Wang v Martinger Pty Ltd
[2012] QCAT 407
•3 September 2012
| CITATION: | Wang and Anor v Martinger Pty Ltd and Ors [2012] QCAT 407 |
| PARTIES: | Zer Yuang JC Wang Janel Lee Wang |
| v | |
| Martinger Pty Ltd Shayne Eric Martens Duane Anthony Springer |
| APPLICATION NUMBER: | GAR189-12 |
| MATTER TYPE: | Other civil dispute matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Peta Stilgoe, Senior Member |
| DELIVERED ON: | 3 September 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | [1] Pursuant to s 488 of the Property Agents and Motor Dealers Act2000, the claim is allowed in the sum of $9,156.64. [2] Pursuant to s 489 of the Property Agents and Motor Dealers Act2000, at the expiration of the appeal period, the Chief Executive must pay to Zer Yuang JC Wang and Janel Lee Wang the sum of $9,156.64 from the Claim Fund, and, if there is an appeal, payment must not be made until after the appeal is finally decided. [3] Pursuant to s 488(3)(c) of the Property Agents and Motor Dealers Act2000, Martinger Pty Ltd and Shayne Eric Martens are named as the persons responsible for the financial loss of Yuang JC Wang and Janel Lee Wang. [4] Upon payment from the Claim Fund and pursuant to ss 490 and 530 of the Property Agents and Motor Dealers Act2000, Martinger Pty Ltd and Shayne Eric Martens are liable (and if more than one, jointly and severally) to reimburse the Claim Fund by paying the sum of $9,156.64 to the Chief Executive, Department of Justice and Attorney General. |
| CATCHWORDS: | PROPERTY AGENT – where rent paid into trust – where rent net of expenses not paid to owners – whether respondent was a executive officer within the meaning of the Act – where allegation that respondent was a manager – where no evidence to support a finding that respondent was a manager – whether loss includes costs of phone calls facsimiles and postage Property Agents and Motor Dealers Act 2000, ss 385, 386, 470, 470(1)(e) 488, 490(2), Schedule 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
Martinger Pty Ltd was a real estate agency trading as Beachside Realty. Mr Martens was a director of the company. Mr Springer is said to have been the manager of the company at the relevant time.
The applicants owned units on the Gold Coast. They appointed Beachside Realty as their letting agent. For a period between February 2011 and October 2011, the company collected rents for the applicants but did not transfer any of that money to them.
The applicants made a claim on the statutory claim fund for $15,400. The company is in external administration. Messrs Martens and Springer received notice of the claim.
In considering a claim against the fund, the tribunal must be satisfied[1] that an event as mentioned in section 470(1) happened; and that the claimant suffered financial loss because of the event.
[1] Section 488(2) Property Agents and Motor Dealers Act 2000.
The Tribunal must also take into account any amount the claimant might reasonably have received or recovered if not for the claimant’s neglect or default and any amount ordered to be paid to the claimant as compensation to the claimant under sections 530A, 572D or 592A of PAMDA[2].
[2] Section 488(3)(a).
Finally in allowing a claim the Tribunal must decide the amount of the claimant’s financial loss and name the person who is liable for the loss[3].
[3] Section 488(3)(b) and (c).
The event
The failure to pay money from a trust account to a person who is entitled to it is an “event” under s 470(1)[4]. The failure to account for trust money is an event[5]. The stealing, misappropriation or misapplication of trust money is an event[6].
[4] Section 385(4).
[5] Section 386.
[6] Section 470(1)(e).
Beachside did not pay the applicants’ net rental when they were entitled to receive it. Beachside did not account to the applicants for the trust money it received. The trust money is not available to be paid to the applicants, which suggests that it has been misapplied or misappropriated.
I am satisfied that there is an “event” within s 470(1).
Financial loss
[10] I am satisfied that the applicants suffered a financial loss because of Martinger’s breach of its obligations to deal with trust money appropriately.
[11] The company’s receiver has analysed the applicant’s claim for compensation. She points out that they are entitled to the rent net of commission and expenses. During the relevant period, Beachside paid council rates, water connection costs and body corporate fees from the trust money. Those expenses were properly payable.
[12] The applicants note that they deposited $5,000 into the Beachside account for unexpected urgent expenses. The receiver has taken that money into account when calculating the loss. The receiver has calculated the applicant’s claim as $9,156.64. I accept that calculation.
[13] The applicants have also claimed $400 for expenses in phone calls, facsimiles and postage “since the crisis”. They have not submitted any receipts to support this claim and I am not satisfied that all of these expenses would have been caused by the event. The receiver was correct in her recommendation to refuse this aspect of the claim.
[14] I am therefore satisfied that $9,156.64 is a proper assessment of the applicants’ loss.
Other matters
[15] I am required to take into account any amount the applicants may have received or recovered if not for their neglect or default.
[16] There is no evidence to suggest that applicants would have been able to receive or recover any amount to reduce their loss if they had taken any different action.
Who is liable for the loss?
[17] Section 490(2) provides that a person is liable to reimburse the fund if the person is:
a) A responsible person;
b) If the responsible person was a corporation, each person who was an executive officer of the corporation.
[18] As a director of Martinger, Mr Martens was an executive officer of the company at the time of the event. Because I have found that the company is a responsible person, it follows that Mr Martens must also be a responsible person.
[19] “Executive officer” is defined[7] to include a person who is concerned, or takes part, in the management of the company. Mr Springer has been a director of the company but he was not a director at the time of the event.
[7] Schedule 2 PAMDA.
[20] The receiver notes that Mr Springer was the manager of Beachside at the time of the event but there is no evidence to support that statement. There is one email from Mr Springer’s email account to the applicants dated 22 July 2011, apologising for not supplying taxation information. The email is signed off by “Georgia”. On the material filed, I am not satisfied that Mr Springer was acting as manager of Beachside at the relevant time. I will not make a finding against him.
Orders
Pursuant to s 488 of the Property Agents and Motor Dealers Act2000, the claim is allowed in the sum of $9,156.64.
Pursuant to s 489 of the Property Agents and Motor Dealers Act2000, at the expiration of the appeal period, the Chief Executive must pay to Zer Yuang JC Wang and Janel Lee Wang the sum of $9,156.64 from the Claim Fund, and, if there is an appeal, payment must not be made until after the appeal is finally decided.
Pursuant to s 488(3)(c) of the Property Agents and Motor Dealers Act2000, Martinger Pty Ltd and Shayne Eric Martens are named as the persons responsible for the financial loss of Yuang JC Wang and Janel Lee Wang.
Upon payment from the Claim Fund and pursuant to ss 490 and 530 of the Property Agents and Motor Dealers Act2000, Martinger Pty Ltd and Shayne Eric Martens are liable (and if more than one, jointly and severally) to reimburse the Claim Fund by paying the sum of $9,156.64 to the Chief Executive, Department of Justice and Attorney General.
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