Arembee Pty Ltd v Wilen Pty Ltd

[2013] QCAT 21

CITATION: Arembee Pty Ltd v Wilen Pty Ltd and Ors [2013] QCAT 21

PARTIES:	Arembee Pty Ltd
v
Wilen Pty Ltd Jeffrey Dean Allen Lee Terry Wilson

APPLICATION NUMBER:   OCL086-12

MATTER TYPE: Other civil dispute matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Peta Stilgoe, Acting Deputy President

DELIVERED ON: 15 January 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 $22,817.50.

[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 Arembee Pty Ltd the sum of $22,817.50 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, Wilen Pty Ltd, Jeffrey Dean Allen and Lee Terry Wilson are named as the persons responsible for the financial loss of Arembee Pty Ltd.

[4] Upon payment from the Claim Fund and pursuant to sections 490 and 530 of the Property Agents and Motor Dealers Act2000, Wilen Pty Ltd, Jeffrey Dean Allen and Lee Terry Wilson are liable (and if more than one, jointly and severally) to reimburse the Claim Fund by paying the sum of $ 22,817.50 to the Chief Executive, Department of Justice and Attorney General.

CATCHWORDS: 

PROPERTY AGENT – claim against the fund

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. Arembee Pty Ltd appointed Wilen Pty Ltd, trading as Wilson Allen Real Estate Agents, as selling agent of its property at Main Beach.  Wilen was a licensee.  Messrs Allen and Wilson were directors of Wilen and licensees.

2. Mr Allen negotiated the sale of Arembee’s property.  The purchaser paid a deposit of $46,000 into Wilen’s trust account on 11 August 2011.  The sale settled on 16 September 2011.  At settlement, there were insufficient funds to pay Arembee the balance of the deposit less Wilen’s commission.

3. Arembee made a claim on the statutory claim fund for $28,380.  The respondents received notice of the claim

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 Arembee 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 Arembee might reasonably have received or recovered if not for Arembee’s neglect or default and any amount ordered to be paid to Arembee 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 Arembee’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. Terry van der Velde, of Calabro SV Consulting, was appointed as auditor of Wilen’s trust account.  In a report dated 12 June 2012, Mr van de Velde states that Wilen pre-drew its commission of $23,182.50 on 15 August 2012.  The balance of the deposit was transferred on 18 August 2012 to Wilen’s business account.  Wilen had no authority to transfer either amount.  I am satisfied that the deposit was misappropriated by Wilen.

3. I am satisfied that there is an “event” within s 470(1).

Financial loss

1. I am satisfied that Arembee suffered a financial loss because of Wilen’s breach of s 470(1)(e).

2. Arembee claims $28,380, calculated as the deposit less commission and GST of $18,500 plus $880 in legal fees.  Arembee does not explain why the commission is $18,500.  It has not provided a copy of the appointment to act which, ordinarily, shows the basis on which commission is claimed.

3. Mr van de Velde has calculated the agent’s commission as $23,182.50.  The normal commission payable (plus GST) would have been $25,932.50 (on a sale price of $925,000: 5% of the first $18,000 + 2.5% x 907,000.)  However, Mr van de Velde relies on a handwritten Post It note attached to Wilen’s sales record which shows a deduction of $2,500 from the commission normally payable.  The note is not explained.  I do not know who prepared it or whether the parties agreed to the notations.  However, because the adjustment is in Arembee’s favour, and accords with the pre-drawn commission, I am prepared to accept that the true commission payable was $23,182.50.

4. The Post It note also records a deduction of $90.  Mr van de Velde says that this is a body corporate disclosure statement fee that is normally paid.  Because the Post It note obscures the table that calculates the commission, I have no actual evidence of this charge.  I will not deduct it from the amount claimed.

5. Arembee has not provided an invoice for its claim for legal fees, nor explained why these fees were necessarily incurred in making the claim.  I do not allow them in the calculation of the loss.

6. I am satisfied that $22,817.50 is a proper assessment of Arembee’s loss.

Other matters

1. I am required to take into account any amount Arembee may have received or recovered if not for its neglect or default.

2. There is no evidence to suggest that Arembee would have been able to receive or recover any amount to reduce its loss if it had taken any different action.

Who is liable for the loss?

1. Wilen, as licensee, is liable for the loss.  Mr Allen, as the person who conducted the transaction, is also liable for the loss.

2. 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.

3. An ASIC search provided by the Chief Executive shows that both Mr Allen and Mr Wilson are directors of the company.  As directors of Wilen, Messrs Allen and Wilson were executive officers of the company.  Because I have found that the company is a responsible person, it follows that they must also be responsible persons.

Orders

1. Pursuant to s 488 of the Property Agents and Motor Dealers Act2000, the claim is allowed in the sum of $22,817.50.

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 Arembee Pty Ltd the sum of $22,817.50 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, Wilen Pty Ltd, Jeffrey Dean Allen and Lee Terry Wilson are named as the persons responsible for the financial loss of Arembee Pty Ltd.

4. Upon payment from the Claim Fund and pursuant to sections 490 and 530 of the Property Agents and Motor Dealers Act2000, Wilen Pty Ltd, Jeffrey Dean Allen and Lee Terry Wilson are liable (and if more than one, jointly and severally) to reimburse the Claim Fund by paying the sum of $22,817.50 to the Chief Executive, Department of Justice and Attorney General.