Klaus v Chief Executive, Department of Justice and Attorney-General, Office of Fair Trading

[2021] QCAT 350

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Klaus v Chief Executive, Department of Justice and Attorney-General, Office of Fair Trading & Ors [2021] QCAT 350

PARTIES:

DANIEL ROBERT KLAUS

(applicant)

V

CHIEF EXECUTIVE, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL, OFFICE OF FAIR TRADING

(first respondent)

CML MANAGEMENT PTY LTD

(second respondent)

SONYA LAWRENCE

(third respondent)

APPLICATION NO/S:

OCL098-20

OCL100-20

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

27 October 2021

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Cranwell

ORDERS:

1.       Proceedings OCL098-20 and OCL100-20 are consolidated into a single proceeding numbered OCL098-20.

2.       The decision under review is confirmed.

3.       The application by CML Management Pty Ltd and Sonya Lawrence for their costs of the proceeding is refused.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – claim fund under Agents Financial Administration Act 2014 (Qld) – where licensed motor dealer failed to transfer title in caravan – quantification of damages – how transfer duty to be calculated – whether costs recoverable

Agents Financial Administration Act 2014 (Qld), s 82, s 103

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 54, s 102

Murnane and Murnane v Petrina Riley t/as Focus on Spence (No 2) [2017] QCAT 227

APPEARANCES & REPRESENTATION:

Applicant:

Stone Group Lawyers

First Respondent:

Second and Third Respondents:

Self-represented

Noble Law

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

1. The Chief Executive does not appear to have satisfied any of the parties in this matter, as each of the parties has sought review of the Chief Executive’s decision.  My decision is unlikely to alter this level of satisfaction as, for the reasons set out below, I consider that the Chief Executive’s decision was the correct and preferable decision.

Factual background

1. Mr Klaus is a former director of the QLD Caravan and RV Centre Pty Ltd (‘QCRV’).  I note that QCRV was deregistered on 22 November 2020.

2. Ms Laurence is a director of CML Management Pty Ltd (‘CML’).

3. On 12 September 2016, CML entered into a contract with QCRV for the purchase of a 2016 Swift Kontiki 625 Motorhome (‘the caravan’).  The total sale price was $180,000, and it is not in dispute that this price included the transfer of registration duty.

4. On 15 January 2020, the Department of Transport and Main Roads advised CML that it had received no application to transfer the caravan’s registration to CML, nor had the transfer of registration duty been paid.

5. On 19 February 2020, CML and Ms Lawrence lodged a claim against the claim fund established under the Agents Financial Administration Act 2014 (Qld) (‘AFA Act’) arising out of the conduct of QCRV and Mr Klaus. CML and Ms Lawrence sought the amount of $180,000.

The Chief Executive’s decision

1. On 18 September 2020, the Chief Executive partially allowed the claim by CML and Ms Lawrence in the amount of $10,515.75.  This amount consists of:

   (a)$10,045.75 for the transfer of registration duty;

   (b)$220 for a gas safety certificate for the caravan;

   (c)$250 for a safety certificate for the caravan.

2. The Chief Executive also decided that Mr Klaus and QCRV were jointly and severally liable to reimburse the claim fund in this amount. 

Applications for review

1. On 20 October 2020, Mr Klaus lodged an application to review the Chief Executive’s decision.  This is proceedings OCL098-20.

2. On 21 October 2020, CML and Ms Lawrence lodged a separate application to review the Chief Executive’s decision.  This is proceedings OCL100-20.

3. Pursuant to s 103(2) of the AFA Act, Mr Klaus, CML and Ms Lawrence are each a party to both proceedings. As both proceedings seek review of the same decision, it seems to me desirable to consolidate the proceedings pursuant to s 54 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’). The consolidated proceedings will be numbered OCL098-20.

Why Mr Klaus disagrees with the Chief Executive’s decision

1. Mr Klaus contends that the amount payable as transfer duty was $5,427 based on the current market value of the caravan. 

2. I note that transfer duty in the amount of $10,045.75 was calculated on the basis of the caravan having a dutiable value of $180,000, being the purchase price.

3. Section 82 of the AFA Act relevantly provides:

   (1) A person may claim against the fund if the person suffers financial loss because of the happening of any of the following events—

   …

   (b) a stealing, misappropriation or misapplication by a relevant person of property entrusted to the person as agent for someone else in the person’s capacity as a relevant person;

4. The Chief Executive’s submission is that QCRV and Mr Klaus were required to pay transfer duty on the total sale price on 12 September 2017, and that they stole, misappropriated or misapplied these funds by virtue of not having remitted the amount of $10,045.75 to the appropriate government body to transfer registration.

5. I accept the Chief Executive’s submission.  While the current value of the caravan is undoubtedly less than it was at 12 September 2017, CML and Ms Lawrence’s loss is properly quantified as $10,045.75, being the amount they paid to QCRV and Mr Klaus to on-forward on their behalf.

6. To accept Mr Klaus’ argument, and require him to pay only $5,427, would have the effect of permitting him to profit from his failure to remit the amount of $10,045.75 in September 2017.  This is not an acceptable outcome.

7. I note in passing that Mr Klaus made an offer to pay the amount of $5,897 (including the costs for obtaining a gas safety certificate and a safety certificate for the caravan) on 22 May 2020.  CML and Ms Lawrence responded on 6 August 2020 by requesting payment of $10,515.75.  In those circumstances, I am unable to accept Mr Klaus’ contention that an agreement was reached between the parties.  Nothing appears to turn on this point in any event.

Why CML and Ms Lawrence disagree with the Chief Executive’s decision

1. CML and Ms Lawrence contend that their legal costs of $6,178.15 should have been included as part of their financial loss and paid from the claim fund.

2. In Murnane and Murnane v Petrina Riley t/as Focus on Spence (No 2) [2017] QCAT 227 at [47]-[48], Member Paratz stated:

   Whilst AFAA does not expressly prohibit the recovery of costs incurred in pursuing a claim against the fund, it does not expressly allow for them either. In the absence of a clear provision in AFAA, payment cannot be ordered from the Fund, as submitted by the Chief Executive.

   I therefore do not consider that the claimants costs of pursuing the claim are payable from the fund.

3. I agree with this position. Further, I would observe that the AFA Act does not require claimants to engage lawyers in order to make a claim against the claim fund.

4. In the alternative, CML and Ms Lawrence have applied for an award of costs in the current proceedings pursuant to s 102 of the QCAT Act. I was asked to fix costs in the amount of $2,500. This argument may be dispensed with briefly. I do not consider it to be in the interests of justice to award CML and Ms Lawrence costs in proceedings where they have been unsuccessful.

Disposition

1. Given my findings above, I confirm the Chief Executive’s decision.

2. I refuse the application by CML and Ms Lawrence for their costs of the proceeding.