Brincat v Ralacom Pty Ltd

[2011] QCAT 205

CITATION: Brincat v Ralacom Pty Ltd and Anor [2011] QCAT 205

PARTIES:	Mr David Brincat trading as Brincat Electrics
v
Ralacom Pty Ltd ATF The Ralacom (No. 2) Unit Trust (Under External Administration) trading as Paradise Island Resort Ms Yvonne Raschilla

APPLICATION NUMBER:   OCL186-10  

MATTER TYPE: Other civil dispute matters

HEARING DATE:     On the papers

HEARD AT:  Brisbane

DECISION OF: Ms Barbara Bayne, Member

DELIVERED ON: 9 May 2011

DELIVERED AT:      Brisbane

ORDERS MADE: 1.    Pursuant to section 488 of the Property Agents and Motor Dealers Act 2000, the claim against the claim fund by Mr David Brincat in the sum of $12,513.91 is rejected.

CATCHWORDS: 

Claim against fund – no evidence to support – claim rejected

Property Agents and Motor Dealers Act 2000, s 470(1)

APPEARANCES and REPRESENTATION (if any):

This matter was heard on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.

REASONS FOR DECISION

1. On 17 June 2010 the Department of Employment, Economic Development and Innovation (the Department) appointed Ms Julie Ann Williams of the firm Insolvency & Turnaround Solutions as receiver over the Trust Account/s of Ralacom Pty Ltd trading as Paradise Island Resort[1].

   [1] See sections 417-433 of the Property Agents and Motor Dealers Act 2000.

1. The Director of Ralacom Pty Ltd was Ms Yvonne Raschilla, a holder of a resident letting agent licence, who conducted a permanent and holiday letting pool with various units at the premises.

1. On 27 July 2010 Mr David Brincat made a claim to the Department against the claim fund established under the provisions of the Property Agents and Motor Dealers Act 2000 (the Act). The respondents are named as Ralacom Pty Ltd and Ms Yvonne Raschilla.

1. On 1 December 2010, the Department referred the claim to the Queensland Civil and Administrative Tribunal for determination; section 476 of the Act refers.

The Claim

1. By way of his application, Mr Brincat claims to have suffered a financial loss as a result of his dealings with the respondents who held real estate licences under the Act.

1. Mr Brincat’s claim is supported by a number of invoices, each of which is notated “This is a payment claim made under the Building and Construction Industry Payments Act 2004 (Qld)”.

1. The invoices indicate that between 28 January 2010 and 4 June 2010 Mr Brincat provided to Ralacom a series of maintenance services involving electric goods and services totalling $12,513.91.  He maintains that the invoices remain unpaid.

Discussion

1. The Act provides that a person may make a claim against the fund if the person suffers financial loss because of the happening of any of a number of events specified in section 470(1).

1. In this matter however, there is no evidence before the Tribunal that :

   a)   an event mentioned in section 470 (1) happened; and

   b)   Mr Brincat suffered financial loss because of the happening of the event.

1. The Tribunal notes that Ms Williams, in a report to the Department dated 12 October 2010, acknowledges that the services as invoiced by Mr Brincat were conducted for Ralacom.

1. The Tribunal concurs with the opinion of Ms Williams that Mr Brincat’s claim is an unsecured claim against Ralacom should a liquidator be appointed.

The Decision

1. The Tribunal determines that Mr Brincat does not hold a valid claim against the fund.

1. The claim is rejected.

1. Orders are made accordingly.