The Chief Executive, Department of Justice and Attorney-General v Kali t/as No.1 Elite Motorsport
[2015] QCAT 159
•29 April 2015
| CITATION: | The Chief Executive, Department of Justice and Attorney-General v Kali t/as No.1 Elite Motorsport & Anor [2015] QCAT 159 |
| PARTIES: | The Chief Executive, Department of Justice and Attorney-General (Applicant) |
| v | |
| Murat Kali t/as No.1 Elite Motorsport Halil Sahin (Respondents) |
| APPLICATION NUMBER: | OCR214-14 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Member Paratz |
| DELIVERED ON: | 29 April 2015 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Murat Kali t/as No. 1 Elite Motorsport and Halil Sahin are, pursuant to s 117 and s 119 of the Agents Financial Administration Act 2014, liable to reimburse, and are ordered to pay, to the Claim Fund established under s 78 of the Agents Financial Administration Act 2014, the sum of $193.20 within 21 days of the date of this order. |
| CATCHWORDS: | REIMBURSEMENT ORDER – PAMDA –whether a reimbursement order should be made – where motor vehicle dealers stole, misappropriated or misapplied $20.60 in Transfer and Registration Fees, and $171.50 in Stamp Duty 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 $193.20 to Bernardo Cabrera Jnr 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) (AFAA).
Mr Murat Kali and Mr Halil Sahin each held a Motor Dealer Licence on and about 11 January 2011, and were Joint Traders trading under the name No.1 Elite Motorsport.
The claims related to the sale of a 1998 Holden Commodore to Mr Cabrera, and the stealing, misappropriation or misapplication of $20.60 in Transfer and Registration Fees, and $171.50 in Stamp Duty paid as part of the total price for the vehicle.
The claim was paid after a decision by the Chief Executive made on 15 February 2012, which allowed the claim in the amount of $193.20, and named Mr Kali and Mr Sahin as jointly and severally liable for the claimant’s financial loss, and liable to reimburse the Claim Fund in the sum of $193.20.
On 12 July 2011 a Principal Investigations Officer of the Gold Coast Office of Fair Trading advised that through their investigation they were able to confirm that the trader had closed down and that Mr Kali had appeared to move interstate whilst Mr Sahin had moved overseas.
The Notice of the decision was posted by the Chief Executive to both Mr Kali and Mr Sahin at 10 Henchmann Avenue, Miami, Queensland.
The Chief Executive filed an application on 23 September 2014, pursuant to s 527, for a reimbursement order against Mr Kali and Mr Sahin.
The Chief Executive sent a Letter of Demand to each of Mr Kali and Mr Sahin at 1/127 Gooding Drive, Merrimac, Queensland on 17 October 2012 demanding repayment of the amount of $193.20.
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 19 September 2014 is attached to the application. He deposes that the sum of $193.20 has been paid from the Claim Fund in settlement of the claim, that no payments have been received towards the debt owed to the Claim Fund, and that the amount 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]Act s 528(2).
The Tribunal gave Directions on 28 October 2014. The Directions were posted to 1/127 Gooding Drive, Merrimac, Queensland, and were returned “Return to Sender”. The Registry then requested alternate addresses from the Chief Executive.
On 26 November 2014 the Chief Executive advised that the further address they had for Mr Kali was 279 Flushcombe Road, Blacktown, New South Wales, and for Mr Sahin was again 10 Henchman Avenue, Miami, Queensland.
The Tribunal then made fresh Directions on 13 January 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 envelopes containing the Directions were posted on 16 January 2015 to Mr Kali and Mr Sahin at the further addresses provided by the Chief Executive, and were not returned to the Tribunal.
No submissions have been made by either Mr Kali or Mr Sahin.
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 Kali and Mr Sahin are liable to reimburse the fund for $193.20;
c) Written notice of the Chief Executive’s decision, a copy of the decision and an information notice was given to Mr Kali and Mr Sahin under s 482;
d) Mr Kali and Mr Sahin did not apply to the Tribunal to have the Chief Executive’s decision reviewed under s 483; and
e) Mr Kali and Mr Sahin have 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, and that a Reimbursement Order must be made.
I make Reimbursement Orders, framed in terms of the Agents Financial Administration Act 2014, for the amount sought in the Application, and set 21 days as the period for payment.
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