Bryant v The Chief Executive, Department of Justice and Attorney-General & Anor [2020] QCAT 58

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Bryant v The Chief Executive, Department of Justice and Attorney-General & Anor [2020] QCAT 58 PARTIES: ALEX BRYANT (applicant) v THE CHIEF EXECUTIVE, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL and JOHN FRANCIS DOUGLAS (respondents) APPLICATION NO/S: GAR419-18 MATTER TYPE: General administrative review matters DELIVERED ON: 26 February 2020 HEARING DATE: 20 February 2020 HEARD AT: Brisbane DECISION OF: Member Hughes ORDERS: 1. The decision of the Chief Executive, Department of Justice and Attorney-General dated 23 October 2018 is set aside and substituted with the following decision: (a) The claim against the Claim Fund lodged by John Francis Douglas on 28 March 2018 is allowed in part; (b) The amount of John Francis Douglas’s financial loss is $8,995.00; (c) Alex Bryant is named as the person liable for John Francis Douglas’s financial loss of $8,995.00; and (d) Upon payment from the Claim Fund, Alex Bryant is liable to reimburse the Claim Fund by paying the amount of $8,995.00 to the Chief Executive, Department of Justice and Attorney-General. CATCHWORDS: ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – Claim Fund under -- 1 of 6 -- 2 Agents Financial Administration Act 2014 (Qld) – whether ‘claimable event’ – where licensed motor dealer gave form to buyer of second-hand vehicle stating that cooling-off period did not apply and did not state when cooling-off period started or finished – where buyer tried to cancel contract – where seller refused – where motor dealer must comply with legislation regardless of information on Department’s website – where agency’s interpretation of legislation or its representation about application of that legislation cannot override the actual legislation – where Form 12 was defective in a material particular – where ‘honest belief’ is no defence – whether financial loss – where not all costs recoverable – where motor dealer liable to reimburse Claim Fund upon payment to buyer Agents Financial Administration Act 2014 (Qld), s 82, s 100, s 103, s 116 Motor Dealers and Chattel Auctioneers Act 2014 (Qld), s 99, s 100, s 102, s 104 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 24 Adams v Lougheed & Underwood Car Bargains Pty Ltd [2004] QCCTPAMD 22 Attorney-General (NSW) v Quin (1990) 170 CLR 1 Chief Executive, Department of Justice and Attorney- General v Mayer [2017] QCAT 201 Department of Employment, Economic Development and Innovation v National Australia Bank Ltd & Ors [2011] QCATA 295 Flute v Caysand No. 24 Pty Ltd [2006] QCCTPAMD 2 Gettens v XFar Homes Pty Ltd & Anor [2012] QCAT 150 Krauss v The Chief Executive, Department of Tourism, Fair Trading and Wine Industry Development [2004] QCCTPAMD 64 London v Reynolds [2006] QDC 380 Money 3 Corporation Ltd v Schwenke & Anor [2011] QCAT 512 Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1 Savage Resorts Pty Ltd v Maksymiuk [2016] QCATA 184 Turner & Akenson v Steve Smithers Pty Ltd [2004] QCCTPAMD 33 Webb v Queensland Building Services Authority [2012] QCAT 145 APPEARANCES & REPRESENTATION: Applicant: A Bryant, self-represented -- 2 of 6 -- 3 Respondents: A Tan, A/Manager Claims and Recoveries for the Chief Executive, Department of Justice and Attorney-General J Douglas, self-represented REASONS FOR DECISION What is this application about? [1] Alex Bryant is a licensed motor dealer. On 30 November 2017, he sold a second-hand 2007 Mitsubishi Pajero to John Douglas1 for $13,800.00. Mr Douglas paid $6,300.00 in cash and $7,500.00 as trade-in for his 2012 Ford FG. [2] At the time of sale, Mr Bryant gave Mr Douglas the statutorily required ‘Motor dealers and chattel auctioneers Form 12’ that relevantly: (a) Stated that a ‘cooling-off period’ did not apply to the sale; and (b) Did not state when the ‘cooling-off period’ started or finished.2 [3] Mr Douglas said when he arrived home with the Mitsubishi, he discovered defects and that Mr Bryant misled him about them. Over the next week until 5 December 2017, Mr Douglas notified Mr Bryant that he wished to cancel his purchase by returning the vehicle. Mr Bryant refused. [4] On 28 March 2018, Mr Douglas applied against the Claim Fund administered by the Chief Executive, Department of Justice and Attorney-General for $14,828.96. On 23 October 2018, the Chief Executive partly allowed Mr Douglas’s claim to the extent of $13,800.00. [5] Mr Bryant has applied for review of the Chief-Executive’s decision. Mr Bryant is not required to show any error by the Chief-Executive: the Tribunal’s role is to produce the correct and preferable decision by way of a fresh hearing on the merits.3 [6] In conducting its review, the Tribunal may confirm or amend the decision, set aside the decision and substitute its own decision or set aside the decision and return the matter for reconsideration with appropriate directions.4 What are the issues? [7] A person can make a claim against the fund if they suffer financial loss because of the happening of specified events.5 The issues for the Tribunal to decide are: (a) What is the ‘claimable event’? (b) What is the financial loss? 1 Mr Douglas is the claimant and therefore a party to the proceeding pursuant to the Agents Financial Administration Act 2014 (Qld), s 103. 2 Form 12, dated 30 November 2017. 3 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20. 4 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 24. 5 Department of Employment, Economic Development and Innovation v National Australia Bank Ltd & Ors [2011] QCATA 295, [3]. -- 3 of 6 -- 4 What is the ‘claimable event’? [8] Mr Bryant submitted that he was misled by the Department’s own website which relevantly provided that he did not need to give a cooling-off period when the buyer takes the vehicle away with them. Unfortunately for Mr Bryant, as a licensed motor dealer he is required to comply with the legislation6 – regardless of the Department’s website. An agency’s interpretation of legislation or its representation about application of that legislation cannot override the actual legislation.7 [9] Here, the legislation relevantly provides that a motor dealer must give a buyer a statement with the day and time the cooling-off period ends, subject to exceptions.8 A buyer taking possession of the vehicle is not one of the exceptions.9 The other exceptions do not apply.10 Mr Bryant was therefore not able to unilaterally withdraw the consumer protection of a cooling-off period. [10] This means that Mr Bryant was required to give Mr Douglas a Form 12 that complied with the legislation. However, because the Form 12 incorrectly stated that the ‘cooling-off period did not apply’ and did not provide when the period started or ended, it was ‘defective in a material particular’.11 [11] Because the Form 12 was defective in a material particular, Mr Douglas can avoid the contract by giving Mr Bryant notice within seven days.12 Mr Douglas gave this notice to Mr Bryant via text on 5 December 2017 at the latest. This means that Mr Bryant was required to do everything in his power to return Mr Douglas to the position he was in before the vehicle was purchased.13 Because Mr Bryant has not done this, it is a ‘claimable event’ entitling Mr Douglas to claim against the Claim Fund.14 [12] It is not a defence that Mr Bryant held an ‘honest belief’ that the cooling-off period did not apply: Failing to complete or provide statutory documents designed to inform and protect consumers by notifying them of their cooling off rights, statutory warranty rights and to provide evidence of the contract terms, conditions and price goes to the heart of [the former] PAMDA’s and the Act’s main objects.15 [13] The Tribunal accepts the Chief Executive’s findings that the material does not support Mr Douglas’s allegations about alleging false or misleading representations by Mr Bryant. This is because Mr Douglas’s allegations are not corroborated and are inconsistent with the documentary evidence.16 6 Chief Executive, Department of Justice and Attorney-General v Mayer [2017] QCAT 201, [26]. 7 Savage Resorts Pty Ltd v Maksymiuk [2016] QCATA 184, [36]; Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1; Attorney-General (NSW) v Quin (1990) 170 CLR 1; Webb v Queensland Building Services Authority [2012] QCAT 145, [31]. 8 Motor Dealers and Chattel Auctioneers Act 2014 (Qld), s 99, s 100, s 102(3)(e). 9 Ibid, s 100(2). 10 Ibid. 11 Ibid, s 102, s 104. 12 Ibid, s 104(1), (2), (3). 13 Ibid, s 104(4)(a). 14 Agents Financial Administration Act 2014 (Qld), s 82(1)(d). 15 Chief Executive, Department of Justice and Attorney-General v Mayer [2017] QCAT 201, [29]. 16 Chief Executive’s Submissions, dated 11 January 2019, [10]. -- 4 of 6 -- 5 [14] The claimable event is Mr Bryant giving Mr Douglas a Form 12 that was defective in a material particular. What is the financial loss? [15] Mr Douglas made a claim against the fund. He is therefore entitled to recover his financial loss from the fund because of Mr Bryant’s contravention.17 Mr Douglas’s loss is the difference between the price he paid and the real value of what he received.18 [16] Before buying the Mitsubishi, Mr Douglas had $13,800.00 in value, being the consideration he paid under the contract. Mr Douglas later sold the Mitsubishi for $4,500.00 to buy a replacement vehicle. However, because he sold it in July 2019,19 that is not the actual value of what he received on the day of the purchase. He had the benefit of the vehicle for that period and the sale figure reflects this depreciable period. [17] The Mitsubishi was valued at $5,000 as at December 2017.20 The difference is therefore $8,800.00. [18] The Tribunal does not accept the following costs are recoverable: Mr Douglas’s replacement vehicle cost of $10,000.00; legal fees of $837.30; $91.66 insurance; and $100.00 inspection. This is because Mr Douglas has the benefit of the replacement vehicle, legal fees were incurred to pursue other remedies,21 the insurance costs were not supported by any evidence22 and inspection fees would be incurred by a reasonable buyer in any event.23 [19] The Tribunal also accepts the valuation fee of $195.0024 because Mr Douglas paid this to establish his loss. [20] Mr Douglas’s loss is therefore his pre-contractual position of $13,800.00 less the actual value of what he received on the day of purchase of $5,000.00 plus valuation fee of $195.00, equating to $8,995.00. [21] Upon the Chief Executive paying this to Mr Douglas from the Fund, Mr Bryant is liable to reimburse the Fund.25 What are the appropriate Orders? [22] The original decision partly allowed the claim to the extent of $13,800.00. Because the Tribunal has partly allowed the claim to the extent of $8,995.00, the appropriate Orders are that the decision of the Chief Executive, Department of Justice and 17 Agents Financial Administration Act 2014 (Qld), s 82(1)(d), s 100. 18 London v Reynolds [2006] QDC 380, [46]. 19 Emails from John Douglas to Alex Bryant and Adrian Tan, dated 8 July 2019. 20 Letter from Queensland Motor Valuations to John Douglas, dated 16 July 2018. 21 Money 3 Corporation Ltd v Schwenke & Anor [2011] QCAT 512, [13]; Gettens v XFar Homes Pty Ltd & Anor [2012] QCAT 150, [28]. 22 Insurer quotes, dated various. 23 Flute v Caysand No. 24 Pty Ltd [2006] QCCTPAMD 2, [9]; Turner & Akenson v Steve Smithers Pty Ltd [2004] QCCTPAMD 33, [24]; Adams v Lougheed & Underwood Car Bargains Pty Ltd [2004] QCCTPAMD 22, [20]; Krauss v The Chief Executive, Department of Tourism, Fair Trading and Wine Industry Development [2004] QCCTPAMD 64, [22]. 24 Receipt 78, dated 12 July 2018. 25 Agents Financial Administration Act 2014 (Qld), s 116. -- 5 of 6 -- 6 Attorney-General dated 23 October 2018 are set aside and substituted with the following decision: 1. The claim against the Claim Fund lodged by John Francis Douglas on 28 March 2018 is allowed in part; 2. The amount of John Francis Douglas’s loss is $8,995.00; 3. Alex Bryant is named as the person liable for John Francis Douglas’s financial loss of $8,995.00; and 4. Upon payment from the Claim Fund, Alex Bryant is liable to reimburse the Claim Fund by paying the amount of $8,995.00 to the Chief Executive, Department of Justice and Attorney-General. -- 6 of 6 --