Matthews v Hi Surf Resort Pty Ltd - [2014] QCAT 292

CITATION:

Matthews & Anor v Hi Surf Resort Pty Ltd & Ors [2014] QCAT 292

PARTIES:	Peter Matthews Gail Matthews (Applicants)
v
Hi Surf Resort Pty Ltd Greg Kafritsas Christos Kafritsas (Respondents)

APPLICATION NUMBER:

GAR452-13

MATTER TYPE:

General administrative review matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Paratz

DELIVERED ON:

23 June 2014

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The matter is referred back to the Chief Executive for the purposes of sections 474 to 477 of the Property Agents and Motor Dealers Act 2000 (Qld).

CATCHWORDS:

Where an application to extend time to bring a claim against the claim fund under the Property Agents and Motor Dealers Act 2000 (Qld) – where date of the event alleging financial loss is not determined by claimants – where financial loss is not determined by the claimants – where claim must have arisen within the statutory period – where evidence of financial loss appears to be held by third party who have refused to disclose it to the claimants – where the third party may provide material as to financial loss to the Chief Executive, or be compelled to do so by the Tribunal – where the claim is found to be within time and is referred back to the Chief Executive for processing

Property Agents and Motor Dealers Act 2000 (Qld), s 474, s 475, s 476, s 477, s 512

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 (Qld) (QCAT Act).

REASONS FOR DECISION

Peter and Gail Matthews owned an investment unit at “Beachcomber” on the Gold Coast, which was placed in a holiday rental pool.
Hi Surf Resorts Pty Ltd had the management rights to the pool. Greg Kafritsas was a Director of the company.
On 11 June 2013 Peter and Gail Matthews lodged a PAMD Form 50 claim against the claim fund under the Property Agents and Motor Dealers Act 2000 (Qld) (‘the Act’) with the Gold Coast office of the Office of Fair Trading, and which was received in the Brisbane office on 19 June 2013. The form alleged that the event that gave rise to the claim occurred on 12 September 2012, and that they became aware of the financial loss on 30 November 2012. No amount was shown as the estimated financial loss.
On 28 October 2013 Peter and Gail Matthews lodged a second PAMD Form 50. The second form alleged that the event that gave rise to the claim occurred “since 2010”, and that they became aware of the financial loss on 6 September 2013. The estimated financial loss was described as “Because of the complexity of this claim we are unsure of the amount owed”.
On 13 November 2013 the Office of Fair Trading (‘OFT’) issued a PAMD Form 52 Claim out of time notice which advised that the claim was out of time because it was lodged more than three years after the event that caused the financial loss (s 472(2)(b) of the Act). It stated that the event occurred in May 2010.
Peter and Gail Matthews filed an Application for an extension of time in the Tribunal on 20 December 2013.
I gave Directions on 6 January 2014 for the filing of material by the parties. I directed that Peter and Gail Matthews were to file any material on which they intended to rely in support of their application for an extension of time by 3 February 2014. I also directed that a determination on the papers would be made after 17 March 2014 if no application for an oral hearing was received.
Peter and Gail Matthews filed a letter to the Tribunal dated 31 January 2014, on 3 February 2014, in apparent compliance with the directions.
No materials were received from Hi Surf Resort Pty Ltd, Greg Kafritsas or Christos Kafritsas in response to the directions.
Section 512 of the Act provides that the Chief Executive may make submissions to the Tribunal if the proceeding involves a claim against the fund. The Chief Executive made submissions by way of an email to the Tribunal on 19 March 2014. I will set the substantive parts of those submissions out in full:
Claims and Recoveries received the original Form 50 on 19 June 2013, but notes the Chief Executive received the claim through his Gold Coast office on 11 June 2013. It is submitted QCAT should assess the application using the date received as 11 June 2013. It is further submitted the fresh application made on 28 Oct 2013 should not vary the initial date.
The claim appears to involve matters that stem back to Apr/May 2010 as evidenced by the provision of the May 2010 statement detailing matters from 15 Apr 2010 onward and shown in the materials which appear in Part 2 of the fresh Form 50. This is why the Form 52 states May 2010 (but is more likely from Apr 2010) as the claimant provided materials from that date. Irrespective of which month is used the 3 year time period has passed and the Claimant now requires an extension of time to be granted.
However, it is noted that it is still unclear what the allegations being made by the claimant against the respondent are and to which claimable event they align to. This is despite correspondence being sent to the claimant requesting elements of the claim to be verified. There has been no verification to date and the claimant ahs merely lodged a fresh claim. It is submitted that the Claimants’ materials still lack clarity as to what event and loss they allege. I note as discussed, we have several more monthly statements and emails that were supplied with the Form 50’s that I can post to the tribunal, but do not feel the materials reveal anything that will assist in determining an extension of time matter.
No application for an oral hearing was made. This is the decision as to the application on the papers.
In the first claim form, Peter and Gail Matthews refer to a conversation they had with a Mantra (who appear to have management rights) staff member on 30 November 2012 who was unable to provide them with any discrepancy evidence, but said they would co-operate with any government agency. There is also reference to a ‘saflock report’ which will refer to a security key log report and say that it also shows discrepancies.
The second claim form says that after experiencing low rental returns, they decided to investigate and refer to a conversation on 6 September 2012 with Mantra. They say that a ‘few weeks later’ they were contacted by Mantra who advised there were discrepancies, but they could not reveal them.
In the Application they say that as from February 2013 they took over the apartment themselves because of the low income.
In their letter of 31 January 2014, they reiterate those matters. They say that the apartment was managed by Greg Kafritsas from July 2010 until February 2013. They say “We also suspect that our apartment had been used without our knowledge or authorization over that time”.
The claimants have attached Tax Invoices from ‘BreakFree Beachcomber Surfers” for dates in April 2010 and May 2010 to their claim form. This is a period before the unit was being managed by Mr Kafritsas. Perhaps they did this to show in some way how their returns reduced.
Difficulties arise with the claim because the claimants do not clearly identify the date upon which the event occurred that they rely on, or identify their financial loss.
It is arguable perhaps that the date of the event causing financial loss occurred at various times in the period from July 2010 to February 2013. In that case, the expiry of the three period for lodgement of the claim under s 472(2)(a) of the Act would arise at times from July 2013 to February 2016.
The first claim was lodged in June 2013. That date is within the expiry period for lodgement of a claim.
The Chief Executive has assessed the date of the event alleged to give rise to their claim as May 2010. That date however, is before the unit was being managed by Mr Kafritsas, so that cannot be the date of the event.
There are doubts as to how strong the claim is. The claimants have not identified any particular event or events when financial loss occurred, or identified any financial loss. They have a suspicion that rental monies were taken by the Manager and not passed on to them, but have not established that.
The saflock report in itself is not conclusive. As I noted in a previous case involving the same respondents,[1] the mere opening of a door by someone who was authorised to do so, such as a building manager, is not evidence of anything in particular – it may be that the door was opened to allow potential guests to inspect the unit, or for cleaning, maintenance or security purposes, or for a myriad of other reasons.
[1]Paul Wayne Gallas & Jennifer Gail Gallas v Hi Surf Resort Pty Ltd & Greg Kafritsas & Christos Kafritsas [2014] QCAT 106.
Whilst I have doubts as to the success of the claim on the current material, I am satisfied that the claim was brought within time. The Claimant should have the opportunity to pursue its claim, unless the claim is clearly unstainable and it would be a waste of time for all parties to proceed with the matter.
One aspect that does attract my attention is the suggestion in the correspondence with Mantra that they may hold information in relation to discrepancies which they would not provide to the claimants, but which they would provide to a Government body.
If the claim is investigated by the Chief Executive, then presumably Mantra would disclose that information to it, and that information may provide an insight into any financial loss suffered by the claimants. If Mantra did not disclose the information, and the matter proceeded to a reference to the Tribunal by the Chief Executive, then the Tribunal has power to require production of the documents by Mantra.
I am satisfied that the claim is within time, and refer the matter back to the Chief Executive for the purposes of giving notice in relation to the claim, and dealing with the claim, pursuant to sections 474 to 477 of the Property Agents and Motor Dealers Act 2000 (Qld).