Rees v Mighty Enterprises Pty Ltd
[2014] QCAT 629
•3 December 2014
| CITATION: | Rees v Mighty Enterprises Pty Ltd and ors [2014] QCAT 629 |
| PARTIES: | Stephen Rees (Applicant) |
| v | |
| Mighty Enterprises Pty Ltd Graham Douglas Philp Pam Philp Michael John Vogelsang Lance Gregory Royston (Respondents) |
| APPLICATION NUMBER: | GAR170-14 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | On the Papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Member Paratz |
| DELIVERED ON: | 3 December 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Stephen Rees is to file in the Tribunal one (1) copy and give a copy to Mighty Enterprises Pty Ltd, Graham Douglas Philp, Pam Philp, Lance Gregory Royston and the Chief Executive Department of Justice and Attorney-General one (1) copy of further submissions as to the following issues:- (a) The reason that the Finance Agreement between Stephen Rees and Esanda Finance was terminated. (b) Whether Lance Royston was an employee of Mighty Enterprises Pty Ltd at any, and which, relevant times. (c) Whether Graham Douglas Philp and Pam Philp were executive officers of Mighty Enterprises Pty Ltd at all relevant times. (d) The wording of the “spec sheet” which was displayed on the vehicle when it was presented for sale. (e) Why Stephen Rees did not claim on the Statutory Warranty within the prescribed period. (f) The present whereabouts and condition of the vehicle. (g) The extent and nature of financial loss suffered by Stephen Rees by 4:00pm on 24 December 2014. 2. Mighty Enterprises Pty Ltd, Graham Douglas Philp, Pam Philp, Lance Gregory Royston and the Chief Executive Department of Justice and Attorney-General are to file in the Tribunal one (1) copy and give to Stephen Rees one (1) copy of its submissions in response and submissions on the issues, by 4:00pm on 30 January 2015 3. Michael John Vogelsang is removed as a respondent to the proceedings. | ||
| CATCHWORDS: | PROPERTY AGENTS AND MOTOR DEALERS ACT 2000 – CLAIM AGAINST FUND – MISREPRESENTATION – Where a customer bought a vehicle from a car dealer who allegedly represented it was covered by a new car warranty – where the manufacturer declined to repair under the warranty – where further submissions are required for a decision on the papers – where directions were given for further submissions | ||
APPEARANCES:
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
Stephen Rees filed a claim on 3 October 2013 against the Claim Fund maintained under the Property Agents and Motor Dealers Act 2000 (Qld) for $38,893.60.
The claim relates to the purchase by him on or about 9 March 2012, of a 2007 Mazda CX-7 vehicle from Mighty Enterprises Pty Ltd which traded as “Wheels That Work”.
The Chief Executive of the Department of Justice and Attorney-General has processed the claim in accordance with the Act, and referred it to the Tribunal on 19 May 2014 for determination.
The respondents are named as Mighty Enterprises Pty Ltd (the business owner); Graham Philp (a Director of the Company); Pam Philp ( a Director of the Company); Michael Vogelsang (an employee of the company); and Lance Royston (an employee of the company).
The Chief Executive filed submissions on 19 May 2014 in relation to the claim.
Directions were made on 5 June 2014 for the filing of submissions and responses by the parties by dates that were set out; that if any party wanted an oral hearing that they were to file a written request by 3 July 2014, and that if there was no application for an oral hearing, or the application was made and refused, that the application would be determined on the papers not before 28 August 2014.
No party filed a request for an oral hearing. In reviewing the submissions however, it is clear that there are significant disputes of fact between the parties, and uncertainty as to some factual situations, that require further submissions in order for the Tribunal to be able to make a proper determination.
The disputed and uncertain factual situations are:-
(a)The reason that the Finance Agreement between Stephen Rees and Esanda Finance was terminated.
(b)Whether Lance Royston was an employee of Mighty Enterprises Pty Ltd at any, and which, relevant times.
(c)Whether Graham Douglas Philp and Pam Philp were executive officers of Mighty Enterprises Pty Ltd at all relevant times.
(d)The wording of the “spec sheet” which was displayed on the vehicle when it was presented for sale.
(e)Why Stephen Rees did not claim on the Statutory Warranty within the prescribed period.
(f)The present whereabouts and condition of the vehicle.
(g)The extent and nature of financial loss suffered by Stephen Rees
In these circumstances, it is not possible or appropriate to determine the matter on the papers at this stage on the material currently available.
I will give Directions as to the filing of further particular material and responses as set out below. If the factual situations are then still in dispute, and it is still not appropriate to determine the matter on the papers, I will then set the matter for an oral hearing.
The submissions of the Chief Executive[1] are that it is not alleged that Michael Vogelsang was an executive officer of the company at any relevant time, and that he did not make any representations to Mr Rees at the time of purchase. The Chief Executive submits that he should be removed as a Respondent.
[1]Submissions Chief Executive filed 19 May 2014 para 21.
No basis appears on any of the material for Mr Vogelsang to be a respondent in this matter, and I will order that he be removed as a Respondent pursuant to s 47(2)(b)(ii) QCAT Act.
I direct that:-
Stephen Rees is to file in the Tribunal one (1) copy and give a copy to Mighty Enterprises Pty Ltd, Graham Douglas Philp, Pam Philp, Lance Gregory Royston and the Chief Executive Department of Justice and Attorney-General one (1) copy of further submissions as to the following issues,:-
(a)The reason that the Finance Agreement between Stephen Rees and Esanda Finance was terminated.
(b)Whether Lance Royston was an employee of Mighty Enterprises Pty Ltd at any, and which, relevant times.
(c)Whether Graham Douglas Philp and Pam Philp were executive officers of Mighty Enterprises Pty Ltd at all relevant times.
(d)The wording of the “spec sheet” which was displayed on the vehicle when it was presented for sale.
(e)Why Stephen Rees did not claim on the Statutory Warranty within the prescribed period.
(f)The present whereabouts and condition of the vehicle.
(g)The extent and nature of financial loss suffered by Stephen Rees
by 4:00pm on 24 December 2014
Mighty Enterprises Pty Ltd, Graham Douglas Philp, Pam Philp, Lance Gregory Royston and the Chief Executive Department of Justice and Attorney-General are to file in the Tribunal one (1) copy and give to Stephen Rees one (1) copy of its submissions in response and submissions on the issues,
by 4:00pm on 30 January 2015.
Michael John Vogelsang is removed as a respondent to the proceedings.
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