Blacket and Anor v Wight and Anor [2012] QCAT 158

CITATION: Blacket and Anor v Wight and Anor [2012] QCAT 158 PARTIES: Miss Karina Ann Blacket Miss Belinda Weir v Mr Vince G Wight Mrs Dorothy Lyraine Wight APPLICATION NUMBER: GAR045-12 MATTER TYPE: General administrative review matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Peta Stilgoe, Senior Member DELIVERED ON: 12 April 2012 DELIVERED AT: Brisbane ORDERS MADE: 1. The application for an extension of time in which to lodge a claim against the fund is refused. CATCHWORDS: REAL ESTATE AGENT – where land represented as having driveway and building pad – where land did not have driveway and building pad – where claim against the fund more that 1 year after being aware of financial loss – where request for extension of time in which to lodge claim against the fund Property Agents and Motor Dealers Act 2000, ss 472(2), 488(2), 511 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] Misses Blacket and Weir made a claim on the statutory fund on 19 December 2011 in relation to their purchase of a property in North -- 1 of 3 -- 2 Queensland in 2008. The Office of Fair Trading declined the claim as it was lodged more than 1 year after Misses Blacket and Weir became aware of their financial loss. They have applied to the tribunal to extend the time in which to make a claim on the fund. [2] Mr Wight was a real estate agent. He and his wife operated Raine & Horne Mossman. He advertised a property for sale in the Daintree area as “ready to build on” and “driveway is in”. Photographs of the advertised property, described as lot 33, showed a driveway and building pad had been constructed. In fact, the photographs were of lot 32, next door, and lot 33 was unimproved. [3] Misses Blacket and Weir signed the contract on 20 November 2008 and settled on 7 January 2009. One year after purchase, Misses Blacket and Weir were told that their house plans were not for the block that they had purchased and that their land was not improved by a driveway or building pad. The Chief Executive’s Claim out of time notice records that Misses Blacket and Weir became aware of their financial loss on 20 December 2009, but I have been provided with no other information as to the circumstances in which they became aware of their loss. [4] Section 472(2) of the Property Agents and Motor Dealers Act 2000 provides that a person may make a claim against the statutory fund within the earlier of: a) 1 year after the person becomes aware of financial loss because of the happening of the event; or b) 3 years after the happening of the event that caused the financial loss. [5] Section 511 of PAMDA provides that the tribunal can extend the time for making a claim on the fund having regard to: a) The reasons for not making the claim or seeking the review within the time allowed. b) The application generally. c) The relative hardship that an extension of time, or a refusal to extend time, would place on the claimant or the respondent. Reasons for not making the claim [6] Misses Blacket and Weir say that the reasons they did not take action within 1 year of becoming aware of their financial loss are: a) “As the respondent (Mr Wight) had since retired we were told by QCAT not to apply and to seek legal advice and proceed this avenue.” b) After months of delays from their lawyers, and Mr Wight claiming that he was not responsible, Misses Blacket and Weir’s lawyers told them that it would not be financially viable to proceed. c) It was not until they had nowhere else to go that they were told to contact QCAT again and submit another claim. [7] Misses Blacket and Weir had to make a claim by 19 December 2010. The correspondence filed with their application refers to a telephone conference with their barrister on 24 June 2010. Counsel advised that -- 2 of 3 -- 3 they had reasonably high prospects of success and a good starting point would be a letter of demand. [8] The letter of demand was sent by letter of 14 April 2011. By that time, the period for making a claim on the fund had already expired. There is no explanation for the delay between June 2010 and April 2011 or, indeed, between June 2010 and December 2010. [9] Misses Blacket and Weir do not say when they had their first conversation with QCAT. Even if the conversation occurred as reported, the tribunal was not a factor in the delay in making the claim. It is not the tribunal’s role to tell people what applications they should make. An officer of the tribunal suggested they seek legal advice and they did seek that advice. [10] The alleged delays by the lawyers occurred after the time in which Misses Blacket and Weir could lodge a claim with the fund. The application generally [11] In considering a claim against the fund, the Tribunal must take into account any amount the claimant might reasonably have received or recovered if not for the claimant’s neglect or default1. [12] Mr Wight makes the point that Misses Blacket and Weir did not do all necessary searches before settlement and, if they had, the error would have come to light. Misses Blacket and Weir concede that they were offered a survey but decided that it was not necessary. A significant issue in any claim against the fund would be whether this action by Misses Blacket and Weir affects their ability to claim against the fund. The relative hardship that an extension of time, or a refusal to extend time, would place on the claimant or the respondent [13] It is clear that all parties to this dispute are suffering. Miss Blacket is working two jobs; Miss Weir is studying full-time and working part-time. They have spent money on the land which is now worth less that what they paid for it. If they sold the land, they would not clear enough to pay the mortgage. They have been unable to proceed with their life plans. [14] Mr and Mrs Wight are both on disability pensions. They live in a shed. [15] The relative hardship that Misses Blacket and Weir may suffer if the tribunal does not grant an extension of time, given Mr and Mrs Wight’s circumstances, is not so great that it overcomes the absence of a reason for failing to lodge a claim in time or the difficulties presented by the choices they made during the conveyancing process. Conclusion [16] Misses Blacket and Weir have not provided me with a satisfactory explanation about their delay in lodging a claim against the fund. The extension of time should not be granted. 1 Section 488(2). -- 3 of 3 --