Maclean v Schwenke
[2011] QCAT 508
•31 October 2011
| CITATION: | Maclean v Schwenke and Anor [2011] QCAT 508 |
| PARTIES: | Ms Kelly Maclean |
| v | |
| Mrs Kerry Ann Schwenke Mr Luke Donald Schwenke |
| APPLICATION NUMBER: | OCL105-11 |
| MATTER TYPE: | Other civil dispute matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Peta Stilgoe, Member |
| DELIVERED ON: | 31 October 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | [1] Pursuant to s 488 of the Property Agents and Motor Dealers Act 2000, the claim is allowed in the sum of $9,919. [2] Pursuant to s 489 of the Property Agents and Motor Dealers Act 2000, at the expiration of the appeal period, the Chief Executive must pay to Kelly Maclean the sum of $9,919 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, Kerry Ann Schwenke and Luke Donald Schwenke are named as the persons responsible for the financial loss of Kelly Maclean. [4] Upon payment from the Claim Fund and pursuant to sections 490 and 530 of the Property Agents and Motor Dealers Act 2000, Kerry Ann Schwenke and Luke Donald Schwenke are liable (and if more than one, jointly and severally) to reimburse the Claim Fund by paying the sum of $9,919 to the Chief Executive, Department of Justice and Attorney General. |
| CATCHWORDS: | MOTOR DEALER – where failure to give good title – where finance company repossessed car – claim from the fund |
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
Mr Schwenke was a licensed motor dealer trading under the registered business name of Sunny Coast Auto Auctions. A search of the Business Names Register reveals that both Mr and Mrs Schwenke are named as the persons carrying on that business.
Ms Maclean bought a car on finance from Sunny Coast Auto Auctions on 21 July 2009. When she went to renew her registration six months later, Queensland Transport informed Ms Maclean that the car was still registered to Sunny Coast Auto Auctions.
Ms Maclean contacted Mr Schwenke. At that time, the payout figure on Ms Maclean’s finance contract was $10,454. They agreed that Ms Maclean would return the car, pay $3,145 to Mr Schwenke and he would organise the finance payout, contributing the balance. Ms Maclean gave Mr Schwenke the car and $3,145 on 18 February 2010.
Ms Maclean rang the finance company a week later. She was told that the payout had not been received. Ms Maclean chased up Mr Schwenke who promised to get on to it.
In August 2010, the finance company contacted Ms Maclean to tell her that: the car had been repossessed from Sunny Coast Auto Auctions; the car had been sold for $4,000 which had been credited to her finance contract; and there was an outstanding balance of $6,774 on the contract.
Ms Maclean made a claim on the statutory claim fund for $10,522.03. Mr and Mrs Schwenke have received notice of the claim but they have made no offer to compensate Ms Maclean.
Section 488 of the Property Agents and Motor Dealers’ Act 2000 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.
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[1] and any amount ordered to be paid to the claimant as compensation to the claimant under sections 530A, 572D or 592A of PAMDA[2].
[1] Section 488(2).
[2] Section 488(3)(a).
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[3].
[3] Section 488(3)(b) and (c).
The event
[10] Section 295(2) of PAMDA provides that an agent must ensure that a buyer gains clear title to a motor vehicle at the time property in the vehicle passes to the buyer. A breach of s 295(2) is an “event” within s 470(1).
[11] Section 470(1)(c) also states that a failure of a motor dealer to ensure a person who has bought a car gains clear title is an “event”.
[12] Sunny Coast Auto Auctions did not pass clear title in the car to Ms Maclean when she took possession of the car or at any time. I am satisfied that an event as mentioned in s 470(1) happened.
Financial loss
[13] Ms Maclean no longer has the car. She paid Mr Schwenke $3,145, which he did not pass on to the finance company. At the time of her claim on the fund, Ms Maclean still owed the finance company $6,774 for a car she does not own. Ms Maclean’s claim for $10,522.03 is based upon the original finance contract amount. In fact, including interest, Ms Maclean’s total liability under the finance contract was $16,690.80.
[14] It is clear that Ms Maclean would not have entered into the finance contract if she had not bought the car. If Sunny Coast Auto Auctions had passed clear title, Ms Maclean would have the benefit of the car and suffered no financial loss. I am satisfied that Ms Maclean has suffered financial loss because of the failure by Sunny Coast Auto Auctions to pass clear title to the car.
[15] I am satisfied that the amount of Ms Maclean’s loss is $9,919, which is total of the amount Ms Maclean paid to Mr Schwenke plus the amount outstanding on the finance contract at the time of the claim.
Other matters
[16] I am required to take into account any amount Ms Maclean may have received or recovered if not for her neglect or default.
[17] Hindsight might tempt an objective person to suggest that Ms Maclean did not take adequate precautions to protect her position and that she should have negotiated directly with her finance company rather than trust Mr Schwenke a second time.
[18] The Commercial and Consumer Tribunal, adopting the principles expressed by the High Court in Henville v Walker[4] has already determined that[5]:
“there is no ground for reading into the provisions dealing with such damages doctrines of contributory negligence and the apportionment of damages, although if part of the loss or damage would not have occurred but for the unreasonable conduct of a claimant, it may be appropriate in assessing damages to apply notions of reasonableness in assessing how much of the loss was caused by the contravention”
[4] (2001) 206 CLR 459.
[5]Lee v Tabtill Pty Ltd T/A Holland Park Motor Trading Centre, Creswick, Creswick [2007] CCT PC053-06 at [36].
[19] There is insufficient evidence to suggest that Ms Maclean would have been able to receive or recover any amount to reduce her loss if she had taken any different action.
Who is liable for the loss?
[20] As a licensed motor dealer, and the “responsible motor dealer” who did not provide clear title, Mr Schwenke is clearly a person liable for the loss.
[21] Section 490(2) provides that a person is liable to reimburse the fund if the person is:
a)A responsible person;
b)If the responsible person was a corporation, each person who was an executive officer of the corporation.
[22] The Department has named Mrs Schwenke as a responsible person. The definition of “responsible person” in s 469 of PAMDA includes “a person carrying on business with a licensee”. Mrs Schwenke was carrying business with Mr Schwenke. She is, therefore, a responsible person and also, therefore, liable to reimburse the fund.
Orders
[23] Pursuant to s 488 of the Property Agents and Motor Dealers Act 2000, the claim is allowed in the sum of $9,919.
[24] Pursuant to s 489 of the Property Agents and Motor Dealers Act 2000, at the expiration of the appeal period, the Chief Executive must pay to Kelly Maclean the sum of $9,919 from the Claim Fund, and, if there is an appeal, payment must not be made until after the appeal is finally decided.
[25] Pursuant to s 488(3)(c) of the Property Agents and Motor Dealers Act 2000, Kerry Ann Schwenke and Luke Donald Schwenke are named as the persons responsible for the financial loss of Kelly Maclean.
[26] Upon payment from the Claim Fund and pursuant to sections 490 and 530 of the Property Agents and Motor Dealers Act 2000, Kerry Ann Schwenke and Luke Donald Schwenke are liable (and if more than one, jointly and severally) to reimburse the Claim Fund by paying the sum of $9,919 to the Chief Executive, Department of Justice and Attorney General.
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