Nichols v Auctioneers and Agents Committee

[2004] QDC 309

DISTRICT COURT OF QUEENSLAND

CITATION:

Nichols v Auctioneers and Agents Committee [2004] QDC 309

PARTIES:

LEX NICHOLS
Plaintiff/Applicant
v
AUCTIONEERS AND AGENTS COMMITTEE
Defendant/Respondent

FILE NO:

1919 of 1991

PROCEEDING:

Application to decide if claim in time

DELIVERED ON:

10 September 2004

DELIVERED AT:

Brisbane

HEARING DATE:

3 September 2004

JUDGE:

Judge Brabazon QC

ORDER:

Declare claim made in time

CATCHWORDS:

STATUTORY INTERPRETATION – Proper construction of s.98(4) Auctioneers and Agents Act 1971 – Whether on the facts the claim was made within time.

Auctioneers and Agents Act 1971 s.98(4)

Uniform Civil Procedure Rules r.483(1)

COUNSEL:

Mr P Hackett for the Plaintiff/Applicant
Mr G Lawson for the Defendant/Respondent

SOLICITORS:

Robinson & Robinson for the Plaintiff/Applicant
Crown Solicitor for the Defendant/Respondent

The Application

[1]      Mr Lex Nichols is trying to recover money from the Auctioneers and Agents Fidelity Guarantee Fund.  The Auctioneers and Agents Committee has refused his claim.  The parties join in asking the Court to decide one issue.  On the assumption that he does have a right to claim against the Fund, is he prevented from doing so because of the passing of time?  The parties have made different submissions about that. 

[2]      The question depends on the meaning of the Auctioneer & Agents Act, as it was in 1990.

The Agreed Facts

[3]      For the purposes of this application, the parties have agreed about the relevant facts.  They are these:

(a)     January 1987

Mr Nichols agrees to buy a motor vehicle from a man called Lintern.  He at least appeared to be a licensed motor vehicle dealer.

(b)     March 1987

Mr Nichols paid $11,446, and had the vehicle registered in his name.  Shortly after that, he sold the vehicle to a man called Williams.

(c)     November 1998

The police inform Mr Nichols that the vehicle was stolen.  He gives a statement to the police, about his dealings with Lintern.

(d)     January 1989

Later sales of the same vehicle lead to the issue of District Court proceedings, No 135 of 1989. Mr Nichols is not a party, at first.

(e)     July 1989

Leave given for a third party notice to issue against Williams.

(f)August 1989

Lintern was convicted of obtaining money from Mr Nichols with intent to defraud.

(g)23 August 1989

Williams issues a third party notice, which is served on Mr Nichols.

(h)    25 September 1989

Plaint No 135 of 1989 comes to trial in the District Court of Brisbane.  Williams has a judgment in the sum of $12,500 given against him.  The proceedings between Williams and Mr Nichols are adjourned.

(i)25 October 1989

Mr Nichols joins other third parties to the District Court action. 

(j)22 June 1990

Mr Nichols made a claim against the Fidelity Fund.

(k)5 November 1990

A settlement is reached in Mr Nichols’ third party proceedings.  Overall, he agreed to pay $44,041.81 to the other parties.

(l)10 December 1990

The Auctioneers and Agents Committee advises that Mr Nichols claim against the Fund is refused.

(m)7 June 1991

Mr Nichols starts these proceedings in the District Court.

[4]      The Statutory Provisions

These are the relevant parts of the Auctioneers and Agents Act:

“98.      Application of Fund

1.Subject to the provisions of this Act, the Fund should be held and applied for the purpose of reimbursing persons who may suffer pecuniary loss by reason of

(a)….

4.No person should have a claim against the Fund unless he notifies the Registrar in writing of the substance of the claim within a period of –

(a)   six months after he becomes aware that he has suffered pecuniary loss; or

(b)three years after the commission of the breach that caused his pecuniary loss,

whichever occurs sooner;

Provided that if, within the period (mentioned in paragraph (a) or (b)) otherwise applicable to the making of the claim, the claimant commences an action in a court of competent jurisdiction for the recovery of his pecuniary loss he may, within a period of three months after the action concludes or is terminated, make a claim against the Fund by notifying the Registrar in writing of the substance of the claim.”

Resolution

[5]      Mr Nicholls third party notice, in effect, claims damages against the police for wrongfully dealing with the vehicle, and against an insurer for a share of the proceeds of sale of the vehicle. 

[6]      Those District Court proceedings are an example of the multiplicity of claims that can be made when stolen property is innocently sold from one purchaser to the next.  Williams faced a claim as the seller of a vehicle to which he did not have title.  In turn, he made the same claim against Mr Nichols.  It is not revealed here why Mr Nichols did not sue Lintern.  However, he sued others in an attempt to protect his interests.

[7]      Mr Nichols did not get good title to the car that he bought.  Lintern must have been in breach of his contract of sale.  As soon as the sale was completed, Nichols was entitled to sue for damages based on the market value of the car.  As it happened, he made a deal and sold the car.  The details are not known.  There is no evidence that he then suffered any loss.  The expression in the Act “pecuniary loss” refers to some actual loss, and not just to the right to claim damages. 

Once he learned that the vehicle was stolen, he probably feared a pecuniary loss, in the future.  But there was no actual loss at that stage. 

[8]      There were legal proceedings against him, but he was not immediately forced to pay anything to Williams.  However, he was facing the prospect that he would shortly suffer a judgment against him, and that would be a real loss.  He brought in the additional third parties, and made claims against them. 

[9]      In the long run, his involvement with the stolen car and the legal proceedings was an expensive one. The total he paid out, including costs, was $44,041.81.

[10] Attention has to be paid to the above proviso, about court proceedings. It should be held that he “commenced an action in the Court of competent jurisdiction for the recovery of his pecuniary loss” when he issued the third party proceedings. They were not claims against the dealer. He had not then paid out any money. However, he was trying to retrieve his position. It was a proceeding which fell within the terms of s 98(4).

[11]      His actual pecuniary loss occurred when he compromised the proceedings and became obliged to pay the $44,041.81. Only then did he know what the actual loss was.

[12] The primary time limitation in this case is that in s 98(4)(b) – he had three years after the commission of the breach that caused his pecuniary loss to notify the Registrar of Auctioneers and Agents. In this case, the breach was Lintern’s failure to give good title to the vehicle.

[13]      That three year period expired in March 1990.  During that period, Mr Nicholls issued his third party proceedings on 25 October 1989.  He commenced proceedings within the limitation period that would be applicable to his claim. 

[14]      The time within which he could make a claim against the Fund was then extended to a time of three months after the action concluded or was terminated.  In the result, the time from March 1987 extended to 5 February 1991. He could make a claim at any time within that period. 

[15]      The claim against the Auctioneers and Agents Committee was within time.  The preliminary issue must be resolved in favour of Mr Nicholls.

[16]      There will be a declaration that the plaintiff in these proceedings has duly notified the Registrar in writing of the substance of his claim herein.

[17]      In the absence of any other submission it is ordered that the respondent pay the applicant’s costs of this application, to be assessed.