Brisbane City Student Accommodation Pty Ltd and Ors v Department of Employment, Economic Development & Innovation [2012] QCAT 644

CITATION: Brisbane City Student Accommodation Pty Ltd and Ors v Department of Employment, Economic Development & Innovation [2012] QCAT 644 PARTIES: Brisbane City Student Accommodation Pty Ltd Kerrie Lush Richard Arbon John Shaw Danny Little v Department of Employment, Economic Development & Innovation APPLICATION NUMBER: GAR245-12 MATTER TYPE: General administrative review matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Peta Stilgoe, Senior Member DELIVERED ON: 17 December 2012 DELIVERED AT: Brisbane ORDERS MADE: 1. The decision of the Chief Executive dated 5 June 2012 is set aside CATCHWORDS: RESIDENTIAL LETTING AGENT – claim on the fund – where agent let rooms within the lot – whether a letting agent – where letting agency assigned – where clause in appointment referred to “permitted assigns” – whether assignment valid – whether agent validly appointed – where specific regime to recover payments made when there is not appointment – whether receipt of commissions in breach of PAMDA is an event giving rise to a claim on the fund Property Agents and Motor Dealers Act 2000, ss 10, 111, 115A, 117, 118, 470, 488, 490(2) Property Law Act 1974, s 199 -- 1 of 5 -- 2 Elfbest Pty Ltd v Dynan and Anor [2012] QCATA 7 Oakhill Property Group Pty Ltd and GB Communications Pty Ltd v Beverley [2006] QCCTPAMD 23 APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009. REASONS FOR DECISION [1] On 5 June 2012, a delegate of the Chief Executive of the Department allowed a claim against the fund submitted by Tina Woehle. The claim arose from Brisbane City Student Accommodation’s activities as a residential letting agent for the Shaftson University Mansions. The Department found that Brisbane City Student Accommodation acted without a valid appointment as agent. Although Ms Woehle claimed $8,363.97, the claim was allowed at only $4,983.18. [2] Brisbane City Student Accommodation has applied for a review of that decision. It says that it did not need an appointment as agent because it was providing rooming accommodation, not the letting of a lot. If it did need an appointment as agent, Brisbane City Student Accommodation says that there was a valid assignment of a pre-existing appointment. Finally, Brisbane City Student Accommodation says that Ms Woehle suffered no financial loss. [3] Although this is an application for a review of the Chief Executive’s decision, the tribunal must hear and decide the application by way of a fresh hearing on the merits.1 In considering a claim against the fund, I must be satisfied2 that an event as mentioned in section 470(1) happened and that Ms Woehle suffered financial loss because of the event. [4] I must also take into account any amount Ms Woehle might reasonably have received or recovered if not for her neglect or default and any amount ordered to be paid to Ms Woehle as compensation to the claimant under sections 530A, 572D or 592A of PAMDA3. [5] Finally in allowing a claim I must decide the amount of Ms Woehle’s financial loss and name the person who is liable for the loss4. The event [6] The stealing, misappropriation or misapplication by an agent of property entrusted to that person as agent for someone else in their capacity as agent is an “event” under s 470(1)(e). If Brisbane City Student 1 Queensland Civil and Administrative Tribunal Act 2009, s 20(2). 2 Property Agents and Motor Dealers Act 2000, s 488(2). 3 Section 488(3)(a). 4 Section 488(3)(b) and (c). -- 2 of 5 -- 3 Accommodation misapplied or misappropriated trust money to which Ms Woehle was entitled, that will be an event. Was Brisbane City Student Accommodation a letting agent? [7] Brisbane City Student Accommodation points out that s 111 of PAMDA provides that a resident letting agent’s licence authorises it to let lots in a building complex and collect rent for lots in a building complex. It says that its business was not within that definition because it rented individual rooms within those lots, not the lots themselves, and, therefore the activity fell within the definition of “rooming accommodation”. [8] I am not persuaded by this argument. Brisbane City Student Accommodation has not provided a copy of the agreement it requires the student to sign which would confirm that it acts as a rooming accommodation provider rather than a letting agent. Further, I am concerned that the action of letting rooms, rather than lots, may not comply with the approved use of the premises. [9] The most compelling argument, however, is that the agreement, so far as there is one, is a letting agreement. There is no evidence that Ms Woehle consented to, or authorised, her lot to be let as a part of a rooming accommodation scheme. I am satisfied that Brisbane City Student Accommodation was a letting agent within the meaning of s 111 and was therefore required to be licensed. Was the letting agreement assigned to Brisbane City Student Accommodation? [10] Brisbane City Student Accommodation bought the letting rights from Aqua Vista Resorts Management Pty Ltd. The sale agreement provided for an assignment of all letting agreements. [11] Section 115A of PAMDA provides a mechanism for the assignment of appointments as a letting agent. Pursuant to s 115A(3), the letting agent must give each client written notice of the proposed assignment and obtain the client’s written approval. The notice must state: the proposed assignee’s name; that the proposed assignment does not change the terms of the appointment; that the client may agree to or refuse the assignment; and when the proposed assignment takes place. Section 115A does not apply if the appointment to act authorises the assignment of the appointment and the assignment is made in accordance with the terms of the appointment. [12] The letting agreement between Ms Woehle and Aqua Vista includes these words: In consideration of and in accordance with the terms of this Appointment, the Client appoints the Agent and its permitted Assigns…” [13] The use of the term “permitted assigns” necessarily implies that Ms Woehle had notice of the proposed assignment agreed to the assignment or that a proposed assignee was identified by Aqua Vista at the time the parties entered into the agreement. Any other interpretation would allow an assignment “at large” and without notice. That interpretation is -- 3 of 5 -- 4 incompatible with the objects of PAMDA5, s 115A of PAMDA and the general requirements for the assignment of a thing in action6. [14] The terms of the agreement between Aqua Vista and Brisbane City Student Accommodation are irrelevant unless it can be shown that Ms Woehle had notice of them and consented to the assignment. Aqua Vista did not give Ms Woehle notice of the proposed assignment to Brisbane City Student Accommodation. Brisbane City Student Accommodation did not give notice of the proposed assignment. There is no evidence that Ms Woehle consented to the assignment. Therefore, there is no evidence that Brisbane City Student Accommodation was a “permitted assign”. I find that the letting agreement was not assigned to Brisbane City Student Accommodation. Was there a misappropriation or misapplication of trust money? [15] Section 117 of PAMDA provides that a person is not entitled to retain a reward or expense for the performance of an activity as a resident letting agent unless the agent has been properly appointed. Ms Woehle argued that, because Brisbane City Student Accommodation was not properly appointed, it had no right to claim commission or expenses. It followed therefore, that its retention of funds on that basis was a misappropriation or misapplication of funds within s 470(1)(e) of PAMDA. [16] The connection between ss 117 and 470(1)(e) was considered by the former Commercial and Consumer Tribunal in Oakhill Property Group Pty Ltd and GB Communications Pty Ltd v Beverley7. The member noted that a breach of s 117 of PAMDA is not one of the “events” within the contemplation of s 470(1). The member made the point, as has Brisbane City Student Accommodation, that:8 The applicants cannot accept the rentals received from the managers and then complain about deductions made by the managers. This would amount to having their cake and eating it. All managing agents charge commission and other fees. It is irrelevant that the managers were not properly appointed under the PAMD Act as letting agents for the applicants and therefore should not have charged commission. Section 117 of the PAMD Act concerns such issues but this is not a section enumerated in section 470 of the PAMD Act for the purposes of claiming financial loss. [17] There is further support for the member’s view in s 118 of PAMDA. A breach of s 117 is an offence9. If a person is convicted of an offence, and the court convicting the person is satisfied that the agent has retained money to which it was not entitled, the court must order the agent to pay the amount to the client10. The client may enforce that order as a judgment debt11. A “court” in s 118 does not include this tribunal. 5 PAMDA, s 10 – the protection of consumers. 6 Property Law Act 1974, s 199. 7 [2006] QCCTPAMD 23. 8 Supra at [11]. 9 PAMDA, s 117(7). 10 PAMDA, s 118(1). 11 PAMDA, s 118(3). -- 4 of 5 -- 5 [18] Given that s 118 contemplates a specific process for the recovery of losses, it would be surprising if the proper interpretation of the general words of s 170(1)(e) were to circumvent or contradict the specific words of s 470. I find that the words of s 470(1)(e) do not extend to allow a claim against the fund for a breach of s 117. That approach is consistent with the Tribunal’s approach to other statutory regimes where there is both a general right to compensation and a right to compensation on conviction of an offence.12 [19] I am not satisfied that there has been an “event” within s 470(1). Financial loss [20] As I have found that there is no event within s 470(1) I am not required to consider whether Ms Woehle suffered financial loss. [21] If I had to turn my mind to the issue, the comments in Oakhill Property Group Pty Ltd are compelling. There is no evidence that Ms Woehle suffered any loss. She earned income through the efforts of Brisbane City Student Accommodation. Commissions would have been charged by an agent properly appointed and Ms Woehle received the benefit of the items charged as expenses. Orders [1] The decision of the Chief Executive dated 5 June 2012 should be set aside. 12 See Elfbest Pty Ltd v Dynan and Anor [2012] QCATA 7. -- 5 of 5 --