King Developments Pty Ltd v Mayne
[2014] QCAT 550
•24 October 2014
| CITATION: | King Developments Pty Ltd v Mayne [2014] QCAT 550 |
| PARTIES: | King Developments Pty Ltd Applicant) |
| v | |
| Alan John Colburn Mayne (Respondent) |
| APPLICATION NUMBER: | OCL093-13 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Professor Ashman, Member |
| DELIVERED ON: | 24 October 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The application by King Developments Pty Ltd for a claim on the Claim Fund established under s 408 of the Property Agents and Motor Dealers Act 2000 is dismissed. |
| CATCHWORDS: | Property Agents and Motor Dealers Act 2000 – where a claim is made against the Claim Fund under the Act – where there is an allegation that a licensed motor vehicle dealer has misrepresented the status of a motor vehicle – where the owner of the vehicle cannot get the vehicle registered Property Agents and Motor Dealers Act 2000, ss 294B, 408, 470, 488 |
APPEARANCES and REPRESENTATIONS:
The application was heard on the papers pursuant to s 32(2) of the Queensland Civil and Administrative Tribunal Act 2009.
REASONS FOR DECISION
Greg King, representing King Developments, viewed a car sale advertisement for a Ford utility on the internet. He inspected the vehicle on 10 October 2011 at which time the motor dealer, Alan Mayne, explained to Mr King that the vehicle was not driveable at the time as the tail shaft was being repaired. Despite this, Mr King maintained his interest in purchasing the vehicle and on 18 November 2011, he checked the vehicle information register and discovered that the vehicle was unregistered and classified as a repairable write-off due to impact damage.
Mr King states that he contacted Mr Mayne about his discovery and the latter confirmed that some repairs had been carried out and inspected and when paperwork is cleared by Queensland Inspection Services, it could be registered. King Developments subsequently purchased and took delivery of the unregistered vehicle on 24 November 2011.
King Developments arranged for safety inspections of the vehicle in November/December 2011, and again in June 2012. Defects were identified and repairs undertaken that were paid by King Developments to the value of $2,669.49. Accessories were also added to the vehicle early in 2012 to the value of approximately $2,400. All of this was undertaken prior to the vehicle being cleared by Queensland Inspection Services and removed from the repairable write-off list.
It is common ground between Messrs King and Mayne that from the time of purchase into June 2012, there were numerous telephone calls between the parties in regard to the paperwork necessary to enable the vehicle to be registered and also concerns over the quality of the repairs undertaken by third party, Barry Garner. Despite these many interactions, and conversations between Messrs King and Garner, the Queensland Inspection Service, and a letter to Mr King’s local Member of Parliament, there was no notable progress in having the vehicle removed from the repairable write-off list.
In a submission accompanying an application for a claim against the Claim Fund[1] King Developments wrote that the repairable write-off clearance process went nowhere for over 8 months during which the Inspection Service refused to divulge to him information necessary to enable him to expedite the vehicle’s registration.
[1]Received by the Office of Fair Trading on 6 August 2012.
King Developments’ submission concludes by asserting that the purchase of the vehicle and its clearance from the repairable write-off register reflect deception and dishonesty by those involved in the vehicle and its sale and that the process used by Queensland Inspection Service is unacceptable and unworkable.
The Chief Executive of the Office of Fair Trading did not initiate an investigation into the claim but referred it directly to the Tribunal late in November 2013.[2]
[2]in accordance with s 488 of the Act.
On 4 December 2013, the Tribunal issued directions permitting King Developments and Mr Mayne to file in the Tribunal and provide additional material to each other and to permit any response that a party might wish to make to the submission of the other. King Developments filed a single paragraph.[3] Mr Mayne provided a response to that statement outlining his view of events[4], and King Developments provided a response to that statement dated 7 May 2014. These documents have been taken into consideration when determining the outcome of the claim.
[3]Dated 16 December 2013.
[4]This document was received by the Tribunal on 6 January 2014.
The Office of Fair Trading submission and relevant legislation
In its referral document, The Chief Executive draws attention to three main issues.
Firstly, s 294B of the Act requires a seller to inform the buyer of a vehicle that it is a repairable write-off when the vehicle is yet to pass an inspection. A written acknowledgement from the buyer is also required by the Act. I summarise here the relevant sections of the Act.
Before the motor dealer sells a vehicle, the dealer must tell the buyer that the vehicle is a repairable write-off and must pass a written-off vehicle inspection in accordance with the Transport Operations (Road Use Management) Act 1995 before it can be registered [s 294B(2)].
The motor dealer must also ask the buyer to sign a printed acknowledgement that identifies the used motor vehicle as a written-off vehicle and states whether the vehicle is a repairable write-off or a statutory write-off [s 294B(3)].
The motor dealer must give the original of the acknowledgement to the buyer, keep a copy of the acknowledgement, and make a copy available for immediate inspection by an inspector who asks to see it [s 204B(4)].
Secondly, a licensee or registered employee must not provide false or misleading information to a potential buyer in regard to the sale of property[5]. Sections 574(1), (3), (4), and (5) of the Act apply here, which I summarise.
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 [s 574(1)]. A false or misleading representation exists if it would reasonably lead to a belief that a state of affairs exist that does not exist, whether or not the representation indicates it does [s 574(3)]. If a person does not have reasonable grounds for making the representation, the representation is taken to be misleading [s 574 4)]. Of importance, the onus of establishing that the person had reasonable grounds for making the representation is on that person [s 574(5)].
[5]False or misleading information includes the wilful concealment of relevant facts (s 574(8)).
Thirdly, a claim against the Claim Fund must identify the quantum of loss incurred by the purchaser of a vehicle.
Section 470 lists the circumstances that must exist for an eligible claim under the Act. These are given in the Act as a list of sections only. I summarise these for the readers’ convenience.
Sections 144, 145, 149(1), 183, 184, and 188 refer to land purchases only; ss 221, 222, 226(1), and 233(2) refer to auctions; ss 291 and 292 refer to a dealer’s beneficial interest in property; ss 295(2), 302(4), and 311 relate to the provision of clear title, the cooling-off period, and trade-ins respectively; chapter 12, part 1 and s 573 refer to trust accounts and false accounts respectively; ss 573A, B, and C to marketing; and s 574 to misrepresentation.
In coming to my determination concerning the claim, I will deal with each of the Office of Fair Trading points in turn.
Notification of a repairable write off
In its submission accompanying its claim on the claim fund that is dated 7 August 2012, King Developments writes that on 18 November 2011 a V-Check on the utility was undertaken and it was discovered that the vehicle was a repairable write-off. Mr King asserts that Mr Mayne stated that it was not a “write off” as work had been performed and once paperwork was completed the vehicle could be registered. In its 7 May 2014 correspondence to the Tribunal, King Developments states that Mr Mayne never volunteered the information that the vehicle was a repairable write-off and that Mr Mayne explained the need for paperwork to be processed prior to registration.
In his correspondence to the Tribunal received 6 January 2014, Mr Mayne writes that Mr King was told that the vehicle was a repairable write off and that the vehicle could not be registered or taken off the repairable list until the third party repairer (Barry Garner) has produced repair receipts to Queensland inspection service.
Section 294B is explicit: ‘Before the motor dealer sells the vehicle to the buyer the motor dealer must tell the buyer that the vehicle is written-off vehicle’ and if a repairable write-off that it ‘must pass a written-off vehicle inspection under the Transport Operations (Road Use Management) Act 1995 before it can be registered’. Mr King and Mr Mayne concur that the status of the vehicle as a repairable write-off was known prior to the purchase. This component of s 294B is satisfied.
There is also a requirement that the motor dealer has the buyer sign an acknowledgement to that effect. There is no indication that a written acknowledgement was generated. However, a breach of s 294B of the Act is not included as such in the list of contraventions that enable a person to claim against the fund (as indicated in [13] above).
Was false or misleading information given to King Developments about the vehicle?
There is clearly a difference of opinion expressed by King Developments and Mr Mayne. The Chief Executive expressed the view in its submission that it is likely that Mr Mayne presented the vehicle as capable of being registered.
From its submission accompanying the claim and its May 2014 statement, it is apparent that Mr King was aware that the utility was a repairable write-off and that paperwork was required to verify that the vehicle had been appropriately repaired. He stated that prior to the purchase Mr Mayne informed him some paperwork was still needed but that the vehicle would be registered. Mr King contacted the previous owner who confirmed the extent of the damage sustained and this supported the decision to purchase the vehicle on 24 November 2014.
Mr Mayne assigns responsibility to Mr Garner for the delays in providing documents to Queensland Inspection Services. In his submission, Mr Mayne writes that he told Mr King that Queensland Inspection Services would not take the vehicle off the repairable list until Mr Garner produced the repair receipts. He states that Mr King had four to six weeks to consider whether to purchase the vehicle.
Was Mr King led to believe that the vehicle would ultimately be removed from the repairable write-off and registered when Mr Mayne did not believe that to be so?
The chronology provided by King Developments accompanying the claim suggests that Mr King was aware of the requirements for registration. He was aware that a third party (Mr Garner) was responsible for providing the necessary paperwork for the vehicle to be removed from the repairable write-off list.
It is not clear if Mr Garner completed the work to satisfy a vehicle inspection but it is apparent that he did not provide Queensland Inspection Services with the relevant documentation.
The question before the Tribunal is whether Mr Mayne deliberately intended to deceive King Developments into believing that the utility vehicle would be taken off the repairable write-off register and would be registered. King Developments own evidence does not support this position. In its chronology associated with the claim application, it states that Mr Mayne said, ‘when the paper work is cleared shortly by Queensland Inspection Services, we could register the utility’. As the situation unfolded, King Developments took possession of the vehicle before the certification and registration process had been completed. It would not be unreasonable to contend that Mr Mayne’s statement is still true, that is, if the paperwork were provided and cleared by Queensland Inspection Services, the vehicle could be registered.
There is no evidence presented by King Developments to confirm that Mr Mayne deliberately made false representations about the vehicle or its status, despite an assertion that the vehicle had passed inspection prior to the purchase (a point Mr Mayne did not addressed). However, a Safety Certificate was produced by another (Mr Hansen) implying that an inspection was undertaken. Both parties agree that Mr King was referred to Mr Garner as he was to provide the relevant paperwork to Queensland Inspection Services and Mr King was given assurances by Mr Garner that ‘he would sign off on the Ute as is was okay but [Mr Garner] had to sort out problems with the Mayne brothers’[6].
[6]Reported by Mr King in the chronology to have occurred on 7 December 2011.
While Mr Mayne may have acted to minimise his involvement in the vehicle registration process once the purchase was concluded, the Tribunal is satisfied that he believed the vehicle was registrable, relying on Mr Garner to fulfil his role in the process. This information was communicated to King Developments.
The Tribunal finds that Mr Mayne did not deliberately mislead or provide false information to King Development that the vehicle would be removed from the repairable write off list and registered when this was not his true belief.
The finding in [28] is sufficient to dismiss the application. Notwithstanding that, I will address the third matter raised by the Chief Executive: that insufficient information has been provided for the Tribunal to determine the actual loss incurred.
The quantum of loss
The Chief Executive submits that even if there is evidence of contravention of the Act, King Developments would still need to quantify its losses.
King Developments has claimed the purchase price of the vehicle ($9,000) plus the cost of inspections, certificates, and repairs ($2,669.49) that it authorised associated with those inspections. It appears that after Mr King took possession of the vehicle, he drove it from Toowoomba and was still fitting new equipment to it in May 2012[7].
[7]There are two invoices from Burson Automotive Pty Ltd dated 18 May 2012.
If there was a case for a claim against the claim fund, King Developments would need to reconcile the market value of the vehicle against any asserted loss. Even though a vehicle may not be registered, it cannot be valued at $nil and, hence, the amount claimed cannot be the amount sought.
In conclusion, there is no doubt that Mr King was immeasurably frustrated by the perceived lack of cooperation from Messrs Mayne and Garner and Queensland Inspection Services over many months. However, the Tribunal is satisfied that Mr Mayne based the information about the vehicles condition on an expectation that Mr Garner would fulfilled his obligations, thus leading to the removal of the vehicle from the repairable write-off register, and registration. On the basis of the evidence presented by the Chief Executive, Mr Mayne, and King Developments the Tribunal finds that Mr Mayne did not provide false or misleading information to King Developments.
The Tribunal dismisses that application by King Developments Pty Ltd seeking a claim against the Claim Fund established under s 408 of the Property Agents and Motor Dealers Act 2000.
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