Imelda Reyes v Amad El Ahmad t/as Cars for Everyone
[2014] NSWCATCD 167
•08 September 2014
NSW Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: Imelda Reyes v Amad El Ahmad t/as Cars for Everyone [2014] NSWCATCD 167 Hearing dates: 26 August 2014 Decision date: 08 September 2014 Before: M J Cohen, Senior Member Decision: 1The respondent is to pay the applicant the sum of $13,208.61 immediately, by way of refund of the purchase price of the motor vehicle the subject of the application remaining in the possession or under the control of the applicant.
2The respondent is to arrange, at its cost, for the return of the motor vehicle to its custody from the possession or control of the applicant at her address in Western Australia.
Catchwords: Consumer Claim; clearly inappropriate forum Legislation Cited: Consumer Claims Act 1998
Civil and Administrative Act 2013Cases Cited: Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538, at 563-564;
Oceanic Sun Line Special Shipping Co Inc. v Fay (1988) 165 CLR 197;
Regie National des Usines Renault SA v Zhang (2002) 210 CLR 491 at [25];
AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175Texts Cited: Nil Category: Principal judgment Parties: The applicant appeared in person by telephone from Western Australia. Representation: Nil
Respondent: Mr M Newman, solicitor
File Number(s): MV 14/24387 Publication restriction: Unrestricted
reasons for decision
The applicant appeared before the Tribunal at the hearing conducted on 26 August 2014 by telephone appearance with the connection being made to the applicant's usual residence in Western Australia.
The respondent, by reason of prior leave granted by the Tribunal, appeared by its solicitor, Mr M Newman.
Each of the applicant and the respondent confirmed that they relied upon the materials that they had filed in accordance with the earlier directions made by the Tribunal, and which were available at the hearing on the file.
The applicant gave oral evidence, as did a relative of the respondent, and a principal of the respondent's business, Mr Ahmad El-Ahmad.
The application attracts the jurisdiction conferred by s 6 of the Consumer Claims Act, 1998 (the "Act").
The materials provided disclose that the dispute involves a "consumer claim" as defined in the Act. For reasons advanced more fully below, the requirements of s 7(2)(a) & (c) are satisfied. The orders sought are capable of being made within the terms of s 8(1)(a) & (h) of the Act.
The Tribunal finds that the relevant transaction was brought to fruition within NSW, by reason that after the negotiations were concluded, and agreement reached as to purchase price, that sum was remitted by the applicant to a bank account conducted within NSW at the direction of the respondent notwithstanding that the applicant was at all material times resident within Western Australia.
It follows that the indicia of the contract speak of the place of the debt due upon the contract concluded being NSW and not Western Australia. In those circumstances, NSW is not the clearly inappropriate forum and thereby excluded from being able to exercise power under its jurisdiction, but apt to be the place where the parties must litigate. See Voth v. Manildra Flour Mills Pty Ltd (1990) 171 CLR 538, at 563-564; Oceanic Sun Line Special Shipping Co Inc. v Fay (1988) 165 CLR 197; Regie National des Usines Renault SA v Zhang (2002) 210 CLR 491 at [25].
The applicant relied upon her statement dated 16 June 2014, and other documents filed in the Registry on 23 June 2014, and gave oral evidence.
The respondent relied upon a bundle of documents filed on 4 July 2014, but which did not contain a statement from Mr El Ahmad in the fashion required by the earlier directions made on 4 June 2014, which is puzzling given the representation of it by a solicitor. Nonetheless Mr. El-Ahmad gave evidence for the respondent.
It is to be noted that the respondent's solicitor was unable to provide satisfactory answers to a number of questions put by the Tribunal that ought to have been within his instructions, and did not appear to have been provided with any of the materials that had been filed by the applicant in accordance with the earlier directions made. It was not suggested that such materials had not been provided to the respondent by the applicant. In any event, any prejudice was avoided by the Tribunal providing access for the respondent's solicitor to the folder of materials which had been filed by the applicant.
The Tribunal formed the view, however, that the relative state of unpreparedness of the respondent's representative was sufficient to deny any application made to cross-examine the applicant by reason that there would not be a true observance of the guiding principle contained in s 36 of the Civil and Administrative Tribunal Act, 2013 (the "C & A Act"). This decision was made having regard to the fact of the difficulty of the hearing being conducted by telephone; the likelihood that the cross-examination would take the applicant by surprise about matters that had not been flagged by a statement required by the directions but not provided; and the real possibility that the hearing time allocated at the time of directions would be exceeded to the prejudice of the succeeding matter listed for 3.15 pm that day.
The background facts and circumstances disclose at first blush that the applicant purchased a motor vehicle from Cars for Everyone, a motor dealer in Lidcombe NSW conducted by the respondent, by way of responding to an advertisement placed by the respondent on an online advertising service known as "Gumtree" identifying it as the seller of the vehicle. The respondent asserted that he was only acting as a conduit for a private seller.
The issue for determination thereafter appeared to be whether the respondent had conducted himself in a fashion that justifies an order by the Tribunal in favour of the applicant that:
(1) the respondent refund all of the purchase price paid for the vehicle the subject of the dispute which remains in the possession or under the control of the applicant; and
(2) the applicant return the vehicle to the respondent at the cost of the respondent.
The applicant's evidence was to the following effect:
(1) On 25 February 2014 she and her husband relied upon an online advertisement place by the respondent on the Gumtree site advertising the vehicle in dispute as a 2008 Nissan Elgrand Van/Minivan for the purchase price of $12,990. The applicant has provided a copy of the online advertisement, and the Tribunal is satisfied that this is the material viewed. The Tribunal notes an error in the applicant's statement which identifies the date of this event as 26 February 2014, but is satisfied it is a genuine error of transcription by reason that an associated telephone conversation with the respondent is able to be fixed by reference to the applicant's mobile telephone records in evidence before the Tribunal as occurring on 25 February 2014, having been conducted at 2.15 pm WA time and having a duration of 4 minutes. The applicant's oral evidence was that she and her husband looked at a number of other vehicles on the Gumtree site besides the vehicle the subject of the dispute, and looked at the introductory page on the website for each, and relied upon such information accordingly. The Tribunal is satisfied by this evidence, and finds this to be what occurred at the time.
(2) A subsequent conversation occurred between a representative of the respondent and the applicant's husband on 27 February 2014 at which time some negotiation was conducted as to price and an offer was made in the sum of $11,500. This price was subsequently agreed between applicant and respondent in a further telephone conversation in which the respondent's representative, apparently Mr Ahmad El-Ahmad, was asked by the applicant if the vehicle "was registered and working fine", and Mr. El-Ahmad responded to each question affirmatively. The applicant also testified that it was her belief that the vehicle was registered until August 2014. Mr El-Ahmad denied this conversation maintaining that he informed the applicant that the vehicle "was imported in 2008 but was not a 2008 compliance plate". The Tribunal finds that the applicant was not informed that the vehicle was in fact manufactured in 1999, and that she believed the vehicle was registered until August 2014. The Tribunal prefers the evidence of the applicant to that of the respondent on this matter, founded as it is in contemporaneous documents. If that be a wrong conclusion about the meaning of such evidence, the Tribunal nonetheless is satisfied that a reference in a telephone conversation to a technical term such as "a compliance date" is apt to mislead the ordinary person unfamiliar with the true meaning of such a term, and that the applicant always understood and believed the vehicle the subject of the negotiations was manufactured in 2008.
(3) Thereafter, the applicant was provided with necessary particulars of the account for the payment of moneys, which the applicant proves by a copy put into evidence of a Commonwealth Bank "Netbank" receipt for the sum of $11,500. The applicant also puts into evidence copies of text messages recorded upon her smartphone providing the same bank details as appear upon the Netbank receipt, and a further text message from the representative of the respondent confirming the understanding of the applicant that the seller of the vehicle was "Cars for Everyone". The Tribunal finds that the applicant was provided with particulars that only are able to lead reasonably to the conclusion that the vehicle the subject of the dispute was being sold by a dealer, Cars for Everyone, operated by the respondent in the ordinary course of his business.
(4) The applicant arranged, with the assistance of a representative of the respondent who was contacted by the applicant at its Lidcombe premises by telephone on 2 March 2014, for a quotation for costs of transport of the vehicle to WA by an entity styled as Ceva Logistics. This process appears to have been undertaken by Mr Suleyman Sari as the representative of the respondent, which the Tribunal finds as a fact in reliance upon a copy of a message apparently copied from a 'smartphone' by the applicant and placed into evidence, disclosing the particulars of the quotation.
(5) The applicant subsequently contracted with Ceva Logistics for this service to be provided, which is proved by the copy of the booking confirmation placed before the Tribunal, and a netbank receipt for payment of the charges in the amount of $1,708.61.
(6) The applicant took custody of the vehicle on 17 March 2014 at the Ceva Logistics depot in Perth, WA, and at that time discovered the certificate of registration issued by NSW Roads and Maritime Services and showing an expiry date of 17 June 2008 (confirmed in the evidence of Mr El Ahmad to have been placed by him in the glove box of the vehicle) identifying the owner as "Caner Secim".
(7) On 18 March 2014, the applicant telephoned Mr El Ahmad to enquire about the registration particulars, and particularly that there was an unidentified third party as the owner of the vehicle, and that it was currently unregistered contrary to her belief, and was informed: "I don't know how you do it there in WA, but you can put it to any name you want." The applicant also informed the respondent that transfer of title to the vehicle needed to be taken into effect within 14 days of the transaction, and was informed by Mr El Ahmad on behalf of the respondent: "I will adjust the date of purchase." The Tribunal infers from that conversation and finds that the respondent informed the applicant that the owner of the vehicle was the person listed on the certificate of registration. That person is not Suleyman Sari. Further, the Tribunal finds that the Respondent did not enter the necessary particulars of sale onto the certificate of transfer, or otherwise provide any proper notice in writing of the sale or the transfer of title to the vehicle.
(8) On 5 April 2014, after being absent from WA on holiday, the applicant was informed that the front tyres of the vehicle were unroadworthy and were required to be replaced. The Tribunal accepts this evidence.
(9) On 7 April 2014, upon enquiry made by the applicant to the respondent, information was provided to her by Mr El Ahmad by telephone, which the Tribunal finds was on the first occasion that day, that the respondent was selling the vehicle for a private seller who would provide a deed of sale. This person was asserted to be Suleyman Sari.
(10) On 8 April 2014, the applicant was provided with a receipt for the funds paid in respect of the vehicle, purporting to assert that the gentleman identified by the respondent as Suleyman Sari has sold the vehicle in dispute for the sum of $11,500. The Tribunal finds, in reliance upon the NSW RMS certificate of title for the vehicle, which was the best available and most reliable source of evidence before it, that the true owner of the vehicle was an unrelated third party identified upon the face of the certificate of registration, contrary to the representation upon the face of the receipt dated 8 April 2014 that the owner was Suleyman Sari. The Tribunal finds further that the respondent did not take any proper steps to have the Applicant recorded as the owner of the vehicle before it was despatched from its car yard in Lidcombe NSW to the applicant for collection at the Ceva Logistics yard in Perth.
(11) On 16 April 2014, the applicant arranged for an inspection of the vehicle by the Western Australian Government Department of Transport, and it was found not to be roadworthy and was rejected for registration in WA that day. The Tribunal draws the inference, upon the usual basis in Briginshaw v Briginshaw (1938) 60 CLR 336, that such an inspection in WA would be apt to lead to the same result in NSW, and finds that the vehicle would have been found to be unroadworthy in NSW at the time of sale by the respondent to the applicant on 1 March 2014, had the same statutory inspection been inspected there and at that time.
(12) The applicant, having made a request for an investigation by the Department of Fair Trading, resulted in a direction by the Department to the respondent in writing dated 17 April 2014 to provide a copy of the prescribed form by which the sale transaction was taken into effect. No reply, to the extent any was made by the respondent, has been provided to the Tribunal. The Tribunal finds that no response was provided to this communication by the respondent, and that on the balance of probabilities that none was ever brought into existence.
The respondent filed documents with the Tribunal in accordance with the directions made for hearing, including:
(1) A copy of an extract from a personal bank account maintained with the Commonwealth Bank styled "Sari F S", which discloses the source of the funds paid to the respondent by the applicant, including the narrative "Transfer from Imelda Reyes Netbank Nissan Elgrand 2008". Curiously this is not the bank account of the respondent which is disclosed in its evidence as being with St George Bank, by a pre-printed deposit slip bearing the narrative as being for the credit of Cars for Everyone.
(2) a copy of the certificate of title for the motor vehicle the subject of the dispute disclosing the registered owner of the vehicle being a third party unrelated to the dispute.
(3) a copy of a Gumtree advertisement disclosing the vehicle in dispute as a 'dealer used' registered 2008 model Nissan Elgrand Van/Minivan listed on 25 February 2014.
(4) a copy of a Gumtree advertisement disclosing the vehicle in dispute also as a 'dealer used' unregistered 1999 model Nissan Elgrand Van/Minivan listed on 26 February 2014, noting it as a 2008 import with no registration.
The oral evidence of Mr El Ahamd for the respondent, which unlike the applicant was not otherwise contained within a witness statement contrary to the directions for hearing made by the Tribunal on 4 June 2014, was that at the time he spoke with either of the applicant or her husband he informed them that the vehicle in dispute was a 1999 model and unregistered; that registration was only available at the advertised price, but that after negotiation, the price agreed of $11,500 was on an "as is" basis, without registration. Mr El Ahmad also testified that he disclosed that the car was being sold on behalf of a private seller, and that Cars for Everyone was not acting as a dealer upon the sale.
In the contest upon the evidence, the Tribunal prefers the evidence of the applicant to that of the respondent. This is particularly so by reason that the manifest weight of the documentary evidence leads inescapably to the conclusion that the respondent was acting as a motor dealer. The Gumtree advertisement itself (whichever version is accepted as being known to the applicant) which attracted the attention of the applicant to the vehicle that the respondent was offering for sale, discloses as much. It is to do great violence to common sense to assert, as the respondent does, that a listing on a publicly available website designed for wide dissemination among prospective buyers of used motor vehicles, by a motor dealer, of a vehicle described as being "Dealer used", is anything other than a an offering of a second-hand motor vehicle by a motor dealer.
The Tribunal finds that the respondent was conducting the business of motor dealer at the time that the vehicle offered to the applicant was publicised, and that it was offered in the ordinary course of its business as a motor dealer.
Moreover, in this connection, application was made by the respondent during the period of submissions being made and after all evidence had been received to call Mr Suleyman Sari to give evidence for the purpose of proving that the transaction was personal to him and that it was not in the ordinary course of the respondent's business as a motor dealer.
The Tribunal notes that gentleman up to that point in the hearing had been in the well of the hearing room but was otherwise unidentified by the respondent as relevant to his case; had provided no witness statement to alert the applicant or the Tribunal to the substance of the matters to be advanced; had heard all of the evidence to that point; had made uninvited argumentative interjections during the course of the taking of evidence; and was advanced as a witness in the respondent's case only when it became evident to the respondent during the course of submissions that the Tribunal considered that the substantial weight of the evidence was in the direction that the respondent had offered the vehicle in the ordinary course of its business as a motor dealer. The course proposed by the respondent was no mere calling of evidence in reply.
Further, it was patently clear to the Tribunal that no oral evidence that the gentleman could give was likely to be advanced otherwise than in a self-serving fashion given his earlier unsolicited argumentative commentary. That this was so was exposed, a fortiori, where any oral evidence he might advance in the course of the hearing would be unable to reconcile the clear inconsistency arising upon documents said to have been brought into existence contemporaneously with the transaction in March 2014. Moreover, in respect of one document which was palpably disadvantageous to the respondent's case, the proposed witness was the author.
As no prior notice of this had been provided to the applicant, contrary to the directions made on 4 June 2014, the Tribunal considered that such a course was apt to be prejudicial to the interests of the applicant. Leave to call this further witness was refused upon that footing.
A subsequent application for an adjournment of the hearing also was refused upon the footing that directions made on 4 June 2014 for the preparation of such materials, with which the applicant had complied, had not met with compliance by the respondent in the important respect of disclosure by witness statement of what the respondent's case was to be. In the circumstances of the case, and given the failure of the respondent to discharge the duty imposed upon it by s 36(3) of the C & A Act, the Tribunal formed the view that in conformity with the guiding principles it was a proper exercise of the discretion to refuse an adjournment having regard to the interests of justice beyond and other than those merely those of the respondent. In the Tribunal's judgment, the basis upon which the respondent sought such an adjournment did not meet the standard required by the settled jurisprudence which governs the matter: AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175.
This leads to a consideration of what matters the Tribunal must have in mind in resolving the dispute and framing such orders as might be made in the light of such evidence.
The Tribunal is required, by force of the provisions of s 13(1) of the Act, to make such orders as, in its opinion, will be fair and equitable to all the parties to the claim, and can frame such relief as may appear fair and equitable in accordance with the provisions of s 8(1) or (2) of the Act.
The applicant seeks orders for the payment of the money expended in acquiring the vehicle, and that the respondent be ordered to recover the vehicle and arrange at the respondent's cost for it to be returned to NSW from WA.
Such orders are capable of being made, but the question for the Tribunal is should they be made?
It is clear that the paucity of written documents provided by the respondent at the time of the transaction was so great that none of the obligations imposed upon him by the Motor Vehicle Dealers Act, 1974, including in particular the essential steps of the provision of a contract for sale and a Form 8 notice to the applicant, were observed.
Moreover, the applicant appears to have been allowed to believe that a 2008 vehicle with registration until August 2014, but without warranty, conformably with the position which obtains under a Form 8 notice, was being sold to her by the respondent for a consideration of $11,500. It also is clear that the applicant had assumed the obligation to transport the vehicle to WA in reliance upon such an understanding.
What determines this matter, therefore, is whether there was a sale of a 2008 motor vehicle, with an unexpired period of registration of the vehicle in NSW from March 2104 until August 2014 as the applicant claims; or alternatively, an unregistered 1999 vehicle sold "as is, where is".
The applicant gives evidence that had she been aware of the fact that the vehicle was unregistered she would not have entered into the transaction, by reason of the great difficulty of having to bring into registration an unregistered vehicle, against mere administrative translation of current inter-state registration of the vehicle to that of WA, a process she told the Tribunal she had experienced previously involving a vehicle requiring that process from registration in Qld.
The Tribunal has already found that the applicant's evidence is to be preferred to that of the respondent, and this basis in the applicant's evidence also is accepted as inherently probable and reasonable.
Clearly the applicant was not provided by the respondent with all of the information it was reasonable for a consumer to expect at the time of supply, taking into account all relevant information available at the time of the hearing.
It follows, therefore, in the opinion of the Tribunal, that the most fair and equitable outcome to all of the parties of the claim is that there be a decision for the applicant.
The sum sought by the applicant is constituted by the purchase price of the vehicle in the amount of $11,500; and the cost of transport from NSW to WA in the amount of $1,708.61, a total of $13,208.61.
There is no substantiation of the further cost of two new tyres to replace two existing unroadworthy tyres fitted to the vehicle at the time of the sale by the respondent to the applicant, and this amount of the claim in the amount of $281.84 must be rejected. So much, in the view of the Tribunal represents a basis in money terms for an order which is fair and equitable.
Further it is plainly fair and equitable that the respondent be ordered to arrange and bear the cost of the repatriation of the vehicle to NSW from WA.
The Tribunal makes the orders sought by the applicant accordingly.
M J Cohen
Senior Member
Civil and Administrative Tribunal of New South Wales
8 September 2014
**********
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
Decision last updated: 31 October 2014
0
4
2