Chief Executive, Department of Tourism, Racing & Fair Trading v Hunter
[2002] QDC 272
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- Chief Executive, Department of Tourism, Racing & Fair Trading v Hunter[2002] QDC 272
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Chief Executive, Department of Tourism, Racing & Fair Trading v Hunter[2002] QDC 272
Chief Executive, Department of Tourism, Racing & Fair Trading v Hunter[2002] QDC 272
DISTRICT COURT OF QUEENSLAND
CITATION: |
|
PARTIES: | CHIEF EXECUTIVE, DEPARTMENT OF TOURISM, RACING AND FAIR TRADING Appellant v ROBERT HUNTER AND CATHERINE HUNTER Respondent and CHRISTOPHER RUSSELL BILBOROUGH Appellant v ROBERT HUNTER AND CATHERINE HUNTER First Respondent and NATIONAL ASSET PLANNING CORPORATION LTD (IN LIQUIDATION) Second Respondent |
FILE NO/S: | 1. 3159 of 2002 2. 3176 of 2002 |
DIVISION: | Civil jurisdiction |
PROCEEDING: | Appeals against parts of decisions of the Property Agents and Motor Dealers Tribunal |
ORIGINATING COURT: | Property Agents and Motor Dealers Tribunal |
DELIVERED ON: | 26 September 2002 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 17 September 2002 |
JUDGE: | Britton SC, DCJ |
ORDER: | (1)In respect of Appeal No. 3159/02:-The appeal is dismissed.(2)In respect of Appeal No. 3176/02:-(i)The appeal is allowed;(ii)That part of the order of the PropertyAgents and Motor Dealers Tribunal handed down on 26 June 2002 whereby the Fourth Respondent, Christopher R. Bilborough was found liable for the Applicant’s financial loss of $113,166.64 and that he reimburse the claim fund in the amount of $113,166.64 be set aside. |
CATCHWORDS: | Appeal and New Trial – Appellate jurisdiction – appeal from Property Agents and Motor Dealers Tribunal – whether Chief Executive has standing to appeal Appeal and New Trial – Points and objections not taken below – whether Chief Executive’s right of appeal on a question of law is limited to questions raised before the Tribunal. Inferior Tribunals – Property Agents and Motor Dealers Tribunal – Appeal to District Court – whether Tribunal made an error law – Costs of appeal. Auctioneers and Agents Act 1971 secs. 72, 73, 125 Property Agreements and Motor Dealers Act 2000, secs 475, 481, 488, 489, 490, 537, 492(4), 540, 604. |
COUNSEL: | Mr R Lilley for Appellant Chief Executive Mr R Bain QC with him Ms D.A. Skennar for the Respondents Mr T Bradley for the Appellant Bilborough Mr A Ross as amicus curiae (Appeal 3176/2002) |
SOLICITORS: | Crown Solicitor for Appellant Carter Capner for Respondent Lynch and Company for Bilborough |
- [1]These two appeals were heard together. They both arise out of the one proceeding before the Property Agents and Motor Dealers Tribunal.
The Chief Executive’s Appeal
- [2]Appeal No 3159 of 2002 is an appeal by the Chief Executive, Department of Tourism, Racing and Fair Trading (“the Chief Executive”) against those parts of the decision of the Property Agents and Motor Dealers Tribunal (“the Tribunal”) dated 26 June 2002 (“the Decision”) whereby the Tribunal ordered:-
- (i)That the Chief Executive pay to Robert Hunter and Catherine Hunter (“the Hunters”) from the claim fund defined in the Property Agents and Motor Dealers Act 2000 (“PAMDA”) (“the claim fund”) the sum of $40,847.00 being the income losses referred to in paragraphs 45 and 58 of the decision;
- (ii)that the Chief Executive pay to the Hunters from the claim fund the sum of $1,868.00 for interest;
- (iii)that the Chief Executive pay to the Hunters from the claim fund the sum of $13,182.64 for costs.
The Tribunal Proceedings and Decision
- [3]The Hunters made a claim against the Auctioneers and Agents Fidelity Guarantee Fund (“the former fund”) pursuant to s. 119 of the Auctioneers and Agents Act 1971 (the repealed Act”). The claim was in respect of pecuniary loss suffered by the Hunters because of the alleged contravention of certain provisions of the repealed Act by National Asset Planning Corporation Pty Ltd (“NAPC”).
- [4]The repealed Act was repealed by PAMDA which commenced on 1 July 2001.
- [5]Section 604 of PAMDA provides as follows:-
“(1)The rights and liabilities of the former fund are taken to be the rights and liabilities of the claim fund.
- (2)A claim that has been made against the former fund, and not finished before the commencement, continues as if it were a claim against the claim fund.
- (3)If, before the commencement, a person could have made a claim against the former fund but did not make the claim, the person may make the claim against the claim fund.
- (4)If, before the commencement, the committee had started proceedings to recover an amount paid out of the former fund, the proceeding is taken to have been started by the chief executive as if the amount had been paid out of the claim fund.”
- [6]Consequently, the Tribunal heard and determined the claim.
- [7]The claim arose out of the purchase by the Hunters of a town house (“the town house”) for the sum of $159,900.00. NAPC was described in the contract as the agent.
- [8]The Tribunal found:-
- (i)That NAPC was, in relation to the dealings with the Hunters, a real estate agent as defined in s. 2 of the repealed Act and a licensee/prescribed person for the purposes of s. 119 of the repealed Act. (Decision para. 29).
- (ii)That NAPC through James Courtney Atkinson (who was also a respondent to the claim) and Stephen Quinlivan had contravened s. 72 of the repealed Act by making misleading statements of representations to the Hunters concerning the townhouse. (Decision para. 41)
- (iii)That NAPC had contravened the provisions of s. 73 of the repealed Act by failing to provide to the Hunters the statement required by that section. I will return to this finding later in relation to Appeal No. 3176/2002. (Decision para. 43)
- (iv)That the Hunters had suffered pecuniary loss because of the contraventions by NAPC of ss 72 and 73 of the repealed Act. (Decision paras 44-58).
- (v)That the total loss suffered by the Hunters was $99,984.00 made up as follows:
Capital loss$43,900
Incidental costs$10,376
Losses relating to income$40,847
Other costs$1,993
Interest on income losses$1,868
TOTAL$99,984 (Decision Para. 58)
- (vi)That it was appropriate to award costs (Decision para. 59).
- (vii)That costs should be awarded in the sum of $13,182.65 which was apparently an amount assessed on the District Court scale where the amount recovered is greater than $50,000.00 and that this amount was to be included in the Hunters’ financial loss. (Decision para. 60)
- (viii)That the persons responsible for the Hunters’ financial loss were NAPC, Atkinson and Bilborough who were all jointly and severally liable to reimburse the claim fund for the amount paid to the Hunters from the fund. (Decision para 70)
- [9]Formal orders were made by the Tribunal:-
- (i)That the Chief Executive pay from the claim fund to the Hunters the sum of $113,166.64;
- (ii)That NAPC, Atkinson and Bilborough are liable for the Hunters’ financial loss of $113,166.64 and that they reimburse the claim fund in that amount in accordance with s. 530 of PAMDA.
- [10]The Chief Executive’s appeal is essentially against the quantum of the assessment by the tribunal of the Hunters’ financial loss and in particular against the inclusion in that assessment of the items allowed for “Losses relating to Income - $40,847” and “Interest on Income Losses - $1,868” and against the order whereby the Chief Executive is to pay the Hunters’ costs from the claim fund.
- [11]Section 540 of PAMDA provides (relevantly):-
“(1) The Chief Executive or a party dissatisfied with the decision of the tribunal may appeal to the District Court, but only on a question of law.”
- [12]Counsel for the Hunters argue that it is not competent for the Chief Executive to appeal in relation to matters which were not agitated before the Tribunal.
- [13]In making that submission, Mr Bain QC acknowledged that the Chief Executive does have a right of appeal notwithstanding that he did not participate in the proceedings before the Tribunal but submitted that if he exercises his right to appeal he can do so only in respect of matters which were agitated before the Tribunal.
- [14]Mr Lilley for the Chief Executive argued that if that submission were correct there would be no point in the Chief Executive having a right of appeal. In the Chief Executive’s written outline of argument it was argued that the purpose of the Chief Executive’s right of appeal is to protect the public interest and therefore that the common law principle that the parties should be bound by the course taken at trial does not apply. The argument was that there is a public interest rationale for the Chief Executive to be able to seek a definitive judgment on questions of law arising out of the Tribunal’s decision and that this should be the dominant rationale in determining what points of law may be entertained on appeal to ensure that payment from the claim fund is lawful.
- [15]There may be other ways in which, if thought necessary, a question of construction of the Act might be determined e.g. by the Supreme Court but it is not necessary for me to further consider that matter.
- [16]The argument that the Chief Executive should have the right to appeal on a question of law even though it was not raised before the Tribunal would, in my view be stronger if it were not for the fact that the Chief Executive is to some extent involved in every matter before the Tribunal. The claim is lodged with the Chief Executive (s. 473(1)); the claim must state “all relevant particulars about the event and the financial loss” and “the claimants’ estimated financial loss” (s. 473(2)(d) and (e); the Chief Executive may require the claimant to verify the claim, or part of the claim (s. 473(4)); the respondent must give the Chief Executive any information relevant to the claim (s. 474(4)); the Chief Executive may direct an inspector to investigate a claim that has not settled and if there is such an investigation a report must be given by the investigator to the Chief Executive (s. 477) and the Chief Executive has a right of audience before the Tribunal (s. 518).
- [17]It was submitted for the Hunters that it would be clearly unjust in these circumstances for the Chief Executive to allow a claim to be determined by the Tribunal without his making any submissions and then to appeal on matters not agitated before the Tribunal.
- [18]Reliance was placed upon the decision of the High Court in Water Board v Moustakas[1987] 180 CLR 491, 497:
“More than once it has been held by this Court that a point cannot be raised for the first time upon appeal when it could possibly have been met by calling evidence below. Where all the facts have been established beyond controversy or where the point is one of construction or of law, then a court of appeal may find it expedient and in the interests of justice to entertain the point, but otherwise the rule is strictly applied (11).”
- [19]I should say there was an application brought by the Hunters to have this appeal struck out as against them. This application was dismissed by his Honour Judge McGill SC on 15 August 2002 and the Chief Executive now argues that in the circumstances there is an issue estoppel. Counsel for the Hunters argues that the decision of McGill DC J is irrelevant.
- [20]I have read his Honour’s reasons in the matter of Chief Executive v Feeney & Ors (Appeal No. 3197 of 2002) in which his Honour expressly stated in his reasons for dismissing the application in that matter that they applied also to the application made in this matter.
- [21]I do not agree with the submission that by reason of the decision of McGill DCJ there is an issue estoppel. His Honour’s decision was in relation to an application to strike out the appeal. I am considering the appeal itself.
- [22]Notwithstanding my conclusion that there is no issue estoppel, however, and despite some earlier misgivings, I have reached the same conclusion as did his Honour, viz. that the right of appeal conferred on the Chief Executive is not limited to matters which were agitated before the Tribunal. The proceedings before the Tribunal are not the same as an action in the courts. The claim by the claimant is not against the respondent but against the claim fund which consists of public money. It may be that the respondent takes no part in the proceedings before the Tribunal. If the respondent does not take any active role in the proceedings and if the Chief Executive, for whatever reason, does not appear before the Tribunal there will be no one in the position of a contradictor to the claimant in those proceedings. In the event that the Tribunal makes an error of law resulting in an order being made against the claim fund which ought not to have been made or in a larger amount than it ought to have been, then the Chief Executive should have the power to appeal to have that error of law corrected. Otherwise, it is likely that public finds will be paid out when they should not be and there being no respondent interested in challenging the Tribunal’s decision.
- [23]In the circumstances I am of the view that the Chief Executive’s right of appeal on a question of law is not limited to questions agitated before the Tribunal.
- [24]The next matter raised by the Hunters is that the matters sought to be argued in this appeal by the Chief Executive are not questions of law but questions of fact or mixed questions of fact and law. A mixed question of fact and law is not a question of law only: Williams v The Queen (1986) 161 CLR 278 at 287, 312 and 314. In R v Gill (Supreme Court of Queensland, Court of Criminal Appeal, 20 November 1986 unreported) Thomas J (with whom Andrews CJ and Ryan J agreed) said:
“It is not the function of this court to review questions of fact, assessments of evidence, or to embark upon questions of law which can only be considered in conjunction with disputed assessments of fact.”
- [25]Counsel for the Hunters argued that except in respect of the Chief Executive’s argument that costs are not payable out of the fund, none of the matters sought to be argued by the Chief Executive is properly characterised as a question of law and therefore they may not be argued on this appeal.
- [26]As I said at para. 10, the Chief Executive’s appeal is against the quantum of the assessment. He seeks to show that the Tribunal was in error in including in the assessment:
- (i)the sum of $40,847 being income losses; and
- (ii)the sum of $1,969.00 being interest.
It is argued on behalf of the Chief Executive that these amounts were included due to errors of law and thus properly the subject of an appeal where the right of appeal is limited to one only on a question of law.
- [27]The Tribunal’s reasons for its assessment are set out in paras. 44 to 58 of its decision. Firstly, it is to be noted that the Tribunal assessed the “pecuniary loss” suffered by the Hunters. This was the expression used in s. 119 of the repealed Act. By s. 604(2) of the PMDA the Hunters’ claim was to continue as if it were a claim against the claim fund. This means that the Tribunal was required to assess the “financial loss” suffered by the Hunters. In this respect the Tribunal seems to have been in error although in this case there is no practical difference between financial loss and pecuniary loss.
- [28]On behalf of the Chief Executive it was argued that the Tribunal, while purporting to follow the decision of Henville v Walker & Anor (2001) 182 ALR 37 and Gould v Vaggelas & Ors (1983) 157 CLR 220 failed to take into account the comments in those cases concerning the limit on recoverable damages.
- [29]The principle argument which seems to be advanced by the Chief Executive is essentially that the Hunters should have sold the property at around July 1999 when on the evidence before the Tribunal they came to the realization that the rental business was operating not only at a loss but at a far greater loss than had been planned and that any losses which they incurred as a result of holding the property beyond that time should not be assessed as part of their financial loss – in other words that they failed to mitigate their loss. It is argued that there was evidence before the Tribunal that they could have sold the townhouse at the time they discovered the deception for $100,000 and on that basis it was argued that the Tribunal should have assessed the loss differently (and in a lesser amount) from what they did. However, there was no evidence before the Tribunal to show that the Hunters unreasonably failed to mitigate their loss. The point was not raised and clearly the Tribunal did not consider the position of the Hunters to be unreasonable.
- [30]The Hunters submit then that the argument of the Chief Executive on this point is clearly not only on a question of law but of mixed fact and law and thus not justiciable on this appeal. It is argued that had this point been raised before the Tribunal (and it was not) evidence could have been adduced by the Hunters to meet it. Clearly they did not have that opportunity. In those circumstances it seems to me that what the Chief Executive is seeking to do goes far beyond a question of law and the argument on this point cannot be allowed to proceed. In the light of the conclusion which I have reached it seems to me that I should also rule that the tax tables which I conditionally admitted as Exhibit 1 should not be received in evidence. It follows that the arguments raised by the Chief Executive concerning depreciation and the deduction of tax benefits are not questions of law but questions of fact or mixed law and fact and cannot be argued on this appeal.
- [31]In relation to the second point in the Chief Executive’s Notice of Appeal this concerns the inclusion in the amount assessed as financial loss of the sum of $1,868.00. This was dealt with in paragraphs 51 and 52 of the decision.
- [32]The Hunter’s claim was based on a report from Geoffrey Gunn & Co. dated 5 November 2001. (A copy of this report was exhibited to the Affidavit of Judy Ann Teitzel filed on 5 August 2002) The question of interest was dealt with at Para. 6.0 of that report and this calculation was explained in a subsequent letter from Geoffrey Gunn & Co dated 26 April 2002 (which was also exhibited to the Affidavit of Teitzel).
- [33]One limb of the argument for the Chief Executive is that the Hunters did not claim interest and specifically disavowed a claim to interest. This is dealt with in para. 51 of the decision. In the amended revised claim the Hunters deducted the amount shown for interest and in her submissions (to the Tribunal) Ms Skennar (for the Hunters) stated that this was a sum that the Hunters conceded they could not recover. The Tribunal considered this concession but decided that, in view of its obligation under s. 488(3) of PAMDA to decide the amount of the Hunters’ financial loss, it should itself determine whether interest could be claimed. The Tribunal formed the view that the concession was probably based on a misinterpretation of s. 492(5) of PAMDA which states that “interest is not payable from the fund in relation to a claim allowed against the fund”. In the Tribunal’s opinion, this sub-section was a reference to interest on the amount ordered to be paid from the fund along the lines of interest payable on court judgments. The Tribunal said it was satisfied that it did not relate to interest representing losses incurred, such as outlined in Gunn & Co’s report on the pecuniary loss of the Hunters.
- [34]After the hearing, the Tribunal sought further information from the Hunter’s solicitors as to how the interest claim had been calculated. This resulted in the letter from Geoffrey Gunn & Co to which I referred in para. 32. The Tribunal considered that it was inappropriate to calculate interest on the income losses using the Supreme Court interest rates for default judgments and said it was satisfied that the most appropriate rate to apply would be the bank investment interest rate over the relevant periods. The Tribunal thus used the Reserve Bank’s figures and eventually arrived at a calculation of a total of $1,868.00. (paragraph 52 of decision)
- [35]On behalf of the Chief Executive it was argued that in finding that interest was a loss, the Tribunal proceeded on no evidence whatsoever other than the general investment rate which might have been earned had the Hunters had money to invest and that the evidence was that they did not have money to invest as they borrowed 100% of the purchase price of the townhouse and all of the expenses. It was argued that for there to have been an award of interest representing pecuniary loss it was necessary that there be evidence before the Tribunal that the Hunters had monies to invest and would have invested them and that not only was there no such evidence but clearly, given the disavowal of the claim, the Hunters would not have called any evidence in that regard.
- [36]The Hunters submit that one of the aims of PAMDA is to establish a claim fund to provide compensation in particular circumstances for persons who suffer financial loss (sub-s. 10(2)(e)). My attention was also drawn to Gitsham, Edwards and Jensen v Suncorp Metway Insurance Ltd (2002) QCA 310 a decision of the Queensland Court of Appeal and in particular paragraph 74 in the judgment of White J (with whom the other members of the Court agreed). There her Honour was dealing with the expression “financial loss” in s. 45 (1)(b)(ii) of the Motor Accident Act. She said:
“It must be a reference to that broader category of “pecuniary” loss contrasted with “non-pecuniary” loss.”
She then referred to Pickett v British Rail Engineering Ltd (1980) AC 136 and to the judgment of Lord Scarman at 167-68 where the following passage appears:
“But, when a judge is assessing damages for pecuniary loss, the principle of full compensation can properly be applied.”
- [37]The assessment of financial loss under PAMDA or indeed pecuniary loss under the repealed Act both involve the exercise of a discretion and will not be overturned on appeal unless the appeal court is satisfied that the discretion has not been exercised according to legal principle. I am not satisfied that the Tribunal here did not exercise its discretion in assessing the Hunters’ loss in accordance with proper legal principles and this includes its consideration of interest on income losses.
- [38]I am satisfied that the Tribunal’s conclusion in relation to s. 492(5) of PAMDA was correct. It is a prohibition on the payment of interest from the fund in relation to a claim allowed against the fund. In other words what is prohibited is payment of an amount representing interest on the amount of the financial loss assessed by the Tribunal. There is no prohibition on the Tribunal making an assessment of interest in the nature of damages for lost opportunity on the principle enunciated in Hungerfords v Walker (1989) 171 CLR 125 which is then one head of the overall assessment of financial loss. The assessment of interest was merely a way of quantifying one aspect of financial loss.
- [39]In this regard the decision of Henville v Walker (supra) is instructive. In a statutory compensation scheme there is no warrant for artificially reading down the Act by reference to common law considerations. The Chief Executive relied also on the decision of the Full Court of Western Australia in Re: Real Estate and Business Agents Supervisory Boards; Ex Parte Cohen (1999) WASCA 47. There the court rejected claims for ancillary losses including damages claimed by way of interest on the Hungerfords v Walker (supra) principle. That decision, however, turned on the particular wording of the relevant legislation and provided for the reimbursement only to the extent of the defalcation of the licensee. The term reimbursement is not used in s. 470(1) of PAMDA and in any event it appears to me that the Western Australian legislation was dealing with a different type of loss.
- [40]To the extent to which the Chief Executive’s appeal raises a question of law as to whether the assessment of financial loss may include such an item (i.e. interest in the nature of damages for lost opportunity) the appeal must fail. There was clearly evidence before the Tribunal enabling it to make a finding of loss of this type.
- [41]So far as the Chief Executive’s appeal is against the inclusion in the assessment of the amount calculated by the Tribunal as this component of the financial loss of the Hunters this goes beyond a question of law and the appeal is not competent.
- [42]In relation to the appeal in respect of costs, the Chief Executive argues that it was an error of law to have bundled up the claim and the costs as one item. It is argued that by s. 489 of PAMDA only claims allowed pursuant to s. 481 and s. 488 should be paid from the fund and that an order for costs is an allowance under s. 537 and in the circumstances is not payable out of the fund. It is further argued that it seems clear from s. 537 that costs orders may be made against other parties but not out of the fund and that in the event that a costs order is made it can be enforced pursuant to s. 539 by the Chief Executive. Counsel for the Hunters objected to this argument being raised by the Chief Executive on the basis that it is different from the argument raised in the Chief Executive’s filed Outline of Argument and no notice was given of it. Nevertheless Mr Bain dealt with the point.
- [43]The Tribunal seems to have regarded the costs which it considered it appropriate to award as part of the Hunter’s financial loss. (Decision para. 70)
- [44]On behalf of the Hunters it is argued that it is proper, if the Tribunal considers that costs should be awarded, to include the amount assessed in the assessment of the financial loss pursuant to sub-s. 488(3)(b).
- [45]Counsel for the Hunters argued that the Tribunal’s approach was perfectly proper. Firstly there is no express limitation in PAMDA as to what may be financial loss. They argued it was a sensible approach having regard to the wording of s. 470(1) of PAMDA to say that the costs incurred by a claimant in presenting a successful claim are losses incurred because of the conduct identified in s. 470. It was argued that a claim against the fund is not an inter partes dispute. It is one person impugning the conduct of another in a proceeding which is expressly stated by the legislation to be a claim against the fund. It is also argued that under s. 537 there is no provision that the costs are to be awarded against any particular person.
- [46]It is argued for the Hunters that another indicator that it was not the intention of the legislature that an award of costs should be made against any particular person is the lack of any mechanism in the Act to enforce such an order. It may be, however, that s. 539 could be used for this purpose even though there is no express reference in it to an order for costs.
- [47]It seems to me that particularly in view of the fact that s. 537 does not refer to any power to award costs against a particular person, it must have been intended that if the Tribunal considers it appropriate to award costs those costs should form part of the assessment of the claimant’s financial loss and thus be payable from the fund.
- [48]In so far as the Chief Executive seeks to pursue the appeal point in relation to costs it seems to me that this goes beyond a question of law. An order for costs is made in the exercise of a discretion. Furthermore the argument becomes a question of mixed fact and law and is thus beyond the scope of this appeal.
- [49]The appeal of the Chief Executive must therefore fail.
The Appeal in Bilborough v Hunter
- [50]Counsel for Bilborough informed the court that Bilborough was pursuing only two issues in his appeal viz:
- (i)That the Tribunal made an error of law in finding that Bilborough was liable to compensate the fund by reason of s. 125 of the repealed Act and/or s. 604(1) of PAMDA; and
- (ii)That the Tribunal made an error of law in finding that the Hunters suffered financial/pecuniary loss by reason of a breach of s. 73 of the repealed Act.
The submissions put on behalf of Bilborough were similar to those put on his behalf in Bilborough v Gordon (Appeal D1252 of 2002) which I heard on the day before I heard the present appeals and in respect of which I have delivered judgment today.
- [51]In relation to the second point, counsel for Bilborough stated that the Tribunal’s finding of fact that no statement as required by s. 73 of the repealed Act was given to the Hunters was not challenged. The submission was made that the Tribunal erred in law in finding that the loss suffered by the Hunters was caused by the contravention of s. 73 because the failure to provide the statement had no consequence adverse to the Hunters in terms of their pecuniary or financial position.
- [52]Bilborough was a respondent to the appeal by the Chief Executive and counsel for Bilborough stated that he would abide the decision of the court in relation to those matters.
- [53]Counsel for the Hunters argued that because Bilborough had abandoned his appeal against the finding that there was a contravention of s. 72 of the repealed Act it was pointless to proceed with the appeal in respect of s. 73. Regardless of whether the Tribunal made an error of law in relation to s. 73, because the findings in respect of contravention of s. 72 are not challenged the Tribunal was required to assess the Hunters’ financial loss. Depending on what contraventions are found to have occurred, the amount of financial loss may be assessed differently. In this case, however, the Tribunal has not sought to assess separately the financial loss accruing because of each of the contraventions it found. It seems to have treated the loss suffered by the Hunters as flowing from the contravention of both s. 72 and s. 73. (Decision para. 44)
- [54]It is fair to say that there was no evidence of any loss suffered by the Hunters flowing from the contravention of s. 73 and although I accept that it is unnecessary to decide the point it seems to me that there was therefore an error of law on the part of the Tribunal in finding that the loss suffered by the Hunters was because of the contravention of both ss. 72 and 73.
- [55]In relation to the first appeal point raised on behalf of Bilborough concerning s. 125 of the repealed Act this is the same point as was argued in Bilborough v Gordon. The matter was not canvassed by the Tribunal in any detail. The question was dealt with in paragraphs 64 to 69 of the decision. There was no finding of personal liability on the part of Bilborough but the Tribunal at para. 69 of its decision referred to s. 408(3) of PAMDA saying this sub-section gave the Tribunal an inquisitional role subject to the rules of natural justice. It was not, however, suggested that there was any basis for finding Bilborough personally liable for the contravention of s. 72 and/or s. 73 of the repealed Act and it seems to be the case that the only basis for making an order was because the Tribunal considered that s. 125 of the repealed Act applied. (Decision para. 68) For the reasons given in Bilborough v Gordon which are also published today I find that the Tribunal made an error of law in holding that by virtue of s. 125 of the repealed Act, Bilborough was liable to compensate the fund. That part of the Tribunal’s order must be set aside.
Orders
- [56]The orders will be:
- (1)In respect of Appeal No. 3159/02:-
The appeal is dismissed.
- (2)In respect of Appeal No. 3176/02:-
(i)The appeal is allowed;
- (ii)That part of the order of the Property Agents and Motor Dealers Tribunal handed down on 26 June 2002 whereby the Fourth Respondent, Christopher R. Bilborough was found liable for the Applicant’s financial loss of $113,166.64 and that he reimburse the claim fund in the amount of $113,166.64 be set aside.
Costs
- [57]I will receive submissions in relation to costs.