Lisani Pty Ltd v Tiralees Pty Ltd
[2013] QCAT 189
| CITATION: | Lisani Pty Ltd v Tiralees Pty Ltd & Ors [2013] QCAT 189 |
| PARTIES: | Lisani Pty Ltd as Trustee for the Gallus Family Trust (Applicant/Appellant) |
| v | |
| Tiralees Pty Ltd as Trustee for the Harvey Family Trust (First Respondent) Ms Laura Harvey (Second Respondent) Mr Leon Harvey (Third Respondent) Ms Susan Harvey (Fourth Respondent) |
| APPLICATION NUMBER: | OCL110-12 |
| MATTER TYPE: | Other civil dispute matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Mr David Paratz, Member |
| DELIVERED ON: | 11 April 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Pursuant to section 488 of the Property Agents and Motor Dealers Act 2000, the claim is allowed in the sum of $13,935.61. 2. Pursuant to section 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 $13,935.61 from the Claim Fund, and if there is an appeal, payment must not be made until the appeal is finally decided. 3. Pursuant to section 488(3)(c) of the Property Agents and Motor Dealers Act 2000 the respondents Tiralees Pty Ltd as trustee for the Harvey Family Trust and Ms Laura Harvey, Mr Leon Harvey and Ms Susan Harvey are named as the persons liable for the financial loss of the Applicant. 4. Upon payment from the Claim Fund, and pursuant to sections 490 and 530 of the Property Agents and Motor Dealers Act 2000, Tiralees Pty Ltd as trustee for the Harvey Family Trust and Ms Laura Harvey, Mr Leon Harvey and Ms Susan Harvey are jointly and severally liable to reimburse the Claim Fund by paying the sum of $13,935.61 to the Chief Executive, Department of Justice and Attorney-General. |
| CATCHWORDS: | Apartment manager – rent collected but not passed on to lessor – claim against the fund Property Agents and Motor Dealers Act 2000 ss 488, 489, 490, 530 |
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 (QCAT Act).
REASONS FOR DECISION
The Harvey Family Trust operated the Urban Quarter Apartments and Townsville Property Management. It held a licence as a Real Estate Agent under the Act.
The Gallus Family Trust owned two apartments in the complex, Unit 56 and 63. Rent for the apartments was collected by the Harvey Family Trust.
The Harvey Family Trust failed to make payments to the Gallus Family Trust for the rent. Tiralees Pty Ltd, the Trustee company for the Harvey Family Trust, was placed into receivership.
A claim was made on the fund by the Gallus Family Trust for the unpaid rent. The claim has been referred to the Tribunal by the Chief Executive, Department of Justice and Attorney-General, for determination under the provisions of Chapter 14 of the Property Agents and Motor Dealers Act 2000 (the Act).
The Chief Executive appointed Ms Carter of BRI Ferrier as receiver over the trust property of Tiralees Pty Ltd on 3 August 2010.
The receiver identified that the claimant had suffered a financial loss in the sum of $13,935.61. The Chief Executive agrees with the assessment of financial loss determined by the receiver.
The receiver in her report received on 7 March 2012 noted that:
3.1 As indicated in my investigation spreadsheets attached as Annexure 3, an amount of $13,935.61 remains owing to the Claimant for rental income received to the Trust Account in relation to the Claimant’s properties.
Searches disclose that the Directors of Tiralees Pty Ltd from 5 October 2006 were Laura Harvey, Leon Harvey and Susan Harvey. They are liable as executive officers by operation of s 490(2)(b) of the Act.
Directions were made by the Tribunal on 5 November 2012 requiring the Applicant and Respondents to file material. A direction was made that if no application for an oral hearing was made, that the application would be determined on the papers not before 15 February 2013.
Ms Laura Harvey sent emails to the tribunal on 13 and 22 November 2012 and requested that all correspondence be sent to a nominated address.
No material has been filed by any party.
I am satisfied on the balance of probabilities that Tiralees Pty Ltd as trustee for the Harvey Family Trust is entitled to claim against the fund under the Act for the amount of $13,935.61, and that Ms Laura Harvey, Mr Leon Harvey and Ms Susan Harvey are liable persons under the Act as executive officers of the company.
Accordingly, I order as follows:
1.Pursuant to section 488 of the Property Agents and Motor Dealers Act 2000, the claim is allowed in the sum of $13,935.61.
2.Pursuant to section 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 $13,935.61 from the Claim Fund, and if there is an appeal, payment must not be made until the appeal is finally decided.
3.Pursuant to section 488(3)(c) of the Property Agents and Motor Dealers Act 2000 the respondents Tiralees Pty Ltd as trustee for the Harvey Family Trust and Ms Laura Harvey, Mr Leon Harvey and Ms Susan Harvey are named as the persons liable for the financial loss of the Applicant.
4.Upon payment from the Claim Fund, and pursuant to sections 490 and 530 of the Property Agents and Motor Dealers Act 2000, Tiralees Pty Ltd as trustee for the Harvey Family Trust and Ms Laura Harvey, Mr Leon Harvey and Ms Susan Harvey are jointly and severally liable to reimburse the Claim Fund by paying the sum of $13,935.61 to the Chief Executive, Department of Justice and Attorney-General.
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