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Thornley v Hi Surf Resort[2017] QCAT 61

Thornley v Hi Surf Resort[2017] QCAT 61

CITATION:

Thornley v Hi Surf Resort t/as Beachcomber & Ors [2017] QCAT 61

PARTIES:

David Thornley

Suzanne Thornley

(Applicant)

v

Hi Surf Resort t/as Beachcomber

Greg Kafritsas t/as Beachcomber

Christos Kafritsas

(Respondent)

APPLICATION NUMBER:

GAR400-13

MATTER TYPE:

General administrative review matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane 

DECISION OF:

Member Hughes

DELIVERED ON:

23 February 2017

DELIVERED AT:

Brisbane 

ORDERS MADE:

  1. The application to extend or shorten a time limit or for waiver of compliance with a procedural requirement is refused.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDING IN STATE AND TERRITORY COURTS – TIME, EXTENSION AND ABRIDGEMENT –  where claim lodged against claim fund under Property Agents and Motor Dealers Act 2000 (Qld) – where claim lodged out of time – where application for extension filed out of time – where Tribunal has power to extend both time limits – where no explanation for either delay – where no evidence filed to support exercise of discretion to extend time – where claimants did not identify financial loss or events causing financial loss – where claimants did not show arguable case

Property Agents and Motor Dealers Act 2000 (Qld), s 472, s 473

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 61

Aon Risk Services Aust Ltd v. Australian National University (2009) 239 CLR 175

Briginshaw v. Briginshaw (1938) 60 CLR 336

Campaigntrack Victoria Pty Ltd v. The Chief Executive, Department of Justice and Attorney-General & Ors [2016] QCA 37

Creek v. Raine & Horne Mossman [2011] QCATA 226

Matthews & Anor v. Hi Surf Resort Pty Ltd & Ors [2014] QCAT 292

Ren v. Poolworld Pty Ltd [2011] QCAT 706

SCP Contractors Pty Ltd v. Chopperworks Pty Ltd [2017] QCAT 30

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).

REASONS FOR DECISION

What is this Application about?

  1. [1]
    David Thornley and Suzanne Thornley missed two time limits:
  • They lodged a claim against the fund for property agents’ conduct[1] on 14 June 2013,[2] some nine months after the one year deadline[3]; and
  • They applied to the Tribunal to extend the time limit on 18 October 2013,[4] eight days after the 14 days deadline.[5]    
  1. [2]
    The Tribunal gave Mr and Mrs Thornley an opportunity to file material to support their application to extend time,[6] an opportunity to request an oral hearing[7] and an opportunity to provide to the Tribunal the date when they say they received the ‘Form 52 Claim Out of Time Notice’.[8]
  2. [3]
    Despite this, Mr and Mrs Thornley did not file any material to support their application or seek an oral hearing.
  3. [4]
    The determination of Mr and Mrs Thornley’s application to extend time was deferred, pending the appeal of Matthews & Anor v. Hi Surf Resort Pty Ltd & Ors.[9] However, that appeal was withdrawn on 24 October 2016.
  4. [5]
    Consequently, the Tribunal must now determine Mr and Mrs Thornley’s application to extend time based on the material filed.[10]

Should the Tribunal extend the time limit to file the application?

  1. [6]
    The Court of Appeal has resolved the issue of whether the Tribunal can extend the 14 days for a claimant to apply for an extension to make a claim under the fund:

[Sections 473(5)(b) and 511 of the Property Agents and Motor Dealers Act 2000 (Qld)] in combination imply, rather than clearly express a time period of 14 days within which a claimant may apply for an extension of the time stated in section 472. The sections do not state that an application for such an extension may not be brought outside this time period. They do not exclude the operation of section 61 of the QCAT Act so as to allow the Tribunal in an appropriate case to grant an extension of the 14 day period or waive compliance with the requirement to make the application within the time mentioned in the notice.[11]

  1. [7]
    Although the Court of Appeal did not expressly determine the factors that the Tribunal can consider in exercising its discretion to extend time, the Court of Appeal did refer to “extenuating circumstances”[12] and “deserving circumstances”:

One should not lightly infer a legislative intent to shut out deserving claimants from seeking an extension of time under section 511. For example, a claimant might fail to apply for an extension of time within the 14 day period stated in the notice because he or she was in a coma in hospital and unable to make the application. One can imagine other deserving circumstances in which a claimant fails to make the application within the 14 day period stated in the notice.[13]

  1. [8]
    The difficulty here is that Mr and Mrs Thornley have not submitted any ‘extenuating circumstances’ or ‘deserving circumstances’ for the Tribunal to exercise its discretion to extend the time limit.[14]
  2. [9]
    Mr and Mrs Thornley had 14 days from when they received their ‘Claim out of time notice’ to apply to the Tribunal for an extension. They did not file any material disputing the Chief Executive’s submission that they would have received their ‘Claim out of time notice’ between 23 and 26 September 2013. They also did not file any material explaining why they did not file their application to extend time until 18 October 2013, eight days after the time limit.
  3. [10]
    Because Mr and Mrs Thornley have not provided any explanation for the delay, the Tribunal cannot be satisfied that they have shown sufficient cause to exercise the discretion to extend time for filing the application with the Tribunal.[15]
  4. [11]
    This is sufficient to dismiss Mr and Mrs Thornley’s application.

Should the Tribunal extend the time limit to claim under the Fund?

  1. [12]
    Even if the Mr and Mrs Thornley had provided a sufficient explanation for the delay in applying to extend time, the Tribunal cannot be satisfied to exercise the discretion to extend the time to claim under the fund.
  2. [13]
    Mr and Mrs Thornley did not file any material disputing that the event happened on 10 June 2010, that they became aware they suffered financial loss because of the event on 2 September 2011 and that they lodged their claim on 14 June 2013.[16]
  3. [14]
    A claim against the fund must be made within the earlier of one year after becoming aware of suffering financial loss because of the event, or three years after the event.[17]
  4. [15]
    Mr and Mrs Thornley are outside both times, as three years from the event is 10 June 2013, while one year after they became aware they “suffered loss” (if any)[18] is 2 September 2012. The earlier of these times is 2 September 2012, meaning they are some nine months outside the time limit.    
  5. [16]
    The Tribunal has clear jurisdiction to extend the 12 months period to lodge a claim.[19] However, Mr and Mrs Thornley did not provide any explanation for the delay of nine months in lodging their claim against the fund.
  6. [17]
    The Tribunal has also considered the merit of Mr and Mrs Thornley’s substantive application, within the context of proper case management and the proper use of public resources.[20] In their application, Mr and Mrs Thornley relevantly said (my underlining):

Our suspicions were confirmed… when we surveyed a sofflock (sic) report… [t]he units are on the top floor, we noticed no one had stayed in them (owner statement) New Years (sic) Eve. It was noted that an After Hours call out fee was charged for a locksmith to attend on New Years (sic) Day. This just drew our attention that perhaps not all rent collected has been passed on to us.[21] 

  1. [18]
    As the learned Member Paratz noted in Matthews & Anor v. Hi Surf Resort Pty Ltd & Ors,[22] a locksmith report is not conclusive of anything: 

… the mere opening of a door by someone who was authorised to do so, such as a building manager, is not evidence of anything in particular – it may be that the door was opened to allow potential guests to inspect the unit, or for cleaning, maintenance or security purposes, or for a myriad of other reasons.[23]

  1. [19]
    Mr and Mrs Thornley did not identify any financial loss or any particular event or events causing financial loss.[24] At most, they have “suspicions” that their rental manager did not pass on rental income.[25] This is not sufficient to be ‘reasonably satisfied’ of a basis for their claim:

... “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect references… the nature of the issue necessarily affects the process by which reasonable satisfaction is attained.[26]

  1. [20]
    Mr and Mrs Thornley have an obligation to act in their own best interests:

The statutory regime under which QCAT operates places obligations upon parties themselves to take care in their dealings with Tribunal matters, and to act in their own best interests. QCAT’s resources for the resolution of disputes are in high demand and serve, as the High Court has recently observed in relation to court resources, ‘… the public as a whole, not merely the parties to the proceedings’.[27]

  1. [21]
    Without providing details of loss or causation, the claim would appear to have little basis. Mr and Mrs Thornley have not shown that they have an arguable case.
  2. [22]
    Because Mr and Mrs Thornley have not provided any explanation for the delay in lodging their claim against the fund or shown their claim is at least arguable, the Tribunal is not satisfied to extend the time to lodge their claim against the fund in any event.

What is the appropriate Order?

  1. [23]
    Because the Tribunal is not satisfied to extend time to file the application with the Tribunal or lodge the claim against the Fund, the appropriate Order is that the application to extend or shorten a time limit or for waiver of compliance with a procedural requirement is refused.

Footnotes

[1]Property Agents and Motor Dealers Act 2000 (Qld), Chapter 14.

[2]Claim out of time notice dated 20 September 2013; Chief Executive’s Submissions dated 22 July 2014 at [1].

[3]Property Agents and Motor Dealers Act 2000 (Qld), s 472(2)(a).

[4]Application to extend or shorten a time limit filed 18 October 2013.

[5]Property Agents and Motor Dealers Act 2000 (Qld), s 473(5)(b).

[6]Directions dated 26 November 2013 at [1].

[7]Directions dated 26 November 2013 at [4].

[8]Directions dated 1 August 2014 at [1].

[9][2014] QCAT 292.

[10]Directions dated 2 July 2014 at [2]; Directions dated 1 August 2014 at [2].

[11]Campaigntrack Victoria Pty Ltd v. The Chief Executive, Department of Justice and Attorney-General & Ors [2016] QCA 37 at [31], per Applegarth J.

[12]Campaigntrack Victoria Pty Ltd v. The Chief Executive, Department of Justice and Attorney-General & Ors [2016] QCA 37 at [43], per Applegarth J.

[13]Campaigntrack Victoria Pty Ltd v. The Chief Executive, Department of Justice and Attorney-General & Ors [2016] QCA 37 at [44], per Applegarth J.

[14]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 61.

[15]SCP Contractors Pty Ltd v. Chopperworks Pty Ltd [2017] QCAT 30 at [51].

[16]‘Claim out of time notice’ dated 20 September 2013.

[17]Property Agents and Motor Dealers Act 2000 (Qld), s 472(2).

[18]Although Mr and Mrs Thornley did not identify any financial loss, the ‘Claim out of time notice’ dated 20 September 2013 shows that the Chief Executive made a decision about when the claimant became aware that financial loss was suffered. Mr and Mrs Thornley did not file evidence refuting this decision.

[19]SCP Contractors Pty Ltd v. Chopperworks Pty Ltd [2017] QCAT 30 at [45].

[20]Ren v. Poolworld Pty Ltd [2011] QCAT 706 at [8], citing with approval Aon Risk Services Aust Ltd v. Australian National University (2009) 239 CLR 175.

[21]Application to review a decision dated 28 July 2016 at p. 4.

[22][2014] QCAT 292.

[23]Matthews & Anor v. Hi Surf Resort Pty Ltd & Ors [2014] QCAT 292 at [22].

[24]Matthews & Anor v. Hi Surf Resort Pty Ltd & Ors [2014] QCAT 292 at [21].

[25]Matthews & Anor v. Hi Surf Resort Pty Ltd & Ors [2014] QCAT 292 at [21].

[26]Briginshaw v. Briginshaw (1938) 60 CLR 336, per Dixon J (as His Honour then was) at 346.

[27]Creek v. Raine & Horne Mossman [2011] QCATA 226 at [13], citing with approval Aon Risk Services Australia Ltd v. Australian National University (2009) 239 CLR 175, 217.

Close

Editorial Notes

  • Published Case Name:

    David Thornley and Suzanne Thornley v Hi Surf Resort t/as Beachcomber, Greg Kafritsas t/as Beachcomber and Christos Kafritsas

  • Shortened Case Name:

    Thornley v Hi Surf Resort

  • MNC:

    [2017] QCAT 61

  • Court:

    QCAT

  • Judge(s):

    Member Hughes

  • Date:

    23 Feb 2017

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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