State of New South Wales v Loh Min Choo [2012] NSWCA 275

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: State of New South Wales v Loh Min Choo [2012] NSWCA 275 Hearing dates: 23 July 2012 Decision date: 06 September 2012 Before: McColl JA at [1]; Campbell JA at [2]; Macfarlan JA at [3] Decision: (1) Appeal allowed in part. (2) Set aside the orders made at first instance on 1 December 2011. (3) If the parties are able to agree as to the further orders that should be made to give effect to this judgment, direct that they lodge an appropriate form of consent order with the Court within seven days of the date of this judgment. (4) If the parties are unable to so agree, direct that they file and serve submissions (not exceeding three pages in length) concerning the further orders that should be made, with the appellants to lodge their submissions within 14 days of the date of this judgment, the respondents to lodge their submissions within 14 days thereafter and the appellants to lodge any reply within a further seven days. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: AGENCY - real estate agents - failure by real estate agent to account for funds entrusted to it - claims against Property Services Compensation Fund established under Property, Stock and Business Agents Act 2002 - whether claims out of time - whether claims made more than two years after the failures to account or more than 12 months after the claimants became aware of the failures to account - meaning of "failure to account" - whether overcharging for commission constituted a failure to account - whether pecuniary loss suffered as a result of failure to account where prior misappropriation of funds - whether compensation to joint owners of funds limited by s 175 to one shared amount of $500,000 - whether costs of court proceedings included in amount to which claims limited - date from which claimants entitled to interest under s 100 Civil Procedure Act 2005 Legislation Cited: Civil Procedure Act 2005 Commonwealth Electoral Act 1918 (Cth) Property, Stock and Business Agents Act 2002 Law Reform (Miscellaneous Provisions) Act 1946 Cases Cited: Commissioner of Taxation v Reliance Carpet Co Pty Ltd [2008] HCA 22; 236 CLR 342 David Grant & Co Pty Ltd v Westpac Banking Corporation [1995] HCA 43; 184 CLR 265 Deming No 456 Pty Ltd v Brisbane Unit Development Corporation Pty Ltd [1983] HCA 44; 155 CLR 129 Do Carmo v Ford Excavations Pty Ltd [1984] HCA 17; 154 CLR 234 Emanuele v Australian Securities Commission [1997] HCA 20; 188 CLR 114 Financial Industry Complaints Service Ltd v Deakin Financial Services Pty Ltd [2006] FCA 1805; 157 FCR 229 Francis v Law Society of New South Wales (1982) 2 NSWLR 191 Glenorcy Pty Ltd v Law Society of New South Wales [2004] NSWSC 464 Harris v Commercial Minerals Ltd [1996] HCA 49; 186 CLR 1 Hamilton v Merck & Co Inc [2006] NSWCA 55; 66 NSWLR 48 Hungerfords v Walker [1989] HCA 8; 171 CLR 125 In re Hodgson [1885] 31 Ch D 177 King v Hoare (1844) 13 M&W 494 at 505; 153 ER 206 Kinzett v McCourt [1999] NSWCA 7; 46 NSWLR 32 Jol v State of New South Wales (1998) 45 NSWLR 283 Law Society of New South Wales v Glenorcy Pty Ltd [2006] NSWCA 250; 67 NSWLR 169 Minahan v Sahib Dad (1925) 25 SR (NSW) 613 Rudolphy v Lightfoot [1999] HCA 61; 197 CLR 500 Swansea City Council v Glass [1992] QB 844 Travel Compensation Fund v Tambree [2005] HCA 69; 224 CLR 627 Tyler v Krause [2002] QCA 295; (2003) 1 Qd R 453 Category: Principal judgment Parties: State of New South Wales (First Appellant) Commissioner for Fair Trading, Department of Finance and Services (Second Appellant) Loh Min Choo (First Respondent) Lim Teck Beng (Second Respondent) Representation: Counsel: B Zipser (Appellants) A Ogborne (Respondents) Solicitors: Department of Finance and Services (Appellants) CFC Lawyers (Respondents) File Number(s): CA 2010/149235 Decision under appeal Citation: Loh Min Choo v State of New South Wales [2011] NSWSC 1477 Date of Decision: 2011-12-01 00:00:00 Before: Associate Justice Harrison File Number(s): SC 2010/149235