PS Business Holdings Pty Ltd v Duncan & Anor
[2010] QCATA 19
•27 May 2010
| CITATION: | PS Business Holdings Pty Ltd v Duncan & Anor [2010] QCATA 19 |
| PARTIES: | PS Business Holdings Pty Ltd and Paul David Smith (Applicants) |
| v | |
| Anthony Duncan and Andrea Gannon (Respondents) |
APPLICATION NUMBER: APL047-10
| MATTER TYPE: |
HEARING DATE: On the papers
HEARD AT: Brisbane
| DECISION OF: | President |
DELIVERED ON: 27 May 2010
DELIVERED AT: Brisbane
ORDERS MADE: Application for leave to appeal dismissed.
| CATCHWORDS : | MINOR CIVIL DISPUTE – CONTRACTUAL DISPUTE – FRAUDULENT MISREPRESENTATION – DAMAGES – where respondents purchased vehicle from appellant – where adjudicator found that appellant fraudulently altered odometer reading – where appellant ordered to refund respondents difference in true value of vehicle taking into account correct odometer reading, and pay for costs incurred for repair of vehicle and correction of odometer reading – whether award excessive or unreasonable MINOR CIVIL DISPUTE – PRESENTING NEW EVIDENCE – where appellant claimed new evidence in application for leave to appeal – where no new evidence introduced – whether new evidence that was not available in original hearing would have produced opposite result if allowed in appeal Queensland Civil and Administrative Act 2009, s 142(3)(a)(i) Alati v Kruger (1995) 94 CLR 216, cited |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: |
| RESPONDENT: |
REASONS FOR DECISION
In July 2009 Mr Duncan and Ms Gannon purchased a Holden motor vehicle from A1 Nerang Auto Care, and Mr Smith (the sales invoice shows both names) for $16,500. At the time of purchase the vehicle odometer showed 39,900 kms.
Later, when the vehicle revealed some mechanical problems Mr Duncan and Ms Gannon discovered that it had been sold at auction just three weeks earlier, with an odometer reading of 190,803 kms. They contacted Mr Smith and asked him to take back the vehicle. He declined. They had mechanical repairs performed, at considerable cost. Then, they brought proceedings in QCAT against PS Business Holdings Pty Ltd (a company in which Mr Smith was a director and shareholder), and Mr Smith himself, who are jointly registered as the owners of the business name ‘A1 Nerang Auto Care’.
After a hearing on 10 March 2008 a QCAT adjudicator ordered that the respondents pay Mr Duncan and Ms Gannon $15,667.80 calculated as $7,000 for the difference between the price they paid and the true value of the vehicle with its correct odometer reading, $8,120 for repairs, and $547.80 for the cost of having the odometer restored to its correct reading.
PS Business Holdings Pty Ltd has sought leave to appeal that decision. Mr Smith has not, although he prepared and signed submissions in support of the application. Leave to appeal is necessary: Queensland Civil and Administrative Act 2009 (QCAT Act) s 142(3)(a)(i).
Mr Smith’s written submissions contend that the award was excessive; that the valuation of the vehicle upon which the award was based was mistaken, and a significant underestimate; that the repair costs paid by the applicant were excessive and unreasonable; and, that further evidence has become available. That further evidence is said to be:
(a) that the New South Wales Police Service is currently investigating a murder in which the vehicle was involved;
(b) an independent market vehicle valuation; and
(c) detailed repair quotations.
On 13 April 2010 it was ordered that the application for leave to appeal (and the appeal, if leave was granted) would be determined by written submissions from the parties, without oral submissions. Directions were then given for a timetable for the exchange of submissions. Written submissions have been received from both parties. It is plain that Mr Smith received and understood the directions order because his submissions were delivered to QCAT under cover of a note referring to them as “written submissions for appeal” dated 30 April 2010. His written submissions are not, however, accompanied by any documents to support his claims or reveal the substance of his claimed, new evidence.
It is plain from the transcript of the proceedings before the learned adjudicator that Mr Duncan and Ms Gannon had very carefully investigated and prepared their case. They had tracked the history of the vehicle and the transaction through which it was purchased at an auction in Sydney three weeks before they bought it.
Their documentary evidence was overwhelmingly persuasive that:
(a) At the time of their purchase on 18 June 2009 the vehicle had an odometer of 190,803 kms;
(b) the vehicle was purchased three weeks earlier at auction by an entity called “A1 Auto Wholesale”;
(c) that business name is owned by a licensed motor vehicle dealer who, however, swore an affidavit that he did not know Mr Smith and had not given him permission to use the registered business name;
(d) the vehicle was transported from Sydney in a truck owned by the company PS Property Holdings, of which Mr Smith is the sole director;
(e) PS Business Holdings Pty Ltd and Mr Smith are the registered users of the business name A1 Nerang Auto Care;
(f) Mr Smith is the sole director of PS Business Holdings Pty Ltd;
(g) According to the sales invoice/statement the vehicle was purchased from A1 Nerang Auto Care and Paul Smith.
Mr Duncan and Ms Gannon also produced a valuation of the vehicle showing its actual value, at the time of purchase, if it had the correct odometer reading, and a certification from the RACQ that the repair costs they incurred were necessary and reasonable.
Against that, Mr Smith’s evidence before the adjudicator was, the transcript plainly shows, evasive and confusing. His attempts to explain how the odometer reading might have been changed by some other person or entity were implausible and unconvincing. He failed to offer any credible explanation for the change and his answers and statements during the hearing could only have served to exacerbate any concerns the learned adjudicator had about his credibility.
In his submissions in support of the application for leave he has not provided any competing independent valuation, or any new estimate of the repair costs. In their response, Mr Duncan and Ms Gannon reiterate the evidence they adduced before the adjudicator showing, persuasively, that the repairs were necessary and the repair costs fair and reasonable. As to Mr Smith’s general submission that the award was excessive, they point out, correctly, that it constitutes the proper measure of their damages based upon the excessive price they paid, $16,500 plus their repair costs of $8,120.91 and the charge they will incur to have the odometer corrected, $547.80 – less the actual value of the vehicle at the time of purchase of $9,500 – i.e., $15,668.71 (about $1 less than the adjudicator awarded).
The claim brought by Mr Duncan and Ms Gannon is, in effect, for damages for fraudulent misrepresentation arising out of the contract through which they purchased the vehicle. Although the learned adjudicator did not express his conclusions in those terms it is plain he found that the respondents were either instrumental in the changing of the odometer reading[1], or knew of it and either dishonestly, or recklessly, allowed the wrong odometer reading to be represented to the purchasers[2]. Findings to that effect were, for the reasons already discussed, plainly open.
[1]See, e.g., Alati v Kruger (1955) 94 CLR 216
[2]Derry v Peek (1889) 14 App Cas 337; Civil Service Co-op Society of Victoria Ltd v Blyth (1914) 17 CLR 601
The measure of damages in fraud is that which will place the innocent party in the position which would have obtained had the fraud not been committed[3]. For the reasons, again, just discussed the learned adjudicator’s order entirely fits that principle.
[3]Gould v Vaggelas (1984) 157 CLR 215
An applicant for leave to appeal must show a prima facie case of error in the primary decision, and that there is a question of importance upon which further argument and a decision of the appeal tribunal would be to public advantage[4]. Nothing in the application or the transcript of proceedings or the learned adjudicator’s reasons for his decision, delivered at the end of the hearing, suggest any error. The assessment of the respondents’ damages was, as has been shown, in accordance with correct principles. The applicant for leave has not adhered to earlier directions from this appeal tribunal which made it clear that all submissions would be in writing and has not, in particular, attempted to present the further evidence he claims to have.
[4]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577.
The question then arising is whether or not he would, in any event, have been allowed to present that evidence. It is inescapable that he knew, before the adjudicator’s hearing, what the respondents were claiming: their original application seeks orders that he take the car back and refund $16,500 to them, and also pay them the repair costs of $8,000. The matter went to mediation and the mediator recorded the absence of any resolution and, relevantly, that the remaining issues included “current value of vehicle”. It is inescapable, then, that Mr Smith knew before the hearing that the true value of the vehicle, and the repair costs, were in issue.
New evidence will ordinarily only be allowed at an appeal when it could not, by reasonable diligence, have been obtained for the original hearing, is credible, and might have produced an opposite result[5]. Mr Smith knew what the issues were but failed to present evidence to the adjudicator upon which he now seeks to rely. He has refrained, despite clear direction, from producing it now. The evidence adduced by his opponents at the hearing was apparently independent, and persuasive. It is, in these circumstances, highly improbable that whatever he now seeks to rely upon would meet the test.
[5]Council of the City of Greater Wollongong v Cowan (1955) 93 CLR 435
The application for leave to appeal is refused.
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