Skelley v Burleigh Reserve Management Pty Ltd t/as Golden Gate Resort

[2014] QCAT 560

CITATION: Skelley v Burleigh Reserve Management Pty Ltd t/as Golden Gate Resort [2014] QCAT 560

PARTIES:	Yvonne Skelley (Applicant/Appellant)
v
Burleigh Reserve Management Pty Ltd t/as Golden Gate Resort Peter Walter Huth (Respondent)

APPLICATION NUMBER: GAR223-14

MATTER TYPE: General administrative review matters

HEARING DATE: On the papers.

HEARD AT: Brisbane

DECISION OF: Senior Member Oliver

DELIVERED ON: 6 November 2014

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 $49,434.26.

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 the applicant the sum of $49,434.26 from the claim fund, and if there is an appeal, payment must not be made until the appeal is finally decided.

3. Pursuant to s 488(3)(c) of the Property Agents and Motor Dealers Act 2000 the respondents Burleigh Reserve Management Pty Ltd trading as Golden Gate Resort and Peter Huth are named as the persons liable for the financial loss of the applicant.

4.    Upon payment from the claim fund, and pursuant to s 49 and s 530 of the Property Agents and Motor Dealers Act 2000 Burleigh Reserve Management Pty Ltd trading as Golden Gate Resort and Peter Huth are jointly and severally liable to reimburse the claim fund by paying the sum of $49,434.26 to the Chief Executive, Department of Justice and Attorney General.

CATCHWORDS:

STATUTORY CLAIM FUND – where rental agent failed to account for rental money received into trust – where applicant entitled to the trust money less expenses.

Property Agents and Motor Dealers Act 2000 (Qld)

APPEARANCES:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

1. Ms Skelly is the owner of Unit 3203 in the Golden Gate Resort unit complex at Surfers Paradise on the Gold Coast. Burleigh Reserve Management Pty Ltd (“the Company”) t/as Golden Gate Resort was the letting agent for units in the complex. Peter Huth is a director and shareholder of the Company. Ms entered into a letting agreement with the Company for the purpose of letting out unit 3203 to both permanent and holiday tenants.  Between 1 September 2012 and 20 February 2014 the Company received $65,709.50 in rent from the tenant of unit 3203 and failed to account to Ms Skelley for that rent.

2. On 4 March 2014 Julie Williams of Insolvency and Turnaround Solutions was appointed by the Office of Fair Trading (“OFT”), Department of Justice and Attorney-General as the Receiver over the trust property of the Company under the provisions of the Property Agents and Motor Dealers Act 2000 (“the Act”).

3. After her appointment, Ms Williams placed and advertisement in the local Gold Coast Newspaper advising of her appointment and invited claims from potential claimants who had suffered financial loss through the actions of the Company. Ms Skelley lodged a claim against the Claim Fund, as did other owners.

4. Ms Williams investigated the affairs of the Company and provided a report to the OFT. The report sets out the terms of the rental agreement between Ms Skelley and the Company and included, obviously, and obligation on the part of the Company to collect rents and tariffs from tenants and holiday stay guests. The rental monies received were to be banked into the Company’s trust account and after expenses the rental money would be remitted to Ms Skelley. After a reconciliation of the income and expenses, $49,434.26 was found to be owing to the Ms Skelley.

5. Ms Williams reviewed the records of the Company and the manner of its operation and said this in her report.

   A review of the physical records and current electronic records on Hirum indicated there were:

   §      Cash collected with no trust receipts issued and not deposited to the trust account;

   §      Bonds collected not recorded to the system and not lodged with the RTA; and

   §      Substantial short fall in the trust account.

   When queried, the trader (Mr Huth):

   §      Could not provide an explanation for the shortfall in the trust account;

   §      Admitted to non lodgement of some bond monies received; and

   §      Indicated he was aware of outstanding owner payment not made.

   Contrary to the trader’s assertion, my staff over the next week collected and collated an inordinate amount of trust records 9in no order) from the various offices, manager’s unit, shopping trolleys located in storerooms containing historical and some current trust records. The records were returned to my office, sorted and box listed to thirty two (32) boxes of historical and current records.

6. After receiving Ms Williams’ report, the OFT referred the claim to the Tribunal for determination. In its written submissions the OFT relies on the report to submit that that the relevant event under s 470(1)(a) of the Act is the stealing, misappropriation or misapplication of money legitimately payable to Ms Skelley’s. There is no evidence to contradict this submission. Also the financial loss is $49,434.26 has been substantiated and, again, there is no evidence to contradict conclusion.

7. I have considered the report of Ms Williams, the material attached to the report and the conclusions reached by both Ms Williams and the OFT as articulated in its submission to the Tribunal. It is abundantly clear that Mrs Skelley’s loss arose as a consequence of the actions of the director, Mr Huth

8. I find that the person responsible for the loss is Mr Huth, the director of the Company, in the amount claimed.