The Chief Executive, Office of Fair Trading, Department of Justice and Attorney-General v Ikinofo

[2022] QCAT 55

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

The Chief Executive, Office of Fair Trading, Department of Justice and Attorney-General v Ikinofo [2022] QCAT 55

PARTIES:

THE CHIEF EXECUTIVE, OFFICE OF FAIR TRADING, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL

(applicant)

v

LORINA NICOLA IKINOFO

(respondent)

APPLICATION NO/S:

OCL099-19

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

10 February 2022

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown

ORDERS:

1.     The respondent must pay to the applicant $95,921.17 within 28 days.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – Claim fund under Agents Financial Administration Act 2014 (Qld) – where an application for reimbursement order is made – where the application is uncontested – where the requirements for reimbursement order are met, the Tribunal must make the order.

Agents Financial Administration Act 2014 (Qld) s 102, s 116, s 117, s 119

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

REASONS FOR DECISION

1. Ms Ikinofo (the respondent) was a real estate agent who, among other things, managed a number of rental properties on behalf of the owners of the properties.

2. The Office of Fair Trading (OFT) has applied under s 117 of the Agents Financial Administration Act 2014 (Qld) (AFAA) for a reimbursement order in the amount of $95,921.17 against the respondent.

3. The Tribunal must make a reimbursement order under s 119 of the AFAA if satisfied that certain specified requirements set out in the section have been met. I will address later in these reasons what those requirements are and whether they have been satisfied in the circumstances of this matter.

4. It should be noted at the outset that the respondent has filed no material in response to the application by the OFT. Accordingly, the material relied upon by the OFT, including the statement of claim and attached documents, statutory declaration, affidavits, and submissions are all uncontested. I accept the evidence of the OFT.

5. I am satisfied as to the following and make findings that:

   (a)On various dates between 15 September 2016 and 28 August 2018, the OFT made decisions that a number of clients of the respondent were entitled to payments from the claim fund established under the AFAA (the fund), and that the respondent was liable to reimburse the fund (the decisions).

   (b)The bases of the decisions were the findings by the OFT that the respondent had variously failed to forward rent to clients, failed to properly transfer monies for the benefit of clients or retained bond monies that should have been lodged with the Residential Tenancies Authority.

   (c)Payments from the fund totalling $95,921.17 have been made to the various claimants by the OFT in consequence of the decisions.

   (d)The OFT has, by written correspondence, advised the respondent about the decisions. The respondent did not apply to the Tribunal for a review of any of the decisions.

   (e)On 13 November 2018, the OFT sent a letter of demand to the respondent setting out the payments made as referred to above and demanding payment of the amount of $95,921.17 within 28 days of the date the respondent received the letter.

   (f)The respondent failed to respond to the letter of demand and has not paid any part of the amount demanded by the OFT.  

   (g)All documentation as referred to above was forwarded by the OFT to the last known address of the respondent.

6. Section 119 of the AFAA provides as follows:

   (1)   QCAT must consider an application for a reimbursement order and any written submissions made by the respondent for the application.

   (2)   QCAT must make a reimbursement order if satisfied that—

   (a) the respondent has not paid the stated amount within the time allowed under the letter of demand; and

   (b) if the application relates to the reimbursement of a claim against the fund—the matters stated in subsection (3) apply.

   (3)   For subsection (2)(b), the matters are—

   (a) the chief executive has made a decision about a claim against the fund; and

   (b) under section 116 the respondent is liable to reimburse the fund in a stated amount; and

   (c) either—

   (i) the respondent did not apply to QCAT under section 103 to have the decision reviewed; or

   (ii) the decision has been reviewed by QCAT, and under QCAT’s decision, the respondent is liable to reimburse an amount to the chief executive or the fund; and

   (d) written notice of the chief executive’s decision, a copy of the decision and an information notice under section 102 was given to the respondent.

   (4)   If QCAT makes a reimbursement order, the order must state that the respondent is liable to pay to the chief executive a stated amount within a stated period.

7. I am satisfied as to the following and make findings accordingly:

   (a)The respondent has not paid any part of the amount stated in the letter of demand within the 28-day period allowed by the letter of demand;

   (b)The Chief Executive has made a series of decisions about claims against the fund;

   (c)The respondent is liable to reimburse the fund under s 116 of the AFAA: she is the person named as liable in the decisions of the OFT (and is thereby the responsible person), and the OFT has paid the claimants in settlement of their claims. Accordingly, the respondent is liable to reimburse the fund for the amounts paid;

   (d)The respondent did not apply to the Tribunal for a review of any of the decisions made by OFT;

   (e)The OFT gave the respondent written notice of its decisions, a copy of the decisions, and information notices under s 102 of the AFAA.

8. It follows from the foregoing that the requirements of the AFAA have been met and that a reimbursement order must be made.

9. I order that the respondent must pay to the applicant $95,921.17 within 28 days.