Chief Executive, Department of Justice, Office of Fair Trading v Le & Ors [2026] QCATA 69

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Chief Executive, Department of Justice, Office of Fair Trading v Le & Ors [2026] QCATA 69 PARTIES: CHIEF EXECUTIVE, DEPARTMENT OF JUSTICE, OFFICE OF FAIR TRADING (appellant) v NGUYEN XUAN LE (first respondent) And PBGC INVESTMENTS PTY LTD ACN 167 460 317 (second respondent) And RICHARD WILLIAM TURNER (third respondent) APPLICATION NO/S: APL087-25 ORIGINATING APPLICATION NO/S: OCL092-21 MATTER TYPE: Appeals DELIVERED ON: 7 April 2026 HEARD AT: Brisbane DECISION OF: Senior Member M Lember ORDERS: The Appeal Tribunal record is corrected: (a) to reflect the parties to OCL092-21 as the parties to the current proceeding, such that the name of the First Respondent is corrected to Nguyen Xuan Le, and (b) to reflect the records of the Australian Securities and Investments Commission, such that the name of the Second Respondent is corrected to PBGC Investments Pty Ltd ACN 167 460 317. The appeal is allowed. The decision in OCL092-21 delivered on 14 February 2025 is set aside and substituted with a decision that: -- 1 of 5 -- 2 The claim against the Claim Fund is allowed up to the statutory maximum of $200,000.00 pursuant to sections 105, 106 and 113 of the Agents Financial Administration Act 2014 (Qld) and section 25 of the Agents Financial Administration Regulation 2014 (Qld). At the expiration of the appeal period the Chief Executive must pay to Ngyuen Xuan Le the sum of $200,000.00 from the Claim Fund, and if there is an appeal, payment must not be made until after the appeal is finally decided, pursuant to section 112 of the Agents Financial Administration Regulation 2014 (Qld). Both Richard Turner and PBGC Investments Pty Ltd ACN 167 460 317 are jointly and severally named as being liable for the financial loss of the Applicant pursuant to section 105(3)(c) of the Agents Financial Administration Act 2014 (Qld). Upon payment from the Claim Fund both Richard Turner and PBGC Investments Pty Ltd ACN 167 460 317 are jointly and severally named as being liable to reimburse the Claim Fund by paying the sum of $200,000.00 to the Chief Executive, Department of Justice and Attorney-General, pursuant to section 106 and 116 of the Agents Financial Administration Act 2014 (Qld). CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – where award of a claim exceeded the statutory claim limit – error of law – appeal on the claim amount only and not on the decision to award claim – where respondents consent or do not object to appeal on grounds stated Agents Financial Administration Act 2014 (Qld) s 95, s 105, s 106, s 113 Agents Financial Administration Regulation 2014 (Qld) r 25 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 3, s 146 Bui v Turner & Anor [2024] QCAT 528 APPEARANCES & REPRESENTATION: Appellant: Self-represented. First Respondent: M Winn, solicitor, Thynne Macartney Lawyers (written submissions). -- 2 of 5 -- 3 Second and Third Respondents: Self-represented. REASONS FOR DECISION What is the application about? [1] This appeal, and those related to it,1 concern erred decisions of the Tribunal below to award claims on the fund administered by the appellant under the Agents Financial Administration Act 2014 (Qld) (the AFA Act) and consequential orders in amounts exceeding the statutory limit for such claims.2 [2] In each appeal, the appellant contends only that the erred decision be set aside and substituted with a decision allowing the claim (and consequential orders) to the statutory maximum of $200,000.00 and does not otherwise dispute the decision made.3 [3] The respondents concede the error: the first respondent consenting4 and the second and third respondents not objecting5 to the appeal being allowed on the grounds proposed. [4] Consistent with the objects of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (the QCAT Act) which include dealing with matters in a way that is accessible, fair, just, economical, informal, and quick,6 the Appeal Tribunal allows the appeal, sets the erred decision aside and substitutes it with a decision allowing the claim and consequential orders to the maximum claim amount.7 [5] The reasons for making this decision are set out below. The claims The statutory framework [6] The appellant administers a fund pursuant to the AFA Act under which certain financial losses arising from misconduct by real estate agents can be recovered by eligible claimants (the scheme). [7] For present purposes, there is no dispute as to the eligibility of the claimants to make a claim, as to whether the claims arose from claimable events or whether the second or third respondents were agents for the purpose of the claimants having recourse to the scheme.8 [8] The relevant provisions of the AFA Act that deal with the scheme are: 1 APL086-25 and APL088-25. 2 Agents Financial Administration Act 2014 (Qld) (the AFA Act), s 113(2), read with the Agents Financial Administration Regulation 2014 (Qld), r 25. 3 Application for leave to appeal or appeal filed 12 March 2025, Submissions at [19] to [21]. 4 Correspondence of 4 March 2026. 5 Oral submissions at the Directions Hearing on 3 September 2025. 6 Queensland Civil and Administrative Tribunal Act 2009 (Qld) (the QCAT Act), s 3. 7 Ibid, s 146(c). 8 The statutory framework set out in Part 7 Division 2 of the AFA Act deals with these issues. -- 3 of 5 -- 4 (a) Section 95(1)(b) which permits the Chief Executive to refer a claim to QCAT to decide, if they consider it could be more effectively or conveniently decided by QCAT because of, for example, the nature and complexity of the claim. (b) Section 105 which permits QCAT to allow a claim and in so doing, requires the Tribunal to take certain factors into account as well as deciding the amount of the claimant’s financial loss and naming the person who is liable for it. (c) Section 106 which empowers the Tribunal to make the following orders against the fund: (i) an order allowing the claim, wholly or partly, or rejecting the claim; (ii) an order stating that a named person is liable for a claimant’s financial loss and the amount of the loss; and (iii) an order about recovery of an amount payable for a claim. (d) Section 113(2) which limits the claimant’s recovery from the fund for a single claim to no more than the amount prescribed under a regulation. [9] Section 25(1) of the Agents Financial Administration Regulation 2014 (Qld) (the Regulation) prescribes that for section 113(2) of the Act, a claimant may not recover more than $200,000. The factual circumstances in which the claims arose [10] The third respondent, Mr Turner, promoted the ‘Brookwater Gold & Spa Resort’ development (the resort) as director of Brookwater Residential Investments Pty Ltd (BRI), which owned the land intended for the proposed development. [11] He was also the director of the second respondent, PBGC Investments Pty Ltd,9 the developer and seller of lots in the proposed development. [12] Purchasers of proposed lots paid deposits that were to be held in a solicitor’s trust account pending settlement. These deposits were not in fact paid by BRI, or by the second or third respondents to such an account. [13] When the contracts were terminated, deposits were not repaid to the buyers entitled to them, and claims were made against the claim fund by the dissatisfied buyers for the lost deposits. [14] Following the appellant’s referral of the claims to QCAT, Bui v Turner & Anor [2024] QCAT 528 (Bui) was decided as the ‘lead claim’ and subsequent decisions followed it, such that claims were allowed; the appellant was directed to pay the claims from the claim fund; and the second and third respondents were directed to reimburse the claim fund by paying the claim amounts to the appellant. However, the claim amount in Bui did not exceed $200,000.00, so the issue of the statutory claim limit did not arise. [15] The first respondent, Nguyen Xian Le entered a written contract to purchase Lot 1344 in the resort on 2 December 2016 and, pursuant to that contract, had paid a deposit of $250,000.00 over two instalments. 9 Formerly, Brookwater Resort Residential Pty Ltd. -- 4 of 5 -- 5 An error in the decision below [16] By a decision made 14 February 2025, the Tribunal below allowed Le’s claim for the full deposit amount of $250,000.00, directed the appellant to pay that sum to Le from the claim fund, found the second and third respondents liable for the sum and required them to reimburse the fund by paying that amount to the appellant. [17] The decision went beyond the power of the Tribunal because the amount awarded exceeded the maximum amount permitted under s 113 of the AFA Act read with s 25 of the Regulations. Outcome [18] The decision of the Appeal Tribunal is therefore to allow the appeal on the error of law, to set the decision aside and to substitute the decision with a decision to award the claim with consequential orders with respect to liability and reimbursement of the claim fund adopting those parts of the decision not disturbed on appeal. -- 5 of 5 --