Nielsen v PS Business Holdings Pty Ltd
[2011] QCAT 638
•12 December 2011
| CITATION: | Nielsen and Anor v PS Business Holdings Pty Ltd and Ors [2011] QCAT 638 |
| PARTIES: | Mr Craig Nielsen Mrs Kerryn Nielsen |
| v | |
| P.S. Business Holdings Pty Ltd t/as A1 Nerang Auto Care Mr Paul Smith Mr Peter Dinoris Vincents Chartered Accountants |
| APPLICATION NUMBER: | OCL096-11 |
| MATTER TYPE: | Other civil dispute matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Peta Stilgoe, Member |
| DELIVERED ON: | 12 December 2011 |
| 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 $11,374 provided that Mr and Mrs Nielsen provide a copy of a tax invoice showing that the odometer has been reset within 14 days of this order. If Mr and Mrs Nielsen do not provide a tax invoice to that effect, the claim on the fund is reduced to $10,810. [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 Mr and Mrs Nielsen the sum of $11,374 (or $10,810) 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, P.S. Business Holdings Pty Ltd and Paul David Smith are named as the persons responsible for the financial loss of Mr and Mrs Nielsen. [4] Upon payment from the Claim Fund and pursuant to ss 490 and 530 of the Property Agents and Motor Dealers Act2000, P.S. Business Holdings Pty Ltd and Paul David Smith are liable (and if more than one, jointly and severally) to reimburse the Claim Fund by paying the sum of $11,374 (or $10,810) to the Chief Executive, Department of Justice and Attorney General. |
| CATCHWORDS: | MOTOR DEALER – where odometer wound back – where dealer failed to disclose that car was a repairable write off – where owners claimed for loss of value, investigation costs, costs of repairs and cost to reset odometer Property Agents and Motor Dealers Act 2000, ss 470, 488, 490(2) |
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
In May 2010, Mr and Mrs Nielsen bought a Holden Commodore from Mr Smith, trading as A1 Nerang Auto Care. Mr Smith told the couple that the car was “an ex government fleet car with 50,000 kilometres on the clock” and that it was a 2004 model. Mr and Mrs Nielsen paid $13,000 for the car.
In October 2010, Mr and Mrs Nielsen found out that: the car was, in fact, a 2002 model; that the odometer had been wound back from 244,758 kilometres to the 55,000 that was displayed on purchase; and that the car was a repairable write off. Mr and Mrs Nielsen say that they would not have purchased the car had the true position been known.
Mr and Mrs Nielsen made a claim on the statutory claim fund for $12,559 being the difference between the price paid and the value, the cost of investigations and the cost of some necessary repairs to the vehicle.
A1 Auto Wholesale is the registered business name of Clovermill Pty Ltd, the principal of which is Mr McKie. Mr McKie is a licensed motor dealer but he has filed a statement denying any knowledge of this transaction. I accept that neither Clovermill Pty Ltd nor Mr McKie is in any way involved in this transaction.
The tribunal has been provided with a copy of a business names search for A1 Nerang Auto Care which shows that it is registered to Mr Smith and P.S. Business Holdings Pty Ltd. Mr Smith is the sole director and shareholder of the company.
Mr Smith received notice of the claim. He has disputed the “true” value of the car that Mr and Mrs Nielsen have provided to the tribunal. The tribunal has given Mr Smith two opportunities to have the car valued by a valuer of his choice. He has failed to take either opportunity. The tribunal will grant no further indulgences.
The tribunal is required to determine whether there should be a payment from the fund. 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 574 of PAMDA provides that a licensee must not represent in any way to someone else anything that is false or misleading in relation not the sale of property. I have no doubt that winding back an odometer and failing to disclose that a car is a repairable write off is a misleading representation within s 574 even though it may also be an offence under another provision of the Act.
[11] I am satisfied that the winding back of the odometer and the failure to disclose that the car was a repairable write off were “events” within s 470(1).
[12] I am conscious that P.S. Business Holdings Pty Ltd and Mr Smith are not licensees. Section 469 of PAMDA provides that, in claims against the fund, “licensee” includes a person who is not licensed but acts as a licensee. Clearly, P.S. Business Holdings Pty Ltd and Mr Smith have acted as licensees and, therefore, fall within the ambit of “licensee” for the purpose of determining Mr and Mrs Nielsen’s claim.
Financial loss
[13] I am satisfied that Mr and Mrs Nielsen suffered a financial loss because of Mr Smith’s breach of s 574.
[14] I have been provided with a copy of a valuation from Queensland Motor Valuations showing the value of a 2002 Commodore with 244,835 km “on the clock” as $2,500. Despite Mr Smith’s protestations that this valuation is not a proper valuation, I am prepared to accept that it is a reasonable representation of the difference between the price Mr and Mrs Nielsen paid for the car and the actual value at the date of purchase.
[15] Mr and Mrs Nielsen have also claimed $1,185 for the cost of repairs to keep the car on the road. I do not accept that these are recoverable from Mr Smith in addition to the reduction in value. I find that the reduction in value takes account of the necessary mechanical repairs that a car of that age and condition would require to make it roadworthy. I disallow the claim for $1,185.
[16] Mr and Mrs Nielsen have also claimed $310 for the cost of investigations and the valuation. These are costs that should be recoverable from the fund. Mr and Mrs Nielsen have also claimed the cost of having the odometer changed to reflect the true reading. I am concerned that, even though they have been aware of the need to do this for some months, they have not taken the necessary action. I am prepared to allow that claim on the fund – in the amount of $564 – on presentation of a tax invoice for that amount showing that the work has been completed.
Other matters
[17] I am required to take into account any amount Mr and Mrs Nielsen may have received or recovered if not for their neglect or default.
[18] There is no evidence to suggest that Mr and Mrs Nielsen would have been able to receive or recover any amount to reduce their loss if they had taken any different action.
Who is liable for the loss?
[19] I have already identified that the business names A1 Nerang Auto Care is registered to P.S. Business Holdings Pty Ltd, nominating Mr Smith as the person carrying on the business and that Mr Smith is the sole director and shareholder of the company.
[20] 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.
[21] As a director of P.S. Business Holdings Pty Ltd, Mr Smith was an executive officer of the company. It follows that both P.S. Business Holdings Pty Ltd and Mr Smith are a “responsible person” under s 490(2).
Orders
[22] Pursuant to s 488 of the Property Agents and Motor Dealers Act2000, the claim is allowed in the sum of $11,374 provided that Mr and Mrs Nielsen provide a copy of a tax invoice showing that the odometer has been reset within 14 days of this order. If Mr and Mrs Nielsen do not provide a tax invoice to that effect, the claim on the fund is reduced to $10,810.
[23] 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 Mr and Mrs Nielsen the sum of $11,374 (or $10,810) from the Claim Fund, and, if there is an appeal, payment must not be made until after the appeal is finally decided.
[24] Pursuant to s 488(3)(c) of the Property Agents and Motor Dealers Act2000, P.S. Business Holdings Pty Ltd and Paul David Smith are named as the persons responsible for the financial loss of Mr and Mrs Nielsen.
[25] Upon payment from the Claim Fund and pursuant to sections 490 and 530 of the Property Agents and Motor Dealers Act2000, P.S. Business Holdings Pty Ltd and Paul David Smith are liable (and if more than one, jointly and severally) to reimburse the Claim Fund by paying the sum of $11,374 (or $10,810) to the Chief Executive, Department of Justice and Attorney General.
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