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Robbins v Office of Fair Trading QCAT 38
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Robbins v Office of Fair Trading & Ors  QCAT 38
peter ronald robbins
office of fair trading
max boyd (AKA BOYD HAMILTON FRASER)
General administrative review matters
31 January 2024
DATE FINAL SUBMISSIONS RECEIVED:
4 September 2023
14 December 2023
PROFESSIONS AND TRADES – LICENSING AND REGULATION OF OTHER PROFESSIONS OR TRADES – DEALERS – OTHER DEALERS – where dealer obtained safety certificate from third party – where vehicle not roadworthy – whether dealer adopted safety certificate and represented vehicle roadworthy
Agents Financial Administration Act 2014 (Qld), s 82
Motor Dealers and Chattel Auctioneers Act 2014 (Qld), s 216
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 40(1)(e), s 42
McNabb v OFT Claims and Recoveries, Department of Justice and Attorney-General (2011) QCAT 505
APPEARANCES & REPRESENTATION:
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)
REASONS FOR DECISION
What is this case about?
- This case concerns whether the applicant, Mr Robbins, is entitled to claim against the claim fund established under the Agents Financial Administration Act 2014 (Qld) (‘AFA Act’) in respect of losses suffered in relation to his purchase of a faulty 2008 Toyota Landcruiser from AFS Corporation Pty Ltd (‘AFS’).
- The Office of Fair Trading (‘OFT’) decided Mr Robbins is not entitled to the payment he seeks. Mr Robbins seeks a review of that decision.
- Mr Fraser-Scott and Mr Boyd are named as additional respondents because Mr Robbins says he dealt with them at AFS which subsequently was placed into external administration.
- Mr Robbins has suffered a financial loss as a consequence of the actions of persons he dealt with in relation to the purchase of the vehicle. He has unsuccessfully endeavoured to recoup that loss through legal proceedings. He finds himself out of pocket for the $45,000 he paid for the vehicle and legal costs, and no longer has ownership or possession of the vehicle. In other words, he has neither the faulty vehicle nor the money he paid for it and has incurred legal costs as well.
- As sympathetic as the Tribunal may be to his plight, the AFA Act is not a general fund for the recovery of any loss suffered in connection with a vehicle acquired through an agent. Payments from the claim fund can only be made in the circumstances specified in the AFA Act.
- I have concluded that payment to Mr Robbins from the fund is not authorised by the AFA Act. My reasons for that decision are set out below. But first I deal with a procedural matter.
Application to remove Max Boyd (AKA Boyd Hamilton Fraser) as a party
- On 25 July 2022, the Tribunal directed that the name of the respondent Max Boyd be amended to Max Boyd (AKA Boyd Hamilton Fraser). That occurred following advice from the OFT that Max Boyd is a pseudonym for Boyd Hamilton Fraser.
- The Tribunal also directed that an Application for miscellaneous matters dated 16 May 2022, seeking removal of Max Boyd (Boyd Hamilton Fraser) as a party to the proceedings, be determined together with the application for review. The person making the application is stated to be “DIAMOND LAW ON BEHALF OF BOYFD (sic) HAMILTON FRASER”. In the space in the signature block for the applicant to print their name, the following appears: “James Allan Diamond C/O Boyd Hamilton Fraser”.
- The reasons for removal of the party are stated to be that the Chief Executive in submissions dated 24 November 2020 submitted that Max Boyd (Boyd Hamilton Fraser) is not a relevant person to the claim. There is no suggestion in those stated reasons that Max Boyd and Boyd Hamilton Fraser are not one and the same.
- However, in response to directions calling for submissions in support of the application, an unsigned document apparently filed on behalf of Boyd Hamilton Fraser asserts that:
The assumptions that have been made about Boyd Hamilton Fraser (myself) and Max Boyd being the same person are completely incorrect. The name Max belongs to another individual, this is a different person. The Alias (sic) (Max Boyd) provided to myself is wrong in its entirety.
The given name listed as “respondent” is of another and therefore I should not be an automatic party to the review lodged in Qcat (sic).
I Boyd Hamilton Fraser was not the main salesperson that Peter Dealt with when purchasing said vehicle.
- Mr Robbins named Max Boyd, amongst others, as a respondent to his claim. By operation of law, that makes Max Boyd a respondent to the application for review. As such, Max Boyd may only be removed as a party if the Tribunal considers that his interests are not, or are no longer, affected by the proceeding or he is not a proper or necessary party to the proceeding.
- Mr Robbins maintains he dealt with Max Boyd in relation to the purchase of the Landcruiser and opposes his removal as a party to the proceeding. The OFT also opposes the application. If the application for review were to be decided in favour of Mr Robbins, the OFT may seek to recover any payment from Max Boyd. Accordingly, he has an interest in the outcome of the proceedings, including any appeal.
- The Tribunal has before it only the brief unsworn, indeed unsigned, submission mentioned above suggesting Max Boyd is not a pseudonym for Hamilton Boyd Fraser. As already noted, that does not appear in the reasons for removal of Max Boyd stated in the Application for miscellaneous matters. I am not satisfied, on the basis of that slender and inconsistent evidence, that Max Boyd is not one and the same person as Hamilton Boyd Fraser, nor that that gentleman is not a proper party to the proceeding.
- Accordingly, the Application for miscellaneous matters will be dismissed. That decision may have little or no practical significance in view of my decision regarding the application for review, the reasons for which now follow.
- The essential facts in this matter are not in dispute.
- In March 2017, Mr Robbins agreed to purchase the vehicle from AFS. Mr Robbins had dealt with AFS prior to the transaction that led to his current difficulties, apparently without any problems arising. Perhaps it was for that reason that he agreed to purchase the Landcruiser, and pay the $45,000 purchase price, without first inspecting it.
- On 25 March 2017, a third-party company inspected the vehicle for the purpose of determining whether a Queensland safety certificate for the vehicle should issue. A safety certificate was declined at the first inspection but issued upon second inspection after Mr Robbins paid for a new clutch to be installed.
- Mr Robbins then took delivery of the vehicle and drove it to Victoria where he attempted to obtain a Victorian safety certificate. He was told the vehicle was not in a roadworthy condition; that it in fact had 10 defects that required attention before it could be registered in Victoria.
- Mr Robbins commenced legal proceedings against AFS for misleading and deceptive conduct and breach of s 54 of the Australian Consumer Law. Those proceedings were settled on the basis that AFS would endeavour to sell the vehicle at auction for $45,000. If it could not be sold for $45,000 within 30 days of it being collected from Mr Robbins, AFS would purchase the vehicle from Mr Robbins for $45,000.
- AFS duly collected the vehicle. However, it did not sell at auction. Further, although various promises were made, AFS did not pay Mr Robbins for the vehicle.
- Mr Robbins obtained a judgement for breach of the settlement agreement against AFS for $45,678.08 which included interest of $678.08 and costs to be agreed or assessed. Costs were assessed at $10,036.18.
- Mr Robbins claimed the total amount of $55,714.26 made up of the $45,000 price, plus interest and costs as outlined above, against the claim fund. It is the OFT’s decision rejecting the claim against the fund that Mr Robbins asks the Tribunal to review.
- Section 82 of the AFA Act sets out the circumstances in which a person may make a claim against the claim fund.
- The only provision that arises for consideration in this case is s 82(1)(d) which relevantly provides:
A person may claim against the fund if the person suffers financial loss because of the happening of any of the following events–
. . .
- the contravention by a relevant person of the following provisions of the Motor Dealers and Chattel Auctioneers Act 2014-
. . .
- section 216;
- A “relevant person” is defined for this purpose in s 80 as:
- an agent;
- an agent’s employee or agent, or a person carrying on business with the agent;
- a person having charge or control, or apparent charge or control, of an agent’s registered office or business.
- Section 216 of the Motor Dealers and Chattel Auctioneers Act 2014 (Qld) in turn relevantly provides:
- A licensee or motor salesperson must not represent in any way to someone else anything that is false or misleading about the sale or auction of goods.
. . .
- Without limiting subsection (1), a representation is taken, for the subsection, to be false or misleading if it would reasonably tend to lead to a belief in the existence of a state of affairs that does not in fact exist, whether or not the representation indicates that state of affairs does exist.
- Also, if a person makes a representation about a matter and the person does not have reasonable grounds for making the representation, the representation is taken to be misleading.
- The onus of establishing that the person had reasonable grounds for making the representation is on the person.
. . .
- In this section—
false or misleading, in relation to a representation, includes the wilful concealment of a material fact in the representation.
. . .
- The term “misleading” includes “deceptive”: Schedule 3, Dictionary.
- In summary, a person may claim against the fund if:
- the person suffers financial loss;
- because a motor dealer or a dealer’s agent or employee;
- represents in any way to someone else anything that is false or misleading about the sale or auction of goods,
taking into account the ways the meaning of “false or misleading” is extended as indicated above.
Application of the law to this matter
AFS’ failure to pay for the vehicle
- So far as Mr Robbins’ loss results from the failure of AFS to pay the amount of $45,000 for the purchase of the vehicle as part of the settlement of the court proceedings, Mr Robbins suffers from the same difficulty identified in McNabb v OFT Claims and Recoveries, Department of Justice and Attorney-General.
- In that case, Mr McNabb placed a vehicle on consignment with a Mr Ivanov who it was accepted was acting as a licensee. The vehicle was damaged while held on consignment. Mr Ivanov agreed to purchase the vehicle from Mr McNabb but his cheques for the purchase were dishonoured. As Member Stilgoe observed:
The relevant transaction between Mr McNabb and Mr Ivanov was the sale of the car. Mr McNabb gave possession of the car to Mr Ivanov; property in the car passed to Mr Ivanov when the agreement was made; and from then on, Mr Ivanov was free to do what he liked with the car. If Mr Ivanov did not pay the purchase price, Mr McNabb’s remedy lies in contract, not as a claim on the fund.
- In this case, AFS failed to pay the agreed purchase price. That is not a ground for claiming against the fund. Mr Robbins’ remedy, if any, for that failure would be a contractual or other claim against AFS. Similarly, to the extent Mr Robbins alleges AFS owed a duty not to sell unroadworthy vehicles and breached the duty said to be owed, that is not a basis for a claim against the fund
Did AFS adopt the safety certificate?
- At the heart of Mr Robbins’ claim against the fund is the Queensland safety certificate. In the discussion that follows, I assume that, as the applicant maintains, it was false or misleading.
- The difficulty for Mr Robbins is that the safety certificate was not provided by AFS or any person on behalf of AFS. If, as I have assumed, it contains false or misleading statements, those statements were made by the company or individual that issued it, not by or on behalf of AFS.
- Submissions supporting Mr Robbins’ application endeavour to overcome this difficulty by arguing that AFS “adopted” the safety certificate. That submission appears to be based on AFS’s name and address appearing on the certificate.
- I am unable to accept this evidences AFS adopting the certificate. It appears to do no more than record the name and address of AFS as the owner of the vehicle at the time the certificate issued. In any case, it could not be said that Mr Robbins relied upon the safety certificate in purchasing the vehicle as he paid the purchase price well before the safety certificate issued.
- Accordingly, I am not satisfied the amount claimed by Mr Robbins is claimable from the fund on the basis that AFS adopted the safety certificate and thus made a misleading representation upon which Mr Robbins relied.
Did AFS otherwise represent something false or misleading in relation to the vehicle?
- At the time Mr Robbins claimed against the fund, he was legally represented. The submission that AFS adopted the safety certificate was the only basis on which Mr Robbins’ legal representatives submitted he is entitled to recover from the fund. Nevertheless, I have considered whether AFS otherwise represented something false or misleading in relation to the vehicle.
- Mr Robbins asserts and the OFT accepts that he agreed to purchase the vehicle on 7 February 2017.
- If it was an express or implied condition that the agreement was subject to AFS obtaining a Queensland safety certificate, it may be arguable that it is implicit in that condition that AFS would provide a valid safety certificate and that the vehicle was in a condition sufficient to warrant a valid safety certificate being issued.
- A copy of the form provided by the Victorian mechanic who refused to issue a safety certificate, setting out the identified defects, is in evidence. The list of defects is not easy to read. However, a copy of the Statement of Claim in Mr Robbins’ proceedings against AFS sets out the following defects:
- The sump on the engine needs replacing.
- The tyres stick to the outside guards of the vehicle.
- There is no muffler or catalytic converter.
- The differential and brake lines leak.
- The instrument cluster is [not] working and keeps flashing.
- The speedometer is inaccurate.
- The lower control arm brackets have been welded and they have rusted out.
- The lower shock bracket to the differential has been welded up.
- No lower radiator support on the vehicle.
- There is extensive rust on the inside of the chassis.
- Mr Robbins also confirmed many of these defects in written statements submitted to the Tribunal. The defects listed on the Victorian mechanic’s report are not limited to but include:
- Rectify wheels protruding outside body.
- Rear mud guards and mud flaps required.
- Cat. converter required.
- If the agreement between AFS and Mr Robbins was that sale of the vehicle was subject to AFS providing a safety certificate, it would, arguably, be implicit in such a term that the certificate issued would be a valid safety certificate.
- In terms of s 216(2) of the Motor Dealers and Chattel Auctioneers Act 2014 (Qld), such a representation could “reasonably tend to lead to the belief in the existence of a state of affairs” – that the vehicle was in a condition consistent with the issue of a valid safety certificate. That state of affairs clearly did not exist. Under s 216(2), it would not matter that the representation did not explicitly indicate the vehicle was in such a condition.
- Under s 216(4), AFS would have the onus of establishing it had reasonable grounds for any relevant representation. Such evidence as there is points, in my view, to the conclusion that AFS would not have had reasonable grounds for an implied representation that the vehicle was in a condition consistent with a valid safety issuing.
- Even if consideration is confined to the three defects above listed on the Victorian mechanic’s report, it would stretch credibility to suggest a motor dealer would not be on notice that the vehicle would be unlikely to be in a condition consistent with a valid safety certificate issuing. Such defects would be clearly visible and surely of a kind readily identifiable by a person experienced in the motor trade and in the sale of used vehicles.
- Having regard to these considerations, I gave the parties an opportunity to make submissions on, amongst other things, whether the agreement for the applicant’s purchase of the vehicle included a condition that a safety certificate would be provided. Submissions filed by the OFT asserted:
According to the Applicant, he and AFS Corporation Pty Ltd never agreed to, nor did they contemplate the provision of a safety certificate being a condition of this purchase.
- In light of the assertion, I expected to find a statement by the applicant that he and AFS never agreed nor contemplated a safety certificate would be a condition of the sale. I found no such statement in the material footnoted by the OFT. It appears that by the submission the OFT intended to convey no more than that Mr Robbins did not assert that such a condition applied. I can identify no statement in the footnoted material by which, as one reading of the submission would suggest, Mr Robbins positively states such a condition was not agreed or contemplated.
- The OFT points out that the written contract executed by AFS and Mr Robbins makes no reference to such a condition. However, that document bears the date 31 March 2017, whereas Mr Robbins advised he “purchased” the vehicle on 7 February 2017. Further, a notation on a tax invoice for the vehicle indicates the purchase price of $45,000 was paid on 29 March 2017 – that is, two days before the written “contract” was apparently executed.
- The waters are muddied further by a different “tax invoice” in evidence. This document is dated 1 March 2017 and calls for the payment of a total of $46,475 comprising the purchase price of $45,000, “Rego” of $690 and “Transport” of $1,285. This document is unexplained. If this were the tax invoice for the transaction, it would suggest the agreement was for the vehicle to be registered at the time of sale. However, Mr Robbins has made clear that he took delivery of the vehicle at AFS’ premises so there were no transport costs. Nor is it suggested that Mr Robbins paid AFS for the cost of registering the vehicle. It appears the 31 March 2017 tax invoice supersedes this document.
- Additionally, Mr Robbins signed a document, again dated 31 March 2017, entitled “Sale of Unregistered Vehicle by Dealer”. In this document, Mr Robbins confirmed that he purchased the Landcruiser, described as “the Unregistered Vehicle”. The form called for one of two possibilities-the vehicle would not be used on a road or its garaging address would not be in Queensland-to be struck out. The form was not properly completed in that neither of these possibilities was struck through. However, it is consistent with the agreement being that AFS would sell the vehicle unregistered. That is what Mr Robbins paid for-an unregistered vehicle-and that is what he got. Furthermore, he paid the purchase price well before the safety certificate issued.
- For these reasons, I accept the OFT’s submission that it could not be implied that AFS and Mr Robbins agreed, as a condition of the sale, that AFS would provide a valid safety certificate.
- As previously noted, the Queensland mechanic, after inspecting the vehicle, advised Mr Robbins that the vehicle would require a new clutch. Mr Robbins arranged the installation of a new clutch. Mr Robbins did not call on AFS to arrange or fund the cost of the new clutch. That is inconsistent with an express or implied condition that the vehicle would be in a condition consistent with a valid safety certificate issuing.
- There is no other basis on which a representation that the vehicle would be in a condition consistent with a valid safety certificate issuing could be found. No submission filed on Mr Robbins’ behalf submitted otherwise.
- Accordingly, there is no basis on which Mr Robbins may recover any his loss from the fund. It follows that the decision under review must be confirmed.
- Published Case Name:
Robbins v Office of Fair Trading & Ors
- Shortened Case Name:
Robbins v Office of Fair Trading
 QCAT 38
31 Jan 2024