Mikosza v Key to Australia Pty Ltd
[2023] QCAT 10
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- Unreported Judgment
- Mikosza v Key to Australia Pty Ltd[2023] QCAT 10
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Mikosza v Key to Australia Pty Ltd[2023] QCAT 10
Mikosza v Key to Australia Pty Ltd[2023] QCAT 10
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Mikosza v Key to Australia Pty Ltd & Anor [2023] QCAT 10 |
PARTIES: | olgierd stanislaw mikosza (applicant) v key to australia pty ltd graham mark scarrott (respondents) |
APPLICATION NO/S: | OCL063-21 |
MATTER TYPE: | Other civil dispute matters |
DELIVERED ON: | 5 January 2023 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Member Deane |
ORDERS: |
|
CATCHWORDS: | ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – Claim fund under Agents Financial Administration Act 2014 (Qld) – whether issues can be decided as preliminary questions of law – whether a person claimed to have made representations in New Zealand should be joined Agents Financial Administration Act 2014 (Qld), s 77, s 78, s 105 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 42 A B Hill Constructions Pty Ltd v Queensland Building and Construction Commission [2015] QCAT 46 Craig v Ravenshoe Community Centre Inc & Ors [2013] QCATA 177 Goodchild v Ferrantino [2007] QCCTPAMD 2 Nowlan v Medical Board of Australia (No 1) [2019] QCAT 413 Riley, Vrachnas & The Chief Executive, Office of Fair Trading v Ferrantino [2008] QCCTPAMD 3 |
APPEARANCES & REPRESENTATION: | This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) |
REASONS FOR DECISION
- [1]This is one of several applications, which have been referred to the Tribunal involving Key to Australia Pty Ltd (KTA) and Graham Mark Scarrott (collectively the Respondents). It is not disputed that the Respondents held real estate agent licenses issued in Queensland during the relevant period.
- [2]Mr Mikosza made a claim against the fund established under the Agents Financial Administration Act 2014 (Qld) (the Act) (the Fund).[1] The claim relates to conduct of the Respondents, including representations made to Mr Mikosza in New Zealand by John Glover, acting on behalf of the Respondents. The Chief Executive referred Mr Mikosza’s claim to the Tribunal for determination.[2]
- [3]The Tribunal may decide to allow a claim wholly or partly or reject a claim.[3] It may decide to allow a claim only if satisfied on the balance of probabilities that the person may make the claim under division 2.[4] If the claim is allowed the Tribunal is to decide the amount of the claimant’s financial loss and name the person who is liable for the loss.[5]
- [4]The Referral contains a report to creditors, which shows that Mr Scarrott became bankrupt on 15 April 2021.
- [5]An online Australian Securities & Investments Commission (ASIC) search shows that KTA was de-registered on 10 July 2022 and therefore no longer exists as a legal entity unless it is re-registered.
- [6]The Chief Executive raised various issues in the Referral.
- [7]On 16 March 2022, the Tribunal directed that the following issues be determined by the Tribunal as preliminary questions of law:
- (a)Whether any representations made by the Respondents to the Applicant in New Zealand fall within the jurisdiction of the fund (as referred to in paragraph 18 of the Chief Executive, Department of Justice and Attorney General (Office of Fair Trading) submissions dated 26 August 2021, which were attached to the Referral of a matter to the Tribunal).
- (b)Whether John Glover is a relevant person for the purpose of the claim against the fund, and whether he should be listed as a respondent for the Referral (as referred to in paragraph 24 of the Chief Executive, Department of Justice and Attorney General (Office of Fair Trading) submissions dated 26 August 2021, which were attached to the referral of a matter to the Tribunal).
- (c)Whether monies paid to the Respondents for development services were monies entrusted to the Respondents on behalf of the Applicants or whether they became the Respondents property to do with as they liked (as referred to in paragraph 33 of the Chief Executive, Department of Justice and Attorney General (Office of Fair Trading) submissions dated 26 August 2021, which were attached to the referral of a matter to the Tribunal).
- (d)Whether the Respondents failure to refund the Applicant as promised is a representation capable of being relied on for the purpose of a section 212 breach, or is a breach of an agreed contractual provision (as referred to in paragraph 42 of the Chief Executive, Department of Justice and Attorney General (Office of Fair Trading) submissions dated 26 August 2021, which were attached to the referral of a matter to the Tribunal).
- (a)
- [8]The parties and the Chief Executive were directed to file submissions to allow the issues to be determined on the papers. Some submissions have been received.[6]
- [9]I now consider these matters only.
- [10]The purpose of determining preliminary questions of law is to shorten the proceedings and minimise costs to the parties.
- [11]
Briefly stated, the distinction is between ‘pure’ questions of law (e.g., what is the correct test to be applied in deciding a matter?); questions of ‘pure’ fact (what actually took place between the parties?); and mixed questions – e.g., do facts, as found, satisfy legal tests?
- [12]In Nowlan v Medical Board of Australia (No 1) the then Deputy President in refusing an application for a preliminary determination of a point of law stated:[8]
It seems to me that the question of law cannot be properly divorced from its factual context and, if the Tribunal was to proceed in the way contended for by the applicant, it is unlikely to be able to answer the question of law in the absence of the full material that is to provide that factual context.
- [13]Having reviewed the material filed and considered the submissions, regrettably, I do not consider that these issues, except for the issue of joinder, can be decided in any meaningful way as preliminary questions of law. In my view they involve mixed questions of fact and law.
- [14]I have considered whether I could decide the questions as preliminary issues based on agreed or undisputed facts.
- [15]The Respondents submitted a response to the Chief Executive, which is included in the Referral. It is generic. It does not address the facts of each claim against the Fund. It does not make specific admissions. The Referral notes that Mr Scarrott has been successfully prosecuted for events related to these claims, however there is no specific evidence before me about the charges and the findings of fact or admissions of specific facts in those proceedings upon which I might rely. I do not consider that these issues can be decided as preliminary issues rather than questions of law. Findings of fact are required to decide these questions. It is not appropriate to make findings of fact prior to a final hearing.
- [16]Unfortunately, this means that rather than shortening the proceedings it has delayed their resolution.
Whether representations made in New Zealand fall within the jurisdiction of the fund? Is there a sufficient nexus with Queensland for a claim against the fund to be made?
- [17]I find that representations made in New Zealand may found a valid claim against the fund depending upon findings of fact to be made by the Tribunal at a final hearing.
- [18]The Chief Executive in the Referral submits that the fund’s jurisdiction depends on where the offending behaviour occurred. The submission is put in terms of, if the relevant events occurred within the State of Queensland, then the fund can operate, but if they occurred elsewhere, the fund cannot. The Chief Executive cites Goodchild v Ferrantino[9] and Riley, Vrachnas & The Chief Executive, Office of Fair Trading v Ferrantino.[10] The Chief Executive submits that the Tribunal will have to determine whether any representations made by the Respondents to Mr Mikosza in New Zealand fall within the jurisdiction of the fund.
- [19]In the Chief Executive’s submissions filed in response to the directions the Chief Executive now submits that an applicant must establish on the balance of probabilities that the Respondents performed the activities of a real estate agent within Queensland at all relevant times. The Chief Executive now appears to concede that the authorities do not support the statement made in the Referral as to jurisdiction of the fund.
- [20]Whether there is a sufficient nexus with Queensland will depend upon findings of fact to be made by the Tribunal upon a hearing as to whether the claim against the fund is made out.
Is John Glover a relevant person for the purpose of the claim against the fund? Should John Glover be joined?
- [21]Whether Mr Glover is a relevant person will depend upon findings of fact. I do not consider that this issue can be decided as a preliminary question of law.
- [22]I am not satisfied that John Glover should be joined at this time.
- [23]The Tribunal may make an order joining a party if it considers the person should be bound by, or have the benefit of, the decision; the person’s interests may be affected; or for another reason, it is desirable that the person be joined.[11] In addition to meeting the threshold test, the Tribunal has accepted that there must be utility and purpose in joining the proposed party.[12]
- [24]No party seeks to join Mr Glover. Neither Mr Mikosza nor the Chief Executive seek to join Mr Glover. The Respondents have not made any submissions. Mr Scarrott’s trustee in bankruptcy has not made any submissions.
- [25]The Chief Executive says despite enquiry Mr Glover’s whereabouts has not been ascertained. The Chief Executive was directed to serve a copy of Mr Mikosza’s submissions on the Respondents and Mr Glover and directions were made to afford the Respondents and Mr Glover an opportunity to file submissions in response. The Chief Executive’s submissions confirmed that the applicant’s submissions were served upon the Respondents but not on Mr Glover as the Chief Executive does not have a valid address for service for Mr Glover. Any additional party will add to the length of the proceeding and hearing. This is particularly so where no address for service is readily available.
Were monies paid to the Respondents for development services monies entrusted to the Respondents on behalf of the Applicants or did they become the Respondents property to do with as they liked?
- [26]I do not consider that this issue can be decided as a preliminary question of law for the reasons set out earlier.
- [27]In my view it requires findings of fact to be made and involves mixed questions of fact and law.
Was the Respondents failure to refund the Applicant as promised a representation capable of being relied on for the purpose of a section 212 breach or was it a breach of an agreed contractual provision?
- [28]I do not consider that this issue can be decided as a preliminary question of law for the reasons set out earlier.
- [29]In my view it requires findings of fact to be made and involves mixed questions of fact and law.
Footnotes
[1]Agents Financial Administration Act 2014 (Qld), s 78 (the Act).
[2]Referral of a matter (non-disciplinary) filed 30 August 2021; the Act, s 77(a)(i).
[3]Ibid, s 105(1).
[4]Ibid, s 105(2).
[5]Ibid, s 105(3).
[6]Mr Mikosza’s submissions filed 4 April 2022; Chief Executive’s submissions filed 6 July 2022; no submissions were received from Key to Australia Pty Ltd or Mr Scarrott.
[7]Craig v Ravenshoe Community Centre Inc & Ors [2013] QCATA 177, [8].
[8][2019] QCAT 413, [7].
[9][2007] QCCTPAMD 2 at [24] to [62].
[10][2008] QCCTPAMD 3 at [23], [24].
[11]QCAT Act, s 42(1).
[12]A B Hill Constructions Pty Ltd v Queensland Building and Construction Commission [2015] QCAT 46.