ADMINISTRATIVE TRIBUNAL
CITATION: Stoker & Anor v The Chief Executive, Department of Justice and Attorney-General & Anor [2020] QCAT 477
PARTIES: KERRY MICHAEL STOKER
(first applicant)
WENDY LORRAINE VICKERS
(second applicant)
v
THE CHIEF EXECUTIVE, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL
(first respondent)
BJ SAGGERS INVESTMENTS PTY LTD (IN LIQUIDATION)
(second respondent)
BRENDAN JOSEPH SAGGERS
(third respondent)
ANDREA THERES SAGGERS
(fourth respondent)
GLEN JAMES WISHART
(fifth respondent) APPLICATION NO: GAR344-19
MATTER TYPE: General administrative review matters DELIVERED ON: 24 November 2020
HEARING DATE: 21 October 2020 HEARD AT: Brisbane
DECISION OF: Member Kent
ORDERS: 1. The decision of the Chief Executive, Department of Justice and Attorney-General, made on 18 July 2019, to reject the claim made by Kerry Michael Stoker and Wendy Lorraine Vickers against the Fund, is confirmed.
2. The parties shall bear their own costs.
CATCHWORDS: ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – dealers – representation – whether a used caravan dealer made a representation that a pre delivery workshop inspection
would take place – meaning of inspection – where it is alleged the agent made a representation by omission to the buyers that there would not be a loss of resale value due to the caravan being a repairable write off– where the buyers had opportunities to avoid or mitigate financial loss – where the buyers proceeded with the contract – whether any financial loss suffered as a result of the representations – where it was held that the buyers have not established that they have suffered loss as a result of the representations of the dealer
Agents Financial Administration Act 2014 (Qld), s 82(1)(g)
Motor Dealers and Chattel Auctioneers Act 2014 (Qld), s 99, s 100, s 102, s 104
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 24
Department of Employment, Economic Development and Innovation v National Australia Bank Ltd & Ors [2011] QCATA 295
Bryant v The Chief Executive, Department of Justice and and Attorney General & Ors [2020] QCAT 58
APPEARANCES & REPRESENTATION:
Applicant: KM Stoker WL Vickers
Respondents: A Tan, A/Manager Claims and Recoveries for the Chief Executive, Department of Justice and Attorney-General BJ Saggers Pty Ltd (in liquidation) – no appearance as per Liquidator’s letter to the Tribunal received 13 October 2020
Brendan Joseph Saggers, no appearance Andrea Therese Saggers, no appearance Glen James Wishart, no appearance
REASONS FOR DECISION What is this application about?
[1] Mr Stoker and Ms Vickers purchased a 2011 Olympic Champion caravan (the
caravan) from B J Saggers Pty Ltd, as it then was. Mr Brendan Saggers held a motor dealers licence and was a director of the company, Ms Andrea Saggers was a director of the company and Mr Wishart was the salesperson the Applicants dealt with. He also held a relevant motor dealers licence.
[2] The Applicants paid a $4000 deposit on 16 December 2017 and paid the balance of
$36000 on their return to the business on 25 January 2018. At this time, they also paid the sum of $159 for mirrors for the caravan
[3] The applicants submit that they are entitled to a payment against the Claim Fund
administered by the Chief Executive, Department of Justice and Attorney-General (Fair Trading).
[4] On 28 March 2018, Mr Stoker and Ms Vickers applied against the Claim Fund
administered by the Chief Executive, Department of Justice and Attorney-General for $9898.02. On 18 July 2019, the Chief Executive refused their claim.
[5] Mr Stoker and Ms Vickers have applied for review of the Chief-Executive’s
decision. The Tribunal’s role is to produce the correct and preferable decision by way of a fresh hearing on the merits.1
[6] In conducting its review, the Tribunal may confirm or amend the decision, set aside
the decision and substitute its own decision or set aside the decision and return the matter for reconsideration with appropriate directions.2
The applicants - summary
[7] The applicants say they are entitled to be paid by the fund because the salesperson,
Mr Wishart, told them on the 16 December 2017 that prior to hand over of the caravan it would be subject to a “workshop inspection” and that they would also be given a 2 hour induction. They also allege that there has been a misrepresentation as they r believe that no inspection could have taken place. They formed this view due to the defects in their caravan. They also believe that Mr Wishart made a second misrepresentation, and this is a misrepresentation by omission. The omission was alleged to have occurred on 25 January 2018. Mr Wishart told them that the caravan was a repaired repairable write-off and it is the applicants belief that he should have advised them that this could affect the resale value of the caravan.
[8] During an initial holiday the applicants encountered some problems and received
advice from several members of the caravanning community who were staying in the same park as them. The applicants chose not to return to the caravan dealership with their issues. Mr Stoker put it that they had no warranty so there was no point. They paid for repairs carried out by other parties. Mr Stoker’s evidence was that their first course of action was to make a complaint to Fair Trading and then after being paid from the Claim Fund allow Fair Trading to pursue the dealer and the salesperson.
Mr Wishart – salesperson
[9] The salesperson Mr Wishart denies having misled the applicants. He said in filed
material that the caravan did undergo an inspection pre-delivery. He dismissed the comments of a fellow employee that were made some four months after delivery took place. This comment was in essence, “inspections don't take place”. He also included as had proof of the inspection a receipt for the service carried out on the caravan and the parts that were replaced. Hi written evidence refutes a misrepresentation by omission. He said he told the applicants at the first available opportunity that he had found out about the caravan’s status. He explained that with
1 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20. 2 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 24.
over 100 caravans on the lot it was not unusual for salespersons to not know the status of the caravan and he had not known this about the caravan being a repairable write-off on the 16 December 2017.
[10] On 25 January 2018 Mr Wishart said that he had been told by his managers to
immediately inform the applicants of the caravan’s status as they did not know about it. It is not disputed that he interrupted the induction that was taking place on 25 January and told the applicants. Mr Wishart’s evidence, which appears to be uncontradicted by the applicants, was that they were given every opportunity to cancel the purchase and receive a full refund. His evidence is that this would have been issued immediately. He said that the applicants they accepted the fact that the caravan was a repairable write off and they were very happy to continue with the handover, they chose to do so. So, they continued with the fulfilment of the contract in the full knowledge of the caravan’s status as a repairable write-off.
[11] Mr Wishart believed that any problems with the caravan could not have been
attributed to its status as repairable write-off as it had been repaired and registered long before the sale. He considered the status of repairable write-off had nothing to do with the repairs done to the van and but theses down to wear and tear. In correspondence Mr Wishart’s pointed out that at no stage did the applicants give the company or anyone who worked there an opportunity to repair any of the problems they considered that they had. He put down their behaviour to be a case of “buyer’s remorse”.
What are the issues?
[12] Member Hughes summarized the issues in these types of matters in the case of
Bryant v The Chief Executive, Department of Justice and Lee & Anor v Department of Justice and Attorney 3A person can make a claim against the fund if they suffer
financial loss because of the happening of specified events.4 The issues for the
Tribunal to decide are:
(a) What is the ‘claimable event’? (b) What is the financial loss?
What is the ‘claimable event’?
The Applicants submitted that there two misrepresentations5 made by Mr Wishart
that make up the claimable event :(i) On 16 December the applicants and Mr Wishart were inspecting the caravan. It was Mr Stoker's evidence that Mr Wishart couldn't demonstrate any of the features of the caravan as it was not connected to electricity or water however, he did point out some of the features of the caravan. It was during this this time when the three of them were looking at the caravan that Mr Stoker and Ms Vickers allege that Mr Wishart said prior to delivery there will be a “workshop inspection” and if there's any problems or issues they will be repaired. It was Mr Stoker’s evidence that they were also told that they would take part in a 2-hour induction on the day they took delivery of the caravan; (ii) it is the applicants’ contention that the second claimable event was a misrepresentation by way of
3 (QCAT) 2020.
4 Department of Employment, Economic Development and Innovation v National Australia Bank Ltd
& Ors [2011] QCATA 295, [3].
omission. This omission was that nothing was mentioned about the impact a caravan being declared to be a repairable write-off would have on any resale value.
“Workshop Inspection”
[13] Each party's seems to vary in their interpretation of this potential event. The
applicants say that they believed when they were told that there would be a workshop inspection They say they took this to mean that there would be a full inspection by expert tradespeople (in the area of caravans) who would go through all of the items in the caravan, check that everything was working and repair and replace items if they were not. It was Mr Stoker’s oral evidence that he and Ms Vickers placed great store on this comment of “workshop inspected”. He agreed on under cross examination that his interpretation of the words “workshop inspection” is very wide-ranging and a view that others may not hold. Mr Stoker said that he did not really know what Mr Wishart had in mind, but this is what he assumed he had meant. It was Mr Stoker’s evidence that the implication was from Mr Wishart statement that the defects would be repaired. The applicant agreed that the actual words used were ambiguous, but he said this is what he had taken from it.
[14] It was the Department's submission that it was not reasonable for the applicants to
put such a complex interpretation on two words. This was not a reasonable interpretation, that they had made assumptions and that there was no reasonable evidence to allow the Tribunal to toward the draw the conclusion that (a) the statement had been made and (b) even if it had been made that all the statement did not mean that meant the workshop would do a complete check and overhaul on the caravan prior to it being delivered to the applicants.
[15] The Chief Executive submitted that the applicants’ material was not proof that a
claimable event had occurred as the alleged representations were all conveyed verbally when only applicants and Mr Wishart were present. Further there was no contemporaneous written evidence of what precisely was said, the applicants’ version was authored by them several months after the representation allegedly occurred and in the context of their pursuit of a claim for money from the fund. The respondents disputed the applicants’ version of events and make different submissions.
[16] It was the Chief Executive’s submission that the evidence does not establish that Mr
Wishart made the workshop inspection representation as alleged. Although the applicants submissions the 10 June 2020 6used some strong terminology including
the term “inexplicably departed from reality” it does seem clear that there are different ways of looking at these events It is the Chief Executive’s submission that it is most likely that the statement that the caravan would be workshop inspected prior to handover was unlikely to have occurred.
[17] Whilst it would appear that Mr Wishart does not take issue with having said that
there would be an inspection and in fact he refers to an invoice that has been filed studying the work that was done on the caravan and the parts that were put in there means it was inspected. It appears that the point of his argument is that the applicants were not promised a workshop inspection of the scope and scale that they say. Mr Wishart’s evidence is an appropriate inspection had been carried out on the caravan. There was some confusion added to the respondents version of events. This came from a person who worked for the company speaking to the applicant Mr Stoker many months after the caravan had been sold. It was during this conversation with Mr Stoker that she is alleged to have said a pre-sale inspection was not usually
done by the business. Mr Wishart said he was the one who was thereon the sales lot and that it was usual for such inspections. He documented via an invoice and said it occurred. The other person was not working in the sales or delivery side of the business and as he was a person directly involved in sales, he was in a better position to know what the usual inspections practices were.
Discussion
[18] Essentially this matter comes down to a matter of who, on the balance of
probabilities, do I believe to be correct about whether a workshop inspection state representation was made. I also need to consider whether or not this misrepresentation was made in the wide, fulsome terms that Mr Stoker and Ms Vickers appeared to believe it had been or if it was made in the sense that Mr Wishart refers to and has documentary evidence of via an invoice. Mr Stoker rejects the invoices being proof of any inspection because he said the word inspection does not appear on this statement.
[19] This is a case where much information has been filed with multiple statements of
evidence. All adds up to a great deal of effort on both sides. However, despite what other information is had filed before me my responsibility is to decide whether there had been a claimable event or events and whether there had been a financial loss as a result of these events. Some of the evidence comes down to one side says one thing and the other side says another, some of it is uncontradicted.
[20] Mr Stoker gave most of the evidence on behalf of the applicants with Ms Vickers
only being asked a few questions in cross examination but generally agreeing with the account given by her partner. Both presented as intelligent, articulate and confident witnesses. They appeared to be trying to give an honest recollection of the events that occurred. However, putting their demeanour to one side there are several aspects of their evidence which raised in my mind I doubt about the reliability of the evidence. These doubts included how reasonable it would be for a person to form the belief that a workshop inspection meant the detailed and perhaps unknowingly expensive course of action that they believed it to mean. There is no evidence that sought to clarify the meaning. Despite apparently placing so much weight on this statement they did not make even the most superficial enquires about its meaning. With the benefit of hindsight, the applicant's evidence may have become prone to embellishment or exaggeration or even confusion.
[21] I find that based on the totality of the evidence before me that Mr Wishart that it is
more probable than not that an inspection or even a workshop inspection would be carried out. I do not think that he gave any indication that would allow a reasonable person in the circumstances of the applicants to draw from that statement the inference that it was workshop inspection of the depth, breath and complexity that the applicants believed would occur. Such an inspection makes no commercial sense based on these caravans were being sold with the idea of making a profit. If a caravan was sold with the risk that after a workshop inspection could perhaps end up costing the seller an unknown amount of money it was hard to see why an agreed price would be accepted before this occurred.
[22] If the seller sales party was going to go to the extreme lengths of a workshop
inspection of the nature that Mr Stoker and Ms Vickers described one would expect that the sellers would be promoting this information and explaining to the parties were a good deal they were getting on the basis of how extraordinary and over and
above the usual standards this was. All these scenarios are speculation however what is not speculation is the unreasonableness for Mr Stoker and Ms Vickers interpretation of the words “workshop inspection”. From the evidence before me Mr Wishart did nothing to induce a belief that the inspection of the scope and detail that they believed would be carried out.
[23] On the basis of the information before me I find that a workshop inspection or
inspection was promised; that such an inspection did take place as evidenced by the invoice; I put little or no weight on the fact that the word inspection is not typed on the document it appears that someone has gone through the caravan, replaced some smaller parts and made it was clean and tidy. Mr Stoker and Ms Vickers do not indicate exactly how they came to the belief that they would be getting a “workshop inspection” that would in we have such complexity and breath that the caravan would have everything fixed on it. This seemed a very unlikely scenario and I find that if Mr Wishart did make a statement in relation to the workshop inspection the I find that one was carried out. There was no misrepresentation that took place as a result of this statement and therefore no claimable event can be stated to have occurred as there is no event under section 216 of the Motor Dealers and Chattel Auctioneers Act 2014.
[24] The Tribunal accepts the Chief Executive’s findings that the material does not
support the applicants allegations false or misleading representations made by Mr Wishart. This is because allegations are not independently corroborated and are inconsistent with the documentary evidence. It is noted that I do not however accept the statements and submissions made by the Chief Executives material where they state that they applicants view is “bizarre and entering a state of altered reality”. It is my view that although Ms Vickers and Mr Stoker may well believe that they are right about what is involved in a workshop inspection for caravan they have no reasonable basis to do so nor have they been induced on any level by Mr Wishart and or any other person at the caravan sales company to believe this state of affairs. The representation that of “workshop inspection” or “inspection” would be carried out appears true as I accept the information t relating to an inspection taking place.
[25] The statement on 16 December 2018 that the caravan would be subject to a
workshop inspection prior to the handover is not a misrepresentation and therefore nor is it a claimable event.
“Misrepresentation by omission”
[26] The applicants submissions in relation to the misrepresentation by omission can be
summarized as they were not told that having a caravan was described as repairable right off would not impact on the resale value. It was Mr Stoker's evidence that he and Ms Vickers still owned the caravan and that they “loved it”. He said he had never been to auctions to buy a repairable write-off caravan. He had only attended an auction to look at a boat for himself for recreational purposes. This is somewhat of as an irrelevancy in this case. This case is concerned with the events of the 16 December 2017 and 25 January 2018.
[27] Mr Stoker and Ms Vickers both agreed that Mr Wishart stopped their owners
induction of the caravan by stating that he had only just found out that the caravan was a repairable write-off. When Ms Vickers asked him what this meant she thought he said well it should not mean anything as the caravan has been repaired and re-registered. It was Mr Wishart’s contention in his statement filed in the tribunal that
on 25 January 2018 the applicants were given the opportunity to get out of the contract and that the parties chose to go ahead with it themselves.
[28] It was the Chief Executive's submission that there was no reason for the salesperson
or company to discuss the resale value of the caravan, it was up to the applicants to make a decision or to make their own inquiries once they had found out that something was a repairable write-off. There was nothing untoward about Mr Wishart’s statement that the caravan obviously had been repaired because it had been re-registered. There was no discussion of resale, resale value is not a term of the contract and from the evidence of Mr Stoker the applicants have not resold the vehicle or attempted to do so and indicate that they are very happy with it.
[29] The applicants stated that they had no understanding of any possible impact on
resale until they were given some advice by fellow caravan owners sometime after they took possession of the caravan. The Chief Executive submitted that caravan dealers have no obligation to protect the best interests of the applicants and it was up to the applicants to ensure that the caravan met their needs. Therefore, if these needs included resale value then it was up to them to ensure that they made enquiries specifically about that.
[30] It is the applicants’ evidence that they paid $40,000 for the caravan plus the cost of
the mirrors. On 17 May 2020 Queensland Motor Valuations conducted a retrospective valuation of the caravan - as at January 2018 the valuation was $34,000. Mr Stoker and Ms Vickers submitted that this valuation put them at a loss of $6000. This figure is the difference between what they paid for the caravan and what the retrospective valuation said it was worth. They claimed the cost of the valuation of $330. They also claimed their additional costs as follows: fridge repair; hose replacement; right to information search; HWS element; a damaged cable; wheel bearing replacement; fees – a total loss of $9892.02.
[31] The Chief Executive's submission with regard to these costings was that even if the
Tribunal was to find the applicants’ claim ought to be allowed then the only part of the applicants’ alleged loss that the fund could address was the difference between the value paid and the valuation cost as submitted in the applicants’ joint statements on 31 May 2020 . The submission is that the applicants’ valuation is at the 25 January 2018. This is before they incurred any repair costs as such any cost to repair the caravan to the standard that a purchaser would expect in the circumstances had already been priced into the valuation 7. Further it was submitted that the only
financial loss that could be legitimately addressed could be the amount of $6000. It is noted that the calculations of the Chief Executive refer to $6489.00 being the difference between what the applicants paid for the caravan and the caravans actual value of $34000 plus the cost of the mirrors ($149) and the cost of the valuation ($330). The Tribunal’s calculation is that $159 of the amount of $40,159 relates to the mirrors that were purchased by the applicants and there is no difficulty or issue with them. Therefore so the difference would appear to be $6000 between what the applicants paid for the caravan ($40,000) and the $34,000 valuation so that plus the $330,the applicant's cost to obtain a vehicle valuation, would be a sum of $6330 as being the appropriate amount should the Tribunal find in the favour of the applicants.
[32] As already indicated, I do not find that there have been claimable events and it is for
completeness that I continued this discussion with regard to the financial amounts that could be paid if I had found that there were claimable events. If I am incorrect in my decision that there is no claimable event of any description between the two parties then the only amount that could be recovered would be a sum of $6330 dollars. I find the right to information fee is not something that can be taken to be as part of a claimable event and nor does the Tribunal fee amount to a recoverable cost in these proceedings. The Chief Executive submit that no costs orders be made against him or the fund and I also make a finding that it would be inappropriate to have a costs order against the applicants in the circumstances.
Summary
[33] I am satisfied that the salesperson did say that there would be an inspection. I am
equally satisfied that an inspection took place. I am not satisfied that this inspection was misrepresented in any way by the dealer or the company. Mr Stoker and Ms Vickers, for whatever reasons of their own, chose to place an overlay of interpretation over the term inspection. This interpretation was one that went far beyond what would be within the usual realms of what the term “workshop inspection” or “inspection” mean. I find that inspection did take place as evidenced by the invoice. I do not find that the invoice needed to have the word inspection on it to make it evidence that an inspection had taken place. The fact that the inspection fell short of the applicants’ extremely optimistic views and definition of inspection does not of itself mean that there has been any misrepresentation. I can find no other evidence of a misrepresentation, therefore I do not I find that the critical claimable event has occurred regarding the first allegation or “workshop inspection” allegation as it has been referred to in the chief executive's material
[34] Regarding the second possible claimable event -a misrepresentation by omission
about the resale value of the caravan I find that this misrepresentation did not occur. There ws no discussion of resale value, it was not a term of the contract, there is no obligation incumbent upon the salesperson and or their company to watch out for the best interests of the other party. It is up to the applicants to take their own independent advice. I refer to the Latin phrase caveat emptor or buyer beware. In circumstances such as this the applicants need to take their own counsel on these matters and not to rely upon a salesperson to do this for them. They had not discussed reselling the caravan with the salesperson and indeed to this date they attempted to resell the caravan. In what appeared to be a very honest action by the salesperson and their company the applicants were advised as soon as the salesperson found out about the status of the vehicle. It would appear from all the surrounding circumstances, this is not disputed or contradicted by the applicants, that they had a choice about whether they went ahead with the sale and that they very clearly chose to go ahead with the sale. The buyers made a conscious decision to continue with the contract and have not established that their claimed financial loss resulted from any representations by omission by the agent/salesperson.
[35] The buyers have not established that they have suffered loss as a result of the
representations of the agent, and the claim against the fund must fail.
1. The decision of the Chief Executive, Department of Justice and Attorney-General, made on 18 July 2019, to reject the claim made by Kerry Michael Stoker and Wendy Lorraine Vickers against the Fund, is confirmed.
2. The parties shall bear their own costs.
