Ostwald v Leadley
[2013] QCAT 150
| CITATION: | Ostwald & Anor v Leadley & Anor [2013] QCAT 150 |
| PARTIES: | Daniel John Ostwald Mrs Renaee Gayle Ostwald (Applicants) |
| v | |
| Mr Geoffrey James Leadley Limelight Holdings Australia Pty Ltd t/a ReMax Property Specialists Coast Accounting Group (Respondents) |
| APPLICATION NUMBER: | OCL109-12 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Mr David Paratz, Member |
| DELIVERED ON: | 20 March 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 $13,750.00. 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 Daniel Ostwald and Renaee Ostwald the sum of $13,750.00 from the Claim Fund, and if there is an appeal, payment must not be made until after the appeal is decided. 3. Pursuant to section 488(3)(c) of the Property Agents and Motor Dealers Act 2000 Geoffrey James Leadley and Limelight Holdings Australia Pty Ltd (Deregistered) are named as the persons liable for the financial loss of Daniel Ostwald and Renaee Ostwald. 4. Upon payment from the Claim Fund and pursuant to sections 490 and 530 of the Property Agents and Motor Dealers Act 2000, Geoffrey James Leadley and Limelight Holdings Australia Pty Ltd (Deregistered) are jointly and severally liable to reimburse the Claim Fund by paying the sum of $13,750.00 to the Chief Executive, Department of Justice and Attorney-General. |
| CATCHWORDS: | Real Estate Agent failed to refund deposit on request after contract did not proceed – trust account cheque issued which was dishonoured – financial loss suffered by claimants - executive officer of corporation jointly and severally liable to reimburse to claim fund. Property Agents and Motor Dealers Act 2000 (Qld), s 385(4), s 470, s 474, s 488(2), s 488(3), s 489, s 490(2), s 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
Mr and Mrs Ostwald entered into a Contract for Sale as purchasers of property at 22 Hendry Street, Tewantin, Queensland on 3 February 2012 for the price of $275 000.00.
An initial deposit of $2 000.00 was payable on signing the Contract and a balance deposit of $11 750.00 was payable not later than 21 days thereafter. The deposit holder under the Contract was named as Limelight Holdings trading as ReMax Property Specialists Noosa.
The Contract was subject to a number of special conditions.
A Trust Account receipt (D 1910638) was issued on 2 February 2012 to Mr Ostwald for $2 000.00 for the initial deposit. The receipt was signed by the Principal Licensee, G. Leadley.
A further Trust Account receipt (D 1910646) was issued on 21 February 2012 to Mr Ostwald for $11 750.00 for the balance deposit. The receipt was also signed by the Principal licensee, G. Leadley.
The Ostwald’s Solicitors, Cartwrights Lawyers, gave notice to the Vendor’s solicitors by letter dated 24 February 2012 that the Ostwald’s were not satisfied with the results of their due diligence investigations, and terminated the Contract pursuant to Special Condition 2. They requested the Vendor’s solicitor to authorise the agents to refund all deposit moneys directly to the Ostwald’s.
The Vendor’s solicitors, Siemons Lawyers, gave notice to the agent, ReMax that the contract was being terminated, and authorising the refund of the deposit to the buyer.
ReMax Property Specialists issued a cheque to the Ostwald’s for $13 750.00 which was deposited on 9 March 2012. The Commonwealth Bank gave notice by a letter dated 13 March 2012 that the cheque was dishonoured.
Section 385(4) of the Property Agents and Motor Dealers Act 2000 (the Act) requires a licensee to pay an amount within 14 days of written request. That section is in Chapter 12 Part 1 of the Act.
A person can claim under s 470 against the fund for financial loss because of a contravention of Chapter 12 Part 1. If the Tribunal is satisfied that such an event happened, and that the claimant suffered financial loss, it can allow the claim under s 488(2).
The Chief Executive has submitted that it is satisfied that the claimants have suffered a financial loss in the sum of $13,750.00.
The Ostwald’s made a claim against the fund on 19 April 2012. In their Claim form, the Ostwald’s name Mr Leadley as the director or person in charge of ReMax Noosa.
The Chief Executive gave a Claim Notice to Mr Leadley, and to Limelight Holdings Australia Pty Ltd trading as ReMax Property Specialists Coast Accounting Group, under s 474 of the Act, by letters dated 17 August 2012.
An ASIC search conducted on 12 April 2012 disclosed that the Director and Secretary of Limelight Holdings Australia Pty Ltd was Geoffrey James Leadley. That company is now deregistered.
No settlement was offered by Mr Leadley or the company within 28 days of the Claim Notice, and the Ostwald’s gave notice on 25 August 2012 that they wished to proceed with their claim.
The matter was referred to the Tribunal on 5 October 2012.
Directions were made by the Tribunal on 31 October 2012 requiring Mr Leadley and Limelight Holdings Pty Ltd to file material by 14 January 2013, and directing that if no application was made for an oral hearing that the application would be determined on the papers after 11 February 2013.
No submissions were received from either Mr Leadley or the company. The Directions were posted to Mr Leadley at the address shown for him in the ASIC records, but the envelope was returned “unknown”.
The Tribunal may allow a claim only if it is satisfied on the balance of probabilities that an event happened and that the claimant suffered financial loss - s 488(2).
The Tribunal must, if it allows the claim, decide the amount of the financial loss and name the person who is liable for the claimant’s financial loss - s 488(3).
The Ostwald’s have claimed the amount of $13 750.00 plus search fees of $15.95. The Chief Executive has submitted that the search fees are not a loss that happened because of the specified event. The search fees are subsequent, and could be seen as costs claimable under an appropriate provision. They are not however loss that occurred at the time of the event, and accordingly I will not allow them.
The Act provides that an executive officer of a corporation is jointly and severally liable to reimburse a payment from the fund - s 490(2).
I am satisfied on the balance of probabilities that:-
(a) the Ostwald’s have suffered financial loss of $13 750.00.
(b) they are entitled to be paid from the fund.
(c) Geoffrey James Leadley and Limelight Holdings Australia Pty Ltd are the persons liable for the financial loss.
I accordingly make orders in terms of the draft order prepared by the Chief Executive as follows:-
1.Pursuant to section 488 of the Property Agents and Motor Dealers Act 2000, the claim is allowed in the sum of $13 750.00.
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 Daniel Ostwald and Renaee Ostwald the sum of $13 750.00 from the Claim Fund, and if there is an appeal, payment must not be made until after the appeal is decided.
3.Pursuant to section 488(3)(c) of the Property Agents and Motor Dealers Act 2000 Geoffrey James Leadley and Limelight Holdings Australia Pty Ltd (Deregistered) are named as the persons liable for the financial loss of Daniel Ostwald and Renaee Ostwald.
4.Upon payment from the Claim Fund and pursuant to ss 490 and 530 of the Property Agents and Motor Dealers Act 2000, Geoffrey James Leadley and Limelight Holdings Australia Pty Ltd (Deregistered) are jointly and severally liable to reimburse the Claim Fund by paying the sum of $13 750.00 to the Chief Executive, Department of Justice and Attorney-General.
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