Chiplin v Mawn [2012] QCATA 61

CITATION: Chiplin v Mawn [2012] QCATA 61 PARTIES: Warwick Chiplin (Applicant/Appellant) v Valda Mawn (Respondent) APPLICATION NUMBER: APL359-11 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Mr Charles Brabazon QC, Member DELIVERED ON: 13 April 2012 DELIVERED AT: Brisbane ORDERS MADE: 1. Dismiss the appeal against the judgment of 2 September 2011. 2. Confirm the judgment of 2 September 2011. 3. Order that the description of the respondent be amended, to delete the words ‘t/as Windsor Motor Vehicle Auctions’. 4. Order Mrs Mawn to pay $654.65 to Mr Chiplin by 11 May 2012. CATCHWORDS: APPEAL – VEHICLE TRADE IN – VEHICLE SOLD – LOSS TO OWNER – PERSONAL LIABILITY OF DEALER’S WIFE 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 (QCAT Act). REASONS FOR DECISION [1] This is an appeal from an adjudicator’s order, made at the Holland Park Magistrate Court on 2 September 2011. The proceedings were recorded. -- 1 of 5 -- 2 [2] Mr Chiplin was a young man with an interest in buying inexpensive second hand motor vehicles. Mrs Mawn was the widow of Mr Bernard Mawn, who had been a motor vehicle dealer. [3] Mr Chiplin and Mrs Mawn had different views about a Ford Futura sedan – in particular, did she have to pay money to him, because of a deal about that vehicle. [4] Attention has to be focused on the evidence before the adjudicator. Both Mr Chiplin and Mrs Mawn gave evidence. The appeal is from the adjudicator’s decision, based on that evidence. There are attempts here by both parties to put in written submissions containing further evidence. The usual principle, is that the parties are to be confined to the evidence put before the court hearing. The only exception in this judgment is the receipt dated 16 December 2010. Mr Chiplin referred to it in his evidence, but apparently it was not made an exhibit. [5] On 8 December 2010 Mr Chiplin did a deal with Windsor Motor Auctions. He traded in a Mitsubishi utility, and took possession of the Futura sedan. He agreed to pay $2,000 in weekly instalments of $100. The transaction is recorded in a document called ‘receipt’. It was an exhibit before the adjudicator. It records the agreement that he had to pay a balance of $2,000, after the Mitsubishi ute was traded in. [6] According to Mr Chiplin’s evidence he had been making the payments on the Mitsubishi to Mrs Mawn. She did not deny that. (There is some suggestion in the evidence, that he also has to pay outstanding money for a utility, or another truck, he had bought from the same dealer. In any event, any other vehicle is not an issue here). [7] The receipt says that the Futura was ‘sold by Ronald Wicks’. It seems that Mr Wicks was also involved with second hand vehicles. He seems to have been a family friend of Mr and Mrs Mawn. At the time of that trade in, Mr Mawn was critically ill with pancreatic cancer. It seems that Mr Wicks was helping the Mawns, at a very difficult time. [8] The Futura deal was made with Mr Mawn. Knowing that he was critically ill, he told Mr Chiplin to pay the money to Mrs Mawn. [9] When Mr Chiplin bought the Futura, the principal of Windsor Motor Vehicle Auctions was a company, B.J Mawn Nominees Pty Ltd. The company was deregistered four days later on, 12 December 2010. [10] On 16 December 2010 Mr Chiplin paid the first $100 to Mrs Mawn. She gave him the receipt, signed by herself, in her name. [11] Mr Chiplin bought the Futura, without registration, and without a roadworthy certificate. He paid $503 to have the vehicle registered in his name. -- 2 of 5 -- 3 [12] On 18 December 2010 he took the vehicle to PJ & DJ Mechanical. They gave him an inspection report. Some things needed fixing – particularly the ‘smart lock’. They gave him a roadworthy certificate. He did not pay for that certificate. [13] On 22 December 2010, Mr Mawn passed away. [14] Mr Chiplin did not pay the second $100 instalment to Mrs Mawn. [15] On about 7 January 2011 Mr Chiplin attempted to speak to Mrs Mawn, but for whatever reason did not reach her. He spoke to Mr Wicks who said that payments had to be made directly to her. Mr Chiplin says that he had the money to keep on paying, but he did not do so. [16] On 10 January 2011, solicitors saying they were acting for ‘Windsor Motor Vehicle Auctions’ wrote to Mr Chiplin. The letter said: ‘Our instructions are you are indebted to our client for $1,900 being the balance of the purchase price of a red Futura motor vehicle. Take notice that unless the sum of $1,900 due to our client is paid to it within 7 days from the date hereof, the said vehicle will be sold at auction …..’ [17] Mr Chiplin did not see the Futura again. On 4 February 2010 somebody from PJ & DJ Mechanical told him that the vehicle ‘had been repaired and sold on’. Mr Chiplin says that Mr Wicks arranged the sale – that was not contested. [18] Someone had taken a unilateral decision to repossess the vehicle, when he had no right to do so. In the adjudicator’s opinion, the vehicle had been purchased ‘from your company or your husband’s company’, and so Mr Chiplin was entitled to the money back. On the basis of the above facts, the adjudicator gave Mr Chiplin judgment for $654.85, being the total paid for registration, the $100 instalment, and a filing fee. [19] Mrs Mawn’s evidence was that the repair people sold the vehicle, to get their money for repairs to it. [20] Mr Chiplin now appeals against that judgement. He says that he should be paid an additional $2,000 by Mrs Mawn, as that was the value of the Mitsubishi ute that he traded in. As he puts it, “Mrs Mawn chose to negate the existing arrangement on the Falcon Futura sedan, rego 794CSM, re- registered in my name ……… I therefore require $2000 as full trade in value as above arrangement was made null and void due to Mrs Mawn’s decision to no longer deal with me and terminate the existing agreement’. [21] Mr Chiplin had made that claim before the adjudicator. The adjudicator dismissed it, but gave no reasons for doing so. [22] It should be accepted that Mr Wicks was an agent who acted on behalf of the Mawn interests, before and after Mr Mawn’s death. It can also be accepted that Mr Wicks acted in, at least, a high-handed way after Mr -- 3 of 5 -- 4 Chiplin failed to pay the second $100 instalment, and gave the Futura to the mechanics for repair. It was Mr Chiplin’s property, and it was taken from him, not to be seen again. [23] The Mitsubishi ute became the property of the Mawn interests when it was traded. Mr Chiplin says that Mrs Mawn ‘negated the deal’. Whatever she did, it is clear that Mr Chiplin had lost his ownership of that vehicle, which, no doubt, has been disposed of long ago. In return he became the owner of the Futura. [24] He is entitled to complain about the loss of the Futura. The question is, has he lost anything of value? He was obliged to pay the $2,000 for it. His loss was the value of the Futura. The only proof of that loss is his own evidence before the adjudicator. [25] At pp 8 and 9 of the transcript Mr Chiplin said at first ‘the Futura was worth possibly around $2000’ and then, ‘the Futura was possibly worth $1,000’. [26] If the Futura had been worth more than the $2,000 he agreed to pay, then he could have recovered its value over $2,000. [27] The adjudicator’s order was correct. Mr Chiplin’s appeal should be dismissed. [28] One matter remains. On 24 August 2011 Mrs Mawn lodged an application for ‘an amendment to show Valda Mawn as executrix to the estate of Bernard Joseph Mawn, deceased’. [29] In her affidavit, Mrs Mawn said that: (1) The company B.J Mawn Nominees Pty Ltd traded as Windsor Vehicle Auctions. (2) Her husband, B.J Mawn, died on 22 December 2010. (3) He had been a Director of the company. (4) The company was deregistered on 12 December 2010. (5) She is the executrix of her husband’s will. [30] The above facts are undoubtedly true. The focus has to be on the relationship between herself, Mr Chiplin, Mr Wicks and the defunct company. Mr Chiplin should be paid the $654.85 – but by whom? [31] The evidence before the adjudicator and the submissions made to him were on the basis that any money that had to be paid to Mr Chiplin would be paid to Mrs Mawn. She gave no evidence about payment being made to her in any other capacity. She made no mention of her own application, to have the description of her position changed. She did not say what she did with the money. -- 4 of 5 -- 5 [32] Mr Mawn’s instructions to Mr Chiplin to pay the instalments direct to her, and the receipt for the $100, which carries her own name, and Mr Chiplin’s understandable belief that he owed money to her, point to the objective conclusion that his obligation was to pay the $2,000 to her in her personal capacity. Anyone observing those events would have come to that conclusion. It follows that he should be able to recover the $654.85 from her personally. [33] For the purposes of this litigation, her application is dismissed. The appropriate order is that the title of the proceedings be amended to show her name alone as the defendant. [34] Orders made: (1) Dismiss the appeal against the judgment of 2 September 2011. (2) Confirm the judgment of 2 September 2011. (3) Order that the description of the respondent be amended to delete the words ‘t/as Windsor Motor Vehicle Auctions’. (4) Order Mrs Mawn to pay $654.65 to Mr Chiplin by 11 May 2012. -- 5 of 5 --