Belle v Office of Fair Trading & Ors [2025] QCATA 26

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Belle v Office of Fair Trading & Ors [2025] QCATA 26 PARTIES: BELLE (applicant/appellant) v OFFICE OF FAIR TRADING (First respondent) ABSTAR ENTERPRISES PTY LTD (Second respondent) NICOLA YVONNE FAULKS (Third respondent) AMRITA SINGH (Fourth respondent) COURTNEY AFU (Fifth respondent) APPLICATION NO/S: APL401-23 ORIGINATING APPLICATION NO/S: GAR225-22 MATTER TYPE: Appeals DELIVERED ON: 19 March 2025 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member Traves ORDERS: The application for leave to rely on fresh evidence is refused. Leave to appeal is refused. The appeal is dismissed. CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – ERROR OF FACT – where application for leave to rely on fresh evidence refused –– where no error in law or in factual findings demonstrated – where leave to appeal refused – where appeal dismissed Agents Financial Administration Act 2014 (Qld), s 82 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3(b), s 142, s 147 -- 1 of 7 -- 2 Allen v Queensland Building and Construction Commission [2023] QCATA 66 Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 QdR 404 Crime and Corruption Commission v Lee [2019] QCATA 38 Campbell v Queensland Building and Construction Commission [2021] QCATA 34 Lin v Chief Executive, Department of Justice and Attorney- General, Office of Fair Trading & Ors [2024] QCAT 371 Stewart v Metro North Hospital and Health Service [2024] QCA 225 Warren v Coombes [1978-1979] 142 CLR 531 APPEARANCES & REPRESENTATION: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) REASONS FOR DECISION [1] This is an application for leave to appeal and/or appeal against the decision of the Tribunal on 30 October 2023 to confirm a decision made by the first respondent, the Office of Fair Trading, to reject the applicant’s claim made pursuant to the Agents Financial Administration Act 2014 (Qld) (AFA Act). [2] The applicant’s name appears as ‘Belle’ in the decision appealed from and in the material filed in the Appeal Tribunal. I will proceed on the basis that is the applicant’s name. [3] As a general proposition, when leave to appeal to the Appeal Tribunal is required, it will be granted only where there is a reasonable argument that the decision was attended by error and an appeal is necessary to correct a substantial injustice caused by that error, or where the appeal raises a question of general importance upon which further argument and a decision of the Appeal Tribunal would be to the public advantage.1 [4] The legislative policy of the Queensland Civil and Administrative Act 2009 (Qld) (QCAT Act) is that primary decisions should normally be final. An applicant for leave must show that it is reasonably arguable that the decision in question is affected by legal error or was reached in patent disregard of evidence clearly established or exhibits a finding of fact or credit that is ‘glaringly improbable’.2 [5] If leave is granted, the appeal, involving an appeal against a decision on a question of fact or question of mixed law and fact, must be decided by way of rehearing.3 1 Crime and Corruption Commission v Lee [2019] QCATA 38 at [12]; Campbell v Queensland Building and Construction Commission [2021] QCATA 34 at [17]. 2 Riley v Bishop [2018] QCATA 151 at [14] citing Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479 per Brennan, Gaudron and McHugh JJ; Brunskill v Sovereign Marine & General Insurance Co Ltd (1985) 59 ALJR 842 at 844. 3 QCAT Act, s 147. -- 2 of 7 -- 3 The background [6] The applicant leased a property to tenants who vacated the property pursuant to a Warrant of Possession sometime around 19 or 20 October 2021. The property was inspected and an Exit Condition Report was prepared at the applicant’s request. The property managers ceased acting as the applicant’s agents on 20 October 2021. [7] The applicant permitted the tenants to leave some items of personal property outside the house which they were to collect after they vacated. [8] On 25 October 2021, the applicant moved into the property. [9] The applicant claimed the Exit Condition Report was not properly completed and that this was a ‘misapplication’ of the Exit Condition Report which resulted in financial loss to her. [10] On 23 December 2021, the applicant lodged a claim with the Office of Fair Trading seeking an amount of $25 000. In the letter accompanying the claim, the applicant stated: I am making a claim for financial loss as a result of Ray White Kirwan being incompetent, acted in an unprofessional way and made false misleading statements. [11] On 27 April 2022, the claim was rejected on the basis there was no ‘claimable event’ as defined in the AFA Act. [12] On 23 May 2022, the applicant lodged an application for review of that decision, claiming the decision was wrong because the property agents ‘misapplied the Exit Condition Report for the purposes of evidence’ which were circumstances which came within s 82(1)(b) of the AFA Act. [13] On 30 October 2023 the Tribunal confirmed the decision of the Office of Fair Trading to reject the claim. [14] On 27 November 2023 the applicant filed an application for leave to appeal and/or appeal followed by an application for leave to rely on fresh evidence. The relevant AFA Act provisions [15] The claim fund is established under the AFA Act.4 [16] The fund must be used to pay the amount of all claims allowed against the claim fund.5 [17] Pursuant to s 82(1), a person may claim against the claim fund if the person suffers financial loss because of the happening of any of the events listed in that provision. The event relied upon is s 82(1)(b) which provides: 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; 4 AFA Act, s 78(1). 5 AFA Act, s 79(1). -- 3 of 7 -- 4 The decision [18] The Member, in confirming the decision under review, found: (i) There was insufficient evidence to make a finding of stealing or misappropriation by the property agents. (ii) It was unclear what ‘event’ the applicant claimed would trigger the application of s 82(1) of the AFA Act. (iii) It was not necessary to consider whether there was any ‘malfeasance’ by the property agents as the current relevant provision did not refer to malfeasance. (iv) The fund does not respond to claims for negligence or breach of contract, relying on Peter v Tyson [2015] QCATA 9. (v) The ‘gist’ of the applicant’s case was that the Exit Report was incomplete/inaccurate and that the property agent’s employees acted in a way that was irresponsible, incompetent, and unprofessional and that they provided detrimental, false and misleading information to her. (vi) Even if the Tribunal was to find that the employees acted in the way alleged by the applicant, that s 82(1)(b) does not apply. (vii) Further, a finding that the Exit Report was deficient cannot support a finding of ‘stealing, misappropriation or misapplication’. There is no claim on the fund. Application for leave to rely on fresh evidence [19] The applicant applied for leave to rely on fresh evidence in the appeal. [20] The Appeal Tribunal, in considering such an application made pursuant to s 147(2) of the QCAT Act, at least in relation to an appeal on a question of fact, or of mixed law and fact, applies the usual tests for fresh evidence. These rules are those set out, for example, in Clarke v Japan Machines (Australia) Pty Ltd.6 The ‘usual rules’ are replicated in the directions issued by the Tribunal which required the applicant to explain in her submissions supporting her application to rely on fresh evidence: why the fresh evidence was not available to the tribunal below, why it is important, and why it should be accepted.7 [21] The evidence consisted of telephone records; medical certificates, notes and appointment records; and financial records. [22] The telephone records went to establishing whether the agency was terminated by the applicant, a matter the applicant disputes. For the reasons above, the issue of termination of the agency was not relevant to the review and the decision to reject her claim on the basis it was made. The application to adduce that evidence is accordingly refused. [23] The medical certificates show the applicant had an infection around 20 October 2021. The applicant does not demonstrate how this proves she instructed the agents not to 6 [1984] 1 QdR 404 at 408. 7 Appeal Tribunal Directions dated 18 December 2023. -- 4 of 7 -- 5 engage a cleaner or even if it did, how that is relevant. Given the issue is not of significance in the determination of this review, the application in respect of the medical certificates is refused. [24] The financial records are sought to be adduced to show the agents were deficient in their record keeping and claimed tax credits to which they were not entitled. These arguments were not the subject of the review in the Tribunal and can not now be raised for the first time on appeal. The application to rely on this evidence is refused. Grounds of Appeal [25] The applicant has not addressed the issue of leave to appeal. [26] There are several grounds of appeal. [27] I propose to consider the grounds raised by the applicant and the response by each of the respondents with a view to determining whether leave to appeal should be given, and, if so, whether the appeal should be allowed. [28] I turn to consider the grounds. Ground One: error in date tenants vacated and when Exit Report requested [29] The applicant submits that an error of fact was made by the Tribunal in stating the tenants vacated the property ‘sometime around 19 or 20 October 2021’. The applicant submits this error ‘implied that the applicant requested an Exit Condition Report be carried out on either 19 or 20 October 2021.’ [30] The applicant claims she asked for an Exit Condition Report to be carried out on 25 October 2021, not on 19 or 20 October. [31] There is no error of fact by the learned Member. The tenants vacated the premises on 19 October and, with the consent of the applicant, stored goods at the property until 24 October 2021. The learned Member did not find, and did not infer, that the Exit Condition Report was carried out on 19 or 20 October. [32] Even if an error had been made in that regard, nothing turns on this. The applicant has not demonstrated how it could have affected the outcome. [33] This ground of appeal is without substance. Ground Two: error in finding the applicant terminated the property agent’s appointment on 20 October 2021 [34] The applicant submits an error of fact was made by the Tribunal in finding the applicant terminated the property agent’s appointment on 20 October 2021. [35] Again, even if I accept that the applicant did not terminate the appointment on that date, the applicant has not demonstrated how that could have affected the outcome. [36] This ground of appeal is without substance. Ground Three: error in stating it was not clear what event the applicant was claiming would trigger the application of s 82(1) [37] The applicant submits that, although the Tribunal said it was not clear what event the applicant was relying on as her basis for a claim under s 82(1), that the Tribunal referred to her claim as one for ‘misapplication of the Exit Condition Report’. -- 5 of 7 -- 6 [38] The applicant submits that she is in fact making a claim for ‘misapplication of the Exit Condition Report’ but that, on reviewing the documentation provided by the property agents, also appears to be alleging that the agents have ‘misappropriated and/or misallocated funds’. [39] The Tribunal, in saying it was not clear what event the applicant relied upon, was merely stating that the circumstances put forward by the applicant did not clearly fall within one of the categories to which s 82 responds. Further, the applicant cannot now, on appeal, raise further alleged incidents on which to support her claim under the fund. [40] The applicant under this ground also refers to errors she says have been made by the Office of Fair Trading in its submissions, in particular that the applicant had not established s 82(1)(b) applied to her circumstances because she had not demonstrated that the ‘Exit Report’ was property nor had she demonstrated it was entrusted to the ‘agency’ as agent for someone else. An appeal is not concerned with alleged errors made by the other party to the appeal. [41] This ground of appeal is without substance. Ground Four: error in stating the reference to the legislation applying to ‘fraud, stealing or misappropriation or malfeasance’ did not reflect wording of current Act [42] The applicant submits the Tribunal erred in stating the reference to ‘fraud, stealing or misappropriation or malfeasance’ did not reflect the wording of current Act. [43] The Tribunal did not err in that respect. The phrase referred to does not appear in the current s 82(1)(e) of the AFA Act. [44] The Property Agents and Motor Dealers Act 2000 (Qld) has been repealed. The Property Occupations Act 2014 (Qld) to which the applicant now refers in her application for leave to appeal is not relevant to the review. [45] This ground is without substance. Ground Five: error in finding applicant had made no claim of negligence or breach of contract [46] The applicant submits that the Tribunal erred in finding she had made no claim of negligence or breach of contract. In support of this ground the applicant says that the agents failed to provide any evidence to support that the applicant failed to maintain the property and that the Tribunal erred in incorrectly accepting unsubstantiated statements to that effect. In doing so, the applicant submits, the Tribunal incorrectly applied the findings of Zarben Developments Pty Ltd v Martinger Pty Ltd [2013] QCAT 22. [47] It is not clear what the applicant means by this ground. The applicant, in expanding on the ground, submits that the agents provided false and misleading statements in relation to the applicant failing to meet her responsibilities as a property owner. The applicant has not demonstrated this to be the case. In any case, it does not support the ground as framed. The finding by the Tribunal was that she had not made a claim of negligence against the agent, not that the applicant was negligent. [48] There was no error made by the Tribunal in finding the applicant had not made a claim of negligence or breach of contract. -- 6 of 7 -- 7 [49] This ground is without substance. Conclusion [50] The claim based on the allegedly deficient Exit Condition Report did not, in my view, constitute a ‘misapplication’ of property in the sense in which that term is used.8 Further, the property (that is, the Exit Condition Report) was not ‘entrusted to a relevant person’, in the sense in which that phrase is used. In my view, the complaints in relation to the Exit Report the subject of the applicant’s claim do not constitute a ‘misapplication’ of property entrusted to the property agents. There has not been a wrongful application or use of property entrusted to those persons. Further, the applicant has not adduced any evidence to show how, if at all, she suffered loss due to the Exit Condition Report, assuming it was captured by s 82(1)(b). [51] The applicant has not demonstrated in respect of any of the grounds of appeal she has raised, why leave to appeal should be given. I have found, for the reasons above, that none of the grounds have any substance. [52] Leave to appeal is accordingly refused. [53] The appeal is dismissed. 8 Lin v Chief Executive, Department of Justice and Attorney-General, Office of Fair Trading & Ors [2024] QCAT 371, [16]. -- 7 of 7 --