Whyte & Fielding v Skelton
[2010] QCAT 78
•25 March 2010
CITATION: Whyte & Fielding v Skelton [2010] QCAT 78
PARTIES: Mr David Whyte and Mr Andrew Fielding
v
Mr Desmond John Skelton
APPLICATION NUMBER: PC032-09
MATTER TYPE: Other civil dispute matters
HEARING DATE: On the papers
HEARD AT: Brisbane
DECISION OF: Kate Buxton
DELIVERED ON: 25th March 2010
DELIVERED AT: Brisbane
ORDERS MADE: 1.I allow the claim pursuant to section 530 of PAMDA and order that the Chief Executive pay to the Applicants’ the sum of $15,066.28.
2. I make no order as to the date of payment, pursuant to section 489 PAMDA.
3. I find that the Respondent is the person liable for the Applicants financial loss pursuant to section 488(3)(c) PAMDA.
CATCHWORDS: Property Agents and Motor Dealers Act 2000; misapplication of monies; financial loss, unlicensed real estate agent
APPEARANCES and REPRESENTATION (if any):
No Appearances
REASONS FOR DECISION
Mr David Whyte and Mr Andrew Fielding (the Applicants’) claim against the fund established by section 408 of the Property Agents and Motor Dealers Act 2000 (Qld) (PAMDA) for alleged financial loss incurred, they say, as a result of the actions of Mr Desmond John Skelton (the Respondent). To determine a claim against the fund, the Tribunal must determine whether there has been an event within the meaning in section 470(1) PAMDA.
The Applicants’ claim is set out briefly in the PAMDA Form 50 (the Claim Form) which they completed and submitted to the Office of Fair Trading (the OFT) on or about 13 June 2008. The Applicants’ claim to have suffered the financial loss while discharging their duties as receivers in respect of properties identified in the Claim Form (the Properties)[1], which were being managed by the Respondent. The Respondent had been a registered and licensed real estate agent under PAMDA but, at the time of placement of the Properties into the hands of the Applicants, his license had lapsed.
[1] See letter Andrew Fielding and David White to Office of Fair Trading dated 13/06/2008, attached to the PAMDA form 50, describing the properties as follows:
The Applicants and their staff informed the Respondent of their appointment as receivers in respect of the Properties by telephone on 3 April 2008 and confirmed this by email on 4 April 2008. The attachments to the Claim Form included various invoices and statements said to evidence certain payments[2] (the Payments), which the Respondent made to persons other than the Applicants’ after the Respondent was alerted to the Applicants’ appointment as receivers.
[2] Extracted from the applicant’s letter to the respondent, dated 27 May 2008, are details of the following payments:
On 2 March 2010 this Tribunal determined that this matter ought to be determined ‘on the papers’ which comprised the Claim Form and the OFT file. No further particulars of the claim were provided. The Applicants have not, for example, provided submissions as to which legislative provisions apply in support of their claim. They have simply asserted that the Respondent’s actions have caused them financial loss and have sought this Tribunal’s determination on the issue.
As noted above the Applicants’ claim was initially directed to and investigated by the OFT. However, the focus of that investigation became the consequences to the Respondent of holding himself out to be a licensed real estate agent without holding the proper license under PAMDA. Further investigation and subsequent disciplinary action culminated in a hearing in the (former) Commercial and Consumer Tribunal (“CCT”) before Mr Bradley. The CCT found, on 8 September 2009, that various grounds existed for taking disciplinary action against the Respondent under PAMDA. The subject matter of this hearing was not confined to the Applicants’ claims. A number of claims by various aggrieved parties against the Respondent were considered. Findings were made that the Respondent had contravened various provisions of PAMDA in respect of his management of other property, including certain contraventions of section 573(2) of PAMDA, (which is an “event” for the purpose of a claim against the fund). However, the CCT was not satisfied that the Respondent contravened section 573(2) in respect of the Payments the subject of the Applicants’ claim, because the CCT was not satisfied the Respondent had acted dishonestly in his accounting for those monies.
In light of this decision, the Office of Fair Trading has refused the Applicants’ claim against the fund, relying upon the CCT’s finding. This refusal has generated the present application to this Tribunal for a decision as to whether the Applicants’ are entitled to their claim. In my view, the intervening CCT decision is not determinative of the key issue to be determined, and has provided a distraction to that central issue. As noted at the outset of these reasons, what must now be determined is whether there was an event under section 470(1) PAMDA?
Findings
The CCT has determined that the evidence does not establish a contravention of section 573(2). This provision requires an element of dishonesty to be established in order for the section to be contravened.
However, section 470(1) offers other circumstances in which a person may claim against the fund, including section 470(1)(e), which permits a claim against the fund if a person suffers financial loss because of:
a stealing, misappropriation or misapplication by a relevant person of property entrusted to the person as agent for someone else in the person’s capacity as a relevant person.
With respect to the issue as to whether the Respondent is a "relevant person", section 469 of the Act defines "licensee" to include a person who acts as a licensee and "relevant person" is defined to include a licensee. Thus a person who "acts as a licensee" is a relevant person. Section 160(3) defines how a person may act as a real estate agent, and subsection 160(2) provides that person may not act as a real estate agent unless the person is a licensee. The Respondent did not hold a licence under PAMDA at the time of the relevant Payments but I find that he acted as a licensee.
10. I am satisfied on the balance of probabilities that there has been a misapplication in terms of section 470(1)(e) by the Respondent of property entrusted to him as agent for the vendor in the Respondent’s capacity as a relevant person. The Respondent misapplied the monies by making the Payments and, in doing so, defeated the Applicants’ interests in their capacity and as receivers.
11. I find that the Applicants’ are entitled to claim against the fund because of the Respondent’s misapplication of the relevant monies after having been informed of the Applicants’ appointment as receivers. The Respondent was, or ought to have been, aware of the Applicants’ appointment and, therefore, interest in any Payments relevant to the properties, on and from 3 April 2008. The Payments which were made after 3 April 2008[3], which defeated the Applicants’ interest as receivers, amounted to misapplication of the monies. The Applicants’ are, therefore, entitled to their claim against the fund for financial loss.
[3] There was an evidential issue raised early by the respondent about whether one of the payments was in fact made on 2 April 2008 and misrecorded as having been made on 21 April 2008, therefore having been made prior to being aware of the Applicants’ appointment. The Respondent failed to substantiate that claim during the investigations. I accept, at face value, the evidence of the Payments in the documentation annexed to the Applicants claim form.
12. I am satisfied that the quantum of that loss is $15,066.28, which is the total of the relevant Payments amounting to a misapplication of the relevant property. I have had regard to the investigators report and her observations as to quantum. However, the Applicants’ claim is straightforward. Four Payments were made to parties other than the Applicants’ during the relevant period. I accept that those Payments were made and that they total $15,066.26
13. The relevant “event” is a misapplication under section 470(1)(e) PAMDA, a provision which is not expressed as requiring an element of intent or dishonesty. The Respondent’s actions in paying away the funds in a way which defeated the Applicant’s interests as receivers amounted to a misapplication and provided the Applicants’ with the triggering event entitling them to compensation for their financial loss suffered as a result of the Respondent’s actions.
Orders
14. I allow the claim pursuant to section 530 of PAMDA and order that the Chief Executive pay to the Applicants’ the sum of $15,066.28.
15. I make no order as to the date of payment, pursuant to section 489 PAMDA.
16. I find that the Respondent is the person liable for the Applicants’ financial loss pursuant to section 488(3)(c) PAMDA.
Lot 1 on BUP 6450, County of Ward, Parish of Nerang
Lot 3 on BUP 6450, County of Ward, Parish of Nerang
Lot 6 on BUP 6450, County of Ward, Parish of Nerang
Lot 7 on BUP 6450, County of Ward, Parish of Nerang
| Date | Amount | Comments |
| 12 April 2008 | $1,014.57 | Unauthorised payment for renovation works |
| 12 April 2008 | $2,44.72 | Unauthorised payment for renovation works |
| 21 April 2008 | $9,966.99 | Unauthorised payment to owner. Alleged to be recorded incorrectly with actual payment occurring on 2 April 2008, however, no supporting documentation has been provided evidencing when the payment was made. |
| 9 May 2008 | $3,840.00 | Unauthorised payment for renovation works |
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