Lillyness Pty Ltd ATF Lillyness Hybrid Trust No.1 & No.2 v E Morand Pty Ltd
[2013] QCAT 286
•3 June 2013
| CITATION: | Lillyness Pty Ltd ATF Lillyness Hybrid Trust No.1 & No.2 & Anor v E Morand Pty Ltd [2013] QCAT 286 |
| PARTIES: | Lillyness Pty Ltd ATF Lillyness Hybrid Trust No.1 & No.2 Antony Boulden (Applicants) |
| v | |
| E Morand Pty Ltd (Respondents) |
| APPLICATION NUMBER: | MCDO223-12 / MCDO224-12 |
| MATTER TYPE: | Other minor civil dispute matters |
| HEARING DATE: | 19 March 2013 |
| HEARD AT: | Coolangatta |
| DECISION OF: | John Bertelsen, Adjudicator |
| DELIVERED ON: | 3 June 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The applications are dismissed. |
| CATCHWORDS: | Appointment of agent – legitimacy of utilities component of rent – clarity of rent as opposed to utilities – agents statements of account |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Antony Boulden, Director Lillyness Pty Ltd |
| RESPONDENT: | Mr Downes, Lawyer Mahoney Lawyers |
REASONS FOR DECISION
Application MCDO224-12 (originally Southport MCDO696-12)
By application filed 24 August 2012 Mr Boulden claimed a refund of $5,008.00 and sought copies of documents – leases, statutory trust account ledger and disclosure of all amounts receipted. Though not clearly articulated this claim arose out of the applicants’ dissatisfaction with the letting arrangements and accountability in respect of units 13 and 15 Nexus Place, 129-131 Currumburra Road, Ashmore owned by Lillyness Pty Ltd (Lillyness).
Application MCDO223-12 (originally Southport MCDO704-12
By application filed 28 August 2012 Mr Boulden claimed an amount owing of $9,549.00 being a financial loss of $10,470.00 brought about by the allegedly dishonest misappropriation of trust funds by the respondent E Morand Pty Ltd (E Morand), as letting agent, less commission of 8.8% ($921.00) otherwise due to Lillyness in respect of the letting of units 13 and 15 during the period 1 July 2010 to 31 August 2011.
Background and evidence
On 16 January 2013 both applications came before the Tribunal which ordered;
1.Application adjourned to a date to be fixed after 15 February 2013.
2.Both parties file and give to each other a copy of all relevant ASIC searches for the period July 2010 to January 2013 on or before Tuesday 8 February 2013.
3.Both parties are given leave to have legal representation.
On 19 February 2013 both applications again came before the Tribunal which ordered:
1.Applications 223/12 and 224/12 are consolidated for the purpose of hearing.
2.The parties shall file and serve any submissions or further submission on the issue of jurisdiction within 7 days.
3.Thereafter the Tribunal shall determine the issue of jurisdiction on the papers.
4.The application is adjourned to a date to be fixed.
The applications again came before the Tribunal on 19 March 2013 (prior to any decision on jurisdiction). The issue of jurisdiction reserved and aside for the purposes of the hearing on that day, the applications proceeded.
Jurisdiction
Schedule 3 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) defines a minor civil dispute as, inter alia:
a)A claim to recover a debt or liquidated demand of money … up to the prescribed amount.
b)A claim arising out of a contract … between 2 or more traders, that is:
(i)For payment of money of a value not more than the prescribed amount.
The sum sought could not be characterised as a debt for the reason that the sum claimed is not referable to a formula, schedule or table but rather is a sum that could only be assessed based on numerous variables. The Tribunal nevertheless may proceed to hear and decide the initiating applications as a claim for a sum of money arising out of a contract between two traders. In this case the applicant rents real property for profit and the respondent manages, as an agent, real property for reward.
Does s 141 Property Agents and Motor Dealers Act 2000 (Qld) (PAMDA) oust the Tribunal’s jurisdiction
Section 141 PAMDA is a provision restricting “recovery of reward for expense above amount allowed”. Section 141(6) states:
a person who sues for or recovers or retains a reward for expense for the performance of an activity as a real estate agent other than as provided by this section commits an offence.
In this instance Mr Boulden argued that E Morand had unlawfully retained the sum of $30.00 per week during the period 1 July 2010 to 31 August 2011 on account of utilities (electricity, gas etc) in the absence of any accountability to Lillyness.
Mr Boulden argued that E Morand was only entitled to retain expenses to the amount stated in the appointment and actually expended and that E Morand has not established that;
a)The appointment stated that the amount of $30.00 per week would be retained for these expenses; or
b)It actually expended $30.00 per week per resident.
Mr Downes argued that Lillyness’s claim for rent was effectively a s 141 PAMDA statutory claim; that it arises from s 141 PAMDA and that PAMDA does not confer jurisdiction for the Tribunal to hear statutory claims pursuant to s 141 PAMDA; that such being the case the initiating claims are not a minor civil dispute.
Whilst s 141 PAMDA is clearly protective it is also a penalty provision designed to deter agents from overcharging either pursuant to appointment or regulation. There is nothing in or about s 141 that excludes Lillyness’ right to pursue it’s claim for what it perceives as rent that ought to have been included in E Morand’s monthly rental statements for the period 1 July 2010 to 31 August 2011.
The same may be said of s 386 PAMDA, the section requiring an agent to account in writing for monies received and paid out.
Disclosure
Lillyness conceded that the Tribunal did not have jurisdiction to make the orders sought in application MCDO224-12 i.e. for disclosure but asserted r 81 of the Queensland Civil and Administrative Tribunal Rules 2009 (Qld) (‘QCAT Rules’) that ’all parties to the proceeding must make all relevant documents available at the hearing of the proceeding’. That section refers to a minor civil debt which this is not. The onus of proving the claim on balance to the satisfaction of the Tribunal rests with Lillyness. It was never for Lillyness to seek disclosure on which to base its claim in circumstances where its claim might otherwise have been groundless. The Tribunal’s decision ought properly be based on evidence at hearing.
The substance of Lillyness’ claim for $9,549.00
The parties accepted the 2 PAMDA forms 20A appointment of agent both dated 12 February 2008 for units 13 and 15 as the appointment for the period 1 July 2010 through 31 August 2011. These appointments named J&G Hughes Pty Ltd as agent. The parties further accepted that both appointments had been validly assigned to the respondent E Morand.
The addendum/additional conditions forming part of these two appointments provided at paragraph 6.
The client acknowledges that the agent may provide services to tenants. The client acknowledges that where tenants make payment to the agents trust account of funds which include rent and payment for such services provided by the agent, the agent will profit from the provision of those services and is entitled to draw from the agents trust account any amount so paid to the agent for such services.
All rooming accommodation agreements produced by Lillyness provided in relation to the period 1 July 2010 to 31 August 2011 for rent at a specified weekly rate at item 8 and a breakdown of rent at item 9. The breakdown in each and every case included $30.00 per week utilities as part of the specified weekly rate i.e. weekly rent and utilities equalled the specified rate in item 8.
E Morand provided monthly statements of account to Lillyness during the period 1 July 2010 to 31 August 2011. The rents recorded in those statements are the rents referred to in item 9 of each of the rooming accommodation agreements. It is usual for rooming accommodation agreements to include a utilities component. That is the nature of rooming accommodation where invariably there are areas of shared usage. The Residential Tenancies Authority agreement form provides for utilities. In this instance the monthly statements of account are a precise reflection of the rent received as payable to Lillyness in terms of the agreements. The agreements themselves are a precise reflection addendum/additional conditions accepted by Lillyness.
It was not until May 2011 that Mr Boulden queried the rent/utilities practice which had been in place for a considerable period of time. He indicated he thought it was a case of residents paying for their own electricity. He did not appear to be aware of the “gross rent” i.e. the rent sum recorded at item 8 of the rooming accommodation agreements; that despite not knowing that he “did not realize deductions were being made until May 2011.” This was so even though Lillyness was not paying any electricity invoices during this period. Mr Downes contended that Mr Boulden did not provide the services; that Mr Boulden agreed E Morand provide the services; that the services were provided by E Morand in accordance with the appointment of agent; that E Morand’s accountability was entirely in accord with the appointment of agent; that Mr Boulden accepted the statements of account without query for a considerable length of time.
Conclusions
For the reasons stated above the Tribunal is empowered to hear these applications as a minor civil dispute.
The sum of $30.00 per week retained from the rooming accommodation agreements weekly rent for the purpose of utilities and agent recompense was entirely legitimate being in accord with the appointment of agent and rooming accommodation agreements themselves.
E Morand’s statements of account were open, clear, precise and reflected the arrangements clearly articulated in the appointment of agent. It is amazing that Lillyness as owner and as an entity in the business of renting these two units for profit did not query rents received until May 2011.
Apart from any other consideration it is reasonable to imply Lillyness’s acceptance of those statements of account in the interim. There is no reason here for any perceived misunderstanding or lack of understanding of the documentation applicable to the ongoing arrangements between the parties for the period 1 July 2010 to 31 August 2011.
Order
The applications are dismissed.
0
0
0