Rahme v St James Equipment Pty Ltd
[2013] QCAT 496
•20 September 2013
| CITATION: | Rahme v St James Equipment Pty Ltd & Anor [2013] QCAT 496 |
| PARTIES: | Mr Adwan Rahme (Applicant) |
| v | |
| St James Equipment Pty Ltd Mr Robert Ernest Albert James (Respondents) |
| APPLICATION NUMBER: | OCL026-13 |
| MATTER TYPE: | Other civil dispute matters |
| HEARING DATE: | On the Papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Mr David Paratz, Member |
| DELIVERED ON: | 20 September 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: |
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| CATCHWORDS: | Property Agents and Motor Dealers Act 2000 Global Future Solutions Pty Ltd v Matthew Sulman & Associates [2012] QCAT 670 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
Mr Rahme has made a claim on the fund established under the Property Agents and Motor Dealers Act 2000 for $105,860.77.
He bought a 1999 Isuzu FVR 950 Turbo Crane Tray truck for $82,500 from St James Equipment Pty Ltd (St James) on 13 December 2011. He alleges that at the time of purchase the vehicle was represented as having travelled 242,870 kilometres.
He subsequently experienced difficulties with the vehicle. Investigations showed the vehicle had the original odometer replaced.
Material provided to the Office of Fair Trading suggests that the vehicle may have actually travelled approximately 822,973 kilometres at the time of purchase. A valuation has been obtained which values the vehicle as $27,500 at the time of purchase with the true kilometres.
The claim has been referred to the Tribunal for determination.
I issued Directions with written reasons on 8 July 2013 extending the time for the parties to provide material, and directing any request for an oral hearing to be made by 13 September 2013.
Solicitors for St James and Mr James wrote to the Tribunal on 16 September 2013 requesting an oral hearing. They apologised for the delay as they were awaiting receipt of Counsel’s advice in relation to the matter.
The reasons stated for requesting the oral hearing were:-
(a) There are significant credibility issues in this matter and we require the Applicant to be cross examined; and
(b) There are also significant issues in relation to the damages sought on which cross examination of the Applicant is also required.
Solicitors for Mr Rahme sent an email to the Tribunal on 18 September 2013 in which they vehemently opposed an oral hearing. Their reasons were firstly because the request for an oral hearing was made outside the timetable stipulated in the Orders; and secondly because Mr Rahme, his Solicitor and witnesses all reside and work in Sydney and it would cause Mr Rahme considerable expense and inconvenience for himself, his Solicitor, his Counsel (if necessary) and his witnesses to attend the oral hearing in Brisbane.
I am satisfied that the Solicitors for St James and Mr James have provided a satisfactory explanation for the 3 days delay in requesting an oral hearing, in that they were awaiting the advice of counsel. I do not consider that the period of 3 days would cause any disadvantage to Mr Rahme. I will entertain the request for an oral hearing.
In Global Future Solutions Pty Ltd v Matthew Sulman & Associates [2012] QCAT 670 the President, Justice Alan Wilson, considered an application for an oral hearing where an order had been made for an On the Papers hearing, and made the following comments:-
[10] The apparent conflicts about material matters, and these submissions from the parties, mean it is necessary and appropriate to revisit the question of whether the matter can and should be determined on the papers.
[11] I am persuaded that they should have the opportunity to test the credit of their opponent’s witnesses if they wish to do so. Under s 62 of the QCAT Act the Tribunal may give whatever directions it considers necessary for the speedy and fair conduct of a proceeding and may do so upon its own initiative.
[12] It is now apparent that, at the time the order was made for determination on the papers, the full extent of the dispute between the parties on issues of fact and credit was not apparent. Now that those issues have been brought to the attention of the Tribunal, it is also compelling that a fair hearing requires that the parties have the opportunity to test these matters, eg by cross-examination.
[13] In those circumstances it is appropriate to revoke the earlier order and list the matter for a hearing …
Similar considerations apply in this matter. There is a significant dispute of fact as Mr James alleges that Mr Rahme was advised at least 5 times that the dashboard and odometer had been changed. There are other disputes of fact. These matters will involve questions of credit and can only be determined on a hearing with cross-examination.
Mr Rahme flew to Brisbane from Sydney to purchase the truck. The sale took place in Brisbane, the Respondents are in Brisbane, and the Queensland Tribunal has jurisdiction in the matter.
It is open to Mr Rahme to engage Brisbane Solicitors and Counsel to represent him, rather than bringing them from Sydney, if he wishes to minimise his costs in that respect.
In these circumstances I consider it appropriate to order that an oral hearing be held in Brisbane.
I note that neither party has sought leave to be represented under s 43 of the QCAT Act. Given that there has already been involvement by Solicitors for each party, and the significant amount of money involved, I give leave for both parties to be represented.
I order that the matter be determined by an oral hearing, and direct that a Directions Hearing be held at a date to advised by the Registry to determine further steps in the matter, and give leave to Mr Rahme’s Solicitors to attend the Directions Hearing by telephone.
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