Christmas v AP Premier Properties Pty Ltd
[2015] QCAT 527
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- Unreported Judgment
- Christmas v AP Premier Properties Pty Ltd[2015] QCAT 527
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Christmas v AP Premier Properties Pty Ltd[2015] QCAT 527
Christmas v AP Premier Properties Pty Ltd[2015] QCAT 527
CITATION: | Christmas v AP Premier Properties Pty Ltd & Ors [2015] QCAT 527 |
PARTIES: | Mark Richard Christmas (Applicant) |
v | |
AP Premier Properties Pty Ltd t/as Ray White Graceville (First Respondent) The Chief Executive, Office of Fair Trading, Department of Justice & Attorney-General (Second Respondent) Anthony Paul Poulsen (Third Respondent) Maria Peirce (Fourth Respondent) |
APPLICATION NUMBER: | GAR110-15 |
MATTER TYPE: | General administrative review matters |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Member Hughes |
DELIVERED ON: | 21 December 2015 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
|
CATCHWORDS: | CLAIM FUND – PROPERTY AGENT – STATUTORY TIME LIMIT – whether claim brought within time – where property was flood prone – where allegation that Agent misrepresented flood level – where claim had to be brought within the earlier of one year of becoming aware of suffering financial loss because of misrepresentations or three years after event that caused loss – where earlier date was three years from settlement of property for artificially inflated purchase price – where claim brought over four years after this – whether Tribunal can extend time – where applicant had no right to claim against statutory fund – where Tribunal cannot extend time that is essential element of a statutory right – where enabling legislation imposes mandatory time limit as condition to right to apply for compensation Acts Interpretation Act 1954, s 38 Agents Financial Administration Act 2014, s 155 Property Agents and Motor Dealers Act 2000, ss 470, 472, 574 Queensland Civil and Administrative Tribunal Act, ss 20, 33, 61 Hewitt and Hosking v. The Property Agents and Motor Dealers Tribunal and John Gallagher [2003] QSC 101 Phipps v. Ross Stephens [2003] CCT W043-02 Queensland Building and Construction Commission v. Watkins [2014] QCAT 172 Watkins v. Queensland Building Services Authority [2013] QCAT 535 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
What is this application about?
- [1]Mr Mark Christmas is one of the many unfortunate victims of the January 2011 floods. The floods severely damaged his Graceville residence, having risen to just below roof level.[1]
- [2]Some four years later on 23 February 2015, Mr Christmas claimed against the Claim Fund under the Agents Financial Administration Act 2014 (Qld) (Agents Act).[2] Mr Christmas claimed that when he bought the property in November 2007, the Agent had told him that the property had only flooded to below knee level in the 1974 flood.
- [3]However, on 9 April 2015 the Chief Executive, Office of Fair Trading, Department of Justice & Attorney-General dismissed his claim because it was outside the prescribed time limit.
- [4]Mr Christmas applied to the Tribunal on 18 May 2015 to review the Chief Executive’s decision to dismiss his claim and allow him to proceed with his claim.
- [5]The Tribunal’s role is to produce the correct and preferable decision by way of a fresh hearing on the merits.[3]
What about Mr Christmas’ application to extend time filed on 18 May 2015?
- [6]Mr Christmas also filed a separate application with the Tribunal on 18 May 2015 for an “extension as I didn’t receive the decision from Office of Fair Trading until the 18th April 2015 by mail”.[4]
- [7]An application to review the Chief Executive’s decision must be made within 28 days after the applicant is notified of the decision.[5] Excluded from calculating the 28 days are the day the period begins, the day to fulfil the purpose (filing the application) and days when the registry is closed.[6]
- [8]Mr Christmas received the decision dismissing his claim on 18 April 2015. The first day the registry was open after this was 20 April 2015. Excluding this day and weekends when the registry was not open, 28 days from 20 April 2015 is 27 May 2015, the day to fulfil the purpose.
- [9]Because that day is also excluded from calculating the 28 days, Mr Christmas was required to file his Application for review by 28 May 2015. Mr Christmas filed his application for review on 18 May 2015 and it is therefore within time.
- [10]Because Mr Christmas’ application for review is deemed to have been filed within time, he does not need the Tribunal to extend this time and his application to extend time to file his review application is therefore dismissed.
Is Mr Christmas’ substantive claim outside the prescribed time limit?
- [11]The Agents Act governs the Claim Fund. However, that Act did not commence until 1 December 2014. Before then, the Property Agents and Motor Dealers Act 2000 (repealed Act) established and governed the Fund.
- [12]A person can only claim against the Fund if the time under the repealed Act to bring the claim has not expired.[7] The repealed Act provided that a person may only claim against the Fund within the earlier of:
- one year of becoming aware of suffering financial loss because of ‘an event mentioned in section 470(1)’;[8] or
- three years after ‘the event that caused the person’s financial loss’.[9]
When is one year from the ‘event mentioned in section 470(1)’?
- [13]The event ‘mentioned in section 470(1)’ is the agent’s alleged false representations about the flood levels of the property.[10]
- [14]Mr Christmas did not become aware of suffering financial loss because of those alleged representations until his house was damaged in January 2011. One year from the last day of January 2011 - the latest possible date of flooding - is 1 February 2012.
- [15]Alternatively, even if Mr Christmas’s loss did not crystallise until the date of the market valuation on 7 October 2011, one year from then is 8 October 2012.
When is three years after ‘the event that caused the person’s financial loss’?
- [16]Even if ‘the event that caused the person’s financial loss’ is the actual January 2011 floods, three years from the last day of January 2011 – the latest possible date of flooding – is 1 February 2014. Mr Christmas lodged his claim against the Fund on 23 February 2015, over one year outside the prescribed period.
- [17]However, Mr Christmas did not claim the cost of repairs as his loss. Rather, he claimed the difference of $349,000 between the amount he paid for the property of $869,000.00 on 15 November 2007 and a market valuation on 7 October 2011 of $520,000.00.[11] The valuation evidence indicates that Mr Christmas’s property was flood prone, even before the 2011 floods.[12]
- [18]This suggests that the ‘event that caused the person’s financial loss’ was the settlement of the property for an artificially inflated purchase price. This would mean that Mr Christmas suffered financial loss at the time of settlement on 15 November 2007.
- [19]Three years from this date is 16 November 2010.
Which is the earlier of these periods?
- [20]This means that the possible dates by when Mr Christmas should have claimed against the Fund were:
- 8 October 2012 (1 year from becoming aware of market valuation); or
- 16 November 2010 (3 years from settlement).
- [21]Mr Christmas lodged his claim after both these dates.
- [22]However, the legislation requires Mr Christmas to have lodged his claim by the earlier of these dates. The earlier date is 18 November 2010. Mr Christmas lodged his claim with the Chief Executive on 23 February 2015, over four years outside the prescribed period.
Can the Tribunal extend the time for Mr Christmas to claim against the Fund?
- [23]Mr Christmas explained that he was late in submitting his claim because he was suffering from clinical depression. To support this, he filed three medical reports from his General Practitioner confirming that he has been treated for clinical depression since December 2010.[13] This is after the expiry of the prescribed period for him to lodge his claim.
- [24]
- [25]Unfortunately for Mr Christmas, his late lodging of his claim is not a mere procedural deficiency. The time limits are of the essence of the right created by the repealed Act.[16] This means he lost his right to claim against the former Fund before the commencement of the Agents Act and therefore had no right to claim against the new fund.[17]
- [26]The Tribunal’s general procedural power to extend time is subject to the specific enabling legislation. Mr Christmas did not have a right to compensation but merely a right to apply for compensation under the enabling legislation. That enabling legislation imposes a mandatory time period as a condition to the right to apply for compensation:
The Tribunal’s jurisdiction is derived from various “enabling Acts”… An enabling Act may vary or exclude provisions of the QCAT Act… any such provision… prevails over inconsistent provisions of the QCAT Act, and that Act must be read accordingly.[18]
- [27]Because Mr Christmas’s right to apply for compensation was subject to the time limitation in the enabling legislation, he no longer has the right to apply. The Tribunal cannot extend to Mr Christmas a substantive right that he no longer has.[19] The Tribunal therefore does not have any discretion and cannot extend the time for him to claim against the Fund.[20]
What is the ‘correct and preferable’ decision?
- [28]Because Mr Christmas did not claim against the Fund within the statutory time limitation conferring upon him the right to apply for compensation, the correct and preferable decision is that the decision of the Chief Executive that his claim is invalid is confirmed.
Footnotes
[1] Mr Christmas provided two quotes indicating repairs of more than $200,000.00: Quote of John Galvin dated 31 May 2011 for $222,100.00 and Quote of PriceRight House Raising and Restumping dated 1 June 2011 for $208,946.00.
[2] Claim dated 23 February 2015.
[3] Queensland Civil and Administrative Tribunal Act 2009, s 20.
[4] Application to extend a time limit filed 18 May 2015.
[5] Queensland Civil and Administrative Tribunal Act 2009, s 33(3) and (4).
[6] Acts Interpretation Act 1954, s 38.
[7] Agents Financial Administration Act 2014, s 155(3).
[8] Property Agents and Motor Dealers Act 2000, s 472(2)(a).
[9] Property Agents and Motor Dealers Act 2000, s 472(2)(b).
[10] Property Agents and Motor Dealers Act 2000, s 574.
[11] Valuation Report of Horrigan Kamitsis Valuers Pty Ltd dated 7 October 2011.
[12] Valuation Report of Horrigan Kamitsis Valuers Pty Ltd dated 7 October 2011 refers to a Brisbane City Council ‘Floodwise’ Property Report noting a Defined Flood Level over 100 years of 8 metres, with the property having a minimum ground level of 5.5 metres.
[13] Reports of Dr J A Callaghan dated 17 November 2011, 27 March 2013 and 29 May 2013.
[14] Queensland Civil and Administrative Tribunal Act 2009, s 61.
[15] Watkins v. Queensland Building Services Authority [2013] QCAT 535 at [15].
[16] Hewitt and Hosking v. The Property Agents and Motor Dealers Tribunal and John Gallagher [2003] QSC 101 at [15].
[17] Hewitt and Hosking v. The Property Agents and Motor Dealers Tribunal and John Gallagher [2003] QSC 101 at [16] to [17].
[18] Watkins v. Queensland Building Services Authority [2013] QCAT 535 at [9].
[19] Queensland Building and Construction Commission v. Watkins [2014] QCAT 172 at [15].
[20] Phipps v. Ross Stephens [2003] CCT W043-02 at [28].