Oberhuaser v Laing[2015] QCAT 69

APPEARANCES and REPRESENTATION (if any):

REASONS FOR DECISION

What is this Application about?

1. [1]
   Clinton Oberhauser is claiming $11,700.00 from the Claim Fund under the Property Agents and Motor Dealers Act 2000 (Qld). Mr Oberhauser claims that Raymond John Laing sold Mr Oberhuaser’s 2001 Toyota Landcruiser on consignment, but failed to pay him the proceeds of sale.

What happened?

2. [2]
   Both Mr Oberhauser and Mr Laing agree that Mr Laing “sold” the vehicle on consignment and remitted $5,300.00 to Mr Oberhauser.^[1] They also agree that Mr Laing owes $11,700.00 to Mr Oberhauser.^[2]

Has Mr Oberhauser proven that he suffered ‘financial loss’ because of an ‘event’?

3. [3]
   The Tribunal may only allow the claim if satisfied that an ‘event’ happened and the claimant suffered ‘financial loss’ because of the ‘event’.^[3]
4. [4]
   The alleged ‘event’ is that Mr Laing dishonestly converted an amount belonging to Mr Oberhauser to his own use^[4] or that he stole, misappropriated or misapplied property entrusted to him as agent for Mr Oberhauser.^[5]
5. [5]
   Mr Oberhauser must prove the proceeds from the sale of the 2001 Toyota Landcruiser were rightfully his. He must therefore prove that he owned the vehicle at the time he entrusted it to Mr Laing in January 2012.

Has Mr Oberhauser proven he was the lawful owner of the vehicle?

6. [6]
   Mr Oberhauser provided the following to support ownership of the vehicle:

• Unsigned and undated ‘Vehicle Registration Transfer Application’ noting “Clinton John Oberhauser” as Acquirer and “SSS Car Care Pty Ltd” as Seller with a purported transfer date of 29/11/10;
• Unsigned and undated ‘Guarantee of title to buyer – by a motor dealer’ noting “SSS Car Care Pty Ltd” as Motor Dealer;
• Budget Direct Insurance Renewal dated 18 November 2011 to “Mr Oberhauser & Ms Harris” but with the salutation “Dear Ms Harris” and noting “Ms V Harris” as Regular Driver and the registered owner of the car as “Mr Oberhauser and Ms Harris”; and
• Statutory Declaration of Christian D’Agostin sworn 8 August 2014 that he sold the Toyota on behalf of SSS Car Care to Clinton Oberhauser on or about 29 November 2010.

7. [7]
   I am not satisfied that any or all of this establishes that Mr Oberhauser was the registered owner of the vehicle in or around January 2012.

Transfer and Guarantee of Title

8. [8]
   The ‘Transfer’ and ‘Guarantee of Title’ are unsigned and undated and therefore have no legal effect. This means that there is no evidence that SSS had title to the vehicle to transfer to Mr Oberhauser. Even if the ‘Transfer’ and ‘Guarantee of Tile’ were signed and dated on or around the time of the alleged sale to Mr Oberhauser in November 2010, they do not prove that the vehicle was registered to Mr Oberhauser as at January 2012.

Statutory Declaration

9. [9]
   The Statutory Declaration does not confirm the vehicle was transferred to Mr Oberhauser. During the hearing, Mr Oberhauser conceded that the vehicle was never transferred or registered in his name. He explained that this is because he has a history of buying cars from SSS and he simply did not get around to it. 
10. [10]
    Even if the vehicle was transferred from SSS Car Care Pty Ltd to Mr Oberhauser on or about 29 November 2010, this does not prove that the vehicle was registered to Mr Oberhauser in January 2012. Indeed, Mr Oberhauser confirmed during the hearing that the car was not registered in his name as at January 2012 – or at all. Mr Oberhauser testified that in fact, the car was still registered in the name of “SSS Car Care”.

Insurance Renewal

11. [11]
    Insurance Renewals are usually based on statements made to the insurer by the insured and do not necessarily require verification unless and until the insured claims on the policy. The notation of Mr Oberhauser as a ‘registered owner’ on the ‘Insurance Renewal’ does not amount to independent substantiation of ownership but is no more than documentary hearsay.
12. [12]
    Even if the ‘Insurance Renewal’ did evidence ownership, it is dated 18 November 2011 and therefore is not evidence of ownership as at January 2012.
13. [13]
    The ‘Insurance Renewal’ in any event notes that both Mr Oberhauser and a Ms Harris were ‘registered owners’ as at 18 November 2011. Mr Oberhauser testified that Ms Harris is his de facto partner. At the very least, this suggests that Ms Harris could have a vested interest in the vehicle as of that date and may have an entitlement to any proceeds of sale. However, Ms Harris is not a party to these proceedings. Her interests therefore could be compromised by paying the claim to Mr Oberhauser.

Conclusion on ownership

14. [14]
    Parties have a duty to act in their own best interests.^[6] The Tribunal cannot award an amount without proof of ownership at the time of the transaction that led to the loss:

In the face of poorly prepared material, the Tribunal cannot make assumptions or guess at facts and events or the meaning or importance of material. The Tribunal cannot make findings of facts where there is no evidence. It cannot award damages if there is no material that points to the quantum of the damage suffered. Parties must take responsibility for the preparation of their own case.^[7]

15. [15]
    The best and most obvious evidence of ownership is a Certificate of Registration from the relevant Transport Authority. The registered owner of a vehicle can readily produce this. Mr Oberhauser has had over a year to transfer and register the vehicle in his name. He has not, because - based on his own testimony - he and SSS have an apparently relaxed approach to attending to these legal requirements. 
16. [16]
    This is a situation where a person cannot expect a legal remedy when they themselves do not comply with the law. Mr Oberhauser’s failure to transfer or register the vehicle in his name is not a mere procedural oversight. It is fundamental to the success of his claim. He must prove that Mr Laing wrongfully converted money that was rightfully his.^[8] The proceeds of sale were only rightfully his if he lawfully owned the vehicle at the time he entrusted the vehicle to Mr Laing.
17. [17]
    That Mr Oberhauser was in possession of the vehicle at the time or paid money to buy the vehicle is not sufficient. No evidence was adduced to prove that the entity from whom he bought the vehicle was the registered owner and had the right to transfer the vehicle to Mr Oberhauser. Mr Oberhauser has failed to establish clear title to the vehicle.
18. [18]
    Mr Oberhauser has therefore failed to establish that he was the lawful owner of the vehicle at the time that he entrusted it to Mr Laing.

Has Mr Oberhauser proven the required ‘financial loss’?

19. [19]
    Mr Oberhauser has also failed to adduce evidence to support the ‘financial loss’ he claims to have suffered of $11,700.00. Mr Oberhauser claims that Mr Laing sold the vehicle for $17,000.00 and paid him a deposit of $3,800.00 on 23 March 2013 and instalments of $1,500.00 from 11 January 2013 to 21 March 2013.^[9]
20. [20]
    Mr Laing admitted owing Mr Oberhauser $11,700.00. However, he claims that this arises not only from selling this vehicle but also from two more vehicles that he purchased  from the proceeds of sale – specifically, that he paid Mr Oberhauser $4,000.00 to $5,000.00, purchased two more vehicles from the balance and paid another $6,000.00 from these sales to Mr Oberhauser.^[10]
21. [21]
    If Mr Laing’s version is correct, Mr Oberhauser is not entitled to the proceeds from the sale of any other vehicles because he did not own them.^[11]
22. [22]
    Whatever the case might be, the Tribunal cannot be satisfied that Mr  Ohberhauser has proven his claim to the reasonable satisfaction of the Tribunal:

… “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect references… the nature of the issue necessarily affects the process by which reasonable satisfaction is attained.^[12]

23. [23]
    Bank Statements could substantiate payments made to Mr Oberhauser and help corroborate his version. Yet he did not produce any. It is therefore not possible to link or quantify his alleged loss to the claimed ‘event’.
24. [24]
    These findings are consistent with the submissions of the Chief Executive.^[13] Neither party challenged those submissions.

What are the appropriate Orders?

25. [25]
    Mr Oberhauser has not proven lawful ownership of the vehicle at the time he entrusted the vehicle to Mr Laing.
26. [26]
    Mr Oberhauser has not produced evidence of ‘financial loss’ attributable to the claimed ‘event’.
27. [27]
    Mr Oberhauser has therefore not proven his claim to the reasonable satisfaction of the Tribunal.
28. [28]
    The appropriate Order is that the application is dismissed.