Sutton v Prime Real Estate

[2012] QCAT 485

CITATION: Sutton and Anor v Prime Real Estate [2012] QCAT 485

PARTIES:	David Sutton Sandra Joanne Sutton
v
Prime Real Estate

APPLICATION NUMBER:   OCR221-12

MATTER TYPE: General administrative review matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Peta Stilgoe, Senior Member

DELIVERED ON: 2 October 2012

DELIVERED AT: Brisbane

ORDERS MADE:     1.    The application for an extension of time in which to lodge a claim against the fund is refused.

CATCHWORDS: 

REAL ESTATE AGENT – EXTENSION OF TIME – where loss occurred in 2010 – where court proceedings started within time – where claim made within 3 months of court proceedings concluding

Property Agents and Motor Dealers Act 2000, ss 472(2), 472(3), 488(2), 511

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.

REASONS FOR DECISION

1. Mr and Mrs Sutton signed a contract to purchase lots off the plan in 2008.  Prime Real Estate was the agent for the seller.  Mr and Mrs Sutton paid the deposit of $4,845 by a deposit bond on 31 January 2008.  QBE Insurance Australia, the bond holder, paid a further $47,340 pursuant to contract of sale, and apparently on behalf of Mr and Mrs Sutton, on 14 December 2010.

2. Mr and Mrs Sutton did not settle the contract to purchase.  They say that they have lost the two payments made on their behalf because of misrepresentations by Prime Real Estate.  On 19 March 2012, they lodged a claim against the statutory fund.

3. Section 472(2) of the Property Agents and Motor Dealers Act 2000 provides that a person may make a claim against the statutory fund within the earlier of:

a)1 year after the person becomes aware of financial loss because of the happening of the event; or

b)3 years after the happening of the event that caused the financial loss.

1. However, if a person starts a proceeding in a court to recover a financial loss within the time permitted to make a claim, that person can make a claim against the fund within 3 months after the proceeding in court ends[1].

   [1] Section 472(3) Property Agents and Motor Dealers Act 2000.

2. Section 511 of PAMDA provides that the tribunal can extend the time for making a claim on the fund having regard to:

a)The reasons for not making the claim or seeking the review within the time allowed.

b)The application generally.

c)The relative hardship that an extension of time, or a refusal to extend time, would place on the claimant or the respondent.

Is the claim out of time?

1. Mr and Mrs Sutton should have made a claim against the fund by 13 December 2011.  Instead, they commenced proceedings in New South Wales in July 2011.  They commenced proceedings within the time that they could have claimed against the fund.  Therefore, the time in which they can make a claim against the fund is extended to 3 months after the date that proceeding concluded.

2. The material filed indicates that the last action in the New South Wales proceeding occurred on 2 March 2012.  Mr and Mrs Sutton lodged their claim on 19 March 2012.  Their claim was filed within time.

Conclusion

1. The application for an extension of time is not necessary because Mr and Mrs Sutton filed their claim within 3 months of legal proceedings being concluded.  Those legal proceedings were filed within the time they were permitted to make a claim.  The application for an extension of time is therefore refused because it is unnecessary.  The Chief Executive should reconsider the claim.