Cotter v Car Auction Pty Ltd & Ors [2022] QCAT 364

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Cotter v Car Auction Pty Ltd & Ors [2022] QCAT 364 PARTIES: KATHLEEN AGNES COTTER (applicant) v CAR AUCTION PTY LTD (first respondent) JESSICA PAGE (second respondent) LEVI JACKSON (third respondent) THOMAS MUTCH (fourth respondent) CHIEF EXECUTIVE, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL (fifth respondent) APPLICATION NO: OCL004-21 MATTER TYPE: Occupational regulation matters DELIVERED ON: 27 September 2022 HEARING DATE: 26 July 2022 HEARD AT: Brisbane DECISION OF: Member Olding ORDERS: The decision under review is confirmed. CATCHWORDS: ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – whether Tribunal has jurisdiction under Agents Financial Administration Act 2014 (Qld) – whether sufficient connection with State of Queensland PROFESSIONS AND TRADES – LICENSING AND REGULATION OF OTHER PROFESSIONS OR TRADES – DEALERS – OTHER DEALERS – where business formerly operated in Queensland misappropriated motor vehicle purchase monies – where vehicle and claimant located outside Queensland – where preponderance of evidence that respondents not in Queensland when impugned conduct occurred -- 1 of 7 -- 2 Agents Financial Administration Act 2014 (Qld), s 82(1), s 92(3) Freehold Land Investments Ltd v Queensland Estates Pty Ltd (1970) 123 CLR 418 Riley, Vrachnas & the Chief Executive, Office of Fair Trading v Ferrantino [2008] QCCTPAMD 3 Ryan v Ferrantino [2010] QCAT 495 Turnbull v McCreath & Ors [2017] QCAT 190 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) Applicant: H L Lilley of Counsel Fifth Respondent: Self-represented REASONS FOR DECISION [1] The applicant, Ms Cotter, a disability pensioner, on an advertised promise of a $3,000 - $6,000 saving, engaged the first respondent, Car Auction Pty Ltd, as a buyer’s agent to purchase a vehicle on her behalf. [2] In due course, Car Auction Pty Ltd’s representative, Mr Levi Jackson, advised Ms Cotter that he had purchased a suitable vehicle and an invoice for the vehicle in the amount of $23,450 issued. Ms Cotter duly transferred the amount of $23,450 to an account nominated by Mr Jackson. [3] Ms Cotter received neither the vehicle nor a refund of any part of the amount she paid for it. For the purposes of this proceeding, it may be assumed that Car Auction Pty Ltd misappropriated her money. Ms Cotter applied for a payment from the fund established under the Agents Financial Administration Act 2014 (Qld) (“the AFA Act”) to compensate those who suffer financial loss as a result of misappropriation of funds or other contraventions of that Act by a person who acts as a licensed agent.1 [4] The Chief Executive of the Queensland Department of Justice and Attorney-General (“the Chief Executive”), which administers the fund, decided Ms Cotter had no grounds for making the claim, broadly on the basis that the claim lacked sufficient connection with the State of Queensland to attract the operation of the AFA Act. Car Auction Pty Ltd was incorporated in Queensland and public records of the Australian Securities and Investments Commission (“ASIC”) indicated a Queensland address for the registered office and principal place of business of Car Auction Pty Ltd. However, although Mr Jackson and his partner, Ms Jessica Page who was the sole director of the company, had resided and carried on business in Queensland, the evidence indicates that they relocated to Tasmania around the time Ms Cotter engaged the services of Car Auction Pty Ltd.2 1 AFA Act, s 82(1). 2 To avoid repetition, I refer to the First, Second and Third Respondents collectively as “the Car Auction Respondents”. It is not in dispute that the Second and Third Respondents are each an “executive officer”, as defined, of Car Auction Pty Ltd and as such taken to be respondents to the claim under the fund: AFA Act, s 92(3). -- 2 of 7 -- 3 [5] It is the Chief Executive’s decision refusing her claim against the fund that Ms Cotter asks the Tribunal to review. Ms Cotter and the Chief Executive approached their submissions on the footing that the matter would be decided by whether in the circumstances of this matter there is sufficient connection with the State of Queensland for the relevant provisions of the AFA Act to be engaged. The applicable principles [6] The AFA Act does not contain any express territorial limitation upon its operation. However, that does not mean there is no limit upon its operation. It would not, for example, apply where the parties and the impugned conduct were located wholly outside Queensland. [7] Ms Cotter and the Chief Executive agreed that the fact that relevant property, here a motor vehicle, is located outside Queensland is not fatal to a claim if there is otherwise sufficient connection with this State. However, there was some difference in their submissions regarding the appropriate approach to determining whether on the facts of a particular matter there is a sufficient connection. [8] The Chief Executive submitted that the applicant must establish that the Car Auction Respondents “performed the activities of a licensee within Queensland during the relevant times”. Ms Cotter submitted that the Chief Executive’s approach was too narrow. In each case, Ms Cotter submitted, the Tribunal must consider all of the facts and circumstances to decide in which state the impugned conduct occurred. [9] The Chief Executive’s submission referenced the judgment of the High Court of Australia in Freehold Land Investments Ltd v Queensland Estates Pty Ltd.3 In that case, the appellant sought to avoid a consequence of non-compliance with earlier legislation mandating licensing of real estate agents – the inability to recover a sales commission - by arguing that certain of its activities did not fall within the applicable definition of “real estate agent”. That definition in turn referenced persons who as an agent for others carried on the business of selling or negotiating the sale of land. [10] In those circumstances, it is not surprising the Court identified as the question for determination whether the claimant carried on the business of a real estate agent in Queensland. It does not necessarily follow that in every case in which the question of the territorial reach of the AFA Act arises that question is to be answered by reference to whether the respondent carried on business as an agent in Queensland. [11] When territorial issues have arisen under predecessor legislation, the Tribunal has approached the matter in a holistic way by examining where relevant activities of the respondent, such as sale negotiations, and the impugned conduct, have taken place.4 Ms Cotter’s submissions [12] The submissions filed on behalf of Ms Cotter asserted the following: (a) Ms Cotter was in Tasmania; (b) the location of Mr Jackson on the date of and around the transaction has not been conclusively determined; 3 (1970) 123 CLR 418. 4 Ryan v Ferrantino [2010] QCAT 495. -- 3 of 7 -- 4 (c) all relevant communications were conducted by email, text message and phone, and so were not location-specific and without knowing Mr Jackson’s location at the time, cannot be confirmed; (d) Car Auction Pty Ltd was registered in Queensland; (e) Car Auction Pty Ltd’s principal place of business was in Queensland; (f) according to ASIC’s records, the address of each of Mr Jackson and Ms Page was in Queensland; (g) the Chief Executive believes that Mr Mutch’s location was in Queensland; (h) the bank account Ms Cotter paid her money into was in Queensland; and (i) it can be inferred that any misappropriation of Ms Cotter’s money also occurred in Queensland. [13] The submissions went on to assert that: Ms Cotter’s money was paid into a Queensland operated bank account pursuant to an invoice issued by a Queensland registered and addressed company. It was from that bank account that the misappropriation occurred. [14] On the basis of these assertions, it was submitted on Ms Cotter’s behalf that: Where, as here, that money was transferred to a bank account in Queensland and not returned to Ms Cotter, the misappropriation of her money can only have occurred in Queensland. In circumstances similar to Turnbull v McCreath, Ms Cotter accepted the offer and supplied her consideration for the Transaction by transferring funds to the Queensland bank account. It was misappropriated from that account. That is where the “impugned conduct” took place. Consideration [15] As the summary in Ms Cotter’s submissions indicates, the case footnoted in support of the first sentence in the extract immediately above concerned misappropriation of a bank cheque provided to a person in Queensland.5 In those circumstances, the conclusion that the misappropriation must have occurred in Queensland is not surprising. [16] Here, the funds were transferred electronically to an account opened at a branch in Queensland. Having regard to modern banking practices, it does not follow that the act that caused those funds to be applied otherwise than as promised in purchase of the vehicle for Ms Cotter must have taken place in Queensland. It could have occurred anywhere in Australia. [17] Similarly, while the payment in Turnbull v McCreath & Ors6 was by electronic funds transfer to a Queensland bank account, that was not the only or key feature of the case. Importantly, the agent was actually located in, and communicated with the applicant from, Queensland. [18] Can it be inferred, as Ms Cotter submits, that the misappropriation in this case occurred in Queensland? That might be so if Mr Jackson or Ms Page were located in 5 Riley, Vrachnas & the Chief Executive, Office of Fair Trading v Ferrantino [2008] QCCTPAMD 3 6 [2017] QCAT 190. -- 4 of 7 -- 5 Queensland at relevant times. However, for the reasons that follow, in my view the evidence does not establish that either of them was. Sequence of events [19] Before turning to consider the evidence, it is important to determine the relevant sequence of events. The following outline, drawn mainly from Ms Cotter’s claim form, appears to be uncontested: (a) Ms Cotter’s initial contact with Mr Jackson was on 16 July 2020. (b) After various telephone conversations in the meantime, on 14 August 2020 Ms Cotter transferred $330 to Car Auction Pty Ltd which was said to be 50% of a “membership fee”. (c) Over the following weeks, Ms Cotter received numerous telephone calls, emails and text messages about potential vehicle purchases. (d) On 8 September 2020, Mr Jackson advised Ms Cotter that he had bid on a vehicle and the bid had been accepted. Ms Cotter also received an invoice dated 8 September 2020 for the purchase price of $24,350. (e) On the same day, Ms Cotter transferred $20,000 to Car Auction Pty Ltd, which was the maximum she could transfer in a single day. She transferred $3450, the balance of the purchase price, the following day (9 September 2020). Mr Jackson advised that delivery of the vehicle would take two to three weeks. (f) On 10 September 2020, Ms Cotter received an email attaching a receipt for her payment. (g) Ms Cotter followed up Mr Jackson numerous times and received various assurances, including a message on 29 September indicating delivery would take place on 30 September 2020, but the vehicle was never delivered. (h) On 30 September 2020, Ms Cotter received by email a letter bearing the same date and purporting to be signed by “Thomas Mutchen” as Managing Director of Car Auction Pty Ltd. The letter stated that: Car Auction Pty Ltd is technically insolvent and ceased trading on 05/09/2020. Mr Zac Lawless an employee of our company was not aware of this situation and unfortunately we have now made his position redundant. [20] It is uncontroversial that Zac Lawless and Mr Jackson are the same person. The letter suggested Ms Cotter’s funds would be returned but that never occurred. The evidence [21] Ms Cotter notes that Car Auction Pty Ltd was registered in Queensland. That is consistent with the company and its controlling mind being in Queensland at the time of its incorporation. However, in the light of evidence that Mr Jackson and Ms Page later relocated to Tasmania, I give limited weight to this factor. [22] Similarly, that the registered office and principal place of business of the company are listed as locations in Queensland on ASIC’s records is consistent with the company’s business having been carried on in this State but does not establish that the business continued to be carried on at those locations at the relevant times. As noted, Ms Cotter -- 5 of 7 -- 6 submitted that the location of Mr Jackson “on the date of and around the transaction has not been conclusively determined”. [23] Ms Cotter submitted that the relevant time for consideration is when the impugned conduct, being the misappropriation of her funds, occurred. Ms Cotter transferred the purchase price on 8 and 9 September 2020. It is clear that the misappropriation occurred on or after 9 September 2020. [24] There is a body of evidence indicating Mr Jackson and Ms Page were located in, and the business of Car Auction Pty Ltd was operating in, Tasmania by the time Ms Cotter transferred the purchase price of the vehicle to Car Auction Pty Ltd. [25] In that regard, the signature blocks in the emails Ms Cotter received over the period from 20 August 2020 included a reference only to Tasmania and not Queensland. For example, an email of 20 August 2020 concludes with: Zac Lawless Auction Manager Direct: [mobile telephone number] Tasmania 7000 www. Carauction.net.au followed by a Car Auction Pty Ltd logo. [26] The invoice dated 8 September 2020 also nominates only an address in Tasmania as the address of Car Auction Pty Ltd. The covering email includes the signature block set out above. [27] The signature block in the email of 10 September 2020 attaching a receipt for the payment of the purchase price is similar: Rachel Williams7 Account Manager Sandy Bay Tasmania 7005 www.carauction.net.au [28] A motor vehicle registration certificate issued by the Tasmanian registration authority shows Zac Lawless paying for the transfer of a vehicle registration on 12 August 2020. That document indicates a Tasmanian address for both Mr Lawless and the garage address for the vehicle. [29] An auctioneer’s “Purchase Agreement & Certificate” in evidence, which appears to have been signed by Zac Lawless, also displays a Sandy Bay address for Mr Lawless (Jackson). That document is dated 24 September 2020. A “Purchase Payment Form”, apparently signed and dated 28 September 2020 by Zac Lawless, shows the same Sandy Bay address. [30] Westpac Bank statements for the account to which Ms Cotter transferred the purchase price reference debit card purchases at Sandy Bay, Tasmania on 7, 8 and 9 September 2020. Additionally, a text message on 30 September 2020 from Mr Jackson in response to Ms Cotter’s inquiry whether the vehicle had reached Hobart – “Will be here this afternoon” – implies that Mr Jackson was in Tasmania at that time. 7 There is evidence that Rachel Williams is the same person as Ms Page. -- 6 of 7 -- 7 [31] Aside from the ASIC registrations mentioned above, there is little evidence to suggest any continuing association between the Car Auction Respondents and the State of Queensland. Mr Jackson and Ms Page failed to attend as required at the Brisbane Magistrates Court on 2 September 2020. Warrants were issued in their absence but there is no evidence that the warrants were executed in Queensland [32] There is an Australian Business Number registration search for a sole trader registration in the name of Mr Jackson. The results indicate Queensland main business locations for the periods from 13 July 2016 to 30 July 2020 and a Tasmanian location for 30 July 2020 to 14 September 2020. Curiously, the previous final Queensland main business location is then indicated for the period from 14 September 2020. However, a letter from Westpac Bank dated 28 October 2020 indicates that on that date the Car Auction Respondents continued to have an address in Tasmania or at least had not advised the bank of any change of address. [33] There is also evidence that the Queensland Police advised the Chief Executive that Mr Jackson and Ms Page had relocated to Tasmania and that the auctioneering firm mentioned above had advised on 3 October 2020 that Mr Jackson and Ms Page were operating in Tasmania. In view of the hearsay nature of this evidence, I had not given it significant weight. I have taken the same approach with other hearsay evidence that Mr Jackson was recorded on camera in Tasmania meeting with a third person.8 [34] As noted above, Ms Cotter’s submissions referred to a belief that Mr Mutch was located in Queensland. However, lawyers for an unrelated company advised Ms Cotter in writing on 15 October 2020 that Mr Mutch does not have any association with Car Auction Pty Ltd. A complaint has been made to the Queensland Police regarding alleged misleading use of names, statements, logos and photographs by Mr Jackson who, the lawyers advised, “is nothing more than a previous employee of their client.” Conclusion [35] Taking into account all of the evidence, I am satisfied the balance of the evidence favours the conclusion that the Car Auction Respondents were operating in Tasmania at the relevant times. I am not satisfied they were located in Queensland or carrying on business in that State when the transaction with Ms Cotter was entered into or when the misappropriation occurred. [36] It follows that Ms Cotter is not entitled to a payment from the fund. The decision under review must therefore be confirmed. 8 The Chief Executive’s otherwise comprehensive written submissions would have been more helpful if factual assertions were footnoted to supporting evidence. The documentary evidence referred to in this and the preceding paragraphs was filed as attachments to those submissions. -- 7 of 7 --