Navigating the OFT Claim Fund in Queensland: What You Need to Know
The Office of Fair Trading Claim Fund (OFT Claim Fund) is a statutory compensation scheme established under the Property Occupations Act 2014 (Qld) (POA) and the Agents Financial Administration Act 2014 (Qld) (AFAA). The purpose of the OFT claim fund is to compensate individuals who have suffered financial loss as a result of misconduct by a licensed agent or motor dealer (or their employees) in connection with certain regulated transactions.
This includes:
- Real estate agents;
- Motor dealers;
- Auctioneers;
- Chattel auctioneers;
- Debt collectors or process servers;
- Property managers / residential letting agents; and
- Employees of any of the above.
Claims are generally seen to involve false or misleading representations, misapplication of trust money and or conduct breaching duties imposed under legislation.
It is important to highlight however, that the OFT claim fund is not a forum for applicants to make general complaints and claims in relation to service quality, delays, or negligence where no breach of relevant acts has occurred.
Maximum Compensation Under the OFT Claim Fund
The OFT claim fund itself has strict monetary limits regarding how much can be claimed. These amounts are –
- Maximum per claimant: $200,000 (under AFAA s113 and Agents Financial Administration Regulations (AFAR) reg 25)
- Maximum for all claims arising from the same agent’s conduct (class actions): $2,000,000 in aggregate (under reg 25(2) AFAR)
This monetary cap was enforced in the case of Robertson v Airstrike Industrial Pty Ltd [2013] QCAT 107. Within this case, the loss realised was for $321,986 but relief of only $200,000 was sought in order to comply with the relevant legislation.
Who Is Eligible To Claim?
In terms of eligibility, you must –
- Have suffered financial loss;
- That loss must have resulted from defined misconduct (e.g. misleading statements, improper dealing with trust money);
- The misconduct must have occurred in connection with a regulated transaction involving a licensed real estate agent or their staff.
When Can’t You Make A Claim?
You can’t make a claim if:
- The agent or dealer doesn’t honour your statutory warranty on a used vehicle (you will need to apply to the Queensland Civil and Administrative Tribunal (QCAT);
- The agent or dealer steals or misuses trust account money after you have agreed that they could invest it;
- You didn’t get all the information you needed from the agent or dealer;
- You’re dealing with a property developer (or their employees);
- The agent or dealer didn’t tell you of their relationship with a service provider they recommended you use (for example, a solicitor);
- You are also a licensee, and were dealing with another agent as part of your job;
- You made a financial investment in the agent or dealer’s business; or
- You experienced poor service or the agent or dealer was negligent.
How to Make a Claim: Process and Timeframes
The process is designed to be accessible, but it still requires preparation and supporting evidence. Here is how it works:
- Lodge a Form 1 with the OFT
- Must be done within 1 year of becoming aware of the loss, and no later than 3 years from the date of misconduct (AFAA s 85, s 122).
- OFT investigation
- The OFT may contact the agent and assess the evidence. There is no hearing at this stage.
- Decision issued
- If the OFT is satisfied on the balance of probabilities that the misconduct caused your loss, it may approve compensation.
- Simple claims will be decided without a hearing.
- Appeal to QCAT (if necessary)
- If the claim is denied or only partially approved, or if the agent disputes liability, you can apply to the Queensland Civil and Administrative Tribunal (QCAT) for a merits review.
- QCAT proceedings (if escalated)
- QCAT will rehear the matter afresh, consider evidence, hold a hearing, and make its own decision. If successful, the agent may also be ordered to reimburse the fund (AFAA s 116).
Final Thoughts: Should You Consider Making a Claim?
The OFT Claim Fund can be a powerful remedy if you have been misled by an agent but it is not automatic and not unlimited. Evidence and timing are key for a successful claim under the fund.
How We Can Help
Whether you are just starting the claim process or seeking legal advice regarding your situation with the OFT Claim Fund, our team at Rostron Carlyle Rojas Lawyers can guide you through your rights, your evidence, and your prospects of success.
Call us on 07 3009 8444 or contact us to book a consultation.
The blog published by Rostron Carlyle Rojas is intended as general information only and is not legal advice on any subject matter. By viewing the blog posts, the reader understands there is no solicitor-client relationship between the reader and the blog published. The blog should not be used as a substitute for legal advice from a legal practitioner, and readers are urged to consult RCR on any legal queries concerning a specific situation.
