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Queensland Judgments
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The Chief Executive, Office of Fair Trading, Department of Justice & Attorney-General v Power

 

[2020] QCAT 159

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

The Chief Executive, Office of Fair Trading, Department of Justice & Attorney-General v Power [2020] QCAT 159

PARTIES:

THE CHIEF EXECUTIVE, OFFICE OF FAIR TRADING, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL

(applicant)

 

v

 

HAYDEN POWER

(respondent)

APPLICATION NO/S:

OCL027-19

MATTER TYPE:

General administrative review matters

DELIVERED ON:

11 May 2020

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Hughes

ORDERS:

Pursuant to sections 117 and 119 of the Agents Financial Administration Act 2014 (Qld), Hayden Power is ordered to pay to the Claim Fund established under section 78 of the Agents Financial Administration Act 2014 (Qld) the sum of $16,771.57 within 21 days of the date of this order.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – Claim Fund under Agents Financial Administration Act 2014 (Qld) – whether reimbursement order should be made – where property agent misused trust funds – where requirements for reimbursement order met – where Tribunal does not have discretion once requirements met

Agents Financial Administration Act 2014 (Qld), s 64, s 102, s 117, s 118, s 119

Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 39

The Chief Executive, Department of Justice and Attorney-General v Wanless [2015] QCAT 128

APPEARANCES:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

REASONS FOR DECISION

What is this Application about?

  1. [1]
    Hayden Power, while trading as Realway Property Consultants Tiaro, misused trust funds totalling $16,771.57.
  2. [2]
    Eight claims were made against the Claim Fund under the Agents Financial Administration Act 2014 (Qld). The Chief Executive, Office of Fair Trading, Department of Justice and Attorney-General paid the claims equating to $16,771.57.
  3. [3]
    Consequently, the Chief Executive now seeks reimbursement of $16,771.57 from Mr Power.

Have the requirements for a reimbursement order been met?

  1. [4]
    The Tribunal must make a reimbursement order if:
    1. (a)
      The application includes the prescribed Information Notice, letter of demand and statutory declaration attesting to the amount owing;[1]
    2. (b)
      Mr Power has not paid the amount owing;[2]
    3. (c)
      The Chief Executive has made a decision about the claim against the Fund;[3]
    4. (d)
      The Chief Executive’s decision names Mr Power as the person liable to reimburse the Fund;[4]
    5. (e)
      Mr Power did not apply to the Tribunal to review the Chief Executive’s decision, or upon review the Tribunal decided Mr Power is liable to reimburse an amount to the Fund;[5] and
    6. (f)
      Written notice of the Chief Executive’s decision, a copy of the decision and the prescribed Information Notice were given to Mr Power.[6]
  2. [5]
    Upon these requirements being met, the Tribunal does not have a discretion – it must make a reimbursement order.[7]
  3. [6]
    The Application filed on 3 April 2019 includes:
    1. (a)
      Information Notices for eight separate claims under the Fund totalling $16,771.57;[8]
    2. (b)
      A letter of demand for $16,771.57 comprising the eight claims under the Fund;[9] and
    3. (c)
      A Statutory Declaration signed by the Chief Executive’s authorised delegate attesting that $16,771.57 remains outstanding to the Fund.[10]
  4. [7]
    The Chief Executive sent the Information Notices and letter of demand by ordinary prepaid post to the last known address of Mr Power.[11] The Information Notices gave them written notice of the Chief Executive’s decision and reasons for each claim and that they are liable to reimburse the Fund for the amounts paid.[12]
  5. [8]
    The Chief Executive sent the Application by post to the last known address of Mr Power,[13] and invited him to make written submissions,[14] for the Tribunal’s consideration about when and how he intended to satisfy the amount owing.[15] The Tribunal also gave Mr Power an opportunity to file written submissions.[16] 
  6. [9]
    Mr Power did not apply to review the Chief Executive’s decisions or otherwise engage with the Tribunal process.
  7. [10]
    I am therefore satisfied:
    1. (a)
      The Chief Executive has made a decision for each of the claims against the Fund;
    2. (b)
      Written notice of the Chief Executive’s decisions, the decisions and prescribed Information Notices were given to Mr Power;
    3. (c)
      Mr Power did not apply to the Tribunal to review any of the claims;
    4. (d)
      Mr Power has not paid any of the amounts owing; and
    5. (e)
      Mr Power is solely liable to reimburse the Fund the sum of $16,771.57. 

What are the appropriate orders?

  1. [11]
    Because I am satisfied that the prescribed requirements are met, I must make a reimbursement order.
  2. [12]
    The appropriate order is that pursuant to sections 117 and 119 of the Agents Financial Administration Act 2014 (Qld), Hayden Power is ordered to pay to the Claim Fund established under section 78 of the Agents Financial Administration Act 2014 (Qld) the sum of $16,771.57 within 21 days of the date of this order.

Footnotes

[1] Agents Financial Administration Act 2014 (Qld), s 117.

[2]  Ibid s 119(2)(a).

[3]  Ibid s 119(3)(a).

[4]  Ibid s 119(3)(b), s 116(1)(a).

[5]  Ibid s 119(3)(c).

[6]  Ibid s 119(3)(d).

[7] The Chief Executive, Department of Justice and Attorney-General v Wanless [2015] QCAT 128.

[8]  Bundle of Information Notices dated various.

[9]  Letter Susan Monfries to Hayden Power dated 8 January 2019.

[10]  Statutory Declaration of Nicholas Pirie sworn 8 March 2019, paragraphs 2, 3.

[11]  Statement of Claim signed by Nicholas Pirie dated 28 March 2019, paragraphs 31, 34.

[12] Agents Financial Administration Act 2014 (Qld), s 102.

[13] Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 39; QCAT Practice Direction 8 of 2009; Affidavit of Susan Monfries sworn 3 May 2019.

[14]  Letter Susan Monfries to Hayden Power dated 30 April 2019.

[15] Agents Financial Administration Act 2014 (Qld), s 118(1)(c).

[16]  Direction 2 dated 7 May 2019.

Close

Editorial Notes

  • Published Case Name:

    The Chief Executive, Office of Fair Trading, Department of Justice & Attorney-General v Hayden Power

  • Shortened Case Name:

    The Chief Executive, Office of Fair Trading, Department of Justice & Attorney-General v Power

  • MNC:

    [2020] QCAT 159

  • Court:

    QCAT

  • Judge(s):

    Member Hughes

  • Date:

    11 May 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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