Powell v Sunshine CCC Pty Ltd T/a Sunshine Coast Cars and Caravans & Ors
[2014] QCAT 4
•9 January 2014
| CITATION: | Powell v Sunshine CCC Pty Ltd t/a Sunshine Coast Cars and Caravans & Ors [2014] QCAT 004 |
| PARTIES: | Mr Maurice Powell (Applicant) |
| v | |
| Sunshine CCC Pty Ltd t/a Sunshine Coast Cars and Caravans Mr Robert Lawrence Kelly Mrs Gay Suzanne Kelly (Respondent) |
| APPLICATION NUMBER: | GAR224-13 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Member Paratz |
| DELIVERED ON: | 9 January 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Pursuant to section 488 of the Property Agents and Motor Dealers Act 2000, the claim is allowed in the sum of $31,075.20. 2. Pursuant to section 489 of the Property Agents and Motor Dealers Act 2000, at the expiration of the appeal period the Chief Executive must pay to the Applicant the sum of $31,075.20 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 section 488(3)(c) of the Property Agents and Motor Dealers Act 2000 the Respondents, Sunshine CCC Pty Ltd and Robert Lawrence Kelly and Gay Suzanne Kelly, are named liable for the financial loss of the applicant. 4. Upon payment from the Claim Fund and pursuant to sections 490 and 530 of the Property Agents and Motor Dealers Act 2000, Sunshine CCC Pty Ltd and Robert Lawrence Kelly and Gay Suzanne Kelly are jointly and severally liable to reimburse the Claim Fund by paying the sum of $31,075.20 to the Chief Executive, Department of Justice and Attorney-General. |
| CATCHWORDS: | Motor dealer – sale of vehicle on commission – proceeds of sale not passed on – no valid appointment, so no commission allowed – GST not payable - claim on fund allowed |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
Sunshine CCC Pty Ltd (the company) traded as Sunshine Coast Cars and Caravans at Nambour in Queensland, and was licensed as a motor dealer.
Mr Powell placed his 2005 Toyota Landcruiser Wagon and Regal “Super Cruise” caravan for sale by consignment with the company on 24 March 2011.
The Directors of the company at all relevant times, as shown in the records of the Australian Securities and Investment Commission, were Robert Lawrence Kelly and Gay Suzanne Kelly.
Mr Kelly advised Mr Powell on 17 December 2011 that a deposit of $25,000 had been received for the purchase of the Landcruiser. This amount was received by Mr Powell on 22 December 2011.
Mr Kelly then advised Mr Powell on 30 January 2012 that the bank accounts of the company had been frozen, and that the company’s bank was not allowing any funds to be paid from them. The balance of the proceeds from the sale of the Landcruiser were said to be included in the funds.
Mr Powell agreed on 12 April 2012 that the cost of some repairs to the caravan would be taken from the balance moneys held in respect of the Landcruiser. The repairs were effected on 9 May 2012 at a cost of $2,424.80.
The balance of the sale proceeds of the Landcruiser were never paid to Mr Powell.
The Regal caravan was moved to another dealer in October 2012.
The company sent Mr Powell a “Vendors Statement to Motor Dealer” dated 9 December 2011 which showed Mr Powell having sold the Landcruiser to Sunshine Coast Cars and Caravans for $49,500. It noted that GST of $4,500 was to be deducted, and that an amount of $25,000 had been paid on 22 December 2011, leaving a balance owing of $24,500. The statement is confusing, as it is dated before the initial payment was made.
A claim was lodged against the Claim Fund by Mr Powell in PAMD Form 50 on 12 February 2013 for $22,057.20. Mr Powell arrived at that figure by deducting the cost of caravan repairs of $2,424.80 from the alleged balance owing by the company of $24,500.
A copy of the claim and supporting documentation was forwarded to the company and Mr and Mrs Kelly on 26 February 2013, but no response was received.
The Brisbane Investigations Branch of the Department have advised that their inquiries reveal that:
· The Landcruiser had been purchased by Mr Allan Galbraith on 9 December 2011;
· The vehicle purchase price was $58,500;
· The purchase price was paid by a deposit of $2,000 on 9 November 2011, and a balance of $56,500 on 9 December 2011.
The Chief Executive submits that in failing to remit the balance of proceeds of sale from the sale of the Landcruiser, that the company and Mr and Mrs Kelly have contravened a claimable provision of the Property Agents and Motor Dealers Act 2000 (the Act) and have caused Mr Powell to suffer a financial loss as a result, being ss 470(1)(e), 573 and/or Chapter 12, part 1.
The Chief Executive notes that there was no valid appointment in place between Mr Powell and the company, and that pursuant to s 284 and s 285 of the Act, that the Company is not entitled to retain any commission in relation to the sale of the vehicle.
The Chief Executive submits that Mr Powell’s financial loss can be calculated as the sale price ($58,500) less offsetting caravan repair costs ($2,424.80), less sale proceeds already received ($25,000), leaving an outstanding balance owing of $31,075.20.
I gave Directions on 8 August 2013 requiring Mr Powell to file any material by 2 September 2012; and any reply to a response by 28 October 2013; and that if there was no successful application for an oral hearing for the application to be heard on the papers not before 29 October 2013.
I also directed the company and Mr and Mrs Kelly to file any material in response by 30 September 2013.
No further material has been filed by any party, or any request made for an oral hearing. The matter is therefore being determined on the papers.
The submissions of the Chief Executive have not been challenged by any party.
I am satisfied that GST should not be deducted from the financial loss suffered by Mr Powell as he is now in the category of a private seller to the company, and no GST would be payable by him on such a sale.
I am also satisfied that there is no entitlement to deduct commission from the sale as there was no valid appointment.
Consequently, I am satisfied that Mr Powell has suffered a financial loss in the amount of $31,075.20, which is claimable under the Act, (even though that amount is greater than the amount that Mr Powell claimed in his PAMD Form 50) as submitted by the Chief Executive.
I am also satisfied that Robert Lawrence Kelly and Gay Suzanne Kelly, as executive officers of the company, are persons who are liable to reimburse the fund under s 490(2) of the Act, and should be named as persons who are liable for the Claimant’s financial loss pursuant to s 530(b) and s 488(3)(c) of the Act[1], together with the company.
[1] Williams v Kaech [2008] QCA 176.
Accordingly I find that:
1. Pursuant to section 488 of the Property Agents and Motor Dealers Act 2000, the claim is allowed in the sum of $31,075.20.
2. Pursuant to section 489 of the Property Agents and Motor Dealers Act 2000, at the expiration of the appeal period the Chief Executive must pay to the Applicant the sum of $31,075.20 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 section 488(3)(c) of the Property Agents and Motor Dealers Act 2000 the Respondents, Sunshine CCC Pty Ltd and Robert Lawrence Kelly and Gay Suzanne Kelly, are named liable for the financial loss of the applicant.
4. Upon payment from the Claim Fund and pursuant to sections 490 and 530 of the Property Agents and Motor Dealers Act 2000, Sunshine CCC Pty Ltd and Robert Lawrence Kelly and Gay Suzanne Kelly are jointly and severally liable to reimburse the Claim Fund by paying the sum of $31,075.20 to the Chief Executive, Department of Justice and Attorney-General.
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