Harper v Activ8ed Agencies Pty Ltd
[2012] QCAT 159
•18 April 2012
| CITATION: | Harper v Activ8ed Agencies Pty Ltd and Anor [2012] QCAT 159 |
| PARTIES: | Mr Matthew Harper |
| v | |
| Activ8ed Agencies Pty Ltd atf Daminato Family Trust t/as Raby Bay Gardens Mr Robert Daminato |
| APPLICATION NUMBER: | GAR362-11 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Peta Stilgoe, Senior Member |
| DELIVERED ON: | 18 April 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 $8,470.84. [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 Matthew Harper the sum of $8,470.84 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, Activ8ed Agencies Pty Ltd and Robert Daminato are named as the persons responsible for the financial loss of Matthew Harper. [4] Upon payment from the Claim Fund and pursuant to ss 490 and 530 of the Property Agents and Motor Dealers Act2000, Activ8ed Agencies Pty Ltd and Robert Daminato are liable (and if more than one, jointly and severally) to reimburse the Claim Fund by paying the sum of $8,470.84 to the Chief Executive, Department of Justice and Attorney General. |
| CATCHWORDS: | REAL ESTATE AGENT – where funds received and paid into trust not disbursed to owner – where commission claimed when unlicensed – where claim for loss of rent due to tenant’s eviction – claim against the fund Property Agents and Motor Dealers Act 2000, ss 385(4), 470, 488, 490(2) |
APPEARANCES and REPRESENTATION (if any):
This matter was heard on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.
REASONS FOR DECISION
Mr Harper appointed Activ8ed Agencies Pty Ltd to manage his rental property at Cleveland. Mr Daminato is the sole director of Activ8ed Agencies. Both Mr Daminato and the company held Residential Letting Agent licences until October 2008.
Mr Harper made a claim on the statutory claim fund for $20,383.68. Mr Daminato and Activ8ed Agencies received notice of the claim by letter from the Chief Executive dated 21 July 2011.
The tribunal is required to determine whether there should be a payment from the fund. Section 488 of the Property Agents and Motor Dealers Act2000 sets out the process for deciding the claim. The Tribunal must be satisfied that:
a)An event as mentioned in section 470(1) happened; and
b)The claimant suffered financial loss because of the event.
The Tribunal must also take into account any amount the claimant might reasonably have received or recovered if not for the claimant’s neglect or default[1] and any amount ordered to be paid to the claimant as compensation to the claimant under sections 530A, 572D or 592A of PAMDA[2].
[1] Section 488(2).
[2] Section 488(3)(a).
Finally in allowing a claim the Tribunal must decide the amount of the claimant’s financial loss and name the person who is liable for the loss[3].
[3] Section 488(3)(b) and (c).
The event
Mr Harper’s claim is made up of: $929.63 rental withheld in 2008; $2,464.05 “unrecovered operating cash buffer”; and $16,660 withheld rent in 2009/10. An officer of the Chief Executive conducted an investigation of Activ8ed Agencies’ accounts in November 2011. That investigation shows that:
a)Activ8ed Agencies received $17,050 in rental payment on behalf of Mr Harper.
b)Mr Harper received $8,247.51 and Activ8ed Agencies took $663.35 commission.
c)Activ8ed Agencies took a further $331.70 commission at a time when it was no longer licensed.
Activ8ed Agencies has failed to account to Mr Harper for $8,139.14.
The trust account balance at the time of investigation was $1,325.76. Therefore, $6,813.38 which should have been paid to Mr Harper was “missing”.
I am satisfied that, in breach of s 385(4) of PAMDA Activ8ed Agencies has failed to account to Mr Harper for money received into its trust account to Mr Harper’s account. Section 385(4) appears in Chapter 12 Part 1 of PAMDA and a contravention of any of the provisions of Chapter 12 Part 1 is an “event” under s 470(1).
[10] Stealing, misappropriation or misapplication of property entrusted to a relevant person as agent is also an “event” under s 470(1).
[11] I am satisfied that there is an “event” within s 470(1).
Financial loss
[12] I am satisfied that Mr Harper suffered a financial loss because of Activ8ed Agencies’ breach of s 385(4) and because of the stealing, misappropriation or misapplication of trust funds.
[13] Mr Harper has been given the opportunity to file submissions in this proceeding. He has filed some material but none of it addresses the amount of his claim.
[14] I am not prepared to allow a claim for $1,360 for a bond allegedly paid to Mr Daminato. There is no evidence that it was paid to Mr Daminato, even though the tenant was able to show receipts for other payments.
[15] The loss of rent that Mr Harper suffered because of the difficulties with the tenant are not losses attributable to an event under s 470(1). Mr Harper may have a claim against Mr Daminato in relation to those losses, but they are not losses that can be claimed against the statutory fund.
[16] I am satisfied that $8,470.84 is a proper assessment of Mr Harper’s loss.
Other matters
[17] I am required to take into account any amount Mr Harper may have received or recovered if not for his neglect or default.
[18] There is no evidence to suggest that Mr Harper would have been able to receive or recover any amount to reduce his loss if he had taken any different action.
Who is liable for the loss?
[19] Activ8ed Agencies, as the entity trading as Raby Bay Gardens and operating the trust account, is liable for the loss.
[20] 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.
[21] As a director of Activ8ed Agencies, Mr Daminato was an executive officer of the company. Because I have found that the company is a responsible person, it follows that Mr Daminato must also be a responsible person.
Orders
[22] Pursuant to s 488 of the Property Agents and Motor Dealers Act2000, the claim is allowed in the sum of $8,470.84.
[23] 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 Matthew Harper the sum of $8,470.84 from the Claim Fund, and, if there is an appeal, payment must not be made until after the appeal is finally decided.
[24] Pursuant to s 488(3)(c) of the Property Agents and Motor Dealers Act2000, Activ8ed Agencies Pty Ltd and Robert Daminato are named as the persons responsible for the financial loss of Matthew Harper.
[25] Upon payment from the Claim Fund and pursuant to ss 490 and 530 of the Property Agents and Motor Dealers Act2000, Activ8ed Agencies Pty Ltd and Robert Daminato are liable (and if more than one, jointly and severally) to reimburse the Claim Fund by paying the sum of $8,470.84 to the Chief Executive, Department of Justice and Attorney General.
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