Shah v Baqir
[2017] ACAT 32
•2 May 2017
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
SHAH & ANOR v BAQIR (Civil Dispute) [2017] ACAT 32
XD 993/2016
Catchwords:CIVIL DISPUTE – contract – sale of car – payment by instalments – default in instalment payments – terms of the contract – no termination clause – repossession of car sought – no contractual bailment for reward - damages
Counterclaim – disputed oral employment contract – terms of contract – default in payment – set off
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 16
Cases cited: Associated Newspapers Ltd v Bancks [1951] HCA 24
Tramways Advertising Pty. Ltd. v Luna Park (NSW) Ltd (1938) 38 SR (NSW) 632
Tribunal: Presidential Member E Symons
Date of Orders: 2 May 2017
Date of Reasons for Decision: 2 May 2017
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) XD 993/2016
BETWEEN:QASIM SHAH
SHAHIDAH YASMIN SHAH
Applicants
AND: MAZHAR IHTESHAM BAQIR
Respondent
TRIBUNAL: Presidential Member E Symons
DATE:2 May 2017
ORDER
The Tribunal orders that:
1. Subject to order 2, judgment for the applicants in the sum of $15,390 plus the filing fee of $70, which totals $15,460.
2. Judgment for the respondent on the counterclaim for $15,684 plus the filing fee of $145, which totals $15,829.
3. In full and final satisfaction of the above judgments:
(a) within 28 days of the date of this order the applicants sign and deliver to the respondent the registration document and any other documentation necessary to transfer the registration of the Toyota Prado GXL registration (VIC) YBN472, which is in the respondent’s possession, to the respondent; and
(b) within 28 days of the date of this order the applicants pay to the respondent $369 being the difference in the judgments above ($15,829 - $15,460).
………………………………..
Presidential Member E Symons
REASONS FOR DECISION
Background
1. On or about 21 November 2014 Qasim Shah, on behalf of his wife, Shahidah Yasmin Shah, (the applicants) entered into an agreement with Mazhar Ihtesham Baqir (the respondent) to sell Ms Shah’s Toyota Prado GXL motor vehicle registration (VIC) YBN 472 (the Toyota) to the respondent for $30,000 payable by 36 monthly payments of $833 commencing 1 December 2014 and ending on 1 November 2017.
2. The respondent did not make the monthly instalment payments after September 2015.[1]
[1] Transcript of proceedings 1 February 2017 page 10 line 43
3. Mr Shah sent a letter of demand to the respondent dated 15 August 2016 seeking the payment by 15 September 2016 of $8,449.85 which he claimed were the outstanding instalments to and including 1 August 2016.
4. On 31 August 2016, Legal Aid ACT, on behalf of the respondent, sent a ‘without prejudice’ letter to Mr Shah about the registration of the Toyota, the amount claimed in the letter of 15 August 2016 and an employment matter between Mr Shah and the respondent (the Legal Aid letter).
5. The respondent alleged that he had been employed by Mr Shah to manage his taxis between June 2014 and March 2016 and that Mr Shah owed him outstanding management fees which should be offset against the outstanding Toyota instalments. Mr Shah admitted that he employed the respondent to drive his taxis but denied that he employed the respondent to manage his taxis.
6. These proceedings relate to the sale of the Toyota to the respondent and to the respondent’s claim for outstanding management fees from Mr Shah.
The Proceedings
7. Mr Shah filed a civil dispute application with the tribunal on 13 September 2016 in which he sought an order for “Repossession of Car: YBN 472.”
8. The respondent filed a response on 10 October 2016 in which he sought that “the application be dismissed” and that “the applicant undertake to satisfy the requirements under section 71 of the Road Safety (Vehicles) Regulation 2009 (Vic)”.
9. The parties attended a preliminary conference at the tribunal where directions were made and the matter was set down for hearing.
10. In compliance with the directions the respondent filed his response and counter claim on 2 December 2016. In the counter claim the respondent alleged that he had been employed by Mr Shah and stated:
...
I claim that whilst there was no written contract between Mr Shah and Mr Baqir regarding employment, there was in fact a verbal contract for employment between us.
The employment contract is evidence by the agreement between Mr Shah and me that Mr Shah would pay me a weekly administrative fee of $50 per taxi.
The employment contract is further evidenced by the statements of Taxi drivers and auto-mechanic.
11. The respondent then stated:
Qasim Shah is liable for a fine of up to $3,000 for failing to provide me with the Transfer of Registration form as required by law;
I have paid $15,790.85 of the $30,000 purchase price for the Toyota Prado Vehicle leaving $14,209.15 outstanding;
Under the contract for employment between Mr Shah and me, Mr Shah owes me $20,250 for his management of his taxi business between 11 August 2014 and March 2016;
When the two debts are totalled against one another, my debt to Mr Shah is satisfied, and he owes me a total of $6,040.85.
12. On 23 December 2016 Mr Shah filed his response to the counter claim to which he annexed a bundle of documents. He denied that he employed the respondent as a manager. In the response, Mr Shah referred to the Legal Aid letter and stated:
The Respondent has been driving double shifts (day & night for 7 days) for me – such huge workload clearly indicates he cannot manage his business activities for me?
He was robbing me and my business from left and right while collecting some of the taxi-drivers takings for his interests so called for me. I have never denied him driving for me and/or dealing with some drivers. (The six taxis fleet needs more than 12 drivers every 24 hours).
The Hearing
13. The application and the counter claim were heard on 1 February 2017. Mr Shah and the respondent represented themselves, gave evidence and were cross examined. The respondent called evidence from Khalil Khan Khattak and Abrar Ali, who had each filed witness statements. Each of these witnesses was cross examined. The Tribunal made the following orders after hearing the evidence:
1. The Respondent provide to the Tribunal and to the Applicant the following documentation in support of his counter claim, namely the SMS messages and a copy of his notebook, by close of business 15 February 2017,
2. The Applicant provide to the Tribunal and to the Respondent his written response to the documentation provided by the Respondent pursuant to Order 1, by close of business 1 March 2017.
3. Decision reserved.
14. After receiving the above documentation the Tribunal relisted the matter for hearing on 9 March 2017. At that hearing, which the parties attended by telephone, the Tribunal made orders by consent joining Shahidah Yasmin Shah, the registered owner of the Toyota, as an applicant. She also attended the hearing and informed the Tribunal that she agreed with the matters set out by Mr Shah in his tribunal documents and did not wish to file any additional documentation.
15. This is the Tribunal’s decision.
Jurisdiction
16. The Tribunal is a statutory body established by the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act) and only has such jurisdiction and powers as are conferred on it by the legislature. The Tribunal’s jurisdiction to hear civil disputes is set out in Part 4 of the ACAT Act. A ‘civil dispute’ is defined in section 16 of the ACAT Act, relevantly, as follows:
“civil dispute” means a dispute in relation to which a civil dispute application may be made.
“civil dispute” application means an application that consists of 1 or more of the following applications:
(a) a contract application;
...
(d) a goods application;
17. The applicants are alleging that there was a contract between Mr Shah and the respondent and that he is entitled to the possession of the Toyota. In the counter claim the respondent is alleging there was an employment contract between himself and Mr Shah and that Mr Shah owes him monies which should be offset against any monies he owes to the applicants for the Toyota. The Tribunal has jurisdiction to hear these civil disputes.
Consideration
18. The Tribunal will consider the applicants’ claim in relation to the Toyota first and then consider the respondent’s counter claim for unpaid management fees under the alleged employment contract.
19. Despite the hearings on 1 February 2017 and 9 March 2017, the documentation and the testimony of the applicants, the respondent and the respondent’s two witnesses, the facts of these matters remain somewhat unclear. The parties also raised matters in their evidence which were not relevant to the matters to be determined by the Tribunal. The Tribunal has had regard to all of the relevant evidence presented. It must do the best it can on the evidence before it in reaching its decision. Based on the evidence before the Tribunal, both contested and uncontested, the Tribunal is satisfied that the following facts are made out on the balance of probabilities.
The Toyota
20. In about November 2014 Mr Shah, on behalf of his wife, offered to sell the Toyota to the respondent. Ms Shah confirmed this on 9 March 2017. On 21 November 2014 Mr Shah emailed the respondent the details of the offer to sell the Toyota. The email stated:
AoA: Br Ehtesham Sahib,
Please accept the agreement if you agree. This is an attempt to eliminate any confusions and/or misunderstandings between us.
The car (Toyota Prado GXL Silver model 09/2006) is registered in Fawkner (Melbourne) until 18 November 2015 with VICROADS. It has all the keys (working), full service history and covered 85K km. It has been recently serviced and got a new battery. Every service was done by the Toyota Service department. The condition is excellent, and there are no traffic, parking, defects, notices/fines pending on this car/YBN472. It has no finance or loan on it. My wife, Mrs Shahidah Yasmin Shah, is the sole registered owner for this vehicle.
You are welcome to keep the same registration and owner as long as you like. However once this is handed over to you by the end of this month (by 30 November 2014), then you will be fully liable and responsible for its future maintenance, expenses and/or running costs including its insurance. Whenever you are ready to change its owner and transfer/register it to your name and/or your nominee, we will unconditional sign the required papers for you.
Issue: Its front bumper has minor damage, Insha Allah, we will pay for its fixing (Paint touch-up) or its complete replacement in Canberra.
Price and its conditions: The total sale price is $30,000 with monthly payments of $833 per month for the next 36 months commencing 1st December 2014 and ending on 1st November 2017 (inclusive) – in total 36 payments/months and each payment/month amount is $833.00
You can deposit its monthly payments into the following ANZ bank account:
[Bank account details]
Witness: Shahid Mustafa Shah [email address]
Regards & Wassalam
Qasim Shah
21. The respondent told the Tribunal that at the time he bought the Toyota he believed that the market value for the car was around $25,000 when Mr Shah was charging him $30,000. He said they had the following conversation at this time:
Mr Baqir: He said, “There’ll be no argument but you need to finish in three years.” Then I said, “Okay, no worries. I’ll finish it but the payment you give it to me monthly. I will deduct it from there” because I haven’t that much extra money to pay, extra $833 per month, because I’m not doing the business and something like that. That’s why I buy that car because I know I can earn around $1000 per month from the business for the management. That’s why I buy the car from him.[2]
[2] Transcript of proceedings 1 February 2017 page 27 lines 37 - 44
22. It does not appear from the evidence that the parties signed this agreement. What is clear is that the parties proceeded with the agreement; the respondent took possession of the Toyota in November 2014 and commenced making the monthly instalment payments.
23. The written agreement is silent on what would happen in the event that the respondent defaulted on the instalment payments. Mr Shah claimed that as well as the written terms in his email above he had orally told the respondent that the conditions would be the same as a bank, without going to the bank. He said this meant that if there was a default in the repayments he could repossess the Toyota.
24. The respondent denied that this was part of the agreement. He said that the subject of repossession of the Toyota only came up when he had missed instalment payments.
25. However, Mr Shah said to the Tribunal at the hearing on 1 February 2017 in response to the following question from the Tribunal:
Tribunal: In the discussions and in the contract in this email of November 2014 it doesn’t say what’s to happen if the money stops.
Mr Shah:I told that this is a proper as in other repossession at the bank. They do repossession. But on the other side, to be honest, I was not expecting, because I thought that his wife, he is looking for nationality, he cannot be criminal and like that, so I did not envisage that he will betray me or he will do this sort of thing. I was not expecting it and I thought that it will be the other condition of the bank will be the same. My car is never repossessed and I might have 150 or 200 cars. So I was not, I was not expecting betrayal.[3]
[3] Transcript of proceedings 1 February 2017 page 20 lines 35 - 44
26. There is a dispute about whether there was such an oral agreement between the parties. Consequently, there is a dispute about whether the applicants can seek repossession of the Toyota. The applicants have the burden of proving on the balance of probabilities that the terms of the agreement included the applicants being able to repossess the Toyota in the event of the respondent’s default in the repayments.
27. The applicants and the respondent did not enter into a written mortgage or lease over the Toyota which provided for the applicants to repossess the Toyota if there was a default in the monthly payments. The written agreement between them did not include a termination clause and it did not include provision for the repossession of the Toyota if the respondent defaulted in his repayments.
28. Mr Shah said to the Tribunal, when the Tribunal asked him what it should do with his application when it had become clear that there was no termination clause, “... I know that he is not going to pay the money. I am gambling due to family issues. I will say to my wife, ‘Look, this is the country’s rule that when you can’t pay the payment you collect, you repossess the car and live with the damages or whatever’...”[4].Mr Shah did not provide the Tribunal with any documentation which could support his assertion that in this country if someone can’t make a payment you repossess, in this case, the car. Mr Shah may have previously entered into contractual bailments for reward with motor vehicle suppliers when he was purchasing taxis and assumed, incorrectly, that these terms were the rule in this country. He may have had similar terms in previous loans from financial institutions. However, the email from Mr Shah’s son, Shahid Shah, to the respondent dated 5 February 2016 noted that the agreement did not involve any banks.
[4] Transcript of proceedings 1 February 2017 page 92 lines 26 - 29
29. To find that there was contractual bailment for reward in the present matter the Tribunal would have to be satisfied that the parties did not intend to transfer title to the Toyota until completion of the bailment or on the happening of some other specified event. The relevant part of the agreement relating to transferring title clearly states –
You are welcome to keep the same registration and owner as long as you like. However once this is handed over to you by the end of this month (by 30 November 2014), then you will be fully liable and responsible for its future maintenance, expenses and/or running costs including its insurance. Whenever you are ready to change its owner and transfer/register it to your name and/or your nominee, we will unconditional sign the required papers for you.
30. Having considered all of the evidence the Tribunal finds that the parties did not enter into a contractual bailment for reward in relation to the Toyota. What is clear to the Tribunal from the evidence is that the written agreement did not include a term as to what was to happen if the respondent defaulted on the repayments. The parties did not turn their mind to such a possibility. Mr Shah said as much in [25] above.
31. Having carefully considered the available evidence the Tribunal cannot be satisfied, on the balance of probabilities, that there was an agreement between the parties or a term of their agreement which provided for repossession of the Toyota in the event of the respondent defaulting in one or more repayments. Nor can the Tribunal be satisfied from the agreement whether, upon default, the full amount owing under the contract was to then become due and payable.
32. In these circumstances the Tribunal is satisfied and finds that the terms of the agreement are as set out in the email in [20] above.
33. The Tribunal is satisfied that the respondent did default in the monthly repayments. Both parties agreed that this had occurred. However, they did not agree on the amount paid and the amount owing under the agreement. The Tribunal has considering the following evidence from the parties in determining the amounts paid and owing.
34. The respondent said that Mr Shah had told him the business was in crisis in late 2014 and asked that the respondent not deduct his service charges for managing the taxi business for a few months. He said he continued to pay the Toyota instalments while he was managing the taxis without being paid his management fees or service charges by Mr Shah. He was continuing to drive taxis for Mr Shah and was dependent on his income as a driver to pay the Toyota repayments.
35. The respondent said that he too, had a financial crisis in November 2015 and he asked Mr Shah if he could not make the Toyota payments for a few months. He also asked Mr Shah if he, Mr Shah, could start to pay the respondent the management fees or service charges again or count the outstanding management fees or service charges towards the Toyota repayments. The respondent said that he was dependent on Mr Shah paying him his shortfalls as a driver, and that without the shortfalls being paid he was unable to make the Toyota payments. The Tribunal noted that Mr Shah referred to the shortfalls in an email to the respondent dated 4 February 2016 in which he stated: “This is our second remittance in a row with shortfalls of over $7K. My sources to the personal loans are dried out. Some drivers including yourself are unpaid for over a month ...” The respondent said that, at times, Mr Shah owed him $6,000 and $8000.[5]
[5] Email from the respondent to Mr Shah dated 5 February 2016
36. Shortfalls seemed to be a normal occurrence in the operation of Mr Shah’s taxis. It may be that it is also a common occurrence in the taxi industry as a whole; it is not necessary for the Tribunal to make a finding in relation to the taxi industry as a whole. The Tribunal understood from the respondent’s evidence that all takings including cab charges, EFTPOS, bank transactions, government bookings and vouchers and cash fares were totalled at the end of the shift and divided between the driver and the owner. When the total cash fares collected by the driver were less than half of the shift’s takings this resulted in the driver having a shortfall which the owner needed to pay.
37. The taxi businesses’ financial record keeping was almost non-existent and what existed was quite informal. There did not appear to be any oversight by a book keeper or accountant. The bookkeeping or accounting for the drivers’ payments seemed to be set out in SMS messages between Mr Shah and the respondent. The Tribunal noted that Mr Shah said he had accepted the respondent’s own SMS messages of how much money he had paid to drivers, how much he owed Mr Shah and how much Mr Shah owed him and he never questioned these messages. Until their relationship broke down in March 2016 the informality of the arrangement, apparently, suited Mr Shah and the respondent.
38. At the hearing, by which time the relationship between Mr Shah and the respondent had reached a nadir, Mr Shah told the Tribunal that the respondent (see [74]) had been ripping him off. He did not produce financial records which supported this allegation. He did send two letters of demand to the respondent, one by email dated 4 February 2016 in which he maintained the respondent had only paid $8,330 for the Toyota repayments. In his second letter of demand to the respondent dated 15 August 2016, however, he acknowledged a payment of $200 from the respondent on 8 August 2016 which brought the ‘paid amount’ to $14,609.15 and the balance outstanding to $15,390.85.
39. It appeared to the Tribunal that Mr Shah had then purported to deduct $5,566 from the paid amount in the previous paragraph. This amount was for damage to TX199 allegedly collected by the respondent ($500); for damage allegedly caused by the respondent to TX195 ($560); for alleged overpayments to Abrar and Hazrat ($2,000); for funds allegedly collected by the respondent concerning Shakeel’s overpayment and damage repaired at the applicant’s expense from the workshop ($2,006) and for funds allegedly collected by the respondent from Usman ($500). Deducting these amounts from the monies the respondent had already paid to the applicants, Mr Shah alleged that the respondent had in fact only paid him $9,043.15 and after deducting that amount from the amount then due as at 1 August 2016, $17,493, that the respondent owed him $8,449.85.
40. By this stage the parties were unable to resolve the dispute as the respondent disputed the $5,566 referred to in the previous paragraph which Mr Shah claimed and, in any event, it appears to the Tribunal, that this amount related to matters that arose during the respondent’s employment as the manager of Mr Shah’s taxi business which is the subject of the counter claim and which employment Mr Shah denies. The Tribunal will consider the evidence in relation to the counter claim, that is, the employment contract, including Mr Shah’s claim for $5,566, later in this decision.
41. Doing the best it can with the available evidence and for the reasons set out above the Tribunal finds that the amount paid by the respondent for the Toyota totalled $14,609.15 ($14,409.15 plus $200) being the amount set out in Mr Shah’s letter of demand to the respondent dated 15 August 2016. This included shortfalls owing to him as a taxi driver which were credited against his payments at his request from time to time. The balance outstanding was $15,390.85 ($15,590.85 less $200) at 15 August 2016 and that amount is still owed.
42. In the absence of provision in the agreement as to what was to then happen, it falls to the Tribunal to determine whether a common law right to terminate arises in this matter.
43. Such a right will arise in three circumstances, (i) a breach of an essential term, (ii) a sufficiently serious breach of a non-essential term or (iii) the repudiation or renunciation of the contract by the other party.
44. The Tribunal must determine whether the following is an essential term.
“Price and its conditions”: The total sale price is $30,000 with monthly payments of $833 per month for the next 36 months commencing 1st December 2014 and ending 1st November 2017 (inclusive) – in total 36 payments/months and each payment/month amount is $833.00.[6]
[6] Email from Mr Shah to the respondent dated 21 November 2014
45. In Associated Newspapers Ltd v Bancks[7] the High Court referred to the test of essentiality in the decision of the NSW Full Supreme Court in Tramways Advertising Pty. Ltd. v Luna Park (NSW) Ltd[8] and said:
The test was succinctly stated by Jordan C.J. in Tramways Advertising Pty. Ltd. v Luna Park (NSW) Ltd. (1938) 38 SR (NSW) 632; 55 WN 228 . The decision was reversed on appeal [1938] HCA 66; (1938) 61 CLR 286 , but his Honour's statement of the law is not affected. He said (1938) 38 SR (NSW), at pp 641, 642; 55 WN 228 : "The test of essentiality is whether it appears from the general nature of the contract considered as a whole, or from some particular term or terms, that the promise is of such importance to the promisee that he would not have entered into the contract unless he had been assured of a strict or a substantial performance of the promise, as the case may be, and that this ought to have been apparent to the promisor…[9]
[7] [1951] HCA 24
[8] (1938) 38 SR (NSW) 632
[9] [1951] HCA 24 [7]
46. The Tribunal, having considered all of the available evidence, finds that the promise broken in the agreement between the applicants and the respondent was an essential promise or condition – that is, to pay the purchase price by monthly instalments. The Tribunal is satisfied that the applicants would not have entered into the agreement with the respondent unless they had been assured of strict or substantial performance of his promise to pay by monthly instalments. The applicants, on becoming aware of the breach, ordinarily would have (i) the right to treat themselves discharged from the agreement and to recover damages for the loss of the contract or (ii) the right to keep the contract on foot and to recover damages for the breach. In this case, having considered the evidence of their actions the Tribunal finds that the applicants have kept the contract on foot and sought to recover the Toyota, believing they were entitled to it under the terms and conditions of their agreement.
47. The Tribunal has already found, above, that the agreement did not include provision for repossession of the Toyota. However the Tribunal finds that the applicants are entitled to damages for the respondent’s breach, which the Tribunal assesses as the balance of the purchase price, $15,390.85 and will enter judgment for the applicants for that amount.
Employment contract
48. In considering the counter claim the Tribunal will continue to refer to Mr Baqir as the respondent.
49. The respondent said he was driving a taxi for Mr Shah’s ex son-in-law around December 2013 and the workshop in Fyshwick was managing the two taxis and charging $150 per week per taxi. Sometime in early 2014 the respondent said the ex son-in-law asked the respondent if he could manage the taxis and the respondent said “yes, I will manage. I will arrange all the papers, each and everything, the workshop and everything but I will charge you $50 … for each car.”[10]
[10] Transcript of proceedings 1 February 2017 page 25 lines 17 - 19
50. He said that prior to the ex son-in-law leaving the business in early 2014 the respondent, Mr Shah, and ex son-in-law had talked to him about the respondent managing the taxis and Mr Shah, who claimed that his ex son-in-law had defrauded him, said to the respondent “Don’t concern with him. You can manage my cars. You arrange the taxis and if you are helping me and then I will buy other cars.”[11]Mr Shah denied that he had had any conversation with the respondent and his ex-son-in-law about the respondent managing his taxis. He also denied that he had talked to the respondent on his own about managing his taxis. Mr Shah maintained that the respondent was only employed as a driver.
[11] Transcript of proceedings 1 February 2017 page 26 lines 25 - 26
51. The respondent said he started managing the taxis in March 2014 and by June 2014 had full control of managing them by which time Mr Shah owned five taxis. The respondent said his management services included managing the drivers and their payments, the cars’ maintenance including the workshop and other taxi related work. He gave as an example of this work:
... sometimes when that car is broken or something like around 2 o’clock in the morning and the drivers call me, that was never ever called to Qasim Shah. All drivers called to me if they’ve got a problem or if an accident is the problem. Then I go there and fix everything with them. Every message he ask me. ...[12]
[12] Transcript of proceedings 1 February 2017 page 87 lines 39 - 43
52. Mr Shah acknowledged that the respondent was organising Mr Shah’s taxis. He told the Tribunal that when the respondent was organising the shifts “I was leaning back.”[13] He said there could be a communication error if two people were organising shifts. When some drivers, who were not from the respondent’s ethnic background had not been able to get shifts from the respondent, Mr Shah said they had approached him and “I always told them there is one leader in this organising the shift who will be tonight and who will be tomorrow, like the backup and like that. That will be he [the respondent] because he was given loyalty sort of.”[14]
[13] Transcript of proceedings 1 February 2017 page 19 line 25
[14] Transcript of proceedings 1 February 2017 page 19 lines 28 - 32
53. Mr Shah told the Tribunal that the respondent commenced driving for him “when I came into the taxi business the second time it was September-October 2014.”[15] Mr Shah said this was the time he took over the business from his ex-son-in-law, for whom the respondent had been driving taxis.
[15] Transcript of proceedings 1 February 2017 page 14 lines 40 - 41
54. However, the bundle of SMS messages[16] between Mr Shah and the respondent, which the respondent provided to the Tribunal on 14 February 2017, corroborates the respondent’s evidence that he was driving a taxi in December 2013 and that he and Mr Shah were then in SMS contact about the taxi shifts. While Mr Shah may have been driving a taxi for his ex-son-in-law to in December 2013 the Tribunal is satisfied that the SMS messages from March 2014 support the respondent’s claim that he had started to help Mr Shah in managing his taxis and in April 2014 he was paying the drivers, keeping records of their shortfalls, requesting Mr Shah to drop off cash for the respondent at Nandos, collecting the cash and paying the drivers.[17] The respondent told the Tribunal that he took complete charge of managing the taxis fro Mr Shah from June 2014.
[16] Respondent’s final submissions, attachment 1 - SMS messages between 13 December 2013 to 20 June 2016
[17] Attachment 1, pages 6-7
55. The respondent said Mr Shah paid him $250 per week for managing the taxis. While he initially said that Mr Shah had paid him the $250 per week management for eight weeks after he started being the manager in March 2014 he told the Tribunal at the first hearing that he had a record of these dates and amounts of these payments, as well as other payments involved in managing the taxis, which he had provided to Legal Aid when he sought their assistance to reply to Mr Shah’s letter dated 15 August 2016. The respondent said he had recorded the dates and amounts of these payments, among other payments, in a handwritten diary (the diary). He was granted an adjournment to get the diary from Legal Aid. He provided the Tribunal with a copy of the relevant pages of the diary which was attachment 6 to his submissions dated 14 February 2017. This record showed ten payments of $250 being made on 7 June 2014, 15 June 2014, 22 June 2014, 29 June 2014, 6 July 2014, 13 July 2014, 19 July 2014, 26 July 2014, 1 August 2014 and 10 August 2014. These dates accord with the respondent’s evidence that he took complete charge for managing the taxis from June 2014.
56. The respondent said he made these payments to himself by deducting the weekly payments of $250 until Mr Shah told him, after 10 August 2014, about some issues at home and said “The business is not going well. At the moment you stop the payments.”[18] The respondent said this conversation corroborated that Mr Shah knew he was deducting the weekly payments in June, July and early August 2014. He understood from that conversation that Mr Shah’s business was in crisis and that he should not deduct the $250 a week for a few months. He continued to manage the taxis for Mr Shah without deducting his service fee as requested.
[18] Transcript of proceedings 1 February 2017 page 26 lines 36 - 37
57. In response to questions from the Tribunal about him not appearing to take any action to recover the unpaid fees the respondent said:
Because he’s saying, because we have a good relationship with each other before and then I demanding again and again and he says ‘Okay. Don’t worry. I’m not going to somewhere. This car is on my name and its between us. Don’t worry about that. We will fix it at that time.’[19]
[19] Transcript of proceedings 1 February 2017 page 43 lines 41 - 44
and
I was demanding. When I was demanding he says, ‘You know, the situation is not that good. We will fix it. Don’t worry. The Prado is with you. Everything is with you and you have a key card and you know the situation. There’s a loss in the business … I said ‘Okay. No worries. We will fix it. We will fix it.’ … when I realise and he says no he’s not paying anymore, then I stopped the management in March 2016 and told to all the drivers, ‘Just talk to him directly’.[20]
[20] Transcript of proceedings 1 February 2017 page 44 lines 12 - 20
58. Mr Shah denied that he had entered into any kind of business agreement with the respondent for managing his taxis and he also denied that he had paid the respondent for this alleged managerial role. He said[21] of the diary entries referred to above that:
No employer would accept this type of weak bookkeeping (records keeping) from their employees, especially from their hired business “Managers”. The acceptance of such bookkeeping would be impossible when the credibility or honesty of the employees especially business Managers, just like Mr Baqir, has serious question marks.
[21] Applicants’ response to the respondents submissions’ dated 16 February 2017 page 4
59. However, as noted in [37] above Mr Shah said he had accepted the respondent’s own SMS messages of how much money he had paid the drivers, how much he owed Mr Shah and how much Mr Shah owed him and he never questioned these messages.
60. Mr Shah, it appears, did not seek more formal accounting records at any time. Instead he accepted the SMS records for a number of years. Even if the respondent was employed as a driver and not as a manager as Mr Shah claims, he could have insisted on proper bookkeeping, especially as the respondent told the Tribunal that they “were only concerned with cash.”[22]
[22] Transcript of proceedings 1 February 2017 page 78 line 12
61. The records relied on by the respondent include, as well as the copies of pages from the diary, 82 pages of copies of SMS messages[23] from 13 December 2013 to 20 June 2016 between Mr Shah and the respondent. These messages show that the respondent was:
[23] Respondent’s submissions lodged 16 February 2017 at attachment 1
(a) deciding Mr Shah’s driving shifts;[24]
[24] Attachment 1, pages 12,13,21,30,33,34-35,39,42,44-46,48-51,54,56,60,62,65,68,70-71,73-75,77-78,80-81.
(b) paying the drivers out of his own pocket;[25]
[25] Attachment 1, pages 11,16-18,22,25,27,29,30,32,33-34,37,39,40,43,56,61,64,67,71,73,75-76
(c) keeping records of the drivers’ shortfalls and requesting Mr Shah drop the cash for these payments at Nandos for the respondent to collect and pay the drivers;[26]
[26] Attachment 1, pages 6-7
(d) submitting dockets to Base for Mr Shah;[27]
[27] Attachment 1, pages 21,28,45,47,50,63,66-67,75,81
(e) doing taxi services, workshop and other checks;[28]
[28] Attachment 1, pages 35,37,41,50,57
(f) using Mr Shah’s ANZ and Westpac bankcards;[29] and
(g) accessing Mr Shah’s business email.[30]
[29] Attachment 1 pages 23-27,31,38,43,46,50,53,55,57,59,61,64,69,70
[30] Attachment 1, pages 48,51-52,69
62. The Tribunal noted that on 6 January 2015, the respondent sent the following SMS to Mr Shah - “Jzk. Can u arrange a taxi for me. Mean I wana buy. But still I’ll manage ur taxis with same approach with honest” and Mr Shah replied – “Insha Allah” (God Willing). If Mr Shah had not engaged the respondent as his manager, as he now asserts, the Tribunal would have expected that Mr Shah would have immediately clarified this with the respondent. This did not happen.
63. The respondent provided the Tribunal with copies of four receipts[31] showing payments of shortfalls he had paid to Abubakar Abubakar (23 January 2014), Masif Butt (17 June 2014 and 14 July 2014) and Arun Dean (7 July 2014).
[31] Respondent’s submissions lodged 16 February 2017 at attachment 2
64. The respondent also provided the Tribunal with 38 pages[32] of copies of SMS messages between himself and the various drivers namely Asif Butt, Qasir Shehzaad Taxi, Sajid Taxi, Hassan Parachenar, Shahzad Taxi, Imran Rabab Taxi, Syed Hassan, Sohrab Taxi and Bilal Caltex between February 2014 and April 2016 managing the drivers and who will drive which taxi, when and where to pick up and leave the taxis and the collection of fares and the payments to the drivers.
[32] Respondent’s submissions lodged 16 February 2017 at attachment 3
65. The respondent said the applicant had given him a key-card, a house key, and access to one of the applicant’s email accounts, as he was managing the taxis.
66. Mr Shah agreed that he had given the respondent a key-card to a bank account and his home key so that the respondent could access papers, light bulbs and engine oil stored at his house. He said he had given the respondent access to the email account so that if any of the taxis were off road the respondent could give appropriate notice to Aerial Taxis whereupon the standby car would be able to be used. He told the Tribunal that he had done this as he knew that the respondent would not betray him and he trusted him. He added that the respondent did not, to his knowledge, have to give notice to Aerial Taxis.
67. Mr Shah said to the Tribunal that his job was to keep his taxis on the road. He did not know who was driving his taxis; the taxi drivers themselves arranged with their friends to drive the taxis from time to time. He had given his key-card, home key and an email address and password to the respondent because:
… if I am in Melbourne … and the driver they need, for example, during the night there is no workshop open like so it would be accessible to them I cannot give key to every driver and because he was – I have a link with him, my Prado was with him and I knew that he will not betray me …[33]
[33] Transcript of proceedings 1 February 2017 page 54 lines 7-11
68. Mr Shah also told the Tribunal that he had agreed to the respondent’s request that he drive ‘double shifts’ as a result of which he was driving day and night seven days a week. Mr Shah said that this meant that the respondent did not have the time to manage business activities for Mr Shah. The respondent said that driving double shifts did not mean that he was driving day and night for seven days a week without proper meal and rest breaks as Mr Shah’s statement had implied. Mr Shah said he never denied that the respondent was driving the taxis for him; there were, ultimately, six taxis in the fleet which needed more than 12 drivers every 24 hours and the respondent did deal with some of the drivers, but not as his employed manager.
69. Mr Shah submitted that he paid all his bills, dues, drivers’ shortfalls to the appropriate parties on time without any setbacks or irregularities during his over 20 years of running his taxi business. He said it was always the day time taxi driver’s responsibility to get the taxi serviced, tyres changed and the vehicle cleaned and maintained in order to minimise any night time vehicle breakages. He maintained that the taxi dockets, including cab charges, discount dockets, documents relating to government and non-government opened accounts with Aerial Taxis, had to be properly filled in by the drivers and given to the operator for shift taking records and then submitted to Aerial for scrutiny and refunds to the operator. He said all drivers were doing these activities. Mr Shah said the respondent would have been doing this work as a driver, not as his manager.
70. The respondent alleged that the employment contract commenced in June 2014. He said that the SMS messages support his claim. When referring to the SMS messages from Mr Shah asking the respondent to chase other drivers for insurance monies, compensation monies and monies he alleged other drivers owed him the respondent said to the Tribunal:
He says he is not hiring me … If he says I am not managing each and everything why he asking me all these things? Why is he having concern with the other drivers? Because I know all the drivers. I know all the cars, where the car is, who is driving, who’s from where and who is making good money and who’s not making good money, who needs to change, because this is all my responsibility.[34]
[34] Transcript of proceedings 1 February 2017 page 45 lines 31 - 36
71. The respondent told the Tribunal that it was only when Mr Shah had sold his taxis that he then claimed “I did not hire you. I didn’t employ you.”[35]
[35] Transcript of proceedings 1 February 2017 page 88 lines 29 - 30
72. Apart from the two pages of SMS messages being attachments C and E to his application and the five SMS messages attached to his reply to the respondent’s counter claim, Mr Shah did not produce any other records of SMS messages, telephone calls, emails (other than those referring to the Aerial investigation referred to in [74]), witness statements or evidence from any other person which might have supported his claim that, between June 2014 and March 2016, he was managing his taxis and not the respondent.
73. Under questioning by the Tribunal Mr Shah said he was sending SMSs to the respondent chasing up insurance monies, compensation and damages because he did not know the whereabouts of these drivers who were from the respondent’s ethnic background, known to the respondent and hired by the respondent. He said they were hired by the respondent for the respondent, not for Mr Shah. Mr Shah said he never went through their drivers’ licences. He accused the respondent of hiring criminal sort of people using another person’s pin number – “They were doing this sort of criminality so I did not know who was driving in the car, who was in the car because my job is to keep the car on the road and other things are with the Road Transport and the Canberra Cab.”[36]
[36] Transcript of proceedings 1 February 2017 page 52 lines 41 - 43
74. Mr Shah, in response to questions about the ten payments of $250 which the respondent claimed he had been paid, said that these claims were lies. He also told the Tribunal of an incident in March 2016 when he found out from Aerial Capital Group Limited that the respondent had attempted to charge an Aerial account for a hiring that he did not undertake. He said:
Then I came to know in … March with base that with vulnerable people he betrayed. I was shocked at how he was ripping me off. I accepted his own SMS with how much he has paid, how much he owe me and I owe him and I never questioned it. I never. … [37]
[37] Transcript of proceedings 1 February 2017 page 54 lines 13 - 16
75. While Mr Shah assisted the respondent to deal with this incident, it appeared to be the catalyst for the end of their relationship.
76. The respondent filed eleven witness statements and called two of his witnesses to give evidence. In his witness statement Abrar Ali said that the respondent was working for Mr Shah and that Mr Shah had told him that the respondent “was managing my business so follow his order.”[38] He stated that the respondent gave him rosters and payments and the shifts were always organised by the respondent until March 2016. In his evidence he told the Tribunal that the respondent had told him that he was managing the taxis for Mr Shah who was the owner. He said in cross examination that he had not been hired by Mr Shah; he was driving the taxi for the respondent. He also said that Mr Shah paid him “almost all of the time” and that the respondent had told him he “could give the envelopes and the shortfall to the respondent or to Mr Shah as Mr Shah will pay him (the witness).”
[38] Appendix A to response filed 2 December 2016
77. The witness, Khalil Khan Khattak, stated in his witness statement that he knew the respondent was managing Qasim Shah’s business and that his only contact was the respondent to whom he directed all business issues.[39] In his evidence he told the Tribunal that the respondent was his friend and he drove the taxi one shift a week for the respondent as he needed extra money. His dealings were only with the respondent and the respondent paid him.
[39] Appendix I to response filed 2 December 2016
78. While the authors of the other nine witness statements did not give evidence at the hearing the Tribunal noted that the witness statements were filed with the response and counter claim on 2 December 2016 and that Mr Shah did not contest these statements nor did he file any witness statements himself. These witness statements were from Shahsiyaar Khan of LK Auto, and drivers - Abubakar, Asif Butt, Syed Usman Jamil, Imran Khan Yousafzai, Syed Sajid, Muhammad Khan, Sajid Anwar and Syed Hassan Abbas Na. Each of these statements corroborated the respondent’s evidence that the respondent was managing Mr Shah’s taxis and that Mr Shah had told the mechanic at LK Auto and most of the drivers that Mr Baqir was managing his business.
79. The Tribunal has noted from the SMS messages that Mr Shah was often interstate as his family lived in Victoria and that Mr Shah let the respondent know by SMS when he would not be available to drive a taxi during these times. The Tribunal does not accept Mr Shah’s claim that the respondent did all of this work as a driver. It was not corroborated by any witness at the hearing nor in the documentation filed by the parties.
80. Having considered all of the evidence, the Tribunal is satisfied, on the balance of probabilities, that Mr Shah employed the respondent to manage his taxis from approximately June 2014. The employment contract ended in March 2016 when the parties had a falling out. The contract of employment was oral, the terms were that he was to manage the taxis for Mr Shah which included the work set out in [61] above, that he would pay the respondent $50 a taxi which during the period of employment amounted to $250 a week and that the respondent would pay this amount to himself from the monies from the taxis. The Tribunal is satisfied that the respondent received the ten payments of $250 set out in [55] and that the respondent is owed 81 weeks, at $250 a week, $20,250.
81. Mr Shah claimed that the respondent owed him $5,566 for the various items in [39] above. In his letter to the respondent dated 15 August 2016 Mr Shah set out each of his claims which amounted to $5,566 and he provided the Tribunal with copies of the SMS messages of 12 September 2015 and 20 October 2015 in support of $2,506 of the claim. He provided the Tribunal with a copy of his SMS to the respondent dated 27 July 2016 claiming $500 for Malik and $1,000 each for Abrar and Hazrat. He cross examined Abrar Ali about the $1,000 which he claimed he was owed by Mr Ali and which was part of the $5,566 he was claiming from the respondent. Mr Ali’s evidence did not assist Mr Shah. Mr Ali denied that he owed Mr Shah $1,000.
82. Mr Shah has the burden of proving his claim to this money on the balance of probabilities and unless the evidence he has presented to the Tribunal meets that burden some or all of his claim will fail. Doing the best it can with the evidence about this claim for $5,566 the Tribunal finds that Mr Shah is entitled to $4,566 of the amount claimed. The Tribunal was not persuaded that Mr Shah had proved his claim of $1,000 against Mr Ali. The Tribunal will adjust this amount at the end of the decision. $4,566 should be deducted from the $20,250 in [80] above. This leaves an amount of $15,684 payable to the respondent and the Tribunal will enter judgment for the respondent for that amount.
Conclusion
83. In relation to the application concerning the Toyota, the Tribunal enters judgment for the applicants for $15,390 plus the filing fee of $70, which totals $15,460.
84. In relation to the counterclaim the Tribunal enters judgment for the respondent for $15,684 plus the counterclaim filing fee of $145, which totals $15,829.
85. The Tribunal’s orders will provide for the applicant, Shahidah Yasmin Shah, who is the registered owner of the Toyota, to sign all documents and do all things necessary to transfer and assign to the respondent all of her ownership and title in the Toyota within 28 days in partial satisfaction of the judgment of $15,829 in favour of the respondent in the counter claim. The Tribunal will also make an order that the applicants pay the difference in the judgments of $369 to the respondent within 28 days. The Tribunal notes that neither party sought interest in their application and counter claim and accordingly, makes no order for interest.
………………………………..
Presidential Member E Symons
HEARING DETAILS
FILE NUMBER:
XD 993/2016
PARTIES, APPLICANT:
Qasim Shah & Shahidah Yasmin Shah
PARTIES, RESPONDENT:
Mazhar Baqir
COUNSEL APPEARING, APPLICANT
N/A
COUNSEL APPEARING, RESPONDENT
N/A
SOLICITORS FOR APPLICANT
N/A
SOLICITORS FOR RESPONDENT
N/A
TRIBUNAL MEMBERS:
Presidential Member E Symons
DATES OF HEARING:
1 February 2017, 9 March 2017
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