Pennell v P S Business Holdings Pty Ltd
[2012] QCAT 555
•5 November 2012
| CITATION: | Pennell v P S Business Holdings Pty Ltd and Anor [2012] QCAT 555 |
| PARTIES: | Scott Pennell |
| v | |
| P.S. Business Holdings Pty Ltd t/as A1 Nerang Auto Care Paul David Smith |
| APPLICATION NUMBER: | OCL074-12 |
| MATTER TYPE: | Other civil dispute matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Peta Stilgoe, Senior Member |
| DELIVERED ON: | 5 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 $12,496.10. [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 Scott Pennell the sum of $12,496.10 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 Scott Pennell. [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 $12,496.10 to the Chief Executive, Department of Justice and Attorney General. |
| CATCHWORDS: | MOTOR DEALER – where falsified odometer reading – where claim against the statutory fund Property Agents and Motor Dealers Act 2000, ss 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
Mr Pennell bought a 2005 Holden VZ S Pack utility from Mr Smith. Mr Pennell paid Mr Smith $18,000 and received a receipt for the deposit from A1 Nerang Auto Care. P S Business Holdings Pty Ltd, now in liquidation, traded as A1 Nerang Auto Care.
Mr Smith presented the ute with an odometer reading of 44,000 km. In fact, the ute was a 2004 model, a repairable write off, and the odometer had been wound back from over 121,000 km. The true value of the ute at the time of purchase was $6,000.
Mr Pennell made a claim on the statutory claim fund for $12,496.10. 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 Pennell suffered financial loss because of the event.
I must also take into account any amount Mr Pennell might reasonably have received or recovered if not for his neglect or default and any amount ordered to be paid to Mr Pennell as compensation to the claimant under sections 530A, 572D or 592A of PAMDA[2].
Finally in allowing a claim I must decide the amount of Mr Pennell’s financial loss and name the person who is liable for the loss[3].
The event
[1] Section 488(2) Property Agents and Motor Dealers Act 2000.
[2] Section 488(3)(a).
[3] Section 488(3)(b) and (c).
Winding back an odometer on a car for sale is false and misleading. Representing a car as a 2005 model, when it is a 2004 model, is a false and misleading representation. The licensee making a false or misleading representation in relation to the sale of property by a licensee[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 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 ute with a false odometer reading is an “event” within s 470(1).
Financial loss
I am satisfied that Mr Pennell suffered a financial loss because of Mr Smith’s breach of the Act.
Mr Pennell claims the difference between the sale price of the car and the true value ($12,000) plus the cost of obtaining a valuation ($220) plus the cost of resetting the odometer ($276.10). He has also claimed, but not quantified, the cost of repairs to the ute. I am satisfied that $12,496.10 is a proper assessment of Mr Pennell’s loss.
Other matters
[10]I am required to take into account any amount Mr Pennell may have received or recovered if not for his neglect or default.
[11]There is no evidence to suggest that Mr Pennell would have been able to receive or recover any amount to reduce his loss if he had taken any different action.
Who is liable for the loss?
[12]For the reasons I have identified at [12], both P S Business Holdings and Mr Smith are responsible for Mr Pennell’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 $12,496.10.
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 Scott Pennell the sum of $12,496.10 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 David Smith are named as the persons responsible for the financial loss of Scott Pennell.
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 $12,496.10 to the Chief Executive, Department of Justice and Attorney General.
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