Matheson v Meehan
[2014] QCAT 547
•29 October 2014
| CITATION: | Matheson v Meehan and anor [2014] QCAT 547 |
| PARTIES: | Troy Matheson Leah Matheson (Applicants) |
| V | |
| Brian Meehan Tugun Enterprises Pty Ltd (Externally administered) (Respondents) |
| APPLICATION NUMBER: | GAR078 -14 |
| MATTER TYPE: | Other civil dispute matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member Stilgoe OAM |
| DELIVERED ON: | 29 October 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | [1] Pursuant to s 488 of the Property Agents and Motor Dealers Act2000, the claim is allowed in the sum of $24,421.54. [2] Pursuant to s 489 of the Property Agents and Motor Dealers Act2000, at the expiration of the appeal period, the Chief Executive must pay to Troy Matheson the sum of $ 24,421.54 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 Act2000, Tugun Enterprises Pty Ltd and Brian Meehan are named as the persons responsible for the financial loss of Troy Matheson. [4] Upon payment from the Claim Fund and pursuant to sections 490 and 530 of the Property Agents and Motor Dealers Act2000, Tugun Enterprises Pty Ltd and Brian Meehan are liable (and if more than one, jointly and severally) to reimburse the Claim Fund by paying the sum of $ 24,421.54 to the Chief Executive, Department of Justice and Attorney General. |
| CATCHWORDS: | MOTOR DEALER – where sale on consignment – where seller directed proceeds of sale to be paid to financier – where only part of proceeds of sale paid to financier – where no valid appointment of motor dealer – whether motor dealer’s profit and commission can be claims on the fund. Property Agents and Motor Dealers Act 2000 (Qld) ss 470, 488, 490(2) Branthwaite, K. v Walker, F. G., Walker Truck Sales Pty Ltd (Deregistered) & Walker L. [2006] QCCTPAMD 12 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
REASONS FOR DECISION
Mr Matheson leased a Lexus IS250 through Toyota Financial Services. The lease was coming to an end so Mr Matheson engaged Mr Meehan, from Tugun Enterprises Pty Ltd to sell the car. He told Mr Meehan that he wanted enough to cover the payout figure, which was about $45,000. Mr Meehan told Mr Matheson that he would add commission, fees and profit to the payout figure to arrive at a sale price. Mr Matheson left the car with Mr Meehan. Both the company and Mr Meehan were licensed motor dealers.
In about March 2013, Mr Meehan told Mr Matheson that the car had been sold but the buyer still had to get finance approval. Mr Matheson waited. He contacted Mr Meehan to find out when the lease would be paid out and Mr Meehan provided a number of explanations. Eventually, Mr Meehan told Mr Matheson that the sale was completed and that he paid Toyota Financial Services by BPay.
On 21 August 2013, Mr Matheson received a letter from Toyota Financial Services notifying him that he was in default under the lease because he still owed $24,421.54. Mr Matheson then found out that Mr Meehan had not paid out the lease, but only paid $22,000.
Subsequent investigations revealed that Mr Meehan did sell the car in March 2013, and that the sale was subject to finance. The sale price was $65,300. Neither Mr Matheson nor Toyota Financial Services has received any money from Mr Meehan save the $22,000 paid to Toyota Financial Services.
Mr and Ms Matheson made a claim on the statutory claim fund for $25,000. Mr Meehan received notice of the claim. By this time, Tugun Enterprises Pty Ltd was under external administration. The company’s administrators also received notice of the claim. Mr Matheson has not been paid.
In considering a claim against the fund, I must be satisfied[1] that an event as mentioned in section 470(1) of the Property Agents and Motor Dealers Act 2000 (Qld) happened and that Mr and Ms Matheson suffered financial loss because of the event.
[1] Property Agents and Motor Dealers Act 2000 (Qld) s 488(2).
I must also take into account any amount Mr and Ms Matheson might reasonably have received or recovered if not for their neglect or default and any amount ordered to be paid to them as compensation to the claimant under sections 530A, 572D or 592A of PAMDA[2].
[2] Section 488(3)(a).
Finally in allowing a claim I must decide the amount of Mr and Ms Matheson’s financial loss and name the person who is liable for the loss[3].
[3] Section 488(3)(b) and (c).
The event
The stealing, misappropriation or misapplication by an agent of property entrusted to that person as agent for someone else in their capacity as agent is an “event” under s 470(1)(e).
The evidence shows that Mr Meehan and Tugun Enterprises Pty Ltd sold the Lexus to a third party and did not transfer the purchase price as agreed. I am satisfied that Tugun Enterprises Pty Ltd misappropriated the proceeds of sale and that this is an “event” under s 470(1).
Financial loss
I am satisfied that Mr Matheson suffered a financial loss because of the respondents’ breach of s470(1)(e). Ms Matheson is not named in the contract for the purchase of the Lexus and there is no other evidence that she had a proprietary interest in the car. I therefore find that Ms Matheson has not suffered any financial loss.
There is no doubt that Mr Matheson has suffered a loss equivalent to the payout figure mentioned by Toyota Financial Services in its letter of 21 August 2013. That sum is $24,421.54.
There is an argument that, because Tugun Enterprises Pty Ltd did not have a valid appointment to act, Mr Matheson is entitled to the full purchase price and, therefore, my assessment of his loss should be $43,300.
As was pointed out by this tribunal’s predecessor[4], a breach of section 284 of PAMDA does not give a person a right to claim on the fund. If Mr Meehan had paid out the lease, but kept the profit, he may have been subject to a penalty. He may also have been subject to an action by Mr Matheson for payment of the balance but there would be no basis for a claim on the fund.
[4]Branthwaite, K. v Walker, F. G., Walker Truck Sales Pty Ltd (Deregistered) & Walker L. [2006] QCCTPAMD 12 at [33].
Further, Mr Matheson has not suffered a financial loss through not receiving the windfall. He never expected to receive more than the payout figure because that was the basis of his agreement with Mr Meehan. I am not satisfied that Mr Matheson’s loss is anything more than the balance of the payout figure; that is $24,421.54.
Other matters
I am required to take into account any amount Mr Matheson may have received or recovered if not for his neglect or default.
There is no evidence to suggest that Mr Matheson would have been able to receive or recover any amount to reduce his loss if he had taken any different action.
Who is liable for the loss?
Tugun Enterprises Pty Ltd, as the seller and the entity that received the proceeds of sale, is liable for the loss.
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.
Mr Matheson asserts that Mr Meehan was a director of Tugun Enterprises Pty Ltd. There is no documentary evidence to support that assertion but Mr Meehan’s fingerprints are all over the transaction. Mr Matheson dealt only with Mr Meehan. Mr Meehan sold the car to the third party. I am satisfied that, if Mr Meehan is not a director, he is a responsible person.
Orders
Pursuant to s 488 of the Property Agents and Motor Dealers Act 2000 (Qld), the claim is allowed in the sum of $24,421.54.
Pursuant to s 489 of the Property Agents and Motor Dealers Act 2000 (Qld), at the expiration of the appeal period, the Chief Executive must pay to Troy Matheson the sum of $24,421.54 from the Claim Fund, and, if there is an appeal, payment must not be made until after the appeal is finally decided.
Pursuant to s 488(3)(c) of the Property Agents and Motor Dealers Act 2000 (Qld), Tugun Enterprises Pty Ltd and Brian Meehan are named as the persons responsible for the financial loss of Troy Matheson.
Upon payment from the Claim Fund and pursuant to sections 490 and 530 of the Property Agents and Motor Dealers Act 2000 (Qld), Tugun Enterprises Pty Ltd and Brian Meehan are liable (and if more than one, jointly and severally) to reimburse the Claim Fund by paying the sum of $24,421.54 to the Chief Executive, Department of Justice and Attorney General.
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