The Chief Executive, Office of Fair Trading, Department of Justice and Attorney-General v Brown

[2015] QCAT 213

CITATION: The Chief Executive, Office of Fair Trading, Department of Justice and Attorney-General v. Brown [2015] QCAT 213

PARTIES:	The Chief Executive, Office of Fair Trading, Department of Justice and Attorney-General (Applicant)
v
Nigel John Brown (Respondent)

APPLICATION NUMBER: OCR24-15

MATTER TYPE: Occupational regulation matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Member Hughes

DELIVERED ON: 9 June 2015

DELIVERED AT: Brisbane

ORDERS MADE:

1. Pursuant to sections 117 and 119 of the Agents Financial Administration Act 2014, Nigel John Brown is liable to reimburse and is ordered to pay to the Claim Fund established under section 78 of the Agents Financial Administration Act 2014, the sum of $3,657.00 within 21 days of the date of this Order.

CATCHWORDS:

CLAIM FUND – REIMBURSEMENT ORDER – whether reimbursement order should be made – where motor vehicles sold with false odometer readings

Agents Financial Administration Act 2014 (Qld), ss 102, 116, 117, 118, 119
Property Agents and Motor Dealers Act 2000 (Qld), ss 481, 489
Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 39

The Chief Executive, Department of Justice and Attorney-General v. Wanless [2015] QCAT 128

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

REASONS FOR DECISION

What is this Application about?

1. Nigel John Brown sold two cars with false odometer readings. The buyers were compensated $3,657.00 from the Claim Fund established under the Property Agents and Motor Dealers Act 2000 (Qld).[1] The Chief Executive administering the Fund seeks reimbursement from Mr Brown.

   [1]Property Agents and Motor Dealers Act 2000 (Qld) ss 481, 489.

Have the requirements for a reimbursement Order been met?

1. The Tribunal must make a reimbursement order if:

   ·   The application includes the prescribed Information Notice, letter of demand and statutory declaration attesting to the amount owing;[2]

   ·   Mr Brown has not paid the amount owing;[3]

   ·   The Chief Executive has made a decision about the claim against the fund;[4]

   ·   The Chief Executive’s decision names Mr Brown as the person liable to reimburse the fund;[5]

   ·   Mr Brown did not apply to the Tribunal to review the Chief Executive’s decision, or upon review the Tribunal decided Mr Brown is liable to reimburse an amount to the Fund;[6]and

   ·   Written notice of the Chief Executive’s decision, a copy of the decision and the prescribed Information Notice was given to Mr Brown.[7]

   [2]Agents Financial Administration Act 2014 (Qld) s 117.

   [3]Ibid, s 119(2)(a).

   [4]Ibid, s 119(3)(a).

   [5]Ibid, ss 119(3)(b), 116(1)(a).

   [6]Ibid, s 119(3)(c).

   [7]Ibid, s 119(3)(d).

2. Once these requirements are met, the Tribunal does not have a discretion – it must make a reimbursement Order.[8]

   [8]The Chief Executive, Department of Justice and Attorney-General v. Wanless [2015] QCAT 128 at [9].

3. The Application filed on 23 February 2015 includes:

   ·   An Information Notice for each of the two claims under the Fund;[9]

   ·   A letter of demand for $3,657.00 comprising $2,006.00 and $1,651.00 for the two claims under the Fund;[10]and

   ·   A statutory declaration of the Chief Executive’s authorised delegate attesting that $3,657.00 has been paid from the Fund to settle the claims and remains outstanding.[11]

   [9]Information Notice for Claim No. 001461 dated 13 December 2011 and Information Notice for Claim No. 008130 dated 18 April 2012.

   [10]Letter of Demand Office of Fair Trading to Nigel Brown dated 21 August 2012.

   [11]Statutory Declaration of Adrian William Tan, Senior Recoveries Officer sworn 19 February 2015.

4. The Chief Executive sent the Information Notices and letters of demand to Mr Brown by prepaid ordinary post.[12] The Information Notices gave Mr Brown written notice of the Chief Executive’s decision and reasons for each claim and that Mr Brown is liable to reimburse the Fund for each of the amounts paid.[13]

   [12]Statement of Claim dated 19 February 2015 at paragraphs 7 and 9.

   [13]Agents Financial Administration Act 2014 (Qld), s 102.

5. The Chief Executive sent the Application by post to Mr Brown’s last known address[14] and invited Mr Brown to make written submissions,[15] for the Tribunal’s consideration about when and in what way Mr Brown intends to satisfy the amount owing.[16]The Tribunal also gave Mr Brown an opportunity to file written submissions about the application.[17]

   [14]Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 39 and QCAT Practice Direction No. 8 of 2009; Affidavit of Adrian William Tan, Senior Recoveries Officer sworn 17 March 2015 at paragraph 3.

   [15]Letter Office of Fair Trading to Nigel John Brown dated 27 February 2015.

   [16]Agents Financial Administration Act 2014 (Qld), s 118(1)(c).

   [17]Directions dated 9 March 2015 at paragraph 2.

6. Mr Brown did not apply to review the Chief Executive’s decisions.[18]

   [18]Information Notice for Claim No. 001461 dated 13 December 2011 and Information Notice for Claim No. 008130 dated 18 April 2012.

7. Mr Brown did not file any submissions.

8. I am therefore satisfied that:

   ·     The Chief Executive has made a decision for each of the claims against the Fund;

   ·     Written notice of the Chief Executive’s decisions, the decisions and prescribed Information Notices were given to Mr Brown;

   ·     Mr Brown did not apply to the Tribunal to review either claim;

   ·     Mr Brown has not paid any of the amounts owing; and

   ·     Mr Brown is liable to reimburse the Fund the sum of $3,657.00.

What are the appropriate Orders?

1. Because I am satisfied that the prescribed requirements are met, I must make a reimbursement Order.

2. The appropriate Order is therefore that pursuant to sections 117 and 119 of the Agents Financial Administration Act 2014 (Qld), Nigel John Brown is liable to reimburse and is ordered to pay to the Claim Fund established under section 78 of the Agents Financial Administration Act 2014 (Qld), the sum of $3,657.00 within 21 days of the date of this Order.