Lavender v Chief Executive Department of Employment, Economic Development and Innovation
[2010] QCAT 553
•25 October 2010
CITATION:Lavender v Chief Executive - Department of Employment, Economic Development and Innovation [2010] QCAT 553
PARTIES: | Mr Andrew Victor Lavender |
| v | |
| Chief Executive - Department of Employment, Economic Development and Innovation |
| APPLICATION NUMBER: | GAR206-10 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | 25 October 2010 |
| HEARD AT: | In Chambers |
| DECISION OF: | Anne Forbes – Member |
| DELIVERED ON: | 25 October 2010 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. Pursuant to section 488 of the Property Agents and Motor Dealers Act 2000, the claim is allowed in the sum of nine thousand and forty-four dollars and eighty-seven cents ($9,044.87). 2. Pursuant to section 489 of the Property Agents and Motor Dealers Act 2000, at the expiration of the appeal period the Chief Executive must pay to the Applicant the sum of nine thousand and forty-four dollars and eighty-seven cents ($9,044.87) 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 section 488(3)(c) of the Property Agents and Motor Dealers Act 2000 Mr Laurence Atherton Mann is named as the person liable for the financial loss of the Applicant. 4. Upon payment from the Claim Fund and pursuant to sections 490 and 530 of the Property Agents and Motor Dealers Act 2000, Mr Laurence Atherton Mann is liable to reimburse the Claim Fund by paying the sum of nine thousand and forty-four dollars and eighty-seven cents ($9,044.87) to the Chief Executive of Employment, Economic Development and Innovation. |
| CATCHWORDS : | Claim against claim fund - review of decision of Chief Executive - Property Agents and Motor Dealers Act 2000, sections 470, 483, 574 – whether misrepresentations made |
REASONS FOR DECISION
This is an application, under section 483 of the Property Agents and Motor Dealers Act 2000 ( “the Act”), for review of a decision of the Chief Executive made under section 481, rejecting the Applicant’s (Andrew Lavender’s) claim against the claim fund established by the Act.
The Applicant alleges that he suffered financial loss because of breaches of the Act by an unlicensed motor dealer. His claim under section 470 of the Act was approved by an Investigations Officer of the Office of Fair Trading (“the OFT”) on 14 October 2009, but was subsequently rejected by the Chief Executive’s delegate, on 1 June 2010.
This application comes before the tribunal pursuant to section 20 of the Queensland Civil and Administrative Tribunal Act 2009 (“the QCAT Act”).
Background
It is common ground that the Applicant bought a 2000 Mercedes van (“the vehicle”) from one Laurence Mann on 18 December 2007 for $24,000, paid by bank cheque.
The Applicant further says:
a)Before agreeing to buy the vehicle he ascertained from Queensland Transport that there were no registered adverse interests therein;
b)As the vehicle was unregistered when he inspected it, he conducted a test drive with trade dealer plates or a plate supplied by Mann, and in view of that supply, he reasonably concluded that the said Mann was a licensed motor dealer;
c)Mann paid six months registration on the vehicle before handing it over;
d)Prior to purchase, the Applicant questioned Mann about the vehicle’s history, and was told that it was purchased in NSW and driven to Queensland. Mann claimed that he knew nothing more of the vehicle’s history, and stated that it was in good order, apart from a starter motor defect, for which Mann deducted $1000 from the purchase price;
e)On 7 January 2008 the Applicant had the vehicle serviced in Queensland before commencing to drive it to Western Australia.
f)However, between Grafton and Inverell, NSW, the vehicle broke down. On 9 January 2008 transmission specialists at Inverell told the Applicant that the transmission contained water, which, judging by the amount of rust present, was there for some time prior to the purchase by the Applicant;
g)After transmission repairs at Inverell, the Applicant continued his journey, but another breakdown due to a leaking transmission, necessitated towing of the vehicle 750 kilometres to Adelaide. Mercedes Benz specialists in Adelaide and Perth respectively reported that the water in the transmission was due to flood damage;
h)The Applicant then contacted Mann, and when told of the diagnosis in “(g)”, above, Mann replied: “Prove it.”
In February 2008 the Applicant ascertained from the appropriate NSW authorities that on 8 June 2007 the vehicle was recorded in that State as a repairable “write-off” due to water immersion. The Applicant then contacted the OFT, and filed the subject complaint;
j)The Applicant was obliged to have the transmission and the rusted parts replaced, and other parts inserted, to make the vehicle serviceable. The Applicant has given the OFT a schedule of the necessary repairs and the invoices of the repairers;
k)In the premises the Applicant claims a financial loss of $9044.87.
l)The Applicant contends that Mann wilfully concealed the status of the vehicle and asserts that “we would not of [sic] purchased this vehicle had we known or were told” that it was as a repairable write off due to water damage.
10. Mann says that the vehicle was not his, and that it was owned and sold by Mann’s partner, Cindy Williams. She claims that she was legal owner of the vehicle and that she, not Mann, was the vendor. Mann says that the “dealer plates” mentioned by the Applicant were in fact ID tags used in his LPG business. Mann further says that he acquired the vehicle from Pickles Motors in Sydney. He denies that he was acting as motor dealer.
11. Investigations by the OFT revealed that Mann has:
§Never held a motor dealer’s licence;
§Purchased no fewer than 23 vehicles at auction between February 2007 and July 2008, most of them classified as repairable write-offs;
§Presented vehicles to the Queensland Inspection Service on 9 occasions between May 2006 and March 2008;
§Purchased the subject vehicle as an “economic write off” at auction in NSW on 12 July 2007;
§Obtained a written-off vehicle inspection for it on 31 July 2007;
§Admitted that he sold 18 vehicles between February 2007 and 18 July 2008;
§Been served with 6 infringement notices for unlicensed sales of motor vehicles, has admitted his guilt and paid the fines imposed.[1]
[1] As evidenced in a bundle of documents obtained by OFT inspector Baillie.
The Investigating Officer’s Report
12. On the basis of the evidence set out above the OFT investigator concluded that:
a) at all material times, Mann was carrying on the business of a motor dealer while unlicensed;
b) Mann was a “relevant person” within the meaning of section 469 of the Act;
c) Mann made a false representation to the Applicant in relation to the sale of the subject vehicle;
d) the matter has not been settled between the Applicant and Mann;
e) the Applicant lodged his claim within time; and
f)on the balance of probabilities the Applicant suffered financial loss as claimed.
The Decision of the Chief Executive
13. The delegate of the Chief Executive admits the facts as found by the investigator but takes a different view of the consequences for the fund. The delegate held that the Act did not require Mann to reveal the vehicle’s water-damage history to the Applicant, and that Mann’s silence on that point does not constitute a false or misleading representation by concealment of a material fact.
Grounds of Application for review:
14. That Mann fraudulently withheld facts material to the condition of the vehicle, and that the Chief Executive rejected the claim without receiving evidence from the Applicant about the complete context of the transaction.
The Legislation
15. A person may claim against the statutory fund if he suffers financial loss as a result of contravention of section 574 by a relevant person.[2] A relevant person for the purposes of Chapter 14 of the Act includes a licensee or a person who acts as a licensee or is in” apparent charge of a licensee’s business.”[3] I find that Mann acted as a licensee in this case, and accordingly that he is a “relevant person”.
[2] Section 470
[3] Chapter 14: Claims Against the Fund, section 469.
16. Section 574 prohibits the representation by a licensee or deemed licensee to a person of “anything that is false or misleading in relation to the …sale of property.” “Property” for the purposes of section 574 includes personalty.[4] The same section extends to a “wilful concealment of a material fact in the representation”[5].
[4] Wilson v Chamino Pty Ltd t/a Coops Motor World & Ors [2007]] CCT PE008-06 per
Member Spender.
[5] Section 574 (8), see also section 312: ”A motor dealer, for the sale of used motor vehicles, includes a person carrying on the business of a motor dealer without a licence.“
17. A person whose claim has been rejected by the Chief Executive may ask QCAT to review the decision.[6] A review is a fresh hearing on the merits to produce “the correct and preferable decision.”[7]
[6] Sections 481, 483.
[7] QCAT Act section 20; see also Queensland Racing Ltd v McMahon [2010] QCAT 86
At [14] and Queensland Racing Ltd v Ganderton [2010] QCAT 348.
Decision
18. Laurence Mann and Cindy Williams have made sworn declarations that she and not he was the owner and vendor of the subject vehicle. Their assertions are inconsistent with Mann’s admissions to the investigating officer and the documents collected by the officer and exhibited in this matter. The tax invoice for the sale of the vehicle by Pickles Auctions names Laurence Mann as the purchaser. The Written Off Vehicle Inspection on 31 July 2007 names Mann as the applicant who paid the statutory fee. I reject the evidence of ownership by Williams, and I find that Mann was the owner and vendor of the vehicle at all material times.
19. Was Mann a deemed licensee within section 574? The vehicle was unregistered when inspected by the Applicant. Mann produced temporary plates to enable it to be driven on a public road. The Applicant reasonably concluded that these were dealers’ plates. Mann admitted he had purchased and sold a number of second hand vehicles in the relevant period. Clearly Mann was acting as a licensee at material times and accordingly I find that he is caught by section 574.
20. Did Mann’s response to the Applicant’s questions about the vehicle’s history amount to a false or misleading representation?
a)Mann claims: “When this vehicle was purchased we did not know it was a repairable writeoff , check original tax invoice. [T]his vehicle was sold with no plates no mention of repairable write off” (Email to Senior Investigating Officer Baillie dated 20 September 2010.)
b)But the relevant tax invoice[8] clearly describes the vehicle as a repairable write off. Further, the Queensland Transport Written Off Vehicle Inspection Report (“the WOVI”)[9] dated 31 July 2007 records “water damage… full freshwater immersion” of the driver, passenger and roof areas of the vehicle on 8 June 2007.
c)I reject the evidence of Mann and I am satisfied that he well knew that he purchased the vehicle as a repairable write off due to water immersion, and that the WOVI inspection revealed that immersion had occurred.
[8] Tax invoice: Form N in Respondent’s bundle of documents.
[9] Form I to WOVI Report.
21. The evidence presents the Applicant as a person of careful, even punctilious, disposition[10] and I am satisfied that he questioned Mann about the vehicle’s history.
[10] Note the Applicant’s presentation of the weather report for the day of the purchase to
challenge Mann’s assertion regarding the temperature that day.
22. Few facts could be more material to a purchaser of a motor vehicle than the fact that it been certified as a write-off, albeit repairable. (There is no evidence that Mann made any repair to the vehicle, beyond replacing its front tyres.) I am satisfied that the failure of Mann to tell the Applicant that the vehicle was a write-off (albeit repairable) constitutes wilful concealment of a material fact within the meaning and intent of section 574(8).
23. With due respect, I reject the submission of the Chief Executive’s delegate that:
”It is only in certain circumstances that silence can be considered a misrepresentation by concealing a material fact. There is no evidence to indicate that prior to the purchase of the Vehicle the Claimant sought from the Respondent any information relating to possible water damage to the vehicle.”[11]
[11] Decision of the Chief Executive 1.6.10 para 36
24. As I have found, the Applicant did question Mann about the vehicle’s history, and that Mann told him that it was that it was in good order, apart from a starter motor defect. There was nothing to prompt the Applicant to inquire about water damage in particular. Indeed, Mann told him that he (Mann) knew nothing about the vehicle’s history, apart from the fact that it was purchased in NSW and driven to Queensland. The above submission pays no proper regard to s 574(8). Furthermore, sections 294A and 294B deem water damage and writing-off to be material facts which require motor dealers to disclose them to potential purchasers.
25. I am satisfied that Laurence Mann caused the Applicant financial loss in the sum of $9044.87. The Applicant’s claim against the fund is allowed to that extent.
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