Solovastru v Leonid Anderson t/as Motor Depot

[2020] QCATA 131

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Solovastru v Leonid Anderson t/as Motor Depot [2020] QCATA 131

PARTIES:

MIRELA SOLOVASTRU

(appellant)             

v

LEONID ANDERSON T/AS MOTOR DEPOT

(respondent)

APPLICATION NO/S:

APL341-19

ORIGINATING APPLICATION NO/S:

MCDQ210/19

MATTER TYPE:

Appeals

DELIVERED ON:

1 September 2020

HEARING DATE:

28 August 2020

HEARD AT:

Brisbane

DECISION OF:

Member Hughes

ORDERS:

1.   Leave to appeal granted.

2.   Appeal allowed.

3.   The Orders made on 2 December 2019 are set aside.

4.   The fresh evidence filed by the appellant and referred to in paragraph 4 of these reasons is admitted.

5.   The proceedings instituted by Application MCDQ210/19 are remitted to the same Adjudicator for rehearing.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – interference with findings of Tribunal below – functions of appellate tribunal – where fresh evidence germane to Tribunal’s findings and orders – where appellant has reasonable prospect of substantive relief upon consideration of fresh evidence – where matter remitted for rehearing

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 147

Cachia v Grech [2009] NSWCA 232
Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404
Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388

McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577

QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41

APPEARANCES & REPRESENTATION:

Applicants:

Self-represented

Respondent:

Self-represented

REASONS FOR DECISION

1. On 2 December 2019, an Adjudicator ordered that upon Mirela Solovastru paying the sum of $2,500.00, Leonid Anderson t/as Motor Depot redeliver her car “in the same good order and condition as it was on 2 December 2019.” 

2. Ms Solovastru has applied for leave to appeal that decision.

3. In determining whether to grant leave, the Tribunal will consider established principles including:

   (a)whether there is a reasonably arguable case of error in the primary decision;[1]

   (b)whether there is a reasonable prospect that the appellant will obtain substantive relief;[2]

   (c)whether leave is needed to correct a substantial injustice caused by some error;[3] and

   (d)whether there is a question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage.[4]

   [1]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.

   [2]Cachia v Grech [2009] NSWCA 232, 2.

   [3]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.

   [4]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, 389; McIver Bulk

   Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, 577, 580.

4. Ms Solovastru’s grounds of appeal challenged the learned Adjudicator’s finding of fact that the car was roadworthy, capable of reregistration and drivable.[5] Ms Solovastru submitted that when she went to collect her car after paying the $2,500.00, it was in fact not drivable and in need of repair. She supported her submission with fresh evidence, including invoices and a roadworthy certificate.[6]

   [5]Transcript dated 2 December 2019, page 1-47, lines 4 to 9.

   [6]Lube Mobile Invoice 167381 dated 06 December 2019; Lube Mobile Invoice 169007 dated 07 December 2019; Bundle of four photographs dated 06 December 2019; Photograph dated 7 December 2019; Photograph dated 4 December 2019; Bundle of two photographs dated 3 December 2019; Queensland Transport Receipt 650514071 dated 6 December 2019; Safety Certificate dated 6 December 2019; Bundle of Car Rental Invoices dated various.

5. During the Appeal hearing, Mr Anderson denied that the car was not roadworthy but acknowledged cracking and a seeping coolant when Ms Solovastru went to collect it. He referred to recordings he made at that time and other evidence that he said supported this. None of this was filed with the Appeal Tribunal, despite Mr Anderson being given no fewer than two opportunities before the hearing.[7]

   [7]Appeal Tribunal Directions dated 2 January 2020, 17 June 2020.

6. The Appeal Tribunal will only accept Ms Solovastru’s fresh evidence if it was not reasonably available at the time the proceeding was heard and determined. Ordinarily, an applicant for leave to adduce fresh evidence must satisfy three tests:[8]

   (a)Could the parties have obtained the evidence with reasonable diligence for use at the trial?

   (b)If allowed, would the evidence probably have an important impact on the result of the case?

   (c)Is the evidence credible?

   [8]Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404, 408.

7. Because the fresh evidence is evidence of the condition of the car as at the date of redelivery, it necessarily post-dates the hearing. It would therefore have been impossible for Ms Solovastru to have obtained this evidence for the original hearing.  

8. The Appeal Tribunal is satisfied that the evidence would probably have an important result on the case. This is because the invoices and photographs belie Mr Anderson’s previous sworn oral evidence of the condition of the car. Ms Solovastru was unable to refute Mr Anderson’s oral evidence at the hearing because the car was not in her possession. The learned Adjudicator therefore relied (as he was entitled to do) upon Mr Anderson’s oral evidence alone:

   I asked Mr Anderson, in the course of the hearing whether, if I was an intending purchaser, were to come to and buy the vehicle today, whether I could drive it away, whether it would be roadworthy. Mr (sic) recollection of his evidence on oath is that he said it would be…

   … I have accepted Mr Anderson’s evidence on oath, to which I have just referred. And there are serious consequences for perjury in this tribunal if what Mr Anderson told me is incorrect.[9]

   [9]Transcript dated 2 December 2019, page 1-47, lines 5 to 9, 16 to 18.

9. Ms Solovastru’s fresh evidence is credible because it is contemporaneous and independent documentary evidence of the condition of the car. Ms Solovastru obtained the evidence at the first opportunity the car came into her possession. Armed with this evidence, the learned Adjudicator has a reasonable likelihood of coming to a different view about the condition of car.  The fresh evidence is germane to any findings and orders.

10. The fresh evidence is admitted. Because the Appeal Tribunal is satisfied that Ms Solovastru has a reasonable prospect of obtaining substantive relief upon consideration of the fresh evidence, leave to appeal should be granted and the appeal allowed.

11. Because the appeal has been decided on a question of fact, the appeal must be decided by way of rehearing, with the fresh evidence.[10] The matter is to be remitted for rehearing before the same Adjudicator, who will be in the best position to assess credit and make appropriate findings with the benefit of the fresh evidence.

    [10]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 147.