WRAY and COMMISSIONER FOR CONSUMER PROTECTION
[2017] WASAT 61
•13 APRIL 2017
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: CHATTEL SECURITIES ACT 1987 (WA)
CITATION: WRAY and COMMISSIONER FOR CONSUMER PROTECTION [2017] WASAT 61
MEMBER: MS D QUINLAN (MEMBER)
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 13 APRIL 2017
FILE NO/S: CC 164 of 2017
BETWEEN: BRADLEY ALLEN WRAY
Applicant
AND
COMMISSIONER FOR CONSUMER PROTECTION
Respondent
Catchwords:
Chattel Securities Act 1987 (WA) Certificate of security interests Writtenoff vehicle register Compensation
Legislation:
Chattel Securities Act 1987 (WA), s 3, s 3C(1), s 13(a), s 14, s 23, s 25, s 25(1), s 26
Chattel Securities Regulations 1988 (WA), reg 4
State Administrative Tribunal Act 2004 (WA), s 60(2)
Result:
Application for review dismissed
Decision of respondent affirmed
Summary of Tribunal's decision:
On 2 December 2016, the applicant made an application for compensation in the amount of $36,300.53 to the Commissioner for Consumer Protection under s 25(1) of the Chattel Securities Act 1987 (WA) (Act). The Commissioner refused the application and the applicant sought a review of that decision in the Tribunal.
On 26 May 2010, the vehicle (that the applicant was to later purchase) was recorded on the Department of Transport's writtenoff vehicle register (WOVR). Prior to purchasing the vehicle on 15 July 2011, the applicant applied for and received a certificate pursuant to s 23(1) of the Act in respect of the vehicle (certificate). The certificate recorded that no security interests were registered against the vehicle but did not record that the vehicle was or had been registered on the WOVR. However, attached to the certificate was an explanatory document which stated that results may appear in another section of the certificate regarding information received by the Commissioner from other agencies and statutory authorities concerning whether the vehicle is reported as stolen or as a statutory or repairable writeoff.
The Tribunal found that the duty of the Commissioner to keep a register of security interests in relation to registrable goods and the purpose of the Act is clear. The Commissioner is to provide a record of 'security interests', as defined, held over certain goods so that potential purchasers of those goods may determine whether or not they will obtain clear title to the goods. The Tribunal further found that the Commissioner does not have a duty under the Act to include in the register and the certificate whether or not a vehicle is, or was, recorded on the WOVR as this does not fit within the definition of a 'security interest'. If the Commissioner elects to inform people who apply for certificates within that document of information provided to the Commissioner from other government agencies and statutory authorities that is a matter that is separate from the Commissioner's duties under the Act.
The Tribunal found that the right to compensation under s 25(1) of the Act is a statutory right which arises when the Commissioner has failed to discharge his duty under s 23. The statutory duty under s 23 is to maintain an accurate register of security interests in Western Australia. In the facts of this matter the statutory duty had been discharged by the Commissioner as required under the Act.
Category: B
Representation:
Counsel:
Applicant: Self Represented
Respondent: N/A
Solicitors:
Applicant: N/A
Respondent: Department of Commerce
Case(s) referred to in decision(s):
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
Mr Bradley Wray (applicant) has sought a review in the Tribunal pursuant to s 26 of the Chattel Securities Act 1987 (WA) (Act) as he is aggrieved by a decision of the Commissioner for Consumer Protection (respondent or Commissioner) under s 25 of the Act.
On 2 December 2016, the applicant made a written application for compensation to the Commissioner pursuant to s 25(1) of the Act in the amount of $36,300.53.
On 9 January 2017, the Commissioner refused the application for compensation and sent a letter to the applicant advising that the Commissioner had formed the view that the applicant's claim does not fall within the provisions of the Act.
On 27 February 2017, the Tribunal made directions in this matter allowing for the exchange of documents, statements of issues facts and contentions and submissions regarding which both parties have duly complied. The Tribunal also ordered that this matter be determined entirely on the documents as provided for in s 60(2) of the State Administrative Tribunal Act 2004 (WA).
Facts
The relevant facts are largely, if not entirely, agreed in this matter.
On 26 May 2010, the BMW motor vehicle with VIN/Chassis number WBANB520X0CR76146 (vehicle) was recorded on the Department of Transport's writtenoff vehicle register (WOVR).
On 15 July 2011, the applicant applied for and received a certificate pursuant to s 23(1) of the Act in respect of the vehicle (certificate). The certificate did not record that the vehicle was or had been registered on the WOVR. The certificate included the following information:
a)It was addressed to the applicant.
b)The certificate was signed by the Commissioner with the relevant government department being the Department of Commerce and the section within that department being the Register of Encumbered Vehicles WA (REVS).
c)'The information provided in the section titled "Certificate of Security Interests Registered in Western Australia" was issued pursuant to Section 23 of the Chattel Securities Act 1987. The details were taken from the register at the date and time shown'.
d)Under the heading 'Certificate of Security Interests Registered in Western Australia' the certificate recorded 'No Interest Registered in WA'.
e)'PLEASE NOTE: In accordance with Section 23 of the Chattel Securities Act 1987, REVS confirms that information in respect of security interests registered in Western Australia is accurate. REVS provides information from other agencies and statutory authorities for the general assistance of the enquirer and no liability will be accepted for the accuracy of this additional information'.
Attached to the certificate was a document entitled 'What the Results on this Certificate Mean' which included an explanation that results may appear in the section of the certificate marked 'INFORMATION FROM OTHER AGENCIES AND STATUTORY AUTHORITIES' concerning whether the vehicle is reported as stolen or as a statutory or repairable writeoff.
Later on 15 July 2011, following receipt of the certificate, the applicant purchased the vehicle.
There is no evidence before the Tribunal as to whether or not the fact that the vehicle was, or had been, recorded on the WOVR was known to the Commissioner at the time of issuing the certificate. For the reasons which follow, whether this fact was known to the Commissioner, is immaterial to the statutory duty required under s 23 and the right to compensation under s 25 of the Act.
Issue
The issue that arises for determination by the Tribunal is whether the applicant has a claim for compensation arising under s 25(1) of the Act.
The applicant's submissions
The applicant submits that he would not have purchased the vehicle if the certificate had shown that the vehicle was on the WOVR. This is because there are potentially a number of safety issues which arise in owning a vehicle which has been writtenoff and there are a number of practical issues which also arise such as difficulties in obtaining a bank loan, insurance and resale of the vehicle.
The applicant submits that, as the document attached to the certificate refers to specific matters being included in the certificate, such as whether the vehicle was on the WOVR, the applicant is entitled to rely on the certificate as being definitive advice that the vehicle was not recorded on the WOVR. Therefore, the applicant submits he is entitled to compensation for his loss or damage arising from the purchase of the vehicle.
The Commissioner's submissions
The Commissioner submits that he is required under the Act to keep a register in which is to be entered 'security interests' in relation to 'registrable goods'. The Commissioner also submits that the register is limited in nature and was not intended to be a comprehensive record of the history of goods recorded in the register. Further, the Commissioner submits whether or not a vehicle is, or has been, on the WOVR is neither a 'security interest' as defined nor is it one of the particulars required to be recorded in the register. Therefore, the Commissioner submits that the applicant's claim for compensation cannot be allowed under s 25 of the Act.
The Commissioner also informs the Tribunal that at the time that the applicant obtained the certificate, there was a system in place for the provision of information from the Department of Transport to the Commissioner regarding the WOVR status of vehicles. Where available, the respondent would include such information in the same physical document as the certificate. However, the Commissioner submits that the fact that, where available, the Commissioner included this information on the certificate does not make that information an entry in the register or part of the certificate referred to in s 23 of the Act.
Chattel Securities Act
Section 25 of the Act provides that where a person who suffers loss or damage arising from, or in connection with, the purchase of registrable goods is entitled to make an application to the Commissioner for an order for payment of compensation if before the purchase was made an application was made for a certificate under s 23(1)(a) and that certificate did not contain particulars of an entry in the register relating to those goods at the time the details were provided or obtained.
The Act no longer has effect otherwise than as specified in s 3C(1). The right to apply for compensation under s 25(1) and to apply to the Tribunal for review of a decision is preserved.
Section 3 of the Act includes the following relevant definitions:
register means [a] register kept under Part III;
registrable goods means goods to which Part III applies;
security interest means an interest in or a power over goods (whether arising by or pursuant to an instrument or transaction) which secures payment of a debt or other pecuniary obligation or the performance of any other obligation and includes any interest in or power over goods of a lessor, owner or other supplier of goods, but does not include a possessory lien or pledge[.]
Section 13(a) of the Act provides that motor vehicles are registrable goods. Pursuant to s 14 of the Act, the Commissioner has a duty to keep a register in the prescribed form or in the prescribed manner in which shall be entered security interests in relation to registrable goods.
Regulation 4 of the Chattel Securities Regulations 1988 (WA) (Regulations) prescribes that the register must record various details relating to the identity of the goods and the security interest held in relation to the goods.
Consideration
The duty, or obligation, of the Commissioner to keep a register of security interests in relation to registrable goods under the Act is clear. The purpose of the Act is also equally clear, it is to provide a record of 'security interests', as defined, held over certain goods so that potential purchasers of those goods may determine whether or not they will obtain clear title to the goods in the event that they purchase the goods. This purpose is supported in reg 4 of the Regulations which prescribes what information the register must contain.
Relevant to these proceedings, the Tribunal finds that the Commissioner does not have a duty under the Act to include in the register and the certificate whether or not a vehicle is, or was, recorded on the WOVR. The fact that a vehicle is, or has been, registered as writtenoff does not fit within the definition of a 'security interest' under the Act. If the Commissioner elects to inform people who apply for certificates within that document of information provided to the Commissioner from other government agencies and statutory authorities that is a matter that is separate from the Commissioner's obligations or duties under the Act.
The Tribunal has some sympathy for the applicant's position, in that he reasonably understood and expected from the explanatory note attached to the certificate that, if the vehicle was on the WOVR, he would be informed on the certificate. However, the right to compensation under s 25(1) of the Act is a statutory right to compensation which arises when the Commissioner has failed to discharge his duty under s 23. The statutory duty under s 23 of the Act is to maintain an accurate register of security interests in Western Australia. In the facts of this matter the statutory duty has been discharged by the Commissioner as required under the Act.
Therefore, a right to compensation under s 25(1) of the Act does not arise in these proceedings.
Orders
Accordingly, the Tribunal orders as follows:
1.The application for review is dismissed.
2.The decision of the respondent on 9 January 2017 to refuse the application for compensation is affirmed.
I certify that this and the preceding [24] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS D QUINLAN, MEMBER
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