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Chase Commercial Pty Ltd v John Wagstaff Constructions Pty Ltd[2015] QCATA 49

Chase Commercial Pty Ltd v John Wagstaff Constructions Pty Ltd[2015] QCATA 49

CITATION:

Chase Commercial Pty Ltd and ors v John Wagstaff Constructions Pty Ltd [2015] QCATA 49

PARTIES:

Chase Commercial Pty Ltd

Dominic Condon

Rodney Brown

(Applicants)

v

John Wagstaff Constructions Pty Ltd

(Respondent)

APPLICATION NUMBER:

APL330-14

MATTER TYPE:

Appeals

HEARING DATE:

26 February 2015

HEARD AT:

Brisbane

DECISION OF:

Senior Member Stilgoe OAM

Member Paratz

DELIVERED ON:

16 April 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. Leave to appeal granted.
  2. Appeal allowed.
  3. The decision of 7 July 2014, so far as it relates to Chase Commercial Pty Ltd, Dominic Condon and Rodney Brown is set aside.
  4. Application GAR450-13 is returned to the Tribunal for an Oral Hearing as to whether Chase Commercial Pty Ltd, Dominic Condon and Rodney Brown should be named as persons liable to reimburse the claim fund.

CATCHWORDS:

APPEAL – PROCEDURE – HEARING – Where the Tribunal heard a matter on the papers – where no statements of evidence were provided as to matters in contention – where no evidence as to loss was provided, but only contended – where neither party required an oral hearing – where the Applicants had initially requested an oral hearing but then withdrew that request – whether an oral hearing should have been ordered – whether it was appropriate to conduct a hearing on the papers – where a failure to hold an oral hearing was a breach of natural justice and was an error of law

Property Agents and Motor Dealers Act 2000 (Qld) s 488

Briginshaw v Briginshaw (1938) 60 CLR 336

Chandra v Queensland Building and Construction Commission [2014] QCA 335

Lyons v Dreamstarter Pty Ltd [2011] QCATA 142

APPEARANCES:

 

APPLICANT:

Mr D Favell of Counsel

RESPONDENT:

Mr C Hansen of Counsel

REASONS FOR DECISION

Senior Member Stilgoe, OAM

  1. [1]
    John Wagstaff Pty Ltd bought a commercial unit at Hemmant through James Lyons. After settlement, Wagstaff engaged Lyons to manage the property. Lyons misappropriated the rent.
  2. [2]
    Wagstaff lodged a claim against the fund established under the Property Agents and Motor Dealers Act 2000 (Qld) for the maximum amount of $200,000. It named Lyons, his company and Chase Commercial Pty Ltd as the entities responsible for its loss. It named Chase as a responsible person because Lyons had a relationship with Chase.
  3. [3]
    The tribunal dealt with the application on the papers and without an oral hearing. The tribunal named Lyons, his company, Chase and its directors Dominic Condon and Rodney Brown as responsible for Wagstaff’s loss[1].
  4. [4]
    Chase and its directors want to appeal that decision. They say the tribunal should not have made its decision on the papers but should have held an oral hearing. They say that the evidence before the tribunal was not enough to find that Chase was liable for Lyons’ acts. Finally, they say that Wagstaff had not established any loss.

Should the tribunal have held an oral hearing?

  1. [5]
    Section 32(2) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) states that the tribunal may, if appropriate, conduct a proceeding entirely on the papers, without the parties, and without an oral hearing.
  2. [6]
    The learned Member found that Chase was liable for Lyons’ acts because Wagstaff perceived that Lyons was Chase’s servant or agent when managing the commercial unit and that perception was reasonable[2]. Chase says that the tribunal was being asked to make a factual finding in circumstances where Wagstaff did not provide any sworn evidence and where the consequences of the tribunal’s decision required a high standard of proof under Briginshaw v Briginshaw[3].
  3. [7]
    Wagstaff submit that the tribunal’s decision on the papers was appropriate. It submits that the words of s 32(2) must be read in the context of s 28 of the QCAT Act. Section 28 provides that: the procedure is at the discretion of the tribunal; the tribunal must act fairly and according to the substantial merits of the case; it is not bound by the rules of evidence and may inform itself in any way it considers appropriate.
  4. [8]
    Wagstaff submits that the tribunal met its obligations in s 28. It points out that the tribunal offered an oral hearing, which Chase initially accepted. Wagstaff submits that, because Chase later withdrew its request for an oral hearing, the tribunal is able to determine the claim on the papers.
  5. [9]
    In the recent decision of Chandra v Queensland Building and Construction Commission,[4] the Court of Appeal has made it very clear that the parties’ election to a decision on the papers does not, by itself, satisfy the tribunal’s obligation to determine the correct procedure. The Court of Appeal noted the phrase “if appropriate” in s 32(2) and reminded the tribunal that the requirements of a fair hearing are not to be sacrificed for economy, informality and speed[5] .
  6. [10]
    Wagstaff submits that the offer of an oral hearing sets this case apart from Chandra. I do not read the Court of Appeal’s decision that way. There is no time limit on when the tribunal must make its decision about the form of proceeding. Indeed, the tribunal may order a decision on the papers then find, in the detail of submissions, that an oral hearing is required to clarify points or test evidence. The tribunal’s obligation to consider the appropriate procedure persists until it delivers its decision.
  7. [11]
    The learned Member acknowledged that this case was unusual[6]. He noted that the Chief Executive, who administers the fund, submitted Lyons and his company was responsible but did not make the same submission about Chase and its directors[7]. He relied on an implicit allegation that Chase was responsible[8]. He had sworn evidence from Chase but none from Wagstaff. He had submissions about expectations, beliefs and assumptions by Wagstaff but no evidence to support those expectations, beliefs or assumptions. The learned Member was conscious that his findings might have serious civil consequences for Chase[9]. In light of these unusual circumstances, the learned Member should have exercised his discretion to have an oral hearing.

Could the evidence support the tribunal’s findings?

  1. [12]
    The appeal tribunal does not readily overturn findings of fact if there is evidence capable of supporting the findings of the tribunal below[10].
  2. [13]
    The primary question for the learned Member was whether Chase represented that Lyons acted on its behalf so that his actions bound Chase. The burden of proof lay with Wagstaff.
  3. [14]
    The learned Member relied on Wagstaff’s particulars of claim[11] as the evidence to support its claim. The document is not evidence; it is a statement of claim. Wagstaff did not provide any sworn evidence to the tribunal. By contrast, Chase did provide a sworn statement.
  4. [15]
    The learned Member found, correctly, that Wagstaff’s burden of proof was the civil standard but he did not then consider whether that civil standard might attract a higher standard on the Briginshaw principles because of the possibility of disciplinary proceedings arising from his findings.
  5. [16]
    Even on the ordinary civil standard of proof, Wagstaff’s claim has difficulties. Wagstaff states that, in June 2011, it instructed Lyons to manage the property.  Wagstaff’s documentary evidence supports a finding that it appointed Lyons’ company. Two tax invoices to the tenant show Lyons’ company account as the proper account for payment of the rent.
  6. [17]
    But Wagstaff states that, on appointing Lyons, it expected Chase would manage the property. There is no evidence to support that assertion. There are no business cards, emails or letters that show Lyons was acting as Chase’s agent at that time. Wagstaff must provide a reasonable basis for its expectation. It has not.
  7. [18]
    Wagstaff agrees that Chase formally took over management of the tenancy from November 2011. Wagstaff has not properly explained why that step was necessary if it considered that, at all times, Lyons was acting as Chase’s agent.
  8. [19]
    Wagstaff’s submissions might have been enough it there was nothing else before the tribunal. As I have said, the learned Member had sworn evidence from Chase and only submissions from Wagstaff. The evidence was not capable of supporting the learned Member’s findings.

Did Wagstaff provide evidence of its loss?

  1. [20]
    Wagstaff made a claim for loss of rent that Lyons received but misappropriated. Chase submits, correctly, that Wagstaff did not provide a copy of the lease under which rent was payable, it did not provide a statement from the tenant, a ledger from the tenant, or copies of the tenant’s bank statements to show that the money was paid.
  2. [21]
    Wagstaff stated that it made detailed enquiries of the tenant and received evidence of the tenant’s payments. It would have been a simple matter to provide a statement from the tenant verifying the amounts it paid and to whom.
  3. [22]
    If that were the only error by the tribunal, I would not be inclined to grant leave to appeal. However, because the relevant event that allowed a claim against the fund was misappropriation[12], Wagstaff had to show Chase misappropriated the money. If Wagstaff could not show that the tenant paid the money to Lyons or Chase, it is difficult to see how the learned Member could be satisfied that Chase, or either of its directors, was a responsible person.

Conclusion

  1. [23]
    Leave to appeal should be granted and the appeal allowed. The decision of 7 July 2014, to the extent that it relates to Chase and its directors, is set aside and the proceeding is remitted to the tribunal for an oral hearing.

Member Paratz

  1. [24]
    John Wagstaff Pty Ltd (Wagstaff) was the registered proprietor of realty situated at 102 Gosport Street, Hemmant. A tenant leased the property and paid the rent to the managing agent, who diverted the money and did not pay it to Wagstaff.
  2. [25]
    Wagstaff has claimed against the fund established under the Property Agents and Motor Dealers Act 2000 for amounts of money misapplied by the agent to the maximum allowable of $200,000.
  3. [26]
    All dealings by Wagstaff were with an agent, James Lyons. Wagstaff submits that Mr Lyons appeared to be acting as part of an agency called “Chase Commercial”, and that the people and the company involved with Chase Commercial should be liable for his loss, as well as Mr Lyons and Mr Lyon’s company.
  4. [27]
    Wagstaff’s claim named James Lyons, James Lyons Realty Pty Ltd and Chase Commercial Pty Ltd as respondents. The directors of Chase Commercial Pty Ltd were Dominic Joseph Condon and Rodney Edwin Brown. 
  5. [28]
    The learned Member conducted a hearing on the papers, and named Chase Commercial Pty Ltd, Dominic Joseph Condon and Rodney Edwin Brown, together with JLRT Pty Ltd, James Lyons Realty Pty Ltd and James Lyons, as jointly and severally liable to reimburse the claim fund, by paying the sum of $200,000 to the Chief Executive upon payment to Wagstaff from the fund.
  6. [29]
    Chase Commercial Pty Ltd, Dominic Joseph Condon and Rodney Edwin Brown (“the Applicants”) have filed an Application for leave to appeal and appeal against the decision of the Tribunal. The grounds of appeal are as follows:-
    1. (a)
      The Applicants submit that the Tribunal in contravention of section 32(2) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) failed to consider whether it was “appropriate” to determine the matter on the papers.
    2. (b)
      In the alternative, they submit that the Tribunal proceeded to determine the matter on the papers when it was not “appropriate” to do so.
    3. (c)
      They further submit that the Tribunal erred in finding that Chase Commercial Pty Ltd (and therefore, Mr Condon and Mr Brown) were vicariously liable for the acts of James Lyons, when there was insufficient evidence to support such a finding.
    4. (d)
      They also submit that the Tribunal erred in finding that all rental payments had been made by the tenant in circumstances where there was insufficient evidence to support such a finding.
  7. [30]
    Paragraph 4 of the Orders made on 7 July 2014 was as follows:-

Upon payment of the said amount to John Wagstaff Pty Ltd, Chase Commercial Pty Ltd, Dominic Condon, Rodney Brown, JLRT Pty Ltd, James Lyons Realty Pty Ltd, and James Lyons shall be jointly and severally liable to reimburse the claim fund by paying the said sum to the Chief Executive, Department of Justice and Attorney-General.

  1. [31]
    Whilst the Applicants seek to appeal the decision generally, their submissions specifically seek to appeal paragraph 4 of the orders to the extent that they are named as being liable to reimburse the claim fund.
  2. [32]
    The issues in this Appeal are:-
    1. (a)
      Did the Tribunal have sufficient evidence to make its decision?
    2. (b)
      Did the Tribunal make an error of law in deciding the matter on the papers and without an oral hearing?

Did the Tribunal have sufficient evidence to make its decision?

  1. (a)
    Ostensible authority and vicarious liability
  1. [33]
    Wagstaff alleged in its Statement of Claim that “by allowing James Lyons to brand his business as Chase Commercial on signs, business cards, email address and even using the same office but not requiring James to identify that his business was a franchise of Chase Commercial led clients to believe that there was only one business that they were dealing with and that business was Chase Commercial”[13].
  2. [34]
    Wagstaff submits that the effect of these actions by the Applicants was to clothe James Lyons with ostensible authority, and that were vicariously liable for his acts.
  3. [35]
    The Appeal Tribunal will only interfere with findings of fact by the Tribunal at first instance in limited situations. Findings of fact by a Tribunal will not usually be disturbed on appeal if the facts inferred by the Tribunal, upon which the finding is based, are capable of supporting its conclusions, and if there is evidence capable of supporting any inferences underlining it. 
  4. [36]
    An appellate Tribunal may interfere, however, if the conclusion at first instance is ‘contrary to compelling inferences’ in the case.   As the High Court said in Fox v Percy:

In such circumstances, the appellate court is not relieved of its statutory function by the fact the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must “not shrink from giving effect to” its own conclusion.

  1. [37]
    The learned Member noted that on an issue of ostensible authority it is the third party’s reasonable perception of the words or conduct of the putative principal that matters[14]. He found, on the balance of probabilities, that Wagstaff did perceive Lyons, as far as the subject lease was concerned, as the servant or agent of Chase Commercial Pty Ltd, and that the perception was reasonable.
  2. [38]
    The evidence that the learned Member relied on was the “indicia of ostensible agency”[15]. Those indicia were Lyons dealing with Wagstaff on a day to day basis; that the only rent Wagstaff ever received from the tenant was paid out of Chase Commercial Pty Ltd Statutory Trust Account after corresponding deposits by Lyons; and that there was no evidence that Chase Commercial Pty Ltd ever told the Lyons company to pay the rent directly to Wagstaff as it was the agent and did not need to involve Chase Commercial Pty Ltd.
  3. [39]
    Wagstaff made assertions as to the contents of business card and signs identifying Mr Lyons with Chase Commercial Pty Ltd, but no photos were put in evidence showing Mr Lyons’ name alongside that of Chase Commercial Pty Ltd on any business cards or signs.
  4. [40]
    Definite evidence as to the clothing of Lyons with ostensible authority by the Applicants was lacking, and it was unsafe for the learned Member to form a decided opinion as to ostensible authority in the absence of such evidence.
  5. [41]
    Wagstaff submits that there was more than sufficient evidence before the Tribunal to find that Chase Commercial Pty Ltd was vicariously liable for the acts of James Lyon; and to determine that funds had been misappropriated.
  6. [42]
    The finding as to vicarious liability is related to the finding as to ostensible authority. There being insufficient evidence in relation to the finding of ostensible authority, it follows that this finding is also unsafe.
  1. (b)
    The rental payments
  1. [43]
    The Applicants submit that there was insufficient evidence to support a finding that all rental payments had been made by the tenant. They submit that the only material in support of a finding that all of the rental payments had been made by the tenant was an assertion contained in Wagstaff’s Statement of Claim and summarised in an attachment to it. They submit that this was not evidence, and that it should not have been relied upon as a basis for finding that the tenant had made the requisite payments[16].
  2. [44]
    Whilst there was no direct evidence presented as to the question of the payment of rent, that question was not in serious contention until this application. Neither the Applicants or the Chief Executive pointed to this question as a matter in genuine dispute.
  3. [45]
    In the absence of genuine challenge to the quantum of the claim, by the Applicants or by the Chief Executive, the learned Member was entitled to proceed on the basis that it was not in contention that Wagstaff had suffered loss as alleged.

Did the Tribunal make an error in deciding the matter on the papers and without an oral hearing?

  1. [46]
    Directions were given in the original Application[17] that if any party wanted an oral hearing, they must file in the Tribunal and give to each other their written request for an oral hearing by 4pm on 10 February 2014.
  2. [47]
    On 10 February 2014, the Applicants requested an oral hearing by way of a letter to the Tribunal from their solicitors. The solicitors for the Applicants then wrote to the Tribunal on 14 March 2014 withdrawing the request for an oral hearing.
  3. [48]
    The learned Member noted these events as a footnote to the preamble of his reasons, however he did not give specific consideration as to whether it was appropriate to conduct the hearing on the papers.
  4. [49]
    The learned Member then proceeded to decide the application “on the papers” in accordance with s 32(2) of the QCAT Act. That section provides as follows:-

32 Proceeding by remote conferencing or on the papers

  1. (2)
    The Tribunal may, if appropriate, conduct all or a part of a proceeding entirely on the basis of documents, without the parties, their representatives or witnesses appearing at a hearing.
  1. [50]
    Wagstaff refers to the advice by the solicitor the Applicants that an oral hearing was not being pursued and submit that it was[18]:-

Inherent in the discontinuance of the application by the Applicant is that the applicant did not consider an oral hearing necessary and that the issues were sufficiently identified so that a decision on the papers without the need for an oral hearing.

  1. [51]
    Wagstaff refers to the proposition of the Applicants that it was incumbent on the Tribunal to first think whether it was appropriate to proceed without an oral hearing and then secondly to direct that the matter be heard by way of oral hearing that[19]:-

If this statement is to be correct then the Tribunal is in every case, and whether or not a request for an oral hearing has been made and lengthy submissions received, tasked with weighing the evidence and deciding whether or not the Tribunal itself must go in search of further evidence to be received orally. Such a proposition is not consistent with the requirements of justice, the intended informality and lack of technicality in the manner the Tribunal operates nor the discretion the Tribunal has in how it conducts matters.

  1. [52]
    Wagstaff further submits that the desire of the Applicants for a rehearing is that a rehearing will afford them the opportunity to adduce evidence orally that they failed to provide in their original submissions.
  2. [53]
    The Court of Appeal recently considered the principles to be applied by the Tribunal in hearing matters on the papers in Chandra v Queensland Building and Construction Commission[20]. That decision was delivered on 16 December 2014 - about 6 months after the decision in this matter, and about four months after this Application for leave to appeal or appeal was filed.
  3. [54]
    Peter Lyons J noted as to the need for an oral hearing that:-

[60] Section 32(2) of the QCAT Act authorised the appeal Tribunal to conduct the proceeding without an oral hearing “if appropriate”. The helpful decision of the Deputy President of the Tribunal, sitting as the appeal Tribunal in Lyons v Dreamstarter Pty Ltd[21], points to the need for the appeal Tribunal to accord natural justice, notwithstanding s 32. That is consistent with provisions of the QCAT Act, referred to previously.

[61] Often it will be appropriate to determine applications, such as those which were being decided by the Senior Member, without an oral hearing. However, in a particular case it may not be appropriate to do so, or continue to do so. It will be (or become) inappropriate, if that were to deny a party a fair opportunity to be heard.

  1. [55]
    His Honour made comments that are directly relevant to the propositions that were submitted by the Respondents in this matter as to the role of the Tribunal, saying that:-

[69] One of the objects of the QCAT Act is to have the Tribunal deal with matters in a way that is, amongst other things, “economical, informal and quick”. In general the determination of applications such as those before the Senior Member, without an oral hearing is, in principle, to be encouraged. However the objects of the Act also include having the Tribunal deal with matters in a way that is “fair (and) just”. To achieve the objects of the Act, the Tribunal is required to ensure that proceedings are conducted “in an informal way that minimises costs to the parties, and is as quick as is consistent with achieving justice”. In light of these provisions, and the provisions of s 28, the requirements of a fair hearing are not to be sacrificed to achieve economy, informality and speed.

  1. [56]
    His Honour concluded that a fair hearing could have been achieved in that case by an oral hearing. That conclusion was supported by North J who commented:-

[94] I agree with Peter Lyons J that the Senior Member might have avoided the pitfall of failing to accord the applicant natural justice if she had conducted an oral hearing prior to determining the application before her. The circumstance that the Member had reservations whether the applicant had satisfactorily explained delay and thereby whether a discretion should be exercised to order or allow an extension of time required, in order to afford the applicant natural justice, that the senior Member draw her reservations to the attention of the applicant and his advisors before determining the application adversely to the applicant. Thus the senior Member should have afforded the applicant the opportunity to make further or more detailed submissions and, if available, submit further evidence.

  1. [57]
    The Applicants refer to the comments of Dixon J in Briginshaw v Briginshaw that findings should not be based on the basis of “inexact proofs, indefinite testimony, or indirect references”[22].
  2. [58]
    Briginshaw was a decision of the High Court of Australia. Dixon J made the following comments as to the standard required in a matter that is not a criminal case, but goes beyond a civil case in its ramifications:-

The truth is that, when the law requires the proof of any fact, the Tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists which may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the Tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the Tribunal.

  1. [59]
    The Briginshaw standard can be described as reasonable satisfaction having regard to the nature and consequence of the facts to be proved.
  2. [60]
    The Applicants submit that the claim was one that could lead to serious consequences. The learned Member acknowledged this when he said "I am conscious that these findings may have serious civil consequences for (Chase Commercial Pty Ltd)”[23].
  3. [61]
    Where there are serious potential consequences, as there were in this matter, as contended by the Applicants and acknowledged by the learned Member, then the Tribunal needs to exercise due caution and be reasonably satisfied as to whether the issue has been proved.
  4. [62]
    Having regard to the seriousness of the consequences, the learned Member should have exercised greater caution in proceeding without an oral hearing, and in being satisfied as to whether the allegations were made out to the applicable standard.
  5. [63]
    It was therefore not appropriate to hear this matter without an oral hearing, considering the principles discussed in Chandra and Briginshaw, and having regard to the seriousness of the matter, the absence of sworn evidence, and the insufficiency of the evidence.
  6. [64]
    The submissions made on behalf of Wagstaff as to the burden that is placed on the Tribunal in considering whether an oral hearing should be held, as being not consistent with the way in which the Tribunal operates, must be considered subject to the comments of the Court of Appeal in Chandra.
  7. [65]
    The effect of Chandra is that if the Tribunal proceeds to hear a matter on the papers where that is not appropriate, that a breach of the  principles of natural justice arises, and an error of law is made.
  8. [66]
    In this matter, where central issues were in contention, and where there was not sworn or sufficient evidence, it was inappropriate to proceed to hear the matter on the papers, and an oral hearing should have been required. The Tribunal made an error of law by proceeding to hear the matter on the papers.

Appropriate orders

  1. [67]
    The Applicants have raised an issue as to the harm that could be caused to them by protracted proceedings:-

The Respondent first filed its complaint to the Office of Fair Trading in June 2013. The total of its loss is $634,822.47 of which it has been awarded the statutory damages limit of $200,000. The quantum of loss is significant. The respondent cannot receive the amount it has been awarded until an Appeal is concluded. The delay to receipt of the damages awarded is a financial strain on the respondent. The Tribunal in Contrast Constructions Pty Ltd v Bartlett[24] made the point that “Finality in litigation is highly desirable because any further action beyond the hearing can be costly, and unnecessarily burdensome on the parties.” If leave to appeal is granted further unnecessary cost will be incurred, particularly in view of the Applicant’s desire to be represented at an oral hearing. The cost of preparing for a rehearing together with further delay to being eligible to receive the already awarded amount is an unnecessary burden of the type referred to in Contrast Constructions Pty Ltd v Bartlett.

  1. [68]
    Order 3 of the Orders made on 7 July 2014 provides that “In the event of an appeal that amount shall not be paid until the appeal is determined.” The effect of this order, which is a standard order, is that the Chief Executive is unable to pay the claim from the fund under the determination of this Appeal.
  2. [69]
    The matters in consideration in this Appeal relate only to the liability of the respondents for the claimants financial loss. The entitlement of the respondents to be paid $200,000 from the claim fund is questioned in this application, but is not seriously in dispute.
  3. [70]
    I consider that the submission of Wagstaff as to hardship being suffered by it by not being paid from the claim fund, is well made, and should be considered by the Chief Executive as to whether a payment can now be made.
  4. [71]
    Section 488(2)  of the Act provides that the Tribunal may allow a claim against the fund wholly or partly only if satisfied, on the balance of probabilities that (a) an event mentioned in section 470(1) happened; and (b) the claimant suffered financial loss because of the happening of the event.
  5. [72]
    Section 488(3)(b) and (c) of the Act separately provide that if the Tribunal allows the claim, wholly or partly, the Tribunal must decide the amount of the claimant’s financial loss, and name the person who is liable for the claimant’s financial loss.
  6. [73]
    Section 489(1) of the Act provides that if a claim is allowed, the chief executive must authorise payment from the fund in the amount decided by the Tribunal. Section 489 (2) (a)(ii) provides that such a payment must not be made if an appeal is made, until the appeal is finally decided.
  7. [74]
    As its entitlement to be paid from the claim fund is not in genuine dispute, the fairest result is that Wagstaff be paid out from the fund without further delay. In order to enable this to occur, it is necessary that the Appeal against the Orders that provide for payment from the fund is finally decided.
  8. [75]
    The naming of a person who is liable for the claimant’s financial loss is a distinct step to the allowing of the claim. Section 488(1) provides for the primary role of the Tribunal to allow the claim, wholly or partly, or to reject the claim.
  9. [76]
    The question of naming a person who is liable for the claimant’s financial loss only arises if the Tribunal allows the claim.
  10. [77]
    The primary role of the Tribunal can be finally decided in determining whether to allow the claim, notwithstanding that the subsidiary issue as to who should be named as liable for the claimants financial loss is still being decided.
  11. [78]
    I have found an error of law as to the Order as to the liability of the Applicants. The appeal in that respect must be allowed, but no alteration should be otherwise made to the Order that the claim be allowed.
  12. [79]
    In my view, the issues as to allowing the claim will then have been finally decided, and the Chief Executive, can then proceed to pay Wagstaff the amount of $200,000 from the claim fund, notwithstanding that the issues as to the persons liable for the financial loss are still to be finally decided.
  13. [80]
    That part of the Orders made on 7 July 2014 naming Chase Commercial Pty Ltd, Dominic Joseph Condon and Rodney Edwin Brown as persons liable for the claimants financial loss should be set aside, and that issue be returned to the Tribunal for the conduct of an oral hearing on that question.
  14. [81]
    In all other respects the Orders made on 7 July 2014 are finally decided, and in my view, the Chief Executive may authorise payment from the fund in the amount of $200,000 decided by the Tribunal, pursuant to section 489 of the Act, and I recommend that it pursue that course.
  15. [82]
    The Application for Leave to Appeal is allowed. Those parts of Order 4 of the Orders made by the Tribunal on 7 July 2014 that refer to Chase Commercial Pty Ltd, Dominic Condon and Rodney Brown are set aside, but Order 4 is not otherwise affected. Application GAR450-13 is returned to the Tribunal for an Oral Hearing as to whether Chase Commercial Pty Ltd, Dominic Condon and Rodney Brown, should be named as persons liable to reimburse the claim fund.

Footnotes

[1] John Wagstaff Constructions Pty Ltd v Chase Commercial Pty Ltd & Ors [2014] QCAT 324 (Reasons for decision).

[2]  Supra at [26].

[3]  (1938) 60 CLR 336 at 362.

[4]  [2014] QCA 335.

[5]  Per Peter Lyons J at [69].

[6]  Reasons for decision at [9].

[7]  At [10].

[8]  At [12].

[9]  At [27].

[10] Dearman v Dearman (1908) 7 CLR 549 at 561.

[11]  At [11].

[12] Property Agents and Motor Dealers Act 2000 (Qld) s 471(1).

[13]  Statement of Claim PAMDA Form 50 Part 4 p 5.

[14]  Reasons 7 July 2014 para 26.

[15]  Reasons 7 July 2014 para 25.

[16]  Applicants submissions 29 September 2014 para 47.

[17]  Direction 4 in GAR450-13 made on 13 January 2014.

[18]  Respondents submissions 26 February 2015 para 2.10.

[19]  Respondents submissions 26 February 2015 para 2.15.

[20]  [2014] QCA 335.

[21]  [2011] QCATA 142.

[22]  (1938) 60 CLR 336 at 362.

[23]  Reasons 7 July 2014 para 27.

[24]  [2014] QCATA 262 at para 22.

Close

Editorial Notes

  • Published Case Name:

    Chase Commercial Pty Ltd, Dominic Condon and Rodney Brown v John Wagstaff Constructions Pty Ltd

  • Shortened Case Name:

    Chase Commercial Pty Ltd v John Wagstaff Constructions Pty Ltd

  • MNC:

    [2015] QCATA 49

  • Court:

    QCATA

  • Judge(s):

    Senior Member Stilgoe

  • Date:

    26 Feb 2015

Appeal Status

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