Pattino v Cottam

[2012] QCAT 309

CITATION: Pattino v Cottam [2012] QCAT 309

PARTIES:	Nathan Vincent Pattino
v
Martin Cottam t/as Sunland Auto Group

APPLICATION NUMBER:   OCL024-12

MATTER TYPE: Other civil dispute matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Peta Stilgoe, Senior Member

DELIVERED ON: 19 July 2012

DELIVERED AT: Brisbane

ORDERS MADE:     The application is dismissed.

CATCHWORDS: 

MOTOR DEALER – CLAIM AGAINST THE FUND – where dealer failed to ensure clear title to car – where car encumbered to another financier – where no claim by other financier – where claimant retains possession of car – whether claimant suffered financial loss

Property Agents and Motor Dealers Act 2000, ss 295(2), 470, 488, 490(2)

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

1. On 29 January 2011, Mr Pattino bought a Honda CRV from Mr Cottam.  Mr Pattino paid for the car by bank cheque.  Mr Cottam was a licensed motor dealer at the time of the transaction.

2. In April 2011, Mr Pattino applied to IMB Security for finance against the Honda.  At that time, Mr Pattino found out that the car was encumbered to ANZ.  Mr Pattino has provided a copy of a REVS search that confirms the encumbrance.

3. Mr Pattino made a claim on the statutory claim fund for $24,000, the price paid for the car, plus legal costs.  Mr Cottam received notice of the claim by letter dated 18 January 2012.

4. The tribunal is required to determine whether there should be a payment from the fund. Section 488 of the Property Agents and Motor Dealers Act2000 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.

1. 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).

2. 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

1. A motor dealer is required to ensure that a buyer receives clear title to a motor vehicle at the time property in the vehicle passes to the buyer[4]. The failure to provide clear title is an “event” under s 470(1).

   [4] Section 295(2).

2. I am satisfied that Mr Cottam did not ensure that Mr Pattino received clear title to the car when property in the vehicle passed to him and that there is an “event” within s 470(1).

Financial loss

1. Although the car is subject to an encumbrance to ANZ, Mr Pattino retains possession if it and, to date, has not been asked to clear the debt owing to that financier.

[10]  There are letters from Mr Pattino’s lawyer to the Office of Fair Trading advising that Mr Pattino is trying to negotiate a payout, but there is no evidence of what the payout figure might be.  The Act does not allow for the payment of compensation “in case” a claim is made in the future; I must be satisfied that Mr Pattino, in fact, has suffered a financial loss.

[11]  Because Mr Pattino retains possession of the Honda, and there has been no claim from ANZ, I am not satisfied that Mr Pattino has suffered a financial loss because of Mr Cottam’s breach of the Act in failing to ensure clear title.

[12]  I am not presently minded to allow any payment for legal fees incurred by Mr Pattino.  Those costs must be incidental to a primary claim for financial loss through the absence of clear title.

[13]  Mr Pattino may make a claim against the fund within the earlier of: one year after he became aware that he suffered financial loss; or three years from the happening of the event that caused the loss.  The event that caused the loss was the failure to pass clear title, which occurred on 29 January 2011.  In the event that he does suffer a financial loss, Mr Pattino has until January 2014 to make a claim.  At the moment, his claim is premature.

Orders

[14]  The application is dismissed.