Chen & United Property Specialists Pty Ltd v Hsu - [2013] QCATA 65

CITATION:

Chen & United Property Specialists Pty Ltd v Hsu [2013] QCATA 65

PARTIES:	Mr Steven Chen United Property Specialists Pty Ltd (Applicants/Appellants)
V
Mr Jung-Kang Hsu Mr Tao Hsu Mrs Yueh Hsia Chou-Hsu (Respondents)

APPLICATION NUMBER:

APL016-12

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Hon John Jerrard QC, Judicial Member

DELIVERED ON:

5 March 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The application for leave to be represented, filed 27 January 2012, is granted.

2. The application for an extension of time, filed 27 January 2012, is granted.

3. The application for leave to appeal is refused.

CATCHWORDS:

APPEALS – LEAVE TO APPEAL – REAL ESTATE AGENT – where agent received money from prospective buyers – whether money was deposit or ‘buyer’s agent’s fee’ – where money not returned to prospective buyers – where the buyers made a claim on the statutory claim fund established by the Property Agents and Motor Dealers Act 2000 – where the Tribunal allowed the claim for the sum received by the agent – where the buyer appeals that decision – whether the Tribunal made an error in law and fact – whether leave to appeal should be granted

APPEALS – LEAVE TO APPEAL – EXTENSION OF TIME TO FILE APPLICATION FOR LEAVE TO APPEAL – where the applicant filed an application for leave to appeal 10 days after the final date for filing the application for leave to appeal – whether an extension of time to seek leave to appeal should be granted

Property Agents and Motor Dealers Act 2000, s 378, s 379, s 381(1), s 385(2)(c)

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

In this matter, 3 applications were filed by the applicants (Mr Steven Chen and United Property Specialists Pty Ltd) on 27 January 2012. Those were an application for leave to appeal or appeal a decision of this Tribunal made on 12 December 2011, and described by the applicants as received on 20 December 2011; an application for leave to be represented; and, an application to extend the time within which to appeal the decision described as received on 20 December 2011.
The applicants, in respect of the application for an extension of time, describe in that application that a copy of the decision was received by the appellants’ accountant (at the appellants’ address for service) on 20 December 2011, and that accordingly the application for leave to appeal or appeal, was to be filed on or before 17 January 2012. However, Mr Chen left Australia on 19 December 2011 and did not return until 11 January 2012. He consulted Chan Lawyers on 17 January 2012 (the final date for lodging the application for leave to appeal or appeal), but they were unable to provide full advice because Mr Chen did not have with him a copy of the Application filed in this Tribunal by Mr Jung-Kang Hsu, Mr Tao Hsu and Mrs Yueh Hsia Chou-Hsu (‘the respondents’), nor a copy of some relevant statutory declarations. His lawyers had accepted advice, described as having been given to them by this Tribunal, on 25 January 2012, to the effect that they should file an application for leave to appeal even before obtaining ‘the missing documents’.
This Tribunal’s files include a copy of an email passing between Mr Geoffrey Price, from the Gold Coast Regional Office of Fair Trading, (within the Department of Justice and Attorney-General), and an officer of this Tribunal, advising her that Mr Price had spoken with Mr Chen on 15 December 2011, had told him that this Tribunal had made a determination in favour of the respondents, and that Mr Chen was keen to receive the relevant documents. The Tribunal’s file does not record if Mr Price gave those ‘relevant documents’ to Mr Chen, but the file does record an email dated 23 December 2011, sent at 2:00 pm, purporting to come from Mr Chen as a director of United Property Specialists Pty Ltd, and advising the Tribunal that:
We wish to apply appeal the Tribunal’s decision on this case: OCL092-11. Please kindly approve our appeal because we feel the decision need to be change. We will be happy to discuss this matter with you more further.
If you need us to fill the appeal Form (Form 44), please email to us.
Best Regards,
United Property Specialists Pty Ltd
Steven Chen
Director
This Tribunal’s file also records that on 16 January 2012, Chan Lawyers sent an urgent letter to the Tribunal, advising that the applicants requested an extension of time to apply for an appeal, until 30 January 2012, necessitated by the fact of ‘our client… being overseas.’ A further letter on 18 January 2012 advised that Chan Lawyers required copies of the original application made to the Tribunal, and copies of what was described as ‘sworn statements’ of 4 named witnesses, which documents ‘our client’ was currently unable to locate.
On 18 January 2012, an officer of this Tribunal advised Chan Lawyers (via a message with the receptionist) that the Tribunal had received correspondence relating to Mr Chen wanting to appeal, and advised that simply writing to this Tribunal and asking for an extension of time to file an appeal was not appropriate, and that an application for leave to appeal or appeal, together with an extension of time application, must be filed in the Tribunal. Presumably, that advice led to the filing of the various applications made on 27 January 2012.
Before turning to the grounds of appeal, it is convenient to describe the history of the original proceedings leading to the decision. The applicants were each licensed real estate agents, with Mr Chen the sole director of the company. The respondents had their affairs conducted in the matter generally by Mr Jung-Kang Hsu (known as ‘Alan Hsu’), the son of Mr Tao Hsu and Mrs Yueh Hsia Chou-Hsu, who are husband and wife. Alan Hsu was born in Taiwan, and came to Brisbane, Australia in 1992. He obtained an MBA from the Queensland University of Technology in 1995, and Masters Degree in Accounting (also at QUT) in 2005. He describes himself as fluent in Mandarin and Taiwanese, and can read, write and speak English well enough to run his businesses, but says he is not fluent.
The evidence generally was that Mrs Hsu had seen an advertisement for properties listed for sale by United Property Specialists Pty Ltd, contacted that agency and spoke to Mr Chen. It is common ground between the parties that that happened on 23 July 2010, and that the conversation between them included a discussion of the possibility of her buying a Kentucky Fried Chicken premises at Robina. Mr Chen contends, in his affidavit received on 22 March 2012, in support of this application, that she agreed in that conversation that she would pay a $70,000.00 ‘up front’ agent’s fee, if she used his services to make an offer for that Robina KFC.
It is also common ground between the parties that all of the respondents met Mr Chen on 26 July 2010 and inspected the property at 118 Robina Town Centre on that date. Mr Chen’s affidavit contends that earlier that same day, all 3 respondents had visited his office, where they had signed forms provided under the Property Agents and Motor Dealers Act 2000 (‘the Act’), being forms 21a and 22a respectively. Form 22a is appropriate for the appointment of a ‘real estate agent – Sales and purchases’, and Form 21a is appropriate on its face for the appointment of a real estate agent – ‘Commercial and industrial sales, leasing and property management’.
It is also common ground between the parties that Mr Tao Hsu and Mrs Yueh Hsia Chou-Hsu agreed to make an offer for the purchase of the KFC at 118 Robina Town Centre, and that on 29 July 2010 Alan Hsu signed a cheque, drawn on his parents bank account, for which he was a signatory, for $70,000, payable to United Property Specialists Pty Ltd. The respondents in this appeal contend that that was a payment of a deposit of $70,000 (being 5%) required to accompany their offer to purchase the premises at 118 Robina Town Centre, and their case is that they signed a contract to buy that property, offering $1.48 million on 29 July 2010. Mr Chen’s affidavit agrees that the respondents attended his office on that date, but asserts that that was so they could sign a cheque to pay him the agreed ‘upfront’ fee of $70,000.00 on that date, and that no contract was ever signed. Instead, his affidavit contends that the only documents signed were the forms 21a and 22a, signed 3 days earlier, on 26 July 2010.
It is common ground between the parties that on 6 August 2010 Mr Chen visited Mrs Hsu at her home, and likewise on 13 August 2010. The material filed in this Tribunal describes her contending that on 6 August 2010 Mr Chen told her at her home that the vendor would not reduce his price, and she accordingly agreed to increase her offer by $30,000.00 to $1.51 million, and that Mr Chen produced the contracts she had signed earlier (on 29 July 2010, on her evidence), and he inserted an amended figure of $1.51 million in that offer, which she initialled. She says a similar event occurred on 13 August 2010, at her home, when she signed or initialled an increased offer, increased to $1.52 million. Finally, she says she agreed in a telephone conversation with him on 13 August 2010 that her offer would be increased to $1.57 million, but heard nothing further from him. She also said that on 12 August 2010 Mr Chen ‘called me and advised that he wanted to see me in person to further negotiate, as the seller did not agree with my second offer.’
The material before this Tribunal describes her saying that all of those conversations between herself and Mr Chen were conducted in Mandarin.
Mr Chen’s affidavit, advises in paragraph 6(b) that ‘Mr and Mrs Hsu have limited English capacity’ and that Alan Hsu is ‘fluent in the English language’, and acknowledges having had conversations with Mrs Hsu on the dates that she alleges, but says nothing about the language in which they spoke. His affidavit contentions are that his visits to her home on 6 August and 13 August 2010 were strictly to tell her that he had not heard from the owner of the Robina KFC, and he had not told her the owner had not agreed with either her first, second or any other offers, because none had ever been made by him on her behalf to the owner. His affidavit filed in support of his application denies having suggested initially to her to offer $1.48 million, and contends he had always advised an offer of $1.9 million. He contends that on 29 July 2010 he had informed Mrs Hsu that the owner was unlikely to accept a low offer of $1.4 million (which Mrs Hsu wanted him to make) because it was so much below what Mr Chen knew the owner to have paid for that property. His affidavit contends that all he had done was to write a letter to the owner of the Robina KFC, advising that ‘we have a potential buyer and for the owner to contact me’.
Mr Chen’s affidavit contends that the owner of the KFC premises at Robina did not contact him at all about the information that Mr Chen had a potential buyer available. His affidavit says that on their last meeting at her home (as described in paragraph 6(l)) of his affidavit he had told her that ‘as we have not heard from the owner of the Robina KFC we should look for another property.’
In paragraph 6(n) of that affidavit he writes ‘I deny that the payment was for the deposit for the purchase of the Robina KFC. This amount was buyer’s agent’s fee.’
The $70,000 referred to is the sum that Mrs Hsu says was paid as a deposit, paid as requested on 29 July 2010, for the offer to purchase that KFC property at Robina for $1.48 million dollars. It is appropriate at this stage to refer to some provisions of the Act, dealing with monies received by a licensed agent.
These appear in Chapter 12, Part 1 of the Act, that part including ss 374 to 390. The effect of s 470(1) of the Act is that it permits a person to make a claim against the fund established by s 408 where the person suffers financial loss because of the happening of, inter alia, the contravention by a relevant person of Chapter 12, Part 1 of the Act.
Section 378 and 379 (each of them within Chapter 12, Part 1) has the effect in combination that when a licensee receives ‘an amount for a transaction’, the licensee is obliged to pay that amount into a general trust account. Section 378(2) gives an inclusive definition of the expression ‘amount, received by a licensee for a transaction’ as including (s 378), ‘deposit and purchase monies for the transaction’. A document (a statement of witness) under the hand of Alan Hsu describes in paragraph 26 thereof how Mr Hsu had received a letter from Westpac on or about 27 August 2010, advising that the cheque for $70,000 ‘was deposited into the United Property Specialists P/L ATF The UPS Trust.’ That evidence established that the account in which the cheque was deposited was not a general trust account, as defined in the Act, and the applicants have not appealed the finding by the learned Member that ‘Mr Chen did not pay the deposit of $70,000.00 into his trust account as required by s379(1).’[1]
[1] Hsu and Ors v United Property Specialists Pty Ltd and Anor [2011] QCAT 634 at [15].
Likewise the Tribunal file includes a copy of a fax from Westpac dated 30 August 2010, addressed to ‘Heidi’ but concerning ‘Chou Yueh-hsia Hsu’ and referring to an enquiry regarding the account number appearing on the said cheque, and advising that the final credit destination of the funds was the ‘United Property Specialists P/L ATF The UPS Trust.’
Returning to the history of how this matter came to this Tribunal, it appears that the respondents became concerned about Mr Chen’s honesty, when they had difficulty contacting him, or locating him at all, after 13 August. On 16 August the respondents went to Mr Chen’s office, where they made contact with a Miss Lin, and after some conversations with her, went with her to her husband’s workplace on the Gold Coast highway, where she used a computer to print out, at the request of the respondents, a receipt purporting to come from the company United Property Specialists Pty Ltd. Alan Hsu noted that it referred to a ‘KFC 32659863’, and was a receipt for $70,000, and he wrote his name as a person from whom that money was received, and the date 29 July 2010. That receipt described, in the typed part, that the $70,000 was for a ‘Deposit Payment’.
Mr Chen’s affidavit describes Miss Lin as a part time employee who helped Mr Chen as a casual assistant to maintain contact with clients, and answered the phone when Mr Chen was overseas on business trips. At paragraph 6(m) of Mr Chan’s affidavit, he said that Miss Lin:
… did not know that money paid was the buyers agent fee, she could not ask me at short notice what the money was for as I was overseas at that time I was informed by Miss Lin and verily believed her the Respondents told Miss Lin that money was a deposit and pressured her to sign that receipt. I say that Miss Lin did not have the authority to sign that receipt. I normally use our letterhead to print a receipt. When Miss Lin finally made contact me after she had issued the receipt and after I informed her that the money was not for a deposit she informed me that both she and her husband were trying to get the receipt back from the Respondents.
On 17 August 2010, Alan Hsu attended went to the Office of Fair Trading at Southport, and later that day was contacted by Mr Geoff Price who undertook to make enquiries with the company and with Mr Chen, and ‘get back’ to Alan Hsu.
The respondents had made a claim against the fund maintained under the Act, which was received on 29 September 2010, and by the claims and recoveries branch of the relevant department on 30 September 2010. That claim asserted that on 29 July 2010 the respondents had paid $70,000 to Mr Chen of United Property Specialists Pty Ltd as a deposit on the purchase of the property at Robina, the contract did not proceed, and ‘Chen has refused to return our deposit’.
It goes on:
Chen claims the deposit we paid was for other services and not as a deposit on the purchase of a property. We believe he has forged signatures and various documents to support his story.
We have provided all details to PIO (Principal Investigation Officer no doubt) Geoff Price.
The matter is also under investigation by Queensland Police. Geoff Price will be able to provide copies of records.
The annexures to that application include what appears to be a copy of the receipt, a photocopy of the cheque, a copy of the entirety of the form 22a and the entirety of the form 21a, together with 2 pages of an annexure to that form 21a.
It is convenient to say something about the contents of those forms at this point. The form 22a, which in terms provides for the appointment of a Real Estate Agent for sales and purchases, describes as the client all 3 of the respondents, and appoints United Property Specialists Pty Ltd their agent for the purchase of a commercial property specified as being at 118 Robina Town Centre Drive, Robina. The form is filled in to describe it as a continuing appointment with a start date on 26 July 2010, ending on 26 December 2010, and there is a commission payable of $70,000. Annexure A to that form provides that:
[C]lause 2 of the REIQ terms and conditions do not apply; and that
The Client agrees to pay the Agent the Commission specified in the Appointment when the client signs the Appointment.
The Client agrees that the Commission paid pursuant to the Agreement is non refundable irrespective of whether a Contract of Sale is entered into by the Client.
That document (Form 22a) as expressed, links or connects an obligation by the client (i.e. the respondents) namely to pay the agent (i.e. United Property Specialists Pty Ltd) the $70,000 sum, to the service to be performed by the agent, namely the purchase of the specified property. What the agent is to do is not described in any way in the document, but its terms mean that the $70,000, when received by United Property Specialists Pty Ltd, or Mr Chen, is appropriately described as an amount received by a licensee for a transaction, and accordingly caught by the obligations provided for in ss 378 and 379 of the Act. In my opinion, this is so whether or not the amount is treated as a deposit for the transaction (as the respondents contend), or as a non refundable commission to be enjoyed by the agent, irrespective of whether a Contract of Sale is entered into by the Client, as provided for in annexure A of the agreement, and as contended in this application by the applicants.
The other document (Form 21a) is expressed more generally and appoints United Property Specialists Pty Ltd as the agent, with the licensee being named as ‘Steven Chen’ as the agent for the respondents, who are all named as the ‘client’, to perform the service of purchasing for $1,800,000 in the Brisbane, Gold Coast or Sunshine Coast areas, any kind of ‘blue chip fast food franchise restaurant’ or a commercial property. The agreement provides that the agent’s service ‘will [include] to find a commercial property’ and a retainer fee is provided for of $70,000. Those details appear at page 5 of the attachment to the form 21a, and on page 2 it is provided (in clause 3) that the Client must pay the Agent the non refundable Retainer Fee on the Date of the Agreement (purportedly, 26 July 2010), and that clause also provides that fee is payable ‘even where a Business in the Area for the Price and that meets the Special Requirements is not found or secured for the Client Agent.’ That agreement provides further (in clause 4) that the agent will act in the best interests of the Client, and will utilise the skills and experience of the Agent in locating suitable businesses for the consideration of the Client.

In those circumstances, I consider that the $70,000 falls within the definition of a ‘transaction fee’ in s 385(5) of the Act, which defines that term to mean ‘fees, charges, and commission payable for performance of the licensee’s services in a transaction.’ That section also provides that a ‘transaction fund’ means the amount held in a licensees trust account for the transaction, and in s 381(1) that a licensee may draw an amount from the licensee’s trust account to pay the licensee’s transaction fee only if authorised under that section. Section 385(2)(c) provides that the licensee is authorised ‘to draw the licensee’s transaction fee from the transaction fund when the amount… has been paid and when the transaction is finalised.’
Those provisions have the effect that if the $70,000 was paid into the agent’s trust account, as the Act requires in s 379, the agent (whether it was Mr Chen or the company) was only authorised to withdraw the agreed transaction fee of $70,000 when the transaction was finalised. That had not happened by the time the complaint was made to the Office of Fair Trading and clearly will never happen.
The effect of the provisions of the Act is that the agreement in form 22a required that the $70,000 be deposited into a general trust account, as defined in the Act, and further that, irrespective of the terms of the agreement contained in the document annexure A to that agreement, the licensee was entitled to withdraw a commission fee only when the transaction was finalised. Further, if the agreement in form 21a is relied on by Mr Chen and his company, the agreement in form 22a had the effect that the $70,000 was required to be paid into his general trust account, where it was accordingly caught by the provisions of the Act. That is, the licensee was not entitled to withdraw that money until the transaction was finalised. That never happened and could not happen.
Returning to the history of this matter, this Tribunal’s file record that both United Property Specialists Pty Ltd and Mr Chen were advised by the Office of Fair Trading of the claim made against the Claim Fund by the respondents. The company was notified by letter, dated 12 May 2011, and further notified by that letter that the company had 14 days within which to reply, or to attempt to settle the claim with the claimants. A copy of the claim and supporting documentation was forwarded to the company by that letter. Mr Chen replied by fax dated 25 May 2011, on behalf of the company, advising receipt of the claim and asserting that:
We were acting as a buyer’s agent for Hsu family at that time about 20 June 2010 and they appointment us as agent to find a suitable commercial investment property for them also they agreed to pay us retainer fee when our company started to work for them.
They didn’t give you full document about our agreement on Form 21a, they only gave you attachment from page 1 to page 2, original attachment is 5 pages, including they agreed to pay the retainer fee when we start working for them.
Accompanying that fax was a fax copy of pages 3, 4 and 5 of the attachment to the form 21a. I note that in fact those 3 pages said nothing about when the retainer fee was payable, whereas page 2 included clause 3, quoted above in paragraph [27] of these reasons, which provide for payment even where the agent achieves nothing for the client.
Nothing in the Act forbids an agreement of the type entered into in form 21a, and indeed that form suggests such agreements can be made. However, nothing in the Act permits an agreement in form 21a overriding or negating the effect of an agreement in form 22a, into which the applicants contend they entered with the respondents. It follows that the documents forwarded by Mr Chen by fax on 25 May 2011 really did not alter the position.
By letter dated 13 July 2011 the Office of Fair Trading referred the claim to this Tribunal for decision, as is required under s 476(3) of the Act. That referral was received by this Tribunal on 15 July 2011.
On 30 August 2011 a directions hearing was held, in which the applicants were ordered to file ‘2 copies in the Tribunal and give one copy to the Respondents of all material in which they intend to rely on at the hearing, on this matter.’ Those were to be filed and delivered by 20 September 2011; and a further directions hearing listed for 8 November 2011.
As it happened, neither of the applicants in this appeal, nor the respondents, attended this Tribunal for the directions hearing on 8 November 2011, as directed by the Tribunal. The file kept in this Tribunal records that, as a result of that non attendance, a further direction was issued on 15 November 2011, vacating the order made on 30 August 2011 for a hearing date on 10 February 2012, ordering that parties may file and give other submissions as to why the proceeding should not be decided on the material already filed, without any oral hearing, such submissions to be received by 25 November 2011, and ordering that if the parties fail to file material in accordance with the directions, the proceeding would be decided on the papers. No further submissions were received by this Tribunal, and on 30 November 2011, a hearing was conducted on the papers and orders were made. Reasons for those, and the formal orders, were published on 12 December 2011, and as earlier described, found their way to Mr Chen.
This Tribunal’s files record that a copy of that direction dated 15 November 2011 was sent to the respondents on 16 November 2011, and Mr Chen acknowledges receipt of it. In addition, this Tribunal’s records show that Mr Chen attended the directions hearing on 30 August 2011, by telephone, and Mr Alan Hsu attended in person. Alan Hsu has informed this Tribunal in a response to Mr Chen’s affidavit, (in a letter dated 22 April 2012 and received by the Tribunal on 30 April 2012) that at the directions hearing on 30 August 2011, ‘we were told that an oral hearing may take place if we ask but still depend on the situation of this case.’
Mr Chen’s affidavit says nothing about receipt of the directions made on 15 November 2011, and his affidavit merely says how (having received the directions notice dated 30 August 2011 he had realized that there would be a hearing on 10 February 2012, and that:
I believed that it is a full hearing where I will be present personally to argue my case and present my evidence. It is for this reason I did not respond to the directions notices believing that all that is required for me to do is to turn up at the hearing on 10/2/2012 and therefore I did not realize that the case was to be finally determined on the papers in the absence of the parties. I was expecting that the matter would be fought out in a full hearing on the 10/2/2012 where I would give evidence to rebut the Respondents’ allegations.[2]
[2] Mr Chen’s affidavit at paragraph 5.
The material relied on by the learned Member who conducted the hearing on the papers included copies of the statements made by Alan Hsu, Mrs Hsu and Mr Geoff Price of the Office of Fair Trading, those statements all being made in September 2010 on different dates, and all sworn as statutory declarations under the Justices Act 1886, and apparently prepared for a Police brief for a committal hearing. The 4 statements were taken by Police Officer Sergeant Teresa Thoi, (and in the case of each of the respondents with the assistance of an interpreter named Ming Sun, an accredited Mandarin interpreter), and those statements gave a consistent description from the respondents of their having met Mr Chen only once on Monday, 26 July 2010, for the purpose of the inspection of the premises at 118 Robina Town Centre Drive, Robina. There is also a consistent description of their having attended at Mr Chen’s office on 29 July 2010, and having offered to buy for $1.48 million the said premises, signing an offer (a contract to purchase) that same day for that purpose, and with Mr Hsu presenting the cheque for $70,000 as a 5% commission deposit. Mrs Hsu denied that either she or her husband or son gave permission to Mr Chen to treat the $70,000 deposit as a service or agent fee, and all respondents have contended their signatures on the forms 21a and 22a were forged. Further, both Alan Hsu and Mrs Hsu contend that at their request, conditions were endorsed in writing on the contract, namely there was to be a 60 day settlement period and the contract was subject to finance. Those 2 conditions, both deponents state, do not appear on the forms which Alan Hsu received from the Office of Fair Trading (i.e. the form 21a and form 22a, purportedly signed by the respondents on 26 July 2010), which said nothing of a 60 day settlement period, or of the contract being subject to finance.
This Tribunal’s file does not explain how copies of those statutory declarations came to be supplied to the Tribunal. What appears quite clearly is that Mr Chen was not given a copy of those at any time by the current respondents, and accordingly his decision not to attend the directions hearing on 8 November 2011, resulting in the directions made on 15 November 2011 advising of the possibility of a hearing on the papers alone, was made without any notice of the strength of the case made by the now respondents, in the papers filed in this Tribunal.
The reasons for judgment published on 12 December 2011 reveal that the learned Member who constituted the Tribunal clearly relied on the contents of those statutory declarations in making findings of fact. Those include the findings contained in the following parts of the judgment under appeal.
[4]…On 29 July 2010, Mr and Mrs Hsu visited Mr Chen, signed a contract to buy a commercial property at Robina and gave Mr Chen a cheque for $70,000 as a deposit.
[5]The contract did not proceed. Mr and Mrs Hsu asked Mr Chen for the return of the deposit. Mr Chen did not return the deposit so Alan made a complaint to the Office of Fair Trading. In August 2010, Mr Chen provided the Office of Fair Trading with copies of PAMD Forms 22a and 21a showing an agreement in which Mr and Mrs Hsu appointed Mr Chen as a buyer’s agent for a non-refundable fee of $70,000.
[6]Mr and Mrs Hsu have provided statements asserting that they had never seen these documents before the Office of Fair Trading gave them copies and that the signatures on the forms are not their signatures.
[7]Mr and Mrs Hsu made a claim on the statutory claim fund for $70,000. Mr Chen and United Property Specialists Pty Ltd have received notice of the claim.
[8]The tribunal is required to determine whether there should be a payment from the fund. Section 488 of the Property Agents and Motor Dealers Act 2000 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 financial loss because of the event.
[9]The Tribunal must also take into account any amount the claimant might reasonably have received or recovered if not for the claimant’s neglect or default[3] and any amount ordered to be paid to the claimant as compensation to the claimant under sections 530A, 572D or 592A of PAMDA[4].
[10]Finally in allowing a claim the Tribunal must decide the amount of the claimant’s financial loss and name the person who is liable for the loss[5].
[3] s 488(2) of the Act.
[4] s 488(3)(a) of the Act.
[5] s 488(3)(b) and (c) of the Act.
The event
[11]I have considered the sworn statements of Mr and Mrs Hsu and Alan. They all assert that the money was paid by way of a deposit; that Mr and Mrs Hsu did not sign the Forms 22a and 21a; and that Mr and Mrs Hsu did not appoint Mr Chen as a buyer’s agent.
[12]Mr Chen has not provided a sworn statement. The only evidence before the tribunal is a facsimile from United Property Specialists Pty Ltd dated 25 May 2011. I also note, from a sworn statement by Mr Price, principal investigations officer for the Office of Fair Trading that:
a)Mr Price made numerous attempts to speak to Mr Chen between 16 and 24 August 2010.
b)On 24 August 2010, Mr Chen offered to fax the Forms 22a and 21a to Mr Price.
c)On 25 August 2010, Mr Price emailed Mr Chen to inform him that he (Mr Price) had not received the documents. On the same day, Mr Price attended Mr Chen’s business address to find it was a serviced office. Mr Price emailed Mr Chen again.
d)The Form 22a is not complete.
e)Mr Price considered the fee charged excessive and the fact that it was payable whether or not the agent sourced a property was unusual.
f)Mr Price thought it was unusual that Mr and Mrs Hsu had signed two forms.
[13]Mr and Mrs Hsu’s signature on the forms has been witnessed but Mr Chen has not produced a statement from the witness.
[14]Given that: Mr and Mrs Hsu were not given a copy of the appointment at the time they signed allegedly it; the unusual terms of the alleged authority; that Mr and Mrs Hsu and Alan have all sworn that Mr and Mrs Hsu did not sign the forms; and the absence of a statement from the witness to Mr and Mrs Hsu’s signatures, I prefer the evidence of Mr and Mrs Hsu and Alan and I find that the $70,000 paid to Mr Chen was paid by way of a deposit.
[15]An offence under Chapter 12 Part 1 of PAMDA is an “event” under s 470(1). Mr Chen did not pay the deposit of $70,000 into his trust account as required by s 379(1). Therefore, I find that United Property Specialists Pty Ltd and Mr Chen have contravened a provision of Chapter 12 part 1 of PAMDA.
[16]I am satisfied that the failure to pay the deposit of $70,000 into trust is an “event” within s470(1).
The applicants’ grounds of appeal read as follows:
1.     The learned Member made an error of law in deciding to determine this application on the papers in view of the severity of the allegations;
2.     The learned Member made an error of law and fact in finding that the respondents did not sign the PAMD Form 21a and PAMD Form 22a;
3.     The learned Member made an error in law and fact in finding that the payment of the sum of $70,000 was a deposit and not fees paid out of the PAMD Form 21a PAMD Form 22a;
4.     Giving the severity of the allegations the learned Member erred in not directing the appellant to provide rebuttal materials including affidavits and witness statements.
5.     As a result of the above the appellants were denied procedural fairness and natural justice.
The written submissions filed 22 March 2012, presented by Chan Lawyers present arguments in support of those grounds of appeal, and contend that the Member ought to have adjourned the hearing, so that ‘witnesses can be robustly cross examined and tested. This is particularly so where there were no sworn statements filed on behalf of the Appellants.’[6]
[6] Applicants submissions, part D(b).
Regarding ground 1 of the grounds of appeal, namely that the learned Member erred in law in deciding to determine the matter on the papers, ‘in view of the severity of the allegations’, the applicants complain of an absence of procedural fairness, but the ground of appeal ignores that the learned Member had no reason to assume that the (now) respondents, the then applicants, had failed to comply with the requirement that they deliver to the present applicants the material on which the Hsu clients would rely. I note that the letter by Alan Hsu to this Tribunal dated 22 April 2012, responding to Mr Chen’s affidavit, remarks ‘we already provided our statements which included the statement from Geoff Price who is the Principal Investigations Officer.’[7]
[7] Paragraph 1 of that letter.
I understand that statement to mean that Mr Hsu had provided this Tribunal with the statements of himself, his mother, father, and Mr Price, upon which the Tribunal Member certainly placed some reliance. Mr Chen’s ignorance of the existence of those statements, coupled with the fact that the Member clearly relied on them, in making important findings adverse to Mr Chen and the company, may have worked a procedural unfairness for the present applicants, but I do not consider they disclose an error of law by the Member.
As to ground of appeal 2, complaining of a finding of error in law and fact in the finding that the ‘respondents did not sign the PAMD Form 21a and PAMD Form 22a’, the same applies. The material before the Member contained a specific denial by the relevant deponents of having signed those 2 forms, or the occasion for their signing having ever arisen, and nothing in response. Likewise ground 3 complains of the Member relying on sworn assertions of which in fact Mr Chen was unaware, but that ignorance arose from Mr Chen’s deliberate non attendance and his not responding to the directions sent to him dated 15 November 2011. Had he responded, it is possible he may have disclosed his ignorance of the existence of the statements upon which the Member came to rely. To that extent, he is the author of his own misfortune.
The same applies to the complaint, effectively made, that the Member erred in law and fact in not finding the agreements put forward by the applicants were genuine. The form 22a results in those applicants being required to treat the $70,000 as subject to the provisions of section 378 and 379 of the Act, and to pay those into a general trust account. On a rehearing this Tribunal, even if finding that the $70,000 was paid, as claimed by the applicants, as a fee, would still be obliged to find that Mr Chen had not paid that deposit into his general trust account as required by s 379(1), and that therefore both Mr Chen and United Property Specialists Pty Ltd had contravened a provision of Chapter 12, Part 1 of the Act. The ultimate result would be that on any rehearing in which Mr Chen’s affidavit was preferred to the claims of the respondents, the same 4 orders would ultimately be appropriate, as have already been made.
Those 4 orders were:
1. Pursuant to s 488 of the Property Agents and Motor Dealers Act 2000, the claim is allowed in the sum of $70,000.
2. Pursuant to s 489 of the Property Agents and Motor Dealers Act 2000, at the expiration of the appeal period, the Chief Executive must pay to Mr and Mrs Hsu the sum of $70,000 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 s488(3)(c) of the Property Agents and Motor Dealers Act 2000, United Property Specialists Pty Ltd and Mr Steven Chen are named as the persons responsible for the financial loss of Mr and Mrs Hsu.
4. Upon payment from the Claim Fund and pursuant to sections 490 and 530 of the Property Agents and Motor Dealers Act 2000, United Property Specialists Pty Ltd and Mr Steven Chen are liable (and if more than one, jointly and severally) to reimburse the Claim Fund by paying the sum of $70,000 to the Chief Executive, Department of Justice and Attorney General.
For that reason, I am not persuaded that it is appropriate to consider that the applicants would obtain any actual substantive relief, if a rehearing was ordered. There is another matter that is relevant, on that issue, and that is that the Chief Executive has paid the $70,000 to Mr and Mrs Hsu from the Claim Fund, in accordance with order 2 made on 12 December 2011. An affidavit of Kathryn Mary Chan, filed in this Tribunal on 22 March 2012 by the applicants, annexes correspondence passing between Chan Lawyers and the Office of Fair Trading, and includes a letter dated 13 March 2012 from that Office, advising that ‘after the allowable 28 day period in which to lodge appeals expired and confirmation from QCAT that no appeals had been lodged at that time, pursuant to s489 of the Act the Claimants were paid the sum of $70,000 from the Claim Fund.’ (I interpret the contents of that letter to mean that sometime after 9 January 2012 that $70,000 was paid to the claimants, the now respondents).

Since the applicants have submitted written arguments prepared by solicitors, I consider it appropriate to grant their application for leave to be represented in the proceedings, and likewise in the circumstances to grant their application for an extension of time within which to seek leave to appeal. However because the ultimate result of a contested oral hearing would be that the same orders were made as were published on 12 December 2011, I would refuse leave to appeal. Accordingly I order:
1.The application for leave to be represented filed 27 January 2012 is granted.
2.The application for an extension of time filed 27 January 2012 is granted.
3.The application for leave to appeal is refused.