Hayman v JLRT Pty Ltd
[2014] QCAT 262
| CITATION: | Hayman v JLRT Pty Ltd [2014] QCAT 262 |
| PARTIES: | Peter Hayman Lynn Hayman (Applicants) |
| v | |
| JLRT Pty Ltd James Lyons Realty Pty Ltd James Lyons (Respondents) |
| APPLICATION NUMBER: | GAR445-14 |
| MATTER TYPE: | Other civil dispute matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member Stilgoe, OAM |
| DELIVERED ON: | 10 June 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Pursuant to s 488 of the Property Agents and Motor Dealers Act 2000, the claim is allowed in the sum of $200,000. 2. Pursuant to s 489 of the Property Agents and Motor Dealers Act 2000, at the expiration of the appeal period, the Chief Executive must pay to Peter and Lynn Hayman the sum of $200,000 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 Act 2000, James Lyons Realty Pty Ltd and James Robert Lyons are named as the persons responsible for the financial loss of Peter and Lynn Hayman. 4. Upon payment from the Claim Fund and pursuant to sections 490 and 530 of the Property Agents and Motor Dealers Act 2000, James Lyons Realty Pty Ltd and James Robert Lyons are liable (and if more than one, jointly and severally) to reimburse the Claim Fund by paying the sum of $200,000 to the Chief Executive, Department of Justice and Attorney General. |
| CATCHWORDS: | PROPERTY AGENT – CLAIM FROM THE FUND – where deposit for expression of interest paid to agent – where purchasers claimed return of deposit – where no funds in account – whether misappropriation of funds – who was responsible person Property Agents and Motor Dealers Act 2000, ss 470, 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
In January 2013, an agent from Chase Commercial contacted Mr and Mrs Hayman about the opportunity to buy commercial property at Tingalpa.
On 25 January 2013, the Haymans sent a signed an expression of interest to Chase Commercial. On 4 February 2013, James Lyons requested a deposit of $90,000 to James Lyons Realty Pty Ltd trust account to secure the expression of interest. Mr Hayman arranged for the deposit.
On 9 February 2013, Lyons sent an email to Mr and Mrs Hayman advising that a Stage 2 deposit of $90,000 was required. The Haymans arranged a deposit of $80,000 on 12 February and a further $10,000 on 13 February 2013.
On 20 May 2013, Lyons requested a further, final deposit of $90,000. The Haymans arranged a deposit on 22 May 2013.
Mr and Mrs Hayman did not receive trust account receipts for any of their payments.
On 6 June 2013, Mr and Mrs Hayman received information that Chase Commercial had not received any funds and there was a possibility their funds had been misappropriated. On 11 June 2013, Chase Commercial confirmed that it had no funds on account of Mr and Mrs Hayman. They then lodged a compliant with the Queensland Police Service. Mr and Mrs Hayman’s money has not been returned.
Mr and Mrs Hayman made a claim on the statutory claim fund for $200,000. Lyons and James Lyons Realty Pty Ltd received notice of the claim.
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 and Mrs Hayman suffered financial loss because of the event.
[1] Property Agents and Motor Dealers Act 2000 (Qld) s 488(2).
I must also take into account any amount Mr and Mrs Hayman might reasonably have received or recovered if not for their neglect or default and any amount ordered to be paid to Mr and Mrs Hayman as compensation to the claimant under sections 530A, 572D or 592A of PAMDA[2].
[2] Ibid s 488(3)(a).
Finally, in allowing a claim I must decide the amount of Mr and Mrs Cooper’s financial loss and name the person who is liable for the loss[3].
[3] Ibid s 488(3)(b) and (c).
The event
The stealing, misappropriation or misapplication by an agent of property entrusted to that person as agent for someone else in their capacity as agent is an “event” under s 470(1)(e).
I have evidence of the three transfers by Mr and Mrs Hayman to an account in the name of James Lyons Realty Pty Ltd. The total of the transfers is $270,000. I have a copy of the bank statements from James Lyons Realty Pty Ltd which show the receipt of that money. They also show a series of internet transfers, none of which was authorised by Mr and Mrs Hayman. The material before me does not disclose the fate of the missing funds.
Misappropriation of funds is an “event” under s 470(1). I am satisfied that Lyons misappropriated the trust account money and that this is an “event” within s 470(1).
Financial loss
I am satisfied that Mr and Mrs Hayman suffered a financial loss because of Lyons’ breach of s 470(1)(e).
I am further satisfied that $270,000 is a proper assessment of Mr and Mrs Hayman’s loss. However, as the maximum claim on the fund is $200,000, I am unable to allow a claim for the full amount of Mr and Mrs Hayman’s loss.
Other matters
I am required to take into account any amount Mr and Mrs Hayman may have received or recovered if not for their neglect or default.
There is no evidence to suggest that Mr and Mrs Hayman 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?
The funds were paid to James Lyons Realty Pty Ltd. That entity is responsible 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 a director of James Lyons Realty Pty Ltd, James Robert Lyons was an executive officer of the company. Because I have found that the company is a responsible person, it follows that he must also be a responsible person.
The only connection between James Lyons Realty Pty Ltd and JRLT Pty Ltd is that the latter was the sole shareholder of the former. There is no evidence that JRLT Pty Ltd received any of the money or that it was actively involved in the transaction. It is not a responsible person within the meaning of s 490(2).
Orders
Pursuant to s 488 of the Property Agents and Motor Dealers Act 2000, the claim is allowed in the sum of $200,000.
Pursuant to s 489 of the Property Agents and Motor Dealers Act 2000, at the expiration of the appeal period, the Chief Executive must pay to Mr and Mrs Hayman the sum of $200,000 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 Act 2000, James Lyons Realty Pty Ltd and James Robert Lyons are named as the persons responsible for the financial loss of Mr and Mrs Hayman.
Upon payment from the Claim Fund and pursuant to sections 490 and 530 of the Property Agents and Motor Dealers Act 2000, James Lyons Realty Pty Ltd and James Robert Lyons are liable (and if more than one, jointly and severally) to reimburse the Claim Fund by paying the sum of $200,000 to the Chief Executive, Department of Justice and Attorney General.
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