Hussain v Tam - [2015] ACTSC 197

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…

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 Hussain v Tam

Details

AGLC: Hussain v Tam [2015] ACTSC 197
Case: [2015] ACTSC 197
Decision Date: 5 August 2015

CaseChat Overview and Summary

The parties involved in this case are Hussain and Tam, with the dispute centred around an application for leave to appeal out of time. The matter was heard in the court of appeal. The primary issue before the court was whether the appellant, Hussain, was granted leave to appeal out of time. Additionally, the court needed to decide whether there was an error in the finding of fact concerning the sale and purchase of a motor vehicle.

The court acknowledged that the appellant had not complied with the strict timelines for appealing a decision, but it found that exceptional circumstances existed, justifying the late filing of the notice of appeal. The court considered the reasons for the delay and the merits of the appeal, ultimately granting leave to appeal out of time. However, upon examining the evidence and the primary judge's findings, the court determined that there was no error in the finding of fact regarding the sale and purchase of the motor vehicle. Consequently, the appeal was dismissed.

As a result of the court's decision, the leave to appeal out of time was granted, allowing the appellant to proceed with the appeal. However, the appeal itself was dismissed, and the original decision regarding the sale and purchase of the motor vehicle was upheld.

Orders

Orders of the court

Leave to appeal is granted.

The appeal is 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.