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Queensland Judgments
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  • Unreported Judgment

Waller v Robinson

 

[2020] QCAT 241

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Waller v Robinson [2020] QCAT 241

PARTIES:

graeme waller

(applicant)

 

v

 

ivan robinson

(respondent)

APPLICATION NO/S:

OCL068-19

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

2 July 2020

HEARING DATE:

19 May 2020

HEARD AT:

Brisbane

DECISION OF:

Member Howe

ORDERS:

  1. The applicant has suffered financial loss of $36,000 caused by the respondent.
  2. The applicant’s claim against the fund is allowed in that sum of $36,000.
  3. The Chief Executive pay the sum of $36,000 from the fund to the applicant after the time to appeal the within decision expires.
  4. If the within decision is appealed the said sum not be paid until after the appeal is determined.
  5. The respondent is liable for the full amount of the applicant’s financial loss of $36,000.
  6. The respondent is liable to reimburse the fund for any money paid out of the fund by the Chief Executive to the applicant in accordance with these orders.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where the applicant claimed against the fund for financial loss caused by the respondent – where the respondent denied responsibility – where the Chief Executive referred the matter to the tribunal – where the respondent admitted causing the financial loss to the applicant at the hearing – where the applicant was entitled to claim for the loss under the fund

Agents Financial Administration Act 2014 (Qld) s 80,
s 82(1)(b),  s 95(1)(b)

APPEARANCES &

REPRESENTATION:

 

Applicant:

K Graham, Solicitor, Grahams Solicitors Conveyancing

Respondent:

Self-represented

REASONS FOR DECISION

  1. [1]
    Mr Waller owned a 2015 Harley-Davidson motorcycle. In September 2016 he asked Mr Robinson, who had a motorcycle repair shop at the Gold Coast and traded under the business name of Moto Solutions, to carry out some custom modifications on the bike.
  2. [2]
    Mr Waller paid a deposit of $12,000 for the work. In October 2016 he was told that the work had been completed and he was billed another $11,200. He transferred that sum to Mr Robinson’s account on 31 October 2016.
  3. [3]
    In early 2018 Mr Waller decided to sell his motorcycle. On 17 February 2018 he asked Mr Robinson to sell the bike for him. Mr Robinson agreed to sell it on consignment and prepared a consignment agreement which provided that Mr Robinson would receive $36,000 net and any monies received over that would belong to Mr Robinson. They signed the agreement.
  4. [4]
    Mr Robinson subsequently told Mr Waller that he had sold the motorcycle and had received a $10,000 deposit from the purchaser. Mr Robinson said he had paid that into Mr Waller’s account. Mr Waller said he did not receive it.
  5. [5]
    By August 2018 Mr Waller was becoming concerned because he had heard nothing further. He searched the registration of the motorcycle and found the vehicle had been registered in somebody else’s name on 10 March 2018.
  6. [6]
    Mr Waller engaged solicitors and the solicitors sued the registered owner of the business name Moto Solutions in the Southport Magistrates Court for $36,000.
  7. [7]
    It subsequently became clear that the registered owner of the business name Moto Solutions had no involvement with the business conducted by Mr Robinson nor with the sale of Mr Waller’s motorcycle.
  8. [8]
    On 17 October 2019 Mr Waller claimed against the claim fund to the Office of Fair Trading, Department of Justice and Attorney-General (‘the Chief Executive’).
  9. [9]
    By s 82(1)(b) of the Agents Financial Administration Act 2014 (Qld) (‘the Act’) a person may claim against the claim fund established under the Act if the person suffers financial loss because of certain nominated events including stealing or misappropriation of property by a relevant person.
  10. [10]
    By s 80 of the Act, a relevant person includes a person who is not licensed under an Agents Act[1] but who acts as a licensee. Mr Robinson had held a motor dealer’s licence in 2016 but not after that.
  11. [11]
    When contacted by the Department Mr Robinson said he had never signed the consignment agreement and that it was a fraudulent document.
  12. [12]
    He claimed Mr Waller had paid him to modify the motorcycle. He had been paid $12,000 but still owed Mr Robinson $14,000. Rather than pay that they had agreed that Mr Robinson would sell the motorcycle for Mr Waller and Mr Robinson would be paid what was owed him from the proceeds and any amount left over would be reimbursed to Mr Waller.
  13. [13]
    By s 95(1)(b) of the Act the Chief Executive may refer a claim against the fund to the tribunal to decide the claim if that may determine the claim more effectively than the Chief Executive deciding it. Accordingly Mr Waller’s claim has been referred to the tribunal given the significant divergence in the evidence of the parties.
  14. [14]
    Mr Waller was legally represented at hearing and Mr Robinson was self-represented.
  15. [15]
    At hearing Mr Robinson initially contested his liability but then during hearing admitted:
    1. (a)
      He took the motorcycle on consignment from Mr Waller.
    2. (b)
      He sold it to a third party and was paid at least $36,000 for it.
    3. (c)
      He did not pay any of the money received for the sale of the motorcycle to Mr Waller.
    4. (d)
      He kept the money and used it in his business which was failing.
    5. (e)
      He owes Mr Waller $36,000.
  16. [16]
    I therefore make the following findings.
  17. [17]
    Mr Waller has suffered financial loss because Mr Robinson stole or misappropriated the proceeds of sale of Mr Waller’s motorcycle given to him on consignment to sell. The motorcycle was sold for at least $36,000 but it may have been more.
  18. [18]
    At all material times Mr Robinson was a relevant person as defined under the Act.
  19. [19]
    Mr Waller’s financial loss is $36,000. He had paid all money owed to Mr Robinson for work done by Mr Robinson on the motorcycle prior to consigning it for sale to Mr Robinson.
  20. [20]
    Mr Robinson is the person responsible for Mr Waller’s financial loss.
  21. [21]
    Mr Waller’s claim against the fund for $36,000 has been established and that amount should be paid to him by the Chief Executive from the fund.
  22. [22]
    Mr Robinson is liable to reimburse the Chief Executive for any money paid out of the fund by the Chief Executive to Mr Waller in satisfaction of his financial loss.

Footnotes

[1] Including Motor Dealers and Chattel Auctioneers Act 2014 (Qld).

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Editorial Notes

  • Published Case Name:

    Waller v Robinson

  • Shortened Case Name:

    Waller v Robinson

  • MNC:

    [2020] QCAT 241

  • Court:

    QCAT

  • Judge(s):

    Member Howe

  • Date:

    02 Jul 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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