Bilborough v Gordon
[2002] QDC 271
•25 September 2002
DISTRICT COURT OF QUEENSLAND
CITATION:
Bilborough v Gordon & Anor [2002] QDC 271
PARTIES:
CHRISTOPHER RUSSELL BILBOROUGH
(Appellant)
v
CRAIG STUART GORDON and
FIONA MARY GORDON
First Respondents
And
NATIONAL ASSET PLANNING CORPORATION PTY LTD (IN LIQUIDATION)
Second RespondentFILE NO:
D1252 of 2002
DIVISION:
Civil jurisdiction
PROCEEDING:
Appeal by Christopher Russell Bilborough (“Bilborough”) against the decision of the Property Agents and Motor Dealers Tribunal
ORIGINATING COURT:
Property Agents and Motor Dealers Tribunal
DELIVERED ON:
25 September 2002
DELIVERED AT:
Brisbane
HEARING DATE:
16 September 2002
JUDGE:
Britton SC, DCJ
ORDER:
(1) That the appeal against the order that the Chief Executive of the Department of Tourism Racing and Fair Trading pay from the claim fund to CRAIG STUART GORDON and FIONA MARY GORDON the sum of $39,960.00 be dismissed.
(2) That the appeal against the order that National Asset Planning Corporation Pty Ltd (in liquidation) and CHRISTOPHER RUSSELL BILBOROUGH reimburse the claim fund in the amount of $39,960 be allowed.
(3) That the order that National Asset Planning Corporation Pty Ltd (in liquidation) and CHRISTOPHER RUSSELL BILBOROUGH reimburse the claim fund in the amount of $39,960 be set aside.CATCHWORDS:
APPEAL AND NEW TRIAL – Appellate jurisdiction – appeal from Property Agent and Motor Dealers Tribunal – whether an error of law was made by the tribunal – whether the tribunal’s findings were open on the evidence – Transitional provisions – whether operation of sec. 125 of Auctioneers and Agents Act 1971 preserved Auctioneers and Agents Act 1971 secs. 72, 73, 125
Property Agents and Motor dealers Act 2000, sections 475, 481, 488, 490, 604COUNSEL:
P.D. McMurdo QC with him T.J. Bradley for the Appellant
P.A. Kronberg for the First Respondents
A. Ross Solicitor of Crown Law as Amicus CuriaeSOLICITORS:
Blake Dawson & Waldron fro the Appellant
Watts & Company for the First Respondents
This is an appeal by Christopher Russell Bilborough (“Bilborough”) against the decision of the Property Agents and Motor Dealers Tribunal (“The Tribunal”) whereby it was ordered:-
(i) that the Chief Executive of the Department of Tourism, Racing and Fair Trading pay from the claim fund established pursuant to the Property Agents and Motor Dealers Act 2000 (“the new Act”) (“the fund”) to the First Respondents Craig Stuart Gordon and Fiona Mary Gordon (“the Gordons”) the sum of $39,960.00, and
(ii) that Bilborough and the Second Respondent National Asset Planning Corporation Pty Ltd (In Liquidation) (“NAPC”) reimburse the fund in the amount of $39,960.00.
The new Act commenced on 1 July 2001. The Auctioneers and Agents Act 1971 (“the repealed Act”) was repealed by it.
Under the repealed Act where there was a contravention of inter alia s 72(1) or
s 73(1) of that Act persons who suffered pecuniary loss because of such contravention could make a claim against the Auctioneers and Agents Fidelity Guarantee Fund for reimbursement of such pecuniary loss. Further, under the repealed Act it was provided by s 125 that where payment was made out of that fund “in settlement in whole of part of any claim relating to the business of …. real estate agent .… carried on by a corporation, the directors of the corporation at the time when the act or omission (that gave rise to the claim) occurred, shall be jointly and severally liable to compensate the fund in respect of that payment.”
Under the repealed Act, claims against the fund were determined by the Auctioneers and Agents Committee constituted under that Act.
By s 604(1) of the new Act it is provided that the rights and liabilities of the former fund (i.e. the fund established by the repealed Act) are taken to be the rights and liabilities of the claim fund (established by the new Act).
Sub-s 604(2) provides:-
“A claim that has been made against the former fund, and not finished before the commencement, continues as if it were a claim against the claim fund.”
The Gordons made a claim against the former fund on 25 November 1999. It was not finished before the commencement (01 July 2001).
Under the new Act, claims against the fund (other than a minor claim i.e. a claim for not more than $5,000) are heard by the Tribunal (s 485).
Section 540 provides that the chief executive or a party dissatisfied with the decision of the Tribunal may appeal to the District Court, but only on a question of law.
A number of grounds of appeal were set out in the Notice of Appeal but not pursued on the hearing of the appeal. The issues which were pursued were:-
(i)
That there was no finding open on the evidence before the Tribunal that there was a contravention by NAPC of either
s 72(1) or s 73(1) of the repealed Act.
(ii) Even if findings were open on the evidence of contravention of s 72(1) and/or s 73(1) the liability of a director (i.e. Bilborough) to compensate the fund pursuant to s 125 of the repealed Act did not survive the repeal of the old Act.
I have already referred to the right of appeal to this Court conferred b y s 540 of the new Act such appeal being “only on a question of law”. This means that provided there was evidence before the Tribunal which left it open to the Tribunal to make a finding of fact that there was a contravention of s 72(1) ands/or s 73(1) of the repealed Act, I cannot overturn the Tribunal’s findings of fact. (S v Crimes Compensation Tribunal (1998) 1 VR 83). I refer also to the following passage from the judgment of Mason CJ in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356:-
“… at common law, according to the Australian authorities want of logic is not synonymous with error of law. So long as there is some basis for an inference, in other words, the particular inference is reasonably open even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place.”
Section 72(1) of the repealed Act provides, relevantly:-
“No …, real estate agent, …, or employee of …, a real estate agent …, shall make to any purchaser or prospective purchaser or publish or cause to be published any statement or representation that is false or misleading (whether to the person’s knowledge or not) concerning any real or personal property which the person, or as the case may be, the person’s employer, has for sale … as a real estate agent ….”
Under s 119(1) of the repealed Act, the fund was to be held and applied for the purpose of reimbursing persons who may suffer pecuniary loss because of (inter alia):-
“(a)the contravention of any provision of s 60, s69, s 70, s 72, s 73 or s 74 or of Part 7, division 1 by a prescribed person;”
“Prescribed person” in sub-s 119(1) was defined as:-
"a licensee, the licensee’s partner, employee, agent or any person having the apparent charge or control for the time being of the office or business of the licensee.”
“Licensee” in s 119 was defined as including:-
“a person who carries on the business of an auctioneer, a real estate agent, a motor dealer or a commercial agent and is not the holder of a licence.”
The Tribunal found that:
(a) NAPC was a “prescribed person” under s 119(1) and (2); and
(b) Mr Quinlivan and Investlend acted as agents for NAPC in relation to the sale and/or marketing of the subject property (Reasons para 44).
Before me, those findings were not challenged.
The Tribunal’s Findings of contravention of s 72 of Repealed Act
The Tribunal found that there were two false and misleading statements made by NAPC in contravention of s 72(1) of the repealed Act.
Firstly it found that the statement by Mr Quinlivan that “no bank would lend an amount greater than the property value” was false and misleading concerning the townhouse being purchased by the Gordons (“because the Bank was being offered security above and beyond the town house and that it was a known fact that a bank will lend an amount greater than the property value being purchased if they are given other property as security for the loan as was occurring in this transaction (Reasons para 51).
This finding was based upon the acceptance by the Tribunal of the evidence of the Gordons that Mrs Gordon asked Mr Quinlivan whether or not they could sight a copy of the valuation of the townhouse and if such a valuation did not exist whether or not such a valuation could be obtained and also of their evidence that Mr Quinlivan told them that the Bank of Melbourne would arrange to have its own valuation undertaken, and further that no bank would lend an amount greater than the property value (Reasons para 49 and Statement of Fiona Mary Gordon para 25 and Statement of Craig Stuart Gordon para 25). There was no challenge by the appellant to the Tribunal’s findings that the statement was made by Quinlivan and that he was acting as agent for NAPC (T14).
The appellant Bilborough, submits that there was no evidence to establish the Tribunal’s finding at para 51 and that consequently there was an error of law on the part of the Tribunal in holding that the facts could establish such a contravention.
In support of this submission it was argued that the Gordons plainly knew that the Bank was lending more than whatever the value of the property was. Reference was made to a Reconciliation Account from Bells Solicitors to the Gordons (Appeal Book p 32) and that there was no evidence by the Gordons that they believed the property was worth or had been valued by the Bank at at least $227,000, or even $167,000. It was further argued that as it was a “known fact” (Reasons para 51) that a bank will lend more if it has additional security, it is difficult to see why that was not “known” i.e. understood by the Gordons.
There was no evidence as to whether the Bank of Melbourne obtained a valuation nor was there evidence of the value of the further security provided by the Gordons which was identified in the Reasons (para 50).
It seems to me that the evidence was such as to leave open a finding by the Tribunal that the statement by Ms Quinlivan was misleading. It is not necessary to establish a contravention of s 72(1) to find that the statement was both false and misleading. There was no evidence which would permit a finding that Quinlivan’s statement was false. There was no discussion in the Tribunal’s reasons as to the meaning of “misleading’ in the context of s. 72(1) nor was there any argument before me on this question.
The word has been considered mostly in relation to s. 52 of the Trade Practices Act 1974 (Cwth) but has also been considered in the context of other consumer protection legislation.
In Keehn v Medical Benefits Fund of Australia Ltd (1977) ATPR 40-047, Northrop J in dealing with a prosecution under s. 53(f) of the Trade Practices Act thought that a statement was misleading “if it would lead one ordinary member of the public, likely to read the statement or be influenced by it, into error”.
“To mislead” connotes to lead into error, and misleading conduct is therefore that which is capable of leading people to entertain false beliefs.” (Taperell Vermeesch Harland, Trade Practices and Consumer Protection 2nd ed Para 1409.)
The statement was made in circumstances in which the Gordons were obviously wanting some independent evidence as to the value of the property. It was open to the Tribunal to find that the statement by Quinlivan was misleading because notwithstanding the fact that other security was being provided the inference was open that the Gordons understood that before the Bank would lend it would obtain a valuation of the townhouse and that the loan would not be made if the valuation obtained by it did not support the purchase price.
The second false and misleading statement found by the Tribunal was dealt with in paras 55 to 59 of its Reasons.
The Tribunal seems to have relied for this finding upon the statement by Mr Quinlivan relied upon for its first finding, namely that “no bank would lend an amount greater than the property value” and it found that in making that statement NAPC was confirming that the list price was the market value of the town house. (Reasons para 57). The Tribunal found that the list price was not the “market price” (presumably the Tribunal meant “market value”) on the basis of two valuations which were in evidence before it.
In addition to referring to the statement by Mr Quinlivan, the Tribunal referred to the evidence that NAPC showed the Gordons as part of the marketing of the townhouse “comparative properties” which tended to suggest that the town house was a good buy in comparison (Reasons para 60). The Tribunal also accepted “that representing the list price of this investment property … as being a good investment because it was the market price was false and misleading” (Reasons para 59). In making this latter finding the Tribunal may have had in mind the evidence of Mrs Gordon at para 17 of her statement and similar evidence in para 17 of Mr Gordon’s statement.
On behalf of the appellant it was argued that, ordinarily, to tell a potential purchaser the asking price of a property is not to represent that price as its value. I accept that as a general proposition.
In reaching its conclusion on this issue the Tribunal referred to a decision of the Full Court of the Federal Court in John G. Glass Real Estate Pty Limited v Karawi Constructions Pty Ltd & Ors (1993) ATPR 41-249.
On behalf of the Gordons it is argued that the evidence before the Tribunal showed that NAPC was not a “mere real estate agent” (T 27). It was submitted that NAPC was also acting as an investment adviser to the purchasers. The evidence of the Gordons was that they were contacted by a telemarketer from NAPC and invited to attend a seminar on negative gearing and property investment which they in fact attended. Subsequently this led to the Gordons going to the Gold Coast and being shown a number of properties by NAPC including the town house which they purchased.
In these circumstances, it is argued on behalf of the Gordons that it was open to the Tribunal to find that the representation as to the asking price was also a representation that the list price was also the market value (and thus that the representation was misleading).
It seems to me that there was evidence before the Tribunal which left open a finding that the representation or statement was at least misleading. As I said before s 72(1) does not require that the statement be both false and misleading but merely false or misleading.
The Tribunal’s findings of contravention of Section 73 of the Repealed Act
The Tribunal found that there had been a contravention of s 73(1) of the repealed Act.
Section 73 provides (relevantly):-
“(1)An auctioneer who sells by auction, or a real estate agent who as such or as a principal sells any l and, whether improved or unimproved, shall give to the purchaser a statement in writing in compliance in every respect with the requirements of this section.
(2)A statement in writing under this section shall –
(a)clearly identify the land to which the statement relates; and
(b)state the names and addresses respectively of the seller and purchaser; and
(c)state clearly whether or not the auctioneer or real estate agent has (by the auctioneer or real estate agent or by an employee) made or offered to the purchaser any representation, promise or term with respect to the availability of finance for defraying wholly or in part the purchase price; and
(d)if any such representation, promise, or term has been so made or offered, in addition to stating clearly that fact, state clearly the particulars of that representation, promise or term; and
(e)state the date on which the statement is given; and
(f)be singed by the auctioneer or real estate agent or by a person authorised in writing (prior notice of which accompanied by a copy of the authority, has been delivered to the registrar) by the auctioneer or real estate agent;
and shall not contain any other written, typewritten, or printed matter except the letterhead (if any) of the auctioneer or real estate agent.
(3)A statement in writing under this section shall be given by the auctioneer or real estate agent to the purchaser before the purchaser signs any contract, agreement, or document legally binding or intended to bind the purchaser legally in respect of the sale.
(4)If in respect of the sale of any land, whether improved or unimproved –
(a) by an auctioneer by auction; or
(b)by a real estate agent whether as such or as a
principal;
finance for defraying in whole or in part the purchase price, or any amount or instalment of that finance, is not made available to the purchaser in compliance in every respect with any representation, promise, or term made or offered to the purchaser by, or by an employee of, that auctioneer or real estate agent, then, if the purchaser has been materially affected, the purchaser may at the purchaser’s option avoid the contract made by the purchaser in respect of the sale by notice in writing given either to the seller or to the auctioneer or real estate agent concerned at any time before the time at which the purchaser is required by the contract to pay all of the outstanding purchase price or immediately after that time.
(5)Upon the avoidance (whether by the purchaser under this section or by the seller for that the purchaser has failed to pay in terms of the contract the purchase price or any amount of the purchase price) of a contract to which subsection (4) applies, the seller and the auctioneer or real estate agent concerned shall be liable at law, jointly and severally, for the repayment to the purchaser of all money paid by the purchaser under the contract and such money shall be recoverable, by action as for a debt, by the purchaser accordingly.”
The Tribunal found that no statement of the kind required by s 73 was given by NAPC to the Gordons. That finding was clearly open on the evidence and is not challenged. (T 17).
On behalf of the appellant it is argued that the right to avoid the contract conferred on the purchaser by s 73(4) did not arise because the precondition to the existence of such a right viz “that finance … was not made available to the purchaser in compliance in every respect with any representation … made … to the purchaser by, or by an employee of, … that real estate agent, then, if the purchaser has been materially affected …” did not exist as finance was made available. In the circumstances then, it is submitted that although there was a contravention of s 73(1) there was no evidence of any loss suffered by the Gordons because of that contravention (which loss is to be reimbursed from the fund (s 119)).
The appellant argues that had a written statement been provided in compliance with s 73 the Gordons would have been no better off and that the purpose of s 73 was to prevent a purchaser being left without finance which it had been represented by the agent would be available.
The Tribunal found that the Gordons lost their right to avoid the contract pursuant to s 73(5) “on the basis that the representation as to finance made by Investlend as an agent for NAPC was not fulfilled.” The Tribunal went on to say:- “accordingly the Gordons have suffered the loss from acquiring the town house when the contract could have been avoided if the representation had been fulfilled.” (Reasons para 70).
As I understood it, the argument of the Gordons is:-
(i) that the representation by Mr Quinlivan that the Bank of Melbourne would obtain a valuation of the property was required to be set out in a statement required by s 73 because sub-s 73(2)(d) requires that the statement “state clearly the particulars of that representation”;
(ii) that sub-s 73(4) enables a purchaser to avoid the contract where finance is not made available in compliance in every respect with the representation;
(iii) that here, although finance was made available it was not made available in compliance in every respect with the representation in that no valuation was obtained;
(iv) the Gordons were thus entitled to avoid the contract;
(v) the Gordons lost their right to avoid the contract;
(vi) the Gordons thus suffered loss being the detriment they suffered in completing the contract by paying a price in excess of the market value.
On behalf of the appellant it is argued that even if the representation about the Bank’s obtaining a valuation was required to be included in a s 73 statement there is no causative connection between the contravention of s 73 and the loss suffered by the Gordons. It is argued that the evidence shows that finance was made available and that it is artificial to argue that it was not made available in compliance in every respect with the representation because no valuation was obtained by the Bank because (as I understood the argument) the purpose of sub-s 4 is to provide a right of avoidance to a purchaser who has been left without finance or without finance on the terms represented leaving the purchaser either unable to complete the purchase or to complete it only on the basis of finance on terms less favourable to the purchaser than represented. The appellants argue also that there is no basis for finding that the Gordons lost a right to avoid the contract.
I accept the appellant’s argument and I am satisfied that there was no evidence which left it open to the Tribunal to find that the Gordons suffered any loss by reason of the contravention of s 73.
Section 125 of the Repealed Act
Having made its findings that the Gordons had suffered loss because of the contravention of both s 72 and s 73 of the repealed Act and having calculated the loss in the sum of $39,960 and having ordered the Chief Executive of the Department of Tourism, Racing and Fair Trading to pay that amount from the claim fund to the Gordons, the Tribunal then found that NAPC was the person responsible for the Gordons’ financial loss. The Tribunal then, in purported reliance on s 125 of the repealed Act found that the first and second respondents (i.e. NAPC and Bilborough were jointly and severally liable to compensate the claim fund in the amount of $39,960.
The Tribunal does not appear to have considered the question whether the operation of s 125 survived the repeal.
I have already referred to s 604(1) ad (2) of the new Act.
The balance of s 604 is as follows:-
“(1)The rights and liabilities of the former fund are taken to be the rights and liabilities of the claim fund.
(2)A claim that has been made against the former fund, and not finished before the commencement, continues as if it were a claim against the claim fund.
(3)If, before the commencement, a person could have made a claim against the former fund but did not make the claim, the person may make the claim against the claim fund.
(4)If, before the commencement, the committee had started a proceeding to recover an amount paid out of the former fund, the proceeding is taken to have been started by the chief executive as if the amount had been paid out of the claim fund.
(5)If, had the repealed Act not been repealed, the committee could start a proceeding to recover an amount paid out of the former fund, the chief executive may start the proceeding as if the amount had been paid out of the claim fund.
(6)The repealed Act applies to a proceeding under subsection (4) or (5), with necessary changes, as if the repealed Act had not been repealed.
Section 20 of the Acts Interpretation Act 1954 (“AIA”) provides (relevantly):-
“(2) The repeal or amendment of an Act does not:-
(a) …
(b) …
(c) affect a right, privilege or liability acquired, accrued or incurred under the Act; …”
Of course, s 4 of the AIA provides that the application of that Act may be displaced, wholly or partly, by a contrary intention appearing in any Act.
Section 125(1) of the repealed Act provided (relevantly):-
“Where payment is made out of the fund in settlement in whole or in part of any claim relating to the business of …, a real estate agent, …. Carried on by a corporation, the directors of the corporation, at the time when the act or omission (that gave rise to the claim) occurred, shall be jointly and severally liable to compensate the fund in respect of that payment.”
Bilborough was at the material time a director of NAPC.
The argument for the appellant is that the operation of s 125 of the repealed Act was not preserved by s 604 of the new Act except in the circumstances expressly provided for by s 604(4) or s 604(5) and specifically that the operation of s 20(2) and (3) of the AIA was displaced by s 604 of the new Act. Clearly neither of sub-s 604(4) or (5) is applicable because before the commencement of the new Act no amount had been paid out of the former fund. Furthermore unless and until an order was made by the Tribunal that money be paid from the former fund there was no accrued right of recovery pursuant to s 125 which could be preserved by virtue of s 20(2)(c) of the AIA.
The appellant emphasises also the fact that under the new Act there is no similar provision to s 125 of the repealed Act. (i.e. a provision providing for, as it were, “no fault” liability by the directors of a corporation).
The appellant therefore argues that it was an error of law on the part of the Tribunal to regard s 125 of the repealed Act as still being in force and applicable and on that basis alone to name Bilborough as the person liable for the Gordon’s financial loss pursuant to s 488(3)(c) of the new Act.
The argument for the appellant is that a person does not become liable for the claimant’s financial loss because that person is made a respondent to a claim merely on the basis of that person’s being an executive officer of a corporation which is a respondent to a claim (see s 475 of the new Act). It is submitted that s 475 is designed to ensure that persons potentially liable in relation to a claim are given notice of the claim and are thereby made respondents. In other words the provisions of s 475 are procedural ones designed to avoid a situation where the Tribunal would determine the merits of a claim and then get to the end of it and realize that the relevant parties had not been given notice.
There is no provision that an executive officer who is taken to be a respondent to a claim pursuant to s 475 is deemed to be liable for any loss which is found to have been suffered by a person because of the events set out in s 470.
There were no findings by the Tribunal that Bilborough had conducted himself personally in such a way as to have made himself liable to the Gordons. Furthermore Bilborough did not fall within the definitions of “prescribed person” or of “licensee” in s 119 of the repealed Act.
In these circumstances the appellant argues that the fact that Bilborough was made a respondent to the claim by the Tribunal whether pursuant to s 475 of the new Act or otherwise did not make him a person liable for the Gordon’s financial loss.
The first respondents’ written outline of argument addressed the question of s 125 but no further oral submissions were made by them on the hearing of the appeal because Mr Ross of the Crown Law office appeared as a “friend of the Court” and made some submissions prepared on behalf of the Chief Executive of the Department of Tourism, Racing and Fair Trading. However, Counsel for the first respondents indicated that he was still relying on the submissions made in the first respondents’ outline notwithstanding that the liability of Bilborough to compensate the fund is not a matter which affects the Gordons so far as their reimbursement from the claims fund is concerned.
Essentially the Gordons argue that there was a contingent right of the fund to recover compensation from the directors of NAPC in the event that the claim was successful and that this was a right of the former fund preserved by s 604(1) of the new Act and therefore taken to be a right of the claim fund. It was argued that in those circumstances it was irrelevant that there was no finding of personal liability on the part of Bilborough.
The submission made by Mr Ross was that the words of s 604(2) where it is provided that a claim made but not finished before the commencement continues as if it were a claim against the fund necessarily imply that the provisions of the new Act shall apply to the preserved claim so far as they are applicable to the claim and that therefore pursuant to s 475(3) Bilborough was a respondent. It was argued that s 475 of the new Act is “the successor provision” of s 125 of the repealed Act but is of wider application than s 125 in that it applies to “executive officers” (a term defined in the dictionary in Schedule 3 to the new Act in a way that persons who are not directors are included) and that the provision is intended to subject directors to liability to reimburse the fund.
The difficulty for the Chief Executive with that argument is that neither s 475(3) nor any other provision of the new Act provides that a director or an executive officer who is taken pursuant to s 475(3) to be a respondent is thereby deemed to be liable for any financial loss found to have been suffered by a claimant and s 490 provides for the person named in the Tribunal’s order as being liable for the claimant’s financial loss to be liable to reimburse the claim fund. The person liable for the claimant’s financial loss must be the person found to have been responsible for the event giving rise to the claim pursuant to s 470 of the new Act. If it were intended by the legislature to visit liability to reimburse the claim fund upon a person merely because that person was a director or an executive officer of a corporation found to have been in contravention of a provision of the Act resulting in loss and without any finding of personal liability on the part of such a person it would surely have done so in terms clearly expressed as was the case with s 125 of the repealed Act. Mr Ross referred to s. 481(4)(d) of the new Act which provides that the chief executive’s decision (in relation to minor claims) if it be that an amount be paid to the claimant from the fund must state that the respondent named in the decision is liable to reimburse the fund to the extent of the amount paid to the claimant from the fund. His argument was that although that provision relates only to the decision of the chief executive in relation to minor claims and there is no corresponding provision in s. 488 which relates to the decision of the Tribunal in claims other than minor claims it should be inferred that it was the intention of the legislature that the Tribunal should be under the same obligation as to the Chief Executive. It seems clear that in the case of minor claims (which are the subject of s 481) the legislature quite consciously was imposing liability on the respondent whether or not the respondent is the same person as the person named by the Chief Executive pursuant to s 481(3)(c) (a provision corresponding to s 488(3)(c)) as being the person liable for the claimant’s financial loss. When s 488 does not contain a similar provision to s 481(4)(d) I do not see how it can be argued that the Tribunal has a similar power when determining claims. If the Legislature had intended that the Tribunal should act in the same manner as the Chief Executive is required to act under s. 481(4)(d) it would surely have included a similar provision in s.488.
I cannot see any basis for holding that in the absence of a finding by the Tribunal that Bilborough was in some way personally liable for the loss suffered by the Gordons he is a person liable for their loss and therefore liable to reimburse the fund pursuant to s 490 of the new Act.
The other argument advanced on behalf of the Chief Executive was that by virtue of s 604(1) of the new Act and s 20 of the AIA the rights and liabilities of the former fund were preserved and that the former fund had a contingent right to claim reimbursement from Bilborough under s 125, the right being contingent on the claim already commenced by the Gordons being successful. Reliance was placed upon Kentlee Pty Ltd v Prince Consort Hotel Pty Ltd (1998) 1 Qd.R. 162. I do not find that decision to be of assistance because it deals with the question as to whether following the repeal of a legislative provision a person who had lodged an application for an approval of something which was not permitted following the repeal had an “acquired” or “accrued” right rather than a mere hope or expectation that a discretion would be exercised in its favour. It dealt with the meaning of s 20 of AIA.
The appellant argues that if s 604(1) of the new Act were to be given the meaning contended for by Mr Ross sub-s 604(2),(3),(4), and (5) would be entirely unnecessary . Here the operation of s 20 of AIA was displaced in my view by s 604 because the latter section deals comprehensively with the way in which the rights and liabilities of the former fund are to be treated and it is clearly intended to be exhaustive. There is therefore no room for thinking that if there was such a thing as a contingent right to recover compensation from a director in the event that a claim made but not finished before the commencement of the new Act was ultimately determined in favour of the claimant it survived the repeal.
I find that sec. 125 of the repealed Act has no application to this matter.
I therefore find that the Tribunal made an error of law in finding that by virtue of s 125 of the repealed Act Bilborough was liable to compensate the fund and the order whereby Bilborough and NAPC were ordered to reimburse the claim fund in the amount of $39,960 must be set aside.
Orders
The formal orders will be:
(i) That the appeal against the order that the Chief Executive of the Department of Tourism Racing and Fair Trading pay from the claim fund to CRAIG STUART GORDON and FIONA MARY GORDON the sum of $39,960.00 be dismissed.
(ii) That the appeal against the order that National Asset Planning Corporation Pty Ltd (in liquidation) and CHRISTOPHER RUSSELL BILBOROUGH reimburse the claim fund in the amount of $39,960 be allowed.
(iii) That the order that National Asset Planning Corporation Pty Ltd (in liquidation) and CHRISTOPHER RUSSELL BILBOROUGH reimburse the claim fund in the amount of $39,960 be set aside.
Costs
I will receive submissions in relation to costs.
G.T. BRITTONS.C. DCJ
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