Dowson v Mata & Sons Pty Ltd

[2013] QCAT 67

CITATION: Dowson v Mata & Sons Pty Ltd and Anor [2013] QCAT 67

PARTIES:	Michael Dowson (Applicant)
v
Mata & Sons Pty Ltd Samir Matar (Respondents)

APPLICATION NUMBER:   GAR207-12

MATTER TYPE: General administrative review matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Peta Stilgoe, Senior Member

DELIVERED ON: 4 February 2013

DELIVERED AT: Brisbane

ORDERS MADE:     

[1] Pursuant to s 488 of the Property Agents and Motor Dealers Act2000, the claim is allowed in the sum of $23,000.

[2] Pursuant to s 489 of the Property Agents and Motor Dealers Act2000, at the expiration of the appeal period, the Chief Executive must pay to Michael Dowson  the sum of $23,000 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 Act2000, Mata & Sons Pty Ltd and Samir Matar are named as the persons responsible for the financial loss of Michael Dowson.

[4] Upon payment from the Claim Fund and pursuant to sections 490 and 530 of the Property Agents and Motor Dealers Act2000, Mata & Sons Pty Ltd and Samir Matar are liable (and if more than one, jointly and severally) to reimburse the Claim Fund by paying the sum of $23,000 to the Chief Executive, Department of Justice and Attorney General.

CATCHWORDS: 

MOTOR DEALER – where car on consignment – where proceeds of sale misappropriated – where car loan paid out by disability insurance

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 Dowson owned a Subaru WRX Impreza.  In 2010, he suffered a workplace accident.  He could not work, he had no money and could not afford to keep the WRX.  Mr Dowson placed the car on consignment with M & S Motor Sports.  M & S Motor Sports sold the WRX but did not forward the proceeds of sale to Mr Dowson or the financier of the car, St George.

2. Mata & Sons Pty Ltd was the company that traded under the registered business name M & S Motor Sports.  Mr Matar was the sole director of the company.  Both Mr Matar and the company were licensees.  Mr Dowson dealt with Mr Matar.

3. Mr Dowson made a claim on the statutory claim fund for $23,000.  The company received notice of the claim through its receivers.  Mr Matar has left the country and cannot be located.  Despite the fact that Mr Matar has not been served, I am satisfied that the claim should proceed.

4. In considering a claim against the fund, I must be satisfied[1] that an event as mentioned in section 470(1) happened and that Mr Dowson suffered financial loss because of the event.

   [1] Section 488(2) Property Agents and Motor Dealers Act 2000.

5. I must also take into account any amount Mr Dowson might reasonably have received or recovered if not for Mr Dowson’s neglect or default and any amount ordered to be paid to Mr Dowson as compensation to the claimant under sections 530A, 572D or 592A of PAMDA[2]. 

   [2] Section 488(3)(a).

6. Finally, in allowing a claim I must decide the amount of Mr Dowson’s financial loss and name the person who is liable for the loss[3].

   [3] Section 488(3)(b) and (c).

The event

1. 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).

2. I am satisfied that M & S Motor Sports did misappropriate the funds it received for the sale of the WRX. I am therefore satisfied that there is an “event” within s 470(1).

Financial loss

1. I am satisfied that Mr Dowson suffered a financial loss because of the respondent’s breach of s 470(1)(e).

[10]  When he bought the car, Mr Dowson took the precaution of securing disability insurance.  In due course, the insurer did pay out the balance of Mr Dowson’s car loan, an amount of $22,268.63.  This amount should not be taken into consideration when assessing Mr Dowson’s loss.  He was entitled to that payout because of his disability, not because of any act by M & S Motor Sports.

[11]  I have a copy of a tax invoice from M & S Motor Sports that shows it sold the WRX for $25,218.30 including GST.  Mr Dowson does not have a copy of any consignment contract.  Therefore, I do not know what charge M & S Motor Sports would have made for the sale.  However, Mr Dowson would not have received the whole of the sale price.  He originally claimed $23,000.  The sale price of the WRX less GST was $22,925.73.  I am satisfied that $23,000 is a realistic assessment of Mr Dowson’s loss.

Other matters

[12]  I am required to take into account any amount Mr Dowson may have received or recovered if not for his neglect or default.

[13]  There is no evidence to suggest that Mr Dowson 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?

[14] Section 490(2) provides that a person is liable to reimburse the fund if the person is:

a)      A responsible person;

b)      If the responsible person was a corporation, each person who was an executive officer of the corporation.

[15]  Both Mata & Sons Pty Ltd and Mr Matar are responsible persons.

Orders

[16] Pursuant to s 488 of the Property Agents and Motor Dealers Act2000, the claim is allowed in the sum of $23,000.

[17] Pursuant to s 489 of the Property Agents and Motor Dealers Act2000, at the expiration of the appeal period, the Chief Executive must pay to Michael Dowson the sum of $23,000 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 Act2000, Mata & Sons Pty Ltd and Samir Matar are named as the persons responsible for the financial loss of Michael Dowson.

[19] Upon payment from the Claim Fund and pursuant to sections 490 and 530 of the Property Agents and Motor Dealers Act2000, Mata & Sons Pty Ltd and Samir Matar are liable (and if more than one, jointly and severally) to reimburse the Claim Fund by paying the sum of $23,000 to the Chief Executive, Department of Justice and Attorney General.