Kruck v Jensen

[2011] QCAT 633

CITATION: Kruck and Anor v Jensen [2011] QCAT 633

PARTIES:	Mr Garry Ivan Kruck Ms Teresa Rose Horstman
v
Mr Chris Albert Jensen formerly trading as Discount 4 x 4’s

APPLICATION NUMBER:   GAR184-11

MATTER TYPE: General administrative review matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Peta Stilgoe, Member

DELIVERED ON: 14 December 2011

DELIVERED AT: Brisbane

ORDERS MADE:     

1.    The time for Mr Kruck and Ms Hortsman to file a claim against the fund should be extended to 12 April 2011 and the following directions should be made:

a.    Mr Kruck and Ms Hortsman will file one (1) copy in the tribunal and give one (1) copy to Mr Jensen of all material on which they rely, by 4:00pm on 17 January 2012.

b.    Mr Jensen will file one (1) copy in the tribunal and give one (1) copy to Mr Kruck and Ms Hortsman of all material on which he relies, by 4:00pm on 7 February 2012.

c.    The tribunal will determine the claim on the material filed and without an oral hearing not before 7 February 2012.

CATCHWORDS:

MOTOR DEALER – CLAIM AGAINST THE STATUTORY FUND – where claim filed out of time – whether extension should be granted

Property Agents and Motor Dealers Act 2000, ss 472(2), 511

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. Mr Kruck and Ms Hortsman made a claim on the statutory fund on 12 April 2011 in relation to their purchase of a ute in January 2008.  The Office of Fair Trading declined the claim as it was lodged more than 3 years after the event.  Mr Kruck and Ms Hortsman have applied to the tribunal to extend the time in which to make a claim on the fund.

2. Mr Kruck and Ms Hortsman bought a 2001 Nissan Navara dual cab ute from Discount 4x4’s on 15 January 2008.  The ute was advertised as a Nissan Navara STR 3.3l.

3. Mr Kruck had obtained finance for the purchase through GE Money.  GE Money asked for a tax invoice showing the vehicle details, including model number, VIN and engine number to be sent to its office so that the loan details could be finalised.  Discount 4x4’s sent a tax invoice showing the model of the ute as a Navara DX dual cab.  On receipt of this tax invoice, GE Money rang Mr Kruck to advise that it would not finance the purchase of the vehicle because a Navara DX dual cab was worth about $6,000 less than a Navara STR 3.3l.

4. Mr Kruck rang Discount 4x4’s with this news.  He was told that Discount 4x4’s would “sort it out”.  Discount 4x4’s sent an amended tax invoice to GE Money which showed the model as a Navara STR 3.3l.  The finance was approved.

5. Mr Kruck and Ms Hortsman put the ute up for sale in 2010.  GE Money’s initial advice was then confirmed; on 10 December 2010, Mr Kruck and Ms Hortsman found out that the ute was, in fact, a Navara DX and not a Navara STR 3.3l.

6. Section 472(2) of the Property Agents and Motor Dealers Act 2000 provides that a person may make a claim against the statutory fund within the earlier of:

a)1 year after the person becomes aware of financial loss because of the happening of the event; or

b)3 years after the happening of the event that caused the financial loss.

1. Section 511 of PAMDA provides that the tribunal can extend the time for making a claim on the fund having regard to:

a)The reasons for not making the claim or seeking the review within the time allowed.

b)The application generally.

c)The relative hardship that an extension of time, or a refusal to extend time, would place on the claimant or the respondent.

1. Mr Kruck and Ms Hortsman were not aware of their financial loss until December 2010.  They could not be expected to be aware of their right, or need, to make a claim on the fund until their financial loss became obvious.  On becoming aware of their loss, Mr Kruck and Ms Hortsman quite properly wrote to Discount 4x4’s, giving it the opportunity to pay compensation without the need for action.  Discount 4x4’s was asked to provide a response by 7 March 2011.  It did not do so.  I am satisfied that Mr Kruck and Ms Hortsman have provided a reasonable explanation for their failure to lodge a claim within the three-year time period.

2. The material filed so far indicates that Mr Kruck and Ms Hortsman have reasonable prospects of a successful claim against the fund for financial loss caused by Discount 4x4’s false representation about the ute.[1]

   [1]        Section 574 PAMDA.

[10]  Mr Kruck and Ms Hortsman found out about the misdescription of the ute when they were forced to sell it because Mr Kruck lost his job.  The refusal to extend time to allow a claim would cause Mr Kruck and Ms Hortsman financial hardship.  Mr Jensen sold his interest in Discount 4x4’s in June 2010 and he has not responded to correspondence from either the Department or the tribunal.  In those circumstances, a difference of a few months in the filling of the claim is unlikely to affect his position adversely.

[11]  The time for Mr Kruck and Ms Hortsman to file a claim against the fund should be extended to 12 April 2011 and the following directions should be made:

a)Mr Kruck and Ms Hortsman will file one (1) copy in the tribunal and give one (1) copy to Mr Jensen of all material on which they rely, by 4:00pm on 17 January 2012.

b)Mr Jensen will file one (1) copy in the tribunal and give one (1) copy to Mr Kruck and Ms Hortsman of all material on which he relies, by 4:00pm on 7 February 2012.

c)The tribunal will determine the claim on the material filed and without an oral hearing not before 7 February 2012.