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The Chief Executive, Department of Justice and Attorney-General v Ada[2015] QCAT 129

The Chief Executive, Department of Justice and Attorney-General v Ada[2015] QCAT 129

CITATION:

The Chief Executive, Department of Justice and Attorney-General v Ada & Anor [2015] QCAT 129

PARTIES:

The Chief Executive, Department of Justice and Attorney-General

(Applicant)

 

v

 

Abdulgani Ada

George Ader (AKA Khan Ada)

(Respondents)

APPLICATION NUMBER:

OCR226-14

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Paratz

DELIVERED ON:

13 April 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. Abdulgani Ada and George Ader (also known as Khan Ada) are, pursuant to s 117 and s 119 of the Agents Financial and Administration Act 2014, jointly and severally liable to reimburse, and are ordered to pay, to the Claim Fund established under s 78 of the Agents Financial and Administration Act 2014, the sum of $30,985.36 within three (3) months of the date of this order.
  2. Abdulgani Ada 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 further sum of $2,575.00 within three (3) months of the date of this order.

CATCHWORDS:

REIMBURSEMENT ORDER – PAMDA – Who is a responsible person under PAMDA – whether a reimbursement order should be made – where a motor vehicle dealer made misrepresentations, including winding back speedometers

Property Agents and Motor Dealers Act 2000 (Qld)

Agents Financial Administration Act 2014 (Qld)

Laurence v Chief Executive, Department of Justice and Attorney-General [2012] QCAT 698

Piggott & Ors v Siti Real Estate Pty Ltd & Ors [2013] QCAT 188

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).

REPRESENTATIVES:

 

APPLICANT:

The Chief Executive, Department of Justice and Attorney-General represented by Chief Executive

RESPONDENT:

Abdulgani Ada represented by Jacobson Mahony Lawyers

George Ader AKA Khan Ada represented by Nic Tobin Legal Pty Ltd

REASONS FOR DECISION

  1. [1]
    The Chief Executive, Office of Fair Trading, Department of Justice and Attorney-General (the Chief Executive) paid $35,688.36 to several claimants 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]
    The claims were paid after decisions by the Chief Executive and an Order by the Tribunal. The decisions by the Chief Executive named Abdulgani Ada (Abdulgani) and George Ader AKA Khan Ada (Khan) as persons liable to reimburse the fund jointly and severally in the sum of $30,985.36, and Abdulgani as liable to reimburse a further sum of $2,575.00.
  3. [3]
    The Chief Executive filed an application on 29 September 2014 under PAMDA for reimbursement orders against Abdulgani and Khan in respect of the decisions of the Chief Executive.
  4. [4]
    Abdulgani held a Motor Dealer Principal Licence and operated a business known as Master Cars on the Gold Coast. Khan worked with Abdulgani in the business. Abdulgani is the uncle of Khan.
  5. [5]
    The claims related to misrepresentation as to motor vehicles that were sold, including the winding back of speedometers.
  6. [6]
    The decisions by the Chief Executive were as follows:

Claimant

Date decided

Amount  allowed

Joint liability

Abdulgani sole liability

Abdulgani total liability

Kimber

29 May 2012

$6,674.00

$6,674.00

 

$6,674.00

Nunes

29 July 2012

$5,836.36

$5,836.36

 

$5,836.36

Munro

1 Aug 2012

$1,920.50

$   710.00

$1,210.50

$1,920.50

Grant

3 Sept 2012

$6,612.00

$5,620.00

$   992.00

$6,612.00

Brown

19 Sept 2012

$4,500.00

$4,500.00

 

$4,500.00

Kirkcaldie

13 Dec 2012

$4,307.50

$3,935.00

$   372.50

$4,307.50

Edgell

27 Mar 2013

$3,710.00

$3,710.00

 

$3,710.00

SUBTOTAL

 

$33,560.36

$30,985.36

$2,575.00

$33,560.36

  1. [7]
    The Tribunal made a decision as follows:

Claimant

Date decided

Amount allowed

Joint liability

Abdulgani sole liability

Abdulgani total liability

Laurence

12 Nov 2012

$2,128.00

$2,128.00

 

$2,128.00

  1. [8]
    The totals are as follows:
  

Amount allowed

Joint liability

Abdulgani sole liability

Abdulgani total liability

TOTAL

 

$35,688.36

$33,113.36

$2,575.00

$35,688.36

  1. [9]
    The Orders made by the Tribunal were made in Laurence v Chief Executive, Department of Justice and Attorney-General.[1] Those orders included a reimbursement order that Abdulgani and Khan were jointly and severally liable to reimburse the fund in the sum of $2,128.00 upon payment from the fund.
  2. [10]
    The Chief Executive sent a Letter of Demand to Abdulgani on 20 September 2013 demanding repayment of the amount of $35,688.36.
  3. [11]
    The Chief Executive sent a Letter of Demand to Khan on 20 September 2013 demanding repayment of the amount of $33,113.36.
  4. [12]
    The letters of demand sent by the Chief Executive refer to the totals of the decisions made by the Chief Executive and the Tribunal. The letters of demand are exhibited to the Statement of Claim and marked OFT-15.
  5. [13]
    The Application for a reimbursement order only seeks the amounts that were subject to the decisions by the Chief Executive, and only refers in the attached Statement of Claim to the decisions of the Chief Executive.
  6. [14]
    Section 527 provides that the Chief Executive may apply to the Tribunal for a reimbursement order. There are a number of documents that must accompany the application. They are:
  1. (a)
    A copy of the claim against the fund in relation to which the application is made;
  2. (b)
    Copies of the written notice of the chief executive’s decision, the decision and the information notice given under section 482;
  3. (c)
    A copy of the letter of demand given under section 490(4);
  4. (d)
    A statutory declaration by the chief executive stating –
  1. the amount paid from the fund in settlement of the claim; and
  2. the amount of any payment received from the respondent in satisfaction of the claim
  1. [15]
    Notice of the application is then to be given to the respondents as set out in s 528.
  2. [16]
    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
  2. (b)
    Under the chief executive’s decision the respondent is liable to reimburse the fund in a stated amount; and
  3. (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
  4. (d)
    The respondent did not apply to the tribunal to have the chief executives decision reviewed under section 483; and
  5. (e)
    The respondent has not paid the stated amount within the time allowed under the letter of demand.
  1. [17]
    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. [18]
    The application that was filed has a copy of the PAMD Form 50 “Claim against the Claim Fund” attached for each of the claims. It also has a copy of the written notice of the decision, the decision and the information notice for each of the claims.
  2. [19]
    A statutory declaration by Mr Tan, who is an authorised delegate of the Chief Executive, dated 26 September 2014 is attached to the application. He deposes that the sum of $33,560.36 has been paid out by the claim fund in settlement of the claims, that no payments have been received from Abdulgani or Khan, and that the amount remains outstanding.
  3. [20]
    Each of the requirements of s 527, apart from the letter of demand, have therefore been clearly complied with.
  4. [21]
    Two questions arise as to the letters of demand:
    1. Both letters of demand require payment of a greater sum than the application, as they include the Tribunal ordered amount. Are the letters of demand compliant when they are not for the same amount as the application?
    2. The letter of demand to Khan demands a lesser amount than the total of the table set out on the first page of the letter.
  5. [22]
    The letters of demand do clearly set out the Tribunal ordered amount of $2,128.00 separately from a table setting out the claims determined by the Chief Executive.
  6. [23]
    The letter of demand sent to Abdulgani[2] demands payment of $35,688.00, but the amount decided by the Chief Executive against him, and sought in the Application, is a total of only $33,560.36.
  7. [24]
    The letter of demand sent to Khan[3] demands payment of $33,113.36, but the amount decided by the Chief Executive against him, and sought in the Application, is a total of only $30,985.36.
  8. [25]
    The letter of demand sent to Khan demands a total amount of $33,113.36, but the basis of calculation of that amount is not itemised, or explained, in the letter of demand. That table lists the total claims, but does not list, or explain, how the specific amount of liability decided as to Khan is calculated. The letter simply states that[4]Pursuant to the above decisions you were found jointly severally liable for $33,113.36’.
  9. [26]
    Even though the letters of demand are not for the same amount as the application, and even though the separate amount sought for Khan is not explained, the letters of demand do encompass the correct amounts as sought in the application.
  10. [27]
    The recipients have not suffered any disadvantage by the application being for less than the total amount claimed in the letter of demand. The recipients have not raised any issue that they were confused or misled in any way by the wording and arithmetic of the letters of demand.
  11. [28]
    I therefore am satisfied that in these instances the letters of demand are sufficient to comply with the Act, but it would obviously be preferable if greater care were taken with the wording of a letter of demand so that the recipient can plainly understand it on its face.
  12. [29]
    The Chief Executive therefore has complied with s 527.

Has the appropriate notice been given under s 528?

  1. [30]
    Section 528 provides for the sending of a copy of the application and accompanying documents to the respondents, and advice that the Tribunal will make an order if it is satisfied of the matters set out in the section.
  2. [31]
    The respondents 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.[5]
  3. [32]
    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. [33]
    Submissions have been made separately by Solicitors on behalf of Abdulgani and Khan. The submissions respond to the materials sent by the Tribunal under s 528. No issue was taken as to compliance with the section.
  5. [34]
    I am satisfied that s 528 has been complied with.

Have the requirements of s 532 been complied with?

Abdulgani

  1. [35]
    Solicitors for Abdulgani filed submissions on 20 November 2014. They advise that he has no assets, and his income is a Disability Support Pension.
  2. [36]
    They advise that he lives with his partner with whom he has two infants. His partner has three older children living in the household. Her income is limited to a carer’s pension for him. He also has six other children to three different ex-partners who live in New South Wales. He is unable to meet child support payments in respect of those children.
  3. [37]
    They also advise that he is repaying, through SPER, the fine of $24,000 imposed on him in respect of the matters from which the claims arise.
  4. [38]
    They advise that:

Unless and until such time as Mr Abdulgani’s health improves to the point where he can seek paid employment to increase his income, there is no likelihood for him to make further payments. Doctor (named)’s view is the likelihood of this is very limited.

  1. [39]
    The submissions for Abdulgani do not challenge any of the matters referred to in s 532(2).
  2. [40]
    If the Tribunal makes a reimbursement order, it is required by s 532(3) to state that the respondent is liable to pay to the Chief Executive a stated amount within a stated period.
  3. [41]
    The submissions on behalf of Abdulgani relate only as to ability to pay, which may be relevant to the framing of an order under s 532(3), but does not relate to the making of the reimbursement order.
  4. [42]
    I am satisfied that the Chief Executive has made a decision in relation to the claims against the fund as listed in these reasons; that under the Chief Executive’s decisions, Abdulgani is liable to reimburse the fund for a total of $33,560.36; that written notice of the Chief Executive’s decision, a copy of the decision and an information notice was given to him under s 482; that he did not apply to the Tribunal to have the Chief Executive’s decision reviewed under s 483; and that he has not paid the amount within the time allowed under the letter of demand.
  5. [43]
    I am therefore satisfied that each of the matters referred to in s 532(2) have been complied with in respect of Abdulgani, and that a reimbursement order must be made.
  6. [44]
    The submissions on behalf of Abdulgani do not put forward any proposal as to payment. He is in a poor financial position. I am required to make an order. In the absence of any proposal as to payment, I will allow Abdulgani a period of time to seek financial advice, and to liaise with the Chief Executive as to entering into a repayment schedule.
  7. [45]
    I will nominate 3 months as the time within which payment is to be made. After that period, the amounts will be recoverable by the Chief Executive.

Khan

  1. [46]
    Solicitors for Khan filed submissions on 21 November 2014. They advise that he was 22 years of age, married, and his wife was expecting their first child when he accepted work with his uncle, Abdulgani, at the Master Cars sales yard.
  2. [47]
    They submit that he was unaware that he needed to be licensed to perform this work, but became aware when inspectors attended the premises. They advise that he felt that the only means open to him to support his family was to continue working in the hope and naïve belief that the situation would be rectified by his employer. They advise that he had no knowledge of or involvement with offences relating to the vehicle odometer readings, and regrets the detriment caused to purchasers because of these matters.
  3. [48]
    His solicitors note that Khan now accepts their recent advice to him in explanation of the findings against him and how by operation of law they become binding upon him. They say that ‘It is with some regret that Mr Ada did not seek legal advice more proximate to the determinations of the Chief Executive’. That expression of regret may be well founded.
  4. [49]
    The Act provides that the Chief Executive must name the person who is liable for the claimant’s financial loss when allowing a claim – s 481(3)(c). The Tribunal may make an order stating that a named person is liable for a claimant’s financial loss – s 530(b).
  5. [50]
    The Act refers in s 490(1)(a) to a person named in the Chief Executives decision or the Tribunal’s order as being liable for a claimant’s financial loss as the “responsible person”. It provides in s 490(2) that each person named as the responsible person is jointly and severally liable to reimburse the fund to the extent of the claim paid to the claimant.
  6. [51]
    No definition appears as to who a “responsible person” is. There is a definition in s 469 of a different term – a “relevant person”. Section 469 provides that a “relevant person” includes (a) a licensee; or (b) a licensee’s employee or agent, or a person carrying on business with the licensee; or (c) a person having charge or control, or apparent charge or control of a licensee’s registered office or business. That term, and its definitions, might be distinguishable from “responsible person”.
  7. [52]
    If the question had arisen as to whether Khan was a “responsible person” then his conduct, and the role he played in the business, would have been examined.
  8. [53]
    I refused to name a person as a responsible person because there was no material indicating that he was liable in Piggott & Ors v Siti Real Estate Pty Ltd & Ors.[6]
  9. [54]
    The material does not indicate the part that Khan played in the conduct of the business. It may be that he did play a significant role, or perhaps he did not. The time to make those submissions however would have been in response to the initial claims, or on an Application for Review against the decisions of the Chief Executive. Since no Applications for Review were filed by Khan, the decisions of the Chief Executive stand, and cannot be interfered with on a reimbursement application.
  10. [55]
    Khan’s solicitors advise that his financial situation remains in an extremely precarious state. He and his wife support their two infant children. He has no formal skills or qualifications. His only assets are a second-hand vehicle and some personal home contents. He lives on Centrelink payments and occasional financial support from the wider family unit.
  11. [56]
    His solicitors advise that Khan has no real capacity to meet the debt the subject of the supplication for a reimbursement order. They submit that:

Despite this, Mr Ada, in acknowledgment of the binding nature of the Chief Executive’s decision, suggests a capacity to meet a repayment schedule should the Tribunal so order within the bounds of his present capacity.

  1. [57]
    The section does not provide for a repayment schedule to be ordered by the Tribunal, only for a time period to be allowed to pay. The Chief Executive may choose to enter into a repayment schedule once a reimbursement order is made, but that is a matter to discuss with that office.
  2. [58]
    I am satisfied that the Chief Executive has made a decision in relation to the claims against the fund as listed in these reasons; that under the Chief Executive’s decisions, Khan is liable to reimburse the fund for a total of $30,985.36; that written notice of the Chief Executive’s decision, a copy of the decision and an information notice was given to him under s 482; that he did not apply to the Tribunal to have the Chief Executive’s decision reviewed under s 483; and that he has not paid the amount within the time allowed under the letter of demand.
  3. [59]
    I am therefore satisfied that each of the matters referred to in s 532(2) have been complied with in respect of Khan, and that a reimbursement order must be made.
  4. [60]
    I will allow a period of three months for Khan to obtain financial advice and consider repayment arrangements. After that period, the amounts will be recoverable by the Chief Executive.

Conclusion

  1. [61]
    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. [62]
    I make Reimbursement Orders, framed in terms of the Agents Financial Administration Act 2014, for the amounts sought in the Application, and set three months as the period for payment.

Footnotes

[1][2012] QCAT 698.

[2]20 September 2013.

[3]20 September 2013.

[4]Page 2.

[5]s 528(2).

[6][2013] QCAT 188 at [36].

Close

Editorial Notes

  • Published Case Name:

    The Chief Executive, Department of Justice and Attorney-General v Abdulgani Ada and George Ader (Khan Ada)

  • Shortened Case Name:

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

  • MNC:

    [2015] QCAT 129

  • Court:

    QCAT

  • Judge(s):

    Member Paratz

  • Date:

    13 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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