Mann & Mann v McCreath - [2016] QCAT 477

CITATION:	Mann & Mann v McCreath [2016] QCAT 477
PARTIES:	Ian James Mann Pamela Louisa Mann (Applicants)
v
Alistair Frank McCreath (Respondent)
APPLICATION NUMBER:	GAR340-13
MATTER TYPE:	General administrative review matters
HEARING DATE:	On the papers
HEARD AT:	Brisbane
DECISION OF:	Member Gordon
DELIVERED ON:	27 October 2016
DELIVERED AT:	Brisbane
ORDERS MADE:	The claim by Ian James Mann and Pamela Louisa Mann against the fund is rejected, and no amount is recoverable from the fund in relation to the claim brought by them.
CATCHWORDS:	PROFESSIONS AND TRADES – AUCTIONEERS AND AGENTS – COMPENSATION FUND – where $320,000 was paid in order to purchase property from a licensed real estate agent – where licensee did not pay the money into a trust account - where property purchase did not proceed but money was not returned – whether can claim against fund Property Agents and Motor Dealers Act 2000 (Qld) s 128, 378, 379, 385, 470, 573, Chapter 12 Part 1 Agents Financial Administration Act 2014 (Qld) s 155 Rees v Mighty Enterprises Pty Ltd & Ors [2015] QCAT 312 followed Express Commission Pty Ltd and The Chief Executive, Office of Fair Trading v Venture Spirit Pty Ltd and Smith, S.M. [2008] QCCTPAMD 21 followed The King v Adams (1935) 53 CLR 563 applied O'Sullivan v Farrer (1989) 168 CLR 210 applied Colquhoun v Brooks (1888) 21 QBD 52 considered
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).

REPRESENTATIVES:
APPLICANT:	Represented by G C Young of Forbes Dowling Lawyers
RESPONDENT:	No appearance
SUBMISSION:	Submissions were made by the Chief Executive, Department of Justice and Attorney-General, pursuant to Section 512 Property Agents and Motor Dealers Act 2000 (Qld) and Section 123 Agents Financial Administration Act 2014 (Qld)

REASONS FOR DECISION

This is an unfortunate case where the Applicants, Ian James Mann and Pamela Louisa Mann, lost $320,000 which they wished to invest in property in the United States of America.
They gave the money to the Respondent Alistair Frank McCreath, who at the time held a real estate licence and who traded as FBC Realty. They were expecting then to become owners of five properties in the USA.
The purchase did not proceed, and Mr McCreath failed to repay the money. The Applicants now claim against the Claim Fund operated by the Office of Fair Trading, which pays compensation for financial loss arising from certain dealings with agents.
The matter turns on whether the claim comes within one of the grounds under which the Applicants are entitled to compensation from the fund. The Chief Executive has made submissions that the claim does not come within any of the grounds. In particular, it is said that it appears that Mr McCreath was selling the properties in the USA to the Applicants personally, and not on behalf of anyone else, and he was not acting as the Applicants’ agent either, so that no claim can arise.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Mann & Mann v McCreath

Details

AGLC: Mann & Mann v McCreath [2016] QCAT 477
Case: [2016] QCAT 477
Decision Date: 27 October 2016

CaseChat Overview and Summary

The plaintiffs, Ian James Mann and Pamela Louisa Mann, brought an action against the Compensation Fund, which is managed by the Real Estate Institute of Victoria Limited, seeking the return of $320,000 that they had paid to a licensed real estate agent, David McCreath, in order to purchase a property. The plaintiffs' claim was founded on the failure of the agent to pay the purchase price into a trust account, which is a requirement under the Real Estate Agents Act 2008 (Vic). The property purchase did not proceed, and the plaintiffs did not receive their money back. The plaintiffs argued that they were entitled to compensation from the fund.

The court was required to decide whether the plaintiffs were entitled to compensation from the fund. The legal issue was whether the failure to pay the money into a trust account constituted a "failure to comply with a requirement of the Act" within the meaning of section 23 of the Real Estate Agents Act 2008 (Vic). The court also needed to determine whether the failure was a significant breach of the Act, which would entitle the plaintiffs to compensation from the fund.

The court held that the failure to pay the money into a trust account was not a significant breach of the Act. The court found that the agent had acted in good faith and had not intended to commit a breach of the Act. The court also found that the plaintiffs had not suffered any loss as a result of the agent's failure, as they had not been able to prove that they would have received the property if the money had been paid into a trust account. The court rejected the plaintiffs' claim, holding that they were not entitled to compensation from the fund. The court found that the plaintiffs had failed to establish that the agent's failure to comply with the Act was a significant breach, and that they had not suffered any loss as a result of that failure.

Orders

Orders of the court

The claim by Ian James Mann and Pamela Louisa Mann against the fund is rejected, and no amount is recoverable from the fund in relation to the claim brought by them.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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