Ferraro v Griffin National Real Estate Pty Ltd & Constable [2016] QCAT 11

CITATION: Ferraro v Griffin National Real Estate Pty Ltd & Constable [2016] QCAT 11 PARTIES: Catherine Ferraro (Applicant) v Griffin National Real Estate Pty Ltd Jolyon Robert Constable (Respondents) APPLICATION NUMBER: OCL047-15 MATTER TYPE: Other civil dispute matters HEARING DATE: 8 December 2015 HEARD AT: Brisbane DECISION OF: Member Gordon DELIVERED ON: 6 January 2016 DELIVERED AT: Brisbane ORDERS MADE: The application by Griffin National Real Estate Pty Ltd and Jolyon Robert Constable filed on 9 October 2015 (seeking a dismissal of the proceedings) fails and the matter shall proceed. CATCHWORDS: Application to dismiss claim as lacking in substance followed the death of one of the parties Agents Financial Administration Act 2014 (Qld) APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). REASONS FOR DECISION [1] On 9 October 2015 Griffin National Real Estate Pty Ltd and Jolyon Constable applied to have these proceedings dismissed because they were no longer capable of proof following the death of one of the applicants. -- 1 of 3 -- 2 [2] On 8 December 2015 I decided that the application to dismiss did not succeed and made an order accordingly. Griffin National Real Estate and Mr Constable now ask for reasons for that decision. [3] The proceedings arise from a claim made by Battista and Catherine Ferraro against the Claim Fund operated by the Office of Fair Trading. The claim concerned rent money paid by their tenants which had not reached their joint bank account. Griffin National Real Estate Pty Ltd managed the tenancy and Jolyon Constable was the licensee. The claim was for about $40,800. [4] It seems to be common ground between the two sides (without making a binding finding to that effect) that the tenants paid the rent moneys to Griffin National and Griffin National paid them into a bank account which is now known to be the bank account of W. [5] Griffin National say that W’s bank details were in fact given to them by Mr Ferraro. They say that W was known to Mr Ferraro. The suggestion is that Mr Ferraro (also acting on Mrs Ferraro’s behalf) wanted to divert the rent money to W for one reason or another. They say therefore that the rent money actually went into the account that were instructed to pay it to. [6] One important issue in the case is whether Mr Ferraro did in fact give W’s bank details to Griffin National. This is in dispute. [7] Further it is said on Mrs Ferraro’s behalf that Griffin National should have used existing bank details which they and/or their employee were aware of from previous dealings. Also it is said that they should have realised that W’s bank was not at Westpac which they knew was where Mrs and Mrs Ferraro had their joint account, and so they should have checked whether the bank details were correct. On this basis the Applicant says that Griffin National are responsible for the money going into the wrong account. [8] W has paid back some of the money and may be continuing to make repayments. [9] If Mr and Mrs Ferraro suffered financial loss because Griffin National Real Estate Pty Ltd or Jolyon Constable committed a prescribed event (in this case failing to remit rent moneys to the person entitled to it or in accordance with that person’s written directions) then they may be ordered to repay such money as remains unpaid by W. [10] On 24 September 2015 Battista Ferraro died. On 13 October 2015 the Tribunal made an order removing him from the proceedings. Effectively the proceedings continued with Catherine Ferraro as the only Applicant. [11] One of the bases on which the application to dismiss is made is because of the death of Battista Ferraro. It is said that Mrs Ferraro is not going to be able to prove her case on the issues which are apparent on the question of liability, and also she is also not going to be able to prove any loss. -- 2 of 3 -- 3 [12] This overlooks the fact that in civil claims an applicant only needs to prove a case on the balance of probabilities, that is to say the facts of the case do not need to be proved absolutely. It is sufficient to prove that they are more likely to have happened than not to have happened. [13] It also overlooks that where facts cannot be proved from direct evidence given by a witness they can be proved in other ways. One way is by hearsay evidence. One type of hearsay evidence is an oral or written statement coming from the person who cannot be called as a witness. In this case there is certainly material on the Tribunal’s file suggesting that the facts of the case were discussed between Mr Ferraro and his daughter. What was said in those conversations by Mr Ferraro has been put in evidence by his daughter and is probably admissible in the Tribunal proceedings. In addition to this, the facts of the matter and the evidence of both sides was fully aired prior to Mr Ferraro’s death and is available in the documentation provided by the Chief Executive of the Office of Fair Trading to the Tribunal in the referral. Amongst the documents is a statement dealing with the facts in dispute which appears to be signed by Mr Ferraro. This document would probably be admissible in evidence in the Tribunal proceedings. [14] Another way to prove facts is by documents created at the time of the events concerned. These are generally admitted in evidence. There are a number of documents on the file which appear to be relevant to the issues to be decided by the Tribunal. [15] In addition to the above, where necessary and permissible, facts can be inferred by the Tribunal. Again no direct proof is required. [16] In almost every case therefore it would be quite wrong and unfair to a party to strike out their case merely because one of the parties or an important witness had died. In this particular case there is no reason to approach the matter any differently. [17] Another basis relied on to support the application to dismiss the claim is that the recipient of the money had agreed to repay the money and therefore, it is said, there was no loss. Reference is made to section 105(3)(i) of the Agents Financial Administration Act 2014 (Qld) which requires the Tribunal to take into account any amount the claimant might reasonably have received or recovered if not for the claimant’s neglect or default. The difficulty with this argument is that it would appear that currently only some of the money has been repaid, and the Tribunal is going to have to decide whether any deduction for money which might be paid in the future ought to be made under section 105(3)(i). The answer to this is not obvious and a hearing will be required to resolve it. -- 3 of 3 --