Terrasands Pty Ltd v Moranbah Real Estate Pty Ltd
[2012] QCAT 475
•2 October 2012
| CITATION: | Terrasands Pty Ltd v Moranbah Real Estate Pty Ltd and Anor [2012] QCAT 475 |
| PARTIES: | Terrasands Pty Ltd |
| v | |
| Moranbah Real Estate Pty Ltd t/as Moranbah Real Estate Bella Exposito |
| APPLICATION NUMBER: | GAR102-12 |
| 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 Chief Executive’s decision to refuse Terrasands Pty Ltd’s claim is confirmed and the application is dismissed. |
| CATCHWORDS: | PROPERTY AGENT – where agent’s authority terminated – where claim on fund for rent received by agent after termination and returned to tenant – whether Chief Executive’s refusal of claim on statutory fund correct Property Agents and Motor Dealers Act 2000, ss 470, 488, 490(2) |
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
Terrasands Pty Ltd made a claim against the statutory fund for $4,766.67. The Chief Executive declined the claim. Terrasands has applied for a review of that decision.
I am required to consider this claim afresh. In considering a claim against the fund, I must be satisfied[1] that an event as mentioned in section 470(1) happened and that Terrasands suffered financial loss because of the event.
[1] Section 488(2) Property Agents and Motor Dealers Act 2000.
Terrasands’ argument is confused and confusing but it seems the claim is that Moranbah returned January 2009 rent to the tenant rather than forward it to Terrasands.
Moranbah was Terrasands’ agent until 24 December 2008. Moranbah received the tenant’s November rent on 6 November 2008 and remitted it to Terrasands on 13 November 2008. Moranbah received the tenant’s December rent on 27 November 2008 (although incorrectly described as rent from 31 December 2008 to 31 January 2008) and remitted it to Terrasands on 15 December 2008. The January rent was not due until early January 2009. By that time, Terrasands had terminated Moranbah’s retainer.
As the Chief Executive has pointed out, once Moranbah’s retainer was terminated, it had no authority to pay the rent to Terrasands. Instead, it was obliged to return the rent to the tenant.
Terrasands’ bank records show that it did not receive a rent payment in January 2009. In the normal course of events, it should have received the January rent in the middle of that month. Terrasands received the first payment from the new property agent on 3 February 2009. The likely explanation, and Terrasands does not provide sufficient information either way, is that the payment on 3 February 2009 was the January rent, delayed because of the change of agent.
Terrasands has not pointed to any event mentioned in s 470 and I can see no basis for a claim that such an event has occurred. Terrasands might question the transactions that occurred after it terminated Moranbah’s retainer, including the rectification of an error in distribution, but it cannot point to any wrongdoing by Moranbah.
I must also take into account any amount Terrasands might reasonably have received or recovered if not for its neglect or default[2].
[2] Section 488(3)(a).
Even if I was satisfied that Terrasands had suffered financial loss, I consider that it should, and could, have recovered that amount from the tenant pursuant to the terms of the lease. Terrasands has provided no information about the steps it took to recover the January 2009 rent from the tenant.
The Chief Executive’s decision to refuse Terrasands’ claim is confirmed and the application is dismissed.
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