Bui v Turner & Anor [2024] QCAT 528

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Bui v Turner & Anor [2024] QCAT 528 PARTIES: THI THUY CHAU BUI (CINDY TRAN) (applicant) v RICHARD TURNER (respondent) PBGC PTY LTD ACN 167 460 317 (FORMERLY KNOWN AS BROOKWATER RESORT INVESTMENTS PTY LTD ACN 167 460 317) (respondent) APPLICATION NO/S: OCL074-21 MATTER TYPE: Occupational regulation matters DELIVERED ON: 23 October 2024 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Richard Oliver ORDERS: The claim against the Claim Fund in the sum of $55,300.00 is allowed pursuant to sections 105 and 106 of the Agents Financial Administration Act 2014 (Qld). At the expiration of the appeal period the Chief Executive must pay to the Applicant the sum of $55,300.00 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 Act 2014 (Qld). Both Richard Turner and PBGC Pty Ltd ACN 167 460 317 (formerly known as Brookwater Resort Investments Pty Ltd ACN 167 460 317) are jointly and severely named as being liable for the financial loss of Thi Thuy Chau Bui (Cindy Tran) 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 Pty Ltd ACN 167 460 317 (formerly known as Brookwater Resort Investments Pty Ltd ACN 167 460 317) are jointly and severely liable to reimburse the Claim Fund by paying the sum of $55,300.00 to the Chief Executive, -- 1 of 14 -- 2 Department of Justice and Attorney-General, pursuant to section 106 and section 116 of the Agents Financial Administration Act 2014 (Qld). CATCHWORDS: PROFESSIONS AND TRADES – AUCTIONEERS AND AGENTS – ADMINISTRATIVE LAW – MISAPPROPRIATION OF DEPOSIT MONEY – CLAIMS AGAINST THE CLAIM FUND – LIABILITY OF AGENT TO PAY THE CLAIM – CONTROL OF MONEY – where a Vietnamese resident entered into an off the plan contract in Vietnam to purchase a lot in a proposed residential resort development in Queensland – where deposit money paid to the developer’s director in Vietnam and deposited into the directors bank account – where the development failed to proceed and the contract was terminated – where the applicant sought recovery of the deposit where one or both respondents failed to secure the deposit in a trust account – where misappropriation of deposit by one or both respondents – where applicant made a claim against the Claim Fund under the provisions of the Agents Financial Administration Act 2014 (Qld) – whether the claim fell within the provisions of the Agents Financial Administration Act 2014 (Qld) – whether respondents an “agent” or “relevant person” for the purposes of a claim against the Claim Fund – whether the Claim Fund should respond to the claim Agents Financial Administration Act 2014 (Qld), s 80, s 82, s 105, s 106 Property Occupations Act 2014 (Qld), s 26, s 97, s 115, s 151 and s 162 Cotter v Chief Executive, Department of Justice and Attorney General [2024] QCATA 55 David Hambleton as joint and several Liquidator of Sky 5 Pty Ltd and Ors v Tuxford (No 6) [2012] QCATA 94 Mann & Mann v McCreath [2016] QCAT 477 McLeod v R (2003) 214 CLR 230 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] The applicant is a Vietnamese national. On 30 August 2015, in Vietnam, she entered into a written “off the plan” contract to purchase Lot 1071 in a proposed residential and resort development at Brookwater in the southwestern suburbs of Brisbane. The development was marketed as the Dusit Thani Brookwater Golf & Spa Resort representing it was in a joint venture with a well-known global hotel chain based in Asia. She paid a deposit of $56,300.00 which was supposed to be held on trust by a firm of solicitors, Hickey Lawyers at the Gold Coast, until completion of the -- 2 of 14 -- 3 development, and a transfer of title was effected. The time frame for the development to be completed was within 5.5 years of the contract date. [2] The development was promoted by Richard Turner as a director of Brookwater Residential Investments Pty Ltd (‘BRI’)1. BRI was the registered proprietor of the land on which the proposed development was to be built, being Lot 1 on SP 270634. [3] Another company, Brookwater Resort Residential Pty Ltd (‘BRR’), was the developer of the project and the seller of the lots. Mr Turner was also a director of BRR. The contract provided and warranted that when the development was completed, title would pass to BRR to enable settlement. Therefore, the contract was between the applicant and BRR. [4] Ultimately the development failed to proceed and the applicant, by her solicitors, terminated the contract on 9 March 2021 and sought a return of the deposit. She ultimately found that save for $1,000.00 held in trust by Hickey Lawyers, the balance of the deposit was never paid into their trust account, nor was it refunded back to the applicant by Mr Turner, BRR or BRI. The deposit has not been accounted for by any entity involved in this matter. [5] Because of the failure of either Mr Turner or the Brookwater companies, to return the deposit in full, accepting there was a lawful termination of the contract,2 the applicant made a claim for $55,300.00 against the Claim Fund administered under the Agents Financial Administration Act 2014 (‘AFAA’) by the Queensland Department of Justice and Attorney-General – Office of Fair Trading (‘OFT’). [6] Having investigated the claim, the Chief Executive of the OFT exercised the powers conferred under s 95 of the AFAA and referred the claim to the Queensland Civil and Administrative Tribunal. Presumably this was on the basis that as there are 17 other similar claims from Vietnamese nationals, the foreign element to the transaction and the convoluted way the deposits were paid, it would be more appropriate for the claim to be decided by QCAT. The methodology of marketing the lots in Vietnam was the same in all cases in which claims have been made. [7] There is no dispute that the applicant has lost and/or the respondents have not refunded the deposit of $55,300.00. However, as the Chief Executive of he OFT has submitted: Claims against the Claim Fund are not allowed just because someone might have lost money. AFAA established the Claim Fund to “compensate persons in particular circumstances for financial loss arising from dealings with agents”. Consumers will not be compensated every time in every circumstance.3 [8] The task of the Tribunal in this case, and the others, is to determine if the applicants’ claims against the Claim Fund should be allowed in accordance with the criteria imposed by the AFAA. If so, it must identify the responsible party/parties liable for the loss.4 This is the lead case for the purposes of determining whether the Claim Fund should respond to the various claims. 1 I propose to adopt the same abbreviations for the parties to ensure consistency when comparing these reasons to the filed submissions if required later. 2 There is no suggestion that the contract was not lawfully terminated. 3 Chief Executive’s submissions filed 18 July 2024 with References omitted. 4 AFAA s 116. -- 3 of 14 -- 4 [9] Although there are time limits to lodge a claim, the time for lodgement was extended to 5 August 2021 by order of the Tribunal on 26 July 2023.5 In his reasons to grant an extension of time, Member Scott-Mackenzie set out a brief history of the transactions, the applicable legislative provisions for making claims against the Claim Fund and in particular the criteria applicable to extend the time to make a claim. Having regard to all of those matters he was satisfied that there were sufficient grounds to extend time. In respect of the history and the legislative provisions, I respectfully adopt his commentary on those matters. Statutory framework [10] For a claim to be accepted by the Chief Executive it must satisfy the requirements of Part 7 Division 2 of the AFAA. They include: (a) A claimable event, here being financial loss as a result of stealing, misappropriation or misapplication by a relevant person of property entrusted to a person as agent for someone else in the persons capacity as a relevant person;6 (b) The claimable event caused the applicant to suffer financial loss; (c) There is a sufficient nexus between the respondents’ actions and the State of Queensland, referred to as the jurisdiction issue; (d) The respondents were agents or relevant persons as defined in the AFAA;7 (i) An agent includes a former agent, a person who is not licensed under an Agents Act but who acts as a licensee. (ii) A relevant person includes an agent; an agent’s employee, or a person carrying on business with the agent. (e) The persons or company responsible for the loss be named as liable an to reimburse the Claim Fund. [11] The loss of course must be capable of a determination which in this case, and others, it is not an issue as it is a sum certain or liquidated amount. Jurisdiction [12] The jurisdictional question requires a finding that the activities which resulted in the loss giving rise to the claim took place predominantly in Queensland.8 The Chief Executive has submitted that the relevant activities, being the misappropriation of the deposit, predominantly took place in Queensland because: (a) The property was to be created from the land, which is in Queensland; (b) The respondent, Mr Turner, and Brookwater companies were based in Queensland at all material times; 5 Tran & Ors v Turner & Ors [2023] QCAT 290 6 AFAA s 82(1)(b). 7 Ibid s 80. 8 Cotter v Chief Executive, Department of Justice and Attorney General [2024] QCATA 55. -- 4 of 14 -- 5 (c) The buyers’ deposits were supposed to be transferred from the BRR Account in Vietnam to the bank account/s situated in Queensland; and (d) A small fraction of the buyers’ deposits were remitted to the deposit holder’s trust account from bank accounts/s situated in Queensland. [13] On the basis of these facts, the Chief Executive accepts that there is sufficient nexus to Queensland for the claims to be within the AFAA’s jurisdiction.9 [14] Even though the Chief Executive has made the concession about jurisdiction, it is still for the Tribunal to be satisfied as to the jurisdictional question. [15] In addition to the above concession there is a letter prepared by Richard Turner, for and on behalf of BRI addressed to the agents marketing the lots in Vietnam (‘the marketers’), of 16 June 201510 stating that, inter alia: • The requirement to pay a deposit is outlined in the Contract for Sale for each lot. When a purchaser signs the Contract of Sale they are agreeing to this requirement. • It is important to note that the purchaser is buying real estate in Australia and the Contract of sale requires all payments to be in Australian dollars or bank equivalent that will be received in Australia. • The deposit holder is Hickey Lawyers in Australia, if a purchaser cannot transfer to Australia, then it can be paid in Vietnam to the Brookwater Resort Residential Pty Ltd account or the Directors account however the Receipt and Contract are stamped as received by Brookwater Resort Residential Pt Ltd. • Cash payment by paying directly to a Brookwater Resort Residential Pty Ltd representative in VND, or to the Directors Account in Vietnam with a stamped receipt from Brookwater Resort Residential along with the contract confirming same. • EFT (Electronic Funds Transfer i.e. Bank to Bank) directly to the Managing Directors bank account in Vietnam, once the purchaser confirms the transfer a receipt will be issues (sic) and stamped. [16] Of note here is that BRR is a company incorporated in Queensland. Also, Richard Turner is director of both BRI and BRR, authorised himself to receive the deposit money and deposit it into his own bank account. [17] Accepting the factual background as referred to in the Chief Executive’s submission above, and in reliance on the evidence supporting those facts contained in the exhibit book11 referred to in the applicant’s submission, I find there is more than sufficient evidence of a nexus between the conduct of the respondents in the off the plan sale of the proposed lot to the applicant to establish the claim is within the jurisdiction of Queensland. Promotion of the development 9 Chief Executive submissions filed 18 July 2024 [22] (‘CE submissions’). 10 Exhibit book page 103-109. 11 The applicant’s submission is contained in an Exhibit Book filed on 8 September 2021 which in these reasons will be referred to the Exhibit Book and numbered exhibit where necessary. -- 5 of 14 -- 6 [18] It is not controversial that BRI, as the owner of the land, promoted the development in local media and in Vietnam in association with Dusit Thani, a hotel chain with resorts in Asia and other countries. The promotional material represented that the resort would include: (a) 520 resort apartments (b) Convention centre (c) Retail mall (d) Tennis club and stadium (e) Water park (f) 24 restaurants (g) Hospitality college incorporating Swiss, Japanese and Italian culinary schools. [19] There are glossy brochures of the proposed development setting out all of the above with the obvious objective to induce buyers of the lots, even featuring Greg Norman as the golf course designer. The whole package12 presents a unique product that is very attractive for investors. Although the type of development and the manner of its promotion is not really a relevant factor to the substantive matter of the claims, it does however give veracity as to why the various Vietnamese claimants would enter into a contract to buy into the development in Australia. [20] For the purposes of selling the lots, BRI appointed agents in Vietnam. The identity of the agents is set out at page 66 of the Exhibit Book. They were appointed on various dates between 2015 and 2016. These agents were not agents for BRR. The agents would receive the deposit monies and pass them onto Mr Turner for banking into his account. The Respondents’ position [21] This application was effectively commenced with the Tribunal issuing standard directions for the conduct of the proceeding on 21 September 2021. Since then there have been further directions hearings to progress the application. The file in the application records that Mr Turner has appeared at the directions hearings on the following dates: (a) 18 February 2022 (b) 23 February 2024 (c) 09 August 2024. [22] In addition, he has been sent the Directions Orders generated by the Tribunal on 21 September 2021, 18 February 2022, 13 April 2022, 27 July 2022, 30 August 2023, 24 November 2023, 23 February 2024, and 9 August 2024. [23] Mr Turner was given every opportunity to make submissions in respect of the application to extend the time for making a claim against the Claim Fund. He chose not to do so. He has been provided with a copy of the extension of time decision and the reasons for it which to some extent set out the background history and basis of the 12 Exhibit Book pages 110-178. -- 6 of 14 -- 7 claim and his involvement. As time was extended and he was a named respondent, as is BRR, he was aware that the matter would proceed to a hearing. [24] He has been provided with all of the evidence relied on in the application as well as the submissions of the Chief Executive and Ms Tran (by her solicitors). In the various directions made by the Tribunal he has been directed to file any statements or material he intends to rely on, but has chosen to file nothing. That of course is his right. He does not have to put on any material if that is the way he wants to conduct the case. He has not even filed any document to indicate his support for the position taken by the Chief Executive, which position is to his benefit. [25] He did, at the last minute, file an application to adjourn the on the papers hearing to put on material. The application was opposed by both the applicant and the Chief Executive. A hearing of the application was conducted but was dismissed with reasons given. The prejudicial consequences of delay to date, and further delay was a significant reason for doing so, given that finality of this proceeding is consistent with the objects contained in s 3 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). [26] I would observe Mr Turner is the only one who knows the full story about what happened to the applicant’s deposit money and has chosen to remain silent since the commencement of the application. Chief Executive’s contentions [27] The Chief Executive has raised the issue of whether there was a claimable event and whether a relevant person was responsible for that event. In summary, the contentions put forward in the Chief Executives submissions are that: (a) Mr Turner was BRR’s sole director; (b) BRR authorised the first respondent to accept all deposit payments on behalf of BRR in Vietnam by written resolution on 26 June 2015, 3 July 2015, 27 August 2015 and 23 February 2017; and (c) The buyers acknowledged their deposits world go into a bank account of Mr Turner as the sole director of BRR as part of the Collateral Agreement. [28] The effect of the submission by the Chief Executive is that BRR, as the developer and seller of the lots, received the deposit from the applicant and no agent or relevant person was involved. Except for the $1,000.00 paid to Hickey Lawyers, it was BRR who stole, misapplied, misappropriated or dishonestly converted the balance deposit money received from the applicant that was not deposited into Hickey Lawyers’ trust account. [29] That being the case the Chief Executive then contends that the Claim Fund will only respond to a claim under s 82(1) of the AFAA if the deposit money was misappropriated by an agent or relevant person. If an agent or relevant person was not involved in the misappropriation that that is not the concern of the Claim Fund.13 [30] Having regard to the definition of “agent” and “relevant person” in s 80 of the AFAA, and the functions of a licensed real estate agents or salespersons under ss 26, 97, 115, and 151 of the Property Occupations Act 2014 (‘POA’), BRR did not carry out any 13 CF submissions [42]-[44]. -- 7 of 14 -- 8 of these functions as developer and seller of the lots. The Chief Executive’s submission is that:14 At a at all material times, BRR15 was the seller of the Property and all other properties to be created from the Land. There is no evidence to suggest BRR bought, sold or exchanged any part of the Land as agent for others for reward. Other persons, companies and real estate agents were appointed to market the Brookwater development for sale and introduce prospective purchases to BRR as seller. BBR, as the seller of the Property cannot sell or negotiate the sale of Brookwater Development properties as an agent for itself, “it is not possible in law, for someone to be an agent for themselves”.16 [31] Therefore, on this analysis of the facts surrounding the sale of the lot to the applicant, being the payment of the deposit to Mr Turner as agent for BRR and that the deposit money has been misappropriated by BRR, the Chief Executive submits there is no basis under the AFAA for recourse to the Claim Fund. Applicant’s contentions [32] The applicant submits that the Chief Executive’s position is an oversimplification of the true matrix of events involved in the sale of the lots in the development. What the resolutions about the payment of the deposit sought to achieve was avoid the strict requirements of the POA in relation to whom deposits can be paid, which is not the developer. The position taken by the Chief Executive overlooks the relationship between the companies and Mr Turner’s central role in orchestrating the way both BRI and BRR went about marketing the development. [33] The applicant accepts that BRI was the owner of the land and BRR was the developer and seller of the lots. But she also contends that in the circumstances BRI and Mr Turner were in fact acting as agents for BRR in the sale of the lots as evidenced by the letter from BRI of 26 June 2015. In particular Mr Turner was acting in a personal capacity to receive the deposit money. [34] BRI was an active player, as it were, in the marketing of the development. BRR was owned by BRI. Although separate legal entities, they were one and the same in terms of control by Mr Turner who was the mind and controlling influence of both companies. [35] There is another entity involved, and that is Maxsen World Queensland Limited. Its relationship to the development is best described in the applicant’s primary submissions. Maxson World Queensland Limited is allegedly a British Virgin Island Company and did not own Brookwater Resort Residential Pty Ltd at that time (or any other time). In fact Brookwater Resort Investments was the owner of BRR Residential. Richard Turner was the key person acting for Maxson World Queensland limited. He was a director of that company (factual or de facto). Richard Turner 14 Ibid [50]-[51]. 15 BRR Residential Pty Ltd. 16 Mann & Mann v McCreath [2016] QCAT 477. -- 8 of 14 -- 9 also appears to have had control of Maxson World Queensland Limited and a number of other companies bearing similar names. More importantly, BRI Investments took over the role and signed up a number of agents in Vietnam to market and sell the lots (on a commission basis).17 [36] The relevance of this is that initially a marketing agreement for the sale of the lots in Vietnam was entered into between Maxson World Queensland Limited, purporting to own BRR, and, and agent, Thien Phouc Tran on 1 October 2015. However, it is submitted that in 2016 a new marketing agreement was entered into with Thien Phouc Tran by BRI. All other marketing agreements were between BRI and the various agents on various dates between 2015 and 2016.18 [37] Therefore, it is not correct to say, as the Chief Executive submits, that the Vietnam agents were acting for and on behalf of BRR. Clearly, by virtue of the agency agreements, the marketing agents were appointed by and were acting on behalf of BRI. A diagram19 showing the interaction between the respective parties is instructive and is based on the evidence in the Exhibit Book. Any deposit monies paid to agents, and then to Mr Turner (or to Mr Turner directly), were done so in accordance with the marketing agreement on behalf of Brookwater Investment and the instruction letter of 26 June 2015. Mr Turner was the intermediatory to receive deposits and bank those monies in his own account, contrary to the requirements of s 162(1) bearing in mind that a developer “must” pay any money received “directly” to either the public trustee, a law practice or property agent. [38] In addition to this, the letter to marketing agents of 26 June 2015 demonstrates it was BRI who instructed agents to pay the deposits to BRR in Vietnam, via Mr Turner, only if a purchaser cannot transfer the deposit to Hickey Lawyers trust account in Australia.20 This is consistent with the notion that BRI was acting as the agent for BRR when marketing the lots in Vietnam. Also acting as agent, it authorised its director Mr Turner to accept the deposit monies from the agents and then bank it into his own account. So, it follows that BRI was a relevant entity in nominating how the deposit was to be paid. [39] On the basis of this evidence I am satisfied that, contrary to the submissions of the Chief Executive, Mr Turner and BRI were agents for BRR because they were acting as licensees21 for the purposes of receiving the deposits on selling the lots. [40] In her submission in reply,22 the applicant relies on s 162(1) of the POA which requires a property developer to pay any part payment under a contract, deposit, to the public trustee, a law practice or property agent. Subsection (3) provides that a provision in a contract is void if part payment is otherwise than in accordance with subsection (1). [41] Therefore, by virtue of the provision in the contract (Item 7), the deposit was to be paid to Hickey Lawyers to comply with s 162 of the POA. Neither the developer, BRR, BRI or Mr Turner held a trust account. Therefore, BRR was not authorised to 17 Exhibit book page 66 [1.20]-[1.22]. 18 A table of the agents and appointment dates is in Exhibit 9 of the Exhibit Book page 227. 19 Exhibit Book page 179 – attached to these reasons. 20 My emphasis. 21 AFAA s 80 22 Dated 21 August 2024 and filed 21 August 2024 – Submission in reply. -- 9 of 14 -- 10 pay the deposit to itself, which it did (via Mr Turner), and acknowledged that by issuing receipts for the deposits23 even though the money was deposited to Mr Turner’s private bank account. The applicant submits the receipts are void because BRR had no authority to take the money, and if it did,24 in doing so offended s 162(3) of the POA. Therefore the receipts themselves have no probative value in determining that Mr Turner was representing BRR when receiving the deposit money. The effect of this is in truth, the applicant submits, that the recipient of the money is Mr Turner in his personal capacity. It also follows that as Mr Turner was the nominated person for the receipt of the deposit, he also contravened s 162(1) of the POA for failing to pay all the deposit money to Hickey Lawyers. [42] The applicant puts the submission as follows: BRR, BRI, Maxsen World Group, Maxsen World Queensland Limited, World Group LLC UK and Richard have directed payments to Richard Turner (and in circumstances Richard then to others such as the agents in Vietnam to pay their commissions from these monies), based on the void receipts such that Richard was a nominee i.e. agent (of BRI) in receiving amounts belonging to the claimants (s 206(1)(a) POA). He was not, and could not at law be, acting in his capacity as director of BRR (or only as a director) because significantly section 612 (1) POA (and we repeat what was said above due to its overriding importance here) required BRR as property developer to pay the monies to either (a) the public trustee, (b) a law practice or (c) property agent. As the monies were not paid to the public trustee or a law practice in the instance then the payment must be to a property agent (or someone purporting to be a property agent). Here that person was Richard for the purposes of the POA and in particular section 206(6) POA.25 [43] The allegation against Mr Turner, the central figure in these transactions, is that whether he was acting for any of the Maxsen companies, BRR or BRI, he was the one who received the deposit monies. There is no evidence the money ever went into an account operated by BRR or BRI. Small amounts went into the Hickey Lawyers trust account and in this particular case it was $1,000.00. He represented himself as the real estate agent, and a relevant person,26 in dealing with the agents in Vietnam, and buyers, who paid him the deposits and doing so at the behest of BRI or BRR. He was authorised to receive the deposit money and both companies knew it would be paid into his personal account and there, it seems, stayed or disappeared from those accounts operated by him. [44] In these circumstances, it is open to find that even athough he was a director of both companies, Mr Turner was acting as a person not licensed but was acting as a licensee because he was acting in a personal capacity in receiving the deposits. His being a director does not automatically clothe his actions as acting as agent for the companies. Although not deciding the point, Judicial Member Brabazon in David Hambleton as joint and several Liquidator of Sky 5 Pty Ltd and Ors v Tuxford (No 6)27 (‘Tuxford’) cast doubt on whether just because an individual was a director of a company, he could not be found to be a “relevant person” for the purposes of the AFAA. Although not 23 Exhibit Book pages 239-274. 24 Despite the issuing of receipts, there is no evidence that the deposits were actually paid into an account held by BRR. 25 Submission in response filed 21 August 2024 paragraph 2.2(f). 26 And therefore fell within the definition in s 80 AFAA. 27 [2012] QCATA 94 at [15]. -- 10 of 14 -- 11 deciding the point, he did refer to what the High Court said about companies and directors being separate entities in McLeod v R (2003) 214 CLR 230 at [25] of his reasons: “…a company has rights, interests and duties which differ from those of its directors, officers and members. The conduct or state of mind of the latter is not always to be attributed to the former; this is particularly evident upon an insolvent winding up.” (at para 28, Gleeson CJ, Gummow and Hayne JJ). “Even when the shares of a company are closely held for purposes (or interest) of the body corporate are not synonymous with the interests of the person or persons in control.” [45] In Tuxford the liquidator was trying to recover from the Claim Fund the company’s loss for benefit of creditors, which included the deposit holders, whereas the Chief Executive contended that it was the individuals who suffered the loss who had the right to claim and not the company. [46] There is an additional basis submitted to establish agency on the part of Mr Turner and/or BRR. They were both authorised by BRI with receiving the deposit on behalf of the trustee deposit holder, Hickey Lawyers. It is contended that the receipts for the deposits being void under s 162(3) of the POA, Mr Turner and BRR were receiving those monies as agent for Hickey Lawyers and in doing so were acting as if a licensee. It is submitted that: Section 206(1) and (6) POA specifically envisage a person who receives monies in a real estate transaction is in fact acting as if it was a licensee. The act of receiving and paying those monies to a trust account is a key part of such activity of a licensee and this is a main object of the AFAA (see ss 6,16 and 23).28 [47] It is evident from the wording of the correspondence and resolutions,29 it was intended that the deposit money be paid to the intermediaries and then to Hickey Lawyers. Therefore in terms of s 206(1) of the POA, Mr Turner was performing the activities of a licensee in receiving the money. Conclusion [48] Throughout this whole sorry saga, Mr Turner, as agent for BRI, the owner of the land and the ultimate beneficiary of the development had a legal obligation to pay any deposit money received from buyers to Hickey Lawyers. Similarly, BRR despite it being the developer, I find, consistent with the manner in which these transactions occurred, BBI was the agent for BRR in appointing the agents and directing agents to pay the deposits, via Mr Turner on behalf of BRR. Similarly, BRR was required to pay the deposits to Hickey Lawyers’ trust account. It did not. [49] I accept the submission of the applicant that it was Mr Turner who, being the mind and controlling entity of both companies, who organised the manner in which the development was to be sold, and the deposit monies received from unsuspecting purchasers. They falsely accounted for the monies by issuing sham receipts for deposits representing that the deposit money was paid to the Hickey Lawyers trust account. 28 Ibid paragraph 2.2(i). 29 Exhibit book page 103. -- 11 of 14 -- 12 [50] Both Mr Turner and BRR are relevant persons for the purposes of s 82(1)(g) of the AFAA. In fact, at all times, when it came to receiving the deposits, Mr Turner was acting in a personal capacity because the money was deposited into his personal account, and therefore acting as a licensee who would have a trust account (although he didn’t). Where the money ended up after that remains a mystery. Apart from any commissions paid to agents, only Mr Turner knows the full story about what happened to the deposit money. He has continuously failed to comply with directions for the filing of statements or evidence, which may have enlightened the Tribunal, before this matter was listed for a determination on the papers. [51] The applicant’s submission in reply at section 3 adequately sums up what has occurred here: What has become evident is that the more one finds, the more complex and convoluted the web was and is. There were and are many entities (real and fictitious) being used to discombobulate and conceal the real intent of what has gone on. Company names were used interchangeably (often in the same documents). That means theoretically there could be many more respondent companies and perhaps other legal persons. But there is one common element to it all and one mastermind and one major benefactor of the defalcation Mr. Richard William Turner… [52] To contend, as the Chief Executive does, that BRR was at all material times to be the recipient of the deposit money payable to Hickey Lawyers’ trust account, and therefore no agent or relevant person was involved in the transactions, oversimplifies the factual circumstances pertaining to the payments. Except for small amounts, the bulk of the deposit money was never paid to Hickey Lawyers. There is no evidence that BRR actually received the deposit money. What seems to be uncontroversial, is that the deposit money was paid to Mr Turner and deposited into his personal accounts. This eschews any argument that Mr Turner was acting solely in his capacity as a director for BRR otherwise it would have been paid into a BRR bank account. [53] Despite his being a director of both BRI and BRR, I find that Mr Turner was acting in a personal capacity in receiving the deposits from the purchasers of lots in the development. This is evidenced by the correspondence to the Vietnamese agents dated 16 June 2015. As such he is an agent and relevant person for the purposes of s 80 of the AFAA. It is also open to find that he was an agent for BRI, by reason of the fact that BRI was the agent for BRR in the development and sale of the lots. [54] I therefore propose to make the following orders: 1. The claim against the Claim Fund in the sum of $55,300.00 is allowed pursuant to sections 105 and 106 of the Agents Financial Administration Act 2014 (Qld). 2. At the expiration of the appeal period the Chief Executive must pay to the Applicant the sum of $55,300.00 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 Act 2014 (Qld). 3. Both Richard Turner and PBGC Pty Ltd ACN 167 460 317 (formerly known as BRR investments Pty Ltd ACN 167 460 317) are jointly and severely named as being liable for the financial loss of Thi Thuy Chau Bui (Cindy Tran) pursuant to section 105(3)(c) of the Agents Financial Administration Act 2014 (Qld). -- 12 of 14 -- 13 4. Upon payment from the Claim Fund both Richard Turner and PBGC Pty Ltd ACN 167 460 317 (formerly known as BRR investments Pty Ltd ACN 167 460 317) are jointly and severely liable to reimburse the Claim Fund by paying the sum of $55,300.00 to the Chief Executive, Department of Justice and Attorney- General, pursuant to section 106 and section 116 of the Agents Financial Administration Act 2014 (Qld). -- 13 of 14 -- 14 -- 14 of 14 --