Bailey & Ors v Welburn Nominees Pty Ltd [2010] QCAT 189

CITATION: Bailey & Ors v Welburn Nominees Pty Ltd [2010] QCAT 189 PARTIES: Mr Alan Bailey Alan Bailey Nominees Pty Ltd Mr Bruce Ryman Ryman Nominees Pty Ltd v Welburn Nominees Pty Ltd (Deregistered) Ms Tricia-Anne Welburn APPLICATION NUMBER: PC040-09 MATTER TYPE: Other civil dispute matters HEARING DATE: 19 April 2010 HEARD AT: Brisbane DECISION OF: Ms Susan Gardiner DELIVERED ON: 5 May 2010 DELIVERED AT: Brisbane ORDERS MADE: 1. The claim of the Applicants is allowed in the sum of $18,481.93 2. Welburn Nominees Pty Ltd (de-registered) and Tricia-Anne Welburn are named as the persons responsible for the Applicant’s loss. 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 APPEARANCES and REPRESENTATION (if any): APPLICANT : Mr Alan Bailey RESPONDENT: No appearance by the Respondent -- 1 of 3 -- PC040-09 / Page 2 of 3 REASONS FOR DECISION 1. This is a claim against the claim fund set up under the Property Agents and Motor Dealers Act 2000 (PAMDA Act) by Alan Bailey, Alan Bailey Nominees Pty Ltd, Bruce Ryman and Ryman Nominees Pty Ltd against Welburn Nominees Pty Ltd Trading as Allenstown Realty and Welburn Nominees’ sole director Tricia-Anne Welburn. 2. The background to this claim is dealt with in the disciplinary proceedings before the Tribunal numbered PG029-09 and arise from Ms Welburn and her company acting as property agents for the applicants in August of 2006 3. The claim is under section 470(1)(e) of the PAMDA Act by persons who claim to have suffered a financial lost as a result of their dealings with the respondents who held real estate licences under the Act. In particular, the claim is for a stealing, misappropriation or misapplication by the relevant person of property entrusted to the person as agent for someone else in the person’s capacity as a relevant person. For these purposes a relevant person is defined under section 469 of the Act as a licensee. 4. Welburn Nominees Pty Ltd was the sole proprietor of Allenstown Realty until the business name was deregistered on 25 August 2008. The business name was deregistered because Welburn Nominees Pty Ltd was itself deregistered on 24 August 2008. Tricia-Anne Welburn was the sole director and secretary of Welburn Nominees Pty Ltd as well as personally holding a real estate licence. 5. On 12 June 2008 the applicant’s lodged with the then Office of Fair Trading a claim against the fund under the PAMDA Act. Notice of that claim was given to Tricia-Anne Welburn on 9 January 2009. Twenty-eight days having elapsed from that notice and with no response or settlement being received from Ms Welburn, the matter was referred to the then Commercial and Consumer Tribunal (the predecessor to this Tribunal) for determination. 6. The application is supported by an investigator’s report dated 18 November 2009 from Mr Rod Page who was the Acting Regional Manager for the Office of Fair Trading in Rockhampton. This report states that the Respondents traded as Allenstown Realty in Rockhampton and that the Applicants alleged that the rents collected by Allentown Realty from 31 August 2007 to 24 January 2008 from tenants at the units at 29 Church Street Rockhampton were not passed on to them. 7. Mr Bailey and Mr Ryman allege that they became aware of their loses on 16 January 2008 when Allenstown Realty ceased to operate and another realty became their agent. Landlord statements were only issued to 31 December 2007 and when the new agent began collecting the rents they alleged that the tenants were up to date. Mr Bailey and Mr Ryman rely on the inspector’s report of Mr Page which quantifies their financial loss at $18,481.93. This amount represents the rent outstanding and unpaid to the applicant’s from units 1 – 8 of the Church Street property from 1 September 2007 to 24 January 2008. Ms Welburn has filed no material in response to this report. -- 2 of 3 -- PC040-09 / Page 3 of 3 8. I am satisfied from the material filed and from the applicant’s statements that the respondents were at the relevant time appointed agents of the Applicant’s for the subject property. I am satisfied that Welburn Nominees Pty Ltd and Tricia-Anne Welburn are relevant persons for the purposes of section 470(1)(e) of the PMADA Act. 9. I am also satisfied that the records attached to the inspector’s report show that the rent was collected by Allenstown Realty but that those amounts were not all dispersed to the owners through the Allenstown Realty trust account. The outstanding amount of the misapplication of funds which has occurred is $18,481.93 and I am satisfied that this is the amount of the loss. I am further satisfied that Alan Bailey and Bruce Ryman have suffered this financial loss. 10. I name Welburn Nominees Pty Ltd (deregistered) and Tricia-Anne Welburn as the person’s responsibility for this loss. ORDERS 1. The claim of the Applicants is allowed in the sum of $18,481.93 2. Welburn Nominees Pty Ltd (de-registered) and Tricia-Anne Welburn are named as the persons responsible for the Applicant’s loss. -- 3 of 3 --