Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Saif v Sharma [2022] NSWCATAP 46 Hearing dates: 6 December 2021 Date of orders: 18 February 2022 Decision date: 18 February 2022 Jurisdiction: Appeal Panel Before: G Curtin SC, Senior Member D Fairlie, Senior Member Decision: 1. Mohsin Saif is joined as a party to the appeal. 2. Leave to appeal granted. 3. Appeal upheld. 4. The orders of the Tribunal dated 17 September 2021 are set aside. 5. The proceedings are remitted to the Tribunal to be determined according to law. 6. (For the avoidance of doubt) Business Empower Australia Pty Ltd is joined as the second respondent to the remitted proceedings. Catchwords: APPEALS — leave to appeal under cl 12 of Sch 4 of the Civil and Administrative Tribunal Act 2013 — significant new evidence that was not reasonably available at the time of the Tribunal hearing – may have suffered a substantial miscarriage of justice – no question of principle Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), Sch 4, cl 12 Civil and Administrative Tribunal Rules 2014 (NSW), r 29 Cases Cited: Nil Category: Principal judgment Parties: Tahsin Saif (First Appellant) Mohsin Saif (Second Appellant) Donald Sharma (Respondent) Representation: First Appellant in person and on behalf of the Second Appellant Respondent in person File Number(s): 2021/000282630 Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 17 September 2021 Before: P French, Senior Member File Number(s): MV 21/28601 REASONS FOR DECISION 1. This is an appeal by former used car dealers from orders of the Tribunal ordering them to repay to the respondent the purchase price paid for a used car (which turned out to be replete with defects), and for the respondent to return the car to them. 2. The central point on the appeal is whether it was a different used car dealer, Business Empower Australia Pty Ltd ("BEA"), and not the appellants, who sold the car to the respondent. 3. For the reasons that follow the appeal is upheld and the matter remitted to the Tribunal to be heard according to law. 4. We note that the Appeal Panel joined BEA to the appeal during a directions hearing on 10 November 2021. Unfortunately, BEA did not appear at the hearing of the appeal. Had it done so we may have been able to finalise the parties' disputes on the appeal. BEA should be a party to the remitted proceedings (as well as the appeal) and so, for the avoidance of doubt, we include an order that BEA be joined as a respondent to the remitted proceedings. Background 1. The appellants owned and operated a used car dealership from premises at Minchinbury, NSW. The premises they traded from were leased from a third party. 2. The first appellant, Mr Tahsin Saif, held a motor dealers licence no. MD071145 which said that the trading name (of the dealership) was "TM Alliance Motors". Whenever we refer to Mr Saif in these reasons, that will be a reference to the first appellant unless otherwise indicated. 3. The appellants employed a man by the name of Bahlul Alam as dealership manager. 4. The appellants said that they ceased trading in about May 2020. 5. The Tribunal accepted the evidence that Mr Saif's motor dealer's licence was surrendered on 28 May 2020, a fact verified by a search of motor dealers' licences on the Service NSW website. 6. The appellants said that a different motor dealer commenced trading at the same premises from about 28 May 2020. 7. Service NSW records that motor dealer's licence no. MD079307 was owned by BEA under the trading name "TM Alliance Motors Group" and commenced on 28 May 2020. 8. The appellants assert that Mr Alam, who ceased being their employee in May 2020, was then employed by BEA from about that time as manager of the car dealership. A salesperson by the name of "Sam" was also employed by BEA. 9. According to the appellants, the change in dealership operating from the subject premises was not by way of sale of a business. Rather, the appellants ceased trading, followed by BEA commencing trading at the same address. 10. According to the appellants, when they departed the premises, they left some office furniture and office stationery. Amongst the office stationery was a rubber stamp which contained the words "TM Alliance Motors", the address of the premises, an ABN, a mobile number and Mr Saif's dealer's licence number, namely MD071145. 11. On 4 June 2021, the respondent made three credit card transfers to "TM Alliance Motors" totalling $12,500. The credit card receipts, according to Mr Saif, recorded payments made using a BEA credit card terminal. The receipts do include a terminal number. 12. On the same day, $13,000 was credited to a bank account held by BEA. The deposit on that day identifies the same credit card terminal number as is recorded in the three credit card receipts. 13. On 17 June 2021, BEA completed an "Application for transfer of registration for motors dealers" for the Roads and Traffic Authority for a Nissan motor vehicle. That document recorded that BEA had purchased a Nissan motor vehicle from a third party on that same day. 14. On 18 June 2021, the respondent signed a Motor Vehicle Sale Contract for the purchase of a 2007 Nissan Navara motor vehicle. The purchase price was $12,500. The VIN number for this vehicle as recorded in the Contract was the same as that in the "Application for transfer of registration for motors dealers" referred to immediately above, other than the second last of 17 characters (making up the VIN number) being missing. This appears to be typographical error in the handwritten VIN number on the Contract. 15. Subsequently, a "Form 5: Motor Dealer's Notice for Motor Vehicles" for the Nissan (containing the same VIN number as in the "Application for transfer of registration for motors dealers" referred to above) was signed by Mr Alam (as Alam Bahlul) on 19 August 2021. The Form 5 recorded the dealer information as "TM Alliance Motors Group" with BEA's dealer's licence number. 16. The Form 5 said that the respondent was the purchaser of the Nissan, the sale price was $5,000 and the date of sale was 19 August 2021. 17. A search of Service NSW discloses that BEA surrendered its motor dealers' licence on 15 October 2021. The Appellant's Contentions 1. The short point is that the appellants assert that when the Nissan was sold to the respondent, the salesperson (Sam) incorrectly used the left-behind rubber stamp with the appellants' motor dealer's licence number on the Contract with the respondent instead of a stamp belonging to BEA and containing particulars referable to that company. 2. This explanation seems plausible, given Mr Saif's licence had expired about a year before the sale, the Nissan was in fact purchased by BEA (before the sale to the respondent) and the Form 5 recorded the dealer as BEA (and not Mr Saif). The Tribunal 1. The respondent commenced proceedings in the Tribunal against, understandably, the appellants. 2. Mr Saif said he was awaiting a call from the Tribunal on the day of the hearing, but the Tribunal rang Mr Alam instead. The most obvious reason this may have occurred is because the appellants had given Mr Alam's number to the Tribunal as the person to contact in relation to the case, but Mr Saif said it was because the mobile number on the rubber stamp used on the Contract was that of Mr Alam. 3. Be that as it may, the Tribunal heard from Mr Alam and the respondent, but Mr Saif did not appear and was not heard. 4. No sound recording or transcript of the hearing before the Tribunal was made available to us on this appeal, and so we do not know how the Tribunal satisfied itself that Mr Alam was entitled to speak on behalf of the appellants. 5. Mr Saif also said that he was prevented by the Covid-19 lockdown from obtaining some of the documents relevant to proving it was BEA, and not the appellants, who sold the Nissan to the respondent. 6. The Tribunal's reasons, so far as the identity of the correct entity which sold the Nissan to the respondent was concerned, were as follows: "I am satisfied that the proper respondent to this application is the partnership Mohsin SAIF and Tahsin SAIF t/as TM ALLIANCE MOTORS. It is Tahsin Saif's former motor dealer licence that appears on the contract for sale (Dealer Licence No. MD071145) and it is that partnership's Australian Business Number 19109985468 that appears on the contract for sale. Tahsin Saif surrendered his Dealer Licence on 28 May 2020 and therefore was not entitled to continue to trade as a motor dealer after that date. However, that does not affect his liability to the applicant for a motor vehicle the partnership sold to him despite not holding a dealer licence at the time. There is no evidence, other than a bare assertion made by Mr Alan Bahleo, who has some connection with a company named Business Empower Australia Pty Ltd t/a TM Alliance Motors Group that this entity is somehow the dealer responsible for the sale of the motor vehicle." 1. The reference to "Mr Alan Bahleo" in the above quote is a reference to Mr Bahlul Alam (or "Alam Bahlul" as that name appeared on the Form 5 referred to at [19] above). 2. The Tribunal went on to find that the Nissan fell foul of the guarantee contained in s 54 of the Australian Consumer Law, that it amounted to a major failure and the respondent was entitled to reject the vehicle. 3. The Tribunal accordingly made the following orders: "1. Mohsin SAIF and Tahsin SAIF t/as TM ALLIANCE MOTORS (address withheld) is to pay DONALD SHARMA (address withheld) the sum of $12867.61 immediately. 2. Donald Sharma must deliver up possession of motor vehicle registration number (number withheld) and do all things necessary to transfer ownership of that motor vehicle to Mohsin SAIF and Tahsin SAIF t/as TM ALLIANCE MOTORS before 24 September 2021. 3. The application is otherwise dismissed." 1. The appellants appeal from those orders. Decision 1. A party is entitled to seek leave to appeal on a ground other than one raising a question of law if, amongst other possibilities, the party may have suffered a substantial miscarriage of justice because significant new evidence had arisen being evidence that was not reasonably available at the time of the Tribunal hearing – cl 12 of Schedule 4 of the Civil and Administrative Tribunal Act 2013 (NSW). 2. In this case the significant new evidence are the three credit card receipts, BEA's bank account statement recording receipt of that money from the same credit card terminal on the same date as the receipts, the "Application for transfer of registration for motors dealers" and the Form 5. 3. Those documents are significant because they are potent evidence that the selling entity was BEA and not the appellants. 4. We accept that those documents were not reasonably available to the appellants at the time of the hearing due to the Covid-19 lockdown. 5. Had they been available there is a distinct possibility that the Tribunal would have found in favour of the appellants. Therefore, we are satisfied that the appellants may have suffered a substantial miscarriage of justice because that significant new evidence we have identified was not reasonably available at the time of the Tribunal hearing. Directions 1. At a directions hearing on 3 November 2021 (amended on 5 October), the Appeal Panel directed the Registrar to send BEA a copy of the Tribunal's decision, the Notice of Appeal, the orders made that day and a Notice of the next callover with details on how to participate. 2. It does not appear from the Tribunal's records that those documents were sent to BEA as directed. 3. At a directions hearing on 10 November 2021, the Appeal Panel ordered that BEA be joined to this appeal, no doubt in the hope that all issues could be resolved on the appeal. The Appeal Panel also directed that the parties serve their material on BEA, and that BEA lodge with the Tribunal and serve on the other parties a Reply to Appeal. No Reply to Appeal has been filed by BEA. 4. Both parties said that they had served their material on BEA, but we were not satisfied that BEA was aware of the hearing date of this appeal or was aware of how it could participate. In addition, we had no contact details for that company and therefore could not attempt to telephone it to join in the hearing of the appeal. 5. In those circumstances we were unable to determine whether we could resolve all disputes between the parties on the appeal, and there will need to be a new hearing. 6. As we have not heard from BEA, the appellants should remain a party to the proceedings against the event that BEA provides different or additional evidence to that we have mentioned above, and which may prove that it was the appellants and not BEA who sold the Nissan to the respondent. 7. No doubt the Tribunal shall make appropriate directions for the service of necessary material upon BEA for the proper determination of the remitted proceedings. 8. We note that Mohsin Saif was a party to the proceedings but not to the appeal. At the commencement of the appeal we indicated that we would make an order joining him to the appeal as required by r 29 of the Civil and Administrative Tribunal Rules 2014 (NSW). Orders 1. We make the following orders: 1. Mohsin Saif is joined as a party to the appeal. 2. Leave to appeal granted. 3. Appeal upheld. 4. The orders of the Tribunal dated 17 September 2021 are set aside. 5. The proceedings are remitted to the Tribunal to be determined according to law. 6. (For the avoidance of doubt) Business Empower Australia Pty Ltd is joined as the second respondent to the remitted proceedings. ********** 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: 03 March 2022