Toyota Finance Australia Limited v Dealer Network Queensland Pty Ltd
[2014] QCAT 105
| CITATION: | Toyota Finance Australia Limited v Dealer Network Queensland Pty Ltd & Anor [2014] QCAT 105 |
| PARTIES: | Toyota Finance Australia Limited (Applicant) |
| v | |
| Dealer Network Queensland Pty Ltd Mr Barry Forbes (Respondents) |
| APPLICATION NUMBER: | GAR276-13 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Member Paratz |
| DELIVERED ON: | 25 March 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Pursuant to section 488 of the Property Agents and Motor Dealers Act 2000, the claim is allowed in the sum of $200,000.00. 2. Pursuant to section 489 of the Property Agents and Motor Dealers Act 2000, at the expiration of the appeal period the Chief Executive must pay to the Applicant the sum of $200,000.00 from the Claim Fund, and if there is an appeal, payment must not be made until after the appeal is finally decided. 3. Pursuant to section 488(3)(c) of the Property Agents and Motor Dealers Act 2000 the Respondents, Dealer Network Queensland Pty Ltd (Under External Administration) and Barry Forbes are named liable for the financial loss of the Applicant. 4. Upon payment from the Claim Fund and pursuant to sections 490 and 530 of the Property Agents and Motor Dealers Act 2000, Dealer Network Queensland Pty Ltd (Under External Administration) and Barry Forbes are jointly and severally liable to reimburse the Claim Fund by paying the sum of $200,000.00 to the Chief Executive, Department of Justice and Attorney-General. |
| CATCHWORDS: | Where a motor dealer received payment for 12 motor vehicles but failed to make delivery – whether the maximum claimable under the claim fund for a single claim is applicable – where the motor dealer breached s 302(4) of the Act by failing to return the buyer to the position where the buyer was in before the vehicles were purchased once the contract was avoided –– where the total financial loss was limited to $200,000.00 as one claim under the Regulations Property Agents and Motor Dealers Act 2000 (Qld), s 302(4), s 492(2), s 492(4) |
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 (Qld) (QCAT Act).
REASONS FOR DECISION
Ace Rentals is a business owned by Ace Tourist Rentals (New Zealand) Limited which is in turn owned by Hertz New Zealand Holdings Limited. It is associated with Ace Tourist Rentals (Aust) Pty Ltd, and is a budget style rent-a-car operation which targets the budget vacation market, typically younger groups of people travelling.[1]
[1]Statement of Paul Jones, 30 April 2013 at [6].
Ace Tourist Rentals (Aust) Pty Ltd) (‘Ace’) had an agreement known as a Master Fleet Facility Agreement with Toyota Fleet Management which is a division of Toyota Finance Australia Limited (‘Toyota’), under which Toyota would buy vehicles and lease them to Ace. The Agreement was dated 12 December 2011.
Ace wished to lease 36 Toyota Corolla motor vehicles under the agreement which would be utilised in their rental car operation. Ace were to identify the proposed vehicles and advise Toyota.
Dealer Network Queensland Pty Ltd (‘Dealer’) traded as Redcliffe Motor Auctions. Ace engaged the services of Dealer in May 2012 to identify and supply 36 used Toyota Corollas under the Master Fleet Facility Agreement.
Dealer arranged to buy the vehicles in groups of 21 and 15 from WTH Pty Ltd trading as Avis Rentals and to then sell them to Toyota. The sale price of the vehicles to Toyota was $17,701.65 each. Delivery of each vehicle was to be made to Ace concurrently with payment by Toyota to Dealer.
Toyota paid Dealer the amount of $371,784.65 on 23 May 2012, and the further amount of $265,524.75 on 13 June 2012. Dealer failed to deliver 12 of the vehicles. Toyota advised Dealer on 3 August 2012 that they were terminating the agreement as the terms has not been met, and demanded return of the amount of $267,823.10. No response was received from Dealer.
Dealer went into external administration on 19 September 2012 when Tracy Knight and Bill Fletcher of Bentleys (Qld) Pty Ltd were jointly appointed as Liquidators under a Court winding up.
Toyota claims that the event alleged to give rise to the claim is the failure of Dealer to ensure that Toyota gained clear title to the 12 vehicles at the time the property in the vehicles passed to Toyota, pursuant to s 470(1)(b) of the Property Agents and Motor Dealers Act 2000 (Qld) (‘the Act’). However, Dealer did not gain clear title to the vehicles as it had not paid Avis, and therefore property could not have passed.
The Chief Executive submits however, that Toyota is entitled to recover monies under s 302(4) of the Act. That section provides that if certain requirements are met, that the buyer may avoid a contract for sale of a used motor vehicle, and the motor dealer must do everything in its power to return the buyer to the position the buyer was in before the vehicle was purchased, and that if the buyer can not be returned to that position, is liable for any financial loss suffered by the buyer because the buyer cannot be returned to that position.
The Chief Executive submits that “the respondents have breached s 302(4) of the Act and the Applicant has suffered financial loss as a result”.[2]
[2]Submissions of the Chief Executive dated 16 Aug 2013 at [21].
Toyota claimed the amount of $212,419.80 from the claim fund, being 12 vehicles at $17,701.65 each, on 10 December 2012.
The Chief Executive submits that this loss has been suffered, but that under the Regulations to the Act the total amount that can be claimed is $200,000.[3]
[3]Submissions of the Chief Executive dated 16 Aug 2013 at [23].
Section 492(2) of the Act provides that:
492(2) A claimant may not recover from the fund for a single claim an amount more than the amount prescribed under a regulation.
Section 492(4) of the Act provides that:
A regulation may prescribe the total amount that may be paid from the fund because of, or arising out of, a contravention, failing to ensure clear title to a vehicle, stealing, misappropriation or misapplication by a single person.
The maximum amount that can be claimed in respect of either a “single claim” and a “single person” is set out in r 55 of the Property Agents and Motor Dealers Regulation 2001 (Qld) which provides that:
55 Limits on recovery from fund
(1)For section 492(2) of the Act, the amount prescribed for a single claim is $200,000.
(2)For section 492(4) of the Act, the total amount that may be paid from the fund because of, or arising out of, a wrong by a single person is $2,000,000.
Does this matter involve a “single claim” or a “single person”? I invited the parties by email dated 18 March 2014 from the Tribunal, to make submissions as to the following questions:
1Does Regulation 55(1) of the Property Agents and Motor Dealers Regulation 2001, which provides for a maximum payment for a single claim of $200,000 apply; or does Regulation 55(2) which provides for a maximum amount because of a wrong by a single person of $2,000,000 apply?
2.Does this matter concern a single claim of $212,419.80 which is subject to a maximum payment from the fund of $200,000 under regulation 55(1); or does it concern 12 separate purchases and 12 separate claims of $17,701.65 each, making a total of $212,419.80 which is within the maximum claimable against a single person of $2,000,000 under regulation 55(2)?
The Chief Executive filed submissions on these questions on 19 March 2014. It submitted that the only answer available to QCAT was that the matter concerns a single claim and is limited by regulation to a maximum of $200,000 payment from the claim fund. It noted, amongst other arguments, that the claim form referred to a group of nominated vehicles covered by the one agreement; that the claimant alleged only one event being the failure to return one single amount of money; that there was only one single termination notice covering the single transaction; and that the failure to return the single amount after the termination is the single event that is alleged to have caused the claimant’s loss.
The Solicitors for Toyota sent an email to the Tribunal dated 19 March 2014 in respect of this issue and said:
Our client accepts the OFT’s submission that the $200,000 cap should apply in these circumstances (i.e. that the matter relates to a single claim).
No submissions on this point were sought from the Respondents, but as it is to their advantage that the lesser amount apply, they could not suffer any detriment by acceptance of the single claim argument.
As the Claimant and the Chief Executive agree that this is a single claim, and as that is an arguable position which I am prepared to accept, I am satisfied that the claim is limited to a maximum of $200,000.
I therefore consider that Toyota is not entitled to recover the total financial loss of $212,419.80, and is restricted to a maximum recovery of $200,000.00 in these circumstances.
The Tribunal may name a person as liable for a claimant’s loss under s 530 of the Act. Section 490(2) provides that each person who was an executive officer of the corporation when the relevant event happened is jointly and severally liable to reimburse the fund.
Mr Barry Forbes was at all relevant times a Director and Secretary of Dealer. ASIC records disclose that he was appointed to those positions on 21 September 2007.
The Chief Executive sent a claim notice under s 474 and s 475 of the Act to the last known address of Dealer and Mr Forbes dated 1 May 2013, and those notices were not returned. Toyota gave written notice on 18 June 2013 that it wanted to proceed with the claim.
I issued Directions on 2 September 2013 requiring Toyota to file any additional material in addition to the material filed with the Application by 30 September 2013; and for Dealer and Mr Forbes to file any statements of evidence in reply by 28 October 2013. No such material was filed by any of these parties.
In the same Directions I required that any application for an oral hearing be filed by 30 September 2013, and that if no such application was received that the application would be determined on the papers not before 25 November 2013. No such applications were received.
I am therefore deciding this application on the papers on the material filed, as indicated.
I am satisfied that a breach of s 302(4) of the Act has been shown, and that Toyota has established that it has suffered financial loss that is claimable against the fund in the amount of $200,000.00.
I am also satisfied that Mr Barry Forbes is a responsible person under the Act and should be named as liable for the financial loss of Toyota.
Accordingly, I make orders as follows:
1. Pursuant to section 488 of the Property Agents and Motor Dealers Act 2000, the claim is allowed in the sum of $200,000.00.
2. Pursuant to section 489 of the Property Agents and Motor Dealers Act 2000, at the expiration of the appeal period the Chief Executive must pay to the Applicant the sum of $200,000.00 from the Claim Fund, and if there is an appeal, payment must not be made until after the appeal is finally decided.
3. Pursuant to section 488(3)(c) of the Property Agents and Motor Dealers Act 2000 the Respondents, Dealer Network Queensland Pty Ltd (Under External Administration) and Barry Forbes are named liable for the financial loss of the Applicant.
4. Upon payment from the Claim Fund and pursuant to sections 490 and 530 of the Property Agents and Motor Dealers Act 2000, Dealer Network Queensland Pty Ltd (Under External Administration) and Barry Forbes are jointly and severally liable to reimburse the Claim Fund by paying the sum of $200,000.00 to the Chief Executive, Department of Justice and Attorney-General.
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