McNabb v OFT Claims and Recoveries, Department of Justice and Attorney General

[2011] QCAT 505

CITATION: McNabb v OFT Claims and Recoveries, Department of Justice and Attorney General [2011] QCAT 505

PARTIES:	Mr Colin Thomas McNabb
v
OFT Claims and Recoveries, Department of Justice and Attorney General

APPLICATION NUMBER:   GAR235 -11

MATTER TYPE: General administrative review matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Peta Stilgoe, Member

DELIVERED ON: 27 October 2011.

DELIVERED AT: Brisbane

ORDERS MADE:      1.    The application is dismissed and the decision of the Department is confirmed.

CATCHWORDS: 

MOTOR DEALER – where unlicensed dealer – where car placed on consignment – where unlicensed dealer later purchased the car – where cheques on payment bounced – whether a claim against the fund

Property Agents and Motor Dealers Act 2000, ss 469, 470(1)(e), 573, 574

Anderson v Shakespeare (aka - Michael De Pasquale), Ryton-Benson, Keenhitch Pty Ltd, Consign-A-Car (Aust) Pty Ltd, Cottrill [2007] QCCTPAMD 35

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

1. In 2008, Mr McNabb moved from the Gold Coast to South Australia.  Before he moved, Mr McNabb left his car on consignment with Mr Ivanov, who operated a business called Park n Sell.  Mr Ivanov was not a licensed motor dealer.

2. The car did not sell, so Mr McNabb returned to the Gold Coast to collect it.  He discovered that the car had been damaged while in Mr Ivanov’s possession.  Mr Ivanov agreed to buy the car from Mr McNabb for $6,200 and Mr Ivanov gave Mr McNabb three post-dated cheques in payment.  All three cheques bounced.  Mr Ivanov has since paid Mr McNabb $1,500 but there is $4,700 of the purchase price outstanding.

3. Mr McNabb made a claim against the statutory fund.  The Department refused the claim and Mr McNabb has applied to the tribunal for a review of that decision.

4. Mr McNabb may make a claim against the fund if he has suffered financial loss because of the happening of an event within s 470 of the Property Agents and Motor Dealers Act 2000. The Department concedes that, although Mr Ivanov was unlicensed, he is a licensee for the purposes of a claim against the fund as the definition of licensee includes a person who is not licensed but acts as a licensee[1].

   [1] Section 469 PAMDA.

5. Understandably, Mr McNabb does not specify the basis of his claim.  The Department says that there are three possible bases for Mr McNabb’s claim (ss 470(1)(e), 573 and 574) but that, in each case, he does not meet the requirements of the Act.

Section 470(1)(e) – stealing, misappropriation or misapplication

1. Mr McNabb can make a claim against the fund under this section if the event that cause his loss was:

   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.

2. The former Commercial and Consumer Tribunal has already determined that a sale does not fall within the circumstances contemplated by s470(1)(e)[2].  The relevant transaction between Mr McNabb and Mr Ivanov was a sale of the car.  Mr McNabb gave possession of the car to Mr Ivanov; property in the car passed to Mr Ivanov when the agreement was made; and from then on, Mr Ivanov was free to do what he liked with the car.  If Mr Ivanov did not pay the purchase price, Mr McNabb’s remedy lies in contract, not as a claim on the fund.

   [2]Anderson v Shakespeare (aka - Michael De Pasquale), Ryton-Benson, Keenhitch Pty Ltd, Consign-A-Car (Aust) Pty Ltd, Cottrill [2007] QCCTPAMD 35.

Section 573 – wrongful conversion

1. Mr McNabb can make a claim against the fund under this section if the event that caused his loss was Mr Ivanov, in the performance of the activities of a licensee, receiving money belonging to Mr McNabb and dishonestly converting it to his own, or someone else’s use.

2. Mr Ivanov did not receive any money from Mr McNabb; he received Mr McNabb’s car. Mr McNabb has not suffered loss because of an event that falls within s 573.

Section 574 – false representations about property

[10] Mr Ivanov may have made false representations about whether or not he was a licensed dealer, and about his ability to sell Mr McNabb’s car, but there is no evidence that he made any representations to Mr McNabb about the car itself. Mr McNabb has not suffered loss because of an event that falls within s 574.

Mr McNabb’s submissions

[11]  Mr McNabb provided a very detailed history of his dealings with Mr Ivanov.  I have read that material carefully but I agree with the Department that the only possible bases for a claim are the sections of PAMDA that I have already considered.

[12]  I understand that Mr McNabb is annoyed with the fact that Mr Ivanov was “allowed” to trade when he was well known to the police and the Department.  That Mr Ivanov was purporting to trade as a motor dealer may give rise to action by both the Department and the police but it does not give Mr McNabb a right to claim on the fund if the event giving rise to his loss does not otherwise come within the provisions of the Act.

Conclusions

[13]  Mr McNabb sold his car to Mr Ivanov.  Even though he was not paid, Mr McNabb does not have a right to claim against the statutory fund because the sale was not:

a)Stealing, misappropriation or misapplication within s 470(1)(e);

b)Wrongful conversion within s 573; or

c)A misrepresentation within s 574.

[14]  Mr McNabb’s application to review the Department’s decision should be dismissed and the Department’s decision confirmed.