Lamers v Attewell
[2013] QCATA 136
•6 May 2013
| 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) Corporations Act 2000 (Cth), s 601AD(1), s 601AH(5) Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404, applied |
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.
REASONS FOR DECISION
Justice Alan Wilson, President
In this matter the Appeal Tribunal consisted of Mr David Paratz, QCAT Member and me. I have had the benefit of reading his reasons in draft. I agree with his reasons, and his conclusions, and the order he proposes.
Mr David Paratz, Member
Mrs Lamers owned a house in South-East Queensland. In May 2008 she wanted to sell her house and buy a different one. She was an elderly lady of 78 years of age at the time. She engaged Mr Attewell, who was a licensed Real Estate Agent, and his agency, to sell her house.
No sale was achieved, but this initial contact led to ongoing contact between Mrs Lamers and Mr Attewell.
Mrs Lamers said that she had paid $15,000 to Mr Attewell in 2010 for advertising costs. She said that Mr Attewell did not use the moneys for those purposes, and has not repaid the money.
Mr Attewell was the executive officer of Stepford Pty Ltd which traded as Realty is Us, and held a licence as a Real Estate Agency.
Mrs Lamers made a claim against the fund established under the Property Agents and Motor Dealers Act 2000 (‘the Act’) on the basis that Mr Attewell had breached the Act.
The Chief Executive referred the claim to the Tribunal for determination under Chapter 14 of the Act.
A Senior Member of the Tribunal heard and determined the matter on the papers on 30 October 2012.
The Senior Member found that she was not persuaded that Mrs Lamers gave Mr Attewell $15,000. She noted that there was no evidence that Mrs Lamers ever had $15,000 in cash, or gave any of the money that she received from her son to Mr Attewell.
The Senior Member found that it was more likely, in view of their relationship at the time, that if Mrs Lamers gave Mr Attewell money, it was as a loan, rather than for advertising. She further found that she was not satisfied that Mr Attewell received the money in his role as a property agent, and that it was more likely that he received it in his personal capacity.
The Senior Member was therefore not satisfied that there was an ‘event’ within s 470(1) of the Act, and dismissed the Application.
Mrs Lamers appealed the decision of the Tribunal on 27 November 2012. Eight grounds of appeal are set out. The grounds of appeal do not refer to any specific error of law or fact, but generally discuss the facts, and query why further evidence has not been obtained by the Department or the Tribunal, resulting in an injustice to Mrs Lamers.
I will treat the Appeal as a question of mixed law and fact. Leave to Appeal is therefore required.[1]
[1] Queensland Civil and Administrative Tribunal Act 2009, s 142(3) (‘QCAT Act’).
Directions were made on 14 March 2013 for the provision of any further statement of evidence by Mrs Lamers by 28 March 2013.
The Appeal Tribunal will only accept fresh evidence if it was not reasonably available at the time the proceeding was heard and determined.[2]
[2] Waltons v New Lakelands Pty Ltd [2013] QCATA 49.
Ordinarily, an applicant for leave to adduce such evidence must satisfy each of the following tests:
a) The evidence could not have been obtained with reasonable diligence for use at the trial;
b) The evidence, if allowed, would probably have an important impact on the result of the case (although it need not be demonstrated that it would be decisive); and
c) That the evidence is credible though it need not be incontrovertible.[3]
[3] Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 408.
A letter from Mr David Lamers (Mrs Lamer’s son) was filed on 28 March 2013, referring to the source of the moneys given to Mr Attewell.
The Queensland Police Service provided further evidence in relation to the matter on 17 December 2012, and 8 March 2013. The evidence was obtained in relation to an active investigation, so specific reference will not be made to the circumstances giving rise to it.
The statement from Mr Lamers is not direct evidence, and is not of probative value. The Police material however is credible, and does have an important impact on the result of the case, and as it is in relation to a current investigation was not available on the hearing.
I consider it is the interests of justice that the fresh evidence from the Police be accepted. For reasons which will become apparent, the new evidence must, on any view, be categorised as having an important impact on the result of the case and, in important and relevant respects, is credible.
The first is an addendum statement made to the Police on 2 March 2013 in which Mrs Lamers states that she had originally stated that she had given Mr Attewell $15,000 to pay for the advertising of her house, and that the entire amount had come from an area of her house where she had secreted it, and that she came into possession of this amount of money from the sale of her son’s former house.
She then states that this earlier statement was not exactly correct, and that on reflection she remembers that she initially gave Mr Attewell an amount of $10,000 which she had secreted in her house. That amount had come from money left to her by her partner in 1994, and from the proceeds of sale of her car. She remembers that she withdrew $5,000 from her Bank of Queensland account, and this made up the $15,000 which she gave to Mr Attewell.
Mrs Lamers states that the $15,000 which she thought had come from the sale of her son’s house was in fact deposited into her Bank of Queensland account.
Next Reina Attewell, the former wife of Mr Attewell, says in a statement to the Police that she remembers that in April 2010 she observed that an amount of $10,000 was deposited into the Stepford Pty Ltd trading as Realty is Us general business account. She remembers Mr Attewell initially saying the money came from an overdraft with the ANZ Bank, but then later him saying he had in fact borrowed it from a friend. She also remembers him advising her in October 2010 that he had obtained $5,000 from a friend and banked it into the general business account. She says that the business was struggling at the time.
In the Application for Leave to Appeal, at Part C ‘Grounds of Appeal’, it is claimed that Mr Attewell had revealed to Reina Attewell that the money was from Mrs Lamers, and that the amounts were entered into the Realty is Us trust account for advertising. This claim is not however supported by the statement of Reina Attewell that has been provided – in the statement, she refers only to moneys being borrowed and being banked into the general account.
The Grounds of Appeal also refer to conversations between David Lamers and Sally Lealy, the receptionist for the agency, as to statements made to Ms Lealy by Mr Attewell. Those reports are not direct evidence. No statement of Sally Lealy as to conversations she had with Mr Attewell is available. The Grounds of Appeal claim that Mrs Lamers and her son were advised not to make contact with Ms Lealy, in light of the ongoing investigation. However, the police material does not include a statement from her either.
In the Grounds of Appeal, reference is also made to a meeting with compliance officer Cameron Hargrave, and a query is raised as to why the Trust Account ledger from the agency had not been requested by the Department of Fair Trading or QCAT. The Office of Fair Trading advised Mr David Lamers in a letter dated 19 January 2012 that Mr Hargrave had been investigating the complaint, and listed documents which had been obtained. Mr Hargrave did not refer to any trust account records of the real estate agency.
There is no evidence that the moneys that were obtained from Mrs Lamers by Mr Attewell were ever deposited into the trust account of the agency. The statement of Reina Attewell indicates that deposits were made by Mr Attewell, but to the general account, not to the trust account.
The further statements of Mrs Lamers and Reina Attewell together substantiate that $15,000 was provided to Mr Attewell by two payments of $10,000 and $5,000, and that it was provided by Mrs Lamers. Had they been available at the hearing the learned Senior Member’s findings about the evidence would, in all probability, have been different.
However, this new and relevant evidence does not advance the next question: whether the moneys were provided as a loan to a friend, or whether they were specifically provided for advertising.
The only documentation that relates to the payment of $15,000 to Mr Attewell by Mrs Lamers is the handwritten note dated 23 February 2010 signed by Mr Attewell, which refers to his having borrowed the money.
In her statement, dated 16 May 2011, Mrs Lamers says that Mr Attewell told her that he thought they needed to advertise her house in the Courier Mail and the Gold Coast Bulletin if they were going to get a buyer. He told her that it would cost $15,000 to $20,000 to pay for this advertising. She then gave him $15,000 consisting of Australian $100 and $50 notes.
The learned Senior Member was, on the evidence before her, entitled to conclude that the money which Mrs Lamers paid to Mr Attewell did not come from cash she had in her house from the sale of her son’s property.
Given that Mrs Lamers was incorrect in her original recollection as to the origin of the money, does this necessarily mean that she is incorrect in her ongoing recollection as to the reason she paid the money?
The learned Senior Member was viewing the evidence of Mrs Lamers as a whole and once she found, as she was entitled to do on the evidence at the time, that a primary question as to whether money could have been paid from funds from the sale of Mrs Lamer’s son’s house was not supported, this would necessarily affect her ability to go on to find that a repayment was due under the Act.
Now that there is evidence which supports Mrs Lamer’s version that she had $15,000 which she could pay to Mr Attewell, the question becomes whether her evidence can, and should, be accepted as to the payment and the reasons for it.
Mrs Lamer’s son is understandably upset at the actions of Mr Attewell in taking advantage of his mother’s lack of sophistication in financial matters, and her general vulnerability due to her age and loneliness, and would like to see her money recovered.
In her decision, the learned Senior Member found that she was not satisfied that the moneys were provided to Mr Attewell on any basis other than a loan, and therefore did not come within the provisions relating to the fund.
Findings of fact by a Tribunal will not usually be disturbed on appeal if the facts inferred by the Tribunal, upon which the finding is based, are capable of supporting its conclusions, and there is evidence capable of supporting any inferences underlining it.[4]
[4]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.
The decision of the learned Senior Member was based upon a careful consideration of the evidence available at that time, and the decision is one that was, certainly, reasonably made upon the evidence. There is nothing in the material that persuades me that the learned Senior Member should have taken a different view of the facts on the evidence before her.
In the face of the new and additional evidence, however, a finding is open that the whole of Mrs Lamers’ version, both as to the origin of the money and the reason she paid it is credible and is not contradicted by any other material.
The mere fact that Mr Attewell described the payment in the handwritten note as a personal borrowing is not conclusive of the matter. Mr Attewell has acted in an improper way on all the material, and it may well be that he was deliberately seeking to overtly separate the payment from his business dealings, notwithstanding that he used the funds to support his business which was in financial difficulty.
Mrs Lamers was unsophisticated in business matters, and it would have been unlikely to occur to her that the note was insufficient evidence of the payment, or that it should have been in a more official form or refer to the agency transaction. In her mind she may well have been satisfied that she had obtained any acknowledgement in writing at all.
The further evidence does not add to the evidence on the central assertion of Mrs Lamers that the moneys were provided in the usual course of business of the real estate agency rather than as a personal loan, but it does not contradict it either.
In those circumstances the question that arises is whether there is any reason to disbelieve Mrs Lamers when she says she believed she was paying the money to the agent for advertising costs for her house? Whilst the house had been on the market for some time, she had not appointed any other agent, and in her mind Mr Attewell would still have been the agent handling any sale.
Mr Attewell was obviously deliberately seeking to obtain money from Mrs Lamers for his own purposes. To do so, he would have put forward a plausible basis to Mrs Lamer as to why he should be given money.
The amount of $15,000 is clearly well beyond a usual and reasonable amount for ordinary advertising costs for a regular residential house. The Department suggests that an amount of $2,000 would be a more normal amount. However, if it is accepted that Mr Attewell was deliberately seeking to deceive Mrs Lamers, then it is not unbelievable that he was persuasive in doing so, and that Mrs Lamers was unaware of usual costs, and was swayed by his representations.
The relationship between Mrs Lamers and Mr Attewell at the time was of an intermittent nature. It was not of a personal nature. There is no indication that it was of such a nature that would reasonably lead to a belief, or conclusion, that Mrs Lamers lent the amount of $15,000 to Mr Attewell as a personal loan on the basis of friendship.
Leave to appeal will ordinarily only be granted where there is some question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage; or, there is a reasonably arguable case of error in the primary decision and a reasonable prospect that the applicant would obtain further substantive relief. Another question sometimes asked is: is leave necessary to correct a substantial injustice to the applicant, caused by some error?
In this case further evidence has become available which is admissible and persuasive, and a substantial injustice would be caused to Mrs Lamers if that further material was not considered. Once it is considered, the evidence is also, for the reasons set out above, persuasive that the original decision ought not stand. It would have been different if the new evidence had not been available.
Leave to appeal should, therefore, be granted.
For the reasons explored earlier I accept the evidence of Mrs Lamers, as it now stands, that she had $15,000 which she gave to Mr Attewell as a Real Estate Agent for advertising costs, and that the moneys were misapplied and have not been repaid.
Once it is accepted that Mr Attewell received the money in his capacity as a real estate agent in the usual course of business, then it follows that the provisions of the Act will apply to his handling of the money thereafter.
I am satisfied that Mrs Lamers has proven her claim pursuant to s 488 of the Act.
Accordingly, I allow the Appeal.
In deciding an appeal on a question of mixed law and fact, the Appeal Tribunal may set aside the decision and substitute its own decision under s 147(3)(b) of the QCAT Act.
I consider it appropriate in this matter to set aside the decision and substitute a new decision, as all necessary material is before the tribunal in order to do so.
Searches disclose that the sole Director and Secretary of Stepford Pty Ltd from 10 November 2004 to 31 March 2012 was Michael Eric Attewell. The company was deregistered on 31 March 2011.
Section 601AD(1) of the Corporations Act 2000 (Cth) provides that a company ceases to exist on deregistration. The property of a deregistered company vests in the Australian Securities and Investments Commission (‘ASIC’).
A company may be reinstated under s 601AH of the Corporations Act 2000. Under s 601AH(5) if a company is reinstated, the company is taken to have continued in existence as if it had not been deregistered.
Section 490(2)(b) of the Act provides that every person who was an executive officer of the corporation when the relevant event happened is a liable person. As Mr Attewell was an executive officer of the company, he would be a liable person by operation of that section.
The situation of the company is more complex. The company may have assets, so an avenue of recovery against it may be of value. The Chief Executive may have to seek a court order in conjunction with ASIC, or apply for reinstatement of the company, in order to proceed.
The Chief Executive has proposed that if an order is made against the company as a liable person, that the deregistration be noted on the Order in the interest of recovering a debt from it. I am prepared to accede to this proposal, as the company would be a liable party if it were still registered, and it will be a matter for the Chief Executive to effect such a recovery against the deregistered company.
I am satisfied on the balance of probabilities that Mrs Lamers is entitled to claim against the fund under the Act for the amount of $15,000.00, and that Stepford Pty Ltd (Deregistered) and Mr Attewell are liable persons under the Act.
Accordingly, I would order as follows:
(1) Pursuant to s 488 of the Property Agents and Motor Dealers Act 2000, the claim is allowed in the sum of $15,000.00.
(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 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.
(3) 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.
(4) 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.
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