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

 

[2020] QCAT 276

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

The Chief Executive, Office of Fair Trading, Department of Justice & Attorney-General v Martin [2020] QCAT 276

PARTIES:

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

(applicant)

v

MARILYN JOYCE MARTIN

(respondent)

APPLICATION NO/S:

OCL001-20

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

20 July 2020

HEARING DATE:

14 July 2020

HEARD AT:

Brisbane

DECISION OF:

Member Hughes

ORDERS:

Pursuant to sections 117 and 119 of the Agents Financial Administration Act 2014 (Qld), Marilyn Joyce Martin is ordered to pay to the Claim Fund established under section 78 of the Agents Financial Administration Act 2014 (Qld) the sum of $89,732.99 within 21 days of the date of this order.

CATCHWORDS:

PROFESSIONS AND TRADES – AUCTIONEERS AND AGENTS – STATUTORY OR OTHER FIDELITY OR COMPENSATION FUND – 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

Featherstone v Department of Justice and Attorney-General (No 2) [2015] QCAT 329

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

APPEARANCES &

REPRESENTATION:

Applicant:

Self-represented

Respondent:

Mr A Tan, Senior Recoveries Officer

REASONS FOR DECISION

What is this Application about?

  1. [1]
    Marilyn Joyce Martin misused trust funds totalling $89,732.99 while acting as an unlicensed property agent.
  2. [2]
    The Chief Executive, Office of Fair Trading, Department of Justice and Attorney-General ordered $89,732.99 to be paid from the Claim Fund to the persons whose funds were misused.
  3. [3]
    Consequently, the Chief Executive now seeks reimbursement of $89,732.99 from Ms Martin.

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)
      Ms Martin 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 Ms Martin as the person liable to reimburse the Fund;[4]
    5. (e)
      Ms Martin did not apply to the Tribunal to review the Chief Executive’s decision, or upon review the Tribunal decided Ms Martin is liable to reimburse an amount to the Fund;[5]
    6. (f)
      Written notice of the Chief Executive’s decision, a copy of the decision and the prescribed Information Notice were given to Ms Martin.[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 20 December 2019 includes:
    1. (a)
      Information Notices for 18 separate claims under the Fund totalling $89,732.99;[8]
    2. (b)
      A letter of demand for $89,732.99 comprising the 18 claims under the Fund;[9] and
    3. (c)
      A statutory declaration of the Chief Executive’s authorised delegate attesting that $89,732.99 remains outstanding to the Fund, used to settle 18 claims.[10]
  4. [7]
    The Chief Executive sent the Information Notices and letter of demand by ordinary prepaid post to the last known address of Ms Martin.[11] The Information Notices gave Ms Martin written notice of the Chief Executive’s decision and reasons for each claim and that she is 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 Ms Martin,[13] and invited her to make written submissions,[14] for the Tribunal’s consideration about when and how she intends to satisfy the amount owing.[15] The Tribunal also gave Ms Martin an opportunity to file written submissions.[16] 
  6. [9]
    Ms Martin did not apply to review the Chief Executive’s decisions.
  7. [10]
    Ms Martin did file written submissions acknowledging the debt and referring to a payment plan she had proposed to the Chief Executive. She also explained that she has health issues, does not have any assets of great value and cannot understand why it is not considered that she has not been punished sufficiently already.[17]
  8. [11]
    The purpose of these proceedings is not to punish Ms Martin, but to protect the public interest by maintaining confidence in the integrity of the industry as a whole.[18] Unfortunately for Ms Martin, it is not within the Tribunal’s purview to provide time to pay.
  9. [12]
    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 Ms Martin;
    3. (c)
      Ms Martin did not apply to the Tribunal to review any of the claims;
    4. (d)
      Ms Martin has not paid any of the amounts owing; and
    5. (e)
      Ms Martin is liable to reimburse the Fund the sum of $89,732.99. 

What are the appropriate orders?

  1. [13]
    Because I am satisfied that the prescribed requirements are met, I must make a reimbursement order.
  2. [14]
    The appropriate order is that pursuant to sections 117 and 119 of the Agents Financial Administration Act 2014 (Qld), Marilyn Joyce Martin is ordered to pay to the Claim Fund established under section 78 of the Agents Financial Administration Act 2014 (Qld) the sum of $89,732.99 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 Adrian Tan to Marilyn Joyce Martin dated 2 October 2018.

[10] Statutory Declaration of Nicholas Pirie sworn 10 December 2019.

[11] Affidavit of Brett Gough sworn 26 February 2020.

[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 Brett Gough sworn 26 February 2020.

[14] Letter Brett Gough to Marilyn Joyce Martin dated 24 February 2020.

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

[16] Direction 2 dated 4 February 2020.

[17] Letter Marilyn Martin to QCAT dated 23 March 2020.

[18] Featherstone v Department of Justice and Attorney-General (No 2) [2015] QCAT 329, [28] to [30].

Close

Editorial Notes

  • Published Case Name:

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

  • Shortened Case Name:

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

  • MNC:

    [2020] QCAT 276

  • Court:

    QCAT

  • Judge(s):

    Member Hughes

  • Date:

    20 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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