Gallas v Hi Surf Resort Pty Ltd
[2014] QCAT 106
•24 March 2014
| CITATION: | Gallas v Hi Surf Resort Pty Ltd & Ors [2014] QCAT 106 |
| PARTIES: | Paul Wayne Gallas Jennifer Gail Gallas (Applicants) |
| v | |
| Hi Surf Resort Pty Ltd Greg Kafritsas Christos Kafritsas (Respondents) |
| APPLICATION NUMBER: | GAR347-13 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Member Paratz |
| DELIVERED ON: | 24 March 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The application for an extension of time to bring a claim against the claim fund under the Property Agents and Motor Dealers Act 2000 is refused. |
| CATCHWORDS: | Where an application to extend time to bring a claim against the claim fund – where no evidence of financial loss – where evidence of a door opening is not sufficient to show misappropriation 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 2009 (QCAT Act).
REASONS FOR DECISION
Paul and Jennifer Gallas owned an investment unit at “Beachcomber” on the Gold Coast, which was placed in a holiday rental pool.
Hi Surf Resorts Pty Ltd had the management rights to the pool. Greg Kafritsas was a Director of the company.
On 25 March 2013 Paul and Jennifer Gallas lodged a PAMD Form 50 claim against the claim fund under the Property Agents and Motor Dealers Act 2000 (Qld) (‘the Act’). The form alleged that the event that gave rise to the claim occurred on 4 August 2011, and that they became aware of the financial loss on 11 August 2012. The claim was for “$10,378 plus $121 for printing of Saflok report”.
On 20 September 2013 the Office of Fair Trading (‘OFT’) issued a PAMD Form 52 Claim out of time notice which advised that the claim was out of time because it was lodged more than one year after they became aware of their financial loss (s 472(2)(a) of the Act). It stated that the event occurred on 20 October 2010, and that they became aware they had suffered financial loss on 1 August 2011.
Paul and Jennifer Gallas filed an Application for an extension of time in the Tribunal on 3 October 2013.
I gave Directions on 15 October 2013 for the filing of material by the parties, and for a determination on the papers after 2 January 2014 if no application for an oral hearing was received.
No further material was filed by the Applicants or the Respondents. An email was received by the Registry on 22 October 2013 from Paul and Jennifer Gallas that ‘At this point in time we do not have any more material to supply’.
A submission was filed by the Chief Executive on 4 December 2013. A copy of the submission was sent to the Applicants and the Respondents. No response to that submission was received from any party.
No application for an oral hearing was made. This is the decision as to the application on the papers.
The only information received from Paul and Jennifer Gallas is the details on the application. They state:
We removed our unit from the rental pool on 1st August 2011 due to very poor returns/use. Further enquiries to wholesalers confirmed that the amounts the wholesalers were paying Beachcomber, less their 10% commission, fell short of the amounts that were stated on our invoices/statements.
On 4th August 2012 we had our Saflok door key audited, showing numerous discrepancies confirming our suspicions of alleged inappropriate use of our unit without payment.
We have tried to get an explanation from Beachcomber without success.
We then put our suspicions to Office of Fair Trading in July 2011 and as yet they are still investigation this complaint.
We ask for an extension in time whilst the Office of Fair Trading continue to investigate the amounts paid by wholesalers and the Saflok discrepancies which has not yet been resolved.
The Chief Executive has assessed the date of awareness of Paul and Jennifer Gallas as 1 August 2011.[1] That date relates to when they first contacted the OFT to lodge a complaint against the respondent. The OFT subsequently forwarded a PAMD Form 50 claim form and two fact sheets on how to make a claim.
[1]Submissions of the Chief Executive 4 December 2013.
An affidavit of Jacqueline Birkett, who is a claims support officer with the OFT states that she forwarded the claim form and fact sheets to Paul Gallas by email on 1 August 2011.
There is a difference of just over one year between the date that Paul and Jennifer Gallas say is the date they became aware of their financial loss as 11 August 2012, and the date assessed by the OFT.
No evidence is provided by Paul and Jennifer Gallas as to how the date of awareness of 11 August 2012 is substantiated.
In the absence of any evidence as to the date of financial loss, I accept the submission of the Chief Executive that Paul and Jennifer Gallas were aware on 1 August 2011 that they had suffered financial loss on that date, as they made a complaint to the OFT on that date, and withdrew the unit from the rental pool on that date.
Section 472 provides that a claim must be made within the earlier of one year after the person becomes aware they have suffered financial loss, or three years after the happening of the event.
The earlier of these dates is the financial loss period of one year after awareness which would be 1 August 2012. The claim was not made until 25 March 2013.
I am satisfied that the claim is therefore out of time, and an extension of time under s 511 of the Act is required for the claim to proceed.
The Tribunal may allow an extension of time under section 511 of the Act if it is satisfied it is appropriate having regard to four factors:
Section 511(1)(b)(i) the reasons for not making the claim or seeking the review within the time allowed
The Chief Executive submits that the Tribunal has historically denied applications to extend time where an applicant was aware of their claim rights and was unable to provide a sufficient reason of the delay in lodging their claim, and refers to two cases.[2] It submits that there is no evidence to indicate a valid reason for the delay in lodging the claim.
[2]White & Foo v Tuxford & Hutchinson [2010] QCCTPAMD 13; Blacket and Anor v Wight & Anor [2012] QCAT 158.
The only indication of a reason by Paul and Jennifer Gallas for the delay in lodging a claim is that they believed that OFT were investigating the matter.
Paul and Jennifer Gallas were in possession of the requirements for lodging a claim from 1 August 2011 when the claim form and fact sheets were sent to them. They cannot say that they were unaware of the requirements as to timing, and cannot point to any intervening factor or particular reliance they were placing on any adviser. There is no suggestion that the OFT advised them not to lodge a claim form whilst investigations were continuing.
I am therefore unable to be satisfied that a valid reason for making the claim within time has been established.
Section 511(b)(ii) the application generally
The Chief Executive submits that the claim relies heavily on a Saflok audit report identifying when the door to the Applicant’s holiday letting room had been opened. It says that based on this report Paul and Jennifer Gallas have inferred that various short term tenants had been staying at their property for periods of time not reported by the respondents, but that this is not enough to ground a claim for misappropriation of rental income.
Paul and Jennifer Gallas have not provided any evidence of misappropriation of moneys. The mere opening of a door by someone who was authorised to do so, such as a building manager, is not evidence of anything in particular – it may be that the door was opened to allow potential guests to inspect the unit, or for cleaning, maintenance or security purposes, or for a myriad of other reasons.
I am therefore not satisfied that the application generally justifies an extension of time.
Section 511 (b)(iii) for a claim, the relative hardship that an extension of time or a refusal to extend time would place on the claimant or respondent
No material has been received from the company or Greg Kafritsas or Christine Kafritsas raising any hardship they may suffer from the delay in bringing the claim.
If Paul and Jennifer Gallas were able to establish any misappropriation, and that they had suffered financial loss, then as there is no evidence of any hardship that an extension of time would cause the respondents, then in relative terms this factor would be made out.
However, in the absence of any evidence of financial loss, I am not satisfied that this factor is made out.
Section 511(1)(b)(iv) the justice of the matter generally
The Chief Executive submits that Paul and Jennifer Gallas were clearly unhappy with the level of service that was provided by the respondents, and removed the property from the letting pool, but have presented no evidence that supports a valid claim against the claim fund.
The claim that Paul and Jennifer Gallas are seeking to make of $10,378 plus some expenses is substantial, but in the absence of evidence supporting the claim, it cannot succeed, and there is no point in extending the time to bring the claim.
Conclusion
I find that the claim was brought out of time, but I am not satisfied that the requirements of s 511 of the Act have been made out sufficiently to allow an extension of time to be granted in order to allow the claim to be made.
The application for an extension of time to bring a claim against the claim fund under the Property Agents and Motor Dealers Act 2000 is refused.