Claims regarding property marketeering |
If you have lost money because of certain actions or inactions of a licensed property agent when buying a home you intend to live in yourself you may make a claim against the Claim Fund.
You cannot claim for investment property, and you can only recover up to $35 000 from the claim fund for capital loss suffered as a result of a marketeering contravention.
Property marketeering contraventions
You can make a claim if the following marketeering contraventions occur when an agent promotes, sells or provides a service in connection with the sale of non-investment residential property in Queensland:
- misleading conduct: including lying, leading someone to an incorrect conclusion, creating a false impression, leaving out or hiding important information, and making false claims about the property or service
- unconscionable conduct: including conduct that is so unfair, unreasonable or harsh that it does not meet the minimum standards of fair dealing. A transaction is considered unconscionable when one party is placed at a disadvantage because of the conduct of another party and an unfair advantage results. The disadvantage can be made by any of the following:
- the relative bargaining strength of the parties
- whether the stronger party imposed conditions that were not necessary to protect their legitimate business interest
- whether the stronger party used undue influence, pressure or unfair tactics
- whether the weaker party could obtain supply on better terms elsewhere
- whether the stronger party made adequate disclosure to the weaker party
- willingness of the stronger party to negotiate
- extent to which each party acted in good faith
- requirements of any relevant industry code.
- false representation: including when the property agent does not tell the truth about a property that they are selling. False representation can also include:
- nature of the interest of the property
- price
- location
- characteristics of the property
- use of the property
- value of the property at the date of the sale
- existence or availability of facilities associated with the property.
When to make a claim
You can make a claim only if:
- a marketeering contravention (as described above) occurs
- you suffer a capital loss, i.e. the contract price or property value at the time of purchase less the contract price or property value at the time of sale. You can only realise your capital loss by selling the property
- you purchase the property as your principal place of residence and not as an investment property
- you on-sell the property within six years of the property´s purchase contract date
- the property is located in Queensland.
You cannot make a claim if:
- no marketeering contravention (as described above) occurs
- you purchase the property for investment purposes
- the property is not located in Queensland
- you do not on-sell your property within six years of the property´s purchase contract date.
Try to settle the claim yourself first
Always try to settle the claim first with the licensee through the property agent´s complaint resolution process.
If you cannot resolve the dispute, then you can lodge a written claim with us.
Claims process
1. Notify us of your intention to make a claim
Submit a PAMD Form 50-1 - Notice of intention to claim for a marketeering contravention (PDF, 160 KB) within one year of the purchased property´s contract date to tell us that you intend to make a claim after you on-sell your property.
2. Lodge claim after on-sell your property
After you sell the property within six years of the purchased property´s contract and realise your capital loss, submit a PAMD Form 50 - Claim against the claim fund (PDF, 163 KB). Give as much information regarding the property agent as possible. There is no fee to lodge a claim against the claim fund.
You must lodge a claim within six years of the contract date of the purchased property.
3. We notify the property agent
If your claim is in order, we will notify the property agent of your claim through a Claim Notice, and give them a chance to respond to the claim and settle the matter. They may try to contact you directly. If you accept a settlement, you and the property agent must notify us.
If you do not settle your claim, the property agent may give us their version of the facts within 14 days of receiving the Claim Notice. If you and the property agent cannot settle the claim within 28 days of them receiving the Claim Notice, give us written notice that you still wish to proceed with your claim.
4. We may investigate the claim
We may investigate the claim further to try to find more evidence if you and the property agent cannot settle.
If an investigation is requested, we send a copy of the Inspector´s Report to all parties once it is completed.
If the claim is for $10 000 or less, we will invite all parties to provide comments and any additional supporting information or documentation within 14 days. If we receive comments, we send copies all other parties and invite further comments within 14 days.
If the claim is for more than $10 000, we refer the claim to the Queensland Civil and Administrative Tribunal (QCAT) for determination.
We do not investigate all claims, so make sure you provide all the material you have when you first lodge your claim.
5. The claim is decided
Minor claims for $10 000 or less
We decide all claims for $10 000 or less without a hearing.
We document, sign and date our decision, and state:
- the decision and our reasons for it
- the findings of the case
- who is liable to reimburse the claim fund.
We will:
- decide your claim on the balance of probabilities of the alleged event happening and you suffering a financial loss as a direct result
- allow your claim in full or in part, or reject your claim
- decide the amount of your loss after taking into account any fault on your part, such as failing to take reasonable action to stop your loss
- determine the person liable for your loss.
Within 14 days of making a decision, we send all parties a copy of the decision with a review notice. The decision is legally binding unless a party applies to QCAT for a review within 28 days of receiving the notice. After this appeal period ends, the property agent cannot challenge any part of the decision again.
Claims for more than $10 000
The Queensland Civil and Administrative Tribunal decides claims over $10 000.
Once we refer a claim to QCAT, you must represent yourself as the applicant. We cannot represent you at the hearing.
When the QCAT receives the claim, it schedules a directions hearing, which sets a timetable of events for the parties to prepare for the hearing.
When all the actions set out in the directions hearing have completed, the QCAT sets a hearing date. The hearing is an opportunity for all parties to present evidence, and call and cross-examine witnesses.
All parties must attend the hearing, and prove their allegations and claims.
QCAT encourages parties to represent themselves at the hearing; however, you may engage a lawyer if QCAT approves.
If the property agent does not attend the hearing, QCAT can make a decision in their absence. QCAT will inform parties in writing of the decision.
QCAT may award costs against any party on grounds such as outcome, the parties´ conduct, the claim´s complexity, the claim´s relative strength and anything else QCAT considers relevant.
Read more about the Queensland Civil and Administrative Tribunal.
6. We pay the claim
If we or the Tribunal make a decision in your favour, it is subject to a 28-day appeal period during which any party may appeal to the Tribunal or higher. We cannot represent you in any appeal, and costs may be awarded against any party.
If neither party makes an appeal or an appeal is decided in your favour, we can pay you from the Claim Fund. We will not make any payment before the 28-day appeal period expires. After this time, you can expect payment within 21 days in most instances.
Appealing our decision
If you are unhappy with our decision, you can appeal to the Queensland Civil and Adminsitrative Tribunal to have the decision reviewed. You must request a review within 28 days of receiving written notice of the decision.
If you make an application for a review of our decision to QCAT you are the applicant and we do not represent you.
QCAT may award costs against any party based on:
- the outcome
- the parties´ conduct
- the claim´s complexity
- the claim´s relative strength
- anything else the Tribunal considers relevant.
Appealing the Queensland Civil and Administrative Tribunal´s decision
If any party is unhappy with QCAT´s decision, they can appeal to the QCAT Internal Appeal Tribunal or Court of Appeal, but only on an error of law or jurisdiction. You must appeal within 28 days of receiving notice of the QCAT´s decision.
If any party considers lodging an appeal to the QCAT Internal Appeal Tribunal or Court of Appeal, we recommend that they seek independent professional legal advice. Either party may incur costs as a result of the appeals.
Last reviewed 21/11/2011 |
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