The Chief Executive, Office of Fair Trading, Department of Justice and Attorney-General v Smith
[2020] QCAT 389
•28 September 2020
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
The Chief Executive, Office of Fair Trading, Department of Justice and Attorney-General v Smith [2020] QCAT 389
PARTIES: THE CHIEF EXECUTIVE, OFFICE OF FAIR TRADING, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL (applicant)
v
DALE AARON SMITH (respondent)
APPLICATION NO/S:
OCL012-20
MATTER TYPE:
Other civil dispute matters
DELIVERED ON:
28 September 2020
HEARING DATE:
On the papers
HEARD AT:
Brisbane
DECISION OF:
Member Kanowski
ORDER:
Dale Aaron Smith is, pursuant to sections 117 and 119 of the Agents Financial Administration Act 2014 (Qld) liable to reimburse, and is ordered to pay, to the claim fund established under section 78 of that Act, the sum of $30,702.27 within 21 days of this order.
CATCHWORDS: PROFESSIONS AND TRADES – AUCTIONEERS AND AGENTS – STATUTORY OR OTHER FIDELITY OR COMPENSATION FUND – where payments from claim fund made to clients of real estate agent – whether agent liable to reimburse
Agents Financial Administration Act 2014 (Qld), s 119
REPRESENTATION:
Applicant:
N Pirie, delegate of the applicant
Respondent:
No appearance
APPEARANCES:
This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)
REASONS FOR DECISION
Introduction
Mr Smith conducted a real estate business called Sharp Properties CQ.
In this proceeding, the applicant (‘Office of Fair Trading’) has applied under section 117 of the Agents Financial Administration Act 2014 (Qld) (‘Agents Financial Administration Act’) for a reimbursement order for $30,702.27 against Mr Smith.
The Tribunal must make such an order under section 119 of the Agents Financial Administration Act if satisfied that certain conditions have been met.
Background
The following information is drawn from documents filed in the proceeding by Office of Fair Trading, including its statement of claim and attached source documents, statutory declaration, affidavits, and submissions. The information is uncontested by Mr Smith, who has not filed any documents in response. I accept that the information set out below is accurate, and I make factual findings accordingly.
On various dates in 2015 and 2016, Office of Fair Trading made decisions that various clients of Mr Smith were entitled to payments from the claim fund established under the Agents Financial Administration Act (‘the fund’), and that Mr Smith was liable to reimburse the fund. The decisions arose from findings that Mr Smith had variously failed to forward rent to clients or retained bond money that he should have lodged with the Residential Tenancies Authority.
The payments totalled $31,987.98, and each has been paid to the claimants by Office of Fair Trading.
Office of Fair Trading advised Mr Smith of these decisions by letters. He did not apply to the tribunal for a review of any of the decisions.
On 10 January 2019 Office of Fair Trading sent a letter of demand to Mr Smith. The letter listed the payments, which totalled $31,987.98. The letter also acknowledged that $1,285.71 of this amount had been paid, leaving an outstanding balance of $30,702.27. The letter demanded payment of this amount by Mr Smith within 28 days.
Mr Smith has made no further reimbursement payments.
Office of Fair Trading filed the application for a reimbursement order in the Tribunal on 23 January 2020.
The various items of Office of Fair Trading correspondence were sent to Mr Smith at his last-known address from time to time, being firstly an address in Gracemere and later and address in Lakes Creek Road at Rockhampton. In respect of the latter address, Office of Fair Trading acknowledges that some correspondence was sent to that address in a form ending ‘Rockhampton Qld 4700’ while some was sent to an address in a form ending ‘Lakes Creek Qld 4701’, but submits, and I accept, that both addresses sufficiently identified the last-known address for Mr Smith.
Are the requirements of section 119 met?
Section 119 of the Agents Financial Administration Act says:
119 Reimbursement orders
(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.
I am satisfied of the following matters that are required under section 119 before a reimbursement order can be made:
(a)Mr Smith has not paid 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)Mr Smith is liable to reimburse the fund under section 116 of the Agents Financial Administration Act: he is the person named as liable in the decisions of Office of Fair Trading, and Office of Fair Trading has paid the claimants in settlement of their claims, so Mr Smith is liable to reimburse the fund for the amounts paid;
(d)Mr Smith did not apply to the tribunal for a review of any of the decisions made by Office of Fair Trading;
(e)Office of Fair Trading gave Mr Smith written notice of its decisions, a copy of the decisions, and information notices under section 102 of the Agents Financial Administration Act.
As all relevant requirements are met, the tribunal must make a reimbursement order.
Conclusion
I will make a reimbursement order essentially in the terms sought by Office of Fair Trading.
0
0
1