Chief Executive (Department of Justice and Attorney General) v Kaplun [2017] QCAT 180

CITATION: Chief Executive (Department of Justice and Attorney General) v Kaplun [2017] QCAT 180 PARTIES: Chief Executive (Department of Justice and Attorney General) (Applicant) v Ivan Kaplun (Respondent) APPLICATION NUMBER: OCR129 -16 MATTER TYPE: Occupational regulation matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member Stilgoe OAM DELIVERED ON: 30 May 2017 DELIVERED AT: Brisbane ORDERS MADE: CATCHWORDS: 1. Ivan Kaplun is disqualified from holding a licence or registration certification under the Property Agents and Motor Dealers Act 2000 for a period of 10 years. 2. Ivan Kaplun is disqualified from being an Executive Officer of a corporation that holds a licence or registration certificate under the Property Agents and Motor Dealers Act 2000 for a period of 10 years 3. Ivan Kaplun shall pay a fine of $3,657 to the Chief Executive Department of Justice and Attorney General by 27 June 2017. PROFESSIONS AND TRADES – LICENSING OR REGULATION OF OTHER PROFESSIONS, TRADES OR CALLINGS – MOTOR VEHICLE TRADERS AND DEALERS - Property Agents and Motor Dealers Act 2000 – licensed motor dealer – disciplinary proceedings – where licensed motor dealer made false representations about the odometer reading on a car that he sold – where motor dealer did not disclose that he was a licensed motor dealer – where motor dealer did not give notice of any -- 1 of 8 -- 2 statutory warranty to buyer – where motor dealer did not provide written sale contract – whether licensee has in carrying on a business or performing an activity, been incompetent or acted in an unprofessional way Property Agents and Motor Dealers Act 2000 (Qld) ss 283A(2), 314(2), 317(1), 333(1), 496(1), 576 Property Occupations Act 2014 (Qld) s 258 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 237(1) Chief Executive DTFT v Klein [2003] CCT X001- 03 Chief Executive DTFT v Priestly [2007] QCCTPAMD 30 Chief Executive DTFT v Stephens [2004] QCCTPAMD 57 Chief Executive DTFT v Walter Taylor & Ors [2004] QCCTPAMD 2 APPEARANCES and REPRESENTATION (if any): 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] A motor dealer cannot make false representations about the odometer reading on a car that is sold.1 A motor dealer must ensure that a contract to sell a motor car is in writing.2 A buyer of a motor car must be given notice about any statutory warranty.3 A motor dealer must disclose to a potential buyer or seller the fact that the dealer is a licensed motor dealer.4 [2] Ivan Kaplun is a registered motor dealer. The Chief Executive (Department of Justice and Attorney General) submits that Mr Kaplun breached all of these obligations. Therefore, the Chief Executive has referred Mr Kaplun to the tribunal for disciplinary proceedings. [3] Mr Kaplun denies the allegations. He also says the tribunal has no jurisdiction to make a decision in the proceedings. [4] If I am satisfied that Mr Kaplun has breached his obligations, and should be subject to disciplinary proceedings, I must impose an appropriate sanction. 1 Property Agents and Motor Dealers Act 2000 (Qld) (‘PAMDA’) s 576. 2 Ibid, s 333(1)(a), s 333(1)(b). 3 Ibid, s 317(1). 4 Ibid, s 283A(2). -- 2 of 8 -- 3 Does the tribunal have jurisdiction? [5] Mr Kaplun says the tribunal is not a properly constituted entity or organisation. He says the tribunal has no legal standing at law. Mr Kaplun’s submissions don’t extend to why he says the tribunal has no jurisdiction or standing. [6] The tribunal was created by the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’). Its powers are regulated, and limited, by the QCAT Act and any enabling Acts. The QCAT Act was validly enacted. Any suggestion that the tribunal is not properly constituted, or has no legal standing at law, is incorrect. [7] Mr Kaplun stated that he would only attend the tribunal if certain conditions were met. Those conditions included an undertaking by the tribunal to pay Mr Kaplun damages and requiring all parties involved in the proceedings to provide their indemnity insurance details, bank account details and copies of recent statements and a list of all private and personal property. [8] In the performance of their functions as members, tribunal members have the same protection and immunity that a Supreme Court judge has in the performance of a judge’s functions.5 Mr Kaplun cannot put conditions on whether he will engage with the tribunal. He cannot require personal details of a tribunal member’s financial position. He cannot require personal financial details of the Departmental employees. The mere fact that a government employee or appointee is doing his or her job cannot be construed as ‘harassment’, ‘stalking’ or ‘threats’. [9] Mr Kaplun can choose not to engage with the tribunal, but his choice will not prevent the tribunal from deciding the issues before it. Has the Chief Executive established the facts on which the referral is based? [10] The Chief Executive’s allegations involve three separate transactions. I will deal with each of them in turn. The 2000 Toyota Hilux 114HCS [11] On 28 February 2014, Mr Kaplun bought a 2000 Toyota Hilux, registration number 114HCS from Wades Wholesale Cars Pty Ltd. The invoice from Wades shows that the odometer reading at the time of sale was 464,892 km.6 A safety certificate issued on 5 March 2014, showing Mr Kaplun as owner, records the odometer reading as 285,011 km.7 5 Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) s 237(1). 6 Statement of Wade Morrison sworn 11 October 2015, exhibit WM01. 7 Statement of Shane Bevan Grooby sworn 5 April 2016, exhibit SG15. -- 3 of 8 -- 4 [12] On 6 March 2014, the Hilux was advertised for sale on Carsales.com as a 2001 model, with an odometer reading of 289,210 km.8 The car was listed as a private sale. The advertisement gave a telephone number. The telephone number given was listed to Mr Kaplun.9 [13] On 12 March 2014, Mr Kaplun sold the Hilux to Wade Lineburg. The odometer reading at the time of sale was 285,011 km.10 [14] Mr Lineburg has provided a statement in which he says that Mr Kaplun did not say that he was a licensed motor dealer, did not provide a sales contract and did not offer any type of warranty. Mr Lineburg says that Mr Kaplun did not tell him that the odometer in the Hilux had been changed, or that the odometer was not showing a true reading. [15] Mr Weston is Mr Lineburg’s brother in law. He has provided a statement. He says he looked at the Hilux on behalf of Mr Lineburg and collected the car when Mr Lineburg agreed to buy it. Mr Weston says that Mr Kaplun did not tell him that the odometer in the Hilux had been changed, or that the odometer was not showing a true reading. The 2000 Toyota Hilux 979RIA [16] On 1 April 2014, Mr Kaplun bought a 2000 Hilux, registration number 979RIA from Brisbane Motor Auctions. The invoice from Brisbane Motor Auctions shows that the odometer reading at the time of sale was 285,457 km.11 A safety certificate issued on 9 April 2014, showing Mr Kaplun as owner, records the odometer reading as 229,393 km.12 [17] On 10 April 2014, the Hilux was advertised for sale on Carsales.com, with an odometer reading of 229,780 km.13 The car was listed as a private sale. The advertisement gave a telephone number. The telephone number given was listed to Mr Kaplun.14 [18] On 22 April 2014, Mr Kaplun sold the Hilux to Nicholas and Stephanie Sellers. The odometer reading at the time of sale was 229,393 km.15 [19] Mr Sellars has provided a statement in which he says that Mr Kaplun did not say that he was a licensed motor dealer, did not provide a sales contract and did not offer any type of warranty. Mr Sellars says that Mr Kaplun did not tell him that the odometer in the Hilux had been changed, or that the odometer was not showing a true reading. [20] Ms Sellars is Mr Sellars’s wife. She has provided a statement. She says she looked at the Hilux on behalf of Mr Sellars. Ms Sellars says that Mr Kaplun 8 Statement of Stephen Fairlam sworn 3 February 2016, exhibit CS02. 9 Statement of Shane Bevan Grooby sworn 5 April 2016, exhibit SG02. 10 Statement of Shane Bevan Grooby sworn 5 April 2016, exhibit SG15. 11 Statement of Sandra Balfour sworn 5 April 2017, exhibit SB-BMA03. 12 Statement of Shane Bevan Grooby sworn 5 April 2016, exhibit SG16. 13 Statement of Stephen Fairlam sworn 3 February 2016, exhibit CS04. 14 Statement of Shane Bevan Grooby sworn 5 April 2016, exhibit SG02. 15 Statement of Shane Bevan Grooby sworn 5 April 2016, exhibit SG16. -- 4 of 8 -- 5 did not tell him that the odometer in the Hilux had been changed, or that the odometer was not showing a true reading. The 2006 Nissan Navara 090SKH [21] On 16 July 2014, Mr Kaplun bought a 2006 Nissan Navara, registration number 090SKH from Car Auctions Pacific, Molendinar Qld. The invoice from Car Auctions Pacific shows that the odometer reading at the time of sale was 279,112 km.16 A safety certificate issued on 19 July 2014, showing Mr Kaplun as owner, records the odometer reading as 188,420 km.17 [22] On 21 July 2014, the Navara was advertised for sale on Carsales.com, with an odometer reading of 187,510 km.18 The car was listed as a private sale. The advertisement gave a telephone number. The telephone number given was listed to Mr Kaplun.19 [23] On 23 July 2014, Mr Kaplun sold the Navara to Adam Avanell. The odometer reading at the time of sale was 187,483 km.20 [24] Mr Avanell has provided a statement in which he says that Mr Kaplun did not say that he was a licensed motor dealer, did not provide a sales contract and did not offer any type of warranty. Mr Avanell says that Mr Kaplun did not tell him that the odometer in the Hilux had been changed, or that the odometer was not showing a true reading. Mr Kaplun’s submissions [25] Mr Kaplun says that the Chief Executive has fabricated the evidence. He says that employees of the Department have conspired to mislead the tribunal. To support that proposition, Mr Kaplun points to the fact that he has never had a client complain to him and, conversely, many of his clients have expressed their appreciation for his services. He says that the Office of Fair Trading has never received any complaints about his services. He says that Mr Grooby approached his clients, none of whom had approached him. [26] I am not persuaded by Mr Kaplun’s submissions. The tribunal received sworn statements from a number of independent witnesses. Their evidence is consistent. The absence of complaints directly from customers to Mr Kaplun does not mean that their evidence was fabricated. [27] I am satisfied that the Chief Executive has established the facts on which the referral is based. 16 Statement of Michael Giddings, sworn 10 March 2016, exhibit MG-CAP02. 17 Statement of Shane Bevan Grooby sworn 5 April 2016, exhibit SG17. 18 Statement of Stephen Fairlam sworn 3 February 2016, exhibit CS06. 19 Statement of Shane Bevan Grooby sworn 5 April 2016, exhibit SG02. 20 Statement of Shane Bevan Grooby sworn 5 April 2016, exhibit SG17. -- 5 of 8 -- 6 Are there grounds for disciplinary action? [28] Because Mr Kaplun’s conduct occurred before 1 December 2014, the relevant legislation for determining whether there are grounds for disciplinary action is the Property Agents and Motor Dealers Act 2000 (Qld) (‘PAMDA’).21 [29] It is a ground for disciplinary proceedings if a licensee has breached PAMDA, or a Code of Conduct.22 I am satisfied that Mr Kaplun has breached PAMDA. He sold three cars with false odometer readings. By falsely representing that the cars had a different odometer reading, Mr Kaplun presented the vehicles as being in a better condition than they were in. He failed to disclose that he was a licensed motor dealer. He failed to supply written contracts. He failed to supply statutory notices. [30] It is a ground for disciplinary proceedings if a licensee is not a suitable person to hold a licence.23 The Chief Executive submits that Mr Kaplun is not a suitable person because he has shown no remorse or insight into his actions. The Chief Executive says that Mr Kaplun has not readily accepted the particulars and grounds of the referral. The Chief Executive points out that Mr Kaplun has made serious allegations against officers of the Department, has given no evidence to substantiate his assertions and has challenged the authority of the tribunal to determine the matter. The Chief Executive submits that Mr Kaplun demonstrates a lack of insight into the role of the Department and the tribunal, which is concerning when he is a licensed motor dealer. The Chief Executive is concerned that Mr Kaplun does not appear to understand that he is subject to the operation of the legislation that governs his licence and that the department and the tribunal have a role to play. [31] Mr Kaplun’s response to all the allegations is instructive. He ignores the fact that he breached his legislative obligations. He focusses on the lack of complaints. He says that all the cars involved were more than 10 years old or had more than 160,000 km on the odometer, so there was no obligation to provide a statutory warranty. He says that a maxim in commerce is ‘buyer beware’. He says all cars were sold with the required ‘road worthy certificates’ (safety certificates). He says any faults that prevented a safety certificate issuing were corrected. He says that, in some cases, he replaced a faulty odometer and all his clients ‘were noticed’ at the time of purchase. He says all his clients knew he was a licensed motor dealer. [32] Even cars that are older than 10 years, or have travelled more than 160,000 km, are subject to a warranty. They are Class B vehicles24 which attract a lesser warranty25 but a warranty in any event. The maxim ‘buyer beware’ is a common law principle that has been extensively modified by legislation. Giving a safety certificate is only one of the obligations on a licensed motor dealer. Complying with that obligation does not relieve a party from compliance with other obligations. As I have already identified, I have 21 Property Occupations Act 2014 (Qld) s 258. 22 PAMDA s 496(1)(b). 23 Ibid, s 496(1)(g)(i). 24 PAMDA Dictionary. 25 PAMDA s 314(2). -- 6 of 8 -- 7 accepted the truth of the evidence from the buyers. Therefore, Mr Kaplun’s assertions that he gave them the necessary information cannot be true. [33] It is clear from his submissions that Mr Kaplun does not understand his obligations as a licensed motor dealer. I am satisfied that Mr Kaplun is not a suitable person to hold a licence. [34] It is a ground for disciplinary proceedings if a licensee has, in carrying on a business or performing an activity, been incompetent or acted in an unprofessional way.26 For the reasons above, I am satisfied that Mr Kaplun has acted in an unprofessional way. Whether he is incompetent, or simply wilfully obstinate, is another question and one which I do not have to answer. What sanction should I impose? [35] The Chief Executive has provided me with a number of cases which, it says, may inform my decision on sanction: a) Chief Executive DTFT v Stephens.27 Mr Stephens sold three vehicles with false odometer readings. He did not admit any of the allegations. He had a previous disciplinary history. He was disqualified for 10 years, fined $2,250 and ordered to pay costs of $4,566. b) Chief Executive DTFT v Walter Taylor & Ors.28 Mr Taylor was the director a company that sold 12 vehicles with false odometer readings. Mr Taylor personally sold two of those vehicles. He had no previous disciplinary history but he did not express any remorse. He was disqualified for 10 years, fined $5,000 and ordered to pay costs of $1,258. c) Chief Executive DTFT v Klein.29 Mr Klein failed to give 3 buyers the statutory approved forms, made false representations as to the year of manufacture, the true owner and the amount of registration available. Mr Klein did not admit any of the allegations. He was disqualified for 5 years and fined $3,750. d) Chief Executive DTFT v Priestly.30 Mr Priestly sold 2 vehicles with false odometer readings. He falsely represented that the vehicle had been owned by an elderly couple, was a second car and had been garaged. On investigation, he produced a document he claimed demonstrated that he was not responsible for the false odometer reading. He was disqualified for 5 years, fined $5,000 and ordered to pay costs of $1,258. [36] The Chief Executive submits that Mr Kaplun’s behaviour justifies a sanction at the higher end of the scale. I agree. Not only has Mr Kaplun denied the 26 Ibid, s 496(1)(g)(iii). 27 [2004] QCCTPAMD 57. 28 [2004] QCCTPAMD 2. 29 [2003] CCT X001-03. 30 [2007] QCCTPAMD 30. -- 7 of 8 -- 8 facts giving rise to the referral, he has denied the existence of the legislative obligations underpinning the referral, the Department’s ability to act and the tribunal’s authority to deal with the referral. [37] The Chief Executive has suggested a disqualification for 8 years. In view of Mr Kaplun’s continued intransigence, and numerous breaches, I consider a disqualification period of 10 years to be more appropriate. [38] The Chief Executive has asked me to impose a fine of $3,750. That proposal is in line with the comparative cases. The current value of a penalty unit is $121.90. A fine of $3,750 is roughly 30 penalty units. I therefore order that Mr Kaplun pay a fine of 30 penalty units, $3,657, within 28 days of today’s date. -- 8 of 8 --