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

1. 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.

2. 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)?

3. 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.

4. 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.

5. The judgment in Mr McDonald’s case is an example of that process.  The QCAT order of 28 May 2012 says this: ‘Pursuant to s 530 of PAMDA, the Chief Executive --- is to pay Mr Angus John McDonald the sum of $131,856.11’.

6. Mr Hambleton is unhappy with that result.  He wishes to make further claims against the Fund.  His general claim details set out at length his reasons for receiving more from the Fund.  They are briefly described in paragraph 10 of that document – ‘the purpose of these new claims is to seek payment of the dividends paid to the deposit payers from the fund’.

7. So, is the Chief Executive a proper respondent to his application to proceed further?  Mr Horton, for the Chief Executive, points to the PAMDA legislation in support of his submission that the Chief Executive is not a proper respondent.

8. Section 473 says that a person may make a claim against the Fund. The claim must be made to the Chief Executive in the approved form. Section 474 says the Chief Executive must give notice of such a claim to the person whose actions are alleged to have given rise to the claim – Mr Tuxford in this case. That person is then described as “the respondent”. A respondent and a claimant may settle a claim and advise the Chief Executive – s 474(5).

9. The Chief Executive may make submissions, whether or not a party to the proceedings – s 512(2) and (3).

10. If a claim is allowed against a respondent, and the respondent does not pay it, the Chief Executive may apply to QCAT, for an order that the respondent reimburse the Fund – s 527.

11. It is submitted here that the Chief Executive has never been a proper party to this proceeding.

12. It is hard to see how that submission could be accepted. Section 512 itself says that the Chief Executive may be a party to a proceeding. A controversial claim against the fund could properly have the Chief Executive as a party to it.

13. In my opinion, the Chief Executive is a proper respondent to this application.

Time

1. Is Mr Hambleton able to proceed against the Chief Executive, having regard to s 511 of PAMDA?

2. Mr Hambleton lodged his new claims on 8 April 2013. That was out of time, as they were lodged more than one year after the purchasers became aware of their losses, on 23 May 2008, and more than three years after the events that caused the financial loss. He was given a statutory notice to that effect – s 473(5) of PAMDA - form 52 – “Out of Time Notice”.

3. He was advised by letter of 28 May 2013, that he could ask for an extension by filing a form 42 application.  In that case, he would have 14 days after receipt of the 28 May 2013 letter to lodge the application with QCAT.

4. Mr Hambleton complied with that notice – he returned his application within 14 days.  However, it is said against him that he made a fatal mistake – he did not include Mr Tuxford as a party to the application.  He did include the Chief Executive as a party.

5. It is submitted that the mistake meant that no effective application for an extension of time was made.  (As it happened, Mr Tuxford was made a party by the QCAT decision of 4 September 2013 - see Mr Paratz’s order).

6. Therefore it is submitted against Mr Hambleton, that no effective application for an extension of time was made within the 14 day limit.  That being so, it is said, the application is time barred, with QCAT having no power to extend time further.

7. The reality is that Mr Tuxford had made no contact with anybody, at any time since taking the deposits.  That is, there is no reason to think that any response from him would be made, after some five years had passed.  On the other hand, the Chief Executive, and that office, have played an active role in the litigation.

8. There are two considerations that lead to the conclusion that any failure to include Mr Tuxford in the application should be overlooked.  First, Mr Tuxford has not taken any active role since the claims against him were first made.  It is clear that he has no prospect of being able to pay any of the claims.

9. Secondly, this is a procedural step in the proceedings. If the application to extend time is allowed, then s 474 of PAMDA will take effect – the Chief Executive will have to try to give notice of the claims to Mr Tuxford. See s 474. When that is done, Mr Tuxford will be no worse off.

10. So far, the assumption in this judgment has been that the above time limits found in PAMDA are effective.  That is, that they are the results of the “modifying” provisions about time, found in PAMDA.

11. Mr Horton submitted that the general power of QCAT to extend or shorten a time limit, found in s 61 of the QCAT Act, was to be disregarded, in favour of the PAMDA provisions about time.

12. In my opinion, Mr Horton’s submissions to that effect should be accepted, so that there was a need to give a timely notice to Mr Tuxford – even though it was a step that was not essential. If that view is incorrect, then the general power to extend time, in s 61 of the QCAT Act, should be applied so that the time for giving the notice is extended to 5 September 2013.

The responses

1. The responses to the two questions of law are these:

   1.The Chief Executive is a proper respondent to this 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.