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The Chief Executive Officer, Office of Fair Trading, Department of Justice and Attorney-General v Wilsher

 

[2020] QCAT 257

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

The Chief Executive Officer, Office of Fair Trading, Department of Justice and Attorney-General v Wilsher [2020] QCAT 257

PARTIES:

The Chief Executive Officer, Office of Fair Trading, Department of Justice and Attorney-General

(applicant)

 

v

 

paul james wilsher

(respondent)

APPLICATION NO/S:

OCL013-20

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

2 July 2020

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Kanowski

ORDERS:

  1. Paul James Wilsher is, pursuant to sections 117 and 119 of the Agents Financial Administration Act 2014 (Qld), liable to reimburse and is ordered to pay to the chief executive the sum of $48,034.62 within 21 days of the date of this order.
  2. Paul James Wilsher is, pursuant to sections 117 and 119 of the Agents Financial Administration Act 2014 (Qld), liable to reimburse and is ordered to pay to the claim fund established under section 78 of the Agents Financial Administration Act 2014 (Qld) the sum of $16,168.48 within 21 days of the date of this order.

CATCHWORDS:

PROFESSIONS AND TRADES – AUCTIONEERS AND AGENTS – STATUTORY OR OTHER FIDELITY OR COMPENSATION FUND – where receiver appointed to trust property of real estate agent – where compensation paid to clients of real estate agent – where reimbursement order sought by regulator – whether requirements for reimbursement order met

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

REPRESENTATION:

 

Applicant:

N Pirie, delegate of applicant

Respondent:

No appearance

APPEARANCES:

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

REASONS FOR DECISION

Introduction

  1. [1]
    Mr Wilsher was a licensed real estate agent and the director of Spot4rent Pty Ltd.
  2. [2]
    In this proceeding, the applicant (‘Office of Fair Trading’) seeks reimbursement orders against Mr Wilsher under the Agents Financial Administration Act 2014 (Qld) (‘Agents Financial Administration Act’).
  3. [3]
    Under section 119 of the Agents Financial Administration Act, the Tribunal must make a reimbursement order if satisfied that certain conditions are met.
  4. [4]
    Office of Fair Trading seeks an order for $48,034.62 payable to the chief executive, relating to payments made to a receiver, and an order for $16,168.48 payable to the claim fund under the Agents Financial Administration Act. I will discuss these in turn.

Application for reimbursement order of $48,034.62.

The application and any submissions from Mr Wilsher 

  1. [5]
    Under section 119(1) of the Agents Financial Administration Act, I must consider the application made by the Office of Fair Trading and any submissions made by Mr Wilsher.
  2. [6]
    According to the application and the attached documents:
    1. (a)
      on 7 July 2016, the chief executive appointed Julie Williams of Insolvency and Turnaround Solutions as receiver over the trust property of Spot4rent Pty Ltd and Mr Wilsher;
    2. (b)
      over the following few months, the receiver invoiced the chief executive for fees and costs totalling $48,034.62 (not including goods and services tax);
    3. (c)
      the chief executive paid those invoices;
    4. (d)
      Office of Fair Trading sought payment of this amount from Mr Wilsher, within one month, in a letter of demand dated 20 April 2017; and
    5. (e)
      Mr Wilsher has not paid any of that amount. 
  1. [7]
    On 3 February 2020 the Tribunal issued a direction requiring Mr Wilsher to file a response and any submissions by 24 March 2020. However, Mr Wilsher has not filed anything.
  2. [8]
    I note that Mr Wilsher is liable to reimburse the chief executive for the receiver’s remuneration and costs, both as an agent in relation to whom the receiver was appointed and as director of Spot4rent Pty Ltd at the time of the appointment of the receiver for the company’s trust property.[1]
  3. [9]
    I am satisfied that the letter of 20 April 2017 was a letter of demand under section 64(4) of the Agents Financial Administration Act.

Has Mr Wilsher paid the required amount?

  1. [10]
    Under section 119(2)(a) of the Agents Financial Administration Act, I must consider whether Mr Wilsher has paid the stated amount within the time allowed in the letter of demand.
  2. [11]
    On the basis of the uncontested information in the application, I find that Mr Wilsher has not done so.

Consequence

  1. [12]
    As a result of the finding made in the preceding paragraph, I must make a reimbursement order for the sum of $48,034.62.[2]

Application for reimbursement order of $16,168.48

  1. [13]
    Under section 119(1)(a) of the Agents Financial Administration Act, I must consider the application made by the Office of Fair Trading and any submissions made by Mr Wilsher. However, as already noted, Mr Wilsher has not made any submissions.
  2. [14]
    According to the application and the attached documents:
    1. (a)
      in 2016 and 2017, Office of Fair Trading made 20 decisions allowing claims by former clients of Spot4rent Pty Ltd against the claim fund under the Agents Financial Administration Act;
    2. (b)
      the amount of those claims totalled $60,345.19;
    3. (c)
      the decisions named Spot4rent Pty Ltd and Mr Wilsher as jointly and severally liable to reimburse the claim fund for payments made under the claims;
    4. (d)
      Office of Fair Trading sent Mr Wilsher notice of each decision;
    5. (e)
      Mr Wilsher did not apply to QCAT for a review of any of the decisions;
    6. (f)
      Office of Fair Trading made the payments from the claim fund;
    7. (g)
      the receiver remitted to Office of Fair Trading $44,176.71, being the balance of Spot4rent Pty Ltd’s trust account, and Office of Fair Trading applied this amount toward the $60,345.19;
    8. (h)
      this left $16,168.48;
    9. (i)
      in the letter of demand dated 20 April 2017 which has been referred to earlier in these reasons, Office of Fair Trading required Mr Wilsher to pay $16,168.50 within 28 days;
    10. (j)
      he has not paid any of that amount; and
    11. (k)
      Spot4rent Pty Ltd was deregistered in 2016.
  3. [15]
    Office of Fair Trading acknowledges that the figure of $16,168.50 in the letter of demand overstated the amount due by two cents. It says this was a typographical error, though it seems to me that it was, rather, an arithmetical error. I note that the letter of demand did explain that the original liability for payments made on claims totalled $60,345.19, and that this liability had been reduced by the $44,176.71 that had been remitted by the receiver. The letter of demand then explained that the difference – which it wrongly stated was $16,168.50 rather than $16,168.48 – was to be paid within 28 days. I consider that the error was so minimal and so readily discernible that it does not affect the validity of the letter of demand.

Has Mr Wilsher paid the required amount?

  1. [16]
    Under section 119(2)(a) of the Agents Financial Administration Act, I must consider whether Mr Wilsher has paid the stated amount within the time allowed under the letter of demand. I find that he has not paid that amount, or any of that amount.

Other matters: section 119(2)(b) of the Agents Financial Administration Act

  1. [17]
    I am required to consider whether I am satisfied of certain other matters.

Whether the chief executive has made a decision about a claim against the fund

  1. [18]
    I am satisfied that the chief executive made 20 such decisions, as outlined above.

Whether under section 116 of the Agents Financial Administration Act Mr Wilsher is liable to reimburse the fund in a stated amount

  1. [19]
    I am satisfied that Mr Wilsher, as a person named in the 20 decision notices as liable, is liable to reimburse the fund $16,168.48, which is the total of the amounts paid less the amount remitted by the receiver.

Whether (relevantly) Mr Wilsher did not apply to QCAT under section 103 of the Agents Financial Administration Act for a review of the decisions to allow the claims

  1. [20]
    I am satisfied that Mr Wilsher did not so apply.

Whether written notice of the chief executive’s decision, a copy of the decision, and an information notice under section 102 of the Agents Financial Administration Act was given to Mr Wilsher

  1. [21]
    Having regard to the copies of the correspondence attached to the application for a reimbursement order, I am satisfied that such notice was given to Mr Wilsher.

Consequence

  1. [22]
    As I am satisfied of all relevant matters, I must make a reimbursement order for $16,168.48.[3]

Conclusion

  1. [23]
    In making a reimbursement order, I must specify a period for payment.[4] Office of Fair Trading seeks payment within 21 days. I consider that reasonable, and I will make reimbursement orders substantially in the terms sought by Office of Fair Trading.

Footnotes

[1] Agents Financial Administration Act, s 64(1).

[2] Ibid, s 119(2)(a).

[3] Agents Financial Administration Act, s 119(2).

[4] Ibid, s 119(4).

Close

Editorial Notes

  • Published Case Name:

    The Chief Executive Officer, Office of Fair Trading, Department of Justice and Attorney-General v Wilsher

  • Shortened Case Name:

    The Chief Executive Officer, Office of Fair Trading, Department of Justice and Attorney-General v Wilsher

  • MNC:

    [2020] QCAT 257

  • Court:

    QCAT

  • Judge(s):

    Member Kanowski

  • Date:

    02 Jul 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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