Bui v Turner - [2024] QCAT 528

QUEENSLAND CIVIL AND

ADMINISTRATIVE TRIBUNAL

CITATION:

Bui v Turner & Anor [2024] QCAT 528

PARTIES:

THI THUY CHAU BUI (CINDY TRAN)

(applicant)

v

RICHARD TURNER

(respondent)

PBGC PTY LTD ACN 167 460 317 (FORMERLY KNOWN AS BROOKWATER RESORT INVESTMENTS PTY LTD ACN 167 460 317)

(RESPONDENT)

APPLICATION NO/S:

OCL074-21

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

23 October 2024

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Richard Oliver

ORDERS:

1. The claim against the Claim Fund in the sum of $55,300.00 is allowed pursuant to sections 105 and 106 of the Agents Financial Administration Act 2014 (Qld).

2. At the expiration of the appeal period the Chief Executive must pay to the Applicant the sum of $55,300.00 from the Claim Fund, and if there is an appeal, payment must not be made until after the appeal is finally decided, pursuant to section 112 of the Agents Financial Administration Act 2014 (Qld).

3. Both Richard Turner and PBGC Pty Ltd ACN 167 460 317 (formerly known as Brookwater Resort Investments Pty Ltd ACN 167 460 317) are jointly and severely named as being liable for the financial loss of Thi Thuy Chau Bui (Cindy Tran) pursuant to section 105(3)(c) of the Agents Financial Administration Act 2014 (Qld).

4. Upon payment from the Claim Fund both Richard Turner and PBGC Pty Ltd ACN 167 460 317 (formerly known as Brookwater Resort Investments Pty Ltd ACN 167 460 317) are jointly and severely liable to reimburse the Claim Fund by paying the sum of $55,300.00 to the Chief Executive, Department of Justice and Attorney-General, pursuant to section 106 and section 116 of the Agents Financial Administration Act 2014 (Qld).

CATCHWORDS:

PROFESSIONS AND TRADES – AUCTIONEERS AND AGENTS – ADMINISTRATIVE LAW – MISAPPROPRIATION OF DEPOSIT MONEY – CLAIMS AGAINST THE CLAIM FUND – LIABILITY OF AGENT TO PAY THE CLAIM – CONTROL OF MONEY – where a Vietnamese resident entered into an off the plan contract in Vietnam to purchase a lot in a proposed residential resort development in Queensland – where deposit money paid to the developer’s director in Vietnam and deposited into the directors bank account – where the development failed to proceed and the contract was terminated – where the applicant sought recovery of the deposit where one or both respondents failed to secure the deposit in a trust account – where misappropriation of deposit by one or both respondents – where applicant made a claim against the Claim Fund under the provisions of the Agents Financial Administration Act 2014 (Qld) – whether the claim fell within the provisions of the Agents Financial Administration Act 2014 (Qld) – whether respondents an “agent” or “relevant person” for the purposes of a claim against the Claim Fund – whether the Claim Fund should respond to the claim

Agents Financial Administration Act 2014 (Qld), s 80, s 82, s 105, s 106
Property Occupations Act 2014 (Qld), s 26, s 97, s 115, s 151 and s 162

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.

Continue reading Bui v Turner

Details

AGLC: Bui v Turner [2024] QCAT 528
Case: [2024] QCAT 528
Decision Date: 23 October 2024

CaseChat Overview and Summary

In the case of Bui v Turner, the dispute involved a Vietnamese resident who entered into an off-the-plan contract to purchase a lot in a proposed residential resort development in Queensland. The applicant, Thi Thuy Chau Bui, sought recovery of her deposit after the development failed to proceed and the contract was terminated. The applicant alleged that the deposit money was misappropriated by the respondents, Richard Turner and Brookwater Resort Investments Pty Ltd (BRR). The applicant also made a claim against the Claim Fund under the Agents Financial Administration Act 2014 (Qld), arguing that the respondents were liable for the misappropriation of the deposit money.

The central legal issues in the case were whether the claim fell within the provisions of the Agents Financial Administration Act 2014 (Qld), and whether the respondents were an "agent" or "relevant person" for the purposes of a claim against the Claim Fund. The court found that Mr. Turner, as the agent for the owner of the land, had a legal obligation to pay the deposit money to Hickey Lawyers, but failed to do so. The court held that both Mr. Turner and BRR were relevant persons for the purposes of the Act and that they were jointly and severely liable for the financial loss of the applicant.

The court concluded that the claim against the Claim Fund was allowed, and the Chief Executive must pay the applicant $55,300.00 from the Claim Fund. Additionally, both Richard Turner and PBGC Pty Ltd (formerly known as Brookwater Resort Investments Pty Ltd) are jointly and severely liable to reimburse the Claim Fund by paying the sum of $55,300.00 to the Chief Executive, Department of Justice and Attorney-General.

Orders

Orders of the court

1. The claim against the Claim Fund in the sum of $55,300.00 is allowed pursuant to sections 105 and 106 of the Agents Financial Administration Act 2014 (Qld).

2. At the expiration of the appeal period the Chief Executive must pay to the Applicant the sum of $55,300.00 from the Claim Fund, and if there is an appeal, payment must not be made until after the appeal is finally decided, pursuant to section 112 of the Agents Financial Administration Act 2014 (Qld).

3. Both Richard Turner and PBGC Pty Ltd ACN 167 460 317 (formerly known as Brookwater Resort Investments Pty Ltd ACN 167 460 317) are jointly and severely named as being liable for the financial loss of Thi Thuy Chau Bui (Cindy Tran) pursuant to section 105(3)(c) of the Agents Financial Administration Act 2014 (Qld).

4. Upon payment from the Claim Fund both Richard Turner and PBGC Pty Ltd ACN 167 460 317 (formerly known as Brookwater Resort Investments Pty Ltd ACN 167 460 317) are jointly and severely liable to reimburse the Claim Fund by paying the sum of $55,300.00 to the Chief Executive, Department of Justice and Attorney-General, pursuant to section 106 and section 116 of the Agents Financial Administration Act 2014 (Qld).

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

It is evident from the wording of the correspondence and resolutions,[29] it was intended that the deposit money be paid to the intermediaries and then to Hickey Lawyers. Therefore in terms of s 206(1) of the POA, Mr Turner was performing the activities of a licensee in receiving the money.[29]Exhibit book page 103.Conclusion Throughout this whole sorry saga, Mr Turner, as agent for BRI, the owner of the land and the ultimate beneficiary of the development had a legal obligation to pay any deposit money received from buyers to Hickey Lawyers. Similarly, BRR despite it being the developer, I find, consistent with the manner in which these transactions occurred, BBI was the agent for BRR in appointing the agents and directing agents to pay the deposits, via Mr Turner on behalf of BRR. Similarly, BRR was required to pay the deposits to Hickey Lawyers’ trust account. It did not. I accept the submission of the applicant that it was Mr Turner who, being the mind and controlling entity of both companies, who organised the manner in which the development was to be sold, and the deposit monies received from unsuspecting purchasers. They falsely accounted for the monies by issuing sham receipts for deposits representing that the deposit money was paid to the Hickey Lawyers trust account. Both Mr Turner and BRR are relevant persons for the purposes of s 82(1)(g) of the AFAA. In fact, at all times, when it came to receiving the deposits, Mr Turner was acting in a personal capacity because the money was deposited into his personal account, and therefore acting as a licensee who would have a trust account (although he didn’t). Where the money ended up after that remains a mystery. Apart from any commissions paid to agents, only Mr Turner knows the full story about what happened to the deposit money. He has continuously failed to comply with directions for the filing of statements or evidence, which may have enlightened the Tribunal, before this matter was listed for a determination on the papers. The applicant’s submission in reply at section 3 adequately sums up what has occurred here:What has become evident is that the more one finds, the more complex and convoluted the web was and is. There were and are many entities (real and fictitious) being used to discombobulate and conceal the real intent of what has gone on. Company names were used interchangeably (often in the same documents). That means theoretically there could be many more respondent companies and perhaps other legal persons. But there is one common element to it all and one mastermind and one major benefactor of the defalcation Mr. Richard William Turner… To contend, as the Chief Executive does, that BRR was at all material times to be the recipient of the deposit money payable to Hickey Lawyers’ trust account, and therefore no agent or relevant person was involved in the transactions, oversimplifies the factual circumstances pertaining to the payments. Except for small amounts, the bulk of the deposit money was never paid to Hickey Lawyers. There is no evidence that BRR actually received the deposit money. What seems to be uncontroversial, is that the deposit money was paid to Mr Turner and deposited into his personal accounts. This eschews any argument that Mr Turner was acting solely in his capacity as a director for BRR otherwise it would have been paid into a BRR bank account.

Ratio Decidendi

Legal Principle Established

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