Christmas v AP Premier Properties Pty Ltd - [2015] QCAT 527

CITATION:

Christmas v AP Premier Properties Pty Ltd & Ors [2015] QCAT 527

PARTIES:

Mark Richard Christmas
(Applicant)

AP Premier Properties Pty Ltd t/as Ray White Graceville
(First Respondent)

The Chief Executive, Office of Fair Trading, Department of Justice & Attorney-General
(Second Respondent)

Anthony Paul Poulsen
(Third Respondent)

Maria Peirce
(Fourth Respondent)

APPLICATION NUMBER:

GAR110-15

MATTER TYPE:

General administrative review matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Hughes

DELIVERED ON:

21 December 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The application for extension of time to file the Application to review a decision is dismissed on the ground that it is unnecessary because the original Application to review a decision is deemed to have been made within time.

2. The Decision of the Chief Executive, Office of Fair Trading, Department of Justice & Attorney-General dated 9 April 2015 that the claim against the Claim Fund lodged by Max Richard Christmas is invalid is confirmed.

CATCHWORDS:

CLAIM FUND – PROPERTY AGENT – STATUTORY TIME LIMIT – whether claim brought within time - where property was flood prone – where allegation that Agent misrepresented flood level – where claim had to be brought within the earlier of one year of becoming aware of suffering financial loss because of misrepresentations or three years after event that caused loss – where earlier date was three years from settlement of property for artificially inflated purchase price – where claim brought over four years after this – whether Tribunal can extend time - where applicant had no right to claim against statutory fund –– where Tribunal cannot extend time that is essential element of a statutory right - where enabling legislation imposes mandatory time limit as condition to right to apply for compensation

Acts Interpretation Act 1954, s 38
Agents Financial Administration Act 2014, s 155
Property Agents and Motor Dealers Act 2000, ss 470, 472, 574
Queensland Civil and Administrative Tribunal Act, ss 20, 33, 61

Hewitt and Hosking v. The Property Agents and Motor Dealers Tribunal and John Gallagher [2003] QSC 101
Phipps v. Ross Stephens [2003] CCT W043-02
Queensland Building and Construction Commission v. Watkins [2014] QCAT 172
Watkins v. Queensland Building Services Authority [2013] QCAT 535

APPEARANCES and REPRESENTATION (if any):

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

REASONS FOR DECISION

What is this application about?

Mr Mark Christmas is one of the many unfortunate victims of the January 2011 floods. The floods severely damaged his Graceville residence, having risen to just below roof level.[1]
[1]Mr Christmas provided two quotes indicating repairs of more than $200,000.00: Quote of John Galvin dated 31 May 2011 for $222,100.00 and Quote of PriceRight House Raising and Restumping dated 1 June 2011 for $208,946.00.
Some four years later on 23 February 2015, Mr Christmas claimed against the Claim Fund under the Agents Financial Administration Act 2014 (Qld) (Agents Act).[2] Mr…

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.

Keep reading for free

Create a free CaseChat account to read Christmas v AP Premier Properties Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2015] QCAT 527
Decision Date: 21 December 2015

CaseChat Overview and Summary

The applicant sought to bring a claim against the Claim Fund, alleging that a property agent misrepresented the flood risk level of a property he purchased. The agent was found to have provided false information regarding the property’s flood risk, leading to an artificially inflated purchase price. The applicant argued that he became aware of the misrepresentation over four years after the settlement of the property purchase, and therefore sought an extension of time to bring his claim. The court was required to determine whether the claim was brought within the statutory time limit and whether the Tribunal had the authority to extend the time limit.

The court found that the applicant’s claim had to be brought within the earlier of one year of becoming aware of suffering financial loss because of misrepresentations or three years after the event that caused the loss. In this case, the earlier date was three years from the settlement of the property for an artificially inflated purchase price. Since the applicant brought his claim over four years after this, the court found that the claim was not brought within the statutory time limit. The court also found that the Tribunal did not have the authority to extend the time limit because it was an essential element of the statutory right to apply for compensation. The enabling legislation imposed a mandatory time limit as a condition to the right to apply for compensation.

The court dismissed the applicant’s application for an extension of time to file the Application to review a decision, finding that it was unnecessary because the original Application to review a decision was deemed to have been made within time. The court also confirmed the Decision of the Chief Executive, Office of Fair Trading, Department of Justice & Attorney-General dated 9 April 2015 that the claim against the Claim Fund lodged by the applicant was invalid. This was because the applicant had no right to claim against the statutory fund, and the enabling legislation imposed a mandatory time limit as a condition to the right to apply for compensation.

Orders

Orders of the court

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.