Smeeton v The Chief Executive, Department of Justice and Attorney-General
[2013] QCAT 339
•2 July 2013
| CITATION: | Smeeton v The Chief Executive, Department of Justice and Attorney-General [2013] QCAT 339 |
| PARTIES: | Mr Gary John Smeeton (Applicant) |
| v | |
| The Chief Executive, Department of Justice and Attorney-General (Respondent) |
| APPLICATION NUMBER: | OCR059-13 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | 2 July 2013 |
| HEARD AT: | Brisbane |
| DECISION OF: | Mr David Paratz, Member |
| DELIVERED ON: | On the Papers |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The Chief Executive, Department of Justice and Attorney-General, is joined as a Respondent. 2. Crampton Automotive Pty Ltd t/a Toowoomba Holden, Mr Mark Crampton, Mr Noel Roser, and Mr Ross Crampton are removed as Respondents. 3. The decision of the Chief Executive, Department of Justice and Attorney-General, made on 7 January 2013, that the claim made on 24 May 2012 against the fund established under the Property Agents and Motor Dealers Act 2000 by the Applicant, Mr Gary Smeeton, was out of time, is set aside, and substituted by a decision that the claim was made within time. |
| CATCHWORDS: | MOTOR DEALER – application for extension of time to claim against the fund – finding that claim was within time – proper respondent on an application to determine or extend time Property Agents and Motor Dealers Act 2000 s 248, 470(1), 472(2), 476, 477, 496, 511 McNabb v Ivanoff [2010] QCAT 692 |
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 (QCAT Act).
REASONS FOR DECISION
Mr Smeeton bought a 2008 Nissan Navarra dual cab utility vehicle from Toowoomba Holden on 5 May 2010 for $41,691.00. He believed that it was in good order and condition.
He obtained finance through the car yard with Capital Finance to finance the balance of $31,549.29 remaining after trade-in of his previous vehicle.
He experienced a continual series of problems with the vehicle over the next 12 months, including the electrical and braking system.
On 17 November 2010 he was advised by Toowoomba Nissan that the vehicle had been water damaged and was written off on 2 November 2009. He then had further discussions with and further repairs done by Toowoomba Holden, which did not resolve the ongoing problems.
Mr Smeeton eventually lost patience with the situation and rang the finance company through whom he had purchased the vehicle, to get them to come and take it back. On 14 June 2011 the finance company collected the vehicle. The finance company then began to place pressure on Mr. Smeeton on 23 August 2011 to repay the balance owing on the finance contract of $28,579.39 after the vehicle was sold at auction for $10,000 as a written off vehicle.
In a statement dated 17 April 2013, Mr Smeeton said that he did not know who to complain to, and after some time a friend referred him to the Office of Fair Trading. The Office of Fair Trading advised him that he should immediately apply for a claim against the claim fund.
The Office of Fair Trading received his claim on 24 May 2012. The claim stated that the event that gave rise to the claim occurred on 7 May 2010 and that he became aware of his financial loss on 14 June 2011.
The Office of Fair Trading however, determined that he became aware of his financial loss on 17 November 2010, which would make his claim outside the time limitations pursuant to s 472 of the Act.
This is an Application for Extension of Time. The Chief Executive of the Department of Justice and Attorney-General (of whose Department the Office of Fair Trading is a part) (the Chief Executive) has made a determination as to the date upon which he first became aware of his financial loss, with which Mr Smeeton does not agree.
The Registry of the Tribunal named the car yard and its principals as Respondents to this Application, following on from the details in the Application in Form Number 42. A practice appears to have developed generally of naming the motor dealer as the Respondent in this type of Application for extension of time.
This application is effectively a review of the decision of the Chief Executive that Mr Smeeton was out of time, and the Applicant is alternatively seeking that the Tribunal exercise its discretion under Section 511 of the Property Agents and Motor Dealers Act 2000 (the Act) to extend the one year period stipulated in s 472(2)(a) of the Act.
If the claim is found to be within time, or the extension of time is granted, then the matter is returned to the Chief Executive to proceed to process the claim. The Chief Executive then has to proceed under s 474 and 475 and then refer it back to the Tribunal under s 476 of the Act for the determination of the claim, if it is not settled and is not a minor claim and if the claimant wants to proceed with the claim. The Chief Executive can direct an inspector to investigate the claim under s 477 of the Act.
I consider that the appropriate Respondent in this Application is the Chief Executive, not the car yard or its officers. Whilst the matter has proceeded with the caryard and its officers named as Respondents, the Chief Executive has been aware of these proceedings, and I specifically included the Chief Executive in my Directions of 10 April 2013, giving the Chief Executive the opportunity to provide any material including any statements of evidence. I therefore do not consider that the Chief Executive will suffer any detriment by being formally substituted as the proper Respondent.
I will therefore make an order joining the Chief Executive as a party under s 42 of the QCAT Act, and removing the previous respondents under s 47 of that Act.
Solicitors acting for the car yard have submitted that the tribunal does not have jurisdiction to grant an extension of time. They refer to Ryan v Cornwall [2010] QCAT 212. In that case, the member was considering an application to extend time in relation to a claim under s 51 of the Domestic Building Contracts Act 2000 and had regard to the Limitation of Actions Act 1974.
In this case, the Tribunal has specific authority under s 511 of the Act to grant an extension of time within which to file a claim. It regularly extends the time provided in s 472. Examples are found in McNabb v Ivanoff [2010] QCAT 692 and Kruck and Anor v Jensen [2011] QCAT 633.
The Solicitors for the car yard alternatively argue that Mr Smeeton has no valid claim under s 470(1) of the Act. They refer to the specific matters listed in s 470 and say that none of these apply to Mr Smeeton’s claim.
I do not determine on this Application whether Mr Smeeton has a valid claim against the fund. The question for determination by me is whether he is entitled in time to have his claim processed by the Chief Executive.
In the course of investigation, the Chief Executive may form a view as to whether a valid claim does lie under s 470 of the Act, and that might influence the Claimant as to whether to proceed to require the Tribunal to determine the claim.
The first question for determination is whether the claim is out of time at all.
Section 472(2) of the Act provides that:-
(2) A person may make the claim against the fund only if the person makes the claim within the earlier of the following –
(a) 1 year after the person becomes aware that the person has suffered financial loss because of the happening of an event mentioned in section 470(1);
(b) 3 years after the happening of the event that caused the person’s financial loss.
In this matter the relevant date is the one year awareness period in s 472(2)(a) because that will be less than 3 years after the happening of the event. The event would be the sale of the vehicle on 7 May 2010.
When though can Mr Smeeton be said to have become aware that he suffered financial loss?
The date determined by the Chief Executive on the PAMD Form 52 “Claim out of time Notice” is 17 November 2010. That is the date upon which Mr Smeeton was advised that the vehicle was water damaged and a written-off vehicle.
However, Mr Smeeton arguably did not suffer financial loss until either the finance company repossessed the vehicle on 14 June 2011, or more likely when the finance company demanded payment of $28,579.39 from him on 23 August 2011 after having sold the vehicle. The latter date is the first date upon which a loss crystallised.
In Pattino v Cottam [2012] QCAT 309 it was held that a financial loss has to be established before a claim on the fund can be made. The Chief Executive has in other matters referred to this principle in arguing that a claim is being made prematurely.
If Mr Smeeton’s financial loss is accepted as occurring either when the vehicle was repossessed on 14 June 2011, or when the finance company demanded payment of $28,579.39 from him on 23 August 2011 after having sold the vehicle, then either date is within the one year period, as he lodged the claim on 24 May 2012 .
I consider that Mr Smeeton did not become aware that he suffered financial loss until 23 August 2011, in terms of the Act.
I therefore consider that the determination by the Chief Executive that he became aware on 17 November 2010 that he suffered financial loss is in error, and that Mr Smeeton has claimed within the one year period.
Alternatively, if it is considered that the claim is out of time, the Tribunal has the ability to extend time under s 511 having regard to that section.
S 511(b) provides that the tribunal may extend time, if it is appropriate to extend time having regard to -
(i) the reasons for not making the claim or seeking the review within the time allowed; and
(ii) the application generally; and
(iii) for a claim, the relative hardship that an extension of time or a refusal to extend time would place on the claimant or respondent; and
(iv) the justice of the matter generally.
Mr Smeeton has explained that he was not aware of the ability to make a possible claim on the fund, and only became aware after he spoke to the Office of Fair Trading. He said that as soon as the opportunity to make a claim was brought to his attention, that he submitted a claim as quickly as he could. I accept that his reason for not making the claim earlier is reasonable and satisfies s 511(b)(1).
The Solicitors for the car yard say that some members of the staff are no longer employed and may not be able to be readily located. They argue that their clients ought not to be forced to go through the costly process of again refuting Mr. Smeeton’s allegations, particularly in circumstances where Mr. Smeeton’s claim is bound to fail and witnesses to the relevant event are no longer available.
There is no material before me to indicate where the car yard has previously refuted Mr. Smeeton’s allegations. The response by the car yard’s solicitors does not address the merits of Mr Smeeton’s claim, or any of his allegations at all. Rather it raises technical reasons to support their argument that time should not be extended. Neither do they say that the former employees cannot be located.
The claim was lodged only a little over a year ago, and the events themselves occurred only just over 3 years ago. That is not an inordinate period of time.
I do not consider that the alleged prejudice which could be caused to the car yard by the limitation period being extended, if it needs to be, would cause sufficient prejudice or detriment to possible respondents to future action, or that such prejudice is of such a nature, as to outweigh Mr. Smeeton’s rights to bring a claim.
Overall, having regard to the justice of the matter I would allow an extension of time under s. 511.
However, my primary finding is that the claim was made within time. Accordingly, I set aside the decision of the Chief Executive that the claim was made out of time, and substitute a decision that the claim is made within time, and refer the matter back to the Chief Executive for processing.
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