Alderwick v Chief Executive, Department of Justice Office of Fair Trading
[2025] QCAT 267
•2 June 2025
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Alderwick v Chief Executive, Department of Justice Office of Fair Trading & Anor [2025] QCAT 267
PARTIES:
ADRIAN ALDERWICK (applicant)
v
CHIEF EXECUTIVE, DEPARTMENT OF JUSTICE OFFICE OF FAIR TRADING (first respondent)
and
STEVEN CARKEET (second respondent)
APPLICATION NO/S:
GAR843-23
MATTER TYPE:
General administrative review matters
DELIVERED ON:
2 June 2025
HEARING DATE:
22 January 2025
HEARD AT:
Brisbane
DECISION OF:
Member Holzberger
ORDERS:
1. The application is dismissed.
CATCHWORDS:
GENERAL ADMINISTRATIVE REVIEWS – claim against agent, claim fund – what constitutes a claimable event – whether statements were false or misleading
The Queensland Civil and Administrative Tribunal Act 2009 (Qld)
The Agents Financial Administration Act 2014 (Qld)
The Competition and Consumer Act 2010 (Cth)
Whitman v White King Wollongong Pty Ltd T/A Illawarra Toyota [2012] QCAT 290
APPEARANCES & REPRESENTATION:
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)
REASONS FOR DECISION
On or about May 2023 Adrian Alderwick purchased a used motor vehicle from Steven Carkeet for $85,000.00. The vehicle in question was a heavily modified 1985 Holden Commodore. The modifications were carried out by Mr Carkeet.
Mr Carkeet advertised the vehicle for sale online with some specifications and representations.
Mr Alderwick and Mr Carkeet discussed the vehicle by various text exchanges in mid-April 2023 and again representations were made. Mr Carkeet forwarded Mr Alderwick a number of photographs and videos of the vehicle. Mr Alderwick did not inspect the vehicle or have someone inspect it on his behalf prior to his decision to purchase.
Mr Alderwick says that on delivery that it became apparent the vehicle had a number of serious mechanical defects and needed to be repaired.
On 16 October 2023 Mr Alderwick lodged a claim against the Chief Executive, Department of Justice, Office of Fair Trading (the Chief Executive) as administrator of the Claim Fund established in the Agents Financial Administration Act 2014 (‘AFA Act’) for $25,376.00.
The amount claimed was calculated as the total for the following repair estimates:
(a)Erickson Auto Pty Ltd estimate dated 25 September 2023 for $8,260.00 to rectify 22 mechanical issues;
(b)ARP Automotive estimate dated 13 October 2023 for $17,116.00 to rectify and repair the exterior of the vehicle.
Mr Alderwick has since these proceedings commenced provided an estimate of the value of the vehicle and reference is made in a brief witness statement of Mr Alderwick’s wife, Laurie Alderwick, that the more appropriate remedy is now compensation and disposal of the vehicle. No attempt has been made to amend the claim, and it has been determined on the basis of the repair of the vehicle as per the original claim.
On 23 November 2023 the Chief Executive rejected the claim and provided a statement of its reasons for the rejection.
On 29 November 2023 Mr Alderwick applied to the Tribunal for a review of the decision.
In conducting the review, the Tribunal stands in the shoes of the original decision maker and proceeds by way of fresh hearing on the merits with a view to reaching the correct and preferable decision[1].
[1]Queensland Civil and Administrative Tribunal Act 2009 (Qld) section 20.
The Tribunal is not limited to evidence that was before the original decision maker. Mr Alderwick has provided a variety of materials including a letter from Laurie Alderwick, a number of photographs illustrating the alleged defects, a mechanical report from JD Automotive date 15 May 2024, a letter for Jarrod Powis from Platinum Auto Salon with photographs of the “issues” with the exterior of the vehicle, a quotation from New Brakes and Mechanical Repairs dated 20 June 2023, a report from Pedder’s Suspension and Brakes dated 3 May 2024 and a vehicle valuation report from Cuthbert Automotive consulting dated 26 July 2024.
On the application of the Chief Executive Mr Carkeet was joined as second respondent in the proceedings on 6 February 2024.
On 29 May 2024 Mr Carkeet filed in the Tribunal his comments on the various mechanical issues raised in Mr Alderwick’s material. It is clear there are significant and numerous factual disputes in relation to the condition of the vehicle. Mr Carkeet lodged a further statement on 9 July 2024.
The Office of Fair Trading lodged material pursuant to Section 21(2) of the Queensland Civil and Administrative TribunalAct2009 (Qld) (‘QCAT Act’) on 24 January 2024 and written submission on 24 January 2024 and 10th July 2024.
The matter came before me for a hearing on the papers on 22 January 2025.
As I understand it the basis of Mr Alderwick’s claim is;
(a)The vehicle is not of acceptable quality; and or
(b)Representations about the vehicle made to him by Mr Carkeet were false and misleading.
The Claim Fund is established under the AFA act to “compensate persons in particular circumstances for financial loss arising from dealings with agents” [2].
[2]AFA Act Section 6(2)(b) and Section 78.
The Chief Executive, and the Tribunal in its place may only allow a claim if satisfied it meets the requirements of Part 7 Division 2 of the AFA act, namely;
(a)The claim was lodged within time[3];
(b)Mr Carkeet was a relevant person for the purposes of the AFA act;
(c)Mr Carkeet committed a “claimable event” listed in Section 82(1) of the AFA act; and
(d)This “claimable event” caused Mr Alderwick to suffer financial loss.
[3]AFA Act Section 85.
The Chief Executive concedes the claim was made within time and that Mr Carkeet is a relevant person. On the evidence before me I am satisfied that is the case.
Schedule 2 Section 54(1) of the Competition and Consumer Act 2010 (‘Australian Consumer Law’) applies to the sale of used vehicles by motor dealers and provides that where goods are supplied in trade or commerce they are guaranteed to be of acceptable quality. Mr Alderwick may well have a claim against Mr Carkeet under Australian Consumer law although clearly Mr Carkeet disputes his various claims, but that is not an issue for the Tribunal to determine in this review.
I accept the Chief Executive’s submission that a breach of Australian Consumer law is not a claimable event set out in Section 82 (1) of the AFA Act. The condition of the vehicle is only relevant to the issue of whether the representation made by Mr Carkeet were false and misleading.
Section 216 of the Motor Dealers and Chattel Auctioneers Act 2014 (‘MDCA Act’) provided that a licensee or motor salesperson must not make false or misleading representations.
A breach of Section 216 MDCA Act is a claimable event under Section 82(1) of the AFA Act.
In his AFA form 1 claim Mr Alderwick referred to the following representations;
(a)In the online advertisement the words “pics do no justice what so ever (sic)” and “one hell of a car to enjoy just hit the key and go…”;
(b)In an undated text message exchange in response to a request from Mr Alderwick “are you able to advise or send pictures of imperfections ect (sic)” to which Mr Carkeet responded “there are no imperfections mate I only own and qaulity (sic) I’d have a scope of my profile U will see the Qaulity (sic) of my all my (sic) cars and my OCD on builds are next level…”;
(c)In a further undated text message exchange, the statement “no worries mate stout thing definitely fun car and turn heads at all the events up here”; and
(d)In a further undated text message exchange, the statement “the cars killer all round throughout and under the carriage.”
I am unable to identify any other specific claims from the various documents provided by Mr Alderwick.
There is no evidence of any communication between the parties other than the text messages.
The Chief Executive submits that the text messages are merely “hyperbole or puffery” and consequently have no legal effect[4].
[4]Chief executive submission filed 10th July 2024 paragraph 21, Whitman v White King Wollongong Pty Ltd T/A Illawarra Toyota [2012] QCAT 290 at [52]-[54].
While the parties have made submissions their evidence is untested. There has been no attempt by Mr Alderwick to explain the context in which the various messages were delivered, his understanding of their meaning at the time and the effect they had on his decision to buy.
I agree with the Chief Executive’s submission that “one hell of a car”, “a stout thing”, “a fun car” and “killer all round” are not objective descriptors which could reasonably be taken as warranting the mechanical condition of the vehicle. The evidence does not in any event establish that any of them is necessarily false.
The term “no imperfections” has in my view to be considered in the context of a 38-year-old Holden that has been extensively modified.
Mr Alderwick may well have an action against Mr Carkeet in relation to various alleged deficiencies in the vehicle but that is not a matter the Tribunal needs to consider in these proceedings as those deficiencies if proven are not a claimable event under the AFA Act.
I am not satisfied on the evidence that Mr Alderwick has established that Mr Carkeet made false or misleading statements and in those circumstances the application is dismissed.
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