Edwards v Ivanoff [2009] QCCTPAMD 39 (24 August 2009)

Last Updated: 25 August 2009

REASONS FOR DECISION

Introduction

1. This is an application made on referral to the Tribunal by the Chief Executive under the Property Agents and Motor Dealers Act 2000, which I shall call “the Act”. It is a claim against the claim fund established under the Act. The applicant, Kerry Lee Edwards, alleges that she has suffered a financial loss from the conduct of the respondent, John Gary Ivanoff, as a licensed motor dealer.

Factual background

2. In August 2007, Ms Edwards caused friends to deliver a motor vehicle owned by her to a car yard operated by the respondent, called “Park and Sell”, in Miami on the Gold Coast. At the time, the respondent was a licensed motor dealer. Ms Edwards’ friends agreed, on her behalf, with the respondent to leave the car there for sale on consignment by him. However, no paperwork appointing Mr Ivanoff as her agent to sell the car on consignment was produced by Mr Ivanoff or signed by Ms Edwards or anyone on her behalf.

3. Over some months, Ms Edwards attempted to ascertain whether a purchaser had been located for the car. She had great difficulty contacting Mr Ivanoff. She flew to the Gold Coast from the Northern Territory, where she was living, hired a car and travelled to the car yard in September 2007 and again in October 2007. Her car was not present on the lot on either occasion.

4. On the first occasion, Mr Ivanoff told her that the car was with a potential buyer, who had offered less than the asking price. Ms Edwards reluctantly authorised him to sell it for the lower price.

5. On the second occasion, Mr Ivanoff told her that a potential buyer had it and was arranging a roadworthy certificate. Two days later she was informed by Mr Ivanoff’s car detailer that someone had bought the car and paid a $1,000.00 deposit and had picked it up. She was paid the sum of $1000 that day and was told that the balance would be received in two days time.

6. On 6 November 2007 she attended at the car yard again and demanded the return of her car. Mr Ivanoff told her that the car had been sold for $9000 and attempted to give her a further $1,000.00 in cash, but she refused payment. She then had to return to the Northern Territory.

7. She subsequently noticed that Mr Ivanoff had deposited $1,500.00 in her bank account. She has retained that sum. She has never been paid any other sum, nor has the car been returned to her.

8. Ms Edwards claims a total of $28,548.40 from the claim fund which is divided as follows:-

(a) the value of the car $19,670.00

(b) hire car and fuel $ 350.00

(c) air fares $ 1,937.00

(d) lost wages $ 1,800.00

(e) estimated food and accommodation costs $ 1,200.00

(f) five years insurance $ 4,091.40

(g) estimated phone call costs 100.00

9. Ms Edwards has produced to the Tribunal receipts for some of the items claimed, but not all of them. She says that the sum claimed for the value of the car is the insured value, but she has not produced any evidence to substantiate that sum. Indeed, she had been unsuccessful in attempting to sell the vehicle between $12,000 and $14,000 shortly before placing it with the car yard.

10. The Red Book is said to value the particular vehicle at between $9,000 and $12,000 and Ms Edwards had been informed by Mr Ivanoff that the vehicle had been sold for an agreed price of $9,000.00. Of this, she was paid $1,500.00 in about November 2007 and a further $1,000.00 shortly afterwards.

11. In these circumstances, I am satisfied that the respondent has stolen, misappropriated or misapplied property entrusted to him as agent for Ms Edwards in his capacity as a relevant person, namely a licensed motor dealer. I am satisfied that Ms Edwards has suffered a financial loss because of Mr Ivanoff’s conduct.

12. Having regard to the evidence about the value of the car and a price for which it was allegedly sold, I cannot be satisfied that it was worth more than the sale price. Accordingly, Ms Edwards has lost the difference between that price and the amount which she was paid by Mr Ivanoff, namely $6,500.00. In addition, I am satisfied from the documents produced by Ms Edwards that she has incurred expenses comprising $253.29 for car rental and $1,939.24 for airfares, a total of $2,192.53. Ms Edwards has not been able to produce any records proving the other amounts claimed by her, which are really just estimates. I am not able to be satisfied that they were incurred and form part of her loss.

13. Accordingly, I am satisfied that Ms Edwards has suffered financial loss in the sum of $8,692.53. The person liable for that financial loss is the respondent, Mr Ivanoff.

______________________________

MR K BARLOW

MEMBER

Commercial and Consumer Tribunal