Robertson v Airstrike Industrial Pty Ltd

[2013] QCAT 149

CITATION: Robertson & Anor v Airstrike Industrial Pty Ltd [2013] QCAT 149

PARTIES:	Mrs Janice Robertson Mr Charles Robertson (Applicants)
v
Airstrike Industrial Pty Ltd (Respondent)

APPLICATION NUMBER: OCL041-10

MATTER TYPE: Occupational regulation matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Mr Jim Allen, Member

DELIVERED ON: 10 April 2013

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 $200,000.00.

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 Mrs Janice Robertson and Mr Charles Robertson the sum of $200,000.00 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, Airstrike Industrial Pty Ltd, Mr Shane Airey and Mr Graeme Salt are named as the persons responsible for the financial loss of Mrs Janice Robertson and Mr Charles Robertson.

4. Upon payment for the Claim Fund and pursuant to sections 490 and 530 of the Property Agents and Motor Dealers Act 2000, Airstrike Industrial Pty Ltd, Mr Shane Airey and Mr Graeme Salt are liable jointly and severally to reimburse the Claim Fund by paying the sum of $200,000.00 to the Chief Executive, Department of Justice and Attorney General.

CATCHWORDS:

PROPERTY AGENTS -CLAIM AGAINST THE CLAIM FUND – FINAL ORDER – COSTS

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 48, s 102

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

1. The Tribunal refers to its reasons for decision in regard to the primary application which were published on 6 March 2013. The Tribunal allowed Mr and Mrs Robertson claim against the Claim Fund in the amount of $200 000 and gave the parties an opportunity to make submissions in regard to the costs incurred by Airstrike Industrial Pty Ltd in respect of the alternative claim for hypothetical loss which was not pursued by Mr and Mrs Robertson at the hearing.

2. This meant a saving in time and costs in regard to the hearing in that the question of whether or not Mr and Mrs Robertson would have purchased the property at Dalton Street did not need to be canvassed and the experts evidence as to the hypothetical loss did not need to be called upon. There had though been considerable costs incurred by the parties in regard to the hypothetical loss claim in terms of both experts and legal costs. In fact Airstrike Industrial made an unsuccessful application to strike out the hypothetical loss claim in the weeks before the hearing of the application.

3. Airstrike Industrial Pty Ltd in its submissions claimed an amount of $8 924.24 for fees paid to Kendalls Valuations and Advisory $7 659.16 paid to PPB Advisory both for expert report fees and Carter Newell’s professional fees of $15 424.60 a total of $32 008.

4. These amounts were claimed based on ss 48(2)(c) and 102 of the QCAT Act in regard to costs where a party is causing disadvantage to another. While the Tribunal accepts that costs have been incurred by both parties in respect of part of a claim which has not been pursued it is noted that the application for strike out of the hypothetical loss claim under s 47 of the QCAT Act which was made by Airstrike Industrial did not succeed.

5. It is submitted that Airstrike Industrial was put to the disadvantage if having to incur significant and unnecessary costs and expenses as a result of the need to adduce expert evidence to meet Mr and Mrs Robertson’s two distinct and contradictory claims. This is on the basis that the primary claim is a no transaction claim so that they would not have purchased the property if they had known certain facts about Dalton Street and the hypothetical loss claim is based on them being shown to have been willing to purchase the land for a reduced amount if they had not known those facts about Dalton Street.

6. It is submitted on behalf of Mr and Mrs Robertson that the claims are in the alternative and therefore they may be inconsistent. Further based on the affidavit of Mr Ian Kennedy, solicitor an agreement was reached between the parties that if the possibility of Mr and Mrs Robertson buying the property at a reduced price was not raised in cross-examination then Mr and Mrs Robertson would not pursue the alternative claim and the expert witness would not be required.

7. On the basis the Tribunal accepts that the alternative claim was not pursued by agreement between the parties and there is no basis upon which costs of Airstrike Industrial Pty Ltd in preparing for the hypothetical loss claim should be allowed. If after all of the works had been done if it had been a unilateral decision of Mr and Mrs Robertson not to proceed with the hypothetical loss claim then the order would have been different but where there has been an agreement made that if the issue is not raised by the defence that the applicant will not pursue the alternative claim there does not appear to be any disadvantage, it is simply a case of case management between the parties. The alternative claim is only required if the no transaction claim fails and that would require proof that Mr and Mrs Robertson would have purchased the property in any case. If that was not to be raised by Airstrike Industrial Pty Ltd then there is no need for the alternative claim and it can be seen that this is the reason it was not pursued.

8. The Tribunal makes the orders foreshadowed in the reasons of 6 March 2013 in regard to Mr and Mrs Robertson entitlement to a claim of $200 000.00 against the fund.