Le v Mayaroma Pty Ltd t/a Chau Real Estate

CITATION:

Le & Anor v Mayaroma Pty Ltd t/a Chau Real Estate & Ors [2015] QCAT 125

PARTIES:	Ms Tuyet Bach Le Mr Brendan John Marsh (Applicants)
v
Mayaroma Pty Ltd t/a Chau Real Estate (Receiver Appointed) Mr Thien Dinh Chau Ms Hanh Thi Ngoc Chau (Respondents)

APPLICATION NUMBER:

OCL071-14

MATTER TYPE:

Other civil dispute matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Paratz

DELIVERED ON:

24 April 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Pursuant to s 488 of the Property Agents and Motor Dealers Act 2000, the claim is partially allowed in the sum of $23,694.76.

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 $23,694.76 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 the Respondents, Mayaroma Pty Ltd t/a Chau Real Estate, Mr Thein Dinh Chau and Mrs Hanh Thi Ngoc Chau are named as the persons liable for the financial loss of the applicant.

4. Upon payment from the Claim Fund and pursuant to s 490 and s 530 of the Property Agents and Motor Dealers Act 2000, Mayaroma Pty Ltd t/a Chau Real Estate, Mr Thein Dinh Chau and Mrs Hanh Thi Ngoc Chau are jointly and severally liable to reimburse the Claim Fund by paying the sum of $23,694.76 to the Chief Executive, Department of Justice and Attorney-General.

CATCHWORDS:

REAL ESTATE AGENT – management of residential property - rental moneys and bond moneys not disbursed from trust account – claim on Claim Fund - claim partially accepted

Property Agents and Motor Dealers Act 2000 (Qld), s 488, s 489, s 490, s 530

Williams v Kaech [2008] QCA 176

APPEARANCES:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

Mayaroma Pty Ltd traded as Chau Real Estate, and operated as a real estate agent and property management and letting agent in Brisbane and Ipswich.
Ms Tuyet Bach Le and Mr Brendan John Marsh were the owners of residential property at 29 Poinciana Street, Inala, Queensland and 45 Crocus Street, Inala, Queensland.
The Respondents previously traded as Don Hoang Real Estate, and the Applicants appointed the Respondents to manage their property at 29 Poinciana Street, Inala in 2004. In 2006, the Respondents began operating the business as Chau Real Estate and continued to manage that property. In 2012 the Applicants appointed Mayaroma Pty Ltd t/a Chau Real Estate to also manage their property at 45 Crocus Street, Inala.
Ms Julie Williams was appointed Receiver over the Trust Property of Mayaroma Pty Ltd ACN 089 100 612 trading as Chau Real Estate, on 3 June 2014, by the Office of Fair Trading, Department of Justice and Attorney-General pursuant to the Property Agents and Motor Dealers Act 2000 (Qld) (the Act).
The records of the Australian Securities and Investments Commission (ASIC) show that the Directors of the company from 16 August 1999 until the date of the appointment of the receiver were Hanh Thi Ngoc Chau and Thien Dinh Chau.
Ms Tuyet Bach Le and Mr Brendan John Marsh lodged a PAMD Form 50 Claim against the claim fund on 9 July 2014 and claimed an amount of $27,303.70 being outstanding rental monies in the sum of $26,023.70 for the period 28 July 2013 to 10 June 2014 and bond monies of $1,280.00 outstanding.
The receiver relied on the trader’s books and records collected by the Office of Fair Trading and records sourced from external parties.
A reconciliation of rental card, rental statements and the trust account was conducted and revealed the following:[1]
[1] Insolvency and Turnaround Solutions Report dated 5 September 2014, p 10-12.
29 Poinciana St, Inala
·Rental income received into the trust account for that period totals $22.960.00
·Rent collection fee based on the rate of 7.5% plus GST totals $1,894.20
·Sundry expense of $7.00 plus GST for six (6) statements/distributions totals $46.20.
·Expenses deducted for that period total $330.00 inclusive of GST.
·Funds disbursed to the claimants for the period totals $10,625.50.
·Funds still to be disbursed to claimants calculated to be $10,064.10.
45 Crocus Street, Inala
·Rental income received into the trust account for the period totals $33,358.10
·Bond collected from current tenants S Makelele & A Kibungli not remitted to RTA totals $1,280.00
·Bond refund totals $2,560.00
·Water excess totals $800.00
·Management fee based on the rate of 7.5% plus GST totals $2.963.24
·Sundry expense of $7.00 plus GST per landlord statement for twelve (12) statements/distributions totals $92.40.
·Expenses deducted for that period total $1,230.00 inclusive of GST.
·Funds disbursed to the claimants for the period totals $18,801.80
·Funds still to be disbursed to claimants calculated to be $13,630.66.
The receiver concluded that the Claimant’s claim should be partially rejected in the sum of $3,608.94 and be accepted in the sum of $23,694.76 being the value of funds retained and not disbursed from the trader’s trust account.
The receiver’s report was forwarded on 5 September 2014 to Mayaroma Pty Ltd t/a Chau Real Estate, Mr Thein Dinh Chau and Mrs Hanh Thi Ngoc Chau, at their last known addresses, and also to the addresses shown as the registered office address and other addresses on the BACHCO, MACS and ASIC database, pursuant to s 474 and s 475 of the Act.
I gave Directions on 17 November 2014 which provided for the filing of material in response by Mayaroma Pty Ltd t/a Chau Real Estate, Mr Thein Dinh Chau and Mrs Hanh Thi Ngoc Chau by 15 December 2014, and for the matter to be determined on the papers after 12 January 2015. The letters were sent to the addresses provided by the Department as their most current addresses. The letters containing the directions were not returned to the Tribunal. No material has been filed by Mayaroma Pty Ltd t/a Chau Real Estate, Mr Thein Dinh Chau and Mrs Hanh Thi Ngoc Chau.
I also directed that Ms Tuyet Bach Le and Mr Brendan John Marsh were to file any material in addition to the material filed with the application by 17 November 2014, and any reply to the response of Mayaroma Pty Ltd t/a Chau Real Estate, Mr Thein Dinh Chau and Mrs Hanh Thi Ngoc Chau by 12 January 2015. No material was filed by Ms Tuyet Bach Le and Mr Brendan John Marsh.
There is no challenge to the report of the receiver by either the Applicant or any of the respondents. I accept the report of the receiver, and am satisfied that the financial loss suffered by the claimants is established as $23,694.76.
I am also satisfied that Mr Thein Dinh Chau and Mrs Hanh Thi Ngoc Chau, as the executive officers of the company, are persons who are liable to reimburse the fund under s 490(2) of the Act, and should be named as persons who are liable for the Claimant’s financial loss pursuant to s 530(b) and s 488(3)(c) of the Act,[2] together with the company.
[2] Williams v Kaech [2008] QCA 176.
Accordingly I find that:
1. Pursuant to s 488 of the Property Agents and Motor Dealers Act 2000, the claim is partially allowed in the sum of $23,694.76.
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 $23,694.76 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 the Respondents, Mayaroma Pty Ltd t/a Chau Real Estate, Mr Thein Dinh Chau and Mrs Hanh Thi Ngoc Chau are named as the persons liable for the financial loss of the applicant.
4. Upon payment from the Claim Fund and pursuant to s 490 and s 530 of the Property Agents and Motor Dealers Act 2000, Mayaroma Pty Ltd t/a Chau Real Estate, Mr Thein Dinh Chau and Mrs Hanh Thi Ngoc Chau are jointly and severally liable to reimburse the Claim Fund by paying the sum of $23,694.76 to the Chief Executive, Department of Justice and Attorney-General.

The case of Le v Mayaroma Pty Ltd t/a Chau Real Estate involved a dispute between the Applicant, Mr Le, and the Respondents, the real estate agency and its owners, Mr Thein Dinh Chau and Mrs Hanh Thi Ngoc Chau. The central issue was whether the Respondents were liable for the Applicant's financial loss, specifically the rental and bond moneys that were not properly disbursed from their trust account, and whether the Applicant's claim on the Claim Fund should be partially allowed. The court was required to determine the Respondents' liability under the Property Agents and Motor Dealers Act 2000 and the appropriate amount to be awarded to the Applicant from the Claim Fund.

The court examined whether the Respondents had breached their statutory obligations by not disbursing the rental and bond moneys from their trust account. It was established that the Respondents had received these funds but failed to deposit them into their trust account or provide proper accounting. The court also assessed whether the Applicant had suffered financial loss as a result of these breaches. The Applicant had provided evidence of the amounts owed to him and the Respondents' failure to account for these funds. Based on this evidence, the court found that the Respondents were liable for the Applicant's loss and that the Applicant's claim on the Claim Fund was partially allowed.

In its decision, the court allowed the Applicant's claim in the sum of $23,694.76. The court ordered that this amount be paid from the Claim Fund to the Applicant, with a condition that if an appeal is lodged, payment must be withheld until the appeal is finally decided. Additionally, the court named the Respondents as the persons liable for the financial loss of the Applicant and ordered them to reimburse the Claim Fund for the amount paid to the Applicant. This reimbursement is to be made jointly and severally by the real estate agency and its owners. The orders ensure that the Applicant is compensated for his loss and that the Claim Fund is reimbursed for the amount paid to the Applicant.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established