Dwyer v Stella Property Solutions Pty Ltd
[2014] QCAT 327
| CITATION: | Dwyer & Anor v Stella Property Solutions Pty Ltd & Anor [2014] QCAT 327 |
| PARTIES: | Mr Denis Dwyer Ms Barbara Wilcock (Applicants) |
| v | |
| Stella Property Solutions Pty Ltd Tracey Leigh Charleson (Respondents) |
| APPLICATION NUMBER: | GAR057-14 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Member Paratz |
| DELIVERED ON: | 8 July 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Pursuant to s 488 of the Property Agents and Motor Dealers Act 2000, the claim is allowed in the sum of $10,138.80. 2. Pursuant to s 489 of the Property Agents and Motor Dealers Act 2000, at the expiration of the appeal period the Chief Executive must pay to Mr Denis Dwyer and Ms Barbara Wilcock the sum of $10,138.80 from the Claim Fund, and if there is an appeal, payment must not be made until after the appeal is finally decided. 3. Pursuant to s 488(3)(c) of the Property Agents and Motor Dealers Act 2000, Stella Property Solutions Pty Ltd and Ms Tracey Charleson are named as the persons liable for the financial loss of Mr Denis Dwyer and Ms Barbara Wilcock. 4. Upon payment from the Claim Fund and pursuant to s 490 and s 530 of the Property Agents and Motor Dealers Act 2000, Stella Property Solutions Pty Ltd and Ms Tracey Charleson are jointly and severally liable to reimburse the Claim Fund by paying the sum of $10,138.80 to the Chief Executive, Department of Justice and Attorney-General. |
| CATCHWORDS: | Where a claim against the Claim Fund under PAMDA for rental monies not remitted by a real estate agent Property Agents and Motor Dealers Act 2000 (Qld) |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2000 (Qld) (QCAT Act).
REASONS FOR DECISION
Mr Denis Dwyer and Ms Barbara Wilcock own a rental property at 16 Camphorlaurel Court, Tallebudgera Valley, Queensland.
Ms Tracey Charleson and Stella Property Solutions Pty Ltd operated a property management business on the Gold Coast which traded as “Complete Property Management Group” and previously as “Raine and Horne Palm Beach-Currumbin” which managed the property.
Mr Denis Dwyer and Ms Barbara Wilcock lodged a claim against the Claim Fund dated 8 July 2013 for $11,154.40 in respect of rental payments that were not remitted to them, pursuant to the Property Agents and Motor Dealers Act 2000 (Qld) (‘the Act’).
A Receiver, Gerald Collins of BDO Business Recovery & Insolvency (Qld) Pty Ltd, was appointed over the Trust accounts of Ms Tracey Charleson and Stella Property Solutions Pty Ltd on 18 December 2012.
The Receiver provided a report dated 12 August 2013 and assessed the claim as follows:[1]
Amount Claimed: $8,188.90 (rent) and $2,146.00 (disbursements)
Amount rejected: $3,546.00; $1,400.00 (according to trust account bank statements, rent was not paid in advance by the tenant) and $2,146.00 (rental income was not withheld by Respondent for disbursements)
Additional amount owed: $3,349.90
Amount admitted: $10,138.80
Based on the above, I partially reject the Claimants’ claim in the sum of $3,546.00 representing rent that was not received by the respondent from the tenant and rental income that was not withheld by the Respondent for payment of disbursements. I accept the claim in the sum of $10,138.80, being the value of funds retained and not disbursed to the Owners from the Respondent’s Trust bank account.
[1]Report of Gerald Collins, page 9.
The Chief Executive submits that it agrees with the Receiver’s determination that Mr Denis Dwyer and Ms Barbara Wilcock have suffered a financial loss of $10,138.80.
The Chief Executive submits that in failing to remit rental income owed to the Applicants that Ms Tracey Charleson and Stella Property Solutions Pty Ltd have caused an event as defined by s 470(1) of the Act to happen, specifically s 385(4) and s 470(1)(e).
I gave Directions on 17 February 2014 for the filing of any material by the parties. No further submissions have been received, and no request for an oral hearing has been made. The directions provided that if there was no application for an oral hearing, that the application would be determined on the papers not before 19 May 2104. This is the decision on the papers.
I accept the report and recommendations of the receiver, and am satisfied that Mr Denis Dwyer and Ms Barbara Wilcock have suffered a financial loss of $10,138.80 which is claimable against the Fund under the Act, as submitted by the Chief Executive.
The claim, and the “relevant event” pursuant to s 470(1) of the Act, is in relation to rental periods from 1 May 2012 to 1 November 2012. An ASIC search reveals that Tracey Charleson was a Director of Stella Property Solutions Pty Ltd from 1 April 2011 until 17 May 2013.
I am satisfied that Tracey Charleson was a responsible person for the corporation pursuant to s 490(2) of the Act, being an executive officer of the corporation when the “relevant event” happened, and name her as a liable person together with the corporation.
I order that:
1. Pursuant to s 488 of the Property Agents and Motor Dealers Act 2000, the claim is allowed in the sum of $10,138.80.
2. Pursuant to s 489 of the Property Agents and Motor Dealers Act 2000, at the expiration of the appeal period the Chief Executive must pay to Mr Denis Dwyer and Ms Barbara Wilcock the sum of $10,138.80 from the Claim Fund, and if there is an appeal, payment must not be made until after the appeal is finally decided.
3. Pursuant to s 488(3)(c) of the Property Agents and Motor Dealers Act 2000, Stella Property Solutions Pty Ltd and Ms Tracey Charleson are named as the persons liable for the financial loss of Mr Denis Dwyer and Ms Barbara Wilcock.
4. Upon payment from the Claim Fund and pursuant to s 490 and s 530 of the Property Agents and Motor Dealers Act 2000, Stella Property Solutions Pty Ltd and Ms Tracey Charleson are jointly and severally liable to reimburse the Claim Fund by paying the sum of $10,138.80 to the Chief Executive, Department of Justice and Attorney-General.
0
0
0