Main Beach Gold Pty Ltd v Wilen Pty Ltd
[2012] QCAT 496
•10 October 2012
| CITATION: | Main Beach Gold Pty Ltd v Wilen Pty Ltd and Ors [2012] QCAT 496 |
| PARTIES: | Main Beach Gold Pty Ltd |
| v | |
| Wilen Pty Ltd Jeffrey Dean Allen Lee Terry Wilson |
| APPLICATION NUMBER: | GAR166-12 |
| MATTER TYPE: | Other civil dispute matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Susan Gardiner, Member |
| DELIVERED ON: | 10 October 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | [1] Pursuant to s 488 of the Property Agents and Motor Dealers Act2000, the claim is allowed in the sum of $60,000. [2] Pursuant to s 489 of the Property Agents and Motor Dealers Act2000, at the expiration of the appeal period, the Chief Executive must pay to Main Beach Gold Pty Ltd the sum of $60,000 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 Act2000, Wilen Pty Ltd, Jeffrey Dean Allen and Lee Terry Wilson are named as the persons responsible for the financial loss of Main Beach Gold Pty Ltd. [4] Upon payment from the Claim Fund and pursuant to ss 490 and 530 of the Property Agents and Motor Dealers Act2000, Wilen Pty Ltd, Jeffrey Dean Allen and Lee Terry Wilson are liable (and if more than one, jointly and severally) to reimburse the Claim Fund by paying the sum of $60,000 to the Chief Executive, Department of Justice and Attorney General. |
| CATCHWORDS: | REAL ESTATE AGENT – where deposit funds received and paid into trust not disbursed to seller at settlement of property – claim against the fund 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
Main Beach Gold Pty Ltd appointed Wilen Pty Ltd trading as Wilson Allen Real Estate Agents as selling agent for a property located at Main Beach on the Gold Coast. Jeffrey Allen and Lee Wilson were directors of Wilen Pty Ltd. Jeffrey Allen was the real estate agent who negotiated the sale which settled on 18 August 2011. At settlement, Main Beach Gold sought the release of the deposit monies paid to Wilen less the selling agent’s commission. $69,750 should have been paid from the agent’s trust fund. Main Beach Gold received $9,750 only. The outstanding deposit monies were never paid.
The Wilen directors appointed an administrator for the company around 15 September 2011.
Main Beach Gold made a claim on the statutory claim fund for $66,875 being outstanding deposit monies of $60,000, legal fees ($6,875) and interest outstanding at 9.472% p.a. since 25 August 2011. Wilen Pty Ltd, Jeffrey Allen and Lee Wilson received notice of the claim by letter from the Office of Fair Trading on 30 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 Main Beach Gold suffered financial loss because of the event.
[1] Section 488(2) Property Agents and Motor Dealers Act 2000.
I must also take into account any amount Main Beach Gold might reasonably have received or recovered if not for Main Beach Gold’s neglect or default and any amount ordered to be paid to Main Beach Gold as compensation to the claimant under sections 530A, 572D or 592A of PAMDA[2].
[2] Section 488(3)(a).
Finally in allowing a claim I must decide the amount of Main Beach Gold’s financial loss and name the person who is liable for the loss[3].
[3] Section 488(3)(b) and (c).
The event
The stealing, misappropriation or misapplication of property entrusted to a person as agent for the claimant in his capacity as a relevant person is an “event” under s 470(1).
I am satisfied that the failure to pay the outstanding deposit monies is an “event” within s 470(1).
Financial loss
I am satisfied that Main Beach Gold suffered a financial loss because of Wilen Pty Ltd and Jeffrey Dean Allen’s breach of s 470(1)(e) by the company and the agent not paying the remainder of the deposit to Main Beach Gold.
I am further satisfied that $60,000 is the assessment of Main Beach Gold’s loss for the deposit moneys not received. Main Beach Gold is unable under the PAMD act to claim legal fees[4] or interest on the outstanding amount[5].
[4] Section 492.
[5] Section 469 and 492(5).
Other matters
I am required to take into account any amount Main Beach Gold may have received or recovered if not for their neglect or default.
There is no evidence to suggest that Main Beach Gold would have been able to receive or recover any amount to reduce their loss if they had taken any different action.
Who is liable for the loss?
Section 490(2) provides that a person is liable to reimburse the fund if the person is:
a. A responsible person;
b. If the responsible person was a corporation, each person who was an executive officer of the corporation.
As a director of Wilen Pty Ltd, Lee Terry Wilson was an executive officer of the company. Because I have found that the company is a responsible person, it follows that Lee Terry Wilson must also be a responsible person.
Orders
Pursuant to s 488 of the Property Agents and Motor Dealers Act2000, the claim is allowed in the sum of $60,000.
Pursuant to s 489 of the Property Agents and Motor Dealers Act2000, at the expiration of the appeal period, the Chief Executive must pay to Main Beach Gold Pty Ltd the sum of $60,000 from the Claim Fund, and, if there is an appeal, payment must not be made until after the appeal is finally decided.
Pursuant to s 488(3)(c) of the Property Agents and Motor Dealers Act2000, Wilen Pty Ltd, Jeffrey Dean Allen and Lee Terry Wilson are named as the persons responsible for the financial loss of Main Beach Gold Pty Ltd.
Upon payment from the Claim Fund and pursuant to sections 490 and 530 of the Property Agents and Motor Dealers Act2000, Wilen Pty Ltd, Jeffrey Dean Allen and Lee Terry Wilson are liable (and if more than one, jointly and severally) to reimburse the Claim Fund by paying the sum of $60,000 to the Chief Executive, Department of Justice and Attorney General.
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