Loading...
Queensland Judgments
Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

The Chief Executive, Office of Fair Trading, Department of Justice and Attorney-General v Millard

 

[2019] QCAT 343

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

The Chief Executive, Office of Fair Trading, Department of Justice and Attorney-General v Millard [2019] QCAT 343

PARTIES:

The Chief Executive, Office of Fair Trading, Department of Justice and Attorney-General

(applicant)

v

brian lennox millard

(respondent)

APPLICATION NO/S:

OCL028-19

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

8 November 2019

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Howe

ORDERS:

Brian Lennox Millard is, pursuant to s 119 of the Agents Financial Administration Act 2014 (Qld), liable to reimburse and is ordered to pay to the claim fund established under s 78 of the Agents Financial Administration Act 2014 (Qld) the sum of $20,850 within 21 days of the date of this order.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where a corporate motor dealer misappropriated money belonging to a person causing financial loss – where the corporation was placed in liquidation – where the respondent was a director and therefore executive officer of the corporation at the material times – where the chief executive paid out monies from the claim fund for the financial loss – where a reimbursement order was sought from the director

Agents Financial Administration Act 2014 (Qld), s 78, s 82(1), s 101(1), s 102(3)(c)(ii), s 103, s 113(5), s 116(4), s 119

REPRESENTATION:

 

Applicant:

Self-represented by S Monfries

Respondent:

Self-represented

APPEARANCES:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

  1. [1]
    At all material times Millard Noosa Motors Pty Ltd (in liquidation) was licensed as a motor dealer corporation and Mr Millard was licensed as a motor dealer principal.
  1. [2]
    The chief executive maintains that Mr Millard’s company, Millard Noosa Motors Pty Ltd (in liquidation), failed to pay out money received by the company on behalf of a person (‘the claimant’) in the course of its activities as an agent to the person.
  2. [3]
    Alternatively Millard Noosa Motors Pty Ltd (in liquidation) stole, misappropriated or misapplied the money entrusted to it.
  3. [4]
    In result the claimant suffered financial loss and has claimed that loss from the fund established under s 78 of the Agents Financial Administration Act 2014 (Qld) (‘the Act’).
  4. [5]
    The chief executive has paid out of the fund an amount of $20,850 to the claimant for his loss. The chief executive now seeks to recover that money from Mr Millard given Millard Noosa Motors Pty Ltd is in liquidation.

The circumstances of the misappropriation

  1. [6]
    The chief executive submits on 30 June 2013 Kristin Elmes, the claimant, appointed Millard Noosa Motors Pty Ltd to sell his 2007 Chrysler 300C motor vehicle on consignment. A form 34 appointment of a motor dealer to sell a car on consignment under the repealed Property Agents and Motor Dealers Act 2000 was signed by the parties.
  2. [7]
    On or about 30 August 2013 the company sold the vehicle to a third party for $31,500.
  3. [8]
    On 23 September 2013 the company advised the claimant the claimant was entitled to a net amount of $28,350 from the sale.
  4. [9]
    However Millard Noosa Motors Pty Ltd only paid a total of $7,500 to the claimant. The balance has never been paid.
  5. [10]
    The claimant lodged a claim against the fund for the balance of $20,850 and also claimed interest on that amount of $1,563.
  6. [11]
    Section 82(1) of the Act provides that a person may make a claim against the fund if the person suffers a financial loss because of the happening of an event mentioned in that provision caused by a relevant person. A relevant person is defined under s 80 to include an agent. A defined event is stealing, misappropriation or misapplication of property entrusted to an agent. The chief executive maintains the balance money due the claimant was stolen, misappropriated or misapplied by Millard Noosa Motors Pty Ltd as an agent and therefore the claimant was entitled to claim the loss from the fund.
  7. [12]
    By s 116(4) of the Act if the responsible person liable to reimburse the fund from monies paid out on a claim on the fund is a corporation, each person who was an executive officer of the corporation when the relevant event referred to in section 82 happened is jointly and severally liable to reimburse the fund. 
  8. [13]
    Mr Millard was a director of Millard Noosa Motors Pty Ltd from 16 March 2010 to 21 October 2013 and was therefore an executive officer[1] of the company when the stealing, misappropriation or misapplication of property occurred. Millard Noosa Motors Pty Ltd is now in liquidation and the chief executive seeks to recover the money paid out of the fund to the claimant from Mr Millard.
  9. [14]
    By s 113(5) of the Act, interest is not payable from the fund for a claim allowed against the fund. The claimant’s total financial loss was therefore limited to $20,850.
  10. [15]
    I accept the chief executive gave an information notice to Mr Millard on 15 December 2014[2] advising that he intended to pay that sum out of the fund to the claimant and thereafter seek recovery of the amount from Mr Millard.
  11. [16]
    I accept that Mr Millard failed to respond within 28 days as required[3] to challenge the decision and, accordingly, the chief executive’s decision is now binding on Mr Millard,[4] and Mr Millard is liable to reimburse the fund the amount paid out.[5]
  12. [17]
    I accept that on 25 March 2015 the chief executive demanded payment of $20,850 from Mr Millard but he has not paid any money to date.
  13. [18]
    I accept service of the within application to the tribunal with supporting documents has been effected on Mr Millard.[6]
  14. [19]
    I accept the chief executive has filed a statutory declaration[7] stating that the amount of $20,850 has been paid out of the fund in settlement of the subject claim and no payment has been received from Mr Millard.[8]
  15. [20]
    Accordingly, by s 119(2) of the Act, I am obliged to make a reimbursement order.
  16. [21]
    I order that the respondent Brian Lennox Millard is, pursuant to s 119 of the Act, liable to reimburse and is ordered to pay to the claim fund the sum of $20,850 within 21 days of the date of order.

Footnotes

[1]Schedule 1 of the Act, definition of executive officer: ‘a person, by whatever name called and whether or not the person is a director of the corporation, who is concerned, or takes part, in the management of the corporation.’

[2]As required by s 102 of the Act.

[3]Ibid s 103: application to the tribunal to review the decision of the chief executive.

[4]Ibid s 101(1).

[5]Ibid s 102(3)(c)(ii).

[6]Affidavit of service of Susan Monfries, sworn 3 May 2019.

[7]As required by s 117(4)(c) of the Act.

[8]Statutory Declaration of Nicholas Pirie, sworn 12 March 2019.

Close

Editorial Notes

  • Published Case Name:

    The Chief Executive, Office of Fair Trading, Department of Justice and Attorney-General v Brian Lennox Millard

  • Shortened Case Name:

    The Chief Executive, Office of Fair Trading, Department of Justice and Attorney-General v Millard

  • MNC:

    [2019] QCAT 343

  • Court:

    QCAT

  • Judge(s):

    Member Howe

  • Date:

    08 Nov 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
Help

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.