Craig v Derek Bailey Realty Pty Ltd
[2010] QCAT 654
•21 December 2010
| CITATION: | Craig v Derek Bailey Realty Pty Ltd [2010] QCAT 654 |
| PARTIES: | Mr Peter Craig and Mrs Gayee-Maree Craig |
| v | |
| Derek Bailey Realty Pty Ltd and Mr Derek William Bailey |
| APPLICATION NUMBER: | OCL123-10 |
| MATTER TYPE: | Other civil dispute matters |
| HEARING DATE: | 21 December 2010 |
| HEARD AT: | Decision on the papers |
| DECISION OF: | Ms Peta Stilgoe |
| DELIVERED ON: | 21 December 2010 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | The application is dismissed. |
| CATCHWORDS : | REAL ESTATE AGENTS – where deposit not paid into trust account of agent named on contract – where contract for purchase of proposed lot did not settle – whether loss of deposit occasioned by an event mentioned in s470(1) of PAMDA – whether conversion of the deposit Property Agents and Motor Dealers Act 2000 subsections 470(1), 573, 573A, 573B, 573C, 574 |
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
On 3 September 2003, Mr and Mrs Craig signed a contract for the purchase of proposed Lot 4 – 38 Geoff Walter Drive at Arundel. The contract showed Derek Bailey Realty Pty Ltd as the selling agent and that Mr Bailey would receive commission on the sale. The selling agent’s disclosure was signed by Mr Bailey. The deposit was expressed to be $29,500.
On 4 September 2003, Mr Craig deposited $29,000 into the account of Ashmore Heights Realty, in purported payment of the deposit. Mr and Mrs Craig received a trust account receipt from Ashmore Heights Realty dated 4 September 2003 showing a deposit for Lot 3 - 38 Geoff Walter Drive. The receipt was signed by a Mr Vincent
The proposed development was finalised in 2008. At that point, Mr and Mrs Craig discovered that the vendors had no knowledge of the contract with the Craigs, no knowledge of the deposit and they had sold the property to another purchaser,
Mr and Mrs Craig have made a claim on the fund for the refund of the deposit of $29,000, plus compensation for $6000 in interest costs and $3000 for a loan establishment fee and solicitors’ costs.
The Office of Fair Trading investigator suggests that the respondents may have failed to show “due diligence in relation to the sale of the property”. That is not the test for a successful recovery from the Fund. The Tribunal may allow a claim for compensation only if it is satisfied, on the balance of probabilities[1]:
a That an event mentioned in section 470(1) of the Property Agents and Motor Dealers Act 2000 (“PAMDA”) happened.
b The claimant suffered financial loss because of the happening of the event.
[1] Section 488 Property Agents and Motor Dealers Act 2000 (“PAMDA”)
The potentially relevant events are:
a Conversion of trust account funds: section 573 PAMDA;
b Misleading conduct: section 573A PAMDA;
c Unconscionable conduct: section 573B PAMDA;
d False representations and other misleading conduct: section 573C PAMDA;
e False representation about property: section 574 PAMDA.
If there was a conversion of the $29,000 trust account funds, it was a conversion by Ashmore Heights Realty. No one suggests, and there is no evidence to support a finding, that the respondents converted that sum or that there was a connection between that entity and the respondents so that the respondents would be liable for conversion of the deposit.
There is very little evidence about the dealings between Mr and Mrs Craig and the respondents. In his statement dated 26 February 2010, Mr Craig gives no details of the conversations with Mr Bailey at or around the time the contract was signed and deposit paid. In fact, the evidence raises more questions than it answers:
aWhy did Mr and Mrs Craig pay the deposit to Ashmore Heights Realty and not Derek Bailey Realty Pty Ltd, the named agent?
bWhat do Mr and Mrs Craig say is the involvement of Ashmore Heights Realty and Shane Vincent?
cWhy did they deposit $29,000 and not $29,500, the amount nominated on the contract?
dAs the contract was subject to finance, which finance was to be obtained within 21 days of execution of the contract, where is the evidence of finance being obtained and the contract going unconditional?
eMr Craig points out that he sent a facsimile to Mr Bailey on 29 August 2003 inquiring about the finishes of the proposed lot. Interestingly, the response came from Mr Vincent and not from Mr Bailey.
In his response to the claim, Mr Bailey says:
aHe had previously sold property to Mr and Mrs Craig, including a property owned by Shane Vincent. Mr Vincent was well known to Mr and Mrs Craig;
bMr Vincent shared an office with a finance company named QSA. I note that the financier noted on the 2003 contract is “Quantum Strategies P/L”.
cHe was not aware that the deposit had been paid.
dMr and Mrs Craig signed a contract on 25 February 2005 for the same property, with a different purchase price, which recorded that a deposit of $29,500 had already been paid. They were to receive a cash rebate of $95,000 at settlement. The agent on this contract is expressed to be Derek Bailey Realty but Mr Bailey has no recollection of the contract. A copy of that contract has been provided to the Tribunal.
Mr Bailey’s assertions are unanswered in the material.
I find that the Tribunal has been provided with no evidence that the respondents engaged in misleading conduct, unconscionable conduct or false representations. Further, I am not satisfied, on the balance of probabilities, that the loss suffered by Mr and Mrs Craig was caused by any actions by the respondents. While I am not convinced of Mr Bailey’s account of events, the unexplained contract of 2005 indicates that any nexus between the payment of the deposit in 2003 and the loss has been severed.
The application should fail.
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