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The Chief Executive, Office of Fair Trading, Department of Justice and Attorney General v O'Brien[2016] QCAT 319

The Chief Executive, Office of Fair Trading, Department of Justice and Attorney General v O'Brien[2016] QCAT 319

CITATION:

The Chief Executive, Office of Fair Trading, Department of Justice and Attorney General v O'Brien & Anor [2016] QCAT 319

PARTIES:

The Chief Executive, Office of Fair Trading, Department of Justice and Attorney General (Applicant)

 

v

 

Gerald O'Brien

Anthony Rogers

(Respondent)

APPLICATION NUMBER:

OCL056-15

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

11 February 2016

HEARD AT:

Brisbane

DECISION OF:

Member J Allen

DELIVERED ON:

30 August 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

Gerald O'Brien and Anthony Rogers are jointly and severally liable to pay to the Chief Executive, Office of Fair Trading, Department of Justice and Attorney-General the sum of $4,500.00 by 4.00pm on 27 September 2016.

CATCHWORDS:

PROFESSIONS AND TRADES – AUCTIONEERS AND AGENTS – OTHER MATTERS – application for reimbursement order – where letting agent failed on two occasions to pay bond monies to the Residential Tenancies Authority – where Chief Executive made payment from claim fund under repealed Act – whether reimbursement order should be made against persons liable for financial loss – whether Tribunal should have regard to respondent’s submissions in respect of liability

Property Agents and Motor Dealers Act 2000 (Qld) (repealed) ss 482, 483, 527, 528, 532

Agents Financial Administration Act 2014 (Qld) ss 101,102, 103, 112, 116, 117, 118, 119

Chief Executive, Office of Fair Trading, Department of Employment, Economic Development and Innovation v MWC Pty Ltd and Ors [2012] QCAT 136

The Chief Executive, Department of Justice and Attorney-General v Latcham [2015] QCAT 144

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

The Chief Executive, Department of Justice and Attorney General v Dodds [2015] QCAT 538

APPEARANCES:

APPLICANT:

Mr Adrian Tan appeared for The Chief Executive, Office of Fair Trading, Department of Justice and Attorney General

RESPONDENT:

Mr Rogers appeared

Mr O'Brien did not attend the hearing

REASONS FOR DECISION

Introduction

  1. [1]
    Mr O'Brien and Mr Rogers, together with GT Gold Unit Management Pty Ltd, were named as the persons liable in respect of two claims on the claim fund operated by the Chief Executive, Office of Fair Trading, Department of Justice and Attorney General (‘the Chief Executive’). The Chief Executive is now seeking a reimbursement order requiring payment by Mr O'Brien and Mr Rogers jointly and severally of the amount of $4,500.00 which is the balance outstanding of the amount of the claims. The company was deregistered on 22 June 2014 and so the application does not refer to it.
  2. [2]
    The application is made pursuant to s 119 of the Agents Financial Administration Act 2014 (Qld) (‘AFA Act’) for Mr O'Brien and Mr Rogers to make payment of the amount of $4,500.00 to the claim fund established under s 78 of the AFA Act.
  3. [3]
    While the application is being made under the AFA Act, the original claim was made under the Property Agents and Motor Dealers Act 2000 (Qld) (‘PAMD Act’). There are transitional provisions in the AFA Act, in particular s 155, which provides that if the Chief Executive could have made this application before the PAMD Act was repealed, then the Chief Executive can make the application under the AFA Act with any necessary changes.
  4. [4]
    Section 527 of the PAMD Act was the provision which enabled the Chief Executive to apply for a reimbursement order. It required that:
    1. The Chief Executive allowed, wholly or partly, a claim against the claim fund under s 481 of the PAMD Act, now s 100 of the AFA Act; and
    2. Mr O'Brien and Mr Rogers have failed to reimburse the claim fund as required by a letter of demand given to each of them under s 490(4) of the PAMD Act, now s 116(6) of the AFA Act.
  5. [5]
    Section 117 of the AFA Act is the equivalent section to s 527 of the PAMD Act.
  6. [6]
    The Chief Executive submitted that the Tribunal has previously held that the only issues for it to consider when determining reimbursement applications are whether the requirements of ss 527, 528 and 532 of the PAMD Act, now ss 117, 118 and 119 of the AFA Act, have been met and if so, the Tribunal has no discretion and it must make a reimbursement order.[1]
  7. [7]
    Those requirements are relevantly in regard to s 117 of the AFA Act, that the Chief Executive as above and the application must be accompanied by:
    1. a copy of the information notice given under s 102;
    2. a copy of the letter of demand given under s 116(6); and
    3. a statutory declaration by the Chief Executive stating the amount paid from the fund in settlement of the claim and the amount of any payment received from Mr O'Brien and Mr Rogers in satisfaction of the claim.
  8. [8]
    Mr O'Brien and Rogers are required to be given a copy of the application and advised of the matters that the Tribunal needs to be satisfied of to make a reimbursement order in accordance with s 118 of the AFA Act. They must also be advised that they may make written submissions for the Tribunal’s consideration about when and in what way they intend to satisfy the amount paid in settlement of the claim.
  9. [9]
    The Tribunal must consider an application for reimbursement in accordance with s 119 of the AFA Act. The Tribunal must make a reimbursement order if it is satisfied that:
    1. Mr O'Brien and Mr Rogers have not paid the stated amount within the time allowed under the letters of demand;
    2. The Chief Executive has made a decision about a claim against the fund;
    3. Under s 116 of the AFA Act, Mr O'Brien and Mr Rogers are liable to reimburse the fund in a stated amount;
    4. Mr O'Brien and Mr Rogers did not relevantly apply to the Tribunal under s 103, in this case s 483 of the PAMD Act, to have the decision reviewed; and
    5. Written notice of the Chief Executive’s decision, a copy of the decision and an information notice under s 102 of the AFA Act, in this case s 482 of the PAMD Act was given to Mr O'Brien and Mr Rogers.
  10. [10]
    The Chief Executive submitted that these legislative requirements have been met because the material establishes that:
    1. The Chief Executive decided two claims against the fund and ordered that Mr O'Brien and Mr Rogers were liable for the claimants financial losses and liable to reimburse the fund;
    2. The Chief Executive gave the documents referred to in s 119(3)(d) of the AFA Act to Mr O'Brien and Mr Rogers;
    3. Mr O'Brien and Mr Rogers did not apply to the Tribunal to have the Chief Executive’s decisions reviewed within the time allowed or at all;
    4. Letters of demand complaint with the PAMD Act and the AFA Act were sent to Mr O'Brien and Mr Rogers and they have not complied with their terms;
    5. The application was accompanied by the documents listed in s 117(4) of the AFA Act; and
    6. The Chief Executive has given the application, including the documents specified in ss 119(2)(b) and (d) of the AFA Act to Mr O'Brien and Mr Rogers, and advised them of the matters listed in ss 118(1)(b),(c) and (2).

The First claim

  1. [11]
    On 18 December 2013, the Chief Executive decided a claim against the claim fund lodged by Amber Owen and Aidan Kenny in accordance with s 481 of the PAMD Act. The claim related to bond monies, which GT Gold Unit management had failed to remit to the Residential Tenancies Authority on behalf of Ms Owen and Mr Kenny. The Chief Executive ordered that $2,020.00 be paid to the Residential Tenancies Authority on behalf of Ms Owen and Mr Kenny at the expiration of the review period in s 489 of the PAMD Act. GT Gold Unit Management Pty Ltd, Mr O'Brien and Mr Rogers were named jointly and severally as being liable for Ms Owen and Mr Green’s financial loss. The Chief Executive filed a copy of this decision.
  2. [12]
    The Chief Executive advised that on 18 December 2013, he sent written notice of that decision to the persons liable at their last known addresses, copies of this correspondence was also filed by the Chief Executive. The review period, which was set out in s 489 of the PAMD Act, expired on 31 January 2014 and no application to review the decision had been lodged with the Tribunal. The Chief Executive advised that on that day the sum of $2,020.00 was paid from the claim fund in accordance with the decision.
  3. [13]
    The Chief Executive submits that pursuant to s 484 of the PAMD Act, now s 101 of the AFA Act, the decision in regard to the amount of $2,020.00 binds Mr O'Brien and Mr Rogers and they may not subsequently challenge its correctness or the amount payable.
  4. [14]
    The Chief Executive advised that on 13 February 2014 he sent letters of demand by ordinary post to Mr O'Brien and Mr Rogers at their last known addresses requiring them to reimburse the claim fund in the amount of $2,020.00 in respect of the claim of Ms Owen and Mr Kenny in accordance with s 490 of the PAMD Act, now s 116 of the AFA Act. The Chief Executive filed copies of the letters of demand.
  5. [15]
    The Chief Executive advised that on 24 March 2014 he accepted Mr O'Brien’s proposal to repay the amount of $2,020.00 at the rate of $20.00 per week commencing on 4 April 2014 and ending on 4 March 2016 provided that:
    1. The applicant withhold further recovery action as long as Mr O'Brien made the agreed payments on time; and
    2. If Mr O'Brien failed to do so, the Chief Executive may apply to the Tribunal for a reimbursement order.

The second claim

  1. [16]
    On 18 March 2014, the Chief Executive decided a claim against the claim fund lodged by Mr Rigby in accordance with s 481 of the PAMD Act. The claim related to bond monies, which GT Gold Unit Management had failed to remit to the Residential Tenancies Authority on behalf of Mr Rigby. The Chief Executive ordered that $1,480.00 be paid to the Residential Tenancies Authority on behalf of Mr Rigby and a further sum of $1,480.00 be paid to Mr Rigby from the claim fund at the expiration of the review period in s 489 of the PAMD Act. GT Gold Unit Management Pty Ltd, Mr O'Brien and Mr Rogers were named jointly and severally as being liable for Mr Rigby’s financial loss in the amount of $2,960.00. The Chief Executive filed a copy of this decision.
  2. [17]
    The Chief Executive advised that on 18 March 2014, he sent written notice of that decision to the persons liable at their last known addresses. The Chief Executive also filed copies of this correspondence. The review period, which was set out in s 489 of the PAMD Act, expired on 13 May 2014 and no application to review the decision had been lodged with the Tribunal. The Chief Executive on that day paid the sum of $2,960.00 from the claim fund in accordance with the decision.
  3. [18]
    The Chief Executive submits that pursuant to s 484 of the PAMD Act, now s 101 of the AFA Act, the decision in regard to the amount of $2,960.00 binds Mr O'Brien and Mr Rogers and they may not subsequently challenge its correctness or the amount payable.
  4. [19]
    The Chief Executive advised that he sent letters of demand by ordinary post to Mr O'Brien on 17 July 2014 and Mr Rogers, addressed to Anthony O'Brien, on 22 July 2014 to their respective last known addresses requiring them to reimburse the claim fund in the amount of $2,960.00 in respect of the claim of Mr Rigby in accordance with s 490 of the PAMD Act. The Chief Executive also filed copies of that.
  5. [20]
    The Chief Executive in his submissions advised that he had accepted Mr O'Brien’s request for his payment arrangement to include the amount of the second claim. This was on the same basis as the first arrangement with payments of $20.00 per week with repayments to continue to 28 December 2018 and that the Chief Executive would withhold further recovery action as long as Mr O'Brien made the agreed repayments on time. If Mr O'Brien failed to do so, the Chief Executive may apply to the Tribunal for a reimbursement order.
  6. [21]
    The Chief Executive submitted that repayments in the amount of $640.00 were to be made by 17 October 2014. A payment of $80.00 was made on 23 October 2014, which took the total payments to $480.00, and there have been no further payments.

Demand under the AFA Act

  1. [22]
    The Chief Executive advised that between 15 April 2014 and 23 October 2014 he received a total amount of $480.00 in payments from Mr O'Brien, which were applied to reduce the amount owing.
  2. [23]
    On 3 June 2015, the Chief Executive sent demands by ordinary post to Mr O'Brien and Mr Rogers requiring them to reimburse the claim fund the amount of $4,500.00 comprising the first claim of $2,020.00 and the second claim of $2,960.00 less the payments received of $480.00 in accordance with s 116 of the AFA Act. Copies of that correspondence were filed by the Chief Executive
  3. [24]
    Mr Tan provided a statutory declaration confirming the total amount of the debt including the payments received and the amount outstanding as at 31 August 2015 of $4,500.00.
  4. [25]
    The Chief Executive submits that he is authorised to recover the sum of $4,500.00 pursuant to s 490(4) of the PAMD Act and s 116 of the AFA Act.
  5. [26]
    Mr Tan filed an affidavit confirming that copies of the application had been served on Mr O'Brien and Mr Rogers on 18 September 2015 by posting them to their last known address. The letters set out that the Tribunal will make a reimbursement order if it is satisfied of the matters set out in s 118 of the AFA Act.

The parties’ submissions

  1. [27]
    Mr Rogers made submissions requesting relief from payment in relation to the reimbursement order. He stated that he and his wife had bought a 40% share of the company GT Management with Mr O'Brien and his wife holding 60% of the company. The company held the management rights in respect of Goldsborough Place, Newstead. He had not been involved in the day-to-day management of the company. He had requested regular financial reports from Mr O'Brien. He was told that as Mr O'Brien owned 60% of the company, he would run the company as he wished. He said he received annual accounts from the accountants and all appeared in order.
  2. [28]
    An issue arose when a loan facility was to be refinanced and requested accounts were not supplied to the bank and as a result, the bank imposed default interest rates. This became too much of a burden and a receiver was appointed by the bank. At this point, he was advised by the Office of Fair trading that they were investigating the business over irregularities and procedures contrary to the PAMD Act. He says he cooperated fully with the investigation by the Office of Fair Trading.
  3. [29]
    Mr Rogers says that the receivers operated the business for over a year and collected funds to pay out creditors and that claims such as the bond monies should have been made to the receivers. He notes that the business was sold nut there was insufficient funds to pay out the bank and he was required to pay out over a million dollars to the bank which depleted his retirement fund and meant he had to return to the workforce. He notes that the Office of Fair Trading prosecuted Mr O'Brien and he pleaded guilty to all charges and was fined $20,000.00.
  4. [30]
    He submits that given his wife and him had no involvement in the events leading to the issuing of a reimbursement order, he asks that the reimbursement order should be directed solely to Mr O'Brien.
  5. [31]
    Mr Rogers confirmed his submissions at the hearing. He accepted that there had been no application to review the decisions in regard to either of the claims.
  6. [32]
    The Chief Executive submitted in response to Mr Rogers that s 489 of the PAMD Act gave him 28 days to apply for a review of the decisions. As there was no application to review the decisions, they are binding upon both respondents and neither of them may challenge the correctness or the amounts payable.
  7. [33]
    Mr Tan submitted at the hearing that Mr Rogers and Mr O'Brien are only permitted to make submissions as to when and how the amount outstanding is to be paid in accordance with s 528(2) of the PAMD Act and s 118(c) of the AFA Act. It was noted in the written submission that other submissions by respondents including denial of liability and financial stress are not relevant.[2]
  8. [34]
    Mr Rogers requested that if an order was made, that the payments be scheduled over a long period.
  9. [35]
    Mr O'Brien advised that he wished there to be an oral hearing and that he would not be making submissions. He advised on the day of the hearing that he could not attend, as he was too sick but did not wish to make an application for an adjournment. The hearing proceeded in his absence.

Discussion

  1. [36]
    The Tribunal has jurisdiction to hear an application in respect of a claim paid from the claim fund established under the PAMD Act if the Chief Executive could start a proceeding to recover an amount paid out of the former fund in accordance with s 155(5) of the AFA Act with necessary changes to the Act. I am satisfied on the documentary evidence set out above that the Chief Executive has paid two claims with a total amount of $4,980.00 and that Mr O'Brien and Mr Rogers are the remaining parties who are liable in respect of those claims.
  2. [37]
    I am satisfied based on the above that the relevant notices in regard to the original decisions and the review rights of Mr O'Brien and Mr Rogers have been communicated to them as required by post with advice in regard to their review rights which they did not exercise. I am also satisfied that letters of demand were sent to Mr O'Brien and Mr Rogers as required and that Mr O'Brien made payment in the amount of $480.00 under an agreement with the Chief Executive.
  3. [38]
    I am satisfied that Mr O'Brien subsequently failed to honour his agreement and as result the Chief Executive has made this application to the Tribunal. As required, Mr O'Brien and Mr Rogers were given notice of the application and advised that they could make submissions. As mentioned, submissions were received from Mr Rogers and Mr O'Brien did not make any submissions.
  4. [39]
    Mr Roger’s submissions primarily went to the question of whether he should be liable for the claim. The PAMD Act and the AFA Act make it clear that if no application is made to review the decision within the time allowed, the decision is binding on the respondent and they may not subsequently challenge the correctness of the decision.[3]
  5. [40]
    This is reflected in the fact that the respondent may make written submissions about when and in what way they intend to satisfy the amount paid in settlement of the claim in accordance with s 118(1)(c) of the AFA Act. The Tribunal must make a reimbursement order if satisfied in regard to the matters in ss 119(2) and (3) of the AFA Act, so therefore there is no discretion about whether to make an order.
  6. [41]
    I note that in accordance with s 102(2) of the AFA Act and s 482(2)(b)(ii) of the PAMD Act, if one more than one person is named as being liable to reimburse the claim fund, the liability of the persons named is joint and several and so there can be no change to this in the order of the Tribunal in regard to reimbursement.
  7. [42]
    In the case of a corporation, in this case GT Gold Unit Management Pty Ltd held the letting rights, the executive officers of the corporation are jointly and severally liable for payment form the claim fund in accordance with s 116(4)(b) of the AFA Act and s 490(2)(b) of the PAMD Act. Therefore, this is in a sense strict liability. At the relevant times, the ASIC Search filed with the Tribunal shows that Mr Rogers was a director of the company and is therefore jointly and severally liable.
  8. [43]
    Where the right to have the original decision reviewed is not exercised, the Tribunal must, if satisfied that the preconditions of s 119 of the AFA Act are met, make the order in respect of those named as liable in the original decision and if there is more than one person named, the persons named are to be jointly and severally liable. The only area where the Tribunal can exercise discretion is in regard to when and in what way the respondent must satisfy the amount paid.
  9. [44]
    Mr Rogers has asked that the payments be scheduled over a long period. The Chief executive has asked that payment be made within 21 days of the date of the order. I note that the amount is relatively small and has been outstanding for some time. I consider that 28 days is an adequate period within which payment should be made.
  10. [45]
    I order that Gerald O'Brien and Anthony Rogers are jointly and severally liable to pay to The Chief executive, Office of Fair Trading, Department of Justice and Attorney-General the sum of $4,500.00 by 4.00 on 27 September 2016.

Footnotes

[1] The Chief Executive, Department of Justice and Attorney General v Latcham [2015] QCAT 114 at [9]- [11]; The Chief Executive, Department of Justice and Attorney General v Wanless [2015] QCAT 128 at [9]-[10]; The Chief Executive, Department of Justice and Attorney General v Dodds [2015] QCAT 538 at [15]-[17].

[2] Chief Executive, Office of Fair Trading, Department of Employment, Economic Development and Innovation v MWC Pty Ltd and ors [2012] QCAT 136 at [12].

[3] PAMD Act s 484; AFA Act s 101.

Close

Editorial Notes

  • Published Case Name:

    The Chief Executive, Office of Fair Trading, Department of Justice and Attorney General v O'Brien & Anor

  • Shortened Case Name:

    The Chief Executive, Office of Fair Trading, Department of Justice and Attorney General v O'Brien

  • MNC:

    [2016] QCAT 319

  • Court:

    QCAT

  • Judge(s):

    Member Allen

  • Date:

    30 Aug 2016

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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