The Chief Executive, Office of Fair Trading, Department of Justice and Attorney-General v Birch [2025] QCAT 536

Agents Financial Administration Act 2014 (Qld), s 6, s 82(1), s 116, s 117, s 118, s 119

Motor Dealers and Chattel Auctioneers Act 2014 (Qld), s 216

Chief Executive, Department of Justice and Attorney- General v Dhillon [2020] QCAT 141

Chief Executive, Department of Justice and Attorney-General v Youssef [2020] QCAT 123

• [1] This Application relates to four (4) claims that were made against the Claim Fund under section 100 of the Agents Financial Administration Act 2014 (Qld) ("AFAA").
• [2] The Applicant applies under section 117 of the AFAA for an order that the Respondent reimburse the Fund.
• [3] Between 13 March 2020 and 13 April 2021, the Applicant decided four (4) claims against the Fund that involved the Respondent. In each of those decisions, the Applicant:

(a) Ordered an amount, individual to each claim, to be paid to each Claimant at the expiration of the review period; and

(b) Named the Respondent, liable for each of the Claimant's financial losses, and as liable to reimburse the Fund for the amounts paid from the Fund.[1]

• [4] I shall refer to each claim in the order that each claim was decided, and refer to each claimant numerically.
• [5] In relation to the First Claim:

(a) On 13 March 2020, the Applicant decided a claim against the Fund that was lodged by the First Claimant against the Respondent.

(b) On 16 March 2020, the Applicant sent the Respondent written notice of the decision in the form of a letter which enclosed the Information Notice. The Information Notice:

(i) Ordered that $13,440.00 be paid to the First Claimant at the expiration of the review period; and

(ii) Named the Respondent as the party liable for the First Claimant's financial loss and as liable to reimburse the Fund in the amount of $13,440.00.

(c) On 14 May 2020, the Applicant paid the sum of $13,400.00 to the First Claimant from the Fund in accordance with the decision.

(a) On 17 March 2020, the Applicant decided a claim against the Fund that was lodged by the Second Claimant against the Respondent.

(b) On 18 March 2020, the Applicant sent the Respondent written notice of the decision in the form of a letter which enclosed the Information Notice. The Information Notice:

(i) Ordered that $4,935.50 be paid to the Second Claimant at the expiration of the review period; and

(ii) Named the Respondent as the party liable for the Second Claimant's financial loss and as liable to reimburse the Fund in the amount of $4,935.50.

(c) On 14 May 2020, the Applicant paid the sum of $4,935.50 to the Second Claimant from the Fund in accordance with the decision.

(a) On 30 June 2020, the Applicant decided a claim against the Fund that was lodged by the Third Claimant against the Respondent.

(b) On 30 June 2020, the Applicant sent the Respondent written notice of the decision in the form of a letter which enclosed the Information Notice. The Information Notice:

(i) Ordered that $3,495.00 be paid to the Third Claimant at the expiration of the review period; and

(ii) Named the Respondent as the party liable for the Third Claimant's financial loss and as liable to reimburse the Fund in the amount of $3,945.00.

(c) On 18 August 2020, the Applicant paid the sum of $3,495.00 to the Third Claimant from the Fund in accordance with the decision.

(a) On 13 April 2021, the Applicant decided a claim against the Fund that was lodged by the Fourth Claimant against the Respondent.

(b) On 14 April 2021, the Applicant sent the Respondent written notice of the decision in the form of a letter which enclosed the Information Notice. The Information Notice:

(i) Ordered that $5,350.00 be paid to the Second Claimant at the expiration of the review period; and

(ii) Named the Respondent as the party liable for the Fourth Claimant's financial loss and as liable to reimburse the Fund in the amount of $5,350.00.

(c) On 10 June 2021, the Applicant paid the sum of $5,350.00 to the Fourth Claimant from the Fund in accordance with the decision.

• [9] On 28 July 2025, the Applicant filed an 'Application for a reimbursement order - Agents Financial Administration Act 2014'.
• [10] The Applicant seeks an order that:
  1. Pursuant to s118 and s119 of the Agents Financial Administration Act 2014 (Qld), Simon Michael Birch is liable, and ordered to pay, the Claim Fund established under s78 of the Agents Financial Administration Act 2014 (Qld), in the sum of Twenty-Seven Thousand, Two Hundred and Nineteen Dollars and Fifty Cents ($27,219.50) within 21 days of the date of this order.

• [11] Directions in this matter were made by Member Lambie on 7 August 2025. Direction 4 provided that 'If Simon Michael Birch fails to file any submissions in accordance with direction 2 above, or there is no request for an oral hearing, the matter will be determined on the papers not before 4:00pm on 4 September 2025'.
• [12] The Respondent has not filed any submissions in this matter.

• [13] Section 78 of the AFAA establishes the Claim Fund.[2] The Fund must be used to pay the amount of all claims allowed against the Fund.[3]
• [14] Section 82(1) of the AFAA prescribes that a person may claim against the fund if that person suffers financial loss because of the happening of any of the events prescribed by that section.
• [15] One of those events is a contravention by a relevant person of section 216 of the Motor Dealers and Chattel Auctioneers Act 2014 (Qld).[4] That section provides that a licensee or motor salesperson must not represent in any way to someone else anything that is false or misleading about the sale or auction of goods.[5]
• [16] The decision of Chief Executive, Office of Fair Trading, The Department of Justice and Attorney-General v Youssef [2020] QCAT 123 ("Youssef") provides a useful summary of the claim process at paragraphs [6]-[7]. This summary was adopted in the decision of Chief Executive, Department of Justice and Attorney-General v Dhillon [2020] QCAT 141 ("Dhillon"). The summary in Youssef stated that:

The chief executive may decide the claim or refer the claim to the Queensland Civil and Administrative Tribunal ('QCAT'). If the chief executive proceeds to decide the claim, he or she must allow the claim, wholly or partly, or reject the claim. The chief executive must then give the parties an information notice for the chief executive's decision, which must comply with section 157(2) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) ('the QCAT Act') and contain other information. A party who is dissatisfied with the chief executive's decision may apply, as provided under the QCAT Act, to QCAT for a review of the decision.

If a claim is allowed, the chief executive must authorise payment from the claim fund in the amount decided by the chief executive.[6]

• [17] The AFAA sets out the provisions for the Respondent to reimburse the Fund.
• [18] Section 116 of the AFAA provides that where a person is named (being the 'responsible person') in the chief executive's decision as being liable for the claimant's financial loss, and an amount has, under section 112, been paid from the fund in settlement of the claimant's claim the responsible person (or persons), is liable to reimburse the fund to the extent of the amount paid from the fund for the claim.[7]
• [19] The chief executive may recover that amount as a debt from the responsible person.[8] Prior to the chief executive taking any action to recover the debt, the chief executive must give a letter of demand to the debtor requiring the debtor to pay the amount to the chief executive within 28 days after receiving the letter.[9]
• [20] Section 117 of the AFAA provides that if the chief executive decides to allow, wholly or partly, the claim, and the responsible person has not reimbursed the fund as required, the chief executive may apply to the Queensland Civil and Administrative Tribunal ("QCAT") for an order that the responsible person, being the respondent, reimburse the fund or the chief executive.[10]
• [21] Any Application to QCAT must include the following documents:

(a) A copy of the information notice/s;

(b) A copy of the letter of demand;

(c) A statutory declaration by the chief executive stating -

(i) The amount paid from the fund for the settlement of the claim;

(ii) The amount of payment (if any) received from the respondent in satisfaction of the claim.[11]

• [22] Section 118 of the AFAA provides that the chief executive must give a copy of the application and the accompanying documents provided in s 117(4) of the AFAA, to the respondent, and advise the respondent that QCAT will make a reimbursement order if satisfied that:

(a) The letter of demand was sent to the respondent under section 116(6);

(b) The respondent has not paid the stated amount within the time allowed under the letter of demand; and

(c) The respondent may make written submission for QCAT to consider.[12]

• [23] Under section 118 of the AFAA, the chief executive must also advise the respondent:

(a) That under the chief executive's decision, the respondent is liable to reimburse the fund in the stated amount;

(b) That an information notice/s was given to the respondent;

(c) That either the respondent did not apply to QCAT to have the decision reviewed.[13]

• [24] Section 119 of the AFAA provides that QCAT must consider an application for a reimbursement order and any written submissions made by the respondent for the application.[14]
• [25] QCAT must then make a reimbursement order if it is satisfied that:

(a) The respondent has not paid the stated amount within the time allowed under the letter of demand; and

(b) If the application relates to a reimbursement of a claim against the fund:

(i) The chief executive has made a decision about a claim against the fund; and that the respondent did not apply to QCAT under section 103 to have the decision reviewed;

(ii) Written notice of the chief executive's decision, a copy of the decision and an information notice under section 102 of the AFAA was given to the respondent.

• [26] The Application before the Tribunal for determination relates to four separate claims against the Fund, with individual information notices issued for each claim.
• [27] The Applicant has issued one single letter of demand under section 116(6) of the AFAA, in which it particularises each claim, the name of the claimant, the date it was decided and the amount allowed.
• [28] I adopt then Adjudicator Gaffney's reasons in Dhillon that sections 116 to 119 of the AFAA may be interpreted to allow a reimbursement order to be sought and ordered for the combined value for the amounts paid from the claim fund in settlement of multiple claims against the same respondent.[15]
• [29] The Respondent has not sought to challenge the facts which are asserted before the Tribunal by the Applicant. On that basis, I accept the facts and submission made by the Applicant and the veracity of the documents provided with the Application.
• [30] I must consider the Applicant's right to apply to QCAT under section 117(3) of the AFAA.
• [31] I consider that the information notices issued by the Applicant meet the requirements of section 102 of the AFAA and that they were given to the Respondent by sending those documents to the Respondent at his last known address. This is evident on the Applicant's submissions and material filed with the Application.
• [32] I consider that the single letter of demand which particularised each claim was a Letter of Demand as contemplated by section 116(6) of the AFAA. The Letter of Demand was posted as a letter to the Respondent's last known address in Queensland on 11 January 2024. It was also emailed to the Respondent. A further Letter of Demand was sent via post and email on 12 May 2025. I therefore consider that the Letter of Demand was given to the Respondent.
• [33] The Statutory Declaration filed with the Application establishes that the Respondent had not reimbursed the claim fund as required by the Letter of Demand. I consider the requirements of section 117(1)(a)(ii) satisfied.
• [34] The Applicant has filed an affidavit of service, affirmed on 14 August 2025. Ms Elizabeth Anne Allard, Acting Senior Claims and Recoveries Officer within the Office of Fair Trading deposed to serving a copy of the Application and correspondence on the Respondent by sending those documents via registered post and email to the Respondent. I therefore consider that section 118(1)(a) of the AFAA is satisfied.
• [35] I am also satisfied that the Applicant has met the requirements under section 118(1)(b) as evidenced by the letter dated 11 August 2025, being exhibit EAA-1 to the Affidavit of Service.
• [36] I now look at the substantive requirements under section 119 of the AFAA.
• [37] I am required to consider an application for a reimbursement order and any written submissions made by the Respondent for the application. The Respondent has filed no submissions for consideration.
• [38] I am satisfied that:

(a) The chief executive has made a decision about the four claims against the fund which together form the Application.

(b) The Respondent is liable to reimburse the fund because the Respondent did not apply to QCAT under section 103 to have the decision reviewed.

(c) The chief executive's decisions were given to the Respondent.

• [39] Based on that, I am required to make a reimbursement order pursuant to section 119(2) of the AFAA as I am also satisfied that the Respondent has not paid the amount stated, being $27,219.50, within the time allowed under the Letter of Demand. This is evidenced by the Statutory Declaration that declares that the Respondent has not paid the amount stated.
• [40] Under section 119(4) of the AFAA, if QCAT makes a reimbursement order, the order must state that the Respondent is liable to pay to the chief executive a stated amount within a stated period.

• [41] For the reasons set out above, I order that the Respondent is liable to pay to the Applicant the amount of $27,219.50 within 21 days of the date of this order.

[4] Ibid s 82(1)(D); First, Second, Third and Fourth Information Claim Notices.

[5] Motor Dealers and Chattel Auctioneers Act 2014 (Qld) s 216(1).

[7] AFAA s 116(1), (3), (4).

[8] Ibid s 116(5).

[9] Ibid s 116(6).

[10] Ibid s 117(1)-(3).

[11] Ibid s 117(4).

[12] Ibid s 118(1).

[13] Ibid s 118(2).

[14] Ibid s 119(1).