Oberhuaser v Laing - [2015] QCAT 69

CITATION:

Oberhuaser v Laing [2015] QCAT 69

PARTIES:	Clinton Oberhuaser (Applicant)
v
Raymond John Laing (Respondent)

APPLICATION NUMBER:

OCR135-14

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

5 March 2015

HEARD AT:

Brisbane

DECISION OF:

Member Hughes

DELIVERED ON:

6 March 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

The application is dismissed.

CATCHWORDS:

CLAIM FUND – MOTOR DEALER – where vehicle claimed to be sold on consignment – where dealer failed to remit sale proceeds – where claimant failed to adduce evidence of vehicle ownership – where ownership fundamental to proving entitlement to sale proceeds – whether grounds for claim on fund

Property Agents and Motor Dealers Act 2000 (Qld) ss 470, 488, 573

Advance Business Finance Pty Ltd v. Tuff Toys Qld Pty Ltd & Ors [2010] QCAT 525
Briginshaw v. Briginshaw (1938) 60 CLR 336
Clarke v. Cascade Pools (Qld) Pty Ltd [2010] QCAT 323
Creek v. Raine & Horne Mossman [2011] QCATA 226
McNabb v. OFT Claims and Recoveries, Department of Justice and Attorney-General [2011] QCAT 505

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Clinton Oberhauer appeared by telephone

RESPONDENT:

Raymond John Laing appeared by telephone

REASONS FOR DECISION

What is this Application about?

Clinton Oberhauser is claiming $11,700.00 from the Claim Fund under the Property Agents and Motor Dealers Act 2000 (Qld). Mr Oberhauser claims that Raymond John Laing sold Mr Oberhuaser’s 2001 Toyota Landcruiser on consignment, but failed to pay him the proceeds of sale.

What happened?

Both Mr Oberhauser and Mr Laing agree that Mr Laing “sold” the vehicle on consignment and remitted $5,300.00 to Mr Oberhauser.[1] They also agree that Mr Laing owes $11,700.00 to Mr Oberhauser.[2]
[1]Chief Executive’s Submissions dated 24 June 2014 at paragraph 22.
[2]Ibid.

Has Mr Oberhauser proven that he suffered ‘financial loss’ because of an ‘event’?

The Tribunal may only allow the claim if satisfied that an ‘event’ happened and the claimant suffered ‘financial loss’ because of the ‘event’.[3]
[3]Property Agents and Motor Dealers Act 2000 (Qld) s 488(2).
The alleged ‘event’ is that Mr Laing dishonestly converted an amount belonging to Mr Oberhauser to his own use[4] or that he stole, misappropriated or misapplied property entrusted to him as agent for Mr Oberhauser.[5]
[4]Ibid, s 573.
[5]Ibid, s 470(1)(e).
Mr Oberhauser must prove the proceeds from the sale of the 2001 Toyota Landcruiser were rightfully his. He must therefore prove that he owned the vehicle at the time he entrusted it to Mr Laing in January 2012.

Has Mr Oberhauser proven he was the lawful owner of the vehicle?

Mr Oberhauser provided the following to support ownership of the vehicle:
·   Unsigned and undated ‘Vehicle Registration Transfer Application’ noting “Clinton John Oberhauser” as Acquirer and “SSS Car Care Pty Ltd” as Seller with a purported transfer date of 29/11/10;
·   Unsigned and undated ‘Guarantee of title to buyer – by a motor dealer’ noting “SSS Car Care Pty Ltd” as Motor Dealer;
·   Budget Direct Insurance Renewal dated 18 November 2011 to “Mr Oberhauser & Ms Harris” but with…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Oberhuaser v Laing

Details

AGLC: Oberhuaser v Laing [2015] QCAT 69
Case: [2015] QCAT 69
Decision Date: 6 March 2015

CaseChat Overview and Summary

The case of Oberhuaser v Laing involved a claim against a motor vehicle dealer who had failed to remit the proceeds from the sale of a vehicle to the claimant. The claimant argued that the vehicle was sold on consignment and that they were therefore entitled to the sale proceeds. The court was tasked with determining whether the claimant's failure to provide evidence of vehicle ownership precluded them from making a claim on the claim fund.

The central issue before the court was whether the claimant's failure to provide evidence of vehicle ownership was fatal to their claim, or whether it was possible for them to establish their entitlement to the sale proceeds by other means. The court had to consider the fundamental nature of ownership in proving a claim to the proceeds of a sale and whether the claimant's failure to provide evidence of ownership could be remedied by other means.

In dismissing the claimant's application, the court held that ownership of the vehicle was a fundamental requirement for establishing entitlement to the sale proceeds. The claimant had failed to provide any evidence of ownership, and the court found that this failure could not be remedied by other means. The court held that the claimant had not made out a case for the fund to compensate them for the sale proceeds, and dismissed the application accordingly.

The court ordered that the application be dismissed, with no orders as to costs.

Orders

Orders of the court

The application is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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