Tudor,The Chief Executive, Office of Fair Trading v O'Neill Holdings Group Pty Ltd, O'Neill [2009] QCCTPAMD 50 (19 October 2009)

Last Updated: 2 November 2009

REASONS FOR DECISION

Introduction

1. This is an application referred to the Tribunal by the Chief Executive Office of Fair Trading under the Property Agents and Motor Dealers Act 2000 (“the Act”). It is a claim by Paul Tudor (“the first applicant”) against the claim fund established under the Act. The first applicant alleges that he suffered financial loss because of the conduct of O’Neill Holdings Group Pty Ltd and Robert J O’Neill.

2. The first applicant attended the directions hearing on 5 October 2009, but was not able to attend the hearing today because of work commitments. He requested that it proceed in his absence and the outcome be advised to him.

3. The respondents did not attend the directions hearing or file any material as ordered. The respondents did not attend the hearing today. I am satisfied that they were given notice of the hearing and I intend to proceed in their absence[1].

Background

4. The first applicant relies on the material contained in the file of the Office of Fair Trading, which is in evidence before the Tribunal. That material sets out the background to the claim.

5. On 6 November 2007 the first applicant provided his Subaru Impreza WRX registered number 977-JJD (“the vehicle”) to the respondents, for it to be sold on consignment.[2] The vehicle was to be sold for between $13,000.00 and $14,000.00 with a transaction fee payable of $1,000.00. The first applicant then left Australia to live and work in Singapore where he remains. On14 November 2007 without the knowledge of the first applicant the vehicle was wholesaled to another dealer.[3] The respondents did not provide to the first applicant the value of the vehicle. On 22 November 2007 the first applicant was told that the vehicle had sold for the sum of $13,500.00 and that he was to receive the sum of $12,500.00.

6. In November and December 2007 the first applicant tried to contact the second respondent on numerous occasions. On 5 December 2007 an amount of $5,000.00 was deposited to the account of the first applicant. On 12 December 2007 a subsequent deposit of $2500.00 to his account was dishonoured. The first respondent continued to try to contact the second respondent, but to no avail. The first respondent became aware of his loss on 25 January 2008 and made a claim on the claim fund on 22 May 2008.

Legislation

7. Section 470(1)(e) of the Act states:

“470 Restriction on recovery of reward or expense—no proper authorisation etc.

(1) A person may make a claim against the fund if the person suffers financial loss because of the happening of any of the following events--

(e) a stealing, misappropriation or misapplication by a relevant person of property entrusted to the person as agent for someone else in the person's capacity as a relevant person.”

Decision

8. It is clear from the facts that the first applicant entrusted the vehicle to the respondents who have failed to account to him for its value. The second respondent was a licensee and a relevant person.[4] The first respondent was not licensed, but acted as a licensee and comes within the definition of licensee and is a relevant person.[5]

9. The evidence satisfies me that the respondents, as relevant persons, have stolen, misappropriated or misapplied property entrusted to them by the first applicant. The worth of the vehicle was agreed between $13,000.00 and $14,000.00. The mid point of that range is an acceptable assessment of the value of the vehicle. That is the amount for which the first respondent was told on 22 November 2007 that the vehicle was sold.[6]

10. I am satisfied that because of the respondents’ conduct the first applicant has suffered financial loss in the amount of $7,500, (appropriate sale price/value of the vehicle $13,500.00, less part payment of $5,000.00 and less transaction fee of $1,000.00). In addition the first applicant has expended legal fees in an endeavour to recover his financial loss. He is entitled to recover that amount also. The amount allowed is the sum of $2,193.72 which is the amount payable by the respondents pursuant to default judgments obtained against them.[7]

11. The first applicant’s claim against the claim fund is allowed in the sum of $9693.72.

12. The persons who are liable for the first applicant’s financial loss are the respondents O’Neill Holdings Group Pty Ltd and Robert John O’Neill.

Orders

13. The first applicant’s claim against the fund is allowed in the sum of $9,693.72.

14. The persons liable for the first applicant’s financial loss are O’Neill Holdings Group Pty Ltd and Robert John O’Neill.

______________________________

MS J SCHAFER

CHAIRPERSON

Commercial and Consumer Tribunal

[1] Commercial and Consumer Tribunal 2003, section 59

[2] Consignment form dated 6 November 2007 on the letterhead of O’Neill Family Motors

[3] Contract/Order form dated 14 November 2007 between O’Neill Holdings Group and Neil Budini Motor Wholesale and Tax Invoice dated 14 November 2007 from O’Neill Holdings Group and Neil Budini Motor Wholesale and stock card

[4] Section 469 of the Act

[5] Section 469 of the Act

[6] Inspectors’ Report dated 4 August 2009

[7] Magistrates Court at Southport on 24.04.08