Gangell v Office of Fair Trading - [2023] QCAT 392

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Gangell v Office of Fair Trading & Ors [2023] QCAT 392

PARTIES:

MAYKAYLA GANGELL

(applicant)

v

OFFICE OF FAIR TRADING

(First respondent)

CAR AUCTION PTY LTD

(Second respondent)

JESSICA PAGE

(Third respondent)

LEVI JACKSON

(Fourth respondent)

THOMAS MUTCH

(Fifth respondent)

APPLICATION NO/S:

OCL005-21

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

25 September 2023

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Poteri

ORDERS:

The decision of the Chief Executive of the Office of Fair Trading made on 14 December 2020 to reject the claim of Maykayla Gangell is confirmed.

CATCHWORDS:

Where a claimant has made a claim for compensation under s 82 of the Agents Financial Administration Act 2014 (AFA Act) – where the claim has been rejected on the basis that the claim is invalid pursuant to s 90 of the AFA Act – where it is alleged that the claim is invalid because the alleged conduct that gave rise to the claim occurred outside the jurisdiction of Queensland

Acts Interpretation Act 1954(Qld) s 6, s 7
Agents Financial Administration Act 2014 (Qld), s 82, s 90, s 103
Queensland Civil and Administration Act 2009 (Qld), s 19, s 20, s 23, s 33
Freehold Land Investments Ltd v Queensland Estates Pty Ltd (1970) 123 CLR 418

Goodchild v Ferrantino [2007] CCT PC020-06

APPEARANCES & REPRESENTATION:

Applicant:

Self-Represented

Respondent:

Self-Represented

REASONS FOR DECISION

On 26 October 2020 the Applicant, Maykayla Gangell (Gangell), lodged a claim (Claim) pursuant to s 82 of the Agents Financial Administration Act 2014 (AFA Act) against the Claim Fund for compensation of $25,165.00. This claim was rejected by the Office of Fair Trading (OFT) pursuant to s90 of the AFA Act on the basis that the claim was invalid. OFT alleges that the conduct that gave rise to the claim occurred outside the jurisdiction of Queensland and therefore the claim is invalid.
OFT notified Gangell of its decision (Decision) by way of a notice dated 14 December 2020. On 11 January 2021, Gyngell applied (Application) to the Tribunal pursuant to s33 the Queensland Civil and Administrative Act 2009 (QCAT Act) for a review of the Decision. S 103 of the AFA Act allows Gangell to make an application to the Tribunal for a review of the Decision.
On 8 November 2021 Member Paratz made an order pursuant to S23 of the QCAT Act inviting OFT to reconsider the Decision. OFT reconfirmed the Decision on 16 November 2022.
The review must be carried out in accordance with Ss 19 and 20 of the QCAT Act. That is, I have all the powers of the original decision maker in carrying out the review, the review involves a fresh hearing on the merits and the purpose of the review is to produce the correct and preferable decision.
The background to the Claim is not in dispute. Gangell resides in Tasmania and contacted “Car Auction Club Pty Ltd” to source a vehicle for her to purchase. The facts are summarised in the Decision letter dated 14 December 2020 and set out by Gangell in correspondence and documents – see OFT’s Document Bundle (Document Bundle) filed in the Tribunal dated 18 May 2021.
I agree with the submissions of OFT filed in the Tribunal on 4 March 2022 that the relevant dates that apply to Gangell’s claim are:
(a)On or about September 2020 when Gangell engaged the services of Car Auction Pty Ltd Car (Car Auction),
(b)On or about 1 September 2020, when Gangell transferred $300 for the pre-purchase checks,
(c)On or about 8 September 2020 when Gangell transferred funds of $25,086.50
(d)On or about 15 September 2020 when $221.50 was refunded to Gangell.
Car Auction, Jessica Page (Page), Levi Jackson (Jackson) and Thomas Mutch (Mutch) have not filed any material or documentation in the Tribunal relating to the Application. It should be noted that Jackson is the same person known as Zac Lawless (Lawless).
Car Auction, Page and Jackson (Lawless) do not hold motor dealer licences in Queensland. Mutch does hold a motor dealer licence in Queensland.
The chronology of events is:
(a)In or about late August 2020 Gangell contacted Car Auction through Lawless, also known as Jackson, in an endeavour to purchase a vehicle suitable for Gangell.
(b)Gangell says in her Claim that she contacted Car Auction because a family friend had dealt with Car Auction previously and the family friend received “it fine”. Gangell says that she found a suitable vehicle and she paid Car Auction a $300 fee for pre-purchase reports.
(c)In or about 8 September 2020 Gangell was informed by Jackson that he had won the car for $22,150. She eventually paid an invoice of $25,086.50 which included some GST. The extra cost included the transport cost from NSW to Tasmania. An amount of $221.50 was eventually refunded to Gangell.
(d)Monies were paid into a Westpac Bank Account 034061442334 held in the name of Jessica Rachel Page (Page) by two deposits of $13,086.50 and $12,000 on 8 September 2020. This is confirmed in a letter from Westpac to Mitchell Brigg of the Queensland Government dated 27 November 2020 (page 61 of the Document Bundle).
(e)Gangell says in her Claim that she was interested in purchasing a 2017 Subaru Forrester 2.5i-s. The vehicle was registered in the state of New South Wales
(f)Gangell in her statement which is pages 17 to 24 (inclusive) of the Document Bundle that she and Lawless are based in Hobart, Tasmania.
(g)The vehicle was never delivered to Gangell.
(h)The quantum of Gangell’s claim of $22,150 is calculated by $300 pre purchase checks plus $25,086.50 invoice amount less $221.50 refunded.
Gangell lodged a claim against Mutch and Australian Wholesale Properties Pty Ltd (Mutch’s Company). Mutch has a motor dealer licence and is the sole shareholder of Mutch’s Company. Gangell raised the issue that Mutch is noted on Jackson’s website. She also refers to the email dated 1 October 2020 and authored by “Thomas Munchen, Managing Director” from “Car Auction Club Pty Ltd” advising that the company was insolvent and she would receive a refund within 30 days (page 26 of the Document Bundle).
Gangell says that she has been in contact with Mutch who advised Gangell that he knows Lawless (Jackson) who was previously known as Andrew Zachary Crinis. Mutch advised Gangell that Jackson did work for Mutch and Jackson had stolen $120,000 of his clients’ money. He advised Gangell that he had reported the matter to the Queensland Police Service.
Mutch had also advised Gangell that Jackson had used his dealer number, details and photo on Jackson’s website. Mutch apparently did not report this issue to the police or take any action about this issue.
Gangell was advised through Lawless that the vehicle would be purchased through Pickles Auctions Pty Ltd (Pickles). Pickles advised Gangell that Lawless (Jackson) had not purchased the vehicle. Pickles also advised Gangell that it had received another complaint from a Kate Cotter relating to the activities of Lawless.
The invoice received by Gangell from Car Auction dated 8 September 2020 notes the address of Car Auction is Sandy Bay, Hobart, Tasmania. See page 33 of the Documents Bundle.
The affidavit of Brett Gough (Gough), an OFT officer, sworn on 6 April 2022 and filed in the Tribunal on 6 April 2022 outlines the following information:
(a)The ACN for Car Auction is 637331009. The registered office and principal place of business is Toowong, Queensland. The director is Page, and the shareholder is Jackson. The address for both Page and Jackson is Toowong, Queensland.
(b)The known phone numbers of Jackson and Page are listed as disconnected. One phone number was listed in the name of Page and in the name of Jackson before July 2020. One phone number was listed in the name of Jackson. The address for both Page and Jackson is listed as Toowong, Queensland.
(c)One phone number was listed as connected in the name of Mutch with an address of Southport, Queensland.
(d)The email addresses of Page and Jackson are outlined in exhibit BG-4 of the affidavit of Gough.
(e)Westpac provided a report dated 25 August 2022 to OFT regarding certain bank accounts. The report is Exhibit BG 4 to the affidavit of Gough. The report shows an account is held in the name of Car Auction with the signatories being Jackson and Page. Westpac have other accounts held in the names of Jackson and Page. The report shows that the addresses for Car Auction, Jackson and Page is Dover, Tasmania. The report also shows phone numbers and email addresses for Car Auction, Jackson and Paige.
(f)Westpac provided advice dated 25 February 2022 with details of certain bank accounts, including bank account 034061 442334, held in the names of Car Auction, Page and Jackson. The contact phone numbers, and email addresses are the same as outlined in the above report. The address details for Car Auction, Jackson and Page are the same Tasmanian addresses in the above report. See Exhibit BG – 4 of the affidavit of Gough.
(g)The Bank of Queensland also provided a response (Exhibit BG-5 of the affidavit of Gough) to OFT on March 2022 which states that the bank held an account in the name of Page and an address of Mt Nelson, Tasmania.
Car Auction was deregistered by ASIC on 1 April 2022.
Gangell was sent an email on 8 September 2020 from Car Auction in which the address of “Tasmania 7000” is noted. See page 35 of the Document Bundle.
Gangell advised M Brigg that Jackson was in Tasmania around the date Jackson sold the car to her because she refers to Jackson being on camera footage in Tasmania regarding a parking fine. See page 52 of the Document Bundle.
There is anecdotal evidence that Jackson and Page relocated to Tasmania after November 2019. See page 57 of the Document Bundle.
From the submissions and annexed material of OFTfiled in the Tribunal on 4 March 2022 I note the following:
(a)Although the Westpac Bank account was established in Queensland, Westpac Bank informed OFT that Jackson and Page were signatories to the account and their contact addresses were in Tasmania.
(b)Westpac informed OFT that the contact address for Page was Tasmania and the Westpac account was now held in the name of Page. Gangell transferred funds to this account.
(c)Page sold an unregistered vehicle to Pickles in Tasmania on 28 September 2020
(d)Pickles advised OFT that it believed that Page was operating in Hobart, Tasmania, buying and selling vehicles. Pickles also advised OFT that it understood that Page also uses the name of Rachael Williams.
(e)Searches of the databases of the Department of Main Roads, Queensland and the Australian Electoral Commission indicate that Page’s address is Dover, Tasmania.
(f)On 9 November 2019 Jackson became the sole director and shareholder of Car Auction.
(g)On 20 June 2020 Jackson registered a motor vehicle in his name in Tasmania.
(h)In July 2020 Jackson noted his address as Tasmania in the Australian Government Business Register for ABN 48 729 804 376. On 14 September 2020 Jackson changed the address from Tasmania to Queensland.
(i)On or about 29 September 2020 Jackson sold his registered vehicle to Pickles Tasmania.
(j)Pickles has informed OFT that it understood Jackson was operating in Hobart, Tasmania, buying and selling motor vehicles.
(k)In September and November 2021, Tasmanian police informed OFT that they understood Jackson was currently residing in Tasmania.
(l)On 23 November 2021 searches of the Department of Transport and Main Roads, Queensland indicated:
(i) Jackson previously held a licence in the name of Andrew Zachary Crinis.
(ii) Jackson has no registered motor vehicles in Queensland and there is no record of Jackson holding a Queensland driver’s licence.

INITIAL FINDINGS

At the relevant dates referred to in paragraph 6 of this decision I make the following findings on the balance of probabilities:
(a)Gangell resided in Tasmania.
(b)Jackson, Lawless and Andrew Zachary Crinis are one and the same person.
(c)Page and Jackson operated the business known as Car Auction or Car Auction Club Pty Ltd.
(d)Page and Jackson were operating a car buying and selling business known as Car Auction or Car Auction Club Pty Ltd from Tasmania without any dealers licences.
(e)Page has suffered loss as a result of the activities of Page, Jackson and Car Auction.
(f)Page and Jackson were using the dealer licence number of Mutch to undertake their business activities. This was done without the knowledge or consent of Mutch.
(g)Mutch has no connection with Jackson, Page or Car Auction regarding the Claim.
(h)Subject to the issue of jurisdiction, Gangell has prima facie established the basis of a claim for compensation from OFT pursuant to s82 of AFA Act.
(i)The only nexus to Queensland regarding the claim is the fraudulent use of the licence number of Mutch, the establishment of bank accounts in Queensland and connection of mobile phones in Queensland. However, I find that the activities of Car Auction, Jackson and Page in dealing with Gangell in and about August to October 2020 took place in Tasmania.

JURISDICTION ISSUE

The issue that I must now determine is whether there is a jurisdiction limitation regarding claims made under s82 of the ALA Act. Is the claim still valid even if the activities that gave rise to the claim occurred outside of Queensland?
There is no specific provision in the AFA Act which expressly limits the operation of the legislation to activities that take place in Queensland. On this basis I must look to the caselaw and other material to decide this issue.
In paragraphs 6 to 7 (inclusive) of OFT’s submissions filed in the Tribunal on 4 March 2022, OFT submit that ss 6 & 7 of the Acts Interpretation Act 1954 provide support for their position. OFT say that these provisions allow the use of extrinsic material to interpret legislation.
In paragraphs 8 to 12 (inclusive) of OFT’s submissions, filed in the Tribunal on 4 March 2022, OFT submit that there is a presumption in the explanatory notes of the ALA Act and the Motor Dealers and Chattels Auctioneer’s Act 2014 (MDCA Act) that the legislation does not exceed its jurisdiction. The explanatory notes also refer to similar legislation that exists in other jurisdictions.
I agree with OFT that the extrinsic material identified in the explanatory notes is supportive of their position.
OFT submit that the legislation should not be interpreted to give an absurd result. For example, OFT say that the legislation should not be given its widest meaning otherwise this might result in claims from anywhere in the world.
There is caselaw that is relevant.
OFT has cited the High Court decision of Freehold Land Investments Ltd v Queensland Estates Pty Ltd (1970) 123 CLR 418. Freehold involved a claim for commission where negotiations for a contract for the sale of land occurred inside and outside of Queensland. The court in Freehold examined the provisions of the Auctioneers, Real Estate Agents, Debt Collectors and Motor Dealers Act 1922 to 1961 (Qld). This legislation is similar to the legislation in the ALA Act.
In Freehold the court held that the activities occurred in Queensland. However, the court at page 425 said:
The Act clearly enough is not concerned with what is done outside Queensland, even if it be done in accordance with a contract the proper law of which is the law of Queensland. On the other hand, whatever may be the proper law of an agency contract, the Act applies to a person who acts as, or carries on the business, of a real estate agent in Queensland and a Queensland court would give effect to it. It is not, therefore, possible to support the conclusion which his Honour reached on the ground upon which his Honour based it. (at p425)

The critical question is rather, did the claimant, in doing what it did pursuant to its agency contract with the owner, act as, or carry on the business of a real estate agent in Queensland? The circumstances here are such that unless the claimant acted as a real estate agent in Queensland in the transaction with which we are concerned it did not carry on business as a real estate agent in Queensland, so that the question can be narrowed down to whether or not, in the course of the negotiation of the sale from Queensland Estates Pty. Ltd. to Golden Acres Ltd., it acted as a real estate agent in Queensland. (at p426).
Goodchild v Ferrantino [2007] CCT PC020-06 involved a claim under the Property Agents and Motor Dealers Act 2000 (PAMD Act) regarding fraudulent activities that occurred in Queensland. In Goodchild the land was situated in New South Wales, but all the activities occurred in Queensland. The Tribunal found that as the activities occurred in Queensland then the claim was allowed, notwithstanding the land was outside Queensland. In Goodchild the Tribunal noted that one of the objects of the PAMD Act was for the protection of consumers. The main object of the ALA Act is “to protect consumers from financial loss in dealing with agents”. The analysis of the law in Goodchild is relevant to the facts and circumstances of this Application.
I conclude that, because of the above caselaw, the protection given to consumers and claimants under the AFA Act is restricted to cases where the activities of the dealer take place predominately in Queensland. That is not the case in these proceedings where the nexus to Queensland is extremely limited. At all relevant dates the activities of Page, Jackson and Car Auction took place in Tasmania.
Accordingly, I must confirm the decision of OFT made on 14 December 2020 to reject the claim.