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SCP Contractors Pty Ltd v Chopperworks Pty Ltd[2017] QCAT 30

SCP Contractors Pty Ltd v Chopperworks Pty Ltd[2017] QCAT 30

CITATION:

SCP Contractors Pty Ltd v Chopperworks Pty Ltd [2017] QCAT 30

PARTIES:

SCP Contractors Pty Ltd

(Applicant)

v

Chopperworks Pty Ltd

(Respondent)

APPLICATION NUMBER:

OCR161-14

MATTER TYPE:

Other civil dispute matters

HEARING DATE:

On the Papers

HEARD AT:

Brisbane

DECISION OF:

Member Paratz

DELIVERED ON:

2 February 2017

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. The application is dismissed.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – PROFESSIONS AND TRADES – LICENSING OR REGULATION OF OTHER PROFESSION OR TRADES – DEALERS – OTHER DEALERS

MOTOR VEHICLE DEALER – CLAIM AGAINST THE FUND

Where a customer placed a motorcycle for sale on consignment with a motor vehicle dealer – Where the motorcycle was sold but the proceeds were not paid to the customer

Where the customer made a claim on the fund under the Property Agents and Motor Dealers Act  2000 (Qld) – Where the claim was lodged out of time – Where an application to the Tribunal for extension of time was filed out of time

Whether an extension of time should be granted as to the lodgement of the claim, and as to the filing of the application in the Tribunal

Property Agents and Motor Dealers Act  2000 (Qld)

Campaigntrack Victoria Pty Ltd v The Chief Executive, Department of Justice and Attorney-General [2014] QCAT 703

The Chief Executive, Department of Justice and Attorney-General v Campaigntrack Victoria Pty Ltd  [2015] QCATA 061

Campaigntrack Victoria Pty Ltd v The Chief Executive, Department of Justice and Attorney-General [2016] QCA 037

Matthews and anor v Hi Surf Resort Pty Ltd & Ors [2014] QCAT 292

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]
    SCP Contractors Pty Ltd (‘the owner’) lodged a claim against the fund established under the Property Agents and Motor Dealers Act 2000 (Qld) on 9 July 2013.
  2. [2]
    The claim was in relation to the proceeds of sale of a Harley Davidson motorcycle which had been placed for sale on consignment with Chopperworks Pty Ltd (‘the dealer’) on 12 May 2012.
  3. [3]
    The Office of Fair Trading, Department of Justice and Attorney-General (‘The Chief Executive’), issued a Notice dated 22 July 2013 advising that the claim had been assessed as being out of time, because it was lodged more than one year after the owner became aware of its financial loss.
  4. [4]
    The owner filed the current Application to extend time in the Tribunal, but that filing is also outside time.
  5. [5]
    Directions were made on 5 August 2014 providing for a hearing of the application on the papers.
  6. [6]
    The Chief Executive made submissions  dated 8 October 2014 in which it submitted that the decision in this matter should be deferred until the determination of appeals in the two matters of Campaigntrack Victoria Pty Ltd v The Chief Executive, Department of Justice and Attorney-General[1] and Matthews and anor v Hi Surf Resort Pty Ltd & Ors[2], which concerned relevant questions of law.
  7. [7]
    The parties were advised by letter from the Tribunal dated 3 February 2015 that the determination of this matter would be deferred until determination of the named appeals.
  8. [8]
    The matter of The Chief Executive, Department of Justice and Attorney-General & ors v Campaigntrack Victoria Pty Ltd[3] was first determined by the Appeal Tribunal on 6 May 2015[4], and then was further determined on appeal by the Court of Appeal on 26 February 2016[5].
  9. [9]
    The appeal in the matter of Matthews and anor v Hi Surf Resort Pty Ltd & Ors was withdrawn on 24 October 2016.
  10. [10]
    This application may now be determined on the papers. There are in effect two distinct applications to consider. This is the decision in both applications to extend time.

The Applications to extend time

  1. [11]
    The owner lodged a Claim against the claim fund in PAMD form 50 dated 9 July 2013. The amount of estimated financial loss was stated as $29,600.00.
  2. [12]
    The claim noted that the event alleged to give rise to the claim occurred on 28 June 2012; and that the claimant became aware of the financial loss on 28 June 2012.
  3. [13]
    The attached details of the claim stated as follows:

In May 2012, Paul Hutchins, director of SCP Contractors Pty ltd, engaged Chopperworks Pty Ltd to sell a 2008 Harley Davidson Rocker C (Registration 526CT) motor bike on consignment.

Paul Hutchins signed paperwork appointing Chopperworks Pty ltd and to declare the motorcycle was unencumbered but never received a copy of these documents. Paul Hutchins had been using Chopperworks Pty ltd for a number of years for repairs and maintenance on his motorcycles and had become friendly with the staff. Accordingly, he had no reason to be concerned at the lack of formalities.

In mid June 2012, Paul was advised by Nathan Parry, employee of Chopperworks Pty Ltd, that a buyer had been found at a price of $29,600.

Paul signed a contract of sale when a buyer was found but again never received a copy of the documents believing that he would receive all the necessary paperwork once the sale was finalised. The bike was transferred into the purchaser’s name on 4 June 2012. A PPSR search is attached confirming same.

Paul realised that the funds had not been transferred into his account on 28 June 2012. Paul rang Chopperworks Pty Ltd and there was no answer. He went to their premises and found a note advising that they had been put into liquidation.

  1. [14]
    Nathan Parry, a former employee of Chopperworks Pty Ltd, signed a Statutory Declaration that funds from the sale of the bike had been received by the company[6]:

Approximately 2 weeks before Chopperworks closed I had confirmation by Jeff and Samantha Richardson that the funds were transferred into Chopperworks account. I emailed Jeff and Samantha back and told them it was agreed by Paul Hutchins that the sum of approximately $29,600 would be transferred into Paul’s account and I had the contract signed by Paul Hutchins.

  1. [15]
    I gave Directions on 5 August 2014 for the filing of material and submissions in relation to the application for extension of time.
  2. [16]
    Submissions on behalf of the owner took the form of an email which was sent to the Tribunal on 25 August 2014 by Matthew Kren, the finance manager for PHP Contractors Pty Ltd and SCP Contractors Pty Ltd. Mr Kren submitted that:

Following advice from our Lawyers in June 2013 that we had a chance to claim under the Property Agents and Motor Dealers Act 2000 Claim Fund, my predecessor faxed this application to 3221 9156 (QCAT’s fax number) originally only two weeks outside of the standard claim period. However, upon querying why this application had not progressed, I found that faxes for this application type are not accepted. I therefore duly set about correctly re-submitting this application by claiming to QCAT for this extension.

This extension application is to allow us to make a claim under the Property Agents and Motor Dealers Act 2000 Claim fund.

No further supporting information is requested to be filed other than what has already been submitted to QCAT in Case OCR161-14.

  1. [17]
    The Chief Executive filed submissions on 14 October 2014.
  2. [18]
    The Chief Executive notes that the owner was out of time both for filing the claim, and then to file an application to extend time.
  3. [19]
    The Chief Executive notes that the owner claims that he lodged a Form 50 claim form with the Chief Executive on 9 July 2013, and that he also signed and faxed to the Tribunal an Application to extend time on that same day.
  4. [20]
    The Chief Executive issued a Form 52 Claim out of time Notice on 22 July 2013.  That notice noted that the claim was received on 9 July 2013, that the event alleged to give rise to the claim happened on 28 June 2012, and that the claim was out of time because it was lodged more than one year after the claimant became aware that he suffered financial loss because of the happening of the alleged event.
  5. [21]
    The Chief Executive submits that there is no satisfactory explanation given for the owner’s failure to lodge its claim within the time frame provided in section 472 PAMDA.
  6. [22]
    The Chief Executive notes that there is no evidence in the material to support the owner’s assertion that it actually faxed the application to extend time (such as a facsimile receipt) to the Tribunal. It further notes that the application to extend time is claimed to have been sent 13 days before the out of time notice was in fact issued, which leads it to submit that the proposition that an application was made at that time is false.
  7. [23]
    The Chief Executive points out that the owner did not contact the Tribunal until an unspecified date on or around 16 July 2014, and that the owner fails to explain why he took no steps to progress or inquire as to the alleged first application faxed to the Tribunal.
  8. [24]
    The present application to extend time was filed on 17 July 2014, which the Chief Executive submits was significantly later than the 14 day timeframe allowed in section 511(1)(a)(i) PAMDA, and ought to be dismissed.

Discussion

  1. [25]
    If the dates as set out on the ‘Claim out of time notice’ are accepted, then the claim was filed 11 days late.
  2. [26]
    If the alleged first attempt to file an application in the Tribunal by fax is considered, then the application to the Tribunal was made well within time, and in fact was made about 27 days within time (if the period to consider by the Chief Executive of 13 days until 22 July 2013 is added to the 14 day period for filing an application).
  3. [27]
    If the first alleged application to the Tribunal is not considered, then the application to extend time was filed about 11.5 months late.
  4. [28]
    The ability of the Tribunal to extend the time for the filing of an application in the Tribunal was considered by the Court of Appeal in Campaigntrack Victoria Pty Ltd v The Chief Executive, Department of Justice and Attorney-General[7].
  5. [29]
    Applegarth J held that the Tribunal does have jurisdiction to extend the time to bring an application to extend time[8]:

[31] In summary, s 473(5)(b) and s 511 in combination imply, rather than clearly express, a time period of 14 days within which a claimant may apply for an extension of the time stated in s 472. The sections do not state that an application for such an extension may not be sought outside this time period. They do not exclude the operation of s 61 of the QCAT Act so as to allow the Tribunal in an appropriate case to grant an extension of the 14 day period or waive compliance with the requirement to make the application within the time mentioned in the notice.

  1. [30]
    In its application filed on 17 July 2014 the owner set out what it was seeking from the Tribunal as follows:

Our Company accountant had previously attempted to lodge this same Form 42 Application to QCAT by fax in late July 2013 (please refer to following attachment noting fax number and 24 pages) however this today has been confirmed as not received by QCAT.

Application is sought here by completing this new Form 42 Application, and send in by mail, in triplicate.

Details of this pertain to a claim to be made against the Claim Fund under the Property Agents and Motor Dealers Act 2000.

Our original claim against the Fund was rejected on the grounds that it was lodged more than one year after we became aware of our financial loss (being 9/7/2013 claimed versus 28/6/2012 aware, therefore some 11 days outside of the one year period). Please refer to following PAMD Form 50 Claim against the Fund and resulting Office of Fair Trading Assessment PAMD Form 52.

Particulars pertain to a motorcycle that was sold by us, on consignment, via Chopperworks Pty Ltd (in liquidation), but never having received the sale funds prior to Chopperworks Pty Ltd (in liquidation) going into Liquidation.

  1. [31]
    In the alleged first application, which is dated 9 July 2013, and which was allegedly faxed to the Tribunal, the details of what the owner was seeking was set out as follows:

We are seeking an extension to the time limit to make a claim against the claim fund – Property Agents + Motor dealers Act.

We have only recently been made aware by our new lawyers of our ability to claim under the Act.

As we are less than 2 weeks outside the time limit we respectfully request the limit be extended.

  1. [32]
    It is very hard to understand how the owner could have lodged the claim with the Chief Executive, and faxed an application to extend a time period to the Tribunal, on the same day. Until the Chief Executive sent a Notice that it considered the claim was out of time, how could the owner have considered that an extension of time was necessary?
  2. [33]
    It is possible that the owner’s Solicitors, who it says advised it that a claim was possible, also advised it that the claim would be out of time, and that an application to extend time would be required. However, the usual course would be to await a formal notice that the claim was out of time, and then file an application to the Tribunal to extend the time for  lodging the claim within 14 days of receiving that notice.
  3. [34]
    It is also possible that the first Application was dated 9 July 2013, but the alleged fax attempt did not occur until ‘late July’ as the owner refers, which may have been after the Out of time Notice was received.
  4. [35]
    Whilst I have referred to SCP Contractors Pty Ltd as the owner for convenience, the situation as to ownership of the motorbike is not clear.
  5. [36]
    The PAMD Form 50 lists two claimants – Paul Hutchins is shown as Claimant 1; and SCP Contractors Pty Ltd is shown as Claimant 2. The claim is signed by Paul Hutchins only.
  6. [37]
    The PAMD Form 52 Claim out of time Notice by the Chief Executive names SCP Contractors Pty Ltd as Claimant 1, and Paul Hutchins as Claimant 2.
  7. [38]
    The alleged faxed first application, and the current application, to the Tribunal, name Mr Paul Hutchins, but also names SCP Contractors Pty Ltd, as the Applicant.
  8. [39]
    The Statutory declaration of Nathan Parry says that the funds were to be paid to Paul Hutchin’s account.
  9. [40]
    It may be that Mr Parry was not being literal when he referred to “Paul’s account”, and may have considered that an account of SCP Contractors Pty Ltd fell within that description.
  10. [41]
    The Chief Executive has not taken issue as to the ownership question.
  11. [42]
    As the ownership question is uncertain, but no issue has been taken, I will proceed to determine the application without basing any importance on that aspect.
  12. [43]
    The liquidator of Chopperworks Pty Ltd in a letter to the Tribunal dated 4 September 2014 advised that prior to their appointment the computer server and company’s books and records were removed from the business premises, and to that date had not been located. They advised that they do not hold any information or documentation in respect to SCP Contractors Pty Ltd.

Should an extension of time be granted?

  1. [44]
    There are two time periods which would be required to be extended for the claim to be further considered.
  2. [45]
    The Tribunal has clear jurisdiction under the Act to extend the 12 month period for lodging a claim. Having regard to the Court of Appeal decision in Campaigntrack, the Tribunal also has jurisdiction to extend the 14 day period for making that application.

The two claimed applications to extend time in the Tribunal

  1. [46]
    The owner alleges that an attempt to file an Application to extend time was sent to the tribunal by its former finance manager. The Chief Executive has taken the purported date of faxing as the day it was dated, being 9 July 2013. However, the owner refers to the attempt having been made in late July 2013.
  2. [47]
    There is no evidence of such an attempt, whichever date is considered - there is no delivery report for the Fax, the Tribunal has no record of receiving such a fax, and there is no statement from the former finance manager verifying that he sent the fax.
  3. [48]
    There is also no explanation why such an application would be made 13 days before an out of time notice was even issued (if that is when it was faxed).
  4. [49]
    I cannot be satisfied on the evidence before me that an application to extend time was faxed to the Tribunal on 9 July 2013, or in late July 2013, and can have no regard to that purported application.
  5. [50]
    The application to extend time then must be considered in light of the current application which was filed in the Tribunal on 17 July 2014, and the question becomes as to whether the 14 day period for filing the application to extend time should be extended by about 11 months. No explanation is given as to why that delay occurred.
  6. [51]
    I cannot be satisfied on the evidence before me that sufficient cause has been shown to exercise discretion to extend the time for filing the application in the Tribunal.

The application to extend time to lodge the claim

  1. [52]
    No explanation is given as to why the claim was not lodged until one year and 11 days after the owner became aware of its loss. The owner suggests that it was not aware until June 2013 that it was entitled to make a claim, when it received advice from new solicitors. However, no evidence is given as to the dates when the advice from the solicitor was received, and why that resulted in the claim not being made until 9 July 2013, which was 11 days after the expiration of the one year period.
  2. [53]
    I cannot be satisfied, having regard to the evidence, that sufficient cause has been shown to exercise discretion to extend the time for lodging the claim.

Conclusion

  1. [54]
    I do not take the purported faxed Application to the Tribunal dated 9 July 2013 into account.
  2. [55]
    I am not satisfied that proper basis has been shown for the Tribunal to exercise its discretion to extend either the time for filing this application in the Tribunal, or the time for lodging the claim to the Chief Executive.
  3. [56]
    The Notice issued by the Chief Executive on 22 July 2013, that the claim is out of time, is of full effect.
  4. [57]
    The application is dismissed.

Footnotes

[1][2014] QCAT 703 (GAR351-12).

[2][2014] QCAT 292 (GAR452-13).

[3][2014] QCAT 703 (GAR351-12).

[4][2015] QCATA 061.

[5][2016] QCA 037.

[6]Statutory Declaration, Nathan Parry, 28 June 2012.

[7][2016] QCA 37.

[8]Ibid [31].

Close

Editorial Notes

  • Published Case Name:

    SCP Contractors Pty Ltd v Chopperworks Pty Ltd

  • Shortened Case Name:

    SCP Contractors Pty Ltd v Chopperworks Pty Ltd

  • MNC:

    [2017] QCAT 30

  • Court:

    QCAT

  • Judge(s):

    Member Paratz

  • Date:

    02 Feb 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
4 citations
Jump To
Cite 1 - [2016] QCA 37
Cite 2 - [2016] QCA 37
Cite 3 - [2016] QCA 37
Cite 4 - [2016] QCA 37
Campaigntrack Victoria Pty Ltd v The Chief Executive, Department of Justice and Attorney-General [2014] QCAT 703
3 citations
Jump To
Cite 1 - [2014] QCAT 703
Cite 2 - [2014] QCAT 703
Cite 3 - [2014] QCAT 703
Chief Executive, Department of Justice and Attorney-General v Campaigntrack Victoria Pty Ltd [2015] QCATA 61
2 citations
Jump To
Cite 1 - [2015] QCATA 61
Cite 2 - [2015] QCATA 61
Matthews & Anor v Hi Surf Resort Pty Ltd & Ors [2014] QCAT 292
2 citations
Jump To
Cite 1 - [2014] QCAT 292
Cite 2 - [2014] QCAT 292

Cases Citing

Case NameFull CitationFrequency
Thornley v Hi Surf Resort [2017] QCAT 613 citations
1

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