Shah v Baqir - [2017] ACAT 32

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…

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.

Continue reading Shah v Baqir

Details

AGLC: Shah v Baqir [2017] ACAT 32
Case: [2017] ACAT 32
Decision Date: 2 May 2017

CaseChat Overview and Summary

In the Federal Circuit Court, Shah v Baqir was a dispute between the plaintiff, Shah, and the defendant, Baqir, regarding the sale of a car. The plaintiff sought repossession of a Toyota Prado GXL, alleging that the defendant had defaulted on instalment payments. The defendant counterclaimed for breach of an oral employment contract. The court had to determine the validity of the car sale agreement, the defendant's default on payments, and the existence and terms of the oral employment contract.

The primary legal issues involved the interpretation of the car sale agreement, specifically whether there was a contractual right to repossess the car upon default in payments, and whether there was a contractual bailment for reward. Additionally, the court had to determine the validity and terms of the oral employment contract, and whether the defendant's default in payment could be set off against the plaintiff's claim.

The court found that the car sale agreement did not include a termination clause that would allow for repossession upon default in payments. The court held that there was no contractual bailment for reward, as the car was not entrusted to the defendant for a specific purpose. The court also found that the oral employment contract was valid and that the defendant's default in payment could be set off against the plaintiff's claim. Consequently, the court awarded judgment to the plaintiff for $15,390 plus costs, and to the defendant on the counterclaim for $15,684 plus costs.

The final orders required the plaintiff to transfer the car registration to the defendant and to pay the difference between the judgments. The court's decision emphasised the importance of clear contractual terms and the need for written agreements to avoid disputes over oral contracts.

Orders

Orders of the court

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).

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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