Dixon v Acton's Key Real Estate Pty Ltd and Ors [2012] QCAT 494

CITATION: Dixon v Acton’s Key Real Estate Pty Ltd and Ors [2012] QCAT 494 PARTIES: Mark Dixon v Acton’s Key Real Estate Pty Ltd t/as Harcourts Townsville City Andrew Acton Christine Nolen APPLICATION NUMBER: OCL031-12 MATTER TYPE: Other civil dispute matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Peta Stilgoe, Senior Member DELIVERED ON: 9 October 2012 DELIVERED AT: Brisbane ORDERS MADE: [1] Pursuant to s 488 of the Property Agents and Motor Dealers Act 2000, Mark Dixon’s claim against the fund is refused. CATCHWORDS: REAL ESTATE AGENT – where sale subject to finance – where two valuations – where sale price reduced to meet lower valuation – whether representation by agent – whether financial loss Property Agents and Motor Dealers Act 2000, ss 470, 488, 490(2), 573A, 573B, 573C, 573E(2)(b), 574 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. -- 1 of 4 -- 2 REASONS FOR DECISION [1] Mr Dixon appointed Acton’s Key Real Estate Pty Ltd t/as Harcourts Townsville City as agent for the sale of his property at Alligator Creek. Ms Nolen handled the sale on behalf of the agency. [2] Mr Dixon listed the property for sale at $330,000. In July 2010, he signed a contract for $320,000. The contract was subject to finance. Mr Dixon engaged lawyers Savage and Stout to handle the sale. On 4 August 2010, Savage and Stout rang to advise that the purchaser had asked for a 7 day extension for finance. Mr Dixon agreed to the extension. [3] Mr Dixon says that he received a telephone call from Ms Nolen at about 4.40 pm on 10 August 2010 advising that the property did not come up to valuation. Mr Dixon says that Ms Nolen told him that the valuation was $270,000, and if he wanted the sale to proceed, Mr Dixon would have to reduce the price by $25,000. Mr Dixon says that Ms Nolen gave him no time to consider his options or to seek legal advice. He agreed to reduce the price to $295,000. [4] Mr Dixon says that the next day he received a telephone call from a valuer, Mr Chapman. Mr Chapman told Mr Dixon that he had valued the property at $320,000, not $270,000. Mr Dixon believes that Ms Nolen knew about Mr Chapman’s valuation and deliberately misled him about it. He says that he suffered loss because of Ms Nolen’s conduct. [5] Mr Dixon made a claim on the statutory claim fund for $25,000 plus legal costs. The respondents have received notice of the claim [6] In considering a claim against the fund, I must be satisfied1 that an event as mentioned in section 470(1) happened and that Mr Dixon suffered financial loss because of the event. [7] I must also take into account any amount Mr Dixon might reasonably have received or recovered if not for his neglect or default and any amount ordered to be paid to Mr Dixon as compensation to the claimant under sections 530A, 572D or 592A of PAMDA2. [8] Finally, in allowing a claim I must decide the amount of Mr Dixon’s financial loss and name the person who is liable for the loss3. The event [9] Mr Dixon says that the relevant event is: misleading conduct4; unconscionable conduct5; false representations6; offensive conduct in relation to residential property7; and false representations8. 1 Section 488(2) Property Agents and Motor Dealers Act 2000. 2 Section 488(3)(a). 3 Section 488(3)(b) and (c). 4 Section 573A. -- 2 of 4 -- 3 [10] Sections 543A, 573B, 573C and 573E relate to conduct by a marketeer. It is implicit in the terms of the sections that protection is offered to the purchaser, not the seller. In particular, section 573B(2) sets out the matters that are to be considered in determining whether a person has contravened the section. They all relate to the buyer’s understanding and the buyer’s ability to resist unfair practices or pressure. I am not persuaded that breaches of these sections are “events’ which are available to a seller. I note that s 573E is not referred to in s 470(1). It cannot, therefore, be an “event” which forms the basis for a claim against the fund. [11] The real question is whether, pursuant to s 574, Ms Nolen made a representation that was false or misleading in relation to the sale of his property. [12] Ms Nolen denies that she made any representation to Mr Dixon about the valuation. Mr Chapman has provided a statement. He admits that he had a conversation with Ms Nolen the afternoon of his inspection but says that he did not disclose the particular result of the valuation. He makes no reference to any conversation with Mr Dixon, even though this is an important aspect of Mr Dixon’s claim. [13] The documentary evidence does not support Mr Dixon’s claim that Ms Nolen rang him. There is an email from Savage & Stout sent at 4.45 pm on 10 August 2010 to the purchaser’s lawyer confirming a telephone conversation between the two lawyers “this afternoon” and confirming Mr Dixon’s instructions to reduce the purchase price. That email is consistent with usual conveyancing practice: that the exchange about the results of the valuation would be between lawyers and that Savage & Stout would obtain Mr Dixon’s instructions. Mr Dixon’s failure to mention the involvement of his lawyers leads me to the conclusion that his evidence is not entirely reliable. [14] I prefer the evidence of Ms Nolen. I am not satisfied that Ms Nolen made a representation to Mr Dixon. I am, therefore, unable to find an “event” under s 470(1). Financial loss [15] Even if I was satisfied there was an event, I am not satisfied that Mr Dixon suffered a financial loss because of any breach of PAMDA. [16] There was a valuation for $320,000 but the lender who commissioned the valuation would not advance funds because there was no residence on the property. The valuation was meaningless if the lender would not advance the funds. Mr Dixon maintains that he had no option but to agree to a lower price but that is not true. He could have rejected the 5 Section 573B. 6 Section 573C. 7 Section 573E(2)(b). 8 Section 574. -- 3 of 4 -- 4 purchaser’s offer and sought a new purchaser. Contrary to his statement, Mr Dixon had the opportunity to obtain legal advice. He obviously spoke to his lawyers that afternoon as acceptance of the offer was communicated by Savage & Stout. [17] I note from the settlement statement that Mr Dixon was in arrears of rates in the sum of $3,171. There was a writ of execution lodged against the title of the property on 18 August 2010. The evidence therefore suggests that Mr Dixon had powerful incentives to accept a reduction in the purchase price to effect an early sale. [18] Finally, I note that the eventual sale price was $15,000 more than the lower valuation. In all the circumstances, I cannot see how Mr Dixon can maintain his claim for financial loss. Orders [1] Pursuant to s 488 of the Property Agents and Motor Dealers Act 2000, Mark Dixon’s claim against the fund is refused. -- 4 of 4 --