Jenkins v Stato Pty Ltd
[2012] QCATA 234
•19 November 2012
| CITATION: | Jenkins v Stato Pty Ltd and Ors [2012] QCATA 234 |
| PARTIES: | Bruce Jenkins |
| v | |
| Stato Pty Ltd t/as Gold Coast Motor Auctions Kenneth Greaves Clint Andela Christopher Royston formerly t/as Global Prestige Motors |
| APPLICATION NUMBER: | APL098-12 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Peta Stilgoe, Senior Member Susan Gardiner, Member |
| DELIVERED ON: | 19 November 2012 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | [1] The application for leave to appeal or appeal is dismissed. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – PROPERTY AGENTS – where an order is made for payment from the Claim Fund under the Property Agents and MotorDealers Act 2000 – where misrepresentations were made as to age and mileage of a vehicle – where a finance agreement makes a finance company the owner and the appellant the hirer – where insufficient evidence to find that the misrepresentations as to age and mileage caused loss to the finance company – where misrepresentations caused loss to hirer – where neglect or default of hirer meant loss could have been avoided – where claim against the fund rejected – where it is unnecessary to consider alternative findings as no error is found in the primary decision – where the appeal is dismissed Property Agents and MotorDealers Act 2000, ss 470, 488 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act2009 (QCAT Act).
REASONS FOR DECISION
Senior Member Peta Stilgoe
I have had the benefit of reading the reasons of Ms Gardiner in draft.
Mr Jenkins has claimed the cost of repairing the car and bringing it up to what he says is a roadworthy condition. He relies upon the statutory warranty under Chapter 9 Part 5 of PAMDA.
The breach of a statutory warranty is not an “event” under s 470. Because the breach of a statutory warranty is not an event under s 470, Mr Jenkins’ cost of repairs is not a financial loss because of the happening of an event (my emphasis). It follows, therefore, that these amounts cannot be the subject of a claim on the fund. Of course, Mr Jenkins may still have a claim against the seller.
I agree with Ms Gardiner’s reasons, her conclusions, and the order she proposes.
Member Susan Gardiner
Bruce Jenkins bought a second-hand BMW motor vehicle on the Gold Coast in February 2009. Soon after the purchase, Mr Jenkins identified problems with the vehicle.
In March 2009, Mr Jenkins made a claim against the claim fund established under the Property Agents and Motor Dealers Act 2000 for misrepresentations made to him during the sale process about the vehicle, the later costs of repairs and other associated costs.
The claim was made under section 470 of the PAMD Act. Mr Jenkins claimed to have suffered a financial loss as a result of his dealings with all of the parties involved in the purchase process who hold motor dealer’s licences under the PAMD Act.
The Department referred Mr Jenkins’ claim to QCAT on 10 September 2010 under the provisions of Chapter 14 of the PAMD Act and the matter was heard in QCAT on 6 October 2011. A decision was handed down by the learned member on 28 February 2012.
Primary Decision
Mr Jenkins’ claim against the fund was rejected.
In the primary findings of fact in a structured decision, the learned member found that Esanda Finance was the owner of the vehicle and that Mr Jenkins was the hirer under a finance agreement. The member found that there were misrepresentations made to Mr Jenkins by some of the respondents as to the age and the mileage of the vehicle sufficient to find an event under section 470 of the Property Agents and Motor Dealers Act 2000, but that there was insufficient evidence to find that the misrepresentations as to age and mileage to Esanda caused loss to Esanda.
The learned member also found that there was insufficient evidence to find that Mr Andela misrepresented the condition of the vehicle to Mr Jenkins but she did find that Mr Andela misrepresented the age and mileage of the vehicle, which led Mr Jenkins to proceed with the transaction.
Alternative Findings
In alternative findings, the learned member then addressed the evidence if she were found to be wrong on the primary findings of fact. The member found that if there is sufficient evidence to find Esanda would not have advanced the funds if it had not received an invoice misdescribing the vehicle, then, Mr Jenkins had established that the misrepresentations as to age and mileage were factors when caused Esanda loss.
The loss to Mr Jenkins either from the direct misrepresentations as to age and mileage by Mr Andela or, if Esanda did suffer a loss itself, is quantified as approximately the net diminution in the value of the vehicle even though Mr Jenkins was strictly the hirer of the vehicle rather than the owner. The loss was quantified by the learned member at $20,250.
Section 488 factors
The learned member then went on to address, as she must under the legislation, the matters set out in s 488(3) of the Act. Here she found that Mr Jenkins’ reliance on the misrepresentations of Mr Andela was not reasonable in the circumstances because Mr Jenkins failed to take simple steps to verify the claims, for example, that the parties were licensed, and that the age and mileage of the vehicle were correct. The learned member found that if Mr Jenkins had taken these simple steps and therefore but for the neglect or default of Mr Jenkins, the loss he occasioned would have been avoided.
Further Alternative Findings
Finally, as a further alterative, the learned member made findings as to those of the respondents who were liable for the loss, if she had been wrong in her previous findings but she did not apportion liability in these circumstances .
Mr Jenkins appealed this decision.
The question whether or not leave to appeal should be granted is usually addressed according to established principles: is there a reasonably arguable case of error in the primary decision?[1] Is there a reasonable prospect that the applicant will obtain substantive relief?[2] Is leave necessary to correct a substantial injustice to the applicant caused by some error?[3] Is there a question of general importance upon which further argument, and a decision of the appellate court or tribunal, would be to the public advantage?[4]
[1] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[2] Cachia v Grech [2009] NSWCA 232 at [13].
[3] QUYD Pty Ltd v Marvass Pty Ltd (supra).
[4]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580.
Mr Jenkins’ appeal and submissions specify the following grounds for his application:
i) The decision applies the wrong law to the facts of the case;
ii) The decision misinterprets the meaning of the legislation;
iii) The decision fails to apply relevant law;
iv) The decision makes a finding of fact where none or insufficient evidence exists to support such a finding;
v) The Tribunal denied Mr Jenkins natural justice where he was not afforded assistance or sufficient assistance to present his case.
Structure of this Appeal
The decision by the learned member was structured as a primary decision based on primary findings of fact and thereafter, alternative outcomes based on further findings of fact if fault found by this Appeal Tribunal in the primary decision.
Because of this structure, the Appeal Tribunal must first decide if there is any error in the primary decision and recourse is only necessary to any alternative finding of the learned member if such error is found.
Mr Jenkins’ grounds of appeal will be considered on that basis. For ease of understanding in these reasons, Mr Jenkins’ grounds of appeal are now consolidated under three headings – errors of fact (ground 4), errors of law (grounds 1-3) and denial of natural justice (ground 5).
Errors of Fact
The learned Member’s reasons are structured in the alternative as I have recited above. Mr Jenkins’ submissions under this ground are only relevant if this Appeal Tribunal finds a reasonably arguable case of error in the primary decision of the learned member.
The Member found that there were misrepresentations by one of the respondents to Mr Jenkins as to the age and the mileage of the vehicle sufficient to find an event under section 470 of the Property Agents and Motor Dealers Act 2000 but that there was insufficient evidence to find that the misrepresentations as to age and mileage to Esanda (the owner of the vehicle) caused loss to Esanda.
As to misrepresentations directly to Mr Jenkins, the learned member found that there was insufficient evidence to find that Mr Andela misrepresented the general condition of the vehicle to Mr Jenkins. The member was however satisfied that Mr Andela misrepresented specifically the age and mileage of the vehicle, factors which lead Mr Jenkins to proceed with the transaction.
Findings of fact by a Tribunal will not usually be disturbed on appeal if the facts inferred by the tribunal, upon which the finding is based, are capable of supporting its conclusions, and there is evidence capable of supporting any inferences underlining it.[5]
[5]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.
It is not enough that the Appeal Tribunal comes to the view that, had its members been sitting in the matter originally, they may have reached a different conclusion. It must be shown that there has been a mistake in assessing the factual evidence, like a failure to take some material evidence into account, before the Appeal Tribunal can interfere[6].
[6] Lovell v Lovell (1950) 81 CLR 513.
The conclusions on the primary decision of the Tribunal disclose no demonstrated or discernable error in the learned Member’s decision. There was no evidence presented by or on behalf of Esanda. The conclusions were open to the member on the evidence (or lack thereof) before her.
Having found no error in the learned member’s primary findings, I find it unnecessary in this appeal to address the findings of fact made in the alternative by the learned member and therefore not necessary to address Mr Jenkins’ submissions on a ground of appeal which goes to the alternative findings made by the learned member.
Errors of Law
Mr Jenkins points to paragraph 15 of the learned member’s reasons referring to the requirements of s 488 of the PAMD Act, in particular submitting that the sections referred to s 488(3)(a)(ii) therein (ss 530A, 572D and 592A) have no application to this matter.
However, paragraph 15 of the reasons simply paraphrases s 488 of the PAMD Act, stating what must be taken into account if the claim is allowed. If no compensation has been paid under these sections (as is the case with Mr Jenkins) these subsections are not – as Mr Jenkins submits – relevant and the learned member did not address them in the reasons.
The learned member was satisfied that an event had occurred under s 470(1) of the PAMD Act and that Mr Jenkins had suffered a loss because of the happening of the event. It is there for implicit in the decision that the learned member had allowed the claim, at least in a preliminary way.
The learned member then addressed the matters that were required of her to be taken into account under s 488(3). As recited above, the learned member found that Mr Jenkins’ reliance on the misrepresentations of Mr Andela was not reasonable in the circumstances because Mr Jenkins failed to take simple steps to verify the claims, for example, that the parties were licensed, and that the age and mileage of the vehicle were correct. Had Mr Jenkins had taken these simple steps the loss he occasioned would have been avoided.
Mr Jenkins’ appeal on this ground must fail.
Mr Jenkins further submits that the opening words of s 488 “If the tribunal allows the claim, wholly or in part” means that if the claim is fully disallowed, as the learned member’s arguments do, s 488(3) has no application.
Again, in this submission, Mr Jenkins misunderstands that this section simply sets out the matters that must be taken into account if the tribunal allows the claim, wholly or in part. It is a matter for the facts of each as to whether the section is applied. In this matter the learned Member implicitly allowed the claim after her finding that Mr Andela misrepresented the age and mileage of the vehicle and Mr Jenkins’ relied on the misrepresentations. The learned member then considered the s 488(3) matters (as she is required to do).
Mr Jenkins’ appeal on this ground must also fail.
I find it unnecessary to deal with the remainder of these grounds as Mr Jenkins further submissions go to alternative findings of the learned member and I have found no error in the primary decision.
Natural Justice
Finally Mr Jenkins argues that he was not given “natural justice” at the hearing because, on his submissions, Stato Pty Ltd and Mr Greaves were allowed legal representation at the hearing. Mr Jenkins is not appealing the decision to allow legal representation but rather that the learned member did not assist Mr Jenkins sufficiently or at all in the face of legal representation of opposing parties when presenting his case.
As Mason J (as his Honour then was) observed in Kioa v West,[7] the requirements of procedural fairness must be adjusted to the statutory framework governing the Tribunal in question:
What is appropriate in terms of natural justice depends on the circumstances of the case and they will include, inter alia, the nature of the inquiry, the subject-matter, and the rules under which the decision-maker is acting: Reg v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 at 552-3; National Companies and Securities Commission v News Corporation Ltd (1984) 156 CLR 296 at 311, 319-321.
In this respect the expression “procedural fairness” more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. The statutory power must be exercised fairly, i.e., in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, the interests of the individual and the interests and purposes, whether public or private, which the statute seeks to advance or protect or permits to be taken into account as legitimate considerations …
[7] (1985) 159 CLR 550 at 584-585.
An examination of the transcript of this hearing shows that Mr Jenkins raised the issue of legal representation putting him at a disadvantage on a number of occasions during the hearing[8]. Each time this was raised by Mr Jenkins, the learned member addressed Mr Jenkins’s concerns and on many occasions, offered procedural assistance to him[9] without his requesting it.
[8] See for example, the transcript page 47 at line 10 onwards.
[9] See for example, the transcript page 16 at line 10 onwards.
The transcript also discloses that Mr Jenkins’ complaints about fair treatment arose mainly when he was uncomfortable under cross examination[10]. However, this cross-examination was relevant to the matter with the member pointing out to Mr Jenkins on one occasion, that she also wanted answers to the questions being posed to him[11].
[10]See for example, the transcript page 44 at line 31-32, page 47 lines 11-16, page 59 lines 17 to 27.
[11] See the transcript page 47 at point 24-26.
Indeed a reading of the transcript as a whole shows that Mr Jenkins very ably presented his own case at the hearing and that the learned member gave him every opportunity and assistance (where required) to do so. An example of Mr Jenkins’s abilities in this regard can be seen in his own strong cross-examination of Mr Greaves[12].
[12] Beginning at page 106 of the transcript.
The transcript shows that Mr Jenkins was given every opportunity and adequate support from the member to present his case, which he did with confidence. The responsibilities of natural justice and procedural fairness were fulfilled in the hearing process and Mr Jenkins’ appeal on this ground must fail.
Conclusion
I have found no demonstrated or discernable error in the learned member’s primary findings and therefore found it unnecessary in this appeal to address the findings of fact made in the alternative by the learned member. I have found no error in the learned member’s application of the law. There is no question of importance about which a further argument and a decision of the Appeal Tribunal would be of public advantage.
There is no ground for an appeal as of right and leave to appeal should be refused. The application should be dismissed.
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