Yang v Wellcamp Properties Pty Ltd t/as Primeland Real Estate
[2018] QCAT 44
•21 February 2018
CITATION: | Yang & Anor v Wellcamp Properties Pty Ltd t/as Primeland Real Estate & Anor [2018] QCAT 44 |
PARTIES: | Li Yang |
| v | |
| Wellcamp Properties Pty Ltd trading as Primeland Real Estate (Respondents) | |
APPLICATION NUMBER: | GAR151-17 |
MATTER TYPE: | General administrative review matters |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Member Cranwell |
DELIVERED ON: | 21 February 2018 |
DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The Application for Miscellaneous Matters filed by the Applicants on 8 November 2017 is dismissed 2. No order as to costs. |
CATCHWORDS: | EVIDENCE – ADDUCING EVIDENCE – DOCUMENTS – REQUESTS TO PRODUCE – where documents requested are not directly relevant to issues in dispute Agents Financial Administration Act 2014 (Qld), s 82, s 155 Cannon & Anor v Saunders [2017] QCATA 4 |
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
On 6 May 2017, Li Yang and Evertop Developments Pty Ltd (the Applicants) lodged a claim against the claim fund under s 82 of the Agents Financial Administration Act 2014 (Qld) (the Act).
The claim arose from a deposit of $10,000 paid by Evertop Developments Pty Ltd (Evertop) to Wellcamp Properties Pty Ltd (Wellcamp) on
9 March 2008 in respect of the purchase of real property. Relevantly, the Applicants allege that Wellcamp transferred the $10,000 deposit from the trust account to the sellers of the property on 11 September 2012. The property was subsequently sold to another purchaser on 21 October 2015, and the Applicants requested a refund of their deposit on 19 July 2016.
On 18 May 2017, a delegate of the Chief Executive, Department of Justice and Attorney-General (the Chief Executive) decided that the Applicant’s claim against the claim fund was invalid on the basis that it was made outside the statutory time limit.
On 15 June 2017, the Applicants sought a review of the Chief Executive’s decision.
On 20 October 2017, the Tribunal directed Wellcamp to obtain and give a copy to the Applicants of:
a)the cheque for $10,000 being monies refunded to Brent Douglas Summerville and Stacey Lea Riches; and
b)the relevant bank statement for the trust account of Wellcamp in relation to the period encompassing the cheque.
In response to this direction, Wellcamp filed:
a)An original letter from the ANZ Bank dated 27 November 2017 attaching a copy of cheque 005376 014289 110866104 in the sum of $10,000 dated 12 September 2012. I note that the identity of the payee is unable to be ascertained due to the poor quality of the photocopy provided by the bank.
b)A copy of the trust account bank statement for Wellcamp for the period 7 September 2012 to 14 September 2012, which records a withdrawal of the sum of $10,000 on 12 September 2012. The transaction number is 005376, which are the first six digits of the copy of the cheque provided.
c)A copy of the trust account ledger of Wellcamp showing a debit of $10,000 on 11 September 2012 with the notation “default of sale” and payees “S L Riches and B D Sommerville”.
On 8 November 2017, the Applicants lodged an interlocutory application for orders under s 63 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (the QCAT Act) requiring the Chief Executive to produce the following documents:
Bank confirmation letter / certificate of a trust account transaction.
Bank confirmation letter / cert of a Primeland Real Estate Trust Account transaction
The transaction date, beneficiary name; beneficiary account details & the amount.
The Applicants stated reasons for seeking these directions were:
QCAT has given Directions to Primeland Real Estate to provide a copy of the cheque for this deposit released however the cheque is Primeland Real Estate’s private property, it’s possible for them to provide a back dated cheque copy to QCAT. Primeland Real Estate can not be trusted; QCAT has given Directions to Primeland real Estate to provide a copy of the Trust Account Bank Statement, however a ban statement gives limited information, I does not show the details of a transaction, such as the details of the beneficiary name/s, the beneficiary account number. Therefore it needs a confirmation letter / Certificate from the bank, being the governing organisation and being added on as a Repsondent by QCAT, the Office of Fair Trading has the authority to request the Bank of Primeland Trust Account to provide the confirmation letter / certificate, detailing the beneficiary name/s, the beneficiary account number, the transaction date and the transaction amount.
We, the Applicants are applying to QCAT to give Directions to Chief Executive, Department of Justice and Attorney-General to provide a bank confirmation letter / Certificate from the bank of Primeland Real Estate’s trust account.
The interlocutory application is drafted in a confusing manner, but it seems tolerably clear that the Applicants want to know who banked the cheque for $10,000 from the Wellcamp trust account.
Section 63 of the QCAT Act relevantly provides:
(1) The tribunal may make an order requiring a person who is not a party to a proceeding but who has, or is likely to have, in the person’s possession or control a document or other thing relevant to the proceeding to produce the document or thing to —
(a) the tribunal; or
(b) a party to the proceeding.
(2) The person in relation to whom the order is made must comply with the order within the period stated in the order.
(3) However, subsection (2) does not apply to a document or thing, or a part of a document or thing, for which there is a valid claim to privilege from disclosure.
(4) In making an order on the application of a party, the tribunal must consider whether it is appropriate to make an order requiring the party to pay the costs of producing the document or thing to which the order relates.
In Cannon & Anor v Saunders, Acting Senior Member Paratz stated:[1]
It is well established that documents will only be directed to be produced where they are described with particularity, and have demonstrated direct relevance to the issues in dispute. Parties are not allowed to use disclosure applications to engage in ‘fishing expeditions’ to seek to obtain possible evidence.
[1][2017] QCATA 4, [27].
The Chief Executive has submitted that the documents sought by the Applicants are not directly relevant to the issues in dispute. In particular, it submitted that:
a)the trust account bank statement for Wellcamp shows the date upon which the funds were disbursed; and
b)it is not in dispute that Wellcamp did not remit the deposit to the Applicants.
The identity of the payee of the cheque is not relevant in determining is whether the Applicants were entitled to the deposit, and thus whether they have suffered a financial loss, for the purposes of s 82(1) of the Act. Nor is the identity of the payee of the cheque, as opposed to the date of the disbursement, relevant to the calculation of the applicable time limit for bringing a claim against the claim fund for the purposes of s 155(3) of the Act.
As the documents the Applicants seek have no direct relevance to the issues in dispute, the application for production of documents is dismissed.
Wellcamp have sought an order that the Applicants pay its costs of the application, on the basis that appropriate directions were already in place for the production of documents by Wellcamp. With respect to that submission, the documents sought by the Applicants differ to the documents produced by Wellcamp. The documents produced by Wellcamp relate to the disbursement of the funds; the Applicants on the other hand have sought documents relating to the identity of the payee of those funds. In these circumstances, the usual rule as to parties bearing their own costs set out in s 100 of the QCAT Act should apply.
I make no order as to costs.
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