Briggs and Anor v Wilen Pty Ltd and Ors [2012] QCAT 405

CITATION: Briggs and Anor v Wilen Pty Ltd and Ors [2012] QCAT 405 PARTIES: Ivan Briggs Barbara Briggs v Wilen Pty Ltd Jeffrey Dean Allen Lee Terry Wilson APPLICATION NUMBER: GAR168-12 MATTER TYPE: Other civil dispute matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Peta Stilgoe, Senior Member DELIVERED ON: 3 September 2012 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 $64,207.50. [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 Ivan Briggs and Mrs Barbara Briggs the sum of $64,207.50 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, Wilen Pty Ltd, Mr Jeffrey Dean Allen and Mr Lee Terry Wilson are named as the persons responsible for the financial loss of Mr Ivan Briggs and Mrs Barbara Briggs. [4] Upon payment from the Claim Fund and pursuant to ss 490 and 530 of the Property Agents and Motor -- 1 of 4 -- 2 Dealers Act 2000, Wilen Pty Ltd, Mr Jeffrey Dean Allen and Mr Lee Terry Wilson are liable (and if more than one, jointly and severally) to reimburse the Claim Fund by paying the sum of $ 64,207.50 to the Chief Executive, Department of Justice and Attorney General. CATCHWORDS: PROPERTY AGENT – where deposit for purchase paid into trust – where money transferred from trust to the agent’s business account – where transfer without authority – where money not available to account to vendor Property Agents and Motor Dealers Act 2000, ss 385, 386, 470,470(1)(e), 488, 490(2) 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 and Mrs Briggs appointed Wilen Pty Ltd as agent to sell their property at Main Beach. Messrs Allen and Wilson were licensees and directors of Wilen, which traded as Wilson Allen Real Estate Agents. [2] Wilen negotiated a sale of the property. The buyers paid a deposit of $93,000 into the Wilen trust account on 20 August 2011. The sale settled on 30 November 2011. Wilen has not paid Mr and Mrs Briggs any of the deposit. [3] Mr and Mrs Briggs made a claim on the statutory claim fund for $93,000. Messrs Wilson and Allen received notice of the claim. The company is under external administration. [4] In considering a claim against the fund, the tribunal must be satisfied1 that an event as mentioned in section 470(1) happened; and that the claimant suffered financial loss because of the event. [5] 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 and any amount ordered to be paid to the claimant as compensation to the claimant under sections 530A, 572D or 592A of PAMDA2. 1 Section 488(2) Property Agents and Motor Dealers Act 2000. 2 Section 488(3)(a). -- 2 of 4 -- 3 [6] 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 [7] The company’s receiver reports that $93,000 was withdrawn from the company trust account by three electronic transfers between 26 August 2011 and 29 August 2011. The funds were transferred to the company’s business account. It has not been recovered. The receiver concludes that the transfers were not permitted drawings under PAMDA4. He also concludes that the company did not keep proper trust account records5 and that the withdrawal from trust was a stealing, misappropriation or misapplication of the funds6. [8] I agree with the receiver’s conclusions. Each of these breaches is an “event” under s 470(1). I am therefore satisfied that there has been an “event” within s 470(1). Financial loss [9] Although Mr and Mrs Briggs lodged a claim for $93,000, the receiver has assessed their loss as $64,207.50. The difference between the two figures is the agent’s commission of $28,682.50 and $110 for the cost of producing a disclosure statement. These amounts would have been deducted from the amount in trust if the transaction had proceeded normally, and there had been no misappropriation of the funds. Mr and Mrs Briggs would have received $64,207.50, not $93,000. The lower figure is the correct assessment of their loss. [10] I am satisfied that Mr and Mrs Briggs suffered a financial loss because of Wilen’s breach of its trust account obligations. I am further satisfied that $64,207.50 is a proper assessment of Mr and Mrs Briggs’s loss. Other matters [11] I am required to take into account any amount Mr and Mrs Briggs may have received or recovered if not for their neglect or default. [12] There is no evidence to suggest that Mr and Mrs Briggs 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? [13] Wilen, as the principal of Wilson Allen Real Estate Agents, is liable for the loss. [14] 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. 3 Section 488(3)(b) and (c). 4 Section 385. 5 Section 386. 6 Section 470(1)(e). -- 3 of 4 -- 4 [15] As directors of Wilen, Messrs Allen and Wilson were executive officers of the company. Because I have found that the company is a responsible person, it follows that they must also be responsible persons. Orders [1] Pursuant to s 488 of the Property Agents and Motor Dealers Act 2000, the claim is allowed in the sum of $64,207.50. [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 Ivan Briggs and Mrs Barbara Briggs the sum of $64,207.50 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, Wilen Pty Ltd, Mr Jeffrey Dean Allen and Mr Lee Terry Wilson are named as the persons responsible for the financial loss of Mr Ivan Briggs and Mrs Barbara Briggs. [4] Upon payment from the Claim Fund and pursuant to sections 490 and 530 of the Property Agents and Motor Dealers Act 2000, Wilen Pty Ltd, Mr Jeffrey Dean Allen and Mr Lee Terry Wilson are liable (and if more than one, jointly and severally) to reimburse the Claim Fund by paying the sum of $64,207.50 to the Chief Executive, Department of Justice and Attorney General. -- 4 of 4 --