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Peacock v Key to Australia Pty Ltd[2024] QCAT 351

Peacock v Key to Australia Pty Ltd[2024] QCAT 351

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Peacock v Key to Australia Pty Ltd & Anor [2024] QCAT 351

PARTIES:

Karen Marie Peacock

(applicant)

v

KEY TO AUSTRALIA (deregistered)

(first respondent)

graham mark scarrott (a bankrupt)

(second respondent)

APPLICATION NO/S:

OCL006-22

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

19 August 2024

HEARING DATES:

14 June 2023 and 8 March 2024

HEARD AT:

Brisbane

DECISION OF:

Member Poteri

ORDERS:

  1. 1.Pursuant to section 105 of the Agents Financial Administration Act 2014 (Qld), the claim is allowed and the amount of $109,600 should be paid to the Applicant 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. 2.The First Respondent and Second Respondent are jointly and severally liable for the losses of the Applicant.
  3. 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 $109,600.

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

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

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

Goodchild v Ferrantino [2007] CCT PC020 – 06

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

First Respondent:

Key to Australia Pty LtdNo appearance

Second Respondent:

Graham Mark ScarrottNo 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 claim, I have 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 the total of 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 6 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. 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’.
    7. The returns that Scarrott was promising to the complainants were based on imagined figures rather than evidence based.
    8. 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.
    9. 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 (except for one Australian claim) 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 April 2019. No applications were lodged with the Council to subdivide any other lots.
  13. [13]
    However, Scarrott must have discussed his proposal and plans with Council officers and/or ZPG prior to April 2019 because he mentioned these 6 lots to claimants, P&B Crozier in Tribunal file OCL071-21, and Scarrott advised the Croziers that he had purchased lot 333 himself (see email from Scarrott to P Crozier dated 22 March 2019 in Tribunal file OCL071-21). In this email Scarrott says that he has purchased lot 333 and the project is ‘ready to start immediately’.
  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 10 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 2 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 Applicant, Karen Marie Peacock (‘Peacock’), was at all relevant times a resident 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 May 2019 and February 2019, Peacock met and communicated with John Glover (‘Glover’), an employee of Key, and Scarrott to discuss a real estate scheme. Certain representations are alleged to have been made by Scarrott and Glover:
    1. A substantial profit could be made by investing in a real estate scheme regarding land which the Council had approved for subdivision.
    2. An initial investment was required from Peacock. A deposit would have to be paid to the Vendor to secure the blocks of land. Scarrott and Key would facilitate the subdivision of the land.
    3. Scarrott and Key would on-sell the subdivided lots for Peacock without the necessity of Peacock having to pay for the balance of the land purchase. Scarrott advised Peacock that the proceeds of the on-sales of the subdivided lots would cover the balance of monies required to purchase the block of land and Peacock would receive a profit from the scheme. The outcome for Peacock would be an estimated return of $245,700 (224%).
    4. Scarrott had undertaken the subdivision process for other investors and these investors had received their investment back together with a profit.
    5. The Council would approve the lots at Pimpama Village to be subdivided into three lots where townhouses could be erected and the subdivided lots on-sold to first home buyers. This could be achieved in three to five months.
    6. If the subdivided lots were not sold by the time the Vendor called upon Peacock to purchase the lot, then Key/Scarrott personally guaranteed Peacock that her money would be refunded to her.
  5. [23]
    Based on the representations of Scarrott and Glover in and about late May 2019 Peacock executed a P&C for lot 493 Pimpama Village (‘the Land’). The P&C was executed by the Vendor and dated 28 May 2019. The deposit payable under the P&C was $32,200.
  6. [24]
    Peacock remitted the following amounts to the Key bank account:
    1. On 11 May 2019 the sum of $2,000 was paid as a deposit to secure the Land.
    2. In or about 21 May 2019 the sum of $80,200.
    3. On 7 June 2019 the sum of $27,400.
  7. [25]
    Total transferred by Peacock to Key’s bank account was $109,600. 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.
  8. [26]
    Between January 2020 and July 2020 Peacock received updates on the progress of the purchase of the Land from Geri Richardson, an office administrator with Key. The information provided by Ms Richardson in these updates was vague and did not disclose any problems that Scarrott/Key may have been encountering with regard to the Council approving the subdivision of any lots at Pimpama Village.
  9. [27]
    In May 2020, Peacock’s lawyer, Sharney Rowe, emailed Peacock advising her that she may have to proceed to purchase the Land as the Vendor was calling for the completion of the P&C. Extension of this completion date was arranged with the Vendor and Peacock attempted to obtain finance with the ANZ bank to enable her to complete the P&C. Peacock was unsuccessful in obtaining this finance.
  10. [28]
    Peacock also received another letter of finance for a loan of $290,000 from the ANZ bank. Peacock knew nothing about this application to the ANZ bank and Peacock says that Scarrott forged her signature on the ANZ loan application.
  11. [29]
    The deposit of $32,200 was paid to the Vendor under the P&C. The balance of the funds paid to Key by Peacock (ie $77,400 less any possible claim for the management fee of $44,000) were not available to Peacock to purchase the Land and were expended by Key.
  12. [30]
    Eventually Peacock was not able to complete the P&C, Peacock went into default and the deposit of $32,200 was forfeited to the Vendor.

LEGISLATION

  1. [31]
    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. [32]
    Pursuant to s 82 of the AFAA, Peacock lodged a claim (‘Claim’) on 27 August 2021 against the Claim Fund which is administered by OFT. The Claim was made within the time stipulated in s 85 of the AFAA.
  2. [33]
    Pursuant to 95 of the AFAA the Claim was referred (‘the Referral’) to the Tribunal on 20 January 2022 for determination.

REFERRAL

  1. [34]
    In the Referral OFT has raised several issues that should be considered by the Tribunal.
  2. [35]
    The issues are:
    1. Jurisdiction. The AFAA is legislation enacted in Queensland. There is no specific provision in the AFAA which restricts claims to Queensland. However, for a claim to be successful, a claimant must demonstrate that there is a sufficient nexus to Queensland.
    2. 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.
    3. OFT point out that Scarrott and Key may have been providing property development advice rather than acting as a real estate agent when Peacock entered the arrangements.
    4. 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 Peacock paid $109,600 into the trust account of Key. These monies were to be distributed by payment of $32,200 for deposit to the Vendor for securing the Land and the balance to Key to prosecute the scheme.
    5. 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 the Land and/or whether Peacock would not be required to pay for the balance of the purchase price of the Land to the Vendor.

EVIDENCE

Peacock

  1. [36]
    I found Peacock to be open and honest when giving evidence and I accept her evidence.
  2. [37]
    Peacock provided a statement (‘Peacock’s Statement’) to OFT dated 23 September 2020 which is exhibited on pages 5 to 10 of the Referral’s Document Bundle filed 31 August 2021. This statement also annexes other relevant material. Peacock gave evidence at the hearings by Teams and remote conferencing.
  3. [38]
    Peacock communicated and met with Scarrott and Glover in May 2019 in New Zealand to explore the opportunity of purchasing a property in Australia. Peacock was introduced to Key and Scarrott by John Glover who was a friend of Peacock and a sales consultant with Key.
  4. [39]
    Peacock attended a seminar hosted by Scarrott and Key. In the seminar Scarrott outlined investment opportunities in Australia.
  5. [40]
    In late May 2019 Scarrott advised Peacock could participate in an investment scheme whereby Peacock could purchase a property at Pimpama and this property could be subdivided into lots, townhouses erected and the subdivided lots on sold for a profit. Scarrott provided Peacock with an expression of interest (see page 13 of the Referral’s Document Bundle) for the Land and advised her to pay an initial deposit of $2,000 to secure the Land. Peacock signed the expression of interest, sent it back to Scarrott and on 11 May 2019 paid an amount of $2,000 into the Key bank account.
  6. [41]
    In further discussions with Scarrott later in May 2019 Peacock was advised of the following:
    1. Key was selling lots at Pimpama to first home buyers at affordable prices.
    2. Peacock was provided with a spreadsheet with anticipated returns regarding the subdivision of the Land and on sale of the subdivided lots (see page 15 of the Referral’s Document Bundle). The feasibility shows an expected net return of $245,7000 or 224%.
    3. Scarrott had undertaken the subdivision proposal with other blocks at Pimpama Village and those investors had their ‘money back in profit’ (see paragraph 20 of Peacock’s Statement).
    4. Scarrott advised Peacock that she would not have to worry about finding buyers or when they would go ahead as once they were sold Peacock would receive her money back plus a profit. He advised her that her investment covered all fees and the whole subdivision and on-sale would be completed in three to five months at the longest (see paragraph 21 of Peacock’s Statement).
    5. Scarrott advised Peacock that she was only required to contribute $109,600 and this would cover the deposit for the Land and other expenses for the subdivision. Peacock was advised that she would not have to pay stamp duty as this was to be paid by the end purchaser.
    6. Scarrott advised Peacock a personal money back guarantee if the subdivision was not completed and Peacock was called upon to purchase the Land by the Vendor. Scarrott advised Peacock that he would take back the Land himself.
    7. Scarrott advised Peacock that any funds paid by Peacock to Key would be held in an agent’s ‘trust account’.
  7. [42]
    In May 2019 Peacock committed to the purchase of the Land by executing the P&C in the presence of Scarrott and Glover. The P&C was executed by the Vendor and is dated 28 May 2019.
  8. [43]
    In May 2019 Peacock transferred the sum of $80,200 to Key’s bank account. In June 2019 Peacock transferred the sum of $27,400 into Key’s bank account. In total Peacock transferred the sum of $109,600 into Key’s bank account (see paragraphs 27, 35 and 36 of Peacock’s Statement).
  9. [44]
    The deposit of $32,200 under the P&C was paid to the Vendor by Key.
  10. [45]
    Between January and April 2020 Geri Richardson, an office administrator with Key, provided updates to Peacock on the progress of the subdivision (see exhibits KMP 16, KMP 17, KMP 18 and KMP 19 to Peacock’s Statement, pages 207 to 215 of the Referral’s Document Bundle). In these updates Peacock was informed that the design was being prepared to lodge with the Council, Council had approved the overall development concept, COVID had delayed the whole process and Peacock may have to seek an extension from the Vendor to complete the P&C
  11. [46]
    Eventually Peacock was called upon by the Vendor to complete the P&C. Peacock attempted to obtain finance from the ANZ Bank to complete the P&C, but her application was unsuccessful. Peacock was therefore in default under the P&C and the deposit of $32,200 was forfeited to the Vendor.
  12. [47]
    Peacock learnt that there were no other funds available from the funds that Peacock paid into the Key bank account. Further, Peacock also became aware that Scarrott had forged her signature regarding another application for finance to the ANZ Bank (see paragraphs 48 and 49 of Peacock’s Statement).

ADMISSIONS BY SCARROTT

  1. [48]
    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. [49]
    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 in the bundle of documents filed in the Tribunal by OFT on 17 March 2023).

SCARROTT AND KEY

  1. [50]
    Scarrott did not attend the hearings to give evidence. He provided an unsworn statement (‘Scarrott’s Statement’) (pages 226 to 231 of the Referral’s Document Bundle).
  2. [51]
    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. [52]
    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. [53]
    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. [54]
    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’ of annexure 3 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 Scarrott Family Trust. Scarrott informed clients that this was a ‘trust account’.
    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 Tom Tate dated 23 April 2020 – page 243 to 250 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 application for subdivision of lot 493 was 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 the applications.
    15. Scarrott 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 David 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. [55]
    David Ransom (‘Ransom’) is a director of ZPG who are urban and regional planners.
  2. [56]
    Ransom has provided a sworn statement executed on 24 August 2020 which is on pages 233 to 373 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. [57]
    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 236 to 242 of the Referral’s Document Bundle).
  4. [58]
    Scarrott accepted the fee proposal and terms of engagement of ZPG and commenced work on the development application. The application to the Council appears to have been 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 244 of the Referral’s Document Bundle).
  5. [59]
    In the letter from ZPG to Key dated 23 April 2019 there is no mention of lot 493. Lot 493 is not included in the application to the Council 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. [60]
    The planning scheme that applies to the Land and the properties that were purchased by other New Zealand purchasers at Pimpama is the Gold Coast 2016 City Plan V5 (see page 237 of the Referral’s Document Bundle).
  7. [61]
    I note the advice, in particular paragraph 3, given to Key and Scarrott in the letter from ZPG dated 23 April 2019 (page 237 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. [62]
    From Ransom’s statement he says that the Council assessment took much longer than anticipated and ultimately the application was refused (approval with conditions unsatisfactory to Key/Scarrott) by the Council on 11 June 2020. According to Ransom this delay and refusal/approval with conditions was ‘completely wrong’.
  2. [63]
    Ransom says that ZPG has no knowledge of the details of Scarrott’s New Zealand sales scheme.
  3. [64]
    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 236 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 application was 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. [65]
    OFT has raised the issue of jurisdiction of the AFAA. 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.
  2. [66]
    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.
  3. [67]
    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. [68]
    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 as all the activities occurred in Queensland 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 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. [69]
    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. [70]
    In these proceedings the following facts apply:
    1. The Land is in Queensland.
    2. Scarrott and Key are licenced and were based in Queensland.
    3. The Vendor is in Queensland.
    4. Peacock paid monies into the bank account of Key which is situated in Queensland.
    5. There was communication between Peacock and Glover (in New Zealand) and Scarrott (in Queensland) prior to the execution by Peacock of the P&C in May 2019.
  4. [71]
    By taking the above facts into account I find that the activities of Key and Scarrott took place predominately 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. [72]
    OFT have outlined a number of ‘representations’ made by Scarrott and Glover to Peacock in 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. [73]
    Representations 1, 2, 3 and 4 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 being configured into smaller lots.
    2. Representation 2 – The land parcels in Pimpama Village have already been approved by the Gold Coast City Council to be configured into three smaller lots with townhouses to be built on each smaller lot.
    3. Representation 3 – The Respondents planned to reconfigure their reserved land parcels and on-sell them to first home buyers (Scheme) to generate a substantial profit for them.
    4. Representation 4 – The Applicant could participate in this scheme by:
      1. Securing an option to purchase Pimpama Village land; and
      2. Investing $109,600 with the Respondents to cover the land deposit, reconfiguration costs and fees.
    5. Representation 5 – The Scheme would be completed within three to five months.
    6. Representation 6 – Refund Option – ‘Mark (Second Respondent) also gave me his personal money back guarantee that if it wasn’t sold by the end of the agreement, he would take it back himself.’
    7. Representation 7 – They had already reconfigured other land parcels in Pimpama Village and those investors had already received their invested funds back with profit.
  3. [74]
    Peacock gave oral evidence that the above representations were made to her prior to Peacock committing to the execution of the P&C and payment of the funds to the Key back account.
  4. [75]
    There is sufficient evidence for me to find that, prima facie, Representation 1, 2, 3 and 4 are true. However, Scarrott was not telling the full story when he was selling the scheme and Land to Peacock. When these representations were made Scarrott knew the full details of his plans regarding the proposed subdivision of the Land, 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.
  5. [76]
    Peacock gave oral evidence that Scarrott advised her and gave her the impression that the Council approval to subdivide was just a formality.
  6. [77]
    In the relevant period of time, between May and June 2019, Scarrott had the benefit of Ransom’s advice. From this information and his own experience as a real estate agent Scarrott would have known that the application process was far from being a formality or likely be signed off by the Council. Scarrott did not inform Peacock of the following:
    1. That the plans and proposals did not strictly comply with code for the Pimpama Village development area and that an application to seek relaxations from the Council was required to be lodged and assessed by Council. This was the status in the beginning of negotiations in May 2019 where Scarrott had the benefit of Ransom’s advice.
    2. The applications to subdivide lots 280, 281, 282, 333, 334 and 335 were lodged with the Council on 26 August 2019. It seems to me that up to June 2019, when Peacock executed the P&C, Scarrott did not have formal plans and designs for the Land. It is probable that plans and designs were in the process of being prepared or were prepared for the six lots where applications for subdivision were lodged with the Council in August 2019. Scarrott mentioned these six lots to another claimant (P Crozier in Tribunal claim OCL071-21) in March 2019. In Crozier’s claim, Scarrott advised Crozier that the project regarding the six lots was ‘ready to start immediately’.
    3. If Scarrott had prepared any plans or designs, even in draft form, for the Land it is almost certain that these plans or designs would have been shown to Peacock as a marketing strategy to convince Peacock to commit to the purchase of the Land.
    4. The feasibility study, which is on page 15 of the Referral’s Document Bundle, discloses that a development application and material change of use (‘MCU’) was required. Scarrott never elaborated on this process and what obstacles had to be overcome to have the development application approved by Council. These obstacles were that the pre-approval only applied to the Pimpama Village development area, the Council would need to approve relaxation of setbacks and parking and time was of the essence. This was never disclosed to Peacock.
    5. I also refer to the admission of Scarrott read to the Court in the criminal proceedings that his feasibility study was not based on any evidence.
  7. [78]
    Accordingly, I find that Representations 1, 2, 3 and 4 were prima facie true. However, I find that when Scarrott (and Glover) made these representations they were purposely being vague, and they failed to properly explain or disclose the underlying issues and problems involved. They failed to disclose the advice that they had received from Ransom.
  8. [79]
    I am not able to make any conclusions about Glover’s role in the provision or the non-disclosure issues raised in the previous paragraphs. It is my view that Glover may have been an unwitting messenger for Scarrott. That is, Glover was providing information and making representations to Peacock about the plans and proposals, but Glover was being armed with the information by Scarrott.
  9. [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’.
  10. [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 Peacock would not have committed to the purchase of the Land and transfer of funds to Key. Therefore, I find Representations 1, 2, 3 and 4 were false or misleading.
  11. [82]
    Representation 5 – The Scheme would be completed within three to five months.
  12. [83]
    Peacock answered ‘yes’ when asked about Representations 5.
  13. [84]
    Representation 5 is part of Representations 1, 2, 3 and 4. Some of the above commentary is applicable to Representation 5.
  14. [85]
    Scarrott did not disclose the caveat in Ransom’s advice of April 2019.
  15. [86]
    For Scarrott to bring the scheme to fruition would have required the Council to approve the applications to subdivide the Land, and if necessary, build townhouses on the subdivided lots. There was no prospect of this happening in three to five months because of the time that would have been required to achieve these milestones. In June, it is my view that Scarrott did not have any designs or plans for the Land. Even on Ransom’s estimate of time of three to four months for the Council to assess and approve the application for subdivision for a MCU, there was not any possibility that the Land could have been formally subdivided, townhouses erected on the subdivided lots and the subdivided lots on sold in three to five months.
  16. [87]
    As events transpired, the applications to subdivide the six lots (ie lots 280, 281, 282, 333, 334 and 335) were not lodged with Council until August 2019 and there is no evidence that Scarrott was drafting documentation for the subdivision of the Land. The Council took until June 2020 to assess the six lots and in early 2020 correspondence from Key indicated the plans for the Land had not been finalised; the team was preparing the MCU application to lodge with Council and Scarrott was seeking time extensions from the Vendor.
  17. [88]
    It should also be remembered that Scarrott was advising some claimants that once the six applications (seeking relaxations for setbacks and on street parking) were assessed and approved by the Council, then any further applications would be approved ‘as of right’ (see Scarrott’s Statement page 228 of the Referral’s Document Bundle). Ransom from ZPG advised the Tribunal that there is no ‘as of right’ process when the Council is assessing applications. Each application must be separately assessed on its merits. The Council assessment process for the Land had not even been commenced.
  18. [89]
    Scarrott’s representation that the Scheme would be completed in three to five months from June 2019 is totally unrealistic.
  19. [90]
    The other reason that Representation 5 was false and/or misleading is because it is unclear how the on-sale of the subdivided lots of the Land would work from a practical and legal perspective. This was never explained or outlined by Scarrott or Glover. Bridging finance or Vendor indulgence/finance was probably required. Peacock applied for bridging finance, and it seems that Scarrott forged Peacock’s signature on another bridging finance application.
  20. [91]
    Further what corroborates the false, misleading and deceptive behaviour of Scarrott in making all the Representations is the email communications between Peacock, Scarrott and Geri Richardson of Key in early 2020 where Scarrott/Key were providing updates on the subdivision (see pages 207 to 213 of the Referral’s Document Bundle). The details provided in these communications were false or misleading and a way to keep the wolves at bay (see the admissions made by Scarrott to officers of OFT in 2020 and the material read to the Court in Scarrott’s and Key’s criminal proceedings where guilty pleas were entered by Scarrott and Key).
  21. [92]
    Representation 6 – Refund Option – Scarrott was not telling the whole story and not making full disclosure when he made the offer of a refund.
  22. [93]
    I do not accept that Scarrott could ever have delivered on this promise because:
    1. There is no evidence that there were any builders, developers or other interested parties who may have committed to the purchase of the Land. The refund issue is not mentioned or referred to in Scarrott’s Statement; and
    2. If Scarrott had such a commitment in some form of writing, then he certainly would have shown this commitment to Peacock and other New Zealand claimants. After all this would have been a marketing weapon for him to convince other possible purchasers. Further, if Scarrott had verbal commitments then these commitments are worthless because a contract for Land (ie real estate) must be in writing.
    3. Scarrott’s commitment to offer a refund is worthless because he did not have the resources or finance to offer this refund or purchase the Land. This is corroborated by Scarrott’s admissions about his fraudulent and dishonest use of the various claimants’ funds and his failed attempts to obtain bridging finance from ANZ and Latrobe Financial. Scarrott has admitted that Key’s business was running at a monthly loss of between $75,000 and $120,000 per month and he was forging ANZ bank approval letters to buy time. There was no possibility of Scarrott or Key being able to honour their commitment to purchase the Land unless they fraudulently converted other investors’ funds.
    4. Scarrott was making the refund or buy back promise to other New Zealand claimants. Scarrott had no prospect of fulfilling any of these promises.
  23. [94]
    Accordingly, I find the Refund Option Representation 6 was false or misleading.
  24. [95]
    Representation 7 – They had already reconfigured other parcels in Pimpama Village and those investors had already received their invested funds back with profit.
  25. [96]
    There is no evidence before the Tribunal to demonstrate that this had occurred. Scarrott was representing to Peacock that he had facilitated the subdivision of other lots, erected townhouses on the subdivided lots, on-sold the subdivided lots and returned a net profit to the investors who purchased these lots.
  26. [97]
    This issue is not mentioned or referred to in Scarrott’s Statement. If this did take place, then you would expect that Scarrott would have referred to this issue in his Statement as it is self-serving and paints Scarrott in a better light.
  27. [98]
    On the evidence before the Tribunal this representation is pure fantasy and was a marketing tool to convince Peacock that the purchase of the Land and subsequent subdivision of the Land was almost a certainty and was just a formality.
  28. [99]
    I find that Representation 7 was false and/or misleading.
  29. [100]
    In summary I find that Scarrott/Key made the following representations to Peacock to induce her to enter into the P&C and transfer funds to Key which were false and/or misleading:
    1. Scarrott, if required, would proceed with the Refund Option.
    2. The proposal to subdivide the Land into three lots with approved plans to build townhouses was all but signed off by Council, a formality and not difficult for Council.
    3. Peacock would not have to complete the P&C because the Land would be subdivided and the improved subdivided lots on-sold. The proceeds of the on-sale of the subdivided lots would cover the purchase price of the Land.
    4. The whole process would be completed in three to five months.
    5. Scarrott planned to reconfigure the reserved lots (including the Land) into three lots and on-sell these subdivided lots to generate a substantial profit to the investors.
    6. Peacock could participate in the Scheme by investing $109,000 and securing an option to purchase the Land.
    7. Scarrott had already reconfigured other land parcels at Pimpama Village and those investors had received their invested funds back with profit.
    8. All funds paid to key and Scarrott by Peacock would be held in a real estate agent’s ‘trust account’.
  30. [101]
    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. Also, Key/Scarrott are responsible for any representations made by Glover in these proceedings. However, it seems to me that Glover may have been the unwitting messenger for Scarrott and he was also duped by Scarrott’s duplicity.
  31. [102]
    A general observation of Peacock and the other New Zealand investors who made claims 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, lying or being deceptive when Peacock and other claimants asked for updates.

CLAIM AGAINST FUND

  1. [103]
    To succeed in her claim Peacock must satisfy the provisions of s 82 of the AFAA. The provisions that may apply to Peacock’s 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. [104]
    What is an ‘agent’? The relevant sections are ss 8, 33, 41 and 80 of the AFAA. Pursuant to these provisions Scarrott was an ‘agent’ regarding the relevant provisions of the AFAA.
  3. [105]
    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.
  4. [106]
    In s 26 the POA states:
  1. (1)
    A real estate licence authorises the holder of the licence to perform the following activities an agent for others for reward-
  1. (a)
    to buy, sell (other than by auction), exchange or let real estate property or interests in real estate;
  2. (b)
    …
  3. (c)
    to negotiate for the buying, selling, exchanging or letting of something mentioned in paragraph (a) or (b);
  4. (d)
    …
  1. [107]
    I find that the activities that Scarrott was undertaking for Peacock 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.
  2. [108]
    Has Scarrott complied with s 82(1)(a) and (b) of the AFAA? Notwithstanding the issue of any false and misleading representations made by Scarrott, I am of the view that 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 $30,200 under the P&C was certainly paid in accordance with Peacock’s express authority. Peacock gave evidence that the management fee $44,000 noted in the development proposal (page 15 of the Referral’s Document Bundle) was not mentioned or discussed in any meeting with Scarrott. There may be some question whether Scarrott was to receive the management fee up front or when the subdivided lots were sold. Because of the uncertainty it is arguable that Scarrott was entitled to draw funds held by Key to pay for the management fee.
  3. [109]
    Peacock gave evidence that Scarrott represented to her that all funds paid by her would be held in a real estate agent’s trust account. This did not occur.
  4. [110]
    No actual applications were lodged by Scarrott or ZPG to obtain approval to subdivide the Land. Further there is no evidence before the Tribunal that Scarrott prosecuted the subdivision of the Land by having plans and designs prepared for the Land. Therefore, I find that Scarrott and Key used and converted at least $33,400 (ie $109,600 less deposit $32,200 less management fee of $44,000) without the express or implied authority of Peacock.
  5. [111]
    It is difficult to determine the full details of the express and implied authority that Scarrott was to hold the monies on behalf of Peacock for the payment of expenses to progress the Council applications from the conversations and correspondence between Peacock, Glover and Scarrott/Key. Also, the details of payments to other consultants and contractors (if any) have not been produced to the Tribunal. There is also a question of whether the funds were to be held in a trust account or regulated real estate agents trust account.
  6. [112]
    On balance there is sufficient evidence before the Tribunal for a finding that Key/Scarrott have breached s 82(1)(a) and (b) of the AFAA.
  7. [113]
    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. [114]
    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. [115]
    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. [116]
    It is noted that Scarrott was not charged with or convicted of any contravention of the AFAA or POA. He was charged with and pleaded guilty of a contravention of the ACL.
  11. [117]
    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.
  12. [118]
    On balance Scarrott has contravened ss 21, 22 and 82(1)(a) and (b) of the AFAA.
  13. [119]
    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.
  14. [120]
    The provisions of ss 206, 207, 208 and 209 do not apply to the facts and circumstances of the Claim.
  15. [121]
    The facts and circumstances of the Claim that relate to Scarrott making false and misleading representations about a scheme that induced Peacock to commit funds to Key and to enter into the P&C and transfer funds to Key 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. [122]
    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. [123]
    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 particular undesirable practices associated with the promotion of residential property.
  3. [124]
    In essence, the objects of both pieces of legislation are to provide for a system of licencing agents and to protect consumers.
  4. [125]
    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. [126]
    On the balance of probabilities, in their dealings with Peacock regarding lots 493, I find as follows:
  1. 1.Key and Scarrott has contravened ss 82(1)(a), (b) and (g) of the AFAA.
  2. 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. 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. 4.Peacock lodged a valid claim pursuant to s 82 of the AFAA.
  5. 5.Peacock has suffered a financial loss.
  6. 6.Key and Scarrott are responsible for the financial losses of Peacock.
  7. 7.Peacock cannot claim any capital losses and interest (see s 113(5) of the AFAA).
  8. 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. 9.Peacock has made a claim for $109,600. I allow this claim. Peacock has 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.
  10. 10.Therefore, I allow the amount of $109,600 for Peacock’s claim.
  11. 11.Scarrott and Key are jointly and severally responsible for Peacock’s financial losses.
  12. 12.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 $109,600.

Footnotes

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

Close

Editorial Notes

  • Published Case Name:

    Peacock v Key to Australia Pty Ltd & Anor

  • Shortened Case Name:

    Peacock v Key to Australia Pty Ltd

  • MNC:

    [2024] QCAT 351

  • Court:

    QCAT

  • Judge(s):

    Member Poteri

  • Date:

    19 Aug 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
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] CCT PC 20
1 citation
Jump To
Cite 1 - [2007] CCT PC 20
Goodchild v Ferrantino [2007] QCCTPAMD 2
1 citation
Jump To
Cite 1 - [2007] QCCTPAMD 2

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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