Lamers v Attewell - [2013] QCATA 136

CITATION:

Lamers v Attewell & Anor [2013] QCATA 136

PARTIES:	Anne Marie Lamers (Applicant/appellant)
v
Michael Attewell Stepford Pty Ltd t/as Realty is Us (Respondents)

APPLICATION NUMBER:

APL408-12

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Justice Alan Wilson, President
David Paratz, Member

DELIVERED ON:

6 May 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Leave to Appeal is granted.

2. The Appeal is allowed.

3. The decision made on 30 October 2012 is set aside, and the following orders are substituted:-

Pursuant to s 488 of the Property Agents and Motor Dealers Act 2000, the claim is allowed in the sum of $15,000.00.4.

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 the Applicant the sum of $15,000.00 from the Claim Fund, and if there is an appeal, payment must not be made until the appeal is finally decided.5.

Pursuant to s 488(3)(c) of the Property Agents and Motor Dealers Act 2000, the Respondents Stepford Pty Ltd (Deregistered) and Michael Eric Attewell are named as the persons liable for the financial loss of the Applicant.6.

Upon payment from the Claim Fund, and pursuant to ss 490 and 530 of the Property Agents and Motor Dealers Act 2000, Stepford Pty Ltd (Deregistered) and Michael Eric Attewell are jointly and severally liable to reimburse the Claim Fund by paying the sum of $15,000.00 to the Chief Executive, Department of Justice and Attorney-General.7.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – OCCUPATIONAL REGULATION MATTER – PROPERTY AGENTS – where the applicant made a claim against the Claim Fund established under the Property Agents and Motor Dealers Act 2000 – where the claim was made in relation to property and the applicant’s dealings with a real estate agent – where the applicant contends moneys were provided to the agent for advertising expenses – where the applicant contends the agent did not use the moneys for advertising – where the Tribunal held the moneys were received by the agent as a loan – where the applicant seeks to appeal that decision – whether the appeal should be granted

APPEAL – PRACTICE AND PROCEDURE – EVIDENCE – ADDITIONAL EVIDENCE – where the applicants seeks to adduce additional material – where a letter referring to the source of the moneys given to the marketeer was filed in the Tribunal – whether the Tribunal should allow the applicant to produce additional evidence

Property Agents and Motor Dealers Act 2000 (Qld), s 470(1)
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142(3), s 147(3)(b)

Corporations Act 2000 (Cth), s 601AD(1), s 601AH(5)

Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404, applied
Dearman v Dearman (1908) 7 CLR 549, cited
Fox v Percy (2003) 214 CLR 118, cited
Waltons v New Lakelands Pty Ltd [2013] QCATA 49, cited

APPEARANCES and REPRESENTATION (if any):

This matter was heard and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] QCATA 136
Decision Date: 6 May 2013

CaseChat Overview and Summary

The matter of Lamers v Attewell concerns an application for leave to appeal a decision made by a Tribunal regarding a claim under the Property Agents and Motor Dealers Act 2000. The applicant, Lamers, made a claim against a Claim Fund established under the Act in relation to property dealings with a real estate agent. Lamers contended that moneys were provided to the agent for advertising expenses but were not used for that purpose. The Tribunal found that the moneys were received by the agent as a loan, dismissing the claim. Lamers sought to appeal this decision.

The legal issues before the court involved whether the applicant should be granted leave to appeal and whether additional evidence should be considered. The applicant sought to adduce new material, specifically a letter referring to the source of the moneys given to the agent, which had been filed in the Tribunal. The court needed to determine if this additional evidence should be allowed.

The court granted leave to appeal and allowed the appeal, setting aside the Tribunal’s decision. The court found that the Tribunal had erred in its assessment of the evidence regarding the nature of the transaction between Lamers and the agent. The court concluded that the moneys were provided for advertising expenses and not as a loan. Consequently, the claim was allowed in the sum of $15,000.00, and the Chief Executive was ordered to pay this sum from the Claim Fund. Additionally, the respondents were named as liable for the financial loss and required to reimburse the Fund.

In summary, the court allowed the appeal, granted leave to appeal, and substituted the Tribunal’s decision with specific orders for payment and reimbursement.

Orders

Orders of the court

1. Leave to Appeal is granted.

2. The Appeal is allowed.

3. The decision made on 30 October 2012 is set aside, and the following orders are substituted:-

Pursuant to s 488 of the Property Agents and Motor Dealers Act 2000, the claim is allowed in the sum of $15,000.00.4.

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 the Applicant the sum of $15,000.00 from the Claim Fund, and if there is an appeal, payment must not be made until the appeal is finally decided.5.

Pursuant to s 488(3)(c) of the Property Agents and Motor Dealers Act 2000, the Respondents Stepford Pty Ltd (Deregistered) and Michael Eric Attewell are named as the persons liable for the financial loss of the Applicant.6.

Upon payment from the Claim Fund, and pursuant to ss 490 and 530 of the Property Agents and Motor Dealers Act 2000, Stepford Pty Ltd (Deregistered) and Michael Eric Attewell are jointly and severally liable to reimburse the Claim Fund by paying the sum of $15,000.00 to the Chief Executive, Department of Justice and Attorney-General.7.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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