Oldfield v P.S. Business Holdings Pty Ltd
[2012] QCAT 697
| CITATION: | Oldfield v P.S. Business Holdings Pty Ltd and Anor [2012] QCAT 697 |
| PARTIES: | Edward Oldfield |
| v | |
| P.S. Business Holdings Pty Ltd Paul Smith |
| APPLICATION NUMBER: | GAR188-11 |
| MATTER TYPE: | Other civil dispute matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Peta Stilgoe, Senior Member |
| DELIVERED ON: | 12 November 2012 |
| 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 $7,146.68. [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 Edward Oldfield the sum of $7,146.68 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 Smith are named as the persons responsible for the financial loss of Edward Oldfield. [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 Smith are liable (and if more than one, jointly and severally) to reimburse the Claim Fund by paying the sum of $7,146.68 to the Chief Executive, Department of Justice and Attorney General. |
| CATCHWORDS: | MOTOR DEALER – where falsified odometer reading – where claim against the statutory fund – whether repairs claimable – whether interest claimable Property Agents and Motor Dealers Act 2000, ss 470, 488, 490(2), 492(5) Gettens v XFar Homes Pty Ltd & Anor [2012] QCAT 150 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.
REASONS FOR DECISION
Mr Oldfield bought a 2002 Commodore from A1 Nerang Auto Care. He dealt with Mr Smith. The odometer reading on the car at the time of sale was 51,997 km. Mr Oldfield paid $13,000 for the car.
In fact, the odometer had been wound back. The true reading should have been about 246,000 km. Brisbane Vehicle Valuers has provided a valuation of $7,000 based on the true odometer reading. Mr Oldfield made a claim on the statutory claim fund.
P.S. Business Holdings Pty Ltd, now in liquidation, traded as A1 Nerang Auto Care. Both Mr Smith and the liquidator of P.S. Business Holdings received notice of the claim.
In considering a claim against the fund, I must be satisfied[1] that an event as mentioned in section 470(1) happened and that Mr Oldfield suffered financial loss because of the event.
[1] Section 488(2) Property Agents and Motor Dealers Act 2000.
I must also take into account any amount Mr Oldfield might reasonably have received or recovered if not for his neglect or default and any amount ordered to be paid to Mr Oldfield as compensation to the claimant under sections 530A, 572D or 592A of PAMDA[2].
[2] Section 488(3)(a).
Finally, in allowing a claim I must decide the amount of Mr Oldfield’s financial loss and name the person who is liable for the loss[3].
[3] Section 488(3)(b) and (c).
The event
Winding back an odometer on a car for sale is false and misleading. A licensee making a false or misleading representation in relation to the sale of property[4] is an “event” under s 470(1).
[4] Section 574.
For the purposes of claims against the fund, a “licensee” includes a former licensee and a person who is not licensed, but acts as a licensee[5]. Mr Smith is well known to the tribunal. I am satisfied that Mr Smith acted as, and therefore was, a licensee for the purposes of this transaction. I am also satisfied that P.S. Business Holdings, by issuing the receipt, acted as a licensee.
[5] Section 469.
I am satisfied that the presentation of the car with a false odometer reading is an “event” within s 470(1).
Financial loss
In addition to the difference between the price paid for the car and the true value, Mr Oldfield has claimed repair costs of $4,524. He also claims $1,728.64 interest on a loan obtained to buy the car.
There are two reasons why Mr Oldfield cannot recover the repair costs. The first is that the difference between the purchase price and the true value reflects the repairs necessary to bring the car up to a reasonable condition.
Mr Oldfield states that he bought the car to replace his wife’s car, because she travels over 100km per day to and from work. Mr Oldfield purchased the car in December 2009. The first repair bill is dated February 2010. Unfortunately, the repair work was conducted by A1 Nerang Auto Care and the invoice does not show an odometer reading but, by then, Mrs Oldfield must have travelled at least 6,000km. In July 2010, Mr Oldfield bought a new battery for the car. The car required extensive work in September 2010 but by that time the odometer reading was 75,632, indicating that the car had travelled almost 24,000km. By March 2011, the odometer reading was 89,635. The repairs are consistent with those required by an aging vehicle which travels long distances each day. I am not satisfied that the repair costs are caused by the event. It is also evident that Mr Oldfield has been able to use the car for its intended purpose.
Section 492(5) of PAMDA provides that interest is not payable from the fund in relation to a claim allowed against the fund. The tribunal has previously determined[6] that the prohibition in the Act is restricted to interest on the amount determined as the financial loss. There is no prohibition on interest being part of the loss.
[6] Gettens v XFar Homes Pty Ltd & Anor [2012] QCAT 150 at [37]-[38].
Mr Oldfield took out a loan of $12,700. He has claimed all of the interest he has paid on the loan, stating that, had he known the true odometer reading, he would not have bought the car. In fact, his loss is the interest paid on the $6,000 that he overpaid for the car, as he has had the benefit of the car and retains it as an asset. The only way I can calculate Mr Oldfield’s entitlement to interest is 6/12.7 x $1,728.64, which is $816.68.
Mr Oldfield is entitled to recover the cost of obtaining the valuation from Brisbane Vehicle Valuers, which is $330.00.
I am satisfied that $7,146.68 is the proper assessment of Mr Oldfield’s loss.
Other matters
I am required to take into account any amount Mr Oldfield may have received or recovered if not for his neglect or default.
There is no evidence to suggest that Mr Oldfield 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?
For the reasons I have identified at [8], both P.S. Business Holdings and Mr Smith are responsible for Mr Oldfield's loss and are therefore liable to reimburse the fund.
Orders
Pursuant to s 488 of the Property Agents and Motor Dealers Act2000, the claim is allowed in the sum of $7,146.68.
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 Edward Oldfield the sum of $7,146.68 from the Claim Fund, and, if there is an appeal, payment must not be made until after the appeal is finally decided.
Pursuant to s 488(3)(c) of the Property Agents and Motor Dealers Act2000, P.S. Business Holdings Pty Ltd and Paul Smith are named as the persons responsible for the financial loss of Edward Oldfield.
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 Smith are liable (and if more than one, jointly and severally) to reimburse the Claim Fund by paying the sum of $7,146.68 to the Chief Executive, Department of Justice and Attorney General.
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