Hartwell v MAS Cars Pty Ltd[2015] QCAT 304

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]
   This is an application by Mr Glenn Hartwell seeking to make a claim on the Property Agents and Motor Dealers Act 2000 (Qld) (PAMD Act) Claim Fund (the Fund), following the sale by him to the respondents of a 2009 Toyota Kluger. He asserts, and the Tribunal accepts, that he has been paid only $5,200.00 of the $22,000.00 contractual amount by the respondents.^[1]
2. [2]
   The respondents are Glenn Hartwell’s brother, Scott Andrew Hartwell, and the business that he was the licensed principal of, MAS Cars Pty Ltd t/as Drivers Choice (in Liquidation). Although both respondents were afforded the opportunity to make submissions in response to the application, neither has done so.

Was there a PAMD Act event?

3. [3]
   Whilst it is clear that the applicant was not paid the full contractual amount for his Kluger, in order to give rise to a claim on the Fund, there must be an event that is covered by the PAMD Act, and which involved a relevant person, as defined in the Act. Section 469 of the PAMD Act defines ‘relevant person’ to mean:

relevant person means—

1. (a)
   a licensee; or

2. (b)
   a licensee’s employee or agent, or a person carrying on business with the licensee; or

3. (c)
   a person having charge or control, or apparent charge or control, of a licensee’s registered office or business.

4. [4]
   There is evidence on the papers to demonstrate that MAS Cars purchased the vehicle from Glenn Hartwell.^[2] There is no dispute that Scott Hartwell was a relevant person at the time of the purchase from Glenn Hartwell.
5. [5]
   Section 470(1)(e) of the PAMD Act provides (relevantly):

470. Claims

1. (1)
   A person may make a claim against the fund if the person suffers financial loss because of the happening of any of the following events—

1. (a)
   The contravention of any of the following provisions by a relevant person –

***

• Section 573;

***

5. (e)
   a stealing, misappropriation or misapplication by a relevant person of property entrusted to the person as agent for someone else in the person’s capacity as a relevant person.

6. [6]
   Section 573 of the PAMD Act then provides:

573 Wrongful conversion and false accounts

1. (1)
   This section applies if a licensee, in the performance of the activities of a licensee, receives an amount belonging to someone else.

2. (2)
   A licensee who—

1. (a)
   dishonestly converts the amount to the licensee’s own or someone else’s use; or

2. (b)
   dishonestly renders an account of the amount knowing it to be false in a material particular;

commits a crime.

Maximum penalty—1000 penalty units or 5 years imprisonment.

3. (3)
   For a prosecution under subsection (2)(a), it is enough for the prosecution to prove that the licensee dishonestly converted an amount belonging to someone else to the licensee’s own use or someone else’s use without having to prove that the amount belonged to a particular person.

4. (4)
   In this section—

licensee includes a former licensee and a person who is not licensed, but who acts as a licensee.

7. [7]
   In deciding whether there is a PAMD event, the key issue for determination by the Tribunal is whether Scott Hartwell sold the Kluger on consignment for Glenn Hartwell, but then failed to pay him the net proceeds of sale. This is because it could then be said that there was a misappropriation of property belonging to the applicant by ‘relevant person’ prior to legal title of the property passing to the ‘relevant person’.
8. [8]
   If the Tribunal finds that there is no consignment sale, then it is simply the case that the applicant has a claim for breach of contract against the respondents, and no entitlement to make a claim on the PAMD Fund. Here, that would mean that the applicant would get in line with all of the other unsecured creditors of MAS Cars in the liquidation process.
9. [9]
   For the reasons that follow, the Tribunal is not satisfied that the applicant has established that there was a consignment sale by him to his brother. Rather, as inevitably happens when a company goes into liquidation, as MAS Cars has here, there are many individuals who suffer financial loss. There is, unfortunately for those people, no convenient legal recourse available, save for making a claim to the liquidators and hoping there are assets available for distribution by the liquidators.
10. [10]
    In relation to the nature of this sales transaction, a series of telephone text messages and emails between Glenn Hartwell and Scott Hartwell indicate that MAS Cars sold the vehicle for Glenn Hartwell and that MAS Cars owed Glenn Hartwell money for that transaction.
11. [11]
    In one of these messages, date unknown, Scott Hartwell states ‘…. I had to go through to sell your car …’.
12. [12]
    In a further undated exchange, the parties say the following:

App: OK I will need paperwork to give to the accountant please.

Second Res: What on the sale.

Second Res: No worries can do mate. Flick me an email address and I will get it through …

and

Second Res: … i am just shattered this car is hurting our relationship.

13. [13]
    Neither of these exchanges demonstrates that there was a consignment sale agreement between the parties. Although it is clear from MAS Cars records that the Kluger was purchased for $20,500.00 from the applicant on 20 November 2013, there is no dated evidence capable of establishing either the timeframe surrounding the sale, nor of the nature of the agreement.
14. [14]
    As the text messages are not dated, the Tribunal cannot determine at what point in the transaction the Applicant began to demand payment for the Kluger. In these circumstances, the Applicant has not established that there was a PAMD Act event. 
15. [15]
    The Tribunal must accept the evidence on its face value, and the evidence is capable only of demonstrating that the parties entered into a sale whereby the property passed from the Applicant to MAS Cars at the time of the sale. Although the Tribunal accepts that the Applicant was not paid the sale price, the Tribunal cannot infer from the evidence before it that this was a consignment sale.
16. [16]
    As there is no event that would entitle the Applicant to make a claim on the PAMD Fund, the claim is rejected.

Order

1. Pursuant to s 488 and s 530(a) of the Property Agents and Motor Dealers Act 2000 (Qld), the claim against the claim fund is rejected.