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

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.
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.
Arembee made a claim on the statutory claim fund for $28,380. The respondents received notice of the claim
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.
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).
Finally in allowing a claim I must decide the amount of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] QCAT 21
Decision Date

CaseChat Overview and Summary

Arembee Pty Ltd brought a claim against Wilen Pty Ltd and its directors, Jeffrey Dean Allen and Lee Terry Wilson, under the Property Agents and Motor Dealers Act 2000 (PAMDA) following a property sale where the deposit was misappropriated by Wilen Pty Ltd, the real estate agent. The case was heard and decided by Peta Stilgoe, Acting Deputy President of the Queensland Civil and Administrative Tribunal, on 15 January 2013.

The legal issues before the tribunal were whether an "event" under section 470(1) of the PAMDA had occurred, which led to Arembee suffering a financial loss, and if so, to what extent the loss was and who should be liable to compensate Arembee. The tribunal had to determine whether Wilen Pty Ltd, Jeffrey Dean Allen, and Lee Terry Wilson were responsible for the financial loss, and if so, whether they should reimburse the statutory claim fund.

The tribunal found that an event under section 470(1)(e) of the PAMDA had occurred, as Wilen Pty Ltd misappropriated the deposit funds. Arembee suffered a financial loss due to this event. The tribunal assessed the financial loss to be $22,817.50, which included the agent's commission as calculated by an independent auditor, less any GST. It was determined that Arembee was not able to recover any amount due to their own neglect or default, and the tribunal did not allow the claimed legal fees as they were not substantiated. The tribunal also found Wilen Pty Ltd, Jeffrey Dean Allen, and Lee Terry Wilson liable for the financial loss, as they were responsible persons under section 490(2) of the PAMDA.

The tribunal ordered that Arembee Pty Ltd be paid $22,817.50 from the statutory claim fund by the Chief Executive, Department of Justice and Attorney General, subject to any appeal. Wilen Pty Ltd, Jeffrey Dean Allen, and Lee Terry Wilson were named as responsible for the financial loss and were required to reimburse the claim fund the same amount.

Orders