Secure Funding Pty Ltd v Mascotbury Pty Ltd t/a Brisbane Auto Centre & Bazvand (No 1)

[2010] QCAT 655

CITATION: Secure Funding Pty Ltd v Mascotbury Pty Ltd t/a Brisbane Auto Centre & Bazvand (No 1) [2010] QCAT 655

PARTIES:	Secure Funding Pty Ltd Ref: 1270371 & 1227467
v
Mascotbury Pty Ltd trading as Brisbane Auto Centre And Djalalddin Bazvand And Homa Bazvand

APPLICATION NUMBER:   OCL084-10    

MATTER TYPE: Other civil dispute matters

HEARING DATE:      21 December 2010

HEARD AT:     Decision on the papers

DECISION OF: Ms Peta Stilgoe

DELIVERED ON: 21 December 2010

DELIVERED AT:       Brisbane

ORDERS MADE: The application is dismissed.

CATCHWORDS : 

MOTOR DEALERS – where financier did not receive payout of loan when vehicle allegedly traded – where financier took no action for five months

Property Agents and Motor Dealers Act 2000 sub section 470, 488

APPEARANCES and REPRESENTATION (if any):

This matter was heard on the papers in accordance with section 32 of the

Queensland Civil and Administrative Tribunal Act 2009

REASONS FOR DECISION

1. Secure Funding Pty Ltd (“Secure”) has made a claim on the statutory fund for $13,618.13. It says that the basis of the claim is as follows:

aIn October 2006, Liberty Funding Pty Ltd financed the sale of a Kia Sportage through Brisbane Auto Centre.

bThe Kia was traded back through Brisbane Auto Centre in October 2007. Secure did not receive a payout of the finance contract.

cOn 8 January 2008, Secure’s client asked that it cancel their direct debit as the loan should have been paid out.

dAn officer from Secure spoke to an officer from “Capital Corp/Brisbane Auto Centre” on 10 January 2008 in which it was advised that the loan would be paid out within seven days. At that time, the loan balance was $12,023.27.

eSecure did nothing further about the payout for the loan until the account fell into arrears, in June 2008.

fThe Kia cannot be recovered, the loan has not been paid out, and the account is in debit for $13,618.13.

1. The Tribunal may allow a claim for compensation only if it is satisfied, on the balance of probabilities[1]:

aThat an event mentioned in section 470(1) of the Property Agents and Motor Dealers Act 2000 (“PAMDA”) happened.

bThe claimant suffered financial loss because of the happening of the event.

[1] Section 488 Property Agents and Motor Dealers Act 2000 (“PAMDA”)

1. Secure has not articulated the “relevant event” on which it relies. It is implicit in its submissions that it is relying on section 470(1)(e) of the Property Agents and Motor Dealers Act 2000:

   “a stealing, misappropriation or misapplication by a relevant person of property entrusted to the person as agent for someone else in the person’s capacity as a relevant person “

2. It appears that Liberty Funding Pty Ltd has changed its name to Secure Funding Pty Ltd but the Tribunal has not been provided with any evidence to this effect. There are some other problems with Secure’s claim:

aSecure has not provided the Tribunal with a copy of the loan account to verify the amount outstanding.

bThe copy of the REVS certificate provided to the Tribunal does not, on its face, demonstrate that a charge was registered over the Kia.

cThere is no evidence of the trade in to Brisbane Auto Centre in 2008. Significantly, Secure has not obtained any statement from the original purchasers to verify the fact that they traded the Kia in 2008.

1. Put shortly, there is simply no cogent evidence to support Secure’s claim.

2. Further, Secure has failed to mitigate its loss:

aIt apparently acted on a telephone call from the original purchaser when it cancelled the direct debit. It did not ask for written verification of the fact that the car had been traded (or, if it did, this has not been provided to the Tribunal).

bIt cancelled the direct debit before it received the payout.

cIt did not review its account for five months because the account was, in that time, in credit.

dEven though it appeared to know a financier, Capital Corp, was involved in the trade, it did not follow up the financier or question why the new financier did not pay Secure direct.

1. The presence of the statutory fund is no reason for financiers of motor vehicles to be complacent. There is no reason to think that the fund will be available to cover a finance company’s losses if it fails in its due diligence, does not take appropriate action to secure its loans or fails to mitigate its loss.

2. Similarly, a financier should not expect that the Tribunal will order compensation from the statutory fund based upon the flimsiest of material. While it is true that the Tribunal is required to deal with matters in a way that is informal and quick[2] the fact remains that the tribunal is dealing with public money. Finance companies are, or should be, well versed in the requirements of business and the need for adequate documentation. The Tribunal is entitled to expect thoughtful, properly articulated claims that are supported by appropriate evidence. Secure has failed to meet this standard and, therefore, I am not satisfied on the balance of probabilities, that its loss occurred as a result of an event mentioned in section 470(1) of PAMDA.

   [2] s3(b) Queensland Civil and Administrative Tribunal Act 2009

3. The application should be dismissed.