Hsu v United Property Specialists Pty Ltd
[2011] QCAT 634
•12 December 2011
| CITATION: | Hsu and Ors v United Property Specialists Pty Ltd and Anor [2011] QCAT 634 |
| PARTIES: | Mr Jung-Kang Hsu Mr Tao Hsu Mrs Yueh Hsia Chou-Hsu |
| v | |
| United Property Specialists Pty Ltd Mr Steven Chen |
| APPLICATION NUMBER: | OCL092-11 |
| MATTER TYPE: | Other civil dispute matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Peta Stilgoe, Member |
| DELIVERED ON: | 12 December 2011 |
| 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 $70,000. [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 Mr and Mrs Hu the sum of $70,000 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 Act2000, United Property Specialists Pty Ltd and Mr Steven Chen are named as the persons responsible for the financial loss of Mr and Mrs Hu. [4] Upon payment from the Claim Fund and pursuant to sections 490 and 530 of the Property Agents and Motor Dealers Act2000, United Property Specialists Pty Ltd and Mr Steven Chen are liable (and if more than one, jointly and severally) to reimburse the Claim Fund by paying the sum of $70,000 to the Chief Executive, Department of Justice and Attorney General. |
| CATCHWORDS: | REAL ESTATE AGENT – where agent received money from prospective buyers – whether money was deposit of “finder’s fee” – where money not returned to prospective buyers – whether a claim on the fund PROCEDURE – where no attendance at directions hearing – where parties invited to notify any opposition to a decision on the papers – where no opposition to hearing on the papers Property Agents and Motor Dealers Act 2000, ss 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
By directions made on 30 August 2011, this proceeding was listed for a directions hearing on 8 November 2011 and a hearing on 10 February 2012. There was no appearance at the directions hearing, so I made directions that, unless there was an objection from the parties, the proceeding would be determined on the papers and without an oral hearing. There was no response from the parties to my direction, so I have determined this matter on the material available to me.
Mr Tao Hsu and Mrs Yueh Hsia Chou-Hsu are husband and wife. Jung-Kang Hsu (Alan) is their son. Because of Mr and Mrs Hsu’s limited command of English, Alan acts as their agent.
United Property Specialists Pty Ltd was a licensed real estate agent. Mr Chen, its sole director was also a licensed real estate agent.
In July 2010, Mrs Hsu saw an advertisement for properties listed for sale by United. She contacted the agency and spoke to Mr Chen. The parties then entered into negotiations for the purchase of commercial property. On 29 July 2010, Mr and Mrs Hsu visited Mr Chen, signed a contract to buy a commercial property at Robina and gave Mr Chen a cheque for $70,000 as a deposit.
The contract did not proceed. Mr and Mrs Hsu asked Mr Chen for the return of the deposit. Mr Chen did not return the deposit so Alan made a complaint to the Office of Fair Trading. In August 2010, Mr Chen provided the Office of Fair Trading with copies of PAMD Forms 22a and 21a showing an agreement in which Mr and Mrs Hsu appointed Mr Chen as a buyer’s agent for a non-refundable fee of $70,000.
Mr and Mrs Hsu have provided statements asserting that they had never seen these documents before the Office of Fair Trading gave them copies and that the signatures on the forms are not their signatures.
Mr and Mrs Hsu made a claim on the statutory claim fund for $70,000. Mr Chen and United Property Specialists Pty Ltd have received notice of the claim.
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).
[10] 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
[11] I have considered the sworn statements of Mr and Mrs Hsu and Alan. They all assert that the money was paid by way of a deposit; that Mr and Mrs Hsu did not sign the Forms 22a and 21a; and that Mr and Mrs Hsu did not appoint Mr Chen as a buyer’s agent.
[12] Mr Chen has not provided a sworn statement. The only evidence before the tribunal is a facsimile from United Property Specialists Pty Ltd dated 25 May 2011. I also note, from a sworn statement by Mr Price, principal investigations officer for the Office of Fair Trading that:
a)Mr Price made numerous attempts to speak to Mr Chen between 16 and 24 August 2010.
b)On 24 August 2010, Mr Chen offered to fax the Forms 22a and 21a to Mr Price.
c)On 25 August 2010, Mr Price emailed Mr Chen to inform him that he (Mr Price) had not received the documents. On the same day, Mr Price attended Mr Chen’s business address to find it was a serviced office. Mr Price emailed Mr Chen again.
d)The Form 22a is not complete.
e)Mr Price considered the fee charged excessive and the fact that it was payable whether or not the agent sourced a property was unusual.
f)Mr Price thought it was unusual that Mr and Mrs Hsu had signed two forms.
[13] Mr and Mrs Hsu’s signature on the forms has been witnessed but Mr Chen has not produced a statement from the witness.
[14] Given that: Mr and Mrs Hsu were not given a copy of the appointment at the time they signed allegedly it; the unusual terms of the alleged authority; that Mr and Mrs Hsu and Alan have all sworn that Mr and Mrs Hsu did not sign the forms; and the absence of a statement from the witness to Mr and Mrs Hsu’s signatures, I prefer the evidence of Mr and Mrs Hsu and Alan and I find that the $70,000 paid to Mr Chen was paid by way of a deposit.
[15] An offence under Chapter 12 Part 1 of PAMDA is an “event” under s 470(1). Mr Chen did not pay the deposit of $70,000 into his trust account as required by s 379(1). Therefore, I find that United Property Specialists Pty Ltd and Mr Chen have contravened a provision of Chapter 12 part 1 of PAMDA.
[16] I am satisfied that the failure to pay the deposit of $70,000 into trust is an “event” within s 470(1).
Financial loss
[17] I am satisfied that Mr and Mrs Hu suffered a financial loss because of Mr Chen’s breach of s 379(1). Alan, as agent for Mr and Mrs Hsu did not suffer financial loss and it is not appropriate to make an order for his benefit.
[18] I am further satisfied that $70,000 is a proper assessment of Mr and Mrs Hsu’s loss.
Other matters
[19] I am required to take into account any amount Mr and Mrs Hsu may have received or recovered if not for their neglect or default.
[20] There is no evidence to suggest that Mr and Mrs Hsu 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?
[21] The obligation to comply with Chapter 12 part 1 of PAMDA rests with both United Property Specialists Pty Ltd and Mr Chen. I am satisfied that both are responsible for the loss suffered by Mr and Mrs Hsu.
Orders
[22] Pursuant to s 488 of the Property Agents and Motor Dealers Act2000, the claim is allowed in the sum of $70,000.
[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 Mr and Mrs Hsu the sum of $70,000 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, United Property Specialists Pty Ltd and Mr Chen are named as the persons responsible for the financial loss of Mr and Mrs Hsu.
[25] Upon payment from the Claim Fund and pursuant to sections 490 and 530 of the Property Agents and Motor Dealers Act2000, United Property Specialists Pty Ltd and Mr Chen are liable (and if more than one, jointly and severally) to reimburse the Claim Fund by paying the sum of $70,000 to the Chief Executive, Department of Justice and Attorney General.
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