Smeeton v Crampton Automotive Pty Ltd t/a Toowoomba Holden
[2015] QCAT 73
•4 March 2015
| CITATION: | Smeeton v Crampton Automotive Pty Ltd t/a Toowoomba Holden & Ors [2015] QCAT 73 |
| PARTIES: | Gary Smeeton (Applicant) |
| v | |
| Crampton Automotive Pty Ltd t/a Toowoomba Holden Mark Crampton Ross Crampton Noel Roser (Respondents) |
| APPLICATION NUMBER: | OCL042-14 |
| MATTER TYPE: | Other civil dispute matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Member Paratz |
| DELIVERED ON: | 4 March 2015 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Direction Number 5 made on 11 September 2014 directing that the application will be determined on the papers is vacated. 2. Gary Smeeton is to file two (2) copies in the Tribunal, and give one copy to: Crampton Automotive Pty Ltd t/a Toowoomba Holden; Mark Crampton; Ross Crampton and Noel Roser; and give one copy to: the Chief Executive, Department of Justice, Office of Fair Trading (Att: Adrian Tan) of the following material in addition to the material filed with the Application: (a) Statements from each witness to give evidence for Gary Smeeton at the hearing, including any experts, which are not already in the material provided by the Chief Executive, and (b) A valuation from a licensed chattel valuer or a motor dealer with sufficient expertise to determine the difference between a non-water damaged vehicle and a water damaged vehicle, of the vehicle as at 4 May 2010, and (c) Any documents referred to in a statement of evidence, which must be identified, explained and attached to the appropriate witness statement, by 4pm on 2 April 2015 3. Crampton Automotive Pty Ltd t/a Toowoomba Holden, Mark Crampton, Ross Crampton and Noel Roser must file two (2) copies in the Tribunal, and give one (1) copy to Gary Smeeton, and give one (1) copy to Chief Executive, Department of Justice, Office of Fair Trading (Att: Adrian Tan) of the following material in addition to the material filed with the Application: (a) Statements from each witness to give evidence for the Respondents at the hearing, including any experts, which are not already in the material provided by the Chief Executive, and (b) Any documents referred to in a statement of evidence, which must be identified, explained and attached to the appropriate witness statement, by: 4pm on 2 April 2015 4. No party will be allowed to present any evidence at the hearing that is not contained in the statements without justifying the need for such additional evidence to the tribunal. 5. Each party is to give notice in writing to the other parties, not less than 21 days before the hearing, of the witnesses required for cross-examination. 6. Unless the Tribunal otherwise orders all witnesses required for cross-examination must attend the hearing in person. 7. Any application for a witness to attend the hearing by a remote means or by remote conferencing must be made not less than 14 days before the hearing. 8. The application is set for an oral hearing at Brisbane on 22 May 2015 at 9:30am |
| CATCHWORDS: | CLAIM ON THE FUND – where a claim was made on the Fund in respect of a motor vehicle- where it is alleged that a false or misleading representation as to the vehicle was made – where it is alleged that it was not disclosed that the vehicle was previously written off because of water damage – where no party has asked for an oral hearing – where there are significant issues of fact in dispute – where the application turns on questions of credit – where it is inappropriate to determine the application on the papers – where an oral hearing is ordered Property Agents and Motor Dealers Act 2000 (Qld), s 472 |
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
Mr Smeeton is making a claim on the Fund in respect of a 2008 Nissan Navara dual cab utility vehicle in the amount of $43,579.39.
This matter already has a long history and has unfortunately become protracted.
Mr Smeeton made his claim on 24 May 2012. The Chief Executive determined on 7 January 2013 that the claim was made out of time having regard to the provisions of s 472 of the Property Agents and Motor Dealers Act 2000 (Qld) (the Act).
Mr Smeeton then brought an application to this Tribunal (OCR059-13), on 21 January 2013, to extend the time limit.
I gave a decision “On the Papers” on 2 July 2013 determining that the claim was made within time, and referred the claim back to the Chief Executive for processing under the Act. I also ordered that the Chief Executive be substituted as the Respondent in that Application.
The Chief Executive appealed that decision in APL320-13, as to the substitution of respondents, but not as to the time issue.
That appeal was determined by Judicial Member Dodds on 10 February 2014 who ordered that the original Respondents be reinstated, and that the claim be referred to the Chief Executive for processing.
On 29 May 2014 the Chief Executive referred the claim for determination by the Tribunal under the provisions of Chapter 14 of the Act.
I gave Directions on 5 June 2014 that Mr Smeeton was to file any additional material by 4 July 2014, and that the Respondents were to file material by 1 August 2014; with Mr Smeeton to file any reply by 29 August 2014; and that any request for an oral hearing was to be made by 1 August 2014.
The Directions addressed to Crampton Automotive Pty Lt t/a Toowoomba Holden were sent to their registered office address in Brisbane (which was the address used by the Office of Fair Trading) but were returned to the Tribunal.
The Registry then contacted Crampton Automotive and spoke to Mr Robert Laird on 11 September 2014 who advised that he had not received the substantial material from the Office of Fair Trading in relation to the claim, and had only received the 15 page letter referring the claim to the Tribunal.
The Chief Executive subsequently served the material in relation to the claim on Crampton Automotive.
I then made Directions on 11 September 2014 extending the dates for filing of material by Mr Smeeton to 3 October 2014; by the Respondents to 24 October 2014; for any reply by Mr Smeeton to 14 November 2014; and for any application for an oral hearing to 24 October 2014.
Surprisingly, no material has been filed by Mr Smeeton or the Respondents, and no request for an oral hearing has been made.
The Respondents earnestly contested the application for an extension of time, and engaged Solicitors on their behalf in that Application. It is therefore not comprehensible as to why they have not filed submissions in accordance with the Directions, and have not addressed the submissions of the Chief Executive at all; and particularly the submissions that within the material there are two representations about the vehicle that Mr Smeeton alleges could potentially be in breach of s 574, and that it is open to the Tribunal to find that the false or misleading representations were made.
The making of an order for payment from the Fund will have a direct effect upon the Respondents as they will most likely be called upon to reimburse the fund for any payments, and there would also necessarily be a public finding of misrepresentation made against them.
It may be the case that the parties intend to rely on the material that they provided on the Application to extend Time, but they have not addressed aspects of the submissions made by the Chief Executive in the referral of the claim.
There are significant questions of fact in dispute between the parties.
Primarily, Mr Smeeton alleges that he signed a V-Check Form on 17 or 18 November 2010 at the request of Ross Crampton. However, Ross Crampton alleges that Mr Smeeton signed it on 5 May 2010. The significance of the form is as to whether Mr Smeeton was aware that the vehicle had been water damaged and assessed as a “repairable write-off” when the contract to purchase the vehicle was signed.
There is significant dispute as to what was said at the meetings between Mr Smeeton and the various Respondents on 4 May 2010, 10 May 2010 and 17 November 2010. Those disputes extend to the central issue of whether representations were made as to the vehicle, and as to what those representations were.
The Chief Executive has raised queries as to the calculation of financial loss. It submits that the measure would be the difference between the price a person would pay who had knowledge that the vehicle was written off due to water damage, and the price paid. It submits that there are deficiencies in the current evidence on that question:
70. The Chief Executive submits that there is no evidence in the documents that would enable the Tribunal to make a finding on what a person would have paid in the knowledge that the vehicle was written-off due to water damage as at May 2010. Accordingly it is submitted that, if the Tribunal proceeds to determine the Applicant’s financial loss, a valuation from a licensed chattel valuer or a motor dealer with sufficient expertise to determine the difference between a non-water damaged vehicle and a water damaged vehicle, should first be obtained and considered.
In view of the significant disputes of fact, and the need for further submissions as to financial loss; and in the absence of the parties having addressed the submissions of the Chief Executive, I do not consider that it is appropriate to decide the matter on the papers.
The determination of the disputed questions of fact can only be properly made on the basis of sworn evidence when the parties have an opportunity to cross-examine witnesses, and the Tribunal has had an opportunity to form a view as to the credibility of the witnesses.
Accordingly, I will give Directions as further submissions, and for an oral hearing.
I give Directions as follows:
1. Direction Number 5 made on 11 September 2014 directing that the application will be determined on the papers is vacated.
2. Gary Smeeton is to file two (2) copies in the Tribunal, and give one copy to: Crampton Automotive Pty Ltd t/a Toowoomba Holden; Mark Crampton; Ross Crampton and Noel Roser; and give one copy to: the Chief Executive, Department of Justice, Office of Fair Trading (Att: Adrian Tan),of the following material in addition to the material filed with the Application:
(a)Statements from each witness to give evidence for Gary Smeeton at the hearing, including any experts, which are not already in the material provided by the Chief Executive, and
(b)A valuation from a licensed chattel valuer or a motor dealer with sufficient expertise to determine the difference between a non-water damaged vehicle and a water damaged vehicle, of the vehicle as at 4 May 2010, and
(c)Any documents referred to in a statement of evidence, which must be identified, explained and attached to the appropriate witness statement, by 4pm on 20 March 2015
3. Crampton Automotive Pty Ltd t/a Toowoomba Holden, Mark Crampton, Ross Crampton and Noel Roser must file two (2) copies in the Tribunal,and give one (1) copy to Gary Smeeton, and give one (1) copy to Chief Executive, Department of Justice, Office of Fair Trading (Att: Adrian Tan),of the following material in addition to the material filed with the Application:
(a)Statements from each witness to give evidence for the Respondents at the hearing, including any experts, which are not already in the material provided by the Chief Executive, and
(b)Any documents referred to in a statement of evidence, which must be identified, explained and attached to the appropriate witness statement, by: 4pm on 20 March 2015
4. No party will be allowed to present any evidence at the hearing that is not contained in the statements without justifying the need for such additional evidence to the tribunal.
5. Each party is to give notice in writing to the other parties, not less than 21 days before the hearing, of the witnesses required for cross-examination.
6. Unless the Tribunal otherwise orders all witnesses required for cross-examination must attend the hearing in person.
7. Any application for a witness to attend the hearing by a remote means or by remote conferencing must be made not less than 14 days before the hearing.
8. The application is set for an oral hearing at Brisbane on 22 May 2015 at 9:30am.
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