Hooker v Clark Pty Ltd t/a Clark Real Estate [2009] QCCTPAMD 58 (13 November 2009)

Last Updated: 16 November 2009

REASONS FOR DECISION

Introduction

1. This is an application for an extension of time for the bringing of a claim against the fund under section 470 of the Property Agents and Motor Dealers Act 2000 (“PAMDA”).

2. It is substantially out of time as the relevant sale occurred in March 2003 and the applicant admits to becoming aware of his alleged financial loss in August 2005. The present proceedings were not commenced until 7 July 2009. Under section 472(2)(a) of PAMDA, the claim is almost three years out of time.

3. The basis of the claim is alleged misleading conduct by the respondent real estate agent. The house in question, a residential property at Northgate, was advertised as a four-bedroom home. The applicant inspected it and it was a four-bedroom home, but one of the bedrooms had a ceiling height of only 2.2 metres. The significance of this was not apparent to anyone until a few years later when the applicant decided to re-sell the house. When he did so his new real estate agent advised him that he could only advertise it as a three bedroom home because the ceiling of one of the bedrooms was less than 2.4 metres.

4. The applicant has not seen fit to advise the Tribunal of the price he obtained upon resale which apparently occurred during October 2005, but in the respondent’s submissions it is asserted that the property was sold “for a considerable profit in or around October 2005” namely a profit of $131,000.00 representing an increase in sales value of 28.5% over a period of 31 months.

5. The basis of the claim is “we are seeking to be reimbursed for the sum of $15,000.00 being for compensation of the loss of value not being able to promote and sell 101 Ridge Street as a four bedroom home and therefore having to advertise it as a three bedroom home”. There is also an allegation of misrepresentation concerning activities that might occur in an adjoining child-minding centre.

6. The applicant’s claim misunderstands the nature of the “financial loss” that may be claimed under chapter 14 of PAMDA. It arises out of alleged misleading conduct or false representations which would be contraventions of s 573A, 573B or 573C of PAMDA. This satisfies the definition of “marketeering contravention” in s 469.

7. Section 471A states:

“471A Claims limited to realised loss

(1) A person may make a claim against the fund for financial loss relating to a non-investment residential property purchased by the person because of, or arising out of, a marketeering contravention only to the extent the loss is capital loss.

(2) Also, capital loss mentioned in subsection (1) may be claimed only if the loss has been realised as mentioned in section 488B.”

8. Section 488B states:

“488B General test for working out loss

(1) Subject to section 488C, the financial loss is the amount of the difference between the contract price or value for the property paid by the claimant and the contract price or value for the sale of the property by the claimant (the on-sale).

(2) The loss is only realised if the on-sale has been completed.”

9. It follows that there is no basis under which the applicant demonstrates any relevant “financial loss”.

10. Moreover there has been little or no attempt to explain the substantial delay in this matter beyond the mere assertion in the applicant’s submissions that “due to stress and professional medical advice, I was unable to pursue this matter in the time frame required”.

11. Furthermore, the submissions of the respondent’s solicitors suggest that the respondents are seriously prejudiced in responding adequately to the claim because of the time that has elapsed. The principal officer of the company has retired and the respondent company is no longer trading. The sales person who had conduct of the marketing of the property at the relevant time no longer holds a real estate licence and is not presently contactable; and the respondent company cannot locate its original sales file.

Summary

12. To say the least the claim is unpromising. No basis has been shown for a valid claim against the fund.

13. There would be prejudice to the respondent by reason of the applicant’s delay if the claim were permitted to proceed.

14. There is no satisfactory explanation for the delay.

15. The application for extension of time will be dismissed.

______________________________

MR J THOMAS AM QC

MEMBER

Commercial and Consumer Tribunal