Harper v Reddell T/a All Wheels
[2010] QCAT 380
•4 August 2010
CITATION:Harper v Reddell t/a All Wheels [2010] QCAT 380
| PARTIES: | Mr Dylan Harper |
| v | |
| Mr Barry Trevor Reddell trading as All Wheels |
| APPLICATION NUMBER: | OCR080-10 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | Decision on the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Peta Stilgoe |
| DELIVERED ON: | 4 August 2010 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | The time in which the applicant may lodge a claim against the fund is extended to 10 September 2010. |
| CATCHWORDS : | Extension of time – application lodged more than 12 months after the event - whether a reason for not lodging within time – whether merits of the claim warrant extension – where no information on hardship – whether justice of the matter requires extension – ss 470, 472, 511 and 574 of PAMDA |
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
Mr Harper purchased a car from Mr Redell trading as All Wheels on 8 September 2008. Mr Harper did not see the car until after purchase, relying on a friend, Daniel, to test drive it and take delivery.
Daniel inspected the car on 29 August 2008. Mr Harper states that “Daniel told me he looked at the ‘checklist’ and there was no accident or water damage to the vehicle.”
Mr Harper took possession of the car on 13 September 2008. He noticed rust on the floor and seat frames. He conducted a vehicle check with Queensland Transport on 28 September 2008. That check revealed that the vehicle had water damage.
The claim against the fund was lodged on 11 February 2010. Section 472(2) of the Property Agents and Motor Dealers Act (“PAMDA”) requires that a claim against the fund be made within one year after a person becomes aware that he has suffered financial loss. Mr Harper’s claim has been filed out of time. He has applied to the tribunal for an extension of time in which to file the claim.
Section 511(1)(b) of PAMDA sets out the matters to which the tribunal may have regard in determining whether to extend time.
The reasons for not making the claim
Mr Harper says that:
a)He lodged a claim with the Queensland Office of Fair Trading (“Fair Trading”). His claim was being handled by a Ms Softa, who never mentioned to him that he should submit a claim against the fund.
b)Ms Softa sent Mr Harper and email on 16 December stating that his file was being transferred to another officer – Mr Leishman - as she was being transferred to another section.
c)Mr Harper contacted Mr Leishman after Christmas 2008. Mr Leishman told him that the case had been sent to the legal team and all that Mr Harper could do was wait.
d)Mr Harper contacted Mr Leishman several more times in the first half of 2009 only to be told the same thing. Mr Leishman did not tell Mr Harper that he should make a claim against the fund.
e)The file was transferred to another officer. That officer sent Mr Harper a claim form. Mr Harper was confused, thinking that the claim he had already submitted was all he needed to do, so he did not complete the claim form.
f)After not hearing from anyone for some time, Mr Harper contacted Fair Trading again. Another officer explained the process to Mr Harper. It was only then that he understood the need to make a claim against the fund.
Except for the statement dated 2 December 2008 which was taken by Ms Softa there is no documentary evidence to support Mr Harper’s account of his dealings with Fair Trading. However, the statement is a comprehensive document headed “QUEENSLAND OFFICE OF FAIR TRADING STATEMENT OF WITNESS”. It is reasonable to expect that a person unfamiliar with PAMDA would take the view that this was an “official” claim. I also accept that the file may have passed through a number of hands within Fair Trading. I have no reason to suspect that Mr Harper fabricated his evidence about the “advice” he received form Fair Trading.
The application generally
I take this to be a reference to the merits of the claim against the fund.
Section 470 of the PAMDA sets out the events which give rise to a right to claim against the fund. The only relevant event in this case is set out in section 574 of PAMDA.
10. Section 574(1) provides that a licensee or registered employee must not represent in any way to someone else anything that is false or misleading in relation to the letting, exchange or sale of property. Member Spender, in Wilson –v- Chamino Pty Ltd T/A Coops Motor World & Cooper & Cooper & Cooper [1] determined that “property” in section 574 should be read to include personal property and not be limited to real estate. I adopt that interpretation.
[1] [2007] CCT PE008-06
11. Mr Harper claims, I think, that the checklist was defective in that it stated the vehicle was free from water damage when it was not. Clearly, this is an allegation that Mr Redell misrepresented the condition of the vehicle in the course of its sale to Mr Harper. Although the tribunal has not been given copies of the attachments to Mr Harper’s statement of 2 December 2008, there appears to be sufficient evidence to mount at least an arguable case that Mr Harper is entitled to claim on the fund on the basis of misrepresentation.
Relative hardship
12. There is no information available to the tribunal on the issue of hardship. Mr Redell has not responded to the application and Mr Harper has not addressed this issue.
Justice of the matter generally
13. As I formed the view that Mr Harper had a claim against the fund, I consider that the justice of the matter generally requires that the tribunal extend time in which to lodge the claim.
14. While it is generally true that ignorance of the law is no excuse, that maxim cannot excuse Fair Trading’s failure to inform Mr Harper of his rights and obligations. The tribunal understands that government departments cannot give parties legal advice but Fair Trading does have a function in educating consumers about their rights and obligations. This function is confirmed by the fact that, eventually, an officer of Fair Trading did alert Mr Harper of the need to make a formal claim. Had Ms Softa informed Mr Harper of the relevant procedure back in December 2008, this application would not have been necessary.
15. Denying Mr Harper and extension of time may have consequences for Mr Harper. Given that there has already been an investigation by Fair Trading, it is difficult to see that it would suffer any prejudice by the extension of time being granted. As I have previously noted, Mr Redell has not responded to the application. He had an opportunity to tell the tribunal about any prejudice that an extension of time may have caused. As he has not taken up that opportunity, the tribunal is entitled to assume that he will not, in fact, suffer any prejudice.
Conclusion
16. I am satisfied that Mr Harper has a claim that may be accepted by the claims fund. I am satisfied that the reasons for not making the claim and the justice of the matter generally would justify an extension of time.
17. The time in which Mr Harper may lodge a claim against the fund is extended to 10 September 2010.
0
0