Yule v Chief Executive, Office of Fair Trading
[2018] QCATA 189
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- Unreported Judgment
- Yule v Chief Executive, Office of Fair Trading[2018] QCATA 189
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Yule v Chief Executive, Office of Fair Trading[2018] QCATA 189
Yule v Chief Executive, Office of Fair Trading[2018] QCATA 189
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Yule v Chief Executive, Office of Fair Trading & Ors [2018] QCATA 189 |
PARTIES: | LESLIE EDWARD YULE JAN MARIE YULE (applicants/appellants) |
v | |
CHIEF EXECUTIVE, OFFICE OF FAIR TRADING (first respondent) D J STRINGER PROPERTY SERVICES PTY LTD (second respondent) DAVID JOHN STRINGER (third respondent) | |
APPLICATION NO: | APL408-17 |
ORIGINATING APPLICATION NO: | GAR160-16 |
MATTER TYPE: | Appeals |
DELIVERED ON: | 25 September 2018 |
HEARING DATE: | 30 July 2018 |
HEARD AT: | Brisbane |
DECISION OF: | Senior Member Howard, presiding Member Olding |
ORDERS: |
|
CATCHWORDS: | APPEAL AND NEW TRIAL – ADMISSION OF FURTHER EVIDENCE – IN GENERAL – where applicant sought leave to admit as fresh evidence a previous decision of the tribunal on another matter involving the same party – whether evidence – whether leave should be granted ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where applicants claimed against claim fund for loss suffered as a result of error in sales brochure – where tribunal below decided loss attributable to lack of basic inquiries – whether leave to appeal should be granted – where no error in decision below Agents Financial Administration Act 2014 (Qld), s 78, s 82(1), s 103 Property Occupations Act 2014 (Qld), s 212 Queensland Civil and Administrative Act 2009 (Qld), s 20, s 24, s 142, s 146, s 147 Bradlyn Nominees Pty Ltd v Saikovski [2012] QCATA 39 Clarke v Japan Machines (Australia) [1984] 1 Qd R 404 Ericson v Queensland Building Services Authority [2013] QCA 391 Haritos v Commissioner of Taxation (2015) 233 FCR 315 Pickering v McArthur [2005] QCA 294 RCW Plumbing & Excavations v Camporeale Holdings Pty Ltd [2017] QCATA 48 Seirlis v Bengston & Ors [2013] QSC 240 The Chief Executive, Department of Justice and Attorney-General v D J Stringer Property Services Pty Ltd and Anor [2012] QCAT 27 Yule v The Chief Executive, Department of Justice and Attorney-General, Office of Fair Trading & Ors [2017] QCAT 399 |
APPEARANCES & REPRESENTATION: | |
Applicants: | Self-represented |
First respondent: Second respondent: Third respondent: | Mr A Tan, Senior Collections Officer Mr D J Stringer Self-represented |
REASONS FOR DECISION
- [1]Mr and Mrs Yule (the Yules) have applied for leave to appeal, and to appeal, a decision of a Member of the tribunal confirming a decision of the Chief Executive to refuse their claim against the ‘claim fund’ established under s 78 of the Agents Financial Administration Act 2014 (Qld) (AFAA).
- [2]They have also applied for leave to admit fresh evidence that was not before the tribunal below.
- [3]For the reasons that follow, we refuse the application for leave to admit fresh evidence and the application for leave to appeal.
Background
- [4]The claim against the claim fund related to an error in a sales brochure obtained from a real estate agent, D J Stringer Property Services Pty Ltd, in relation to a home unit purchased by the applicants as their retirement home. It was important to the Yules that they have two car parking spaces. When they contracted to purchase the unit they mistakenly thought that there were two car spaces allocated to the unit, but in fact there was only one. It was common ground that the sales brochure mistakenly represented that the unit had two car spaces.
- [5]The Yules first identified that the unit was of interest to them through a search that Mrs Yule conducted on an online website, realestate.com. There was no evidence that the error on the brochure also appeared in the realestate.com listing. The Yules then visited the agent’s office and collected the brochure with the mistaken reference to two car spaces.
- [6]Before they signed the contract to purchase the unit, an employee of the agent, Ms Bingle, conducted a site inspection with them. Ms Bingle showed the applicants the parking space, numbered 36, that is allocated to the unit. She did not represent that there was any other car space allocated to the unit and the applicants did not query this or ask to see the second car space. They mistakenly assumed that another space, marked 7, the same number as the unit they ultimately purchased, must also be allocated to the unit.
- [7]The contract and associated documents, including a community management scheme (CMS) showing only one car space allocated to the unit, was sent to their conveyancer. There was a cooling off period under the contract, but the conveyancer did not provide the applicants with a copy of the CMS, and the Yules did not read it, before completing the purchase.
- [8]The Yules submitted that they suffered loss because of the misrepresentation in the brochure. However, the Tribunal was not satisfied that any loss suffered by the applicants was due to the error in the brochure, which the Tribunal found could have been corrected in essence had the Yules been ‘diligent in their enquiries’.[1]
Statutory framework
- [9]A person who suffers a financial loss because of an event listed s 82(1) of the AFAA may claim against the claim fund.
- [10]One of the listed events is a contravention of s 212 of the Property Occupations Act 2014 (Qld). That provision prohibits a licensee or real estate salesperson from representing to someone else anything that is false or misleading relating to the sale of real property.
- [11]Section 103 of the AFFA provides that a person dissatisfied with a decision of the Chief Executive in relation to a claim may apply to the tribunal for review of the decision under the Queensland Civil and Administrative Act 2009 (Qld) (QCAT Act). The Tribunal must hear and decide the review by way of a fresh hearing on the merits. The purpose of the review is to produce the correct and preferable decision.[2]
- [12]On review the Tribunal may, among other things, confirm the Chief Executive’s decision; or set it aside and substitute the tribunal’s own decision.[3] In this case, the Tribunal confirmed the Chief Executive’s decision to refuse the claim.
Nature of appeal
- [13]Under section 142 of the QCAT Act, an appeal to the appeal tribunal on a question of law only may generally be made without leave, but an appeal on a question of fact, or a question of mixed law and fact, requires leave of the appeal tribunal.
- [14]Apart from the requirement for leave, the distinction between questions of law and questions of fact or mixed law and fact, is significant to the appeal tribunal’s function. Broadly speaking, in deciding an appeal on a question of law only under s 146, the appeal tribunal must either confirm the decision or return the matter to the tribunal for reconsideration, unless the appeal tribunal’s determination of the question of law is capable of resolving the matter as a whole in the applicant’s favour.[4] By contrast, an appeal on a question of fact or a question of mixed law and fact under s 147 is decided by way of rehearing with or without the hearing of additional evidence as decided by the appeal tribunal.
- [15]The distinction between questions of law and fact, and in particular the meaning of a question of mixed law and fact, are not always clear and the courts have not formulated satisfactory tests of universal application.[5] It has been said that questions of law are about what is the correct legal test; questions of fact are about what actually took place; and questions about whether facts satisfy the legal test are questions of mixed law and fact.[6]
- [16]The applicants’ grounds of appeal generally seek to challenge findings of fact. Therefore, leave to appeal is required. Leave to appeal will usually be granted only where there is a reasonable argument that the decision of the tribunal was attended by error, and it is necessary to correct a substantial injustice to the applicant caused by that error.[7]
- [17]The appeal process is for correcting error by the original decision-maker. It is not an opportunity for a party to present their case again, or reargue it, merely because the party does not like or agree with the decision of the original tribunal.[8]
Application to admit fresh evidence
- [18]Early in the hearing below, when the member was explaining the nature of the review hearing before the tribunal, the following exchange occurred:
MEMBER: Have you been through a QCAT hearing before?
MR STRINGER: Only some tenancy.
MEMBER: Okay.
MR STRINGER: Basic tenancy ones.
MEMBER: All right.
MR STRINGER: Yes.
MEMBER: They’re a bit more brutal than today’s going to be.
MR STRINGER: Right. Okay.
- [19]Mr and Mrs Yule seek leave to admit as evidence a 2012 decision of the tribunal[9] in an unrelated disciplinary case also involving Mr Stringer and D J Stringer Property Services Pty Ltd. The matter was referred to the tribunal for the determination of a disciplinary referral for breaches of predecessor legislation involving pre-drawing of commissions totalling over $250,000. They say that the prior decision demonstrates Mr Stringer’s untruthfulness in the proceeding about their claim against the fund.
- [20]The usual principle is that an applicant seeking to admit fresh evidence must usually show that the evidence: (A) could not have been available with reasonable diligence for the original hearing; (B) if allowed, would probably have an important impact upon the result; and (C) is credible.[10] For obvious reasons, credibility of the earlier decision is not an issue.
- [21]The earlier decision could readily have been discovered by the Yules. It is a matter of public record and is published on the Supreme Court Library website. The ready availability of the decision counts against admitting it as evidence at this stage.
- [22]We are also not persuaded that consideration of the decision would probably have had a major impact on the result of the case. From the transcript as extracted above, it is clear that the Member was exploring whether the parties were familiar with tribunal processes. The 2012 decision followed a hearing on the papers after the matter was referred by the Chief Executive for decision by the tribunal: it is apparent that there was no oral hearing in that matter. Viewed in that context, Mr Stringer’s response was not misleading.
- [23]It seems that Mr and Mrs Yule would also seek to submit that the Chief Executive should have cancelled Mr Stringer’s and his company’s real estate licences after the 2012 case and that by not doing so failed to protect them from loss. Such a submission would not assist them in an appeal where the issue would be whether the applicants suffered loss because of the misleading brochure. The Chief Executive’s response to the earlier matter is irrelevant to that issue and in any case, it was the tribunal on a referral from the Chief Executive, that determined the outcome in the earlier case.
- [24]That said, it is not altogether clear that leave is required for the appeal tribunal to consider the 2012 case. Published decisions are routinely referred to by the tribunal in its decision-making without being admitted as evidence. However, as Mr and Mrs Yule seek to refer to the decision not for the usual purpose of persuading us that, for example, its rationale should be applied by us but rather, it seems, as a matter said to be relevant to the truthfulness of Mr Stringer’s comments in the earlier Tribunal hearing, and thus generally, and also in support of a submission of the kind outlined above. It may be that, for use in that way, the decision would be ‘evidence’.
- [25]To the extent that it is necessary, for these reasons, we refuse the application for leave to admit fresh evidence.
Grounds of appeal
- [26]The Yules’ grounds of appeal dispute a number of paragraphs in the learned Member’s reasons for decision which they describe as ‘matters alleged to be fact which we question’. We deal with each of these in turn below in the order they are presented in the applicants’ submissions.
Paragraphs [41] and [42] of the reasons below
- [27]These paragraphs state:
[41] Further, it is clear from the evidence that the assumption that there were two car parks at the inspection of the unit was Mr Yule’s only. Ms Bingle did not refer to another car park at the time she was showing the unit on the inspection the day before the contract was signed.
[42] Crucially, neither Mr nor Mrs Yule asked to see the second car park at the physical inspection of the garage. If either of them had, Ms Bingle would have told them there was only one space.
- [28]Mr and Mrs Yule make two submissions in relation to these paragraphs.
- [29]First, they say Ms Bingle admits to providing an ‘incomplete inspection’. It is not clear that Ms Bingle made an admission in those terms, but it is common ground that she left to attend another appointment, leaving the applicants to show themselves out of the car park.
- [30]We do not see how that detracts from the learned Member’s conclusions in paragraphs 41 and 42 of the reasons for decision. Even if the inspection is properly described as incomplete, it is not apparent that would assist the Yules in establishing that the error in the brochure caused them to suffer loss.
- [31]Secondly, they refer to Mr Yule’s evidence that, while in the car park, he said to Mrs Yule ‘That space down there marked 7 must be our other space’. He acknowledges that there was no response from Ms Bingle and that he assumed she agreed. However, Ms Bingle denied hearing Mr Yule make this comment which on his own evidence was directed not to Ms Bingle but to Mrs Yule.
- [32]The learned Member specifically referred to this evidence in her reasons. It was open to the Member to accept Ms Bingle’s evidence on this issue. Indeed, it is not inconsistent with Mr Yule’s own evidence. There is no identified error in the Tribunal’s approach.
Paragraphs [39] and [48]
- [33]These paragraphs state:
[39] However, that was the only information source about this unit that contained the mistake. I accept Ms Bingle’s unchallenged evidence that the internet advertisement showed the correct number of car parks.
…
[48] In the current matter, the internet advertisement for the unit, which I accept showed the correct information, was the basis of the first inquiry to the Agency by Mrs Yule before the physical sales brochure was collected by the Yules.
- [34]Mr and Mrs Yule seek to challenge the Tribunal’s conclusion that the realestate.com entry did not contain the error found in the brochure. This challenge seems to have two bases: (A) that there was no evidence that the realestate.com listing was not altered; and (B) that, because the agent admitted to correcting the error after the applicants signed their contract, it must have been the internet listing that was altered and not the brochure because there would not have been any point in amending the brochure after the sale.
- [35]We do not accept these submissions. First, there was evidence that the internet listing was not altered; both Mr Stringer and Ms Bingle gave direct evidence to that effect which the learned Member was entitled to accept. Secondly, the question of whether it would make sense to alter the brochure was explored in oral evidence, with Mr Stringer stating that the agency also ‘do just sold brochures’.[11]
- [36]In short, there was no evidence to establish that the internet listing at any time contained an error and further, there was direct evidence, which the Member was entitled to accept, that the internet listing was not altered. Again, no error is established by these submissions.
Paragraphs [43], [44] and [50]
- [37]These paragraphs are as follows:
[43] Certainly, the CMS documents provided to Mr and Mrs Yule at the signing of the contract showed the correct number of car parks.
[44] It was incumbent on Mr Yule to read the CMS document - which he admits he did not.
…
[50] The CMS document was produced at the signing of the contract. Mr Yule admits he failed to read this document.
- [38]The Yules dispute the finding in these paragraphs that a copy of the CMS was provided to the applicants at the time the contract was signed as ‘blatantly untrue’. They do not dispute that a copy was provided to their conveyancer, nor that they did not read the CMS until after settlement.[12]
- [39]The finding that the CMS was provided was based on evidence from Mr Stringer and Ms Bingle that their normal practice was for the whole package to be provided to purchasers - the contract and the disclosure statement with the CMS which was provided to the conveyancer.[13] The Member was entitled to accept that evidence. There was no error in so doing.
Paragraph [28]
- [40]Paragraph 28 is as follows:
[28] Mr Yule said he was aware that he should ensure that the CMS did not disclose any special levies and he knew there was a cooling off period in the contract. Mr Yule has set up a body corporate in a previous three villa arrangement and has himself bought and sold 13 other single properties. He understood how the car park was allocated as exclusive use and was happy with this arrangement.
- [41]Mr and Mrs Yule dispute the statement in this paragraph that Mr Yule said he was aware that he should ensure that the CMS did not disclose any special levies. They say Mr Yule’s evidence only went so far as to say that he checked the position in relation to levies with the conveyancer by telephone, not that he was aware of a CMS.
- [42]The Transcript of the hearing reveals that Mr Yule said as follows:
The only-only thing I spoke to the conveyancer about on—in relation to the contract was the—to-and I asked them to confirm the levy applicable, because that was the only thing that concerned me, was the validity of the levy…. I wanted to make sure it was within our means. And levies can sometimes—unless you investigate your CMS, they can be, you know, subject to a special levy or something like that….[14]
- [43]The learned Member’s statement in its terms does not contain a factual finding. It is merely a recitation of what the Member thought Mr Yule had said. Even if it could be implied that the Member accepted the statement and therefore made a finding to that effect, there was no error as alleged: Mr Yule’s evidence was to the effect set out by the learned Member.
- [44]The submissions go on to state:
THE TRIBUNALS (SIC) REFERENCE TO MY HAVING PUCHASED (SIC) 13 HOMES IN MY LIFETIME, INFERS I SHOULD HAVE BEEN AWARE OF EXISTENCE OF THE C.M.S, HOWEVER ALL OF THOSE PROPERTIES WERE FOR FREE STANDING HOMES IN N.S.W AND NOT APARTMENTS AND NOT NECESSITATING A CMS.
- [45]However, the relevant part of paragraph [28] specifically refers to ‘13 other single homes’. The issue of whether Mr Yule had previously purchased units was explicitly explored by the member at the hearing, with Mr Yule explaining that the 13 other properties were ‘single dwellings’ and that he had never purchased an apartment before.[15] Against that context, the reference to ‘single homes’ is clearly made in contradistinction to apartments. There is no error in this reference.
Paragraphs [24], [25] and [26]
- [46]These paragraphs are as follows:
[24] Mr and Mrs Yule returned to the real estate office the next day to sign the contract. They do not remember when they received the Community Management statement (CMS) and the Disclosure Statement but the Disclosure Statement was also signed by Yules and dated 13 July 2015 – the same day as the contract.
[25] The evidence of Ms Bingle and Mr Stringer was that the normal office process is to provide the contact, the CMS and the Disclosure Statement as one document to purchasers – altogether some 50 pages.
[26] I accept that on this occasion the normal process was followed, evidenced by the fact that the Disclosure Statement was also dated 13 July 2015. There is no provision for the purchasers to sign the CMS.
- [47]Mr and Mrs Yule take issue with the conclusion in these paragraphs that they were provided with a copy of the CMS when the contract was signed; in particular, the statement that they do not remember when they received the CMS. They reference in particular Mr Yule’s written statement which says that they were presented with only the contract and disclosure statement in the agent’s office.
- [48]The evidence from the applicants in relation to the documents they received includes:
The 19 page contract as provided by D.J.Stringer which we signed and initialled and was witnessed by them in their offices on 13/7/15.[16]
Can you recall what documents were provided to you at that point? - We only received – I had the – only had the – actual contract. I think it was about 10 pages or something like that. And we both signed, went through each page – each page individually and signed them off.[17]
We were at no time provided with a community management statement by either our conveyancers or Stringers and indeed were unaware one even existed.[18]
WE MOVED IN ON 5TH SEPT.
A DAY LATER . . . I PHONED [THE CONVEYANCER] TO CONFIRM THE SPACES ALLOCATED. THEY RETRIEVED THE CMS WITH PLANS FROM THEIR ARCHIVE AND AFTER 2 DAYS THEY SENT THEM TO ME.[19]
- [49]In light of the inconsistencies in these accounts, it cannot be said that the Tribunal’s conclusion that Mr and Mrs Yule could not remember receiving the CMS and disclosure statement when they signed the contract was not open to the Member. It was open to the member to accept the evidence of Mr Stringer and Ms Bingle over the evidence of Mr Yule.
- [50]We observe that, in any case, the central reason for the decision of the Tribunal was that the Yules did not undertake diligent inquiries – which might have included asking Mr Bingle to show them the second car space or seeking confirmation from Ms Bingle or their conveyancer given the stated importance to them of two car spaces - that would have revealed the true position. That was not dependent upon when they received the CMS but rather whether they undertook basic enquiries about a matter they claimed was of particular importance to them.
Paragraph [57]
- [51]Paragraph [57] is as follows:
[57] I am not satisfied on the balance of probabilities that any loss claimed by Mr and Mrs Yule was because of any representation by the Agency or Mr Stringer that was false or misleading. Rather it was one simple mistake in one piece of information that could have been corrected a number of times had Mr and Mrs Yule been diligent in their enquiries.
- [52]The learned Member concludes that she is not satisfied that the loss claimed resulted from the error in the brochure, noting that ‘it was one simple mistake in one piece of information that could have been corrected a number of times if Mr and Mrs Yule had been diligent in their enquiries’.
- [53]Mr and Mrs Yule here return to the assertion that there was no evidence that the realestate.com entry was correct. We have dealt with that assertion above. No error is revealed.
Paragraph [47]
- [54]Paragraph [47] is as follows (footnotes omitted):
[47] Mr Yule referred the Tribunal to the Supreme Court decision of Seirlis v Bengtson & Ors. This decision is distinguishable for the current circumstances on its facts. In Seirlis v Bengtson there were numerous unambiguous representations of the number of car parks attached to the unit and a number of direct enquiries were made by the purchasers.
- [55]The learned Member distinguished the decision in Seirlis v Bengston & Ors[20] on the basis that it involved several representations about car spaces rather than, as in this case, a single error. The Yules assert that it should have been followed because the purchaser in that case became aware of the misrepresentations before settlement. The facts in that case are clearly different to the current matter. There is no error in the Tribunal distinguishing the case, which the Member was not bound to follow.
Should leave be granted?
- [56]An appeal would not have reasonable prospects of success. As the discussion above indicates, Mr and Mrs Yules’ submissions do not reveal error in the Tribunal’s decision. Leave to appeal should therefore be refused.
- [57]We make the observation that even had error been identified in relation to any of the issues raised, it would not have been material to the outcome. This is because there is no evidence to support a finding that the Yules’ suffered any loss for which they would have been entitled to a payment. Indeed, Mr Yule’s evidence is that he thought they ‘got a bargain’.[21]
Orders
- [58]Accordingly, we make orders refusing the Yules’ application for leave to rely upon fresh evidence, and refuse leave to appeal.
Footnotes
[1]Yule v The Chief Executive, Department of Justice and Attorney-General, Office of Fair Trading & Ors [2017] QCAT 399, [57].
[2]QCAT Act, s 20.
[3]QCAT Act, s 24.
[4]Ericson v Queensland Building Services Authority [2013] QCA 391.
[5]Haritos v Commissioner of Taxation (2015) 233 FCR 315 contains a detailed survey of the authorities.
[6]For a recent example, see RCW Plumbing & Excavations v Camporeale Holdings Pty Ltd [2017] QCATA 48.
[7]Pickering v McArthur [2005] QCA 294 at [3].
[8]Bradlyn Nominees Pty Ltd v Saikovski [2012] QCATA 39.
[9]The Chief Executive, Department of Justice and Attorney-General v D J Stringer Property Services Pty Ltd and Anor [2012] QCAT 27.
[10]Clarke v Japan Machines (Australia) [1984] 1 Qd R 404 at 408.
[11]Transcript, 1-74.
[12]Yule v The Chief Executive, Department of Justice and Attorney-General, Office of Fair Trading & Ors [2017] QCAT 399, [24]-[29].
[13]Transcript, 1-43 and 1-107 to 1-108.
[14]Transcript, 1-94.
[15]Transcript, 1-95.
[16]Letter to Office of Fair Trading dated 12 November 2015.
[17]Transcript, 1-83, Mr Yule.
[18]Email dated 22 March 2016 from Mr and Mrs Yule to the Office of Fair Trading. However, the reference to ‘at no time’ receiving a copy of the CMS from their conveyancers, considered in context, may have been intended to mean at no time until after they discovered that there was only one allocated car space.
[19]Written statement of Mr Yule.
[20][2013] QSC 240.
[21]Transcript, 1-90.