Campaigntrack Victoria Pty Ltd v Gannon [2017] QCAT 272

CITATION: Campaigntrack Victoria Pty Ltd v Gary William Gannon & Ors [2016] QCAT 272 PARTIES: Campaigntrack Victoria Pty Ltd (Applicant) v Gary William Gannon Galacoast Pty Ltd (in liquidation) Galacoast Property Management Pty Ltd (in liquidation) (Respondents) APPLICATION NUMBER: OCL066-16 MATTER TYPE: Other civil dispute matters HEARING DATE: 20 June 2017 HEARD AT: Brisbane DECISION OF: Senior Member Brown DELIVERED ON: 17 August 2017 DELIVERED AT: Brisbane ORDERS MADE: 1. Upon payment by Gary William Gannon to the liquidator of Galacoast Pty Ltd and Galacoast Property Management Pty Ltd of the liquidator’s costs of production of documents in the amount of $2,587.75, the liquidator is to provide to Gary William Gannon copies of the documents listed in annexure “A” to these reasons. 2. Campaigntrack must provide to Gary William Gannon copies of the following documents: (a) Bank statements, receipts, invoices, cash books, journals and ledgers in the possession of, or under the control of, Campaigntrack which relate to amounts received from Gary Gannon, Galacoast Pty Ltd, Galacoast Property Management Pty Ltd, and/or Galacoast Mermaid Beach Pty Ltd in relation to any -- 1 of 16 -- 2 transactions or amounts claimed in, or otherwise the subject of, the Referral. 3. The documents referred to in order 1 must be provided within twenty one (21) days after payment by Gary William Gannon to the liquidator of the liquidator’s costs of production. 4. The documents referred to in order 2 must be provided within 21 days of the date of these orders. 5. The parties must file in the Tribunal two (2) copies and exchange one (1) copy of submissions in relation to costs addressing: (a) Any order for costs associated with the production of documents; (b) Any order for costs of the application sought by a party including the basis for such an order; (c) the assessment of costs including the basis of such assessment; (d) if costs are sought on an indemnity basis the submissions must attach a copy of any relevant costs agreement; and (e) fixing the costs, by: 4:00pm on 31 August 2017. 6. The parties must file in the Tribunal two (2) copies and exchange one (1) copy of submissions in response to any submissions delivered in accordance with order 5, by: 4:00pm on 7 September 2017. 7. The question of costs will be determined by the Tribunal on the basis of the written submissions by the parties and without an oral hearing not before: -- 2 of 16 -- 3 4:00pm on 7 September 2017. CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – DISCOVERY AND INTERROGATORIES – DISCOVERY AND INSPECTION OF DOCUMENTS – DISCOVERY OF DOCUMENTS – DISCRETION OF COURT AND POWER TO ORDER – where claim made against the claim fund – where order sought for disclosure of relevant documents – application of s 62(3) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) – whether in the interests of justice to order disclosure Agents Financial Administration Act 2014 (Qld), s 116(4), s 116(5) Property Agents and Motor Dealers Act 2000 (Qld), s 378(2), s 379, s 470(1)(a), s 488(3)(a)(i), s 490(2), a 490(3) Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 62(3), s 62(4), s 62(5), s 63(1), s 63(2), s 63(3), s 63(4) Uniform Civil Procedure Rules 1999 (Qld) Cannon & Anor v Saunders [2017] QCATA 004 Waratah Coal Pty Ltd v Nicholls & Anor [2013] QSC 68 APPEARANCES: APPLICANT: Dr E Peden instructed by McLean & Associates RESPONDENT: Mr J Green instructed by Ramsden Lawyers REASONS FOR DECISION [1] Campaigntrack arranges advertising for real estate agents. Galacoast and Galacoast Property Management operated two real estate agencies on the Gold Coast. Campaigntrack undertook advertising placements for Galacoast and Galacoast Property Management by booking and paying for advertisements. Campaigntrack says that it was not paid for its services and has lodged a claim against the claim fund originally set up under the Property Agents and Motor Dealers Act 2000 (Qld) (“PAMDA”) in respect of the monies it is owned by Galacoast and Galacoast Commercial. The claim is also made against Mr Gannon, a former director of Galacoast and Galacoast Property Management. -- 3 of 16 -- 4 [2] The Chief Executive of the Office of Fair Trading has referred the claim by Campaigntrack to the Tribunal.1 The respondents have applied to the Tribunal seeking orders for the disclosure of documents by Campaigntrack. The documents sought by the respondents [3] The application seeks the disclosure by Campaigntrack of: a) Campaigntrack’s bank statements, receipts, or any other financial records which record amounts it received from any of the licensees between on or about 31 July 2009 and on or about 25 May 2011; b) Bank statements, receipts, and other financial records of the licensees recording payments made to Campaigntrack between on or about 31 July 2009 and 25 May 2011; c) All documents in relation to the Deed of Acknowledgement of Debt between on or about 31 July 2009 and 25 May 2011. [4] The application, further or in the alternative, seeks the production by the liquidators of Galacoast and Galacoast Property Management of: a) Bank statements, receipts, and any other financial records recording payments made to Campaigntrack between on or about 31 July 2009 and 25 May 2011; b) All documents in relation to the Deed of Acknowledgement of Debt between on or about 1 July 2009 and 25 May 2011; c) Any documents recording amounts or expenses incurred by the licensees for their clients, including receipts for such expenses between on or about 31 July 2009 and 25 May 2011. [5] The ‘licensees’ are identified in the application as: … all licensees alleged by … Campaigntrack … to have engaged in the conduct giving rise to its purported claim against the fund, including: Gary Gannon Galacoast Pty Ltd (in liquidation) Galacoast Property Management (in liquidation) Galacoast Mermaid Beach Pty Ltd (deregistered) Galacoast Commercial Pty Ltd (deregistered) [6] ‘Financial records’ are identified in the application as including: MYOB account ledgers, any other ledgers, journals, cash book records, banking records, debtor records and receipts and tax invoices in relation to Mr Gary Gannon or the licensees. 1 Referral of a matter filed 7 November 2016. -- 4 of 16 -- 5 The background to the dispute [7] Campaigntrack owns software for the creation of real estate advertising. It licences the software to real estate agents throughout Australia. Campaigntrack also places advertising in various publications on behalf of those agents using its software.2 [8] Prior to the incorporation of Campaigntrack in 2010, the computing platform in which the software ran was operated through WDA Group Pty Ltd.3 Ray White Broadbeach and Ray White Mermaid Beach (‘the agencies’) were clients of WDA and subsequently became clients of Campaigntrack and were licensed to operate the software. Galacoast and Galacoast Property Management were the registered proprietors of Ray White Broadbeach.4 [9] Galacoast and Galacoast Property Management became indebted to WDA in respect of unpaid media placement services. A Deed of Acknowledgment of Debt was entered into between WDA, Galacoast, Galacoast Property Management and Mr Gannon.5 Mr Gannon was a director of Galacoast and Galacoast Property Management.6 The amount of the debt was $296,668.77. The debt included amounts invoiced by WDA to Ray White (Mermaid Beach).7 By the terms of the Deed, the entirety of the debt was required to be repaid by September 2009.8 The circumstances of the entering into, and the fact of, the Deed are relevant say the respondents to the present application and the claim by Campaigntrack. [10] Campaigntrack placed advertisements on behalf of, and at the request of the agencies between September 2010 and December 2010.9 Campaigntrack says that ‘significant payments’ were received from Galacoast up until December 2010 and that it had no reason to suspect that further payments would not be forthcoming.10 [11] It was in December 2010, says Campaigntrack, that it became aware of the appointment of receivers and managers to Galacoast.11 Receivers and Managers for Galacoast and Galacoast Property Management were appointed on 21 December 2010 and a liquidator was appointed on 23 May 2011.12 2 Affidavit of Dirk Williams dated 11 January 2013, [2]. 3 Ibid, [3]–[4]. 4 Deed of Acknowledgment of Debt dated 31 July 2009, [A]. 5 Ibid. 6 Affidavit of Gary William Gannon sworn 19 June 2017, [3]–[5]. 7 Deed of Acknowledgment of Debt dated 31 July 2009, [1.2]. 8 Ibid, [2.1.2]. 9 Affidavit of Dirk Williams dated 11 January 2013, [8]. 10 Ibid, [14]. 11 Ibid, [20]. 12 Affidavit of Gary William Gannon sworn 19 June 2017, [6] and [9]. -- 5 of 16 -- 6 What the parties say in this application [12] Mr Gannon says that the documents he seeks are directly relevant to a number of issues in dispute in the proceeding: a) The extent, if any, of the indebtedness of the licensees to Campaigntrack; b) The extent to which Campaigntrack’s claim may amount to ‘double recovery’; c) The ground raised in Mr Gannon’s response that amounts received from clients of the licensees were amounts payable to refund expenses incurred on their behalf for which the licensees held a receipt; d) The knowledge, neglect and default, of Campaigntrack in respect of the alleged contraventions by the licensees of the PAMDA. [13] Mr Gannon says that all books and records relating to the licensees were provided to the liquidators and are not in his possession or power. Mr Gannon says that he will be prevented from properly defending his claim and denied procedural fairness if the order for the production of the documents is not made. [14] Campaigntrack says that it has voluntarily disclosed redacted copies of bank statements for the entire relevant period in which it held a bank account.13 Campaigntrack says that the discretion to order the production of documents should not be exercised in circumstances where the request made is irregular, premature, onerous and seeks documents irrelevant to the proceedings.14 [15] Campaigntrack says that Mr Gannon has failed to comply with the directions made by the Tribunal to file his statements of evidence.15 As such, Mr Gannon has failed to put any matter in issue which could give rise to the orders sought by Mr Gannon. [16] Campaigntrack says that Mr Gannon is seeking documents in his own possession and for the purpose of preparing his evidence in chief. It says that the scope of the documents sought is excessively broad and onerous and includes documents relevant to entities who are not parties to the proceedings and documents predating the incorporation of Campaigntrack. Finally, says Campaigntrack, Mr Gannon seeks disclosure of documents relevant to the Deed of Acknowledgment of Debt, to which Campaigntrack was not a party and seemingly on the basis that the Deed was contained in the material filed with the Referral.16 13 Applicant submissions filed 16 June 2017, [8]. 14 Ibid, [12]. 15 Directions made 21 December 2016. 16 Applicant submissions filed 16 June 2017, [15] and [16]. -- 6 of 16 -- 7 Discussion [17] The Tribunal may give a direction requiring a party to a proceeding to produce a document.17 A party must comply with a direction to a produce a document within the time stated in the direction unless there is a valid claim to privilege from disclosure.18 [18] The Tribunal may order a person who is not a party to a proceeding to produce a document which the person has, or is likely to have, in their possession or control.19 The person must comply with the order within the time stated in the order unless there is a valid claim to privilege from disclosure.20 The Tribunal must consider whether it is appropriate to make an order requiring the party seeking the document to pay the costs of producing the document.21 [19] The Appeal Tribunal has said about the application of s 62(3) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“QCAT Act”) (footnotes omitted):22 Section 62(3) of the QCAT Act provides for an order for provision of a document or thing by a party. … It is well established that documents will only be directed to be produced where they are described with particularity, and have demonstrated direct relevance to the issues in dispute. Parties are not allowed to use disclosure applications to engage in ‘fishing expeditions’ to seek to obtain possible evidence. The relevant factors in considering an application for production of documents in the Tribunal was considered in Gogolka and Anor v Queensland Building Services Authority. That matter involved production by a third party, but similar considerations apply between parties. The Queensland Supreme Court decision in Uthmann v Ipswich City Council was applied, where Lee J summarised the principles as follows: “It is not possible to lay down a procedure or guidelines for all cases as Miss Osborne submitted. Various requirements were outlined in Lebon v. Lake Placid Resort Pty Ltd and in other authorities therein referred to. However, from this case the following general principles have emerged: (1) The procedure cannot be used if its only purpose is to engage in a purely fishing expedition. (2) Documents sought must be shown by the issuer of the writ to probably relate to a matter in question in the cause. This “matter” is usually demonstrated by the pleadings and/or particulars but may in some cases be shown in some other way. 17 QCAT Act, s 62(3). 18 Ibid, s 62(4) and (5). 19 Ibid, s 63(1). 20 Ibid, s 63(2) and (3). 21 Ibid, s 63(4). 22 Cannon & Anor v Saunders [2017] QCATA 004, [26]-[28]. -- 7 of 16 -- 8 (3) The issuer of a writ must demand production only of specific documents which would be the subject of a subpoena duces tecum at the trial, which he can show are probably in the possession or control of the third party and which probably relate to a matter in question in the cause. If this is not done, the issuer of the writ may be at risk as to costs if an application is brought to the Court by either party. (4) The issuer of the writ must formally give sufficient information in writing to enable the third party to make an informed decision. If this is not done, the issuer of the writ may again be at risk as to costs if an application is brought to the Court. (5) The third party must independently be satisfied that the documents relate to a matter in question in the cause, before they are produced. (6) If the third party produces demanded documents which relate to a matter in question in the cause, the third party is probably protected although this should be clarified by amendment. (7) If the third party is of the view that the documents do not relate to a matter in question in the cause or if there is a doubt in relation to it or if there is any other proper basis for objection to produce the documents whether on the ground of privilege or on a discretionary basis or otherwise, the third party should prudently apply to the Court for an order. (8) The Court has a discretion whether or not to order production or the extent of it, but if the rules are complied with, an order for production will usually be made having regard to the purpose of the procedure which is to assist the administration of justice by minimising costs and facilitating the disclosure of information which would advance fair determination of the issue as early as possible. If production is ordered, the Court may impose conditions and require undertakings to meet the individual circumstances. (9) If the person who issues the writ is permitted to adduce further evidence at the hearing in order to sustain the order sought, and the third party has no prior notice of it, this may be relevant to the question of costs of the application. (10) There is no reason why before any application is brought to the Court, there should not be dialogue between the third party and the person who issues the writ for clarification or to state grounds of objection. The person who issues the writ may then satisfy the third party in writing, or might desist if the objections raised are accepted.” [20] In Waratah Coal Pty Ltd v Nicholls & Anor23 Applegarth J, in the context of judicial review proceedings, observed: There is no entitlement to disclosure in an application of the present kind. But specific disclosure will be ordered in an appropriate case if to do so is in the interests of justice and if it facilitates the just and expeditious resolution of the real issues in the proceedings at a minimum of expense. If a case is made out for disclosure, then a suitably-tailored order usually should be made, rather than simply expect disclosure to be made in accordance with Part 1 of Chapter 7. One reason is that in a proceeding where there are no pleadings there may be scope for unnecessary disputes and misunderstandings about 23 [2013] QSC 68, 33 [133]. -- 8 of 16 -- 9 whether a document is “directly relevant to a matter in issue in the proceeding.” Another is that in any case in which disclosure is ordered, its scope should be defined and not be excessively wide. [21] Section 62(3) of the QCAT Act is expressed in quite different terms to rule 211(1) of the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”). Disclosure is an express obligation under the UCPR. There is no such obligation under the QCAT Act. The Tribunal may exercise a discretion to order a party to disclose specified documents. The obligation to disclose under the UCPR is limited to documents in the possession or under the control of a party to a proceeding and which are directly relevant to an allegation in issue in the pleadings and, if there are no pleadings, directly relevant to a matter in issue in the proceeding. The discretion to order disclosure of documents is not circumscribed by s 62(3) of the QCAT Act. The exercise of the discretion to order disclosure must however be exercised judicially and consistent with the context in which the statutory power is found and the objects of the QCAT Act. [22] Echoing the words of Applegarth J, specific disclosure will be ordered in an appropriate case if it is in the interests of justice to do so and if it facilitates the just and expeditious resolution of the real issues in the proceedings at a minimum of expense. These words reflect the general directions power found in s 62(1) of the QCAT Act which is to be exercised to ensure the speedy and fair conduct of the proceeding. The words also reflect the objects of the QCAT Act which include dealing with matters in a way that is accessible, fair, just, economical, informal and quick.24 [23] The claim by Campaigntrack is one against the fund founded on the respondents’ alleged contravention of Chapter 12, Part 1 and s 573 of the PAMDA. The claim is made by way of a referral by the Chief Executive of the Office of Fair Trading. [24] The referral alleges that: a) The licensee failed to create and establish trust accounts in relation to certain transactions and failed to pay money into the licensee’s general trust account; b) The licensee failed to provide payment to Campaigntrack within 14 days after receiving a request for payment, or at all; c) The licensee ignored its authorisation to pay expenses from amounts held in trust as and when they became payable; d) The licensee failed to account to and pay Campaigntrack amounts properly due and payable by it pursuant to a contract between the licensee and Campaigntrack. [25] The referral sets out particulars of 110 separate breaches by the licensees of their obligations under the PAMDA. Attached to the referral are a large 24 QCAT Act, s 3(b). -- 9 of 16 -- 10 number of documents including copies of various ledgers, account transaction details and property sales advertisements. Also attached are copies of various other documents including letters from the solicitors for Campaigntrack to the Chief Executive, ASIC searches and affidavit material. [26] As is the usual practice when matters are referred to the Tribunal by the Chief Executive, the documents are not exhaustively referenced in the referral although there are general references to the various journals and ledger reports. [27] The response denies generally the allegations contained in the referral and says, inter alia, that: a) Campaigntrack has failed to disclose copies of the written directions from the clients of the licensees in relation to advertising and marketing; b) Any monies received by the licensees was not an ‘amount’ for the purposes of s 378(1) of the PAMDA; c) It was not uncommon for Mr Gannon to pay expenses on behalf of clients, including Campaigntrack invoices, prior to being placed in funds for such expenses; d) Mr Gannon does not hold copies of any documents relevant to the determination of the question whether payments to the licensees were ‘amounts’ for the purposes of s 378(1) of the PAMDA; e) There is no evidence that the monies referred to in the claim were trust monies or required to be paid into trust or invested; [28] The liquidator has not filed a response to the Referral. Mr Gannon is the only respondent who has filed a response or actively engaged in the proceeding. [29] The practical consequences of an outcome in this proceeding may include a finding that some or all of the respondents are liable for Campaigntrack’s loss. If there is such a finding, and following a payment from the fund, the Chief Executive may take steps to recover from a respondent any amount paid from the fund.25 The outcome of this proceeding may result in a finding that Mr Gannon is liable for some or all of the claimed loss suffered by Campaigntrack. If there is a payment from the fund, Mr Gannon may be liable to reimburse the fund either in his personal capacity or as a director of one or both of the other respondents.26 [30] I accept that Mr Gannon does not have access to the books and records of Galacoast and Galacoast Property Management and I accept that Mr Gannon will be unable to effectively respond to the Referral and prepare his 25 See PAMDA, s 490(3); Agents Financial Administration Act 2014 (Qld), s 116(5). 26 See PAMDA, s 490(2); Agents Financial Administration Act 2014 (Qld), s 116(4). -- 10 of 16 -- 11 statements of evidence in the absence of access to documents relevant to the matters in issue. [31] The application seeks disclosure of documents relating to a number of individuals and entities collectively identified in the application as ‘licensees’. Two deregistered companies, Galacoast Mermaid Beach Pty Ltd and Galacoast Commercial Pty Ltd, who are not named as respondents in the Referral, are identified in the application for disclosure as ‘licensees’. In his submissions, Mr Gannon says that Galacoast and Galacoast Property Management were the entities through which he conducted his real estate businesses.27 Mr Gannon says Galacoast Mermaid Beach and Galacoast Commercial are relevant entities in the proceedings: Campaigntrack has also included numerous financial records of the licensees in support of its Statement of Claim, including documents referring to ‘Galacoast Mermaid Beach Pty Ltd’ and ‘Galacoast Commercial Pty Ltd’. It is not entirely clear how Campaigntrack obtained such documents, however to the extent it has financial records and other documents which are relevant to the issues at hand, they ought to be disclosed. Campaigntrack has not clearly indicated that it does not hold documents of the kind Mr Gannon seeks.28 [32] Campaigntrack says that its claim includes no allegations in relation to Galacoast Mermaid Beach Pty Ltd and Galacoast Commercial Pty Ltd. Part 4 of the statement of claim attached to the Referral sets out a ‘General Summary’ of the claim by Campaigntrack. The general summary identifies the alleged breaches by the ‘licensee’ of Chapter 12, Part 1 of the PAMDA. Apart from the general reference to ‘the licensee’, the statement of claim does not identify the alleged breaches by reference to a specific respondent. The statement of claim then sets out, under the headings ‘Broadbeach MYOB’, ‘Broadbeach Trust Account’, ‘Mermaid Beach MYOB’, ‘Mermaid Beach Trust Account’, ‘Failure to account for advertising on the licensee’s own personal property’, and ‘Failure to account at all – unable to locate any records’, the specific details of each alleged breach by the respondents of the PAMDA. Attached to the referral are a number of documents including various ledgers. [33] Most, but not all, of the specific details of each of the alleged breaches set out in the statement of claim reference the various ledgers attached to the Referral. At least seven (7) specific breaches relied upon in the Referral relate to ledgers in the name of Galacoast Mermaid Beach Pty Ltd. Presumably, although this is not made clear in the Referral, it is alleged that Mr Gannon is personally liable for some or all of the alleged breaches including those relating to Galacoast Mermaid Beach Pty Ltd. It seems to me therefore that documents relating to Galacoast Mermaid Beach Pty Ltd are relevant to matters in issue in the proceeding. [34] The only reference to Galacoast Commercial Pty Ltd in the Referral and attached documents is contained in a Media Management Application 27 Respondent submissions filed 20 June 2017, [3]. 28 Ibid, [18]. -- 11 of 16 -- 12 Form29 by which it appears Galacoast Commercial Pty Ltd made a credit application to WDA Group Pty Ltd. In the absence of a more compelling argument by Mr Gannon, I do not consider Galacoast Commercial Pty Ltd is an entity relevant in the proceeding. [35] The documents sought by Mr Gannon relate to the period from 1 July 2009 to 25 May 2011. The later date is that on which the liquidators were appointed to Galacoast and Galacoast Property Management. The earlier date is that on which the Deed of Acknowledgement of Debt was entered into. Mr Gannon says that Campaigntrack was aware that Galacoast and Galacoast Property Management had defaulted under the Deed30 and that Campaigntrack knew of the debt the subject of the Deed and that some or all of its losses was due to its own neglect or default in continuing to trade with Galacoast and Galacoast Property Management despite knowing of their financial difficulties.31 [36] In his response, Mr Gannon says: Lastly and without any admission, the respondent reserves its right to submit by way of an amended response, or hearing submissions, that the Tribunal ought to disallow the Claim in any event on the basis that the applicant might reasonably have received or recovered the monies allegedly owing to it if not for its neglect or default pursuant to 488(3)(a)(i) of PAMDA.32 [37] In deciding a claim against the fund, the Tribunal must, if it allows the claim, take into account any amount a claimant might reasonably have received or recovered if not for the claimant’s neglect or default.33 [38] Mr Gannon reserves his rights to rely upon s 488(3)(a)(i) of the PAMDA. He does not expressly rely upon the section. Until such time as he does expressly rely upon s 488(3)(a)(i) (which will require leave to amend the response) any matters relating to the Deed and the actions of Campaigntrack relating to the Deed or any conduct which may be relevant to s 488(3)(a)(i) are not, in my view, in issue. No doubt the submissions by Campaigntrack that it was not a party to the Deed, it having been entered into before Campaigntrack was incorporated, is likely to be raised in any application to amend the response to expressly rely upon s 488(3)(a)(i). [39] The documents sought by Mr Gannon from Campaigntrack include bank statements, receipts or any Financial Records which record: a) amount(s) Campaigntrack received from any of the licensees; and b) payments made to Campaigntrack; [40] In his response Mr Gannon says that the Referral does not refer to any material facts or evidence that the alleged amounts he received from clients 29 Bundle of documents attached to the Referral, 325. 30 Respondent submissions filed 20 June 2017, [21]. 31 Ibid, [22]. 32 Response, [6] 33 PAMDA, s 488(3)(a)(i). -- 12 of 16 -- 13 were anything other than amounts payable to him in relation to transactions in refund of expenses the respondents were authorised to incur, and did incur, and for which they held a receipt pursuant to s 378(2)(b) of the PAMDA.34 [41] A licensee is required to pay an ‘amount’ it receives to the licensee’s general trust account or to invest the amount.35 An ‘amount’ is an amount received by a licensee for a transaction and includes deposit and purchase monies for the transaction. An ‘amount’ does not include an amount payable to the licensee in relation to the transaction in refund of an expense the licensee was authorised to incur and did incur and for which the licensee holds a receipt.36 Section 379 of the PAMDA is contained within Chapter 12 Part 1. A person may claim against the fund for a contravention of Chapter 12 Part 1.37 A person may also claim against the fund for a contravention of s 573 of the PAMDA. Section 573 is concerned with the dishonest conversion of an amount by a licensee to its own or someone else’s use, or dishonestly rendering an account of the amount knowing it to be false in a material particular. [42] Section 385(2) of the PAMDA permits a licensee to draw an amount from a trust account in payment of a transaction expense when the expense becomes payable and when the transaction is finalised. Section 385(4) of the PAMDA requires a licensee to pay an amount from trust to the person entitled in accordance with the person’s written direction. By s 383 of the PAMDA, trust monies cannot be used to pay creditors of the licensee including pursuant to a court order. [43] The statement of claim alleges breaches by the respondents of s 378, s 379, s 383, s 385(2), s 385(4) and s 573 of the PAMDA. All of the alleged breaches relate to amounts alleged to have been received by the respondents from various parties for the purpose of paying to Campaigntrack advertising expenses relating to property sales. [44] There are a number of matters in issue in the proceeding. One issue is when monies were received by the respondents from various clients and for what purpose. Mr Gannon says that monies were received by the licensees from clients in reimbursement of expenses paid by the licensees including for advertising expenses. If in fact monies were paid by the licensees to Campaigntrack for advertising expenses and in relation to such expense the licensees were reimbursed by a client, such an amount would arguably not be an ‘amount’ for the purposes of s 378 of the PAMDA. It is in issue whether the licensees were required to pay some or all of amounts received from clients to Campaigntrack for advertising expenses. There is an issue as to whether and when amounts were paid by the licensees to Campaigntrack for advertising expenses. Mr Gannon says there is evidence 34 Response, [5(g)]. 35 PAMDA, s 379. 36 Ibid, s 378(2). 37 Ibid, s 470(1)(a). -- 13 of 16 -- 14 to suggest that payments were made by the licensees to Campaigntrack in respect of the advertising expenses the subject of the referral.38 [45] I do not accept the submission by Campaigntrack that the application by Mr Gannon is premature. It is not, as Campaigntrack asserts, the statements of evidence to be relied upon by Mr Gannon that will establish the matters in issue. The matters in issue have been established on the basis of the matters set out in the Referral and the response by Mr Gannon. It may be that once all of the statements of evidence are filed, additional matters in issue will arise. At this stage of the proceeding however Mr Gannon is entitled to know the full details of the claim he is required to meet. This includes, before he files his statements of evidence, having access to relevant documents. Mr Gannon does not have these documents. The only way in which he can obtain these documents is through disclosure by both Campaigntrack and the liquidator of the other respondents. I do not accept the submission by Campaigntrack that if Mr Gannon intends to assert that any of the amounts included in the claim have in fact been paid, the appropriate approach would be for any such assertion to be dealt with by Campaigntrack in evidence in reply. I accept that Mr Gannon is unable to comprehensively respond to the claim without having access to the documents sought that are relevant to the matters in issue. It is in the interests of justice and the just and expeditious resolution of the matter for the matters in dispute to be addressed in the statements of evidence to be relied upon by Mr Gannon. Campaigntrack will have the opportunity to respond to that evidence. [46] It is in the interests of justice for an order to be made requiring the production of documents to Mr Gannon that will enable him to properly respond to the claim and prepare his statements of evidence. [47] For the reasons I have set out, I decline to make any orders relating to disclosure of documents by either Campaigntrack or the liquidator relevant to the Deed of Acknowledgement of Debt. [48] The liquidator of Galacoast and Galacoast Property Management has advised Mr Gannon’s legal representatives that he is prepared to provide disclosure of the documents sought by Mr Gannon or at least those documents in the liquidator’s possession. In correspondence to Mr Gannon’s legal representatives, the liquidator has not raised any objection to the production of documents for the period from 1 August 2009 to 20 August 2010.39 I do not understand Mr Gannon to assert that there are documents other than those identified in the correspondence from the liquidator to his solicitors he seeks disclosure of, nor do I understand Mr Gannon to dispute that the documents identified by the liquidator constitute the totality of the relevant documents held by the liquidator. Accordingly, I will order that, upon payment by Mr Gannon to the liquidator of the liquidator’s costs of production of $2,587.75, the liquidator is to provide to 38 Affidavit of Gary William Gannon sworn 19 June 2017, annexure ‘C’. 39 Correspondence Dissolve to Ramsden Lawyers, 16 June 2017. -- 14 of 16 -- 15 Mr Gannon copies of the documents as listed in annexure “A” to these reasons and the orders made. [49] The order I propose to make for the disclosure of documents by Campaigntrack does not seek to separate out Campaigntrack’s documents and the licensees’ documents. Rather, the order requires the disclosure by Campaigntrack of all relevant documents held by, or under the control of, Campaigntrack relating to the amounts claimed in the Referral or the transactions the subject of the Referral. Campaigntrack says that it has already provided to Mr Gannon redacted copies of some documents. Obviously, if it has already made partial disclosure, Campaigntrack is not required to do so again. [50] Mr Gannon seeks his costs of the application. I will order that the parties file and exchange submissions on costs within 14 days. The submissions must address both the costs of the application and the costs of disclosing the documents. [51] I order as follows: 1. Upon payment by Gary William Gannon to the liquidator of Galacoast Pty Ltd and Galacoast Property Management Pty Ltd of the liquidator’s costs of production of documents in the amount of $2,587.75, the liquidator is to provide to Gary William Gannon copies of the documents listed in annexure “A” to these reasons. 2. Campaigntrack must provide to Gary William Gannon copies of the following documents: (a) Bank statements, receipts, invoices, cash books, journals and ledgers in the possession of, or under the control of, Campaigntrack which relate to amounts received from Gary Gannon, Galacoast Pty Ltd, Galacoast Property Management Pty Ltd, and/or Galacoast Mermaid Beach Pty Ltd in relation to any transactions or amounts claimed in, or otherwise the subject of, the Referral. 3. The documents referred to in order 1 must be provided within twenty one (21) days after payment by Gary William Gannon to the liquidator of the liquidator’s costs of production. 4. The documents referred to in order 2 must be provided within 21 days of the date of these orders. 5. The parties must file in the Tribunal two (2) copies and exchange one (1) copy of submissions in relation to costs addressing: (a) Any order for costs associated with the production of documents; (b) Any order for costs of the application sought by a party including the basis for such an order; -- 15 of 16 -- 16 (c) the assessment of costs including the basis of such assessment; (d) if costs are sought on an indemnity basis the submissions must attach a copy of any relevant costs agreement; and (e) fixing the costs, by: 4:00pm on 31 August 2017. 6. The parties must file in the Tribunal two (2) copies and exchange one (1) copy of submissions in response to any submissions delivered in accordance with order 5, by: 4:00pm on 7 September 2017. 7. The question of costs will be determined by the Tribunal on the basis of the written submissions by the parties and without an oral hearing not before: 4:00pm on 7 September 2017. -- 16 of 16 --