Patard v Garry Dawkins t/as GT Motoring Solutions Pty Ltd

• [2] The Applicant claims that Garry Dawkins t/as GT Motoring Solutions ('the Respondent') sold her a 2007 Subaru Liberty station wagon ('the Vehicle'). The Applicant signed a contract of sale for the vehicle on 29 September 2018, the contract stated the following:

(a) The previous owner of the vehicle was GT Motoring Solutions;

(b) The above named motor dealer guarantees to the purchaser clear title to the [Vehicle] described in the statement above.

• [3] The Applicant became the registered owner of the Vehicle. The Vehicle had a dutiable value of $6,000.00. The Applicant paid to the Respondent the purchase amount in full of $6,250.00
• [4] The Respondent was de-registered in 2021.
• [5] The Applicant in March 2024 attempted to sell the Vehicle to a purchaser named "Cindy". Cindy advised the Applicant that the car did not have clear title and would not be able to purchase the Vehicle.
• [6] A subsequent search of the Personal Property Securities Register identified that the Vehicle had a security interest in favour of UME Loans Pty Ltd.
• [7] The Applicant contacted Mr Dawkins. In the course of the Applicant's contact with Mr Dawkins he advised the Applicant that he had contacted UME Loans Pty Ltd ('UME') and "there was nothing that he could do". The Applicant spoke to the listed contact at UME, who stated to the Applicant that the loan had not been paid and UME were not willing to remove the security notification from the Vehicle until it was paid in full.
• [8] The Applicant applied to the Office of Fair Trading in Queensland to make a claim under the Claim Fund. The Applicant was advised that her claim was out of time on 18 March 2024. The Applicant was further advised that she needed to make an application to this Tribunal within 14 days to extend time. The Applicant's application was received by the Tribunal on 19 March 2024.

• [9] Section 88(5) of the Act provides the legislative process for making an out of time application to the Tribunal. It is as follows:

(5) If the claim is not made within the time allowed under section 85, the chief executive must give the person a notice in the approved form stating that -

(a) the claim is out of time; and

(b) the person may apply to QCAT, within 14 days after being give the notice, for an extension of time within in which to make the claim.

• [10] Section 122 of the Act provides QCAT with the power to extend time or seek a review of the decision of the Chief Executive. The relevant part of section 122 states as follows:

(1) QCAT may extend time within which to make a claim or seek a review of a decision of the chief executive if QCAT is satisfied -

(a) the application is made -

(i) for a claim - within the time mentioned in the notice given under section 88(5)(b); or

(b) it is appropriate to extend time having regard to -

(i) the reasons for not making the claim or seeking the review within the time allowed; and

(ii) the application generally; and

(iii) for a claim, the relative hardship that an extension of time or refusal to extend time would place on the claimant or respondent; and

(iv) the justice of the matter generally.

• [11] The Applicant provided to the Tribunal a copy of the following:

(a) messages between herself and the potential gumtree buyer;

(b) a copy of the purchase contract between herself and the Respondent;

(c) a personal property securities register search certificate; and

(d) a copy of the correspondence from the Office of Fair Trading that the application was out of time.

• [12] The Chief Executive of the Office of Fair Trading Queensland ('the Chief Executive') provided submissions supporting the Applicant's claim and a copy of the following attachments:

(a) AFAA Form 1 Claim and attached documents;

(b) Correspondence from the OFT to the Applicant with out of time material;

(c) Email from the Applicant to the OFT with attachments;

(d) ASIC historical search GT Motoring Solutions Pty Ltd;

(e) OFT trader profile and licence detail - GT Motoring Solutions Pty Ltd; and

(f) Transport integrated customer access search results.

• [13] The Chief Executive's submissions support the Applicant's position and states in part at paragraph 15:

The Chief Executive submits that the evidence in the material establishes:

(a) the Applicant became aware she suffered financial loss on 12 April 2024 when she discovered the Vehicle was encumbered; and

(b) the event occurred on 29 September 2018 because that is when the Respondent sold the Vehicle to the Applicant without discharging the financial encumbrance.

• [14] The Applicant was outside the time frames for an application allowable under the Act as outlined in section 88(5) of the Act outlined in paragraph [9] above.
• [15] The Applicant was not aware that the Vehicle was encumbered. The contract guaranteed title to the Vehicle and it stated, "The above named motor dealer guarantees to the purchaser clear title of the used Subaru Liberty 4GEN Heritage Wagon 5dr 5pts Auto 4spd AWD 2.5i (MYO8) described in this statement."
• [16] The Applicant paid cash for the Vehicle and the contract identified that the Applicant did not require credit for the purchase of the Vehicle.
• [17] The Applicant became aware that the Vehicle was encumbered, contacted both the seller and UME. The Applicant also made application to the Office of Fair Trading.
• [18] Upon being advised by the Office of Fair Trading that her application was out of time under the legislation, the Applicant immediately made an out of time application to the Tribunal.
• [19] The Applicant is out of time by an excess of two years. In ordinary circumstances, it would be unreasonable for time to be extended to enable the Applicant to make a claim.
• [20] The circumstances are not ordinary. The Applicant was not in a position to discover the encumbrance on the Vehicle. There is no information as to whether UME to contacted the Applicant. On all the information it is the conclusion that the Applicant was entitled to believe that she received clear title. The contract signed by the Respondent was express with this statement.
• [21] The Applicant has upon discovery of the encumbrance acted swiftly and in a reasonable time frame. The Applicant contacted both the Respondent and UME. Upon discovery that the application was out of time she has within one day made application to the Tribunal for an extension of time. Further, the Chief Executive's submissions support the Applicant's extension of time application.
• [22] A refusal of the Applicant's application would be a hardship on the Applicant and would not serve the interests of justice.

• [23] The Application for an extension of time to apply to the Claim Fund is granted.
• [24] The Tribunal refers the application back to the Chief Executive to progress the application in accordance with the Agents Financial Administration Act 2014 (Qld).[1]

[1] The Chief Executive, Department of Justice and Attorney General v Crampton Automotive Pty Ltd t/as Toowoomba Holden, Mark Crampton, Noel Roser, Ross Crampton, Gary Smeeton [2014] QCATA 20.