Kruck v Jensen

[2012] QCAT 157

CITATION: Kruck and Anor v Jensen [2012] QCAT 157

PARTIES:	Garry Ivan Kruck Teresa Rose Horstmann
v
Chris Albert Jensen formerly t/as Discount 4 x 4’s

APPLICATION NUMBER:   GAR184-11

MATTER TYPE: Other civil dispute matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Peta Stilgoe, Senior Member

DELIVERED ON: 16 April 2012

DELIVERED AT: Brisbane

ORDERS MADE:     

[1] Pursuant to s 488 of the Property Agents and Motor Dealers Act2000, the claim is allowed in the sum of $8,544.66.

[2] Pursuant to s 489 of the Property Agents and Motor Dealers Act2000, at the expiration of the appeal period, the Chief Executive must pay to Garry Ivan Kruck and Teresa Rose Horstman the sum of $8,544.66 from the Claim Fund, and, if there is an appeal, payment must not be made until after the appeal is finally decided.

[3] Pursuant to s 488(3)(c) of the Property Agents and Motor Dealers Act 2000, Chris Albert Jensen is named as the person responsible for the financial loss of Garry Ivan Kruck and Teresa Rose Horstman.

[4] Upon payment from the Claim Fund and pursuant to ss 490 and 530 of the Property Agents and Motor Dealers Act2000, Chris Albert Jensen is liable to reimburse the Claim Fund by paying the sum of $8,544.66 to the Chief Executive, Department of Justice and Attorney General.

CATCHWORDS: 

MOTOR DEALER – where ute advertised as a particular model – where ute, in fact, another model – claim against the fund – where claim for financial loss included interest on loan – assessment of financial loss

Property Agents and Motor Dealers Act2000, ss 469, 470(1), 574

APPEARANCES and REPRESENTATION (if any):

This matter was heard on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.

REASONS FOR DECISION

1. On 14 December 2011, I gave Mr Kruck and Ms Horstman an extension of time in which to bring a claim against the fund.  I am now required to consider the merits of that claim.  I do not intend to repeat the facts that are set out in my earlier decision[1] unless they are necessary for my determination of the substantive application.

   [1]        Kruck and Anor v Jensen [2011] QCAT 633.

2. Mr Jensen purported to carry on business as a licensed motor dealer under the name Discount 4 x 4’s.  For the purposes of a claim against the fund, “licensee” includes a person who is not licensed but acts as a licensee[2].  Mr Jensen sold Mr Kruck and Ms Horstman a Nissan Navarra.  They say that the sale was made on the basis of false representations about the model of the Nissan.  Mr Kruck and Ms Horstman say that they paid $14,000 for a car that was worth only $6,000 to $8,000.

   [2] Section 469 Property Agents and Motor Dealers Act 2000.

3. On 12 April 2011, Mr Kruck and Ms Horstman lodged a claim against the claim fund set up under the Property Agents and Motor Dealers Act2000 with the Department of Justice and Attorney General.  Their claim, set out in a letter to Discount 4 x 4’s is expressed in the alternative:

a)Payout of the loan they took to purchase the Nissan in the sum of $32,331.60.

b)Take back the Nissan, supply them with a vehicle with an actual value of $14,000 or greater and pay the interest on the loan to date.

1. They have since amended their claim to $11,189, calculated as $7,000 difference in the value of the ute and $4,189 interest paid on the loan for 3 years as 19.95%.

2. Notice of that claim was given to Mr Jensen by a letter from the tribunal sent on 1 February 2012.  Twenty-eight days having elapsed from that notice and with no response or settlement being received from any person, it is appropriate that I determine the claim. 

3. Section 488 of the Property Agents and Motor Dealers Act2000 sets out the process for deciding the claim.  The Tribunal must be satisfied that:

a)An event as mentioned in section 470(1) happened; and

b)The claimant suffered financial loss because of the event.

1. The Tribunal must also take into account any amount the claimant might reasonably have received or recovered if not for the claimant’s neglect or default[3] and any amount ordered to be paid to the claimant as compensation to the claimant under sections 530A, 572D or 592A of PAMDA[4]. 

   [3] Section 488(2).

   [4] Section 488(3)(a).

2. Finally in allowing a claim the Tribunal must decide the amount of the claimant’s financial loss and name the person who is liable for the loss[5].

   [5] Section 488(3)(b) and (c).

The event

1. Section 574 of PAMDA provides that a licensee or registered employee must not represent in any way to someone else something that is false or misleading in relation to the sale of property. A breach of s 574 is an “event” under s 470(1).

[10] Discount 4 x 4 advertised the ute as a Nissan Navara STR 3.3l when it was, in fact, a Nissan Navara DX. Discount 4 x 4 rendered a tax invoice showing that the ute was a Nissan Navara STR 3.3l when it was not. In the course of the sale of the ute, it is clear that Discount 4 x 4 made a false or misleading representation about the model ute Mr Kruck and Ms Horstman were buying. I am satisfied that Discount 4 x 4 made a representation that was in breach of s 574.

[11] I am satisfied that the breach of s 574 is an “event” within s 470(1).

Financial loss

[12] I am satisfied that Mr Kruck and Ms Horstman suffered a financial loss because of Discount 4 x 4’s breach of s 574.

[13]  The only information about financial loss that Mr Kruck and Ms Horstman have provided is a comment that “according to the Red Book” the ute is worth between $6,000 and $8,000.  Mr Kruck also refers to a conversation he had with an officer of GE Money at the time he bought the ute in which he was told that the difference between the two models was about $6,000.  Mr Kruck and Ms Horstman paid $14,000.  If I accept their submission that the true value of the ute was no more than $8,000, their loss is $6,000.

[14]  I conducted my own Redbook searches on 12 April 2012.  They show that the price difference between a Nissan Navara STR 3.3l and a Nissan Navara DX, on a private price guide is $6,200 and $5,600 on a trade in price guide.  I am prepared to accept the difference in value is $6,000.

[15]  Mr Kruck and Ms Horstman are entitled to relief from payment of interest on the $6,000 they should not have paid for the ute.  They say that the interest rate on the loan is 19.95% but they have not provided any evidence of that rate.  In the absence of evidence about the rate, I am not persuaded that they have suffered a financial loss of $4,189 interest as claimed.  I will allow interest at 10% from 15 January 2008 to 12 April 2012, an amount of $2,544.66.

[16]  I am satisfied that $8,544.66 is a proper assessment of Mr Kruck and Ms Horstman’s loss.

Other matters

[17]  I am required to take into account any amount Mr Kruck and Ms Horstman may have received or recovered if not for their neglect or default.  The only action they could have taken was to have independently verified the model of the ute before concluding the purchase.  But that is the point of dealing with a supposedly licensed motor dealer; a purchaser is entitled to rely on information provided by the dealer.  It was reasonable for Mr Kruck and Ms Horstman to assume that the first tax invoice was in error and that Discount 4 x 4 corrected that error in the second tax invoice.

[18]  There is no evidence to suggest that Mr Kruck and Ms Horstman would have been able to receive or recover any amount to reduce their loss if they had taken any different action.

Who is liable for the loss?

[19]  Mr Jensen, as a person who acted as a licensee, is the person liable for Mr Kruck and Ms Horstman’s loss.

Orders

[20] Pursuant to s 488 of the Property Agents and Motor Dealers Act2000, the claim is allowed in the sum of $8,544.66.

[21] Pursuant to s 489 of the Property Agents and Motor Dealers Act2000, at the expiration of the appeal period, the Chief Executive must pay to Mr Kruck and Ms Horstman the sum of $8,544.66 from the Claim Fund, and, if there is an appeal, payment must not be made until after the appeal is finally decided.

[22] Pursuant to s 488(3)(c) of the Property Agents and Motor Dealers Act2000, Chris Albert Jensen is named as the person responsible for the financial loss of Mr Kruck and Ms Horstman.

[23] Upon payment from the Claim Fund and pursuant to sections 490 and 530 of the Property Agents and Motor Dealers Act2000, Chris Albert Jensen is liable to reimburse the Claim Fund by paying the sum of $8,544.66 to the Chief Executive, Department of Justice and Attorney General.