Fung Chao Pty Ltd v J Properties Group Pty Ltd (In Liquidation) Huang
[2013] QCAT 696
| CITATION: | Fung Chao Pty Ltd v J Properties Group Pty Ltd (In Liquidation) Huang [2013] QCAT 696 |
| PARTIES: | Fung Chao Pty Ltd (Applicant) |
| v | |
| J Properties Group Pty Ltd (In Liquidation) Jack Huang (Respondent) |
| APPLICATION NUMBER: | GAR169-13 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Member Paratz |
| DELIVERED ON: | 24 December 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Pursuant to section 488 of the Property Agents and Motor Dealers Act 2000, the claim is partially allowed in the sum of $11,759.43. 2. Pursuant to section 489 of the Property Agents and Motor Dealers Act 2000, at the expiration of the appeal period the Chief Executive must pay to the Applicant the sum of $11,759.43 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 section 488(3)(c) of the Property Agents and Motor Dealers Act 2000 the Respondents, J Properties Group Pty Ltd (In Liquidation) and Jack Huang are named liable for the financial loss of the applicant. 4. Upon payment from the Claim Fund and pursuant to sections 490 and 530 of the Property Agents and Motor Dealers Act 2000, J Properties Group Pty Ltd (In Liquidation) and Jack Huang are jointly and severally liable to reimburse the Claim Fund by paying the sum of $11,759.43 to the Chief Executive, Department of Justice and Attorney-General. |
| CATCHWORDS: | Real estate agent – management of residential property – rental moneys not disbursed from trust account – claim on Claim Fund – claim partially accepted |
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 2009 (QCAT Act).
REASONS FOR DECISION
Mr Jack Huang was a real estate agent, and was a principal of J Properties Group Pty Ltd, which traded as Ray White (Runcorn).
Fung Chao Pty Ltd was the owner of a residential property at Sunnybank in Brisbane. Through its principal, Ms Vivien Chen, it appointed Ray White (Runcorn) to manage the property.
A receiver (Ms Julie Williams) was appointed on 7 January 2013 by the Office of Fair Trading, Department of Justice and Attorney-General pursuant to the Property Agents and Motor Dealers Act 2000 (the Act) over the Trust Property of Jack Huang and J Properties Group Pty Ltd trading as Ray White (Runcorn).
The records of the Australian Securities and Investments Commission (ASIC) show that Mr Jack Huang was appointed as Director and Shareholder of J Properties Pty Ltd (the company) on 22 July 2003, and this continued until the date of the appointment of the receiver.
Fung Chao Pty Ltd claimed an amount of $14,323.00 as outstanding rental monies for the period July 2012 to January 2013. The formal complaint was made to the Office of Fair Trading on 28 February 2013.
The receiver met Mr Huang on 8 January 2013 to interview him. Mr Huang could not provide an explanation for the shortfall in the trust account other than two payments to a creditor for building renovation works that were not deducted from the owners account back in 2010.
A reconciliation of the tenant ledger and payments disbursed to the owner was prepared which revealed the following[1]:
Rental income for the period 31 May 2012 to 1 August 2012 in the sum of $4,230 was not disbursed to the owners. As such the amount of $4,230 less management fees has been accepted in the claim.
Rental income for the period 2 August 2012 to 5 September 2012 in the sum of $2,350 was disbursed to the owners on 3 September 2013; hence this amount has been rejected in the claim.
Rental income for the period 6 September 2012 to 2 January 2013 in the sum of $8,460.00 has not been disbursed to the owners. The amount of $8,460 less management fees has been accepted in the claim.
[1] “Insolvency and Turnaround Solutions” Report 3 May 2013, page 11.
The receiver concluded that the Claimant’s claim should be partially rejected in the sum of $2,563.57 representing management and administration fees not provisioned for in the claim and rental income previously disbursed to the owners, and be accepted in the sum of $11,759.43 being the value of funds retained and not disbursed from the trust account.
A Claim Notice pursuant to section 474 and 475 of the Act was forwarded on 3 May 2013 to Mr Huang and the company at their last known addresses and to the addresses shown as the registered office on the ASIC database.
I gave Directions on 17 June 2013 which provided for the filing of material in response by Mr Huang and the company by 15 August 2013, and for the matter to be determined on the papers after 16 September 2013. The letters containing the directions were returned to the tribunal marked “return to sender”. The letters were sent to the addresses provided by the department as disclosed by the searches. No material has been filed by Mr Huang or the company.
I also directed that Fung Chao Pty Ltd was to file any material in addition to the material filed with the application by 15 July 2013, and any reply to the response of Mr Huang and the company by 16 September 2013. No material was filed by Fung Chao Pty Ltd.
Advice has been received by the registry on another file (GAR 246-13) from Pilot Chartered Accountants that the company is in liquidation, and I have noted that in these proceedings.
There is no challenge to the report of the receiver by either the Applicant or any of the respondents. I accept the report of the receiver, and am satisfied that the financial loss suffered by the claimants is established as $11,759.43.
I am also satisfied that Mr Huang, as the executive officer of the company, is a person who is liable to reimburse the fund under s 490(2) of the Act, and should be named as a person who is liable for the Claimant’s financial loss pursuant to s 530(b) and s 488(3)(c) of the Act[2], together with the company.
[2] Williams v Kaech [2008] QCA 176.
Accordingly I find that:-
1. Pursuant to section 488 of the Property Agents and Motor Dealers Act 2000, the claim is partially allowed in the sum of $11,759.43.
2. Pursuant to section 489 of the Property Agents and Motor Dealers Act 2000, at the expiration of the appeal period the Chief Executive must pay to the Applicant the sum of $11,759.43 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 section 488(3)(c) of the Property Agents and Motor Dealers Act 2000 the Respondents, J Properties Group Pty Ltd (In Liquidation) and Jack Huang are named liable for the financial loss of the applicant.
4. Upon payment from the Claim Fund and pursuant to sections 490 and 530 of the Property Agents and Motor Dealers Act 2000, J Properties Group Pty Ltd (In Liquidation) and Jack Huang are jointly and severally liable to reimburse the Claim Fund by paying the sum of $11,759.43 to the Chief Executive, Department of Justice and Attorney-General.
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