Grant v Matar & Sons Pty Ltd
[2013] QCAT 187
•11 April 2013
| CITATION: | Grant v Matar & Sons Pty Ltd & Anor [2013] QCAT 187 |
| PARTIES: | Anouk Grant (Applicant) |
| v | |
| Matar & Sons Pty Ltd (Receivers and Managers appointed) (First Respondent) Samir Matar (Second Respondent) |
| APPLICATION NUMBER: | OCL084-12 |
| MATTER TYPE: | Other civil dispute matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Mr David Paratz, Member |
| DELIVERED ON: | 11 April 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Pursuant to section 488 of the Property Agents and Motor Dealers Act 2000, the claim is allowed in the sum of $25,500.00. 2. Pursuant to section 489 of the Property Agents and Motor Dealers Act 2000, at the expiration of the appeal period the Chief Executive must pay to the Applicant the sum of $25,500.00 from the Claim Fund, and if there is an appeal, payment must not be made until the appeal is finally decided. 3. Pursuant to section 488(3)(c) of the Property Agents and Motor Dealers Act 2000 the respondents Matar & Sons Pty Ltd (Receivers and Managers appointed) and Mr Samir Matar are named as the persons liable for the financial loss of the Applicant. 4. Upon payment from the Claim Fund, and pursuant to sections 490 and 530 of the Property Agents and Motor Dealers Act 2000, the Respondents Matar & Sons Pty Ltd (Receivers and Managers appointed) and Mr Samir Matar are jointly and severally liable to reimburse the Claim Fund by paying the sum of $25,500.00 to the Chief Executive, Department of Justice and Attorney-General. |
| CATCHWORDS: | Motor car placed for sale on consignment – car sold – no payment made to owner – receivers and managers appointed to company – no contact by Director – claim against the fund Property Agents and Motor Dealers Act 2000 ss 488, 489, 490, 530 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
Ms Grant placed her black Ford Territory TX Wagon for sale on consignment with M & S Motor Sports (M & S) at Southport on the Gold Coast. The car was sold, but Ms Grant has never been paid. She now claims on the fund.
The consignment was evidenced by a ‘Consignment Agreement’ dated 10 October 2009. Under that agreement M & S agreed to obtain the best possible price and accept no less than $25,500 as the purchase price, and M & S were entitled to retain $1,000 from that. The balance of the full purchase price less $1,000 was to be forwarded to Ms Grant within 10 days of receipt of the payment.
The consignment agreement was signed by Sam Matar on behalf of M & S Motorsports and by Ms Grant.
Ms Grant became suspicious that the car had been sold when she did not receive a registration renewal notice. She contacted Mr Matar who confirmed that the car had been sold, but said that he could not pay her because of financial constraints.
A ‘promissory note’ was then entered into dated 1 October 2010. By that note, Sam Matar on behalf of S & M agreed that he owed Ms Grant $24,500 for the sale of the car, and agreed that full payment of $25,500 would be made to her by 1 December 2010 and that amount included a $1,000 penalty charge.
The monies were not paid as promised.
Searches have disclosed that Matar & Sons Pty Ltd (the Company) held a licence as a motor dealer under the Property Agents and Motor Dealers Act 2000 (the Act), trading as M & S Motorsports, from 6 September 2004 and that Samir Mata was the Director and Secretary from 14 April 2004.
Receivers and managers were appointed to the company on 25 January 2012. On 29 March 2012 the Receiver and Manager, Mr Killer of Grant Thornton, advised the Office of Fair Trading that he had been unable to locate any assets of the company and had been unable to make contact with the director of the company.
The Receiver and Manager advised the Tribunal by letter dated 12 December 2012 that he and the other receiver had resigned on 30 March 2012, and that during the receivership they had been unable to contact the director of the company or locate any books and records relating to its affairs.
Directions were made by the Tribunal on 3 January 2013 requiring the company and Mr Matar to file documents in relation to the sale by 15 February 2013. The receiver wrote to the Tribunal by letter dated 4 February 2013 advising that he did not have any information in his possession relating to the matter.
Ms Grant has provided a certificate of registration indicating ownership of the vehicle by her as at 19 May 2008.
The Chief Executive has submitted that it is satisfied that the Company and Mr Matar have caused Ms Grant to suffer a financial loss.
There is no doubt as to the circumstances of this matter. The consignment, and the acknowledgement of debt are plainly documented. Ms Grant has suffered a clear financial loss through her dealings with a licenced motor dealer.
I am satisfied on the balance of probabilities that Ms Grant is entitled to claim against the fund under the Act, and that Mr Matar is a liable person under the Act as an executive officer of the company.
Service of the application has been made on the Receivers and Managers of the company. They have advised that they have been unable to make contact with Mr Matar. He would have obligations under the Corporations Act 2001 (Cth), as an executive officer of the company, in relation to providing assistance and contact details to the Receivers and Managers.
I am satisfied that it is appropriate to proceed against the company and Mr Matar notwithstanding that no material has been filed by them, and service has not been personally effected on him.
Accordingly, I order as follows:
1.Pursuant to section 488 of the Property Agents and Motor Dealers Act 2000, the claim is allowed in the sum of $25,500.00.
2.Pursuant to section 489 of the Property Agents and Motor Dealers Act 2000, at the expiration of the appeal period the Chief Executive must pay to the Applicant the sum of $25,500.00 from the Claim Fund, and if there is an appeal, payment must not be made until the appeal is finally decided.
3.Pursuant to section 488(3)(c) of the Property Agents and Motor Dealers Act 2000 the respondents Matar & Sons Pty Ltd (Receivers and Managers appointed) and Mr Samir Matar are named as the persons liable for the financial loss of the Applicant.
4.Upon payment from the Claim Fund, and pursuant to sections 490 and 530 of the Property Agents and Motor Dealers Act 2000, the Respondents Matar & Sons Pty Ltd (Receivers and Managers appointed) and Mr Samir Matar are jointly and severally liable to reimburse the Claim Fund by paying the sum of $25,500.00 to the Chief Executive, Department of Justice and Attorney-General.
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