Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Morissi v Syed [2022] NSWCATAP 162 Hearing dates: 22 March 2022 Date of orders: 16 May 2022 Decision date: 16 May 2022 Jurisdiction: Appeal Panel Before: The Hon D. A. Cowdroy AO QC R C Titterton OAM Decision: 1. The stay of proceedings made on 28 January 2022 be lifted forthwith. 2. Leave be refused to bring the appeal. 3. The appeal be dismissed. Catchwords: APPEAL – appeal from commercial and consumer division – sale of motor vehicle – agent acting for undisclosed principal – defective vehicle – purchaser seeking redress – misleading conduct of indoor Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) - s 80, cl 12(1)(c) of Sch 4 Cases Cited: Al- Mehdawi v Secretary of State for the Home Department [1990] 1 AC 876 Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 Collins v Urban [2014] NSWCATAP 17 Johnson v Johnson 1899 P. 19 Pholi v Wearne [2014] NSWCATAP 78 Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 Category: Principal judgment Parties: Andrew Morissi (Appellant) Zainulla Syed (First Respondent) Mohammed Haji Aghaie Shahrestani (Second Respondent) Representation: Appellant (Self-represented) First Respondent (Self-represented) Second Respondent (Self-represented) File Number(s): 2022/00007375 Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 13 November 2021 Before: P French, Senior Member File Number(s): MV 21/27524 REASONS FOR DECISION 1. By notice of appeal filed on 10 January 2022, the appellant appeals the decision of the Tribunal delivered on 13 December 2021. 2. The second named respondent was joined into the proceedings by the Tribunal direction issued on 11 January 2022. On that date the Tribunal also ordered the appellant to file an amended notice of appeal naming Mohammed Haji Aghaie Shahrestani as a second respondent. 3. No such amended notice of appeal was filed. The second respondent has taken no part in the proceedings although he telephoned and listened in to the hearing of the appeal. 4. By such decision, the appellant was ordered to pay the sum of $13,700 to the respondent immediately. No payment has been made. The appellant sought a stay of the proceedings. A stay was granted by the Tribunal in the absence of the first respondent on 28 January 2022. Background 1. The First Respondent (hereafter the respondent) purchased a motor vehicle on 1 October 2020 from Mr Agrin Au (Mr Au). The vehicle was advertised as having 10 months' registration and upon inspection the respondent was informed that the motor vehicle was Mr Au's wife's car, had been well looked after, and was reliable. The price advertised was $14,200. The parties agreed upon a purchase price of $13,700. The respondent paid a $1,000 deposit to Mr Au on 1 October 2020 and paid the balance on 2 October 2020 when he collected the vehicle from an address in Westmead. 2. On 3 October 2020, the respondent inspected the vehicle and found it had several faults. He then noticed that the name of the owner recorded on the certificate of registration was Andrew Morissi and in the information section of the certificate relating to the vehicle's "usage" it was described as "held for re-sale by a licensed motor dealer". 3. On the same day (3 October 2020), the respondent telephoned Mr Au to complain about the condition of the vehicle. On 6 October 2020, the respondent drove the vehicle to Mr Au's residential address and following an argument, the respondent demanded a refund of the price. This was refused. The respondent then left the vehicle in the possession of Mr Au believing that he would resell the vehicle and remit the proceeds, equivalent to the purchase price, within 20 days. 4. On 19 October 2020, the respondent contacted Mr Au by telephone to enquire if any payment had been made and in a second conversation on the same day the respondent agreed to accept $12,000 for the vehicle. However, after unsuccessful attempts by the respondent to contact Mr Au after that date he drove to Mr Au's residence on 22 October 2020. At this meeting the respondent was informed by Mr Au that the vehicle was with a dealer; that he worked for a dealer as an agent and received a commission when he sells a car. 5. Further communications took place on 24 October 2020 and 31 October 2020 in which the respondent demanded that he be paid either $12,000 or $13,700. 6. On 14 November 2020, the respondent attended the address shown for the registered owner, namely the appellant, at an address in Bradbury. There he found that no one resided at the address but there were several vehicles parked around. He left a letter for the appellant requesting communication. 7. On 14 November 2020, the respondent attended NSW Police at Blacktown. Following investigations, the police informed him that the vehicle had recently been purchased and was registered to a person in Blacktown. 8. Records of the Roads and Maritime Services (RMS) reveal that on 28 September 2020 the appellant made an application to RMS to register the motor vehicle giving his Bradbury address and in respect of the use intended for the vehicle it was recorded that it was a "second hand vehicle held for resale by licensed motor dealers". 9. On 9 October 2020, the appellant lodged a form with RMS to transfer registration of the vehicle to a third party for the stated sale price of $8,000. The NSW Transport DRIVES ownership history for the vehicle stated that customer ID number 2337194 acquired the vehicle on 28 September 2020 and disposed of it on 9 October 2020 and that the registration was transferred on 12 October 2020. The customer ID number 2333 7194 is that of the appellant. Tribunal findings 1. The Tribunal found that: 1. Mr Au was at all times acting as agent for the appellant; 2. the appellant is a licensed motor dealer; 3. Mr Au is an alias for Mohamed Sharestani (the second respondent to this appeal); 4. telephone calls were frequently made between the appellant and Sharestani, there being 644 telephone calls the between 3 July 2020 and 26 December 2020 made between them; 5. the sale of the vehicle was made under the pretence of a private sale which was a sham; 6. the appellant committed an act of conversion by disposing of the vehicle and by not accounting to the first respondent for the proceeds of sale. Grounds of appeal 1. The appellant claims that he had "… another matter at District court in Campbelltown when exactly the tribunal hearing was taking place and I did asked the tribunal to put on a pause on the hearing which the tribunal did not agree to. I did not have time to collect my evidence and you took over 19 the hearing was taking place over the phone while I was at District Court". 1. The appellant claims: "I did not provide any evidences at the time of hearing and I requested a timeframe so I can file my evidence is which [sic] got refused. I dud [sic –did] post my evidence to tribunal and the member didn't received them at the hearing time. My witnesses affidavit were not ready at the time of hearing. The print of listing text messages were not ready at the time of hearing". 1. In respect of the evidence which was not available at the hearing, the appellant states: "I've had another matter in District Court of Campbelltown and I did not have enough time to spend in tribunal matter, and they refused to give me more time when I requested to postpone the time of hearing. I've had my other matter from 1th [sic] to November 10 th all h and all my time and energy was taken away by that matter". Reply to Appeal 1. The first respondent filed a Reply to Appeal on 7 February 2022 opposing the appeal and opposing the grant of leave to bring the appeal. Further, the Reply states that: 1. the appellant did not have another matter in the District Court as claimed: the hearing of the matter in which the appellant was involved was located on 28 October 2021; 2. the fact that the appellant participated in the tribunal hearing demonstrates that he had no such commitment; 3. the appellant had numerous occasions to present his evidence but he failed to do so; 4. the appellant never informed the Tribunal nor the respondent that he could not prepare or file evidence as he was concentrating on a District Court matter; 5. on 12 October 2021 the appellant, without reference to the respondent requested the Tribunal to postpone the hearing to a date before 2 November 2021, whilst being fully aware that he had not filed any evidence; the Tribunal rejected such application; 6. the appellant has failed to state why his two alleged witnesses could not be present at the hearing on 2 November 2021. Consideration 1. This is an internal appeal brought pursuant to s 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). The grounds of appeal may be summarised as being a complaint that the decision was not fair and equitable. Pursuant to Pt 6 of Sch 4 to the NCAT Act, an Appeal Panel may grant leave under s 80(2)(a) only if it is satisfied that the appellant may have suffered a substantial miscarriage of justice because: 1. the decision of the tribunal under appeal was not fair and equitable; or 2. the decision of the Tribunal under appeal was against the weight of evidence; 3. significant new evidence has arisen (being evidence was not reasonably available at the time the proceedings under appeal were being dealt with). 1. The principles concerning the grant of leave were discussed in Collins v Urban [2014] NSWCATAP 17 at [84]. The Appeal Panel said: "(1) in order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision-maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013) NSWCA 421 at [20]; Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (2) ordinarily it is appropriate to grant leave to appeal and in matters that involve: (a) issues of principle; (b) questions of public importance for matters of administrational policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of game beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact-finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed". 1. Even if an appellant establishes that they may have suffered a substantial miscarriage of justice in the sense explained above, the Appeal Panel retains a discretion whether to grant leave under s 80(2) of the Act. An appellant must demonstrate something more than that the Tribunal was arguably wrong: Pholi v Wearne [2014] NSWCATAP 78 at [32]. Failure to comply with Tribunal's Directions 1. The appellant's claim that he was unable to present his came properly must be rejected: the appellant had ample opportunity to present any evidence which he wished to place before the Tribunal. The appellant failed to comply with the Directions for the filing of material. The Reply shows that the appellant had 42 days from 16 July 2021 to 27 August 2021 to prepare his evidence but failed to do so; and 109 days from 16 July 2000 and 2000 2 November 2021. 2. In summary, the Tribunal ordered the appellant to provide all documents upon which the appellant sought to rely by 27 August 2021. The appellant did not do so. Attempt to Mislead the Appeal Panel 1. Further, the appellant's claim contained in his Notice of Appeal that he was unable to present his case properly because he was at the Campbelltown District Court is false. Such a claim cannot be accepted in view of the information provided by the respondent which shows at the matter in which the appellant was to have been involved was adjourned prior to the hearing date before the Tribunal. The respondent obtained an email from Campbelltown District Court dated 17 January 2022 which relevantly states: "I can confirm the following: Estimated 10 day trial commencing 1/11/2021 was vacated on 28/10 2021 as a matter was finalised on 28/10 2021. The Prosecutor in this matter was the Director of Public Prosecutions." 1. But for the respondent's research, the appellant would have had the Appeal Panel believe that he was involved in a family law matter (as he stated to the Appeal Panel) in a court hearing at Campbelltown when in fact that hearing was vacated on 28 October 2021. The appellant only conceded that fact during the hearing when it became obvious that his claim of being engaged in another court could not be sustained. It is also apparent at the proceedings were criminal in nature and not family law proceedings. Fresh evidence 1. The appellant has put forward evidence which he claims constitutes fresh evidence. Such material consists of a statutory declaration of Mr Mohammed Shahretani subscribed 5 January 2022 which contains material relating to the sale. However this material does not qualify as "fresh evidence": that term relates to " something which is happened since the former hearing or trial, or it must be evidence which has come to the knowledge of the party applying since that hearing or trial, and which could not by reasonable means have come into his knowledge before that time": see Johnson v Johnson 1899 P. 19 per The President at 21. 2. There is no explanation provided why such evidence was not produced before the Tribunal hearing, and further, since such material relates to the events of the sale, it clearly predates the Tribunal hearing and does not qualify as "fresh evidence". 3. In any event, the relevant test is whether the evidence was not reasonably available at the time the proceedings under appeal were being dealt with: NCAT Act; cl 12(1)(c) of Sch 4. This is not to be considered by reference to any subjective explanation from the party seeking leave but rather, by applying an objective test and considering whether the evidence in question was unavailable because no person could have reasonably obtained the evidence: Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 at [23]. 4. During the course of the hearing of the appeal, the appellant made numerous statements to the effect that he was too busy and distracted by his other court proceedings to prepare for the hearing before the Tribunal. No explanation was otherwise provided for his failure to comply with the directions to provide any material upon which you wish to rely by 27 August 2021. The Appeal Panel rejects such contentions. Conclusion 1. No point of law is raised by this appeal. 2. To the extent that the appeal raises other errors, we are not satisfied that any ground involves an issue of principle, a question of public importance, an injustice which is reasonably clear or that the Tribunal has gone about its fact finding process in such an unorthodox manner that it is likely to have produced an unfair result. 3. In substance, the appellant merely seeks to have a second hearing based upon an assertion that he was unprepared for the hearing. The appellant has had the opportunity before the Tribunal to place any material which he wished to do so before it for consideration. 4. There has been no denial of procedural fairness. 5. The appellant is not entitled to have a second hearing: see Al- Mehdawi v Secretary of State for the Home Department [1990] 1 AC 876 at 898. An appeal to the Appeal Panel does not simply provide a losing party in the Tribunal below with the opportunity to run their case again: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10]. And generally, an appeal is not an opportunity to have a second go at a hearing: NCAT Guideline 1, November 2019, Internal Appeals, par [4]. Removal of stay 1. The Appeal Panel notes that a stay has operated. As a consequence, the respondent has received no funds although the Tribunal ordered the appellant to pay him the sum of $13,700 immediately. 2. The Appeal Panel will order that the stay be lifted forthwith. 3. n the event that payment is not forthcoming, the respondent will be at liberty to enforce the order. The respondent may also consider whether the reasons of the Tribunal and of the Appeal Panel should be provided to RMS to determine whether the appellant's conduct is consistent with him being registered as a licensed motor dealer. Orders 1. The Appeal Panel orders: 1. The stay of proceedings made on 28 January 2022 be lifted forthwith. 2. Leave be refused to bring the appeal. 3. The appeal be dismissed. ********** 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: 16 May 2022