Racecentre Pty Ltd v PS Property Holdings Pty Ltd
[2013] QCATA 310
•31 October 2013
| CITATION: | Racecentre Pty Ltd v PS Property Holdings Pty Ltd [2013] QCATA 310 |
| PARTIES: | Racecentre Pty Ltd (Appellant) |
| v | |
| PS Property Holdings Pty Ltd Paul David Smith (Respondents) |
| APPLICATION NUMBER: | APL298-13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Richard Oliver, Senior Member Michelle Howard, Member |
| DELIVERED ON: | 31 October 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal is granted. 2. The appeal is allowed. 3. The decision of the Tribunal dated 30 May 2013 is set aside. 4. The proceeding shall be reheard by the Tribunal by another adjudicator. 5. Mr Murphy must file and serve any further material to be relied upon at the rehearing within 21 days of receiving this decision; 6. The respondents must file and serve any further material to be relied upon at the rehearing within 14 days of the service upon them of Mr Murphy’s further material. 7. That the proceeding be listed for hearing on a date to be fixed. |
| CATCHWORDS: | APPEAL AND LEAVE TO APPEAL- MINOR CIVIL DISPUTE-CONTRACT - ALLEGATION OF FRAUDULENT MISREPRESENTATION- |
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
Racecentre Pty Ltd, of which Mr Murphy is a director, purchased a Holden Commodore from PS Property Holdings Pty Ltd for $29,000 on 19 May 2011. It had only some 5000 kilometres on the odometer. Mr Murphy says that Mr Smith, a former director and current shareholder of PS Property Holdings, represented the vehicle to him as an ‘as new’ ex-executive vehicle owned by Holden for whom he claimed to work or to do work. This is consistent with Mr Smith’s evidence. At the hearing, Mr Smith spoke of the car being practically brand new and that Mr Murphy had received a very significant saving, getting an as new vehicle for about half the cost. In making that assertion, he said that the cost of a new vehicle including on-road costs was $43,860, and added on various other amounts including $3,500 for the ‘upgraded’ wheels and tyres on the vehicle.
Initially when he took possession of the car, Mr Murphy noted fresh paint on the door. When he approached Mr Smith about it, he says Mr Smith told him that a scratch had been repaired. Later on 22 May 2011, he became aware that Mr Smith was being prosecuted for offences relating to dishonest dealing in motor vehicles, including winding back speedometers. He became concerned about the vehicle he had bought.
When Mr Murphy subsequently had the vehicle serviced the mechanic pointed out items of concern which had been noted during the service. A copy of his written report was before the Tribunal. The extensive list included that the vehicle had undergone major body repairs; the alternator was not original (a second hand unit was fitted); the harmonic balancer was fatigued which may indicate that the odometer reading was not correct); the service books were not original and the cover containing dealer information had been removed; the condition of the under-carriage did not match the low kilometres on the odometer; various wiring and other components were not correctly retained.
About a year later, Racecentre made a claim in the Tribunal’s Minor Civil Disputes jurisdiction seeking orders that PS Property Holdings or Mr Smith take the car back and refund his money. The claim was based on misrepresentations made by Mr Smith. He says that he had in the meantime attempted to have Paul Smith take the car back and refund his money.
Mr Murphy had contacted an investigator, Tom Lowther, whom he described as a Queensland Government investigator, who advised him that the vehicle was originally registered in WA, and had subsequently been purchased as a repairable write-off by Mr Smith. He did not have any documentary evidence of this assertion at the hearing, saying that as a member of the public he could not access the records. He did however endeavour to provide a telephone number for Mr Lowther to be contacted during the hearing. However, the Member said she would be making the decision based on the evidence presented.
Mr Smith argued that there was nothing in writing to say that the car had been written off. He estimated that Mr Murphy had ‘saved’ about $20,000. He asserted that a finance representative of the ANZ Bank had inspected and somehow approved the vehicle, although ANZ was only the financing institution. He claimed that to his knowledge the vehicle had not been extensively reworked, nor registered in WA. He claimed it was a Holden company car.
He relied upon searches to corroborate this. However, those searches relate only to whether the vehicle was encumbered at the date of the searches. In response to Mr Murphy’s assertions that the work was done to repair the vehicle in his workshop, he asserted variously that PS Holdings was just a business he worked for and that he did not believe Mr Murphy had proof that ‘we’ had worked on the vehicle. He later acknowledged that he had previously been a director (2001 to 2010) and was a current shareholder of PS Holdings. He asserted that PS Holdings had been the registered owner of the vehicle and was not a motor dealer regulated by PAMDA.
In response to the issues raised in the report by the service mechanic, Mr Smith asserted that he was a mechanic and he had inspected and not seen anything of concern. He claimed that the vehicle came from Holden fleet and that they (Holden) took the front cover off the service book so that there was no ‘come back’ on them. Mr Murphy said he had bought cars at government auctions and the dealer information was always there.
The Member who determined the claim considered that there was no evidence before the Tribunal that the vehicle was a write-off, nor that PS Holdings was not a motor dealer although she thought there were some issues about the latter. She concluded that she did not have sufficient evidence to find against PS Property Holdings. She dismissed the application.
Racecentre has now filed an application for leave to appeal and appeal.
Racecentre now seeks to rely upon evidence which was not presented to the original Tribunal, namely an email which confirms that the vehicle was purchased as repairable write-off by PS Property Holdings. He also claims the Tribunal erred in finding he had not provided evidence of ‘extra repairs’. He seeks orders for return of the vehicle and refund or that PS Property Holdings pay him the difference in value between the vehicle as is, as against the vehicle it was represented to be. Further he submits that the Tribunal should prosecute Paul Smith for lying under oath.
The application for leave to appeal and appeal
Because the proceeding is a minor civil dispute, leave to appeal is required.
[14] The question whether or not leave to appeal should be granted is usually addressed according to established principles: Is there a reasonably arguable case of error in the primary decision?[1] Is there a reasonable prospect that the applicant will obtain substantive relief?[2] Is leave necessary to correct a substantial injustice to the applicant caused by some error?[3] Is there a question of general importance upon which further argument, and a decision of the appellate court or tribunal, would be to the public advantage?[4]
[1] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[2] Cachia v Grech [2009] NSWCA 232 at 2.
[3] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[4]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580.
[15]The distinction between questions of law and fact is not always clear, and courts have not found it easy to formulate a satisfactory test of universal application.[5] A concise and helpful summary appears, in my view, in this passage from a decision of the Supreme Court of Canada:[6]
Briefly stated, questions of law are questions about what the correct legal test is; questions of fact are questions about what actually took place between the parties; and questions of mixed law and fact are questions about whether the facts satisfy the legal tests.[7]
The test for whether the Appeal Tribunal should accept fresh evidence is whether „… it could not, by reasonable diligence, have been obtained for the original hearing, is credible, and might have produced an opposite result.‟[8]
[5] See Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 at 394.
[6] Canada (Director of Investigation and Research) v Southam Inc [1997] 1 SCR 748.
[7]Canada (Director of Investigation and Research) v Southam Inc [1997] 1 SCR 748 at [35] per Iacobucci J.
[8] PS Business Holdings v Duncan & Anor [2010] QCATA 19 at [16].
Conclusions
Racecentre’s reasons for seeking to appeal appear broadly to be related to considering it was not fairly heard, particularly concerning the issues about whether the vehicle was a repairable write-off, and that the adjudicator was in error that the information Mr Murphy advanced came from a private investigator rather than a Queensland Government investigator. Additionally, it says the adjudicator failed to take into account the independent evidence presented by it, from the mechanic who serviced the vehicle and from Holden and that attention was focussed on irrelevant matters in determining the claim concerning whether the respondents were motor dealers.
The claim made by Racecentre is in effect a claim in contract for fraudulent misrepresentation. The issues for consideration were therefore, whether a false representation was made, knowingly or without belief in its truth with the intention that it be acted upon by a party who was thereby induced to act upon it. If so, then it fell to be considered whether the person to whom the representation was made was entitled to rescind the contract (which Mr Murphy suggests Racecentre tried to do for about a year before commencing proceedings) and a refund of purchase monies, or, alternatively, determine damages for the losses suffered as a result of the misrepresentation.
Although the pressure of workload in a busy list must be acknowledged, the learned adjudicator did not identify the nature of the claim she was dealing with. She seemed to place significant weight on the fact that there was no evidence that the vehicle was a write-off. If evidence of this had been available, this may have gone to strengthening Racecentre’s case that there had been misrepresentation. However, the evidence she had was that Mr Murphy was led to believe that Racecentre was purchasing an as new vehicle from PS Property Holdings, and indeed, Mr Smith’s evidence was that Mr Murphy received an almost new vehicle for approximately half the new price.
Yet, she did not find that a representation had been made that the vehicle was in as new or almost new condition, and if so, whether that representation was fraudulent. Instead she focussed on whether or not there was evidence the vehicle was a write-off. It was not critical, it seems to me, whether evidence was available about whether the vehicle was a write-off. The issue was whether the vehicle was as new or almost new.
Also, the learned adjudicator was concerned about whether PS Property Holdings and Mr Smith, or either of them, were motor dealers. Racecentre does not appear to allege that they were, although I acknowledge that the evidence reveals a basis for the adjudicator’s expressed reservations about the status. She then makes an irrelevant finding, given the nature of the claim, that had the respondent been a motor dealer there may have been some scope ‘under the cooling off period.’
The adjudicator acknowledged the L & J Automotive Report setting out mechanical issues, although not the Holden dealership invoice which was before her which also set out some electrical issues. Somewhat inexplicably she later says when discussing those issues, and Mr Murphy’s evidence that trims and other parts were falling off the car, that Mr Murphy has provided no evidence of this to the Tribunal. She observes that there is no evidence beyond ‘his word versus the respondent’s word and that they are significantly disputed in terms of the exchanges which took place between the parties.’ This is not correct. She had evidence from 2 independent mechanics about issues with the car, but apparently dismissed them on an unrelated basis, namely that there was a dispute about exchanges between the parties. She failed to explain her treatment of the independent evidence, and indeed gave it no weight without explaining why.
Other than the irrelevant finding about the cooling off period discussed above, the only findings made were that the vehicle was purchased on a particular day, and that concerns about it arose 3 days later.
In our view, the adjudicator erred in law in that she failed to identify the correct legal issues she was required to address. She therefore addressed the wrong issues in considering the evidence. Further, she did not explain adequately her treatment of independent evidence, or alternatively despite referring to it, have regard to it in reaching her conclusions.
In view of these conclusions, it is not necessary for us to consider the other issues raised by Racecentre. Mr Murphy is entitled to have his claim considered according to law.
Leave to appeal should be granted and as the adjudicator made an error of law, it must be reheard. We return it to the Tribunal for rehearing by another adjudicator. We direct that Mr Murphy file and serve any further evidence he wishes to rely upon at the rehearing within 21 days. The respondents may file and serve any further evidence they rely upon within 14 days of Mr Murphy filing his evidence.
For the benefit of the parties, we make the observation that documents filed in the appeal proceedings in the Appeal Tribunal are not also on the Tribunal file. Therefore, the email from Tom Lowther and the evidence about loss occasioned by the misrepresentation filed in the appeal proceedings by Mr Murphy must be filed on the Tribunal file, as must the respondent’s further statement, if it is to be relied upon at the rehearing.
The parties are also at liberty to file any additional evidence they wish to rely upon at the rehearing.
0
2
0