Brady, Corbett v Owlreach Pty Ltd and Ors [2011] QCAT 561

CITATION: Brady and Anor v Owlreach Pty Ltd and Ors [2011] QCAT 561 PARTIES: Mr Sidney Brady Mrs Glenda Corbett v Owlreach Pty Ltd formerly trading as Century 21 Town and Hinterland (deregistered) Mr Mark Collins Ms Leanne Collins APPLICATION NUMBER: OCL107-11 MATTER TYPE: Other civil dispute matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Peta Stilgoe, Member DELIVERED ON: 15 November 2011 DELIVERED AT: Brisbane ORDERS MADE: [1] Pursuant to s 488 of the Property Agents and Motor Dealers Act 2000, the claim is allowed in the sum of $23,500. [2] Pursuant to s 489 of the Property Agents and Motor Dealers Act 2000, at the expiration of the appeal period, the Chief Executive must pay to Mr Brady and Ms Corbett the sum of $23,500 from the Claim Fund, and, if there is an appeal, payment must not be made until after the appeal is finally decided. [3] Pursuant to s 488(3)(c) of the Property Agents and Motor Dealers Act 2000, Owlreach Pty Ltd formerly trading as Century 21 Town and Hinterland, Mark Collins and Leanne Collins are named as the persons responsible for the financial loss of Mr Brady and Ms Corbett. [4] Upon payment from the Claim Fund -- 1 of 4 -- 2 and pursuant to sections 490 and 530 of the Property Agents and Motor Dealers Act 2000, Owlreach Pty Ltd formerly trading as Century 21 Town and Hinterland, Mark Collins and Leanne Collins are liable (and if more than one, jointly and severally) to reimburse the Claim Fund by paying the sum of $23,500 to the Chief Executive, Department of Justice and Attorney General. CATCHWORDS: REAL ESTATE AGENT – where agent represented that price at auction included GST – where price at auction did not include GST – where parties agreed about orders the tribunal should make – whether a claim against the fund appropriate Property Agents and Motor Dealers Act 2000, ss 470, 488, 490(2), 573A APPEARANCES and REPRESENTATION (if any): This matter was heard on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009. REASONS FOR DECISION [1] Mark and Leanne Collins were directors of Owlreach Pty Ltd formerly trading as Century 21 Town and Hinterland. They were both licensed real estate agents. [2] Mr Brady and Ms Corbett bought a property at an auction conducted on the premises of Century 21 Town and Hinterland by Mr and Mrs Collins though a registered auctioneer, Mr Hughes. [3] Before bidding, Mr Brady asked Mr Collins whether GST was payable on the purchase price. Mr Collins and the auctioneer advised Mr Brady that the price on the fall of the hammer was inclusive of GST. In fact, on settlement, Mr Brady and Ms Corbett had to pay the price on the fall of the hammer plus GST. The difference was $23,547.51. [4] Mr Brady and Ms Corbett made a claim on the statutory claim fund for $23,547.51 plus interest, fees and holding costs. Mr and Mrs Collins received notice of the claim and attended a compulsory conference on 7 November 2011. At that conference, the parties agreed to settle on the following basis: a) The claim would be allowed in the sum of $23,500. b) Mr and Mrs Collins waive their right to appeal against this decision. -- 2 of 4 -- 3 [5] Despite the parties’ agreement, the tribunal is required to determine whether there should be a payment from the fund. Section 488 of the Property Agents and Motor Dealers Act 2000 sets out the process for deciding the claim. The Tribunal must be satisfied that: a) An event as mentioned in section 470(1) happened; and b) The claimant suffered financial loss because of the event. [6] The Tribunal must also take into account any amount the claimant might reasonably have received or recovered if not for the claimant’s neglect or default1 and any amount ordered to be paid to the claimant as compensation to the claimant under sections 530A, 572D or 592A of PAMDA2. [7] Finally in allowing a claim the Tribunal must decide the amount of the claimant’s financial loss and name the person who is liable for the loss3. The event [8] A contravention of s 573A of PAMDA is an “event” under s470(1). Section 573A provides that a marketeer must not, in the connection of the sale of residential property, engage in conduct that is misleading or is likely to mislead. [9] Mr Collins’ advice that the price on the fall of the hammer included GST was misleading within the meaning of s 573A. [10] I am satisfied that Mr Collins breached s 573A and that this is an “event” within s 470(1). Financial loss [11] I am satisfied that Mr Brady and Ms Corbett suffered a financial loss because of Mr Collins’ breach of s 573A. [12] I am further satisfied that the agreed amount of $23,500 is a fair assessment of Mr Brady and Ms Corbett’s loss. Other matters [13] I am required to take into account any amount Mr Brady and Ms Corbett may have received or recovered if not for their neglect or default. [14] There is no evidence to suggest that Mr Brady and Ms Corbett would have been able to receive or recover any amount to reduce their loss if they had taken any different action. Who is liable for the loss? [15] Mr Collins made the representation to Mr Brady and Ms Corbett. It is clear that he is a person who is responsible for the loss. [16] Mr Collins was acting as agent for Century 21 Town and Hinterland. That company, through its agent Mr Collins, made the representation so it is also responsible for the loss. 1 Section 488(2). 2 Section 488(3)(a). 3 Section 488(3)(b) and (c). -- 3 of 4 -- 4 [17] Section 490(2) provides that a person is liable to reimburse the fund if the person is: a) A responsible person; b) If the responsible person was a corporation, each person who was an executive officer of the corporation. [18] As a director of Century 21 Town and Hinterland, Mrs Collins was an executive officer of the company. Because I have found that the company is a responsible person, it follows that Mrs Collins must also be a responsible person. Orders [19] Pursuant to s 488 of the Property Agents and Motor Dealers Act 2000, the claim is allowed in the sum of $23,500. [20] Pursuant to s 489 of the Property Agents and Motor Dealers Act 2000, at the expiration of the appeal period, the Chief Executive must pay to Mr Brady and Ms Corbett the sum of $23,500 from the Claim Fund, and, if there is an appeal, payment must not be made until after the appeal is finally decided. [21] Pursuant to s 488(3)(c) of the Property Agents and Motor Dealers Act 2000, Owlreach Pty Ltd formerly trading as Century 21 Town and Hinterland, Mark Collins and Leanne Collins are named as the persons responsible for the financial loss of Mr Brady and Ms Corbett. [22] Upon payment from the Claim Fund and pursuant to sections 490 and 530 of the Property Agents and Motor Dealers Act 2000, Owlreach Pty Ltd formerly trading as Century 21 Town and Hinterland, Mark Collins and Leanne Collins are liable (and if more than one, jointly and severally) to reimburse the Claim Fund by paying the sum of $23,500 to the Chief Executive, Department of Justice and Attorney General. -- 4 of 4 --