Yang v Wellcamp Properties Pty Ltd
[2018] QCATA 161
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- Unreported Judgment
- Yang v Wellcamp Properties Pty Ltd[2018] QCATA 161
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Yang v Wellcamp Properties Pty Ltd[2018] QCATA 161
Yang v Wellcamp Properties Pty Ltd[2018] QCATA 161
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Yang & Anor v Wellcamp Properties Pty Ltd [2018] QCATA 161 |
PARTIES: | LI YANG and EVERTOP DEVELOPMENTS PTY LTD (applicants) |
| v |
| WELLCAMP PROPERTIES PTY LTD T/AS PRIMELAND REAL ESTATE (respondent) |
APPLICATION NO/S: | APL399-17 |
ORIGINATING | MCDO1060-17 |
MATTER TYPE: | Appeals |
DELIVERED ON: | 30 October 2018 |
HEARING DATE: | 7 September 2018 |
HEARD AT: | Brisbane |
DECISION OF: | Member Roney QC |
ORDERS: |
|
CATCHWORDS: | APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – FROM INTERLOCUTORY DECISIONS – LEAVE TO APPEAL – minor civil dispute – where the Applicants claimed the Respondent agent improperly dealt with their moneys held as stakeholder under a land sale contract – where the Applicants brought proceedings in the Tribunal for refund of their deposit – where the Tribunal decided the claim was for damages and dismissed the claim on the basis it was not a minor civil dispute – where the Applicants sought leave to appeal that decision – whether the Applicants’ claim was for a debt or liquidated demand – whether leave to appeal should be granted Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 11, s 12, s 13, s 82 Property Agents and Motor Dealers Act 2000 (Qld), s 387, s 390 Alexander v Ajax Insurance Co Ltd [1956] VLR 436 Davy v Ryter Planning Pty Ltd [2010] QCATA 96 Early Property Group Pty Ltd t/a Early Group Valuers v Cavallaro [2010] QCATA 65 McDonald v Kenmore Podiatry Pty Ltd [2012] QCAT 126 Morales v Murray Lyons Solicitors (a firm) [2010] QCATA 87 Ogdens Ltd v Weinberg (1906) 95 LT 567 Rothenberger Australia Pty Ltd v Poulsen (2003) 58 NSWLR 288 Solahart Mackay & Ors v Summers [2013] QCATA 113 Solar Energy Australia Group Pty Ltd v Bannink [2013] QCATA 100 Spain v Union Steam Ship Co of New Zealand Ltd (1923) 32 CLR 138
|
APPEARANCES |
|
Applicants: | Li Yang: Self-represented Evertop Developments Pty Ltd: Z Lin, Director |
Respondent: | L Gray, Director |
REASONS FOR DECISION
The contract of sale of 7 April 2008....................................................................................................................................4
The related proceedings in QCAT.......................................................................................................................................5
Factual issues.........................................................................................................................................................................6
The present claim..................................................................................................................................................................7
The Adjudicator’s findings...................................................................................................................................................9
Analysis and disposition.....................................................................................................................................................11
- [1]This application is an appeal for a determination made in the minor civil disputes jurisdiction in which an Adjudicator determined, adversely to the interests of the Applicants, that their claims were beyond the jurisdiction of this Tribunal.
- [2]At the heart of the issue is whether a claim, poorly articulated, and in some respects poorly or even misleadingly described by the Applicants, both here and before the Adjudicator, falls within the definition of minor civil dispute so as to bring it within the jurisdiction of the Tribunal identified by s 11 and s 12 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘the QCAT Act’). The submissions by both parties to this appeal failed to adequately identify and focus on the issues of fact and law that fell for determination. Those submissions were of limited assistance to the Appeal Tribunal. Leave is required to bring such an appeal. In this case, because it solely concerns a question of law, namely whether the Tribunal in fact had jurisdiction to determine the application, I would grant the necessary leave.
- [3]The application under appeal is a claim by the Applicants, who were purchasers under a contract of sale for the purpose of a residential house and land at 347 Ebenezer Road, Ebenezer, for the repayment to them of a deposit paid under the contract.
- [4]The vendors of the property are not a party to this proceeding, however the Respondent was the seller’s agent, and stakeholder appointed under the contract of sale and was given the Applicants’ $10,000 deposit which was to be paid under the contract into its trust account pending the conclusion of the sale transaction.
The contract of sale of 7 April 2008
- [5]The terms of the contract of sale dated 7 April 2008 were that the Applicants agreed to purchase the property from the vendors known as Riches and Summerville (‘the vendors’) for the sum of $800,000 with a deposit of $10,000 to be paid under the contract. The contract was not subject to any condition that permitted or required the Applicants to lease back the property to the vendors. There is no documentary evidence in his appeal which shows how the dispute between those parties under the contract arose, however I was informed during argument that the vendors either made overtures to suggest that they should be granted a leaseback of the property upon settlement, or insisted upon that occurring as a condition of settlement. According to those assertions made from the Bar table, the vendors failed to provide vacant possession on the allocated date for completion. According to the terms of the contract of sale, that was to occur 60 days from the contract date, which would have put it as being required sometime in early June 2008.
- [6]The contract was in the standard REIQ contract in use at that time. Clause 5.5 of the Standard Conditions required the seller to provide vacant possession on settlement. The Respondent agent was identified as the ‘agent’ under the contract. The deposit was supposed to be paid on the signing of the contract, however the evidence suggests that it was in fact sometime before the contract was countersigned, although the trust account for the Respondent shows it as having been received two days after the contract was signed, namely on 9 April 2008. The Respondent was also described in the contract as the deposit holder. By clause 2 of the Standard Conditions the buyer was required to pay that deposit to the deposit holder who was required to ‘hold the deposit until a party becomes entitled to it’. Clause 2.3 also required the deposit holder to invest the deposit in the names of the parties. Clause 2.4 provided that if the contract was terminated without fault by the buyer, to the buyer, and if the contract was terminated owing to the buyer’s default, the seller.
- [7]It is common ground that on 11 September 2012 the Respondent agent paid the deposit monies out of its trust account. There is a factual dispute about whether it was paid to the Respondent itself by way of commission or pursuant to some other entitlement, or (as the Applicants would assert, although without any supporting evidence other than an alleged admission by Mr Gray, the principal of the Respondent, that he took the monies on account of his commission), that the monies were not paid over to the vendors, but were paid to the Respondent.
The related proceedings in QCAT
- [8]In a related proceeding in this Tribunal, in proceeding GAR151-17, the present Applicants commenced a proceeding against the present Respondent, as well as the Chief Executive of the Department of Justice and Attorney-General. That involved a claim made on 6 May 2017 in which the present Applicants lodged the claim against the claim fund under s 82 of the Agents Financial Administration Act 2014 (Qld) arising out of the alleged transfer of the deposit from the Respondent’s trust account. The property was subsequently sold to another purchaser on 21 October 2015. The Applicants contend that that occurred in breach of a Supreme Court order, to which the parties consented, restraining the vendors from dealing with the property. One of the grounds upon which they are bringing their application is that this act in contravention of a Supreme Court order founded some kind of legal claim to these deposits. It is difficult to see how that could be so, and the basis upon which it could be so was not articulated in any sensible fashion.
- [9]In the related proceeding, the Chief Executive ruled that the application for the claim against the fund was invalid, having been made out of time. The Applicant sought a review of the Chief Executive’s decision. In an application on 8 September 2017, in that related proceeding, the Applicants applied for orders requiring the Chief Executive to produce certain documents which went to the question of whether the trust account monies were paid to the agent, or paid to the vendors. The learned member dismissed the application on the basis that since the application was founded on the desire to know who banked the cheque for $10,000 from the Respondent’s trust account, that was not an issue which was relevant to determining whether the Applicants were entitled to the deposits and thus whether they had suffered a financial loss for the purposes of s 82 of the QCAT Act. It was held that the identity of the payee of the cheque as opposed to the date of the disbursement was not relevant to the calculation of the applicable time limit.
- [10]Amongst the evidence tendered before this Tribunal on the appeal, there was evidence that on 13 April 2018, the Applicants here and in the review proceeding filed a notice of withdrawal of their application.
- [11]I recite what is mentioned above on the basis that it could well be relevant to whether there is any legitimacy to the Applicants’ present claim to determine whether the Respondent was the recipient of the relevant trust monies, although it may not matter, if the monies were paid out by a trustee who held those monies on trust in contravention of some legal entitlement on the part of the Applicants, whether it was paid to the Respondent itself, or to the vendors. I express no concluded view about this issue. Nor was it argued before me in any coherent way.
Factual issues
- [12]Clearly there is an unresolved question of fact which arises at least on the material raised in the appeal as to what were the circumstances which led to the deposit monies being paid out of the trust account. The Respondent contends that it received letters respectively dated 19 June 2008 and 1 July 2008 by which the solicitors for the vendors asserted that the contract had been terminated by their client due to the buyer’s default and that the deposit had been forfeited and could be paid to the vendors. It is said that these letters were relied upon as authority to transfer the monies out four years later in 2012. These contentions raise serious concerns because:
- (a)They provide no real explanation for why the transfer did not occur until a date four years later; and
- (b)They are based upon the contention that the agent received no other notice in those four years as to how those monies should be dealt with; and
- (c)They are based upon the contention that there was no contact of any kind for or on behalf of the Applicants to the Respondent in those four years in relation to what should happen to those monies.
- (a)
- [13]The last issue is significant because it is common ground that on 8 August 2008, little more than a month after the purported notice to the agent that the deposit was forfeited, the present Applicants commenced Supreme Court proceedings for specific performance of the contract.
- [14]What occurred next is also problematic, because I was informed by the Applicants when I asked what had happened to those proceedings that their solicitors effectively did not keep them up to date in relation to what happened to it. What is known is that the Applicants clearly caveated the property, and on an application to remove the caveat which came before the Supreme Court on 19 November 2009, the Court made consent orders restraining the vendors from selling the property to anyone.
- [15]By the Order of Philippides J on 19 November 2009, it was ordered:
- The First and Second Defendants and each of them, until trial or earlier order, be restrained, by themselves, their servants or agents from selling, transferring, disposing or otherwise howsoever dealing with the Properties situated at 347 Ebenezer Road, Ebenezer in the State of Queensland more particularly described as:
- (a)Lot 1 on RP24572, County of Churchill, Parish of Jeebropilly, Title Reference 11539116; and
- (b)Lot 2 on RP24572, County of Churchill, Parish of Jeebropilly, Title Reference 15625013;
(collectively the “Properties”) save and except for any dealing for the purpose of applying for and obtaining finance to be secured by way of mortgage registered on and over the Properties.
- The Caveat No. 711837480 lodged on 4 August 2008 be removed.
- The costs of and incidental to this application be reserved.
- [16]Despite having been told by the Applicants that their solicitors did not keep them informed about the progress of the proceeding, the Supreme Court file shows that not only were pleadings exchanged in 2008 as well as a Counterclaim by the vendors, but there was some other application brought before the Court in 2010 for which affidavits were filed, including one by Mr Lin, the Director of the second Applicant. The subjective evidence directly contradicts the assertions made from the Bar table in this appeal.
- [17]Ultimately, perhaps the only relevance of what occurred in that proceeding is whether the existence of that proceeding was brought to the attention of the Respondent here. The Respondent contends that it had no notice of the proceeding, and that the monies simply languished in its trust account until finally it had to decide what to do with them and paid them to the vendors in 2012. The Supreme Court file shows that there was a Notice of Change of Solicitors filed on behalf of these Applicants on 12 September 2012, precisely one day after the Respondent purported to release the deposit.
The present claim
- [18]In the original application dated 26 May 2017, the ‘Details of Claim’ stated:
We signed a contract to purchase the property at 347 Ebenezer Rd., Ebenezer (also known as 5 Turnbull Rd., Ebenezer) in 2008 through real estate agency Primeland Real Estate at Browns Plains, and we have paid a deposit of $10,000 to Primeland Real Estate Trust Account as per contract, attached the agency trust receipt as Annex “A”;
The sellers failed to vacate the property on settlement day and we filed a case to Supreme Court against the sellers thereafter. For specific performance of the contract, Supreme Court has issued a Consent Order in 2009 to restrain the Sellers from selling, transferring, disposing or other howsoever dealing with the said property, attached the Court’s Consent Order as Annex “B”; However the Seller was in contempt of court, they have sold the property to a new purchaser in October 2015, even though the legal proceeding has not been finalized yet, attached the property report of new owner as Annex “C”; We are accepting the fact that the property has been sold, we are willing to give up our right to continue suing the Sellers, we have then requested the agency to refund us the deposit, but the agency refused to do the same, attached email letters that we have sent to the agency and its Principal Les Gray ...
According to the hand written ledge provided recently by the agency to Fair Trading (we have filed a complaint against this agency for its illegal operation of its trust account), our deposit of $10,000 was illegally released by the agency on 11/09/2012 without our authorization or a Court Order, attached the hand written ledger of Primeland Real Estate as Annex “E”, however we have reasonable doubt that it is a fabricated ledger, because the year of 2012 is a computer era and it should be a computer generated ledger, besides its Principal Les Gray has advised myself (Li) over our first phone conversation that the money was released as their sales commission that they were entitled to as per his claim. This can be verified by a trust account bank statement (from the bank) whether Primeland is committing fraud by providing a fabricated ledger or not.
We are now praying Court to issue an order to make the agency to refund us the deposit that they have illegally released.
- [19]The matter came on for hearing before Adjudicator Bertelsen in this Tribunal on 21 November 2017. The hearing took less than 20 minutes, having commenced at 2.25pm and concluding at 2.44pm. This appeal took more than two hours to argue.
- [20]Ms Yang appeared for the Applicants. Mr Gray appeared for the Respondent. As was evident in the course of argument before me, English is a second language for Ms Yang. It was also the second language for Mr Lin, although he did not appear on behalf of the Second Respondent on the hearing before the Adjudicator. It is obvious that neither of them has any legal training or any real legal understanding. She explained her claim to the Adjudicator as a claim in which she sought ‘damages because the agency released – illegally released the deposit without our consent while the ... legal proceedings still undergoing’.
- [21]The Adjudicator immediately seized upon the description of it as a claim for damages, saying he could not entertain a claim for damages but could entertain a claim for debt. Ms Yang then responded that it was a ‘debt’. The Adjudicator contended that he could entertain a claim between two traders but could not entertain a claim for damages pursuant to a contract. He posed the question to Ms Yang ‘But it’s obviously in the nature of damages, isn’t it? You want that money returned to you’. She said it was.
- [22]The Adjudicator then stated that a refund is not a debt and that it could never be a debt. No authority for that proposition was referenced.
- [23]Ms Yang then resumed her assertion that it was a claim for damages because the Respondent should not have released the deposit but did release it into its own pocket. Later, the Adjudicator posed the question which he said he needed to consider was ‘whether it was a debt’, to which he responded that it was not, it was not a consumer claim but was a claim for damages. He concluded that the Tribunal had no jurisdiction to deal with breaches of a Supreme Court order.
- [24]Ms Yang then changed tack and tried to argue that it was a consumer dispute. That argument was also raised before me. An attempt was made to contend it was a consumer and trader dispute within the terms of s 12(4)(b) of the QCAT Act, namely a claim arising out of a contract between a consumer and a trader. The Applicants’ assertion that a real estate agent holding deposit monies on trust as a stakeholder is a trader is entirely misconceived. Moreover, they could not point to any contract between themselves and the agent which brought it within the language of s 12(4)(b). A trader is generally a person who in trade or commerce has a business that supplies goods or provides services. A trader is not a person who supplies goods or provides services if that person’s work is not ordinarily regarded as being within trade or commerce. Examples of persons that have been previously been determined do not meet the definition of traders including solicitors, podiatrists, town planning consultants, and valuers.[1]
- [25]As the original application set out above makes clear, what is being sought is a refund of money, in other words a payment of a sum of money in a specific sum of $10,000 which was paid out of a trust account in circumstances in which those monies were properly those of the Applicants. No claim was articulated there for damages. Nor is it easy to see what specific cause of action would enliven a claim for damages in those circumstances. Conceptually, it might be a claim for damages for the tort of conversion, or it might be a breach of statutory duty. It is difficult to see how it could be a claim for breach of contract. Even before me in argument, the Applicants continued to insist that their claim was one inter alia for damages, even at one point describing them as liquidated damages, although they clearly meant that it was a liquidated claim because I had specifically asked them to address the issue of whether the claim was to recover a debt or liquidated demand.
The Adjudicator’s findings
- [26]The transcript identifies that the Adjudicator made his findings as follows:
ADJUDICATOR BERTELSEN: With respect to this application, I’ll give my decision now. It’s an application whereby the applicant seeks, it appears, the sum of $10,000, which was a deposit paid back in 2009 to the respondent, Primeland Real Estate. It’s in respect of – with respect to the purchase of a property at Ebenezer. It is a freehold property. Settlement did not proceed. Allegations about who was at fault for that happening. It resulted, it appears, in a Supreme Court action. Orders were made by Justice Philippides on the 19th of November 2009. And that is – the first of those orders was to the effect that applicants in this application before the tribunal – well, they were the plaintiffs in that action in the Supreme Court. And the defendants were the sellers. The defendant sellers, and each of them, until the trial or earlier order – and I’m reading from the Supreme Court orders now:
...be restrained by themselves, their servants or agents from selling, transferring, disposing or otherwise dealing with the property situated at 347 Ebenezer Road, Ebenezer –
and it gives a description of the property and sets out directions for the continuity of that Supreme Court action. What I’m asked or what I’m being asked to do today is to say that there’s been a breach of that Supreme Court order, and that therefore I have jurisdiction to make an order for the return of 2000 – rather, $10,000, which apparently has since been paid out by the agent from the agent’s trust account. That payment in itself – it appears to be the subject of a review application presently before the tribunal, 151 of 2017, with directions having been made on the 20th of October and the 16th of November. That, I take it, revolves around the legitimacy of the payment of $10,000 from the respondent Primeland Real Estate’s trust account.
Mr Gray appears for the respondent, Primeland. He says that, well, quite apart from further orders closing off, shall I say, the Supreme Court action back in 2010 or ’11 – that his actions are legitimate. Ms Li Yang says, well, it’s a claim for damages. Well, no, it’s not a claim for damages. It can’t be a claim for damages – or rather, I should say I agree; it is a claim for damages. It can’t be a debt, as a refund of moneys has been construed previously as not being a debt. So it can’t be a debt.
MS YANG: Your Honour, can you explain - - -
ADJUDICATOR BERTELSEN: Is it a claim for damages? Yes, it is. And quite apart from any other consideration, the small claims tribunal – or the minor civil disputes, I should say: the minor civil disputes jurisdiction cannot entertain applications for – or that involve claims for damages. Is it a consumer claim? Being the subject of a Supreme Court action and a contract, it is not of the nature that – of a claim, a consumer claim that comes under the ACL, that is to say, it is not for goods or services. Rather, this involves the transfer of freehold property and the refund or repayment of a deposit paid in respect of the purchase of freehold property. That is specifically governed by the Property Law Act and various other legislation and requires, apart from any other consideration – (4): such applications – such claims to be made in the Supreme or District Court. And that’s obviously why the initial claim was made in the Supreme Court back in 2009, which confirms to me that I simply have no jurisdiction to be entertaining a claim that emanates from a freehold dealing and which has already been the subject of a Supreme Court action.
MS YANG: Your Honour - - -
ADJUDICATOR BERTELSEN: So I’m not going to entertain the application. I’m going to dismiss the application.
MS YANG: Your Honour, can I say something. You said the – that the previous Supreme Court – that was – we – between the [indistinct] buyer and the seller. We are still arguing [indistinct] we are entitled to this property settlement.
ADJUDICATOR BERTELSEN: Yes. Well, I’ve made by decision. Thank you.
MR GRAY: Thank you.
MS YANG: Can I ask a favour. I just don’t understand. The - - -
ADJUDICATOR BERTELSEN: Well, get a CD of the decision, if you like.
MS YANG: Yeah. Yep. The Fair Trading said I need to come to this civil small claim tribunal to get my money back, because that – to them, it’s a time – out of time. So – but now you said I’m not – I can’t get my money back. So I don’t understand.
ADJUDICATOR BERTELSEN: No. I’ve simply said application dismissed for lack of jurisdiction. All right? I’ve got no jurisdiction to hear this claim. You can prosecute your claim elsewhere. But I’ve got no jurisdiction.
MS YANG: Such as to where? Sorry.
ADJUDICATOR BERTELSEN: Well, you’d either have to go back through the Supreme Court, from whence you came in the first place - - -
MS YANG: But the Supreme Court - - -
ADJUDICATOR BERTELSEN: That may be an avenue [indistinct] have to get advice on that. But I can’t sit here and talk to you. I’ve given the decision. I’ve dismissed it simply for lack of jurisdiction. You still have the claim. And you can still make a claim. But you’ve got to make it elsewhere. All right? That’s the upshot of it.
MS YANG: Thank you.
- [27]The grounds of appeal in the decision of 21 November 2017 were stated to be:
Adjudicator Bertelsen has made wrong judgement, because of the below reasons:
- The Respondent has breached section 26 and 28 of the Agents Financial Administration Act 2014, illegally released the disputed deposit to his own pocket or to sellers without our (Buyers) authorization or a Court Order. The section says the disputed deposit in a trust account should be not released until confirmation of receipt from both parties, the seller and the buyers, or a court order.
- Adjudicator Bertelsen ignored our repeating statement of Respondent’s above breach, he said “the agent is seller’s agent”, does it mean the seller agent allow to breach the Act?
- Our application is to seek the agent to pay back our deposit (our money). It is within QCAT jurisdiction, Adjudicator Bertelsen has wrongly mixed it up with the supreme court case and order between us (the buyers) and the sellers, which is merely to prove the applicant (us) are entitled to the deposit, because the Sellers has contempt of court, they ignored the court order, and sold the property.
- The respondent is a real estate agent, it is a licensed trader, it is within jurisdiction of QCAT.
Analysis and disposition
- [28]Section 11 of the QCAT Act states:
11 Jurisdiction for minor civil disputes
The tribunal has jurisdiction to hear and decide a minor civil dispute.
- [29]Section 12 of the QCAT Act states:
12 When jurisdiction for minor civil dispute exercised
- The tribunal may exercise its jurisdiction for a minor civil dispute if a relevant person has, under this Act, applied to the tribunal to deal with the dispute.
- A relevant person may, as provided for in subsection (3), agree to limit the person’s claim to the prescribed amount in order to bring the claim within the tribunal’s jurisdiction for a minor civil dispute.
- A relevant person limits the person’s claim to the prescribed amount by applying to the tribunal to deal with the claim as a minor civil dispute.
- In this section—
"relevant person" means—
- for a claim to recover a debt or liquidated demand of money—a person to whom the debt is owed or money is payable; or
- subject to paragraphs (c) to (g), for a claim arising out of a contract between a consumer and a trader—the consumer; or
- for a claim arising out of a contract between 2 or more traders—any of the traders; or
- for a claim for payment of an amount for damage to property caused by, or arising out of the use of, a vehicle—a person incurring loss because of the damage; or
- for a claim for repair of a defect in a motor vehicle under the Motor Dealers and Chattel Auctioneers Act 2014, schedule 1, section 13 — the buyer of the vehicle; or
- for a tenancy matter—a person who, under the Residential Tenancies and Rooming Accommodation Act 2008, may apply to the tribunal for a decision in relation to the matter; or
- for a claim that is the subject of a dispute under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 —a party to the dispute; or
- for a matter under the Building Act 1975, chapter 8, part 2A—a person who, under the Building Act 1975, chapter 8, part 2A may apply to the tribunal for a decision in relation to the matter.
- [30]Section 13 of the QCAT Act relevantly states:
13 Deciding minor civil dispute generally
- In a proceeding for a minor civil dispute, the tribunal must make orders that it considers fair and equitable to the parties to the proceeding in order to resolve the dispute but may, if the tribunal considers it appropriate, make an order dismissing the application.
- For subsection (1), the tribunal may make only the following final decisions to resolve the dispute—
- for a claim mentioned in schedule 3 , definition minor civil dispute, paragraph 1(a), (b), (c) or (d)—
- an order requiring a party to the proceeding to pay a stated amount to a stated person; or
- an order that a stated amount is not due or owing by the applicant to a stated person, or by any party to the proceeding to the applicant; or
...
- [31]At the relevant time when the deposit monies were paid out of the trust account, the Property Agents and Motor Dealers Act 2000, Division 4 of Part 1, which is concerned with agent’s trust accounts, applies. Section 387 provides:
387 Application of div 4
- This division applies if—
- a licensee holds a transaction fund for a transaction under section 385; and
- before the transaction fund is paid out under section 385, the licensee receives written notice from a party to the transaction that ownership of the fund or part of the fund is in dispute (the amount in dispute).
- In subsection (1)— party, to a transaction, does not include a licensee acting for a party to the transaction.
- [32]Section 390 provided:
390 Dealing with amount if no notice
- This section applies if the licensee does not receive a notice under section 388 within 30 days after receiving notice of the dispute.
- The licensee must, within 7 days after the end of the 30 day period, give all parties to the transaction a written notice that—
- 30 days after the notice is given, the licensee will pay the amount in dispute to a stated person who the licensee believes is entitled to receive it if the licensee has not received a notice under section 388; or
- the licensee can not decide who is entitled to the amount and is keeping it in the licensee’s trust account until the licensee receives notice under section 388.
Maximum penalty—200 penalty units or 3 years imprisonment.
- If the licensee gives a notice under subsection (2)(a), the licensee may pay the amount to the person stated in the notice if the licensee does not receive a notice under section 388 within 30 days after the notice under subsection (2)(a) is given.
- [33]There does not appear, on the material before me at least, that the Respondent agent gave the Applicants a written notice of the kind contemplated by section 390.
- [34]Prima facie therefore, the Applicants have an arguable case that monies which were held on trust, inter alia on their behalf, were discharged by the trustee contrary to law, and without their authority. Depending upon who received those monies, a claim may well arise in restitution, or as monies had and received by the agent. Alternatively, the claim might be one in specie for the recovery of a trust asset dealt with by a trustee in breach of the terms of the trust. It is unnecessary to decide whether such claims have any merit in this case, or exactly what legal foundation they might have. What is important is to identify that such claims whilst unlikely to be characterised as claims in debt, although it has been held that a debt is an ascertained amount of money, and that this is its natural meaning, and is to be contrasted with damages.[2]
- [35]The words ‘liquidated demand of money’ where they appear in s 12 of the QCAT Act and equivalent language has been the subject of much consideration by the Courts over the years. They previously found that the basis upon which an application could be brought under Order 18 of the Supreme Court Rules, proceeding the Uniform Civil Procedure Rules 1999 (Qld). They now appear in UCPR Rule 283.
- [36]The relevant test, which has been applied in numerous authorities, is that generally, a claim is liquidated when the monetary sum representing the claim is ascertained or capable of being ascertained by calculation by the use of a formula, rather than being ascertainable only by an assessment which involves the exercise of a discretion and/or opinion.[3]
- [37]Reflecting this are the terms of Practice Direction 9 of 2010 in this Tribunal, to which the parties attention was drawn. It references unliquidated damages meaning a claim which cannot be determined without consideration by the Tribunal of the Applicant’s evidence in support. An example being a claim in which the precise amount which should be awarded cannot be determined from the terms of the prior agreement between the parties, or some standard; and must be calculated by reference to invoices, quotations or the like. That of course is not concerning itself with the definition of what is a liquidated demand of money or what is concerned with what is meant by the expression unliquidated damages.
- [38]The notion that something is a liquidated demand does not depend upon it being proven to be some kind of claim properly described as a claim in debt. Nor in my view is it correct to say, as the Adjudicator here has, that there is no jurisdiction to order the repayment or payment of monies improperly dealt with out of a trust account if that is properly described as a liquidated amount, as clearly it was here. The claim was not described as one for damages in the application set out at paragraph 18 of these Reasons. It sought the refund of a specific sum ‘illegally released’.
- [39]It follows that in my view the Adjudicator erred in dismissing the application on the grounds of want of jurisdiction. The Tribunal clearly has jurisdiction, and the matter should be remitted to the Tribunal for a hearing on that basis.
- [40]I further order that within 30 days of delivery of these Reasons, the Applicants obtain by way of search or otherwise, copies from the file in the Supreme Court Registry in proceeding 7590 of 2008, the proceeding in which they were Plaintiffs, and provide copies to the Respondent and file in this Tribunal the following documents:
- (a)The Claim and Statement of Claim filed 8 August 2008;
- (b)The Notice of Intention to Defend filed 7 October 2008;
- (c)The Reply filed 30 October 2009;
- (d)The Defence and Counterclaim filed 25 November 2009;
- (e)The affidavit of Mr Zhen Lin filed 20 July 2010 and the affidavit of S Riches filed 19 August 2010; and
- (f)The Order of the Court on 6 September 2010.
- (a)
- [41]I further order that within 30 days of delivery of these Reasons, the Applicants file in this Tribunal and serve on the Respondent any documents directly relevant to and/or evidencing:
- (a)Communications between their solicitors and the Respondent in and after June 2008 relating to the purchase of the property at 347 Ebenezer Road, Ebenzer; and
- (b)Any communications between themselves and their solicitors other than any document which is the subject of a valid claim for legal professional privilege in and after June 2008 relating to the purchase of the property at 347 Ebenezer Road, Ebenzer.
- (a)
- [42]I further order that within 30 days of delivery of these Reasons, the Respondent file in this Tribunal and serve on the Applicants:
- (a)Any communications between itself and the Applicants’ solicitors other than any document which is the subject of a valid claim for legal professional privilege in and after June 2008;
- (b)Any communication in or after June 2008 between the Respondent and the vendors of the property at 347 Ebenezer Road, Ebenzer;
- (c)Any document directly relevant to the circumstances by which it determined to release their deposit on or about 11 September 2012;
- (d)Any document directly relevant to the identity of the person to whom the deposit was remitted; and
- (e)Any document directly relevant to and/or evidencing the identity of the person or persons to whom the proceeds of the disbursement of the dispute went or were drawn.
- (a)
- [43]I make no order as to costs.
Footnotes
[1] Morales v Murray Lyons Solicitors (a firm) [2010] QCATA 87; McDonald v Kenmore Podiatry Pty Ltd [2012] QCAT 126; Davy v Ryter Planning Pty Ltd [2010] QCATA 96; Early Property Group Pty Ltd t/a Early Group Valuers v Cavallaro [2010] QCATA 65.
[2] Ogdens Ltd v Weinberg (1906) 95 LT 567.
[3] Spain v Union Steam Ship Co of New Zealand Ltd (1923) 32 CLR 138, 142; Alexander v Ajax Insurance Co Ltd [1956] VLR 436, 445; Rothenberger Australia Pty Ltd v Poulsen (2003) 58 NSWLR 288, 297. See also Solar Energy Australia Group Pty Ltd v Bannink [2013] QCATA 100; Solahart Mackay & Ors v Summers [2013] QCATA 113.