Lamers v Stepford Pty Ltd
[2012] QCAT 542
•30 October 2012
| CITATION: | Lamers v Stepford Pty Ltd and Anor [2012] QCAT 542 |
| PARTIES: | Anne Marie Lamers |
| v | |
| Stepford Pty Ltd t/as Realty is Us Michael Attewell |
| APPLICATION NUMBER: | OCL050-12 |
| MATTER TYPE: | Other civil dispute matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Peta Stilgoe, Senior Member |
| DELIVERED ON: | 30 October 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | The application is dismissed. |
| CATCHWORDS: | PROPERTY AGENT – where money given to agent – whether given as a loan or for advertising – where money not spent on advertising – where money not repaid 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
Mrs Lamers is an elderly woman who listed her home for sale with Stepford Pty Ltd trading as Realty is Us. Mr Attewell was the principal of that company and the agent who dealt with Mrs Lamers. Both the company and Mr Attewell were licensees.
Mrs Lamers listed her home with Mr Attewell in May 2008. At the same time, she signed a contract to purchase another property. The purchase was subject to sale and settlement of her home by 24 July 2008.
Mrs Lamers did not sell her home. Indeed, she says it was still on the market in 2010, even though Mr Attewell’s appointment expired on 24 July 2008. Mrs Lamers says that, in February 2010, Mr Attewell asked for, and received $15,000 on account of advertising expenses. Mrs Lamers said that she gave Mr Attewell $15,000 cash but Mr Attewell did not use it for advertising. Instead, he paid some personal bills. Mrs Lamers says that she told Mr Attewell she wanted her money back so Mr Attewell suggested that he write a note saying that it was a loan, which he would repay. Mrs Lamers has provided a copy of a note in these terms:
23.2.2010
I Mike Attewell borrowed the sum of $15,000 from Anne Marie Lamers
(signed)
On Tuesday the 23 Feb 2010
Mrs Lamers says that Mr Attewell borrowed a further $500 later that year but paid it back within a couple of weeks. He has not repaid any of the $15,000.
Mrs Lamers made a claim on the statutory claim fund for $15,000. Mr Attewell has not received notice of the claim because he has decamped to China. The company was de-registered in April 2012.
In considering a claim against the fund, I must be satisfied[1] that an event as mentioned in section 470(1) happened and that Mrs Lamers suffered financial loss because of the event.
[1] Property Agents and Motor Dealers Act 2000, s 488(2).
I must also take into account any amount Mrs Lamers might reasonably have received or recovered if not for her neglect or default and any amount ordered to be paid to Mrs Lamers as compensation to the claimant under sections 530A, 572D or 592A of PAMDA[2].
[2] Section 88(3)(a).
Finally, in allowing a claim I must decide the amount of Mrs Lamers’ financial loss and name the person who is liable for the loss[3].
[3] Section 488(3)(b) and (c).
The event
Stealing, misappropriation or misapplication of property entrusted to a licensee, in their capacity of licensee, is an “event” under s 470(1)[4]. If I am satisfied that Mr Attewell, acting in his capacity as licensee, misapplied $15,000 Mrs Lamers gave to him, then it will be an event.
[4] Section 470(1)(e).
I am not persuaded that Mrs Lamers gave Mr Attewell $15,000. Mrs Lamers and her son have both provided statements. Mrs Lamers says that she held $15,000 in the house in cash. She says that her son gave her that money as payment for work she had undertaken for his rental property. She says that her only other source of income was her fortnightly pension which was paid into her Westpac account.
Mr Lamers tells a different story. He says that he paid his mother by a cheque for $14,400 plus the (unspecified) bond money. Bank statements show that a cheque for $14,400 was deposited into Mrs Lamers’ Bank of Queensland account in June 2009. There was only one withdrawal from the account, an amount of $5,000 in September 2010.
There is no evidence that Mrs Lamers ever had $15,000 in cash. There is no evidence that she gave any of the money she received from her son to Mr Attewell. The documentary evidence, in fact, suggests that she did not pay Mr Attewell any money.
Mrs Lamers says that she developed a friendship of sorts with Mr Attewell that had an unfortunate, hurtful and distasteful end. I accept that Mrs Lamers was vulnerable to rogues like Mr Attewell. I accept that she is an unsophisticated woman. I accept that this has been a difficult experience for Mrs Lamers.
There is no evidence that Mrs Lamers’ home was still on the market in 2010 and the documentary evidence suggests that there was no reason for Mrs Lamers to persist in marketing her property past July 2008. It is, in my view, more likely that, 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.
Finally, I am not satisfied that Mr Attewell received the money in his role as a property agent. It is more likely that he received it in his personal capacity, given the relationship that had developed.
I am not satisfied that there is an “event” within s 470(1). The application should be dismissed.
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