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De Bruyn v Riley[2019] QCAT 350

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

De Bruyn v Riley [2019] QCAT 350

PARTIES:

siimone de bruyn

and

matthew de bruyn

(applicants)

v

petrina riley t/as focus on spence

(respondent)

APPLICATION NO/S:

GAR164-19

MATTER TYPE:

General administrative review matters

DELIVERED ON:

13 November 2019

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Kanowski

ORDERS:

The extension of time application filed by Siimone de Bruyn and Matthew de Bruyn on 2 May 2019 is refused.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where application made outside time allowed in enabling Act – whether power to extend time

Agents Financial Administration Act 2014 (Qld), s 85, s 88(5), s 122

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

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

REPRESENTATION:

 

Applicant:

Self-represented

Respondent:

N Pirie

APPEARANCES:

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

Introduction

  1. [1]
    Mr and Ms de Bruyn have applied to the Tribunal for an extension of time to lodge a claim for financial loss. The claim in question is against the Claim Fund established under the Agents Financial Administration Act 2014 (Qld) (‘AFA Act’).
  2. [2]
    The Claim Fund provides compensation, in certain circumstances, to people who have suffered loss because of wrongful acts of licensees such as real estate agents. The Claim Fund is administered by the Office of Fair Trading, which is part of the Department of Justice and Attorney-General. When a claim is approved, the Office of Fair Trading can seek reimbursement from the agent in question.
  3. [3]
    I have decided to refuse Mr and Ms de Bruyn’s application for an extension of time for the reasons that follow.

Background

  1. [4]
    On 9 January 2015 Mr and Ms de Bruyn paid a rental bond for an apartment in Cairns to Petrina Riley, the managing agent. Under Queensland law, an agent receiving a bond must forward it to the Residential Tenancies Authority.
  2. [5]
    In mid-2015, Mr and Ms de Bruyn terminated the lease and applied to the Residential Tenancies Authority for refund of the bond. On 16 July 2015, the Residential Tenancies Authority informed Mr and Ms de Bruyn that Ms Riley had not forwarded the bond. Accordingly, no refund could be paid.
  3. [6]
    Mr and Ms de Bruyn then made various unsuccessful efforts to retrieve their bond, such as lodging a dispute resolution form with the Residential Tenancies Authority and attempting to locate Ms Riley.
  4. [7]
    Mr and Ms de Bruyn became aware only in 2019 that the Claim Fund exists. On 25 February 2019 they lodged a claim, naming Ms Riley as the respondent.
  1. [8]
    On 11 April 2019, the Office of Fair Trading wrote to Mr and Ms de Bruyn advising that their claim had not been made within the time allowed in section 85 of the AFA Act, but they could apply to the Tribunal for an extension of time. The ‘out of time notice’, as well as the covering letter, noted that an extension of time application must be made within 14 days of receipt of the notice.
  2. [9]
    On 2 May 2019, Mr and Ms de Bruyn applied to the Tribunal for an extension of time to make their claim against the Claim Fund.
  3. [10]
    The chief executive of the Department of Justice and Attorney-General has a statutory right to make submissions to the Tribunal in proceedings relating to the Claim Fund.[1] The chief executive made submissions in this case, on 5 July 2019. Ms de Bruyn responded to those submissions by email on the same date. Ms Riley has not taken up the opportunity to make submissions.

Was the claim out of time?

  1. [11]
    Generally, under section 85 of the AFA Act, a claim must be made within the earlier of:
    1. (a)
      one year after the person becomes aware that they have suffered the loss; and
    2. (b)
      three years after the happening of the ‘event’.
  1. [12]
    Different time limits apply when the person has taken proceedings in a Court against the agent, but there is no suggestion of any Court proceedings in this case.
  2. [13]
    Here, it is undisputed that Mr and Ms de Bruyn became aware that they had suffered the loss on 16 July 2015. One year after that was 16 July 2016. The claim lodged in February 2019 was considerably later. Accordingly, the claim was out of time.

Provisions relevant to extending time

  1. [14]
    The following provisions in the AFA Act are relevant:

88 Making claims other than particular claims relating to marketeering contraventions and non-investment residential property

  1. (5)
    If the claim is not made within the time allowed under section 85, the chief executive must give the person a notice in the approved form stating that—
  1. (a)
    the claim is out of time; and
  1. (b)
    the person may apply to QCAT, within 14 days after being given the notice, for an extension of time within which to make the claim.

122 QCAT may extend time

  1. (1)
    QCAT may extend the time within which to make a claim or seek review of a decision of the chief executive if QCAT is satisfied—
  1. (a)
    the application is made—
  1. (i)
    for a claim—within the time mentioned in the notice given under section 88(5)(b); or
  1. (ii)
    for a review of a decision of the chief executive—within 42 days after the person is given notice of the decision to be reviewed; and
  1. (b)
    it is appropriate to extend time having regard to—
  1. (i)
    the reasons for not making the claim or seeking the review within the time allowed; and
  1. (ii)
    the application generally; and
  1. (iii)
    for a claim, the relative hardship that an extension of time or a refusal to extend time would place on the claimant or respondent; and
  1. (iv)
    the justice of the matter generally.
  1. (2)
    No appeal lies against QCAT’s decision under this section.
  1. (3)
    To remove any doubt, it is declared that the QCAT Act, section 61 does not apply for a proceeding to which this section applies.
  1. [15]
    I have set out section 122 in full, but I note that section 122(1)(a)(i) is applicable in this case, rather than section 122(1)(a)(ii).
  2. [16]
    Section 61 of the QCAT Act, which is mentioned in section 122 of the AFA Act, says:

61 Relief from procedural requirements

  1. (1)
    The tribunal may, by order—
  1. (a)
    extend a time limit fixed for the start of a proceeding by this Act or an enabling Act; or
  1. (b)
    extend or shorten a time limit fixed by this Act, an enabling Act or the rules; or
  1. (c)
    waive compliance with another procedural requirement under this Act, an enabling Act or the rules.
  1. (2)
    An extension or waiver may be given under subsection (1) even if the time for complying with the relevant requirement has passed.

Was the extension of time application itself out of time?

  1. [17]
    Under section 122 of the AFA Act, the Tribunal may extend the time in which to make a claim against the Claim Fund if, firstly, the extension of time application is made ‘within the time mentioned in the notice given under section 88(5)(b)’ and, secondly, an extension of time is appropriate, having regard to various factors.
  2. [18]
    In the present case, the time mentioned in the notice given to Mr and Ms de Bruyn under section 88(5)(b) was ‘within 14 days of receiving this notice’.
  3. [19]
    The chief executive submits that the 14 period expired 14 days after 11 April 2019, on 25 April 2019. Although the 11 April 2019 correspondence is addressed to Mr and Ms de Bruyn at their home in Darwin, the chief executive says the correspondence was emailed on 11 April 2019.
  4. [20]
    It can be assumed that the letter, if also posted, would have reached Darwin some days later. The correspondence, in whatever form, must have been received by 17 April 2019, which is the date on which the extension of time application (which was sent with the correspondence) was signed by Mr and Ms de Bruyn.
  5. [21]
    If the 11 April 2019 correspondence was received by Mr and Ms de Bruyn on 11 April 2019, the 14-day period would have ended on 26 April 2019: an extra day is allowed under section 38(3) of the Acts Interpretation Act 1954 (Qld) because 25 April is always a public holiday. Even if the 11 April 2019 correspondence was not received until 17 April 2019, the 14-day period would have ended on 1 May 2019. Either way, the extension of time application, filed on 2 May 2019, was not filed within 14 days of the date on which Mr and Ms de Bruyn received the out of time notice.
  6. [22]
    Accordingly, I find that the extension of time application was not made within the time mentioned in the notice given under section 88(5)(b) of the AFA Act.

Can the 14-day period be extended?

  1. [23]
    Ms de Bruyn characterises the 14-day period as seemingly unreasonable in light of the number of public holidays at that time of the year and the fact that it takes time for post to reach Brisbane from Darwin.
  2. [24]
    While I understand Ms de Bruyn’s frustration, section 122(3) of the AFA Act prevents the Tribunal from using its power under section 61 of the QCAT Act to extend the 14-day period.
  3. [25]
    I note that similar provisions under the now-repealed Property Agents and Motor Dealers Act 2000 (Qld) (‘PAMDA’) were considered by the Court of Appeal in Campaigntrack Victoria Pty Ltd v The Chief Executive, Department of Justice and Attorney-General & Ors.[2] The Court of Appeal held that the Tribunal had power under section 61 of the QCAT Act to extend the 14-day period for seeking an extension of time to claim, or to waive compliance with the requirement to make the extension of time application to the Tribunal within 14 days.
  4. [26]
    However, a critical difference is that the provision in the PAMDA, section 511, that was similar to section 122 of the AFA Act, did not contain the equivalent of section 122(3).
  5. [27]
    As section 122(3) of the AFA Act precludes the use of section 61 of the QCAT Act, there is now no power to extend the 14-day period or to waive compliance with it.

Effect on the extension of time application

  1. [28]
    As the 14-day period cannot be extended, or non-compliance waived, the result is that the Tribunal cannot be satisfied that the extension of time application was made within the time mentioned in the notice given under section 88(5)(b) of the AFA Act. Therefore an extension of time cannot be granted for Mr and Ms de Bruyn to claim against the Claim Fund.

Conclusion

  1. [29]
    The extension of time application must be refused. 

Footnotes

[1]AFA Act, s 123.

[2][2016] QCA 37.

Close

Editorial Notes

  • Published Case Name:

    Siimone De Bruyn and Matthew De Bruyn v Petrina Riley T/As Focus on Spence

  • Shortened Case Name:

    De Bruyn v Riley

  • MNC:

    [2019] QCAT 350

  • Court:

    QCAT

  • Judge(s):

    Member Kanowski

  • Date:

    13 Nov 2019

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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