Cahill v Tomkins t/as Prime Real Estate [2012] QCAT 480

CITATION: Cahill v Tomkins t/as Prime Real Estate [2012] QCAT 480 PARTIES: Damien Edward Cahill v Cecil Tomkins t/as Prime Real Estate APPLICATION NUMBER: GAR210-12 MATTER TYPE: General administrative review matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Peta Stilgoe, Senior Member DELIVERED ON: 2 October 2012 DELIVERED AT: Brisbane ORDERS MADE: 1. The application for an extension of time in which to lodge a claim against the fund is refused. CATCHWORDS: REAL ESTATE AGENT – EXTENSION OF TIME – where loss occurred in 2010 – where court proceedings started within time – where claim made within 3 months of court proceedings concluding Property Agents and Motor Dealers Act 2000, ss 472(2), 472(3), 488(2), 511 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] Mr Cahill signed a contract to purchase lots off the plan in 2008. Mr Tomkins, trading as Prime Real Estate, was the agent for the seller. Mr Cahill paid the deposit of $9,960 by a deposit bond on 5 February 2008. QBE Insurance Australia, the bond holder, paid a further $93,700 pursuant to contract of sale, and apparently on behalf of Mr Cahill, on 14 December 2010. -- 1 of 2 -- 2 [2] Mr Cahill did not settle the contract to purchase. He says that he has lost the two payments made on his behalf because of misrepresentations by Mr Tomkins. On 19 March 2012, he lodged a claim against the statutory fund. [3] Section 472(2) of the Property Agents and Motor Dealers Act 2000 provides that a person may make a claim against the statutory fund within the earlier of: a) 1 year after the person becomes aware of financial loss because of the happening of the event; or b) 3 years after the happening of the event that caused the financial loss. [4] However, if a person starts a proceeding in a court to recover a financial loss within the time permitted to make a claim, that person can make a claim against the fund within 3 months after the proceeding in court ends1. [5] Section 511 of PAMDA provides that the tribunal can extend the time for making a claim on the fund having regard to: a) The reasons for not making the claim or seeking the review within the time allowed. b) The application generally. c) The relative hardship that an extension of time, or a refusal to extend time, would place on the claimant or the respondent. Is the claim out of time? [6] Mr Cahill should have made a claim against the fund by 13 December 2011. Instead, he commenced proceedings in New South Wales in July 2011. He commenced proceedings within the time that he could have claimed against the fund. Therefore, the time in which he can make a claim against the fund is extended to 3 months after the date that proceeding concluded. [7] The material filed indicates that the last action in the New South Wales proceeding occurred on 2 March 2012. Mr Cahill lodged his claim on 19 March 2012. The claim was filed within time. Conclusion [8] The application for an extension of time is not necessary because Mr Cahill filed his claim within 3 months of legal proceedings being concluded. Those legal proceedings were filed within the time he was permitted to make a claim. The application for an extension of time is therefore refused because it is unnecessary. The Chief Executive should reconsider Mr Cahill’s claim. 1 Section 472(3) Property Agents and Motor Dealers Act 2000. -- 2 of 2 --