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  4. Yule v The Chief Executive, Department of Justice and Attorney-General, Office of Fair Trading - [2017] QCAT 399

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Yule v The Chief Executive, Department of Justice and Attorney-General, Office of Fair Trading[2017] QCAT 399

Yule v The Chief Executive, Department of Justice and Attorney-General, Office of Fair Trading[2017] QCAT 399

CITATION:

Yule v The Chief Executive, Department of Justice and Attorney-General, Office of Fair Trading & Ors [2017] QCAT 399

PARTIES:

Leslie Edward Yule

Jan Marie Yule

(Applicant)

 

v

 

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

(First Respondent)

DJ Stringer Property Services Pty Ltd

(Second Respondent)

David John Stringer

(Third Respondent)

APPLICATION NUMBER:

GAR160-16

MATTER TYPE:

General administrative review matters

HEARING DATE:

14 September 2017

HEARD AT:

Brisbane

DECISION OF:

Member Gardiner

DELIVERED ON:

20 November 2017

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. The decision of the Chief Executive on 15 June 2016 to reject the claim against the claim fund is confirmed. 

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where claim made against claim fund – where mistake made in brochure describing property – where mistake acknowledged – where brochure not the only source of information – where applicants say they relied on information in brochure – whether reasonable to rely on brochure to make insurance fund claim 

Agents Financial Administration Act 2014 (Qld),

s 6, s 90, s 95, s 105,  s 122, s 123, s 155

Property Agents and Motor Dealers Act 2000

(Qld), s 10, s 473

Queensland Civil and Administrative Tribunal

Act 2009 (Qld), s 3, s 20, s 61, s 100, s 102

REPRESENTATIVES:

 

APPLICANTS:

Mr and Mrs Yule appeared in person

RESPONDENTS:

The Chief Executive, Department of Justice and Attorney-General, Office of Fair Trading represented by Mr Adrian Tan for in-house lawyer

Mr Stringer appeared in person

REASONS FOR DECISION

  1. [1]
    Leslie and Jan Yule decided in 2014 to shift to the Gold Coast to be closer to their family.  They had put their home in New South Wales on the market but it had not sold for nearly a year.  They came to stay at Coolangatta to visit family having decided to take the home off the market when they returned to New South Wales.  
  2. [2]
    While they were driving up to Queensland at the beginning of their trip, their home went under contract.   Mr and Mrs Yule then decided to look at properties to buy on the Gold Coast while they were there.
  3. [3]
    Mrs Yule hurriedly searched realestate.com.au as Mr Yule was driving and she compiled a list of properties to inspect.  A unit at Dutton Street in Coolangatta was on Mrs Yules’ list.
  4. [4]
    Mrs Yule emailed the agent handling the Dutton Street property, Ms Deborah Bingle, from the realestate.com.au web site.[1]  Ms Bingle is employed by Mr David Stringer in his real estate agency DJ Stringer Property Services Pty Ltd.
  5. [5]
    On arrival at Coolangatta on 9 July 2015, Mr Yule says they walked past all the real estate agencies in the main street.  At David Stringer’s agency they collected a brochure on the Dutton Street property they were arranging to inspect.
  6. [6]
    The brochure was only available at the office of the agency – it was not otherwise distributed to the public.
  7. [7]
    It seemed to suit them well – importantly a ground floor unit with 2 bedrooms, 2 bathrooms, 2 car spaces so they were happy to inspect the property.
  8. [8]
    Neither Mr or Mrs Yule recall the description of the unit Mrs Yule searched in the car on the realestate.com.au web site.
  9. [9]
    Ms Bingle made contact with Mr and Mrs Yule via the internet platform and arranged an inspection time for 12 July 2015 to view the ground floor unit, after appropriate notice had been given to the then tenants.
  10. [10]
    Unknown to Mr and Mrs Yule, a mistake had been made in the advertised brochure.  The unit had only one car space allocated to it.  However Ms Bingle gave unchallenged evidence that the website advertisement had the correct number of garage spaces listed for the unit.[2]
  11. [11]
    This mistake in the brochure is acknowledged by Mr Stringer and is not disputed.  The brochure carried the following disclaimer in very small print at the bottom - “All information contained herein is gathered from sources that we believe to be reliable. However, we cannot guarantee its accuracy and interested persons should rely on their own enquiries.”
  12. [12]
    However the print was extremely small and almost impossible to read.  
  13. [13]
    The mistake in the brochure was unknown to Ms Bingle or Mr Stringer until well after the signing of the purchase contract on the unit and ultimately settlement by the Yules.
  14. [14]
    Mr and Mrs Yule inspected the unit on 12 July 2015 with Ms Bingle.   Mr Yule said they had made an offer on the unit before they inspected the car park.  As they were leaving the unit, he says he asked Ms Bingle for a quick look at the car park. 
  15. [15]
    They walked through the car park.  Mr and Mrs Yule firmly believed the unit had 2 car spaces.   
  16. [16]
    Mr Yule said he inspected the car park mainly to see that it was clean and vermin free and to see where the spaces were.   The car park has two levels.  He said Ms Bingle took them to a space numbered 36 at the top of the ramp on the top level, pointing out its advantages for ease of parking.
  17. [17]
    It is Ms Bingle’s evidence also that she pointed out the car space numbered 36 to Mr and Mrs Yule as the car park for the unit.
  18. [18]
    Mr Yule said he looked down the ramp and saw another car space numbered 7.  As that was the number of the unit they had made the offer on, he says he assumed that was the second car space.  Mr Yule says he said to his wife words to that effect. 
  19. [19]
    Ms Bingle denies hearing that conversation. 
  20. [20]
    At that point, Ms Bingle said she had another appointment and asked the Yules if she could depart and could they see themselves out after another look around.  Mr and Mrs Yule agreed to this and Ms Bingle left to close up the inspected unit, after which she left the premises without seeing Mr and Mrs Yule again.
  21. [21]
    At no time during the inspection of the car park did Mr or Mrs Yule ask Ms Bingle where the second car park was located.
  22. [22]
    Ms Bingle said that if they had asked, she would have informed them there was only one car space attached to the unit.
  23. [23]
    Mr Yule gave oral evidence that Ms Bingle made no reference to a second car park during the inspection.
  24. [24]
    Mr and Mrs Yule returned to the real estate office the next day to sign the contract.  They do not remember when they received the Community Management statement (CMS) and the Disclosure Statement but the Disclosure Statement was also signed by Yules and dated 13 July 2015 – the same day as the contract. 
  25. [25]
    The evidence of Ms Bingle and Mr Stringer was that the normal office  process is to provide the contact, the CMS and the Disclosure Statement as one document to purchasers – altogether some 50 pages. 
  26. [26]
    I accept that on this occasion the normal process was followed, evidenced by the fact that the Disclosure Statement was also dated 13 July 2015.  There is no provision for the purchasers to sign the CMS.
  27. [27]
    These documents were provided to the conveyancer used by Mr and Mrs Yule.  This person would not have known of the mistake in the brochure.  The CMS clearly showed one car park only but there would have been no reason for the conveyancer to bring this fact to the attention of the Yules, as it would have been assumed they were aware of this. 
  28. [28]
    Mr Yule said he was aware that he should ensure that the CMS did not disclose any special levies and he knew there was a cooling off period in the contract.  Mr Yule has set up a body corporate in a previous three villa arrangement and has himself bought and sold 13 other single properties.  He understood how the car park was allocated as exclusive use and was happy with this arrangement. 
  29. [29]
    He says he did not himself read the CMS.
  30. [30]
    It was only after settlement had occurred that Mr and Mrs Yule realised there was only one car park.
  31. [31]
    On 30 September 2015, Mr and Mrs Yule lodged a claim against the fund established under the Agents Financial Administration Act 2014 (Qld) (AFAA) for the price difference they alleged between the unit with one car park or two.
  32. [32]
    The main object of the AFAA is stated in section 6 as being to “protect consumers from financial loss in dealings with agents regulated under an Agents Act.” This is achieved by establishing a claim fund to compensate persons in particular circumstances for financial loss arising from dealings with agents who are relevant persons.[3]
  33. [33]
    Mr and Mrs Yule allege the Real Estate Agency made false and misleading statements relating to the sale which caused them financial loss.  This claim was rejected by the Chief Executive.  
  34. [34]
    The Yules commenced an application to review this decision in QCAT on 21 June 2016. 
  35. [35]
    Section 24 of the Queensland Civil and Administrative Act 2000 (the QCAT Act) sets out the function of the tribunal on review.  On a fresh hearing on the merits, section 24(1) allows the Tribunal to confirm or amend the decision, set aside the decision and substitute its own, or set aside the decision and return the matter for reconsideration to the decision maker with directions if appropriate. 
  36. [36]
    One of the events capable of giving rise to a valid claim under section 82(1) of AFAA is contraventions of section 212 of the Property Occupations Act 2014 (Qld). This section says a licensee or real estate salesperson must not represent to someone else anything that is false or misleading relating to the sale of real property.  This is the basis of Mr and Mrs Yule’s claim.
  37. [37]
    The relevant persons are not in dispute and neither is the time of the event.  What is in dispute between the parties is:
    1. Whether the Agency or Mr Stringer committed a claimable event within the meaning of section 82(1) of the AFAA;
    2. If yes, did the event cause Mr and Mrs Yule to suffer a financial loss; and
    3. If yes, have the Yules proven and quantified their loss.

Claimable Event and Causation

  1. [38]
    It is not in dispute that the sales brochure contained a mistake concerning the number of car parks.
  2. [39]
    However, that was the only information source about this unit that contained the mistake.  I accept Ms Bingle’s unchallenged evidence that the internet advertisement showed the correct number of car parks.
  3. [40]
    It was this internet advertisement, searched by Mrs Yule in their drive to Coolangatta, which first formed the basis for contact with Mr Stringer’s agency.
  4. [41]
    Further, it is clear from the evidence that the assumption that there were two car parks at the inspection of the unit was Mr Yule’s only.  Ms Bingle did not refer to another car park at the time she was showing the unit on the inspection the day, before the contract was signed.
  5. [42]
    Crucially, neither Mr nor Mrs Yule asked to see the second car park at the physical inspection of the garage.  If either of them had, Ms Bingle would have told them that there was only one space.
  6. [43]
    Certainly, the CMS documents provided to Mr and Mrs Yule at the signing of the contract showed the correct number of car parks. 
  7. [44]
    It was incumbent on Mr Yule to read the CMS document - which he admits he did not. 
  8. [45]
    There was a cooling off period under the contract.  If the mistake had become known at the signing of the contract or shortly thereafter, Mr and Mrs Yule could have elected to go no further.  By not reading the complete documentation, Mr Yule’s assumption was never challenged and it was only after settlement and the Yules took possession of the unit that Mr Yule realised the correct position.
  9. [46]
    Is this acknowledged clear mistake a claimable event by Mr and Mrs Yule?
  10. [47]
    Mr Yule referred the Tribunal to the Supreme Court decision of Seirlis v Bengtson & Ors.[4]  This decision is distinguishable for the current circumstances on its facts.  In Seirlis v Bengtson there were numerous unambiguous representations of the number of car parks attached to the unit and a number of direct enquiries were made by the purchasers.[5] 
  11. [48]
    In the current matter, the internet advertisement for the unit, which I accept showed the correct information, was the basis of the first inquiry to the Agency by Mrs Yule before the physical sales brochure was collected by the Yules.
  12. [49]
    At the actual physical inspection, neither Mr nor Mrs Yule asked about any second car park but rather made their own assumptions.
  13. [50]
    The CMS document was produced at the signing of the contract.  Mr Yule admits he failed to read this document.
  14. [51]
    If the whole purchase was based on one document being the sales brochure, perhaps there might have been a claimable event.  However, this sales brochure was only one form of information concerning this unit and I am satisfied on the balance of the evidence before me, that the mistake in this brochure was not a deliberate misrepresentation by the Agency or by Mr Stringer. 
  15. [52]
    In previous decisions before this Tribunal, where claimants have failed to take basic measures to protect themselves or where they have failed to make enquiries when such enquires are called for, the Tribunal has found that the causal link between the event and the loss has been severed.
  16. [53]
    In Secure Funding Pty Ltd v Car Loans 2 Go Pty Ltd and Ors,[6] The Appeal Tribunal found that “failure to undertake enquiry, if enquiry were called for was causative of the loss” and that the Tribunal first hearing the matter:

…was not satisfied on the balance of probabilities the appellant’s financial loss was because of the misrepresentation.  Rather it was suffered because of its own failure to complete simple due diligence procedures in the circumstances of this particular case.

  1. [54]
    The sales brochure contained an acknowledged mistake.  However, in all the conversations between Ms Bingle and Mr and Mrs Yule, I accept Ms Bingle never misrepresented to Mr and Mrs Yule there were two car parks.
  2. [55]
    Indeed at the actual inspection of the car park, Ms Bingle positively pointed out the car park attached to the unit.  She positively identified only one space – not two. Enough to prompt a reasonable person to ask where the second space was.  Yet this question was not asked by either Mr or Mrs Yule.
  3. [56]
    Finally the legal documentation provided to Mr and Mrs Yule - the CMS - also accurately described the car parks but was not read by either of them at a time in the cooling off period when, had they read the document, they could have avoided the contract. 
  4. [57]
    I am not satisfied on the balance of probabilities that any loss claimed by Mr and Mrs Yule was because of any representation by the Agency or Mr Stringer that was false or misleading.  Rather it was one simple mistake in one piece of information that could have been corrected a number of times had Mr and Mrs Yule been diligent in their enquiries.
  5. [58]
    The decision of the Chief Executive on 15 June 2016 to reject the claim against the claim fund is confirmed. 

Footnotes

[1]  Exhibit 9 at paragraph 8

[2]  Ibid annexure DB2.

[3] Agents Financial Administration Act 2014 (Qld), s 6(2)(b).

[4]  [2013] QSC 240.

[5]  Ibid, [10] - [21].

[6]  [2013] QCATA 241, [21] – [22].

Close

Editorial Notes

  • Published Case Name:

    Yule v The Chief Executive, Department of Justice and Attorney-General, Office of Fair Trading & Ors

  • Shortened Case Name:

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

  • MNC:

    [2017] QCAT 399

  • Court:

    QCAT

  • Judge(s):

    Member Gardiner

  • Date:

    20 Nov 2017

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Secure Funding Pty Ltd v Car Loans 2 Go Pty Ltd & Ors [2013] QCATA 241
1 citation
Jump To
Cite 1 - [2013] QCATA 241
Seirlis v Bengtson [2013] QSC 240
2 citations
Jump To
Cite 1 - [2013] QSC 240
Cite 2 - [2013] QSC 240

Cases Citing

Case NameFull CitationFrequency
Yule v Chief Executive, Office of Fair Trading [2018] QCATA 1443 citations
Yule v Chief Executive, Office of Fair Trading [2018] QCATA 1893 citations
1

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