The Chief Executive, Department of Justice and Attorney-General v Johnstone
[2015] QCAT 131
•22 April 2015
| CITATION: | The Chief Executive, Department of Justice and Attorney-General v Johnstone [2015] QCAT 131 |
| PARTIES: | The Chief Executive, Department of Justice and Attorney-General (Applicant) |
| v | |
| Robert Bruce Johnstone (Respondent) |
| APPLICATION NUMBER: | OCR250-14 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Member Paratz |
| DELIVERED ON: | 22 April 2015 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Robert Bruce Johnstone is, pursuant to s 117 and s 119 of the Agents Financial Administration Act 2014, liable to reimburse, and is ordered to pay, to the Claim Fund established under s 78 of the Agents Financial Administration Act 2014, the sum of $3,670.00 within 21 days of the date of this order. |
| CATCHWORDS: | REIMBURSEMENT ORDER – PAMDA –whether a reimbursement order should be made – where a motor vehicle dealer stole, misappropriated or misapplied the amount of $5,270.00 paid for stamp duty and transfer fees Property Agents and Motor Dealers Act 2000 (Qld), s 482, s 483, s 527, s 528, s 532 |
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
The Chief Executive, Office of Fair Trading, Department of Justice and Attorney-General (the Chief Executive) paid $5,270.00 to Queensland Transport from the Claim Fund established under the Property Agents and Motor Dealers Act 2000 (Qld) (PAMDA – referred to as ‘the Act’ in these reasons, and section references in these reasons are to PAMDA unless otherwise stated). The Claim Fund is now administered under the Agents Financial Administration Act 2014 (Qld) (AFFA).
Mr Robert Bruce Johnstone held a Motor Salesperson Licence between 8 November 2007 and 15 April 2008, and was involved in the sale of eleven vehicles by Approved Motors Pty Ltd.
The claims related to the sale of the vehicles where the purchasers paid for stamp duty and transfer fees as part of the price, but that money was not paid to Queensland Transport to enable the transfer of registrations. Queensland Transport paid the amount of $5,270.00 to enable the transfers to proceed.
The claim was paid after a decision by the Chief Executive made on 6 March 2009, which allowed the claim in the amount of $5,270.00, and named Mr Johnstone as one of the persons jointly and severally liable for the claimant’s financial loss, and liable to reimburse the Claim Fund.
The Chief Executive filed an application on 5 November 2014, pursuant to s 527, for a reimbursement order against Mr Johnstone.
The Chief Executive sent a Letter of Demand to Mr Johnstone at 26607 Ephraim Island Broadwater Precinct, Paradise Point, Queensland on 21 December 2009 demanding repayment of the amount of $5,270.00.
Section 527 provides that certain documents must accompany the application. They are:
(a)a copy of the claim against the fund in relation to which the application is made;
(b)copies of the written notice of the chief executive’s decision, the decision and the information notice given under section 482;
(c)a copy of the letter of demand given under section 490(4);
(d)a statutory declaration by the chief executive stating –
(i)the amount paid from the fund in settlement of the claim; and
(ii)the amount of any payment received from the respondent in satisfaction of the claim
Notice of the application is then to be given to the respondents as set out in s 528.
The Tribunal does not have any discretion as to making a reimbursement order. Section 532(2) provides that the Tribunal must make a reimbursement order if satisfied that:
(a)the chief executive has made a decision in relation to a claim against the fund; and
(b)under the chief executive’s decision the respondent is liable to reimburse the fund in a stated amount; and
(c)written notice of the chief executive’s decision, a copy of the decision and an information notice under section 482 was given to the respondent; and
(d)the respondent did not apply to the tribunal to have the chief executives decision reviewed under section 483; and
(e)the respondent has not paid the stated amount within the time allowed under the letter of demand
The only issues for the Tribunal to consider on this application therefore are:
a) Has the Chief Executive complied with s 527?
b) Has the appropriate notice been given under s 528 (s 119 AAFA)?
c) Have the requirements of s 532 been complied with?
Has the Chief Executive complied with s 527?
The application that was filed has a copy of the PAMD Form 50 ‘Claim against the Claim Fund’ attached. It also has a copy of the written notice of the decision, the decision and the information notice given under s 482.
A statutory declaration by Mr Tan, who is an authorised delegate of the Chief Executive, dated 5 November 2014 is attached to the application. He deposes that the sum of $5,270.00 has been paid from the Claim Fund in settlement of the claim, that payments of $1,600.00 have been received towards the debt owed to the Claim Fund, and that the amount of $3,670.00 remains outstanding.
Each of the requirements of s 527 have therefore been complied with.
Has the appropriate notice been given under s 528 (s 119 AAFA)?
Section 528 provides for the sending of a copy of the application and accompanying documents to the respondent, and advice that the Tribunal will make an order if it is satisfied of the matters set out in the section.
The respondent must also be invited to make any submissions about when and in what way the respondent intends to satisfy the amount paid from the fund in settlement of the claim.[1]
[1]Section 528(2).
The Tribunal gave Directions on 7 November 2014. The Directions were posted on 10 November 2014 to Unit 4301, 2 Sunset Avenue, Paradise Point, Queensland, and were returned “Return to Sender”. The Registry then requested alternate addresses from the Chief Executive.
On 3 February 2015 the Chief Executive advised that the further address they had for Mr Johnstone was PO Box 900, Paradise Point, Queensland.
The Tribunal then made fresh Directions on 10 February 2015 referring to s 119 AFAA and giving the necessary advice that the Tribunal would make a reimbursement order if satisfied of the matters set out in that section and in the Direction.
The envelope containing the Directions was posted on 12 February 2015 to Mr Johnstone at the address at PO Box 900, Paradise Point, Queensland, and was not returned to the Tribunal, and was also sent to an email address provided by the Chief Executive. Mr Johnstone was subsequently in contact with the registry by email on 12 February 2015, and 19 February 2015.
No submissions have been made by Mr Latcham.
I am satisfied that s 528 (s 119 AFAA) has been complied with.
Have the requirements of s 532 been complied with?
I am satisfied that:
a) The Chief Executive has made a decision in relation to the claims against the fund as listed in these reasons;
b) Under the Chief Executive’s decision, Mr Johnstone is liable to reimburse the fund for $3,670.00;
c) Written notice of the Chief Executive’s decision, a copy of the decision and an information notice was given to Mr Johnstone under s 482;
d) Mr Johnstone did not apply to the Tribunal to have the Chief Executive’s decision reviewed under s 483; and
e) Mr Johnstone has not paid the amount within the time allowed under the letter of demand.
I am therefore satisfied that each of the matters referred to in s 532(2) have been complied with, and that a reimbursement order must be made.
Conclusion
I am satisfied that the requirements for a reimbursement order have been made out under the Property Agents and Motor Dealers Act 2000 (Qld), and that a Reimbursement Order must be made.
I make Reimbursement Orders, framed in terms of the Agents Financial Administration Act 2014 (Qld), for the amount sought in the Application, and set 21 days as the period for payment.
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