Crozier v Key to Australia Pty Ltd

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Crozier & Anor v Key to Australia Pty Ltd & Anor [2023] QCAT 18

PARTIES:

paul trevor Crozier
belinda jane crozier

(applicants)

v

key to australia pty ltd
graham mark scarrott

(respondents)

APPLICATION NO/S:

OCL071-21

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

5 January 2023

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Deane

ORDERS:

1. Direction 1 made 16 March 2022 is vacated.

2. Direction 7 made 16 March 2022 is vacated.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – Claim fund under Agents Financial Administration Act 2014 (Qld) – whether issues can be decided as preliminary questions of law

Agents Financial Administration Act 2014 (Qld), s 77,

s 78, s 105

Craig v Ravenshoe Community Centre Inc & Ors [2013] QCATA 177
Nowlan v Medical Board of Australia (No 1) [2019] QCAT 413

APPEARANCES & REPRESENTATION:

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

REASONS FOR DECISION

This is one of several applications, which have been referred to the Tribunal involving Key to Australia Pty Ltd (KTA) and Graham Mark Scarrott (collectively the Respondents). It is not disputed that the Respondents held real estate agent licenses issued in Queensland during the relevant period.
The Croziers made a claim against the fund established under the Agents Financial Administration Act 2014 (Qld) (the Act) (the Fund).[1] The claim relates to conduct of the Respondents. The Chief Executive referred the Croziers’ claim to the Tribunal for determination.[2]
[1]Agents Financial Administration Act 2014 (Qld), s 78 (the Act).
[2]Referral of a matter (non-disciplinary) filed 31 August 2021; the Act, s 77(a)(i).
The Tribunal may decide to allow a claim wholly or partly or reject a claim.[3] It may decide to allow a claim only if satisfied on the balance of probabilities that the person may make the claim under division 2.[4] If the claim is allowed the Tribunal is to decide the amount of the claimant’s financial loss and name the person who is liable for the loss.[5]
[3]Ibid, s 105(1).
[4]Ibid, s 105(2).
[5]Ibid, s 105(3).
The Referral contains a report to creditors, which shows that Mr Scarrott became bankrupt on 15 April 2021.
An online Australian Securities & Investments Commission (ASIC) search shows that KTA was de-registered on 10 July 2022 and therefore no longer exists as a legal entity unless it is re-registered.
The Chief Executive raised various issues in the Referral.
Although directions for the Croziers[6] and the Respondents[7] to file statements of evidence were made no statements have been filed.
[6]Direction 4 made 9 September 2021.
[7]Direction 4 made 17 September 2021.
On 16 March 2022, the Tribunal directed that the following issues be determined by the Tribunal as preliminary questions of law:
(a)Whether monies paid to the Respondents for development services were monies entrusted to the Respondents on behalf of the Applicants or whether they became the Respondents property to do with as they liked (as referred to in paragraph 26 of the Chief Executive, Department of Justice and Attorney General (Office of Fair Trading) submissions dated 26 August 2021, which were attached to the referral of a matter to the Tribunal).
(b)Whether the Respondents failure to refund the applicant as promised is a representation capable of being relied on for the purpose of a section 212 breach, or is a breach of an agreed contractual provision (as referred to in paragraph 33 of the Chief Executive, Department of Justice and Attorney General (Office of Fair Trading) submissions dated 26 August 2021, which were attached to the referral of a matter to the Tribunal).
The parties and the Chief Executive were directed to file submissions to allow the issues to be determined on the papers. Some submissions have been received.[8]
[8]Chief Executive’s submissions filed 6 July 2022; no submissions were received from the Croziers, Key to Australia Pty Ltd or Mr Scarrott.
I now consider these matters only.
The purpose of determining preliminary questions of law is to shorten the proceedings and minimise costs to the parties.
As has been observed in the Appeal Tribunal[9]
Briefly stated, the distinction is between ‘pure’ questions of law (e.g., what is the correct test to be applied in deciding a matter?); questions of ‘pure’ fact (what actually took place between the parties?); and mixed questions – e.g., do facts, as found, satisfy legal tests?
[9]Craig v Ravenshoe Community Centre Inc & Ors [2013] QCATA 177, [8].
In Nowlan v Medical Board of Australia (No 1) the then Deputy President in refusing an application for a preliminary determination of a point of law stated:[10]
It seems to me that the question of law cannot be properly divorced from its factual context and, if the Tribunal was to proceed in the way contended for by the applicant, it is unlikely to be able to answer the question of law in the absence of the full material that is to provide that factual context.
[10][2019] QCAT 413, [7].
Having reviewed the material filed and considered the submissions, regrettably, I do not consider that these issues can be decided in any meaningful way as preliminary questions of law. In my view they involve mixed questions of fact and law.
I have considered whether I could decide the questions as preliminary issues based on agreed or undisputed facts.
The Respondents submitted a response to the Chief Executive, which is included in the Referral. It is generic. It does not address the facts of each claim against the Fund. It does not make specific admissions. The Referral notes that Mr Scarrott has been successfully prosecuted for events related to these claims, however there is no specific evidence before me about the charges and the findings of fact or admissions of specific facts in those proceedings upon which I might rely. I do not consider that these issues can be decided as preliminary issues rather than questions of law. Findings of fact are required to decide these questions. It is not appropriate to make findings of fact prior to a final hearing.
Unfortunately, this means that rather than shortening the proceedings it has delayed their resolution.

Were monies paid to the Respondents for development services monies entrusted to the Respondents on behalf of the Applicants or did they become the Respondents property to do with as they liked?

I do not consider that this issue can be decided as a preliminary question of law for the reasons set out earlier.
In my view it requires findings of fact to be made and involves mixed questions of fact and law.

Was the Respondents failure to refund the Applicant as promised a representation capable of being relied on for the purpose of a section 212 breach or was it a breach of an agreed contractual provision?

I do not consider that this issue can be decided as a preliminary question of law for the reasons set out earlier.
In my view it requires findings of fact to be made and involves mixed questions of fact and law.

In the matter of Crozier v Key to Australia Pty Ltd, the Queensland Civil and Administrative Tribunal (QCAT) was tasked with determining whether certain funds held by real estate agents Key to Australia Pty Ltd (KTA) and Graham Mark Scarrott were entrusted to them on behalf of the Croziers, or if the funds became the property of KTA and Scarrott. The Croziers had lodged a claim against the fund established under the Agents Financial Administration Act 2014 (Qld) (the Act) (the Fund). The Chief Executive of the Department of Justice and Attorney General (Office of Fair Trading) referred the Croziers' claim to the Tribunal for determination. The QCAT had the authority to allow or reject the claim, determine the amount of financial loss, and name the liable party. The Tribunal was required to decide if the funds paid to KTA and Scarrott were entrusted to them or became their property, and whether the failure to refund the Croziers constituted a breach of an agreement or a reliance on a representation under section 212 of the Act.

The Tribunal considered whether the issues raised by the Chief Executive could be decided as preliminary questions of law, which would potentially shorten the proceedings and reduce costs. However, the Tribunal found that the issues involved mixed questions of fact and law, requiring findings of fact to be made before a conclusion could be reached. The Tribunal determined that it was not appropriate to make findings of fact prior to a final hearing, and thus the issues could not be decided as preliminary questions of law. This meant that the resolution of the matter had been delayed. Ultimately, the Tribunal decided that the issues required findings of fact to be made and could not be resolved as preliminary questions of law.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established