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The Chief Executive, Department of Justice and Attorney-General v Wanless[2015] QCAT 128

The Chief Executive, Department of Justice and Attorney-General v Wanless[2015] QCAT 128

CITATION:

The Chief Executive, Department of Justice and Attorney-General v Wanless [2015] QCAT 128

PARTIES:

The Chief Executive, Department of Justice and Attorney-General

(Applicant)

 

v

 

Daniel Charles Wanless

(Respondent)

APPLICATION NUMBER:

OCR213-14

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Paratz

DELIVERED ON:

21 April 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. Daniel Charles Wanless is, pursuant to s 117 and s 119 of the Agents Financial and Administration Act 2014, liable to reimburse, and is ordered to pay, to the Claim Fund established under s 78 of the Agents Financial and Administration Act 2014, the sum of $2,120.00 within 21 days of the date of this order.

CATCHWORDS:

REIMBURSEMENT ORDER – PAMDA – whether a reimbursement order should be made – where a motor vehicle dealer made misrepresentations by winding back speedometer

Property Agents and Motor Dealers Act 2000 (Qld), s 482, s 483, s 527, s 528, s 532

Agents Financial Administration Act 2014 (Qld)

APPEARANCES:

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

REASONS FOR DECISION

  1. [1]
    The Chief Executive, Office of Fair Trading, Department of Justice and Attorney-General (the Chief Executive) paid $2,120.00 to Rhys Poljakow from the Claim Fund established under the Property Agents and Motor Dealers Act 2000 (Qld) (PAMDA – referred to as “the Act” in these Reasons, and Section references in these reasons are to PAMDA unless otherwise stated). The Claim Fund is now administered under the Agents Financial Administration Act 2014 (Qld) (AFFA).
  2. [2]
    Mr Wanless held a Principal Motor Dealer Licence from 11 November 2009 to 11 November 2011.
  3. [3]
    The claims related to the sale of a Nissan Navara D22 utility to Mr Poljakow, and misrepresentation as to the winding back of the speedometer.
  4. [4]
    The claim was paid after a decision by the Chief Executive made on 14 December 2012, which allowed the claim in the amount of $2,120.00, and named Daniel Charles Wanless (Mr Wanless) as a person liable for the claimant’s financial loss, and liable to reimburse the Claim Fund in the sum of $2,120.00.
  5. [5]
    The Chief Executive filed an application on 23 September 2014, pursuant to s 527, for a reimbursement order against Mr Wanless.
  6. [6]
    The Chief Executive sent a Letter of Demand to Mr Wanless on 20 March 2013 demanding repayment of the amount of $2,120.00.
  7. [7]
    Section 527 provides that a certain documents must accompany the application. They are:
  1. (a)
    a copy of the claim against the fund in relation to which the application is made;
  1. (b)
    copies of the written notice of the chief executive’s decision, the decision and the information notice given under section 482;
  1. (c)
    a copy of the letter of demand given under section 490(4);
  1. (d)
    a statutory declaration by the chief executive stating –
  1. (i)
    the amount paid from the fund in settlement of the claim; and
  1. (ii)
    the amount of any payment received from the respondent in satisfaction of the claim.
  1. [8]
    Notice of the application is then to be given to the respondents as set out in s 528.
  2. [9]
    The Tribunal does not have any discretion as to making a reimbursement order. Section 532(2) provides that the Tribunal must make a reimbursement order if satisfied that:
  1. (a)
    the chief executive has made a decision in relation to a claim against the fund; and
  1. (b)
    under the chief executive’s decision the respondent is liable to reimburse the fund in a stated amount; and
  1. (c)
    written notice of the chief executive’s decision, a copy of the decision and an information notice under section 482 was given to the respondent; and
  1. (d)
    the respondent did not apply to the tribunal to have the chief executives decision reviewed under section 483; and
  1. (e)
    the respondent has not paid the stated amount within the time allowed under the letter of demand
  1. [10]
    The only issues for the Tribunal to consider on this application therefore are:
    1. Has the Chief Executive complied with s 527?
    2. Has the appropriate notice been given under s 528?
    3. Have the requirements of s 532 been complied with?

Has the Chief Executive complied with s 527?

  1. [11]
    The application that was filed has a copy of the PAMD Form 50 ‘Claim against the Claim Fund’ attached. It also has a copy of the written notice of the decision, the decision and the information notice given under s 482.
  2. [12]
    A statutory declaration by Mr Tan, who is an authorised delegate of the Chief Executive, dated 19 September 2014 is attached to the application. He deposes that the sum of $2,120.00 has been paid out from the Claim Fund in settlement of the claim, that no payments have been received towards the debt owed to the Claim Fund, and that the amount remains outstanding.
  3. [13]
    Each of the requirements of s 527 have therefore been complied with.

Has the appropriate notice been given under s 528?

  1. [14]
    Section 528 provides for the sending of a copy of the application and accompanying documents to the respondent, and advice that the Tribunal will make an order if it is satisfied of the matters set out in the section.
  2. [15]
    The respondent must also be invited to make any submissions about when and in what way the respondent intends to satisfy the amount paid from the fund in settlement of the claim.[1]
  3. [16]
    The Tribunal gave Directions on 20 October 2014 referring to s 528 and giving the necessary advice that the Tribunal would make a reimbursement order if satisfied of the matters set out in that section and in the Direction.
  4. [17]
    The envelope containing the Directions was posted to Mr Wanless on 22 October 2014, and was not returned to the Tribunal.
  5. [18]
    No submissions have been made by Mr Wanless.
  6. [19]
    I am satisfied that s 528 has been complied with.

Have the requirements of s 532 been complied with?

  1. [20]
    I am satisfied that:
    1. The Chief Executive has made a decision in relation to the claims against the fund as listed in these reasons;
    2. Under the Chief Executive’s decision, Mr Wanless is liable to reimburse the fund for $2,120.00;
    3. Written notice of the Chief Executive’s decision, a copy of the decision and an information notice was given to Mr Wanless under s 482;
    4. Mr Wanless did not apply to the Tribunal to have the Chief Executive’s decision reviewed under s 483; and
    5. Mr Wanless has not paid the amount within the time allowed under the letter of demand.
  2. [21]
    I am therefore satisfied that each of the matters referred to in s 532(2) have been complied with, and that a reimbursement order must be made.

Conclusion

  1. [22]
    I am satisfied that the requirements for a reimbursement order have been made out under the Property Agents and Motor Dealers Act 2000, and that a Reimbursement Order must be made.
  2. [23]
    I make Reimbursement Orders, framed in terms of the Agents Financial Administration Act 2014, for the amount sought in the Application, and set 21 days as the period for payment.

Footnotes

[1] Act s 528(2).

Close

Editorial Notes

  • Published Case Name:

    The Chief Executive, Department of Justice and Attorney-General v Daniel Charles Wanless

  • Shortened Case Name:

    The Chief Executive, Department of Justice and Attorney-General v Wanless

  • MNC:

    [2015] QCAT 128

  • Court:

    QCAT

  • Judge(s):

    Member Paratz

  • Date:

    21 Apr 2015

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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