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Holgar v Chief Executive, Department of Justice and Attorney-General[2021] QCATA 113

Holgar v Chief Executive, Department of Justice and Attorney-General[2021] QCATA 113

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Holgar v Chief Executive, Department of Justice and Attorney-General & Ors [2021] QCATA 113

PARTIES:

theresa halina holgar

(applicant/appellant)

v

the chief executive, department of justice and attorney-general, office of fair trading

(first respondent)

The real estate exchange (brisbane) Pty Ltd

(second respondent)

robert ian hyde

(third respondent)

APPLICATION NO:

APL009-20

ORIGINATING APPLICATION NO:

GAR343-17

MATTER TYPE:

Appeals

DELIVERED ON:

15 September 2021

HEARING DATE:

27 January 2021

HEARD AT:

Brisbane

DECISION OF:

Senior Member Howard, Presiding Member Member Fitzpatrick

ORDERS:

  1. The application for leave to appeal or appeal is dismissed.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – where proceeding below involved review of decision refusing access to fund – where deposit released by real estate agent – whether agent on notice of a dispute as to the deposit – construction of s 25 Agents Financial Administration Act 2014 (Qld)

Agents Financial Administration Act 2014 (Qld), s 6, s 21, s 22, s 25, s 26, s 27, s 28, s 82

Queensland Civil and Administrative Tribunal Act 2009 (Qld), 142(3)(b), 146, 147

Amundsen v Queensland College of Teachers [2011] QCATA 2

Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (1986) 161 CLR 513

Dearman v Dearman [1908] HCA 84

De Vries v Australian National Railways Commission [1993] 177 CLR 472

Elshona Property Pursuit [2019] QCATA 57

Ericson v Queensland Building Services Authority [2013] QCA 391

Garwood v Tiralees Pty Ltd and Ors [2012] QCAT 541

Harrison v Meehan [2017] QCA 315

Holgar v Chief Executive, Department of Justice and Attorney-General & Ors [2019] QCAT 370

House v The King (1936) 55 CLR 499

Imbrogno v Brisbane City Council [2017] QCATA 148

Murphy, H v Hancock, D and Taylor, JM t/as Montville, Mapleton & Maleny Real Estate [2004] QCCTPAMD 10

Partington v Urquhart (No 2) [2018] QCATA 120

Payne v APN News & Media [2016] QCATA 140

Peter & Anor v Tyson [2015] QCATA 9

Recreation and Competitive Events Resources & Services Pty Ltd & Anor v Champion’s Ride Days Pty Ltd [2020] QCA 90

Seymour v Racing Queensland Limited [2013] QCATA 179

Slater v Wilkes [2012] QCATA 12

Waterford v Commonwealth [1987] HCA 25

Woodgate Beach Asian Pacific Realty Pty Ltd v Gerard [2010] QCATA 64

APPEARANCES &

REPRESENTATION:

 

Applicant:

K Gover of Counsel, instructed by W Cusack of Lillas and Loel Lawyers

First Respondent:

A Tan, Acting manager, Claims and Recoveries, Office of Fair Trading

Second and Third

Respondents:

B Heath, Solicitor, Carter Newell

REASONS FOR DECISION

  1. [1]
    This application for leave to appeal or appeal arises out of a decision made by the Tribunal on 29 November 2019 in a review proceeding. The Tribunal confirmed a decision of the Chief Executive, Department of Justice and Attorney‑General, Office of Fair Trading (the OFT), to reject a claim made by Mrs Holgar upon the fund (the claim fund) maintained under the Agents Financial Administration Act 2014 (Qld) (‘the AFA Act’).[1]
  2. [2]
    Mrs Holgar sought from the claim fund an amount equivalent to a deposit released from the trust account of her appointed real estate agent in circumstances where Mrs Holgar says that the sum should not have been released to the buyer because of the agent’s obligations under ss 25 and 27 of the AFA Act. That is, the agent should have been on notice that a dispute had arisen or may arise over who was entitled to the deposit and, as a result, not released the deposit to the buyer.
  3. [3]
    The second respondent, The Real Estate Exchange (Brisbane) Pty Ltd (‘REE’) and its Director, the third respondent, Mr Robert Hyde were appointed to act as Mrs Holgar’s real estate agent to sell her property at Kenmore.
  4. [4]
    A relevant witness in the proceeding is Mr Cayne Hyde who is a real estate agent working with his father Mr Robert Hyde in REE. Mr Cayne Hyde’s email address was the agreed point of contact for Mrs Holgar with REE and Mr Robert Hyde.[2]
  5. [5]
    The Member below found on the evidence before him that the agent could not be expected to have formed the view that a dispute had arisen or may arise as to entitlement to the deposit. The Member was not satisfied that the agent or the agency committed any breach of their duties under the AFA Act and accordingly, no claim could arise against the claim fund under the AFA Act.
  6. [6]
    Mrs Holgar raises grounds of appeal which she contends involve an error of mixed law and fact and errors of law.[3]
  1. [7]
    Leave to appeal is required if the grounds raised by the appellant raise questions of fact, or mixed law and fact, as opposed to questions of law only.[4] If leave is granted, the appeal must proceed by way of re-hearing.[5] Where, as here, both errors of law and errors of mixed law and fact are raised, the Appeal Tribunal has previously observed that it is important that the Appeal Tribunal not burden a right to appeal from a decision of the Tribunal on a question of law with a requirement to obtain the Appeal Tribunal’s leave to do so. Such an approach has been said to impermissibly impose a limit on appeal rights not imposed by the legislation.[6] If leave to appeal is granted, then the appeal must be decided by way of a re-hearing and all the matters which are the subject of the grounds of appeal be dealt with in the re-hearing.[7] If leave is not granted, then the appeal proceeds on the questions of law under s 146 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), in which case there is no element of re-hearing.
  1. [8]
    For that reason, we address the appeal on the questions of law. We also address the balance of the grounds of appeal in determining whether leave to appeal should be granted.

The AFA Act

  1. [9]
    The main object of the AFA Act is to protect consumers from financial loss in dealings with regulated agents.[8]
  2. [10]
    The AFA Act in Part 2, broadly speaking, provides for the establishment and keeping of trust accounts, as well as payments to and from trust accounts, and accounting requirements.
  3. [11]
    Division 3 provides for payments from trust accounts. In particular, s 21 provides that an amount may be paid from a trust account only in a way permitted under the AFA Act.
  4. [12]
    Section 22 provides for permitted drawings from trust accounts. Among other things, it provides for drawings after a transaction is finalised.[9] However, if a dispute about an amount held in an agent’s trust account arises, the transaction is not taken to be finalised until the agent is authorised to pay out the amount under div 5 of the AFA Act.[10]
  5. [13]
    In div 5 of the AFA Act, s 25(1)(b) provides that div 5 applies if, before a deposit is paid out an agent becomes aware of a dispute, or considers a dispute may arise, between the parties to the transaction about entitlement to the transaction fund (the amount held in the agent’s trust account for the transaction)[11] or part of the fund.
  6. [14]
    Section 26 provides a process for an agent to deal with an amount in dispute.
  7. [15]
    Section 27 provides that, if the amount in dispute is not dealt with under s 26, the agent must not pay out the amount in dispute unless the agent receives written notice from all parties to the transaction stating the person who is entitled to the amount or a proceeding has been started to decide who is entitled to the amount.
  8. [16]
    Section 82 provides that a person may claim against the claim fund if the person suffers financial loss because of, inter alia, a contravention of s 21 or s 22.

Grounds of Appeal

Ground 1 – it was not open to the Member to conclude that the third respondent was not aware a dispute had arisen or may arise over who was entitled to the deposit within the meaning of s 25(1)(b) of the AFA Act.

  1. [17]
    Mrs Holgar argues that ground 1 involves mixed questions of fact and law and that leave to appeal should be granted because each of the following factors apply:
    1. (a)
      a reasonably arguable case of error in the primary decision;
    2. (b)
      a reasonable prospect that the applicant will obtain substantive relief;
    3. (c)
      leave is necessary to correct a substantial injustice to the appellant caused by error; and
    4. (d)
      a question of general importance upon which further argument, and a decision of the appellate court or tribunal, would be to the public advantage.[12]

Error of law

  1. [18]
    As to error of law, Mrs Holgar says that the Member’s conclusion that Part 2, Div 5 of the AFA Act was not engaged could only have been reached on a narrow interpretation of s 25(1)(b) of the AFA Act, and that is inconsistent with the main purpose of the statute. She submits that s 25 should be construed in a way that takes account of the surrounding circumstances. That is, the factual matters of which an agent is aware and that ought to put them on notice of a potential dispute. Such an interpretation is said to recognise the words of the provision and promote the main purpose of the AFA Act, which is ‘to protect consumers from financial loss in dealings with agents’. It is said that instead, the Member erred in law by impliedly imposing an onus on Mrs Holgar to notify the REE and Mr Hyde of the ongoing dispute with the buyer. Mrs Holgar says that amendments made to s 25(1)(b) of the AFA Act demonstrate a clear legislative intention to remove any onus on a party to provide actual notice of a dispute by replacing the words: “receives written notice from a party to the transaction that ownership of the fund…is in dispute..” with a broader threshold by which an agent “becomes aware of a dispute, or considers a dispute may arise.”[13]

Was the Member in error by imposing an onus on a party to provide notice of a dispute?

  1. [19]
    Dealing first with the question of whether the Member in error imposed an onus on a party to provide actual notice of a dispute, we do not consider that the Member found a party must give actual notice of a dispute to an agent in order for div 5 of the AFA Act to be engaged.
  2. [20]
    The assertion that the Member imposed an onus on the applicant to notify REE and Mr Hyde of the ongoing dispute with the buyer is drawn from the learned Member’s observation at [73] that the agent was not advised that the owner had a dispute as to the deposit and was not aware of any legal interplay between the parties which would have alerted him to a dispute as to the deposit. Further, at [83], that the Member was satisfied at the time the agent released the deposit, neither party had communicated to the agent or the agency that a dispute existed as to the deposit.
  3. [21]
    In making those findings, the Member was addressing the agreed threshold question in the proceeding: ‘was there anything before REE/Mr Hyde that should have put them on notice that a dispute had or may arise over who was entitled to the deposit before it was released to the buyer?’[14]
  4. [22]
    In our view, the Member simply ruled out that the agent had been told of a dispute on the day of and as at the time of the release of the deposit. The Member was not imposing an onus on Mrs Holgar to advise REE or Mr Robert Hyde of a dispute. Whether the agent was told of a dispute was a relevant factor to consider. We accept the submissions of the Chief Executive and Mr Robert Hyde to this effect.

Did the Member construe s 25(1)(b) of the AFA Act narrowly?

  1. [23]
    Mrs Holgar submits that the Member construed s 25(1)(b) of the AFA Act narrowly rather than by reference to a broader threshold, taking into account surrounding circumstances or factual matters of which an agent is aware and that ought to put them on notice of a potential dispute.
  2. [24]
    Relevantly, the Member made a critical finding at [84]. He found that at the time of release of the deposit, the agent was of the understanding, based upon written advice, that both parties then considered the contract to be at an end, that neither wanted it to proceed and that he released the deposit back to the buyer at the first opportunity he had; that is, upon being advised of the account of the buyer into which the deposit might be paid.
  3. [25]
    The Member found at [88] that no circumstances had been identified as being in place on the morning of 8 November 2016 which should have put the agent on notice that a dispute may arise as to the deposit. The Member explained that finding at [89]. He considered that the agent, as at 11.24am on 8 November 2016 and continuing through to 2.15 pm on 8 November 2016, rather than being expected to have had a reasonable belief that a dispute had or may arise, would more reasonably be expected to have had a belief that any dispute was over and would not arise, as the buyer no longer sought to enforce the contract and the agent’s only knowledge at the time was that Mrs Holgar also did not want to proceed with the contract.
  4. [26]
    In our view these findings were open on the evidence before the Member. Whether the Member construed s 25(1)(b) of the AFA Act narrowly is a different question.

Construction of ss 22(3), 22(4) and 25(1)(b) of the AFA Act.

  1. [27]
    In deciding whether an agent is authorised to pay a deposit to a party to a transaction, it is useful to consider the pathway set out in the AFA Act. Although the legislation uses the term “transaction fund” we will refer to the term “deposit” which is encompassed by the meaning of transaction fund. We do this to bring clarity to the analysis on the facts before us. A series of questions arise from the relevant sections:
    1. (a)
      has the transaction finalised so that s 22(3) of the AFA Act applies and the agent may pay the deposit to the party entitled to the deposit?
    2. (b)
      is the transaction not finalised, because under s 22(4) of the AFA Act a dispute about the deposit has arisen?
    3. (c)
      if a dispute has arisen, is div 5 of the AFA Act engaged so as to enable the agent to obtain an authorisation under s 26 or s 27 of the AFA Act to pay the deposit to a party?
    4. (d)
      before the deposit is paid out, is the agent aware of a dispute or does the agent consider a dispute may arise between the parties to the transaction about entitlement to the deposit?
  2. [28]
    Our first observation is that s 22(4) of the AFA Act must necessarily be construed by reference to s 25 of the AFA Act which determines the application of div 5 of the AFA Act.
  3. [29]
    Section 25 provides that the only relevant dispute is one of which the agent is aware, or which the agent considers may arise; and further that the dispute is between the parties to the transaction about entitlement to the deposit.
  4. [30]
    Section 25(1)(b) is directed to an agent’s state of knowledge “before” the deposit is paid out under s 22 of the AFA Act. The word “before” catches not just the day the deposit is to be paid out but also the prior history of the transaction. The scope of enquiry as to the agent’s knowledge is a continuum throughout the transaction to the point prior to payment of the deposit. That is consistent with the consumer protection object of the AFA Act which is best served by ensuring that a deposit is only paid out under cover of the protective mechanisms of s 26 or s 27 of div 5 of the AFA Act, if at any time (not just on the day of payment), the agent is aware of a dispute or considers a dispute may arise as to entitlement to the deposit.
  5. [31]
    The section is cast in entirely subjective terms, that is by reference to the agent’s awareness of a dispute or consideration that a dispute may arise.
  6. [32]
    Of course, an agent may become aware of a dispute by a party giving notice of a dispute. That would be a common occurrence. 
  7. [33]
    It is the phrase “considers that a dispute may arise” which is less certain. The applicant submits that it covers a situation where an agent ought to be put on notice that a dispute may arise. That is not what the section says. Nor, put another way, does the section say that an agent should reasonably consider that a dispute may arise. What is relevant is whether the agent did actually consider a dispute may arise.  If the agent asserts that he or she did not consider a dispute may arise and that is challenged, as in this case, it will be a matter of evidence and appropriate findings as to whether the agent’s evidence on the point is credible.

Finding

  1. [34]
    The Member’s findings reveal that his consideration of whether the agent was aware of a dispute was limited to the agent’s awareness on 8 November 2016. In our view, the approach which should have been taken by the Member was to consider all the facts in the lead up to 8 November 2016 and to make findings in relation to the agent’s awareness of a dispute at any time up to 8 November 2016.
  2. [35]
    Despite this view, we do not consider that the approach taken by the Member is a material error because it has not resulted in a wrong finding on the facts of this case.  Even if the Member had looked more broadly for evidence that the agent was aware of a dispute at an earlier time, the result of that enquiry would have been to require compliance with s 26 or s 27 of the AFA Act. Compliance with s 27 of the AFA Act in fact occurred. Mr Hyde paid the deposit pursuant to s 27 of the AFA Act upon receipt of a written authority from both parties.
  3. [36]
    Accordingly, we are not satisfied that the Member’s error was material to the decision made, because the outcome and decision is the same.

Error of fact

  1. [37]
    As to whether the Member made an error of fact, Mrs Holgar submits that Mr Robert Hyde’s evidence that he was simply acting on instructions from both the seller and the buyer to release the deposit is implausible because it cannot be reconciled with his correspondence of 12 August 2016 and 8 September 2016.
  2. [38]
    To understand the significance of these letters, they need to be put in context in terms of the chain of correspondence between the buyer, Mrs Holgar as seller and her representatives, and Mr Robert Hyde.
  3. [39]
    The letter of 12 August 2016 was written by Mr Hyde to the solicitor for the buyer, Mr Bennett of McInnes Wilson Lawyers. Mr Hyde describes to Mr Bennett the background to the contract. The letter was written after Mrs Holgar indicated an unwillingness to proceed with the contract on the basis that she alleged it was altered without her consent.
  4. [40]
    On 7 September 2016, Lillas Loel, new solicitors for Mrs Holgar advised the buyer’s solicitors that ‘there is no contract in existence’ and the agent has been authorised to release the deposit monies paid direct to the buyer.
  5. [41]
    On 8 September 2016, the buyer’s solicitors affirmed the contract. That letter was not copied to Mr Hyde.
  6. [42]
    On 8 September 2016, James Loel of Lillas Loel sent by email at 9.46am to Mr Cayne Hyde instructing ‘please re-fund the deposit paid to the buyers or as they direct.’ That email was forwarded by Mr Cayne Hyde to Mr Robert Hyde at 10.34am on 8 September 2016.
  7. [43]
    At this stage, one might reasonably think Mr Robert Hyde and REE were on notice as to a dispute over settlement of the contract for sale of Mrs Holgar’s land and that he may consider a dispute as to entitlement to the deposit may arise. If that is the effect of the correspondence Mr Robert Hyde was constrained by div 5 of the AFA Act to act in accordance with s 26, or as he did, with s 27 of the AFA Act.
  8. [44]
    On 8 September 2016 at 11.03am, Mr Robert Hyde sent an email to Mr Loel offering to meet and discuss evidence that the contract in question:

…is and always has been a contract.  Under this pretence [sic] we will be holding the Seller accountable for our commission in the event of a cancellation of this contract.

  1. [45]
    Mr Robert Hyde’s evidence is that he did not receive a response to his invitation to meet.
  2. [46]
    Mr Robert Hyde’s evidence is that he was not privy to what occurred next between the parties, which included the buyer attempting to complete the contract on 29 September 2016, subsequent affirmation of the contract and lodgement of a caveat over the property.
  3. [47]
    However, on 21 October 2016 Mr Robert Hyde received an email from the buyer’s solicitors advising that the buyer did not intend to proceed as a result of Mrs Holgar’s failure to complete the contract. It was noted that:

…you have previously received an authorisation from the solicitor for the Seller to release deposit monies to our client. We confirm that the deposit should be refunded to our client and deposited into the following account…

  1. [48]
    As at 21 October 2016, Mr Robert Hyde was in receipt of written advice from both the seller and the buyer that the contract would not proceed to completion and that the deposit was to be paid to the buyer.
  2. [49]
    Mr Robert Hyde’s evidence is that he spoke to the buyer’s agent shortly after 21 October 2016 and asked whether the buyer had a domestic bank account into which he wished the funds deposited; rather than the international bank account provided in the 21 October 2016 letter. Shortly after that conversation, the buyer’s agent instructed him to refrain from paying the deposit funds until the details of a domestic bank account were provided. Mr Hyde says that he was provided with the details for the account on 8 November 2016 at 11.24am.
  3. [50]
    Mr Robert Hyde’s evidence is that Mr Cayne Hyde received an email from Mrs Holgar’s solicitors at 1.44 pm on 8 November 2016, advising they were: ‘drafting a settlement statement in respect of this transaction’ and the following was raised: ‘Please let us know if you are holding the full deposit in the amount of $80,000.00’. Unaware of that email, Mr Robert Hyde had refunded the deposit moneys approximately three hours after being given the account details. The ANZ bank receipt reveals a time of 2.15 pm.
  4. [51]
    Mr Cayne Hyde then sent the 8 November 2016 email to Mr Hyde at 4.09 pm.
  5. [52]
    On 10 November 2016, the solicitors for Mrs Holgar formally notified Mr Hyde that a dispute may arise in relation to the deposit and required that the deposit was not to be paid out until both the buyer and Mrs Holgar instructed him how it was to be paid.
  6. [53]
    We consider that, although the letters of 12 August 2016 and 8 September 2016 referred to by the appellant were written at a time when it was apparent that the parties were in dispute, it was not apparent by 8 November 2016 that the parties were in dispute in relation to which of them was entitled to the deposit given the communications with Mr Robert Hyde from both the buyer and seller providing instructions that the deposit be returned to the buyer. Had Mr Robert Hyde received notice of Mrs Holgar’s changed position in relation to the deposit before he paid out the deposit to the buyer, Mr Robert Hyde and REE would not have had a written authority from both parties stating that the buyer is entitled to the deposit, and he would then have been obliged, in light of that fresh dispute, to set in train either s 26 or s 27 of div 5 of the AFA Act. (That is, he could not then have acted in accordance with the existing authorities from Mrs Holgar and the buyer to pay the deposit to the buyer).
  7. [54]
    Mrs Holgar acknowledges that the agent did not have any obligation to investigate whether a dispute as to entitlement to the deposit may exist. Certainly, the AFA Act does not cast any obligation of enquiry onto an agent. However, the tenor of Mrs Holgar’s submission is that Mr Robert Hyde should have acted as if there was a dispute because of his knowledge on 12 August 2016 and 8 September 2016 and entirely discounted the written authority from Mrs Holgar.
  8. [55]
    Even if the Member was in error in failing to attribute knowledge of a dispute to Mr Robert Hyde as a result of the 12 August 2016 and 8 September 2016 emails, such an error does not advance the applicant’s case. The written authorities from the parties as to payment of the deposit were highly relevant. Mr Robert Hyde and REE were entitled to rely upon the authorities pursuant to s 27, as Mr Robert Hyde says that he did. The Member was entitled to find that the effect of the authorities was to suggest to Mr Robert Hyde that any dispute was over.
  9. [56]
    Mrs Holgar submits that the letters strongly suggest Mr Hyde was not acting in good faith or in accordance with his fiduciary duties as her agent. Even if it were possible to draw that inference from the correspondence, we do not think that bears on the question of whether the Member was in error in failing to attribute knowledge of a dispute between the buyer and the seller on the basis of that correspondence as at the time of payment of the deposit to the buyer. We accept the submissions of the Chief Executive, Mr Robert Hyde and REE to this effect.
  10. [57]
    We also accept the submissions of the Chief Executive, Mr Robert Hyde and REE that the absence of reference to the emails in the Member’s findings and reasons is not because they were overlooked, but because they were on 8 November 2016 overtaken by events. In particular, authorities complying with s 27 of the AFA Act were held by REE from both Mrs Holgar and the buyer.
  11. [58]
    To the extent that more broadly, Mrs Holgar submits that Mr Robert Hyde’s evidence was not objectively plausible, by which we understand her to assert that his evidence was not credible, we accept the submissions of Mr Robert Hyde and REE that the conclusion reached by the Member was based upon a consideration of all of the evidence, not just Mr Robert Hyde’s evidence. We accept Mr Robert Hyde and REE’s submission that Mrs Holgar has not identified any error of the Member in assessing the evidence of Mr Robert Hyde.[15] Contrary to Mrs Holgar’s submissions in reply, we accept Mr Robert Hyde and REE’s submissions that the test in House v The King is apposite given the Member had to consider a raft of evidence and,[16] having regard to it, be satisfied as to the credibility of Mr Robert Hyde’s evidence and that the criteria for a claim on the claim fund had been met.[17]
  12. [59]
    We accept REE and Mr Robert Hyde’s submission that Mrs Holgar has not identified how the Member failed to use, or misused, his advantage of having heard and seen the witnesses at the hearing or acted on evidence which was inconsistent with any incontrovertible facts or accepted any evidence that was glaringly improbable.[18] In accepting that submission we acknowledge Mrs Holgar’s submissions in relation to the emails of 12 August 2016 and 8 September 2016, which we have earlier found were overtaken by the parties’ written authorities pursuant to s 27, for disbursement of the deposit. Although the Member’s construction of the AFA Act had proceeded on a different basis, it was appropriate for him to rely upon the authorities for the reasons we have outlined.
  13. [60]
    Contrary to Mrs Holgar’s submissions in reply, the Member did make a finding as to Mr Robert Hyde’s credibility at [73] which went to the threshold issue the Member was required to determine; that is, Mr Robert Hyde’s knowledge of a dispute or possible dispute in relation to the deposit. The Member clearly set out a factual basis for his finding as to Mr Robert Hyde’s credibility; that is, the evidence of Mrs Holgar that she did not tell Mr Robert Hyde about the different views as to the enforceability of the contract as at 8 November 2016 and Mrs Holgar’s evidence that she did not consider she was required to withdraw her earlier instructions to refund the deposit and to keep the real estate agent informed. For these reasons we agree with the submission of REE and Mr Robert Hyde that the decision of DeVries v Australian National Railways Commission provides guidance in considering whether there has been an error in the Tribunal below.[19]
  14. [61]
    At the oral hearing of the appeal proceeding, Mrs Holgar pressed a submission that by 8 November 2016, when Mr Robert Hyde seeks to rely on the 8 September 2016 instruction from Mrs Holgar’s solicitor, the instruction was stale. It was put that the 8 September 2016 instruction was not acted upon, that it had been repudiated by the agent and that this was relevant to his credibility as a witness. It was further submitted that it was not unreasonable to think the agent should have confirmed Mrs Holgar’s instructions before releasing the deposit.
  15. [62]
    The OFT’s representative submitted that it was not a question of what might have been prudent practice, just a question of whether a claimable event had occurred. We accept that submission. Even if the Member had found (which he did not need to do) that he might have had evidence upon which to find Mr Robert Hyde had acted imprudently (which he did not find), we do not consider that is a sufficient basis to conclude that Mr Robert Hyde’s evidence as to his knowledge of a dispute with respect to the deposit should not be accepted because it lacks credibility.

Finding

  1. [63]
    We do not consider the Member made an error of fact in failing to attribute to Mr Robert Hyde an awareness of a dispute as at 8 November 2016 because of his communications of 12 August 2016 and 8 September 2016.
  2. [64]
    This ground of appeal fails. Insofar as leave to appeal is required, leave is not granted on the basis that there is no reasonably arguable case of error by the Member below.

Ground 2 – The learned member made an error of law by failing to take into account a relevant consideration when finding that the second respondent was acting under instructions from both parties.

  1. [65]
    Mrs Holgar’s submissions return to the significance of the letter from Mr Robert Hyde to the buyer’s solicitor, dated 8 September 2016, in her second ground of appeal. Mrs Holgar submits that the Member did not take the letter into account in finding that ‘the agent was acting under instructions from both parties which had not been withdrawn.’ Mrs Holgar complains that the 8 September letter from Mr Hyde was a key aspect of her submissions on the issues of ‘written notice’ under s 27(2)(b).[20]
  2. [66]
    As dealt with in relation to the first ground of appeal, we accept that the 8 September 2016 letter is consistent with Mr Robert Hyde being aware of a dispute between the buyer and Mrs Holgar at that time. However, the letter ceases to have material relevance when subsequent events are taken into account.
  3. [67]
    Mr Robert Hyde submits that he was cross-examined at the hearing below as to the effect of the 8 September 2016 letter and that he responded that he had an opinion as to whether a contract existed at that time but that was irrelevant once he received an instruction from a solicitor, because he was bound to act in accordance with the instruction.
  4. [68]
    Mr Robert Hyde’s submissions also draw attention to an exchange between the Member and Mrs Holgar’s counsel, where the Member asked about the relevance of earlier correspondence when the question before him was whether Mr Hyde should have been aware there was a dispute when the deposit was released.
  5. [69]
    Mrs Holgar submitted that the issues related to background to the dispute and Mr Robert Hyde’s credit in relation to what he said he knew of a dispute.  The Member said it was a matter for submissions. Mrs Holgar’s closing submissions were that it would be unreasonable for REE and Mr Robert Hyde to rely upon the 8 September 2016 authority, provided two months prior, as satisfying the requirements of s 27 of the AFA Act; particularly as REE and Mr Robert Hyde had disregarded that authority on the basis that a contract was on foot and Mrs Holgar was accountable for their commission. It was submitted that, by initially disregarding the authority and subsequently acting upon it without confirming their instructions, REE and Mr Robert Hyde deprived Mrs Holgar of an opportunity to withdraw the authority.
  6. [70]
    The OFT submits that even if a breach of fiduciary duty or failing to act in good faith were to be established, that is not relevant because that conduct is not listed as a prescribed event addressed by the claim fund.[21]
  7. [71]
    The OFT makes the following points:
    1. (a)
      at no point in either of their emails did REE or Mr Robert Hyde claim to speak for Mrs Holgar and nor did they ever contend that the deposit was or was not in dispute. Importantly, the emails were sent well before REE and Mr Robert Hyde received the buyer’s written authorisation to refund the deposit on 21 October 2016.
    2. (b)
      REE and Mr Robert Hyde’s motivations or opinions of Mrs Holgar, the buyer or their dealings simply had no bearing on and did not alter how they handled the deposit.
    3. (c)
      Any dispute about the deposit could only be between the buyer and Mrs Holgar.
    4. (d)
      As at 8 November 2016, Mrs Holgar and the buyer had both directed REE and Mr Robert Hyde in writing to release the deposit to the buyer, which resolved any actual or potential dispute.
    5. (e)
      REE and Mr Robert Hyde had no reason to question the currency of Mrs Holgar’s 8 September 2016 authorisation.
    6. (f)
      Mrs Holgar and the buyer did not withdraw their authorisations.
    7. (g)
      Mrs Holgar understood that REE and Mr Robert Hyde were her agents and it was her place to instruct them, which she had no problem doing in the months before 8 September 2016, and made her own decisions.
    8. (h)
      REE and Mr Robert Hyde were never informed of Mrs Holgar’s changed position, which she concedes.[22]
    9. (i)
      The AFA Act does not permit REE and Mr Robert Hyde to oppose or act against the buyer’s and Mrs Holgar’s express written instructions which ended their dispute.[23]
  8. [72]
    The OFT submits that the absence of reference to the emails from the learned Member’s findings and reasons is not because they were overlooked, but because they were  irrelevant and held insufficient weight as demonstrated by the evidence. Finally, the OFT submits that there is no appellable error in the Member giving Mrs Holgar’s case less weight than she thinks it deserves or in preferring one witness’s evidence or version of events over another, even if reasonable minds may differ. This appeal is not merely an opportunity for the dissatisfied party to reargue the case presented at first instance: error of the Tribunal must be established for the appeal to succeed.[24]
  9. [73]
    In her submissions in reply, Mrs Holgar seeks to advance a further and different complaint. Mrs Holgar goes beyond her ground of appeal that the Member did not consider the 12 August and 8 September 2016 emails (that is, failing to take into account a relevant consideration), and submits further that REE and Mr Robert Hyde in fact had no instructions from Mrs Holgar between 8 September 2016 and 8 November 2016. It is submitted that REE and Mr Robert Hyde acted on the basis of dated information and assumptions. The contention appears to raise an error of fact. We do not consider it falls within the ambit of the grounds of appeal as cast by Mrs Holgar. In any event, we make the observation that even so, error by the Tribunal is not identified by the contention, since the Tribunal proceeded on the basis that no further instructions were received by REE and Mr Robert Hyde after 8 September 2016 until following the refund of the deposit monies to the buyer.
  10. [74]
    We accept the submissions of the OFT, and of REE and Mr Robert Hyde, and conclude that there has been no error of law.

Ground 3 – The learned member made an error of law by, impliedly, taking into account irrelevant considerations

  1. [75]
    Mrs Holgar submits that the Member erred by taking into account her state of mind, which she says was not relevant to the threshold question.
  2. [76]
    It is acknowledged that the issue of Mrs Holgar’s state of mind was not addressed in the reasons, but nevertheless it is said that Mrs Holgar’s answers to questions asked by the Member are prominent in the judgment.
  3. [77]
    The references in the judgment are:
    1. (a)
      questioning as to the original listing price;[25]
    2. (b)
      Mrs Holgar’s knowledge of how real estate agents’ contracts worked;[26]
    3. (c)
      Mrs Holgar’s motivations for seeking to complete the contract with the buyer after initially asserting that no binding contract had been formed;[27]
    4. (d)
      why Mrs Holgar did not keep REE and Mr Robert Hyde informed of developments in her contractual dispute with the buyer, which was being dealt with via their respective solicitors;[28] and
    5. (e)
      an exchange between the Member and Mrs Holgar when he asked why she was unhappy about an offer, being the amount of her counter-offer.[29]
  4. [78]
    The Member referred to the evidence of each of the witnesses and the submissions of each of the parties. As to the significance of the evidence given by Mrs Holgar set out in the decision, on a fair reading, we conclude it formed the basis of the Member’s distillation of the evidence presented and, along with the other evidence, illustrated his conclusion that Mrs Holgar and the buyer each sought to maximise and safeguard their personal position at each point as the events unfolded. The Member said that what can be seen occurring is a fluid dynamic between the two parties, as each considered, and reacted, to the actions of the other.[30]
  5. [79]
    The Member said at [70]:

It is apparent that these strategic manoeuvres were engaged in by the buyer and the owner independently, and involved their lawyers.  The person who was left out of these manoeuvrings was the agent.

  1. [80]
    The point is made in the decision below that Mrs Holgar did not advise REE and Mr Robert Hyde that she was in dispute with the buyer until 10 September 2016. The learned Member notes that Mrs Holgar submitted she was not required to withdraw the earlier instructions to refund the deposit, and to keep the real estate agent informed. For these reasons, the Member found that Mr Robert Hyde’s contentions, that he was not advised that the owner had a dispute as to the deposit as at the date the deposit was paid out and was not aware of any legal interplay between the parties which would have alerted him to a dispute as to the deposit, were credible.
  2. [81]
    On this basis, we conclude that establishing Mrs Holgar’s evidence about the events was relevant to the Member’s ultimate finding that Mr Robert Hyde’s evidence was credible and that, because of the manoeuvrings of each party, there was no basis on which Mr Robert Hyde or REE should have been put on notice as at the date the deposit was paid out that a dispute may arise over who was entitled to the deposit before it was released to the buyer.
  3. [82]
    Mr Robert Hyde and REE make the point that no finding, whether express or implicit, was made by the Member with respect to Mrs Holgar’s state of mind when deciding the threshold question. The OFT submits that the Member merely summarized Mrs Holgar’s evidence, as he did the other witnesses’ evidence, which does not constitute an appellable error, given that he has made no findings as to her state of mind or based any part of his reasons upon it.
  4. [83]
    For the reasons given by us and for the reasons submitted by the OFT, Mr Hyde and REE, we do not think the Member misdirected himself by taking into account irrelevant considerations. We do not think that the Member erred in law as submitted by the appellant. This ground of appeal fails.

Ground 4 – The learned Member made an error of law in finding that the settlement statement email dated 8 November 2016 was not read by Cayne Hyde until after the Second Respondent had deposited funds into the purchaser’s bank account.

  1. [84]
    Mrs Holgar refers to the observation of the Member that it was unclear when Mr Cayne Hyde read the email from her solicitor, dated 8 November 2016, received at Mr Cayne Hyde’s email address at 1.44 pm.[31] Mrs Holgar submits that observation cannot be reconciled with the later finding at [80] that the settlement statement email of 8 November 2016 was not read by REE (through Mr Cayne Hyde), and that the agency did not know of the email, at the time the agent deposited the deposit monies into the account of the buyer.[32] We do not accept that the two statements are not irreconcilable. It is a fair reading of the Member’s reasons that Mr Cayne Hyde had not read the email received at 1.44 pm until sometime after deposit of the deposit moneys at 2.15 pm, even though it cannot be said with certainty when it was read.
  2. [85]
    REE and Mr Robert Hyde submit that there was no evidence before the Member that Mr Cayne Hyde read the settlement statement email of 8 November 2016 before the deposit was released. The point is made that it was not put to Mr Cayne Hyde that he received the email, read it and kept it from his father for, at minimum, 29 minutes, but in fact, some two hours later so the deposit could be paid out. They say that it was only necessary for the Member to decide whether Mr Cayne Hyde had read and alerted Mr Robert Hyde to the email prior to 2.15 pm on 8 November 2016. That is said to be because actual, not constructive, knowledge was required as to the contents of that email.
  3. [86]
    REE and Mr Robert Hyde point to Mr Cayne Hyde’s evidence that:

I did not discuss the email I had received from Mrs Holgar’s solicitors at 1.44 pm on 8 November 2016 with the third respondent before forwarding it to him at 4.09 pm on 8 November 2016.

  1. [87]
    The OFT submits that it was not necessary for the Member to find precisely when Mr Cayne Hyde read the email, because the evidence established that neither he nor REE and Mr Robert Hyde saw it before 2.15 pm on 8 November 2016. The OFT points to the following evidence for what he says is abundant support for the Member’s findings that neither Mr Cayne Hyde nor REE and Mr Robert Hyde were aware of the settlement statement email before the deposit was released:
    1. (a)
      Mr Robert Hyde did not see or recall having any discussions with Mr Cayne Hyde on the morning of 8 November 2016 before he left to release the deposit;
    2. (b)
      on 8 November 2016, Mr Cayne Hyde arrived at the office at around 1:00 pm and left at around 2:00 pm, shortly after the settlement statement email was sent to him. Mr Cayne Hyde could not recall if he was at his desk or elsewhere in the office nor could he recall seeing the email at this time;
    3. (c)
      Mr Cayne Hyde does not check his emails ‘very regularly’ when he is out of the office and does not recall seeing the email when he was out;
    4. (d)
      Mr Robert Hyde and Mr Cayne Hyde do not have access to each other’s email accounts;
    5. (e)
      the settlement statement email did not attach a copy of Mrs Holgar’s solicitor’s draft settlement statement; and
    6. (f)
      Mr Cayne Hyde forwarded the settlement statement email to Mr Robert Hyde at 4.09 pm on 8 November 2016, nearly 2 hours after the deposit was released.
  2. [88]
    The OFT submits that an appeal tribunal will not interfere with the Member’s findings of fact where the evidence is capable of supporting his conclusions,[33] and that there is no error of law in the Member making a wrong finding unless there is no evidence to support it.[34]
  3. [89]
    Finally, the OFT submits that:
    1. (a)
      the Member did not err as alleged because it is logically consistent to find that it is unclear precisely when the settlement statement email was read, but still conclude that it was not read until sometime after a particular event has occurred. The evidence in the material supports the Member’s conclusion.
    2. (b)
      Even if there is some inconsistency, it makes no material difference, because the evidence supports the Member’s ultimate conclusion. An appeal is not a chance to nit-pick the first instance decision and nor should an appellate body be troubled with appeals about minor, inconsequential errors.[35]
  4. [90]
    We accept the OFT’s submissions (which are echoed by submissions of REE and Mr Robert Hyde).  We conclude that there has been no error of law or fact on the part of the Member in finding that Mr Cayne Hyde did not read an email, which may have alerted Mr Robert Hyde to a dispute as to the deposit, until after the deposit had been returned to the buyer. We adopt the OFT’s submissions regarding the available evidence upon which the Member could rely in finding that Mr Cayne Hyde did not read the 8 November 2016 email until after the deposit had been released and reject Mrs Holgar’s submissions in reply that there was no evidence before the Tribunal to support a positive conclusion in that regard.
  5. [91]
    To the extent that the ground of appeal relates to an alleged error of fact, rather than an error of law as contended for by Mrs Holgar, we find that there is no reasonably arguable ground of appeal related to this contention such that leave to appeal should be granted. The ground of appeal fails.

Conclusion

  1. [92]
    The application for leave to appeal or appeal is dismissed.

Footnotes

[1]Holgar v Chief Executive, Department of Justice and Attorney-General & Ors [2019] QCAT 370; Agents Financial Administration Act 2014 (Qld) (‘AFA Act’).

[2]Exhibits 9 and 10 – Form 6 appointment and Re-appointment of a property agent, Part 2 and clause 10.

[3]Amended Submissions on behalf of the appellant, filed 3 August 2020. At the hearing of the Application for leave to appeal or appeal, leave was granted to amend the grounds of appeal consistent with the grounds of appeal set out in the amended submissions filed 3 August 2020.

[4]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142(3)(b) (‘QCAT Act’).

[5]Ibid, s 147(2).

[6]Seymour v Racing Queensland Limited [2013] QCATA 179, [18].

[7]QCAT Act, s 147; Ericson v Queensland Building Services Authority [2013] QCA 391; Harrison v Meehan [2017] QCA 315; Partington v Urquhart (No 2) [2018] QCATA 120.

[8]AFA Act, s 6.

[9]AFA Act, s 22(3).

[10]AFA Act, s 22(3) and (4).

[11]As to the definition of ‘transaction fund’ see AFA Act, s 22(6).

[12]Woodgate Beach Asian Pacific Realty Pty Ltd v Gerard [2010] QCATA 64, Amundsen v Queensland College of Teachers [2011] QCATA 2, [6].

[13]Land Sales and Other Legislation Amendment Act 2014 (Qld),s

[14]Holgar v Chief Executive, Department of Justice and Attorney-General & Ors [2019] QCAT 370, [45].

[15]House v The King [1936] 55 CLR 499, 505.

[16]Ibid.

[17]Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (1986) 161 CLR 513, 205 [20].

[18]De Vries v Australian National Railways Commission [1993] 177 CLR 472, 479; Imbrogno v Brisbane City Council [2017] QCATA 148.

[19]Ibid.

[20]Closing submissions on behalf of the applicant filed 17 December 2018, [32]-[35], AB 356-357; Applicant’s closing submissions in response filed 5 February 2019, [3]-[6], [15]-[23], [27], [84]-[85], AB 399-403, 414.

[21]Agents Financial Administration Act 2014 (Qld), s 82(1); Peter & Anor v Tyson [2015] QCATA 9, [13]; Garwood v Tiralees Pty Ltd and Ors [201] QCAT 541, [12]; Murphy, H v Hancock, D and Taylor, JM t/as Montville, Mapleton & Maleny Real Estate [2004] QCCTPAMD 10, [20]-[22].

[22]Appeal Book, 335, [14], 364, 365.

[23]AFA Act, ss 22(5), 26(5), 27, 28.

[24]Elshona Property Pursuit [2019] QCATA 57, [18]; Payne v APN News & Media [2016] QCATA 140, [37].

[25]Holgar v Chief Executive, Department of Justice and Attorney-General & Ors [2019] QCAT 370, [24].

[26]Ibid, [26].

[27]Ibid, [28], [30].

[28]Ibid, [28].

[29]Ibid, [29].

[30]Ibid, [60].

[31]Ibid, [76].

[32]Ibid, [80].

[33]Dearman v Dearman [1908] HCA 84, Griffith CJ’s judgment; Slater v Wilkes [2012] QCATA 12, [6].

[34]Waterford v Commonwealth [1987] HCA 25, [14].

[35]Recreation and Competitive Events Resources & Services Pty Ltd & Anor v Champion’s Ride Days Pty Ltd [2020] QCA 90, [16]-[22]; Payne v APN News & Media [2016] QCATA 140, [37].

Close

Editorial Notes

  • Published Case Name:

    Holgar v Chief Executive, Department of Justice and Attorney-General & Ors

  • Shortened Case Name:

    Holgar v Chief Executive, Department of Justice and Attorney-General

  • MNC:

    [2021] QCATA 113

  • Court:

    QCATA

  • Judge(s):

    Senior Member Howard, Member Fitzpatrick

  • Date:

    15 Sep 2021

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Amundsen v Queensland College of Teachers [2011] QCATA 2
2 citations
Jump To
Cite 1 - [2011] QCATA 2
Cite 2 - [2011] QCATA 2
Dearman v Dearman (1908) [1908] HCA 84
2 citations
Jump To
Cite 1 - [1908] HCA 84
Cite 2 - [1908] HCA 84
Devries v Australian National Railways Commission (1993) 177 CLR 472
2 citations
Jump To
Cite 1 - (1993) 177 CLR 472
Cite 2 - (1993) 177 CLR 472
Elshohna v Property Pursuit [2019] QCATA 57
2 citations
Jump To
Cite 1 - [2019] QCATA 57
Cite 2 - [2019] QCATA 57
Ericson v Queensland Building Services Authority [2013] QCA 391
2 citations
Jump To
Cite 1 - [2013] QCA 391
Cite 2 - [2013] QCA 391
Garwood v Tiralees Pty Ltd and Ors [2012] QCAT 541
2 citations
Jump To
Cite 1 - [2012] QCAT 541
Cite 2 - [2012] QCAT 541
H v Hancock [2004] QCCT PAMD 10
2 citations
Jump To
Cite 1 - [2004] QCCT PAMD 10
Cite 2 - [2004] QCCT PAMD 10
Harrison v Meehan [2017] QCA 315
2 citations
Jump To
Cite 1 - [2017] QCA 315
Cite 2 - [2017] QCA 315
Holgar v Chief Executive, Department of Justice and Attorney-General [2019] QCAT 370
11 citations
Jump To
Cite 1 - [2019] QCAT 370
Cite 2 - [2019] QCAT 370
Cite 3 - [2019] QCAT 370
Cite 4 - [2019] QCAT 370
Cite 5 - [2019] QCAT 370
Cite 6 - [2019] QCAT 370
Cite 7 - [2019] QCAT 370
Cite 8 - [2019] QCAT 370
Cite 9 - [2019] QCAT 370
Cite 10 - [2019] QCAT 370
Cite 11 - [2019] QCAT 370
House v The King (1936) 55 CLR 499
2 citations
Jump To
Cite 1 - (1936) 55 CLR 499
Cite 2 - (1936) 55 CLR 499
Imbrogno v Brisbane City Council [2017] QCATA 148
2 citations
Jump To
Cite 1 - [2017] QCATA 148
Cite 2 - [2017] QCATA 148
Norbis v Norbis (1986) 161 C.L.R., 513
2 citations
Jump To
Cite 1 - (1986) 161 C.L.R., 513
Cite 2 - (1986) 161 C.L.R., 513
Partington v Urquhart (No 2) [2018] QCATA 120
2 citations
Jump To
Cite 1 - [2018] QCATA 120
Cite 2 - [2018] QCATA 120
Payne v APN News & Media [2016] QCATA 140
3 citations
Jump To
Cite 1 - [2016] QCATA 140
Cite 2 - [2016] QCATA 140
Cite 3 - [2016] QCATA 140
Peter & Anor v Tyson [2015] QCATA 9
2 citations
Jump To
Cite 1 - [2015] QCATA 9
Cite 2 - [2015] QCATA 9
Recreation and Competitive Events Resources & Services Pty Ltd v Champion's Ride Days Pty Ltd [2020] QCA 90
2 citations
Jump To
Cite 1 - [2020] QCA 90
Cite 2 - [2020] QCA 90
Seymour v Racing Queensland Ltd [2013] QCATA 179
2 citations
Jump To
Cite 1 - [2013] QCATA 179
Cite 2 - [2013] QCATA 179
Slater v Wilkes [2012] QCATA 12
2 citations
Jump To
Cite 1 - [2012] QCATA 12
Cite 2 - [2012] QCATA 12
Waterford v The Commonwealth [1987] HCA 25
2 citations
Jump To
Cite 1 - [1987] HCA 25
Cite 2 - [1987] HCA 25
Woodgate Beach Asian Pacific Realty Pty Ltd v Gerard [2010] QCATA 64
2 citations
Jump To
Cite 1 - [2010] QCATA 64
Cite 2 - [2010] QCATA 64

Cases Citing

Case NameFull CitationFrequency
Holgar v The Chief Executive, Department of Justice and Attorney-General, Office of Fair Trading (Costs) [2023] QCAT 4082 citations
Khadka v Chief Executive, Department of Justice and Attorney-General, Office of Fair Trading [2023] QCAT 4503 citations
Lin v Chief Executive, Department of Justice and Attorney-General, Office of Fair Trading [2024] QCAT 3712 citations
1

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