Queensland Judgments
Authorised Reports & Unreported Judgments
  • sclq logo
  1. Caselaw
  2. QCAT
  3. 2024
  4. Millar v Key to Australia Pty Ltd - [2024] QCAT 289

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Millar v Key to Australia Pty Ltd[2024] QCAT 289

Millar v Key to Australia Pty Ltd[2024] QCAT 289

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Millar v Key to Australia Pty Ltd & Anor [2024] QCAT 289

CRAIG ANDREW MILLAR

(applicant)

TINA MARY MILLAR

(applicant)

v

KEY TO AUSTRALIA (deregistered)

(first respondent)

graham mark scarrott (a bankrupt)

(second respondent)

APPLICATION NO/S:

OCL070-21

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

18 July 2024

HEARING DATES:

14 June 2023 and 8 June 2024

HEARD AT:

Brisbane

DECISION OF:

Member Poteri

ORDERS:

  1. Pursuant to section 105 of the Agents Financial Administration Act 2014 (Qld), the claim is allowed and the amount of $176,250 should be paid to the Applicants from the Claim Fund at the expiration of the appeal period as outlined in section 143 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
  2. The First Respondent and Second Respondent are jointly and severally liable for the losses of the Applicant.
  3. Pursuant to sections 105(3) and 116(3) of the Agents Financial Administration Act 2014 (Qld), the First Respondent and the Second Respondent are jointly and severally liable to reimburse the Claim Fund in the amount of $176,250.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINSTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where residents of New Zealand have invested in real estate in Australia – where the residents were induced to make this investment because of the false and or misleading representations of an Australian registered real estate agent – where the real estate agent is alleged to have disbursed funds without authorisation from the real estate agent’s trust account – where the scheme has failed – where the residents have made a claim against the Claim Fund under the provisions of the Agents Financial Administration Act 2014 (Qld)  – where the claim has been referred to the Tribunal for a determination.

Agents Financial Administration Act 2014 (Qld), s 21, s 22, s 77, s 80, s 82, s 85, s 95, s 105, s 113, s 116

Criminal Code Act 1899 (Qld), sch 1, s 24

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 20, s 143

Planning Act 2016 (Qld), s 43

Property Occupations Act 2014 (Qld), s 12, s 26, s 97, s 154, s 155, s 206, s 207, s 208, s 209, s 212

Airstrike Industrial Pty Ltd v Robertson [2014] QCATA 43

Dunn v Chief Executive, Department of Justice and Attorney-General [2012] QCAT 476

Freehold Land Investments Ltd v Queensland Estates Pty Ltd (1970) 123 CLR 418

Goodchild v Ferrantino [2007] QCCTPAMD 2

To v Chief Executive, Department of Tourism [2006] QDC 381

APPEARANCES & REPRESENTATION:

 

Applicant:

Self-represented

First Respondent:

Key to Australia Pty Ltd No appearance

Second Respondent:

Graham Mark Scarrott      No appearance

Office of Fair Trading:

Mr A Tan, Legal Officer of the Office of Fair Trading

GENERAL OVERVIEW

  1. [1]
    This is an overview of 17 claims made under the provisions of the Agents Financial Administration Act 2014 (Qld) (‘AFAA’) regarding the activities of the First Respondent, Key to Australia Pty Ltd (‘Key’), and the Second Respondent, Graham Mark Scarrott (‘Scarrott’).
  2. [2]
    Except for one claimant, I have the consent of all the claimants to refer to the evidence and details of each of the various claims in considering the individual claims.
  3. [3]
    The consideration of the claims should be viewed as a whole because all of the claims refer to the proposed purchase of some 20 lots at Pimpama. The lots were the subject of put and call option agreements (‘P&C’) with Eagle Street Finance Pty Ltd, Leda (‘Vendor’).
  4. [4]
    In all Scarrott and Key were paid approximately $2,380,000 by the claimants. Scarrott paid approximately $603,000 to the Vendor for deposits under the P&Cs. Approximately $72,000 was paid to the Gold Coast City Council (‘Council’) for application fees and approximately $33,000 was paid to the town planners, Zone Planning Group (‘ZPG’). The Tribunal has not been informed of any other amounts that Scarrott may have paid to other consultants or contractors.
  5. [5]
    Scarrott and Key had at their disposal approximately $1,690,000. It is not clear to me how Scarrott and Key used these funds. However, most of these funds were used without the implied or express authority of the claimants on personal expenses, company expenses and keeping the whole scheme going. That is, the funds were dishonestly used by Scarrott and Key.
  6. [6]
    Scarrott and Key were charged and convicted of breaches of the Australian Consumer Law (‘ACL’) regarding their marketing of land at Pimpama. There were 18 complainants. Scarrott and Key pleaded guilty to the charges. Scarrott participated in voluntary records of interview with officers of the Office of Fair Trading (‘OFT’) in 2020. The admissions were summarised and read to the Court during the criminal proceedings. The admissions are set out in schedule 3 to the material filed by OFT on 17 March 2023. In summary the admissions show:
    1. Scarrott and Key fraudulently converted approximately between $1,600,000 and $1,700,000 to their own accounts or to pay another person.
    2. Scarrott forged ANZ finance approval letters to buy time.
    3. Scarrott started marketing the lots in May 2018.
    4. Scarrott had no assurances from the Council that it would approve the subdivision of the lots. This was confirmed by advice from ZPG dated 23 April 2019.
    5. Scarrott arranged for ZPG to lodge six applications with the Council on 26 August 2019. Post lodgement of the applications, Scarrott had meetings with the Council officers from September 2019 onwards where the officers raised 12 concerns with the applications and that the applications may have to be amended. Notwithstanding this advice Scarrott continued to market lots at Pimpama.
    6. Scarrott was also offering a promise of a refund to some claimants as a further inducement to convince these claimants to purchase lots at Pimpama.
    7. The complainants’ funds were paid into the bank account known as the Key to Australia Pty Ltd trust account ATF Scarrott Family Trust. Scarrott told the complainants that he and Key were licenced agents, and this bank account was a “trust account”.
    8. The returns that Scarrott was promising to the complainants were based on imagined figures rather than evidence based.
    9. Scarrott and Key’s trading losses per month were between $75,000 and $120,000. This is the reason why he was signing up new investors and trying to expedite the process. Scarrott was running out of time.
    10. Scarrott estimated that he only spent on average approximately $4,100 of each complainant’s funds in prosecuting the subdivision approval for the lots.
  7. [7]
    The Tribunal has no investigation powers. These powers are exercised by the Chief Executive of OFT under the AFAA.
  8. [8]
    The consideration of each claim was difficult and complicated because Scarrott and Key did not appear at the hearing. Scarrott did provide an unsworn statement which is very general in nature, self-serving and is not corroborated.
  9. [9]
    The claimants were ordinary everyday New Zealanders who trusted Scarrott. Generally, I found the claimants to be entirely credible and honest. Also, I found them to be extremely courteous and at times somewhat embarrassed by the way they were convinced by Scarrott to trust him.
  10. [10]
    In almost all cases there is no question that Scarrott did not provide the claimants with full details of his proposal. That is, he did not inform them of the possible shortcomings, disadvantages, and obstacles to overcome. He almost invariably told the claimants about the expected profit and gave them certainty.
  11. [11]
    Scarrott’s plan was for the parties to enter P&Cs with the Vendor and pay a deposit to secure the purchase of a lot (or lots). Other monies were paid to Scarrott by the claimants so that Scarrott could obtain approval from the Council to subdivide the lot into three individual lots and obtain approval to erect three townhouses on the individual subdivided lots.
  12. [12]
    Scarrott arranged for ZPG to lodge applications with the Council to subdivide lots 280, 281, 282, 333, 334 and 335 in August 2019. No applications were lodged with the Council to subdivide any other lots.
  13. [13]
    Scarrott received formal advice from ZPG in April 2019. Scarrott must have discussed his proposals and plans with Council officers and/or ZPG prior to April 2019 because he mentioned the six lots (ie lots 280, 281, 282, 333, 334 and 334) to claimants, P&B Crozier in Tribunal file OCL071-21 and he advised the Croziers that “the project is ready to start immediately” and that he had purchased lot 333.
  14. [14]
    I presume the plan was to on-sell the subdivided lots with approved plans or to erect the townhouses on the subdivided lots and to on-sell these subdivided improved lots. However, Scarrott did promise the claimants that they would not have to invest any further funds in the scheme or would not have to become purchasers of the individual lots. It is not clear to me how this would work in practice from a legal or timing perspective.
  15. [15]
    Bridging finance may have been required because the Council took more than the expected three to four months (as advised by ZPG) to assess the applications. One of the claimants stated that at one stage, Scarrott did discuss the necessity to obtain bridging finance. Scarrott has admitted forging ANZ approval letters to buy time.
  16. [16]
    It was all a question of timing and the Council approving the subdivision of the individual lots without the necessary setbacks and relaxation of on street parking. In the end, the Council took ten months to assess and reject Scarrott’s application, financing became more difficult and the COVID epidemic made all commercial activities more complicated.
  17. [17]
    It is difficult to ascertain when Scarrott started using the funds for his personal and Key’s expenses and other financing expenses to keep the whole scheme going. However, the Vendor became impatient and in 2020 the Vendor called upon the claimants to perform their obligations under the P&Cs and to pay the balance of the purchase prices under the P&Cs. Many of the claimants could not complete the purchases so their deposits were forfeited to the Vendor.
  18. [18]
    Ironically, two claimants who had the resources to complete the purchase of a lot and retain the lot have seen a substantial increase in the value of their lot and thus they have not suffered a financial loss.

REASONS FOR DECISION

  1. [19]
    The Applicants, Craig Andrew Millar and Tina Mary Millar (‘the Millars’) were at all relevant times residents of New Zealand.
  2. [20]
    Key was at all relevant times a corporation incorporated in Australia and had offices in Queensland.
  3. [21]
    Scarrott was at all relevant times a resident of Queensland and a director and the secretary of Key.
  4. [22]
    Between November 2019 and February 2020, the Millars met and communicated with a lady known by the name of Gaewyn in New Zealand and Scarrott in New Zealand and Australia to discuss a real estate scheme. Gaewyn identified herself as an employee of Key. Certain representations are alleged to have been made to the Millars:
    1. A substantial profit could be made by investing in a real estate scheme regarding land which the Council had preapproved for subdivision.
    2. An initial investment of $116,000 was required from the Millars.
    3. A deposit would have to be paid to the Vendor to secure the block of land. In this case it was lot 400. Scarrott and Key would facilitate the subdivision of the lot, including lodgement of plans. This would also include Key’s fees of $30,000.
    4. Scarrott and Key would on-sell the subdivided lot for the Millars without the necessity of the Millars having to pay for the balance of the land purchase.
    5. The outcome for the Millars would be a return on their investment from the sale of the subdivided lots. Scarrott advised the Millars that the subdivided lots could be sold at $200,000 each.
    6. On 17 December 2019 the Millars transferred the sum of $1,000 to Key’s bank account. On 4 January 2020 the Millars transferred the sum of $115,000 into the Key bank account.
    7. In early February 2020 Scarrott contacted the Millars and recommended that they should participate in another investment at Pimpama Village on the same basis as their purchase of lot 400. For this purchase they would require an initial investment of $60,000. The Millars agreed to participate in this purchase.
    8. On 10 February the Millars paid the sum of $1,000 into the Key Bank account. On 18 February 2020 the Millars paid an amount of $59,000 into Key’s bank account.
    9. The funds paid by the Millars to Key/Scarrott would be paid into and held in a trust account.
  5. [23]
    In February 2020, the Millars committed to the purchase of lot 400 Pimpama Village based on the representations made by Scarrott and by executing a P&C for the purchase of lot 400 for $304,000. The P&C is dated 19 February 2020.
  6. [24]
    The Millars remitted the total amount of $176,000 into the bank account of Key with the CBA. This is the account that Scarrott refers to as his “trust account”. It is in the name of Key to Australia Pty Ltd ATF Scarrott Family Trust.
  7. [25]
    A deposit of $30,400 was paid from the Key bank account to the Vendor under the provisions of the P&C.
  8. [26]
    The Millars were not able to complete the P&C for lot 400 and the deposit was forfeited to the Vendor.
  9. [27]
    Scarrott did not take the steps to arrange the drafting of a P&C for lot 416 that the Millars paid an amount of $60,000. It appears that Scarrott/key just converted these funds for their own purposes.
  10. [28]
    Scarrott did provide an email to [email protected] dated 12 June 2020 where he refers a plan. Nothing came of Scarrott’s attempt at a plan B or any other attempts to salvage something for the various claimants.

LEGISLATION

  1. [29]
    For reference I outline the relevant legislative provisions of the AFAA and Property Occupations Act 2014 (Qld) (‘POA’):

Sections 6, 8, 21, 22, 33, 77, 80, 82, 84, 85, 95, 105, 113 and 116 of the AFAA.

Sections 12, 26, 97, 115, 154, 155, 206, 207, 208, 209, and 212 of the POA.

CLAIM

  1. [30]
    Pursuant to s 82 of the AFAA, the Millars lodged a claim (‘Claim’) dated 29 July 2020 against the Claim Fund which is administered by OFT. The Claim was made within the time stipulated in s 85 of the AFAA.
  2. [31]
    Pursuant to s 95 of the AFAA the Claim was referred (‘the Referral’) to the Tribunal on 31 August 2021 for determination.

REFERRAL

  1. [32]
    In the Referral OFT has raised several issues that should be considered by the Tribunal.
  2. [33]
    The issues are:
    1. Section 80 of the AFAA outlines the definition of a “relevant person” as being current and former licensed real estate agents. At the relevant time OFT admits that Key and Scarrott held valid licenses.
    2. OFT point out that Scarrott and Key may have been providing property development advice rather than acting as a real estate agent when the Millars entered the arrangements.
    3. A claim may be made under s 82 of the AFAA if the claimant suffers financial loss because of a contravention of ss 21 and 22 of the AFAA. Section 82(1)(a) and (b) of the AFAA relate to payment of monies or permitted drawings from a trust account. In these proceedings the Millars paid $176,000 into the trust account of Key. These monies were to be distributed by payment of $30,400 for the deposit to the Vendor for securing lot 400, $60,000 to purchase lot 416 including the payment of a deposit to the Vendor to secure the lot and Key’s management fees, and the balance to Key to prosecute the subdivision of these lots and to on-sell the subdivided lots.
    4. Section 82(1)(g) of the AFAA states that a claimant may make a claim if there has been a contravention of s 212 of the POA by a relevant person. Section 212 of the POA provides that in making a sale of real property, the relevant person must not make representations to someone that are false or misleading. This issue relates to the ability of Key to subdivide lot 400/another lot and/or whether the Millars would not be required to pay for the balance of the purchase price of lot 400 and any other lot to the Vendor.

EVIDENCE

MILLARS

  1. [34]
    I found the Millars to be open and honest when giving evidence and I accept their evidence.
  2. [35]
    Craig Millar provided a signed statement (‘Craig Millar’s Statement’) to OFT dated 6 August 2020 which is exhibited on pages 16 to 18 of the Referral’s Document Bundle. This statement also annexes other relevant material. The Millars gave evidence at the hearings by Teams and remote conferencing.
  3. [36]
    Between 15 November 2019 and 5 December 2019 Craig Millar met and communicated with Gaewyn and Scarrott where Scarrott outlined a proposal to Craig Millar and in December to Craig Millar’s brother Stuart Millar. The proposal was:
    1. For an investment of $116,000 the Millars could secure a lot at Pimpama Village by way of a P&C with the Vendor for a purchase price of $300,000.
    2. $30,000 would be for the deposit with the balance being used for Council fees, legal fees, survey fees and Key’s fees.
    3. Key would find a suitable preapproved lot which would be subdivided into three subdivided lots.
    4. The subdivided lots would be sold for $200,000 each.
    5. The subdivided lots would be sold before the completion of the P&C with the Vendor so that the Millars would not have to provide any further funds because the proceeds of the on-sales of the subdivided lots would cover the purchase price of lot 400.
    6. Any money paid to Scarrott would be deposited and held in a “trust account”.
  4. [37]
    In reliance of the above representations the Millars transferred $1,000 to the bank account of Key on 17 December 2019 to secure lot 400 at Pimpama Village.
  5. [38]
    On 3 January 2020 Scarrott met with Craig Millar at his place of work and presented the Millars with the P&C to secure lot 400. The P&C was executed by the Millars in the presence of Scarrott. The P&C was executed by the Vendor and is dated 19 February 2020. See pages 31 to 222 of the Referral’s Document Bundle.
  6. [39]
    On 7 January 2020 the Millars paid the sum of $115,000 into the Key bank account.
  7. [40]
    In early February 2020 Craig Millar formed a corporation by the name of BACS with his brothers. They were intending on using this corporation as a vehicle for further investment at Pimpama. Craig Millar says that he advised Scarrott that BACS may be interested in investing in Key.
  8. [41]
    On 8 February 2020 Scarrott telephoned Craig Millar with a further proposal at Pimpama and that an investment of $60,000 was required. Craig Millar committed to this further proposal on the basis that if BACS came up with the $60,000 within two months, then the investment would be transferred into the name of BACS.
  9. [42]
    Eventually BACS was not used as a vehicle to invest with Key or purchase any lots at Pimpama Village.
  10. [43]
    On 10 February 2020 the Millars transferred the sum of $1,000 into Key’s bank account as a deposit for the purchase of lot 416. On 17 February 2020 Scarrott sent the Millars an invoice for $60,000 for the purchase of 416. See Exhibit CM5 annexed to the Craig Millars’ Statement on page 25 of the Referral’s Document Bundle. On 18 February 2020 the Millars transferred the sum of $59,000 into Key’s bank account.
  11. [44]
    No P&C for lot 416 was drafted or sent to the Millars by Scarrott regarding their transfer of $60,000 to Key.
  12. [45]
    In June 2020 the Millars were informed by Sharney Rowe of JMV Law that she believed that Key and Scarrott had been using their clients’ funds illegally and that there were no funds remaining in the Key bank account.

ADMISSIONS BY SCARROTT

  1. [46]
    A claim was made against the Claim Fund by a Simon Allan Wilson (‘Wilson’) in Tribunal file OCL067-21. Wilson had similar dealings with Scarrott and Key regarding the subdivision of a lot at Pimpama. In sworn testimony given to the Tribunal, Wilson stated that Scarrott had made admissions to him that he had used the money that he collected from the New Zealand claimants on personal expenses, paying for settlements, paying deposits, Key’s expenses and to other New Zealand purchasers.
  2. [47]
    Further, I refer to the admissions made by Scarrott in interviews regarding Scarrott’s criminal prosecution referred to earlier in these Reasons. See annexure 3 attached to Form 4 – Complaint exhibited in the Supplementary Document Bundle filed in the Tribunal by OFT on 17 March 2023 on pages 10-13.

SCARROTT AND KEY

  1. [48]
    Scarrott did not attend the hearings to give evidence. He provided an unsworn statement (‘Scarrott’s Statement’) at pages 236 to 241 of the Referral’s Document Bundle.
  2. [49]
    Key was not represented at the hearings and no material was filed by Key in these proceedings. Key has now been deregistered as a corporation.
  3. [50]
    Details of Scarrott’s activities are outlined on page 1 to 26 in the Supplementary Document Bundle attached to OFT’s submissions filed in the Tribunal on 17 March 2023. From this material Scarrott was convicted of offences under the ACL. Scarrott was not charged with or convicted of any offences under the POA.
  4. [51]
    Scarrott was not subjected to any cross-examination to test his evidence. Therefore, I have reservations about the accuracy or veracity of Scarrott’s Statement. Further, in Scarrott’s Statement, Scarrott does not outline the admissions made by Scarrott in his interviews with officers of OFT in 2020 or the summary of the admissions read to the Court in the criminal proceedings when Scarrott pleaded guilty.
  5. [52]
    I make the following findings in relation to Scarrott and Key:
    1. The Respondents and the Vendor appear to have no formal arrangements for any of the Respondents to market the Vendor’s land at Pimpama.
    2. The Respondents appear to have never formally acted for or represented the Vendor. The Respondents did not have any authority from the Vendor to negotiate with any buyers of the Vendor’s land at Pimpama on behalf of the Vendor. See the comments relating to the “Developer” on page 12 of the Supplementary Bundle of Documents filed with OFT’s submissions filed in the Tribunal on 17 March 2023.
    3. Notwithstanding that there were no formal arrangements for Scarrott to market lots of land at Pimpama for the Vendor, it is almost certain that the Vendor was aware of Scarrott’s activities and there would have been numerous interactions between Scarrott and the Vendor’s representatives in 2019 and 2020. After all, Scarrott had achieved the sale of approximately 20 lots of land for the Vendor.
    4. Scarrott had been marketing residential housing lots in the Gold Coast region and at Pimpama prior to 2018.
    5. All funds were paid to the business account of Key to Australia Pty Ltd ATF the Scarrott Family Trust. Scarrott informed clients that this was a “trust account”. The Millars always believed and Scarrott gave them the impression that their funds were being paid into a real estate agent’s trust account and held in this trust account pending payment of the deposit under the P&C and payment of the expenses to facilitate the subdivision of lot 400.
    6. Scarrott arranged for ZPG to lodge a development application relating to lots 280, 281, 282, 333, 334 and 335 at Pimpama with the Council on 26 August 2019. See letter from ZPG to Gold Coast Mayor Tom Tate dated 23 April 2020 on pages 252 to 259 of the Referral’s Document Bundle.
    7. Scarrott admitted that he had meetings with Council officers from September 2019 onwards where the officers raised 12 concerns with the applications and advised Scarrott that the applications may have to be amended.
    8. Notwithstanding the advice from Council in September 2019, Scarrott continued to market lots at Pimpama on the basis that Council approval to subdivide was just a formality.
    9. No applications for subdivision of lots 400 or 416 were lodged with the Council.
    10. In the criminal prosecution of Scarrott there were approximately 18 affected parties.
    11. Scarrott admitted to forging letters from the ANZ bank to buy time.
    12. Scarrott attempted to obtain finance with Latrobe Financial Ltd, but the valuations of the land fell short of the valuations required by the financier.
    13. Scarrott always described himself as a sales consultant or a licensed real estate agent not as a development consultant.
    14. Scarrott initially expected the subdivision approval process with the Council to take three to four months. This process took much longer than expected and eventually the Council rejected Scarrott’s application. David Ransom (‘Ransom’) describes the response from Council as a “refusal”.
    15. He advised some claimants that once the six applications lodged by ZPG in August 2019 were approved by Council then the applications to Council for the rest of the lots would be approved “as of right” by Council without any delay or problems. This is contrary to the advice from Ransom of ZPG.
    16. At one stage Scarrott approached the Vendor for Vendor finance to complete the contracts. The Vendor would agree to providing 50% Vendor finance with the balance to be provided from the funds to come from New Zealand. This was not practical.
    17. Admissions were made by Scarrott that he expended the funds by paying for the deposits of various New Zealand investors for the purchase of the land under other P&Cs, Key’s expenses, expenses relating to the Council application process and personal expenses.
    18. Scarrott admitted that Key’s business was running at losses of between $75,000 and $120,000 per month. He was desperate for further sales so investors would provide him with funds to keep the scheme going. That is buying time.
    19. Ultimately the Council process took too long, Council rejected/approved the application with conditions, bank lending requirements became tighter, introduction of a foreign buyer’s surcharge was introduced into New Zealand, the COVID pandemic struck, and New Zealand banking institutions’ actions were delayed.

DAVID RANSOM AND ZONE PLANNING GROUP

  1. [53]
    Ransom is a director of ZPG which is a business specialising in town planning.
  2. [54]
    Ransom has provided a sworn statement executed on 24 August 2020 which is on pages 242 to 244 of the Referral’s Document Bundle. Ransom has an Urban and Town Planning degree from the University of New England. Annexed to this statement are a fee proposal, terms of engagement and some attached correspondence with the Council.
  3. [55]
    ZPG was engaged by Scarrott to assist him in obtaining planning approval for his development application. On 23 April 2019 ZPG provided advice to Scarrott regarding the proposed development approval. See annexure ZP1 of Ransom’s statement, pages 245 to 250 of the Referral’s Document Bundle.
  4. [56]
    Scarrott accepted the fee proposal and terms of engagement of ZPG and commenced work on the development application. The applications to the Council were lodged with the Council on 26 August 2019. See page 2 of the letter from ZPG to Tom Tate, the mayor of the Council, making complaints about the time taken to process the development application (see page 253 of the Referral’s Document Bundle).
  5. [57]
    In the letter from ZPG to Key dated 23 April 2019 there is no mention of lot 400. Lot 400 is not included in the applications to the Council that were lodged on 26 August 2019. Scarrott says that this was the case because he wanted to save costs and ZPG advised him that once the initial applications were approved then the other applications would be approved “as of right.” In giving oral evidence Ransom says that this is not correct and that he never gave this advice to Scarrott. Ransom says that if any lot was to be subdivided then an application to Council was required. Such applications would be assessed by Council in the normal manner.
  6. [58]
    The planning scheme that applies to lot 400 and the properties that were purchased by other New Zealand purchasers at Pimpama is the Gold Coast 2016 City Plan VS (see page 246 of the Referral’s Document Bundle).
  7. [59]
    I note the advice, in particular paragraph 3, given to Key and Scarrott in the letter from ZPG dated 23 April 2019 (see page 246 of the Referral’s Document Bundle). That is:

The proposed Dwelling Houses are also Code Assessable as they do not strictly conform with the acceptable outcomes of the Pimpama Village Residential Code… More specifically the dwellings will need to seek alternative outcomes in relation to boundary setbacks, site cover and communal open space.

Typically, applications of this nature will take Council in the order of 3 – 4 months to assess and decide…

  1. [60]
    From Ransom’s statement he says that the Council assessment took much longer than anticipated and ultimately the application was refused by the Council on 11 June 2020. According to Ransom this delay and refusal/approval with conditions was “completely wrong”.
  2. [61]
    Ransom says that ZPG has no knowledge of the details of Scarrott’s New Zealand sales scheme.
  3. [62]
    The Tribunal called Ransom to give oral evidence on 7 March 2024. His evidence was:
    1. “Preapproval” refers to preliminary approval in s 43 of the Planning Act 2016 (Qld). The preliminary approval refers to the approval in the material change of use Council reference MCU201500641 for Pimpama Village development area approved by the Council on 14 November 2016. (See page 245 of the Referral’s Document Bundle).
    2. Lots 280, 281, 282, 333, 334 and 335 are part of the Pimpama Village development area.
    3. If an owner intends to subdivide a lot and build on the subdivided lot in the Pimpama Village development area and the proposed subdivision and buildings do not strictly comply with the Pimpama Village Planning Scheme (as contained in MCU201500641) then an application to the Council to seek relaxation of the conditions under the preliminary approval is required.
    4. This is what occurred in respect to the applications to Council for lots 280, 281, 282, 333, 334 and 335. There was no preliminary approval (‘pre-approval’) for these lots or any of the other lots in Pimpama being marketed by Scarrott.
    5. The applications to Council are usually straightforward because they do not require advertising and no third party has rights to object.
    6. Ransom never had a pre-lodgement meeting or any discussions with any Council officers before the actual applications were lodged.
    7. Ransom was confident that the applications would succeed as there were similar developments at Southport and Varsity Lakes on the Gold Coast where the Council approved the developments with relaxed setbacks and parking requirements.
    8. Ransom acknowledged that there is no certainty of outcomes when making such applications with Council.
    9. Ransom also acknowledged that if the subdivision of any other lots at Pimpama was required then further applications to Council were required to be lodged and assessed by Council. There is no “as of right” procedure available whereby the other lots would be automatically approved (with relaxed setbacks and parking) if the applications for lots 280, 281, 282, 333, 334 and 335 were approved. Ransom denied giving any “as of right” advice to Scarrott.
    10. Ransom did discuss other consultants and contractors with Scarrott but he had no direct dealings with these consultants and contractors and he is not aware how much Scarrott paid them.
    11. He provided payment details to the Tribunal after giving evidence. ZPG were paid a total of $33,000 by Scarrott.

JURISDICTION

  1. [63]
    OFT has not raised the issue of jurisdiction of the AFAA. However, I have commented on this issue in other claimant’s decisions. Therefore, I will make these comments regarding the issue of jurisdiction.
  2. [64]
    There are no specific provisions in the AFAA which expressly limit the operations of the legislation to activities that take place in Queensland. Therefore, I must look to the caselaw to decide this issue.
  3. [65]
    The High Court decision of Freehold Land Investments Ltd v Queensland Estates Pty Ltd (1970) 123 CLR 418 (‘Freehold’) is instructive. Freehold involved a claim for commission where negotiations for a contract for the sale of land occurred inside and outside of Queensland. The court in Freehold examined the provisions for the Auctioneers, Real Estate Agents, Debt Collectors and Motor Dealers Acts 1922 to 1961 (Qld). This legislation is similar to the legislation in the AFAA.
  4. [66]
    In Freehold, the court held that the activities occurred in Queensland. However, the court at page 425 stated:[1]

The Act clearly enough is not concerned with what is done outside Queensland, even if it be done in accordance with a contract the proper law of which is the law of Queensland. On the other hand, whatever may be the proper law of an agency contract, the Act applies to a person who acts as, or carries on the business, of a real estate agent in Queensland and a Queensland court would give effect to it. It is not, therefore, possible to support the conclusion which his Honour reached on the ground upon which his Honour based it.

The critical question is rather, did the claimant, in doing what it did pursuant to its agency contract with the owner, act as, or carry on the business of a real estate agent in Queensland? The circumstances here are such that unless the claimant acted as a real estate agent in Queensland in the transaction with which we are concerned it did not carry on business as a real estate agent in Queensland, so that the question can be narrowed down to whether or not, in the course of the negotiation of the sale from Queensland Estates Pty Ltd to Golden Acres Ltd, it acted as a real estate agent in Queensland.

  1. [67]
    The matter of Goodchild v Ferrantino [2007] QCCTPAMD 2 (‘Goodchild’) involved a claim under the Property Agents and Motor Dealers Act 2000 (Qld) (‘PAMD Act’) for certain fraudulent activities that occurred in Queensland. In Goodchild the land was situated in New South Wales, but all the activities occurred in Queensland then the claim was allowed, notwithstanding the fact that the land was outside of Queensland… In Goodchild the Tribunal noted that one of the objects of the PAMD Act was for the protection of consumers. The main object of the AFAA is “to protect consumers from financial loss in dealing with agents”. The analysis of the law in Goodchild is relevant to the facts and circumstances in these proceedings.
  2. [68]
    I conclude that the protection given to claimants under the provisions of the AFAA is restricted to cases where the activities take place in or predominantly in Queensland.
  3. [69]
    In these proceedings the following facts apply:
    1. Lot 400 and lot 416 are in Queensland.
    2. Scarrott and Key are licenced and were based in Queensland.
    3. The Vendor is in Queensland.
    4. The Millars paid monies into the bank account of Key which is situated in Queensland.
    5. There was communication between the Millars (in New Zealand and Australia) and Key/Scarrott (in Queensland) prior to the execution by the Millars of the P&C.
    6. Further, the Millars communicated with Key, Scarrott and JMV Law in Queensland between November 2019 and June 2020.
  4. [70]
    By taking the above facts into account I find that the activities of Scarrott/Key took place predominantly in Queensland and the provisions of the AFAA apply to the Claim. As far as the issue of jurisdiction is concerned the Claim is valid.

REPRESENTATIONS OF SCARROTT

  1. [71]
    OFT have outlined a number of “representations” made by Scarrott to the Millars between October 2019 and December 2019 in the OFT’s submissions filed on 17 March 2023. OFT have submitted that these representations are central to the Claim and the answers to these representations were the subject of cross-examination by Mr Tan of OFT. I will now comment on these representations.
  2. [72]
    Representations 1, 2, 3, 4 and 5 can be examined together and I outline these alleged representations. They are:
    1. Representation 1 – The Respondents discovered land parcels in Pimpama Village, Queensland that can be configured into smaller lots.
    2. Representation 2 – The GC Council had preapproved this land being reconfigured into three smaller lots.
    3. Representation 3 – The Respondents planned to reconfigure this land and on sell the three smaller lots (the Scheme) to generate substantial profit for investors.
    4. Representation 4 – The Applicants could participate in this scheme by:
  1. Securing an option to purchase Pimpama Village land by signing a Put and Call Option Agreement, and
  2. Investing $116,000 with the Respondents.
  1. Representation 5 - The Applicants would not have to complete their purchase because the Respondents would complete the Scheme beforehand.
  1. [73]
    There is sufficient evidence for me to find that, prima facie, Representation 1, 2, 3, 4 and 5 are true. However, Scarrott was not telling the full story when he was selling the scheme and land to the Millars. When these representations were made Scarrott knew about the full details of his plans regarding the proposed subdivision of lot 400, plans to seek on-street parking and setback relaxations from the Council and that any such application was subject to Council procedures and timelines to assess the application and the application may or not be successful.
  2. [74]
    The Millars gave oral evidence that Scarrott advised them that the Council had approved lot 400 to be subdivided into three lots. Scarrott did not inform or disclose to the Millars of the following:
    1. The Council approval only related to the Pimpama Village development area as a whole. If the lots were to be subdivided, then an application must be lodged with the Council for assessment.
    2. The advice dated 23 April 2019 from ZPG (received prior to the Millars entering into the P&C for lot 400, committing to the purchase of lot 416 and transmitting funds to the Key bank account) that the plans for the subdivision of and the erection of townhouses of the subdivided lots did not strictly comply with the Pimpama Village Residential Code and Small Lot Code for the Pimpama Village development area. Therefore, to subdivide the lots they would require applications to Council to seek relaxations in building setbacks and street parking.
    3. Between November 2019 and February 2020 Scarrott only had plans with ZPG to make applications to Council to subdivide lots 280, 281, 282, 333, 334 and 335. As of February 2020, there is no indication or evidence that there was any plans or intention to make an application to Council to subdivide lot 400 or 416. See letter from ZPG to Scarrott dated 23 April 2019 page 245 of the Referral’s Document Bundle.
    4. The advice from ZPG to Scarrott dated 23 April 2019 was that any application would take three to four months to be assessed by Council. The application to Council for the six lots was lodged with Council in August 2019.
    5. By September 2019 Scarrott knew that the Council had 12 concerns with the ZPG’s applications to Council for the six lots and that the applications may have to be amended. This was confirmed by Council officers in meetings with Scarrott in September 2019.
  3. [75]
    It is clear that the representation made by Scarrott to the Millars that the subdivision of the lots 400 and 416 and the on-sales of the subdivided lots would be completed by the time the Vendor called on the Millars to complete the P&Cs was not only wildly optimistic but totally unrealistic. When the Millars committed their funds to Key’s bank account between December 2019 and February 2020 Scarrott was aware of the concerns of Council, there was no P&C for lot 416, he did not have full plans for lots 400 or 416 and he had not even lodged an application with Council to subdivide lot 400. By late 2019 and early 2020 Scarrott must have been under increasing pressure from all sides. It was going to be an impossible exercise to have all the Council approvals in place for lots 400 and 416, arrange the erection of the townhouses and on-sales of the subdivided lots before the Vendor called upon the purchasers to complete their respective P&Cs. The Vendor was calling on the P&Cs from mid-2020.  Scarrott was saying anything to convince further purchases so that more funds were transferred into the Key bank account. Scarrott was making these false and misleading representations to buy more time.
  4. [76]
    Scarrott gave the Millars the impression that everything would happen without difficulty, that there was approval by the Council to subdivide lots 400 and 416 and that sales of the subdivided lots would happen without any delays, and the proceeds of these sales would cover the initial purchase price, less the deposit and other costs, of lot 400.
  5. [77]
    I also refer to the admissions of Scarrott read to the Court in the criminal proceedings that his feasibility study was not based on any evidence.
  6. [78]
    Accordingly, I find that Representations 1, 2, 3, 4 and 5 were prima facie true.
  7. [79]
    However, I find that when Scarrott made these representations:
    1. He was purposely being vague, and he failed to properly explain or disclose the underlying issues and problems involved.
    2. He failed to disclose that he had received advice from ZPG that an application to subdivide any lot with relaxations from the Council was required.
    3. He also failed to advise the Millars that in September 2019 Council officers had advised Scarrott that they had 12 concerns with the current applications before the Council for lots 280, 281, 282, 333, 334 and 335 and that these applications may have to be amended.
    4. The current applications for the six lots before Council were taking much longer to assess than the three or four months that ZPG estimated in April 2019. This delay would have a flow on effect if Scarrott intended to lodge applications to subdivide lots 400 or 416.
    5. Even if the Council had approved the applications for lots 280, 281, 282, 333, 334 and 335, a separate application to subdivide lots 400 or 416 was required to be lodged and assessed by Council. There was no “as of right” approval for lot 400 as advised by Scarrott. The whole scheme depended on timing. Scarrott was being totally unrealistic when making his pitch to the Millars and other claimants. He was buying time.
    6. What also corroborates all the misleading and false representations made by Scarrott to the Millars is his actions in convincing the Millars to commit to the purchase of lot 416. Here he accepted the sum of $60,000 from the Millars and Scarrott/Key dishonestly converted these monies for their own purposes. No P&C was prepared for lot 416 and no monies were transferred to the Vendor to secure lot 416.
  8. [80]
    A representation that is false and/or misleading can be either an expressed representation or can be in the form of silence or non-disclosure of a very relevant fact or what was within the knowledge of Scarrott. This principle was discussed in the matter of Airstrike Industrial Pty Ltd v Robertson [2014] QCATA 43. At paragraph 30 of the decision the Learned Members refer to a misrepresentation by silence. They say:

for there to be a representation by silence the representee must establish that there was some relevant fact or matter within the knowledge of the representor and the representor chooses not to disclose the fact or matter to create a false impression.

  1. [81]
    If Scarrott had fully explained and been truthful about the processes required for Council approval, and that the whole scheme very much depended on timing then the Millars would not have committed to the purchase of lots 400 and 416 and transfer of funds to Key. Therefore, I find Representations 1, 2, 3, 4 and 5 were false or misleading.
  2. [82]
    In summary, I find that Scarrott/Key made the following representations to the Millars to induce them to enter the P&C which were false and/or misleading:
    1. There was preapproval to subdivide lots 400 and 416 with approved plans to build townhouses and the whole process would happen smoothly with Council.
    2. The on-sale of the subdivided lots on lot 400 and lot 416 would happen before the Vendor called upon the Millars to complete the P&Cs for lots 400 and 416. Further the proceeds of the on-sales of the subdivided lots would cover the purchase prices of lots 400 and 416 under the P&Cs.
    3. The funds paid by the Millars to Key would be paid into a trust account and held there and only paid out for the deposit under the P&C and payment of other expenses to prosecute the subdivision of lots 400 and 416.
    4. Scarrott was representing to the Millars that they would not have to borrow or contribute any further funds because the on-sales of the subdivided lots would cover the purchase prices of lots 400 and 416 under the P&Cs and result in a sale price of $200,000 per subdivided lot. Scarrott has admitted that he did not use any analytical data/information but used unsubstantiated figures in making these representations.
    5. Further, I am not certain how that would work from a practical and legal point of view. Also, it is possible that bridging finance may have been required for the whole scheme to succeed. Scarrott never explained to the Millars the details on how this would work from a practical and legal perspective. Further he was always vague.
  3. [83]
    As a matter of clarification, when I refer to representations made by Scarrott in my findings, the same findings also apply to Key as Scarrott was the director and controller of Key.
  4. [84]
    A general observation of the Millars and the other claimants is that Scarrott gained their trust, and it is clear from the evidence that Scarrott played on this trust and their lack of knowledge of Queensland legal processes relating to the purchase and subdivision of real property. He was always vague and gave them certainty when this was not the case. This is corroborated by his subsequent actions in not arranging for the P&C for lot 416 to be drafted and for the deposit for the purchase of lot 416 to be paid to the Vendor. In this case Scarrott accepted the sum of $60,000 and dishonestly converted it for his or key’s benefit.
  5. [85]
    In other claims OFT have raised the issue of s 24 of the Criminal Code Act 1899 (‘Criminal Code’) may be available to Key and Scarrott if either was charged with a criminal offence under the POA or other legislation. OFT have cited the decisions of To v Chief Executive, Department of Tourism [2006] QDC 381 at paragraphs 40 to 45 and Dunn v Chief Executive, Department of Justice and Attorney-General [2012] QCAT 476 at paragraph 11 as precedents for their submissions.
  6. [86]
    I accept the application of s 24 of the Criminal Code to these claims. However, the defence under s 24 of the Criminal Code must be “an honest and reasonable, but mistaken belief in the existence of any state of things”. In these proceedings, this mistaken belief may have related to the “preapproval” by the Council to the subdivision of the lots into three lots and the construction of three townhouses (with relaxed setbacks, site coverage and communal open space) on the three subdivided lots. Scarrott relied on the advice of ZPG/Ransom and his own enquiries that Council approval was code assessable, and a material change of use application would result in an approval in three to four months.
  7. [87]
    Scarrott always knew that the pre-approval for the lots only referred to the Code for the Pimpama Village development area as a whole. The pre-approval did not apply to the relaxation of having to strictly comply with the Code regarding the lots that he was marketing. In September 2019 the Council officers raised twelve concerns with the six applications that were lodged by ZPG in August 2019, and they advised Scarrott that the applications may have to be amended.
  8. [88]
    Further, the whole timetable, which was so important to Scarrott, was being extended by many months. For example, according to ZPG predictions the approval for the first six applications should have been approved by Council by the end of 2019. This did not occur and by February 2020 Scarrott was still trying to resolve these issues with the Council.
  9. [89]
    No reasonable person could honestly describe this as an approval or a certainty to be approved.
  10. [90]
    Therefore, s 24 of the Criminal Code is not a defence if Key or Scarrott are charged with any criminal offence.

CLAIM AGAINST FUND

  1. [91]
    To succeed in their claim the Millars must satisfy the provisions of s 82 of the AFAA. The provisions that may apply to the Millars’ claim are ss 82(1)(a), (b) and (g). In s 80 there is a definition of “relevant person”. At all relevant times Scarrott was an “agent”.
  2. [92]
    What is an “agent”? The relevant sections are ss 8, 33, 41 and 80 of the AFAA. Pursuant to these provisions Scarrott was as “agent” regarding the relevant provisions of the AFAA.
  3. [93]
    Section 16 of the POA outlines who is a “real estate agent” and in s 16 of the POA there is a reference to s 26 of the POA which outlines the activities that the holder of a real estate agent is authorised to undertake as an agent for others. OFT have raised the issue that Scarrott may not have been carrying out the activities of a real estate agent when he was prosecuting his scheme, that he was acting as a property developer or giving advice as a property developer.

In s 26 the POA states:

  1. A real estate licence authorises the holder of the licence to perform the following activities an agent for others for reward-
  1. To buy, sell (other than by auction), exchange or let real estate property or interests in real estate:
  2. …….
  3. To negotiate for the buying, selling, exchanging or letting of something mentioned in paragraph (a) or (b);
  4. …..

I find that the activities that Scarrott was undertaking for the Millars and the parties that have made claims against the Claim Fund fall squarely in the activities that are outlined in ss 26(1)(a) and (c) of the POA.

  1. [94]
    Has Scarrott complied with s 82 (1)(a) and (b) of the AFAA?
  2. [95]
    Notwithstanding the issue of any false and misleading representations made by Scarrott, I am of the view that only some of the monies paid to Scarrott and Key were disbursed in accordance with the parties’ understanding of how the scheme was to operate. The deposit of $30,400 for the deposit under the P&C for lot 400 was certainly paid in accordance with Millars’ express authority.
  3. [96]
    The Millars say that a management fee of $30,000 for Key was mentioned by Scarrott in their initial discussions with Scarrott. Even if there is an allowance for payment of Key’s management fee there was still a surplus of over $115,000 (i.e. $176,000 less $30,400 less $30,000) that should have remained in Key’s trust account because no work was undertaken by Scarrott/Key to prosecute the applications to Council for lots 400 and 416. Further, Scarrott has admitted using the funds deposited in the Key account to pay deposits for other NZ investors and for personal and Key’s expenses.
  4. [97]
    The Millars gave evidence that Scarrott gave them the impression that the funds paid to Key were to be held in a separate trust account and only dispersed to prosecute the subdivision of lots 400 and 416. This did not occur.
  5. [98]
    No actual application was lodged by Scarrott or ZPG to obtain approval to subdivide the lots. The application lodged by ZPG was for a material change of use and to reconfigure lots 260, 261, 262, 333, 334 and 335. I am of the view that there was no implied or express authority for Scarrott to disperse the monies when no applications were lodged by ZPG for lots 400 and 416.
  6. [99]
    It is difficult to determine the full details of the express and implied authority that Scarrott was to hold the monies on behalf of the Millars for the payment of expenses to progress the Council applications from the conversations and correspondence between the Millars and Scarrott/Key. Also, the details of payments to other consultants and contractors (if any) have not been produced to the Tribunal to ascertain how much was paid to these parties. Notwithstanding this lack of clarity, I find that there was an express/implied authority that Scarrott was to hold the Millars’ funds in trust and only disperse the funds for the deposit for the P&C, possibly the management fee and to prosecute the Council applications for subdivision, not for other expenses. Therefore, I find that Scarrott/ Key have breached s 82(1)(a) and (b) of the AFAA.
  7. [100]
    The only way to determine exactly when and how much Scarrott and Key disbursed from their account without implied or express authority would be for an accountant to forensically examine the bank accounts of Scarrott and Key. I do not have these details. However, I have little doubt funds were disbursed without authority, given the amount of money available to Scarrott, the lack of progress in prosecuting the applications to Council on many of the lots and his admissions that he was dishonest and acting without authority in his dealing and disbursement of money held by him.
  8. [101]
    Did Scarrott contravene s 82(1)(g) of the AFAA? To determine this question, it is necessary to consider whether there have been any contraventions of ss 154, 155, 206, 207, 208, 209 and 212 of the POA.
  9. [102]
    In s 80 of the AFAA is the definition of “relevant person”. At all relevant time Scarrott was a relevant person because he was an “agent”.
  10. [103]
    The Millars were given the impression by Scarrott that the funds that they transmitted to Key were to be paid into a trust account. The Millars say that they transferred the funds into Scarrott’s nominated back account BSB 064430 Account 11287804. Evidence from this claim and other claims shows that this is the Key to Australia Account that Scarrott referred to as his trust account. The true name of the bank account with the Commonwealth Bank of Australia is Key to Australia Pty Ltd ATF the Scarrott family trust. It is not necessary for me to establish if Scarrott/Key established a trust account under Part 2 of AFAA.
  11. [104]
    It is sufficient for me to say that the Millars paid the funds to Key.
  12. [105]
    It is noted that Scarrott was not charged with or convicted of any contravention of AFAA or POA. He was charged with and pleaded guilty of a contravention of the ACL.
  13. [106]
    Scarrott and Key pleaded guilty to breaches of the ACL. Scarrott’s admissions that he used investors’ funds dishonestly and fraudulently were outlined to the Court in these proceedings.
  14. [107]
    On balance Scarrott has contravened ss 21, 22 and 82(1)(a) and (b) of the AFAA.
  15. [108]
    Sections 154 and 155 of the POA refer to disclosure of a beneficial interest. These provisions do not apply to the facts and circumstances of the Claim.
  16. [109]
    The provisions of ss 206, 207, 208 and 209 do not apply to the facts and circumstances of the Claim.
  17. [110]
    The facts and circumstances of the Claim that relate to Scarrott making false and misleading representations about a scheme that induced the Millars to commit funds to Key and to enter into the P&C are a breach of s 212 of the AFAA. This scenario fits squarely into s 212 of the POA. Therefore, I find that Scarrott has contravened s 82(1)(g) of the AFAA.

OBJECTS OF AFAA AND POA

  1. [111]
    The main object of the AFAA is set out in s 6 of the AFAA. In summary the object is to protect consumers from financial loss in dealings with agents and this is to be achieved by regulating the ways agents operate trust accounts and establishing a claim fund to compensate persons in particular circumstances for financial loss arising from dealings with agents.
  2. [112]
    The main objects of the POA are set out in s 12 of the POA. In summary one of these objects is to provide a system of licencing of property which balances between the need to protect consumers and promote freedom of enterprise in the marketplace. Another object is to provide a way of protecting consumers against undesirable practices associated with the promotion of residential property.
  3. [113]
    In essence objects of both pieces of legislation are to provide for a system of licencing agents and to protect consumers.
  4. [114]
    If there are any inconsistencies or ambiguity in the facts, circumstances and interpretation of relevant legislation in these proceedings then given the objects of the legislation are squarely aimed at consumer protection, any such inconsistencies and ambiguities should be exercised in the claimant’s favour.

FINDINGS

  1. [115]
    On the balance of probabilities, in their dealings with the Millars regarding lot 400 and 416, I find as follows:
    1. Key and Scarrott have not complied with ss 82(1)(a), (b) and (g) of the AFAA.
    2. Key and Scarrott were “relevant persons” and “licenced agents” as contemplated in the provisions of the AFAA and POA, in particular s 80 of the AFAA.
    3. Key and Scarrott were carrying out the activities of real estate agents as outlined in ss 26(1)(a) and (c) of the POA. That is facilitating/negotiating the purchase and sale of interests in real property.
    4. The Millars lodged a valid claim pursuant to s 82 of the AFAA.
    5. The Millars have suffered a financial loss.
    6. Key and Scarrott are responsible for the financial losses of the Millars.
    7. The Millars cannot claim any capital losses and interest. See s 113(5) of the AFAA.
    8. The limit for any claim is $200,000. See s 113(4) of the AFAA and regulation 25 of the Agents Financial Regulation 2014 (Qld).
    9. The Millars have made a claim for $176,000 for the funds that they transferred to Key. I allow this claim. I also allow their claim for $250 for their lawyer’s fee.
    10. The Millars have made a claim for $1,500 for the cost of the setup of the corporation of BACS. This is a cost which is not directly attributable to the claim and the Millars may be able to use this corporation in the future. I do not allow this claim.
    11. The Millars have not provided sufficient evidence to substantiate any loss of opportunity and other financial losses. Further I cannot award any interest on the claim pursuant to s 113 of the AFAA.
    12. I allow a total claim of $176,250 to the Millars for their financial losses pursuant to the provisions of the AFAA.
    13. Scarrott and Key are jointly and severally responsible for the Millars’ financial losses.
    14. Pursuant to s 116(3) of the AFAA Scarrott and Key are jointly and severally liable to reimburse the Claim Fund in the amount of $176,250.

Footnotes

[1] Freehold, 425-6 (citations omitted).

Close

Editorial Notes

  • Published Case Name:

    Millar v Key to Australia Pty Ltd & Anor

  • Shortened Case Name:

    Millar v Key to Australia Pty Ltd

  • MNC:

    [2024] QCAT 289

  • Court:

    QCAT

  • Judge(s):

    Member Poteri

  • Date:

    18 Jul 2024

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Airstrike Industrial Pty Ltd v Robertson [2014] QCATA 43
2 citations
Jump To
Cite 1 - [2014] QCATA 43
Cite 2 - [2014] QCATA 43
Dunn v Chief Executive, Department of Justice and Attorney General [2012] QCAT 476
2 citations
Jump To
Cite 1 - [2012] QCAT 476
Cite 2 - [2012] QCAT 476
Freehold Land Investments Ltd v Queensland Estates Pty Ltd (1970) 123 C.L.R 418
2 citations
Jump To
Cite 1 - (1970) 123 C.L.R 418
Cite 2 - (1970) 123 C.L.R 418
Goodchild v Ferrantino [2007] QCCTPAMD 2
2 citations
Jump To
Cite 1 - [2007] QCCTPAMD 2
Cite 2 - [2007] QCCTPAMD 2
To v Chief Executive, Department of Tourism, Fair Trading and Wine Industry Development [2006] QDC 381
2 citations
Jump To
Cite 1 - [2006] QDC 381
Cite 2 - [2006] QDC 381

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.