King Developments Pty Ltd v Mayne

[2014] QCAT 143

CITATION: King Developments Pty Ltd v Mayne [2014] QCAT 143

PARTIES:	King Developments Pty Ltd (Applicant)
v
Alan John Colburn Mayne (Respondent)

APPLICATION NUMBER: OCL093-13

MATTER TYPE: Other civil dispute matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Professor Ashman, Member

DELIVERED ON: 9 April 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 – where the Tribunal finds that the motor dealer has not deliberately misinformed the vehicle’s owner

Property Agents and Motor Dealers Act 2000 ss 294B, 408, 470, and 488
Queensland Civil and Administrative Tribunal Act 2009 s 32(2)

APPEARANCES and REPRESENTATION:

The application was heard on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009.

REASONS FOR DECISION

1. In October 2011, King Developments represented by Mr Greg King sought to purchase a Ford utility motor vehicle. He approached a dealer, Mr Alan Mayne, after viewing an advertisement on the internet. Mr Mayne explained to Mr King that the vehicle in which he was interested was not driveable at the time as the tail shaft was being repaired. A sale price of $9,000 was agreed with Mr King choosing not to trade a current vehicle but sell it privately.

2. In mid-November 2011, Mr King checked the vehicle information register and discovered that the Ford was unregistered and classified as a repairable write off due to impact damage.

3. Mr King states that Mr Mayne informed him that the vehicle was indeed a repairable write off, that repairs had been or were being carried out, and when this was complete the vehicle would be inspected by Queensland Inspection Services. When passed, it could be registered. King Developments subsequently purchased the vehicle on 24 November 2011.

4. Safety inspections were conducted on the vehicle in November and December 2011, and again in June 2012. Defects were identified and rectified. Throughout this period, there were numerous telephone conversations between Messrs King and Mayne in regard to the paperwork necessary for the vehicle’s registration and also the quality of the repairs undertaken by a third party, Mr Barry Garner.

5. Despite it being unregistered, King Developments added several accessories to the vehicle early in 2012 to the value of approximately $2,400.

6. By mid-2012, Mr King was exasperated by his inability to obtain the necessary paperwork from Mr Garner that would lead to the vehicle’s removal from the repairable write off list. This again involved numerous conversations with Messrs Mayne and Garner, and Queensland Inspection Service. Mr King also wrote to his local member of parliament, without gaining any satisfaction.

7. In a submission accompanying an application for a claim against the Claim Fund[1] King Developments writes that the repairable write off clearance process has gone nowhere for over 8 months during which the Inspection Service has refused to divulge to him information necessary to enable the vehicle to be registered.

   [1]Received by the Office of Fair Trading on 6 August 2012.

8. King Developments’ initial claim was for $14,040.86. Its 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/sale and that the process used by Queensland Inspection Service is unacceptable and unworkable. A copy of the application was forwarded to Mr Mayne without any response forthcoming from him.

9. The Chief Executive of the Office of Fair Trading did not initiate an investigation into this matter but referred it directly to the Tribunal late in November 2013[2].

   [2]in accordance with s 488 of the Act.

10. 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 statement outlining his view of the events.

    [3]Dated 16 December 2013.

11. In its referral document, the Chief Executive raised three matters. 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. Secondly, a licensee or registered employee must not provide false or misleading information to a potential buyer in regard to the sale of property. Thirdly, a claim against the Claim Fund must identify the quantum of loss incurred by the purchaser of a vehicle. I will deal with each of these in turn.

12. In their respective submissions, King Development and Mr Mayne agree that King was informed that the vehicle was a repairable write off. There is no indication that a written acknowledgement was generated. A breach of s 294B of the Act is not included in the list of contraventions that enable a person to claim against the fund[4].

    [4]See s 470.

13. In regard to the second issue, the Chief Executive expressed the view that it is likely that Mr Mayne presented the vehicle as capable of being registered. In its statement, King Developments claims that Mr Mayne stated that repairs were carried out, the vehicle had been inspected[5], and when paper work was cleared shortly by the Queensland Inspection Service, the vehicle would be registered. He further states that assurances were given that registration would occur with a couple of days.

    [5]In its letter of 16 December 2013, Mr King asserts that Mr Mayne told him that the vehicle had passed inspection [emphasis added].

14. Mr Mayne places responsibility on Mr Garner for the delays in providing documents to Queensland Inspection Services. In his submission to the Tribunal 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. Mr King’s decision to do so was based on his conversations with Mr Garner.

15. From the extensive documentation provided, it appears that there were a number of impediments that stood in the way of achieving registration. It is unclear if Mr Garner completed the necessary work to satisfy a vehicle inspection and it is also not clear if he provided Queensland Inspection Services with the relevant documentation. Queensland Inspection Services appears ultimately to have withheld information from Mr King and, thus, he could not facilitate or progress the certification process.

16. There is no evidence presented by King Developments to confirm that Mr Mayne deliberately made false representations about the vehicle or its status, despite his recent assertion that the vehicle had passed inspection prior to the purchase. Both parties agree that Mr King was referred to Mr Garner as he was to provide the relevant paperwork to Queensland Inspection Services.

17. While Mr Mayne may have acted in ways to minimise his involvement in the vehicle registration process, the Tribunal is satisfied that he believed that the vehicle was registrable, relying on Mr Garner to fulfil his role. In the course of events, Mr King was thwarted in his attempts to have the vehicle removed from the repairable write off register and unwittingly found himself in a bureaucratic maze with no clear exit and no willing guide.

18. The Tribunal finds that King Development was not deliberately misled into believing that the vehicle could be removed from the repairable write off list and registered.

19. The finding in [18] is sufficient to dismiss the application. Notwithstanding that, I will address the third matter raised by the Chief Executive, that is, that insufficient information has been provided for the Tribunal to determine the actual loss incurred.

20. The Chief Executive submits that even if there is evidence of contravention of the Act, King Developments would still need to quantify its losses.

21. King Developments has claimed the full purchase price of the vehicle plus the cost of inspections and certificates, and repairs that it authorised associated with those inspections. 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 the vehicle may not be registered, it cannot be valued at $nil.

22. In conclusion, there is no doubt that Mr King will have been immeasurably frustrated by the perceived lack of cooperation from Messrs Mayne and Garner and Queensland Inspection Services over a period of many months. However, 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 is satisfied that Mr Mayne based the information provided to Mr King on the expectation that Mr Garner would fulfilled his obligations, thus leading to the removal of the vehicle from the repairable write off register, and registration.

23. 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.