Prosper Ndayizigiye t/as Prosper Global Trading v Niyokindi
[2013] QCAT 427
| CITATION: | Prosper Ndayizigiye t/as Prosper Global Trading v Niyokindi [2013] QCAT 427 |
| PARTIES: | Prosper Ndayizigiye t/as Prosper Global Trading (Applicant) |
| v | |
| Petroniya Niyokindi (Respondent) |
| APPLICATION NUMBER: | MCDO391-11 MCDO1034-13 |
| MATTER TYPE: | Other minor civil dispute matters |
| HEARING DATES: | 4 March, 20 May (Beenleigh) and 10 July 2013 (Brisbane) |
| HEARD AT: | Beenleigh and Brisbane |
| DECISION OF: | Trevor Davern, Adjudicator |
| DELIVERED ON: | 13 September 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Application is Dismissed |
| CATCHWORDS: | Minor Debt Claim – Unsolicited Consumer Agreement – adherence to Australian Consumer Law – extended time for termination of agreement when trader breaches terms of Competition and Consumer Act 2010 – when the goods become the property of the consumer. Queensland Civil and Administrative Tribunal 2009 Schedule 3 – “trader” Competition and Consumer Act 2010 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr Prosper Ndayizigiye represented by |
| RESPONDENT: | Mrs Petroniya Niyokindi represented by Mr JP Gibney – Legal Aid Solicitor |
| INTERPRETERS: | “Kirundi” language interpreters Ms Iragi Nadege Mweze – 20/5/13 Mr Albert Ndajijimaia – 10/7/13 |
REASONS FOR DECISION
This is a “Minor Debt” claim by Mr Ndayizigiye (proprietor of Prosper Global Trading) against Ms Niyokindi for payment of goods that he has delivered to her on 8 June 2011. Ms Niyokindi challenges the claim on the basis that there was no contract agreement, or if there was an agreement it was unsolicited and unenforceable in the circumstances.
BACKGROUND
The Applicant and the Respondent came separately to Australia as refugees in 2007. Both parties and the four witnesses all come from the African country of Burundi, and their native language is “Kirundi”. Burundi was a francophone country and the Applicant also speaks French. The Applicant’s representative (Mr O’Brien from Logan Lodge Consulting Services) is also fluent in French and communicates with his client using the French language. Mr O’Brien advises that he is also a qualified lawyer. Neither the Applicant nor the Respondent is fluent in spoken or written English. The Respondent cannot read or write in any language.
There had been previous dealings between the parties. The Applicant’s wife (Bernadetha Nzorubara) had known the Respondent (Petronia Niyokindi) at a refugee camp before coming to Australia in 2007. The Respondent sought assistance from her local church for replacement furniture after her husband had left her (and six school age children) and taken items of furniture and the family car in late 2010.
Many people from the Burundi community attend the same Catholic church. Consequently, Prosper Global Trading delivered a set of sofa/chairs in September 2010, at a cost of $1700. A deposit of $500 was paid to the Applicant’s wife in January 2011, with the final payment of $1,200 paid to the Applicant’s wife on 5 June 2011. The Respondent obtained a no interest loan from Multilink in 2011 to make that purchase. The Applicant’s wife knew that the Respondent would be paying off that loan at $30 per fortnight, until 25 January 2013. There was no written contract or documentation between the parties in relation to this purchase.
When the $500 was paid in January 2011, there were discussions between the Respondent and the Applicant’s wife, about items of furniture which are now the subject of this claim. There is uncontested evidence that on 8 June 2011, the goods were delivered to the Respondent’s home without any prior warning.
After demands of payment for the furniture were ignored by the Respondent, the relationship between the two degenerated to such an extent that ACCESS Services Inc and Legal Aid Queensland provided assistance to the Respondent. A complaint and summons was filed in the Beenleigh Magistrates Court on 14 December 2011 for a peace and good behaviour order. In her supporting affidavit, the Respondent alleged that the Applicant had on a number of occasions propositioned her for sex. A hearing of the complaint was conducted on 26 April 2012.
Ms Niyokindi succeeded in obtaining an order in the Beenleigh Magistrates Court under the Peace and Good Behaviour Act 1982 against Mr Ndazyiigiye. The order was made on 26 April 2012 and contained the following terms:
a)That the respondent (Mr Ndayiigiye) keep the peace and be of good behaviour towards the complainant (Ms Petronia Niyokindi) for a period of 12 months;
b)That the respondent not assault, threaten to assault, molest or threaten to molest the complainant;
c)That the respondent not enter the premises of the complainant or come within 100 metres of her premises – this clause to take effect as of April 26, 2012;
d)That the respondent have no contact with the complainant;
e)That the respondent not damage or threaten to damage the complainant’s property;
f)That the respondent is not prevented from proceeding with any present or future civil proceedings in relation to moneys owed by the complainant to the respondent.
Mr O’Brien had filed the Application with the Queensland Civil and Administrative Tribunal (QCAT) at Beenleigh on 24 November 2011. Records confirm that the application was not served on the Respondent prior to 4 July 2012. A letter was received by QCAT from Quinn & Scattini Lawyers on 28 June 2012. This letter enclosed applications to extend time for service of this and four other minor debt claims by Prosper Global Trading (against other named Respondents), sequentially numbered 388 to 392/11.
The claim in this case is for a total sum of $7,662.32. This is made up of $7,300.00 for goods delivered, $233.32 for Quinn & Scattini legal costs, $95.00 filing fee and $34.00 service fee. On 10 September 2012 a Response to the minor debt claim was filed with QCAT, seeking a dismissal of the claim.
After an unsuccessful attempt at mediation, the matter was listed for hearing at Beenleigh on 4 March 2013. No interpreter was available on this day and directions were issued for the production of affidavit evidence from witnesses. The matter was adjourned to 20 May 2013. On this day an interpreter was only available for a limited time and the hearing had to be further adjourned. Mr O’Brien was also showing signs of what could be serious health issues when he slumped over the bar table. The matter was adjourned for final determination on 10 July 2013 at Brisbane.
On 10 July, Mr O’Brien again fell ill with what appeared to be a further stroke or other serious health issue. QCAT security arranged for his transport via ambulance before he made any presentation to the Tribunal hearing. The Tribunal determined that with the accumulated statements and other evidence already received, then the Applicant would be at no disadvantage with the hearing proceeding in the absence of Mr O’Brien. Mr O’Brien lodged written submissions with QCAT on 12 and 23 July 2013. The contents of these have been considered but do not alter the following determinations.
It had already been confirmed that the Applicant was identified as a “trader” within the definition provided in the Queensland Civil and Administrative Tribunal Act 2009, as well as a “dealer” within the definition found in the Competition and Consumer Act 2010 (“CCA Act”). He has operated the business named ‘Prosper Global Trading’ since 1 September 2010. The business involves travelling to China for purchasing furniture, carpets, TV screens, advertisers, beds and bed sheets, clothes and other items, which he sells in Australia.
The ‘Affidavits’ presented by the Applicant were produced by Mr O’Brien in accordance with the commonwealth Statutory Declarations Act 1959, instead of the Oaths Act 1867. The content of these affidavits invited further scrutiny as there was no interpreter certification with the ‘Affidavits’. The witness Abel Sibonio was the only one who had indicated a fluency in spoken and written English.
On 10 July 2013, the Tribunal had the benefit of receiving direct evidence from all of the identified witnesses. They included Ms Bernadetha Nzorubara, Mr Abel Sibonio and Mr Juma Binago. The direct questioning of witnesses soon resolved any minor discrepancies in their written statements.
It is the Applicant’s position that Ms Nzorubara (his wife) entered into an agreement on his behalf with the Respondent in January 2011, for the purchase of the subject goods. In her evidence the Applicant’s wife stated that she suggested to the Respondent that she would help her and show her various sale brochures of other furniture items. Ms Nzorubara described how she made telephone contact with her husband to identify prices of items discussed with the Respondent. The Applicant himself only has vague recollections of these discussions.
From the way the agreement was described, it might have amounted to an unsolicited consumer agreement between the Applicant and Respondent. However, in such a case the Applicant had an obligation to firstly advise the Respondent of the Applicant’s intention to seek a purchase agreement before negotiations started (s 74), and to deliver an agreement document within a limited time, with notification of the consumer’s rights to terminate the agreement (ss 78, 79, 80 Competition and Consumer Act 2010).
These essential requirements of the CCA Act were not complied with by the Applicant and there is insufficient evidence to substantiate that any agreement was completed between the parties in January 2011.
The Respondent was vague in her answers to questions while giving evidence at the hearing. She provided a response (through the interpreter) that she was “mixed up in the head with all the troubles”.
DECISION
From the available evidence the Tribunal determines that the following facts identify the sequence of key events
a)The Applicant’s wife visited the Respondent in mid January 2011 to collect the $500 deposit for the goods delivered to the Respondent in 2010. During this visit she initiated discussions with the Respondent about additional furniture items.
b)Final payment of $1,200 was made on 5 June 2011 for the original goods.
c)Without prior warning, the goods that are the subject of this case were delivered to the Respondent’s home on 8 June 2011.
d)When pressed by the Applicant, the Respondent attended a meeting on 25 June 2011, when the contents of the contract and other documents were fully discussed and described to her by Mr Abel Sibonio. Mr Sibonio (a community leader and Justice of the Peace) confirmed the Respondent’s understanding and agreement to the terms in those documents.
e)The evidence suggests that the Applicant has followed the original pattern of sale of goods to the Respondent, with a delivery of goods first (2010), and a confirmation of the costs and payment thereof dealt with at a later time. That past consideration (previous purchase) is no consideration for this current issue.
f)An unsolicited consumer agreement was entered into on 25 June 2011. The Respondent knew and trusted Mr Sibonio and she did not express any concerns to him about what was happening at the meeting.
g)However, no deposit was paid by the Respondent, and there was no evidence to indicate that the Respondent had any financial means to pay the contracted sum of $9,800 at all, let alone within the 14 days stipulated in the contract document. The prices attributed to the subject goods appear to be exorbitant, given that the Respondent had limited financial means and only required basic pieces of furniture.
h)The Applicant was aware that the Respondent had only managed to pay for the previous goods (delivered in 2010) with a no interest loan that she was still paying off at $30 per fortnight. That loan was only paid off in January 2013.
i)An officer with ACCESS Services Inc (Ms Soraya Nabizadeh) contacted Mr O’Brien’s office on 12 August 2011 to confirm the Respondent’s wish to terminate the agreement and that the Respondent had communicated to the Applicant that she wanted to return the goods.
j)On 10 October 2011, the Applicant and Mr Sibonio attended at the Respondent’s property and collected the TV, which was broken and needed to be sent to China for repair. The value of the TV ($2,500) was deducted from the original bill.
k)The Respondent had requested assistance from ACCESS Services Inc to remove the goods. In a written communication from ACCESS Services to Mr O’Brien’s office on 21 December 2011, it was confirmed that the Respondent wanted the goods to be returned to the Applicant’s business as soon as possible.
l)On an unknown date the goods were removed from the Respondent’s property by an ACCESS employee. That person is no longer in the employ of ACCESS and the whereabouts of the goods is unknown. ACCESS Services Inc thought that the goods had been returned to the Applicant. However, the Tribunal accepts the evidence of Mr Prosper Ndayigiziye that the goods were not returned to him or his business.
Culturally, the people involved in this case may be more accustomed to less formal business dealings. At the least, they are not familiar with the strict requirements of Australian Consumer Law (ACL). Whilst a large portion of the community might not have a detailed familiarity with ACL, people who operate in the business of a trader or dealer must be more vigilant.
The Applicant has displayed entrepreneurial flare and sought assistance in setting up his business. He has given evidence that he has been assisted by a Mr Warren Black, who is a Business and Marketing Strategist and Business Coach. It was he who provided the draft form of contract that was used on 25 June 2011.
The following flaws are evident in the contract documents that were completed on 25 June 2011 :
a)The front page did not include a notice of the consumer’s right to terminate the agreement (s 79(b) CCA Act);
b)Parts 5 to 8 of the document contain misleading terms that are contrary to law eg. “5. The Seller… gives no warranty or guarantee…”, “7. The Goods are sold as-is and the Seller shall not be liable for any defects, patent, latent or otherwise.”- “8.The risk passes to the Buyer once the Buyer …takes possession of the goods.” (refer ss 54, 64 CCA Act).
c)The delivery docket recorded the date of delivery as 25 June when in fact it was 8 June 2011.
Unsolicited Goods – s 41 (CCA Act)
At the time of the actual delivery of the goods on 8 June 2011, the subject goods could be categorised as “unsolicited goods”. As such the Respondent was not liable to pay for them. If the goods had not been collected within the recovery period then the goods could have become the property of the recipient.
In this case it was within the recovery period that the unsolicited consumer agreement has occurred on 25 June 2011.
Unsolicited Consumer Agreement s 69(1) (CCA Act)
On balance there is sufficient evidence that there was an agreement. The evidence clearly identifies that this agreement was an Unsolicited Consumer Agreement:
a)It was for the supply of goods;
b)Any discussions or negotiations occurred between the wife of the Applicant and the Respondent and were initiated by the Applicant’s wife when she visited the Respondent at her home to collect a deposit payment of $500 for the 2010 delivery of other goods;
c)The Respondent hadn’t invited the Applicant’s wife to engage in any negotiations for a new purchase of goods. The Applicant’s wife invited the Respondent back to her home to show her brochures of goods;
d)The nominated price for the subject goods was $9,800.00.
The Applicant has not rebutted the presumption that it was an unsolicited consumer agreement (s 70).
Breaches of the Competition and Consumer Act 2010
Section 76: the Applicant has failed to provide information to the Respondent about her right to terminate the agreement, before making the agreement,
Section 79: the front page of the agreement document did not include information about the consumer’s right to terminate the agreement (s.79(b)(i)), and the agreement document was not accompanied by a ‘notice’ that could be used by the consumer to terminate the agreement (s.79(c)).
The effect of the breaches
As a consequence of the identified breaches, the Respondent had a period of up to 6 months from the agreement date, within which she could terminate the agreement (s 82(d)(i)&(ii)).
The Passing of Property – ss 82, 83, 85 (CCA Act)
It is determined from the evidence that a proper termination notice was issued to the Applicant in relation to the unsolicited consumer agreement on 12 August 2011, via communication from ACCESS Services Inc to Mr K O’Brien of Logan Lodge Consulting Services, together with communication from the Respondent to the Applicant. With this the agreement is taken to have been rescinded. The Applicant was invited to collect the subject goods.
As no attempt was made by the Applicant to collect the subject goods within 30 days of 12 August 2011, then the subject goods became the property of the Respondent thereafter, with no money payable to the Applicant.
DECISION
Application is Dismissed.
0
0
0