Smeeton v Crampton Automotive Pty Ltd t/as Toowoomba Holden
[2015] QCAT 388
•24 September 2015
| CITATION: | Smeeton v Crampton Automotive Pty Ltd t/as Toowoomba Holden [2015] QCAT 388 |
| PARTIES: | Gary Smeeton (Applicant) |
| v | |
| Crampton Automotive Pty Ltd t/as Toowoomba Holden Mark Crampton Ross Crampton Noel Roser (Respondents) |
| APPLICATION NUMBER: | OCL042-14 |
| MATTER TYPE: | Other civil dispute matters |
| HEARING DATE: | 18 June 2015 |
| HEARD AT: | Brisbane |
| DECISION OF: | Dr Cullen, Member |
| DELIVERED ON: | 24 September 2015 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The Applicant’s claim against the claim fund is rejected. 2. The parties shall bear their own costs of the proceeding. |
| CATCHWORDS: | LICENSEE – CLAIM AGAINST THE CLAIM FUND – BUYER OF VEHICLE- whether false or misleading representation – reliance – whether buyer had proved financial loss. Property Agents and Motor Dealers Act 2000 (Qld), s 574 King Developments Pty Ltd v Mayne [2015] QCATA 29 |
APPEARANCES: Parties were self-represented.
| APPLICANT: | Gary Smeeton |
| RESPONDENT: | Robert Laird Ross Crampton Anthony Bird Noel Roser |
REASONS FOR DECISION
Purchase of the Navarra
Gary Smeeton purchased a Nissan Navarra Dual Cab Ute from Crampton Automotive Pty Ltd on 5 May 2010, for $41,691.00. Mark Crampton has been the Director of Crampton Automotive since 1993, and Ross Crampton and Noel Roser are employees.
Mr Smeeton traded in his old car, for which he received $15,000.00 toward the purchase price of the Navarra. The balance of the purchase price was financed through a loan Mr Smeeton took out with Capital Finance. Importantly for the purposes of this dispute, Mr Smeeton submits that, at the time of purchase, he was informed by someone at Crampton Automotive that the Navarra would still be covered under Nissan’s new car 3-year warranty for the twelve-or-so-months remaining.
Mr Smeeton says that he had a number of problems with the Navarra, commencing with the ‘4 Wheel Drive’ light activating on its own as he drove home from the dealership with his purchase. Although the Navarra was driveable and registered, it continued to experience problems related to this fault and later in relation to the brakes, which required Mr Smeeton to take the vehicle back to Crampton Automotive for servicing. Crampton Automotive endeavoured to repair the faults, but eventually sent the Navarra to Toowoomba Nissan to carry out the necessary repairs.
Having grown weary, on 17 November 2010, when the fault occurred again, Mr Smeeton drove the Navarra straight to Toowoomba Nissan, where he says he was advised that they had recently learned that the Navarra was written off as water-damaged as at 2 November 2009 (prior to Mr Smeeton having purchased it). A confrontation between Mr Smeeton and Ross Crampton then ensued back at Crampton Automotive.
The Confrontation
Mr Smeeton alleges that he told Ross Crampton that he had been sold a written off, water-damaged vehicle that was not covered under the manufacturer’s warranty, and which was still not fixed. In response, Mr Smeeton says that Ross Crampton said he would arrange for a ‘new car warranty’ through Swann Insurance, and further assured him that the Navarra would be repaired.
Mr Smeeton then claims that Ross Crampton asked him to sign a ‘V-Check Vehicle Information Check’ form, dated 21 April 2010 – a date prior to his purchase of the vehicle. The V-Check form is the form used by car dealers to indicate that a vehicle is a repairable write-off prior to sale.
This allegation is vigorously disputed by the Respondents, who claim that the V-Check form was signed on 7 May 2010, at the same time as the Capital Finance Loan documents, ‘Used-Car Promise Sheet’ and Warranty Assist Insurance Policy.
On 25 November 2010, Mr Smeeton picked the Navarra back up from Crampton Automotive. All was well for a few months, until he took it for a service on 21 April 2011, and was allegedly told that the brakes were ‘spongy,’ there was a problem with the master cylinder, and if under warranty, he should get it looked it. Mr Smeeton went back to Crampton Automotive that same day, but was told that they could not replicate the problem with the brakes.
On 5 May 2011, the Navarra again displayed the ‘4 Wheel Drive’ light without having been activated, and Mr Smeeton contacted Crampton Automotive. Crampton Automotive offered to repair the fault, but by this stage, Mr Smeeton had lost confidence in their ability to actually fix the problem.
Mr Smeeton requests the Navarra be repossessed
Whilst his frustration at having had to return to the dealer multiple times is entirely understandable, what Mr Smeeton next did is beyond comprehension. In an act of what could only be described as ‘financial suicide,’ Mr Smeeton then contacted Capital Finance and requested that they repossess the Navarra.
Capital Finance obliged, collecting the Navarra on 14 June 2011, and subsequently selling it for $10,000.00. Unsurprisingly, on 28 August 2011, Capital Finance began the process of collecting the $28,579.39 that was left remaining on the loan. I say that it was not surprising, as Capital Finance was merely the lender in this ill-fated Navarra purchase, and had nothing whatsoever to do with the Navarra otherwise. And, being in the business of lending money, Capital Finance expected Mr Smeeton to pay the full-amount of the loan off, regardless of whether he was happy with his purchase.
Although the Swann Warranty Assist Insurance policy was in place, Mr Smeeton never attempted to use it. Instead, in an apparent effort to fully remove all traces of the Navarra from his life, he contacted Swann to advise them that his ‘new car assist’ insurance policy was for a written off vehicle, and therefore not valid. It was never the case that Swann had refused to repair the Navarra under terms of the policy, however, Mr Smeeton says that he was advised they would not have issued the policy had they known. And so, at Mr Smeeton’s request, Swann Insurance cancelled his policy, and returned the refund of premiums to Capital Finance.
Mr Smeeton was now in rather a predicament. He no longer had a car, and had a $28,579.39 debt owing to Capital Finance.
Mr Smeeton’s PAMDA Claim
In Queensland, the Property Agents and Motor Dealers Act 2000 (Qld) (‘PAMDA’) governs the conduct of, amongst others, licensed motor dealers. A Claim Fund, administered by the Department of Fair Trading, has been established to provide relief for persons who have suffered a financial loss as the result of certain types of conduct by licenced motor dealers.
Mr Smeeton has made a claim on the PAMDA fund, hoping that it would provide relief in circumstances where he alleges that he has suffered financial loss as a result of being misled in relation to the sale of the Navarra by Crampton Automotive. There is no question that Crampton Automotive is a motor dealer to whom PAMDA applies.
Mr Smeeton’s claim was rejected by the Department of Fair Trading, and is now before the Tribunal for administrative review. Although the Chief Executive, Department of Fair Trading, is not a party to these proceedings, he has filed submissions in the Tribunal which are helpful in setting out the matters the Tribunal must consider in Mr Smeeton’s case.[1]
[1]Chief Executive’s submissions filed in the Tribunal on 29 May 2014; and further on 17 April 2015.
Section 574(1) PAMDA prohibits the representation of ‘anything that is false or misleading in relation to the ….sale of property’. Further, s 574(8) PAMDA provides that a false or misleading representation includes the ‘wilful concealment of a material fact’. The Navarra is property for the purposes of PAMDA.
Arising from this, the Chief Executive submits (and the Tribunal agrees) that the Tribunal must consider the following alleged misrepresentations:
a) The alleged failure by Crampton Automotive to disclose the Navarra’s previous repairable write-off status as a consequence of water damage; and
b) The 5 May 2010 representation that the Navarra was covered by a 3-year warranty.
In relation to the Navarra’s status as a repairable write-off, the Tribunal has considered the parties’ submissions in relation to the date the V-Check form was signed. As set out above, Mr Smeeton says he signed the V-Check form in November 2010, when he confronted Ross Crampton about the Navarra again experiencing a fault, and after he allegedly was told by Toowoomba Nissan that the Navarra had been water damaged and written off. The Respondents assert that the V-Check form was signed in May 2010, shortly after the purchase agreement was signed on 5 May 2010, and at the same point in time as the:
· Capital Finance Loan;
· Used Promise Sheet; and
· Swann Warranty Assist Insurance policy,
all of which were signed on 7 May 2010.
The Chief Executive concluded that the V-Check Form was signed on 7 May 2010, as the parties agree that it was signed contemporaneously with the Swann Warranty Assist Insurance policy, which was issued on 7 May 2010. The V-Check Form itself has not been dated at the time of signature, but does have a type-written date of 21 April 2010 on its face.
Mr Smeeton alleged, during the hearing, that the V-Check form had been tampered with somehow, as the colour of ink used by him to sign the rest of the documents on 7 May 2010 and on the V-Check Form does not appear the same. There is no independent evidence of this, and in the absence of evidence from a suitable expert, the Tribunal is not able to conclude that there has been any tampering with the V-Check Form.
On balance, the evidence supports a finding that the V-Check Form was signed at the time of purchase in May 2010. The closer proximity of the 21 April 2015 date on the face of the V-Check Form supports a finding that it is more likely the Form was produced then, and utilised shortly thereafter in May rather than in November.
Having reached the conclusion that Mr Smeeton has not established that the form was signed post-sale in November 2010, the Tribunal concludes that there is no basis upon which it could find that the Navarra’s water damaged status was not disclosed.
No evidence of false or misleading conduct
The Tribunal must then consider whether Crampton Automotive’s representation to Mr Smeeton that the Navarra was covered by a 3-year warranty was false or misleading. Although this finding may technically be open to the Tribunal on the evidence, it is ultimately of no assistance to Mr Smeeton in that he has not suffered any loss as a consequence of any false or misleading conduct by Crampton Automotive.
Although the Swann Warranty Assist Insurance policy states that it was issued on 7 May 2010, coverage of the Navarra did not actually commence until 1 March 2011. As the Respondents do not dispute that the Nissan Manufacturer’s warranty ceased at the time the vehicle was written off, technically there was no warranty in place between the time of sale and the time the Swann coverage commenced.
Even accepting that this is the case, the Tribunal does not accept that this was intentionally misleading on the part of the Respondents. There is no evidence that the representations made by the Respondents were deliberately false or misleading,[2] and there is no evidence that they wilfully concealed the status of the Navarra from Mr Smeeton.
[2]See King Developments Pty Ltd v Mayne [2015] QCATA 29.
Rather, the Respondents acted at all times as if there was a warranty in place, and completed all of the repairs required at their expense, and importantly, at no cost to Mr Smeeton. There is no evidence before the Tribunal that he was, at any point by either Crampton Automotive or Toowoomba Nissan, charged for any of the repairs. Further, the premiums paid to Swann were refunded to Capital Finance, which in turn benefitted Mr Smeeton by reducing his indebtedness.
The Tribunal finds that Mr Smeeton has not suffered any financial loss as a consequence of the warranty representations that were made by Crampton Automotive, even if it were found that they were technically false or misleading.
Further observations about loss
Other than the relatively short periods when the Navarra was off-road being repaired, Mr Smeeton had full use and enjoyment of the vehicle. Whilst it may have been water damaged in the past, the Navarra was capable of registration and roadworthy. Although Mr Smeeton claims a loss for the vehicle he traded in to buy the Navarra, there is again no evidence capable of establishing any loss. The evidence before the Tribunal indicates that Mr Smeeton himself offered to trade it in for $15,000, and that amount was then deducted from the agreed purchase price.
Mr Smeeton has not complied with the Tribunal’s directions to file supporting material in relation to his alleged loss. On 4 March 2015, the Tribunal directed Mr Smeeton to file:
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.
The Tribunal accepts the submissions of the Chief Executive that the appropriate measure, if established, would be the difference in value between a water-damaged and non-water damaged Navarra as at the time of purchase. Even if the Tribunal had determined there was a misrepresentation by the Respondents, Mr Smeeton has not filed any material that would permit the Tribunal to measure his loss.
Unfortunately, through his own conduct in having the Navarra repossessed, Mr Smeeton has created a ‘Series of Unfortunate Events.’[3] In allowing his intense frustration about the Navarra’s shortcomings get the better of him, he has failed to act rationally in mitigating his own loss. Had he elected to sell the Navarra on the open market, or simply persist with it, he may not now be in a predicament where he had an enormous debt, but no vehicle. The Respondents cannot, in these circumstances, be responsible for Mr Smeeton’s unfortunate situation.
[3]An expression adopted from the book series of the same name, written by Daniel Handler, better known as Lemony Snicket.
Orders
The Applicant’s claim against the claim fund is rejected.
The parties shall bear their own costs of the proceeding.
0