Department of Employment, Economic Development and Innovation v Wills-Parry
[2011] QCAT 50
•17 February 2011
| CITATION: | Department of Employment, Economic Development and Innovation v Wills-Parry [2011] QCAT 50 |
| PARTIES: | Department of Employment, Economic Development and Innovation |
| v | |
| Ms Tania Michelle Wills-Parry |
| APPLICATION NUMBER: | OCR065-10 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Susan Bothmann, Member |
| DELIVERED ON: | 17 February 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | Pursuant to section 527 of the Property Agents and Motor Dealers Act 2000 (the Act) the respondent is liable to reimburse and is ordered to pay to the Claim Fund established under section 408 of the Act the sum of $10,519.32. |
| CATCHWORDS : | Property Agents and Motor Dealers Act 2000 s 527; claim by Department for reimbursement of payments made, misuse of trust funds; real estate agent; claim allowed, real estate agent and company named as persons responsible |
APPEARANCES and REPRESENTATION (if any):
| Decision on the papers. |
REASONS FOR DECISION
History
The respondent in this matter, Tania Michelle Wills-Parry was a licensed real estate agent and operated a real estate agency, trading as BRS Properties at unit 5, 1233 Beaudesert Road, Acacia Ridge in Queensland.
The applicant is the Chief Executive (CEO) (and where appropriate represented by the delegate of the CEO) seeking relief pursuant to section 527 of the Property Agents and Motor Dealers Act 2000 (the PAMDA Act) for an order that the respondent reimburse the Claim Fund established under section 408 of the PAMDA Act the total sum of $10,519.32 which has been disbursed to a number of recipients (collectively the ‘claimants’) by the applicant as outlined below.
The total sum of $10,519.32 consists of the following sums (the individual claims) paid by the applicant in relation to the following claimants on the relevant dates:
Rasey Management Pty Ltd $ 753.75 30 March 2006
Mr Ricaredo Villareal $ 880.00 11 April 2006
Mr Lachlan K Pegler $ 600.00 30 January 2007
Mr Brett and Ms Julie Pollitt $1,461.90 31 May 2007
Mr Malcolm and Ms Mikala Cox $3,968.07 20 June 2007
Mr Robert Charles Condie $3,155.60 8 November 2007Less the sum of $300.00 reimbursed to the applicant by the respondent’s mother Kathleen Wills on her behalf.
On the relevant dates the applicant decided to allow the claims by the claimants on the basis that the respondent was found to be liable for the financial loss of each claimant and that she must reimburse the claim fund in the relevant sum in accordance with section 490 of the PAMDA Act.
On 23 February 2010 the applicant lodged an application for a reimbursement order (pursuant to the PAMDA Act) with the Tribunal. The applicant claims the amounts referred to above, in a total amount of $10,519.32.
Notice of that claim was sent to the respondent by the Tribunal registrar at her last known address on 18 June 2010. That notice contained the application, a copy of the claim against the fund in relation to which the application was being made, copies of written notice of the CEO’s decision including the information notice given under section 482 of the PAMDA Act, a copy of the letter of demand given under section 490(4) of the PAMDA Act and the statutory declaration by the CEO stating the amount paid from the fund in settlement of the claims including the amount of payments received from the respondent in satisfaction of the claim. No response has been received from or on behalf of the respondent.
Claim
The claim is under section 527 of the PAMDA Act. The applicant seeks an order from the Tribunal that the respondent reimburse the fund in accordance with subsection 527(2).
A notice of hearing was sent to the parties on 18 June 2010 notifying them of the date for hearing in the matter set down for 24 August 2010. A directions hearing was held on 20 August 2010. The Tribunal directed that the hearing date be vacated and that the applicant be required to provide the Tribunal with the respondent’s correct address details.
A further directions hearing was set down for 23 September 2010 but it did not proceed. On 17 January 2011 a directions hearing determined that paragraph 2 of the Orders made on 20 August be vacated and the applicant be ordered to provide the respondent’s current address, or bring the fact of the application to the respondent’s notice or failing that to provide an affidavit detailing the steps taken to ascertain the respondent’s address. The order further provided that the respondent was to file material in response to the application. If the applicant could not ascertain the address of the respondent after all reasonable inquiries the application was to be determined on the papers.
Attempted Service upon respondent
[10] The applicant filed an affidavit sworn on 1 February 2011 by Brett Peter Gough Recoveries Officer for the applicant with the Tribunal on 2 February 2011. The affidavit sets out the steps taken by the applicant to inform the respondent of proceedings in this matter from 31 March 2006 to 20 August 2010. In summary, during that period various communications by post were unsuccessful. On 7 September 2007 the applicant states it was advised by the respondent of her new residential address at Bonogin. On 13 September 2007 correspondence was sent to the respondent at that address. On 14 February 2008 the applicant sent a demand for payment to the respondent by registered post to that address. On 16 April 2008 that letter of demand was returned to the applicant marked ‘return to sender’.
[11] On 30 April 2008 the applicant received information of an address for the respondent at Sunnybank Hills. On that date the applicant sought to have the respondent personally served at that address without success. On 29 October 2009 the applicant received information that the respondent’s address was at Cornubia. On that date the applicant sent a demand to the respondent by ordinary post to that address. This demand was for the total sum of $10,519.32 being the subject of the claim herein. On 5 January 2010 the letter was returned to the applicant marked ‘return to sender’.
[12] On 13 January 2010 a database search indicated a last known address for the respondent at Burleigh Waters. On that date the applicant posted by ordinary post a demand for payment to the respondent at that address. On 19 January 2010 the letter was returned to the applicant marked ‘return to sender’.
[13] On 20 August 2010 the applicant received information of another address for the respondent at Redland Bay. A letter of demand posted by ordinary post to that address was sent by the applicant to the respondent on 20 August 2010. This letter has not been returned.
[14] The Tribunal forwarded the correspondence dated 18 June 2010 earlier referred to, to the respondent at the Burleigh Waters address. On 24 June 2010 the package was returned to the Tribunal marked by the Post Office, ‘Return to Sender’ and by someone in handwriting ‘she is not at this address’.
[15] No material has been received by the Tribunal from the respondent in this matter.
[16] While the Tribunal may consider that further efforts could have been taken by the applicant to inform the respondent of the proceedings, by for example attempting personal service more than once or by sending later correspondence by registered rather than ordinary mail, the Tribunal is nevertheless satisfied, given the processes outlined above that It is also clear that the respondent has most likely attempted to evade receiving material in this matter from the applicant and from the Tribunal. The Tribunal therefore considers it appropriate to determine the matter on the papers as anticipated by the directions made on 17 January 2011.
[17] Section 528 of the PAMDA Act provides that having received an application under section 527 the registrar of the Tribunal must (b) ‘give a copy of the application and the accompanying documents to the respondent’. It is clear that the Tribunal has not been able to achieve the ‘giving’ of the relevant material to the respondent. The PAMDA Act is silent on the consequences of such failure. However section 480 of the PAMDA Act provides that in similar circumstances if the respondent fails to respond to a claim and the CEO is satisfied that the respondent cannot be located after making reasonable enquiries the CEO may decide the claim in the absence of any comments or submissions made by the respondent.
[18] The Queensland Civil and Administrative Tribunal Act 2009 (the QCAT Act) provides in section 61 that the Tribunal may waive compliance with procedural requirements. Section 93 of QCAT Act provides that the Tribunal may hear and decide a matter in a person’s absence, even if the person is a party, where the Tribunal is satisfied that the person cannot be found after reasonable inquiries have been made.
[19] Part 5 of the Rules made pursuant to the QCAT Act provides for service of notices or other documents. Rule 39 deals with ‘giving other documents to other persons’ by providing that documents required to be ‘given’ to an entity may be given in a number of ways (where the enabling Act, in this case PAMDA Act, does not provide otherwise) including by sending by post to the relevant address. ‘Entity’ is not defined in the QCAT Act or Rules.
[20] Given these provisions, and the fact that it would be contrary to legislative purposes if a respondent could avoid the consequences of their actions by eluding service, the Tribunal is satisfied that it can make a determination under sections 527 and 528 of PAMDA Act without an assurance that the respondent has been given the documentation.
[21] In considering making the order sought in this matter the Tribunal must take into account the requirements set out in sections 527 and 528 of PAMDA Act as follows.
The Requirements
[22] Section 527 of the PAMDA Act provides that where the CEO allows a claim against the Claim Fund under section 481 and the respondent has not reimbursed the fund in response to the letter of demand given under section 490(4) the CEO may apply to the Tribunal for an order that the respondent reimburse the fund. That application must include documents as outlined in subsection (3) of section 527. Section 528 provides that upon receiving the application and upon the registrar fixing a date for consideration of the matter and giving a copy of the application to the respondent – matters dealt with above – the Tribunal will make the reimbursement order if satisfied of the matters outlined in section 528(c)(i) to (iv).
[23] Based on the evidence before it the Tribunal is satisfied that the CEO made decisions in relation to the claims against the fund in relation to the claimants as outlined in paragraph 3 above. Pursuant to those decisions the Tribunal finds that the respondent is liable to reimburse the fund in the amounts outlined in paragraph 3 above (all being less than $10,000 each) being in the aggregate a total of $10,819.32.
[24] The Tribunal is satisfied that the applicant posted to the respondent a notice given under section 482 of the PAMDA Act dated 31 March 2006 in relation to the claim by Ramsey Management Pty Ltd. The Tribunal is satisfied that the applicant posted to the respondent a notice given under section 482 of the PAMDA Act dated 11 April 2006 in relation to the claim by Ricardo Villareal. Both notices were sent to the address of 4 Mead Place, Calamvale, Queensland, the respondent’s then last known address. The Tribunal is satisfied that the applicant posted to the respondent a notice given under section 482 of the PAMDA Act dated 30 January 2007 in relation to the claim by Lachlan Pegler. The Tribunal is satisfied that the applicant posted to the respondent a notice given under section 482 of the PAMDA Act dated 31 May 2007 in relation to the claim by Mr and Mrs Pollitt. The Tribunal is satisfied that the applicant posted to the respondent a notice given under section 482 of the PAMDA Act dated 21 June 2007 in relation to the claim by Mr and Mrs Cox. Those notices were sent to the address of 98 Wynne Road, Jimboomba, Queensland, the respondent’s then last known address. The Tribunal is satisfied that the applicant posted to the respondent a notice given under section 482 of the PAMDA Act dated 9 November 2007 in relation to the claim by Robert Condie. That notice was sent to the address of 5 Glenmore Drive, Bonogin, Queensland, the respondent’s then last known address.
[25] The Tribunal is satisfied that the respondent did not apply to the former Commercial and Consumer Tribunal under the equivalent of section 483 of the PAMDA Act (as it then was) to have any of the decisions of the CEO in this matter reviewed.
[26] The Tribunal is satisfied that a letter of demand was sent by the applicant to the respondent by ordinary post on 13 January 2010 claiming reimbursement of the sum of ten thousand eight hundred and nineteen dollars and thirty two cents ($10,819.32) being the aggregate of the claims. The letter advised that between June and July 2006 the CEO received payments totalling $300 which reduced the debt owing to the claim fund to $10,519.32. The demand was sent to the last known address of the respondent at the time, being 3 Sugarleaf Court, Burleigh Waters, Queensland.
[27] The Tribunal is satisfied the respondent has not paid the stated amount.
[28] As the Tribunal is satisfied that the requirements of section 528 of the PAMDA Act have been fulfilled the Tribunal hereby makes the order sought.
Orders
Pursuant to section 527 of the Property Agents and Motor Dealers Act 2000, (the Act) the respondent is liable to reimburse and is ordered to pay to the Claim Fund established under section 408 of the Act the sum of $10,519.32.
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