Cornish v Vacchini [2013] QCAT 2

CITATION: Cornish v Vacchini [2013] QCAT 002 PARTIES: Gregory John Cornish v Ian Vacchini APPLICATION NUMBER: GAR167-12 MATTER TYPE: Other civil dispute matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Peta Stilgoe, Acting Deputy President DELIVERED ON: 3 January 2013 DELIVERED AT: Brisbane ORDERS MADE: [1] Pursuant to s 488 of the Property Agents and Motor Dealers Act 2000, the claim is allowed in the sum of $53,000. [2] Pursuant to s 489 of the Property Agents and Motor Dealers Act 2000, at the expiration of the appeal period, the Chief Executive must pay to Gregory John Cornish the sum of $53,000 from the Claim Fund, and, if there is an appeal, payment must not be made until after the appeal is finally decided. [3] Pursuant to s 488(3)(c) of the Property Agents and Motor Dealers Act 2000, Ian Vacchini is named as the person responsible for the financial loss of Gregory John Cornish. [4] Upon payment from the Claim Fund and pursuant to sections 490 and 530 of the Property Agents and Motor Dealers Act 2000, Ian Vacchini is liable to reimburse the Claim Fund by paying the sum of $53,000 to the Chief Executive, Department of Justice and Attorney General. -- 1 of 3 -- 2 CATCHWORDS: MOTOR DEALER – where dealer took car and sold it – where proceeds of sale not remitted to owner – whether grounds for claim on the fund Property Agents and Motor Dealers Act 2000, ss 470, 488, 490(2) APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009. REASONS FOR DECISION [1] Mr Cornish wanted to sell his 2008 Toyota Landcruiser for around $60,000. Mr Vacchini was a licensed motor dealer. In May 2010, Mr Cornish gave the Landcruiser to Mr Vacchini so that he could show it to potential buyers. In fact, Mr Vacchini transferred the Landcruiser into his own name and then on-sold it to a dealer. [2] A few days later, Mr Cornish asked Mr Vacchini to return his vehicle. Mr Vacchini told Mr Cornish that he had sold the Landcruiser but that payment was not yet due. Mr Vacchini gave Mr Cornish a post dated cheque for $60,000. At the same time, Mr Vacchini agreed to pay $10,000 into Mr Cornish’s account as a payment in advance. In fact, Mr Vacchini paid $7,000 into Mr Cornish’s account. [3] Mr Vacchini’s cheque was dishonoured on presentation. Mr Cornish has neither the car nor the balance of the $60,000 sale price. [4] Mr Cornish made a claim on the statutory claim fund for $53,000. Mr Vacchini received notice of the claim. [5] In considering a claim against the fund, I must be satisfied1 that an event as mentioned in section 470(1) happened and that Mr Cornish suffered financial loss because of the event. [6] I must also take into account any amount Mr Cornish might reasonably have received or recovered if not for his neglect or default and any amount ordered to be paid to Mr Cornish as compensation to the claimant under sections 530A, 572D or 592A of PAMDA2. [7] Finally, in allowing a claim I must decide the amount of Mr Cornish’s financial loss and name the person who is liable for the loss3. The event [8] The stealing, misappropriation or misapplication by an agent of property entrusted to that person as agent for someone else in their capacity as agent is an “event” under s 470(1)(e). 1 Section 488(2) Property Agents and Motor Dealers Act 2000. 2 Section 488(3)(a). 3 Section 488(3)(b) and (c). -- 2 of 3 -- 3 [9] I am satisfied that Mr Vacchini stole Mr Cornish’s Landcruiser. I am therefore satisfied that there is an “event” within s 470(1). Financial loss [10] I am satisfied that Mr Cornish suffered a financial loss because of Mr Vacchini’s breach of s 470(1)(e). [11] In referring the claim to the tribunal, the Chief Executive of the Department of Justice and Attorney General has submitted that the proper calculation of Mr Cornish’s loss is $51,000. The basis of this submission is that Mr Vacchini on-sold the Landcruiser for $58,000, which the Chief Executive says is the true value of the Landcruiser. [12] However, I am satisfied that Mr Cornish’s loss is $53,000 for two reasons. Firstly, there is his uncontradicted evidence that he wanted to sell the Landcruiser for $60,000. Secondly, only three weeks later, the dealer that purchased the Landcruiser for $58,000 sold it to another dealer for $63,020. The second sale demonstrates that a sale price of $60,000 was reasonable and achievable. Mr Cornish should not suffer a further loss because Mr Vacchini may not have maximised the sale price. Other matters [13] I am required to take into account any amount Mr Cornish may have received or recovered if not for his neglect or default. [14] There is no evidence to suggest that Mr Cornish would have been able to receive or recover any amount to reduce his loss if he had taken any different action. Who is liable for the loss? [15] Mr Vacchini, as the licensed motor dealer and the person responsible for the misappropriation of the Landcruiser, is liable for the loss. Orders [16] Pursuant to s 488 of the Property Agents and Motor Dealers Act 2000, the claim is allowed in the sum of $53,000. [17] Pursuant to s 489 of the Property Agents and Motor Dealers Act 2000, at the expiration of the appeal period, the Chief Executive must pay to Gregory John Cornish the sum of $53,000 from the Claim Fund, and, if there is an appeal, payment must not be made until after the appeal is finally decided. [18] Pursuant to s 488(3)(c) of the Property Agents and Motor Dealers Act 2000, Ian Vacchini is named as the person responsible for the financial loss of Gregory John Cornish. [19] Upon payment from the Claim Fund and pursuant to sections 490 and 530 of the Property Agents and Motor Dealers Act 2000, Ian Vacchini is liable to reimburse the Claim Fund by paying the sum of $53,000 to the Chief Executive, Department of Justice and Attorney General. -- 3 of 3 --