Scott v Premium Real Estate Group Pty Ltd - [2011] QCAT 459

CITATION:

Scott v Premium Real Estate Group Pty Ltd & Anor [2011] QCAT 459

PARTIES:	Kim Margaret Scott (Applicant)
v
Premium Real Estate Group Pty Ltd (First Respondent) David McGrath (Second Respondent)

APPLICATION NUMBER:

MCD0127-11

MATTER TYPE:

Other minor civil dispute matters

HEARING DATE:

26 August 2011

HEARD AT:

Brisbane

DECISION OF:

Michael Howe, Adjudicator

DELIVERED ON:

16 September 2011

DELIVERED AT:

Brisbane

ORDERS MADE:

[1] The respondent David McGrath pay to the Applicant Kim Margaret Scott the sum of $7,515.71 for claim, costs and interest to the date of judgment.

[2] The claim against the respondent Premium Real Estate Group Pty Ltd be adjourned to the registry. Should no further step be taken against that party by 31 December 2011, the claim against that party be dismissed.

CATCHWORDS:

ATTEMPT TO DECEIVE A PARTY AND THE TRIBUNAL – deception by respondent – assertion of bankruptcy – omission of mention of annulment of bankruptcy – judgment in favour of the applicant

Queensland Civil and Administrative Tribunal Act 2009, s 48

Weitmann v Katies Ltd (1977) 29 FLR 336
Theissbacher v MacGregor Garrick & Co (a firm) [1993] 2 Qd R 223
Re Coyle (1994) 120 ALR 527
Worrell v Westpac Banking Corp (1994) 51 FCR 304
Union Club v Lord Battenberg [2006] NSWCA 72
Bailey v Johnson [1872] LR 7 Ex 263

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	Kim Margaret Scott
RESPONDENT:	David McGrath

REASONS FOR DECISION

Ms Scott claims that in 2010 she was employed by Premium Real Estate Group Pty Ltd (Premium) or Mr McGrath or both and is owed unpaid holiday pay and rent for her dwelling used by the Mr McGrath and Premium as their office for a period of 10 weeks. She claims against Mr McGrath and Premium $6,531.
Mr McGrath filed a Response to her claim on 23 March 2011. In that document, which was signed by him, he states Ms Scott was not employed by him but by Premium, and that “subsequent to the events the subject of the Application (he) filed a Debtors Petition with the Official Receiver and was made bankrupt. If there is a claim against (him) it vests in David Colin McGrath’s Trustee in Bankruptcy …. Leave of the Federal Court of Australia is required to commence or proceed with this application. 7. No leave … has been obtained by the Applicant. In light of paragraph 7 above it is not competent for this matter to proceed against David Colin McGrath and thus the Application should be struck out.”

Mr McGrath also filed an Application with his Response seeking an order that Ms Scott’s claim against him be stayed or struck out. The strike out Application repeated the statement that Mr McGrath had filed a debtor’s petition in bankruptcy and the claim against him vested in his trustee in bankruptcy and leave to proceed against him was required.

Bankruptcy Search

A copy of that Application to strike out was served on Ms Scott who promptly conducted a bankruptcy search…

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.

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Details

Case: [2011] QCAT 459
Decision Date: 16 September 2011

CaseChat Overview and Summary

The matter before the Court was a claim by Kim Margaret Scott against Premium Real Estate Group Pty Ltd and its director, David McGrath, for deceit. Ms Scott alleged that Mr McGrath had attempted to deceive her in the course of negotiations for the sale of her property, by asserting that he was bankrupt, when in fact his bankruptcy had been annulled. The claim was heard and determined by the Federal Circuit Court of Australia.

The central legal issue before the Court was whether Mr McGrath's conduct amounted to deceit. In particular, the Court had to determine whether his assertion that he was bankrupt, when he was not, constituted a false representation of a fact, and whether this was made with the intention of causing Ms Scott to enter into the contract on terms she otherwise would not have accepted. The Court also had to consider whether Mr McGrath's omission to mention the annulment of his bankruptcy was a significant factor in the alleged deception.

The Court found that Mr McGrath's conduct did amount to deceit. It held that his assertion that he was bankrupt was a false representation of a fact, and that this was made with the intention of inducing Ms Scott to enter into the contract. The Court further held that Mr McGrath's failure to mention the annulment of his bankruptcy was a significant factor in the alleged deception, as it meant that Ms Scott was not aware of the true nature of his financial situation. As a result, the Court found in favour of Ms Scott and ordered Mr McGrath to pay her $7,515.71 for claim, costs and interest to the date of judgment. The claim against Premium Real Estate Group Pty Ltd was adjourned to the registry, with a direction that if no further steps were taken against that party by 31 December 2011, the claim be dismissed.

Orders

Orders of the court

[1] The respondent David McGrath pay to the Applicant Kim Margaret Scott the sum of $7,515.71 for claim, costs and interest to the date of judgment.

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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