Camens & Ors v Excalibur Property Services Pty Ltd & Wilkes [2010] QCAT 506

CITATION: Camens & Ors v Excalibur Property Services Pty Ltd & Wilkes [2010] QCAT 506 PARTIES: Jane Camens Sigmund Bloch Ian Thurkle Brenda Little Magasin Pty Ltd Darrin Hawkes Brian and Ishbel McClure Timothy Palmer Anton Rocchi Stephen Webb v Excalibur Property Services Pty Ltd Mr Michael Francis Wilkes APPLICATION NUMBERS: OCL062-10 OCL076-10 OCL077-10 OCL078-10 OCL079-10 OCL080-10 OCL081-10 OCL085-10 OCL099-10 OCL105-10 MATTER TYPE: Other civil dispute matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Ms Susan Gardiner DELIVERED ON: 19 October 2010 DELIVERED AT: Brisbane ORDERS MADE: See Attached Schedule CATCHWORDS : Property Agents and Motor Dealers Act 2000 s470; claim against fund for misuse of trust funds; real estate agent; claim allowed, real estate agent and company named as persons responsible -- 1 of 13 -- OCL105-10 / Page 2 of 5 REASONS FOR DECISION 1. Excalibur Property Services Pty Ltd was a licensed real estate agent and operated two real estate agencies, Raine and Horne Ascot and Ivan Lazarou Real Estate. The sole director of Excalibur Property Services Pty Ltd is Michael Francis Wilkes. Mr Wilkes was also a licensed real estate agent and the sole director of another company, The Art of Property Pty Ltd the registered business name for which is “Elders New Farm”. 2. The Tribunal has recently dealt with three matters in which different applicants have lodged claims against the claim fund set up under the Property Agents and Motor Dealers Act 2000 (PAMDA Act) with the Department of Employment, Economic Development and Innovation (“the Department”) involving the respondents. On reviewing these previous matters, the Tribunal has found these previous three matters presented similar allegations by the claimants and presented some common facts accepted by the Tribunal in each matter, although the claims of the of the applicants differed in regard to the amounts sought. 3. The Tribunal is now aware of a number of further claims by the separate applicants listed above against the PAMDA fund that essentially arise from allegations against the respondents in similar circumstances to the three matters previously determined by the Tribunal. All of these claims were referred by the Department to this Tribunal for determination 1 in a recent discreet time frame. 4. These reasons highlight the common matters to all the listed applicants in the body of the reasons and by a schedule attached to each set, record the matters that are individual to each applicant and the orders made by the Tribunal in relation thereto. Claims 5. Each applicant claims a specific amount for rental monies not received during the period October 2008 to January 2010 as set out in the schedule to these reasons. The claims are made pursuant to section 470 of the PAMDA Act. Each applicant claims to have suffered a financial loss as a result of his or her dealings with the respondents who held real estate licences under the PAMDA Act. In particular, the claims are for a stealing, misappropriation or misapplication by the relevant persons of property entrusted to the person as agent for someone else in the person’s capacity as a relevant person 2 . It is an offence under the PAMDA Act to dishonestly convert an amount to the licensee’s own or someone else’s use 3 . For these purposes a relevant person is defined as a licensee4 . 1 Section 476(1) of the PAMDA Act requires that the Chief Executive refer the claim to the Tribunal as it exceeded $10,000.00. 2 Section 470(1)(e) of the PAMDA Act 3 Section 573 of the PAMDA Act 4 Section 469 of the PAMDA Act -- 2 of 13 -- OCL105-10 / Page 3 of 5 6. Notices of the claims were given to Excalibur Property Services Pty Ltd and Mr Wilkes in all matters except one on 29 April 2010 5 and for one matter on 28 May 2010 6 . Mr Wilkes was personally served with copies of the claim notices on 4 May 2010 in all matters except one 7 . Twenty-eight days have elapsed past that notice. As no response or settlement was received by any person, between 29 June 2010 and 9 July 2010 each applicant gave notice to the Chief Executive that he or she wished to proceed and the matters were referred to this Tribunal. 7. Directions hearings in these applications were held on 10 and 13 August 2010. Mr Wilkes attended the directions hearings on 10 August 2010. In each matter, the Tribunal directed that the parties file and serve any further statements of evidence and that the applications be determined on the papers. No further material has been received from either respondent in any of the matters. 8. Section 488 of the PAMDA Act 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. 9. 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 default 8 and any amount ordered to be paid to the claimant as compensation to the claimant under sections 530A, 572D or 592A of the PAMDA Act9 . 10. 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 loss 10 . The Event and the Loss 11. Mr Rohan Youngman was appointed by the Queensland Office of Fair Trading as Receiver over the three trust accounts of Excalibur Property Services Pty Ltd on 2 November 2009 11 . From evidence Mr Wilkes gave to the Receiver, it appears that The Art of Property Pty Ltd (Elders New Farm) had never operated a trust account. 12. The conclusion reached by the Receiver in his forensic accounting report dated 12 April 2010 was that the company names and registered business names appeared to have been used interchangeably. The Receiver made no differentiation between the corporate and business names as they all appeared, in his view, to trade utilizing the three trust accounts. 5 All applications listed above except 085-10 6 Application numbered 085-10 7 Application numbered 085-10 8 Section 488(2) of the PAMDA Act 9 Section 488(3 (a) of the PAMDA Act 10 Section 488(3)(b) and (c) of the PAMDA Act 11 Pursuant to section 417 of the PAMDA Act -- 3 of 13 -- OCL105-10 / Page 4 of 5 13. After investigating the claims of each applicant for rental monies not received, the Receiver’s 12 April 2010 report concludes: a. The trust ledger and trust accounts records and documents show that rents were collected by Excalibur over the period October 2008 to January 2010. b. The trust ledger and trust accounts records and documents show that variously rental payments (sometimes net of commissions and other deductions) were not made to each of the applicants in various amounts. These amounts are specified in the schedule to these reasons. In each application, this amount is tabulated at Table 1 in Mr Youngman’s report which shows a summary of the Owners Ledger and the Trust Account Payments highlighting the amounts due and the amounts unpaid to each applicant. Where applicable, Table 3 lists the liabilities incurred for rental monies which remain unpaid 42 days subsequent to their due date 12 and as at 11 November 2009 (the date at which the trust accounts were frozen under the receivership) 13 ; c. As a consequence of the above, Mr Youngman considers each applicants’ claim against the fund in the sums specified by him and set out in the schedule to these reasons to be accurate and supported by documentary evidence. Other matters to be considered 14. There has been no relevant neglect or default by any claimant identified and no amounts of compensation in any matter ordered to be paid under sections 530A, 572D or 592A of the PAMDA Act. Conclusion 15. In each application the applicants claim the amounts set out in the schedule to these reasons. 16. On the uncontested evidence before the Tribunal the amounts owing to each applicant by Excalibur Property Services Pty Ltd and Michael Francis Wilkes are found to be as set out in the schedule to these reasons. Excalibur Property Services Pty Ltd and Michael Francis Wilkes are relevant persons for the purposes of section 470(1)(e) of the PMADA Act. 17. Excalibur Property Services Pty Ltd and Michael Francis Wilkes are named as the persons who are responsible for this loss. 12 Section 385(4) of the PAMDA Act which allows a licensee must pay an amount to the person entitled to it if the person has not asked in writing for the balance within 42 days after the person first had the right to the balance. 13 Mr Youngman’s report in mater no.OCL081-10 does not contain this table as the unpaid rental payments were incurred as from 3 November 2009. -- 4 of 13 -- OCL105-10 / Page 5 of 5 ORDERS 18. The orders made in each case are in essence the same but particularly tailored to the loss of each applicant. The individual orders are recorded in the schedule to these reasons. The following is a generalised version of the individual orders made. 1. Pursuant to section 530 of the Property Agents and Motor Dealers Act 2000, the Chief Executive of the Department of Employment, Economic Development and Innovation pay to the applicant the sum set out in the schedule to these reasons. 2. Pursuant to section 489 of the Property Agents and Motor Dealers Act 2000, the Chief Executive shall not pay the amount until the end of the period allowed for appeal, and if there is an appeal, until the appeal is finally decided. 3. Pursuant to section 488(3)(c) the respondents Excalibur Property Services Pty Ltd and Michael Francis Wilkes are the persons who misapplied in terms of section 470(1)(e) the payments not received and who are liable for the financial loss of the applicant. 4. Upon payment of the sum set out in the schedule to these reasons from the Claim Fund to the applicant, the respondents Excalibur Property Services Pty Ltd and Michael Francis Wilkes are liable jointly and severally to reimburse the Claim Fund by paying the sum set out in the schedule to these reasons to the Chief Executive of Employment, Economic Development and Innovation. -- 5 of 13 -- 1 OCL Application No. Applicant Amount and type of Claim Claim Allowed Tribunal Order 062-10 Jane Camens Rental payments in the sum of $14,385.09 Rental payments in the sum of $14,385.09 1. Pursuant to section 530 of the Property Agents and Motor Dealers Act 2000, the Chief Executive of the Department of Employment, Economic Development and Innovation pay to the applicant Jane Camens the sum of $14,385.09 . 2. Pursuant to section 489 of the Property Agents and Motor Dealers Act 2000, the Chief Executive shall not pay the amount until the end of the period allowed for appeal, and if there is an appeal, until the appeal is finally decided. 3. Pursuant to section 488(3)(c) the respondents Excalibur Property Services Pty Ltd and Michael Francis Wilkes are the persons who misapplied in terms of section 470(1)(e) the rental payments and who are liable for the financial loss of the applicant. 4. Upon payment of the sum of $14,385.09 from the Claim Fund to the applicant, the respondents Excalibur Property Services Pty Ltd and Michael Francis Wilkes are liable jointly and severally to reimburse the Claim Fund by paying the sum of $14,385.09 to the Chief Executive of Employment, Economic Development and Innovation. 076-10 Sigmund Bloch Rental payments in the sum of $30,166.17 Rental payments in the sum of $30,166.17 1. Pursuant to section 530 of the Property Agents and Motor Dealers Act 2000, the Chief Executive of the Department of Employment, Economic Development and Innovation pay to the applicant Sigmund Bloch the sum of $30,166.17. 2. Pursuant to section 489 of the Property Agents and Motor Dealers -- 6 of 13 -- 2 Act 2000, the Chief Executive shall not pay the amount until the end of the period allowed for appeal, and if there is an appeal, until the appeal is finally decided. 3. Pursuant to section 488(3)(c) the respondents Excalibur Property Services Pty Ltd and Michael Francis Wilkes are the persons who misapplied in terms of section 470(1)(e) the rental payments and who are liable for the financial loss of the applicant. 4. Upon payment of the sum of $30,166.17 from the Claim Fund to the applicant, the respondents Excalibur Property Services Pty Ltd and Michael Francis Wilkes are liable jointly and severally to reimburse the Claim Fund by paying the sum of $30,166.17 to the Chief Executive of Employment, Economic Development and Innovation. 077-10 Ian Thurkle Rental payments of $3,137 and sales deposit of $38,500 for sale of 4/20 Buxton St Ascot on 23 November 2009. Total being $41,637.00 Rental payments of $3,448.95 and balance of the sales deposit after deduction of the agent’s commission and marketing costs of $27,400 for sale of 4/20 Buxton St Ascot on 23 November 2009. Total being $30,849.60 1. Pursuant to section 530 of the Property Agents and Motor Dealers Act 2000, the Chief Executive of the Department of Employment, Economic Development and Innovation pay to the applicant Ian Thurkle the sum of $30,849.60 . 2. Pursuant to section 489 of the Property Agents and Motor Dealers Act 2000, the Chief Executive shall not pay the amount until the end of the period allowed for appeal, and if there is an appeal, until the appeal is finally decided. 3. Pursuant to section 488(3)(c) the respondents Excalibur Property Services Pty Ltd and Michael Francis Wilkes are the persons who misapplied in terms of section 470(1)(e) the rental payments and sales deposit and who are liable for the financial loss of the applicant. -- 7 of 13 -- 3 4. Upon payment of the sum of $30,849.60 from the Claim Fund to the applicant, the respondents Excalibur Property Services Pty Ltd and Michael Francis Wilkes are liable jointly and severally to reimburse the Claim Fund by paying the sum of $30,849.60 to the Chief Executive of Employment, Economic Development and Innovation. 078-10 Brenda Little Rental payments in the sum of $11,816.94 Rental payments in the sum of $11,816.94 1. Pursuant to section 530 of the Property Agents and Motor Dealers Act 2000, the Chief Executive of the Department of Employment, Economic Development and Innovation pay to the applicant Brenda Little the sum of $11,816.94. 2. Pursuant to section 489 of the Property Agents and Motor Dealers Act 2000, the Chief Executive shall not pay the amount until the end of the period allowed for appeal, and if there is an appeal, until the appeal is finally decided. 3. Pursuant to section 488(3)(c) the respondents Excalibur Property Services Pty Ltd and Michael Francis Wilkes are the persons who misapplied in terms of section 470(1)(e) the rental payments and who are liable for the financial loss of the applicant. 4. Upon payment of the sum of $11,816.94 from the Claim Fund to the applicant, the respondents Excalibur Property Services Pty Ltd and Michael Francis Wilkes are liable jointly and severally to reimburse the Claim Fund by paying the sum of $11,816.94 to the Chief Executive of Employment, Economic Development and Innovation. -- 8 of 13 -- 4 079-10 Magasin Pty Ltd Rental payments in the sum of $29,575.20 Rental payments in the sum of $29,575.20 1. Pursuant to section 530 of the Property Agents and Motor Dealers Act 2000, the Chief Executive of the Department of Employment, Economic Development and Innovation pay to the applicant Magasin Pty Ltd the sum of $29,575.20. 2. Pursuant to section 489 of the Property Agents and Motor Dealers Act 2000, the Chief Executive shall not pay the amount until the end of the period allowed for appeal, and if there is an appeal, until the appeal is finally decided. 3. Pursuant to section 488(3)(c) the respondents Excalibur Property Services Pty Ltd and Michael Francis Wilkes are the persons who misapplied in terms of section 470(1)(e) the rental payments and who are liable for the financial loss of the applicant. 4. Upon payment of the sum of $29,575.20 from the Claim Fund to the applicant, the respondents Excalibur Property Services Pty Ltd and Michael Francis Wilkes are liable jointly and severally to reimburse the Claim Fund by paying the sum of $29,575.20 to the Chief Executive of Employment, Economic Development and Innovation. 080-10 Darrin Hawkes Rental payments in the sum of $19,894.00 Rental payments in the sum of $19,894.00 1. Pursuant to section 530 of the Property Agents and Motor Dealers Act 2000, the Chief Executive of the Department of Employment, Economic Development and Innovation pay to the applicant Darrin Hawkes the sum of $19,894.00 . 2. Pursuant to section 489 of the Property Agents and Motor Dealers Act 2000, the Chief Executive shall not pay the amount until the end of the period allowed for appeal, and if there is an appeal, until the appeal is finally decided. -- 9 of 13 -- 5 3. Pursuant to section 488(3)(c) the respondents Excalibur Property Services Pty Ltd and Michael Francis Wilkes are the persons who misapplied in terms of section 470(1)(e) the rental payments and who are liable for the financial loss of the applicant. 4. Upon payment of the sum of $19,894.00 from the Claim Fund to the applicant, the respondents Excalibur Property Services Pty Ltd and Michael Francis Wilkes are liable jointly and severally to reimburse the Claim Fund by paying the sum of $19,894.00 to the Chief Executive of Employment, Economic Development and Innovation. 081-10 Brian and Ishbel McClure Rental payments, council rates and pool contactor fees in the sum of $10,569.25 Rental payments in the sum of $10,128.90 1. Pursuant to section 530 of the Property Agents and Motor Dealers Act 2000, the Chief Executive of the Department of Employment, Economic Development and Innovation pay to the applicant Brian and Ishbel McClure the sum of $10,128.90 . 2. Pursuant to section 489 of the Property Agents and Motor Dealers Act 2000, the Chief Executive shall not pay the amount until the end of the period allowed for appeal, and if there is an appeal, until the appeal is finally decided. 3. Pursuant to section 488(3)(c) the respondents Excalibur Property Services Pty Ltd and Michael Francis Wilkes are the persons who misapplied in terms of section 470(1)(e) the rental payments and who are liable for the financial loss of the applicant. 4. Upon payment of the sum of $10,128.90 from the Claim Fund to the applicant, the respondents Excalibur Property Services Pty Ltd and Michael Francis Wilkes are liable jointly and severally to reimburse the Claim Fund by paying the sum of $10,128.90 to the -- 10 of 13 -- 6 Chief Executive of Employment, Economic Development and Innovation. 085-10 Timothy Palmer Rental payments in the sum of $32,627.48 Rental payments in the sum of $32,627.48 1. Pursuant to section 530 of the Property Agents and Motor Dealers Act 2000, the Chief Executive of the Department of Employment, Economic Development and Innovation pay to the applicant Timothy Palmer the sum of $32,627.48. 2. Pursuant to section 489 of the Property Agents and Motor Dealers Act 2000, the Chief Executive shall not pay the amount until the end of the period allowed for appeal, and if there is an appeal, until the appeal is finally decided. 3. Pursuant to section 488(3)(c) the respondents Excalibur Property Services Pty Ltd and Michael Francis Wilkes are the persons who misapplied in terms of section 470(1)(e) the rental payments and who are liable for the financial loss of the applicant. 4. Upon payment of the sum of $32,627.48 from the Claim Fund to the applicant, the respondents Excalibur Property Services Pty Ltd and Michael Francis Wilkes are liable jointly and severally to reimburse the Claim Fund by paying the sum of $32,627.48 to the Chief Executive of Employment, Economic Development and Innovation. 099-10 Anton Rocchi Rental payments in the sum of $10,397.63 Rental payments in the sum of $10,397.63 1. Pursuant to section 530 of the Property Agents and Motor Dealers Act 2000, the Chief Executive of the Department of Employment, Economic Development and Innovation pay to the applicant Anton Rocchi the sum of $10,397.63 . 2. Pursuant to section 489 of the Property Agents and Motor Dealers -- 11 of 13 -- 7 Act 2000, the Chief Executive shall not pay the amount until the end of the period allowed for appeal, and if there is an appeal, until the appeal is finally decided. 3. Pursuant to section 488(3)(c) the respondents Excalibur Property Services Pty Ltd and Michael Francis Wilkes are the persons who misapplied in terms of section 470(1)(e) the rental payments and who are liable for the financial loss of the applicant. 4. Upon payment of the sum of $10,397.63 from the Claim Fund to the applicant, the respondents Excalibur Property Services Pty Ltd and Michael Francis Wilkes are liable jointly and severally to reimburse the Claim Fund by paying the sum of $10,397.63 to the Chief Executive of Employment, Economic Development and Innovation. 105-10 Stephen Webb Rental payments in the sum of $42,295.96 Rental payments in the sum of $42,295.96 1. Pursuant to section 530 of the Property Agents and Motor Dealers Act 2000, the Chief Executive of the Department of Employment, Economic Development and Innovation pay to the applicant Stephen Webb the sum of $42,295.96. 2. Pursuant to section 489 of the Property Agents and Motor Dealers Act 2000, the Chief Executive shall not pay the amount until the end of the period allowed for appeal, and if there is an appeal, until the appeal is finally decided. 3. Pursuant to section 488(3)(c) the respondents Excalibur Property Services Pty Ltd and Michael Francis Wilkes are the persons who misapplied in terms of section 470(1)(e) the rental payments and who are liable for the financial loss of the applicant. -- 12 of 13 -- 8 4. Upon payment of the sum of $42,295.96 from the Claim Fund to the applicant, the respondents Excalibur Property Services Pty Ltd and Michael Francis Wilkes are liable jointly and severally to reimburse the Claim Fund by paying the sum of $42,295.96 to the Chief Executive of Employment, Economic Development and Innovation. -- 13 of 13 --