Chamberlain v Munro [2010] QCAT 52

1 CITATION: Chamberlain v Munro [2010] QCAT 52 PARTIES: Bruce Alan Chamberlain v Toni Susan Munro APPLICATION NUMBER: PE012-09 MATTER TYPE: Other civil disputes matters HEARING DATE: Decision on the papers HEARD AT: Brisbane DECISION OF: Peta Stilgoe DELIVERED ON: 8 February 2010 DELIVERED AT: Brisbane ORDERS MADE: Application for extension of time dismissed. CATCHWORDS: Application for an extension of time to file a claim, s511 Property Agents and Motor Dealers Act 2000 APPEARANCES and REPRESENTATION: Heard on the papers -- 1 of 4 -- 2 REASONS FOR DECISION Facts [1] Mr Chamberlain lives in New Zealand. Ms Munro and her husband Dennis market Brisbane properties through displays at shopping centres throughout New Zealand. Mr Chamberlain and his wife met the Munros in 1999 at one of these displays. Between 1999 and 2003, the Chamberlains bought three Brisbane properties through the Munros. [2] By 2005, the Chamberlains became somewhat disenchanted with their Brisbane portfolio. They had sold two properties and retained only one. [3] The Chamberlains met Toni Munro again in 2006 at a shopping centre display. The Munros began to call and visit the Chamberlains and, in September 2006, the Chamberlains thought they might be interested in purchasing another property. They decided to visit Australia for a holiday. The Munros collected the Chamberlains from the airport and put them up at their home. They took the Chamberlains sightseeing and out to lunch; “everything was laid on.” [4] After a few days, Ms Munro talked to the Chamberlains about buying another property in Brisbane. She showed them a contract on a particular property that had fallen through due to lack of finance and told them that the price was reduced by $20,000 for a quick sale. Ms Munro took the Chamberlains to see the property, told them other “kiwis” had bought in the area, and told them of the strong demand for this type of property. [5] Between 16 and 20 October 2006, the Chamberlains signed a contract for the purchase of a property for $545,000. They signed the finance documents on 20 October 2006 and the sale settled on 27 October 2006. The Chamberlains have never been given a fully executed copy of the contract. [6] On 24 February 2008, Mr Chamberlain was told that the actual sale price of their property was $500,000 and that Ms Munro had pocketed the difference. He lodged a complaint with the Office of Fair Trading some time in the first half of 2008. [7] The Office of Fair Trading sent Mr Chamberlain letters dated 27 June 2008 and 31 July 2008 asking for some further information. That additional information was supplied some time late in 2008. [8] Mr Chamberlain lodged a claim against the fund on 2 July 2009. The Office of Fair Trading has rejected the claim as being out of time, as it was lodged more than one year after he became aware of his loss. The law [9] Section 472(2) of Property Agents & Motor Dealers Act states that A person may make the claim against the fund only if the person makes the claim within the earlier of the following— -- 2 of 4 -- 3 (a) 1 year after the person becomes aware that the person has suffered financial loss because of the happening of an event mentioned in section 470(1); (b) 3 years after the happening of the event that caused the person’s financial loss [10] Section 511(1)(b) of Property Agents & Motor Dealers Act sets out the matters to which the tribunal may have regard when considering an application to extend time: i the reasons for not making the claim or seeking the review within the time allowed; ii the application generally; iii for a claim, the relative hardship that an extension of time would place on the claimant or respondent; iv the justice of the matter generally. Reasons for not making the claim [11] Mr Chamberlain’s application to extend time does not give the tribunal any information about the delay in lodging a claim against the fund. I infer from the material that he thought he was making a claim when he lodged material with the Office of Fair Trading early in 2008. The material does not tell me what happened after Mr Chamberlain responded to the Office of Fair Trading’s letters in mid 2008. [12] I am satisfied that there is some explanation for some of the delay. The application generally [13] Mr Chamberlain’s statement of the facts indicates that he may have a claim of $45,000, being the difference between the price he paid for the property and the price the vendor received. [14] There is no evidence to support that claim. Importantly, there is no evidence to support the claim that the actual sale price was $500,000, not $545,000. The Office of Fair Trading has noted the need for further information on three occasions and the information before the tribunal is still deficient. It is not for either the Office of Fair Trading or this tribunal to prove Mr Chamberlain’s case for him. Relative hardship [15] In its letter of 27 June 2008, the Office of Fair Trading noted that it had received a number of complaints concerning the actions of the Munros. In the circumstances, it is unlikely that the late lodgement of this claim would cause Ms Munro any additional hardship. The tribunal has not received any submissions from Ms Munro to the contrary. [16] Mr Chamberlain has not given the tribunal any information about hardship, except to note that he and his wife had incurred additional costs in solicitor’s fees and mortgage costs. Any claim against the fund -- 3 of 4 -- 4 must necessarily involve financial loss. It requires something more than that to demonstrate “hardship” within the terms of section 511. Justice of the matter generally [17] This is not a claim submitted by an innocent and naïve purchaser. By his own admission, from prior transactions Mr Chamberlain should have been alerted to the possibility that Ms Munro may not have been all that she seemed: a) The Chamberlains did not receive promised tax credits. b) The Chamberlains were aware that other purchasers were disillusioned by their experience with the Munros. c) The Munros had not honoured rental guarantees. d) The Chamberlains had been told they had paid too much for a previous purchase. [18] In this transaction, Mr Chamberlain noted that the form of the contract was different and that Ms Munro was “very anxious” to get the paperwork signed. [19] However, I accept that even sophisticated investors can be deceived by clever marketers. The justice of the matter generally, in the absence of other factors, probably falls in favour of Mr Chamberlain. Conclusions [20] This is a claim against the Statutory Fund. As was pointed out in Fleming t/a Physiosonic Pty Ltd –v- Des Skelton Real Estate [2009] QCCTPAMD 30, the tribunal’s deliberations extend beyond considerations applying as between applicant and respondent and include any wider public interest. [21] There is some explanation for the delay in lodging the claim against the fund but there is no explanation as to why Mr Chamberlain’s claim is still so lacking in detail almost two years after he and his wife suffered their loss. It is this lack of detail that makes it difficult for the tribunal to form a view about the merits of Mr Chamberlain’s claim. Mr Chamberlain has not pointed to any hardship that he will suffer if the time for lodging the claim is not extended. [22] I dismiss the application. -- 4 of 4 --