Central Highlands Regional Council v Water Sales & Exchange (Qld) Pty Ltd

[2010] QCAT 653

CITATION: Central Highlands Regional Council v Water Sales & Exchange (QLD) Pty Ltd & Ors [2010] QCAT 653

PARTIES:	Central Highlands Regional Council
v
Water Sales & Exchange (QLD) Pty Ltd And Vicki Anne Moloney And Neville Stuart Moloney

APPLICATION NUMBER:   OCL147-10    

MATTER TYPE: Other civil dispute matters

HEARING DATE:      22 December 2010

HEARD AT:     Decision on the papers

DECISION OF: Ms Peta Stilgoe

DELIVERED ON: 22 December 2010

DELIVERED AT:       Brisbane

ORDERS MADE:

The Chief Executive pay to the applicant the sum of $43, 950. The respondents are jointly and severally liable for the Council’s financial loss pursuant to section 488(3)(c) PAMDA.

CATCHWORDS : 

REAL ESTATE AGENT – where agent sold water allocations – where agent did not remit sale proceeds to applicant - misapplication of monies - financial loss

Property Agents and Motor Dealers Act 2000 subsection 59, 470(1)(e), 488(3)(c)

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. In May 2007, Central Highlands Regional Council (“the Council”) engaged Neville Moloney to auction 1000 mega litres of water it owned. Ms Cooper, an employee of the Council, spoke to Mr Moloney “of Water Sales & Exchange” who provided a verbal quote to auction the water.

2. The water was auctioned on 1 June 2007. The auctioneer was not Mr Moloney. Water to the value of $43,950 was sold. The purchasers paid Mr Moloney but he has never remitted those funds to the Council. The Council has lodged a claim against the statutory fund for $43,950 compensation.

3. The Tribunal may allow a claim for compensation only if it is satisfied, on the balance of probabilities[1]:

aThat an event mentioned in section 470(1) of the Property Agents and Motor Dealers Act 2000 (“PAMDA”) happened.

bThe claimant suffered financial loss because of the happening of the event.

[1] Section 488 Property Agents and Motor Dealers Act 2000 (“PAMDA”)

1. The event on which the Council relies is pursuant to section 470(1)(e): a stealing, misappropriation or misapplication by a relevant person of property entrusted to the person as agent for someone else in the person’s capacity as a relevant person.

2. The issues for the Tribunal’s determination are:

aWhether any of the respondents is a “relevant person”;

bWhether there was an event within section 470 of PAMDA;

cWhether the event caused the Council’s loss.

Relevant person

1. Ms Moloney is the sole director of Water Sales & Exchange (Qld) Pty Ltd. Neither she nor the company has ever been licensed under PAMDA. Mr Moloney held a real estate agent’s licence from 20 February 2002 to 20 February 2007.On 23 July 2007, the licence was deemed to have been withdrawn because Mr Moloney did not provide further information requested of him. His licence was reinstated in January 2008 and is still current. Mr Moloney has never held an auctioneer’s licence.

2. “Relevant person” is defined in section 469 of PAMDA as:

aA licensee; or

bA licensee’s employee or agent, or a person carrying on business with the licensee.

cA person having charge or control, or apparent charge or control, of a licensee’s registered office or business.

1. Mrs Moloney and the company can only be within the definition of “relevant person” if Mr Moloney is a “relevant person”. Section 59 of PAMDA provides that a licence is taken to continue in force from the day that it would, apart from this section, have expired until the licensee’s application for renewal is decided or withdrawn. As at June 2007, Mr Moloney’s licence was the subject of renewal. It was not withdrawn until 23 July 2007. I therefore find that Mr Moloney was a “relevant person”.

2. I am satisfied that Mr Moloney used the company to operate his business of real estate agent. Therefore, the company is also a “relevant person” within the meaning of PAMDA. Ms Moloney, as the sole director and shareholder of the company, must be a person in charge or control of Mr Moloney’s business. I am therefore satisfied that she, too, is a “relevant person”.

Was there an event?

1. The Council relies on section 470(1)(e) of PAMDA. It is not necessary to consider whether Mr Moloney was the auctioneer, entitled to be the auctioneer or the detailed circumstances of the Council’s engagement of an auctioneer or who that auctioneer might have been. The evidence is clear:

aThe purchase price for the sale of Council’s water was paid into the company’s account.

bThe company was a relevant person.

cThe money was paid to the company as agent of the Council and in its capacity as a relevant person.

dThe money was not transmitted to the Council. It has been appropriated to the company’s own use. Therefore, it has been misappropriated and/or misapplied by the company.

Has the Council suffered financial loss?

1. The Council has lost the use of money to which it was entitled. It has sold an asset and not received any financial benefit. It cannot recover funds from the purchasers and it cannot recover its water assets. Clearly, the Council has suffered a financial loss.

Conclusion

1. I allow the claim pursuant to section 530 of PAMDA and order that the Chief Executive pay to the Council the sum of $43,950. I make no order as to the date of payment.

2. I find that the respondents are jointly and severally liable for the Council’s financial loss pursuant to section 488(3)(c) of PAMDA.