Smart v Sunshine CCC Pty Ltd (Deregistered)
[2014] QCAT 491
•2 October 2014
| CITATION: | Smart v Sunshine CCC Pty Ltd (Deregistered) and Ors [2014] QCAT 491 |
| PARTIES: | Russell Smart (Appellant) |
| v | |
| Sunshine CCC Pty Ltd (Deregistered) Robert Lawrence Kelly Gay Suzanne Kelly (Respondents) |
| APPLICATION NUMBER: | GAR194-14 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | On the Papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Member Paratz |
| DELIVERED ON: | 2 October 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 $72,000.00. 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 Russell Smart the sum of $72,000.00 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, Sunshine CCC Pty Ltd (Deregistered), Mr Robert Lawrence Kelly and Ms Gay Suzanne Kelly are named liable for the financial loss of Mr Russell Smart. 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 (Deregistered), Mr Robert Lawrence Kelly and Ms Gay Suzanne Kelly are liable to reimburse the Claim Fund by paying the sum of $72,000.00 to the Chief Executive, Department of Justice and Attorney-General. |
| CATCHWORDS: | CLAIM FUND – PAMDA – where a motor dealer failed to pass on proceeds of sale of motor vehicle and caravan left to sell on consignment – where the financial loss was the sale price of the motor vehicle and caravan Property Agents and Motor Dealers Act 2000 (Qld), s 284, s 285, s 470, s 490 |
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 (Qld) (QCAT Act).
REASONS FOR DECISION
Mr Smart left a 2006 Nissan Navara utility and a Kingdom Kensington caravan on consignment with Sunshine CCC Pty Ltd trading as Sunshine Coast Cars and Caravans (Sunshine) on 25 January 2011 to be sold. He then returned to New Zealand.
The executive officers of Sunshine at all material times were Mr Robert Kelly and Ms Gay Kelly.
Mr Kelly advised Mr Smart in October 2011 that the caravan had been sold, and that he had a buyer for the utility. No money was received by Mr Smart at that time. He was in contact with Mr Kelly through 2012, and was told that the banks had frozen the business accounts.
Mr Smart was able to contact Mr Kelly on 18 March 2013 when Mr Kelly informed him that the bank had closed the business down and had seized all their properties.
Mr Smart made a claim on 26 November 2013 against the Fund established under the provisions of the Property Agents and Motor Dealers Act 2000 (Qld) (the Act) in the amount of $70,000 claiming $25,000 for the Nissan Navara and $45,000 for the caravan.
The claim was processed by the Chief Executive in accordance with the Act, and was referred to the Tribunal on 13 June 2014 for determination.
Directions were given on 16 June 2014 for the filing of material, and for a determination on the papers not before 9 September 2014. Submissions were not received from any party. The Directions sent to Sunshine at its last known address were returned to the Registry by an Accountant at that address who advised it no longer acted as Tax Agent for that client, but did not provide any alternate address. This is the decision on the papers.
The Nissan Navara was sold for $25,000 on 15 November 2011.[1] The caravan was sold[2] on 23 August 2011 for $47,000. The total sale price was $72,000.
[1]Statutory declaration C F Dirrmann and S L Dirrmann dated 9 February 2014.
[2]Vehicle Purchase Contract between Sunshine and Robert Simmons.
At the time of placing the vehicle and caravan on consignment, on 25 January 2011, Mr Smart signed a Vendor’s Statement which provided that the Nissan Navara was sold to Sunshine for $25,000, and a separate statement providing that the caravan was sold to Sunshine for $45,000.
Mr Smart however is clear that the arrangement was that the Nissan Navara and caravan were to be sold on consignment. This proposition is supported firstly by the lack of any payment on 25 January 2011, and by the notation on the Nissan Navara Statement that the vehicles accessories were described as “subject to retail sale”, and the notation on the caravan Statement that the vehicles accessories were also described as “subject to retail sale”.
I am satisfied, based upon the course of dealings, that the true arrangement between Mr Smart and Sunshine was for a sale on consignment, notwithstanding the wording of the Vendor’s Statement.
I am also satisfied that the Nissan Navara and the caravan were sold, and that the proceeds were not paid to Mr Smart who was entitled to receive them. A claim against the fund arises pursuant to s 470(1)(e) of the Act in these circumstances. That section provides that:
(1)A person may make a claim against the fund if the person suffers financial loss because of the happening of any of the following events –
…
(e)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.
No appointment in writing was made for a sale on consignment as required by s 284 and 285 of the Act. The Chief Executive submits[3] that as there was no valid appointment, that Sunshine is not entitled to retain any commission in relation to the sale. I accept that submission.
[3]Submissions Chief Executive 11 June 2014, para 22.
The Chief Executive also submits[4] that in order to put Mr Smart back in the position he would have been in “but for” the event, that his loss should be measured as the sale proceeds of the Nissan Navara and the caravan, which is $72,000. I accept that submission.
[4]Submissions Chief Executive 11 June 2014, para 23.
The Chief Executive has identified Mr Kelly and Ms Kelly as executive officers of the company at the time of the alleged events, and gave them Claim Notices accordingly. Neither Mr Kelly or Ms Kelly have denied that they were executive officers, and I accept that they held those positions at the material times, and are persons liable to reimburse the fund pursuant to s 490(2) of the Act.
I am therefore satisfied that a proper claim for $72,000 is made against the Fund, and that Sunshine, Mr Kelly and Ms Kelly are responsible persons.
I make the following orders accordingly:
1. Pursuant to section 488 of the Property Agents and Motor Dealers Act 2000, the claim is allowed in the sum of $72,000.00.
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 Russell Smart the sum of $72,000.00 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, Sunshine CCC Pty Ltd (Deregistered), Mr Robert Lawrence Kelly and Ms Gay Suzanne Kelly are named liable for the financial loss of Mr Russell Smart.
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 (Deregistered), Mr Robert Lawrence Kelly and Ms Gay Suzanne Kelly are liable to reimburse the Claim Fund by paying the sum of $72,000.00 to the Chief Executive, Department of Justice and Attorney-General.
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