Chief Executive, Office of Fair Trading, Department of Employment, Economic Development and Innovation v MWC Pty Ltd

[2012] QCAT 136

CITATION: Chief Executive, Office of Fair Trading, Department of Employment, Economic Development and Innovation v MWC Pty Ltd and Ors [2012] QCAT 136

PARTIES:	The Chief Executive, Office of Fair Trading,  Department of Employment, Economic Development and Innovation
v
MWC Pty Ltd t/as Steve Mortimer Wholesale Cars Mr Stephen Guy Ross Mortimer Mr Adrian Gerard Johnson

APPLICATION NUMBER:   OCR064-10

MATTER TYPE: Occupational regulation matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Peta Stilgoe, Senior Member

DELIVERED ON: 29 March 2012

DELIVERED AT: Brisbane

ORDERS MADE:     

1. Pursuant to s 527 of the Property Agents and Motor Dealers Act 2000 Steve Mortimer Wholesale Cars, Stephen Guy Ross Mortimer and Adrian Gerard Johnson are liable to reimburse, and are ordered to pay to, the Claim Fund established under s 408 of the Act the sum of $5,382.00.

2.    Steve Mortimer Wholesale Cars and Stephen Guy Ross Mortimer are ordered to pay the Claim Fund the sum of $5,382.00 within 21 days of the date of this order.

3.    Adrian Gerard Johnstone is ordered to pay the Claim Fund the sum of $5,382.00 within 90 days of the date of this order.

CATCHWORDS:

MOTOR DEALERS – REIMBURSEMENT OF THE FUND – where vehicle sold with tampered odometer – where claim on the fund – where submissions by third respondent about responsibility for loss

Property Agents and Motor Dealers Act 2000, ss 527, 528(2)

APPEARANCES and REPRESENTATION (if any):

This matter was heard on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.

REASONS FOR DECISION

1. In March 2006, Mr Narvaez bought a Nissan Pathfinder from Steve Mortimer Wholesale Cars for $14,666 including a five-year warranty.  The Nissan’s odometer reading was 66,660 km.  In fact, the odometer had been tampered with and its true reading was approximately 141,660 km.  The difference in the Nissan’s value, because of the different odometer reading, was $3,999.

2. Mr Johnson, an employee of Steve Mortimer Wholesale Cars made the sale to Mr Navaez.  At the time of the sale, the company held a Motor Dealer Corporation Licence, Mr Mortimer held a Motor Dealer Principal Licence and Mr Johnson held a Motor Salesperson Licence.

3. Mr Navaez made a claim on the statutory fund for the difference in value plus some consequential losses.  The Chief Executive paid the claim in the sum of $5,382.00 on 4 September 2009.  The company, Mr Mortimer and Mr Johnson were all named as responsible persons, jointly and severally liable to reimburse the fund.

4. The Chief Executive made demand for reimbursement of the fund by letters dated 19 October 2009, copies of which have been provided to the tribunal.  The company, Mr Mortimer and Mr Johnson have not responded to those letters and they have not reimbursed the fund.

5. Section 572 of the Property Agents and Motor Dealers Act 2000 allows the Chief Executive to apply to the tribunal for an order that the company, Mr Mortimer and Mr Johnson reimburse the fund.

6. The application came on for hearing on 23 August 2010.  The learned Member was not satisfied that the Chief Executive had provided sufficient evidence of the delegation to the decision maker, Mr Fraser, in the first instance.  Further, the learned Member took the view that the Chief Executive had not established to his satisfaction that the company, Mr Mortimer and Mr Johnson did not apply to the tribunal for a review of that decision.

7. On 24 August 2010, the Chief Executive filed affidavits sworn by Manda Bolam and Lena Maxwell.  Ms Maxwell exhibited a copy of the instrument of delegation.  Ms Bolam deposed to a conversation with the former Commercial and Consumer Tribunal confirming that none of the company, Mr Mortimer or Mr Johnson had filed an application for review.

8. Although these documents are now of some age, I am prepared to accept them.  In a statement filed with the tribunal dated 16 August 2010, Mr Johnson admits that he did not file an application for review of the Chief Executive’s decision because Mr Mortimer assured him it was not necessary.  It is, therefore, unlikely that Mr Mortimer would have adopted a contrary practice.

9. I am satisfied that, in each case, the Chief Executive has provided the documents required by s 527(3).

[10]  The tribunal issued a direction on 29 February 2012 giving the parties an opportunity to reply to the material filed by the Chief Executive on 24 August 2010.  By letter of 6 March 2012, D Mansfield advised that he had been appointed as liquidator of the company on 1 October 2010.

[11]  Mr Johnstone has filed a further submission urging the tribunal to consider the full history of the Nissan and stating that he genuinely believed that the odometer reading was correct.  Mr Johnstone also states that he relied on Mr Mortimer to conduct his business according to law.

[12] Section 528(2) of PAMDA makes it clear that a respondent may only make submissions about when and in what way he intends to satisfy the amount paid from the fund.

[13]  I am therefore satisfied that the company, Mr Mortimer and Mr Johnson are liable to reimburse the fund in the amount of $5,382.00.  However, given the length of time that has elapsed and Mr Johnstone’s position as an employee, I am prepared to allow him additional time to reimburse the fund.  I am conscious that my direction to the company will probably yield no fruit.

[14] I direct that, pursuant to section 527 of the Property Agents and Motor Dealers Act 2000, the company, Mr Mortimer and Mr Johnson are liable to reimburse, and are ordered to pay to, the Claim Fund established under section 408 of the Act the sum of $5,382.00.

[15]  The company and Mr Mortimer are ordered to pay $5,382.00 to the Claim Fund within 21 days of the date of this order.  Mr Johnstone is ordered to pay $5,382.00 to the Claim Fund within 90 days of this order.