The Chief Executive, Office of Fair Trading, Department of Justice and Attorney-General v Mitchell - [2025] QCAT 272

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

The Chief Executive, Office of Fair Trading, Department of Justice and Attorney-General v Mitchell [2025] QCAT 272

PARTIES:

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

(applicant)

v

KENNETH GEORGE MITCHELL

(respondent)

APPLICATION NO/S:

OCL044-24

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

11 July 2025

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Aughterson
Member Kent

ORDERS:

1. Pursuant to s 119 of the Agents Financial Administration Act 2014 (Qld) (‘the AFAA’), Kenneth George Mitchell is ordered to pay to the Claim Fund, established under s 78 of the AFAA, the sum of $217,715.00 within 21 days of the date of this order.

CATCHWORDS:

PROFESSIONS AND TRADES – AUCTIONEERS AND AGENTS – STATUTORY OR OTHER FIDELITY OR COMPENSATION FUND – Claim Fund under Agents Financial Administration Act 2014 (Qld) – where caravans were misrepresented and sold – where payment made out of Fund – where requirements for reimbursement order specified by Act – whether reimbursement order should be made

Agents Financial Administration Act 2014 (Qld) s 78, s, 82, s 101, s 102, s 112, s 116, s 117, s 119

Queensland Civil and Administrative Tribunal Act2009 (Qld) ss 33

APPEARANCES & REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act2009 (Qld)

REASONS FOR DECISION

Background

By s 82 of the Agents Financial Administration Act 2014 (Qld) (‘the AFAA’), a person may claim against the Claim Fund (‘the Fund’) established under s 78 of the AFAA if the person suffers financial loss because of any of the events set out in s 82 of the AFAA. Those events include a contravention of s 216 of the Motor Dealers and Chattel Auctioneers Act 2014 (Qld) (‘the MDCA’). Section 216(1) of the MDCA provides:
A licensee or motor salesperson must not represent in any way to someone else anything that is false or misleading about the sale or auction of goods.
Thirteen separate claims were made against the Fund in relation to the purchase of caravans from the respondent, in circumstances where it was said that the respondent had presented the caravans in a misleading manner through concealing their status as statutory write-offs.
Pursuant to s 100 of the AFAA, between October 2018 and November 2019 the applicant decided (‘the Decision’) the claims in favour of the claimants and, in terms of s 102(3) and s 116(3) of the AFAA, determined that the respondent is liable to reimburse the Fund for the amounts to be paid to the claimants.[1]
[1] As to the binding effect of the decisions, see the AFAA ss 101, 102, 103.
By s 103 of the AFAA, a party who is dissatisfied with a decision of the Chief Executive made under s 100 of the AFAA may apply to the Tribunal for a review of the decision. By s 101 of the AFAA, the 28 days allowed for filing a review application in the Tribunal pursuant to s 33(3) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘the QCAT Act’) cannot be extended.
In accordance with the Decision and after the expiration of the review period, in circumstances where either no application for review of a decision had been lodged or the application was withdrawn or struck out by the Tribunal as not being made within time, the applicant paid the claimants $217,715.00 from the Fund, comprised of the following individual amounts:
(a)$27,250.00 on 13 December 2018 (‘Claim Fund Decision 0018172’);
(b)$10,830.00 on 17 January 2020 (‘Claim Fund Decision 0020509’);
(c)$23,220.00 on 28 October 2019 (Claim Fund Decision 0018629);
(d)$12,520.00 on 28 October 2019 (Claim Fund Decision 0018660);
(e)$10,145.00 on 28 October 2019 (‘Claim Fund Decision 0018303);
(f)$10,200.00 on 9 September 2020 (Claim Fund Decision 0019276);
(g)$20,125.00 on 21 September 2020 (Claim Fund Decision 0029595);
(h)$18,425.00 on 9 September 2020 (Claim Fund Decision 0018196);
(i)$20,775.00 on 9 September 2020 (Claim Fund Decision 0019635);
(j)$9,425.00 on 9 September 2020 (Claim Fund Decision 0018061);
(k)$17,975.00 on 9 September 20200 (Claim Fund Decision 0019254);
(l)$9,550.00 on 9 September 2020 (Claim Fund Decision 0020510);
(m)$27,275.00 on 9 September 2020 (Claim Fund Decision 0019096).
By s 101(1)(b) of the AFAA, the amount paid to a claimant from the Fund in accordance with a decision may be recovered by the Chief Executive as a debt owing to the Chief Executive by the respondent named in a decision. On 9 April 2024, the applicant sent the respondent a demand to reimburse the Fund the sum of $217,715.00.
By s 117(3) of the AFAA, the Chief Executive may apply to the Tribunal for an order that the respondent reimburse the Fund of the Chief Executive. The present application was filed in the Tribunal on 28 June 2024.
In relation to ‘reimbursement orders’, s 119 of the AFAA provides:
(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.
It is noted that the Tribunal ‘must’ make a reimbursement order if satisfied as to the matters set out at s 119(2) and (3) of the AFAA.
In relation to s 119(2)(a) of the AFAA, as to whether the stated amount has been paid, directions were issued on 27 June 2025 requiring the parties to advise the Tribunal by 4 July 2025 as to whether the respondent had made any payments to the Fund. On 3 July 2025, the applicant advised the Tribunal that no payment has been made by the respondent to reimburse the Claim Fund. No response has been received from the respondent.
With reference to s 119(2)(b) and s 119(3) of the AFAA:
(a) As noted at [7] above, the present application relates to the reimbursement of a claim against the fund.
(b) In terms of s 119(3)(a) of the AFAA, the Chief Executive has made a decision about a claim against the fund: see [3], above.
(c) With reference to s 119(3)(b) of the AFAA, pursuant to s 116 of the AFAA the respondent is liable to reimburse the fund in a stated amount. Section 116(1) of the AFAA provides:
(1) This section applies if—
(a) a person is named in the chief executive’s decision or QCAT’s order as being liable for a claimant’s financial loss; and
Note—
See sections 100 (Deciding claims), 105 (Deciding claims) and 106 (Orders QCAT may make on claim hearing).
(b) an amount has, under section 112, been paid from the fund in settlement of the claimant’s claim.
Relevant to sub-section (1) above, s 116(3) of the AFAA provides:
A person mentioned in subsection (1)(a) or (2) is the responsible person for the amount.
An amount has in fact been paid under s 112 of the AFAA and the respondent is the responsible person for the amount: see [3] and [5], above.
(d) In terms of s 119(3)(c) of the AFAA, in relation to some of the individual claims, the respondent did not apply to the Tribunal to have the decision reviewed, while the remaining claims were either struck out by the Tribunal or withdrawn: see [5], above.
(e) In relation to s 119(3)(d) of the AFAA, written notice of the chief executive’s decision, a copy of the decision and an information notice under s 102 of the AFAA was given to the respondent: see submissions of the applicant of 25 June 2024, at [4]-[56].
No materials or submissions have been filed by the respondent. On the material and submissions filed by the applicant, I am satisfied that the statutory requirements for a reimbursement order have been met. As noted above, by s 119(2) of the AFAA, the Tribunal ‘must’ make a reimbursement order if satisfied as to the matters set out at s 119(2) and (3) of the AFAA. Accordingly, the Respondent is liable to reimburse the Claim Fund the sum of $217,715.00.

Orders

The Tribunal orders that:
1. Pursuant to s 119 of the AFAA, Kenneth George Mitchell is ordered to pay to the Claim Fund, established under s 78 of the AFAA, the sum of $217,715.00 within 21 days of the date of this order.