Cairns v Chetcuti [2026] QCAT 275

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Cairns v Chetcuti [2026] QCAT 275 PARTIES: FIONA CAIRNS (applicant) v JAMES GEORGE CHETCUTI (respondent) APPLICATION NO/S: OCL014-24 MATTER TYPE: Occupational regulation matters DELIVERED ON: 24 June 2026 HEARING DATE: 23 April 2026 HEARD AT: Brisbane DECISION OF: Member Bellamy ORDERS: Pursuant to section 105 of the Agents Financial Administration Act 2014 (Qld), the first claim be allowed and the amount of $81,717.75 be paid to Fiona Cairns from the Claim Fund at the expiration of the appeal period outlined in section 143 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). Pursuant to section 105 of the Agents Financial Administration Act 2014 (Qld), the second claim be allowed and the amount of $189,509 be paid to Fiona Cairns from the Claim Fund at the expiration of the appeal period outlined in section 143 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). James George Chetcuti is liable for Fiona Cairns’ financial loss. Pursuant to sections 105(3) and 116 of the Agents Financial Administration Act 2014 (Qld), the Respondent is liable to reimburse the Claim Fund in the amount of $271,226.75. CATCHWORDS: PROFESSIONS AND TRADES – AUCTIONEERS AND AGENTS – MISAPPROPRIATION OF MONEY – CLAIMS AGAINST THE CLAIM FUND – LIABILITY OF AGENT TO PAY THE CLAIM – where a real estate agent dishonestly induced a property owner to sell her home and later misappropriated the proceeds – where the real estate agent became bankrupt during the relevant period and -- 1 of 14 -- 2 retained his registration as a real estate salesperson – where the applicant claimed financial loss from two claimable events – whether the cap of $200,00 applies per claimant or per claim – whether the applicant was partly responsible for the financial loss. PROCEDURE – CIVIL PROCEEDINGS IN STATE TRIBUNAL – where hearing proceeded in the absence of a party who had been given reasonable notice of the hearing and failed to attend without reasonable excuse Agents Financial Administration Act 2014 (Qld), s 17, s 78, s 80, s 82, s 95(1)(b), s 105, s 116, s 123, s 124 Agents Financial Administration Regulation 2014 (Qld), r 25 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 28(3)(c), s 57, s 92, s 93, s 125, s 143 Property Occupations Act 2014 (Qld), s 206, s 207, s 208, s 209, s 212 Express Commission Pty Ltd and the Chief Executive, Office of Fair Trading v Venture Spirit Pty Ltd and Smith, S.M [2008] QCCTPAMD 21 Spiteri & Anor v Jim Chetcuti & Co Pty Ltd & Anor [2021] QDC 021 APPEARANCES & REPRESENTATION: Applicant: Mr Coates, Bennett and Philp Respondent: Office of Fair Trading: No appearance Mr Gough REASONS FOR DECISION Introduction [1] This matter concerns two claims under the Agents Financial Administration Act 2014 (‘AFAA’) for monetary compensation. The AFAA establishes a Claim Fund1 (‘the fund’) ‘to compensate persons in particular circumstances for financial loss arising from dealings with agents’.2 The fund is administered by the Queensland Department of Justice – Office of Fair Trading (‘OFT’). In order to qualify for a payment from the fund, a claimant must prove that they suffered financial loss because of a claimable event. [2] In May 2021, the applicant, Ms Fiona Cairns, telephoned a local real estate agency to enquire about an off-the-plan townhouse development she saw advertised. She was interested in buying a townhouse for her retirement. Unfortunately for her, the person who answered the phone was the respondent. In the months that followed, the 1 Agents Financial Administration Act 2014 (‘AFAA’), s 78. 2 Ibid, s 6. -- 2 of 14 -- 3 respondent pressured her into purchasing the townhouse and selling the home she owned well before the townhouse would be complete. She says she sold her home for a lot less than had she sold it when the townhouse was ready, and she had to pay rent in the interim. That is the subject of the Claim 1. [3] The respondent deceived the applicant into transferring the proceeds of the sale (‘sale proceeds’) to him, most of which he misappropriated. That is the subject of Claim 2. [4] It is important to the applicant, and contextually relevant, that: (a) in February 2021, the District Court of Queensland confirmed a default judgement ordering the respondent to (among other things) return nearly $200,000 to a married couple who had invested money with him in what they believed was an institutional term deposit;3 and (b) on 30 July 2021, the respondent was registered bankrupt on his own application. [5] The applicant was not aware of any of this until after she discovered that the respondent had misappropriated her money. [6] Under the Property Occupations Act 2014 (Qld) (‘POA’), a bankruptcy, and the circumstances in which it came about, are relevant to whether a person is suitable to hold registration as a real estate salesperson.4 However, the respondent remained registered as a real estate salesperson and employed by a real estate agency. The applicant signed the contract to sell her home on 12 July 2021, after the respondent approached the Australian Financial Security Authority about declaring bankruptcy. She commenced transferring the sale proceeds to him in September 2021, after he was registered bankrupt. She is bewildered that an undischarged bankrupt with the respondent’s history could have been allowed to work as a real estate salesperson. [7] In mid-2023, when the applicant realised the respondent had misappropriated the sale proceeds, she contacted the principal of the real estate agency that employed him. He fired the respondent. The applicant reported him to the police which resulted in him being charged with fraud and uttering. That prosecution was ongoing at the date of the hearing of this matter. [8] The amount of Claim 1 is $163,435.50 and the amount of Claim 2 is $189,509. Jurisdiction [9] Section 77 of the AFAA provides that the Tribunal has jurisdiction to hear and decide claims against the fund referred by the Chief Executive under s 95(1)(b) if the Chief Executive considers: (i) the claim could be more effectively or conveniently decided by QCAT because of, for example, the nature and complexity of the claim; or (ii) it would be appropriate for the claim to be decided by QCAT. [10] The Chief Executive referred the applicant’s claims to the Tribunal on the basis that they involve questions about the interpretation of the law, and that some of the applicant’s evidence lacked sufficient details to properly evaluate her claims. The 3 Spiteri & Anor v Jim Chetcuti & Co Pty Ltd & Anor [2021] QDC 021. 4 Property Occupations Act 2014 (Qld) (‘POA’), s 121. -- 3 of 14 -- 4 OFT does not have the legal power to hold a hearing or compel the production of evidence whereas the Tribunal does.5 [11] Section 123 of the AFAA provides that the Chief Executive may make submissions to the Tribunal including submissions about liability for the claimant’s financial loss whether or not the Chief Executive is a party to the proceeding. That is what the OFT did in this case. Proceeding ex-parte [12] On 22 March 2024 the applicant filed a ‘referral of a matter (non-disciplinary) – agency’. I am satisfied that a copy of the application was duly served on the respondent. [13] Directions were issued in 2024 requiring the parties to file and serve evidence and submissions, and granting each party leave to be legally represented. The applicant filed submissions and evidence. The respondent did not file anything. [14] On 20 March 2026, the Tribunal listed this matter for a hearing at 9:30am on 23 April 2026 and granted the respondent leave to attend by remote conferencing. A notice was issued to the parties advising, among other things, that ‘if you fail to appear at the hearing, the Tribunal may proceed and make orders in your absence’. [15] On 20 April 2026, the respondent contacted the Tribunal and reported that his bail conditions prohibited him from having any contact with the applicant. A copy of the bail undertaking confirmed this. He also said he was living in regional Mackay and had limited internet and phone connection. [16] On 21 April 2026, the Tribunal issued a direction requiring the respondent to indicate in writing: (a) whether he disputed any of the information that had been filed in the proceedings; and (b) whether he wished to appear at the hearing of the matter and if so, for what purpose. [17] The Tribunal further directed that if the respondent wished to appear at the hearing, he had to make reasonable efforts to have his bail undertaking varied to allow him to have contact with the applicant during the hearing of the matter and advise the Tribunal of the outcome of his efforts by 2pm on Wednesday 22 April 2026. [18] The Direction was emailed to the respondent, and a Tribunal officer telephoned him to make sure he was aware of it. In that phone call, the respondent indicated that he was unable to attend the hearing due to a medical appointment. He also said he did not know what the matter was about. [19] On 22 April 2026, the Tribunal attempted to contact the respondent by telephone and email, without success. 5 Section 124 of the AFAA provides that a decision or order involving the claim fund must be published under s 125 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) which provides for the publication of decisions, with or without reasons, subject to non-publication orders. -- 4 of 14 -- 5 [20] On 23 April 2026, the respondent failed to attend the hearing. The Tribunal telephoned him three times and left messages asking him to contact the Tribunal. He was warned in the first two calls him that the hearing could proceed in his absence if he did not contact the Tribunal, and in the third call he was told that it would proceed in his absence. A Tribunal officer also called the matter outside the hearing room. [21] Section 3 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) provides that the objects of that Act include the establishment of an independent tribunal to deal with matters ‘in a way that is accessible, fair, just, economical, informal and quick’. The applicant has been waiting for resolution of this matter for two years. She wished to proceed with the hearing. She had engaged legal representation at her own expense, prepared herself psychologically to recount a distressing experience, and attended the Tribunal as directed. The objects of the Act favoured proceeding with the hearing and giving her finality without further delay. [22] The Tribunal may ‘act in the absence of a party who has had reasonable notice of a proceeding’ under the general powers in s 57 of the QCAT Act. Further, under s 93 of the QCAT Act, the Tribunal may hear and decide a matter in a person’s absence, including where the person is a party, if the person has not attended a hearing and the Tribunal is satisfied the person has been given notice of the hearing under s 92. Section 92 relevantly provides for the Principal Registrar to give notice of the time and date of a hearing to the parties. I am satisfied that a compliant notice was sent to the respondent. Further, the respondent’s communications with the Tribunal indicate that he was aware of the hearing. [23] Both s 57 and s 92 of the QCAT Act confer discretions. The respondent did not file any submissions or evidence. He was given leave to attend the hearing remotely. Three days before the hearing, he indicated that he could not attend because of his bail conditions. When prompted by the Tribunal to seek a variation of the relevant condition, he said he could not attend the hearing due to a medical appointment. He then became uncontactable. His conduct gave the strong impression that he did not wish to engage in the proceedings. Accordingly, there seemed no point in adjourning the hearing to a later date to give him another chance to participate in it. I was also mindful that the applicant had incurred legal costs on the day of the hearing, as her lawyer was there representing her, and that these costs would have been wasted if the hearing were adjourned. [24] At 10:10am the hearing proceeded in the respondent’s absence. Mr Gough of the Office of Fair Trading attended briefly by video conference to make some submissions in response to questions from the Tribunal, and he was later given a copy of submissions that the applicant handed up during the hearing. He elected not to participate in the rest of the hearing. The Tribunal is grateful for his assistance. The Facts [25] The applicant provided statements and supporting evidence. She gave oral evidence in the hearing that was tested by questions from the Tribunal.6 She impressed as a credible witness. 6 The OFT had submitted that it would be appropriate to test some of the applicant’s evidence by cross- examination and Mr Gough stated that he was content for the Tribunal to do that. -- 5 of 14 -- 6 [26] Some of the details the applicant gave in her oral evidence patched weaknesses in her written evidence (two affidavits) that the OFT had identified in its submissions. The evidence related to the timing of some of the things the respondent told her in his efforts to persuade her to sell her home and ‘invest’ the proceeds. [27] I have considered the possibility that she changed and tailored her evidence in the hearing to strengthen her case. However, I think her oral evidence was genuine. She answered questions in a natural and unscripted manner. Her evidence was somewhat emotional and thematic. She had a tendency to discuss events without orienting them in time unless prompted, and to skip backwards and forward. I make these observations not as criticism but because the applicant’s way of recounting events could explain why her affidavits did not contain an accurate or complete timeline. I accept the applicant’s written evidence, clarified and augmented by her oral evidence. I accept the supporting documents she put forward, which were unchallenged. [28] In about April 2021, the applicant became aware that First National Cleveland were advertising an off-the-plan townhouse at Boat Street, Victoria Point. Around May 2021, she telephoned First National Cleveland to ask about it. The respondent answered and they discussed purchasing the townhouse. [29] The respondent visited her at her unit and told her, among other things, that First National had purchased his LJ Hooker agency, and that he was engaged by First National as a consultant to train other agents given his years of experience in sales. The principal of First National Cleveland was a Mr Ryan McCann. [30] On 21 May 2021, the applicant signed a contract for the purchase of an off-the-plan townhouse. There was no settlement date. In her affidavit, the applicant said: Soon after I signed the contract, Mr Chetcuti contacted me again and advised that I list my home at Queen Street for sale so that I would have the funds available to settle the contract once construction of the townhouse was completed. Mr Chetcuti advised me that the townhouses at 11 Boat Street would take 6 to 8 months to construct…Following Mr Chetcuti's advice, I allowed him to list my Queen Street home for sale through First National Cleveland. Mr Chetcuti was my agent for the sale. [31] It is significant, with respect to the way the AFAA operates, that the applicant said the respondent started to persuade her to sell her house after she had signed the contract. That is because some conduct that may constitute a claimable event must have occurred in connection with the sale of a property (not after the sale). [32] However, in the hearing, the applicant said that from the first day she met the respondent at her home, he talked about selling her house and investing the funds. She knew she would have to sell her home eventually to pay for the townhouse, however she was not ready at that time. The respondent contacted her daily saying things like ‘Well, you know, maybe we can get an investor to buy it, and you can rent it back off them’ and ‘You’re better of selling your property and liquidising your funds’. He suggested she ‘start all afresh’ and said, ‘the developer has advised us it’s only a six- months build’. He told her he could invest the funds for her. He advised her to sell her unit ‘quickly and quietly’, and to trust him to handle everything. The applicant was certain that these conversations occurred before she signed the contract to purchase the townhouse. [33] The applicant recalled asking the respondent how he could invest sale proceeds, and he said ‘Fiona, Ryan McCann employed me because my experience in real estate, and -- 6 of 14 -- 7 it’s something only in my years in real estate that I know how to do.’ He told her that real estate agents often invested money on behalf of clients of the agency while the clients were waiting for settlement of a contract to occur. He portrayed this as a normal practice. [34] That representation appears to have been a misleading contortion of an arrangement that is permitted by s 17 of the AFAA where an amount is received by an agent for a sale 60 days or more before the settlement date, all parties to the sale direct that the amount be invested, and the amount is placed in a trust account in a financial institution within Queensland operated for the investment of the amount. In an arrangement under s 17, the invested amount and the settlement relate to the same sale. The arrangement is more in the nature of holding money in trust than investing it. In the applicant’s situation, the amount would have been the proceeds of the sale of her home whereas the settlement related to her purchase of the townhouse. [35] The applicant was aware of a shortage of building materials due to the COVID pandemic. However, the respondent assured her there would not be any delay to the townhouse build. He said ‘Don’t worry about that, Fiona. You know, the developers bought all of the timber from Gills down at Cleveland.’ He created a sense of urgency by telling her the townhouses were selling quickly, and the prices were going up. She said the respondent played on her financial pressure and fear that she could potentially lose the chance to buy the townhouse. He even called her while she was on holiday in New Zealand, asking her when she could pay the deposit. [36] The applicant recalled that the respondent used ‘a whole lot of, like, different pressure tactics’ and that she allowed him to influence her because he gave the impression that ‘I’m so great at what I do’ and ‘Look at me’. She said his rating on Google was over 4.9. [37] After the applicant signed the contract to purchase the townhouse, the respondent called her every week. She told him she was not ready to sell her home, saying she had lived there for 18 years, and she would have to ‘get it up to scratch…clean all the windows…clean all the skirting tracks’. He would say ‘Don’t you worry about that, Fiona. I’ll have my guys come in from First National, the professional cleaners, and I will pay for it, and we will get that done’. [38] The applicant allowed the respondent to list her home for sale through First National Cleveland with him as her agent. On 12 July 2021, she signed a contract for the sale of her home for $557,000. Settlement occurred on 31 August 2021. [39] The townhouse was not completed, and the respondent arranged for the applicant to rent a unit through First National Cleveland. His wife was the property agent. The applicant commenced her rental tenancy there on around 22 August 2021, initially paying rent of $430 per week which increased over time to $510. [40] After the sale proceeds were in the applicant’s account, the respondent told her there was opportunity to buy shares in an Australian mining company called Fortescue through a trading platform called Share Sight, but that the opportunity would only be open for a short amount of time. She paraphrased what he said as ‘Look, I’ve got this opportunity for you. You know, we spoke about it before, and this is my experience as a real estate agent…’ and ‘We’ve done this, we’ve done this, and this is the next move that we’re going to do…Trust me, you know, I’m a real estate agent, and this is what I’m going to do to, you know to help you.’ -- 7 of 14 -- 8 [41] The applicant agreed to let the respondent invest her money. She made a total of seven electronic transfers to the applicant totalling $198,509, evidenced by bank statements she provided to the Tribunal. She believed he would invest the money as agreed. The first two deposits were for large amounts in September and October 2021. The remaining deposits were for smaller amounts in 2022 and 2023. [42] In the months after the applicant moved into the rental property, the respondent contacted her often, and even visited her, to give updates on the progress of the townhouse, ensure she was comfortable in her accommodation and advise that her rent payments had been received. [43] In August 2022, the applicant requested dividend statements so she could complete her income tax return. The respondent rendered what purported to be an account showing a dividend amount, although this must have been fake. [44] In October of 2022, the applicant asked the respondent to return $9,000 so she could pay for a trip she wanted to take. He promptly gave her $9,000 which she thought was a dividend payment. [45] On the 25 April 2023, the applicant resigned from her job. She asked the respondent to return the rest of her money. He agreed, however over the following four weeks he was evasive and gave different implausible excuses for not returning the money. [46] By mid-2023, the applicant realised the respondent had deceived her. She contacted Mr McCann and asked him to ‘sort it out’. The next day, Mr McCann told her that the respondent had confessed to stealing the sale proceeds and that his employment had been terminated. The applicant said he did not provide any further assistance to her. Mr McCann was not party to these proceedings and has not given his side of things. [47] The applicant contacted the police who subsequently confirmed with Share Sight that the respondent had never purchased shares through their platform. [48] On 8 November 2023, the applicant’s lawyer sent the respondent’s lawyer a demand for the return of her money. No response was ever received. The respondent has not returned any of the money he took from the applicant, except for the $9,000 referred to above. [49] The unit that the applicant had sold in July 2021 was re-sold on 21 November 2023 for $679,000 which is $122,000 more than the price the applicant got for it. By the time the townhouse was completed, the applicant could not afford to buy it. It was sold to someone else in July 2024. [50] The applicant said that a large part of the reason she trusted the respondent was that he was a licensed real estate salesperson who purported to act in that capacity. [51] I am satisfied that the respondent used his status as a real estate salesperson and his employment with a real estate agency to lay the foundation to deceive and manipulate the applicant. I accept that he created the impression that he was an expert in real estate who had inside knowledge (e.g. the builder’s source of materials) and was acting legitimately and professionally. He wove threads of truth into lies, such as the representation that it was normal for real estate agents to invest sale proceeds, and his proposal to invest in a real company via a known share trading platform. I accept that he used psychological manipulation tactics such as creating a sense of urgency and normalising the actions he wanted the applicant to take. -- 8 of 14 -- 9 [52] I accept that the respondent used these techniques to induce the applicant to sell her home in July 2021 when there was no legitimate reason to sell it at that time, and to transfer the proceeds to himself. I am satisfied that, had he not done that, the applicant would have sold her house much closer to the date of completion of the townhouse, which appears to have been July 2024.7 The applicant was especially influenced by the representation that the townhouse build would take six to eight months and was not affected by shortages of building materials. I am satisfied that the respondent’s motive was to misappropriate the sale proceeds. It may also have been to earn commission on the sale and generate a stream of rental commission for his wife, but it is not necessary to make findings about that. Amounts claimed Claim 1 – premature sale of home [53] In November 2023, the applicant’s home sold for $679,000 which was $122,000 more than the $557,000 she sold it for in July 2021. This by itself does not prove that the applicant would have got $122,000 more for her property had she held onto it until the townhouse was built. No evidence was filed about whether improvements were made to the property between sales. However, s 28(3)(c) of the QCAT Act provides that the Tribunal ‘may inform itself in any way it considers appropriate’. The website realestate.com.au contains a listing for the unit which contains a set of photographs of the property that are date stamped in June 2021 and a set that are date stamped in August 2023. I cannot see any discernible difference in the structure or condition of the property. Further, the realestate.com.au report on the unit filed by the applicant includes data that indicates that there was around a 50% increase in the median sale price of similar units in the area between July 2021 and December 2023. It seems most unlikely that the market would have dipped between December 2023 and July 2024 when the townhouse was ready. [54] I accept that the $122,000 difference between the sale price in July 2021 and November 2023 was due to market influences. I am satisfied that the applicant incurred financial loss of (at least) $122,000 on the sale of her home because she sold it prematurely. [55] The applicant has claimed an amount of financial loss arising from having to rent rather than continue to live in her mortgaged unit until the townhouse was built. By her calculations, she had paid a total of $66,718.50 in rent between moving out of her home and 12 July 2024. She subtracted $15,542 to account for interest on the mortgage that she would have paid had she stayed. That amount did not take into account any increase in interest rates or the likelihood that the applicant would have paid off some of the principal over that period. The applicant also subtracted $6,538 for estimated council rates and $3,303 for water usage and fees that she would have had to pay had she stayed in her home. The total loss she claimed is $41,435.50. The applicant provided evidence to support the figures she used in her calculations. [56] I accept that this figure is a reasonably close estimate of how much the applicant was worse off financially because she sold her unit prematurely and had to live somewhere else. 7 Based on a reasonable assumption that it was sold shortly after it was completed. -- 9 of 14 -- 10 Claim 2 – misappropriation of sale proceeds [57] I accept that the amount of the proceeds of sale that was not returned to the applicant was $189,509. Entitlement to make a claim on the fund [58] The Tribunal may only allow a claim against the fund if the claimant if satisfied, on the balance of probabilities, that the claimant may make the claim under division 2 of the AFAA.8 [59] Division 2 of the AFAA contains ss 82 to 87. No issue arises in relation to ss 83 to 87. Section 82 provides that a person may claim against the fund if the person suffers financial loss because of the happening of certain events including: (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;9 and (b) contravention by a relevant person of ss 206, 207, 208, 209 or 212 of the POA.10 [60] A ‘relevant person’ is defined to include an agent, an agent’s employee or agent, or a person carrying on business with the agent.11 An agent is defined to include a licensee.12 The applicant produced evidence that, throughout her dealings with the respondent, he was a registered real estate salesperson. He dealt with her on behalf of First National, being a real estate agency. Claim 2 – Sale proceeds [61] I will consider Claim 2 before Claim 1. [62] Section 82(1)(g) of the AFAA relevantly provides that: A person may claim against the fund if the person suffers financial loss because of the happening of any of the following events— a contravention by a relevant person of the following provisions of the Property Occupations Act 2014— … • section 206 • section 207 • section 208 • section 209 • section 212. [63] Section 206 of the POA relevantly applies if a real estate salesperson in performing the activities of a real estate salesperson – 8 AFAA, s 105. 9 Ibid, s 82(1)(b). 10 Ibid, s 82(1)(g). 11 Ibid, s 80. 12 Ibid, s 8. -- 10 of 14 -- 11 (a) receives an amount belonging to someone else; or (b) falsely accounts for money. [64] It is necessary to consider whether the respondent was performing the activities of a real estate salesperson when he solicited the sale proceeds and misappropriated them thereafter. The OFT made the following points that could indicate that he was not: (a) investing other peoples’ money is not a prescribed activity under the POA that only licenced real estate agents or salespersons may do; (b) the respondent did not purport to deposit the money into a special trust account for investment purposes under section 17 of AFAA, being the only legitimate investment pathway for real estate agents; and (c) the applicant had already signed the contract on the townhouse and sold her home at the time she ‘invested’ the sale proceeds through the applicant, so the character of their relationship was client - financial adviser. [65] I have considered these submissions and concluded that, in the respondent’s dealings with the applicant, he was acting as a real estate salesperson at all material times. He met her when she called First National about the townhouse development. He encouraged and facilitated her purchase of one of the townhouses. While doing that, he encouraged her to sell her unit and invest the proceeds. He handled the sale of her unit and told her that real estate agents often invested sale proceeds for their clients while awaiting settlement. He claimed expertise based on his experience as a real estate agent. After the applicant sold her home, he continued to contact her about the townhouse build and her rental accommodation. There is no evidence that he ever put himself forward as a financial adviser or that she thought he was a financial adviser. [66] The OFT drew the Tribunal’s attention to a previous Tribunal decision that makes the point that the mere fact that a person is a real estate agent does not mean they always act in that capacity. The previous Tribunal observed that: In the conduct of a real estate agent’s business, there will be many transactions incidental to the running of the business where the Act has no application. A few that come to mind are - entering into a rental agreement for the agent’s business premises, agreements to purchase or lease motor vehicles, and an overdraft facility with a bank.13 [67] These examples involve a person acting as principal in a transaction although they happen to be an agent. For example, an agent who leases a motor vehicle for themselves, not acting as an agent for someone else. In the present case, the respondent obtained the sale proceeds by offering to invest them for the applicant with a third party. The applicant believed the respondent was providing a service to her as a real estate agent because that is what he represented to her. [68] The respondent misappropriated the sale proceeds long after the applicant’s purchase of the townhouse and sale of her unit. Accordingly, I have considered whether he was no longer performing the activities of a real estate salesperson at that time. Section 206 of the POA applies even if the ‘real estate salesperson’ was not a real estate 13 Express Commission Pty Ltd and the Chief Executive, Office of Fair Trading v Venture Spirit Pty Ltd and Smith, S.M [2008] QCCTPAMD 21, [10]. -- 11 of 14 -- 12 salesperson but acted as though they were.14 Clearly, holding oneself out as a real estate salesperson is sufficient for the purposes of s 206 of the POA. That is what the respondent did by continuing to contact the applicant in the capacity of a real estate salesperson and pretending to have invested the sale proceeds for her as a real estate salesperson. I accept the submission made on behalf of the applicant that the respondent’s role as a real estate salesperson was inextricably intertwined with his solicitation and misappropriation of the sale proceeds. I am satisfied that s 206 of the POA applies. [69] Subsection 206(2) of the POA relevantly provides that a real estate salesperson commits a crime if they dishonestly convert the amount (that they received that belonged to someone else) to the salesperson’s own use or dishonestly render an account of the amount knowing it to be false in a material particular. [70] I am satisfied that the respondent dishonestly converted all but $9,000 of the sale proceeds to his own use. That is because he had obtained it on the basis that he would invest it in stocks, but he stole it. [71] I am satisfied that the respondent contravened s 206(2) of the POA by dishonestly converting $189,509 of the sale proceeds to himself, which is a claimable event, and that the applicant suffered financial loss because of the claimable event. The applicant may claim against the fund under s 82(1)(g) of the AFAA for that amount. Claim 1 – premature sale of home [72] The applicant must establish that the financial losses from selling her unit prematurely were caused by a claimable event. She has raised ss 207, 208, 209 and 212 of the POA which broadly deal with dishonest and unconscionable behaviour. Contravention of any of these provisions is a claimable event under s 82 of the AFAA. [73] Section 207 deals with misleading conduct, s 208 deals with unconscionable conduct and s 209 deals with false representations and other misleading conduct relating to residential property. These provisions only apply when a marketeer engages in the proscribed conduct. The OFT submitted that these marketeering provisions traditionally addressed a two-tier pricing model that was prevalent mainly on the Gold Coast in the 1990s whereby property was advertised with a local price for people based on the Gold Coast and an inflated price for people based outside the region. With the creations of internet services like realestate.com.au that practice stopped. The OFT’s position is that the respondent was not a marketeer. [74] The POA relevantly defines ‘marketeer’ as: a person directly or indirectly involved, alone or with others, in the sale, or promotion of the sale, or provision of a service in connection with the sale, of residential property under a formal or informal arrangement… [75] I am satisfied that the respondent comes within that definition with respect to his activities as a seller of property. [76] Sections 207, 208 and 209 of the POA address unscrupulous conduct aimed at inducing potential buyers of property, which is consistent with the meaning of marketeer. Some examples given in s 209 are the making of a false representation about the location of a property or the price payable for a property. It is not clear that 14 POA, s 206(6). -- 12 of 14 -- 13 they are apt to the applicant’s situation where she was not deceived into buying the townhouse; she was deceived about the townhouse so she would sell her unit. However, it is not necessary to further consider whether these provisions apply because I am satisfied that s 212 of the POA applies. [77] Section 212 of the POA deals with false or misleading conduct. It is not limited to conduct by marketeers, but it is limited to conduct in connection with the letting, exchange or sale of real property. It relevantly provides that: (1) A licensee or real estate salesperson must not represent to someone else anything that is false or misleading relating to the letting, exchange or sale of real property. … (4) Also, if a person makes a representation relating to a matter and the person does not have reasonable grounds for making the representation, the representation is taken to be misleading. (5) The onus of establishing the person had reasonable grounds for making the representation is on the person. [78] The respondent’s representations that the townhouse would be built in six to eight months was misleading, and reasonable grounds for making it have not been established. The statements were made in relation to the sale of the townhouse in the sense that the respondent purported to provide information to the applicant that was relevant to her potential purchase of the townhouse. The components of s 212(1) of the POA are established. The representations induced her to sell her home prematurely. [79] I am satisfied that there was a claimable event with respect to the premature sale of the applicant’s house, and that it resulted in her incurring financial losses of $41,435.50 and $122,000. She may claim against the fund for those amounts. Decision [80] Section 105 of the AFAA relevantly provides that if the Tribunal is satisfied that a person may make a claim, the Tribunal may allow a claim wholly or partly. There are some matters that the Tribunal must take into account in making that decision, which do not affect the applicant’s claim. There is no indication that those are the only matters the Tribunal may take into account when exercising the discretion conferred by s 105. [81] The OFT submitted that the amounts claimed by the applicant are substantial and care should be taken when deciding whether or not to allow such large payments from public funds. I accept that submission, and I decline to allow the full amount claimed in Claim 1. That is because, while I accept that the respondent leveraged his status and position as a real estate salesperson to induce the applicant to rely on whatever he told her, there was one matter where he was obviously not the most reliable source of information. That matter was the length of time it would take for the townhouse to be built. The most reliable source of that information had to be the developer. The applicant did not attempt to check with the developer. Taking into account that lapse in vigilance, it is reasonable that she bears some of the loss that resulted from the claimable event. This is not a criticism of the applicant who fell victim to a skilful, fraudster who had the appearance of legitimacy. -- 13 of 14 -- 14 [82] It is reasonable to allow half of the amount claimed in Claim 1, which is $81,717.75, and the entire amount of Claim 2. [83] Section 113(2) of the AFAA provides that: ‘A claimant may not recover from the fund for a single claim an amount more than the amount prescribed under a regulation’. [84] Regulation 25 of the Agents Financial Administration Regulation 2014 (Qld) relevantly provides that: ‘For section 113(2) of the Act, a claimant may not recover more than $200,000’. [85] Reading those provisions together, it appears that a cap of $200,000 applies per claimant, per claim. However, the OFT’s submissions appeared to treat the cap as applying to the totality of the applicants claims, although it was not entirely clear. [86] The AFAA came about as part of a project to split the contents of the old Property Agents and Motor Dealers Act 2000 (Qld) into separate statutes. An explanatory note to the Agents Financial Administration Bill 2010 states, in relation to the clause that ultimately became s 113(2) of the AFAA: Clause 104 provides for monetary limits on amounts that may be paid from the claim fund for a single claim or arising out of the wrongdoing of a single person to be prescribed by regulation. ... For a single claim, a claimant is able to recover from the fund an amount no more than the amount prescribed by regulation… (emphasis added) [87] Given the language of the legislation and the explanatory material, I am satisfied that the cap of $200,000 applies to each claim and not to the total that a single claimant may be paid. The amount that I have allowed for each claim is under the $200,000 cap. [88] I am required to name the person liable for the applicant’s financial loss. That person is James George Chetcuti.15 15 Ibid, s 105. -- 14 of 14 --