Chief Executive, Department of Employment, Economic Development and Innovation v Weitenberg [2011] QCAT 16

CITATION: Chief Executive, Department of Employment, Economic Development and Innovation v Weitenberg [2011] QCAT 16 PARTIES: Chief Executive, Department of Employment, Economic Development and Innovation v John Weitenberg APPLICATION NUMBER: OCR032-09 MATTER TYPE: Occupational regulation matters HEARING DATE: Decision on the papers HEARD AT: Brisbane DECISION OF: Peta Stilgoe DELIVERED ON: 10 January 2011 DELIVERED AT: Brisbane ORDERS MADE: 1. The respondent is reprimanded. 2. The respondent pay a penalty of $1500 on or before 14 February 2011. CATCHWORDS : Motor Dealer – where dealer failed to give the buyer contract of sale – where dealer failed to give buyer details of vehicle – penalty Property Agents and Motor Dealers’ Act 2000 ss 332, 333 APPEARANCES and REPRESENTATION (if any): This matter was heard on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009 REASONS FOR DECISION [1] Mr Weitenberg is a motor dealer. On 19 February 2009, he took a deposit of $3000 for the purchase of a Toyota Land Cruiser. He issued a receipt but, contrary to the provisions of the Property Agents and Motor Dealers’ Act 2000 (“PAMDA”) he did not provide a written contract of sale, particulars of the vehicle’s owner or notice of the statutory warranty and cooling off period. -- 1 of 2 -- 2 [2] On 20 February 2009, the buyer advised Mr Weitenberg that he did not want to proceed with the sale. Mr Weitenberg initially refused to refund the deposit however, by letter dated 24 March 2009, he refunded the deposit less a 15% cancellation fee. Since commencement of these proceedings, the deposit less $100 has been refunded to the buyer. [3] Mr Weitenberg’s failure to provide documentation to the buyer is a breach of the legislation. The Department acknowledges that the buyer has suffered no detriment as a result of the breach but urges the tribunal to reprimand Mr Weitenberg and impose a penalty of between $1000 and $1500. [4] Mr Weitenberg says that the tribunal should not impose a penalty because the buyer: a) Refused to sign a written contract of sale. b) Agreed to purchase the vehicle on 17 February 2009 and changed his mind on 23 February 2009. Therefore, according to Mr Weitenberg, the buyer cancelled the contract after the cooling off period had expired. c) Imposed conditions on the purchase which required Mr Weitenberg to spend additional money getting the vehicle ready. He was entitled to retain some funds to cover those costs. [5] The difficulty with Mr Weitenberg’s proposition is that the obligation to provide the written contract of sale lies with him. Sections 332 and 333 of PAMDA are clear; the motor dealer must provide these documents. There is no evidence that a contract was prepared and that the buyer then refused to sign it. [6] The only document relating to the sale is the receipt. It records a date of 19 February 2009. That supports the buyer’s version of events and does not support Mr Weitenberg’s contention that the sale occurred on 17 February 2009. [7] There is no documentary evidence of any conditions on the sale of the vehicle. [8] I find that Mr Weitenberg has breached s332 of PAMDA, in failing to give a statement to the buyer of the vehicle, and s333 of PAMDA in failing to give the buyer a written contract of sale. [9] Mr Weitenberg could have avoided these proceedings by refunding the buyer’s deposit promptly and paying the $400 penalty notice issued. Despite the fact that the buyer has not suffered any loss, it is appropriate that Mr Weitenberg be penalised, both as a deterrent and to communicate the serious nature of the breach. I order: a) Mr Weitenberg be reprimanded; and b) He pay a penalty of $1500. -- 2 of 2 --