Stevcar Pty Ltd v St James Equipment Pty Ltd
[2012] QCAT 410
•3 September 2012
| CITATION: | Stevcar Pty Ltd v St James Equipment Pty Ltd and Anor [2012] QCAT 410 |
| PARTIES: | Stevcar Pty Ltd |
| v | |
| St James Equipment Pty Ltd Robert Ernest James |
| APPLICATION NUMBER: | OCL030-12 |
| MATTER TYPE: | Other civil dispute matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Peta Stilgoe, Senior Member |
| DELIVERED ON: | 3 September 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | [1] The claim by Stevcar Pty Ltd for compensation from the statutory fund is dismissed. |
| CATCHWORDS: | MOTOR DEALER – where truck sold unregistered – where odometer damaged – whether a representation about the truck – whether an event Property Agents and Motor Dealers Act 2000, ss 296, 470, 488, 490(2), 574 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.
REASONS FOR DECISION
In 2011, Mr McGarrity, director of Stevcar Pty Ltd flew from Sydney to Brisbane to inspect a 2007 Hino Bin Lifter Skip truck offered for sale by St James Equipment Pty Ltd. Mr McGarrity noticed that the odometer reading was 150 km, not 65,000 km as advertised by St James. He also noticed that the Hino was in poor condition. Mr McGarrity drove the Hino and noticed that the engine was “surging, coughing and spluttering”.
Despite these irregularities, Mr McGarrity decided to buy the Hino if St James attended to some repairs. St James did attend to some repairs. Mr McGarrity arranged finance and took possession within a day or two of his inspection.
Mr McGarrity was not satisfied with the quality of the repairs. He decided to return the Hino under the cooling off period. St James did not accept the return of the Hino so Mr McGarrity later collected it and drove it back to Sydney. Mr McGarrity spent money repairing the Hino and then, he says, sold it at a loss.
Mr McGarrity made a claim on the statutory claim fund for $13,089.20. St James, and its sole director Mr James, have received notice of the claim.
In considering a claim against the fund, the tribunal must be satisfied[1] that an event as mentioned in section 470(1) of the Property Agents and Motor Dealers Act 2000 happened and that the claimant suffered financial loss because of the event.
[1] Section 488(2) Property Agents and Motor Dealers Act 2000.
The tribunal must also take into account any amount Stevcar might reasonably have received or recovered if not for its neglect or default and any amount ordered to be paid to Stevcar as compensation under sections 530A, 572D or 592A of PAMDA[2].
[2] Section 488(3)(a).
Finally in allowing a claim the Tribunal must decide the amount of Stevcar’s financial loss and name the person who is liable for the loss[3].
[3] Section 488(3)(b) and (c).
The event
Mr McGarrity says that Stevcar should be entitled to claim on the fund because he put his trust in Mr James, as a licensee, and:
…if you can’t put your trust behind a company that should be looking after their customers then what is the point of having a licence.
Mr McGarrity says that he only went ahead with the purchase because Mr James guaranteed that the Hino was a good truck and that if Mr McGarrity had any problems, Mr James would “look after it financially”. Mr McGarrity says that he asked Mr James if the Hino had been through the Queensland floods, and Mr James said no. Mr McGarrity also says that Mr James gave Stevcar a 3-month warranty. Mr James denies all of these conversations.
[10] A false representation in relation to the sale of property[4] is an “event” under s 470(1).
[4] Section 574.
[11] There was no misrepresentation about the odometer. Both Mr McGarrity and Mr James agree that, while the odometer read 150 km, Mr James told Mr McGarrity that the dashboard had been replaced and the true reading was about 65,000 km. Mr McGarrity does not suggest that the reading of 65,000 km was not correct.
[12] Mr McGarrity drove the Hino before purchase and he was aware of some problems with its bodywork. Even if Mr James said it was a good truck – and he denies that – the statement must be taken in context and subject to Mr McGarrity’s own observations. As Mr James now says, it was a “good truck” taking into account that Mr McGarrity bought it unregistered and for $15,000 less than the advertised price. I am not persuaded that St James made any representation about the quality of the Hino. If St James did make a representation, I am not satisfied that it was false.
[13] Mr McGarrity also says that Mr James offered a 3-month warranty. There is no reference to the warranty on the tax invoice. Mr McGarrity has not provided any confirmation from St James that the warranty was in place. Mr James denies that he offered any warranty. I find it unlikely that a motor dealer would offer a warranty on a commercial vehicle that was sold unregistered. I am not satisfied that Mr James made any representation about a warranty.
[14] I am not satisfied that was an “event” within s 470(1).
[15] Mr McGarrity complains that Stevcar was not given a proper contract as required by law which gave notice of a cooling off period. There is no cooling off period for vehicles that are unregistered or commercial vehicles[5]. The Hino was both unregistered and a commercial vehicle so St James was not required to give any notice and Stevcar had no right to return the Hino to St James under any cooling off period.
[5] Section 296.
Financial loss
[16] If I had found that there was an event, I would have to consider whether Mr McGarrity suffered a financial loss because of that event.
[17] As I have already observed, Mr McGarrity drove the Hino before he bought it. He knew that the truck had some problems and that he bought it unregistered and cheaply. He knew that the truck would have to pass a roadworthy inspection in New South Wales and he must have suspected that some additional work would be required. I do not consider that the repairs costs were incurred because of any representation by St James. Rather, I find that these costs were necessarily incurred to put the Hino in a roadworthy condition.
[18] Stevcar has claimed 1 month’s finance payment from Mr McGarrity. If this claim relates to the time required to repair the truck then it must fail for the same reason.
[19] Mr McGarrity has claimed the cost of air fares between Brisbane and Sydney. He left the Hino with St James under the mistaken belief that Stevcar was entitled to a cooling off period. These costs are not caused by any representation by St James.
[20] Finally, Stevcar has claimed the difference between the sale price and the actual market value of the Hino. The only evidence to support this claim is a tax invoice dated 27 April 2012 from Stevcar to a third party selling the Hino for $65,000. That is not evidence of the actual market value of the Hino at the time of purchase. I would not accept the claim based on this evidence alone.
Orders
The claim by Stevcar Pty Ltd for compensation from the statutory fund is dismissed.
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