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Taylor & Sons Pty Ltd v Department of Justice and Attorney-General & Emran Mohammad Daoud D'Yab[2017] QCAT 268

Taylor & Sons Pty Ltd v Department of Justice and Attorney-General & Emran Mohammad Daoud D'Yab[2017] QCAT 268

CITATION:

Taylor & Sons Pty Ltd v Department of Justice and Attorney-General & Anor [2017] QCAT 268

PARTIES:

Taylor & Sons Pty Ltd

(Applicant)

v

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

Emran Mohammad Daoud D’Yab

(Respondents)

APPLICATION NUMBER:

GAR169-16

MATTER TYPE:

General administrative review matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Gardiner

DELIVERED ON:

17 July 2017

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. The claim is allowed in the sum of $10,152.00, pursuant to section 105 and section 106 of the Agents Financial Administration Act 2014 (Qld).
  2. At the expiration of the appeal period the Chief Executive must pay to the Applicant the sum of $10,152.00 from the Claim Fund, and if there is an appeal, payment must not be made until after the appeal is finally decided, pursuant to section 112 of the Agents Financial Administration Act 2014 (Qld).
  3. Emran Mohammad Daoud D’Yab is named liable for the financial loss of Taylor & Sons Pty Ltd pursuant to section 105(3)(c) of the Agents Financial Administration Act 2014 (Qld).
  4. Upon payment from the Claim Fund Emran Mohammad Daoud D’Yab is liable to reimburse the Claim Fund by paying the sum of $10,152.00 to the Chief Executive, Department of Justice and Attorney-General, pursuant to section 106 and section 116 of the Agents Financial Administration Act 2014 (Qld).

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE

TRIBUNALS – QUEENSLAND CIVIL AND

ADMINISTRATIVE TRIBUNAL – where claim

made against claim fund – where Chief

Executive assessed claim as out of time –whether prescribed form mandatory provision – whether the tribunal should extend time

Agents Financial Administration Act 2014 (Qld),

s 6, s 90, s 95, s 105,  s 122, s 123, s 155

Property Agents and Motor Dealers Act 2000

(Qld), s 10, s 473

Queensland Civil and Administrative Tribunal

Act 2009 (Qld), s 3, s 20, s 61, s 100, s 102

Campaigntrack Victoria Pty Ltd v The Chief

Executive, Department of Justice and Attorney-

General & Ors [2016] QCA 37

Foot, R. v Trinity Cairns Pty Ltd & Ors [2006] QCCTPAMD 28

Hewett & Hosking v Property Agents and Motor Dealers Tribunal & Ors [2003] 2 Qd R 649; [2003] QSC 101

Jones, E.L v Gellel, H.A. & Camel Car Company [2003] QCCTPAMD 17

Koulmandas, K. v South Pacific Realty Pty Ltd [2004] QCCTPAMD 17

Phipps, M. v Stephens, R. t/as Ross Stephens Car Sales, Stephens, B., Brighton Wholesales Motors & Ross Stephens Car Sales [2003] QCCTPAMD 6

Quayle, P. & C. v Des Loeskow Plantation Pty Ltd [2004] QCCTPAMD 29

R v Carlton [2010] 2 Qd R 340; [2009] QCA 241

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]
    Mr Elijah Taylor, on behalf of the company Taylor and Sons Pty Ltd, was looking to purchase a second hand motor vehicle. Mr Taylor resides in Tasmania. 
  2. [2]
    After conducting searches on the internet, he located a 2009 Ford Ranger being sold by Mr Emran D’Yab in Queensland. The motor vehicle advertised as having an odometer reading of 49,000 kilometres.[1] 
  3. [3]
    On 6 January 2014 Mr Taylor paid Mr D’Yab $19,000 for the vehicle and collected it from Mr D’Yab on 7 January 2014 from the Gold Coast airport, then driving it back to Tasmania.[2]
  4. [4]
    In October 2014 after a VIN search of the vehicle on the internet, Mr Taylor became aware that the motor vehicle had originally been sold to Mr D’Yab with 219,865 kilometres on the odometer. 
  5. [5]
    Mr D’Yab was a licensed Motor Dealer Principal from 8 February 2012, although the licence has been surrendered.[3]
  6. [6]
    On 4 November 2014, Mr Taylor made a complaint to the Queensland Office of Fair Trading (OFT). He provided that office with copies of the internet search page, the receipt for $19,000, the Tasmanian application to register the motor vehicle showing the then reduced odometer reading and emails from Mr D’Yab describing the vehicle.
  7. [7]
    The complaint lodged by Mr Taylor by email on 4 November 2014 was made in the following terms:

“I rang the Office of Fair Trading today and was told to send an email outlining my claim.

Please find attached supporting documentation relating to my claim below.

I recently purchased a vehicle from Queensland in January this year, I have since, inadvertently found out from an internet search (please see attached document) that the vehicle was purchased previously at Manheim Auctions by someone else with 219,865KM on the clock.

The vehicle had approximately 49,000KM on the clock at the time of purchase/pickup in Queensland. At the time of the official registration inspection that was done in Tasmania the vehicle had 51,975KM on it (it had been driven back from Queensland, hence the extra couple of thousand KM).

As per the above information, I have purchased a vehicle that has been illegally tampered with and I have been given false information regarding the vehicle. Somebody need to be accountable for this and I need to be compensated accordingly.

Can this matter please be investigated. I am hoping to establish if and when Vehicles ECU was replaced to give a false reading of the KM's and if so was this done by the person I purchased it from, Emran Mohammad Daoud Dyab.

Please let me know if you have any queries.

  1. [8]
    On 9 September 2015, Mr Taylor provided a witness statement to the OFT.
  2. [9]
    Mr Taylor says he was of the opinion that he was to wait for the outcome of the proceedings against Mr D’Yab before he finalised his claim for his loss. He says he requested a claim form from an officer of the OFT on 7 January 2016 as he knew the decision against Mr D’Yab was imminent.
  3. [10]
    An email to Mr Taylor from an OFT officer advised on 7 January 2016 as follows:

“I have contacted our Claims and Recoveries Section and you are still able to lodge a claim with them. I have requested they post a package to you at the address you provided…..Tasmania … I recommend that you complete and submit it ASAP. Ensure you include in the claim that I have investigated your complaint and can supply them with the relevant documentation.”

  1. [11]
    On 19 January 2016, Mr Taylor was advised by email from an officer of the OFT that  Mr D’Yab had pleaded guilty to six charges in the Magistrates Court relating to Mr Taylor’s complaint on 15 January 2016 and had received a fine. No restitution order appears to have been made or sought.
  2. [12]
    On 26 February 2016, Mr Taylor says he forwarded a claim form under the Agents Financial Administration Act 2014 (Qld) to the OFT. He provided a copy of this claim form dated 26 February 2016 with his application to this Tribunal.
  3. [13]
    Having not heard anything, in early May Mr Taylor rang the claims section to enquire about his application. He was told that section had no record of his claim. At their request, Mr Taylor says he forwarded a further copy of his claim form on 11 May 2016.
  4. [14]
    On 9 June 2016 Mr Taylor received a decision from the Manager, Claims and Recoveries section of the OFT denying the claim on the ground that the claim was invalid pursuant to s 90 of the Agents Financial Administration Act.
  5. [15]
    Mr Taylor filed an application to review this decision with this Tribunal on 8 July 2016.
  6. [16]
    The main object of the Agents Financial Administration Act is stated in s 6 of the Act as being to “protect consumers from financial loss in dealings with agents regulated under an Agents Act.” This is achieved by establishing a claim fund to compensate persons in particular circumstances for financial loss arising from dealings with agents.[4]
  7. [17]
    Mr Taylor’s circumstances are complicated by the enacting in 2014 of the Agents Financial Administration Act and the regulation of transitional provisions from the previously existing Act, the Property Agents and Motor Dealers Act 2000 (Qld) (PAMDA).

Submissions of the Chief Executive

  1. [18]
    Section 155(3) of the Agents Financial Administration Act provides that a person who could have made a claim against the former fund but did not make the claim before the commencement may make the claim against the current fund under this Act, if the time allowed for bringing the proceeding under the repealed Act has not expired.
  2. [19]
    The Director-General submits that if Mr Taylor could have lodged a claim against the fund whilst PAMDA was in force but did not do so before the Agents Financial Administration Act came into force on 1 December 2014, then he can now make a claim against the fund if the time within which he could do so under PAMDA had not expired when the claim was lodged.
  3. [20]
    The Chief Executive says the time has passed. This is because s 472 of PAMDA sets out the timeframes within which a person can make a claim.  That section says a person may make the claim against the fund only if the person makes the claim within the earlier of the following —

(a) 1 year after the person becomes aware that the person has suffered financial loss because of the happening of an event mentioned in s 470(1);

(b) 3 years after the happening of the event that caused the person’s financial loss.

  1. [21]
    The Chief Executive submits the event happened on the making of the false and misleading statement by Mr D’Yab on 28 December 2013, three years from which is 28 December 2016.
  2. [22]
    The Chief Executive further submits Mr Taylor became aware of his loss in October 2014, one year from which is 31 October 2015.
  3. [23]
    As Mr Taylor had not lodged a claim by the earlier of the two events – 31 October 2015 – the time had expired for Mr Taylor by the time he did lodge a claim on 12 May 2016.
  4. [24]
    The Chief Executive submits that a claim must be lodged in the prescribed form. This is because the Chief Executive submits using the prescribed form is a mandatory requirement of the s 473 of PAMDA, which says the claim must be made to the Chief Executive in the approved form. Prior to 1 December 2014, the approved form was a form 50.
  5. [25]
    The Chief Executive submits because the requirement to use the prescribed form is mandatory, this Tribunal has no jurisdiction to extend the time in which to file a claim under s 61 of the QCAT Act.
  6. [26]
    Section 61 of the QCAT Act allows the Tribunal to extend a time limit fixed for the start of a proceeding by this Act or an enabling Act. An extension or waiver may be given even if the time for complying with the relevant requirement has passed.
  7. [27]
    The Chief Executive submits that s 61 applies to procedural requirements only and the issue to determine is whether the legislative requirement of the claim being made in the approved form is procedural or mandatory. The Chief Executive refers to the decision in Campaigntrack Victoria Pty Ltd v the Chief Executive.[5]
  8. [28]
    The Campaigntrack decision considered whether s 61 of the QCAT Act could be used to extend an implied timeframe under sections 473(5) and 511(1)(a)(i) of PAMDA. These were the sections of the repealed PAMDA Act governing when the Tribunal could hear an application for an extension of time. 
  9. [29]
    The Chief Executive says this decision is not applicable here because Mr Taylor’s claim was rejected on a different legislative basis – it did not meet the requirements of s 155(3) of the Agents Financial Administration Act and therefore did not transition to the newer Agents Financial Administration Act.
  10. [30]
    The Chief Executive says where a claim does not transition, this Tribunal has found it is not able to extend time because the right to make the claim has been lost and cannot be revived.[6]
  11. [31]
    However, in relation to the question of whether Mr Taylor’s application could be treated as an application for an extension of time under s 61 of the QCAT Act, the Chief Executive says the Campaigntrack is relevant as it considered s 61.[7]
  12. [32]
    On this point, the Chief Executive says as follows:
    1. It is not disputed that the time allowed for lodging a PAMDA claim expired on 31 October 2015;
    2. The Chief Executive says he received Mr Taylor’s claim on 12 May 2016;
    3. Mr Taylor is saying he lodged a claim in the form of a Statement of Witness on 9 September 2015 – within the timeframe referred to above;
    4. The Chief Executive says this is not a claim as it does not comply with the mandatory legislative requirements of being in the prescribed form;
    5. In order for the review to proceed, this Tribunal will either have to waive the mandatory requirement of the prescribed form and treat the statement of Witness as a claim against the fund; or
    6. Extend the timeframe within which Mr Taylor can lodge a claim until 12 May 2016.
  13. [33]
    The Chief Executive submits that neither course of action is open to this Tribunal because this Tribunal has no inherent jurisdiction and s 61 of the QCAT Act only allows the Tribunal to extend time and waive compliance with procedural requirements. 
  14. [34]
    The Chief Executive identifies the issue for determination as whether the relevant legislative requirement are procedural or not.

Mr Taylor’s submissions

  1. [35]
    Mr Taylor says he has read the earlier submissions of The Chief Executive dated 11 October 2016 and generally they are correct. However, the OFT does not refer to an email Mr Taylor received from the OFT officer dated 7 January 2016 OFT stating he could still lodge his claim (referred to above).
  2. [36]
    Mr Taylor points to his original OFT witness statement signed on 9 September 2015. He says he finds it frustrating that OTF used his statement to convict in criminal proceedings against Mr D’Yab for wrongdoings affecting Mr Taylor but will not then assist him to receive compensation for the same actions.
  3. [37]
    This Tribunal requested a copy of Mr Taylor’s complaint to the OFT dated 4 November 2014. This complaint was lodged within time under PAMDA, being within one year after Mr Taylor became award he had suffered a financial loss.
  4. [38]
    Section 47(2) of PAMDA set out the requirements of a claim. The claim must state:
    1. the event alleged to give rise to the claim; and
    2. when the event happened; and
    3. if the claimant was not immediately aware that the claimant suffered financial loss because of the happening of the event, when the claimant became aware of the financial loss; and
    4. all relevant particulars about the event and the financial loss; and
    5. the claimant’s estimated financial loss.
  5. [39]
    All of these elements except an estimate of his loss are satisfied by the complaint lodged by Mt Taylor on 4 November 2014. 
  6. [40]
    PAMDA allows for this eventuality. In s 472(3) the then Act states the claim is taken to have been made on the day the claim is given to the Chief Executive even though the claimant is unable to state all of the particulars mentioned in subsection (2).

Is using the right form a procedural or mandatory requirement under PAMDA?

  1. [41]
    The objects of the QCAT Act require this Tribunal to deal with matters in a way that is accessible, fair, just, economical, informal and quick.[8] The same Act also requires that the purpose of a review of a reviewable decision is to produce the correct and preferable decision.[9]
  2. [42]
    Section 473 of PAMDA required the claim to be made in the approved form.  The section uses mandatory language – the use of “must” concerning the form to be used. Under that Act, the Chief Executive submits there is no discretion to waive these requirements. 
  3. [43]
    The Queensland Court of Appeal has defined the differences in procedural and substantive law as follows:

Procedural law is the body of rules setting out the manner, form and order in which matters may be dealt with and enforced in a court. It includes the formal steps in an action including pleadings, process, evidence and practice. On the other hand, substantive law creates, defines and regulates people's rights, duties, powers and liabilities, and contains the actual rules and principles administered by courts, both under statute law and common law.[10]

  1. [44]
    I am satisfied the requirement to use of the prescribed form is akin to the matters described above by the Court of Appeal decision as “pleadings, process, evidence and practice” and in particular “pleadings”. 
  2. [45]
    The objects of the then PAMDA Act were to provide protection for consumers in their dealings with licensees and their employees.[11] One of the objects of the QCAT Act is to ensure fairness. 
  3. [46]
    I am satisfied that the necessary elements to found a claim, including Mr Taylor’s intention to seek compensation, are contained in his complaint dated 4 November 2014. I consider this complaint to satisfy the requirements of s 437 of PAMDA and, as it was made within time, has transitioned as a valid claim under the current Agents Financial Administration Act.
  4. [47]
    I am satisfied on the balance of probabilities that Taylor & Sons Pty Ltd may make the claim under Division 2, as required by s 105(2) of Agents Financial Administration Act.

Mr Taylor’s loss

  1. [48]
    Mr Taylor has not quantified his loss, except to say in his review application that he seeks his Tribunal filing fee.
  2. [49]
    The Chief Executive submits that s 82(1) of the Agents Financial Administration Act confines the financial loss to be compensated to that caused by the claimable event.
  3. [50]
    The evidence submitted by Mr Taylor shows the vehicle was purchased at auction by the seller for $8,848.00. I accept this as the best evidence of the actual value of the vehicle, as it sold at a public auction. 
  4. [51]
    Mr Taylor purchased the vehicle after it had been tampered with for $19,000. The difference is $10,152.00. I am satisfied this amount represents Mr Taylor’s loss in this transaction. 
  5. [52]
    I am not satisfied the filing fee is directly attributable to the event but was incurred as a result of the decision of the Chief Executive. Although that decision is now in Mr Taylor’s favour, I am not satisfied that the general costs provisions found in sections 100 and 102 of the QCAT Act requiring generally each party to bear their own cost is displaced in this matter as against the Chief Executive. 
  6. [53]
    Mr D’Yab is named as the person responsible for the financial loss under s 105(3)(c) of the Agents Financial Administration Act and is liable to  reimburse the fund for the monies paid by the fund to Mr Taylor.
  7. [54]
    Orders will be made to make a payment of the claim for $10,152.00 from the Fund to Taylor & Sons Pty Ltd. Emran Mohammad Daoud D’Yab will be named as liable for the financial loss of Taylor & Sons Pty Ltd.

Footnotes

[1] OFT Documents filed 11 October 2016, 12-14.

[2] Statement of Witness Elijah Taylor dated 9 September 2015, 33.

[3] OFT decision dated 9 June 2016, [5].

[4] Agents Financial Administration Act 2014 (Qld), s 6(2)(b).

[5] [2016] QCA 37, [33].

[6] Hewett & Hosking v The Property Agents and Motor Dealers Tribunal and John Gallagher [2003] QSC 101, [10] – [15]; Phipps, M. v Stephens, R. t/as Ross Stephens car Sales, Stephens, B., Brighton Wholesales Motors & Ross Stephens Car Sales [2003] QCCTPAMD6; Foot, R. v Trinity Cairns Pty Ltd & Ors [2006] QCCTPAMD 28; Koulmandas, K v South Pacific Realty Pty Ltd [2004] QCCTPAMD 17; Quayle, P. & C. v Des Loeskow Plantation Pty Ltd [2004] QCCTPAMD 29; Jones, E.L v Gellel, H.A. & Camel Car Company [2003] QCCTPAMD 17.

[7] Campaigntrack, [32] – [37].

[8] QCAT Act, s 3(b).

[9] Ibid, s 20(1).

[10] R v Carlton [2009] QCA 241, [35].

[11] PAMDA, s 10(3)(b)(i).

Close

Editorial Notes

  • Published Case Name:

    Taylor & Sons Pty Ltd v Department of Justice and Attorney-General & Emran Mohammad Daoud D'Yab

  • Shortened Case Name:

    Taylor & Sons Pty Ltd v Department of Justice and Attorney-General & Emran Mohammad Daoud D'Yab

  • MNC:

    [2017] QCAT 268

  • Court:

    QCAT

  • Judge(s):

    Member Gardiner

  • Date:

    17 Jul 2017

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Campaigntrack Victoria Pty Ltd v Chief Executive, Department of Justice and Attorney-General [2016] QCA 37
3 citations
Jump To
Cite 1 - [2016] QCA 37
Cite 2 - [2016] QCA 37
Cite 3 - [2016] QCA 37
E.L v Gellel [2003] QCCTPAMD 17
2 citations
Jump To
Cite 1 - [2003] QCCTPAMD 17
Cite 2 - [2003] QCCTPAMD 17
Hewitt v Property Agents and Motor Dealers Tribunal[2003] 2 Qd R 649; [2003] QSC 101
3 citations
Jump To
Cite 1 - [2003] QSC 101
Cite 2 - [2003] QSC 101
Cite 3 - [2003] 2 Qd R 649
K v South Pacific Realty Pty Ltd [2004] QCCTPAMD 17
2 citations
Jump To
Cite 1 - [2004] QCCTPAMD 17
Cite 2 - [2004] QCCTPAMD 17
M. v Stephens [2003] QCCTPAMD 6
2 citations
Jump To
Cite 1 - [2003] QCCTPAMD 6
Cite 2 - [2003] QCCTPAMD 6
P. & C. v Des Loeskow Plantation Pty Ltd [2004] QCCTPAMD 29
2 citations
Jump To
Cite 1 - [2004] QCCTPAMD 29
Cite 2 - [2004] QCCTPAMD 29
R v Carlton[2010] 2 Qd R 340; [2009] QCA 241
3 citations
Jump To
Cite 1 - [2009] QCA 241
Cite 2 - [2009] QCA 241
Cite 3 - [2010] 2 Qd R 340
R v Trinity Cairns Pty Ltd & Others [2006] QCCTPAMD 28
2 citations
Jump To
Cite 1 - [2006] QCCTPAMD 28
Cite 2 - [2006] QCCTPAMD 28

Cases Citing

No judgments on Queensland Judgments cite this judgment.

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