Morrisey v Wilen Pty Ltd
[2012] QCAT 446
•19 September 2012
| CITATION: | Morrisey and Anor v Wilen Pty Ltd and Ors [2012] QCAT 446 |
| PARTIES: | John Morrisey Kay Morrisey |
| v | |
| Wilen Pty Ltd Jeffrey Dean Allen Lee Terry Wilson |
| APPLICATION NUMBER: | GAR169-12 |
| MATTER TYPE: | Other civil dispute matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Peta Stilgoe, Senior Member |
| DELIVERED ON: | 19 September 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 $28,770. [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 John and Kay Morrisey the sum of $28,770 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 John and Kay Morrisey. [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 $28,770 to the Chief Executive, Department of Justice and Attorney General. |
| CATCHWORDS: | PROPERTY AGENT – where deposit paid into trust – where commission pre-drawn – where deposit transferred to general account before transaction finalised Property Agents and Motor Dealers Act 2000, ss 385, 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
Mr and Mrs Morrisey appointed Wilen Pty Ltd, trading as Wilson Allen Real Estate Agents, as selling agent of their property at Main Beach. Wilen was a licensee. Messrs Allen and Wilson were directors of Wilen and licensees.
Mr Allen negotiated the sale of Mr and Mrs Morrisey’s property. The purchaser paid a deposit of $50,000 into Wilen’s trust account on 29 August 2011. The sale settled on 28 October 2011. Mr and Mrs Morrisey have not received any of that deposit. A report from the company’s receiver shows that $50,000 was withdrawn from trust on 30 August 2011. That $50,000 was transferred to the company’s business account.
Mr and Mrs Morrisey made a claim on the statutory claim fund for $51,100. The company and Messrs Allen and Wilson received notice of the claim
In considering a claim against the fund, the tribunal must be satisfied[1] that an event as mentioned in section 470(1) happened; and that the claimant suffered financial loss because of the event.
[1] Section 488(2) Property Agents and Motor Dealers Act 2000.
The Tribunal must also take into account any amount the claimant might reasonably have received or recovered if not for the claimant’s neglect or default and any amount ordered to be paid to the claimant as compensation to the claimant under sections 530A, 572D or 592A of PAMDA[2].
[2] Section 488(3)(a).
Finally in allowing a claim the Tribunal must decide the amount of the claimant’s financial loss and name the person who is liable for the loss[3].
[3] Section 488(3)(b) and (c).
The event
The withdrawal of money from trust without proper authority[4] is an “event” under s 470(1) as is the stealing misappropriation or misapplication of property entrusted to a person as agent for someone else[5].
[4] Section 385 PAMDA.
[5] Section 470(1)(e).
I am satisfied that Messrs Wilson and Allen pre-drew commission when they were not entitled to do so. I am also satisfied that, by paying the money to their business account when they had no entitlement to the money, Messrs Wilson and Allen misappropriated that money. I am satisfied that there is an “event” within s 470(1).
Financial loss
Mr and Mrs Morrisey claimed the full amount of the deposit plus $1,100 legal fees. The receiver points out that Wilen was entitled to its commission when the sale settled, so that Mr and Mrs Morrisey’s claim should be the deposit less the commission. The receiver calculated commission as $21,120 (inclusive of GST). I agree with that amount. The receiver has also allowed a deduction of $110 for the preparation of the disclosure statement, as the property to be sold was a unit. That amount should also be deducted from the claim.
In their claim dated 5 October 2011, Mr and Mrs Morrisey’s claim for legal fees was estimated at $1,100. There is no invoice to support that claim, therefore I do not allow it.
I am satisfied that Mr and Mrs Morrisey suffered a financial loss because of Wilen’s breach of its obligations to hold money in trust.
I am further satisfied that $28,770 is the correct assessment of Mr and Mrs Morrisey’s loss.
Other matters
I am required to take into account any amount Mr and Mrs Morrisey may have received or recovered if not for their neglect or default.
There is no evidence to suggest that Mr and Mrs Morrisey 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?
Wilen, as the licensee trading as Wilson Allen Real Estate Agents is responsible 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 directors of Wilen, Messrs Allen and Wilson were executive officers of the company. Because I have found that the company is a responsible person, it follows that Messrs Allen and Wilson must also be responsible persons.
Orders
Pursuant to s 488 of the Property Agents and Motor Dealers Act2000, the claim is allowed in the sum of $28,770.
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 John and Kay Morrisey the sum of $28,770 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 John and Kay Morrisey.
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 $28,770 to the Chief Executive, Department of Justice and Attorney General.
0
0
0