Golding v Salloum

Background

1. At the time of the events giving rise to these proceedings, Mr Golding conducted his motor vehicle dealership business from premises at 122 Hume Highway, Lansvale (the premises). On 4 December 2015, Mr Salloum attended the premises where he inspected a 2011 model Great Wall V 200 diesel utility motor vehicle bearing registration plates BN 47 LG (the Vehicle). According to his evidence, at the time of inspecting the Vehicle no notice or other document was attached to or displayed in the Vehicle indicating the price at which it was being offered for sale.
2. Following his inspection, Mr Salloum inquired of a salesman apparently employed by Golden Motors as to the sale price of the Vehicle. He was told that the price was $14,000 to $15,000. Mr Salloum then invited the salesman to inspect a 2004 model Saab Cabriolet sedan that he owned, indicating that he wished to offer the Saab as a trade-in for the purchase of the Vehicle.
3. The salesman to whom Mr Salloum spoke appeared to inspect the Saab. After some negotiation between the two, agreement was reached that the Saab, together with a payment of $5,000.00 would be accepted for the purchase of the Vehicle. Mr Salloum immediately paid $5,000.00 in cash to Golden Motors and signed a transfer of registration of the Saab.
4. Upon the payment of $5,000 being made, Mr Salloum received a tax invoice issued in the name of Golden Motors. That invoice contains details of the Vehicle and states the price, inclusive of GST, to be $5,000. The tax invoice also records that sum as having been paid on 4 December.
5. Apart from receiving a signed transfer of registration of the Vehicle and the tax invoice, no other document pertaining to the transaction was received from Golden Motors. Relevantly, no sales contract or other document was provided to Mr Salloum, stating either the original sale price of the Vehicle or accounting for the value of the Saab trade-in credited against that price.
6. Upon completion of the transaction in the manner we have described, the Vehicle was driven from the premises that same day. It was subsequently driven by Mr Salloum until 18 January 2016 when the engine stopped, unexpectedly, while the Vehicle was being driven on a Sydney suburban street. Efforts to restart the Vehicle were unsuccessful. Between 4 December 2015 when the Vehicle was purchased and 18 January 2016 when the engine failed, the Vehicle had travelled almost 5,000km. According to the evidence attributed to Mr Salloum, in that period the Vehicle was not involved in any collision nor had it been driven off-road.
7. On 20 January 2016, Mr Salloum arranged for the Vehicle to be towed to the premises of Diamond Wheels Pty Ltd at Lansvale, a motor dealer specialising in the sale and repair of Great Wall vehicles. About two days later, the Vehicle was inspected by Stephen Roberts, a mechanic employed by Diamond Wheels, who found damage to the front chassis and left-hand lower control arm of the vehicle. He also found rust in the fuel tank, water in the fuel and the Vehicle's fuel system rusty and damaged by water. A quote for repairs to the fuel system and fuel tank in the sum of $10,675.20 was provided by Diamond Wheels. The cost of repairs to the chassis of the Vehicle was not provided.
8. As Mr Salloum was not prepared to bear the cost of repairs, he arranged for the Vehicle to be removed from Diamond Wheels' premises. Thereafter, he sought, without immediate success, to locate Mr Golding with the intention of returning the Vehicle and seeking a refund of the purchase price. When Mr Salloum visited the premises for that purpose he found them to be vacant, with no indication as to where Golden Motors or Mr Golding might be found.

Commencement and conduct of the proceedings below

1. Mr Salloum commenced the proceedings under appeal in the Consumer and Commercial Division of the Tribunal on 20 April 2016. As Senior Member Shipp records in his Reasons for Decision (the Reasons) at [7], the jurisdiction of the Tribunal was engaged because the claim made was "a consumer claim" within the meaning of s 79E of the Fair Trading Act 1987 and therefore able to be heard and determined by the Tribunal pursuant to s 79J of that Act. The exercise of jurisdiction by the Tribunal to hear and determine Mr Salloum's claim was neither challenged below nor upon the hearing of this appeal.
2. After commencing the proceedings, Mr Salloum was successful in locating Mr Golding. They each appeared in person at a directions hearing before the Tribunal on 18 May 2016 when it was agreed that Mr Golding would be given access to the Vehicle to enable him to have its condition assessed. Once the Vehicle was assessed, Mr Golding was in a position to prepare his response to the claim made against him. He availed himself of the opportunity by having the vehicle assessed by a panel beating firm (D & M Spray Painting) and also by an automotive repairer (Chester Hill Automotive).
3. According to the Reasons, the Inspection Report prepared by Chester Hill Automotive identified "a cross bar and lower control bar" in the chassis of the Vehicle as being bent. Both items were repaired at the request and cost of Mr Golding. Those repairs were said to have been completed on 5 July 2016, as a result of which the Inspection Report also stated that the "ute is now in 100% roadworthy condition".
4. At the hearing below, Mr Golding was self-represented. Mr Salloum also appeared in person together with his daughter, Ms M Yammine. In the Reasons, the Senior Member records at [10] that all three persons appearing before him gave evidence on oath. In addition to his oral evidence, it also appears from the Reasons that Mr Salloum read and relied upon an affidavit that he had sworn on 27 May 2016, together with the documents annexed to that affidavit. Mr Salloum also read or tendered an affidavit sworn on 27 May 2016 by Stephen Roberts, motor mechanic, together with documents annexed to that affidavit (at [11]). The evidence given by Mr Salloum is summarised at [12] of the Reasons while the evidence of Mr Roberts is summarised at [15]-[17]. In essence, the background facts that we have summarised at [6]-[13] above reflects the evidence of Mr Salloum, as recorded in the Reasons, while the evidence of Mr Roberts was to the effect that the Vehicle was not roadworthy, the damaged fuel tank and fuel system appearing to be the result of water that had been present in the system "for some time".
5. The oral evidence given by Mr Golding is summarised at [20] of the Reasons. In addition to his oral evidence, Mr Golding relied upon an "estimate" supplied by D & M Spray Painting as well as the Inspection Report provided by Chester Hill Automotive and a photograph of the underside of the Vehicle taken by the latter firm (at [19]). The documents provided by those firms are also referred to in the summary of evidence at [20] of the Reasons.
6. The evidence of Mr Golding was to the effect that the undercarriage or chassis of the Vehicle was not damaged when sold; that water entry into the fuel system and tank must have occurred after the sale to Mr Salloum and that, following the repairs carried out by Chester Hill Automotive, the Vehicle was roadworthy. We have earlier identified the statement to that effect from the Inspection Report of Chester Hill Automotive tendered by Mr Golding.

The Reasons of the Senior Member

1. After summarising the evidence given or led by each of the parties, as recorded in the passages of the Reasons to which we have referred, the Senior Member identified the law to be applied in order to determine Mr Salloum's proceedings. In so doing, he referred to a number of provisions of the Motor Dealers and Repairers Act 2013. In particular, he relied upon s 68 of that Act in its reference to a "defective vehicle", as defined in s 67. That definition, in turn necessitated reference to the provisions of ss 54-57 of Pt 3-2 of the Australian Consumer Law (NSW) (the ACL). By s 28(1) of the Fair Trading Act, the ACL is taken to be part of that Act.
2. Having considered the provisions of both the Motor Dealers and Repairers Act and the ACL, he turned to consider whether the Vehicle was "defective" (at [30]). The Senior Member identified the conflicting evidence before him relevant to that determination. He summarised the evidence led by each party directed to that topic and, in unexceptional terms, resolved the conflict in favour of the evidence led by Mr Salloum. The Senior Member gave reasons at [30]-[33] for so doing. Having determined that the Vehicle "was not of acceptable quality at the time of sale", in breach of the consumer guarantee expressed in s 54 of the ACL, he concluded at [34] that the Vehicle was "defective" for the purpose of s 68 of the Motor Dealers and Repairers Act.
3. The Senior Member further found at [36] that the repair work undertaken at the request of Mr Golding had not rectified the defective fuel system in the Vehicle. As a consequence, he was not "satisfied that [Mr Golding] has complied with his obligation under Section 68 of the MD and R Act" (at [37]).
4. In light of that determination, the Senior Member then turned to consider the remedy to which Mr Salloum was entitled. The provisions of ss 259, 260 and 262 of the ACL were addressed. Having addressed those provisions, the Senior Member concluded that a reasonable consumer, aware of the defects in the Vehicle at the date of sale, would not have acquired that Vehicle (at [40]). Applying the facts to the statutory provisions that he identified, the Senior Member further found that Mr Salloum was entitled to reject the Vehicle and to recover from Mr Golding "a full refund for the purchase price of the vehicle" (at [44]).
5. Finally, the Senior Member turned to consider the quantum of the refund that Mr Golding should be ordered to pay. He noted at [45] that the purchase price was "unclear" as no document was provided at the time of sale stating either the purchase price of the Vehicle or the value assigned to the Saab motor vehicle used as a trade. An attempt by Mr Salloum to lead evidence of the value of a Saab vehicle, similar to that owned by him, was rejected as was an attempt by Mr Golding to lead evidence of the condition of the Saab when traded and the price he received when it was sold. According to the Reasons at [45], the tender of further documents by each party was rejected because they were first produced at the hearing without previously being provided to the other party, contrary to directions made at an earlier directions hearing before the Tribunal. Those directions required the provision by each party to the other of the evidence to be relied upon at the hearing. The Senior Member observed that it would have been procedurally unfair to allow either party to rely upon the new evidence without adjourning the proceedings. He was not prepared to do so, considering it to be antithetical to the "just, quick and cheap resolution of the proceedings", given the obligation imposed upon the Tribunal by s 36 of the Civil and Administrative Tribunal Act 2013 (the Tribunal Act) in the conduct of proceedings before it.
6. For further reasons given at [46]-[48] the Senior Member accepted the evidence of Mr Salloum that the sale price quoted to him was $14,000-$15,000. It was the lower of those two figures that he ordered Mr Golding to refund to Mr Salloum.

Conduct of the Appeal

1. Mr Golding filed his Notice of Appeal within one week from the day upon which the decision of the Senior Member was delivered and was therefore filed in time: cl 25(4) Civil and Administrative Tribunal Rules 2014. That decision was made in proceedings "for a general decision" within s 32(1)(a) of the Tribunal Act and was an "internally appealable decision" within the meaning of s 32(4). As such, Mr Golding was entitled to institute his appeal: s 80(1) of the Tribunal Act. Moreover, the decision was not interlocutory as it finally determined the proceedings instituted by Mr Salloum. Consequently, Mr Golding was entitled to appeal as of right against the decision "on any question of law" and, with leave, on any other ground: s 80(2)(b).
2. A number of procedural directions for the conduct of the appeal were made by a differently constituted Appeal Panel on 29 September 2016. Among those directions was one requiring Mr Golding to lodge with the Tribunal and provide to Mr Salloum by 28 October 2016: (i) all evidence provided to the Tribunal below upon which he intended to rely; (ii) his written submissions in support of the appeal; and (iii) "the sound recording of the hearing at first instance, or what happened at the hearing" to the extent that reliance was to be placed upon it, together with "a typed copy of those parts" of the hearing to be relied upon. A direction in similar terms then made also required Mr Salloum to file and serve his material by 18 November 2016. It was at the September directions hearing that the appeal was listed for hearing before us on 24 November 2016.
3. The directions announced on 29 September were reduced to writing and sent by the Registrar to each party on 4 October 2016. The Registrar's letter included the following note: "If a party does not lodge with the Tribunal and provide to the other parties documents, sound recordings and submissions as directed above, that party may not be allowed to rely on those documents, sound recordings and submissions at the hearing of the appeal."
4. Between 20 and 23 September, Mr Golding filed in the Registry six miscellaneous documents without any covering document identifying their relevance to the appeal (the miscellaneous documents). Nothing was filed by him in response to the direction made by the Tribunal on 29 September.
5. In response to the directions made on 29 September, Mr Salloum filed the affidavits upon which he relied at first instance, together with their respective annexures. He also filed a Reply to the Notice of Appeal in which he contended that no question of law arose in the appeal; that there was no evidence to support the payment for which Mr Golding contended in his proposed orders and that the decision at first instance was "fair and reasonable". Written submissions were also provided.
6. When the hearing of the appeal commenced, Mr M Calf, solicitor, announced his appearance for Mr Golding. Ms Yammine, the daughter of Mr Salloum, announced her appearance for Mr Salloum, indicating that although she was admitted as a solicitor, she was not presently practising as such.
7. In the course of the hearing, Mr Calf sought and was granted a brief adjournment on two occasions to enable him to obtain instructions from Mr Golding. When the hearing resumed following the second adjournment, Mr Calf informed us that advice he had given to Mr Golding had not been accepted, with the consequence that he would no longer represent Mr Golding for the remainder of the hearing. As a consequence, Mr Golding then continued the conduct of his appeal. He did not seek an adjournment before proceeding on his own behalf.

No error of law demonstrated

1. As we have earlier recorded, the single ground of appeal identified in the Notice of Appeal was the absence of evidence before the Tribunal upon which to find that the purchase price paid by Mr Salloum for the Vehicle was $14,000. We accept that a ground of appeal contending that there was no evidence to support a material finding of fact raises a question of law. So also, whether material relied upon by the Tribunal is capable of supporting a finding of fact gives rise to a question of law (Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32 at [90]-[91]). In principle, the ground of appeal stated by Mr Golding does raise a question of law with the consequence that his appeal on this ground is one brought as of right.
2. Early in the hearing before us, Mr Calf acknowledged that Mr Golding's appeal was narrowly confined. For the purpose of the appeal, the legal obligation upon Mr Golding to refund the purchase price of the Vehicle to Mr Salloum, on the basis determined by the Senior Member, was not challenged. The challenge was confined to the quantum of that refund.
3. Ultimately, Mr Calf conceded that there was evidence identified in the Reasons upon which it was open to the Senior Member to find that the purchase price of the Vehicle was $14,000. Having regard to the evidence identified and findings expressed at [46]-[48] of the Reasons, that concession was properly made.
4. It follows from the concession made that the sole ground of appeal identified by Mr Golding cannot be upheld. No error of law is disclosed in the Reasons having regard to the basis upon which the Senior Member determined the quantum of the purchase price paid for the Vehicle.
5. Mr Calf candidly acknowledged that the gravamen of Mr Golding's case on appeal is that his evidence, if accepted, demonstrates the purchase price paid for the Vehicle was not $14,000 as the Tribunal found but only $7,900. In order to pursue that ground of appeal, Mr Calf acknowledged that Mr Golding required leave to appeal, as the proposed ground did not raise a question of law: s 80(2)(b) of the Tribunal Act. The grant of that leave is circumscribed by cl 12 of Sch 4 to the Tribunal Act, subcl (1) of which provides: (1) An Appeal Panel may grant leave under section 80(2)(b) of this Act for an internal appeal against a Division decision only if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because: (a) the decision of the Tribunal under appeal was not fair and equitable, or (b) the decision of the Tribunal under appeal was against the weight of evidence, or (c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).

Leave to appeal should not be granted

1. The submission by Mr Calf that Mr Golding may have suffered a substantial miscarriage of justice appeared to be founded upon documentary evidence said to support Mr Golding's assertion as to the sale price of the vehicle. As we apprehend the submission, that documentary evidence comprised some or all of the miscellaneous documents that Mr Golding had filed in the Registry after commencing the present appeal, being the documents to which we have earlier referred at [29].
2. When Mr Calf sought to tender two of those documents for the purpose of advancing his submission for leave, objection was taken by Mr Salloum. The first document sought to be tendered appeared to be an internal ledger kept by Mr Golding as part of the Golden Motors business records, prepared before 4 December 2015 and recording prices for his vehicle stock at the time, including a price for the Vehicle. The second document was a Personal Property Securities Register search certificate dated 18 December 2015, recording details of Mr Salloum's Saab motor vehicle. The basis for objection to each of these documents, as articulated by Mr Salloum, was that they had not been served upon him as part of the documentary evidence sought to be relied upon in the course of the appeal and further, that prior to the tender being made before us, he had never before seen the documents. Mr Calf accepted that neither the documents that he sought to tender nor any other documents proposed to be relied upon by Mr Golding had been provided to Mr Salloum.
3. We rejected the tender. Not only would it have been unfair to Mr Salloum to have allowed the tender without affording him a reasonable time to consider and respond to the documents, the relevance of those documents to the issue of the price agreed between Mr Golding's salesman and Mr Salloum for the sale of the Vehicle on 4 December 2015 was not made apparent. As we have recorded, the Tribunal's directions required that the documents upon which Mr Golding sought to rely for the purpose of his appeal be provided to Mr Salloum in advance of the hearing. Failure to comply with the Tribunal's directions is not lightly to be excused where that failure has the propensity to disrupt the hearing of proceedings, potentially requiring an adjournment. No explanation was offered in the present case for that failure.
4. Moreover, given their respective dates, the documents could not qualify as "new evidence…that was not reasonably available at the time the proceedings under appeal were being dealt with". It was following our rejection of the tender of these documents and the reasons expressed for so doing that Mr Calf withdrew from the proceedings after first consulting with his client.
5. Mr Golding then sought to argue that the miscellaneous documents that he had filed, including the two documents that we had rejected, showed that the price could not have been $14,000. As we were not prepared to revisit our decision to reject the tendered documents, the submission made by Mr Golding by reference to them did not advance his case. He was unable to indicate whether any of the documents upon which he sought to rely were documents the tender of which had been rejected by the Senior Member (see Reasons at [45]).
6. Mr Golding also asserted that his ability to give evidence before the Tribunal at first instance had, in some unexplained manner, been constrained by the Senior Member. At one point, he appeared to assert that he had been prevented from giving evidence. In the absence of any sound recording or transcript of the proceedings upon which to found his assertion, we could not place any weight upon it in order to conclude that the decision below was "not fair and equitable". As we have earlier recorded, the Reasons indicate at [10] that Mr Golding gave evidence on oath. Further, the evidence that he gave was summarised by the Senior Member who, in the Reasons, stated why the evidence of Mr Salloum was preferred over that given by Mr Golding. On their face, those references are not consistent with an assertion that Mr Golding was prevented from giving evidence or that his evidence was ignored.
7. We apprehend that the thrust of Mr Golding's submission is that his evidence should have been preferred over that led by Mr Salloum. However, the reasoning expressed in the Decision for preferring Mr Salloum's evidence, particularly as it appears at [30]-[32] and [46]-[48], is not inherently flawed or implausible. In the absence of any argument or relevant material demonstrating the basis upon which Mr Salloum's evidence could not rationally have been preferred, we have no basis upon which to disturb the finding of the Senior Member. No submission or material that would so qualify has been placed before us.
8. In summary, we are not satisfied that Mr Golding has suffered a substantial miscarriage of justice by reason of the Decision made by the Tribunal. He has not persuaded us that the Decision was not fair and equitable; nothing before us shows the decision to be against the weight of evidence led before the Tribunal and no new evidence has arisen that was not reasonably available to the Tribunal at first instance.
9. Leave to appeal is therefore refused.

Conclusion and Orders

1. For the reasons we have expressed, the sole ground of appeal on a question of law has not been made out. Further, Mr Golding has not demonstrated any basis upon which we should grant leave to appeal.
2. Accordingly, the orders of the Appeal Panel are: 1. The appeal is dismissed. 2. Leave to appeal is refused.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 December 2016