Galagher v Office of Fair Trading - [2025] QCAT 266

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Galagher & Anor v Office of Fair Trading & Ors [2025] QCAT 266

PARTIES:

LOUISA GALAGHER

(applicant)

PARK VIEW LODGE (QLD) PTY LTD

(applicant)

v

OFFICE OF FAIR TRADING
ANDREA HUTCHING
JOAN HENDERSON (DECEASED)
KELLY LAWSON (NEE WALKER)
MARK WELLINGS
JAMES AULD
YVONNE BEECH (DECEASED)
ROBIN BLANK
AUDREY BOYD
THE ESTATE OF HOWARD BURKE (DECEASED)
MAUREEN BURKE
THE ESTATE OF DOREEN ELLIS (DECEASED)
BRUCE GOODHEW
MICHAEL HARTWELL
JASON HARVEY
TONY HOLMES

(respondent)

APPLICATION NO/S:

GAR111-22

MATTER TYPE:

General administrative review matters

DELIVERED ON:

2 June 2025

HEARING DATE:

20 September 2024

HEARD AT:

Brisbane

DECISION OF:

Member Carrigan

ORDERS:

The decision of the Chief Executive made on 22 February 2022 in respect of the following persons;

Andrea Hutching,

Joan Henderson (deceased),

Kelly Lawson (nee Walker),

Mark Wellings,

James Auld,

Yvonne Beach,

Robin Blank,

Audrey Boyd,

The Estate of Howard Burke (deceased),

Maureen Burke,

The Estate of Doreen Ellis (deceased),

Bruce Goodhew,

Michael Hartwell,

Jason Harvey and

Tony Holmes

who are each claimants against the Claim Fund established under the Agents Financial Administration Act 2014 (Qld) is confirmed.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where various claimants entered into agreements for tenancy or management of units – where monies were paid into the trust account of the managers – whether all monies paid into the trust account had been properly accounted for by the managers – where various claimants made a claim against the Claim Fund established under the Agents Financial Administration Act 2014 (Qld) in respect of the monies paid out by the managers – where Chief Executive decided the claims were valid – where manager sought review of decision – where the claimed loss was suffered because of the happening an ‘event’ as specified in s 59 and s 82(1) of the Agents Financial Administration Act 2014 (Qld)

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 18, s 20, s 24

Agents Financial Administration Act 2014 (Qld), s 47(1)(a), s 47(2), s 48, s 51, s 59, s 59(4), s 61, s 62(2), s 62(3), s 80, s 82(1), s 85, s 86, s 87, s 100, s 101, s 103, s 105, s 112

Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 116

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

Ms Moisuc of Counsel instructed by the Office of Fair Trading

REASONS FOR DECISION

In these proceedings Louisa Galagher and Park View Lodge (Qld) Pty Ltd (‘the Applicants’) seek a review of the decision of the Office of Fair Trading made on 27 February 2022 relating to claims against the receivership property of the Applicants by various claimants under s 59(4) and 82(1) of the Agents Financial Administration Act 2014 (Qld) (‘AFA Act’).

Background Facts

Park View Lodge Pty Ltd was registered on 10 June 2008 and Louisa Galagher is the sole Director and Secretary. It is the trustee for the LAF Family Discretionary Trust.
The Applicants each held real estate licenses. The details of the licenses are;
(a)Louisa Galagher held a real estate licence number 3074854 issued on 4 July 2008; and
(b)Park View Lodge Pty Ltd held a corporation real estate licence number 3720610 issued on 29 July 2014.
On 21 August 2019, Julie Ann Williams, Accountant of Insolvency and Turnaround Solutions, (‘the Receiver’) was appointed by the Chief Executive Officer of the Office of Fair Trading (‘Chief Executive’) as the receiver over the trust property of the Applicants.[1] ‘The Chief Executive made this appointment on the basis of the belief that a defalcation had, or may have, been committed in relation to the trust account of Park View Lodge (Qld) Pty Ltd and was made with the consent of Louise Galagher. The function of the Receiver was to receive and determine claims against the receivable property of the Applicants.[2]
[1]AFA Act ss 47(1)(a), 47(2).
[2]Ibid ss 51, 59, 61.
In 2021 a number of claims were made against the Claim Fund in relation to the management of letting agreement conducted by the Applicants with various tenants in the complex. The claims referred to were made by the various Respondents, apart from the Office of Fair Trading, in these proceedings against the Claim Fund under the AFA Act.
The Receiver prepared a Report in respect each the claims lodged against the Claim Fund.
There were insufficient funds in the receivable property of the Applicants for the Trustee to pay all claims allowed and the claims were referred to the Chief Executive for determination.[3]
[3]Ibid ss 62(2), 62(3).
On 22 February 2022, the Chief Executive Officer made a decision that various claims be paid to claimants from the Claim Fund for which the Respondents were jointly and severally liable to reimburse the Claim Fund.
On 28 March 2022,[4] the Applicant filed in the Tribunal an Application to review the decisions of the Chief Executive made on 22 February 2022 for the Applicants to be jointly and severally liable to reimburse the Claim Fund for monies to be paid to the various Respondents in these proceedings.
[4]As well as on various other dates.
On 13 May 2022, the Tribunal made orders for a number of the claimant’s to be added as Respondents to these proceedings.[5] Subsequently, Barry Boyd was removed as a party to these proceedings on the basis the Chief Executive had rejected his claim.[6]
[5]Orders of Member Browne pursuant to s 103(2) of the AFA Act.
[6]Tribunals Directions made 10 October 2022, direction 1.
On 31 May 2022, Kenneth Johnson, a Respondent, sent an email to the Chief Executive advising he wished to withdraw his claim.
On 16 June 2023, the Tribunal determined that the Applicant had filed in the Tribunal an Application to review a decision dated 28 March 2022 within the requisite time limits.

Tribunal’s Jurisdiction

The Tribunal’s jurisdiction is conferred on the Tribunal by an enabling Act to review a decision made or taken to have been made by another entity under that Act.[7]
[7]Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) s 17.
A person dissatisfied with the Chief Executives decision may apply, as provided under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), to QCAT for a review of the decision.[8] The Applicants, who were a party in the proceedings involving the Chief Executives decision, applied to the Tribunal on 30 March 2022 for a review the various decisions made by the Chief Executive. In these proceedings, the AFA Act is the “enabling Act”. As a consequence of the Applicant having applied to the Tribunal on 28 March 2022 to exercise its review jurisdiction for a reviewable decision, the Tribunal is authorised to exercise jurisdiction in these proceedings.[9]
[8]AFA Act s 103.
[9]QCAT Act s 18.
The Tribunal may allow the claim wholly or partly, or reject the claim. The Tribunal may only allow the claim if satisfied, on the balance of probabilities, the person may make the claim under the AFA Act. The Tribunal in deciding the claim must take into account specific criteria.[10]
[10]AFA Act s 105.
Otherwise, the Tribunal must hear and decide the review by way of a fresh hearing on the merits to produce the correct and preferable decision.[11]
[11]QCAT Act s 20.
In conjunction with the criteria set out in s 105 of AFA Act, the Tribunal may:[12]
(a)confirm or amend the decision; or
(b)set aside the decision and substitute its own decision; or
(c)set aside the decision and return the matter for reconsideration to the decision maker for the decision, with the directions the tribunal considers appropriate.

Process for Claims under the Agents Financial Administration Act 2014 (Qld)

[12]Ibid s 24.

The AFA Act provides for claims to be made against the receivership property of managers of complexes.[13]
[13]AFA Act ss 59(4), 82(1).
Bond money paid to an agent by a tenant is to be remitted to the Residential Tenancies Authority (‘RTA’) within specific timeframes.[14]
[14]Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 116.
A claim can be made against the fund where there has been a stealing, misappropriation or misapplication by an agent of property entrusted to it.[15]
[15]AFA Act s 82(1)(b).
If the Chief Executive believes, on reasonable grounds, a person cannot obtain payment or delivery of trust property held for a person by an agent, the Chief Executive may, because of one or more specified events, immediately appoint a Receiver.[16] The Receiver may be appointed over trust property held by an agent.[17] The appointment of the Receiver in these proceedings has not been made an issue for the Tribunal to determine.
[16]Ibid s 47(2).
[17]Ibid s 48.
The Receiver may on appointment, take possession of receivership property, manage that property and receive claims against the property.[18]
[18]Ibid s 51.
A person may claim against the fund if the person suffers financial loss because of the happening of a prescribed event by a relevant person, provided that the claim is lodged within the prescribed time limits.[19] A claim given to the Chief Executive by a Receiver is taken to have been made within the time allowed.[20]
[19]Ibid s 82(1).
[20]Ibid ss 87, 62(3)(b), 85, 86.
A relevant person against whom a claim can be made means an agent, an agent’s employee or agent; or a person carrying on business with the agent; or a person having charge or control, or apparent charge or control, of an agent’s registered office or business.[21] An “agent” is defined to include a person who is either a licensee and/or a collection agent.[22]
[21]Ibid s 80.
[22]Ibid.
The Chief Executive may direct an inspector to investigate a claim that has not settled. An inspector must prepare a report about the claim and give it to the Chief Executive.[23]
[23]Ibid s 94.
The claim against the fund may be decided by the Chief Executive or the claim can be referred for QCAT to decide, if the Chief Executive considers the claim could be more effectively and conveniently decided by QCAT and it would be appropriate for the Tribunal to decide that claim.[24] Where the Chief Executive decides the claim written comments about an inspector’s report are invited from the relevant parties.[25]
[24]Ibid s 95.
[25]Ibid s 96.
The Chief Executive may decide to allow the claim if satisfied on the balance of probabilities that the person may make the claim. There are a number of matters to which the Chief Executive must have regard to in making the decision.[26] The decision of the Chief Executive is binding on the parties and:[27]
the amount paid to the claimant from the fund in accordance with the Decision may be recovered by the chief executive at a debt owing to the chief executive by the respondent named in the decision.
[26] Ibid ss 100(1), 100(2).
[27]Ibid s 101.
Significantly, and importantly for these proceedings:[28]
The respondent may not subsequently challenge the correctness of the decision or the amount payable.
[28] Ibid s 101(1)(c).
Where receivership property is insufficient to satisfy claims allowed by a Receiver, those claims against the receivership property are referred to the Chief Executor for determination as claims against the Claim Fund.[29]
[29]Ibid s 62.
Any party dissatisfied with a decision of the Chief Executive may apply to QCAT for a review of the decision.[30]
[30]Ibid s 103.

Chief Executive Appoints a Receiver Over the Trust Property of the Applicant

On 21 August 2019, the Chief Executor appointed a Receiver, Julie Ann Williams of the firm Insolvency & Turnaround Solutions, over the Trust Property of Park View Lodge (Qld) Pty Ltd and Louisa Galagher.[31] The company is trustee of the LAF Family Discretionary Trust.
[31]The appointment was made pursuant to AFA Act s 47(2).
The Receiver prepared a Report to detail the outcome of investigations specified in respect of any claim lodged on the Claim Fund operated by the Office of Fair Trading. In order to prepare the Report the Receiver has access to the Applicant’s books and records, records obtained from other sources (such as the RTA) including bank records and electronic accounting system operated by the Applicants being the “REI Master” (‘REI’).
In respect of each claim on the Claim Fund, a copy of the Report was provided to the Applicants who had 14 days in which to provide any comments.[32]
[32]AFA Act s 61(2).
Thereafter, the Report is provided to the Chief Executive to make an assessment of the claim on the Claim Fund.

Various Claims Made

On 13 May 2022, a number of individual claimants[33] against the Claim Fund were added as a party (already referred to as “various Respondents”) to these proceedings by the Tribunal.[34] Each of their claims will be considered separately below.
[33]Barry Boyd, Andrea Hutching, Joan Henderson, Kelly Lawson (née Walker), Mark Wellings, James Auld, Yvonne Beech, Robyn Blank, Audrey Boyd, the Estate of Howard Burke (Deceased), Maureen Burke, the Estate of Doreen Ellis (Deceased), Bruce Goodhew, Michael Hartwell, Jason Harvey, Tony Holmes and Kenneth Johnson.
[34]AFA Act s 103(2).
The Applicants filed in the Tribunal an Application to review a decision for each of those claimants who were the subject of the decision of the Chief Executive made on 22 February 2022.
In every Application to review a decision the Applicants have made a statement as to why they require the decision to be reviewed and have included in every Application a document titled “To whom it may concern” as part of the basis for the review being sought by them. That statement Is in identical terms for each of the various Respondents to be considered below.
The statement sets out an itemised list where it is alleged the Receiver has not allowed the business to collect payments or where the Receiver has adjusted the owners return or otherwise failed to properly investigate proceedings and concludes by stating:
The Receiver has called tenants and owners personally to encourage them to submit claims for amounts as little as one dollar. Overall I feel her work on my matter has been targeted and her actions bias. I believe some actions have been outside the legislation for which she was appointed. On one occasion Ms Williams has also advised me her actions have been at someone’s instruction, I immediately found this a trigger for serious concern and would like to know who and for what reason this has occurred.
The Tribunal in considering the specific matters raised below in respect of each of the individual claimants has taken into account the contents of this statement relied upon by the Applicants. However, the Applicant did not produce any documents or financial information or other evidence to support the claims made in the statement titled “To whom it may concern”. Additionally, the Applicants have not provided an adequate or sufficient explanation or evidence in support of the contention that the Applicants were not allowed various fees and the charges to be collected from tenants. Where the Applicants statements referred to adjustments for rental amount, this is discussed in respect of the individual matter but generally speaking the Applicants statemen was not supported with any tenancy agreement or other document which would support the issue of the rental the Applicants say should have been charged. The allegation that the Receiver did not properly investigate the Public Trustees funds by way of cash transfers is not supported by any of the Applicants evidence or documents and in most cases, if not all, the findings of the Receiver are supported by documents, emails or other evidence from the respective Public Trustees. The matters referred to by the Applicants in the statement titled “To whom it may concern” is of general application to all of the matters the subject of the Chief Executive decision and the Tribunal has taken into account that document when a review is made of the case of each individual claimant below.

ANDREA HUTCHING

On 24 January 2015, Andrea Hutching made a tenancy agreement with Teresa Holder, who was employed by the Applicants as caretaker at the complex.
Andrea Hutching then paid, in cash, a holding deposit for the unit of $100.00 and on 30 January 2015 she paid a further $1,720.00, in cash, to Theresa Holder. These payments were for a bond for $1,000.00 and a further amount for two weeks rent of $560.00. She also paid a further $160 towards an exit clean fee of $260.00. Receipts and bank account details were supplied in support of these payments.
From about 30 January 2015, Andrea Hutchings commenced the tenancy of unit 38 in the complex managed by the Applicants.
The issue in these proceedings is whether the bond of $1,000.00 was lodged with the RTA. The bond funds were not recorded in the REI. The Receiver has received confirmation from the RTA that the bond money was never paid into its accounts.
On 14 January 2020, Andrea Hutching made a claim against the Claim Fund for the unpaid bond paid into trust and held by the Applicants or which bond ought to have been held in trust.
That claim was examined and investigated by the Receiver.
The Receivers investigation[35] established that the exit cleaning fee paid in cash of $260 should be returned to Andrea Hatching as she was still in occupation of the unit and any cleaning fees are paid at the end of the tenancies which has not yet occurred. Additionally, the bond of $1,000.00 was owing by the Applicants to Andrea Hutchings.
[35]At Annexure “D” to the Receivers Report is a copy of the supporting documentation.
On Friday, 16 October 2020, the Receiver sent the draft claim report to the Applicants which contained details of the cleaning fee payment and outstanding bond monies.
On Tuesday, 27 October 2020, the Applicants responded that a bond was never paid to them. They stated:
There was never any bond paid to me. Theresa Holder was employed as a caretaker only and had no authority to act in collecting rents or bonds. I know now that she did and stole money. I made a complaint to the police but it was not followed up as she and her family had fled to New Zealand.
There is no receipt for the bond that was claimed to be paid although there are receipts for the rent cleaning and holding deposit. It is notable that the receipt 33, 30/1/15 does not add up for rent and cleaning doesn’t add up with there being $560 rent and extra clean $260 making a total of $820.00 NOT $720 as shown on the receipt. Where is the receipt for the $1000.00?
The claimant has no receipt and handed the money over to a third person – and yet you are trying to hold me liable.
I do not believe that I am liable for any of this money as it was a criminal act of Teresa Holder and an act outside the scope of her duties. I dispute that I owe that money.
Tuesday, 27 October 2020 the Receiver sent the following reply to the Applicants:
The act occurred whilst the party who received the bond funds was in your employ, you still owe the tenant and the owner a duty of care. The bond has to be paid you can pursue Holder via the police as a civil matter. But for the purpose of the claim Parkview is liable, the money is still owed.
There does not appear to be any further correspondence in relation to this issue between the Applicant and the Receiver.
The Receiver concluded at the end of the investigation of that:
(a)the bond in the amount of $1,000 should be paid to the RTA; and
(b)cleaning expenses of $260.00 should be refunded to the Claimant as she still resides in the property and expenses for cleaning can be addressed at the end of the tenancy or from bond funds held.

On 22 February 2022, the Chief Executive examined the substance of the claim and was satisfied with the Receivers findings that the bond was not remitted to the RTA. The decision of the Chief Executive stated on the balance of probabilities that:
(a)the Claimant paid $1,820.00 to Teresa Holder representing bond, rent and cleaning expenses;
(b)the $1,820.00 was not deposited into the Applicants trust account;
(c)the bond money of $1,000 was not remitted to the RTA;
(d)there is no evidence that the rent and cleaning expenses have been applied by the agent.
The Chief Executive concluded that the financial loss of Andrea Hutching was represented by the bond not being remitted to the RTA and the payment of exit cleaning expenses while she remained a tenant. The total loss was $1,260.00. The Chief Executive also concluded as follows:
the Chief Executive is satisfied on the balance of probabilities that the Applicant has either misapplied, misappropriated or stolen money entrusted to it in their capacity as the relevant person and has caused the Claimant to suffer a financial loss
Chief Executive was satisfied on the balance of probabilities that Park View Lodge (Qld) Pty Ltd is liable for the financial loss and that upon payment from the Claim Fund to Andrea Hutching, the Applicants are jointly and severally liable to reimburse the Fund in the amount of $1,260.00.
The Application to review a decision filed in the Tribunal on 27 July 2022 provides the following statement as to why the decision is wrong or not properly made:
The tenant was informed that this process would allow them to claim false bond amounts from the business. When the receiver, Julie Williams, spoke with Andrea Hutching she assumed on face value that the allegation was true.
The resident was able to provide copies of all rent receipts but no receipt for the bond. Any bank statement showing 2 x $1000 withdrawals does not prove that the bond was paid merely that the money was withdrawn.
We are unable to see if the money was then deposited back into the same accounts. The lease agreement does not indicate any bond for the property, the resident would have been provided a receipt for the bond.
It can be seen from the numbers of the receipts in the corner that this was not the end of the receipt book. The second invoice dated 30/01/2015 is very detailed about the breakdown of the amount and deduction for the holding deposit is also listed.
The evidence in these proceedings is that financial statements and records were provided to the Receiver which supported the claims made in the Report. The evidence also shows that the Report and the financial statements and records were also available to the Chief Executive who examined those reports before making a decision that on the balance of probabilities the Applicants jointly and severally reimburse the Fund $1,260.00. The Applicants dispute these matters on a number of grounds. Firstly, they dispute whether in fact a bond of $1,000.00 was paid at all. The evidence is that the bond was paid to Teresa Holder, who was an employee of the Applicants at the time. The Applicants say there are no documents such as a receipt for the bond. The Applicant maintains that the claim should be made against Teresa Holder personally who has now returned to New Zealand. They say the fact there was withdrawal of amounts of $1,000.00 from a bank account of Andrea Hutching is not proof that the money was paid as a bond and could have been re-deposited back into the bank account.
The Report by the Receiver shows a thorough investigation into these monies supported by financial and other documents. The Applicants do not support their allegations with any documents and appear to speculate about what might have happened. The Tribunal accepts the evidence, including the supporting documents, in the Receivers Report and examined by the Chief Executive. The Tribunal also finds that there was adequate and sufficient supporting financial and other documentations for the Chief Executive on the balance of probabilities to conclude that the Applicants were jointly and severally liable for the amount of $1,260.00.
The Tribunal is satisfied, on the balance of probabilities, that Andrea Hutching may make a claim in accordance with the provisions in Division 2 of the AFA Act. In deciding this matter, the Tribunal:
(a)takes into account that the evidence establishes that there is no amount which Andrea Hutchings might reasonably have received or recovered if not for the Applicants neglect or default;
(b)takes into account that there is no evidence of any amount ordered to be paid to Andrea Hutching as compensation under the Property Occupations Act 2014 (Qld) ss 188, 204 or 228; and
(c)decides that the amount of Andrea Hutching’s financial loss is $1,260.00; and
(d)the Applicants are the persons liable for that loss on the basis of being jointly and severally liable.
The Tribunal concludes that the claim by Andrea Hutchings against the fund should be allowed in the amount of $1,260.00 and the Applicants are, jointly and severally, liable to reimburse the fund once the payment of that amount has been made.
As a consequence of the Tribunal’s findings, the decision of the Chief Executive made on 22 February 2022 is confirmed.

JOAN HENDERSON (DECEASED)

Joan Henderson was a tenant from February 2017 in unit 57 in the complex managed by the Applicants. She vacated the tenancy on 29 September 2017 and the Applicants claimed for themselves the full amount of the bond of $1,000.00 then held by the RTA.
On 17 March 2021, Joan Henderson made a claim against the Claim Fund on the basis that there may be funds from her tendency in an amount to be determined by the Receiver.
The Receiver was able to identify that a bond of $1,000.00 was paid in respect of this tenancy. However, the bond needed to be adjusted against rent for a period of nine (9) days ($500.00) and cleaning fees of $250.00 which were to be deducted from the bond money. The balance owing and a refund was due to Joan Henderson in the amount of $428.61.
However, the Receiver subsequently obtained further financial information in relation to this claim. In an amended Report of 17 March 2021, the Receiver, after further investigations, identified a Centrelink payment received into trust on 7 September 2017 for $500.00 which was not recorded in the REI or paid to Joan Henderson.
Her son also advised the Receiver that a cleaning fee should not have been charged. He arranged for the cleaning of the unit and it “was spotless on vacating”. He also informed the Receiver that at the commencement of the tenancy the unit was not clean. The Receiver was not able to identify any evidence to substantiate the Applicants claim that a cleaning expense of $250.00 was incurred after the tenancy had expired.
The Receiver recalculated rent due at the end of the end of the tenancy for an unpaid period of nine (9) days. Based on a fortnightly rent of $500.00, the rent due was $321.39. Accordingly, that amount should be deducted from the bond of $1,000.00 leaving a balance of $678.61 to be refunded to Joan Henderson.
The Applicants did not provide a response to this claim by the Receiver.
On 22 February 2022, the Chief Executive examined the substance of the claim and was satisfied on the balance of probabilities with the Receivers assessment of financial loss and the Applicants, in failing to disperse the balance of the bond monies of $678.61, had either misapplied, misappropriated or stolen property entrusted to them in their capacity as a relevant person and thereby caused a claimable event to occur. The Chief Executive allowed the claim and that upon payment from the Claim Fund concluded both Applicants are jointly and severally liable to reimburse the Fund in the sum with $678.61.
The Application to review a decision filed in the Tribunal on 27 July 2022 by the Applicants provides the following statement as to why the decision is wrong or not properly made:

The tenant was 6 months into a 12 month lease agreement when she broke her lease by providing two weeks notice without grounds. No written notice provided
The tenant as per their lease agreement is responsible for returning the unit to the same standard as it was provided to them. The resident did not return the property in a satisfactory state and the unit required a bond and carpet clean. The tenant is also required to pay all reasonable cost involved with re-letting the unit including re-let fee (1 x weeks rent plus GST), advertising costs, cleaning and damages, and any rent until a suitable tenant can be found (loss of rent).
Re-Letting Fee  $253
Bond Clean including carpets  $250
Advertising  $150
Rent Loss to Owner $35.71/day x 126 days           $4,499.46 (includes agents commission)
Agent commission  $382

The Applicant then asked for the claim amount of $678.61 to be reviewed.
The evidence in these proceedings did not include a tenancy agreement between the Applicants and Joan Henderson. If there was such an agreement, it would have been very useful evidence and would assist the determination of this claim. The Applicants rely upon a number of expenses already referred to above which they claim gives them an entitlement to deduct from the bond of $1,000.00. For example, they claim there was an early termination of the 12-month lease giving rise to a rental loss of $4,499.46 (including agents commission). The Receivers Report states that Joan Henderson leased unit 57, but there is no evidence of the terms of the lease. Had there been a written lease, no doubt the Applicants would have made sure that the document was in evidence before the Chief Executive and now the Tribunal. The terms of the lease remain unexplained. The Applicants have shown no basis on which they are entitled to a reletting fee, a bond cleaning (including carpet cleaning) fee, advertising, rental loss or agents commission. The Tribunal rejects those claims as a consequence of the lack of evidence.
The Report by the Receiver is supported by financial and other documents. While the Applicants dispute the Report’s findings and conclusions, the Applicants have not provided any evidence to contradict or to show that that report is in some way incorrect or inaccurate. The Tribunal accepts the Report of the Receiver dated 17 March 2021 and rejects the Applicants assertions that the Report is in some way incorrect or does not take into account additional expenditure when Jan Henderson departed unit 57 in the complex managed by the Applicants.
The Tribunal is satisfied, on the balance of probabilities, that Joan Henderson may make a claim in accordance with the provisions in Division 2 of the AFA Act. In deciding this matter, the Tribunal:
(a)takes into account that the evidence establishes that there is no amount which Joan Henderson might reasonably have received or recovered if not for the Applicants neglect or default;
(b)takes into account that there is no evidence of any amount ordered to be paid to Joan Henderson as compensation under the Property Occupations Act 2014 (Qld) ss 188, 204 or 228; and
(c)decides that the amount of Joan Henderson’s financial loss is $678.61; and
(d)the Applicants are the persons liable for that loss on the basis of being jointly and severally liable.
The Tribunal concludes that the claim by Joan Henderson against the fund should be allowed in the amount of $678.61 and the Applicants are, jointly and separately, liable to reimburse the fund once the payment of that amount has been made
As a consequence of the Tribunal’s findings the decision of the Chief Executive made on 22 February 2022 is confirmed.

KELLY LAWSON (NEE WALKER)

Kelly Lawson was the owner of unit 27 in a complex and appointed the Applicants as managers of that unit.
On 24 September 2020, Kelly Lawson made a claim against the Claim Fund for payments from the Applicants that appeared to be missing and in particular monthly payments in the period from October 2017 to December 2018.
The Receiver investigated this claim and obtained a number of source documents including Tenant Ledges for various tenants of the unit and other documentation including invoices from trades persons. The Receiver undertook a reconciliation of the tenant’s accounts, financial records and other documentations and concluded that after allowance for rental income received, less expenses, disbursements by the Applicants and details of various variances that are an amount of $11,425.07 still remained due by the Applicants as the managers of the unit.
On 30 October 2020, the Receiver sent to the Applicants the draft Report for their comments.
On 10 November 2020, the Second Applicant sent an email to the Receiver stating:
I have asked you to pay her the fees.
You refunded and now you try to claim it. What is this purpose?
On 10 November 2022, the Receiver sent an email to the Second Applicant stating:
Please explain yourself. When have you asked me to pay her fees and why would I pay pre-appointment money owed at any time?
This is a claim for thousands of dollars, where and you failed to pay the owner all monies aid November 2017 to November 2018, no attempt was made to repay her, contact her or to give her money back.
Every audit report in that period declared you I had no funds as at the end of each order period
Then followed further email exchanges between the Receiver and the Second Applicant, however, the Receiver concluded the email exchange by saying that this did not change the dollar value of the funds that were owed to the owners and tenants as at the date of the Receivers appointment from trust, all that ought to have been held in trust.
On 22 February 2022, the Chief Executive examined the substance of the claim and was satisfied that the Receivers findings that on the balance of probabilities the claim should be allowed in the sum of $11,425.07. The Chief Executive was satisfied on the balance of probabilities that the First Applicant is liable for Mr Holmes financial loss and that upon payment from the fund, the Applicants were jointly and severally liable to reimburse the fund the sum of $11,425.07.
The Application to review a decision filed in the Tribunal on 27 July 2022 provides the following statement as to why the decision is wrong or not properly made:
The tenant was in that unit since 2015, in all these years, I did not charge renewal fees. Since 2018, I have increased rent, and have charged a one off $120 renewal fee.
The calculation should be in the amount going to the owner is $10,940.22.
Also, I would like to point out, this amount has been transferred to the owner each month, due to the owner change the bank account details without notification, these funds have been returned to trust account
The evidence of the Applicant is that bank account details for Kelly Lawson changed and she says that while monthly payments were made these were returned to the trust account. She concedes that there is $10,940.22 owing to the Applicant. What is surprising about this evidence is that the Applicants must have known for many months that payments from their trust account to the bank account of Kelly Lawson were being returned to them, but there is an absence of any communication from the Applicants advising of the return of those funds to trust. While the Applicants make a calculation of the amount of $10,940.22 it is unexplained in the Application and by any other evidence.
At the hearing of these proceedings in the Tribunal, the transcript should reveal that the Applicant had no issue with the return to Kelly Lawson of $11,425.07. Since the conclusion of those proceedings, the Applicants have not filed in the Tribunal any necessary concessions or withdrawal of this Application against the claim of Kelly Lawson.
The Report from the Receiver has been compiled following investigations, containing various source documents relating to accounts, exchanges of emails with the Applicant and a reconciliation of financial information has found that there is due to Kelly Lawson an amount of $11,425.07. The Chief Executive has examined the claim and based on the evidence available calculated the financial loss at $11,425.07. The Chief Executive was also satisfied that the claim should be allowed and the First Applicant is liable and that upon payment from the fund, the Applicants are jointly and severally liable to reimburse the fund the sum of $11,425.07.
The Tribunal accepts the evidence in the Report of the Receiver including the calculation set out in the reconciliation as those contents are supported by financial and other source documents including an email exchange with the Second Applicant. The Tribunal does not accept the Applicants statements in relation to this matter that an amount of less than $11,425.07 here is owing.
The Tribunal is satisfied, on the balance of probabilities, that Kelly Lawson may make a claim in accordance with the provisions in Division 2 of the AFA Act. In deciding this matter, the Tribunal:
(a)takes into account that the evidence establishes that there is no amount which Kelly Lawson might reasonably have received or recovered if not for the Applicants neglect or default;
(b)takes into account that there is no evidence of any amount ordered to be paid to Kelly Lawson as compensation under the Property Occupations Act 2014 (Qld) ss 188, 204 or 228; and
(c)decides that the amount of Kelly Lawson’s financial loss is $11,425.07; and
(d)the Applicants are the persons liable for that loss on the basis of being jointly and severally liable.
The Tribunal concludes that the claim by Kelly Lawson against the fund should be allowed in the amount of $11,425.07 and the Applicants are, jointly and severally, liable to reimburse the fund once the payment of that amount has been made.
As a consequence of the Tribunal’s findings, the decision of the Chief Executive made on 22 February 2022 is confirmed.

MARK WELLINGS

Mark Wellings is the owner of unit 14 and unit 15 in a residential complex at Bethania, Queensland, which is managed by Park View Lodge (Qld) Pty Ltd.
From October 2015 to August 2019 unit 15 was tenanted by the Applicants.[36]
[36]The Corduneanu tenancy to February 2019 and the Morrison tenancy to August 2019.
From July 2017 to August 2019 unit 14 was tenanted by the Applicants.[37]
[37]The Carney tenancy, the Mahony tenancy and the Duffy tenancy.
On 2 August 2018, Mark Wellings entered into a “Form 6” appointment and reappointment of the Applicants as a property agent and residential letting agent.
On 17 September 2020, a claim against the Claim Fund was made by Mark Wellings relating to unpaid income from both units.
The Receiver undertook a reconciliation of the trust account operated by the Applicant which revealed that rental income received into the trust account and not dispersed totalled $9,837.54. However, on a review for the period from July 2017 to about March 2019 the balance owing to Mr Wellings was identified as $7,650.54.
The Receiver calculated there had been under payments by the Applicants for unit 15 and that Mark Wellings had also suffered a financial loss. As a consequence, funds were owing to Mark Wellings as follows:
(a)Underpayments during the Corduneanu Tenancy;
(i)      October 2015 to June 2017  $2,553.90; and
(ii)      July 2017 to January 2019  $1948.05
(b)Financial loss during the Morrison Tenancy;
(i)      9 x $50.00 less commission ($37.13)        $412.87
(ii)      Rental 7 August 2019 less commission     $440.40
For unit 14 the Receiver calculated that for the various tenancies, Mark Wellings suffered a financial loss, under payments in rental income and an over payment by the Applicants. As a consequence, funds were owing to him as follows:
(a)Financial loss during the Carney tenancy;
(i)      From 13 December 2017 6 x $20.00 of rental income less commission     $110.10
(b)Under payment during the Mahony tenancy;
(i)      From June 2018 to February 2019 rental income was underpaid               $1,579.94
(c)Over payment by Applicants during the Daffy tenancy;
(i)      March 2019 rental income was overpaid to Mark Wellings  ($220.00)

The Receiver recommended that $7,650.54 was owing to Mark Wellings which should be allowed and that there is sufficient evidence to support the adjudication.
The Receiver gave the Report to the Applicants for their written comments, if any, about the report within 14 days.
On 22 February 2022, the Chief Executive examined the substance of the claim in relation to a number of tenancies and overcharging claims against the Respondents and stated as follows:
For the above three findings, the Receiver was satisfied the First Respondent have applied funds held in trust to cover inflated transaction expenses. For this reason, the Chief Executive is satisfied with the Receivers findings and satisfied on the balance of probabilities that the First Respondent has misapplied property entrusted to it for the benefit of someone else in the capacity as a relevant person.
The Chief Executive is satisfied with the Receivers assessment of financial loss for each of the relevant tenancies including claims of overcharging with the balance due to Mr Wellings of $7,650.54
The Chief Executive decided that the complaint should be allowed and the amount of $7,650.54 be paid to Mr Wellings from the Claim Fund at the expiration of the review period.[38] The Chief Executive also decided that the Applicants are jointly and severally liable to reimburse the fund $7,650.54.
[38]AFA Act s 112.
The Application to review a decision filed in the Tribunal on 27 July 2022 provides the following statement as to why the decision is wrong or not properly made:

The receiver applied high rent as should be. That is a $40 per fortnight difference.
From October 2015 to June 2017, the receiver applied $$2,553.90 rent owing to the owner, but didn’t have any evidence.
The receiver applied Morrison paid $520 as fortnight rent, (please see Morrison’s statement), he has not paid this kind of rent from day one. His rent is $480 per fortnight throughout his whole lease period.
The receiver applied Raveica paid $500 per fortnight in rent, but she never paid this amount rent. Please see her statutory declaration, when she first started her rent amount only $460 per fortnight.
Please see our complex formal body corporate chairman statutory declaration form.
When unit 14 was vacated too long, I paid the owner $900 without any rent income, please confirm with the owner.

The Applicant contends that the Receivers investigation has not been properly performed. The Applicants believe the investigation parallels the OFT investigation, which is not based on true facts. The Applicant says that the Receiver does not allow her to claim exit cleaning fees, broken lease fees, advertising fees and correct management fees.
The Applicants dispute rental calculations by the Receiver and the relevant findings of the Chief executive. The Applicants have not provided any evidence of the tenancy agreements in respect of unit 14 and 15 in the complex. Such a tenancy agreement, if any, will disclose terms relevant to the actual rent payable under the lease and any entitlement for the Applicants to pay to the owner of the unit $900.00 when rent has not been received for that unit. Even if there was some other “authority” relevant to payment of rental and the contributions to the owner that “authority” has not been provided by the Applicants. In summary, the Applicants have made allegations but not supported by any tenancy agreement or other documents.
The Chief Executive had material available including the Report from the Receiver which provided source documents and other relevant information necessary to make findings in respect of the tenancy of Mr Burke.
The Tribunal accepts the evidence available to the Chief Executive and in particular the Report by the receiver and the support documents. The Tribunal does not accept the allegations from the applicant which remain unsupported by any documents or other evidence. Accordingly, the Tribunal accepts the findings made by the Chief Executive and dismisses the Applicants allegations.
The Tribunal finds that there was adequate and sufficient supporting financial and other documentations for the Chief Executive on the balance of probabilities to conclude that the Applicants were jointly and severally liable for the amount of $7,650.54.
The Tribunal is satisfied, on the balance of probabilities, that Mark Wellings may make a claim in accordance with the provisions in Division 2 of the AFA Act. In deciding this matter, the Tribunal:
(a)takes into account that the evidence establishes that there is no amount which Mark Wellings might reasonably have received or recovered if not for the Applicants neglect or default;
(b)takes into account that there is no evidence of any amount ordered to be paid to Mark Wellings as compensation under the Property Occupations Act 2014 (Qld) ss 188, 204 or 228; and
(c)decides that the amount of Mark Wellings’s financial loss is $7,650.54; and
(d)the Applicants are the persons liable for that loss on the basis of being jointly and severally liable.
The Tribunal concludes that the claim by Mark Wellings against the fund should be allowed in the amount of $7,650.54 and the Applicants are, jointly and separately, liable to reimburse the fund once the payment of that amount has been made.
As a consequence of the Tribunal’s findings the decision of the Chief Executive made on 22 February 2022 is confirmed.

JAMES AULD

James Auld occupied unit 5 in the complex managed by the Applicants. He continues to reside in that unit.
Mr Auld commenced his occupation of unit 5 on about 13 October 2018 and entered into a tenancy agreement with the Applicants. That agreement contained a bond lodgement form signed by Mr Auld and it was also signed on behalf of the Applicants.
On 3 October 2018, the Applicants sent an invoice to Mr Auld for $1,816.42. This invoice was for payment of a bond of $1,000.00 and for rent of $816.42.
On 8 October 2018, the trust account statements for the Applicants recorded that $1,816.42 was deposited into the trust account.
The bond money of $1,000.00 was never recorded in the REI Master nor was it lodged with the RTA. The rental income component of the invoice was recorded in the Applicants documents.
According to investigations by the Receiver there is no evidence that the bond monies of $1,000.00 was ever lodged with the RTA.
On 13 July 2021, Mr Auld, by his daughter Charmaine Woods, lodged a claim against the claim fund for the bond money of $1,000.00 which had not been lodged with the RTA by the Applicants.
The Receiver investigated the claim and determined that the bond was received by the Applicants but had not been lodged with the RTA. The bond was to be paid by the Applicants to the RTA on account of Mr Auld.
On 22 February 2022, the Chief Executive examined the substance of the claim and was satisfied on the balance of probabilities that the Receivers findings that the bond was not remitted to the RTA. Chief Executive Officer also determined that Mr Auld’s claim be allowed in the sum of $1,000.00 which is to be paid to the RTA on his behalf and that the Applicants are jointly and severally liable to reimburse the Claim Fund for that bond amount.
The Tribunal finds that there was adequate and sufficient supporting financial and other documentations for the Chief Executive on the balance of probabilities on which to conclude that the Applicants were jointly and severally liable for the amount of $1,260.00.
The Tribunal is satisfied, on the balance of probabilities, that James Auld may make a claim in accordance with the provisions in Division 2 of the AFA Act. In deciding this matter, the Tribunal:
(a)takes into account that the evidence establishes that there is no amount which James Auld might reasonably have received or recovered if not for the Applicants neglect or default;
(b)takes into account that there is no evidence of any amount ordered to be paid to James Auld as compensation under the Property Occupations Act 2014 (Qld) ss 188, 204 or 228; and
(c)decides that the amount of James Auld’s financial loss is $1,260.00; and
(d)the Applicants are the persons liable for that loss on the basis of being jointly and severally liable.
The Tribunal concludes that the claim by James Auld against the fund should be allowed in the amount of $1,260.00 and the Applicants are, jointly and separately, liable to reimburse the fund once the payment of that amount has been made.
As a consequence of the Tribunal’s findings the decision of the Chief Executive made on 22 February 2022 is confirmed.

YVONNE BEECH (DECEASED)

Yvonne Beech leased unit 45 in the complex managed by the Applicants.
At that time she was in the care of the Public Trustee who deposited payments into trust of the First Applicant for her living and personal expenses.
Subsequently, Yvonne Beach ceased to reside at unit 45.
It is claimed that not all of these payments were dispersed to Yvonne Beech and on 18 November 2020 she lodged a claim against the Claim Fund for a refund of $1,760.00 for her living and personal expenses.
The Receiver investigated the claim and determined in a Draft Claim Report dated 19 November 2020 that for the period from 1 July 2017 an amount of $1,930.00 was received into trust and not recorded in the REI. The Receiver also identified a payment of $150.00 was paid to “Amy Galagher” on 1 November 2018.
The Receiver concluded in a Report that an amount of $1,760.00 is due to Yvonne Beech by the Applicants as there has been insufficient proof of payment provided by the Applicants.
The Receiver exchanged emails with the Second Applicant raising a number of inquiries about funds paid into trust for Yvonne Beech. Following that exchange of emails, the Receiver prepared an Amended Draft Claim Report dated 31 May 2021 and adjusted the calculations of the amount paid from trust. The Receiver concluded from the material that the Applicants had dispersed the following funds from trust:
(a)$150.00 to Amy Galagher;
(b)$100.00 to the Applicants chef, Craig, to undertake personal shopping for Yvonne Beech;
(c)$820.00 in cash paid from “Petty Cash” to the daughter over a period of time.
The Receiver determined that total payments of $1,930.00 were paid into trust and after $1,070.00 of payments were made from the trust, there was a balance due to Yvonne Breach is $860.00
On 22 February 2022, the Chief Executive examined the substance of the claim and was satisfied on the balance of probabilities that the claim should be allowed for the amount of $860.00. The Chief Executive said after a review all the material that:
The Receiver concluded that of the $1930.00 deposited into the First Respondent’s (the First Applicant in these proceedings) trust account, the respondents could substantiate that $1070.00 had been disbursed to the Claimant. The Receiver formed this conclusion from information found in the First Respondent’s trust account and petty cash records, responses from the Second Respondent (viz. the second Applicant in these proceedings) and discussions with the Claimant’s daughter.
The Chief Executive while noting in the examination of the material that the Second Applicants responses to the Receiver generally dispute the basis of the claim due to the subject matter involving payments for services rather than property. However, after considering the evidence available the Chief Executive was satisfied that there is a balance of $860.00 unaccounted for which is still ostensibly held in the First Applicants trust account.
The Chief Executive was satisfied on the balance of probabilities that the claim be allowed for the sum of $860.00 and that the First Applicant is liable for the Claimant’s financial loss. The Chief Executive went on to conclude that:
upon payment from the Fund, the First Respondent and Second Respondent are jointly and severally liable to reimburse the Fund the sum of $860.00.
The Application to review a decision filed in the Tribunal on 27 July 2022 provides the following statement as to why the decision of the Chief Executive is wrong or not properly made:
From 20/10/2017 to 26/97/2019
Public Trustee deposited between $20 to $40 different amount into my trust account, each week the carer or the daughter came to our office to pick the cash up then went shopping.
Once Public Trustee deposit the money into my trust account, they will noticed the carer or the daughter. Each week only between $20 to $40, how could I keep $860, this amount equal to over 38 weeks payments to the tenant, do you believe it will be happened?
How can the tenant buy personal items in the 38 weeks time?
The Applicants say that the Receiver just believed whatever the documents recorded and did not do a proper investigation. The Applicant wants the decision to be reviewed.
The Applicants brought these proceedings in the Tribunal. The Applicants claim consists solely of their statements that money in trust was paid out to a carer and the daughter in cash from the Applicant’s office to enable shopping to be undertaken. There is no supporting evidence. There are no statements from the “unnamed” carer or from the daughter to back up the Applicants statements. Even if obtaining that evidence was difficult, there is no explanation as to why shopping receipts or documents have not been provided evidencing spending of the cash payments from the trust account. There is no evidence of what items were purchased or how the cash payments were expended. There is an absolute “void” of evidence which should be available, but is not, to support the Applicants case with respect to this claim.
The Chief Executive relied on evidence provided by the Receivers investigation which contains supporting documentation. There is no reason not to accept that evidence.
The Tribunal finds that there was adequate and sufficient supporting financial and other documentations for the Chief Executive on the balance of probabilities to conclude that the Applicants were jointly and severally liable for the amount of $860.00.
The Tribunal is satisfied, on the balance of probabilities, that Yvonne Beech may make a claim in accordance with the provisions in Division 2 of the AFA Act. In deciding this matter the Tribunal:
(a)takes into account that the evidence establishes that there is no amount which Yvonne Beech might reasonably have received or recovered if not for the Applicants neglect or default;
(b)takes into account that there is no evidence of any amount ordered to be paid to Yvonne Beech as compensation under the Property Occupations Act 2014 (Qld) ss 188, 204 or 228; and
(c)decides that the amount of Yvonne Beech’s financial loss is $860.00; and
(d)the Applicants are the persons liable for that loss on the basis of being jointly and severally liable.
The Tribunal concludes that the claim by Yvonne Beech against the fund should be allowed in the amount of $860.00 and the Applicants are, jointly and severally, liable to reimburse the fund once the payment of that amount has been made
As a consequence of the Tribunal’s findings the decision of the Chief Executive made on 22 February 2022 is confirmed.

ROBIN BLANK

Robin Blank was a tenant of unit 30 in the complex managed by the Applicants. He was in the care of the Public Trustee.
The Applicants records did not contain a tenancy agreement for Robyn Blank.
On 17 October 2017, the Public Trustee paid $1,000.00 into the Applicants trust account with the reference “Deposit Public Trustee bond”. These bond monies were never recorded in the REI and were never lodged with the RTA.
On 16 July 2018, the Applicants evicted Robin Blank from the tenancy.
On 3 September 2020, the Public Trustee, on behalf of Robin Blank, made a claim against the Claim Fund for any funds that may be due to him from the Applicants.
The Receiver made an inquiry of the Applicants as to how the bond funds were applied when Robin Blank vacated the unit. The Applicants responded in these terms:
Robin Blank never paid the bond when he moved in.
The Receiver then provided full details for the bond payment and received the following response from a director of the Applicants:
I must have missed this payment.
The Receiver concluded in the Report dated 15 October 2020 as follows:
As the claimants obligations on vacating the property were all settled by the PT on 16 October 2018, the bond paid for $1,000.00 in 2017 should be refunded directly to the tenant via the office of PT.
On 22 February 2022, the Chief Executive examined the substance of the claim and was satisfied on the balance of probabilities that the Applicants still hold the $1,000.00 bond on behalf of Robin Blank. The Chief Executive was also satisfied that by failing to pay the bond to the RTA and failing to refund the bond at the expiration of the tenancy, the Applicants had either stolen, misapplied or misappropriated property entrusted to them in their capacity as a relevant person and has caused Robin Blank to suffer a financial loss.
The Chief Executive was satisfied on the balance of probabilities that the claim should be allowed in the sum of $1,000.00 and that upon payment from the Fund, the Applicants are both jointly and severally liable to reimburse the Fund the sum of $1,000.00.
The Application to review a decision filed in the Tribunal on 27 July 2022 provides the following statement as to why the Chief Executives decision is wrong or not properly made:
The receiver disallowed to apply correct rent amount. Please see Public Trustees office email, on the 17/8/2018, the Robin Blank’s belongs still in the unit.
The Applicant seeks a review of the claim amount
The Applicant relies upon the Public Trustees email of 17 August 2018. They also maintain that Robin Blank’s belongings are still in the unit. That email is not in the Applicants material before the Tribunal but there is an email dated 17 August 2018 amongst the source documents obtained by the Receiver. The email dated 17 August 2018 is sent from the Public Trustee and states:
I have today discussed this matter with Robin and can confirm he will not be coming to collect his outstanding items.
When I spoke with Amy earlier in the week she advised that there was only a couch and a bookcase left in the in the room. Robin seems to think he still has clothes and also computer speaker.
Please arrange for the new invoice up to and including 16 July 2018 to be sent through for payment.
That evidence does not support the Applicants claim. The evidence provided from the investigations by the Receiver have not been contradicted by any evidence provided by the Applicants. The Chief Executive had the evidence from the Receivers investigations in the form of the Report and was entitled to rely upon those matters in making the determination which is the subject of the review in these proceedings.
The Tribunal also finds that there was adequate and sufficient supporting financial and other documentations for the Chief Executive on the balance of probabilities on which to conclude that the Applicants were jointly and severally liable for the amount of $1,000.00.
The Tribunal is satisfied, on the balance of probabilities, that Robin Blank may make a claim in accordance with the provisions in Division 2 of the AFA Act. In deciding this matter, the Tribunal:
(a)takes into account that the evidence establishes that there is no amount which Robin Blank might reasonably have received or recovered if not for the Applicants neglect or default;
(b)takes into account that there is no evidence of any amount ordered to be paid to Robin Blank as compensation under the Property Occupations Act 2014 (Qld) ss 188, 204 or 228; and
(c)decides that the amount of Robin Blank’s financial loss is $1,000.00; and
(d)the Applicants are the persons liable for that loss on the basis of being jointly and severally liable.
The Tribunal concludes that the claim by Robin Blank against the fund should be allowed in the amount of $1,000.00 and the Applicants are, jointly and separately, liable to reimburse the fund once the payment of that amount has been made

The Tribunal concludes that the claim by Tony Holmes against the fund should be allowed in the amount of $1,198.53 and the Applicants are, jointly and separately, liable to reimburse the fund once the payment of that amount has been made.
As a consequence of the Tribunal’s findings the decision of the Chief Executive made on 22 February 2022 is confirmed.

Human Rights Act

Neither party made submissions whether the Human Rights Act 2019 (Qld) (HR Act) applies to these proceedings.
The Tribunal must consider the human rights of the Applicant under the HR Act in reaching its decision in these proceedings.
The Tribunal is an entity which acts in an administrative capacity and is bound to comply with the HR Act in conducting the review jurisdiction in relation to the Application filed by the Applicants.
In considering the provisions of the AFA Act, the Tribunal must to the extent possible that is consistent with the purposes of the HR Act interpret that legislation in a way that is compatible with the Applicants human rights.[39]
[39]HR Act s 48(1).
The human rights of the Applicants include;[40]
(a)recognition and equality before the law;
(b)property rights;
(c)fair hearing
[40]HR Act s 15, s 24 and s 31.
These human rights have to be considered by the Tribunal in the light of its exercise of the review jurisdiction in these proceedings.
The Tribunal has made findings that the Applicants Application to review the chief Executives decision of 22 February 2022 is dismissed and the Chief Executives decision is confirmed. This finding can possibly be a limitation on the human rights of the Applicants under the HR Act. This limits the Applicants entitlements by imposing, in effect, a liability and limits the Applicants equal treatment with other applicants making Application to the Tribunal for a review of a decision made under the AFA Act.
However, any such limitation on the Applicants human rights arises from the provisions of the AFA Act. While the Tribunal is required to make a decision that is compatible with human rights and is to give proper consideration to human rights relevant to the decision, the Tribunal can make such a decision if the Tribunal could not reasonably have acted differently or made a different decision because of a statutory provision.[41]
[41]HR Act s 58(1)(a) and (b), s 58(2).
The AFA Act creates a legislative scheme in relation to the effective management of trust accounts and promotes responsible management by agents of trust money. It has the purpose of protecting the community from financial damage or injury.
This decision under the AFA Act is made in accordance with statutory provisions and is not an arbitrary decision. It is a decision based upon the legislative scheme and is reasonable and justified in accordance with s 13 of the HR Act in the light of the purposes of the AFA Act. The decision in these proceedings is made in a way that is consistent with the purpose of the legislation and has been interpreted in a way that is compatible with human rights as required by s 48 of HR Act. In these circumstances any limitation on the human rights of the Applicants is reasonable and is justified in terms of section 8(b) of the HR Act.

Conclusion Following Review of Chief Executive’s Decision of 27 February 2022

On 27 February 2022, the Chief Executor made a decision in respect of a number of separate claims against the Claim Fund relating to operations of the trust account of the Applicants.
Each of those separate claims against the Claim Fund have been the subject of the Tribunal’s considerations above in these proceedings. Each of those separate claims has been reviewed by the Tribunal, which has come to the correct and preferable decision. It is a consequence of that review the Tribunal has decided that the correct and preferable decision is to confirm pursuant to s 24 of the QCAT Act the decision of the Chief Executive made on 22 February 2022 in respect of each of the claims against the Claim Fund.
The Tribunal will make orders confirming the decision of the Chief Executive made on 22 February 2022 in these proceedings.