Cotter v Car Auction Pty Ltd - [2022] QCAT 364

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Cotter v Car Auction Pty Ltd & Ors [2022] QCAT 364

PARTIES:

kathleen agnes cotter

(applicant)

v

CAR AUCTION PTY LTD

(first respondent)

JESSICA PAGE
(second respondent)

LEVI JACKSON
(third respondent)

THOMAS MUTCH
(fourth respondent)

CHIEF EXECUTIVE, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL
(fifth respondent)

APPLICATION NO:

OCL004-21

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

27 September 2022

HEARING DATE:

26 July 2022

HEARD AT:

Brisbane

DECISION OF:

Member Olding

ORDERS:

The decision under review is confirmed.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – whether Tribunal has jurisdiction under Agents Financial Administration Act 2014 (Qld) – whether sufficient connection with State of Queensland

PROFESSIONS AND TRADES – LICENSING AND REGULATION OF OTHER PROFESSIONS OR TRADES – DEALERS – OTHER DEALERS – where business formerly operated in Queensland misappropriated motor vehicle purchase monies – where vehicle and claimant located outside Queensland – where preponderance of evidence that respondents not in Queensland when impugned conduct occurred

Agents Financial Administration Act 2014 (Qld), s 82(1), s 92(3)

Freehold Land Investments Ltd v Queensland Estates Pty Ltd (1970) 123 CLR 418
Riley, Vrachnas & the Chief Executive, Office of Fair Trading v Ferrantino [2008] QCCTPAMD 3

Ryan v Ferrantino [2010] QCAT 495
Turnbull v McCreath & Ors [2017] QCAT 190

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)

Applicant:

H L Lilley of Counsel

Fifth Respondent:

Self-represented

REASONS FOR DECISION

The applicant, Ms Cotter, a disability pensioner, on an advertised promise of a $3,000 - $6,000 saving, engaged the first respondent, Car Auction Pty Ltd, as a buyer’s agent to purchase a vehicle on her behalf.
In due course, Car Auction Pty Ltd’s representative, Mr Levi Jackson, advised Ms Cotter that he had purchased a suitable vehicle and an invoice for the vehicle in the amount of $23,450 issued. Ms Cotter duly transferred the amount of $23,450 to an account nominated by Mr Jackson.
Ms Cotter received neither the vehicle nor a refund of any part of the amount she paid for it. For the purposes of this proceeding, it may be assumed that Car Auction Pty Ltd misappropriated her money. Ms Cotter applied for a payment from the fund established under the Agents Financial Administration Act 2014 (Qld) (“the AFA Act”) to compensate those who suffer financial loss as a result of misappropriation of funds or other contraventions of that Act by a person who acts as a licensed agent.[1]
[1]AFA Act, s 82(1).
The Chief Executive of the Queensland Department of Justice and Attorney-General (“the Chief Executive”), which administers the fund, decided Ms Cotter had no grounds for making the claim, broadly on the basis that the claim lacked sufficient connection with the State of Queensland to attract the operation of the AFA Act. Car Auction Pty Ltd was incorporated in Queensland and public records of the Australian Securities…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cotter v Car Auction Pty Ltd

Details

AGLC: Cotter v Car Auction Pty Ltd [2022] QCAT 364
Case: [2022] QCAT 364
Decision Date

CaseChat Overview and Summary

Kathleen Cotter brought an application for a payment from the fund established under the Agents Financial Administration Act 2014 (Qld) to compensate those who suffer financial loss as a result of misappropriation of funds or other contraventions of that Act by a person who acts as a licensed agent. The fund is administered by the Chief Executive of the Queensland Department of Justice and Attorney-General. Ms Cotter's application was dismissed on the basis that the claim lacked sufficient connection with the State of Queensland to attract the operation of the Act. The question for determination by the Tribunal was whether in the circumstances of this matter there was sufficient connection with the State of Queensland for the relevant provisions of the Act to be engaged. The Tribunal found that the Car Auction Respondents were operating in Tasmania at the relevant times and that Ms Cotter was not entitled to a payment from the fund. The decision under review was confirmed.

Orders