Hoolahan v I. J. v Wholesale Pty Ltd

[2013] QCAT 202

CITATION: Hoolahan v I. J. V. Wholesale Pty Ltd & Anor [2013] QCAT 202

PARTIES:

Ms Amanda Hoolahan
(Applicant)

v

I. J. V. Wholesale Pty Ltd
(First Respondent)

Mr Ian Vacchini
(Second Respondent)

APPLICATION NUMBER: OCL085-12

MATTER TYPE: Other civil dispute matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Mr David Paratz, Member

DELIVERED ON: 18 April 2013

DELIVERED AT: Brisbane

ORDERS MADE:

1.     Ms Hoolahan must file in the tribunal, and post one copy to each of:

§    The Office of Fair Trading at GPO Box 3111, Brisbane, Qld, 4001 (File Ref: OFT/008367, Att: Clare Colley),

§    I.J. V. Wholesale Pty Ltd at Suite 46, 2 The Oasis, Victoria Avenue, Broadbeach, Qld, 4218,

§    Mr Ian Vacchini at 5083 St Andrews Terrace, Hope Island, Qld, 4012

further material detailing the arrangement made by her with Mercedes-Benz Financial Services Australia Pty Ltd in relation to the vehicle, by 4pm on 10 May 2013.

2.     The Office of Fair Trading, and the Respondents, may file any material in reply and any further submissions arising, and post one copy to Ms Hoolahan, by 4pm on 31 May 2013.

3.     The application will be determined on the papers and without an oral hearing not before 31 May 2013.

CATCHWORDS:

Motor dealer not giving clear title – assessment of damages – full disclosure by applicant of arrangements with financier required – mitigation of damages

Property Agents and Motor Dealers Act 2000

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

1. Ms Hoolahan bought a Mercedes Benz C200 Sport motor vehicle from Mr Ian Vacchini on 2 September 2009.

2. Mr Vacchini was a licenced motor dealer.

3. The vehicle was encumbered by a security interest in favour of Mercedes-Benz Financial Services Australia Pty Ltd. Ms Hoolahan was advised of the encumberance on or about 20 May 2011.

4. Ms Hoolahan has claimed on the Fund established under the Property Agents and Motor Dealers Act 2000 for financial loss of $61,821.05 on the basis that she was not given clear title.

5. The quantum of any financial loss suffered by Ms Hoolahan is in dispute. There are some options as to how a financial loss could be calculated, whether by reference to the purchase price, or to the payout price under the finance at a specific date, or to the market value of the vehicle at a specific date, or some other basis.

6. The Office of Fair Trading has submitted that the Tribunal must take into account mitigation of any financial loss that Ms Hoolahan has suffered.

7. Directions were given on 20 January 2013 requiring the parties to file any further material by 15 February 2013, and that the application would be determined on the papers not before that date. No further material has been received.

8. In a submission dated 23 January 2013, the solicitors acting for Ms Hoolahan at the time argued at paragraph 12(c) that:-

   The applicant should not be penalised for having reached a practical arrangement with the financier (through its generosity) whilst these proceedings were on foot, given the delays in these processes reaching a conclusion.

9. No material indicates what arrangement Ms Hoolahan has made with the financier. The full details of any such arrangement are clearly relevant to the question of mitigation of financial loss.

10. It is necessary for Ms Hoolahan to make full disclosure of the arrangement which her solicitor has referred to, in order that a fair decision can be made.

11. I direct that:-

    1.Ms Hoolahan must file in the Tribunal, and post one copy to each of:

    §    The Office of Fair Trading at GPO Box 3111, Brisbane, Qld, 4001 (File Ref: OFT/008367, Att: Clare Colley),

    §    I. J. V. Wholesale Pty Ltd at Suite 46, 2 The Oasis, Victoria Avenue, Broadbeach, Qld, 4218,

    §    Mr Ian Vacchini at 5083 St Andrews Terrace, Hope Island, Qld, 4012

    further material detailing the arrangement made by her with Mercedes-Benz Financial Services Australia Pty Ltd in relation to the vehicle, by 4pm on 10 May 2013.

    2.The Office of Fair Trading, and the Respondents, may file any material in reply and any further submissions arising, and post one copy to Ms Hoolahan, by 4pm on 31 May 2013.

    3.The application will be determined on the papers and without an oral hearing not before 31 May 2013.