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Senlake Pty Ltd t/as Auscolour v Millards Noosa Motors Pty Ltd[2016] QCAT 220

Senlake Pty Ltd t/as Auscolour v Millards Noosa Motors Pty Ltd[2016] QCAT 220

CITATION:

Senlake Pty Ltd t/as Auscolour v Millards Noosa Motors Pty Ltd & Ors [2016] QCAT 220

PARTIES:

Senlake Pty Ltd t/as Auscolour

(Applicant)

 

v

 

Millards Noosa Motors Pty Ltd (under external administration)

Brian Lennox Millard

The Chief Executive, Department of Justice and Attorney-General, Office of Fair Trading

(Respondents)

APPLICATION NUMBER:

GAR103-15

MATTER TYPE:

General administrative review matters

HEARING DATE:

6 April 2016

HEARD AT:

Brisbane

DECISION OF:

Member Guthrie

DELIVERED ON:

5 July 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

1.  The reviewable decision is confirmed.

CATCHWORDS:

Claim under the Agents Financial Administration Act 2014 (Qld) – event within the meaning of s 82 of the Agents Financial Administration Act 2014 (Qld) – 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 – whether sale was on consignment – whether financial loss caused by event – claim rejected

Agents Financial Administration Act 2014 (Qld), ss 82, 90, 100, 113, 116, 123

Property Agents and Motor Dealers Act 2000 (Qld) (repealed), ss 331, s 470, s 573

Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 20, 21

Hartwell v MAS Cars Pty Ltd t/as Driver’s Choice (in Liquidation) [2015] QCAT 304

Lyons & Anor v Millards Noosa Pty Ltd & Ors [2015] QCAT 140

McNabb v OFT Claims and Recoveries, Department of Justice and Attorney General [2011] QCAT 505

Nowill v Millards Noosa Pty Ltd [2015] QCAT 178

Warrehe Pty Ltd t/a Active Freight v Millards Noosa Pty Ltd & Ors [2015] QCAT 38

Warrehe Pty Ltd t/a Activfreight v Millards Noosa Motors Pty Ltd & Ors (No 2) [2015] QCAT 151

APPEARANCES:

APPLICANT:

Mr Tim Sipp

RESPONDENT:

Mr Luke Skinner, Delegate, for the Chief Executive, Department of Justice and Attorney-General, Office of Fair Trading

REASONS FOR DECISION

  1. [1]
    Mr Sipp is the sole Director of Senlake Pty Ltd which trades as Auscolour, (‘Senlake’). The company is the applicant in these proceedings. Millards Noosa Motors Pty Ltd (‘Millards’) is currently under external administration following an application to wind up the company on 20 August 2014. The second respondent, Mr Millard was the sole director of Millards. Millards operated a motor dealership.
  2. [2]
    Senlake was the registered owner of a 2009 Toyota Prado. On 25 November 2013, the ownership of the Prado was transferred to a third party. The third party sourced the Prado from Millards. Mr Sipp was, at that time, a licenced motor dealer[1] who, between 2012 and 2014, worked on a casual basis for Millards. He was working for Millards when the Prado’s ownership was transferred. Indeed his signature appears on some of the paperwork concerning the Prado’s transfer, which is now before the Tribunal.

The Claim against the claim fund

  1. [3]
    On 27 March 2015, Senlake lodged with the Office of Fair Trading, its claim under s 82 of the Agents Financial Administration Act 2014 (Qld) (‘the AFA’). In the claim form the following facts were said to form the basis of the claim:

I requested Millards Noosa Motors sell my 2009 Toyota Prado…. Sale was completed on the 25/11/2013. I received $6,500 during in December 2013 [sic]. Brian Millard told me I would receive the balance of payment during January 2014. This went on month after month. Due to a long term association with Brian I was patient and sympathetic to his situation and didn’t commence any formal action to recover the debt. I let it go believing he would pay me from funds he had coming. Unfortunately it never happened. It has caused much financial hardship and I have paid interest on a loan during this time.

  1. [4]
    At the time of the events giving rise to the claim, the Property Agents and Motor Dealers Act 2000 (Qld) (PAMDA) was in force.[2] By the time Senlake lodged its claim with the Office of Fair Trading, the AFA was in force. Many provisions of the AFA are similar in terms to those contained in the repealed PAMDA. Section 155 of the AFA states in part that the rights and liabilities of the claim fund under the repealed Act (i.e., PAMDA), are taken to be the rights and liabilities of the claim fund under the AFA. Provisions in both pieces of legislation will be referred to in these reasons.
  2. [5]
    Senlake lodged some supporting documents with its claim. It lodged the motor vehicle registration notice for the Prado showing that the registration had been paid on 25 October 2013 and that the registration certificate was issued to Senlake. It also lodged a ‘Vendor’s Statement to the Dealer’ form which was required to be completed to comply with s 331 of the PAMDA. Section 331 of the PAMDA provided that a motor dealer must, when buying a motor vehicle or accepting a motor vehicle for sale on consignment from a person (seller) in the course of carrying on the motor dealer’s business, obtain from the seller a statement signed by the seller stating certain prescribed particulars about the seller and the vehicle. In this case, the document declared that Senlake had sold the Prado to Millards together with all accessories for the sum of $42,179.00 inclusive of GST. There is a section of the document that should be completed if the vehicle is to be placed on consignment with the dealer. That section of the form was not completed. Whether or not the Prado was sold to Millards or placed on consignment is crucial to whether Senlake can claim against the claim fund.

The reviewable decision

  1. [6]
    On 8 April 2015, a delegate of the Chief Executive decided to reject Senlake’s claim. In so doing he considered s 82(1)(b) of the AFA which is in similar terms to s 470(1)(e) of the PAMDA and relevantly states:
  1. (1)
    A person may claim against the fund if the person suffers financial loss because of the happening of any of the following events—

  1. (b)
    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;…
  1. [7]
    In making his decision, the delegate followed the reasoning of this Tribunal in McNabb v OFT Claims and Recoveries, Department of Justice and Attorney General.[3] In that case, the claimant sold a vehicle to the respondent. Member Stilgoe OAM (as she then was) stated ‘[t]he former Commercial and Consumer Tribunal has already determined that a sale does not fall within the circumstances contemplated by s 470(1)(e)’.[4] Section 470(1)(e) of the PAMDA was in similar terms to s 82(1)(b). Member Stilgoe OAM went on to say that the complainant’s ‘remedy lies in contract, not as a claim on the fund’. Further, the Tribunal found that the respondent did not receive any money from the claimant; he received the claimant’s car and dismissed the application.
  2. [8]
    The Chief Executive considered that as a claim against the fund can only be successful if the claimant suffers financial loss because of the happening of an event contained in s 82(1) of the AFA, and there was insufficient evidence to establish that the respondent had caused a claimable event, the Chief Executive was not satisfied, on the balance of probabilities that the claimant had a valid claim against the claim fund. The decision of Mr Ford was that “Upon examining the substance of the claim against the Claim Fund lodged by the claimant, it is decided that the claim is rejected”. The Tribunal considers that the reviewable decision is a decision to reject Senlake’s claim against the claim fund. That is a decision made under s 100 of the AFA.
  3. [9]
    The Tribunal has proceeded on that basis despite the information notice referring to s 90 of the AFA which provides for the situation where the Chief Executive considers the person has no grounds for making the claim and provides a discretion to the Chief Executive to decide not to deal with the claim. In the Tribunal’s view, given the terms of the delegate’s decision, the notice should have been an information notice under s 100 of the AFA.

Review by the Tribunal

  1. [10]
    Senlake applied to the Tribunal for a review of the Chief Executive’s decision. The decision of the Chief Executive is a reviewable decision pursuant to s 103 of the AFA. The legislative provisions relating to the Tribunal’s review jurisdiction are set out in Part 1 Division 3 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘the QCAT Act’). The purpose of the review of a reviewable decision is to produce the correct and preferable decision and must hear and decide a review of a reviewable decision by way of a fresh hearing on the merits.[5] Section 24 of the QCAT Act sets out the functions for the review jurisdiction and provides essentially for the orders the Tribunal can make in determining an application for review of a reviewable decision. 
  2. [11]
    In its application for review, Senlake sought to recover $41,679.00, being: $42,179.00 less the payment it says it received from Millards of $6,500.00 leaving a balance of $35,679.00. In addition, Senlake sought interest and out of pocket expenses of $6,000.00. At the hearing, Mr Sipp stated that he sought only to recover from the fund the loss of $35,679.00 being the proceeds of sale not paid to the applicant. That was despite indicating in his written submissions[6] that he had been required to continue to make payments to Westpac to discharge a loan over the vehicle.
  3. [12]
    Senlake argues that the reviewable decision is wrong because the Prado was not sold to Millards but was given to Millards on consignment.
  4. [13]
    The Tribunal considered the documents provided by the Office of Fair Trading pursuant to s 21(2) of the QCAT Act as well as the documentary evidence tendered by Mr Sipp and his oral evidence. Mr Millard did not attend the hearing nor did the liquidators appointed for Millards. The Tribunal attempted to contact Mr Millard without success. The representative for the Office of Fair Trading provided the Tribunal with an email from Mr Millard and indicated that they did not believe that Mr Millard would attend the hearing.

Consideration

Was the Prado sold by Senlake to Millards or was it given to Millards to sell on consignment?

  1. [14]
    There is no dispute that Senlake was the registered owner of the Toyota Prado for a period prior to its sale to a third party which sale was negotiated with Millards. It is agreed that the vehicle was with Millards sales for sale. There is essentially no dispute that on 25 November 2013, the Toyota Prado was sold to the third party. It was registered to the new owner by 30 December 2013.[7] The Tribunal makes findings of fact accordingly.
  2. [15]
    What the Tribunal must determine is whether Senlake transferred ownership or sold the Toyota Prado to Millards, which then sold it to the third party or, whether Senlake consigned the vehicle to Millards to sell it so that Senlake retained ownership of the vehicle until the sale to the third party.
  3. [16]
    The Chief Executive says there is some evidence that suggests that the Prado was given to Millards on consignment but there is other evidence that points to a sale of the vehicle to Millards. The Chief Executive argues that as some of the evidence pointing to a consignment of the vehicle was not provided to the Chief Executive at the claim stage, the Tribunal must consider whether the supportive documentation may have been brought into existence, potentially by Mr Sipp, to enhance Senlake’s prospects of succeeding upon review.
  4. [17]
    It is clear from the material provided to the Tribunal by the Office of Fair Trading that on 5 December 2012, the Office of Fair Trading took  action against Mr Millard and Millards for breaching numerous provisions of the PAMDA including:
    1. (a)
      Accepting vehicles to sell on consignment in 2011 without first being appointed in writing contrary to s 284 and s 285 PAMDA; and
    2. (b)
      Employing Mr Sipp as an unlicensed motor salesperson between 25 February 2011 and 21 August 2012.[8]
  5. [18]
    Action was also taken against Millards for receiving amounts as a licensee and failing to immediately deposit the funds into a general trust account. It was alleged in the complaints that the monies were deposited to a general account.
  6. [19]
    The Tribunal considers that those background matters provide some context for the Tribunal when considering the evidence before it regarding the transaction or transactions in issue here.  
  7. [20]
    The Tribunal has previously determined reviews of other decisions made by the Office of Fair Trading involving Millards. In those reviews, the claimants had made claims against the claim fund alleging financial loss due to Millards failure to pay them after it sold their vehicles.[9] In those cases, despite the absence of the paperwork required by legislation, the Office of Fair Trading and Millards accepted that the vehicles were placed on consignment with Millards. Based on the concessions made and without analysing the arrangements, the Tribunal accepted that the vehicles were placed on consignment with Millards.
  8. [21]
    The Chief Executive argues that it does not follow that because findings of consignment were made in those cases that this too, is a case of a sale on consignment.
  9. [22]
    Certainly in the other cases, the claimants were third parties in no way connected to Millards. In this case Mr Sipp was a licensed motor dealer at the relevant time and had worked for Millards on a casual basis between 2012 and 2014. Further, he was in fact involved in the sale of his vehicle to the third party. For example, on 25 November 2013, he signed, on behalf of Millards, the form ‘Guarantee of title to buyer (by a motor dealer)’ (PAMD Form 63). He also told the Tribunal that he attended with Mr Millard to hand over the Prado to the new owners.
  10. [23]
    In Hartwell v MAS Cars Pty Ltd t/as Driver’s Choice (in Liquidation),[10] the Tribunal considered whether or not there was evidence to support a consignment sale. The Tribunal in that case said that if it were to find that there was no consignment sale, then it would simply be a case that the applicant had a ‘claim for breach of contract against the respondents and no entitlement to make a claim on the PAMD Fund.’[11] That would mean that the applicant would have to ‘get in line with all of the other unsecured creditors of MAS Cars in the liquidation process’.[12]
  11. [24]
    In that case, the Tribunal had little evidence before it of the nature of the transaction. The Tribunal referred to a series of telephone text messages and emails that passed between Glenn Hartwell, the applicant and Scott Hartwell, the second respondent, indicating that MAS Cars sold the vehicle for Glenn Hartwell and that MAS Cars owed Glenn Hartwell money for that transaction. It was found that neither of the exchanges demonstrated that there was a consignment sale agreement between the parties. It was also noted that it was clear that from MAS Cars’ records that the vehicle was purchased for $20,000.00 from the applicant.[13] The Tribunal concluded that it had to accept the evidence on its face value and the evidence was 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 sale. The Tribunal found that it could not infer from the evidence before it that it was a consignment sale.
  12. [25]
    It is common ground that neither Mr Millard nor Millards provided Senlake with a PAMD Form 34, ‘Appointment of Motor Dealer to Sell a Motor Vehicle on Consignment’. As a licensed motor dealer, Mr Sipp should have been aware of the paperwork required to be completed for any vehicle placed on consignment. Indeed, Mr Sipp gave evidence that when he had placed vehicles on consignment for Millards, on approximately five occasions in a year, he would have filled in the appropriate form. He gave evidence that when he sought paperwork from Millards regarding his Prado, the only form he was given was the ‘Vendor’s Statement to the Dealer’ form that he lodged with his claim.
  13. [26]
    Mr Sipp was asked at the hearing whether he was concerned when that was the extent of the paperwork given to him by Millards given his knowledge of the required paperwork for a vehicle to be placed on consignment. He said that he received the document three or six months after he had consigned the vehicle with Millards at the request of his accountant but did not study it. The document was not signed by him and he said he probably misinterpreted the document to some extent and likely gave it to his accountant without signing it.
  14. [27]
    Mr Sipp also gave evidence that most of the cars sold by Millards were placed on consignment or sourced at auctions by Mr Millard. He said that Mr Millard did not own stock. Mr Sipp argues that it is not probable, given Mr Millard’s practices, that the Prado was bought from Senlake and sold to a third party. He argues that the paperwork completed by Millards was not peculiar to the transaction involving Senlake’s vehicle, but rather was the process Millards adopted for any consignment. However, that evidence is inconsistent with Mr Sipp’s own evidence, that when he completed documents relating to the consignment of vehicles he filled in the appropriate Form 34, a four page document that requires the signature of the person consigning the vehicle. However, the Tribunal accepts Mr Sipp’s evidence that at the time the Vendor’s Statement document was provided to him, he did not then contemplate that he would be required to make a claim against the claim fund.
  15. [28]
    Senlake relies upon a ‘stock card’ printed on 20 October 2014. Mr Sipp admitted that the stock card might have been completed on his computer. He was unsure whether or not the information held on the computer, in particular, the dates that certain information was entered, could be changed or put in at a later time. He did not think dates could be changed but thought other information might be able to be altered. The stock card indicates that the vehicle was purchased on 10 January 2013 from Senlake and sold to a third party noted in the stock card. The sales person is stated to be Mr Millard, the purchase price is stated to be $1.00. A load amount entered on 10 January 2013 is stated to be $500.00 and the selling price for the vehicle is stated to be $42,976.00 inclusive of GST, reflecting a profit of $42,179.15.
  16. [29]
    Mr Sipp says that the load amount appearing on the stock card of $500.00 was the amount that Mr Millard agreed he would take as commission for selling the vehicle for Senlake. The Tribunal accepts that the purchase price of $1.00 and the load amount provides some evidence that there was a consignment of the vehicle. The tax invoice from Millards to the new owner of the vehicle indicates that the balance owing to Millards is to be paid into an account that is not a trust account. However, as the Tribunal has already stated, Mr Millard was known to have deposited funds to a general account instead of a trust fund in breach of the PAMDA.[14]  The Tribunal also accepts that Mr Sipp had a business and personal relationship with Mr Millard which likely influenced his dealings with Mr Millard.
  17. [30]
    Senlake relies on the Prado’s registration certificate[15] showing that Senlake was registered owner at the time of the sale to the third party.
  18. [31]
    Senlake also relies upon the statements and emails he exchanged with Mr Millard. In a statement dated 14 February 2016,[16] Mr Millard states: ‘I agreed to take a reduced consignment fee of $500.00. It was the load amount on the stock card 5366’.
  19. [32]
    It seems to the Tribunal that Millards’ business practices were generally inconsistent with the provisions of the PAMDA. It would appear that it was not uncommon for him to sell vehicles on consignment. Further, it would appear that it was not uncommon for Millards to sell vehicles on consignment without completing the correct paperwork for such an arrangement. Mr Millard has maintained in all of the statements and emails supplied by him to the Office of Fair Trading and to Mr Sipp for use in these proceedings that the Prado was given to Millards on consignment. Mr Sipp gave evidence under oath that that was the case.
  20. [33]
    While the Tribunal is somewhat uneasy about Mr Sipp as a licensed motor dealer seeking to recover financial loss from a fund of public monies in circumstances where, at the time of the relevant transaction, he knew, or at least ought to have known, that the correct paperwork had not been completed to reflect what he asserts was a consignment arrangement, the Tribunal finds on balance that the Prado was placed on consignment with Millards.

Was there a claimable event?

  1. [34]
    Mr Millard provided an email to the Office of Fair Trading which was tendered at the hearing.[17] In that email, Mr Millard states:

At the time of the sale of that car Tim Sipp was a salesman at Millards Noosa Motors, and had worked there for about 2 years and it was him who sold the car to the purchaser and took the trade in.

He was well aware of the financial situation of the place he worked at.

He advised me there was no encumbrances on the car (and provided a revs cert.) and he had borrowed money to purchase it and would like to get some of the money to pay other debts he had and when things picked up he would get the money together that Millards had paid to various creditors of his and with the money outstanding from Millards would pay out this loan.

Both Tim and myself were doing it hard and we battled on.

As per my statement some time ago I gave Tim $21500 already paid to various creditors of his by Millards and the situation has finished up where it is today and for the past year.

Whatever the decision is of QCAT,… I am ultimately responsible for that claim, therefore I should be liable for the correct amount of the claim, not an inflated claim.

  1. [35]
    Mr Millard has consistently stated that he did not pay Senlake the total proceeds of the sale of the Prado. Mr Sipp’s evidence on behalf of Senlake is consistent to that extent with that of Millards.
  2. [36]
    The Tribunal is satisfied, based on the evidence of Mr Sipp and documentary evidence provided by Mr Millard, that it is more likely than not that Senlake did not receive the total proceeds of the transaction. Clearly, the third party took possession of the Prado following a trade in and an additional sum paid.
  3. [37]
    The Tribunal considers that Millards in failing to provide the net proceeds of the sale to Senlake has misappropriated Senlake’s property and so a claimable event occurred in terms of s 82(1)(b) of the AFA. The relevant PAMDA provision was s 470(1)(e): ‘a stealing, misappropriation or misapplication by a relevant person or property entrusted to the person as agent for someone else in the person’s capacity as a relevant person’. Section 470(1)(a) of the PAMDA provided that a person may make a claim against the fund if the person suffers financial loss because of, inter alia, the contravention of s 573. Section 573 provided that the section applies if a licensee in the performance of the activities of a licensee, receives an amount belonging to someone else. It is arguable that such a contravention occurred, however, it is not necessary for the Tribunal to make that finding.
  4. [38]
    Senlake may make a claim against the claim fund.

What is the financial loss caused by the happening of the event?

  1. [39]
    Section 100(1) of the AFA provides that the Chief Executive may decide to allow the claim wholly or partly or reject the claim. Section 100(2) provides that the Chief Executive may decide to allow the claim only if satisfied, on the balance of probabilities that the person may make the claim under division 2. Section 100(5) provides that if the Chief Executive decides to allow the claim, wholly or partly the Chief Executive must  take into account any amount the claimant might reasonably have received or recovered if not for the claimant’s neglect or default and decide the amount of the claimant’s financial loss and name the person who is liable for the claimant’s financial loss. On review, the Tribunal must apply those provisions.
  2. [40]
    Sections 113(1)(a) and (b) of the AFA provides that a claimant cannot recover from the fund an amount more than the balance of the claimant’s financial loss after deducting from the claimant’s loss the amount including the value of all benefits received or recovered by the claimant from a source other than the fund in reduction of the loss and the amount including the value of all benefits the Tribunal considers the claimant might reasonably have received or recovered if not for the claimant’s neglect or default.
  3. [41]
    Senlake claimed the following loss in its application for review:
  • $42,179 less $6,500 = $35,679
  • Loan interest and out of pocket expenses $6,000

Total: $41,679

  1. [42]
    Mr Sipp relies on Mr Millard’s statement that the car was consigned to him, but otherwise rejects that he was paid $21,500.00 in relation to the consignment. Mr Millard denies knowledge that the Prado was encumbered. Certainly, the Personal Property Securities Register did not reflect that there was any encumbrance over the vehicle at any time. At the hearing, Mr Sipp provided some evidence that there was in fact a loan over the vehicle, and the failure of it to be registered as an encumbrance on the register was due to a misstatement of the VIN.[18]
  2. [43]
    Senlake has not provided the Tribunal with any documentary evidence to support its claim that it received $6,500 from Millards as the proceeds of the sale of the Prado. It has not, for example, provided any bank records or cheque book records. The only evidence is the oral evidence of Mr Sipp. Mr Sipp was asked about the lack of evidence and he confirmed that he had not provided any other evidence to support Senlake’s claim that it received only $6,500.00 from the sale of the vehicle. It is unclear how the $6,500.00 Mr Sipp says Senlake received from the sale of the vehicle was paid by Millards.
  3. [44]
    Mr Sipp gave evidence that it was his intention upon receiving the net proceeds of sale to pay out the vehicle loan.
  4. [45]
    The stock card states that the ‘net profit’ on the sale of the vehicle was $42,179.15 including GST and $38,340.13 excluding GST. That figure is different to the figure relied upon by Senlake.
  5. [46]
    Mr Millard has stated that he paid Senlake via Mr Sipp the amount of $21,500.00. Mr Millard’s emails suggest that he may have done so by paying debts owed by Mr Sipp or perhaps Senlake. However, again Mr Millard has not provided any supporting evidence of payment of $21,500.00. In his email to the Office of Fair Trading[19] Mr Millard states that the liquidators of Millards would be able to prove the payments made to Mr Sipp if required. He also refers to an email sent by Mr Tan of the Office of Fair Trading to Mr Skinner dated 23 March 2016 which he says states that it was accepted that Millards paid Senlake/Mr Sipp the $21,500.00.
  6. [47]
    In Senlake’s submission,[20] it is stated that between 25 October 2013 and 23 February 2015, Millard acknowledged the debt and made repeated promises to Mr Sipp to pay the outstanding funds. Further, it is stated that between 25 October 2013 and 23 February 2015, Millards and/or Mr Millard made some repayments to Senlake’s vehicle loan with Westpac Banking Corporation on behalf of Senlake. 
  7. [48]
    The Chief Executive’s, in his submission dated 23 March 2016, states that in the event the Tribunal was satisfied that Senlake consigned the vehicle to Millards and it failed to remit all of the net sale proceeds to Senlake, it would be open to the Tribunal to prefer Mr Millard’s evidence and find that Senlake was paid $21,500 from the sale proceeds. The Chief Executive says that the Tribunal could do so because Senlake has almost entirely relied on records, documents and emails from Millards or Mr Millard to establish its case and has not adduced any evidence to the contrary.
  8. [49]
    At the hearing, the Chief Executive drew the Tribunal’s attention to the discrepancy in the net profit figures in the stock card upon which Senlake relies.  The Chief Executive also submitted that there was insufficient evidence on which the Tribunal could calculate the correct amount of the financial loss caused by the event.
  9. [50]
    On the one hand, the Tribunal has Mr Sipp’s oral evidence that he received $6,500.00 from Millards from the net proceeds of sale. Mr Millard has consistently stated that he has paid Senlake/Mr Sipp $21,500.00. Mr Millard has not given that evidence on oath. Further, as Mr Millard may ultimately be liable for any claim paid from the fund,[21] it is in his interests to seek to reduce his liability. It is unclear how either the $6,500.00 or the $21,500.00 was paid to Senlake. It may have been paid in cash or paid by way of a reduction in debts as agreed between Senlake and Millards, the Tribunal simply does not know and should not speculate. Senlake did not take any formal action against Millards to recover its financial loss. The Tribunal is mindful that the claim fund comprises public monies. The Tribunal does not consider that it can be satisfied, on the balance of probabilities, as to the amount of Senlake’s financial loss in the form of the net proceeds of the sale of the Prado.
  10. [51]
    It is not for the Tribunal to obtain documents to support Senlake’s claim in relation to the amount of any financial loss or to assist Millards. The parties could have sought documents in support of their respective claims either using the Tribunal’s processes[22] or outside those processes.
  11. [52]
    As for the loan interest and out of pocket expenses, Mr Sipp tendered Westpac account records for the period 1 December 2009 to 1 March 2015. In addition, Mr Sipp provided a letter from ‘recoveries corp’ to Mr Sipp personally which is dated 15 March 2016 stating that Mr Sipp has agreed to pay the amount of $42,311.39 by 29 March 2016, In his submission, it is indicated that Mr Sipp drew against his home to discharge the debt.[23] It was his evidence that had Senlake received the net proceeds of the sale of the vehicle it would have used those funds to discharge the loan.
  12. [53]
    In addition, Senlake relies on the schedule to a commercial loan agreement dated 15 December 2009, between Westpac and Senlake with Mr Sipp stated to be the guarantor. That document states that security was to be taken over the Prado.[24] The amount of the advance is stated to be $72, 137.86. According to the bank records about $59,662.81 remained owing to Westpac at the time the third party purchased the Prado. It is clear from the records that the loan was not discharged.
  13. [54]
    It is unclear how the ‘out of pocket’ expenses have been calculated.
  14. [55]
    The Tribunal is not prepared to find that any interest payments claimed were made by Senlake nor that it has established, on the balance of probabilities that any such loss was caused by the happening of the event. Consistently with Warrehe Pty Ltd t/a Activfreight v Millards Noosa Motors Pty Ltd & Ors (No 2),[25] the Tribunal finds that the calculation of loss by way of the interest payments made on the loan requires consideration of the agreement between Senlake and Millards regarding any payment of the interest payments after the Prado was sold. Further, it depends on arrangements made between Westpac and Senlake. It is unclear why Westpac did not pursue the vehicle. Mr Sipp’s evidence was that Senlake intended to pay out the loan when it received the proceeds of sale. Mr Sipp’s evidence suggests that Senlake never expected Millards to discharge the debt. Further, Mr Sipp’s evidence is that he personally discharged the debt to Westpac.  Mr Millard says in his email, though his evidence was not tested, that Senlake did not intend to pay out the loan connected to the vehicle using the proceeds of its sale but rather intended to pay other of Senlake’s debts. The Tribunal is not satisfied that Senlake has established, on the balance of probabilities, either the amount of any financial loss associated with the loan interest payments and out of pocket expenses or that such financial loss was caused by the relevant event. Again, the Tribunal is conscious that any payment from the claim fund is a payment of public monies.
  15. [56]
    No award of interest can be made pursuant to s 113(5) of the AFA.
  16. [57]
    The Tribunal is not satisfied, on the balance of probabilities, as to the amount of Senlake’s financial loss caused by the event.
  17. [58]
    For those reasons, the Tribunal decides that the claim against the fund cannot be allowed and so the correct and preferable decision is that it be rejected. While the reasons of the Tribunal are somewhat different to the reasons given by the Chief Executive, the terms of the decision itself are the same. Therefore, the reviewable decision is confirmed.

Footnotes

[1] Exhibit 1: p 32 Certificate indicates Mr Sipp held the appropriate PAMDA licence between 21 September 2012 until it expired on 21 September 2014.

[2] Until 1 December 2014.

[3] [2011] QCAT 505.

[4] Ibid at [7] relying on Anderson v Shakespeare (aka – Michael De Pasquale), Ryton-Benson, Keenhitch Pty Ltd, Consign-A-Car (Aust) Pty Ltd, Cottrill [2007] QCCTPAMD 35.

[5] QCAT Act s 20.

[6] Exhibit 3.

[7] Exhibit 1 at p.21; Exhibit 2.

[8] Exhibit 1 at 37- 40.

[9] Warrehe Pty Ltd t/a Active Freight v Millards Noosa Pty Ltd & Ors [2015] QCAT 38; Lyons & Anor v Millards Noosa Pty Ltd & Ors [2015] QCAT 140; Nowill v Millards Noosa Pty Ltd [2015] QCAT 178.

[10] [2015] QCAT 304.

[11] Hartwell v MAS Cars Pty Ltd t/as Driver’s Choice (in Liquidation) [2015] QCAT 304 at [8].

[12] Ibid.

[13] Ibid at [11]-[13].

[14] Exhibit 1 at 41-52.

[15] Exhibit 2.

[16] Exhibit 3 - Attachment B.

[17] Exhibit 10.

[18] Exhibits 3 and 11.

[19] Exhibit 10.

[20] Exhibit 3.

[21] AFA Act s 116.

[22] Such as an application for a notice to produce documents from a third party.

[23] Exhibit 3.

[24] Exhibit 11.

[25] [2015] QCAT 151.

Close

Editorial Notes

  • Published Case Name:

    Senlake Pty Ltd t/as Auscolour v Millards Noosa Motors Pty Ltd & Ors

  • Shortened Case Name:

    Senlake Pty Ltd t/as Auscolour v Millards Noosa Motors Pty Ltd

  • MNC:

    [2016] QCAT 220

  • Court:

    QCAT

  • Judge(s):

    Member Guthrie

  • Date:

    05 Jul 2016

Appeal Status

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