Brown & Anor v Wilen Pty Ltd & Ors

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.