duty. It is clear from the copy of the transfer tendered in the proceedings before the Magistrate that the purchase price has been altered to read $2,000.00. I cannot be certain, but it is quite possible that the original figure was $5,000.00. The applicant’s mother gave evidence that, the respondent had written $3,000.00 as the purchase price on the transfer, rather than the agreed $2,000.00, and they insisted he change it to $2,000.00.
On 9 May 2010 the respondent emailed a letter of demand to the applicant and his father, attached to which was a statement setting out the amount claimed from the applicant, and how the respondent calculated that amount. The statement clearly showed the purchase price of the Ford Falcon sedan as $9,000.00. Neither the applicant nor his father responded to this email.
The Magistrate’s decision
The Magistrate found that the applicant’s father had acted as his agent in the purchase of the vehicle from the respondent, and that the agreed purchase price was $9,000.00. The reasons the Magistrate cited as to why she found that the agreed purchase price was $9,000.00 were:
(a)the respondent gave a clear explanation of how he arrived at the price of $9,000.00;
(b)his version of events was supported by his email of 9 May 2010 to the applicant and his father;
(c)neither the applicant nor his father had written to the respondent denying his assertions in that email, which she felt they would have if events had occurred as suggested by them;
(d)the CARAS valuation and the insured value of the vehicle were more consistent with a market value of $9,000.00 than of $2,000.00; and
(e)the applicant and his father had not produced any tax records to support their contention that they paid $2,000.00 for the vehicle.
With regard to the finding of agency, the Magistrate said:
What is very clear in this matter to me is that the first defendant, the son of the second defendant, simply did his father bidding (sic). He signed documents without reading them which bound him as a matter of law and he relied entirely on his father’s advice. There is nothing, however, from what he said in particular in the witness box from which I could infer that he was not agreeing to be bound by the contents of those documents which his father negotiated on his behalf, or the agreements. The first defendant’s ignorance and reliance on his father does not absolve him of legal responsibility for the contracts his father entered into on his behalf.
The general position at law is that where an agents (sic) acts within the scope of his authority and accordingly brings about contractual relationships between his principal and a third party the contract is between the principal and the third party here whatever contract there was between the plaintiff and the first defendant. The agent is not a party to that contract and having heard the son’s evidence it seems to me that the father had a very broad authority to act on the son’s behalf. The first defendant simply accepted whatever his father did and when told to sign a document, he did so apparently willingly.
He certainly held out his father to have his authority to act on his behalf by the way he conducted himself in simply to sign whatever documents were placed before him, turning up when he was requested to turn up to the Road Transport Authority. And it appears that unfortunately perhaps ultimately it dawned on him how foolish his conduct was which he referred to as, among other things, stupid; “I’ve put full trust in my parents.”
The nature of this appeal
The appeal from the decision of the Magistrate, assuming leave to appeal is granted, is by way of rehearing. In such an appeal, this Court must have regard to the evidence given in the proceeding in the Magistrates Court, and to any further evidence which it may, in its discretion, admit: s 276 Magistrates Court Act 1930 (ACT). In the present case, there was an application to admit further evidence on the appeal, but this application was refused. In Theodorelos v Nexus Projects Pty Ltd [2009] ACTSC 149, Refshauge J, at [78], described such an appeal as follows:
Appeal by way of rehearing is also one where the appeal court must determine whether the decision of the body from which the appeal is taken is wrong, by that body falling into error of law, making a finding of fact that is clearly wrong or exercising a discretion on a wrong principle or in a way that is clearly wrong. Ordinarily, however, facts found based on the assessment of witness will not likely be overturned. The appeal court usually has power to receive further evidence, though this is ordinarily subject to some restrictions. The appeal court may also draw inferences itself from primary facts found by the body from which the appeal is taken. The decision, however, is not restricted to making the decision that should have been made by the body from which the appeal is taken but in determining it the appeal court must have regard to the circumstances which exist at the time of the appeal and by making its own decision on these circumstances.
Consideration
I will deal initially with the submission that the Magistrate erred in finding that the applicant’s father acted as the applicant’s agent on the purchase of the vehicle. The applicant does not submit that the Magistrate misstated the law applicable to determining the issue; rather, he says that, on the evidence, she should not have been satisfied that the applicant’s father was acting as his agent. This is a question of fact. In my opinion, there was ample evidence to support the Magistrate’s finding, including:
(a)evidence that the vehicle was subsequently registered in the applicant’s name;
(b)evidence that the taxi plates TX405 were purchased in the name of the applicant and attached to the vehicle of which he was the registered owner; and
(c)the evidence of the applicant himself that, while he may have left matters in his father’s hands, his father was acting with his authority.
The applicant was clearly aware that the vehicle was being purchased in his name, as he signed the transfer application to have the registration transferred into his name.
In any event, the defence filed by the applicant (as first defendant in the proceeding below) admitted that the “First Defendant says that the Plaintiff sold TX405 to him for the sum of $2000” (emphasis added). As such, the live issue before the Magistrate was not whether the vehicle was sold to the applicant, but what the agreed purchase price was. To the extent that the case that was run before the Magistrate moved away from that admission, I am satisfied that, for the reason I have given, the Magistrate was not in error in finding that the applicant’s father acted as his agent on the purchase.
Turning to the second contested finding of fact by the Magistrate, namely that the agreed purchase price was $9,000.00, the applicant submitted that the finding was “contrary to the weight of the evidence”, in particular:
(a)the vehicle was very worn, in need of repair and had an odometer reading of 368,358 km;
(b)the testimony of other witnesses that the agreed purchase price was $2,000.00 and that this amount was paid in cash by the applicant’s father;and
(c)the evidence that the respondent completed a transfer application form including, on his version, the wrong purchase price to allow the applicant to defraud ACT Revenue.
In my opinion, the Magistrate was entitled to conclude that the best evidence of the market value of the vehicle at the time of purchase was the pre-accident valuation by CARAS and the insured value of the vehicle, both of which suggested the value of the vehicle was much closer to the respondent’s figure of $9,000.00 for the agreed sale price than the applicant’s figure of $2,000.00. It was the applicant’s case before the Magistrate that the difference between the suggested purchase price of $2,000.00 and the CARAS valuation, and the insured value of the vehicle, was a result of mechanical repairs done to the vehicle after it was purchased. This appears to me to be highly unlikely. There was no evidence from the valuer or the insurance company that they took into account any mechanical repairs to the vehicle when they made this valuation or assessment. Further, it was the applicant’s case that the repairs were performed over a period of time, making it difficult to see how they could have impacted on the insured value of the vehicle, particularly considering the short period during which the vehicle was owned by the applicant.
The applicant’s father gave evidence before the Magistrate that the agreed purchase price was $2,000.00, but that the respondent attempted to change the price to $3,000.00 by writing that as the purchase price on the transfer application. He said he and his wife attended the meeting where this occurred and they insisted that $2,000.00 was the agreed price, and the respondent changed the purchase price on the transfer application to $2,000.00. He said that his wife then gave the respondent $2,000.00 cash. The applicant’s mother also gave evidence to this effect.
It is clear that the Magistrate found the applicant’s father to be an unsatisfactory witness, referring in her reasons to his “defensive and difficult to fathom oral evidence”. The Magistrate was satisfied that both the respondent and the applicant’s father had engaged in “sharp business practices” when it suited them, and neither was considered impressive as a witness. The Magistrate rejected the evidence of the applicant’s mother that she had given $2,000.00 in cash to the respondent.
It is clear from the transcript of the Magistrates Court proceedings that the respondent and the applicant’s father and mother have been involved in other litigation, so that there appears to be a level of personal animosity. That, and the applicant’s mother’s relationship with the applicant, were circumstances that the Magistrate was entitled to take into account in determining the creditability of the applicant’s mother. I may add that it would seem surprising that the applicant and his father did not ask for a receipt for the payment of the $2,000.00 if, as they say, it was paid in cash as a lump sum. The vehicle was purchased as part of a business, so one would expect that a receipt would be obtained for tax purposes at least. The absence of a receipt was consistent with the respondent’s version of the vehicle being paid off over time, but the absence of contemporary documentation of the sale agreement is problematic for the respondent.
In the end, the Magistrate preferred to base her decision not on the contested assertions of the parties, but on the objective valuations of CARAS and the insurance value of the vehicle. This was an approach she was entitled to take. The Magistrate was also entitled to find it unlikely that the applicant and/or his father would not have replied to the respondent’s email of 9 May 2010 denying the respondent’s claim. Having seen and heard the applicant and his father give evidence, the Magistrate was entitled to conclude that it was unlikely that they would not have responded to what was, on their version of events, a fabricated claim by the respondent.
The Magistrate was aware of the respondent’s evidence that he wrote a reduced purchase price of $5,000.00 on the transfer application in order to assist the applicant to avoid paying the correct stamp duty. This was a matter which was relevant to the respondent’s credit, and the Magistrate, as I have already noted, did not find the respondent to be an altogether satisfactory witnesses. She was, however, entitled to accept his evidence, particularly where it was more consistent with evidence from independent sources, such as the valuation of the vehicle and its insurance value.
Conclusion
The applicant has failed to establish that any of the findings of fact complained of were “clearly wrong”. The Magistrate’s finding that the assessed purchase price was $9,000.00 and that the applicant’s father was acting with the applicant’s knowledge and authority in negotiating the purchase on his behalf was supported by the evidence.
As the application for leave to appeal was lodged shortly after the time for an appeal as of right expires, I will grant the applicant leave to appeal, but I will dismiss the appeal.
| I certify that the preceding twenty-two [22] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns. Associate: Date: 5 August 2015 |