White & Foo v Tuxford & Hutchinson
[2010] QCAT 51
•4 February 2010
CITATION:White & Foo v Tuxford & Hutchinson [2010] QCAT 51
PARTIES: Mr Scott White & Ms Agnes Foo
v
Mr Stanley Tuxford
and
Mr Kevin Hutchinson
APPLICATION NUMBER: PE011-09
MATTER TYPE: Other civil disputes matters
HEARING DATE: Decision on the papers
HEARD AT: Brisbane
DECISION OF: Peta Stilgoe
DELIVERED ON: 4 February 2010
DELIVERED AT: Brisbane
ORDERS MADE: Application dismissed
CATCHWORDS: Application for extension of time to file claim, s511 Property Agents & Motor Dealers Act 2000
APPEARANCES and REPRESENTATION:
Decision on the papers
REASONS FOR DECISION
[1]This is an application to extend the time within which to file a claim.
Facts
[2]The applicants executed a contract for the purchase of land on late in 2007. Negotiations in relation to the contract were conducted with the respondent, Tuxford.
[3]The applicants paid a deposit of $50,000.00 in two instalments; $16,000.00 on 19 October 2007 and $34,000.00 on 27 October 2009. These payments were made to the respondent, Hutchinson.
[4]Hutchinson provided a receipt for each payment. The receipt for the first payment is handwritten. The receipt for the second payment is pre-printed but it is not clear whether it is a trust account receipt. In any event, the deposits were not paid into a real estate agent’s trust account.
[5]The applicants lodged a proof of debt with administrators of the vendor on 8 May 2008.
[6]The administrators were appointed as liquidators to the vendor on 5 June 2008.
[7]The liquidators lodged a claim against the fund on 7 May 2009.
[8]The applicants lodged a claim against the fund on 11 August 2009.
[9]By letter of 15 October 2009, the Office of Fair Trading advised the applicants that their claim had been lodged out of time.
Legislation
Section 472(2) of Property Agents & Motor Dealers Act states that
A person may make the claim against the fund only if the person makes the claim within the earlier of the following—
(a) 1 year after the person becomes aware that the person has suffered financial loss because of the happening of an event mentioned in section 470(1);
(b) 3 years after the happening of the event that caused the person’s financial loss
Section 511(1)(b) of Property Agents & Motor Dealers Act sets out the matters to which the tribunal may have regard when considering an application to extend time:
ithe reasons for not making the claim or seeking the review within the time allowed;
ii the application generally;
iiifor a claim, the relative hardship that an extension of time would place on the claimant or respondent;
iv the justice of the matter generally.
Submissions
The applicants say that:
a.They were not aware of the Property Agents & Motor Dealers Act or that they could make a claim against the fund.
b.They were working with the liquidators, who have been attempting to pursue the money.
c.They became aware of their right against the fund when, a few months after the liquidator submitted a claim against the fund, other creditors advised them to make an individual claim.
d.As soon as they became aware of their rights, they took steps to lodge a claim against the fund.
e.They have lost two deposits of $50,000.00 each. $100,000.00 represents a significant financial loss. One claim of $50,000.00 has been rejected. Recovery of $50,000.00 would significantly benefit the male applicant’s family.
f.The failure to extend time will allow a gross injustice to escape unchallenged.
The respondent has not filed any material.
Reasons for not making the claim within time
The applicants do not say when they became aware of their loss. Both the liquidator and the Office of Fair Trading take the view that the applicants became aware of their loss on 9 May 2008, the day after the applicants lodged their proof of debt with the liquidator. Therefore, the applicants are seeking an extension of time of approximately 3 months.
The applicants provided the tribunal with an executed copy of PAMD Form 30c. Page 2 of that form has these words:
A Claim Fund exists which, in some cases, enables a buyer who suffers financial loss as a result of dealing with a real estate agent to make a claim. Strict guidelines apply…
Form 30c is provided to potential purchasers specifically for the purpose of giving them information about their rights. Unless there is an intervening factor, such as illness, or the applicants receiving, and relying upon, erroneous advice from their lawyer (see, for example, Bain –v- Ferrantino [2008] QCCTPAMD 13), it is difficult to see how an applicant’s ignorance of a right is sufficient reason for not making the claim.
The application generally
The applicants’ complaint is that the respondent did not pay the deposit money into his general trust account. Section 379 of the Property Agents & Motor Dealers Act says that a licensee must, upon immediately receiving the amount, pay it to the licensee’s general trust account.
The applicants paid the deposit to the respondent Hutchinson. As against that respondent, I am satisfied that, if the claim had been lodged in time, there are reasonable grounds that it would succeed.
It is not clear what is the basis for complaint against Tuxford. It appears from the liquidator’s material that is a claim related to marketeering. Given the lack of material in that regard, the most that I can say is that the claim is arguable.
Hardship
I am satisfied that the respondents would suffer no hardship or prejudice by the extension of time. It is clear from the liquidator’s claim against the fund that they were aware of potential claims against them prior to the expiry of the 12 month claim period. An extension of 3 months would not create any additional hardship or prejudice.
The applicants claim that the loss of the deposit would create hardship for them. The male applicant states that he has five children and that the recovery of $50,000.00 would be “of great benefit to” his family. There is no material before me as to whether all of the male applicant’s children are dependent upon him, there is no statement of assets and liabilities, nor of income and expenses.
I accept that the loss of $100,000.00 would cause considerable financial hardship to many people. I am mindful, however, that the payments were made in cash and there is no evidence to suggest that the applicants borrowed to enable the deposits to be paid, although the contract in question was expressed to be subject to finance. That the applicants were twice able to pay a 50% cash deposit for vacant land does not suggest that they are people of modest means.
Justice of the matter generally
The last matter for my consideration is the justice of the matter generally. Certainly, it appears that the respondents have profited from their breach of the Property Agents & Motor Dealers Act and there is some justification for the view that they should be required to compensate the applicants for their loss.
However, this is a claim against the Statutory Fund. As was pointed out in Fleming t/a Physiosonic Pty Ltd –v- Des Skelton Real Estate [2009] QCCTPAMD 30, the tribunal’s deliberations extend beyond considerations applying as between applicant and respondent and include any wider public interest. The prospects of recovery from the respondents seem remote. The applicants failed to heed the warning and information given to them in Form 30c. That form has no other purpose. The applicants will, no doubt, suffer a financial setback if they do not recover from the fund but they have not demonstrated that they will suffer hardship. In the circumstances, the intersts of justice do not support an extension of time.
I dismiss the application.
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