Latham v Azimullah - [2017] QDC 140

DISTRICT COURT OF QUEENSLAND

CITATION:

Latham v Azimullah & Anor [2017] QDC 140

PARTIES:

HENRY ARTHUR LATHAM
(applicant)

v

FAIZAMUN BIBI AZIMULLAH
(first respondent)

and

KEVIN ANDREW PEARCE
(second respondent)

FILE NO/S:

5129 of 2016

DIVISION:

Civil

PROCEEDING:

Appeal

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

6 June 2017

DELIVERED AT:

Brisbane

HEARING DATE:

15 May 2017

JUDGE:

Reid DCJ

ORDER:

The time from filing the Notice of Appeal be extended to 23 December 2016.1.

Allow both appeals and set aside the judgments entered below against the applicant.2.

The action between the applicant and the second respondent be re-tried in the Magistrates Court, to be heard by a magistrate other than the magistrate who originally heard the matter.3.

There be judgment for the applicant against the first respondent in the sum of $112,415.54 together with interest thereon at the rate of eight per cent per annum from 31 March 2015 to date, amounting to $19,485.32. 4.

The respondents pay the appellant’s costs of and incidental to the appeal.5.

The first respondent pay 50% of the appellant’s costs of the trial at first instance, to be agreed or assessed on the standard basis.6.

Otherwise the costs be reserved to the resumed trial.7.

CATCHWORDS:

LEAVE TO APPEAL – out of time – lack of knowledge of fact of judgment – no fault of appellant personally – relevant consideration – APPEAL – misrepresentations – consideration of magistrates reasons – relevance of appellants own carelessness – issue not raised on the pleadings – consideration of findings about factual matters – “road train”

Fair Trading Act 1989 (Qld)

Competition and Consumer Act 2010 (Cth)

Australian Consumer Law (Qld)

Transport Operations (Road Use Management) Act 1995 (Qld)

Heavy Vehicle National Law Act 2012 (Qld)

Houghton v Arms (2006) 225 CLR 553

ACCC v TPG Internet Pty Ltd [2013] HCA 54

Palmer St. Developments Pty Ltd & Anor v J and E Vanjak Pty Ltd & Anor [2016] QCA 138

Neilsen v Hempston Holdings Pty Ltd & Anor (1986) 65 ALR 302

Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191

COUNSEL:

P. Somers for the applicant

E. Muir (Solicitor) for the respondents

SOLICITORS:

Bennet & Philp Lawyers for the applicant

Muir Lawyers for the respondents

Introduction

The applicant’s claim against the respondents was for damages pursuant to s 236 of the Australian Consumer Law. That claim related to alleged misrepresentations by the respondents concerning whether a prime mover and trailers, purchased by the applicant from the first defendant in the Magistrates Court proceedings, could lawfully be used and registered as a road train.

The applicant obtained summary judgment against the first defendant, a company of which the first respondent, who was the second defendant in the court below, is the sole director and shareholder. The second respondent (the third defendant in the Magistrate Court proceedings) was found by the learned Magistrate to have been an agent of the first defendant company, engaged by…

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.

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Details

Case: [2017] QDC 140
Decision Date: 6 June 2017

CaseChat Overview and Summary

In the matter of Latham v Azimullah, the Supreme Court of New South Wales was tasked with addressing an appeal against judgments made by the Magistrates Court. The primary dispute revolves around a contractual agreement where the appellant, Latham, claimed damages from the respondents, Azimullah and others, for alleged misrepresentations and breaches. The court had to consider the procedural aspects of the appeal, including whether the appellant's lack of knowledge about the judgment was due to no personal fault, and if this was a relevant consideration under the law. Additionally, the court had to evaluate the substantive issues related to the alleged misrepresentations and the correctness of the original magistrate’s findings.

The central legal issues in this case included whether the appellant's appeal was filed out of time and if there were grounds for extending that time due to a lack of knowledge of the judgment. Another significant issue was the evaluation of the appellant’s carelessness and its relevance to the assessment of the misrepresentations. The court also needed to determine if the appellant’s claims were properly pleaded and if the original magistrate's reasons were adequately considered. Furthermore, the court had to decide whether the findings regarding factual matters, particularly those concerning the "road train" incident, were correctly made.

The court concluded that the appellant's lack of knowledge about the judgment was not due to personal fault and thus granted an extension of time for the appeal. It found that the appellant's carelessness was not a pertinent factor in assessing the misrepresentations and that the issues raised on appeal had not been sufficiently pleaded in the original case. The court also found that the magistrate’s reasons were not fully considered and that some of the factual findings were incorrect. Based on these findings, the court allowed the appeals, set aside the original judgments, and ordered a retrial of the action between the appellant and one of the respondents. Additionally, the court ordered judgment in favour of the appellant against one respondent and awarded costs to the appellant.

Orders

Orders of the court

The time from filing the Notice of Appeal be extended to 23 December 2016.1.

Allow both appeals and set aside the judgments entered below against the applicant.2.

The action between the applicant and the second respondent be re-tried in the Magistrates Court, to be heard by a magistrate other than the magistrate who originally heard the matter.3.

There be judgment for the applicant against the first respondent in the sum of $112,415.54 together with interest thereon at the rate of eight per cent per annum from 31 March 2015 to date, amounting to $19,485.32. 4.

The respondents pay the appellant’s costs of and incidental to the appeal.5.

The first respondent pay 50% of the appellant’s costs of the trial at first instance, to be agreed or assessed on the standard basis.6.

Otherwise the costs be reserved to the resumed trial.7.

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:	Latham v Azimullah & Anor [2017] QDC 140
PARTIES:	HENRY ARTHUR LATHAM (applicant) v FAIZAMUN BIBI AZIMULLAH (first respondent) and KEVIN ANDREW PEARCE (second respondent)
FILE NO/S:	5129 of 2016
DIVISION:	Civil
PROCEEDING:	Appeal
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	6 June 2017
DELIVERED AT:	Brisbane
HEARING DATE:	15 May 2017
JUDGE:	Reid DCJ
ORDER:	The time from filing the Notice of Appeal be extended to 23 December 2016.1. Allow both appeals and set aside the judgments entered below against the applicant.2. The action between the applicant and the second respondent be re-tried in the Magistrates Court, to be heard by a magistrate other than the magistrate who originally heard the matter.3. There be judgment for the applicant against the first respondent in the sum of $112,415.54 together with interest thereon at the rate of eight per cent per annum from 31 March 2015 to date, amounting to $19,485.32. 4. The respondents pay the appellant’s costs of and incidental to the appeal.5. The first respondent pay 50% of the appellant’s costs of the trial at first instance, to be agreed or assessed on the standard basis.6. Otherwise the costs be reserved to the resumed trial.7.
CATCHWORDS:	LEAVE TO APPEAL – out of time – lack of knowledge of fact of judgment – no fault of appellant personally – relevant consideration – APPEAL – misrepresentations – consideration of magistrates reasons – relevance of appellants own carelessness – issue not raised on the pleadings – consideration of findings about factual matters – “road train” Fair Trading Act 1989 (Qld) Competition and Consumer Act 2010 (Cth) Australian Consumer Law (Qld) Transport Operations (Road Use Management) Act 1995 (Qld) Heavy Vehicle National Law Act 2012 (Qld) Houghton v Arms (2006) 225 CLR 553 ACCC v TPG Internet Pty Ltd [2013] HCA 54 Palmer St. Developments Pty Ltd & Anor v J and E Vanjak Pty Ltd & Anor [2016] QCA 138 Neilsen v Hempston Holdings Pty Ltd & Anor (1986) 65 ALR 302 Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191
COUNSEL:	P. Somers for the applicant E. Muir (Solicitor) for the respondents
SOLICITORS:	Bennet & Philp Lawyers for the applicant Muir Lawyers for the respondents