R & S Holdings Pty Ltd t/as Cyberdrafting and Design v JLRT Pty Ltd
[2014] QCAT 314
| CITATION: | R & S Holdings Pty Ltd t/as Cyberdrafting and Design v JLRT Pty Ltd & Ors [2014] QCAT 314 |
| PARTIES: | R & S Holdings Pty Ltd t/as Cyberdrafting and Design (Applicant) |
| v | |
| JLRT Pty Ltd James Lyons Realty Pty Ltd James Lyons (Respondents) |
| APPLICATION NUMBER: | GAR027-14 |
| MATTER TYPE: | Other civil dispute matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member Stilgoe, OAM |
| DELIVERED ON: | 1 July 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Pursuant to s 488 of the Property Agents and Motor Dealers Act 2000, the claim is allowed in the sum of $31,900. 2. Pursuant to s 489 of the Property Agents and Motor Dealers Act 2000, at the expiration of the appeal period, the Chief Executive must pay to R & S Holdings Pty Ltd the sum of $31,900 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 Act 2000, James Lyons Realty Pty Ltd and James Robert Lyons are named as the persons responsible for the financial loss of R & S Holdings Pty Ltd. 4. Upon payment from the Claim Fund and pursuant to sections 490 and 530 of the Property Agents and Motor Dealers Act 2000, James Lyons Realty Pty Ltd and James Robert Lyons are liable (and if more than one, jointly and severally) to reimburse the Claim Fund by paying the sum of $31,900 to the Chief Executive, Department of Justice and Attorney General |
| CATCHWORDS: | PROPERTY AGENT – CLAIM FROM THE FUND – where deposit paid on expression of interest – where deposit disbursed without authority – where deposit not returned – where no funds in account – whether misappropriation of funds – who was responsible person 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
R & S Holdings Pty Ltd was interested in buying a commercial property at Tingalpa through a lease to purchase arrangement. Mr Lyons was the selling agent. In December 2012, R & S signed an expression of interest and paid a deposit of $31,900 to James Lyons Realty Pty Ltd trust account.
In May 2013, R & S was advised that it might be the victim of fraud perpetrated by Mr Lyons. Subsequent investigations showed that Mr Lyons was not authorised to take the deposit and that the deposit was no longer in the trust account. R & S has not recovered the deposit and the sale to purchase was not finalised. R & S lodged a claim against the fund for $31,900.
In considering a claim against the fund, I must be satisfied[1] that an event as mentioned in section 470(1) happened and that R & S suffered financial loss because of the event.
[1] Property Agents and Motor Dealers Act 2000 (Qld) (PAMDA) s 488(2).
I must also take into account any amount R & S might reasonably have received or recovered if not for its neglect or default and any amount ordered to be paid to R & S as compensation to the claimant under sections 530A, 572D or 592A of PAMDA[2].
[2] Ibid s 488(3)(a).
Finally, in allowing a claim I must decide the amount of R & S’s financial loss and name the person who is liable for the loss[3].
[3] Ibid s 488(3)(b) and (c).
The event
The stealing, misappropriation or misapplication by an agent of property entrusted to that person as agent for someone else in their capacity as agent is an “event” under s 470(1)(e).
The bank statements show the deposits by R & S to the James Lyons Realty Pty Ltd trust account. They also show a series of internet transfers, none of which was authorised by R & S. The material before me does not disclose the fate of the missing funds.
Misappropriation of funds is an “event” under s 470(1). I am satisfied that Lyons misappropriated R & S’s money and that this is an “event” within s 470(1).
Financial loss
I am satisfied that R & S suffered a financial loss because of Lyons’ breach of s 470(1)(e). I am further satisfied that $31,900 is a proper assessment of that loss.
Other matters
I am required to take into account any amount R & S may have received or recovered if not for its neglect or default.
There is no evidence to suggest that R & S would have been able to receive or recover any amount to reduce its loss if it had taken any different action.
Who is liable for the loss?
The funds were paid to James Lyons Realty Pty Ltd. That entity 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 a director of James Lyons Realty Pty Ltd, James Robert Lyons was an executive officer of the company. Because I have found that the company is a responsible person, it follows that he must also be a responsible person.
The only connection between James Lyons Realty Pty Ltd and JRLT Pty Ltd is that the latter was the sole shareholder of the former. There is no evidence that JRLT Pty Ltd received any of the money or that it was actively involved in the transaction. It is not a responsible person within the meaning of s 490(2).
Orders
Pursuant to s 488 of the Property Agents and Motor Dealers Act 2000 (Qld), the claim is allowed in the sum of $31,900.
Pursuant to s 489 of the Property Agents and Motor Dealers Act 2000 (Qld), at the expiration of the appeal period, the Chief Executive must pay to R & S Holdings Pty Ltd the sum of $31,900 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 Act 2000 (Qld), James Lyons Realty Pty Ltd and James Robert Lyons are named as the persons responsible for the financial loss of R & S Holdings Pty Ltd.
Upon payment from the Claim Fund and pursuant to sections 490 and 530 of the Property Agents and Motor Dealers Act 2000 (Qld), James Lyons Realty Pty Ltd and James Robert Lyons are liable (and if more than one, jointly and severally) to reimburse the Claim Fund by paying the sum of $31,900 to the Chief Executive, Department of Justice and Attorney General.
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