Ryan v Ferrantino
[2010] QCAT 495
•30 September 2010
CITATION: Ryan v Ferrantino [2010] QCAT 495
PARTIES: | Mr Robert Ryan |
| v | |
| Mr Rocco Ferrantino |
| APPLICATION NUMBER: | OCL018-10 |
| MATTER TYPE: | Other civil dispute matters |
| HEARING DATE: | 21 June 2010 |
| HEARD AT: | Level 10 BOQ Centre 259 Queen Street BRISBANE QLD 4000 |
| DECISION OF: | Ms Patricia Hanly |
| DELIVERED ON: | 30 September 2010 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. Pursuant to section 530 of the Property Agents and Motor Dealers Act 2000, the Chief Executive of the Department of Employment, Economic Development and Innovation pay to the Applicants Robert Craig Ryan and Kristi Ann Ryan the sum of $63,773.18. 2. Pursuant to section 489 of the Property Agents and Motor Dealers Act 2000, the Chief Executive shall not pay the amount until the end of the period allowed for appeal, and if there is an appeal, until the appeal is finally decided. 3. Pursuant to section 488(3)(c) the respondent Rocco Ferrantino is the person who misapplied in terms of section 470(1)(e) the deposit monies and monies paid for variations and is liable for the financial loss of the applicants. 4. Upon payment of the sum of $63,773.18 from the Claim Fund to the applicants, the respondent Rocco Ferrantino is liable to reimburse the Claim Fund by paying the sum of $63,773.18.to the Chief Executive of Employment, Economic Development and Innovation. |
| CATCHWORDS : | Claim against the fund – misapplication of deposit monies – sale of land in NSW – jurisdiction of Tribunal |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Robert Ryan and Kristi Ryan Represented by: Elizabeth Fairon, Solicitor, Carroll Fairon Solicitors |
| RESPONDENT: | No appearance |
REASONS FOR DECISION
History within the Office of Fair Trading
On 29 February 2008 Robert Ryan and Kristi Ryan (the applicants) made a claim to the Office of Fair Trading (the OFT) against the Claim Fund established under the provisions of the Property Agents and Motor Dealers Act 2000 (the Act) in the amount of $34,450.70 in relation to property and their dealings with Rocco Ferrantino (the respondent).
In accordance with section 473 of the Act the claim was lodged on the approved form. The claim was assessed as being out of time, but following application by the applicants to the Commercial and Consumer Tribunal, an extension of time was granted on 1 September 2008.
Under sections 474 and 475 of the Act a Claim Notice was forwarded on 6 November 2008 by the OFT to the last known addresses of the respondent. Those addresses included addresses that had been supplied by the applicants to the Office of Fair Trading, as well as the registered office address/other addresses sourced by the OFT through searches on relevant databases.
The Claim Notice was not returned to the OFT office.
On 10 December 2008 the applicants gave the Chief Executive written notice under section 476(1) of the Act that they wished to proceed with the claim as it had not settled within 28 days after the Claim Notice was given to the respondent.
Under section 476(3) of the Act, the Chief executive was required to refer the claim to the Tribunal, as it related to a claim other than a minor claim, in that it exceeded $10,000.00.
Under section 477(3) of the Act the Chief Executive gave a copy of the Inspector’s Report to the applicants and to the respondent on 1 February 2010. On the same date, the Chief Executive gave a copy of the Inspector’s Report to the Queensland Civil and Administrative Tribunal (the Tribunal).
History within the Tribunal
Following receipt of the Inspector’s Report and the various documents contained within the OFT file, the Tribunal initiated the current application.
A directions hearing was scheduled for 5 May 2010, and notice of that hearing was given to both parties.
10. On 5 May 2010 the applicants appeared through their solicitor, who attended the hearing by remote conferencing. The respondent did not appear.
11. The Tribunal issued directions to both the applicants and the respondent for the filing of statements of evidence. The applicants’ material was required to be filed and served by 26 May 2010, and the respondent was required to file and serve his material by 9 June 2010. The matter was set down for hearing on 21 June 2010. The Tribunal’s decision was sent to both parties.
12. The applicants filed their material as directed. No material has been filed by the respondent.
13. The matter came on for hearing on 21 June 2010. The applicants appeared in person, and were represented by their solicitor, Ms Elizabeth Fairon, of Carroll Fairon Solicitors.
14. There was no appearance by or on behalf of the respondent.
15. The evidence before the Tribunal includes an affidavit of each of the applicants, and the file from the OFT, which contains the Inspector’s Report dated 25 January 2010 and various documents relating to the applicants’ claim. The OFT file also includes documents filed by the applicants in the Local Court in Tweed Heads, and the Magistrates Court of Queensland at Coolangatta.
16. The applicants’ claim relates to an intended purchase by them of a block of land at Cupania Court, Tweed Heads West in New South Wales (the property). The respondent showed the property to the applicants, and on behalf of the vendor negotiated with the applicants a contract for the sale and subsequent purchase of the property.
17. The applicants engaged with the respondent on the basis that he was a real estate agent selling house and land packages. The affidavit evidence before the Tribunal deposes that the respondent:
a)Met with the applicants
b)Discussed house and land packages
c)Showed them the land in question
d)Negotiated the sale of the property on behalf of the vendor
e)Gave directions for the payment of a deposit to be paid under the terms of the contract and arranged for the deposit to be paid
f)Prepared the contract for the sale of the property
g)Assisted with the signing of the contracts, including the building contract for the house on the property
h)Provided information and contacts for the purchase by the applicants of new interior fittings for the house.
The applicants paid a deposit of $29,000.00 plus a further sum of $4,600.00 for variations to the respondent. These monies were handed to the respondent on or around 13 March 2003 and on or around 27 August 2003. The contract, later exchanged, provided that the deposit holder was the “vendor’s agent”[1].
[1] Exhibit KAR-3 to affidavit of Kristi Ann Ryan sworn 26 may 2010
The respondent issued a receipt for the two cheques totalling $29,000.00 by way of a handwritten note on his letterhead for Queensland Accounting Services, located at Ashmore on the Gold Coast, in the State of Queensland. A copy of this document, signed by the respondent and dated 27 March 2003, is exhibited to the affidavit of Robert Ryan, sworn on 26 May 2010.
The respondent issued a receipt for the sum of $4,600.00 on letterhead for Award Winning Homes Australia, also located at Ashmore on the Gold Coast. A copy of this document, signed by the respondent and dated 27 August 2003, is exhibited to the affidavit of Robert Ryan, sworn on 26 May 2010.
The contract for the sale of the property was not completed, and the applicants’ repeated requests, both personally and through their legal representatives, for refund of the monies paid, were unsuccessful.
The applicants obtained default judgment against the respondent in the Local Court at Tweed Heads in the amount of $37,142.30, which comprised $32,490.00 for the claim and $4,494.30 for interest.
The respondent subsequently paid the sum of $2,000.00 to the applicants.
The Tribunal accepts the unchallenged evidence of the applicants, deposed to in their affidavits[2].
[2] Affidavit of Robert Craig Ryan sworn 26 May 2010 & affidavit of Kristi Ann Ryan
The threshold issue for the Tribunal is whether it has jurisdiction to entertain a claim against the fund when the property in respect of which negotiations took place between the applicants and the respondent is situated in New South Wales.
The Tribunal has noted the decisions[3] of the former Commercial and Consumer Tribunal involving the same respondent and similar facts.
[3] Goodchild –v- Ferrantino [2007] QCCTPAMD 2; Riley, Vrachnas & the Chief Executive, Office of Fair Trading –v- Ferrantino [2008] CCT PC032-07; Bain & the Chief Executive, Office of Fair Trading –v- Ferrantino [2009] QCCTPAMD 5; Bain, Morgan & the Chief Executive, Office of Fair trading –v- Ferrantino [2009] QCCTPAMD 33
In the Goodchild decision, the member considered that the objects of the Act set out in section 10 are “aimed at consumer protection and the regulation of the real estate industry in Queensland”. The member noted in particular section 10(3)(f) which states that the objects are to be achieved, amongst other things, by establishing a claim fund to provide compensation in particular circumstances for persons who suffer financial loss because of their dealings with persons. The member further stated that: “in light of section 10(3)(f), the focus of the legislature in establishing the fund is clearly, in my view, on the conduct of the relevant persons rather than on the situs of the property in question.”
28.
In all of the aforementioned decisions, the Tribunal was satisfied that it had jurisdiction to hear the matters because the respondent performed the real estate activities (under the name Queensland Accounting Services) from his office at Ashmore in Queensland and misappropriated the monies in Queensland.
The Tribunal adopts, with respect, the reasoning contained in the aforementioned decisions. The Tribunal is satisfied that it has jurisdiction in this matter on the basis that the respondent resided in and carried on business in Queensland[4]; he acted as the vendor’s agent in Queensland[5] ; he negotiated with the applicants in Queensland and elsewhere[6]; the deposit was paid to the respondent in Queensland[7] and the deposit was banked into a bank account in Queensland.
[4] Receipts issued to applicants, and respondent’s affidavit sworn 3 May 2005 in Local Court at Tweed heads
[5] Notice of Defence of Rocco Ferrantino dated 4 May 2005 – exhibit RCR-15 to the Affidavit of Robert Ryan
[6] Paras 4,7,9,10 Affidavit of Kristi Ann Ryan & paras 4,5,7 Affidavit of Robert Craig Ryan
[7] Receipts exhibited to the Affidavit of Robert Ryan – RCR-2 & RCR-4
The Tribunal finds that the respondent is a relevant person[8] in that, although he was not licensed, he acted as a licensee in his dealings with the applicants. In making this finding, the Tribunal accepts the evidence deposed to by the applicants and referred to in paragraph 17 above.
[8] Act s469
The Tribunal further finds that the respondent misappropriated[9] the monies paid to him by the applicants, and that this has resulted in financial loss to the applicants[10] notwithstanding that a default judgment was entered against the respondent in the Local Court at Tweed Heads[11].
[9] Act s470(1)(e)
[10] Affidavit of Robert Ryan paras 44&45
[11] Riley & Vrachnas & the Chief Executive, Office of Fair Trading–v- Ferrantino [2009] para 32
The sum paid by way of deposit and variations was $33,600.00. The respondent repaid the sum of $2,000.00. The nett loss therefore is $31,600.00.
The Tribunal is satisfied that the applicants are entitled to be paid interest in the nature of damages for lost opportunity on that sum[12]. The relevant rate to be applied is 10%. The Tribunal notes that the sum of $29,000.00 was paid to the respondent on 13 March 2003 and that the sum of $4,600.00 was paid to the respondent on 27 August 2003. The partial repayment of $2,000.00 was made by the respondent on 1 September 2005[13].
[12] McGill DCJ in Bieto & Ors –v- Triline Australia Pty Ltd (No 2) [2003] QDC307; Goodchild (supra)
[13] Para 32 Affidavit of Robert Craig Ryan
The applicants have had their costs assessed by Hickey & Garrett Costs Assessors in relation to this matter, and also claim costs incurred by them in prosecuting their claims in the Local Court at Tweed Heads and the Magistrates Court at Coolangatta.
The Tribunal finds the applicants’ financial loss to be as follows:
Claim $31,600.00
Interest $24,172.98 comprising the following amounts:
$29,000.00 x 2759 days (13-03-03 to 30-09-10) @ 10% pa = $21,920.82
$4,600.00 x 738 days (27-08-03 to 01-09-05) @ 10% pa = $930.08
$2,600.00 x 1856 days (01-09-05 to 30-09-10) @ 10% pa = $1,322.08
Local Court Tweed Heads legal costs $158.00
Ken Lee Solicitor (applicants’ first solicitor) $728.20
Costs assessed by Hickey & Garrett $7,114.00
On the basis of this finding, the Tribunal makes the orders set out at the beginning of this document.
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