Perkins v Key to Australia Pty Ltd

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Perkins v Key to Australia Pty Ltd & Anor [2023] QCAT 12

PARTIES:

anthony john Perkins

(applicant)

v

key to australia pty ltd
graham mark scarrott

(respondents)

APPLICATION NO/S:

OCL065-21

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

5 January 2023

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Deane

ORDERS:

1. Direction 1 made 16 March 2022 is vacated.

2. Direction 7 made 16 March 2022 is vacated.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – Claim fund under Agents Financial Administration Act 2014 (Qld) – whether issues can be decided as preliminary questions of law

Agents Financial Administration Act 2014 (Qld), s 77, s 78, s 105

Craig v Ravenshoe Community Centre Inc & Ors [2013] QCATA 177

Goodchild v Ferrantino [2007] QCCTPAMD 2

Nowlan v Medical Board of Australia (No 1) [2019] QCAT 413

Riley, Vrachnas & The Chief Executive, Office of Fair Trading v Ferrantino [2008] QCCTPAMD 3

APPEARANCES & REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act)

REASONS FOR DECISION

This is one of several applications, which have been referred to the Tribunal involving Key to Australia Pty Ltd (KTA) and Graham Mark Scarrott (collectively the Respondents). It is not disputed that the Respondents held real estate agent licenses issued in Queensland during the relevant period.
Mr Perkins made a claim against the fund established under the Agents Financial Administration Act 2014 (Qld) (the Act) (the Fund).[1] The claim relates to conduct of the Respondents including in New Zealand. The Chief Executive referred Mr Perkins’ claim to the Tribunal for determination.[2]
[1]Agents Financial Administration Act 2014 (Qld), s 78 (the Act).
[2]Referral of a matter (non-disciplinary) filed 31 August 2021; the Act, s 77(a)(i).
The Tribunal may decide to allow a claim wholly or partly or reject a claim.[3] It may decide to allow a claim only if satisfied on the balance of probabilities that the person may make the claim under division 2.[4] If the claim is allowed the Tribunal is to decide the amount of the claimant’s financial loss and name the person who is liable for the loss.[5]
[3]Ibid, s 105(1).
[4]Ibid, s 105(2).
[5]Ibid, s 105(3).
The Referral contains a report to creditors, which shows that Mr Scarrott became bankrupt on 15 April 2021.
An online Australian Securities & Investments Commission (ASIC) search shows that KTA was de-registered on 10 July 2022 and therefore no longer exists as a legal entity unless it is re-registered.
The Chief Executive raised various issues in the Referral.
On 16 March 2022, the Tribunal directed that the following issues be determined by the Tribunal as preliminary questions of law:
(a)Whether any representations made by the Respondents to the Applicant in New Zealand fall within the jurisdiction of the fund (as referred to in paragraph 19 of the Chief Executive, Department of Justice and Attorney General (Office of Fair Trading) submissions dated 26 August 2021, which were attached to the Referral of a matter to the Tribunal).
(b)Whether monies paid to the Respondents for development services were monies entrusted to the Respondents on behalf of the Applicants or whether they became the Respondents property to do with as they liked (as referred to in paragraph 38 of the Chief Executive, Department of Justice and Attorney General (Office of Fair Trading) submissions dated 26 August 2021, which were attached to the referral of a matter to the Tribunal).
(c)Whether the Respondents failure to refund the Applicant as promised is a representation capable of being relied on for the purpose of a section 212 breach, or is a breach of an agreed contractual provision (as referred to in paragraph 46 of the Chief Executive, Department of Justice and Attorney General (Office of Fair Trading) submissions dated 26 August 2021, which were attached to the referral of a matter to the Tribunal).
The parties and the Chief Executive were directed to file submissions to allow the issues to be determined on the papers. Some submissions have been received.[6]
[6]Chief Executive’s submissions filed 6 July 2022; no submissions were received from Mr Perkins, Key to Australia Pty Ltd or Mr Scarrott.
I now consider these matters only.
The purpose of determining preliminary questions of law is to shorten the proceedings and minimise costs to the parties.
As has been observed in the Appeal Tribunal[7]
Briefly stated, the distinction is between ‘pure’ questions of law (e.g., what is the correct test to be applied in deciding a matter?); questions of ‘pure’ fact (what actually took place between the parties?); and mixed questions – e.g., do facts, as found, satisfy legal tests?
[7]Craig v Ravenshoe Community Centre Inc & Ors [2013] QCATA 177, [8].
In Nowlan v Medical Board of Australia (No 1) the then Deputy President in refusing an application for a preliminary determination of a point of law stated:[8]
It seems to me that the question of law cannot be properly divorced from its factual context and, if the Tribunal was to proceed in the way contended for by the applicant, it is unlikely to be able to answer the question of law in the absence of the full material that is to provide that factual context.
[8][2019] QCAT 413, [7].

Having reviewed the material filed and considered the submissions, regrettably, I do not consider that these issues can be decided in any meaningful way as preliminary questions of law. In my view they involve mixed questions of fact and law.
I have considered whether I could decide the questions as preliminary issues based on agreed or undisputed facts.
The Respondents submitted a response to the Chief Executive, which is included in the Referral. It is generic. It does not address the facts of each claim against the Fund. It does not make specific admissions. The Referral notes that Mr Scarrott has been successfully prosecuted for events related to these claims, however there is no specific evidence before me about the charges and the findings of fact or admissions of specific facts in those proceedings upon which I might rely. The Referral includes a document containing some responses to this particular claim by Mr Scarrott. He disputes some matters. I do not consider that these issues can be decided as preliminary issues rather than questions of law. Findings of fact are required to decide these questions. It is not appropriate to make findings of fact prior to a final hearing.
Unfortunately, this means that rather than shortening the proceedings it has delayed their resolution.

Whether representations made in New Zealand fall within the jurisdiction of the fund? Is there a sufficient nexus with Queensland for a claim against the fund to be made?

I find that representations made in New Zealand may found a valid claim against the fund depending upon findings of fact to be made by the Tribunal at a final hearing.
The Chief Executive in the Referral submits that the fund’s jurisdiction depends on where the offending behaviour occurred. The submission is put in terms of, if the relevant events occurred within the State of Queensland, then the fund can operate, but if they occurred elsewhere, the fund cannot. The Chief Executive cites Goodchild v Ferrantino[9] and Riley, Vrachnas & The Chief Executive, Office of Fair Trading v Ferrantino.[10] The Chief Executive submits that the Tribunal will have to determine whether any representations made by the Respondents to Mr Perkins in New Zealand fall within the jurisdiction of the fund.
[9][2007] QCCTPAMD 2 at [24] to [62].
[10][2008] QCCTPAMD 3 at [23], [24].
In the Chief Executive’s submissions filed in response to the directions the Chief Executive now submits that an applicant must establish on the balance of probabilities that the Respondents performed the activities of a real estate agent within Queensland at all relevant times. The Chief Executive now appears to concede that the authorities do not support the statement made in the Referral as to jurisdiction of the fund.
Whether there is a sufficient nexus with Queensland will depend upon findings of fact to be made by the Tribunal upon a hearing as to whether the claim against the fund is made out.

Were monies paid to the Respondents for development services monies entrusted to the Respondents on behalf of the Applicants or did they become the Respondents property to do with as they liked?

I do not consider that this issue can be decided as a preliminary question of law for the reasons set out earlier.
In my view it requires findings of fact to be made and involves mixed questions of fact and law.

Was the Respondents failure to refund the Applicant as promised a representation capable of being relied on for the purpose of a section 212 breach or was it a breach of an agreed contractual provision?

I do not consider that this issue can be decided as a preliminary question of law for the reasons set out earlier.
In my view it requires findings of fact to be made and involves mixed questions of fact and law.

Perkins v Key to Australia Pty Ltd is a case where Anthony John Perkins made a claim against the fund established under the Agents Financial Administration Act 2014 (Qld). Perkins alleged that Key to Australia Pty Ltd and Graham Mark Scarrott, both licensed real estate agents in Queensland, engaged in conduct that resulted in financial loss. The Chief Executive referred Perkins' claim to the Queensland Civil and Administrative Tribunal (QCAT) for determination. The Tribunal had to decide whether the issues raised in the claim could be resolved as preliminary questions of law, or if a full hearing was necessary to make findings of fact.

The legal issues before the Tribunal included whether the conduct of the respondents in New Zealand fell within the jurisdiction of the fund, whether the monies paid to the respondents for development services became their property, and whether the failure to refund the applicant constituted a breach of a contractual provision or a representation that could be relied upon under section 212 of the Act. The Tribunal also had to determine if these issues could be resolved as preliminary questions of law, or if a full hearing was required.

The Tribunal determined that the issues could not be decided as preliminary questions of law because they involved mixed questions of fact and law. The Tribunal noted that findings of fact were necessary to resolve the issues, and that it was not appropriate to make such findings prior to a final hearing. The Tribunal found that the question of whether the conduct of the respondents in New Zealand fell within the jurisdiction of the fund required findings of fact to be made at a final hearing. Similarly, the Tribunal found that the issue of whether the monies paid to the respondents for development services became their property required findings of fact. Finally, the Tribunal found that the issue of whether the failure to refund the applicant constituted a breach of a contractual provision or a representation under section 212 of the Act required findings of fact.

The Tribunal vacated two directions that had been made on 16 March 2022, which had directed that certain issues be determined as preliminary questions of law. The Tribunal found that these directions were not appropriate because the issues could not be resolved as preliminary questions of law. The Tribunal ordered that the directions be vacated.

In summary, the Tribunal found that the issues raised in Perkins' claim could not be resolved as preliminary questions of law because they required findings of fact. The Tribunal vacated two directions that had been made on 16 March 2022, which had directed that certain issues be determined as preliminary questions of law. The Tribunal found that these directions were not appropriate because the issues could not be resolved as preliminary questions of law. The Tribunal ordered that the directions be vacated.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established