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The Chief Executive, Office of Fair Trading, Department of Justice & Attorney-General v White[2019] QCAT 388

The Chief Executive, Office of Fair Trading, Department of Justice & Attorney-General v White[2019] QCAT 388

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

The Chief Executive, Office of Fair Trading, Department of Justice & Attorney-General v White [2019] QCAT 388

PARTIES:

THE CHIEF EXECUTIVE, OFFICE OF FAIR TRADING, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL

(applicant)

v

HELEN ELIZABETH WHITE

and

GRAHAM JOHN WHITE

(respondent)

APPLICATION NO/S:

OCL025-19

MATTER TYPE:

General administrative review matters

DELIVERED ON:

11 December 2019

HEARING DATE:

9 October 2019

HEARD AT:

Brisbane

DECISION OF:

Member Hughes

ORDERS:

Pursuant to sections 117 and 119 of the Agents Financial Administration Act 2014 (Qld), Helen Elizabeth White and Graham John White are ordered to jointly and severally pay to the Claim Fund established under section 78 of the Agents Financial Administration Act 2014 (Qld) the sum of $360,446.98 within 21 days of the date of this order.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – Claim Fund under  Agents Financial Administration Act 2014 (Qld) – whether reimbursement order should be made – where property agent misused trust funds – where receiver appointed – where requirements for reimbursement order met – where Tribunal does not have discretion once requirements met

Agents Financial Administration Act 2014 (Qld), s 64,

s 102, s 117, s 118, s 119

Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 39

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

APPEARANCES & REPRESENTATION:

 

Applicant:

Self-represented

Respondent:

Mr B Gough, A/Senior Debt Recovery Officer

REASONS FOR DECISION

What is this Application about?

  1. [1]
    Helen Elizabeth White and Graham John White, while trading as My Realty Gold Coast, misused trust funds totalling $317,955.41.
  2. [2]
    The Chief Executive, Office of Fair Trading, Department of Justice and Attorney-General paid $122,618.15 to a receiver to administer the trust account following the misuse of funds.
  3. [3]
    The receiver paid the balance of $80,126.58 remaining in the trust account to the Chief Executive who applied it towards the outstanding amount for claims paid from the fund.
  4. [4]
    Consequently, the Chief Executive now seeks reimbursement of $360,446.98 from Mrs White and Mr White.

Have the requirements for a reimbursement Order been met?

  1. [5]
    The Tribunal must make a reimbursement order:
    1. The application includes the prescribed Information Notice, letter of demand and statutory declaration attesting to the amount owing;[1]
    2. Mrs White and Mr White have not paid the amount owing;[2]
    3. The Chief Executive has made a decision about the claim against the fund;[3]
    4. The Chief Executive’s decision names Mrs White and Mr White as the persons liable to reimburse the fund;[4]
    5. Mrs White and Mr White did not apply to the Tribunal to review the Chief Executive’s decision, or upon review the Tribunal decided Mrs White and Mr White are liable to reimburse an amount to the Fund;[5]
    6. Written notice of the Chief Executive’s decision, a copy of the decision and the prescribed Information Notice were given to Mrs White and Mr White.[6]
  2. [6]
    Upon these requirements being met, the Tribunal does not have a discretion – it must make a reimbursement Order.[7]
  3. [7]
    The Application filed on 3 April 2019 includes:
    1. An Information Notice for 58 separate claims under the Fund totalling $317,955.41;[8]
    2. A letter of demand for $360,446.98 comprising the 58 claims under the Fund and receiver fees of $122,618.15[9] less trust balance of $80,126.58;[10] and
    3. A statutory declaration of the Chief Executive’s authorised delegate attesting that $360,446.98 remains outstanding to the Fund, used to settle 58 claims and receiver fees.[11]
  4. [8]
    The Chief Executive sent the Information Notices and letter of demand by ordinary prepaid post, separately to the last known address of Mrs White and Mr White.[12] The Information Notices gave them written notice of the Chief Executive’s decision and reasons for each claim and that they are liable to reimburse the Fund for the amounts paid.[13]
  5. [9]
    The Chief Executive sent the Application by post to the last known address of Mrs White and Mr White,[14] and invited them to make written submissions,[15] for the Tribunal’s consideration about when and how they intend to satisfy the amount owing.[16] The Tribunal also gave Mrs White and Mr White an opportunity to file written submissions.[17] 
  6. [10]
    Neither Mrs White nor Mr White applied to review the Chief Executive’s decisions.
  7. [11]
    Mrs White filed submissions acknowledging the debt. She also explained at the hearing that she and Mr White are executing a Judgment Summons and expect to be able to pay the debt in full by Christmas. Unfortunately for Mrs and Mr White, it is not within the Tribunal’s purview to provide time to pay.
  8. [12]
    I am therefore satisfied:
    1. The Chief Executive has made a decision for each of the claims against the Fund;
    2. Written notice of the Chief Executive’s decisions, the decisions and prescribed Information Notices were given to Mrs White and Mr White;
    3. Neither Mrs White nor Mr White applied to the Tribunal to review any of the claims;
    4. Neither Mrs White nor Mr White have paid any of the amounts owing; and
    5. Mrs White and Mr White are jointly and severally liable to reimburse the Fund the sum of $360,446.98.

What are the appropriate Orders?

  1. [13]
    Because I am satisfied that the prescribed requirements are met, I must make a reimbursement Order.
  2. [14]
    The appropriate Order is that pursuant to sections 117 and 119 of the Agents Financial Administration Act 2014 (Qld), Helen Elizabeth White and Graham John White are ordered to jointly and severally pay to the Claim Fund established under section 78 of the Agents Financial Administration Act 2014 (Qld) the sum of $360,446.98 within 21 days of the date of this order.

Footnotes

[1]Agents Financial Administration Act 2014 (Qld), s 117.

[2]Ibid s 119(2)(a).

[3]Ibid s 119(3)(a).

[4]Ibid s 119(3)(b), s 116(1)(a).

[5]Ibid s 119(3)(c).

[6]Ibid s 119(3)(d).

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

[8]Bundle of Information Notices dated various.

[9]Agents Financial Administration Act 2014 (Qld), s 64.

[10]Letter Susan Monfries to Graham White and Helen White dated 26 November 2018.

[11]Statutory Declaration of Nicholas Pirie sworn 28 March 2019.

[12]Statement of Claim dated 28 March 2019, paragraphs 5, 9.

[13]Agents Financial Administration Act 2014 (Qld), s 102.

[14]Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 39; QCAT Practice Direction 8 of 2009; Affidavit of Susan Monfries sworn 30 April 2019.

[15]Letter Susan Monfries to Helen White dated 29 April 2019; Letter Susan Monfries to Graham White dated 29 April 2019.

[16]Agents Financial Administration Act 2014 (Qld), s 118(1)(c).

[17]Direction 2 dated 7 May 2019.

Close

Editorial Notes

  • Published Case Name:

    The Chief Executive, Office of Fair Trading, Department of Justice & Attorney-General v White

  • Shortened Case Name:

    The Chief Executive, Office of Fair Trading, Department of Justice & Attorney-General v White

  • MNC:

    [2019] QCAT 388

  • Court:

    QCAT

  • Judge(s):

    Member Hughes

  • Date:

    11 Dec 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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