Storry v Office of Fair Trading
[2021] QCATA 127
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- Unreported Judgment
- Storry v Office of Fair Trading[2021] QCATA 127
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Storry v Office of Fair Trading[2021] QCATA 127
Storry v Office of Fair Trading[2021] QCATA 127
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Storry v Office of Fair Trading [2021] QCATA 127 |
PARTIES: | Venetia storry |
(applicant/appellant) | |
v | |
Office of fair trading | |
(respondent) | |
APPLICATION NO/S: | APL 109-20 |
ORIGINATING APPLICATION NO/S: | GAR 009-19 |
MATTER TYPE: | Appeals |
DELIVERED ON: | 8 October 2021 |
HEARING DATE: | 18 December 2020 |
HEARD AT: | Brisbane |
DECISION OF: | Senior Member Aughterson Member Paratz AM |
ORDERS: | The application for leave to appeal or appeal filed on 29 April 2020 is dismissed. |
CATCHWORDS: | APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – OTHER CASES – whether decision-maker made findings of fact which were not supported by the evidence – whether findings of fact were open on the evidence to decision-maker – whether error of law Agents Financial and Administration Act 2014 (Qld) s 18, s 42 |
APPEARANCES & REPRESENTATION: | |
Applicant: | Self-represented |
Respondent: | R. Berry of Counsel, instructed by the Assistant Crown Solicitor. |
REASONS FOR DECISION
- [1]The Tribunal made a decision on 1 April 2020 confirming the decisions of the Department of Justice and Attorney-General – Office of Fair Trading to make directions under section 42 of the Agents Financial Administration Act 2014 (Qld) (‘AFA Act’) on 4 September 2018, 12 October 2018, 8 November 2018 and 14 December 2018.
- [2]An Application for leave to appeal or appeal the decision of the Tribunal was filed on 29 April 2020.
- [3]The appeal was heard by way of written submissions and an oral hearing, with further written submissions thereafter.
- [4]These are the reasons on the Appeal.
History
- [5]The decisions in contention related to the restriction of trust accounts of the business Anthony Storry Real Estate (‘ASRE’), such that they could be operated only by the Office of Fair Trading or a receiver appointed by the Office of Fair Trading.
- [6]The appellant, Venetia Storry, is the daughter of Anthony Storry who had built up ASRE for many decades. ASRE managed the rental of many residential and commercial properties on behalf of its clients.
- [7]Ms Storry stepped in to run ASRE in 2016 when her father became too ill to continue. The Auditor engaged to audit ASRE’s trust account for the 2017 calendar year delivered his report on 31 July 2018 to Ms Storry, and to the Office of Fair Trading, which identified a large number of errors in the trust account transactions.
- [8]Mr Storry died on 31 August 2018.
- [9]The Office of Fair Trading issued the first decision in contention on 4 September 2018, that an amount must not be drawn from ASRE’s trust account other than with the Chief Executive’s written approval.
- [10]The Office of Fair Trading issued the second decision in contention on 12 October 2018, that the ASRE trust account may only be operated by a receiver, Julie Williams, appointed over the trust property of Mr Storry including ASRE’s trust account. That decision was withdrawn on 14 December 2018.
- [11]The Office of Fair Trading issued the third decision in contention on 8 November 2018 that an amount must not be drawn from ASRE’s trust account other than with the Chief Executive’s written approval.
- [12]The Office of Fair Trading issued the fourth decision in contention on 14 December 2018, that ASRE’s trust account may only be operated by Ms Williams.
- [13]The receivership ended on 21 May 2019, when the remaining funds in the ASRE trust account were transferred to the Office of Fair Trading claim fund, and control of the ASRE trust account was returned to Ms Storry.
Grounds of Appeal
- [14]Ms Storry represented herself on the appeal. In her application for leave to appeal or appeal, she did not identify grounds of appeal in a conventional way. In the relevant section of the application form she specified the grounds of appeal as ‘error of law’ and ‘error of facts’ and referred to a four page attachment.
- [15]The attachment discusses the four decisions of the Office of Fair Trading. An overall ground is that the legal test applied to each of the four decisions by the Tribunal:[1]
contains as error of law – legal test was applied arbitrarily – the decision was not reasonably open and the evidence reasonably admits a different conclusion
- [16]An overall ground as to facts is set out as follows:[2]
Facts not considered and applied for the decision that clients were less placed at risk or protected by the 4 decisions.
Utility of the appeal
- [17]Ms Storry is strongly motivated by a desire to protect her father’s reputation, and said at the hearing that she had fought these issues as a matter of principle.
- [18]At the commencement of the Appeal Hearing, the Appeal Tribunal canvassed the question of utility of the Appeal, as the relevant financial matters in relation to ASRE were finalised by the receiver. The parties subsequently filed written submissions in relation to that issue.
- [19]The Office of Fair Trading submitted that when considering the issue of utility, the Appeal Tribunal could take into account Ms Storry’s submissions as to the effect of the original decision on her reputation and the reputation of her business, and may then balance the factors outlined by both Ms Storry and the Office of Fair Trading in determining how to exercise its discretion with respect to the Appeal proceedings.[3]
- [20]Ms Storry submitted that the question of utility had been raised in the course of the proceedings at a directions hearing in December 2018, and subsequently, and the matter had proceeded without objection.
- [21]
- Without the freezing of the trust funds of ASRE and SRE,[6] clients of the agency would never had been misled and a true reconciliation would have taken place in November 2018 and any shortfall resulting from the bookkeeper falling behind would have been paid to the clients.
- Instead, the business and the SRE trust have been decimated; clients have been misled and not paid sums available to them from predominantly frozen funds. This remains a live issue.
- The handing back of the trust of SRE came 5 months after the last transaction was deposited into the trust and in kind, the clients had to wait until the errors that the receiver made in the trust of ASRE were dealt with.
- [22]Ms Storry also submitted that the appeal would serve as a precedent:[7]
The appeal of the review is necessary to the precedence of this matter in general and to the agency as a business. Consumers are best protected when agents and compliance work together not against each other with clients income being collateral damage in the middle.
- [23]Whilst the immediate financial matters of ASRE have been determined by the receiver, there may still be financial ramifications of the decisions of the Office of Fair Trading as alluded to by Ms Storry. Further, the alleged reputational damage to Ms Storry, her father, and ASRE, are matters which have a value and importance.
- [24]We are satisfied that the possible financial implications, and the issues of reputational damage, do provide sufficient utility for the appeal to be considered and determined.
Submissions of Ms Storry
- [25]Ms Storry takes issue with numerous findings of the Tribunal and submits that:[8]
the proceeding should be returned back to the Tribunal as careful consideration of the exhibits renders a different result for that discretionary decisions that are lawful to a full consideration of that which is preferable.
- [26]In her submissions, Ms Storry refers to the Tribunal’s findings in relation to each of the four decisions in contention and identifies what she sees as errors of fact or law. In effect, her submissions go through the decision of the Tribunal, and take issue with the Member’s findings.
- [27]An appeal is not a rehearing of the original application. An appellant must show actual errors in the consideration of the Tribunal, and not simply allege that an alternative finding should have been made.
- [28]It is difficult to discern the specific errors of fact or law which Ms Storry relies on, in view of the lack of identification of specific Grounds of Appeal and the narrative style of her submissions.
- [29]We do not propose to sequentially address each and every one of the alleged issues referred to by Ms Storry in her submissions, as they are difficult to correlate to any specific alleged error of fact or law.
- [30]Ms Storry does appear to refer to identified errors in her first submission, although they are difficult to categorise. These appear to be as to:
- a)errors as to the proceedings in the Tribunal and in the Supreme Court[9]
- b)errors as to proper consideration of the testimony of Janey McGregor of the Office of Fair Trading[10]
- c)errors as to the auditor Dallas Beauchamp and the trust account balance for ASRE[11]
- d)errors of quantum facts which the Tribunal failed to consider[12]
- e)that the question of dishonesty of Dallas Beauchamp was not one raised but the question of lack of competency and untimely reporting[13]
- f)that the correct and preferable decision as to the first decision under review was not made[14]
- g)that the decision confuses the chronological order of what was agreed to be the case in reference to the balances and the topping up of the trust account[15]
- h)that there were two distinct errors in the decision to uphold Decision 2 to issue a direction that the receiver control the trust account of ASRE applied by the Tribunal – that the balance of Dallas Beauchamp is reliable; and that the Office of Fair Trading also requested Ms Storry to top up the trust account prior to achieving a reconciliation;
- i)that the Tribunal made a significant error in following the Office of Fair Trading’s memorandum that the same circumstances existed on the 8th of November as there did on 14 December[16]
- [31]The central complaint of Ms Storry is that the Office of Fair Trading should not have frozen either account and should have worked with the agent.[17]
- [32]In her second set of submissions[18], which were in response to the submissions of the Office of Fair Trading, Ms Storry again canvasses the specific evidence and disagrees that the correct and preferable decision was made by the Tribunal.
Submissions of the Office of Fair Trading
- [33]The Office of Fair Trading submits that Ms Storry has not demonstrated error in the Tribunal’s decision, or that there is a need to correct a substantial injustice.[19]
- [34]We will refer to its submissions in relation to each decision.
Decision 1
- [35]It submits that Ms Storry alleges errors in the Tribunal’s reasoning which can generally be described as follows:
- (a)the Tribunal relied on a ‘faulty audit report‘, did not consider Bill Dingle’s (an accountant) report, and did not take into account that the respondent made the decision one month after ‘knowing of the audit report’;
- (b)Ms McGregor, an inspector employed by the respondent, did not hold formal qualifications in real estate or finance and nor did her supervisor. An accountant was consulted only after the decision was made; and
- (c)the clients whose funds were impacted by the decision ‘objected to these decisions’ and were ‘not being protected by the decision’.
- [36]It submits that the Tribunal dealt with these issues in (a) by noting the disciplinary findings against Mr Beauchamp, noting the applicant’s submissions in relation to the timing of the decision and its proximity to the respondent’s receipt of the audit report, and considered the applicant’s submissions regarding the impact of the decision on owners, tenants and agents, and that:[20]
Overall, the Tribunal provided detailed and careful reasons for its conclusion that it had formed a reasonable belief that the applicant had misapplied, or may have misapplied, trust money. It accepted the evidence before it that: there had been a shortfall in the relevant trust account that had not been reported to the respondent in the 2016 audit period; an excess of funds had been drawn from the trust account as commission and let fees; and as at 31 December 2017, the trust account had a shortfall. It also accepted evidence that a standard commission check had been taken out each month, based upon projected rather than actual rents.
- [37]It submits that the Tribunal dealt with these issues in (b) by noting the applicant’s submissions with respect to the qualifications of staff members in the context of decision 2; that Ms McGregor is an appointed inspector under the AFA Act, and is a senior compliance officer employed by the respondent, has worked in a compliance role for many years and has years of experience in financial investigations, and there is no requirement for her to have accounting or real estate qualifications to fulfil her role.[21]
- [38]It submits that the Tribunal dealt with these issues in (c) by considering the applicant submissions regarding the impact of the decision on owners, tenants and agents; that the Tribunal expressly took into account the ‘potential ramifications for a range of people’ and highlighted the focus on the objects provision of the AFA Act on the protection of consumers from financial loss in dealings with agents.
- [39]It submits that all these factors were properly taken into account by the Tribunal, and that no error has been demonstrated by Ms Storry.
Decision 2
- [40]It submits that Ms Storry alleges that the decision of the Tribunal ‘was not reasonably open and the evidence reasonably admits a different conclusion’, but that the Tribunal set out detailed considerations with respect to this decision in its reasons,[22] and that the circumstances were identified for a belief on reasonable grounds under s 42 of the AFA Act that there had been, or may have been, misappropriation of trust money by an agent.[23]
- [41]It submits that the Tribunal did not err in its consideration of the evidence or in reaching its conclusion that the most appropriate exercise of discretion was to issue the direction under section 42 of the AFA Act, and that no error has been demonstrated by Ms Storry.[24]
Decision 3
- [42]The Office of Fair Trading notes that the relevant issue raised by Ms Storry was that Storry Real Estate Pty Ltd collected rent without a relevant appointment, as required under the Property Occupations Act 2014 (Qld), and that such payments were not permitted to be deposited into the trust account due to the operation of section 18 of the AFA Act.[25]
- [43]It notes that the Tribunal concluded that circumstances existed at the relevant time for a belief on reasonable grounds that Ms Storry had, or may have, misapplied trust money in the Storry Real Estate Pty Ltd trust account, and that the appropriate exercise of this discretion in section 42 of the AFA Act was to make the direction in relation to decision 3[26], and that the Tribunal took appropriate matters into account:[27]
- In making this decision, the Tribunal took into account the matters that the applicant now sets out in the application for leave to appeal. Specifically, the Tribunal outlined and took into account the applicant’s submissions with respect to the following issues:
- a)the circumstances and chronology of events with respect to the form 6 appointments to act as property agent;
- b)the relationship, and nature of agreements, between Kambos Pty Ltd and ASRE
- c)the legal advice the applicant received and reasons for the delay in obtaining the relevant appointment;
- d)the Court proceedings challenging the appointment of a receiver, the relocation of business premises, arranging for the burial of her father, dealing with a client’s sale of a house, engaging an accountant to ‘unravel’ Mr Beauchamp’s report, and the assertion that the clients were ‘relieved’ to have funds released from the control of the receiver; and
- e)the effect of the respondent’s actions on the applicant’s clients and her business during a most difficult period.
- [44]It submits that the Tribunal correctly stated that, despite the circumstances, it was not lawful for Storry Real Estate Pty Ltd to collect the rent without a signed appointment to act as a property agent for a person in the approved form,[28] and that no error has been demonstrated by Ms Storry.
Decision 4
- [45]The Office of Fair Trading submits that the Tribunal noted that there had been two significant changes, since decision 3 had been made, at the time when decision 4 was made; firstly, that Ms Storry had arranged for clients to sign form 6 appointments as property agent and, secondly, that a receiver had been appointed for Storry Real Estate Pty Ltd’s trust property including its trust account.[29]
- [46]It submits that the Tribunal concluded that many of the considerations relevant to a decision under section 42 of the AFA Act remained unaltered, and that whilst the Form 6 appointments reduce the arguments in favour of intervention, the appointment of a receiver meant that it would be pointless to leave the applicant with the ability to operate a trust account, and that on balance, the correct and preferable decision was to issue the relevant direction.[30]
- [47]It submits that none of the assertions raised by Ms Storry in the application for leave to appeal reveals an error in the Tribunal’s decision in relation to decision 4.[31]
Transfer of Proceeding
- [48]The Office of Fair Trading notes that Ms Storry takes issue with the Tribunal’s reasoning with respect to the application to transfer the proceedings to a court, and refers to her application in her written submissions to transfer the matter of the appointment of a receiver to a court for judicial review, and submits that the Tribunal’s conclusions were clearly correct:[32]
43. The Tribunal did not consider it appropriate to do so. The Tribunal noted that the applicant had brought a judicial review proceeding in the Supreme Court before the review in the Tribunal was commenced, and that she had discontinued that proceeding. The Tribunal stated that whether a further such proceeding could now be pursued was unclear. Any such proceeding would now be well out of time, and in any event, would be of no obvious practical utility given that the receiver had finished her role. It is respectfully submitted that these conclusions were clearly correct.
- [49]It submits that no error has been demonstrated in this aspect of the Tribunal’s reasons.[33]
Conclusion
- [50]Notwithstanding the unconventional presentation of the Application for leave to appeal or appeal, and of the Grounds of Appeal in that Application, and of the submissions by Ms Storry, we have considered her Application and submissions and have apprehended the basis of her appeal as best we can.
- [51]Generally, we accept the submissions of the Office of Fair Trading.
- [52]The decision of the Tribunal was carefully considered. We have not identified, and do not find, any error by the Member, either as to fact or law.
- [53]Leave to appeal is refused, and the application for leave to appeal or appeal is dismissed.
Footnotes
[1] Application for leave to appeal or appeal, attachment, p 1.
[2] Ibid, 4.
[3] Respondent supplementary outline of submissions 22 December 2020, [16] and [17].
[4] Appellants third response 19 January 2021, [9].
[5]Ibid, [22]-[24].
[6] Storry Real Estate Pty Ltd.
[7] Appellant’s third response 19 January 2021, [26].
[8] Appellant’s submission 2 October 2020 p 15.
[9] Ibid, 10.
[10] Ibid, 3.
[11]Ibid, 5.
[12]Appellant’s submission filed 2 October 2020, 5.
[13]Ibid, 6.
[14]Ibid, 7.
[15]Ibid, 8.
[16] Ibid, 15.
[17]Ibid.
[18] Appellant’s second response filed 20 November 2020.
[19]Respondent's outline of submissions filed 30 October 2020, [2].
[20] Respondent's outline of submissions filed 30 October 2020, [21(a)].
[21]Ibid, [21(b)].
[22]Ibid, [22].
[23] Ibid, [21(c)].
[24] Respondent's outline of submissions filed 30 October 2020, [23].
[25]Ibid, [28].
[26]Ibid, [32].
[27] Ibid, [33].
[28]Ibid, [34] and [35].
[29] Respondent's outline of submissions filed 30 October 2020, [37].
[30]Ibid, [38].
[31]Ibid, [39].
[32]Ibid, [43].
[33]Ibid, [44].