The Chief Executive, Office of Fair Trading, Department of Justice & Attorney-General v Cavell

[2020] QCAT 193

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

The Chief Executive, Office of Fair Trading, Department of Justice & Attorney-General v Cavell [2020] QCAT 193

PARTIES:

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

(applicant)

v

LIZ CAVELL (FORMERLY KNOWN AS ELIZABETH ELLEN MEIERS)

(respondent)

APPLICATION NO/S:

OCL048-19

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

27 May 2020

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Kent

ORDERS:

Liz Cavell (formerly known as Elizabeth Ellen Meiers) is, pursuant to s119 of the Agents Financial Administration Act 2014, liable to reimburse, and is ordered to pay, to the Claim Fund established under s78 of the Agents Financial Administration Act 2014, the sum of $140,697.95 within 21 days of the date of this order.

CATCHWORDS:

REIMBURSEMENT ORDER – PAMDA – AAFA - whether a reimbursement order should be made – where claims were paid from the fund in respect of a real estate agent

Agents Financial Administration Act 2014 (Qld), s 78, s 116(4), s 117, s 118 s 119

Property Agents and Motor Dealers Act 2000 (Qld), s 481 – 484, 490(2)

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 32

The Chief Executive, Department of Justice and Attorney-General v Dodds [2015] QCAT 538

APPEARANCES: 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 Cavell formerly held a real estate principal’s licence (Licence No.3521446) and was the sole director of a company named Gem Property Agents Pty Ltd (Gem) (Licence no.3521489) from 31 March 2012 until its deregistration on 20 July 2014.

2. Gem traded as a real estate agent and Ms Cavell conducted the business of letting properties owned by others.

3. As part of a statutory scheme that regulated the real estate industry a Claim Fund was established under the Property Agents and Motor Dealers Act 2000 (Qld) (PAMDA). The Claim Fund is now administered under the Agents Financial Administration Act 2014 (Qld) (AFAA).

4. Section 116(4) AFAA is the successor section to s490(2) PAMDA and is in virtually identical terms. Accordingly, a person who was a company director at the time of the events giving rise to the decisions made to make payments under the legislation is jointly and severally liable to reimburse the Claim Fund for the amounts allowed under s116(4) AFAA.[1]

   [1]The Chief Executive, Department of Justice and Attorney-General v Dodds [2015] QCAT 538.

5. It has been held that a company director is an executive officer of a company under s490(2) PAMDA.2 Based on the material before me I am satisfied that Ms Cavell as a company director was an executive officer of this company.

   2Brown & Anor v Wilen Pty Ltd & Ors [2012] QCAT 324 at [15] to [21].

6. Accordingly, a person who was a company director at the time of the events giving rise to the decisions to pay money out under the legislation is jointly and severally liable to reimburse the Fund for the amounts allowed under s116(4) AFAA.3

   3The Chief Executive, Department of Justice and Attorney-General v Dodds [2015] QCAT 538.

7. The Chief Executive, Office of Fair Trading, Department of Justice and Attorney-General (‘the Chief Executive’) has applied to the Tribunal for a reimbursement order for an amount of money paid out as claims against the Claim Fund and re-imbursement for the remuneration and costs paid to the receiver of Gem by the Chief Executive.

8. The total amounts sought to be recovered from Ms Cavell are calculated as follows:

   (a)$18,594.58. This amount is described in submissions from the Chief Executive as being made up of $49,057.53 for the claims paid by the Chief Executive less the $30,462.95 from the Receiver; and

   (b)$122,103.37 for the Receiver’s remuneration and costs.

9. The claims paid by the Chief Executive are as listed below:

Claim number	Claimant	Decision Date	Amount Allowed
OFT/007077	Brenda Thornley	17/01/2014	$480.53
OFT/007163	Barbara Laurie	17/01/2014	$1,427.71
OFT/007343	Philomena Sabatino	17/01/2014	$1,320.00
OFT/007978	Bryce Shepherd	21/01/2014	$2,366.22
OFT/007074	Dee-Anne Logan, Simon Logan	22/01/2014	$1,362.84
OFT/007342	Theresa King	23/01/2014	$1,520.00
OFT/007054	Lisa-Marie Garrett, Nikki Garrett	24/01/2014	$1,280.00
OFT/007369	Sarah Hartung	24/01/2014	$1,320.00
OFT/007370	Christopher Bell, Pamela Bell	24/01/2014	$686.47
OFT/007321	Angela Christie	28/01/2014	$241.03
OFT/007075	Ramera Simon	19/02/2014	$1,300.00
OFT/007559	Jasper Hennekens	19/02/2014	$2,894.27
OFT/007560	John Taylor, Melanie Possingham	19/02/2014	$1,560.00
OFT/007561	Shannon Fentiman	19/02/2014	$1,800.00
OFT/007562	Hayden Brown, Jordon Tsakalos	19/02/2014	$1,320.00
OFT/007146	Roimata Bridget Cook	21/02/2014	$1,080.00
OFT/007580	Linda Whittington	12/03/2014	$298.41
OFT/007076	Michelle Coleman	18/03/2014	$417.47
OFT/007577	Lapseng Pty Ltd	18/03/2014	$1,466.72
OFT/007079	Katie Harman, Mark Chesterton	18/03/2014	$1,214.31
OFT/007612	Margaret Canty, Michael Canty	19/03/2014	$3,366.99
OFT/007678	John Bosen, Toni Dwyer	19/03/2014	$1,260.00
OFT/007679	Wendy Howitt (On Behalf Of Deborah Leigh Howitt)	19/03/2014	$2,023.66
OFT/007680	Hinewai Davis	19/03/2014	$2,908.04
OFT/007774	Henry Antonio	31/03/2014	$273.05
OFT/007578	Johllene Elson	18/04/2014	$702.32
OFT/007611	Madeline Broadbent, Rodney Broadbent	18/04/2014	$4,397.31
OFT/007613	Karen Murray, Maree Reid	18/04/2014	$295.82
OFT/317975	Geoff Clarke, Julie Clarke	07/05/2014	$2,326.79
OFT/008012	Adrian Somerville	15/05/2014	$2,859.21
OFT/007284	Nathan Watson	12/06/2014	$1,200.00
OFT/318080	Christine Whalan	04/07/2014	$1,280.00

1. In each of the decisions, the Chief Executive named Ms Cavell as one of the parties liable for the claimant’s losses and liable to reimburse the fund for the amounts allowed.

2. Ms Cavell was given a copy of the decisions and Information Notices in accordance with s481 PAMDA (now s 102 AAFA) as to each decision. This occurred between 17 January 2014 and 7 July 2014. This information was sent to Ms Cavell at her address then known to the Chief Executive.

3. A receiver was appointed over the trust property of Gem on 30 September 2013. This occurred pursuant to s417 of PAMDA. The Chief Executive paid the receiver $122,103.37 (excluding GST) for the receiver’s remuneration and costs.

4. S434 of PAMDA (see s64 AFAA) provides that executive officers of corporations are required to reimburse the Chief Executive for amounts paid to the receiver. Ms Cavell was an executive officer of Gem at the time the triggering event for the appointment of the receiver by the Chief Executive occurred.

5. The Chief Executive filed an application on 20 June 2019, pursuant to ss117 and 119 of the AFAA.

6. Section 119 AFAA provides:

   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.

7. Therefore, the legislation does not provide the Tribunal with any discretion as to making a reimbursement order if satisfied of the matters referred to in s 119.

8. It is at this point I refer to the submissions filed in the Tribunal by Ms Cavell on 19 September 2019. These included a psychologist’s letter states that she is in therapy as treatment for her Bipolar Affective disorder. This psychologist’s letter also records that Ms Cavell is in receipt of a disability support payment and that two thirds of her income is expended on the rental of her home. Ms Cavell was described as not working however it was hoped that she may have the capacity to do so at some time in the future.

9. Ms Cavell filed a statement of financial circumstances. She noted that she owed money to the Australian Tax office but did not specify the amount.

10. She also included in an email a statement that ‘Unfortunately I don’t have the capacity to pay the debt as I live week to week’.

11. Ms Cavell’s submissions centred on her inability to reimburse the Chief Executive. The Tribunal has no evidence suggesting that Ms Cavell’s financial circumstances are not as described by her in submissions.

12. However, as summarized by Member Paratz in a decision concerning a similar proceeding4 the only issues for the Tribunal to consider on an application such as this  are as follows:

    (a)Has the Chief Executive made a decision about the claims against the fund?

    (b)Did Ms Cavell apply to the tribunal to have the decision reviewed?

    (c)Has Ms Cavell paid the stated amount within the time allowed under the letter of demand?

    (d)Is Ms Cavell liable to reimburse the fund?

    (e)Has Ms Cavell been given the appropriate notices as required by s102 and s118 AAFA?

    4The Chief Executive, Department of Justice and Attorney-General v Dodds [2015] QCAT 538.

13. Based on the material before me I am satisfied the answers to the questions in paragraph 21 of these reasons are as follows:

    (a)The Chief Executive made decisions about the claims as set out in these reasons ($18,594.58). This amount is made up of $49,057.53 for the claims paid by the Chief Executive less the $30,462.95 from the Receiver and $122,103.37 for the Receiver’s remuneration and costs

    (b)Ms Cavell did not apply to have the decisions reviewed.

    (c)On 16 December 2015 Ms Cavell was sent a demand for payment of the sum of $140,697.95, and she did not pay the amount within the time allowed under the letter. This letter was sent to Ms Cavell’s then known address.

    (d)Ms Cavell is liable to reimburse the fund as an executive officer of Gem.

    (e)Yes, the Chief Executive’s submissions on this point are accepted and Ms Cavell has made not submissions to the contrary.

14. I find that all the matters required under s119 AFAA have been established, and that a reimbursement order must be made.

15. I order that Liz Cavell (formerly known as Elizabeth Ellen Meier’s) is, pursuant to s119 of the Agents Financial Administration Act 2014, liable to reimburse, and is ordered to pay, to the Claim Fund established under s78 of the Agents Financial Administration Act 2014, the sum of $140,697.95 within 21 days of the date of this order.