Ranchhod v WW Consolidated Investments Pty Ltd
[2012] QCAT 141
•5 April 2012
| CITATION: | Ranchhod v WW Consolidated Investments Pty Ltd and Anor [2012] QCAT 141 |
| PARTIES: | Mahesh Ranchhod |
| v | |
| WW Consolidated Investments Pty Ltd t/as Australian Commercial Property Solutions Mr Stephen Joseph |
| APPLICATION NUMBER: | GAR325-11 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Peta Stilgoe, Senior Member |
| DELIVERED ON: | 5 April 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 $6,614.23. 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 Mahesh Ranchhod the sum of $6,614.23 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, WW Consolidated Investments Pty Ltd and Stephen Joseph are named as the persons responsible for the financial loss of Mahesh Ranchhod. 4. Upon payment from the Claim Fund and pursuant to ss 490 and 530 of the Property Agents and Motor Dealers Act2000, WW Consolidated Investments Pty Ltd and Stephen Joseph are liable (and if more than one, jointly and severally) to reimburse the Claim Fund by paying the sum of $6,614.23 to the Chief Executive, Department of Justice and Attorney General. |
| CATCHWORDS: | REAL ESTATE AGENT – where managing tenancy – where management agreement terminated – where rent not remitted to owner – where poor record keeping – whether tribunal could be reasonably satisfied that an event happened – whether tribunal could be reasonably satisfied of the quantum of the loss – whether circumstances of termination such that owner may have recovered more if not for that event Property Agents and Motor Dealers Act2000, s 385(4) Laidlaw v Queensland Building Services Authority [2010] QCAT 70 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.
REASONS FOR DECISION
Mr Ranchhod owns two sets of shops which, until May 2010, were managed by WW Consolidated Investments Pty Ltd, trading as Australian Commercial Property Solutions. In February 2011, Mr Ranchhod lodged a claim against the statutory fund for $16,216.61 for rent collected but not remitted to him.
Mr Joseph is the sole director of WW Consolidated Investments Pty Ltd. Both the company and Mr Joseph are licensed real estate agents. They have both received notice of the claim.
The tribunal is required to determine whether there should be a payment from the fund. Section 488 of the Property Agents and Motor Dealers Act2000 sets out the process for deciding the claim. The Tribunal must be satisfied that:
a)An event as mentioned in section 470(1) happened; and
b)The claimant suffered financial loss because of the event.
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[1] and any amount ordered to be paid to the claimant as compensation to the claimant under sections 530A, 572D or 592A of PAMDA[2].
[1] Section 488(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
It is apparent that there is considerable acrimony between Mr Ranchhod and Mr Joseph. Mr Ranchhod has lodged with the Chief Executive a separate complaint about Mr Joseph’s activities. Mr Joseph, in turn has accused Mr Ranchhod of deliberately subverting the management agreements between Mr Ranchhod and the company. It is not my task to determine that dispute.
It is also apparent that neither party had a real grasp on the paperwork necessary to substantiate their respective positions in these proceedings.
The Chief Executive’s analysis of WW Consolidated’s trust account concluded[4]:
a)WW Consolidated remitted rent to Mr Ranchhod twice monthly. Mid-month rental is identified in the trust account but end-of-month rental is bundled in a “multi-payment”.
b)The detail surrounding the trust account transactions is vague or non-existent in a number of cases.
c)Payments identified as relating to end of month – May 2010 can be tabled and show that WW Consolidated owes $13,799.49.
d)That, on the balance of probabilities, it appears there has been a shortfall in rental income paid to Mr Ranchhod of $13,799.49.
[4] Report dated 10 October 2011.
Mr Stephen has submitted a schedule conceding $6,614.23 has been held back on account of WW Consolidated’s claim for breach of the management agreement. As to the balance, Mr Stephen says the tenants paid Mr Ranchhod directly. Not surprisingly, Mr Ranchhod denies that he has collected any rent directly. There is correspondence from both parties about which tenants paid who but there are no statements from the tenants themselves.
[10] Section 385(4) of PAMDA provides that a licensee must pay trust money to the person entitled to it, within 14 days after receiving a written direction or, if the person has not asked for it, within 42 days after the person had a right to the balance. Mr Ranchhod sent an email to Mr Joseph on 17 May 2010, calling of the payment of the May rental. Therefore, Mr Ranchhod was entitled to payment on 31 May 2010. By withholding the money, Mr Joseph is in breach of the Act.
[11] Section 385(4) is part of chapter 12, part 1 of PAMDA. A contravention of chapter 12, part 1 is an event mentioned in s 470. I am satisfied that an event as mentioned in section 470(1) happened.
Financial loss
[12] Mr Ranchhod’s schedule of outstanding rent for May shows that $19,033.83 was due for the shops at Moorooka and $6,079.69 was due for the shops at Strathpine. The net figure, less WW Consolidated’s management fee and GST, would be $17,986.96 for Moorooka and $5,845.62 for Strathpine.
[13] Mr Ranchhod says that $6,079.69 has been paid in respect of the Moorooka shops and WW Consolidated’s management fee for Moorooka has been paid. But there is clear evidence, in both WW Consolidated’s trust account and Mr Ranchhod’s bank statements, that he received $8,744.14 on 19 May 2010. Nowhere is that figure taken into account in Mr Ranchhod’s calculations.
[14] The calculations of both Mr Ranchhod and the Chief Executive assume that there was no multi-pay at the end of the month because Mr Ranchhod’s statement to 31 May 2010 shows no further deposits. The trust account records show a multi-pay transaction on 1 June 2010 of $11,669.08.
[15] There is simply no information about whether some of this transaction was remitted to Mr Ranchhod. I note, however, that Mr Ranchhod’s bank statements show a payment from WW Consolidated on 3 May 2010 of $11,516.48 which is noted as “end April 2010”. That corresponds to an entry in WW Consolidated’s trust account of a multi-pay on 1 May 2010 of $22,888.56. That suggests that little of the end of May multi-pay was destined for Mr Ranchhod’s account.
[16] At a compulsory conference on 22 February 2012, the learned Member directed that this dispute be determined on the papers. Therefore, I have not had the opportunity to hear from the parties directly or to question them on their evidence.
[17] Neither Mr Ranchhod nor Mr Joseph is a particularly credible narrator. Mr Ranchhod earlier asserted that he did not have a management agreement with Mr Joseph yet two have been produced. After the Chief Executive’s assessment of his entitlement, Mr Ranchhod said that the proper amount recoverable from Mr Joseph was $16,216.61 because of tenant payments “which may have been paid by cash or other means and not deposited.” The tenants are now Mr Ranchhod’s tenants and he has assumed direct control of the management of the shops. If there was any truth in Mr Ranchhod’s assertions, I would have thought it a relatively simple matter to reconcile the tenants’ payment records against Mr Joseph’s trust account records.
[18] Similarly, as the Chief Executive has observed, Mr Joseph’s records leave a lot to be desired and I would have thought that he should have been able to produce trust account receipts for the money paid and copies of emails, diary notes or other records to show that he chased the tenants who paid Mr Ranchhod and not WW Consolidated.
[19] As Member Howard pointed out in Laidlaw v Queensland Building Services Authority[5], in the absence of appropriate evidence the tribunal will not be free to make the decision sought by the party. I must be reasonably satisfied that Mr Ranchhod’s claim is supported by the evidence. I confess to some difficulty in that regard. I am reasonably satisfied that WW Consolidated has withheld $6,614.23 from Mr Ranchhod. I cannot be reasonably satisfied about any amount in excess of Mr Joseph’s concession. The simple fact is, I just do not know what happened to the rent in May 2010.
[5] [2010] QCAT 70 at [23].
[20] I am satisfied that Mr Ranchhod suffered a financial loss because of WW Consolidated’s breach of s 385(4). I am further satisfied that $$6,614.23 is Mr Ranchhod’s loss.
Other matters
[21] I am required to take into account any amount Mr Ranchhod may have received or recovered if not for his neglect or default.
[22] Although there is evidence that Mr Ranchhod terminated the management agreements without giving the appropriate amount of notice, and there are allegations that Mr Ranchhod’s direct dealings with the tenants led to confusion, these matters cannot be categorised as matters of his neglect or default. As I have already indicated, I am not able to decide the wider dispute between Mr Ranchhod and WW Consolidated but it is clear that WW Consolidated has no present entitlement to withhold any amount from Mr Ranchhod.
Who is liable for the loss?
[23] As licensee, and the appointee under the management agreements, WW Consolidated is liable for Mr Ranchhod’s loss.
[24] 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.
[25] As a director of WW Consolidated, Mr Joseph was an executive officer of the company. Because I have found that the company is a responsible person, it follows that Mr Joseph must also be a responsible person.
Orders
[26] Pursuant to s 488 of the Property Agents and Motor Dealers Act2000, the claim is allowed in the sum of $6,614.23.
[27] 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 Mr Ranchhod the sum of $6,614.23 from the Claim Fund, and, if there is an appeal, payment must not be made until after the appeal is finally decided.
[28] Pursuant to s 488(3)(c) of the Property Agents and Motor Dealers Act2000, WW Consolidated and Mr Joseph are named as the persons responsible for the financial loss of Mr Ranchhod.
[29] Upon payment from the Claim Fund and pursuant to sections 490 and 530 of the Property Agents and Motor Dealers Act2000, WW Consolidated and Mr Joseph are liable (and if more than one, jointly and severally) to reimburse the Claim Fund by paying the sum of $6,614.23 to the Chief Executive, Department of Justice and Attorney General.
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