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[2013] QCAT 22
General information, not legal advice.
Queensland Civil and Administrative Tribunal
2013-01-15
Original judgment source is linked above.
This matter was heard and determined on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.
[1] Martinger Pty Ltd, trading as Beachside Realty, managed the rental of two properties Zarben Developments Pty Ltd owned. A liquidator was appointed to Martinger in March 2012. Mr Springer was a director of the company and Mr Martens was the company secretary. Martinger and Mr Martens were licensed real estate agents.
[2] Zarben made a claim on the statutory claim fund for $28,497. It says that the agent did not provide evidence of money received from renting its properties. Martinger, Mr Springer and Mr Martens have all received notice of the claim.
[3] In considering a claim against the fund, I must be satisfied[1] that an event as mentioned in section 470(1) happened and that Zarben suffered financial loss because of the event.
[4] I must also take into account any amount Zarben might reasonably have received or recovered if not for its neglect or default and any amount ordered to be paid to Zarben as compensation to the claimant under sections 530A, 572D or 592A of PAMDA[2].
[5] Finally, in allowing a claim I must decide the amount of Zarben's financial loss and name the person who is liable for the loss[3].
[6] The stealing, misappropriation or misapplication by an agent of property entrusted to that person as agent for someone else in their capacity as agent is an "event" under s 470(1)(e).
[7] The Office of Fair Trading appointed Ms Williams of Insolvency and Turnaround Solutions as receiver of Martinger's trust account. In a report dated 8 June 2012, Ms Williams advised that she had investigated Zarben's claim. She rejected the bulk of the claim. She said that there was insufficient evidence of money being received into trust and then misappropriated. Ms Williams noted that Zarben did not provide her with any further evidence to support its claim within a requested time frame. She also noted that the tenants in both properties had a history of non-payment of rent.
[8] Ms Williams noted that Zarben's claim included $7,912 for maintenance and repair costs.
[9] Ms Williams was correct to reject a claim for maintenance and repair costs. An owner is responsible for the maintenance and repair of a tenancy. If the tenant caused the damage, the owner may be able to recover from the tenant. If the damage occurred because the agent was negligent in the way it managed the property, the owner may have a claim against the agent. But the owner has no right to claim against the fund.
[10] In relation to its property at Minnie St, Zarben claims $11,040 rent for a period when the property was vacant. Again, Zarben may be able to claim that from the agent as damages for breach of the agency agreement, but it is not a ground for recovery from the fund.
[11] That leaves a claim of $9,600 for rent at its property at Eugaree St. Ms Williams could not determine what amounts Martinger received from the tenant, nor what had been paid to Zarben. The only amount she could identify with any certainty was the surplus bond of $215.00 after Martinger paid for cleaning of Eugaree St. That amount was remitted to Martinger and, it appears that Martinger did not remit it to Zarben.
[12] This tribunal issued directions which allowed Zarben to file further material in support of its claim. It has not done so. I am in the same position as Ms Williams.
[13] I am satisfied that to a limited extent, there is an "event" within s 470(1).
[14] As I have already indicated, I am satisfied that Zarben suffered a financial loss because of Martinger's breach of s 470(1)(e).
[15] I am further satisfied that $215 is a proper assessment of Zarben's loss.
[16] I am required to take into account any amount Zarben may have received or recovered if not for its neglect or default.
[17] There is no evidence to suggest that Zarben would have been able to receive or recover any amount to reduce its loss if it had taken any different action.
[18] As licensees, Martinger and Mr Martens were responsible for Zarben's loss.
[19] Section 490(2) provides that a person is liable to reimburse the fund if the person is:
A responsible person;
If the responsible person was a corporation, each person who was an executive officer of the corporation.
[20] As a director of Martinger, Mr Springer was an executive officer of the company. Because I have found that the company is a responsible person, it follows that he must also be a responsible person.
[1] Pursuant to s 488 of the Property Agents and Motor Dealers Act 2000, the claim is allowed in the sum of $215.
[2] Pursuant to s 489 of the Property Agents and Motor Dealers Act 2000, at the expiration of the appeal period, the Chief Executive must pay to Zarben Developments Pty Ltd the sum of $215 from the Claim Fund, and, if there is an appeal, payment must not be made until after the appeal is finally decided.
[3] Pursuant to s 488(3)(c) of the Property Agents and Motor Dealers Act 2000, Martinger Pty Ltd, Mr Shayne Eric Vincent Martens and Mr Duane Anthony Springer are named as the persons responsible for the financial loss of Zarben Developments Pty Ltd.
[4] Upon payment from the Claim Fund and pursuant to sections 490 and 530 of the Property Agents and Motor Dealers Act 2000, Martinger Pty Ltd, Mr Shayne Eric Vincent Martens and Mr Duane Anthony Springer are liable (and if more than one, jointly and severally) to reimburse the Claim Fund by paying the sum of $215 to the Chief Executive, Department of Justice and Attorney General.
[1] Section 488(2) Property Agents and Motor Dealers Act 2000.
Zarben Developments Pty Ltd
Martinger Pty Ltd & Ors [2013] QCAT 22