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The Chief Executive, Office of Fair Trading, Department of Justice and Attorney General v Wyeth Management[2021] QCAT 38

The Chief Executive, Office of Fair Trading, Department of Justice and Attorney General v Wyeth Management[2021] QCAT 38

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

The Chief Executive, Office of Fair Trading, Department of Justice and Attorney General v Wyeth Management & Ors [2021] QCAT 38

PARTIES:

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

(applicant)

v

wyeth management services pty ltd

(first respondent)

And

GARY ANTHONY WYETH

(second respondent)

And

CAROLINE WYETH

(third respondent)

APPLICATION NO/S:

OCL002-20

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

2 February 2021

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown Presiding

Adjudicator Alan Walsh

ORDERS:

  1. Wyeth Management Services Pty Ltd, Gary Anthony Wyeth and Caroline Wyeth must pay to the Chief Executive the sum of $17,728.05 within 28 days of the date of this order.
  2. Wyeth Management Services Pty Ltd and Gary Anthony Wyeth must pay to the Chief Executive the sum of $34,399.88 within 28 days of the date of this order.
  3. Wyeth Management Services Pty Ltd, Gary Anthony Wyeth and Caroline Wyeth must pay to the Chief Executive the sum $78,104.80 within 28 days of the date of this order.

CATCHWORDS:

PROFESSIONS AND TRADES – AUCTIONEERS AND AGENTS – STATUTORY OR OTHER FIDELITY OR COMPENSATION FUND – where respondent company was a licensed resident letting agent at a residential complex – where the other respondents were directors of the respondent company – where the applicant decided that the respondents were each responsible persons – where the applicant decided that the respondents were liable for the financial loss of the claimants – where the applicant seeks a reimbursement order in respect of amounts paid to the receiver for remuneration and costs – whether the tribunal should make a reimbursement order where the Tribunal must state that the respondents are liable to pay the applicant stated amounts in that event

Acts Interpretation Act 1954 (Qld) Sch 1

Agents Financial Administration Act 2014 (Qld) s 47, s 64, s 78, s 79, s 82, s 95, s 100, s 102, s 103, s 112, s 116 s 117, s 118 s 119

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 157

APPEARANCES &

REPRESENTATION:

Applicant:

Self represented

Respondent:

No appearance

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

What is this application about?

  1. [1]
    The Chief Executive applies for an order that the respondents reimburse the amount of $131,632.73 to the Claim Fund established under the Agents Financial Administration Act 2014 (Qld). The application falls for determination.

The background to the application

  1. [2]
    Wyeth Management Services Pty Ltd (WMS) is a licensed resident letting agent at a residential complex situated on the Gold Coast.[1] Mr Wyeth and Mrs Wyeth are directors of WMS. Mrs Wyeth is also the secretary of WMS.
  2. [3]
    The chief executive received complaints from various property owners, whose properties were managed by WMS, that WMS had not paid the owners’ rental entitlements correctly. Subsequently, Mr Michael Owen was appointed as receiver over the trust property of WMS on 24 April 2018.
  3. [4]
    Mr Owen prepared a report for the Chief Executive. The report included a breakdown of claimants and potential claimants and whether the various claims should be allowed or disallowed.[2]
  4. [5]
    The Chief Executive subsequently:
    1. (a)
      allowed a total of 14 claims against the Claim Fund totalling $61,831.33;[3]
    2. (b)
      paid a total of $79,504.80 to the receiver for remuneration and costs.[4]

The statutory framework – Agents Financial Administration Act 2014 (Qld) (AFAA)

  1. [6]
    For present purposes, it is appropriate to consider the provisions of the AFAA relevant to the following:
    1. (a)
      Claims against the Claim Fund;
    2. (b)
      Recovery of receivers’ remuneration and costs;
    3. (c)
      Applications for reimbursement orders.
      1. aClaims against the Claim Fund
  2. [7]
    The AFAA establishes the Claim Fund.[5] The fund must be used to pay the amount of all claims allowed against the fund.[6] The fund may also be used to pay the remuneration and costs of a receiver appointed by the chief executive.[7] A person may claim against the Claim Fund if the person suffers financial loss because of the happening of certain stipulated events, including the stealing, misappropriation or misapplication by a person of property entrusted to the person as agent.[8]
  3. [8]
    The chief executive may decide a claim against the fund.[9] The chief executive may decide to allow the claim, wholly or partly, or reject the claim.[10] In deciding to allow a claim the chief executive must name the respondent who is liable for the claimant’s financial loss.[11] By section 102(1) of the AFAA, the chief executive must give the respondent an information notice complying with the QCAT Act,[12] for the chief executive’s decision under section 100(1) and, by section 103(1) a party dissatisfied with the decision may apply to QCAT for a review of it. If the chief executive decides to allow a claim, the chief executive must authorise payment from the fund in the amount decided.[13] If a person is named as being responsible for a claimant’s loss and an amount has been paid from the fund, the person is a ‘responsible person’.[14]
  4. [9]
    The following persons are jointly and severally liable to reimburse the fund to the extent of the amount paid from the fund for a claim:
    1. (a)
      The responsible person;
    2. (b)
      If the responsible person is a corporation, each person who was an executive officer of the corporation at the time of the relevant event giving rise to the claim.[15]
  5. [10]
    An executive officer means a person who is concerned, or takes part in, the management of the corporation regardless of what they are called and whether they are a director.[16]
  6. [11]
    Before taking action against a responsible person and/or an executive officer to recover as a debt an amount for which the person is liable to reimburse the fund, the chief executive must give a letter of demand to the person requiring payment of the amount within 28 days after receiving the letter.[17]

b. Recovery of receivers’ remuneration and costs

  1. [12]
    The chief executive may appoint a receiver over trust property, inter alia, held by an agent.[18] The following persons are liable (and if more than one, jointly and severally) to reimburse the chief executive for an amount paid to a receiver, including an amount paid from the fund, for the receiver’s remuneration and costs:
    1. (a)
      the agent in relation to whom the receiver was appointed;
    2. (b)
      if the agent is a corporation, the executive officers of the company when the relevant event occurred for which the receiver was appointed.[19]
  2. [13]
    The chief executive must, before taking action to recover as a debt the amount paid to a receiver, give a letter of demand to each liable person requiring payment of the amount within 1 month after receiving the letter.[20]

c. Applications for reimbursement

  1. [14]
    The chief executive may apply to the tribunal for an order that a respondent reimburse the fund where:
    1. (a)
      A claim has been allowed by the chief executive, wholly or partly; and
    2. (b)
      The responsible person, despite being given a letter of demand, has not reimbursed the fund; [21]
  2. [15]
    The chief executive may also apply to the tribunal for an order that a respondent is liable to reimburse the chief executive for a receiver’s remuneration and costs in circumstances where the respondent has not done so despite demand.[22]
  3. [16]
    Upon making an application to the tribunal, the chief executive must give to each named respondent certain stipulated documents and certain stipulated advice including the right of the respondent to make submissions to the tribunal.[23]
  4. [17]
    If the tribunal is satisfied about certain stipulated matters[24] and is satisfied that the respondent has not paid the stated amount within the time allowed, the tribunal must make a reimbursement order.[25]
  5. [18]
    A reimbursement order made by the tribunal must state:
    1. (a)
      that the respondent;
    2. (b)
      is liable to pay a stated amount;
    3. (c)
      within a stated period.[26]

Consideration

  1. [19]
    In considering the application the tribunal notes that the respondents have not engaged in the proceedings and did not apply to QCAT to have the decision reviewed.
  2. [20]
    The Tribunal is satisfied, and finds, that the following amounts have been paid from the Claim Fund:
    1. (a)
      $61,831.33 in settlement of 14 claims allowed by the chief executive;
    2. (b)
      $79,504.80 paid to the receiver over the trust property held by WMS.[27]
  3. [21]
    The Tribunal is satisfied, and finds, that the chief executive has received from the receiver the amount of $9,703.40 being the balance of trust funds held by WMS.

The claims by owners

  1. [22]
    It is appropriate to address first the claims by the lot owners and the matters referred to at s 119(3) of the AFAA.

Has the chief executive made a decision about a claim against the fund? (s 119(3)(a))

  1. [23]
    The chief executive has made decisions about claims against the fund. In respect of those decisions naming WMS and Gary Anthony Wyeth as being liable for the financial loss of the claimant, the total amount of claims is $44,103.28. In respect of those decisions naming WMS, Gary Anthony and Caroline Anne Wyeth as being liable for the financial loss of the claimant, the total amount of claims is $17,728.05.

Did the chief executive notify the respondents of the decision/s? (s 102(1), s 102(3))

  1. [24]
    The chief executive did so notify each of the respondents.

Is the respondent liable to reimburse the fund? (s 119(3)(b), s 119(3)(c), s 119(3)(d) and s 116)

  1. [25]
    The tribunal finds as follows:
    1. (a)
      As noted in paragraph [23] of these reasons the decisions name WMS, Gary Anthony Wyeth and Caroline Anne Wyeth as being liable for the financial losses of each claimant;
    2. (b)
      An amount has been paid from the fund pursuant to s 112 of the AFAA in settlement of the decisions relating to the claims by each of the claimants;
    3. (c)
      WMS, Gary Anthony Wyeth and Caroline Anne Wyeth are each a ‘responsible person’ where named in the decisions as being liable for the financial loss of a claimant;
    4. (d)
      Gary Anthony Wyeth and Caroline Anne Wyeth were each an ‘executive officer’ of WMS pursuant to s 116(4)(b) of the AFAA;
    5. (e)
      WMS, Gary Anthony Wyeth and Caroline Anne Wyeth are jointly and severally liable to reimburse the fund to the extent of the amount paid from the fund as a result of the decisions insofar as each of the respondents is a responsible person or an executive officer;
    6. (f)
      Before filing the application for reimbursement, the chief executive gave a letter of demand to each of WMS, Gary Anthony Wyeth and Caroline Anne Wyeth as required by s 116(6) of the AFAA;
    7. (g)
      WMS, Gary Anthony Wyeth and Caroline Anne Wyeth have not applied to the tribunal to review any of the decisions of the chief executive;
    8. (h)
      Written notice of each of the decisions, a copy of the decision and an information notice in respect of each of the decisions has been provided to the respondents as required by s 102(1);
    9. (i)
      The information notice in each instance complied with the requirements of s 102(3) of the AFAA.

The claim for reimbursement of the amount paid to the receiver for remuneration and costs

  1. [26]
    The Tribunal is satisfied, and finds, as follows:
    1. (a)
      The chief executive has paid the receiver’s remuneration and costs in the total amount of $79,504.80;
    2. (b)
      The chief executive has given to each of the respondents a letter of demand requiring the respondents to pay the amount of $78,104.80 as required by s 64(4) of the AFAA;
    3. (c)
      The respondents have not, individually or otherwise, paid the amount to the chief executive as referred to in the letter of demand.
  2. [27]
    There is an obvious discrepancy between the amount referred to in the letters of demand and the amount of $79,504.80 which has been paid to the receiver from the fund.
  3. [28]
    As has been noted, the chief executive may recover as a debt from a liable person an amount paid to a receiver for the receiver’s remuneration and costs. The chief executive, before taking action to recover the amount of the debt, must give to each liable person a letter of demand requiring the person to pay the amount.
  4. [29]
    The chief executive may apply to the tribunal for an order that the liable person reimburse the fund or the chief executive for the receiver’s remuneration and costs if the liable person has not done so ‘as required under a letter of demand given to the person under section 64(4)’.[28]
  5. [30]
    The letters of demand required the payment of the amount of $78,104.80 by each of the respondents. The chief executive cannot, having given a letter of demand pursuant to s 64(4), subsequently apply to the tribunal for a reimbursement order in an amount greater than the amount referred to in the letter of demand.

Conclusion and orders

  1. [31]
    Section 119(4) of the AFAA provides that if the tribunal makes a reimbursement order, the order must state that the respondent is liable to pay to the chief executive a stated amount within a stated period. The section does not require the making of a declaratory order in addition to the repayment order. The liability of a respondent arises from the terms of the reimbursement order. Having said this, s 119(4) does not sit comfortably with s 117(3) which permits the chief executive to seek orders that a respondent reimburse the fund or the chief executive. Section 119(4) appears to circumscribe the orders the tribunal may make on a reimbursement application. A reimbursement order must state that the respondent is liable to pay to the chief executive a stated amount within a stated period. The provision is peremptory. It must, according to its ordinary grammatical meaning, be complied with. By s 120 of the AFAA, the chief executive must pay to the consolidated fund[29] an amount recovered by the chief executive in satisfaction of an amount paid from the claim fund. Read together, these provisions support the conclusion that a reimbursement order should be made in favour of the chief executive stating that the respondents are liable accordingly. If the amount ordered is subsequently paid by a respondent it is a matter for the chief executive to discharge his statutory obligations.
  2. [32]
    The appropriate orders are:
    1. Wyeth Management Services Pty Ltd, Gary Anthony Wyeth and Caroline Wyeth must pay to the Chief Executive the sum of $17,728.05 within 28 days of the date of this order.
    2. Wyeth Management Services Pty Ltd and Gary Anthony Wyeth must pay to the Chief Executive the sum of $34,399.88 within 28 days of the date of this order.
    3. Wyeth Management Services Pty Ltd, Gary Anthony Wyeth and Caroline Wyeth must pay to the Chief Executive the sum $78,104.80 within 28 days of the date of this order.

Footnotes

[1]Report, PWC dated 6 September 2018.

[2]AFAA, s 61

[3]Statement of claim attached to Application for reimbursement order, para (7)

[4]Ibid, para (4)

[5]AFAA, s 78(1).

[6]Ibid, s 79(1).

[7]Ibid, s 79(2)(a)(i).

[8]AFAA, s 82

[9]Ibid, s 95(1)(a).

[10]Ibid, s 100(1).

[11]Ibid, s 100(5)(b).

[12]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 157(2)

[13]AFAA, s 112(1).

[14]AFAA, s 116(3).

[15]Ibid, s 116(4).

[16]Ibid, Schedule 1.

[17]Ibid, s 116(5), s 116(6).

[18]Ibid, s 47.

[19]AFAA, s 64(1), s 64(2)

[20]Ibid, s 64(4).

[21]Ibid, s 117(1)(a), s 117(3).

[22]Ibid, s 117(1)(c).

[23]Ibid, s 118.

[24]Ibid – set out in s 119(3).

[25]Ibid, s 119(2).

[26]Ibid, s 119(4).

[27]Statutory declaration of Nicholas Pirie dated 20 December 2019.

[28]AFAA, s 117(1)(c).

[29]See Acts Interpretation Act 1954 (Qld), Schedule 1: consolidated fund means the consolidated fund established under the Financial Accountability Act 2009, section 16.

Close

Editorial Notes

  • Published Case Name:

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

  • Shortened Case Name:

    The Chief Executive, Office of Fair Trading, Department of Justice and Attorney General v Wyeth Management

  • MNC:

    [2021] QCAT 38

  • Court:

    QCAT

  • Judge(s):

    Senior Member Brown Presiding Adjudicator Alan Walsh

  • Date:

    02 Feb 2021

Appeal Status

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

Cases Cited

No judgments cited by this judgment.

Cases Citing

Case NameFull CitationFrequency
Waller Family Lawyers Pty Ltd v AB [2022] QCAT 3622 citations
1

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