Lentini v O'Neil
[2010] QCAT 272
•15 June 2010
| CITATION: | Lentini v O’Neil [2010] QCAT 272 |
| PARTIES: | Mr Mario Lentini |
| v | |
| Mr Robert John O'Neil |
| APPLICATION NUMBER: | PC027-09 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | On the papers |
| HEARD AT: | BRISBANE |
| DECISION OF: | A Forbes - Member |
| DELIVERED ON: | 15 June 2010 |
| DELIVERED AT: | BRISBANE |
ORDERS MADE: | 1. The first applicants claim against the fund in the sum of $11,800.00 is allowed 2. The person liable for the first applicants loss is Robert John O'Neill |
| CATCHWORDS : | Property Dealer and Motor Dealers Act 2000, s470(1)(e) – Claim against claim fund – licensed motor dealer – failure to account to owner for sale of vehicle received for sale on consignment |
APPEARANCES and REPRESENTATION (if any):
| Decision on the papers. |
REASONS FOR DECISION
Introduction
This is an application referred to the tribunal by the Chief Executive of the Office of Fair Trading under the Property Agents and Motor Dealers Act 2000 (“the Act”). It is a claim by Mario Lentini(“the first Applicant”) against the claim fund established under the Act. He alleges that he has suffered financial loss because of the conduct of Robert John O’Neill (“the Respondent”).
The Respondent has not filed any material as ordered. At a directions hearing directions were made that the matter be dealt with on the papers.
Background
The first Applicant relies on the material contained in the file of the Office of Fair Trading which is in evidence before the tribunal. The background to the claim is set out therein.
On 23 July 2007 the first Applicant delivered his Toyota Soarer vehicle registered number 605 IKF to the Respondent at his Southport premises to be sold on consignment [1]for the amount nominated by the first Applicant of $12,500. Several months passed during which time the first Applicant was out of the country. On his return the Respondent advised him that the vehicle had been sold for $11,800. The first Applicant expressed his satisfaction and requested that the Respondent send him the net proceeds of the sale.
[1] Consignment Form 23/7/07 on letterhead O’Neill Family Motors
Over the next few months the first Applicant maintained regular email contact with the Respondent who responded to requests for payment of the money owed with a variety of excuses. The first Applicant, who lives in North Queensland eventually visited the car yard and found it to be closed down. He made unsuccessful attempts to locate the Respondent at his home address, only to find that the latter was not known there. The first Applicant did establish some email contact with the Respondent after this but again was fobbed off when he demanded payment. He concluded by the end of 2008 that he was unlikely to obtain satisfaction from the Respondent and he lodged a claim against the fund on 14 April 2009.
Legislation
Section 470(1)(e) of the Act states:
“470 Restriction on recovery of reward or expense—no proper authorisation etc.
(1) A person may make a claim against the fund if the person suffers financial loss because of the happening of any of the following events--
(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.”
Decision
I find that the first Applicant entrusted his property, the vehicle, to the Respondent for sale on consignment. So much is clear from the materials. Thereafter the Respondent sold the vehicle but despite the first Applicant’s many demands for payment, the Respondent has failed to account to him for any part of the net proceeds.
A certificate under section 587 of the Act by Senior Investigations Officer SM Linnane of the Office of Fair Trading establishes that Robert John O’Neill was a licensed motor dealer between 28 September 2005 to 28 September 2008. The licence was not renewed.[2]
[2]It has been drawn to my attention that disciplinary proceedings were brought against the Respondent for a failure to account to other owners of vehicles received for sale on consignment. On 5 November 2009 he was fined and permanently disqualified from holding a licence under the Act:
CE, Office of Fair Trading v O’Neill [2009] QCCTPAMD 55.
I am satisfied and so find that the Respondent as a relevant person, stole, misappropriated or misapplied property entrusted to him by the first Applicant. The Investigations Officer notes in his report dated 28 August 2009 that “there is insufficient evidence to support definitively that the claimed amount is the amount the vehicle sold for or the amount that the Respondent received.” There is no market valuation available to establish the value of the vehicle at the point of sale. However, the first Applicant has provided a statement in which he avers that he was told by the Respondent that the vehicle sold for the amount of $11,800. This is that sum he now claims.
10. I am satisfied that the default of the Respondent has caused the first Applicant financial loss in the amount of $11,800. The first Applicant is entitled to recover that amount. There is no mention on the consignment note of any agreed transaction fee.[3]
[3]The Consignment Note is said by the Applicant Department to be non-compliant for its purposes.
11. The first Applicant’s claim against the fund is allowed in the sum of $11,800.00.
12. The person liable for the first Applicant’s financial loss is Robert John O’Neill.
0
0
0