David Hambleton as joint and several liquidator of Sky 5 Pty Ltd (in liquidation) v The Chief Executive, Department of Justice and Attorney-General & Tuxford - [2014] QCAT 64

CITATION:

David Hambleton as joint and several liquidator of Sky 5 Pty Ltd (in liquidation) v The Chief Executive, Department of Justice and Attorney-General & Tuxford [2014] QCAT 64

PARTIES:	David Hambleton as joint and several liquidator of Sky 5 Pty Ltd (in liquidation) (Applicant)
v
The Chief Executive, Department of Justice and Attorney-General (First Respondent) Stan Tuxford (Second Respondent)

APPLICATION NUMBER:

GAR243-13

MATTER TYPE:

General administrative review matters

HEARING DATE:

29 November 2013

HEARD AT:

Brisbane

DECISION OF:

Judicial Member Brabazon, QC

DELIVERED ON:

31 January 2014

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The Chief Executive, Department of Justice & Attorney General, is a proper respondent to Mr Hambleton’s application, and

2. The applicant is able to proceed against the Chief Executive and Mr Tuxford, having regard to s 511 of the Property Agents and Motor Dealers Act 2000.

CATCHWORDS:

PROPERTY AGENTS AND MOTOR DEALERS – role of Chief Executive – the Claim Fund – parties to proceedings – notice of claim to a respondent – notice given out of time

Property Agents and Motor Dealers Act 2000 (Qld) ss 408, 409, 473, 474, 481, 473, 488, 512, 527, 530
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 61

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Mr R Dickson for the Applicant

RESPONDENT:

Mr J Horton for the First Respondent

REASONS FOR DECISION

On 4 September 2013, a QCAT Member, Mr D Paratz, directed that two questions of law in these proceedings be determined at an oral hearing.
That hearing took place on 29 November 2013. These were the questions of law:
1.Is the Chief Executive a proper respondent to this application?
2.Is the applicant, Mr David Hambleton, able to proceed against the Chief Executive and/or Mr Tuxford, having regard to s 511 of the Property Agents and Motor Dealers Act 2000 (PAMDA)?
It is helpful to understand the background to these applications. Attached to these reasons is the judgment in APL456-11 – Hambleton & McDonald v Tuxford. Though the details vary, it is similar to eight other judgments. All deal with losses inflicted on purchasers of blocks in a land development because Mr Tuxford, a real estate agent, stole (or helped others steal) their deposits.
A Claim Fund has been established according to the PAMDA legislation - see ss 408 - 409. Mr McDonald has been paid $131,856.11 from the Fund. That was paid directly to him, rather than to Mr Hambleton, as the liquidator of the company Sky 5 Pty Ltd. Mr Hambleton described the payment as “a dividend”. Claims on the Fund are classified as “minor claims”, or “claims other than minor claims”. The Chief Executive decides minor claims against the Fund – s 481. Other claims are allowed or rejected by this Tribunal – if a claimant suffers financial loss, the Tribunal can decide the amount of that loss, and name the person liable for that loss. See s 488.
The judgment in Mr McDonald’s case is an example of that process. The QCAT…

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.

Continue reading David Hambleton as joint and several liquidator of Sky 5 Pty...

Details

AGLC: David Hambleton as joint and several liquidator of Sky 5 Pty Ltd (in liquidation) v The Chief Executive, Department of Justice and Attorney-General & Tuxford [2014] QCAT 64
Case: [2014] QCAT 64
Decision Date

CaseChat Overview and Summary

This case involved David Hambleton as the joint and several liquidator of Sky 5 Pty Ltd in liquidation, who initiated proceedings against the Chief Executive, Department of Justice and Attorney-General, and Stan Tuxford. The matter was brought before the Queensland Civil and Administrative Tribunal (QCAT) for a general administrative review concerning the Property Agents and Motor Dealers Act 2000. The primary issues for the tribunal to resolve were whether the Chief Executive was a proper respondent to the application and whether the applicant could proceed against both the Chief Executive and Tuxford under section 511 of the Act. The hearing took place on 29 November 2013, and the tribunal delivered its decision on 31 January 2014.

The tribunal had to consider whether the Chief Executive, as defined by the Property Agents and Motor Dealers Act 2000, was a proper respondent to the application. The tribunal concluded that the Chief Executive was indeed a proper respondent, as the Act allows the Chief Executive to be a party to proceedings. The tribunal also addressed the issue of whether the applicant could proceed against both the Chief Executive and Tuxford. The applicant had lodged new claims beyond the statutory time limit, but he had complied with a statutory notice to seek an extension of time. Although the applicant failed to include Tuxford as a party to the application, the tribunal found that this omission should be overlooked due to Tuxford's lack of active involvement in the litigation and the procedural nature of the step. The tribunal further held that the general power of QCAT to extend or shorten a time limit should be applied, allowing the time for giving the notice to be extended to 5 September 2013.

The tribunal made two orders in this case. First, it determined that the Chief Executive was a proper respondent to the application. Second, it held that the applicant could proceed against both the Chief Executive and Tuxford, considering the provisions of section 511 of the Property Agents and Motor Dealers Act 2000. These findings allowed the applicant to continue with his claims against the Fund and seek further compensation from the parties involved.

Orders