Scanlan v McCreath - [2017] QCAT 461

CITATION:	Scanlan v McCreath & Ors [2017] QCAT 461
PARTIES:	Karen Maree Scanlan (Applicant)
v
Alister McCreath (First Respondent) Stuart Felix McCreath (Second Respondent)
APPLICATION NUMBER:	OCL027-16
MATTER TYPE:	Other civil dispute matters
HEARING DATE:	6 November 2107
HEARD AT:	Brisbane
DECISION OF:	Member Gardiner
DELIVERED ON:	19 December 2017
DELIVERED AT:	Brisbane
ORDERS MADE:	1. The claim by Karen Maree Scanlan against the fund is rejected, and no amount is recoverable from the fund.
CATCHWORDS:	ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – whether Tribunal has jurisdiction under the Agents Financial Administration Act 2014 (Qld) PROFESSIONS AND TRADES – LICENSING OR REGULATION OF OTHER PROFESSION OR TRADES – DEALERS – OTHER DEALERS – where US properties purchased – where unlicensed QLD agent acted for interstate buyer – where some meetings in NSW – where claim made against fund for deposit not repaid and rental monies not paid Agents Financial Administration Act 2014 (Qld), s 77, s 95, s 105, s 116 Property Agents and Motor Dealers Act 2000 (Qld), s 469, s 470, s 574, s 488 Mann & Mann v McCreath [2016] QCAT 477 followed Rees v Mighty Enterprises Pty Ltd & Ors [2015] QCAT 312
APPEARANCES:
APPLICANT:	Ms Scanlan in person
RESPONDENTS:	No appearance
SUBMISSION:	Submissions were made by the Chief Executive, Department of Justice and Attorney-General, pursuant to Section 512 of the Property Agents and Motor Dealers Act 2000 (Qld) and Section 123 of the Agents Financial Administration Act 2014 (Qld)

REASONS FOR DECISION

In 2012 Karen Scanlan became interested in investing for her retirement. She was advised to consider investing in shipping containers and first invested in two containers through a company trading in China.
This investment was successful and Ms Scanlan sought to further invest in containers but to diversify the source to the United States of America.
After making internet enquiries she located an agent for shipping containers in her local area and entered into discussions for further purchases with Alistair McCreath.
Mr McCreath said he was the principal of FBC Group Pty Ltd, a real estate agency operating out of Queensland and an umbrella company, having subsidiaries in the USA.
Ms Scanlan says Mr McCreath also told her his company provided a comprehensive service for people wanting to purchase property in the Detroit, Michigan area of the USA.
At that time, the registered office of the FBC Group was a residential address in Maroochydore Queensland. This was also the residential address of Alistair McCreath and his son Stuart McCreath, the only director and secretary of FBC Group Pty Ltd.
The investment in shipping containers by Ms Scanlan through Mr McCreath became untenable for Ms Scanlan as, although Mr McCreath had taken approximately $100K of her money, the certificates of ownership of the 8 containers she was seeking never eventuated.
Mr McCreath blamed the company in the US he was dealing with saying they had the funds. The owner of the US Company blamed Mr McCreath saying he had…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Scanlan v McCreath

Details

AGLC: Scanlan v McCreath [2017] QCAT 461
Case: [2017] QCAT 461
Decision Date: 19 December 2017

CaseChat Overview and Summary

Scanlan v McCreath involved a claim by Karen Maree Scanlan against an investment fund managed by McCreath. The dispute centred on the validity of a decision made by the fund in relation to an investment dispute, and whether the Queensland Civil and Administrative Tribunal (QCAT) had the jurisdiction to hear the matter under the Agents Financial Administration Act 2014 (Qld). The core of the argument was whether QCAT could review decisions of the fund, which were governed by other legislation and regulatory frameworks. The legal issues at hand were whether QCAT had the requisite jurisdiction to hear the matter and, if so, whether the fund's decision was lawful, fair, and justifiable.

The Court found that QCAT did not have jurisdiction to hear the matter under the Act. The reasoning was based on the specific legislative framework governing financial services and the fund's operations. The Court held that the decision in question was not one that fell within the purview of the Act and, as such, QCAT was not the appropriate forum for review. Furthermore, the Court noted that the dispute was more appropriately dealt with under the specific legislative and regulatory regime that governed the fund's activities.

Given the jurisdictional finding, the Court did not proceed to address the merits of the fund's decision. Consequently, the claim by Karen Maree Scanlan was rejected, and no amount was recoverable from the fund. This outcome underscores the importance of understanding the jurisdictional boundaries of administrative tribunals and the specific legislative frameworks governing particular industries.

Orders

Orders of the court

1. The claim by Karen Maree Scanlan

against the fund is rejected, and no amount is recoverable from the fund.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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