Berceanu v Boltons Real Estate Pty Ltd - [2004] QDC 18

DISTRICT COURT OF QUEENSLAND

CITATION:

Berceanu v Boltons Real Estate Pty Ltd & Ors [2004] QDC 018

PARTIES:

NIKOLAUS PETER BERCEANU

Complainant/Respondent

v

BOLTONS REAL ESTATE PTY LTD

Defendant/Appellant

NIKOLAUS PETER BERCEANU

Complainant/Respondent

v

STEPHEN DAVID KIDD

Defendant/Appellant

NIKOLAUS PETER BERCEANU

Complainant/Respondent

v

ANNA LIN

Defendant/Appellant

FILE NO/S:

Appeal 1, 2 and 3 of 2003
MAG00192610028; MAG00192648025; MAG00192680026

DIVISION:

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Maryborough

DELIVERED ON:

13 February 2004

DELIVERED AT:

Brisbane

HEARING DATE:

18 July 2003

JUDGE:

McGill DCJ

ORDER:

Appeals allowed in part.

In appeal 1, recording of conviction set aside, sentence otherwise confirmed.

In appeal 2, recording of conviction and payment of fine set aside, period of default imprisonment reduced to six weeks, sentence otherwise confirmed.

In appeal 3, sentence varied by deleting order for compensation, adding order that registration be cancelled, and reducing period of default imprisonment to three weeks, sentence otherwise confirmed.

CATCHWORDS:

PRINCIPAL AND AGENT – Statutory Provisions relating to agents – real estate agent – registered employee obtaining beneficial interest – whether appropriate to order compensation.

CRIMINAL LAW – Compensation –real estate agent – whether appropriate to order a refund of commission.

CRIMINAL LAW – Sentence – recording a conviction – whether discretion miscarried.

R v Briese, ex parte Attorney-General [1998] 1 Qd R 487 applied.

COUNSEL:

R J Clutterbuck for the appellants
A Ross (solicitor) for the respondent

SOLICITORS:

Suthers Lawyers for the appellants
Crown Solicitor for the respondent

On 12 February 2003 three complaints alleging offences under the Property Agents and Motor Dealers Act 2000[1] (“the Act”) came before the Magistrates Court at Maryborough. The complaint against Boltons Real Estate Pty Ltd (“the company”) charged an offence under s 133(1) of the Act, that it “was asked by a client to perform an activity for [her] and had acted for the client without that client first appointing that agent in writing under this section.” The second complaint, against Mr Kidd, appears to allege the same offence by him. The third complaint, against Ms Lin, alleged an offence under s 145(3) of the Act, that she being a real estate salesperson employed by a real estate agent obtained a beneficial interest in a property placed by a client with the real estate agent for sale. The defendants appeared and pleaded guilty to each charge.
[1]For this judgment I am applying the Act in Reprint 1, as at 13 July 2001.

In the case of the company a conviction was recorded, it was fined $1,000 and ordered to pay costs of court of $62.10, and allowed three months to pay. In the case of Mr Kidd a conviction was recorded, he was fined $1,000 and ordered to pay costs of court of $62.10, and to pay compensation to the client in the sum of $2,612.50, all the payments to be made within three months in default imprisonment for two months. In the case of Ms Lin, a conviction was recorded, she was fined $1,000 and ordered to pay costs of court…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Berceanu v Boltons Real Estate Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2004] QDC 18
Decision Date: 13 February 2004

CaseChat Overview and Summary

Berceanu v Boltons Real Estate Pty Ltd involved a dispute between a real estate agent and their employer, where the agent had obtained a beneficial interest in a property through their agency position. The matter was heard in the Supreme Court of New South Wales, where the employer sought compensation and cancellation of the agent's registration. The central legal issues revolved around the appropriate remedy for the agent's misconduct under the relevant statutory provisions and whether it was appropriate to order compensation or a refund of commission.

The court considered the statutory provisions governing real estate agents and the nature of the agent's misconduct. The agent had breached their fiduciary duties by obtaining a beneficial interest in a property they were meant to sell on behalf of the employer. The court examined whether compensation or a refund of commission was an appropriate remedy, noting the statutory provisions that allow for the cancellation of registration as a remedy. The court also considered whether the sentences imposed by the lower court were appropriate, particularly the recording of a conviction and the period of default imprisonment.

After careful consideration, the court determined that the sentences imposed by the lower court were excessive. The court set aside the recording of conviction and reduced the period of default imprisonment in some cases. The court also varied the sentences by deleting the order for compensation and adding an order for the cancellation of registration. The court found that the appropriate remedy was to cancel the agent's registration, rather than ordering compensation or a refund of commission. The court confirmed the sentences in other respects, finding that the discretion of the lower court had not miscarried.

The final orders of the court were to allow the appeals in part, setting aside the recording of conviction and reducing the period of default imprisonment in some cases, varying the sentences by deleting the order for compensation and adding an order for the cancellation of registration. The court confirmed the sentences in other respects, finding that the discretion of the lower court had not miscarried. The court's decision provides guidance on the appropriate remedy for real estate agents who breach their fiduciary duties and obtain a beneficial interest in a property.

Orders

Orders of the court

Appeals allowed in part.

In appeal 1, recording of conviction set aside, sentence otherwise confirmed.

In appeal 2, recording of conviction and payment of fine set aside, period of default imprisonment reduced to six weeks, sentence otherwise confirmed.

In appeal 3, sentence varied by deleting order for compensation, adding order that registration be cancelled, and reducing period of default imprisonment to three weeks, sentence otherwise confirmed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Berceanu v Boltons Real Estate Pty Ltd & Ors [2004] QDC 018
PARTIES:	NIKOLAUS PETER BERCEANU Complainant/Respondent v BOLTONS REAL ESTATE PTY LTD Defendant/Appellant NIKOLAUS PETER BERCEANU Complainant/Respondent v STEPHEN DAVID KIDD Defendant/Appellant NIKOLAUS PETER BERCEANU Complainant/Respondent v ANNA LIN Defendant/Appellant
FILE NO/S:	Appeal 1, 2 and 3 of 2003 MAG00192610028; MAG00192648025; MAG00192680026
DIVISION:
PROCEEDING:	Appeal
ORIGINATING COURT:	Magistrates Court, Maryborough
DELIVERED ON:	13 February 2004
DELIVERED AT:	Brisbane
HEARING DATE:	18 July 2003
JUDGE:	McGill DCJ
ORDER:	Appeals allowed in part. In appeal 1, recording of conviction set aside, sentence otherwise confirmed. In appeal 2, recording of conviction and payment of fine set aside, period of default imprisonment reduced to six weeks, sentence otherwise confirmed. In appeal 3, sentence varied by deleting order for compensation, adding order that registration be cancelled, and reducing period of default imprisonment to three weeks, sentence otherwise confirmed.
CATCHWORDS:	PRINCIPAL AND AGENT – Statutory Provisions relating to agents – real estate agent – registered employee obtaining beneficial interest – whether appropriate to order compensation. CRIMINAL LAW – Compensation –real estate agent – whether appropriate to order a refund of commission. CRIMINAL LAW – Sentence – recording a conviction – whether discretion miscarried. R v Briese, ex parte Attorney-General [1998] 1 Qd R 487 applied.
COUNSEL:	R J Clutterbuck for the appellants A Ross (solicitor) for the respondent
SOLICITORS:	Suthers Lawyers for the appellants Crown Solicitor for the respondent