LBEE Pty Ltd v Vehicles Solutions Pty Ltd
[2011] QCAT 203
| CITATION: | LBEE Pty Ltd v Vehicles Solutions Pty Ltd & Anor [2011] QCAT 203 |
PARTIES: | LBEE Pty Ltd |
| v | |
| Vehicles Solutions Pty Ltd (First Respondent) Randall Hughes (Second Respondent) |
| APPLICATION NUMBER: | OCL149-10 |
| MATTER TYPE: | Other civil dispute matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Dr Elena Marchetti, Member |
| DELIVERED ON: | 28 March 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The Applicant be paid $5,600.00 from the Claim Fund. 2. The First and Second Respondents are jointly and severally liable for the loss suffered by the Applicant and they are ordered to reimburse the Fund in the sum of $5,600.00. |
| CATCHWORDS: | Claim against fund – part of the claim not an event listed under s 470 – remaining part of the claim is for misappropriation of a motor vehicle under s 470(1)(e) of the PAMD Act – use of Red Book valuation Property Agents and Motor Dealers Act 2000, ss 450, 470 |
APPEARANCES and REPRESENTATION (if any):
| Decision on the papers. |
REASONS FOR DECISION
Background
This is a claim on the fund set up under the Property Agents and Motor Dealers Act 2000 (“the PAMD Act”) by a person who claims to have suffered financial loss by reason of certain misconduct on the part of a motor dealer.
The parties have been advised that the matter may be determined on the papers. No party has objected to that course. I deem it appropriate to so proceed.
The facts of this matter, as they appear in the various Statutory Declarations, in the Inspection Report prepared for the Chief Executive, and in various letters and emails attached to the Statutory Declarations, are difficult to ascertain due to the conflicting accounts provided by the parties involved.
It appears that both parties agree that on 21 September 2007 Vincent Ladewig, the sole Director and Secretary of the Applicant, LBEE Pty Ltd, appointed the First Respondent, Vehicle Solutions Pty Ltd (Under External Administration) to market by consignment his motor vehicle, a 2000 Nissan Maxima Sedan, Registration Number 899-FPI for the purposes of selling it.
According to a Statutory Declaration provided by the Second Respondent dated 15 September 2010, the Applicant made the decision to sell his motor vehicle after being advised by the First Respondent’s car repairer, Auto Co. Mechanical, that repairs of $5,990.00 had been made to the motor vehicle.
The Second Respondent claims that an agreement was reached whereby the First Respondent would market the vehicle and that once sold, the repairs would be paid out of the proceeds of sale and the Applicant and the First Respondent would then split the balance of any monies received. The Applicant and Dr Ladewig do not, in any of the evidence submitted by them, admit that such an agreement had been reached.
It appears from the evidence that all parties involved agree that the Applicant would pay for additional work to be done on the motor vehicle to bring it to marketable/roadworthy condition. In order for this to occur, the Applicant paid the First Respondent the amount of $1,100.00 for the following repairs, which were listed in a letter from the Applicant dated 21 September 2007:
§Replacement of the left side front guard reflector;
§Replacement of wiper blades;
§Replacement of three tyres;
§Some repair of and/or paint work to bumpers and boot lid; and
§Replacement of the boot carpet and mats for the front seat wells.
The repairs were completed, however an invoice dated 19 February 2008 itemising the repairs totalling $1,148.00, included two items which the Applicant disputes, namely an amount of $165.00 for detailing the motor vehicle and an amount of $125.00 for advertising. The Applicant is therefore only willing to pay for the paint and panel repairs ($770.00) and the rear boot mat ($88.00) and is seeking a refund of the balance remaining from the $1,100.00 paid to the First Respondent (being $242.00). This amount ($242.00) forms part of the claim against the Fund.
Prior to receiving the invoice for the repairs, Dr Ladewig on behalf of the Applicant, had on 6 December 2007 written to the Second Respondent querying how the $1,100.00 had been spent and revoking any authority the First Respondent had to market the vehicle. In that letter he also advised the Second Respondent that if the vehicle required removal, he could arrange for the RACQ to move it.
[10] In response, the First and Second Respondents’ solicitor wrote to the Applicant on 13 December 2007 advising that a total of $3,260.00 worth of repairs remained unpaid and owing to Auto Co. Mechanical and that the Respondents were intending to return the vehicle to the car repairer, so that it could be held pursuant to a lien until the outstanding repair costs were paid.
[11] Early in January 2008 Dr Ladewig noticed that the motor vehicle was no longer at the First Respondent’s premises. He contacted Queensland Transport on or about 6 July 2008 to ask why he had not received a registration renewal notice for the motor vehicle and was advised that the motor vehicle was no longer registered in the Applicant’s name. A Queensland Transport Registration search shows that the vehicle had in fact been transferred into the First Respondent’s name around 29 September 2007. It is unclear how this transpired.
[12] The Applicant therefore seeks compensation of $9,900.00 (which Dr Ladewig alleges is the amount the Second Respondent advised him he could sell the motor vehicle for) from the Claim Fund for the unauthorised conversion of his motor vehicle. No other evidence has been provided in relation to the value of the motor vehicle.
[13] The Second Respondent admits, in a Statutory Declaration dated 7 October 2010, that his ex-wife, Sylvia Masi, informed him that she had disposed of the motor vehicle, which at the time was stored on her property. According to the Second Respondent, he had on a number of occasions asked Dr Ladewig to remove the vehicle from both the repairer’s (Auto Co. Mechanical) premises and the premises of the First Respondent. Dr Ladewig never did so because, according to the Second Respondent, the Applicant did not want to pay the outstanding repair costs. The vehicle ended up at the property of the Second Respondent’s ex-wife because it had been moved there after the First Respondent went into voluntary liquidation.
[14] According to the statement provided by the Second Respondent in his Statutory Declaration dated 7 October 2010, Ms Masi had contacted Dr Ladewig, the local police and the liquidators appointed to administer the voluntary liquidation. Ms Masi told the Second Respondent that none of these parties had any interest in claiming the vehicle. Ms Masi then disposed of the vehicle without the Second Respondent’s knowledge and without accounting for the proceeds of sale or disposal. It is unclear exactly how Ms Masi disposed of the vehicle.
Jurisdiction of the Tribunal
[15] The jurisdiction of the Tribunal to make decisions under the PAMD Act falls under section 450, which provides:
For this Act, the tribunal has the following jurisdiction--
(a) to hear and decide disciplinary matters involving licensees and registered employees;
(b) to hear and decide claims, other than minor claims, against the fund;
(c) to hear and decide applications under this Act relating to marketeers;
(d) to review decisions of the chief executive in relation to minor claims;
(e) to review decisions of the chief executive in relation to licensing and registration.
[16] In deciding claims other than minor claims, the Tribunal may according to section 488 of the PAMD Act, ‘allow the claim, wholly or partly, or reject the claim’ if it is satisfied on the balance of probabilities that ‘an event mentioned in section 470(1) happened’. A minor claim against the fund is defined under Schedule 2 of the PAMD Act as ‘a claim of not more than $10000’.
[17] According to s 470 a claim against the Fund can only be made if:
(1) … the person suffers financial loss because of the happening of any of the following events--
(a) the contravention of any of the following provisions by a relevant person--
• section 144, 145 or 149(1)
• section 183, 184 or 188(1)
• section 221, 222 or 226(1)
• section 233(2)
• section 291 or 292
• section 295(2)
• section 302(4)
• section 311
• chapter 12, part 1
• section 573
• section 573A
• section 573B
• section 573C
• section 574;(b) …;
(c) a failure of a motor dealer to ensure a person who has bought a motor vehicle sold by or for the dealer gains clear title to the vehicle at the time property in the vehicle passes to the buyer, whether or not the motor dealer contravenes section 233 or 295;
(d) …;
(e) 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.
Note--
See, however, section 373I for particular activities that do not constitute a contravention of section 573A, 573B(1), 573C(1) or 574(1) for which a person may make a claim against the fund.(2) A person may make a claim against the fund even if the person has made another claim for the loss against a receiver and the receiver has not considered or has refused the other claim.
The Claim
[18] The Applicant made a claim against the Claim Fund on 24 June 2009. The Applicant has lodged the claim form with the Chief Executive within the relevant time limit set out in section 472(2) of the PAMD Act. Dr Ladewig became aware that the Applicant had suffered a financial loss on 6 July 2008 (the date on which Dr Ladewig was advised by the Queensland Transport that the vehicle was no longer registered in the Applicant’s name), which is no more than one year prior to lodging the claim form.
[19] The Chief Executive directed an Inspector of the Office of Fair Trading to investigate the claim. The Inspector’s report dated 14 September 2010 was forwarded to the Applicant and the Respondents on 20 September 2010.
[20] There are two parts to the claim brought by the Applicant against the Fund, one which relates to an event under s 470(1), namely ‘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’, and the other which relates to a debt allegedly owing as a result of disputed work claimed under the invoice issued by the First Respondent on 19 February 2008. This second part of the claim does not fall within an event listed under section 470(1) and the Tribunal therefore rejects this part of the claim, being $242.00.
[21] Therefore the only part of the claim, which could be made against the Fund relates to the stealing, misappropriation or misapplication of the motor vehicle, which the Applicant alleges is valued at $9,900.00.
[22] According to section 469 of the PAMD Act a ‘relevant person’ is
(a) a licensee; or
(b) a licensee's employee or agent, or a person carrying on business with the licensee; or
(c) a person having charge or control, or apparent charge or control, of a licensee's registered office or business.
[23] In this case the First and Second Respondents each held a Motor Dealer Principle Licence at the time of the alleged event. The Second Respondent was a licensed Director of the First Respondent at the time of the alleged event and he acknowledged in a letter dated 6 December 2007 that he was marketing the vehicle for the purposes of selling it on behalf of the First Respondent. This makes the First and Second Respondents relevant persons for the purposes of section 470(1).
[24] Despite the conflicting accounts of the events that transpired by the various parties involved in this matter, the Tribunal finds that the vehicle was misappropriated at the time when its registration was transferred to the First Respondent. At this time, the vehicle was in the possession of the First and Second Respondents for the purposes of marketing the vehicle on behalf of the Applicant and/or to be held under a lien for unpaid repairs on the vehicle. As mentioned, the evidence filed with the Tribunal is unclear as to the exact reason the vehicle was in the Respondents’ possession. In any event, the Respondents had an obligation to deal with the motor vehicle according to the interests of the owner, which does not extend to transferring the registration or disposing of the vehicle without the owner’s consent and without accounting for the proceeds of any sale or disposal of the vehicle.
[25] The Tribunal is therefore satisfied that as a result of the unauthorised transfer of the registration of the motor vehicle to the First Respondent the Applicant suffered a financial loss as a result of the happening of an event under section 470(1)(e) of the PAMD Act.
[26] The value of the vehicle, which constitutes the financial loss, has not been proven. In his Affidavit dated 24 September 2007 Dr Ladewig states that the Second Respondent told him that he believed the motor vehicle would sell for $9,900.00. This is not sufficient evidence to satisfy the Tribunal, on the balance of probabilities that the vehicle is actually worth that amount of money.
[27] According to section 28(3) of the Queensland Civil and Administrative Tribunal Act 2009 the Tribunal in conducting a proceeding ‘may inform itself in any way it considers it appropriate’. It is necessary in this matter for the Tribunal to refer to the “Red Book”, a well-known online motor vehicle valuation website, to determine the value of the motor vehicle. The Red Book indicates that a private sale price guide for a 2000 Nissan Maxima 4 door sedan series S is between $4,000.00 and $5,600.00. Taking into account that in 2007, the Applicant’s vehicle had, according to the Invoice prepared by Auto Co. Mechanical dated 5 November 2007 an odometer reading of 141,022 kilometres, which is at the lower end of the mileage quoted on Red Book, the Tribunal is satisfied that a reasonable value for the motor vehicle would be $5,600.00.
[28] The Tribunal is required to name the person who is liable for the claimant’s financial loss in accordance with subsection 488(3)(c) of the PAMD Act. The Tribunal notes that Mr Randall Hughes entered the arrangement with Dr Vincent Ladewig while trading as Vehicle Solutions Pty Ltd. At the time specified the First Respondent held a Motor Dealer Corporation Licence (licence number 2507236) and the Second Respondent held a Motor Dealer Principle Licence (license number 2505152). The Tribunal is satisfied that Mr Ladewig, on behalf of the Applicant dealt with the Second Respondent trading as the First Respondent. The First and Second Respondents are therefore liable for the Applicant’s financial loss.
Conclusion
[29] The Claim be allowed in the sum of $5,600.00 and that the amount be paid to the Applicant from the Claim Fund at the expiration of the appeal period outlined in section 489 of the PAMD Act.
[30] The First and Second Respondents are jointly and severally liable for the financial loss of the Applicant.
[31] Upon the Chief Executive paying the Applicant from the Claim Fund pursuant to section 489 of the PAMD Act, the Respondents are liable to reimburse the Claim Fund under section 490 of the PAMD Act by paying $5,600.00 to the Chief Executive, Department of Employment, Economic Development and Innovation.
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