Brown & Anor v Wilen Pty Ltd & Ors - [2012] QCAT 324

CITATION:

Brown & Anor v Wilen Pty Ltd & Ors [2012] QCAT 324

PARTIES:	Angus Brown Elizabeth Fogarty
v
Wilen Pty Ltd Jeffrey Dean Allen Lee Terry Wilson

APPLICATION NUMBER:

OCL020-12

MATTER TYPE:

Other civil dispute matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Peta Stilgoe, Senior Member

DELIVERED ON:

23 July 2012

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 $40,774.17.

[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 Mr Brown and Ms Fogarty the sum of $40,774.17 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, Mr Jeffrey Dean Allen and Ms Lee Terry Wilson are named as the persons responsible for the financial loss of Mr Brown and Ms Fogarty.

[4] Upon payment from the Claim Fund and pursuant to ss 490 and 530 of the Property Agents and Motor Dealers Act2000, Wilen Pty Ltd, Mr Jeffrey Dean Allen and Ms Lee Terry Wilson are liable (and if more than one, jointly and severally) to reimburse the Claim Fund by paying the sum of $40,774.17 to the Chief Executive, Department of Justice and Attorney General.

CATCHWORDS:

REAL ESTATE AGENT – where failure to count for deposit – where deposit misappropriated – whether “silent” director a person responsible for the loss

Corporations Act 2001 (Cth), s 198A
Property Agents and Motor Dealers Act 2000, ss 385(4), 386, 470, 470(1)(e), 488, 490(2), 573

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

Mr Brown and Ms Fogarty sold their unit at the Gold Coast through Wilen Pty Ltd trading as Wilson Allen Real Estate. Mr Allen and Ms Wilson were directors of that company.
The purchasers paid a deposit of $54,000 to the company’s trust account on 22 August 2011. The sale was settled on 30 September 2011 but Mr Brown and Ms Fogarty have not received the balance of the deposit from Wilen.
Mr Brown and Ms Fogarty made a claim on the statutory claim fund for $40,774.17. Wilen is now under external administration. A copy of the receiver’s claim report was sent to each of the respondents by letters dated 28 February 2012.
The tribunal is required to determine whether there should be a payment from the fund. Section 488 of the Property Agents and Motor Dealers Act2000 sets out the process for deciding the claim. The Tribunal must be satisfied that:
a) An event as mentioned in section 470(1) happened; and
b) The claimant suffered…

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: [2012] QCAT 324
Decision Date

CaseChat Overview and Summary

In Brown & Anor v Wilen Pty Ltd & Ors, the applicants, Angus Brown and Elizabeth Fogarty, sought compensation from the respondents, Wilen Pty Ltd, Jeffrey Dean Allen, and Lee Terry Wilson, for a deposit lost during the sale of their property. The property sale was handled by Wilen Pty Ltd, with Allen and Wilson serving as its directors. The applicants had sold their unit and the purchasers had paid a $54,000 deposit into the company's trust account. However, the applicants did not receive the balance of the deposit when the sale settled on 30 September 2011. Wilen is now under external administration, and the applicants made a claim on the statutory claim fund for $40,774.17. The tribunal was required to determine whether there should be a payment from the fund under section 488 of the Property Agents and Motor Dealers Act 2000.

The tribunal found that there was an event under section 470(1) of the Act, as the applicants did not receive the trust money to which they were entitled within 42 days of it being due and payable, and the applicants did not account to them for the transactions that occurred in relation to the deposit. The tribunal also found that the applicants suffered a financial loss because of Wilen's breach of the Act. The tribunal was required to name the person who is liable for the loss under section 488(3)(c) of the Act. Although Ms Wilson claimed that she should not be liable for her failure as a director because she left that obligation to others, the tribunal found that she was an executive officer of Wilen at the time of the loss and, therefore, a responsible person, and, therefore, a person liable to reimburse the fund.

The tribunal ordered that the claim is allowed in the sum of $40,774.17, and that at the expiration of the appeal period, the Chief Executive must pay to the applicants the sum of $40,774.17 from the Claim Fund. The tribunal also named Wilen Pty Ltd, Mr Jeffrey Dean Allen, and Ms Lee Terry Wilson as the persons responsible for the financial loss of the applicants. Finally, the tribunal ordered that Wilen Pty Ltd, Mr Jeffrey Dean Allen, and Ms Lee Terry Wilson are liable to reimburse the Claim Fund by paying the sum of $40,774.17 to the Chief Executive, Department of Justice and Attorney General.

Orders