The Chief Executive, Department of Justice and Attorney-General v Dodds
[2015] QCAT 538
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- The Chief Executive, Department of Justice and Attorney-General v Dodds[2015] QCAT 538
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The Chief Executive, Department of Justice and Attorney-General v Dodds[2015] QCAT 538
The Chief Executive, Department of Justice and Attorney-General v Dodds[2015] QCAT 538
CITATION: | The Chief Executive, Department of Justice and Attorney-General v Dodds [2015] QCAT 538 |
PARTIES: | The Chief Executive, Department of Justice and Attorney-General (Applicant) |
v | |
Philip Terence Dodds (Respondent) |
APPLICATION NUMBER: | OCR069-15 |
MATTER TYPE: | Occupational regulation matters |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Member Paratz |
DELIVERED ON: | 2 December 2015 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
|
CATCHWORDS: | REIMBURSEMENT ORDER – PAMDA – AAFA - whether a reimbursement order should be made – where claims were paid from the fund in respect of a real estate agent Agents Financial Administration Act 2014 (Qld), s 78, s 116(4), s 117, s 118 s 119 Property Agents and Motor Dealers Act 2000 (Qld), s 481 – 484, 490(2) Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 32 Brown & Anor v Wilen Pty Ltd & Ors [2012] QCAT 324 |
APPEARANCES:
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’).
REASONS FOR DECISION
- [1]The Chief Executive, Office of Fair Trading, Department of Justice and Attorney-General (‘the Chief Executive’) determined 12 claims lodged against the Claim Fund established under the Property Agents and Motor Dealers Act 2000 (Qld) (‘PAMDA’) in a total amount of $35,902.07 in relation to Enmore Real Estate and Property Management Services Pty Ltd (‘Enmore’).
- [2]The Claim Fund is now administered under the Agents Financial Administration Act 2014 (Qld) (‘AFAA’).
- [3]The claims that were determined were:
Decision Date | Claimant | Amount Allowed | Date Paid |
29/09/2009 | Swills Family Pty Ltd | $ 1,284.50 | 19/11/2009 |
29/09/2009 | Abdullah Ashy | $ 1,440.00 | 19/11/2009 |
29/09/2009 | Tammy Wilkinson & Brian Shodde | $ 560.00 | 19/11/2009 |
29/09/2009 | David Tan | $ 7,168.59 | 19/11/2009 |
29/09/2009 | Ho-Chien Hsieh | $ 2,252.50 | 19/11/2009 |
29/09/2009 | Joohee Lee & Eunsil Jang | $ 1,720.00 | 13/01/2010 |
29/09/2009 | Matthew Paul Turner | $ 1,320.00 | 13/01/2010 |
29/09/2009 | John Maurice Tanner | $ 4,472.81 | 05/02/2010 |
29/09/2009 | Gary Richardson | $ 6,832.33 | 05/02/2010 |
12/11/2009 | Zhi Hong Zhang & Pei Wen Cui | $ 4,823.67 | 27/01/2010 |
29/03/2010 | Scott Andrew Terry | $ 2,027.67 | 24/06/2010 |
29/03/2010 | Kimberley Van Loggerenberg | $ 2,000.00 | 25/06/2010 |
- [4]In each of the decisions, the Chief Executive named Enmore as liable for the claimants losses and liable to reimburse the fund for the amounts allowed.
- [5]Mr Dodds was given an Information Notice in accordance with s 481 PAMDA (now s 102 AAFA) as to each decision. The notices were sent to him at an address at 56 Scarborough Street, Southport, known to the department.
- [6]ASIC records show that Philip Terence Dodds was a director and the corporate secretary of Enmore between 5 July 2002 and 23 March 2011.
- [7]It has been held that a company director is an executive officer of a company under s 490(2) PAMDA.[1] That section provided that a person who was an executive officer of a company at the time of the events giving rise to the decisions is jointly and severally liable to reimburse the Fund for the amounts allowed.
- [8]Section 116(4) AFAA is the successor section to 490(2) PAMDA and is in virtually identical terms. Accordingly, a person who was a company director at the time of the events giving rise to the decisions is jointly and severally liable to reimburse the Fund for the amounts allowed under s 116(4) AFAA.
- [9]The claims were paid from the claim fund to the claimants.
- [10]The Chief Executive sent a Letter of Demand to Mr Dodds on 23 January 2015 demanding repayment of the total amount of $48,682.81, comprising $35,902.07 for claims paid from the fund, and $12,780.74 ordered to be paid by the Tribunal. The Letter of Demand was also sent to the address at 56 Scarborough Street, Southport.
- [11]The Chief Executive filed an application on 8 May 2015, pursuant to s 117 AAFA, for a reimbursement order against Mr Dodds.
- [12]In an accompanying Statutory Declaration dated 8 May 2015, Mr Tan, a Senior Recoveries Officer of the Claims and Recoveries Branch within the Compliance Division of the Office of Fair Trading deposed that $35,902.07 had been paid from the Claim fund in settlement of the relevant claims, and that to date no payments towards the debt had been received.
- [13]Mr Tan further deposed on 27 May 2015 that he had served Mr Dodds with a sealed copy of the Application for a Reimbursement Order by post on 14 May 2015. He advised Mr Dodds, in an accompanying letter, of the matters required by s 118 AFAA, that the Tribunal would make a reimbursement order if satisfied of those matters, and advised Mr Dodds that he could make written submissions for the Tribunal’s consideration about when and in what way he intended to satisfy the amount paid in settlement of the claim. The materials were posted also to the address at 56 Scarborough Street, Southport.
- [14]There is no indication that any of the letters posted to Mr Dodds at the address at 56 Scarborough Street, Southport have been returned.
- [15]Section 119 AFAA provides:
119 Reimbursement orders
- (1)QCAT must consider an application for a reimbursement order and any written submissions made by the respondent for the application.
- (2)QCAT must make a reimbursement order if satisfied that –
- The respondent has not paid the stated amount within the time allowed under the letter of demand; and
- If the application relates to the reimbursement of a claim against the fund – the matters stated in subsection (3) apply.
- (3)For subsection (2)(b), the matters are –
- the chief executive has made a decision about a claim against the fund; and
- under section 116 the respondent is liable to reimburse the fund in a stated amount; and
- either –
- the respondent did not apply to QCAT under section 103 to have the decision reviewed; or
- the decision has been reviewed by QCAT, and under QCAT’s decision, the respondent is liable to reimburse an amount to the chief executive or the fund; and
- written notice of the chief executive’s decision, a copy of the decision and an information notice under section 102 was given to the respondent.
- If QCAT makes a reimbursement order, the order must state that the respondent is liable to pay to the chief executive a stated amount within a stated period.
- [16]The Tribunal does not have any discretion as to making a reimbursement order if satisfied of the matters referred to in s 119.
- [17]The only issues for the Tribunal to consider on this application therefore are:
- Has the Chief Executive made a decision about the claims against the fund?
- Did Mr Dodds apply to the tribunal to have the decision reviewed?
- Has Mr Dodds paid the stated amount within the time allowed under the letter of demand?
- Is Mr Dodds liable to reimburse the fund?
- Has Mr Dodds been given the appropriate notices as required by s 102 and s 118 AAFA?
- [18]No written submissions have been made by Mr Dodds.
- [19]I am satisfied that:
- (a)The Chief Executive made decisions about the claims as set out in these reasons in the total amount of $35,902.07.
- (b)Notice of the decisions was given to Mr Dodds.
- (c)Mr Dodds did not apply to have the decisions reviewed.
- (d)Mr Dodds was given a letter of demand dated 23 January 2015, and did not pay the amount within the time allowed under the letter.
- (e)Mr Dodds is liable to reimburse the fund as an executive officer of Enmore.
- (f)Mr Dodds was given the appropriate documents and advice as required by s 118 AFAA.
- (a)
- [20]I am satisfied that the matters required under s 119 AFAA have been established, and that a reimbursement order must be made.
Conclusion
- [21]I am satisfied that the requirements for a reimbursement order have been made out under the Agents Financial Administration Act 2014, and that a Reimbursement Order must be made.
- [22]I make Reimbursement Orders for the amount sought in the Application, and set 21 days as the period for payment.
- [23]I order that Philip Terence Dodds is, pursuant to s 119 of the Agents Financial Administration Act 2014, liable to reimburse, and is ordered to pay, to the Claim Fund established under s 78 of the Agents Financial Administration Act 2014, the sum of $35,902.07 within 21 days of the date of this order.
Footnotes
[1] Brown & Anor v Wilen Pty Ltd & Ors [2012] QCAT 324 at [15] to [21].