Money 3 Corporation Ltd v Schwenke and Anor
[2011] QCAT 512
•31 October 2011
| CITATION: | Money 3 Corporation Ltd v Schwenke and Anor [2011] QCAT 512 |
| PARTIES: | Money 3 Corporation Ltd |
| v | |
| Mrs Kerry Ann Schwenke Mr Luke Donald Schwenke |
| APPLICATION NUMBER: | OCL111-11 |
| 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 $10,593.77. [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 Money 3 Corporation Ltd the sum of $10,593.77 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 Money 3 Corporation Ltd. [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 $10,593.77 to the Chief Executive, Department of Justice and Attorney General. |
| CATCHWORDS: | MOTOR DEALER – where failure to pay out finance company – 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.
Money 3 Corporation Ltd lent money to Mr Simon Trail to buy a car. In April 2010, Mr Trail sold the car to Sunny Coast Auto Auctions. Sunny Coast Auto Auctions sent a cheque for $10,593.77 to Money 3 to pay out Mr Trail’s finance. The cheque bounced. Money 3 contacted Mr Schwenke who advised the company to re-present the cheque. It bounced again. Money 3 contacted Mr Schwenke again and he advised that he would make a direct payment to Money 3’s bank account. Money 3 has never received the money from Sunny Coast Auto Auctions.
Money 3 made a claim on the statutory claim fund for $11,697.27. Mr and Mrs Schwenke have received notice of the claim but they have made no offer to compensate Money 3.
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
A contravention of s 573 of PAMDA is an “event” under s470(1). A licensee is in breach of s 573 if, in the performance of the activities of a licensee, the licensee receives money belonging to someone else and dishonestly converts the money to his own or someone else’s use.
$10,593.77 of the money that Mr Schwenke received on the sale of Mr Trail’s car was money belonging to Money 3. By not passing that money on to Money 3, Mr Schwenke has dishonestly converted it. For the purposes of a claim on the fund, it doesn’t matter that I cannot identify who had the benefit of that money.
I am satisfied that Mr Schwenke breached s 573 and that this is an “event” within s 470(1).
Financial loss
[10] I am satisfied that Money 3 has suffered a financial loss because of Mr Schwenke’s breach of s 573.
[11] Money 3 claims $10,593.77 plus $795.40 interest plus $308.10 costs. The claims for costs and interest were allowed by the Magistrates Court of Victoria at Heidleberg in a default judgment dated 22 March 2011.
[12] Section 492(5) of PAMDA provides that interest is not payable from the fund in relation to a claim allowed against the fund. By analogy, while I am satisfied that Money 3 should be paid its capital loss, I am not persuaded that it is entitled to the payment of interest from the fund.
[13] A court judgment is not a pre-condition to a claim on the fund. Money 3 may have its own reasons for obtaining judgment but I can see no reason why the fund should bear the burden of Money 3’s legal costs.
[14] I am satisfied that the amount of Money 3’s loss is $10,593.77.
Other matters
[15] I am required to take into account any amount Money 3 may have received or recovered if not for its neglect or default.
[16] There is no evidence to suggest that Money 3 would have been able to receive or recover any amount to reduce its loss if it had taken any different action.
Who is liable for the loss?
[17] 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.
[18] 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.
[19] 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
[20] Pursuant to s 488 of the Property Agents and Motor Dealers Act 2000, the claim is allowed in the sum of $10,593.77.
[21] 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 Money 3 Corporation Ltd the sum of $10,593.77 from the Claim Fund, and, if there is an appeal, payment must not be made until after the appeal is finally decided.
[22] 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 Money 3 Corporation Ltd.
[23] 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 $10,593.77 to the Chief Executive, Department of Justice and Attorney General.
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