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Queensland Judgments
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The Chief Executive, Office of Fair Trading, Department of Justice and Attorney-General v Abla

 

[2020] QCAT 28

 

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

 

CITATION:

The Chief Executive, Office of Fair Trading, Department of Justice and Attorney-General v Abla [2020] QCAT 28

PARTIES:

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

(applicant)

 

v

 

michael abla

(respondent)

APPLICATION NO/S:

OCL026-19

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

24 January 2020

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Howe

ORDERS:

  1. Mr Michael Abla is, pursuant to s 119 of the Agents Financial Administration Act 2014 (Qld) liable to reimburse the chief executive and is ordered to pay to the claim fund established under s 78 of the Agents Financial Administration Act 2014 (Qld) the sum of $1,570.00 within 21 days of the date of this order.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where the respondent purported to act as a motor dealer – where the respondent made misrepresentations in a sale – where as a result of the misrepresentations the buyer suffered financial loss – where the chief executive paid out monies from the claim fund in respect of the financial loss – where a reimbursement order sought

Agents Financial Administration Act 2014 (Qld) s 80, s 82(1), s 119(2)

Motor Dealers and Chattel Auctioneers Act 2014 (Qld) s 216

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]
    The Chief Executive, Office of Fair Trading, Department of Justice and Attorney-General (“the chief executive”) has paid out of the claim fund an amount of $1,570.00. The chief executive seeks to recover that money from Michael Abla (“Mr Abla”) in this application to the tribunal.
  1. [2]
    The chief executive maintains that Mr Abla made misrepresentations whilst acting as an agent in the sale of a motor vehicle and those misrepresentations caused financial loss to a person who consequently made a claim on the fund.

The circumstances of the misrepresentation

  1. [3]
    The chief executive submits the circumstances were as follows. On about 18 July 2016 a person representing the corporate buyer (“the buyer”) saw an advertisement for a Hyundai i20 motor vehicle on Gumtree. It was advertised for sale for $10,500.00. The advertisement said it had the balance of a new car warranty through to 5 July 2017.
  2. [4]
    The buyer met with Mr Abla. Mr Abla told him that the vehicle belonged to Mr Abla’s wife and it was only used to travel to Brisbane occasionally from the Gold Coast. His wife had ‘quit her job’ so they had no further use for the vehicle. The buyer paid $8,750.00 to Mr Abla for the vehicle. The buyer asked for the vehicle logbook and warranty papers and Mr Abla claimed they were with his wife. He promised to supply them but never did.
  3. [5]
    The buyer subsequently telephoned Hyundai to ask about the history of the vehicle and he was told it was still under new car warranty. That was wrong. The warranty had in fact been voided because of a failure to regularly service the vehicle as required under the warranty conditions.
  4. [6]
    In fact the vehicle was a repairable write-off caused by impact damage. The buyer was not told that. He continued to drive the vehicle but it dragged to the left when driven. He told the chief executive if he had known the accident history of the vehicle he would never have purchased it.
  5. [7]
    The vehicle was first registered in Mr Abla’s name on 30 June 2016. It was transferred into the buyer’s name on 18 July 2016.
  6. [8]
    On 27 March 2017 the buyer lodged a claim against the claim fund seeking $8,750.00 for financial loss claimed suffered as a result of Mr Abla misrepresenting the history of the vehicle.
  7. [9]
    The buyer said before purchasing the vehicle Mr Abla had sent him page one, but not page two, of a two page Personal Property Securities Register (PPSR) document. The chief executive maintained page two of the PPSR document would have disclosed the history of the vehicle.
  8. [10]
    The chief executive asked the buyer to provide a valuation of the vehicle which was done and the value as at June 2016 was estimated to be $7,400.00.
  9. [11]
    Accordingly the chief executive accepted the buyer had suffered financial loss because of Mr Abla’s misrepresentations.
  10. [12]
    The history of the vehicle showed Mr Abla owned the vehicle for less than one month prior to selling it to the buyer. Given that, the chief executive concluded the representation that it was Mr Abla’s wife that owned the vehicle was false. Further, Mr Abla had represented something that was false or misleading in relation to the sale of the vehicle by intentionally omitting and thereby concealing the second page of the PPSR when providing it to the buyer.
  11. [13]
    By s 216 of the Motor Dealers and Chattel Auctioneers Act 2014 (Qld) (“MDACA”):

216  False representations about goods

(1) A licensee or motor salesperson must not represent in any way to someone else anything that is false or misleading about the sale or auction of goods.

(2) Without limiting subsection (1), a representation is taken, for the subsection, to be false or misleading if it would reasonably tend to lead to a belief in the existence of a state of affairs that does not in fact exist, whether or not the representation indicates that state of affairs does exist.

(7) In this section—

false or misleading, in relation to a representation, includes the wilful concealment of a material fact in the representation.

Note—

A person may make a claim, under the Administration Act, against the fund if the person suffers financial loss because of a contravention of this section.

  1. [14]
    Section 82(1) of the Agents Financial Administration Act 2014 (Qld) (“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, one such being contravening s 216 MDACA.
  2. [15]
    By s 80 of the Act, a relevant person includes an agent. An agent includes a person who is not licensed under MDACA but who acts as a licensee. 
  3. [16]
    On 12 June 2017 Mr Abla pleaded guilty to acting as a motor dealer in the Southport Magistrates Court.
  4. [17]
    The chief executive was satisfied that Mr Abla was a relevant person who had committed a claimable event within the meaning of s 216 MDACA and s 82(1) of the Act.
  5. [18]
    The chief executive calculated the buyer’s loss as the difference between the price of the vehicle as a repairable write-off and the price the buyer actually paid at time of purchase which was $1,350.00. The price of obtaining the vehicle valuation was $220.00. The buyer’s total financial loss suffered was therefore $1,570.00.
  6. [19]
    I accept the chief executive gave an information notice to Mr Abla on 2 November 2017 advising that he intended to pay that sum out of the fund to the claimant in accordance with the requirement to do that under s 102 of the Act and thereafter to seek recovery of the amount from Mr Abla.
  7. [20]
    I accept that Mr Abla failed to respond within 28 days as required.[1] Mr Abla did not challenge the decision and accordingly the chief executive’s decision is binding on him and he is liable to reimburse the fund the amount paid out.[2]
  8. [21]
    I accept that thereafter the chief executive demanded on 4 September 2018 payment of $1,570.00. This amount has not been paid by Mr Abla.
  9. [22]
    I accept service of the application to the tribunal with supporting documents has been effected on Mr Abla.[3]
  10. [23]
    I accept the chief executive has filed a statutory declaration stating that the amount of $1,570.00 has been paid out of the fund in settlement of the subject claim and no payment has been made by Mr Abla.[4]
  11. [24]
    Accordingly, by s 119(2) of the Act I am obliged to make a reimbursement order.
  12. [25]
    I order that the respondent, Mr Michael Abla is, pursuant to s 119 of the Act, liable to reimburse the chief executive and is ordered to pay to the claim fund established under s 78 of the Act, the sum of $1,570.00 within 21 days of the date of order.

Footnotes

[1] Agents Financial Administration Act 2014 (“the Act”) s 103.

[2]Ibid, s 102(3)(c)(ii).

[3]Affidavit of Service of Susan Monfries sworn 3 May 2019.

[4]Statutory Declaration of Nicholas Pirie sworn 26 March 2019.

Close

Editorial Notes

  • Published Case Name:

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

  • Shortened Case Name:

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

  • MNC:

    [2020] QCAT 28

  • Court:

    QCAT

  • Judge(s):

    Member Howe

  • Date:

    24 Jan 2020

Appeal Status

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