Frame v Wilen Pty Ltd
[2012] QCAT 478
•2 October 2012
| CITATION: | Frame and Anor v Wilen Pty Ltd and Ors [2012] QCAT 478 |
| PARTIES: | Ian Stuart Frame Diane Mary Jensen |
| v | |
| Wilen Pty Ltd Jeffrey Dean Allen Lee Terry Wilson |
| APPLICATION NUMBER: | GAR165-12 |
| MATTER TYPE: | Other civil dispute matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Peta Stilgoe, Senior Member |
| DELIVERED ON: | 2 October 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | [1] Pursuant to s 488 of the Property Agents and Motor Dealers Act2000, the claim is allowed in the sum of $61,130. [2] Pursuant to s 489 of the Property Agents and Motor Dealers Act2000, at the expiration of the appeal period, the Chief Executive must pay to Mr Ian Stuart Frame and Ms Diane Mary Jensen the sum of $61,130 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 Act2000, Wilen Pty Ltd, Mr Jeffrey Dean Allen and Mr Lee Terry Wilson are named as the persons responsible for the financial loss of Mr Ian Stuart Frame and Ms Diane Mary Jensen. [4] Upon payment from the Claim Fund and pursuant to ss 490 and 530 of the Property Agents and Motor Dealers Act2000, Wilen Pty Ltd, Mr Jeffrey Dean Allen and Mr Lee Terry Wilson are liable (and if more than one, jointly and severally) to reimburse the Claim Fund by paying the sum of $61,130 to the Chief Executive, Department of Justice and Attorney General. |
| CATCHWORDS: | PROPERTY AGENT – where deposit for purchase paid into trust – where money transferred from trust to the agent’s business account – where transfer without authority – where money not available to account to vendor Property Agents and Motor Dealers Act 2000, ss 385, 386, 470,470(1)(e), 488, 490(2) |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.
REASONS FOR DECISION
Mr Frame and Ms Jensen appointed Wilen Pty Ltd as agent to sell their property at Main Beach. Messrs Allen and Wilson were licensees and directors of Wilen, which traded as Wilson Allen Real Estate Agents.
Wilen negotiated a sale of the property. The buyers paid a deposit of $85,000 into the Wilen trust account on 25 May 2011. The sale settled on 14 October 2011. Wilen has not paid Mr Frame and Ms Jensen any of the deposit.
Mr Frame and Ms Jensen made a claim on the statutory claim fund for $61,130. Messrs Wilson and Allen received notice of the claim. The company is under external administration.
In considering a claim against the fund, I must be satisfied[1] that an event as mentioned in section 470(1) happened and that Mr Frame and Ms Jensen suffered financial loss because of the event.
[1] Section 488(2) Property Agents and Motor Dealers Act 2000.
I must also take into account any amount Mr Frame and Ms Jensen might reasonably have received or recovered if not for their neglect or default and any amount ordered to be paid to them as compensation to the claimant under sections 530A, 572D or 592A of PAMDA[2].
[2] Section 488(3)(a).
Finally in allowing a claim I must decide the amount of their financial loss and name the person who is liable for the loss[3].
[3] Section 488(3)(b) and (c).
The event
The company’s receiver reports that $85,000 was withdrawn from the company trust account by an electronic transfer on 27 May 2011. The funds were transferred to the company’s business account. The money has not been recovered. The receiver concludes that the transfer was not a permitted drawing under PAMDA[4]. He also concludes that the company did not keep proper trust account records[5] and that the withdrawal from trust was a stealing, misappropriation or misapplication of the funds[6].
[4] Section 385.
[5] Section 386.
[6] Section 470(1)(e).
I agree with the receiver’s conclusions. Each of these breaches is an “event” under s 470(1). I am therefore satisfied that there has been an “event” within s 470(1).
Financial loss
I am satisfied that Mr Frame and Ms Jensen suffered a financial loss because of Wilen’s breach of its trust account obligations.
I am further satisfied that $61,130 is a proper assessment of Mr Frame and Ms Jensen’s loss. That amount is the balance of the deposit after deducting the commission Wilen was entitled to on settlement plus a document disclosure fee of $90.
Other matters
I am required to take into account any amount Mr Frame and Ms Jensen may have received or recovered if not for their neglect or default.
There is no evidence to suggest that they would have been able to receive or recover any amount to reduce their loss if they had taken any different action.
Who is liable for the loss?
Wilen, as the principal of Wilson Allen Real Estate Agents, is liable for the loss.
Section 490(2) provides that a person is liable to reimburse the fund if the person is:
a. A responsible person;
b. If the responsible person was a corporation, each person who was an executive officer of the corporation.
As directors of Wilen, Messrs Allen and Wilson were executive officers of the company. Because I have found that the company is a responsible person, it follows that they must also be responsible persons.
Orders
Pursuant to s 488 of the Property Agents and Motor Dealers Act2000, the claim is allowed in the sum of $61,130.
Pursuant to s 489 of the Property Agents and Motor Dealers Act2000, at the expiration of the appeal period, the Chief Executive must pay to Mr Ian Stuart Frame and Ms Diane Mary Jensen the sum of $61,130 from the Claim Fund, and, if there is an appeal, payment must not be made until after the appeal is finally decided.
Pursuant to s 488(3)(c) of the Property Agents and Motor Dealers Act2000, Wilen Pty Ltd, Mr Jeffrey Dean Allen and Mr Lee Terry Wilson are named as the persons responsible for the financial loss of Mr Ian Stuart Frame and Ms Diane Mary Jensen.
Upon payment from the Claim Fund and pursuant to sections 490 and 530 of the Property Agents and Motor Dealers Act2000, Wilen Pty Ltd, Mr Jeffrey Dean Allen and Mr Lee Terry Wilson are liable (and if more than one, jointly and severally) to reimburse the Claim Fund by paying the sum of $61,130 to the Chief Executive, Department of Justice and Attorney General.
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