Waller v Robinson

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

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.